Flying Diamond Airpack, LLC v. Meienberg

• Decision Date: 30 April 2007
• Docket Number: No. 2 CA-CV 2006-0092.,2 CA-CV 2006-0092.
• Citation: 156 P.3d 1149,215 Ariz. 44
• Parties: FLYING DIAMOND AIRPARK, LLC, an Arizona limited liability company, an Arizona non-profit corporation, Plaintiff/Appellee, v. Jeffrey A. MEIENBERG, an unmarried man, Defendant/Appellant.
• Court: Arizona Court of Appeals

156 P.3d 1149

215 Ariz. 44

FLYING DIAMOND AIRPARK, LLC, an Arizona limited liability company, an Arizona non-profit corporation, Plaintiff/Appellee, v. Jeffrey A. MEIENBERG, an unmarried man, Defendant/Appellant.

No. 2 CA-CV 2006-0092.

Court of Appeals of Arizona, Division 2.

April 30, 2007.

John A. Baade and Tanis A. Duncan, Tucson, Attorneys for Plaintiff/Appellee.

Law Office of Ethan Steele, P.C., By Ethan Steele, Tucson, Attorney for Defendant/Appellant.

OPINION

HOWARD, Presiding Judge.

¶ 1 Appellant Jeffrey Meienberg appeals from an order issuing a mandatory injunction¹ requiring him to reduce the height of a hangar he had built. He argues the trial court erred by concluding Meienberg's violation of a restrictive covenant was intentional, failing to apply the doctrine of relative hardships, and failing to re-open the case for additional evidence regarding the hardship Meienberg would incur in complying with the injunction. He also argues that appellee Flying Diamond Airpark, LLC, was estopped from enforcing the covenant. Finding no error, we affirm.

Background

¶ 2 "`We view the facts in the light most favorable to sustaining the trial court's judgment.'" Cimarron Foothills Cmty. Ass'n v. Kippen, 206 Ariz. 455, ¶ 2, 79 P.3d 1214, 1216 (App.2003), quoting Sw. Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, ¶ 2, 36 P.3d 1208, 1210 (App.2001). Flying Diamond is an association of property owners in a development in which Meienberg owns property. A recorded declaration of covenants, conditions, and restrictions (CC&Rs), referred to in Meienberg's deed, applies to his parcel. Meienberg is a mandatory member of Flying Diamond, bound by the CC&Rs.

¶ 3 The CC & Rs prohibit certain structures, including "structures of more than 22 foot height." In 2004, Meienberg began constructing a hangar on his property, using prefabricated parts. The hangar is equipped with three roof vents. Each vent is ten feet long, sixteen inches high, and two feet wide and attaches to the roof. The hangar's height from the ground to the top of the vents along the ridge of the hangar's roof exceeds twenty-two feet. As Meienberg now concedes, the hangar violates the height restriction by eight-and-three-quarter to ten-and-three-quarter inches.

¶ 4 After Meienberg ordered the parts for the building, but before construction began, Meienberg showed the plans for the hangar to Larry Bramhall, another property owner and association member. Bramhall, who had building experience, had been asked to serve on an architectural advisory committee that would "advise owners of [CC & R] violations prior to building." Submission of plans to that committee, however, was not mandatory, and the committee "would not approve or disapprove plans."

¶ 5 The plans Meienberg showed Bramhall did not include a measurement of the total height of the hangar and did not include the dimensions of the roof vents. Bramhall testified at trial that, given the height of the eaves and the roof's pitch, he determined the hangar's roof would not exceed twenty-two feet in height. But he also testified that "there was never any mention of roof vents." Bramhall ended the conversation by reminding Meienberg to be sure the building was not more than twenty-two feet tall.

¶ 6 After construction began, Bramhall saw the steel frame of the building and saw the roof vents lying on the ground. Bramhall informed Meienberg that, including the roof vents in the height calculation, the hangar would exceed the height restriction. He also told Meienberg that lower-profile vents that would not violate the restriction could be installed, and that he might be able to find a buyer for the higher-profile vents. Meienberg took the position that the vents should not have been included in the height calculation, and he continued construction.

¶ 7 Flying Diamond brought this action in the trial court, seeking an injunction requiring Meienberg to bring the hangar into compliance with the height restriction. The court held an evidentiary hearing, and the parties stipulated to have the court render a decision based on the testimony and evidence presented at that hearing, as well as legal memoranda filed by the parties. Meienberg argued that the hangar did not violate the restriction, that Flying Diamond was estopped from seeking injunctive relief, and that the hardship on Meienberg in complying with an injunction would outweigh any benefit to Flying Diamond.

¶ 8 The court concluded that the hangar violated the height restriction. It found that Meienberg was aware of the restriction, the violation of the restriction, and Flying Diamond's intention to enforce the restriction. It therefore concluded that Meienberg could not claim hardship or estoppel as defenses and that Flying Diamond was entitled to an injunction. The court also awarded Flying Diamond attorney fees pursuant to a provision in the CC&Rs.

Relative Hardships

¶ 9 Meienberg contends the trial court erred in concluding that his violation of the height restriction was intentional, which would preclude it from considering the relative hardships to the parties in deciding whether to issue an injunction. We review a trial court's grant of injunctive relief for an abuse of discretion. See Ahwatukee Custom Estates Mgmt. Ass'n v. Turner, 196 Ariz. 631, ¶ 5, 2 P.3d 1276, 1279 (App.2000). We defer to the court's findings of fact unless clearly erroneous, but we review de novo its legal conclusions. See id.

¶ 10 Equitable principles govern the enforcement of restrictive covenants by injunction. See id. ¶ 9, 2 P.3d 1276. "Equitable considerations include the relative hardships and injustice; the public interest; misconduct of the parties, if any; delay on the part of the plaintiff; and the adequacy of other remedies." Id. But "[e]quitable remedies are a matter of grace and not of right and equitable discretion should not be used to protect an intentional wrongdoer." Decker v. Hendricks, 97 Ariz. 36, 41-42, 396 P.2d 609, 612 (1964).

¶ 11 Consistent with these principles, this court has held that it is not error to refuse to consider relative hardships where a party is aware of a restriction and of some homeowners' intent to enforce the restriction but nonetheless builds an offending structure. Camelback Del Este Homeowners Ass'n v. Warner, 156 Ariz. 21, 26, 749 P.2d 930, 935 (App.1987); see also Burke v. Voicestream Wireless Corp. II, 207 Ariz. 393, ¶¶ 28-29, 87 P.3d 81, 87 (App.2004) (trial court erred by balancing hardships where party built structure knowing of restrictions and neighborhood opposition to structure). But the Arizona cases provide no clear definition of what makes a party an "intentional wrongdoer."

¶ 12 Meienberg contends his violation of the height restriction was "unintentional at the critical time that he ordered his hangar and reviewed the plans with Bramhall" and the trial court wrongly determined his intent as of a later time.² He claims his defenses "were already established as historical fact" at the time he reviewed the plans with Bramhall, and thus, the trial court should not have considered events occurring afterward in gauging his intent.

¶ 13 We know of no authority supporting Meienberg's argument, and he cites none. In fact, in the cases in which Arizona courts have considered whether a party who violates a restriction can claim hardship as an equitable defense, it does not appear to have been crucial that the property owner intended to violate the restriction from the outset. In Burke, for example, Voicestream intended to build a cellular telephone tower and claimed to have spent $100,000 on the project before property owners voiced opposition to the plan. 207 Ariz. 393, ¶¶ 4-5, 87 P.3d at 83. Voicestream then constructed the tower in violation of a restriction. Id. ¶ 7, 87 P.3d 81. Voicestream, as Meienberg did in this case, asserted, based on its interpretation of the restriction, that it did not believe the structure violated the restriction. Id. ¶ 12, 87 P.3d 81. This court held that Voicestream could not "claim hardship because [it] proceeded with the tower construction knowing of the Restrictions and that neighboring homeowners objected to the tower." Id. ¶ 28, 87 P.3d 81.

¶ 14 Similarly, in Decker, Decker began construction of a building but soon stopped after learning that it violated a restriction. 97 Ariz. at 38, 396 P.2d at 610. However, he later continued construction of the offending building, and property owners brought an action to enjoin the violation of the restriction. Id. at 38-39, 396 P.2d at 610. Decker admitted that he knew he had violated a restriction, but continued construction anyway because he "had so much money in it that [he] couldn't do otherwise." Id. at 41, 396 P.2d at 612. The court held that Decker could not rely on hardship because he was an "intentional wrongdoer." Id. at 42, 396 P.2d at 612.

¶ 15 Meienberg argues Decker is distinguishable because Decker expended a large amount of money after learning of the violation and then claimed hardship, whereas here, according to Meienberg, Meienberg "never made any ... claim that because he decided to complete installation of his original vents despite Flying Diamond's objection, ... this was a factor which added to his burden." But, here, as in Decker, Meienberg continued construction despite knowing of a restriction. And, although the court in Decker emphasized Decker's expenditure of money after learning of the violation and his reasoning for his decision, see Decker, 97 Ariz. at 41, 396 P.2d at 612, this court in Burke merely stated that Voicestream could not claim hardship "[b]ecause [it] proceeded with construction knowing of the Restrictions and that several homeowners claimed that the tower was prohibited under the Restrictions." 207 Ariz. 393, ¶ 29, 87 P.3d at 87. Similarly, here, Meienberg proceeded to complete construction of an offending structure after learning from Bramhall that it violated a...