River Springs v. L'Heureux/Mattison

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE RIVER SPRINGS RANCH PROPERTY OWNERS ASSOCIATION, an Arizona non-profit organization, ) ) ) ) Plaintiff/Appellee, ) ) v. ) ) LOUIS L HEUREUX; KATHLEEN ) MATTISON, ) ) Defendants/Appellants. ) __________________________________) DIVISION ONE FILED: 10/26/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-CV 09-0560 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Apache County Cause No. CV2007025 The Honorable Donna J. Grimsley, Judge AFFIRMED Louis L Heureux and Kathleen Mattison Defendants/Appellants St. Johns Ekmark & Ekmark, L.L.C. Scottsdale By Curtis S. Ekmark Penny L. Koepke Nicole A. Miller Attorneys for Plaintiff/Appellee ________________________________________________________________ W I N T H R O P, Presiding Judge ¶1 Ranch This case arises from a claim by the River Springs Property RSRPOA ) Owners Louis that Association ( the L Heureux and Association Kathleen or Mattison ( Appellants ), owners of Lot 181 within the River Springs Ranch community, from their Declaration were operating property of in Covenants, Declaration ). 1 After Appellants violating were a a commercial dog breeding business violation of the Conditions, and Restrictions bench the trial, the Declaration Association s ( the court found that by operating a commercial dog breeding business and because the numerous dogs on the lot caused a nuisance and annoyance to other Association property owners. The trial court granted the Association s request for a permanent injunction ordering Appellants to cease operating the commercial dog breeding business and to limit the number of dogs on the property. Appellants appeal the decision. For the following reasons, we affirm. 1 The record indicates that, in May 2007, Appellants executed a warranty deed transferring L Heureux s interest in Lot 181 to Mattison. L Heureux remained a party to the complaint, however. 2 FACTS AND PROCEDURAL HISTORY ¶2 Appellants own Lot 181 in the community known as River Springs Ranch, Unit V. Appellants and Lot 181 are subject to the Declaration for River Springs Ranch, Unit IV. 2 ¶3 Article I, Section 1, of the applicable Declaration states in pertinent part: All parcels shall be used for recreational and residential purposes only. No . . . business of any kind, . . . shall ever be erected or permitted upon any of the parcels, or any part thereof, and no business or commercial venture or enterprise of any kind or character whatever shall be conducted in or from any residence on the parcels. Article I, Section 5, of the Declaration nonetheless authorizes the use parcel of has the been property fenced for ranching in as set purposes forth in provided the the Purchase Agreement, including a reasonable number of horses and cattle. That section of the Declaration, however, prohibits the presence of stockyards, other commercial dairy cows, activity noise or obnoxious odors. horseback which would riding stables or create excessive any dust, In addition, Article I, Section 6, of the Declaration states in pertinent part: No noxious or offensive activities shall be carried on upon any parcel nor shall anything be done thereon which may be or may become an annoyance or a nuisance. 2 Unit V was made subject to the Declaration of Unit IV by the Declaration of Annexation for River Springs, Unit V. 3 The Declaration specifically provides in Article XI, Section 1, that [f]ailure to enforce any of the Restrictions herein contained shall not in any event be construed to be a waiver thereof, or violation a consent hereof. to any Article further XII succeeding of the breach Declaration or also provides: In the event of any violation . . . by any owner, then the Association, Declarant, or any owner may, at its option, have the following rights against the violator: (1) An action at law to recover for damages; and (2) an action in equity to enforce performance on the part of the owner; and/or (3) an action in equity for such equitable relief as may be necessary under the circumstances, including injunctive relief. Failure to maintain such an action at law or in equity shall not constitute a waiver of the violation or any other violations. ¶4 In a letter to Appellants dated January 2, 2005, Todd Palmerton, President of the RSRPOA on behalf of the Association s Board of Directors explained that the Board had received letters from Appellants neighbors complaining about the presence of numerous dogs on Lot 181 that were being used for breeding puppies for profit. The letter expressed the Board s position that Appellants were in clear violation of Article I, Sections 1 and 6, of the Declaration. The Board demanded cease that, commercial by activity February and 15, halt 2005, any Appellants noxious or any offensive activities, and specifically demanded that Appellants remove all dogs used for breeding puppies for sale and any puppies bred for 4 sale. The letter warned that the Board was prepared to take legal action. ¶5 In letter to July 2006, Appellants counsel advising for them the that Association the sent Association a had authorized legal action unless they ceased commercial activity on their lot, removed the animals used for commercial purposes, allowed a representative of the Association to enter the property to confirm that the activities had ceased, and agreed to allow entry onto the property in the event of future complaints. ¶6 In February 2007, the Association filed suit against Appellants for breach of contract, seeking a permanent injunction ordering Appellants to cease the operation of the dog breeding business on the property, to remove all animals used for commercial purposes, to limit the number of dogs to those for personal enjoyment, to keep the property in compliance with deed restrictions, and to allow the Association to enter their property to confirm compliance and to recover any amounts necessary to remedy any found violations. ¶7 In a joint pretrial statement, the parties stipulated that Appellants were subject to the terms of the Declaration, that they bred and kenneled up to 132 dogs on Lot 181 at a given time, and that they sold dogs and puppies that were kenneled or housed on Lot 181. The parties disputed whether the dogs kept 5 on Lot 181 constituted a nuisance and annoyance to other owners in the Association, whether the activities involving the dogs fell within the meaning of the term ranching as used in and permitted by the Declaration, and whether the activities, even if considered obnoxious odors ranching, such created that they excessive should be dust, noise, prohibited. or The parties also disputed whether the Association had an adequate remedy at law. ¶8 A bench trial was held over two days in May 2009; in July, the trial court granted the Association s request for an injunction. 3 In pertinent part, the court found as follows: In direct contravention of the Declaration, Defendants are currently conducting the operation of a commercial dog breeding business on Lot 181. In direct contravention of the Declaration, Defendants have in the past conducted the operation of a commercial dog breeding business on other lots within the Association. In direct contravention of the Declaration, the numerous dogs kept by Defendants on Lot 181 continue to cause tremendous noise which are, and have been, a nuisance and annoyance to other owners within the Association. The court further finds that the Association does not have an adequate remedy at law. The court therefore issues a permanent injunction ordering Defendants to remedy the above listed deed violations on Lot 181 on or before September 1, 2009. The court further orders Defendants to cease and 3 No transcript of the trial has been provided as part of the record on appeal. 6 desist the operation of the dog breeding business on their property; remove all animals on their property used for commercial purposes, including any dogs used for the purpose of breeding puppies for sale, and any puppies that are the result of such breeding; limit the number of dogs, including puppies to only those for personal enjoyment; and allow the Association or an agent hired on its behalf the right to go upon Defendants property upon 72 hours notice for the purpose of confirming compliance with the provisions of this injunction. This inspection is limited to two (2) times per year. The court notes that it is hesitant to put an exact numerical limit on the number of dogs that may be maintained for personal pleasure. In light of the clear nuisance caused by the barking of the large number of dogs in the past, the court notes that it is reasonable to limit the number to 15. ¶9 The court entered a judgment consistent with its ruling and subsequently awarded attorneys fees and costs to the Association respectively. have in the amounts of $53,740.47 and $973.20, Appellants filed a timely notice of appeal. jurisdiction pursuant to Arizona Revised We Statutes ( A.R.S. ) section 12-2101(F)(2) (2003). ANALYSIS ¶10 A restrictions declaration is a of contract covenants, between a conditions, subdivision s collectively and the individual lot owners. and owners Ahwatukee Custom Estates Mgmt. Ass n v. Turner, 196 Ariz. 631, 634, ¶ 5, 2 P.3d 1276, 1279 (App. 2000). Enforcement of deed restrictions is effected through an injunction. 7 Heritage Heights Home Owners Ass n v. Esser, 115 Ariz. 330, 333, 565 P.2d 207, 210 (App. 1977). A plaintiff seeking a permanent injunction must show: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. (citations which v. omitted). allows equitable MercExchange, the between An trial the L.L.C., 547 injunction court to parties; is U.S. an fashion the 388, equitable a remedy discretion trial court, not the reviewing court. 391 lies (2006) remedy, that with is the Scholten v. Blackhawk Partners, 184 Ariz. 326, 331, 909 P.2d 393, 398 (App. 1995) (supplemental opinion). injunctive relief is The trial court s decision to grant reviewed for an abuse of discretion. County of Cochise v. Faria, 221 Ariz. 619, 621, ¶ 6, 212 P.3d 957, 959 (App. 2009). A trial court abuses its discretion if it makes a mistake of law or clearly errs in finding the facts or applying them to the legal criteria for granting an injunction. See Shoen v. Shoen, 167 Ariz. 58, 62, 804 P.2d 787, 791 (App. 1990). We review de novo the interpretation of a contract and whether a party has an adequate remedy at law. The Power P.E.O., Inc. v. Employees Ins. of Wausau, 201 Ariz. 559, 562-63, ¶¶ 15, 22, 38 P.3d 1224, 1227-28 (App. 2002). 8 ¶11 Appellants argue that the letters sent to them in January 2005 and July 2006 did not comply with A.R.S. § 33-1803, which outlines the procedures to be followed by a homeowners association when notifying a member of a violation. § 33-1803 (2007). See A.R.S. They contend that the violation, in itself, requires dismissal of the Association s complaint. They also argue that two Association officials who took action against them had conflicts of interest and that the Association conducted an emergency Board meeting at an improper location and improperly solicited complaint letters regarding Lot 181. In response, the Association contends, among other things, that Appellants have waived these arguments because they did not issues and raise them in the trial court. ¶12 arguments This not court first does not consider presented to the on appeal trial court. See Scottsdale Princess P ship v. Maricopa County, 185 Ariz. 368, 378, 916 P.2d 1084, 1094 (App. 1995). The record before us does not support finding that these specific issues were raised in the trial court; accordingly, they are waived on appeal. The joint pretrial statement includes no reference to these issues and affirmatively states that the Parties do not believe that there are any other issues of fact and law that are material or applicable. Additionally, Appellants acknowledged in their notice of appeal that their argument with respect to § 33-1803 9 was not presented at trial. As for their argument with respect to the allegedly improper conduct of the Association s Board and its members, record Appellants showing court. they have directed presented these us to nothing arguments to in the the trial Further, because no transcript of the trial has been provided on appeal, we cannot determine whether they presented the argument at that time. See generally Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995) (recognizing that the appellant has the burden of ensuring that this court has before it the portions of the record necessary to consider the issues raised on appeal). Because Appellants cannot demonstrate that they raised these issues in the trial court, we do not consider them now. ¶13 Appellants contains no under enforcement A.R.S. injunction also § shall argue provisions 12-1802(5) not that be and (2003), granted the injunction therefore which [t]o is improper provides prevent order that breach of an a contract, the performance of which would not be specifically enforced. ¶14 Appellants misconstrue the provision, which permits the granting of an injunction to enforce a contract that can be specifically enforced, specifically enforced, but as not with a a contract personal that services cannot be contract. See, e.g., Engelbrecht v. McCullough, 80 Ariz. 77, 79, 292 P.2d 10 845, 846-47 (1956) ( A contract for personal services will not be specifically enforced. (citation omitted)). sought an injunction Declaration; to Appellants enforce have the offered The Association provisions no argument provisions cannot be specifically enforced. of that the those We therefore reject their argument that the injunction is improper under § 12-1802. ¶15 Appellants also argue that Article I, Section 5, of the Declaration limits the restriction on commercial activity to only those activities that create excessive dust, noise, or obnoxious odors, that it does not prohibit kennels or exclude ranching of any animal other than swine and dairy cows, and that the provision is therefore vague and should be interpreted in favor of the free use of land. ¶16 As we have previously noted, interpretation of a contract de novo. we review the Rand v. Porsche Fin. Servs., 216 Ariz. 424, 434, ¶ 37, 167 P.3d 111, 121 (App. 2007). The approach restrictive advocated covenant in by Appellants favor of the of free interpreting use of land a is supported only by dicta in Arizona decisions and has otherwise been rejected by our supreme court. See Powell v. Washburn, 211 Ariz. 553, 557, ¶ 15, 125 P.3d 373, 377 (2006). We instead interpret restrictive covenants to give effect to the intention of the parties as shown by the language used and the surrounding circumstances and to carry out the purpose of the restrictions. 11 Id. at 556-57, ¶¶ 13-14, 125 P.3d at 376-77. If the contract language is reasonably susceptible to an interpretation proposed by a party, the court may consider determine the intent of the parties. extrinsic evidence to Taylor v. State Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 154, 854 P.2d 1134, 1140 (1993). ¶17 Appellants suggest that the language in Article I, Section 5, authorizing ranching allows for commercial use of the parcels except for those uses that create excessive dust, noise, or odors. ¶18 We do not interpret Article I, Section 5, as negating the general prohibition against commercial use found in Article I, Section 1. ranching riding but The language in Section 5, however, allowing precluding stables or any stockyards, other dairy commercial cows, activity horseback which would create excessive dust, noise or obnoxious odors is susceptible to the interpretation that the Declaration permits a limited exception to the prohibition against commercial use. Under this interpretation, parcels could be used for commercial ranching, with the specified exceptions, including a reasonableness requirement on the number of horses or cattle. The provision could also be interpreted, however, as holding that, although ranching for personal use was permitted, the keeping of animals for commercial purposes such 12 as stockyards, dairy cows, horseback riding stables, or any other commercial activity was not permitted. ¶19 Appellants argue not only that Article I, Section 5, permits commercial ranching, but also that the definition of ranching includes their operation of the dog breeding business. They note that Section 5 does not clearly preclude the operation of kennels or exclude ranching of any animal other than swine or dairy cows. understanding The of the Association term argues ranching is that a the farm ordinary for raising horses, beef cattle, and sheep - and does not include pets such as dogs. ¶20 The establishment term ranch maintained has for been defined raising both livestock as under an range conditions, and as a farm or ranchlike enterprise that raises a single Dictionary crop 1091 or animal. (2d ed. Random 1999). House In Webster s their joint College pretrial statement, the parties identified as a contested issue whether the term ranching as used in the Declaration encompassed raising dogs. ¶21 The interpretation of words in a contract depends on the intent of the parties. Arc Elec. Co. v. Esslinger-Lefler, Inc., 121 Ariz. 501, 504, 591 P.2d 989, 992 (App. 1979). The language of Article I, Section 1, establishes that the overall purpose of the Declaration is to ensure that the parcels in 13 River Springs Ranch are residential purposes only. to be used for recreational and The parties had the opportunity to present to the trial court evidence of their intent under the Declaration regarding whether commercial ranching was an exception to the general prohibition on commercial use and, if so, whether ranching encompassed raising dogs. As we have noted, despite having the burden of ensuring that this court have the portions of the record necessary to consider the issues raised on appeal, see Baker, 183 Ariz. at 73, 900 P.2d at 767, Appellants have proceedings. not provided a transcript of the trial In the absence of the necessary portions of the record, this court assumes that the missing items would support the trial court s conclusions. Id. Based on its July 2009 ruling, the trial court apparently concluded that Article I, Section 1, precluded all forms of commercial activity, including ranching. In the absence of the transcript, we must conclude that the evidence supported that finding. ¶22 Moreover, even were we to find that the commercial ranching of dogs was permitted by Article I, Section 5, the trial court also found that Appellants activities caused tremendous noise and constituted a nuisance and annoyance to other owners within the Association in violation of Article I, Section 6. Although Appellants mention this provision of the 14 Declaration in their opening brief, they offer no argument that the trial court clearly erred in this factual finding. ¶23 did Appellants also generally assert that the Association not prove the injunctive relief. regarding which elements required for entitlement to They do not, however, present any argument element or elements lacked sufficient proof. Having failed to state with particularity why the court erred in concluding that the abandoned the issue. criteria had been met, Appellants have See Modular Sys., Inc. v. Naisbitt, 114 Ariz. 582, 587, 562 P.2d 1080, 1085 (App. 1977) (concluding that arguing the court erred is not the same as arguing the issue; consequently, the issue is abandoned). This obligated to develop an argument for a party. court is not See Nationwide Res. Corp. v. Massabni, 134 Ariz. 557, 565, 658 P.2d 210, 218 (App. 1982). court did Given the record before us, we find that the trial not abuse its discretion in granting a permanent injunction prohibiting Appellants from operating a dog breeding business from Lot 181 and limiting the number of dogs that can remain on the property to fifteen dogs for personal enjoyment. 4 4 To the extent that Appellants raise any other arguments, such as their apparent contention that the Association s application of the Declaration is inconsistent with an approach taken by an adjoining property owners association, such arguments have not been properly developed and are therefore waived. See Nationwide, 134 Ariz. at 565, 658 P.2d at 218; Modular Sys., 114 Ariz. at 587, 562 P.2d at 1085. Additionally, to the extent that Appellants attempt to raise and develop 15 ¶24 Both appeal. Appellants request is sides request are denied. not The costs the and attorneys successful Association party, requests an fees and on their award of attorneys fees pursuant to the Declaration and A.R.S. § 12341.01 (2003). This court enforces a contractual provision for attorneys fees according to its terms. First Fed. Sav. & Loan Ass n v. Ram, 135 Ariz. 178, 181, 659 P.2d 1323, 1326 (App. 1982). Article XI, Section 1, of the Declaration states that when a provision of the Declaration is breached, anyone owning land . . . subject to similar Restrictions may bring action in a court . . . to enjoin . . . said violation or to recover damages due to the breach thereof, along with the recovery of reasonable attorneys fees and costs. Although this section authorizes a plaintiff to seek an award of attorneys fees, it does not make an award authorizes of such the fees court in mandatory. its discretion Section to 12-341.01(A) award reasonable attorneys fees to the successful party in a contested matter arising out of a contract. In this case, we grant the Association its costs and, in our discretion, its request for an award of reasonable attorneys fees upon compliance with Rule 21 of the Arizona Rules of Civil Appellate Procedure. arguments for the first time in their reply brief, we note that issues not clearly raised and argued in the opening brief are waived. See Jones v. Burk, 164 Ariz. 595, 597, 795 P.2d 238, 240 (App. 1990). 16 CONCLUSION ¶25 The trial court did not abuse its discretion in granting the Association s request for a permanent injunction against Appellants, requiring them to cease their commercial dog breeding business and property to fifteen. limiting the number of dogs on their The trial court s decision is affirmed. __________________/S/________________ LAWRENCE F. WINTHROP, Presiding Judge CONCURRING: ______________/S/__________________ PATRICIA K. NORRIS, Judge _____________/S/___________________ PATRICK IRVINE, Judge 17

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