Neighborhood v. Yono
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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 NEIGHBORHOOD PROPERTY OWNERS ASSOCIATION OF FOUNTAIN HILLS, an Arizona non-profit corporation, Plaintiffs/Appellants, v. SAMIR YONO and KHALIDA YONO, husband and wife, Defendants/Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 02/15/11 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-CV 10-0339 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2009-029363 The Honorable Eileen S. Willett, Judge AFFIRMED Combs Law Group, P.C. By Adam D. Martinez and Benjamin A. Skinner Attorneys for Plaintiffs/Appellants Zirbel Law Offices, P.C. By Craig I. Zirbel Attorney for Defendants/Appellees B R O W N, Judge Phoenix Scottsdale ¶1 The Neighborhood Fountain Hills (the Property Association ) Owners appeals Association the trial of court s order denying the Association injunctive relief against Samir and Khalida Yono. For the following reasons, we affirm. BACKGROUND ¶2 A significant portion of the real estate parcels in the Town of Fountain Hills are subject to recorded covenants, conditions, and restrictions ( CC&Rs ) that impose building and land use restrictions on each parcel. The Association is a non- profit corporation, formed to provide a vehicle for appointment of committed Committee ), members the to the purpose Committee of which is of Architecture to maintain a (the high standard of architecture and construction in such manner as to enhance the aesthetic values and structural soundness of the developed subdivision. Pursuant to its authority under the CC&Rs to adopt rules and regulations, the Committee adopted the Neighborhood Development Guide (referred to hereafter as the Guidelines ). ¶3 According to the Guidelines, the Committee shall approve or disapprove of [building] plans . . . in accordance with the [CC&Rs and the Guidelines]. The Committee is also responsible for enforcement of the CC&Rs and the Guidelines. Additionally, the Guidelines provide that in the event of a conflict between the CC&Rs or Guidelines and any town, county, 2 or state law regulation, the most restrictive requirement governs. ¶4 Pursuant to the CC&Rs, [f]ences, walls, hedges, or shrubs may be erected or planted in rear or side yards to a height not exceeding six (6) feet and incidental [pool] installation[s] must be located in other than the required front yard and screened from adjoining lots by a solid wall or protective fence of not less than four and one-half (4-1/2) feet in height nor more than six (6) feet in height. the Guidelines, [p]ool operating equipment . According to . . must be screened from public view . . . with a masonry wall. ¶5 The Yonos own a residential lot that is subject to the CC&Rs and the Guidelines. lot, the Yonos Committee s signed requirements Prior to constructing a home on their a letter that in ground 2005 agreeing mounted pool to the equipment . . . walls are to be a maximum 6 in height to screen from public view, and fencing and/or retaining walls . . . maximum height is 6 ft. ¶6 Yonos As construction of the house neared completion, the created plans to build a swimming pool. Mr. Yono presented the plans to Vida Miran, the office manager of the Committee, for approval. In response, Miran informed him that the Committee did not approve pool plans but that so long as the Town of Fountain Hills approved his plans, you re done with 3 it. Yono then obtained the approval of the Town of Fountain Hills and built the pool in accordance with town requirements. ¶7 of A neighbor complained to the town about the location the Yonos pool equipment. The town investigated the complaint and informed the Yonos that their pool met all town requirements with the exception that they needed to install a wrought iron fence on top of [the] retaining which the pool equipment was located. wall, behind The Yonos complied with this request, but their pool equipment remained visible behind the wrought iron fence. ¶8 The neighbor then complained about the location of the Yonos pool equipment to the Committee. The Committee sent the Yonos that multiple notices, informing them pursuant to the CC&Rs and the Guidelines, the Yonos pool equipment must be screened from public view . . . with a masonry wall. The Committee also told the Yonos that the pool equipment could not be located between two retaining walls and that the rear wall on their feet. 1 property exceeded the height limitation by almost two The Yonos declined to take either action, asserting that 1 Apparently as part of a planned inspection to ensure compliance with the approved house construction plans, the Committee inspected the Yonos premises and discovered that there were several walls that exceeded the six-foot limitation, including the rear wall at seven feet, ten inches. The Yonos were assessed a fine for stone work which did not have Committee approval and for the height of the walls. 4 they had complied with all town requirements. The Committee responded that the CC&Rs and Guidelines were independent of the town requirements, and confirmed that the Yonos remained in violation of the restrictions pertaining both to pool equipment and the height of the rear wall. ¶9 When these conditions persisted, the Association filed suit, seeking injunctive relief to require the Yonos to bring the wall and pool equipment into compliance with both the CC&Rs and the Guidelines. 2 Following an evidentiary hearing, the trial court found that the Yonos took reasonable, proactive steps to maintain compliance with the restrictions as set forth in the [CC&Rs] and Guidelines . . . regarding the construction of their pool, as well as the location of its pump/filtration equipment and protective fencing the surrounding Association The court that injunctive relief violation. As to the height of the rear wall, the court found the Yonos estopped trial determined against was it. on the from obtaining pool equipment that several mitigating circumstances existed: (1) due to the grade of the land, the cost of bringing the rear wall into compliance was cost prohibitive; (2) the rear wall height was of less concern to the Association than the pool equipment and no 2 In its complaint, the Association also alleged a breach of contract claim, relating to the Yonos failure to pay fines assessed by the Association for violations of the CC&Rs and the Guidelines. However, the Yonos eventually paid the fines. 5 complaints had been received; (3) the Yonos paid $500 to the Association for the wall height violation; and (4) there was no evidence presented that the wall was aesthetically displeasing to the Association. Association s request The for a court therefore permanent denied injunction and the awarded attorneys fees to the Yonos in the amount of $4,572. The Association filed this timely appeal. DISCUSSION ¶10 The grant or denial of injunctive relief is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Horton v. Mitchell, 200 Ariz. 523, 526, ¶ 12, 29 P.3d 870, 873 (App. 2001). We defer to the trial court s findings of fact unless clearly erroneous, but we review de novo the court s legal conclusions. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 47, ¶ 9, 156 P.3d 1149, 1152 (App. 2007). I. ¶11 Pool Equipment Violation The Association asserts that the trial court erred when it found that estoppel applied to bar the Association s claim for injunctive relief. We review a trial court s decision to apply estoppel for an abuse of discretion. 215 Ariz. at 50, ¶ 27, 156 P.3d at 1155. discretion if discretionary it commits conclusion or an error if 6 the of Flying Diamond, A court abuses its law record in fails reaching to a provide substantial evidence to support the trial court s finding. (citation omitted). Id. Because the Association does not argue that the trial court erred as a matter of law, our review is limited to determining whether substantial evidence supports the court s conclusion. ¶12 the See id. Equitable party to be estoppel estopped consists commits of acts three elements: inconsistent (1) with a position it later adopts; (2) reliance by the other party; and (3) injury to the latter resulting from the former s repudiation of its prior conduct. omitted). Id. at ¶ 28 (citations and quotations ¶13 The resulting reliance must be justifiable. Id. The trial court found that although the CC&Rs were applicable to construction the plans Yonos, for Mr. the Yono pool, sought [and] was approval told of that the [the Association and the Committee] did not approve plans for pools and would accept the plans if the Town of Fountain Hills approved the pool plans. ¶14 Substantial conclusion. evidence supports the trial court s The Yonos provided evidence that Vida Miran, the office manager of the Committee, 3 informed Mr. Yono that the Committee do[esn t] take any plans for the pools. business. It s not our Miran told Mr. Yono to take [the plans] to the 3 The Association has not asserted, either in the trial court or on appeal, that Miran was not an agent of the Committee. 7 [Town] of Fountain Hills. with it. 4 And if they are approved, you re done Later, the Committee informed the Yonos that despite their compliance with the town s requirements, they were still in violation of the CC&Rs and the Guidelines. Thus, the Committee took an inconsistent position by initially informing the Yonos that sufficient, but compliance later with the demanded Town s requirements compliance with the was more restrictive requirements of the CC&Rs and the Guidelines. ¶15 be The Yonos relied on Miran s assertions that they would compliant with Committee requirements obtained approval from the town. at the Committee of so long as they Miran, as the office manager Architecture, should have been aware of Committee policies and procedures on pool plan approvals; thus, the Yonos reliance was reasonable. inconsistent statements to the Due to the Association s Yonos, the Yonos installed a wrought iron fence to comply with town requirements, which was more expensive than building a masonry wall. Therefore, the Yonos were harmed by the Committee s repudiation of its prior conduct and estoppel was applicable to bar the Association s request for injunctive relief. 4 Testimony at the evidentiary hearing revealed that Miran did not recall whether she ever had a conversation with Yono about his pool plans. However, in a deposition, Miran stated that if she had, she would have sent him away because the Committee did not review pool plans at that time. 8 ¶16 Although the Association argues that Miran s statements are not substantially supported by the evidence, the trial court explicitly found that Mr. Yono s testimony on this issue was credible. See Flying Diamond, 215 Ariz. at 47, ¶ 9, 156 P.3d at 1152 (we defer to the trial court s finding of fact unless clearly erroneous); Goats v. A.J. Bayless Mkts., Inc., 14 Ariz. App. 166, 171, 481 P.2d 536, 541 (1971) (trial court is in the best position to judge the credibility of the witnesses, the weight of the evidence, and also the reasonable inferences to be drawn therefrom ). Additionally, for reasons not clear from the record, Miran did not testify at the hearing nor did the Association ask the court to admit her deposition. ¶17 in The Association also argues that this court s decision Flying Diamond compels a different Diamond, 215 Ariz. 44, 156 P.3d 1149. built an airplane hangar height restrictions. to construction, on his result. See Flying In that case, Meienberg property that violated Id. at 46, ¶ 3, 156 P.3d at 1151. Meienberg spoke with a member of CC&R Prior the association s architecture committee, who informed him of the CC&R requirements, but the committee member did not approve or disapprove the plans. Id. ¶¶ 4-5. When the committee member discovered during construction that the hangar would violate the CC&R height restrictions, he informed Meienberg. Id. at ¶ 6. However, Meienberg continued construction and upon completion, 9 the association filed suit and sought an injunction from the trial court compliance. requiring Id. Meienberg at ¶¶ to 6-7. bring Meienberg the hangar argued into that the association was estopped from injunctive relief, but the trial court disagreed and granted the association s request for an injunction. ¶18 Id. at ¶¶ 7-8. On appeal, we affirmed, finding Meienberg was aware of the height restriction and did not receive approval from the committee or any committee member. P.3d at 1155-56. Id. at 50-51, ¶¶ 30-31, 156 Moreover, we found that the committee had no authority to approve or disapprove plans. Id. We therefore concluded that the association did not make any representation that would induce reliance, and Meienberg did not justifiably rely on any representation of the association; thus, we held that estoppel was inapplicable. Id. at 51, ¶ 31, 156 P.3d at 1156. ¶19 Here, the Association argues that, like Meienberg, the Yonos were aware of the CC&R pool equipment restrictions. However, although the Yonos were initially aware of the CC&Rs, they were merely by later informed adherence to that the compliance town s could be requirements. achieved Therefore, although the Yonos did not obtain official approval from the Committee, town s they received requirements would assurances be that sufficient. 10 compliance with Moreover, the unlike Flying Diamond, the Committee here made representations that would induce reliance, and the Yonos reliance was reasonable. Therefore, Flying Diamond does not support the Association s position. ¶20 to In sum, viewing the facts in the light most favorable sustaining the trial court s judgment, we hold that substantial evidence supports the trial court s conclusion that estoppel applies to bar the Association s request to compel the Yonos to relocate their pool equipment. 5 II. ¶21 found height Wall Height Violation The Association argues that the trial court improperly that the Yonos restriction intentional were for conduct not the precluded obligated rear wall the to comply because court s with the the Yonos consideration of relative hardships. ¶22 The enforcement of restrictive covenants through an injunction is not a matter of 5 right, but is governed by Because we affirm the trial court s application of estoppel on this basis, we do not address the Association s argument that the trial court erred when it found the Association was also equitably estopped because it had not uniformly enforced the pool equipment restrictions. See Ariz. Water Co. v. Ariz. Dep t of Water Res., 208 Ariz. 147, 152 n.10, 91 P.3d 99, 995 n.10 (2004) (an appellate court may affirm a superior court s judgment on any basis supported by the record). Nor do we address the Association s argument that the trial court erred when it took into consideration the Association s refusal to meet with the Yonos to discuss the expense of moving the pool equipment. 11 equitable principles. Ahwatukee Custom Estates Mgmt. Ass'n v. Turner, 196 Ariz. 631, 635, ¶ 9, 2 P.3d 1276, 1280 (App. 2000). 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. However, [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). Thus, a party may not claim hardship when it knows of a restriction, but nevertheless structure. completes construction of an offending Flying Diamond, 215 Ariz. at 48, 156 P.3d at 1153; Burke v. Voicestream Wireless Corp. II, 207 Ariz. 393, 399, ¶ 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); Decker, 97 Ariz. at 41, 396 P.2d at 612 (party could not claim hardship where he continued building violated a an offending restriction structure because he after was an learning it intentional wrongdoer ). ¶23 certain Even assuming hardships, 6 or the trial mitigating 6 court erred circumstances, in analyzing facing the Although the Association also argues that a balance of hardships weighs in favor of the Association, this analysis is 12 Yonos, we conclude that the Association surrendered its right to demand compliance with the height restriction when it accepted the fine payment from the Yonos. See Gen. Elec. Capital Corp. v. Osterkamp, 172 Ariz. 191, 193, 836 P.2d 404, 406 (App. 1992) (appellate court is obliged to affirm the judgment of the trial court if it is legally correct for any reason). ¶24 In response to the Association s discovery that the Yonos had exceeded the wall height limitation, the Association imposed a fine of $500. check for following $500 to notation: the In response, the Yonos submitted a Association. This check if The its check [sic] included the cashed it s approval of the stone work, pool equipment location and walls [sic] height. 7 Counsel for the Association replied that the notation on the check was unacceptable and that it was returning the check. Approximately two months later, however, the check was accepted by the Association, which issued a receipt noting inapplicable when a party intentionally violates a restriction. See Flying Diamond, 215 Ariz. at 49 n.4, 156 P.3d at 1154 n.4. Similarly, this balancing test is inapplicable with respect to the pool equipment violations. See Carlson v. Ariz. Dep t of Econ. Sec., 184 Ariz. 4, 6, 906 P.2d 61, 63 (App. 1995) ( Equitable estoppel is a rule of justice which, when all its elements are met, prevails over all other rules. ). 7 The check indicates that it was also offered to pay for the pool equipment violations, but the record shows the Association s fine applied only to the stone work and wall height limitation. Therefore, the doctrine of accord and satisfaction is not applicable to bar the Association s request for injunctive relief as to the pool equipment violations. 13 that it was for a fine payment from the Yonos relating to stone and wall height. ¶25 As recognized by this court, [t]he general rule is that acceptance and use of a remittance by check which purports to be payment meaning, or in is full, or accompanied which implies words by letter to a of similar that effect, constitutes an accord and satisfaction of the larger claim of the creditor, assuming the claim is unliquidated or disputed. Baker v. Emmerson, 153 Ariz. 4, 7, 734 P.2d 101, 104 (App. 1986) (citing Mobilife Corp. v. Delta Inv. Corp., 121 Ariz. 586, 592 P.2d 782 (App. 1979)); 15 S. Williston, A Treatise on the Law of Contracts § 1854, at 542-46 (3rd ed. 1972); see also Babbitt Bros. Trading Co. v. Steinfeld, 28 Ariz. 403, 410, 237 P. 186, 188 (1925) ( To constitute an accord and satisfaction, it is necessary that the money should be offered in full satisfaction of the demand, and be accompanied by such acts and declarations as amount to a condition that the money, if accepted, is accepted in satisfaction; and it must be such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such condition. ) (citation omitted). ¶26 Here, the Association does not dispute that it was aware of the notation on the check made by the Yonos nor does it contend there was any ambiguity in the language used by the 14 Yonos. Instead, the only evidence before us is that the Yonos believed that payment of the fine would relieve them of the obligation to lower the height of their rear wall, which is consistent with the notation on the check. Indeed, counsel for the Association plainly recognized that the Yonos decision to add additional language to the check was intended to persuade the Association that payment of the fine would resolve, inter alia, the Association wall height had no issue. intention Counsel of thus stated the waiving requirements, the notation was unacceptable, and the check was being returned; however, for reasons not explained in the record, the check was ultimately cashed circumstances, constituted an we by the conclude accord and Association. that Under acceptance satisfaction that these of unique the prevents check the Association from enforcing the wall height limitation against the Yonos. 15 CONCLUSION ¶27 Based on the foregoing, we affirm the judgment of the trial court. section In our discretion, under Arizona Revised Statutes 12-341.01 reasonable (2003), attorneys fees we grant incurred the Yonos on appeal request upon for their compliance with Arizona Rule of Appellate Procedure 21. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ _________________________________ DANIEL A. BARKER, Presiding Judge /s/ _________________________________ MARGARET H. DOWNIE, Judge 16
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