Opinion
No. 2 CA-CV 2017-0055
04-27-2018
MESALAND WATER COMPANY, Plaintiff/Appellee/Cross-Appellant, v. AUGUSTE B. EL-KAREH, A SINGLE MAN, Defendant/Appellant/Cross-Appellee.
COUNSEL Steven Weatherspoon, PLLC, Tucson By Steven Weatherspoon Counsel for Plaintiff/Appellee/Cross-Appellant Russell B. Stowers, PLLC, Tucson By Russell B. Stowers Counsel for Defendant/Appellant/Cross-Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. C20141370
The Honorable Christopher P. Staring, Judge
The Honorable Catherine M. Woods, Judge
AFFIRMED
COUNSEL Steven Weatherspoon, PLLC, Tucson
By Steven Weatherspoon
Counsel for Plaintiff/Appellee/Cross-Appellant Russell B. Stowers, PLLC, Tucson
By Russell B. Stowers
Counsel for Defendant/Appellant/Cross-Appellee
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 In this dispute between a homeowners' association and a homeowner, Auguste El-Kareh appeals from the trial court's entry of judgment in Mesaland Water Company's ("Mesaland") action for the enforcement of Mesaland Subdivision's Declaration of Establishment of Conditions, Reservations, Easements and Restrictions (the "Restrictions"). El-Kareh argues the court erred by finding that the Restrictions prohibited him from constructing a new home on his lot, by not dismissing Mesaland's action based on its violation of Arizona's open meeting law, and by including potentially binding dicta in the final judgment. He additionally argues Mesaland should be sanctioned because one of its witnesses lied during a deposition. In its cross-appeal, Mesaland argues the court erred by denying its request for a mandatory injunction requiring El-Kareh to tear down the new home. For the following reasons, we affirm.
Factual and Procedural Background
¶2 The parties do not dispute the underlying facts of this case. Mesaland is both the water supplier and creator of the homeowners' association for the subdivision at issue here, which was established in 1956. Homes in the subdivision are governed by the Restrictions, which were last amended in 2003.
¶3 In 2012, El-Kareh purchased a lot within the subdivision, which, at that time, included a "dilapidated main house" and guesthouse. In 2013, El-Kareh applied for and obtained approval from Pima County to split his lot into two parcels. He planned to construct a new home on the resulting vacant parcel, again with approval from Pima County.
¶4 After El-Kareh obtained the lot split, but before he began construction, Mesaland sent him a letter, indicating that building the new home would violate the Restrictions. The Restrictions state that "[t]wo or more separate residence structure[s] may not be erected upon any one lot." El-Kareh responded that after having read the Restrictions, he had not seen any language that would prevent him from constructing a home on the newly vacant lot created by the split. The parties never reached an agreement on the issue, and, in October 2013, El-Kareh began construction on the home. In March 2014, Mesaland initiated this action, requesting a declaratory judgment that El-Kareh had violated the Restrictions and a mandatory injunction requiring him to remove the home.
The existing guesthouse falls under an exception to that provision, which permits a "guest or servant quarters provided that they are occupied by relative[s], friends or employees of the principal owners."
¶5 Mesaland subsequently filed a motion for summary judgment, contending El-Kareh had violated the Restrictions by, inter alia, constructing the new home. El-Kareh also filed a motion for summary judgment, claiming Mesaland had violated the open meeting law and requesting that, as a consequence, its lawsuit be dismissed. After hearing argument on the motions, the trial court found that although the Restrictions permitted the lot split, they did not permit El-Kareh to build a new home because "the plain language of the [Restrictions] evinces the intent that there be only one residence on [El-Kareh's lot]" as that lot is depicted on the subdivision's 1956 plat map. It additionally found that Mesaland had violated the open meeting law but, because El-Kareh had not been prejudiced, it would not dismiss Mesaland's action.
¶6 The trial court later held an evidentiary hearing on Mesaland's request for a mandatory injunction requiring El-Kareh to remove the new residence. In its ruling, the court denied Mesaland's request, finding that "requiring the residence to be razed seems to be an extraordinarily harsh and excessive remedy for this harm, particularly when [Mesaland] waited until the residence was nearly complete before seeking to prevent it." It also denied El-Kareh's counterclaim requesting an order to compel Mesaland to provide water service to the new residence. We have jurisdiction over El-Kareh's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Restrictions Violation
¶7 El-Kareh first argues the trial court erred in ruling that he violated the Restrictions by constructing the new residence on the second lot. Although the court so found, it also denied Mesaland's request for an injunction to require El-Kareh to remove the home. And for the reasons discussed below, we deny relief on Mesaland's cross-appeal. Accordingly, even were we to find the court erred, the result would remain the same: his new house on the second lot would remain. See supra ¶¶ 26-31. We therefore decline to address his argument on this issue. "[T]o qualify as an aggrieved party, the judgment must operate to deny [the appellant] some personal or property right or to impose a substantial burden upon h[im]." In re Gubser, 126 Ariz. 303, 306 (1980); see also Freeport McMoRan Corp. v. Langley Eden Farms, LLC, 228 Ariz. 474, ¶ 15 (App. 2011) (court of appeals will "not issue advisory opinions or decide unnecessary issues"); cf. Contempo-Tempe Mobile Home Owners Ass'n v. Steinert, 144 Ariz. 227, 229-30 (App. 1985) (trial court's ruling on appellant's standing rendered moot after parties stipulated to dismissal with prejudice); Webber v. Smith, 129 Ariz. 495, 498 (App. 1981) (counterclaim for value of vehicles moot when party recovered possession and had not sought damages for loss of use).
Open Meeting Law
¶8 El-Kareh next argues the trial court erred by denying his motion for summary judgment on the ground that Mesaland's lawsuit was void because it had violated statutory open meeting requirements. See A.R.S. § 33-1804. Although the denial of a motion for summary judgment is generally not reviewable on appeal, we may review the ruling if "the denial was based on a point of law." MacKinney v. City of Tucson, 231 Ariz. 584, ¶ 5 (App. 2013). "We review a denial of a motion for summary judgment for an abuse of discretion and view the facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion." Sonoran Desert Investigations, Inc. v. Miller, 213 Ariz. 274, ¶ 5 (App. 2006). "Interpretation and application of a statute is a question of law that we . . . review de novo." Blankenbaker v. Marks, 231 Ariz. 575, ¶ 6 (App. 2013).
¶9 Neither party disputes that Mesaland violated § 33-1804 by failing to provide written notice to its members that a meeting would be held to consider initiating a legal action against El-Kareh. At issue is whether that violation renders Mesaland's lawsuit void. Although § 33-1804 does not expressly provide a consequence for when a homeowners' association fails to abide by the open meeting law requirements, we find case law related to open meeting violations governing public entities instructive. As applied to public entities, A.R.S. § 38-431.05(A) states that, with certain exceptions, "[a]ll legal action transacted by any public body during a meeting held in violation of any provision of this article is null and void." However, our supreme court has determined that "a technical violation having no demonstrated prejudicial effect on the complaining party does not nullify all the business in a . . . meeting when to conclude otherwise would be inequitable." Karol v. Bd. of Ed. Trustees, Florence Unified Sch. Dist. No. One of Pinal Cty., 122 Ariz. 95, 98 (1979). We see no reason that holding should not apply here.
¶10 In May 2013, after El-Kareh had completed the lot split but before construction began on the new home, Mesaland and El-Kareh exchanged several letters in which Mesaland made clear its belief the construction violated the Restrictions. Indeed, one letter from Mesaland stated, "[W]e forbid this violation and will take the necessary legal action to prevent it." The letter further suggested El-Kareh meet with a lawyer and warned him that he was "proceed[ing] at [his own] risk." Following that exchange, Mesaland's and El-Kareh's attorneys exchanged "fairly detailed" correspondence on the issue as well. In January 2014, Mesaland authorized its attorney to send another letter to El-Kareh's attorney, and, the following month, the Mesaland Water Board voted to initiate this action.
¶11 Based on this record, El-Kareh cannot show that he, as the complaining party, was prejudiced by Mesaland's failure to follow the requirements of § 33-1804. See Karol, 122 Ariz. at 98. As early as May 2013, he had been put on notice that Mesaland believed his actions constituted a violation of the Restrictions and he had been given the opportunity, which he took, to respond. Moreover, Mesaland's intent to ultimately file a legal action was clear from its correspondence with El-Kareh—including direct threats of legal action—and its decision to hire legal counsel on this issue. Under these circumstances, it would be inequitable to void Mesaland's decision to file the lawsuit based on its failure to follow a requirement of § 33-1804. See id. Consequently, the trial court did not abuse its discretion by denying El-Kareh's motion for summary judgment based on Mesaland's violation of § 33-1804. See id.; see also Sonoran Desert Investigations, Inc., 213 Ariz. 274, ¶ 5.
Sanctions for Perjury
¶12 El-Kareh next argues that Mesaland should have been sanctioned because its vice president "testified falsely about his criminal history in deposition." El-Kareh contends that even though the vice president did not testify at the evidentiary hearing, "there should be some consequence for" the deposition testimony. He did not, however, seek sanctions below and has therefore waived this issue on appeal. See Odom v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, ¶ 18 (App. 2007) ("Generally, arguments raised for the first time on appeal are untimely and deemed waived."); see also AG Rancho Equip. Co. v. Massey-Ferguson, Inc., 123 Ariz. 122, 123 (1979) ("The power to impose [discovery] sanctions . . . is discretionary with the trial court.").
Water Service
¶13 El-Kareh lastly argues the trial court erred by including language in the final judgment related to his request for an order compelling Mesaland to provide water service to the new home. He contends the issue was "never litigated" and therefore "any reference to water service" is "dicta . . . [and] should be stricken" from the final judgment. The relevant portion of the judgment reads: "That Defendant El-Kareh's Motion for Summary Judgment is denied, and [El-Kareh's] Counterclaims are dismissed with prejudice; this dismissal with prejudice includes [El-Kareh's] request for an Order compelling [Mesaland] to deliver water service to the new home on the split portion of [El-Kareh's lot]."
¶14 "A court's statement on a question not necessarily involved in the case before it is dictum." Creach v. Angulo, 186 Ariz. 548, 552 (App. 1996). This can be either a court's "statement of general law . . . which is unnecessary to its decision and thus not precedential" or one "use[d] to guide parties in their future conduct." Alejandro v. Harrison, 223 Ariz. 21, ¶ 12 (App. 2009) (comparing obitur dictum and judicial dictum). If, however, a determination is necessary for the court to reach a decision, it is not dicta. See State v. Proctor, 196 Ariz. 557, ¶ 21 (App. 1998); see also State v. Valenzuela, 182 Ariz. 632, 633 (App. 1995).
¶15 A dismissal of a claim with prejudice is neither a general statement of law nor future guidance on the parties' conduct and is not, therefore, dicta. See Alejandro, 223 Ariz. 21, ¶ 12; see also Creach, 186 Ariz. at 552. Moreover, a final judgment, such as the one issued by the trial court in this case, disposes of all claims and all parties. See Ariz. R. Civ. P. 54(c); see also Madrid v. Avalon Care Ctr.-Chandler, L.L.C., 236 Ariz. 221, ¶ 3 (App. 2014). El-Kareh has not explained, and we fail to see, how a dismissal of a counterclaim could be unnecessary to a final judgment. On the contrary, if the court had failed to address El-Kareh's request, it could not have entered a final judgment pursuant to Rule 54(c). And El-Kareh does not argue the court erred in certifying the judgment as final pursuant to Rule 54(c).
¶16 Notably, El-Kareh's submitted form of judgment below undermines his current argument. In it, he included the following language: "[El-Kareh's] counterclaim, including but not limited to any request for an order compelling [Mesaland] to provide dedicated water service to the new house . . . is withdrawn and dismissed without prejudice." El-Kareh cannot now claim the trial court erred by including language he suggested himself. See Caruthers v. Underhill, 235 Ariz. 1, ¶ 23 (App. 2014) ("By the rule of invited error, one who deliberately leads the court to take certain action may not upon appeal assign that action as error."), quoting Schlecht v. Schiel, 76 Ariz. 214, 220 (1953).
¶17 It appears El-Kareh also argues the trial court erred by dismissing his counterclaim with prejudice, as opposed to without prejudice. He has not, however, provided the legal standard for reviewing such a ruling, any legal authority to support this contention, or any argument as to why a dismissal without prejudice was more appropriate than a dismissal with prejudice under these circumstances. Consequently, he has waived review of this issue on appeal. See Ariz. R. Civ. App. P. 13(a)(7) (appellant's argument must contain applicable standard of review, supporting argument, and relevant legal authority); see also Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2 (App. 2007) (appellant's failure to develop and support argument waives issue on appeal).
At the evidentiary hearing, El-Kareh testified that the new house was receiving its water from the main house originally on the lot. In a post-hearing joint status report, the parties reported that they were working to resolve this issue with "another water supplier that is not a party to this case." And in his objection to Mesaland's form of judgment, El-Kareh asserted the "issue should soon be moot" because he was "making arrangements to secure [dedicated] service from another provider." It thus appears from the record that the water service issue has either been resolved or is not currently an issue.
Mesaland's Cross-Appeal
Jurisdiction
¶18 In its cross-appeal, Mesaland contends the trial court erred by denying its request for a mandatory injunction requiring El-Kareh to remove the new home. El-Kareh asserts, however, this court has no jurisdiction to consider the cross-appeal because the notice was untimely filed. We address this issue first because this court's jurisdiction is prescribed by statute, and we have no authority to consider an appeal over which it is lacking. See In re Marriage of Johnson & Gravino, 231 Ariz. 228, ¶ 5 (App. 2012); see also McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, ¶ 4 (App. 2009).
¶19 El-Kareh timely filed his notice of appeal on March 25, 2017, following the trial court's entry of judgment. On March 31, this court issued an order assigning the case to the Arizona Appellate Settlement Conference Program (the "Program") and staying, as relevant here, the "[f]iling of any notice of cross-appeal" pending further order of the court. See Ariz. R. Civ. App. P. 30. On June 6, this court vacated its previous order and returned the case "to the normal appellate process . . . as if the notice of appeal had been filed this date." On June 22, Mesaland filed its notice of cross-appeal.
¶20 El-Kareh argues this court does not have the authority to extend jurisdictional deadlines, such as the filing of a cross-appeal. He thus reasons that because Mesaland's notice of cross-appeal was not filed within twenty days of his notice of appeal, it was untimely. See Ariz. R. Civ. App. P. 9(b); see also In re Paternity of Gloria, 194 Ariz. 201, ¶ 22 (App. 1998) (untimely filed notice of cross-appeal deprives appellate court of jurisdiction).
¶21 Rule 3(a), Ariz. R. Civ. App. P., states that an appellate court "may suspend any provision of these Rules in a particular case," except as provided in Rule 5(b), Ariz. R. Civ. App. P. Rule 5(b) provides that an appellate court may not extend the time for filing a notice of appeal or notice of cross-appeal, except as provided by Rule 9(f), Ariz. R. Civ. App. P. See Gloria, 194 Ariz. 201, ¶ 22 ("Rules governing appeals are also applicable to cross appeals."). Rule 9(f) authorizes a superior court, upon motion, to "reopen the time for filing a notice of appeal" if three conditions are met. Aside from the fact that Rule 9(f) appears to only allow the superior court, not this court, to extend the time for filing a notice of appeal, neither party disputes that none of those conditions would apply here. Further, since being amended a few years ago, Rule 30, which governs the Program, no longer expressly grants this court the authority to extend the deadline. See 205 Ariz. XLIII-XLVIII (2003). Accordingly, the rules appear to prohibit this court from entering an order that effectively extends the time for filing a notice of cross-appeal.
¶22 When interpreting court rules, we generally will not read provisions into a rule that are not present on its face, particularly when those provisions have been removed by the drafter. See State v. Duci, 151 Ariz. 263, 266 (1986) (courts will not add requirements not found in plain language of statute); In re Victoria K., 198 Ariz. 527, ¶ 25 (App. 2000) ("When the Arizona Supreme Court modifies the language of a rule, a presumption exists that a change in the existing rule was intended."); see also Phillips v. O'Neil, 243 Ariz. 299, ¶ 8 (2017) (rules of statutory construction applicable to interpretation of court rules). We find, however, that under these circumstances, the history and text of Rule 30 compel a different result.
¶23 Prior to 2015, Rule 30 laid out, in some detail, the policies and procedures for the Program, including, for example, the order of assignment, motions for participation, objections to participation, and the selection of mediators. See 205 Ariz. at XLIII-XLVIII. In several of those sections, the rule further delineated between the different procedures of Division One and Division Two of this court. Id. In the section discussing the order of assignment, the rule stated that Division Two's order "may . . . stay . . . filing notice of cross-appeals." Id. at XLIV.
¶24 In 2014, our supreme court amended Rule 30 and substantially shortened it. Ariz. Sup. Ct. Order R-14-0017 (Sept. 2, 2014). The current version, which went into effect on January 1, 2015, see id., removed the detailed provisions for the different aspects of the Program, see Ariz. R. Civ. App. P. 30(b). In its place, the rule now provides a brief overview of the Program's objectives and simply states, "Each division of the Court of Appeals may establish its policy for: parties to participate in the program or to object to participation; assignment of cases to the program; selection of appellate mediators; and other procedures including settlement conferences." Ariz. R. Civ. App. P. 30(b).
¶25 "[W]e presume the supreme court was aware of the content of its own pre-existing rules." Hornbeck v. Lusk, 217 Ariz. 581, ¶ 10 (App. 2008). Accordingly, the supreme court's previous express grant of authority on this issue and its continued grant of general authority to set Program policies evinces its intent that this court retain its authority to stay the filing of notices of cross-appeal. See Halt v. Gama, 238 Ariz. 352, ¶ 9 (App. 2015) (giving effect to supreme court's intent primary goal in interpreting court rules). At the time the notice of appeal in this case was filed, Division Two's policy stated the Order of Assignment "shall . . . stay . . . filing any notice of cross-appeal." Consequently, we conclude that Mesaland's notice was timely filed, and we have jurisdiction over its cross-appeal. See Ariz. R. Civ. App. P. 9(b). We now address the merits of that cross-appeal.
Mandatory Injunction
¶26 Mesaland argues the trial court erred by denying its request for a mandatory injunction requiring El-Kareh to remove the new residence. The denial of injunctive relief "rests within the sound discretion of the trial court." Ahwatukee Custom Estates Mgmt. Ass'n v. Turner, 196 Ariz. 631, ¶ 5 (App. 2000). "The enforcement of restrictive covenants . . . is governed by equitable principles." Id. ¶ 9. "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.
¶27 The trial court addressed the considerations enumerated in Ahwatukee in a minute entry following the evidentiary hearing. It found the equitable considerations were relatively balanced between the parties, except when it came to Mesaland's delay in bringing this action. As to that factor, the court found Mesaland had "delayed for an unreasonable and extraordinary amount of time to try to enjoin El-Kareh's construction of the new residence." The court concluded that factor "weigh[ed] quite heavily against [Mesaland] and strongly in favor of El-Kareh."
¶28 Mesaland's sole argument on appeal is that the trial court erred in finding it had unreasonably delayed bringing this action. It contends the burden of bringing a judicial action rested with El-Kareh because he proceeded with the construction knowing that Mesaland objected, relying on Burke v. Voicestream Wireless Corp. II, 207 Ariz. 393 (App. 2004), abrogated on other grounds by Powell v. Washburn, 211 Ariz. 553, ¶¶ 12-15 (2006).
¶29 In Burke, Voicestream entered into a contract with a lot owner—SWC—in the Burkes' subdivision to build a cellular telephone signal transmission tower on that lot. Id. ¶¶ 2-4. Upon learning of the contract, the Burkes sent SWC a letter objecting to the tower. Id. ¶¶ 4-5. SWC ultimately decided to allow Voicestream to build the tower over the neighborhood's objections. Id. ¶ 5. Approximately eight months after the Burkes first learned of the proposed tower, construction began. Id. ¶¶ 4, 7. One week later, the Burkes filed a lawsuit alleging the construction violated the subdivision's restrictive covenants and seeking a temporary restraining order to stop construction. Id. ¶ 7.
¶30 The trial court found the Burkes were precluded from obtaining equitable relief because, in part, they waited nearly eight months after learning about the tower to bring the action. Id. ¶ 30. On appeal, however, Division One of this court noted that nothing in the restrictive covenants required the Burkes to seek injunctive relief prior to an actual violation occurring. Id. ¶ 31. Indeed, because the Burkes had made SWC aware of their objections, "[t]he risk of proceeding with construction of the tower without a judicial determination is more appropriately placed on Voicestream and SWC than on the Burkes." Id. ¶¶ 32-33. Rather, the actual violation had not occurred until construction began, after which the Burkes promptly filed their action. Id. ¶ 31. Consequently, the Burkes were not precluded, as a matter of law, from obtaining injunctive relief. Id. ¶ 34.
¶31 We agree with Mesaland that, before construction of the house began, it was under no obligation to seek a judicial determination whether El-Kareh's actions violated the Restrictions. However, rather than support Mesaland's position, Burke ultimately supports the trial court's conclusion. Instead of seeking immediate relief like the plaintiffs in Burke, Mesaland waited nearly five months after El-Kareh, in its view, actually violated the Restrictions by beginning construction of the house to file this action. At that point, the house was "95 percent" complete. Furthermore, unlike the plaintiffs in Burke, once Mesaland filed this action, it did not request a preliminary injunction or temporary restraining order to halt construction. We cannot say the trial court abused its discretion by denying Mesaland's request for an order requiring El-Kareh to remove his house. See Ahwatukee, 196 Ariz. 631, ¶ 5.
Attorney Fees and Costs
¶32 Both parties have requested their attorney fees and costs on appeal pursuant to Rule 21(a), Ariz. R. Civ. App. P., and A.R.S. §§ 12-341 and 12-341.01(A). See Burke, 207 Ariz. 393, ¶ 39 (fees under § 12-341.01 available in actions to enforce deed restrictions and related requests for injunctive relief). In our discretion, we deny both requests for attorney fees. However, as the successful party on El-Kareh's appeal, Mesaland is entitled to its costs incurred on appeal, and El-Kareh is likewise entitled to his costs incurred on cross-appeal, contingent on the parties' compliance with Rule 21(b). See § 12-341.
Disposition
¶33 For the foregoing reasons, we affirm the trial court's judgment.