Opinion
No. 1 CA-CV 13-0013
02-11-2014
JAMES PRICE and THERESA PRICE, Plaintiffs/Appellees, v. KENNETH KRAVITZ and KAREN GLASER KRAVITZ, husband and wife, Defendants/Appellants.
Mack Watson & Stratman, PLC, Phoenix By Daxton R. Watson and Emily H. Mann Counsel for Plaintifsf/Appellees Davis Miles McGuire Gardner, PLLC, Phoenix By Brian A. Weinberger Counsel for Defendants/Appellants
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CV2008-023753
The Honorable Eileen S. Willett, Judge
REVERSED AND REMANDED
COUNSEL
Mack Watson & Stratman, PLC, Phoenix
By Daxton R. Watson and Emily H. Mann
Counsel for Plaintifsf/Appellees
Davis Miles McGuire Gardner, PLLC, Phoenix
By Brian A. Weinberger
Counsel for Defendants/Appellants
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined. OROZCO, Judge:
¶1 Kenneth and Karen Glaser Kravitz (the Kravitzes) appeal the trial court's ruling denying the planned modifications to their home and order requiring them to lower their existing roofline. For the following reasons, we reverse the trial court's decision and remand for further proceedings consistent with this decision.
FACTS AND PROCEDURAL HISTORY
¶2 This appeal arises from an ongoing dispute between the Kravitzes and their neighbors, James and Theresa Price (the Prices) regarding the Kravitzes violation of Section IV of their neighborhood's Declaration of Restrictions (the DOR).
¶3 The Kravitzes purchased Lot Three in the La Maza Villa Plat One and demolished the existing structure on the property. Ignoring various communications from the Prices regarding the DOR's requirements, the Kravitzes built a home on their lot, which included a second story, second story balcony, and an exterior staircase leading to a second story room over the Kravitzes master bathroom. The Prices filed suit to enforce the DOR's one story restriction. The trial court granted injunctive relief and ordered the Kravitzes to remove the second story, the second story balcony, and the staircase leading to the second story over the master bathroom.
¶4 The Kravitzes appealed the trial court's decision arguing that the trial court erred in interpreting the phrase "one story in height." In their appeal, the Kravitzes contended the phrase was a height limitation and not a limitation on the number of stories. Moreover, the Kravitzes also argued that the DOR was ambiguous, and thus unenforceable, because it failed to specify a maximum height limitation in feet and inches.
See Price v. Kravitz, 1 CA-CV 10-0889, 2012 WL 1380269 (Ariz. App. Apr. 19, 2012) (mem. decision).
¶5 This court affirmed the trial court's decision requiring the Kravitzes to remove the home's second story, and held that the phrase "one story in height" was unambiguous and sufficiently clear to permit enforcement. Moreover, we stated that the term "one story in height" intended to limit the homes in the neighborhood to one story and "not necessarily a specific numeric height."
¶6 Thereafter, the Kravitzes submitted a "Motion to Determine Compliance with Order" and their planned renovations (Plans) to the trial court. In the Plans presented, the Kravitzes proposed to eliminate the second story by removing all the interior and exterior staircases leading to the second story, any doors on the second story, removal of the balcony, and the demolition of the ceiling that separated the first and second stories. The Kravitzes' Plans sought to create a one story home while maintaining the home's current height of approximately 28.5 feet.
¶7 In a signed minute entry, the trial court denied the motion to determine compliance. Defining a second story as "the structure built above the first floor ceiling," the trial court concluded that the "space between the second story floor and the ceiling next above it must be removed." Based on this finding, the trial court determined that removal of the second story required the lowering of the home's existing roofline. Lastly, the trial court advised the Kravitzes that lowering the roofline did not require them to construct a "flat roof" and that they may have a "reasonably proportioned pitch roof . . . built over the first story ceilings." The Kravitzes timely appealed the trial court's decision.
DISCUSSION
I. Jurisdiction
¶8 Relying on Arvisu v. Fernandez, 183 Ariz. 224, 902 P.2d 830 (App. 1995), the Prices assert this court lacks jurisdiction because the trial court's denial of the Kravitzes' Plans constitutes a non-appealable post-judgment order. To appeal an order under Arizona Revised Statutes (A.R.S.) section 12-2101 the issues raised on appeal "must (1) raise different issues than would be raised in an appeal from the underlying decree, and (2) the order must affect the judgment or relate to its enforcement." See Williams v. Williams, 228 Ariz. 160, 164, ¶ 11, 264 P.3d 870, 874 (App. 2011). Applying the first factor, we find that the order denying the Plans does not raise any issue that could have been raised in an appeal from the underlying judgment. The underlying judgment found the Kravitzes in violation of the DOR and ordered them to remove the second story of their home. The immediate issue deals with the Kravitzes' Plans to renovate their home to conform to the judgment.
¶9 The second requirement is also met. Orders that are merely preparatory, are not appealable because they do not affect the underlying judgment. Id. at ¶ 12. A preparatory order is an "order merely entering certain findings of facts for the purpose of directing future proceedings that may eventually create a final judgment . . . ." Id. Here, the trial court's denial of the Kravitzes' Plans affects the judgment because it goes beyond the initial judgment by requiring the lowering of the roofline. Thus, the order specifically limits the Kravitzes' options to adhere to the underlying judgment.
¶10 Therefore, we find we have jurisdiction pursuant to A.R.S. §§ 12-120.21.A.1 (2003), and -2101.A.2 (Supp. 2013). II. The Trial Court's Denial of the Kravitzes' Plans (Law of the Case)
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
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¶11 The law of the case is a "judicial policy of refusing to reopen questions previously decided in the same case by the same court or a higher appellate court." Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 278, 860 P.2d 1328, 1331 (App. 1993). The doctrine is "well established as controlling" in our jurisdiction. Sibley v. Jeffreys, 81 Ariz. 272, 276, 305 P.2d 427, 429 (1956). The law of the case is a rule of policy and "is adhered to in the single case in which it arises." See Commercial Credit Co. v. Street, 37 Ariz. 204, 207, 291 P. 1003, 1004 (1930); Dancing Sunshines Lounge v. Indus. Comm'n of Ariz., 149 Ariz. 480, 482, 720 P.2d 81, 83 (1986).
¶12 Applied in the same case and on this same record, this court has previously interpreted the DORs. In our previous decision, we held that the phrase "one story in height" was unambiguous and enforceable. We agreed with the trial court's first finding that "the drafters intended the 'one story in height' restriction to limit homes in the neighborhood to one story, as that term is commonly understood, not necessarily a specific numeric height." Price, ¶ 18 (emphasis added). Accordingly, we affirmed the initial order requiring the Kravitzes to remove the second story of their home.
¶13 Here, the trial court's order advising the Kravitzes to lower their roof does not comport with our previous decision. Nothing in the record suggests that to comply with the order the Kravitzes are required to lower their home's roofline. To the contrary, Phoenix's Zoning Ordinance allows one-story residences up to thirty feet in height; and the initial trial court explicitly recognized that the height of the Kravitzes' home was "well within the ordinance height requirements." Moreover, in the first appeal, the Prices seemingly accepted the thirty-foot height limit and took issue solely with the home's second story.
¶14 Because this court previously interpreted the DOR in this same case on this same record, we apply the law of the case doctrine and vacate the trial court's order mandating the Kravitzes to lower their roof line. If the Plans now indicate that the second story has been removed from the inside and the outside of the home, and the home now meets the "one story in height" restriction, the trial court must approve the Plans.
CONCLUSION
¶15 Based on the foregoing, we reverse the trial court's order and remand for further proceedings consistent with this decision.