AZAPP is a blog that provides a thorough, up-to-date, and efficient resource to stay abreast of significant developments concerning civil cases in Arizona's appellate courts - the two Divisions of the Arizona Court of Appeals and the Arizona Supreme Court.
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Thursday, May 17, 2007
Flying Diamond Airpark, LLC v. Meienberg (04/30/07): Division Two Holds That Where A Party Knows Prior To Actually Violating A Restrictive Covenant That The Party’s Proposed Structure Will Violate the Restriction, Then Completes Construction Of The Structure, The Party May Not Claim The Benefit Of “Relative Hardships”
Flying Diamond is an association of property owners in a development in which Jeffrey Meienberg owns property. Certain CC&Rs apply to Meienberg’s property, one of which prohibits structures of in excess of 22 feet. In 2004, Meienberg began constructing a hangar on his property. The hanger is equipped with three roof vents. The hangar’s height, including the vents, violates the height restriction by between eight and ten inches.
After Meienberg ordered the parts, but before construction began, he showed the plans for the hangar to Larry Bramhall, another association member who served on the “architectural advisory committee” for the association. The plans Meienberg showed Bramhall did not include a measurement of the total height of the hanger and did not include the dimensions of the roof vents. Based on this information, Bramhall determined that the hangar would not exceed the 22-foot height restriction, but ended his conversation with Meienberg by reminding him of the 22-foot restriction. After construction began, Bramhall saw the roof vents lying on the ground and informed Meienberg that with the vents the hangar would exceed the restriction. Meienberg took the position that vents should not be included in the height calculation and continued construction.
Flying Diamond sought an injunction requiring Meienberg to bring the hangar into compliance with the height restriction. The trial court granted the injunction, finding that the hangar violated the height restriction, and finding that because Meienberg knowingly violated the restriction, he could not claim hardship as a defense. Division Two affirmed.
The Court began its analysis by noting that equitable principles govern the enforcement of restrictive covenants by injunction, and that such equitable considerations include the relative hardships to the parties. However, the court noted that “equitable discretion should not be used to protect the intentional wrongdoer.” The Court rejected Meienberg’s argument that his violation of the height restriction was unintentional “at the critical time that he ordered his hanger and reviewed the plans with Bramhall.” Rather, the Court found that Arizona case law addressing whether a party who violates a restriction can claim hardship as an equitable defense does not view as “crucial” whether the “property owner intended to violate the restriction at the outset.” Here, Meienberg ordered the parts while arguably not knowing of the restriction, but he “continued construction” knowing of the restriction, i.e. after Bramhall informed him that, including the vents, the hangar would be over 22 feet in height.
Judge Howard, Presiding Judge, authored the opinion, with Judge Pelander, Chief Judge, and Judge Vasquez concurring.
Flying Diamond is an association of property owners in a development in which Jeffrey Meienberg owns property. Certain CC&Rs apply to Meienberg’s property, one of which prohibits structures of in excess of 22 feet. In 2004, Meienberg began constructing a hangar on his property. The hanger is equipped with three roof vents. The hangar’s height, including the vents, violates the height restriction by between eight and ten inches.
After Meienberg ordered the parts, but before construction began, he showed the plans for the hangar to Larry Bramhall, another association member who served on the “architectural advisory committee” for the association. The plans Meienberg showed Bramhall did not include a measurement of the total height of the hanger and did not include the dimensions of the roof vents. Based on this information, Bramhall determined that the hangar would not exceed the 22-foot height restriction, but ended his conversation with Meienberg by reminding him of the 22-foot restriction. After construction began, Bramhall saw the roof vents lying on the ground and informed Meienberg that with the vents the hangar would exceed the restriction. Meienberg took the position that vents should not be included in the height calculation and continued construction.
Flying Diamond sought an injunction requiring Meienberg to bring the hangar into compliance with the height restriction. The trial court granted the injunction, finding that the hangar violated the height restriction, and finding that because Meienberg knowingly violated the restriction, he could not claim hardship as a defense. Division Two affirmed.
The Court began its analysis by noting that equitable principles govern the enforcement of restrictive covenants by injunction, and that such equitable considerations include the relative hardships to the parties. However, the court noted that “equitable discretion should not be used to protect the intentional wrongdoer.” The Court rejected Meienberg’s argument that his violation of the height restriction was unintentional “at the critical time that he ordered his hanger and reviewed the plans with Bramhall.” Rather, the Court found that Arizona case law addressing whether a party who violates a restriction can claim hardship as an equitable defense does not view as “crucial” whether the “property owner intended to violate the restriction at the outset.” Here, Meienberg ordered the parts while arguably not knowing of the restriction, but he “continued construction” knowing of the restriction, i.e. after Bramhall informed him that, including the vents, the hangar would be over 22 feet in height.
Judge Howard, Presiding Judge, authored the opinion, with Judge Pelander, Chief Judge, and Judge Vasquez concurring.
Posted by azapp @ Thu, May 17, 2007
Cohen v. Frey (5/9/07): Division Two Holds that Trial Court Erred in Interpreting Decree of Dissolution in Favor of Husband Because It Considered Only the Literal Construction of the Decree and Did Not Harmonize that Construction with Other Provisions or the Nature of the Decree
When Selma Frey and Ivan Cohen divorced in 1983, they negotiated a marital settlement agreement (later merged into decree of dissolution) that provided Cohen with the right to live in and exclusive right to sell the residence. Upon any sale, Cohen was obligated to distribute one-half of the proceeds to Frey, but "consent or approval of" Frey to the sale was not required and Cohen had the right "to sell for whatever price and on whatever terms he desires." When Cohen arranged for the sale of the residence to his sister for $100,000, Frey sought a temporary restraining order to prevent the sale. The trial court held that the decree permitted Cohen to sell the property for any price and on any terms, and Frey appealed.
The appellate court reversed this interpretation of the decree. Although acknowledging that the trial court's interpretation of the plain language of the sale provision was literally correct, the appellate court found that read in context, the language is subject to more than one interpretation. Recognizing that the trial court's literal construction would permit Cohen the discretion to sell the residence even "for a dime," the appellate court held that this construction would "effectively obliterate Frey's legal interest in the property," rendering meaningless other provisions in the decree, including the provision providing Frey with one-half interest in the sale of the residence. Moreover, said the court, the trial court's interpretation needed to, but did not, harmonize with the nature of the decree -- the fair and equitable distribution of marital property. Accordingly, the sale provision should be interpreted to require that Frey sell the residence for an "appropriate price," and the court remanded for a determination of whether $100,000 was, in fact, an appropriate price.
Judge Espinosa authored the opinion in which Presiding Judge Eckerstrom and Judge Brammer concurred.
PRACTICE POINTER: Relief from a dissolution decree is governed by Rule 85(c) of the Arizona Rules of Family Law, not Arizona Rule of Civil Procedure 60(c), though the rules are substantively identical. In addition, the court noted that the appropriate dispositive motion should have been a Rule 91 petition for post-decree enforcement (Family Law Rules), not a motion for summary judgment under Rule 56 (Civil Procedure).
When Selma Frey and Ivan Cohen divorced in 1983, they negotiated a marital settlement agreement (later merged into decree of dissolution) that provided Cohen with the right to live in and exclusive right to sell the residence. Upon any sale, Cohen was obligated to distribute one-half of the proceeds to Frey, but "consent or approval of" Frey to the sale was not required and Cohen had the right "to sell for whatever price and on whatever terms he desires." When Cohen arranged for the sale of the residence to his sister for $100,000, Frey sought a temporary restraining order to prevent the sale. The trial court held that the decree permitted Cohen to sell the property for any price and on any terms, and Frey appealed.
The appellate court reversed this interpretation of the decree. Although acknowledging that the trial court's interpretation of the plain language of the sale provision was literally correct, the appellate court found that read in context, the language is subject to more than one interpretation. Recognizing that the trial court's literal construction would permit Cohen the discretion to sell the residence even "for a dime," the appellate court held that this construction would "effectively obliterate Frey's legal interest in the property," rendering meaningless other provisions in the decree, including the provision providing Frey with one-half interest in the sale of the residence. Moreover, said the court, the trial court's interpretation needed to, but did not, harmonize with the nature of the decree -- the fair and equitable distribution of marital property. Accordingly, the sale provision should be interpreted to require that Frey sell the residence for an "appropriate price," and the court remanded for a determination of whether $100,000 was, in fact, an appropriate price.
Judge Espinosa authored the opinion in which Presiding Judge Eckerstrom and Judge Brammer concurred.
PRACTICE POINTER: Relief from a dissolution decree is governed by Rule 85(c) of the Arizona Rules of Family Law, not Arizona Rule of Civil Procedure 60(c), though the rules are substantively identical. In addition, the court noted that the appropriate dispositive motion should have been a Rule 91 petition for post-decree enforcement (Family Law Rules), not a motion for summary judgment under Rule 56 (Civil Procedure).
Posted by azapp @ Thu, May 17, 2007
Brookover v. Roberts Enterprises, Inc. (05/07/07): Division One Rejects Negligence Claims in Open-Ranch Grazing Case.
Plaintiffs/Appellants Tonya and Ronald Brookover were driving on a highway through open ranch land near Salome when their car collided with a cow in the roadway. They then sued Roberts Enterprises, which leased the surrounding open ranch land for grazing purposes, alleging ordinary negligence as well as res ipsa loquitur. Relying on Carrow Co. v. Lusby, 167 Ariz. 18 (1990), the Superior Court granted summary judgment for defendant. The Brookovers appealed.
In a decision by Judge Thompson, Division One affirmed. Division One concluded that under Carrow, the simple failure to fence in open range grazing lands does not fall breach the duty of ordinary care owned by ranchers to the motoring public. Id. at 24-25. In order to show negligence under Carrow, a plaintiff must point to specific acts or omissions besides the lack of fencing, that might show a breach of the duty of care. Division One found no error in the Superior Court's conclusion that no such evidence existed here.
On the related argument by Plaintiffs that that res ipsa loquitur established Defendant's breach, Division One reaffirmed that a claim of res ipsa loquitur requires a threshold showing that the accident in question be one that does not occur in the absence of negligence. See Lowrey v. Montgomery Kone, Inc., 202 Ariz. 190, 192 (App. 2002). The Court then went on to agree with the Superior Court that the Brookovers had not shown that a collision between a cow and a car on a road through open range land is an accident that only occurs in the presence of negligence.
Judges Norris and Hall joined Judge Thompson's opinion.
Plaintiffs/Appellants Tonya and Ronald Brookover were driving on a highway through open ranch land near Salome when their car collided with a cow in the roadway. They then sued Roberts Enterprises, which leased the surrounding open ranch land for grazing purposes, alleging ordinary negligence as well as res ipsa loquitur. Relying on Carrow Co. v. Lusby, 167 Ariz. 18 (1990), the Superior Court granted summary judgment for defendant. The Brookovers appealed.
In a decision by Judge Thompson, Division One affirmed. Division One concluded that under Carrow, the simple failure to fence in open range grazing lands does not fall breach the duty of ordinary care owned by ranchers to the motoring public. Id. at 24-25. In order to show negligence under Carrow, a plaintiff must point to specific acts or omissions besides the lack of fencing, that might show a breach of the duty of care. Division One found no error in the Superior Court's conclusion that no such evidence existed here.
On the related argument by Plaintiffs that that res ipsa loquitur established Defendant's breach, Division One reaffirmed that a claim of res ipsa loquitur requires a threshold showing that the accident in question be one that does not occur in the absence of negligence. See Lowrey v. Montgomery Kone, Inc., 202 Ariz. 190, 192 (App. 2002). The Court then went on to agree with the Superior Court that the Brookovers had not shown that a collision between a cow and a car on a road through open range land is an accident that only occurs in the presence of negligence.
Judges Norris and Hall joined Judge Thompson's opinion.
Posted by azapp @ Thu, May 17, 2007
Tuesday, May 1, 2007
NEWS COVERAGE: A recent article in the Arizona Republic discusses the Arizona Supreme Court reversal ruling on government email privacy.
Posted by azapp @ Tue, May 1, 2007
Griffis v. Pinal County (4/25/07): Supreme Court Holds That When A Government Entity Responding to a Public Records Request Withholds Documents Generated or Maintained On a Government E-mail System on the Grounds That the Documents Are Personal, the Requesting Party May Ask the Trial Court to Perform an In Camera Inspection to Determine Whether the Documents are Purely Personal.
Phoenix Newspapers, Inc. (“PNI”) filed a public records request with Pinal County pursuant to A.R.S. § 39-121 to -121.03 seeking release of all e-mails sent to or received by former Pinal County Manager Stanley Griffis. Pinal County provided numerous e-mails but initially withheld others claiming they were personal or confidential. When PNI threatened to sue, Pinal County agreed to release the remaining e-mails. Griffis then obtained a preliminary injunction blocking release of the e-mails and PNI moved to intervene and dissolve the injunction. The superior court granted PNI’s motion holding that all documents on a governmental entity’s computer are presumed to be public records. The court of appeals reversed, holding that personal e-mails are not public records under Arizona’s public records law and need not be disclosed. The Supreme Court granted PNI’s petition for review, reversed the superior court’s ruling, vacated the opinion of the court of appeals and remanded for in camera inspection by the superior court.
The Supreme Court first reaffirmed the definition of public record set forth in Salt River Pima-Maricopa Indian Community v. Rogers, 168 Ariz. 531, 815 P.2d 900 (1991), noting that the definition is broad but not unlimited. Purely private documents with no substantial nexus with a government agency’s activities do not qualify as public records. Moreover, mere possession of a document by a public officer or agency does not by itself make that document a public record. Instead, determining whether a document is a public record requires a content-driven inquiry. As a result, the Court held that it would be inappropriate to apply a presumption of disclosure until the nature of the document can be determined from its content.
The Supreme Court fashioned a two-step process for determining whether the public records law requires disclosure of a particular document. First, where there is a “substantial question as to the threshold determination of whether the document is subject to the statute,” the trial court should perform an in camera inspection to determine whether the document is a public record. The burden for raising a substantial question can be met by showing that a governmental agency or public official has withheld documents generated or maintained on a government-owned computer. If, after in camera review, a document is determined to be within the scope of the public records statute, the “presumption favoring disclosure applies and, when necessary, the court can perform a balancing test to determine whether privacy, confidentiality, or the best interests of the state outweigh the policy in favor of disclosure.”
Chief Justice McGregor authored the unanimous opinion.
Phoenix Newspapers, Inc. (“PNI”) filed a public records request with Pinal County pursuant to A.R.S. § 39-121 to -121.03 seeking release of all e-mails sent to or received by former Pinal County Manager Stanley Griffis. Pinal County provided numerous e-mails but initially withheld others claiming they were personal or confidential. When PNI threatened to sue, Pinal County agreed to release the remaining e-mails. Griffis then obtained a preliminary injunction blocking release of the e-mails and PNI moved to intervene and dissolve the injunction. The superior court granted PNI’s motion holding that all documents on a governmental entity’s computer are presumed to be public records. The court of appeals reversed, holding that personal e-mails are not public records under Arizona’s public records law and need not be disclosed. The Supreme Court granted PNI’s petition for review, reversed the superior court’s ruling, vacated the opinion of the court of appeals and remanded for in camera inspection by the superior court.
The Supreme Court first reaffirmed the definition of public record set forth in Salt River Pima-Maricopa Indian Community v. Rogers, 168 Ariz. 531, 815 P.2d 900 (1991), noting that the definition is broad but not unlimited. Purely private documents with no substantial nexus with a government agency’s activities do not qualify as public records. Moreover, mere possession of a document by a public officer or agency does not by itself make that document a public record. Instead, determining whether a document is a public record requires a content-driven inquiry. As a result, the Court held that it would be inappropriate to apply a presumption of disclosure until the nature of the document can be determined from its content.
The Supreme Court fashioned a two-step process for determining whether the public records law requires disclosure of a particular document. First, where there is a “substantial question as to the threshold determination of whether the document is subject to the statute,” the trial court should perform an in camera inspection to determine whether the document is a public record. The burden for raising a substantial question can be met by showing that a governmental agency or public official has withheld documents generated or maintained on a government-owned computer. If, after in camera review, a document is determined to be within the scope of the public records statute, the “presumption favoring disclosure applies and, when necessary, the court can perform a balancing test to determine whether privacy, confidentiality, or the best interests of the state outweigh the policy in favor of disclosure.”
Chief Justice McGregor authored the unanimous opinion.
Posted by azapp @ Tue, May 1, 2007
Jenkins v. Jenkins (4/26/07): Division One Holds That Trial Court Did Not Abuse Its Discretion in Finding That a “Like Kind Exchange” of Property Following a Child Support Order Did Not Provide Grounds for Treating Property as Income and Modifying Child Support Decree
Before marrying Beverly Jenkins (“Mother”), Thomas Jenkins (“Father”) inherited a twenty-five percent interest in 520 acres of farmland (“Property”). Pursuant to their pre-marital agreement, the Property remained Father’s sole and separate property. When the parties divorced, the court did not include any amount of imputed return on the Property as income for purposes of calculating the amount of Father’s child support obligation. Father subsequently entered into an agreement to facilitate a “1031 exchange” or “Like Kind Exchange” (a transaction in which an asset is sold and the proceeds of the sale are then reinvested in a similar asset), meaning he realized no capital gain from the sale of the Property, nor any actual income. In light of this transaction, Mother requested a modification to the child support decree, arguing that Father could have invested the proceeds (rather than entered into a Like Kind Exchange), and if he had done so would have realized at least $32,000 in income (assuming a “conservative” 5% rate of return).
Distinguishing In re Marriage of Robinson, 201 Ariz. 328, 35 P.3d 89 (App. 2001), the Court explained that unlike vested, matured stock options, appreciation in the value of separate and existing property is not generally considered income for purposes of child support. Assuming, without deciding, that had Father chosen to transmute his real estate into income or an income-producing property and that the income would be attributable to him for purposes of calculating his child support obligation, Father nevertheless did not do so here. Because Mother failed to establish that Father’s employment or earnings had undergone a substantial and continuing change subsequent to the decree, the Court found no abuse of discretion in the family court’s denial of Mother’s request for modification of child support.
The decision was authored by Judge Snow; Judges Orozco and Johnsen concurred.
Before marrying Beverly Jenkins (“Mother”), Thomas Jenkins (“Father”) inherited a twenty-five percent interest in 520 acres of farmland (“Property”). Pursuant to their pre-marital agreement, the Property remained Father’s sole and separate property. When the parties divorced, the court did not include any amount of imputed return on the Property as income for purposes of calculating the amount of Father’s child support obligation. Father subsequently entered into an agreement to facilitate a “1031 exchange” or “Like Kind Exchange” (a transaction in which an asset is sold and the proceeds of the sale are then reinvested in a similar asset), meaning he realized no capital gain from the sale of the Property, nor any actual income. In light of this transaction, Mother requested a modification to the child support decree, arguing that Father could have invested the proceeds (rather than entered into a Like Kind Exchange), and if he had done so would have realized at least $32,000 in income (assuming a “conservative” 5% rate of return).
Distinguishing In re Marriage of Robinson, 201 Ariz. 328, 35 P.3d 89 (App. 2001), the Court explained that unlike vested, matured stock options, appreciation in the value of separate and existing property is not generally considered income for purposes of child support. Assuming, without deciding, that had Father chosen to transmute his real estate into income or an income-producing property and that the income would be attributable to him for purposes of calculating his child support obligation, Father nevertheless did not do so here. Because Mother failed to establish that Father’s employment or earnings had undergone a substantial and continuing change subsequent to the decree, the Court found no abuse of discretion in the family court’s denial of Mother’s request for modification of child support.
The decision was authored by Judge Snow; Judges Orozco and Johnsen concurred.
Posted by azapp @ Tue, May 1, 2007
