                                                                       FILED BY CLERK
                                                                           APR 30 2007
                             IN THE COURT OF APPEALS                       COURT OF APPEALS
                                 STATE OF ARIZONA                            DIVISION TWO
                                   DIVISION TWO


FLYING DIAMOND AIRPARK, LLC, an               )           2 CA-CV 2006-0092
Arizona limited liability company, an         )           DEPARTMENT A
Arizona non-profit corporation,               )
                                              )           OPINION
                        Plaintiff/Appellee,   )
                                              )
                   v.                         )
                                              )
JEFFREY A. MEIENBERG, an                      )
unmarried man,                                )
                                              )
                   Defendant/Appellant.       )
                                              )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                   Cause No. C-20045803

                        Honorable Charles V. Harrington, Judge

                                       AFFIRMED



John A. Baade                                                                     Tucson

   and

Tanis A. Duncan                                                                    Tucson
                                                          Attorneys for Plaintiff/Appellee

Law Office of Ethan Steele, P.C.
 By Ethan Steele                                                              Tucson
                                                     Attorney for Defendant/Appellant
H O W A R D, Presiding Judge.


¶1            Appellant Jeffrey Meienberg appeals from an order issuing a mandatory

injunction1 requiring him to reduce the height of a hangar he had built. He argues the trial

court erred by concluding Meienberg’s violation of a restrictive covenant was intentional,

failing to apply the doctrine of relative hardships, and failing to re-open the case for

additional evidence regarding the hardship Meienberg would incur in complying with the

injunction. He also argues that appellee Flying Diamond Airpark, LLC, was estopped from

enforcing the covenant. Finding no error, we affirm.

                                       Background

¶2            “‘We view the facts in the light most favorable to sustaining the trial court’s

judgment.’” Cimarron Foothills Cmty. Ass’n v. Kippen, 206 Ariz. 455, ¶ 2, 79 P.3d 1214,

1216 (App. 2003), quoting Sw. Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438,

¶ 2, 36 P.3d 1208, 1210 (App. 2001). Flying Diamond is an association of property owners

in a development in which Meienberg owns property. A recorded declaration of covenants,

conditions, and restrictions (CC&Rs), referred to in Meienberg’s deed, applies to his parcel.

Meienberg is a mandatory member of Flying Diamond, bound by the CC&Rs.




       1
        Meienberg does not dispute that the judgment contains sufficient language to
constitute an injunction.

                                             2
¶3            The CC&Rs prohibit certain structures, including “structures of more than 22

foot height.” In 2004, Meienberg began constructing a hangar on his property, using

prefabricated parts. The hangar is equipped with three roof vents. Each vent is ten feet long,

sixteen inches high, and two feet wide and attaches to the roof. The hangar’s height from

the ground to the top of the vents along the ridge of the hangar’s roof exceeds twenty-two

feet. As Meienberg now concedes, the hangar violates the height restriction by eight-and-

three-quarter to ten-and-three-quarter inches.

¶4            After Meienberg ordered the parts for the building, but before construction

began, Meienberg showed the plans for the hangar to Larry Bramhall, another property

owner and association member. Bramhall, who had building experience, had been asked to

serve on an architectural advisory committee that would “advise owners of [CC&R]

violations prior to building.” Submission of plans to that committee, however, was not

mandatory, and the committee “would not approve or disapprove plans.”

¶5            The plans Meienberg showed Bramhall did not include a measurement of the

total height of the hangar and did not include the dimensions of the roof vents. Bramhall

testified at trial that, given the height of the eaves and the roof’s pitch, he determined the

hangar’s roof would not exceed twenty-two feet in height. But he also testified that “there

was never any mention of roof vents.” Bramhall ended the conversation by reminding

Meienberg to be sure the building was not more than twenty-two feet tall.




                                              3
¶6            After construction began, Bramhall saw the steel frame of the building and saw

the roof vents lying on the ground. Bramhall informed Meienberg that, including the roof

vents in the height calculation, the hangar would exceed the height restriction. He also told

Meienberg that lower-profile vents that would not violate the restriction could be installed,

and that he might be able to find a buyer for the higher-profile vents. Meienberg took the

position that the vents should not have been included in the height calculation, and he

continued construction.

¶7            Flying Diamond brought this action in the trial court, seeking an injunction

requiring Meienberg to bring the hangar into compliance with the height restriction. The

court held an evidentiary hearing, and the parties stipulated to have the court render a

decision based on the testimony and evidence presented at that hearing, as well as legal

memoranda filed by the parties. Meienberg argued that the hangar did not violate the

restriction, that Flying Diamond was estopped from seeking injunctive relief, and that the

hardship on Meienberg in complying with an injunction would outweigh any benefit to

Flying Diamond.

¶8            The court concluded that the hangar violated the height restriction. It found

that Meienberg was aware of the restriction, the violation of the restriction, and Flying

Diamond’s intention to enforce the restriction. It therefore concluded that Meienberg could

not claim hardship or estoppel as defenses and that Flying Diamond was entitled to an




                                             4
injunction. The court also awarded Flying Diamond attorney fees pursuant to a provision

in the CC&Rs.

                                    Relative Hardships

¶9            Meienberg contends the trial court erred in concluding that his violation of the

height restriction was intentional, which would preclude it from considering the relative

hardships to the parties in deciding whether to issue an injunction. We review a trial court’s

grant of injunctive relief for an abuse of discretion. See Ahwatukee Custom Estates Mgmt.

Ass’n v. Turner, 196 Ariz. 631, ¶ 5, 2 P.3d 1276, 1279 (App. 2000). We defer to the

court’s findings of fact unless clearly erroneous, but we review de novo its legal conclusions.

See id.

¶10           Equitable principles govern the enforcement of restrictive covenants by

injunction. See 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. But “[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).

¶11           Consistent with these principles, this court has held that it is not error to refuse

to consider relative hardships where a party is aware of a restriction and of some

homeowners’ intent to enforce the restriction but nonetheless builds an offending structure.


                                               5
Camelback Del Este Homeowners Ass’n v. Warner, 156 Ariz. 21, 26, 749 P.2d 930, 935

(App. 1987); see also Burke v. Voicestream Wireless Corp. II, 207 Ariz. 393, ¶¶ 28-29, 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). But the Arizona cases

provide no clear definition of what makes a party an “intentional wrongdoer.”

¶12           Meienberg contends his violation of the height restriction was “unintentional

at the critical time that he ordered his hangar and reviewed the plans with Bramhall” and the

trial court wrongly determined his intent as of a later time.2 He claims his defenses “were

already established as historical fact” at the time he reviewed the plans with Bramhall, and

thus, the trial court should not have considered events occurring afterward in gauging his

intent.

¶13           We know of no authority supporting Meienberg’s argument, and he cites none.

In fact, in the cases in which Arizona courts have considered whether a party who violates

a restriction can claim hardship as an equitable defense, it does not appear to have been

crucial that the property owner intended to violate the restriction from the outset. In Burke,

for example, Voicestream intended to build a cellular telephone tower and claimed to have


         Meienberg also argues the trial court clearly erred in finding that he “had actual
          2

knowledge of his violation of the restrictive covenant regarding height restrictions on
structures.” But Meienberg does not dispute that he knew of the height restriction and
completed construction of the hangar after Bramhall informed him that it would violate the
restriction. As we will explain, this is sufficient to support the trial court’s conclusion that
Meienberg’s violation was intentional; thus, he could not claim hardship. Accordingly, we
need not address Meienberg’s argument regarding this factual finding.

                                               6
spent $100,000 on the project before property owners voiced opposition to the plan. 207

Ariz. 393, ¶¶ 4-5, 87 P.3d at 83. Voicestream then constructed the tower in violation of a

restriction. Id. ¶ 7. Voicestream, as Meienberg did in this case, asserted, based on its

interpretation of the restriction, that it did not believe the structure violated the restriction.

Id. ¶ 12. This court held that Voicestream could not “claim hardship because [it] proceeded

with the tower construction knowing of the Restrictions and that neighboring homeowners

objected to the tower.” Id. ¶ 28.

¶14            Similarly, in Decker, Decker began construction of a building but soon

stopped after learning that it violated a restriction. 96 Ariz. at 38, 396 P.2d at 610.

However, he later continued construction of the offending building, and property owners

brought an action to enjoin the violation of the restriction. Id. at 38-39, 396 P.2d at 610.

Decker admitted that he knew he had violated a restriction, but continued construction

anyway because he “had so much money in it that [he] couldn’t do otherwise.” Id. at 41,

396 P.2d at 612. The court held that Decker could not rely on hardship because he was an

“intentional wrongdoer.” Id. at 42, 396 P.2d at 612.

¶15            Meienberg argues Decker is distinguishable because Decker expended a large

amount of money after learning of the violation and then claimed hardship, whereas here,

according to Meienberg, Meienberg “never made any . . . claim that because he decided to

complete installation of his original vents despite Flying Diamond’s objection, . . . this was

a factor which added to his burden.” But, here, as in Decker, Meienberg continued


                                                7
construction despite knowing of a restriction.          And, although the court in Decker

emphasized Decker’s expenditure of money after learning of the violation and his reasoning

for his decision, see Decker, 96 Ariz. at 41, 396 P.2d at 612, this court in Burke merely

stated that Voicestream could not claim hardship “[b]ecause [it] proceeded with

construction knowing of the Restrictions and that several homeowners claimed that the

tower was prohibited under the Restrictions.” 207 Ariz. 393, ¶ 29, 87 P.3d at 87. Similarly,

here, Meienberg proceeded to complete construction of an offending structure after learning

from Bramhall that it violated a restriction.

¶16           Meienberg cites Camelback Del Este Homeowners Ass’n and Swaggerty v.

Petersen, 572 P.2d 1309 (Or. 1977),3 in support of his argument that a violation is

intentional only if the violator incurs substantial expenditures after learning of the violation.

But, although those cases may have involved expenditures of larger sums of money at

different times, we do not believe these factual distinctions are sufficient to support a

different result here. As discussed above, a party may not claim hardship where it knows of

a restriction and completes construction in the face of neighborhood opposition. See Burke,




       3
         Meienberg also cites First Hyland Greens Ass’n v. Griffith, 618 P.2d 745 (Colo.
Ct. App. 1980), in support of this argument. But the court in Griffith did not address the
issue of whether Griffith could claim hardship, but rather, whether there was a genuine issue
of material fact as to whether the association was estopped from seeking injunctive relief.
Id. at 747. Moreover, the appellate court affirmed the trial court’s order enjoining continued
construction of a structure violating a restriction. Id. Accordingly, Griffith does not help
Meienberg.

                                                8
207 Ariz. 393, ¶ 29, 87 P.3d at 87; Camelback Del Este Homeowners Ass’n, 156 Ariz. at

26, 749 P.2d at 935.

¶17            Cases from other jurisdictions support the conclusion that a person may not

claim hardship if the person is aware of a restriction, begins construction of an offending

structure, and completes construction after becoming aware of neighborhood opposition to

the structure. In Sandstrom v. Larsen, 583 P.2d 971 (Haw. 1978), the Larsens lived in a

community subject to a restriction that homes could not exceed one-and-one-half stories in

height. Id. at 974. The Larsens were aware of the restriction. Id. at 974-75. After the

Larsens’ home was partially destroyed by fire, they began reconstructing it. Id. When it

became clear to neighbors that the new home would be two stories in height, they requested

that the Larsens “‘cease construction until the issue of the height restriction [wa]s

resolved.’” Id. at 975. The Larsens went on to complete construction. Id.

¶18            The trial court refused to consider relative hardships. Id. at 977. The Larsens

argued on appeal that they were innocent parties because they relied on an architect’s advice

that the house would not violate the restriction. Id. at 978. The Hawaii Supreme Court

rejected that argument and, without discussing the timing of any expenditures, stated that

the trial court did not err by refusing to consider relative hardships. Id. It concluded that

an injunction is the appropriate remedy “where a property owner ‘deliberately and

intentionally violates a valid express restriction . . . or intentionally “takes a chance.”’” Id.,

quoting Peters v. Davis, 231 A.2d 748, 752 (Pa. 1967) (emphasis in Sandstrom).


                                                9
¶19           Similarly, in Gladstone v. Gregory, 596 P.2d 491 (Nev. 1979), the Gregorys

commenced construction of a second-story addition to their home in violation of a restriction

limiting homes to one story in height. Id. at 493. Gladstone objected, but the Gregorys

continued construction. Id. The Nevada Supreme Court reversed the trial court’s denial of

injunctive relief and noted that “[t]he equitable principle of relative hardship is available

only to innocent parties who proceed without knowledge or warning that they are acting

contrary to others’ vested property rights.” Id. at 495 (emphasis added); see also

Nonnenmann v. Lucky Stores, Inc., 368 N.E.2d 200, 204 (Ill. App. Ct. 1977) (“Since the

violative improvements were completed in the face of plaintiff’s assertion of right, and

therefore must be considered to be intentional, we believe that we should not undertake a

balancing of hardships under the circumstances as shown by the record in this case.”).

¶20           In his reply brief, Meienberg cites Drulard v. LeTourneau, 593 P.2d 1118 (Or.

1979), in support of his position that the burden on him would outweigh any benefit to

Flying Diamond. At oral argument in this court, he contended Drulard supports his position

that the trial court should have considered the relative hardships in this case. But in

Drulard, the court did not address whether the alleged violation of a restriction was

intentional or innocent. See id. at 1122-23. Arizona law required the trial court to make

such a determination. Accordingly, Drulard does not help Meienberg.

¶21           The case law, both in Arizona and in other jurisdictions, supports the

conclusion that, where a party has actual or constructive notice of a restriction, knows or is


                                             10
informed prior to actually violating the restriction that his structure will violate the

restriction, and then completes construction of the structure, the party may not claim the

benefit of relative hardships. Thus, although the amount of hardship, and the date it is

incurred, may be relevant if the court reaches the balancing of the hardships determination,

those factors are not relevant to a determination of the intent of the violator.

¶22           Were we to adopt Meienberg’s argument, CC&Rs would become difficult to

enforce. Any owner of real property governed by CC&Rs could claim that he had

purchased the material for an addition to the property in ignorance of the restriction or under

a different interpretation of the restriction. The adjoining property owners would not have

had an opportunity to object, but the violator could require a decision on relative hardships

before the CC&Rs could be enforced. This would erode the uniformity to which all owners

of property covered by the CC&Rs, including the violating owner, agreed. Therefore, the

courts have adopted a more stringent test.

¶23           Meienberg had knowledge of the height restriction and continued construction

after Bramhall informed him the hangar would violate that restriction. At the time

Meienberg installed the vents and violated the restrictions, he had been informed that the

vents would cause the structure to exceed the maximum-allowed building height.

Accordingly, we conclude the trial court neither clearly erred in finding that Meienberg’s




                                              11
violation was intentional nor abused its equitable discretion in granting injunctive relief.4

See Turner, 196 Ariz. 631, ¶ 5, 2 P.3d at 1279.

                                     Rule 59(b) Motion

¶24           Meienberg argues the trial court erred by denying his motion, made pursuant

to Rule 59(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 2, to submit additional evidence regarding the

burden compliance with the restriction would have imposed on Meienberg. Rule 59(b)

affords a trial court “broad discretion to act in the interests of justice.” McCutchen v. Hill,

147 Ariz. 401, 406, 710 P.2d 1056, 1061 (1985). Accordingly, a trial court’s decision not

to accept additional evidence “‘must be upheld on appeal unless there is a clear showing

that there was no reasonable basis within the range of discretion for the action taken.’” Id.

at 407, 710 P.2d at 1062, quoting duPont v. United States, 385 F.2d 780, 783 (3d Cir.

1967).

¶25           The trial court concluded Meienberg could not successfully claim the benefit

of relative hardships because he knew of the height restriction and the opposition to his

hangar’s exceeding it and proceeded to complete construction anyway. We have held that


         4
         Therefore, as Meienberg concedes, we need not address his argument, based on
Lacer v. Navajo County, 141 Ariz. 396, 687 P.2d 404 (App. 1983), that the relative
hardships required the trial court to deny the injunction. Also, at oral argument, Flying
Diamond contended that the balancing of the hardships was an equally strong alternative
basis to affirm the trial court. Although we agree with Flying Diamond that the record
supports the trial court’s determination that the balance of hardships did not favor
Meienberg, we need not reach the balancing test because Meienberg lost the right to request
a balancing of the hardships when, as the trial court also found, he intentionally violated the
restriction.

                                              12
this decision was not error. Meienberg’s proposed evidence would only have been relevant

to a balancing of hardships. Because Meienberg’s status as an intentional violator prohibited

him from claiming hardship, the evidence would have made no difference. Accordingly, the

court did not err in denying Meienberg’s motion.

                                          Estoppel

¶26           Finally, Meienberg argues the trial court erred in concluding that equitable

estoppel did not bar Flying Diamond from obtaining equitable relief. He does not contend

that the court erred as a matter of law in reaching its decision, but rather, that the evidence

does not support its conclusion.

¶27           We review a trial court’s decision not to apply estoppel for an abuse of

discretion. See Ahwatukee Custom Estates Mgmt. Ass’n v. Turner, 196 Ariz. 631, ¶ 5, 2

P.3d 1276, 1279 (App. 2000) (decision to grant injunctive relief in trial court’s discretion);

Pizziconi v. Yarbrough, 177 Ariz. 422, 427, 868 P.2d 1005, 1010 (App. 1993) (applying

abuse of discretion standard of review to equitable estoppel and laches claim in child

support proceeding). A court abuses its discretion if it commits an error of law in reaching

a discretionary conclusion, it reaches a conclusion without considering the evidence, it

commits some other substantial error of law, or “the record fails to provide substantial

evidence to support the trial court’s finding.” Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 453,

456, 652 P.2d 526, 529 (1982). Because Meienberg does not argue the court erred as a




                                              13
matter of law, our review is limited to determining whether substantial evidence in the record

supports the court’s conclusion. See id.

¶28            There are three elements to equitable estoppel: “‘(1) the party to be estopped

commits acts inconsistent 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.’” City

of Tucson v. Whiteco Metrocom, Inc., 194 Ariz. 390, ¶ 22, 983 P.2d 759, 765 (App. 1999),

quoting Valencia Energy Co. v. Ariz. Dep’t of Revenue, 191 Ariz. 565, ¶ 35, 959 P.2d

1256, 1267-68 (1998); see also Camelback Del Este Homeowners Ass’n v. Warner, 156

Ariz. 21, 26, 749 P.2d 930, 935 (App. 1987). The party to be estopped must induce

reliance “‘by his acts, representations or admissions intentionally or through culpable

negligence.’” LaBombard v. Samaritan Health Sys., 195 Ariz. 543, ¶ 12, 991 P.2d 246,

249-50 (App. 1998), quoting St. Joseph’s Hosp. & Med. Ctr. v. Reserve Life Ins. Co., 154

Ariz. 307, 317, 742 P.2d 808, 818 (1987). Resulting reliance must be justifiable. Villas at

Hidden Lakes Condos. Ass’n v. Geupel Constr. Co., 174 Ariz. 72, 78, 847 P.2d 117, 123

(App. 1992).

¶29            The trial court rejected Meienberg’s estoppel claim, stating it was “without

merit.” The court found that “[t]here was insufficient evidence that [Flying Diamond]

engaged in acts which were inconsistent with its claim that [Meienberg]’s structure exceeded

the height limitations, that [Meienberg] took any action to his detriment, and relied upon any




                                              14
actions of [Flying Diamond], nor that as a result of [Flying Diamond]’s acts, [Meienberg]

suffered damages.”

¶30           Substantial evidence supports the trial court’s conclusions. Meienberg knew

of the height restriction and ordered the parts for the hangar before Bramhall reviewed the

plans. The plans he asked Bramhall to review did not include the dimensions of the vents,

and there was no discussion of the vents when they met. Bramhall reminded Meienberg to

make sure the building was not more than twenty-two feet tall. Meienberg never asked

Bramhall specifically to approve the plans, and neither Bramhall nor the committee as a

whole had authority to approve or disapprove plans.

¶31           This evidence supports the conclusions that Flying Diamond did not commit

any act or make any representation that would induce reliance and that it did not

intentionally or negligently induce reliance. See LaBombard, 195 Ariz. 543, ¶ 12, 991 P.2d

at 249-50. Additionally, the evidence supports the conclusions that Meienberg did not rely

on any act or representation of Flying Diamond and that any alleged reliance was not

justifiable. See Villas at Hidden Lakes Condos. Ass’n, 174 Ariz. at 78, 847 P.2d at 123.

¶32           Meienberg cites First Hyland Greens Ass’n v. Griffith, 618 P.2d 745 (Colo.

Ct. App. 1980), in support of his estoppel argument. In Griffith, the covenants mandated

that all plans be submitted to an architectural control committee for approval. Id. at 746.

One covenant prohibited the construction of more than one single family residence per lot.

Id. The Griffiths had submitted plans to the committee for a swimming pool, fence, and


                                            15
pool house on their lot. Id. The committee approved the plans for the pool and the fence,

but asked for more complete plans for the pool house. Id. The Griffiths proceeded with

construction and submitted revised plans, at which point the committee disapproved plans

for the pool house based on the single-family-home limitation and on the size of the pool

house. Id. at 746-47.

¶33           In an action to enjoin construction of the pool house, the Griffiths contended

that the association was estopped from obtaining equitable relief by virtue of the initial

approval and request for further pool house plans. Id. The trial court granted the

association’s motion for summary judgment, holding that the Griffiths were not entitled to

rely on the initial approval as authorization for the pool house they began to construct. Id.

at 747. The Colorado Court of Appeals upheld the trial court’s decision that the initial

authorization did not permit the type of pool house the Griffiths had begun to construct. Id.

But the court concluded a genuine issue of material fact existed as to whether the initial

approval could “be construed as authorizing a pool house of some type containing a dressing

room, and whether the [Griffiths] reasonably relied on the letter to that extent.” Id.

¶34           The circumstances of this case are quite different. The architectural advisory

committee here was voluntary and not authorized to approve or disapprove plans. In

Griffith, approval of plans by the committee was not only authorized but mandatory. See

id. at 746. In addition, in Griffith, the initial authorization was in writing and was based on

plans indicating the pool house would be used as a dressing room, an important issue in the


                                              16
case. Id. at 746-47. Here, the plans did not include a measurement of the height to the top

of the hangar’s roof or the dimensions of the vents, and Bramhall and Meienberg did not

discuss the vents. Finally, the court in Griffith addressed the propriety of summary

judgment and remanded the case for a determination of factual questions. Id. at 747. Here,

there has already been a trial and a detailed determination of the facts. Griffith, therefore,

does not help Meienberg. Because substantial evidence supports the conclusion that

Meienberg failed to prove estoppel, the court did not abuse its discretion in reaching that

conclusion. See Grant, 133 Ariz. at 456, 652 P.2d at 529.

                                        Conclusion

¶35           For the foregoing reasons, we affirm the trial court’s judgment. Upon its

compliance with Rule 21(c), Ariz. R. Civ. App. P., 17B A.R.S., Flying Diamond’s request

for attorney fees on appeal is granted, pursuant to a provision in the CC&Rs entitling the

successful party to a reasonable attorney fee.



                                              ____________________________________
                                              JOSEPH W. HOWARD, Presiding Judge



CONCURRING:


____________________________________
JOHN PELANDER, Chief Judge



                                             17
____________________________________
GARYE L. VÁSQUEZ, Judge




                                 18
