BISBEE – A dispute between neighbors about construction of a large workshop in a residential area south of Sierra Vista has resulted in a court order that stopped work on the structure mid-stream and prompted one of the attorneys to allege the judge demonstrated bias in the case.
Judge Laura Cardinal issued a temporary restraining order (TRO) on Feb. 19 against Ben and Evelyn Stoner, who were in the process of constructing an 1,800-square-foot workshop on their one-acre lot for which they had obtained a building permit from Cochise County. The Stoners were sued in January by Jeffrey and Kimberly Ochs, who share a backyard boundary with the Stoners.
The Ochs contend the workshop and the Stoners’ operation of a business on their property violate restrictive covenants, also known as covenants, conditions, and restrictions (CC&Rs), recorded with Cochise County by the Mountain Shadows subdivision developer in the 1980s.
The TRO issued by Cardinal requires the Stoners to cease construction of the workshop until further order of the court. The Stoners are also required to remove from their lot “any and all property, heavy equipment, building materials, etc.” used in connection to a business.
However, neither the Stoners nor their attorney, Bob Stachel, were present for the hearing which led to the TRO. That’s because the attorney fell ill that morning and required emergency surgery.
Stachel, who was once law partners with Cardinal, has filed two motions which allege the judge violated court rules with respect to the TRO hearing. As a result, he has requested a “for-cause” removal of Cardinal from the case.
“It is now impossible for the Defendants to unring the bell tolled by Judge Cardinal and receive a fair and impartial hearing or trial on the merits,” Stachel wrote.
Presiding Judge James Conlogue will conduct a hearing Thursday on Stachel’s motion for a new judge. Then a hearing can be scheduled on the attorney’s second motion which seeks an order to set aside, or overturn, the TRO.
Court records show the Ochs have lived in their home for more than 20 years, while the Stoners moved into the neighborhood in 2017. Since August 2018, the Ochs have objected to their new neighbors’ alleged disregard of the CC&Rs.
The lawsuit alleges the Stoners’ workshop, which is equal in size to the Stoners’ 1,822-square-foot home, “destroys the fundamental character of the neighborhood” and is “entirely inconsistent with the residential nature of the community.” It also alleges the workshop is intended to support business activity prohibited by the CC&Rs.
The Ochs seek the permanent removal of the unfinished workshop, the cessation of business operations on the Stoners’ property, and attorneys’ fees, according to their attorney, Nathan Williams, who added that the Stoners continued construction of the workshop “at a rapid pace” even after the lawsuit was filed.
“The (Ochs) have been damaged by the (Stoners’) failure to comply with the CC&Rs,” Williams told the court. “The purpose of a preliminary injunction is to preserve the status quo and/or to prevent irreparable loss or injury until a full trial on the merits can be held.”
Cardinal set the first hearing in the case for Feb. 19, the day Stachel became ill. In a court filing, Stachel states his staff was in “frequent contact” with the judge’s office to provide updates about his condition. As a result of those contacts, Stachel’s staff told the Stoners the hearing was going to be rescheduled.
It’s unclear whether there was a misunderstanding or if the judge changed her mind about a postponement, but Williams and the Ochs were present for what became a 45-minute ex-parte (one party) hearing. This allowed Williams to present uncontested testimony and evidence to the court on behalf of the Ochs’ position.
At the end of the hearing Cardinal signed the TRO, which states the Stoners’ actions “have caused, of if allowed to continue, will cause irreparable injury to the (Ochs) and the balance of hardships weighs in the (Ochs) favor.” The judge also noted the Ochs demonstrated “a strong likelihood of success on the merits” when the matter goes to trial.
Stachel told the Herald/Review his clients had the right to be represented at the hearing, a position he says is supported by U.S. Supreme Court decisions on due process. The attorney also contends court rules barred Cardinal from conducting an ex-parte hearing in the case.
In the meantime, the Ochs have been required to post a $30,000 bond to cover potential damages incurred by their neighbors if the case is ultimately decided in favor of the Stoners.