Bohmfalk v. Cochise Cnty.
| Decision Date | 20 June 2016 |
| Docket Number | No. 2 CA-CV 2015-0137,2 CA-CV 2015-0137 |
| Parties | GERALD BOHMFALK AND CYNTHIA BOHMFALK, HUSBAND AND WIFE; AND GERALD T. BOHMFALK AND CYNTHIA A. BOHMFALK, AS TRUSTEES OF THE GERALD T. AND CYNTHIA A. BOHMFALK FAMILY TRUST UNDER AGREEMENT DATED JUNE 15, 1999, Plaintiffs/Appellants, v. COCHISE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA; KEVIN D. SMITH AND KRISTINE L. GOMEZ, HUSBAND AND WIFE; AND SHIRLEY GREGORY, A WIDOW, Defendants/Appellees. |
| Court | Arizona Court of Appeals |
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NOT FOR PUBLICATION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
The Honorable Charles V. Harrington, Judge
AFFIRMED
Stachel & Associates, P.C., Sierra Vista
By Robert D. Stachel, Jr.
Jones, Skelton & Hochuli, P.L.C., Phoenix
By Georgia A. Staton and Jennifer B. Anderson
Curl & Glasson, PLC, Tucson
By David L. Curl and J.C. Patrascioiu
Renaud Cook Drury Mesaros, PA, Phoenix
By Steven G. Mesaros and Randy L. Kingery
Presiding Judge Howard authored the decision of the Court, in which Judge Espinosa and Judge Staring concurred.
¶1 Gerald and Cynthia Bohmfalk appeal from the trial court's grants of summary judgment in favor of Cochise County ("County") and Kevin Smith, Kristine Gomez, and Shirley Gregory (collectively, "the Neighbors") on the Bohmfalks' claim that their real property was damaged due to flooding caused by the County's maintenance activities on a road accessing the Neighbors' property. They argue the court erred in granting summary judgment to the County after determining the statute of limitations had run and to the Neighbors after determining they had publically dedicated the road to the County and thus had no control over it. The Bohmfalksadditionally argue the court abused its discretion by denying their motion to amend their complaint and their motion to supplement their statement of facts. Because we find no error, we affirm.
¶2 "We view the facts in the light most favorable to the party against whom summary judgment was entered." Thompson v. Pima County, 226 Ariz. 42, ¶ 2, 243 P.3d 1024, 1026 (App. 2010). The Bohmfalks' real property consists of forty acres in Cochise County. Gomez and Smith (collectively "Smith-Gomez") own a parcel of real property located east of and adjacent to the Bohmfalks' property. Gregory owns the parcel of real property east of and adjacent to the Smith-Gomez property. The Neighbors access their respective properties via Gregory Road, which runs north from East Geronimo Trail, turns west and terminates at the Smith-Gomez's driveway. It does not provide access to the Bohmfalks' property.
¶3 Gregory Road has been on the list of County-maintained roads since at least 1975, except between 1992 and 1994.1 In 2003, the County designated it a "primitive road," meaning it was not "constructed in accordance with county standards" and is minimally maintained. A.R.S. § 28-6706.
¶4 Between 2002 and 2003, the Bohmfalks noticed flooding damage around their house. In 2004, they contacted the County because they believed the cause of the flooding was its maintenance activities on Gregory Road. Over the next several years, the Countyworked with the Bohmfalks to alleviate the problem through various means, including installing berms, ditches and cut-outs.
¶5 In 2012, the Bohmfalks sued the County for gross negligence stemming from its "construction work on Gregory Road." In 2014, the Bohmfalks amended their complaint, added the Neighbors, and alleged claims of trespass, diversion of a watercourse, and nuisance against them. The Bohmfalks contended discovery had revealed the east-west portion of Gregory Road "was owned by [the Neighbors] and not the County."
¶6 The County moved for summary judgment, arguing the statute of limitations had passed, thus barring the claim and, in the alternative, the Bohmfalks had not established the elements of gross negligence. The Neighbors also moved for summary judgment on the grounds that Gregory Road was, in fact, a County road and they had no control over any of the County's activities related to it.
¶7 The trial court granted summary judgment in favor of the County and the Neighbors. It concluded the Bohmfalks' claim against the County had accrued, at the latest, in 2008 and therefore was time-barred. The court also ruled the Neighbors had publically dedicated Gregory Road and had no control over the County's activities on it. It further denied the Bohmfalks' motion to amend their complaint to allege trespass, nuisance, and diversion of a watercourse against the County, finding the motion was unduly delayed. We have jurisdiction over the Bohmfalks' appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
¶8 The Bohmfalks first argue the trial court erred by granting summary judgment to the Neighbors because a genuine dispute of material fact existed as to whether Gregory Road was a public or private road.2 On appeal from summary judgment, wedetermine de novo whether the court correctly applied the law and whether there are any genuine disputes as to any material fact. Dayka & Hackett, L.L.C. v. Del Monte Fresh Produce N.A., Inc., 228 Ariz. 533, ¶ 6, 269 P.3d 709, 711-12 (App. 2012).
¶9 Summary judgment is appropriate when "the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). "Where no evidence exists to support an essential element of a claim, summary judgment is appropriate." Rice v. Brakel, 233 Ariz. 140, ¶ 6, 310 P.3d 16, 19 (App. 2013). We will uphold the court if it reached the correct legal result for any reason. Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App. 1996).
¶10 The Bohmfalks sued the Neighbors for trespass, nuisance, and diversion of a watercourse pursuant to A.R.S. § 48-3615. They alleged the Neighbors "permitted [the County] to construct and maintain" Gregory Road in a manner "which changed the directional flow of water runoff, diverting it onto" the Bohmfalks' property, causing substantial damage and creating a hazard. In their response to the Neighbors' motion for summary judgment, the Bohmfalks asserted that the Neighbors had a duty to control the "method, manner and means of maintaining the east-west portion of Gregory Road."
¶11 Trespass, nuisance, and diversion of a watercourse all require at least that the Neighbors commit an intentional or affirmative act against the Bohmfalks. With regards to trespass in particular, "'[w]ithout an intentional act, the defendant's conduct cannot give rise to'" a claim. Mountain States Tel. & Tel. Co. v. Kelton, 79 Ariz. 126, 132, 285 P.2d 168, 172 (1955), quoting Socony-Vacuum Oil Co. v. Bailey, 109 N.Y.S.2d 799, 802 (1952). The Bohmfalks thus needed to show the Neighbors intentionally caused the County to maintain Gregory Road in a way that caused water to flood the Bohmfalks' property. See SWC Baseline & Crismon Investors, L.L.C. v. Augusta Ranch Ltd. P'ship, 228 Ariz. 271, ¶ 95, 265 P.3d 1070, 1091(App. 2011) (), quoting Restatement (Second) of Torts, § 158 (1965). The Neighbors need not have intended to commit trespass, but they must have had "'an intent to do the very act which results in the immediate damage.'" Mountain States, 79 Ariz. at 132, 285 P.2d at 172, quoting Socony-Vacuum, 109 N.Y.S.2d at 802; see also Taft v. Ball, Ball & Brosamer, Inc., 169 Ariz. 173, 176, 818 P.2d 158, 161 (App. 1991).
¶12 Similarly, the nuisance claim required the Bohmfalks to show the Neighbors intentionally, substantially and "unreasonably interfered with [the Bohmfalks'] use and enjoyment of their property, causing significant harm." Nolan v. Starlight Pines Homeowners Ass'n, 216 Ariz. 482, ¶ 32, 167 P.3d 1277, 1284 (App. 2007); see also Restatement § 821D. As to the third claim, the Bohmfalks had to show the Neighbors "divert[ed], retard[ed] or obstruct[ed] the flow of waters in a watercourse . . . creat[ing] a hazard to life or property without securing the written authorization required by [A.R.S.] § 48-3613."3 § 48-3615.
¶13 However, the record shows that the Neighbors did not perform any intentional or affirmative act with regard to the maintenance of Gregory Road. Gregory bought her property in 1957 and, at that time, "was assured . . . that [Gregory Road] was legally established and maintained." County records further showed that Gregory Road had, with the exception of 1992 to 1994, been on the list of County-maintained roads since at least 1975. The County conducted various types of maintenance work on Gregory Road several times per year, including "routine blading," "sign replacement/removal," "storm repair," and "sign installation," and paid for those activities. Gregory filed four requests with the County between 1997 and 2001 requesting it grade the road or repair potholes, and the County responded by conducting those repairs. But those requests did not direct the County in how to make the repairs.
¶14 Smith testified that "anybody" could use Gregory Road because it was not a private road. He further testified he did not pay any assessment taxes for maintenance conducted on Gregory Road, had never paid the County for work done on Gregory Road, and had never refused or granted the County permission to work on Gregory Road.
¶15 The Bohmfalks directed all of their pre-litigation complaints about the maintenance activities to the County. In turn, the relevant County...
To continue reading
Request your trial