Broschat v. Francone

CourtCourt of Appeals of Arizona
PartiesRICKY J. BROSCHAT, AN UNMARRIED MAN, Plaintiff/Counterdefendant/Appellee, v. JEFFREY FRANCONE AND EMILY FRANCONE, HUSBAND AND WIFE, Defendants/Counterclaimants/Appellants.
Docket NumberNo. 2 CA-CV 2015-0044,2 CA-CV 2015-0044
Decision Date23 November 2015

RICKY J. BROSCHAT, AN UNMARRIED MAN, Plaintiff/Counterdefendant/Appellee,
HUSBAND AND WIFE, Defendants/Counterclaimants/Appellants.

No. 2 CA-CV 2015-0044


November 23, 2015

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



Law Office of Ronald J. Newman, Tucson
By Ronald J. Newman

Law Office of Dennis A. Rosen, Tucson
By Dennis A. Rosen and Gayle D. Reay
Co-Counsel for Plaintiff/Counterdefendant/Appellee

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Snell & Wilmer L.L.P., Tucson
By Sarah K. Jezairian and Robert A. Bernheim
Counsel for Defendants/Counterclaimants/Appellants


Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly1 concurred.

HOWARD, Judge:

¶1 Jeffrey and Emily Francone appeal the trial court's order enjoining them from interfering with a portion of an easement across their property providing access to Ricky Broschat's property. The Francones argue the court erred by relying on an "Easement Maintenance Agreement" (EMA) as evidence of an express easement, by finding they had failed to prove their affirmative defenses, and by granting Broschat his attorney fees and costs. Because we find no error, we affirm.

Factual and Procedural Background

¶2 In reviewing a judgment entered after a bench trial, we view the facts in the light most favorable to upholding the trial court's decision. Bennett v. Baxter Grp., Inc., 223 Ariz. 414, ¶ 2, 224 P.3d 230, 233 (App. 2010). The Francones and Broschat are neighbors in Pima County. The Francones' property is bordered on the north and east sides by Via Noriega, a private road created by the easement at issue in this case. Broschat's property is directly south of the Francones' and can only be accessed by Via Noriega.

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¶3 In the early 1980s, Mark Dykman built the home in which the Francones currently live. He later sold the property to the Koppenhavers in 2005, who, in turn, sold it to the Francones in 2012.

¶4 Broschat's current home was built by Carol Martell shortly after Dykman built his home. She later sold the property to the Zoubs, who then sold the property to the Millers, who then sold it to Broschat in 2005.

¶5 Around the time the homes were built, Dykman, Martell, and two other neighbors agreed to create an access easement allowing each of the houses ingress and egress on Via Noriega. That easement was signed and recorded. The four parties further agreed upon how the easement would be maintained jointly. In 1992, after the Zoubs bought Martell's property, Dykman, the Zoubs, and the two other original neighbors signed the EMA, which described how maintenance of the easement would be handled and included a description of the thirty-foot easement.

¶6 After agreeing to the original easement, Dykman began laying "river rocks" around the boundary of his property "lined up directly next to where [he] thought the easement began." The rocks laid by Dykman were "kind of flat" and could be driven over without incurring damage. The Koppenhavers, after moving into the home, added more river rocks to the boundary line and moved the rock line into the roadway. After the Koppenhaver's moved the rocks, Via Noriega was no longer wide enough for two cars to pass each other. Cars, however, could still drive over the rocks without incurring damage.

¶7 The Francones made additional changes to the rock boundary after moving into the home in May 2012. They replaced the river rocks with "larger jagged boulders" which could not be driven over. And in order to access Broschat's property, most people would need to drive onto the property directly east of the Francones', depending on the size of their vehicle.

¶8 In September 2012, a land survey was done showing the boundaries of the easement. Another survey was conducted in

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March 2013, showing that the rock boundary of the Francones' property encroached onto the easement by seventeen feet.

¶9 In February 2013, Broschat sought an injunction preventing the Francones from encroaching on the easement. In their answer, the Francones filed several counterclaims against Broschat, one of which was later dismissed by the trial court. The court bifurcated Broschat's and the Francones' claims and determined it would hold a bench trial on Broschat's claim before holding a jury trial on the Francones' because the outcome of Broschat's claim could affect one of the Francones' counterclaims.

¶10 Following the bench trial on Broschat's claim, the trial court found the Francones had encroached onto the easement by seventeen feet and ordered the Francones to "restore the easement to its full width of [thirty] feet." The court also granted Broschat's request for attorney fees and costs. The court entered a final judgment on Broschat's claim pursuant to Rule 54(b), Ariz. R. Civ. P. We have jurisdiction over the Francones' appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

Existence of an Express Easement

¶11 The Francones first argue the trial court erred in finding an express thirty-foot easement existed because no formal deed conveyed the easement. They contend the EMA—"the only purported written evidence of the easement"—was "ineffective to convey an interest in the property." Following a bench trial, we defer to the court's factual findings "unless clearly erroneous," but we review any issues of law de novo. Town of Marana v. Pima County, 230 Ariz. 142, ¶ 46, 281 P.3d 1010, 1020 (App. 2012).

¶12 "[A]n easement is a right that one person has to use the land of another for a specific purpose." Ammer v. Ariz. Water Co., 169 Ariz. 205, 208, 818 P.2d 190, 193 (App. 1991). Easements are generally "created by express conveyance, typically by deed, but may come into being less explicitly, by implication, or against the will of the owner of the burdened estate, by prescription." Rogers v. Bd. of Regents of Univ. of Ariz., 233 Ariz. 262, ¶ 10, 311 P.3d 1075, 1079 (App. 2013).

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¶13 The conveyance of an express easement must comply with the same requirements as a conveyance of real property. Restatement (Third) of Property (Servitudes) § 2.7 (2000); see also Paxson v. Glovitz, 203 Ariz. 63, n.3, 50 P.3d 420, 424 n.3 (App. 2002) (Arizona courts look to Restatement "[i]n absence of contrary precedent."). Thus, in Arizona, the conveyance of an express easement must be "in writing, signed, acknowledged, and delivered." Hardine v. Pioneer Nat. Title Ins., 145 Ariz. 83, 84, 699 P.2d 1314, 1315 (App. 1985); see also A.R.S. § 33-401(B).

¶14 If the language creating an express easement is unambiguous, the easement "is enforced so as to give effect to the intent of the parties." Powell v. Washburn, 211 Ariz. 553, ¶ 9, 125 P.3d 373, 376 (2006); see also State v. Mabery Ranch, Co., 216 Ariz. 233, ¶¶ 25, 28, 165 P.3d 211, 218-19 (App. 2007). Likewise, if the language is ambiguous, courts still must give effect to the parties' intentions by considering "'the language used in the instrument, or the circumstances surrounding the creation of the servitude.'" Smith v. Beesley, 226 Ariz. 313, ¶ 15, 247 P.3d 548, 553 (App. 2011), quoting Powell, 211 Ariz. 553, ¶ 13, 125 P.3d at 376-77; see also Restatement § 4.1(1).

¶15 Thus, in Arizona, no particular language must be used for a court to find a valid easement exists if that is what the parties intended, so long as the easement complies with § 33-401(B). See Smith, 226 Ariz. 313, ¶ 15, 247 P.3d at 553 (easement can be validly created by plat); see also Pugh v. Cook, 153 Ariz. 246, 247, 735 P.2d 856, 857 (App. 1987) (language in deeds that land "subject to '[e]stablished and/or existing roads, roadways and highways'" sufficient to create easements); City of Phoenix v. Kennedy, 138 Ariz. 406, 408, 675 P.2d 293, 295 (App. 1983) ("subject to" language created valid easement). This proposition is consistent with other states' case law. See Skeen v. Boyles, 213 P.3d 531, ¶ 18 (N.M. Ct. App. 2009) (if parties intended to create easement, words of grant not necessary); Century Commc'ns, Inc. v. Hous. Auth. of Wilson, 326 S.E.2d 261, 263 (N.C. 1985) ("Generally, whether language in a written instrument creates an easement is to be determined by ascertaining the intention of the parties as gathered from the language of the instrument."); Yager Pontiac, Inc. v. Fred A. Danker & Sons, Inc., 41 A.D.2d 366, 368

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(N.Y. 1973) (easement created as intended "[d]espite the absence of words such as 'grant', 'easement' or 'right of way'"); but see Capstar Radio Operating Co. v. Lawrence, 152 P.3d 575, 579 (Idaho 2007) ("subject to" language in sale agreement insufficient to create express easement); Ditmore v. Michalik, 625 N.W.2d 462, 469 (Mich. Ct. App. 2001) (document purporting to create express easement must manifest clear intent on its face).

¶16 The trial court found that the existence of the thirty-foot easement was "proven, inter alia, by the [EMA] and the agreement to create an easement by the property owners." And "that the original agreement is, by definition, a contract," which was recorded.

¶17 The Francones have not challenged the trial court's reliance on the EMA and testimony to prove the existence of the easement. They have not argued or cited any legal authority declaring that the court could not have found the easement, as described in the EMA, existed and was recorded based on the undisputed evidence presented at the bench trial. Consequently, they have waived this issue for review. See Ariz. R. Civ. App. P. 13(a)(7); Polanco v. Indus. Comm'n, 214 Ariz. 489, n.2, 154 P.3d 391, 393 n.2 (App. 2007).

¶18 The Francones do, however, cite § 33-401 as codifying formal requirements for the conveyance of land with which, they contend, the easement did not comply....

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