Diaz v. Bachelier

• Decision Date: 09 July 2015
• Docket Number: No. 2 CA-CV 2014-0136,2 CA-CV 2014-0136
• Parties: INOCENTE DIAZ AND PETRA DIAZ, HUSBAND AND WIFE AND AS TRUSTEES FOR THE DIAZ LIVING TRUST DATED DECEMBER 10, 2010, Plaintiffs/Appellants, v. GASTON BACHELIER JR., AN UNMARRIED PERSON; LISA D. BACHELIER, FORMERLY KNOWN AS LISA D. BACHELIER BADILLO, AN UNMARRIED PERSON; AND ENRIQUE AGUIRRE AND SABRINA AGUIRRE, HUSBAND AND WIFE, Defendants/Appellees.
• Court: Arizona Court of Appeals

INOCENTE DIAZ AND PETRA DIAZ, HUSBAND AND WIFE AND AS TRUSTEES FORTHE DIAZ LIVING TRUST DATED DECEMBER 10, 2010, Plaintiffs/Appellants, v. GASTON BACHELIER JR., AN UNMARRIED PERSON;LISA D. BACHELIER, FORMERLY KNOWN AS LISA D. BACHELIER BADILLO,AN UNMARRIED PERSON; AND ENRIQUE AGUIRRE AND SABRINA AGUIRRE,HUSBAND AND WIFE, Defendants/Appellees.

No. 2 CA-CV 2014-0136

ARIZONA COURT OF APPEALS DIVISION TWO

July 9, 2015

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NOT FOR PUBLICATION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 Santa Cruz County

No. cv12256

The Honorable Monica L. Stauffer, Judge

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Stephen J. Gonzalez, Tucson

Counsel for Plaintiffs/Appellants

MEMORANDUM DECISION

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

VÁSQUEZ, Presiding Judge:

¶1 In this real-property dispute, Inocente and Petra Diaz, as trustees of the Diaz Living Trust (collectively Diaz), appeal from a judgment entered after a bench trial in favor of appellees Gaston Bachelier Jr., Lisa Bachelier, and Enrique and Sabrina Aguirre (collectively Bachelier) and the trial court's subsequent denial of Diaz's motion for a new trial or to amend the judgment. Diaz argues the court committed several legal errors and abused its discretion in denying his claims for nuisance, trespass, quiet title, and easement by prescription or necessity. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.²

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the trial court's judgment. Smith v. Beesley, 226 Ariz. 313, ¶ 3, 247 P.3d 548, 551 (App. 2011). In September 1991, Diaz acquired title to residential property in Nogales, Arizona. The property is bordered on the north by Bachelier's property purchased earlier that same year. The land between Diaz's and Bachelier's houses is largely owned by Bachelier, and Diaz used part of it to access thenorth side of his house to perform maintenance. In 2003, Bachelier built a gated wood fence between the two houses, effectively blocking access to that area. At first, Bachelier told Diaz he would give him a key to the gate. However, according to Diaz, Bachelier later refused and said he "d[idn't] want [Diaz] back there."

¶3 In 2005, Bachelier started building a shed on the southwest corner of his property. Bachelier used an existing adobe wall near the property line as one of the walls of the shed. Diaz confronted Bachelier about the shed because he thought it encroached on his property. In response, Bachelier trimmed back the roof of the shed to the edge of the adobe wall. According to Diaz, he saw a "Stop Work Order" posted on the shed because no permit had been issued for its construction.³

¶4 In August 2005, Diaz filed a lawsuit against Bachelier seeking monetary damages for (1) the "fence and gate" because they blocked access to his property and prevented him from doing maintenance and (2) the "structure on top of [the] adobe retaining wall" because it was unsafe and encroached on his property. However, that case was dismissed without prejudice "for lack of prosecution" in June 2009, after Diaz had sold the property. In 2011, however, Diaz repurchased the property at a sheriff's sale and titled it in the name of his trust.

¶5 In May 2012, Diaz initiated this lawsuit. He alleged that both the fence and the shed constituted nuisances and continuing trespasses. Diaz sought a declaratory judgment that Bachelier was adversely possessing Diaz's property and to quiet title to his own property. Through a survey of the properties that Diaz had obtained during the litigation, he learned "the actual boundary line did not match [his] use from 1991 to October 2003." His house nearly abutted his northern property line, with less than a foot of setback in some places. Consequently, he sought to amend hiscomplaint to include a claim for "a varying 5 to 10 foot ingress/egress easement" across the southern border of the Bachelier property, primarily so he could access the north side of his house for maintenance.⁴

¶6 A one-day bench trial was held. Alex Kory, a civil engineer, testified that, based on the survey, the gated wood fence was encroaching on Diaz's property. He also stated the adobe wall was on Diaz's property and, consequently, the shed's wall and roof, which were built on top of the adobe wall, were encroaching on his property. In addition, Kory prepared a report detailing various structural safety concerns with the shed.

¶7 In its under-advisement ruling, the trial court denied the relief sought by Diaz. Diaz filed a motion for a new trial or to amend the judgment, which the court denied without ordering a response or holding a hearing. This appeal followed.⁵ We have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 12-2101(A)(1), (5)(a).

Nuisance

¶8 Diaz first challenges the trial court's denial of his nuisance claim for the construction of the shed. The court summarily concluded that "the equitable relief sought by [Diaz] is barred by laches."⁶ We review a ruling on laches for an abuse ofdiscretion. Rash v. Town of Mammoth, 233 Ariz. 577, ¶ 17, 315 P.3d 1234, 1240 (App. 2013). "Generally, a court abuses its discretion where the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision." Files v. Bernal, 200 Ariz. 64, ¶ 2, 22 P.3d 57, 58 (App. 2001).

¶9 Laches "is an equitable counterpart to the statute of limitations, designed to discourage dilatory conduct." Sotomayor v. Burns, 199 Ariz. 81, ¶ 6, 13 P.3d 1198, 1200 (2000). It "requires a lack of diligence on the part of the plaintiff and injury or prejudice to the defendant due to such lack of diligence." Leon v. Byus, 115 Ariz. 451, 453, 565 P.2d 1312, 1314 (App. 1977).

¶10 Diaz argues "[i]t was inappropriate for the [t]rial [c]ourt to use the laches defense" because "[i]t was never noticed, never disclosed and never litigated." He also contends "[t]here was no showing of a lack of diligence" or "prejudice as a result of any delay." We agree.

¶11 Laches is an affirmative defense. Flynn v. Rogers, 172 Ariz. 62, 66, 834 P.2d 148, 152 (1992). An answer to a complaint must set forth "any . . . matter constituting an avoidance or affirmative defense." Ariz. R. Civ. P. 8(c); see also Ariz. R. Civ. P. 12(b) (every defense shall be asserted in responsive pleading). "[I]t is the defendant's duty to plead and prove [laches]." Jerger v. Rubin, 106 Ariz. 114, 117, 471 P.2d 726, 729 (1970). "Defenses omitted from an answer or Rule 12 motion are . . . waived." City of Phoenix v. Fields, 219 Ariz. 568, ¶ 27, 201 P.3d 529, 535 (2009).

¶12 Here, Bachelier did not allege laches as an affirmative defense in his answer to Diaz's complaint, nor did he raise it in any subsequent motion. It therefore was waived. Moreover, laches was not discussed at trial. Consequently, even if Bachelier had properly raised the defense, he did not meet his burden of proving Diaz's lack of diligence in asserting the claim or that Bachelier had been prejudiced by the delay. The trial court therefore erred by denying relief on the basis of laches. See Files, 200 Ariz. 64, ¶ 2, 22 P.3d at 58; see also In re Guardianship of Stanfield, 276 P.3d 989, 1001 (Okla. 2012)("A court generally may not raise sua sponte a nonjurisdictional affirmative defense such as laches.").

¶13 Because the trial court relied on the defense of laches, it did not consider the merits of Diaz's nuisance claim for the shed. Without any guidance from the trial court, we would be forced to weigh the evidence on appeal in the first instance—something we will not do. See Pugh v. Cook, 153 Ariz. 246, 247, 735 P.2d 856, 857 (App. 1987). We therefore vacate the portion of the court's ruling relating to Diaz's nuisance claim for the shed and remand for further proceedings.

Trespass

¶14 Diaz next argues the trial court's denial of his trespass claim "was arbitrary and not exercised according to reason, the uncontroverted evidence and the law." We defer to the trial court's findings of fact unless clearly erroneous but review its legal conclusions de novo. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶ 9, 156 P.3d 1149, 1152 (App. 2007). We can "affirm the trial court's ruling if it is correct for any reason apparent in the record." Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9, 130 P.3d 538, 540 (App. 2006).

¶15 In its under-advisement ruling, the trial court addressed Diaz's claims of continuing trespass for the fence and the shed together. In denying relief, the court explained: "[Diaz] bear[s] the burden of establishing [Bachelier] ha[s] trespassed as an intentional tort. However, [Diaz's] trial brief and the evidence at trial established that the property boundaries and surveys have changed since original ownership and boundaries were established."

¶16 Diaz first points out that his survey was the only one admitted at trial and that it showed encroachments on his property by both the fence and the shed. He contends Kory testified consistently with the survey and Bachelier offered no evidence to contradict it. He therefore reasons that the trial court's "ruling based upon 'changing boundaries and surveys' [was] . . . contradictory and ill-founded."

¶17 To the extent Diaz maintains the trial court was bound by his survey because it was "uncontroverted," he is mistaken. A trial court is not "bound to accept as true the [evidence] of disinterested witnesses unless in the whole case there are no circumstances or matters which cast suspicion upon or impair its accuracy." In re Wainola's Estate, 79 Ariz. 342, 346, 289 P.2d 692, 695 (1955). Here, Diaz did not call the surveyor as a witness at trial. Although Kory testified he relied on the survey and would have used the same procedure as the...