Joynt v. Enders
| Decision Date | 30 March 2011 |
| Docket Number | 1 CA-CV 08-0047 |
| Parties | THOMAS P. JOYNT and JANE A. JOYNT, husband and wife, Plaintiffs/Counter-Defendants/ Appellees, v. GARY L. ENDERS and CHERYL L. ENDERS, husband and wife, Defendants/Counter-Claimants/ Appellants. |
| Court | Arizona Court of Appeals |
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
MEMORANDUM DECISION(Not for Publication-Rule 28, Arizona Rules of Civil Appellate Procedure)
The Honorable Paul A. Katz, Judge
¶1 Gary L. Enders and Cheryl L. Enders (the Enderses) appeal from the trial court's issuance of a preliminary injunction concerning the use and maintenance of an easement located on their property. The Enderses argue the trial court erred in enjoining them from maintaining and improving the easement and allowing Thomas P. Joynt and Jane A. Joynt (the Joynts) to use the easement for the benefit of land not part of the dominant estate. Additionally, the Enderses argue the court erred in holding them responsible for any necessary repairs to the Joynts' septic system and preventing the Enderses from granting use of the easement to third parties or successors in interest. For the reasons explained below, we affirm in part and vacate in part.
¶2 This appeal concerns an express easement between two neighboring properties in Navajo County, Arizona, with the dominant estate (Lot 28F) being owned by the Joynts, and the servient estate (Lot 28S) being owned by the Enderses. Initially, the Shepherds owned Lot 28S, which consists of 8.92 acres. The Joynts purchased Lot 28F, a two-acre parcel, in July 1994. On November 22, 1995, the Shepherds granted the Joynts a 65-foot wide access and utility easement over a portion of Lot28S for the benefit of Lot 28F. The easement runs along the western side of Lot 28S and provides, in relevant part:
¶3 The Shepherds constructed a roadway within the easement, which the Joynts paid for. Also within the easement is a driveway the Joynts use to access Lot 28F. A parking and turnaround area was created near the north end of the easement. Pursuant to the Shepherds' request, the Joynts installed a gate at the north end of the easement near the parking and turnaround area to prevent cars from going over a nearby cliff. The Joynts also installed a septic system further south within the easement. Additionally, the Joynts put up a chain just north of the septic tank line, blocking their driveway. The Shepherdsaccessed Lot 28S by a crossing over the southern portion of the easement.
¶4 In 1998, the Joynts acquired Lot 28N, a one-acre parcel directly south of Lot 28F. The Joynts placed a trailer on Lot 28N and made use of the septic system in the easement. Lots 28F and 28N were subsequently combined into one parcel, now known as Lot 2 8X.
¶5 The Enderses purchased Lot 28S from the Shepherds in May 2005. After the purchase, the Enderses removed trees from the easement and widened the roadway. The Enderses also removed the Joynts' gate and chain and installed three gates on the easement: a 24-foot wide locked rolling gate near the southern end of the easement, a 16-foot wide locked gate on the western boundary of the easement, and a 12-foot wide gate near the northern end of the easement on the western boundary. Keys for all gates were provided to the Joynts.1 Additionally, the Enderses installed a chain link fence along the western boundary of the easement.
¶6 On March 13, 2007, the Joynts filed a lawsuit against the Enderses for breach of contract and declaratory and injunctive relief, requesting the removal of all fencing andgates and for the Enderses to discontinue the use of the roadway and the installation of pipes, structures and utility lines within the easement. The Enderses counterclaimed for breach of easement, trespass, nuisance, declaratory and injunctive relief, alleging the Joynts connected the trailer on Lot 28N to the septic system without permission or authority. An evidentiary hearing was held on June 18, 2007, and continued on August 13. In between those dates, the Enderses dug up the Joynts' septic system and discovered a septic line leading directly to Lot 28N.
¶7 The court issued findings of fact and conclusions of law and granted a preliminary injunction enjoining the Enderses from altering the path of the roadway or placing obstacles within the roadway without the Joynts' consent; from locking the gates at certain times; and from granting use of the easement to third parties or successors in interest. Additionally, the Enderses were ordered to replace the locks on the gates with combination locks. Despite the Joynts' request to relocate the gates and fence to the eastern boundary of the easement, the court did not require any such relocation. The Enderses were also ordered to bear the cost of any necessary repairs or modifications to the Joynts' septic system. The court declined to award attorneys' fees and costs to either party. The Joynts filed a motion for reconsideration, which was subsequently denied. The Enderses timely appealed the preliminaryinjunction. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(F)(2).
¶8 As a preliminary matter, in their answering brief, the Joynts argue the trial court abused its discretion by approving the location of the fence, approving the 12-foot wide gate, and not awarding them attorneys' fees. The Joynts have not filed a cross-appeal. A cross-appeal is required if an appellee seeks to enlarge its rights or lessen the appellants' rights. Arizona Rule of Civil Appellate Procedure (ARCAP) 13(b)(3). Here, the issues raised by the Joynts seek to enlarge their rights and lessen the Enderses' rights by requesting a modification of the injunction in their favor, and seeking to obtain attorneys' fees. See Engel v. Landman, 221 Ariz. 504, 510, ¶ 17, 212 P.3d 842, 848 (App. 2009). Therefore, the Joynts were required to file a cross-appeal to raise these issues and we have no jurisdiction to consider them.
¶9 Additionally, the Joynts ask whether the court will abuse its discretion if it requires the Joynts to abandon the easement. The court did not require the Joynts to abandon the easement. Accordingly, we will not address this argument. See Velasco v. Mallory, 5 Ariz. App. 406, 410-11, 427 P.2d 540, 54445 (1967) ().
¶10 We review a trial court's issuance of a preliminary injunction for an abuse of discretion. Valley Med. Specialists v. Farber, 194 Ariz. 363, 366, 1 9, 982 P.2d 1277, 1280 (1999). An abuse of discretion occurs if the trial court applies incorrect substantive law or an incorrect standard for a preliminary injunction, bases its decision on a clearly erroneous factual finding, or applies the appropriate standard for a preliminary injunction in a manner resulting in an abuse of discretion. McCarthy W. Constructors, Inc. v. Phoenix Resort Corp., 169 Ariz. 520, 523, 821 P.2d 181, 184 (App. 1991). We are bound by the trial court's findings of fact unless clearly erroneous, but review conclusions of law de novo. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, 47, 156 P.3d 1149, 1152 (App. 2007). We view the evidence and all reasonable inferences in the light most favorable to sustaining the trial court's ruling. Inch v. McPherson, 176 Ariz. 132, 136, 859 P.2d 755, 759 (App. 1992).
¶11 A party seeking a preliminary injunction must establish: 1) a strong likelihood of success on the merits; 2) the possibility of irreparable harm if the injunction is notgranted; 3) the balance of hardships weighs in their favor; and 4) public policy favors granting the injunction. Shoen v. Shoen, 167 Ariz. 58, 63, 804 P.2d 787, 792 (App. 1990). This burden can be met by establishing 1) a probability of success on the merits and the possibility of irreparable harm or 2) the existence of serious questions and that "the balance of hardships tip sharply" in favor of the moving party. Id. (citing Justice v. Nat'l Collegiate Athletic Ass'n, 577 F.Supp. 356, 363 (D. Ariz. 1983)).
¶12 The Enderses first argue the trial court improperly expanded the easement by finding Lot 28N had a right to access the easement. It is undisputed the easement is for the benefit of Lot 28F...
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