Kadlec v. Dorsey
| Decision Date | 30 September 2013 |
| Docket Number | 2 CA-CV 2013-0020 |
| Parties | PAUL KADLEC and RACHEL KADLEC, husband and wife; and DUANE HOWELL and BRENDA HOWELL, husband and wife, Plaintiffs/Appellants, v. DANIEL DORSEY and SHERRI DORSEY, husband and wife, Defendants/Appellees. |
| Court | Arizona Court of Appeals |
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24.
Not for Publication Rule 28, Rules of Civil Appellate Procedure
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
REVERSED AND REMANDED
Vernon E. Peltz
Tucson
Attorney for Plaintiffs/Appellants
Hinderaker Rauh & Weisman, P.L.C.
By Adam Weisman and Robert Rauh
Tucson
Attorneys for Defendants/Appellees
¶1 In this real property dispute, appellants Paul and Rachel Kadlec and Duane and Brenda Howell (collectively "the Kadlecs") appeal from the trial court's judgment in favor of appellees Daniel and Sherri Dorsey on the Dorseys' quiet title claim. On appeal, the Kadlecs argue the court erred by: (1) finding they had not established a prescriptive easement by adverse use or by imperfectly created servitude; (2) allowing the Dorseys to amend their answer to include a counterclaim seeking quiet title; and, (3) awarding attorney fees to the Dorseys pursuant to A.R.S. § 12-1103(B). For the reasons stated below, we reverse the court's judgment and remand for proceedings consistent with this decision.
¶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). Richard Turigliatto owned forty acres of undeveloped land south of Tucson, which he split into three parcels. A dirt roadway, referred to by the parties as Rega Road, passed through all three parcels, connecting with public roads at either end. Turigliatto conveyed all three parcels subject to the Rega Road easement. In 1995, he conveyed the central parcel to Jonathan Perkins "subject to an undefined easement as shown in [the survey of Rega Road] attached [to the deed as] Exhibit 'B.'"
¶3 Howell and Kadlec own property nearby. Howell began using Rega Road when he acquired his property in November 1990. Kadlec's predecessor, Felix Lucero, began using the roadway shortly after acquiring his property in October 1994, and Kadlec continued using Rega Road after he purchased the property in September 1999.
¶4 In 2006, Dorsey purchased the central parcel from Perkins' successor-in-interest, Laura Bradley. Although the deed provided that the property was being conveyed subject to "all easements [and] rights-of-way . . . as may appear of record," Bradley told Dorsey that Rega Road was a "private road," which belonged to "whoever owned the property." Later that year, Dorsey blocked access to Rega Road. The Kadlecs filed this action, alleging among other things that they had an easement by prescription and seeking a declaratory judgment that they had "the right to the reasonable use and enjoyment of the right-of-way easement across the Dorsey Property known as Rega Road."1
¶5 The Kadlecs moved for partial summary judgment, arguing the Dorsey property "was subject to a recorded easement," pursuant to the 1995 Turigliatto deed to Perkins. In a cross-motion for partial summary judgment, the Dorseys argued that because Turigliatto never identified a beneficiary of the easement, he intended only to retain an easement "for the benefit of his own remaining properties." The trial court granted the Kadlecs' motion, concluding "the Turigliatto deed must be read to permit ingress and egress over the road without limitation to any particular beneficiary." On appeal, this court affirmed. Kadlec v. Dorsey, 223 Ariz. 330, ¶ 10, 223 P.3d 674, 677 (App. 2009). Our supreme court, however, vacated our decision and remanded the case to the trial court. Kadlec v. Dorsey, 224 Ariz. 551, ¶ 13, 233 P.3d 1130, 1132 (2010).
¶6 After a bench trial, the trial court issued its under-advisement ruling, finding the Kadlecs had failed to prove an easement by prescription by clear and convincing evidence and quieting title in favor of the Dorseys. In relevant part, the court explained:
The weight of the evidence supports finding that Rega Road was an easement of necessity until July 1996, when [the Dorseys' predecessor,] . . . Perkins, built Mountain Canyon Road [to the south.] . . . Necessity is not prescription. Further, the evidence supports the conclusion that . . . Perkins blocked the road with berms for at least several days in July 1996, significantly interrupting any prescriptive period that allegedly began before that time. Notably, . . . Perkins' testimony establishes that he intended to stop people from using Rega Road. See Higginbotham v Kuehn, 102 Ariz. 37, 39, 424 P.2d 165, 167 (1967) (). Further, the Court does not believe . . . Perkins removed the berms the same day he installed them. In summary, the Court concludes that, due to necessity and/or . . . Perkins installing the berms, any period of prescription did not begin to run until July 1996 at the earliest.
The court therefore concluded that the Kadlecs had failed to establish a prescriptive use for ten years because "Dorsey gated the property less than ten years after . . . Perkins removed the berms." The court also rejected the Kadlecs' argument that they were the beneficiaries of an imperfectly created easement pursuant to the 1995 Turigliatto deed to Perkins.
¶7 In November 2012, the trial court entered judgment in favor of the Dorseys on their quiet title claim, awarding them costs and attorney fees pursuant to § 12-1103(B). This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 12-2101(A)(1).
¶8 We view the facts in the light most favorable to sustaining the trial court's ruling, Bennett v. Baxter Grp., 223 Ariz. 414, ¶ 2, 224 P.3d 230, 233 (App. 2010), and are bound by the court's findings of fact unless they are clearly erroneous, Sabino Town & Country Estates Ass'n v. Carr, 186 Ariz. 146, 149, 920 P.2d 26, 29 (App. 1996). A finding of fact is not clearly erroneous if substantial evidence supports it. City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 58, 181 P.3d 219, 236 (App. 2008). We review de novo a trial court's conclusions of law. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶ 9, 156 P.3d 1149, 1152 (App. 2007); see also Sabino Town & Country, 186 Ariz. at 149, 920 P.2d at 29. And, an error of law in the process of exercising discretion may constitute an abuse of discretion. Salvation Army v. Bryson, 229 Ariz. 204, ¶ 8, 273 P.3d 656, 659 (App. 2012).
¶9 Generally, a party may obtain an easement by prescription if it can establish "'that the land in question has actually and visibly been used for ten years, that the use began and continued under a claim of right, and [that] the use was hostile to the title of the true owner.'" Paxson v. Glovitz, 203 Ariz. 63, ¶ 22, 50 P.3d 420, 424 (App. 2002), quoting Harambasic v. Owens, 186 Ariz. 159, 160, 920 P.2d 39, 40 (App. 1996) (alteration in Paxson). Although a showing of mere use is not sufficient, if the claimant proves by clear and convincing evidence "open, visible, continuous, and unmolested use of the land" for at least ten years, the use is presumptively hostile and under a claim of right. Harambasic, 186 Ariz. at 160-61, 920 P.2d at 40-41; Inch v. McPherson, 176 Ariz.132, 135-36, 859 P.2d 755, 758-59 (App. 1992). The burden then shifts to the owner to rebut the presumption by a showing that the use was permissive. Harambasic, 186 Ariz. at 161, 920 P.2d at 41.
¶10 The Kadlecs argue the trial court erred by concluding their use of Rega Road prior to July 1996 was an easement by necessity that defeated their claim of a prescriptive easement. In its under-advisement ruling, the court stated that "[t]he weight of the evidence supports finding that Rega Road was an easement of necessity until July 1996, when . . . Perkins built Mountain Canyon Road." The court noted that "[u]se by necessity is typically not adverse because the user has some justification for use other than a claim that is hostile to that of the true owner." In support of its ruling, the court relied upon the Restatement (Third) of Property (Servitudes) §§ 2.16 cmt. f and 2.17 cmt. h, illus. 27.
¶11 On appeal, as they did below in their motion for reconsideration of the trial court's ruling, the Kadlecs point to several of the court's findings of fact they contend are inconsistent with an easement by necessity. Specifically, the court found that "[b]oth the Howell and Kadlec properties were sold subject to an easement over what is known as Mountain Canyon Road," and "Howell and Kadlec can access their property by Mountain Canyon Road and by Wolf Track Trail." The court also explicitly found that Howell and Kadlec "do not need Rega Road to access their properties." However, in ruling on the Kadlecs' motion for reconsideration of the judgment in favor of the Dorseys, the court "reject[ed their] assertion that its prior [r]uling include[d] a finding of legal necessity." The court explained that in using the word "necessity," it had meant that "Rega Road wasthe only safely practicable means certain users had to reach their respective properties prior to the improvement of Mountain Canyon Road in 1996." And, it stated that "[t]he use of a road simply because there is no other reasonably practicable means of physical access to one's property lessens the likelihood that the individual has the individual claim of right to use the road."
¶12 But, contrary to the trial court's reasoning, the legal principles underlying the parts of the Restatement...
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