Pleak v. ENTRADA PROPERTY OWNERS'ASSN.

• Decision Date: 25 July 2003
• Docket Number: No. 2 CA-CV 2001-0100.,2 CA-CV 2001-0100.
• Citation: 205 Ariz. 471,73 P.3d 602
• Parties: Robin R. PLEAK and Audrey Pleak, husband and wife; and Michael T. Shurtliff and Ann Shurtliff, husband and wife, Plaintiffs/Appellants, v. ENTRADA PROPERTY OWNERS' ASSOCIATION, an Arizona non-profit corporation; Palo Seco Corporation, an Arizona corporation; Betty C. Britton, an unmarried woman; Juan A. Somoza, an unmarried man; Tres Piedras, L.L.C., an Arizona limited liability corporation; Steve V. Thill, an unmarried man; Cindy D. Begner, an unmarried woman; Edna C. Stack, an unmarried woman; Caroline Dodge, a married woman; Mary R. Derrick, an unmarried woman; Fleet Mortgage Corp., a South Carolina corporation; Detlef D. Lange and Sally F. Lange, husband and wife; BGR, L.L.C., an Arizona limited liability company; and Morton R. Rosen, a widower, Defendants/Appellees.
• Court: Arizona Court of Appeals

73 P.3d 602

205 Ariz. 471

Robin R. PLEAK and Audrey Pleak, husband and wife; and Michael T. Shurtliff and Ann Shurtliff, husband and wife, Plaintiffs/Appellants, v. ENTRADA PROPERTY OWNERS' ASSOCIATION, an Arizona non-profit corporation; Palo Seco Corporation, an Arizona corporation; Betty C. Britton, an unmarried woman; Juan A. Somoza, an unmarried man; Tres Piedras, L.L.C., an Arizona limited liability corporation; Steve V. Thill, an unmarried man; Cindy D. Begner, an unmarried woman; Edna C. Stack, an unmarried woman; Caroline Dodge, a married woman; Mary R. Derrick, an unmarried woman; Fleet Mortgage Corp., a South Carolina corporation; Detlef D. Lange and Sally F. Lange, husband and wife; BGR, L.L.C., an Arizona limited liability company; and Morton R. Rosen, a widower, Defendants/Appellees.

No. -0100.

Court of Appeals of Arizona, Division Two, Department B.

July 25, 2003.

Gust Rosenfeld P.L.C., By Charles W. Wirken, Phoenix, for Plaintiffs/Appellants.

Law Office of Mark Rubin, P.L.C., By Mark Rubin, Tucson, for Defendants/Appellees.

Mariscal, Weeks, McIntyre, & Friedlander, P.A., By P. Bruce Converse and Gary L. Birnbaum, Phoenix, for Amicus Curiae Land Title Association of Arizona.

OPINION

ESPINOSA, Chief Judge.

¶ 1 Plaintiffs Robin and Audrey Pleak and Michael and Ann Shurtliff (collectively, the Pleaks) filed this action seeking a roadway easement over real property the defendants (collectively, Entrada) own or hold liens against. The Pleaks appeal from the trial court's order denying their motion for summary judgment and granting partial summary judgment in favor of Entrada, arguing Entrada's predecessor in interest, First American Title Insurance Company of Arizona, dedicated the easement to the public. The Pleaks further claim the trial court erred in awarding Entrada attorney's fees pursuant to A.R.S. § 12-341.01. We agree First American dedicated the roadway easement to the public and reverse the judgment.

Facts and Procedural History

¶ 2 In reviewing a grant of summary judgment, we view the facts and all reasonable inferences in the light most favorable to the party opposing the motion. Link v. Pima County, 193 Ariz. 336, 972 P.2d 669 (App. 1998). On June 3, 1988, First American recorded a "Record of Survey" on three adjacent sections of real property in rural Pima County comprising the Entrada property. The survey divided each section into sixteen, forty-acre parcels and depicted an easement, later named Kolb Road by the county, along the eastern edge of the aligned sections. The one-page survey also contained a "Grant of Roadway and Utility Easement" stating, "First American Title Insurance Company of Arizona, an Arizona corporation, as Trustee, the owner of record of the property included in the easements shown hereon[,] hereby dedicate[s] these easements to the public for the use as such." A First American officer attested the survey.

¶ 3 The Pleaks, who own real property in a section abutting the eastern edge of the Entrada property, filed a three-count complaint requesting the trial court to declare that First American had dedicated the Kolb Road easement to the public, quiet title in the roadway "in trust for the public," and permanently enjoin Entrada from interfering with the Pleaks' use of the Kolb Road easement.¹ They also alleged the survey "constitute[d] a contract, express or implied, between [First American] and Pima County and members of the public" and argued, "as the successful parties in this action, [they were] entitled to recover their attorneys' fees pursuant to A.R.S. § 12-341.01." The Pleaks also requested attorney's fees pursuant to A.R.S. § 12-1103. Entrada filed a counterclaim asking the trial court to quiet title in the easement "as a private road" and to enjoin the Pleaks from using it.

¶ 4 The Pleaks moved for summary judgment, contending that First American had dedicated the easement to the public, both statutorily and pursuant to common law. Entrada filed a cross-motion for summary judgment. The trial court granted partial summary judgment in favor of Entrada on count one, finding that the survey did not constitute a statutory dedication of the roadway to the public and that, although First American had intended to dedicate the easement to the public, because the dedication had never been accepted, no common law dedication had occurred. The court also awarded Entrada their attorney's fees. After the court denied the Pleaks' motion for reconsideration, they appealed.

Statutory Dedication

¶ 5 Summary judgment is proper if the evidence presented by the party opposing the motion has so little probative value, given the required burden of proof, that reasonable jurors could not agree with the opposing party's conclusions. Ariz. R. Civ. P. 56(c)(1), 16 A.R.S., Pt. 2; Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990). In reviewing a grant of summary judgment, we determine de novo whether any genuine issues of material fact exist and whether the trial court erred in applying the law. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 965 P.2d 47 (App.1998).

¶ 6 We first address the Pleaks' contention that summary judgment was erroneous because the survey constituted a statutory dedication of the roadway. The Pleaks admit the survey does not meet the requirements of A.R.S. § 11-806.01 as a plat depicting a subdivision under the county's jurisdiction, see A.R.S. § 32-2101(54) (defining "subdivision"), but contend the survey fulfills the requirements of A.R.S. § 9-254. That section provides:

Upon filing a map or plat, the fee of the streets, alleys, avenues, highways, parks and other parcels of ground reserved therein to the use of the public vests in the town, in trust, for the uses therein expressed. If the town is not incorporated, then the fee vests in the county until the town becomes incorporated.

Whether the statute can serve as the basis for any dedication of the easement here is a question of law subject to our de novo review. See State v. C & H Nationwide, Inc., 179 Ariz. 164, 876 P.2d 1199 (App.1994).

¶ 7 Our principal goal in interpreting a statute is to discern legislative intent. Moore v. Browning, 203 Ariz. 102, 50 P.3d 852 (App.2002). The clearest indication of legislative intent is a statute's language. Lowing v. Allstate Ins. Co., 176 Ariz. 101, 859 P.2d 724 (1993). But we may nonetheless limit the scope of an otherwise unambiguous statute to conform to the statutory scheme in which the statute is found. See Estate of Hernandez v. Arizona Bd. of Regents, 177 Ariz. 244, 866 P.2d 1330 (1994); Ruth Fisher Elementary Sch. Dist. v. Buckeye Union High Sch. Dist., 202 Ariz. 107, 41 P.3d 645 (App.2002). And, although title and section headings of statutes are not law, we may look to them for guidance. Florez v. Sargeant, 185 Ariz. 521, 917 P.2d 250 (1996).

¶ 8 Section 9-254 lies within Title 9 (titled "Cities and Towns"), Chapter 2 (titled "Form of Government"), Article 3 (titled "Town Incorporated under Common Council Government"). Section 9-251, A.R.S., provides in part, "[w]hen a town is laid out, the proprietors of the town shall cause to be made an accurate plat or map thereof ...." The maps required under § 9-251 must be acknowledged and filed with the county recorder and with the town clerk. A.R.S. § 9-252. These headings and statutes clearly encompass only issues affecting cities and towns and strongly suggest the legislature did not intend § 9-254 to apply to land such as Entrada's, which lies entirely outside the shadow of any municipality's corporate boundaries.

¶ 9 Our supreme court reached this same result with respect to § 9-254's predecessor statute in County of Yuma v. Leidendeker, 81 Ariz. 208, 303 P.2d 531 (1956).² There, the owner of a forty-acre parcel had recorded a plat that subdivided a property into ten blocks. A reference on the plat stated one block was dedicated to the public for use as a park. Over forty years later, the block's successor owner sought to have the dedication declared ineffective or the public's interest deemed abandoned. In addressing the applicability of § 9-254's predecessor, the supreme court concluded that, based on the statutory scheme, the legislature had intended it to apply only to property either within a municipality or adjacent to and part of a proposed addition thereto. Because the property had been neither at the time the plat was recorded, the court held the statute did not apply. As in Leidendeker, the record here does not show that, when First American recorded the survey, Entrada's property lay either within a municipality or a proposed addition to a municipality. We therefore conclude § 9-254 is not a viable basis for finding a statutory dedication of Entrada's property.

Common Law Dedication

¶ 10 The Pleaks alternatively ask us to find that the survey established a common law dedication of the Kolb Road easement to the public. Such a "[d]edication is the intentional appropriation of land by the owner to some proper public use." Allied Am. Inv. Co. v. Pettit, 65 Ariz. 283, 287, 179 P.2d 437, 439 (1947). "The right conferred by common law dedication is only an easement." 26 C.J.S. Dedication § 2 (1991); see also Moeur v. City of Tempe, 3 Ariz.App. 196, 412 P.2d 878 (1966). "An intent to dedicate must be clearly shown and the burden of proof of establishing a dedication is on the one asserting it." Lacer v. Navajo County, 141 Ariz. 396, 402, 687 P.2d 404, 410 (App.1983).

¶ 11 Entrada contends Arizona courts no longer recognize common law dedication of roadway easements, citing Burlington Northern & Santa Fe Railway Co. v. Arizona Corp. Commission, 198 Ariz. 604, 12 P.3d 1208 (App.2000). The Pleaks point out that Entrada failed to raise this argument before the trial court, suggesting it is therefore waived on appeal. See Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 955 P.2d 3 (App.1997). We nevertheless exercise our discretion to address it because it is an...