Speros v. Yu

• Court: Arizona Court of Appeals
• Writing for the Court: IRVINE.
• Citation: Speros v. Yu, 207 Ariz. 153, 83 P.3d 1094 (Ariz. App. 2004)
• Decision Date: 03 February 2004
• Docket Number: No. 1 CA-CV 02-0736.,1 CA-CV 02-0736.
• Parties: James D. SPEROS, a married man, dealing with his sole and separate property, Plaintiff-Appellant, v. Kristine J.P. YU, a/k/a Kristine Yu and John Doe Yu, wife and husband, Defendants-Appellees. Kristine J.P. Yu, a/k/a Kristine Yu, a/k/a Kristine Yu, a single woman, Counterclaimant-Appellee, v. James D. Speros and Jane Doe Speros, husband and wife, and Sky King, Inc., an Arizona corporation, Counterdefendants-Appellants.

83 P.3d 1094

207 Ariz. 153

James D. SPEROS, a married man, dealing with his sole and separate property, Plaintiff-Appellant, v. Kristine J.P. YU, a/k/a Kristine Yu and John Doe Yu, wife and husband, Defendants-Appellees.

Kristine J.P. Yu, a/k/a Kristine Yu, a/k/a Kristine Yu, a single woman, Counterclaimant-Appellee, v. James D. Speros and Jane Doe Speros, husband and wife, and Sky King, Inc., an Arizona corporation, Counterdefendants-Appellants.

No. -0736.

Court of Appeals of Arizona, Division 1, Department E.

February 3, 2004.

Gust Rosenfeld, P.L.C. By Charles W. Wirken and Scott A. Malm, Phoenix, Attorneys for Appellant.

Steptoe & Johnson, LLP By Bennett Evan Cooper and Stacey F. Gottlieb, Phoenix, Attorneys for Appellee.

OPINION

IRVINE, Judge.

¶ 1 James Speros appeals the trial court's summary judgment awarding a portion of an alley known as the "South Alley" to Kristine Yu.¹ We hold that the trial court correctly found that the South Alley was not "the exterior boundary of a subdivision or other tract of land," so title to the abandoned alley was properly divided between the owners of the abutting lands. Therefore, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 This action arises out of a dispute regarding the South Alley, which separates Speros's and Yu's lots within the Hood Homes Subdivision. The Hood Homes Subdivision was originally developed in 1947. The original plan divided land north of Northern Avenue and east of 12th Street. Lots 1, 2, 11 and 12 faced Northern Avenue. A north-south alley ran between Lots 2 and 11, and continued north through the subdivision. Lot 10 was to the north of both Lots 11 and 12, and east of the alley. Lot 9 was north of Lot 10. Lot 3 was to the north of both Lots 1 and 2, and west of the alley. The portion of the north-south alley lying between Lots 3 and 10 was referred to below as the West Alley.

¶ 3 In 1955, the owners of Lots 10, 11 and 12, the Hartes, quit-claimed to Maricopa County the south twenty feet of Lot 10 (referred to below as the South Alley) and the northwest corner of Lot 11 (the Triangle Alley) for alley purposes, and the south seven feet of Lots 11 and 12 for roadway purposes.² The City of Phoenix acquired ownership of the South Alley in 1958 when it annexed the entire area.³

¶ 4 In 1981, Kwock Fai ("Bill") Yu purchased Lots 9, 10, and 12, as well as the east 20.48 feet ("the east strip") of Lot 11. In 1991, Bill Yu quit-claimed all of this property to the appellee, Kristine Yu ("Yu"). Yu simultaneously took over the ownership and operation of an already existing Chinese restaurant located on Lot 12. Like the restaurant's prior owners, Yu continued to use both the South Alley and the east strip of Lot 11 in conjunction with restaurant operations.

¶ 5 In 1997, Yu conveyed Lots 9 and 10 to Speros's company, Sky King, Inc., which already owned the west part of Lot 11. Yu believed that Schedule B to the deed preserved her right to use the South Alley, and she continued to use the South Alley accordingly. The parties agree that this conveyance did not affect Yu's continued ownership and use of the east strip of Lot 11.

¶ 6 In July of 2000, the Phoenix City Council adopted a resolution abandoning the South Alley, West Alley, Triangle Alley, and southeast corner of Lot 3. In September of 2000, Sky King conveyed Lots 9, 10, and its portion of Lot 11 to Speros.

¶ 7 In January of 2001, the City of Phoenix quit-claimed the South Alley, east half of the West Alley, and the Triangle Alley to Speros. Two months later, Speros notified Yu of the quit-claim and ordered Yu to remove all improvements from the South Alley and to refrain from further use of the South Alley. Yu refused, and Speros sued to quiet title to the South Alley. Yu counterclaimed, requesting quiet title to the entire south half of the South Alley. In the alternative, Yu claimed a private way of necessity and prescriptive easement in the South Alley.

¶ 8 In summary judgment pleadings, Yu did not seriously dispute Speros's ownership of the Triangle Alley or east half of the West Alley. The major dispute was over ownership of the South Alley. Following a hearing on Speros's motion for summary judgment, the trial court ordered that the entire north half of the South Alley and the portion of the South Alley adjacent to Speros's portion of Lot 11 be awarded to Speros. The court awarded the southern ten feet of the South Alley that was adjacent to Lot 12 and Yu's portion of Lot 11 to Yu. Following the trial court's denial of Speros's motion for reconsideration and the entry of final judgment, Speros timely appealed.⁴ This Court has jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(B) (2003).

DISCUSSION

¶ 9 The sole issue in this appeal is the trial court's method of dividing the South Alley. Speros argues that he is entitled to ownership of the entire South Alley and that the trial court applied the incorrect subsection of Phoenix City Code ("P.C.C.") section 31-64(c) (2001) in making its determination. He argues that the court should have applied subsection (c)(1), rather than subsection (c)(3).

¶ 10 In response, Yu contends that the trial court appropriately divided the South Alley by applying subsection (c)(3). Yu also argues that the trial court's order avoids a "miscarriage of justice" by ensuring that Yu can continue to operate her restaurant via access to the South Alley. The record reflects that Yu's restaurant accesses its utilities, water, and sewage from sources located in or beneath the alley and that the restaurant's emergency exit and deliveries also filter into the alley. Cutting off all alley access would seemingly render Yu's business inoperable. Yu argues such a result would be contrary to the general purposes of the legal regulation of subdivisions, which include the insuring of "adequate streets, utilities ... and livable surroundings." Transamerica Title Ins. Co. v. Cochise County, 26 Ariz.App. 323, 327, 548 P.2d 416, 420 (1976). For these reasons, Yu asks us to affirm.

¶ 11 Because this appeal presents a pure question of law, we review de novo the trial court's decision. See Files v. Bernal, 200 Ariz. 64, 66, ¶ 2, 22 P.3d 57, 59 (App.2001) ("Because the superior court's decision in this case involved the interpretation of an ordinance, we review that interpretation de novo.").

¶ 12 Phoenix City Code § 31-64(c) provides as follows:

When in the discretion of the City Council a public roadway owned by the City, or a portion of such roadway, is no longer necessary for public use as a roadway, the City Council may dispose of or use the same as follows:

...

(c) The City Council may resolve that such roadway or portion thereof be vacated, and thereupon title to such roadway or portion thereof shall vest, subject to the same encumbrances, liens, limitations, restrictions, and estates as exist on the land to which it accrues, as follows:

(1) In the event that a roadway which constitutes the exterior boundary of a subdivision or other tract of land is vacated, title to the roadway shall vest in the owners of the land abutting the vacated roadway to the same extent that the land included within the roadway, at the time the roadway was acquired for public use, was a part of the subdivided land or was a part of the adjacent land.

(2) In the event that less than the entire width of the roadway is vacated, title to the vacated portion shall vest in the owners of the land abutting such vacated portion.

(3) In the event that a roadway bounded by straight lines is vacated, title to the vacated roadway shall vest in the owners of the abutting land, each abutting owner taking to the center of the roadway, except as provided in paragraphs (1) and (2) of this subsection. In the event that the boundary lines of abutting lands do not intersect such roadway at a right angle, the land included within such roadway shall vest as provided in paragraph (4) of this subsection.

(4) In all instances not specifically provided for, title to the vacated roadway shall vest in the owners of the abutting land, each abutting owner taking that portion of the vacated roadway to which his land, or any part thereof, is nearest in proximity.

(5) No portion of a roadway upon vacation shall accrue to an abutting roadway.⁵

¶ 13 The critical issue here turns on the phrase in subsection (c)(1), "exterior boundary of a subdivision or other tract of land." The parties agree that the South Alley is not the exterior boundary of a subdivision. Nevertheless, Speros contends that the South Alley constitutes an "exterior boundary of a ... tract of land" so the trial court erred by applying subsection (c)(3) instead of (c)(1) in dividing the South Alley. By its terms, subsection (c)(3), which divides an abandoned roadway between the owners of the abutting land, does not apply when subsection (c)(1) applies.

¶ 14 Speros argues that a "tract" includes a "lot," citing the Phoenix City Code's definition in its subdivision ordinance of "lot" as "piece, tract, or parcel of land separated from other pieces or parcels by description, as in a subdivision or on a record survey map, or by metes and bounds, for purposes of sale, lease, or separate use and abutting or having legal access to a public street." P.C.C. § 32-3 (2001). Because Lot 10 is by definition a tract of land, Speros maintains, "the only remaining question is whether the South Alley was the exterior boundary of Lot 10 at the time that the South Alley was acquired for public use." He asserts this is apparent because the Hartes transferred the south twenty feet of the lot. Speros believes that the trial court's conclusion that the South Alley was an interior boundary of the subdivision incorrectly eliminates from the statute the term "other tract of land," and that (c)(1) applies to any tract of land, even within a subdivision. He further argues that "exterior" has no independent meaning, so the only issue is whether a roadway is...