State v. Sussex
| Decision Date | 18 March 2014 |
| Docket Number | No. 1 CA-CV 13-0009,1 CA-CV 13-0009 |
| Parties | STATE OF ARIZONA, by and through Maria Baier as State Land Commissioner, Plaintiff/Appellee/Cross-Appellant, v. STEPHEN SUSSEX, and VIRGINIA SUSSEX, husband and wife; CAHILL CONTRACTING, INC.; JUDY TROUTMAN, Defendants/Appellants/Cross-Appellees. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
The Honorable John Christian Rea, Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR
AWARD OF COSTS TO STATE OF ARIZONA
Arizona Attorney General's Office, Phoenix
By Paul A. Katz
Wilenchik & Bartness, Phoenix
By John D. Wilenchik
Farley, Robinson & Larsen, Phoenix
By Greg A. Robinson
Presiding Judge Donn Kessler delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Maurice Portley joined.
¶1 Stephen Sussex, Virginia Sussex, and Judy Troutman ("Appellants") appeal the trial court's order granting summary judgment in favor of the State. The State cross-appeals from both the jury instructions in its damages trial for trespass and the failure of the trial court to award it its costs and fees. For the following reasons, we affirm in part, reverse in part, and remand for award of costs to the State.
¶2 This appeal presents questions about the State's right to certain trust lands and whether the State can be barred by laches from seeking to quiet title to those lands as to persons claiming an interest in the lands. As such, we will briefly describe how the State was granted such trust lands, the chain of title to the lot at issue, and later, how both the federal government and Arizona limited the rights of third parties to claims on such lands based upon prior occupancy.
¶3 In 1850, Congress defined the boundaries and established a temporary government for the Territory of New Mexico. Organic Act Establishing the Territory of New Mexico, ch. 49, § 2, 9 Stat. 446 (1850). It further enacted that the lands be surveyed under the direction of the United States government, and that sections sixteen and thirty-six in eachtownship be reserved for common school use.1 Id. at § 15. Congress extended this reservation of common school land to the Territory of Arizona in 1863. An Act to Provide a Temporary Government for the Territory of Arizona, and for Other Purposes, ch. 56, § 2, 12 Stat. 664 (1863).
¶4 The property in dispute, Lot 1E, is located within a township's section sixteen and was approved by a federal survey in October 1868. In 1902, the federal government withdrew that section sixteen from sale, entry, or preemption in connection with the Salt River Reclamation Project.2 Instead of selecting land in lieu of the section sixteen, Arizona opted to wait for the land to be restored to the public domain and for title to vest in the State. See 43 U.S.C. § 851 ( ). In 1945, the Bureau of Land Management waived its rights to section sixteen and title vested in theState. In 1963, the federal government issued a patent to the State confirming the 1945 transfer.
¶5 Appellants claim to have an interest in Lot 1E because they and their ancestors allegedly have occupied the land since 1892. In an affidavit, Stephen Sussex declared that (1) according to family tradition and neighborhood reputation, his family has openly, obviously, and continuously possessed Lot 1E since before the turn of the century; and (2) based on his own personal knowledge, his family has possessed the land since the 1930s. Appellants did not produce any deeds or documents to support that assertion and later admitted that they could not produce such documentation.
¶6 According to State records, in 1930, Rosario Martinez, the great-grandmother of Stephen Sussex and Judy Troutman, filed an application for and was granted a lease to Lot 1E.3 In 1934, the State cancelled the lease for non-payment of annual rent.
¶7 In 1938, the Arizona State Land Department (the "Department") issued a commercial lease for lands, including Lot 1E, to Howard Van Horne. In his 1938 application and 1943 renewal request, Van Horne certified that there were no squatters, settlers, or other occupants on the land. Department records also indicate that Rosario Martinez's daughter, Belen Sussex, filed for a Homesite lease but her application was rejected in 1951.
¶8 In 1956, prior to public auction, the Department appraised Lot 1E and concluded that there were no reimbursable improvements on the land. The Department issued an amended appraisal eight months later to include $1510 in improvements claimed by Belen Sussex.4 Theland was then sold to Ernest C. Mohamed in 1956, and the Department sent the Sussex family $1510 to cover the value of improvements on the land sold. Belen Sussex also signed a form stating that as an interested party she had no objection to the amended appraisal and waived the thirty-day appeal period in connection with the decision. In 1971, Mohamed failed to make payments and the land was forfeited back to the State. Appellants allege that they continued to occupy the land. In 1986, Appellants leased Lot 1E to Cahill Contracting, Inc.
¶9 In 1988, the State announced the public auction of 59.46 acres of State Trust land, including Lot 1E. The land was sold to the City of Tempe for $21,363.35 per acre. The sale, however, was ultimately voided due to pending quiet title litigation with Southern Pacific Railroad. The railroad dispute was eventually resolved in 2002. According to Appellants, the Department did not demand possession of the land until 1992.
¶10 In 2005, the State filed a complaint against Appellants for trespass, quiet title, injunctive relief, and recovery of real property. The trial court granted the State summary judgment on the issues of title and present possession, and entered a judgment under Arizona Rule of Civil Procedure 54(b). Appellants appealed, but we dismissed that appeal because the judgment was improperly certified under Rule 54(b). On remand, the trial court granted the State summary judgment for common-law trespass. Following a three-day jury trial, the State was awarded $1500 in damages. The trial court then entered a new judgment.
¶11 Both Appellants and the State timely appealed from the final judgment. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (Supp. 2013).5
I. The Appeal
¶12 On appeal, Appellants argue that the trial court erred by granting summary judgment in favor of the State for quiet title and possession of the lot. Appellants limit the issues presented to three: (1) Did the trial court err in not barring the quiet title complaint for laches?;(2) Were Appellants entitled to judgment based on laches?; and (3) Did the trial court err in confirming the 1963 patent to the State because of lack of notice to Appellants?
¶13 The limited nature of the appeal creates a quandary for Appellants. The State contends that it is undisputed that it had clear title to the property based on the above facts. Despite referring to factual issues that might affect title, Appellants nowhere argue in the opening brief that the record showed they had any legal interest or claim to title of the lot except as might affect their right to notice of the 1963 patent. Nor do they dispute that one of the Sussex predecessors in interest agreed to waive all interest in the property upon the State paying the predecessor for damages to the property in 1956. Thus, Appellants have waived any argument as to disputed title. See ARCAP 13(a)(6) (); State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) ( ); Polanco v. Indus. Comm'n of Ariz., 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2 (App. 2007) ( ).
¶14 Accordingly, we consider the merits of the issues on appeal in light of the unappealed conclusion that the State had legal title to the property. We review the trial court's grant of summary judgment de novo, "determin[ing] independently whether there are any genuine issues of material fact and whether the trial court erred in its application of the law." Valder Law Offices v. Keenan Law Firm, 212 Ariz. 244, 249, ¶ 14, 129 P.3d 966, 971 (App. 2006). "[W]e view the evidence in a light most favorable to the party against whom judgment was granted," Desilva v. Baker, 208 Ariz. 597, 600, ¶ 10, 96 P.3d 1084, 1087 (App. 2004), but we will affirm the entry of summary judgment if it is correct for any reason, Hawkins v. State, 183 Ariz. 100, 103, 900 P.2d 1236, 1239 (App. 1995).
¶15 Appellants argue ...
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