TMS Ventures LLC v. Zachariah
| Decision Date | 18 February 2021 |
| Docket Number | No. 1 CA-CV 19-0388 (Consolidated),No. 1 CA-CV 18-0712,1 CA-CV 18-0712,1 CA-CV 19-0388 (Consolidated) |
| Parties | TMS VENTURES LLC, Plaintiff/Appellee/Cross-Appellant, v. TERESA C. ZACHARIAH, et al., Defendants/Appellants/Cross-Appellees. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Pamela S. Gates, Judge
REVERSED IN PART; VACATED AND REMANDED IN PART
By Daryl Manhart, Andrew Abraham, Bryan F. Murphy, Casey S. Blais
Beus Gilbert McGroder, PLLC, Phoenix
By Cory L. Broadbent, Cassandra H. Ayres
Co-Counsel for Plaintiff/Appellee/Cross-Appellant
Osborn Maledon, P.A., Phoenix
By Eric M. Fraser, Jeffrey B. Molinar
By Francis J. Slavin, Daniel J. Slavin, Jessica L. Dorvinen
Judge D. Steven Williams delivered the decision of the Court, in which Presiding Judge Michael J. Brown and Chief Judge Peter B. Swann joined.
¶1 Appellants Teresa and Joseph Zachariah, Ingrid and Alfred Harrison as trustees of the Ingrid Lenz Harrison Revocable Trust, and Roseanne Appel (collectively, "the Neighbors") appeal the superior court's ruling that Appellee TMS Ventures, LLC ("TMS") established a common law dedication of an easement traversing portions of their properties to reach its property. TMS cross-appeals the court's later ruling declining to award attorney fees for prevailing on summary judgment on the Neighbors' anticipatory nuisance counterclaim. For reasons set forth below, we reverse on common law dedication and vacate the attorney fees and cost award to TMS. Because the Neighbors do not challenge the court's alternative ruling that TMS also established an implied way of necessity, we remand for further proceedings on (1) the scope of the implied way and (2) attorney fees.
¶2 In 1959, Phoenix Title and Trust Company ("Phoenix Title") recorded a subdivision plat for the Stone Canyon East subdivision, the relevant portion of which appears below:
Image materials not available for display.
¶3 One year later, Phoenix Title recorded an "Easement for Roadway" which pronounced "it is now desired to increase the width of San Miguel Avenue as shown on [the 1959] plat and to provide for another roadway not shown in said plat." The easement allowed Maricopa County to increase the width of San Miguel Avenue to fifty feet and granted to the county:
A strip of land 25' wide along the N. side and a strip of land 25' wide along the S. line of the lot line separating Lots 22 and 23, and 25' wide N. of the S. border of said subdivision in Lots 24 and 25.
The parties dispute the exact parameters of these grants, depicting them as follows:
Image materials not available for display.
Although the Easement for Roadway did allow for underground utility facilities, the two-part, single easement grant was expressly intended "forroadway purposes only . . . to maintain a public way for vehicular or foot traffic thereon."
¶4 Phoenix Title expressly referred to the Easement for Roadway in its deed conveying Lot 24, but not in its deeds conveying Lots 22 or 23. The Zachariahs, Appel, and the Harrisons purchased Lots 22, 23, and 24, respectively, between 2009 and 2010. There is an approximate 12-foot wide driveway from the East San Miguel cul-de-sac serving the Zachariahs' home on Lot 22, depicted below:
Image materials not available for display.
Appel uses a portion of this driveway to access her home on Lot 23. Part of the driveway is located on Lot 23, and the entire driveway is located within the area described in the Easement for Roadway. The driveway has been gated since 1987, and the Zachariahs currently control access.
¶5 TMS purchased the property immediately south of the land depicted above (the "TMS Property") in 2012. The TMS Property is bordered on the west, south and partially on the east by city-owned land. On March 31, 2016, TMS wrote to the Neighbors demanding that they acknowledge the easement depicted in the Easement for Roadway to enable construction of a driveway to the TMS Property. When the Neighbors refused, TMS sued them seeking to quiet title to the Easement for Roadway and for declaratory and injunctive relief.1 The Neighbors counterclaimedfor, among other things, anticipatory nuisance based on "noise, vibration, dust and odor" and "damage to the footings, foundation, walls, roofs and other structural parts of their homes" that could result from future construction of a driveway to the TMS Property.
¶6 On TMS' motion, the superior court bifurcated trial, ordering a "bench trial on the claims which concern access to the property and a separate jury trial on the [Neighbors'] counterclaim for nuisance." Following the bench trial, the court ruled TMS had established a common law dedication of the Easement for Roadway and, alternatively, an implied way of necessity within the Easement for Roadway. It subsequently granted summary judgment to TMS on the Neighbors' anticipatory nuisance counterclaim.
¶7 TMS applied to recover $653,380.25 in attorney fees and $14,859.01 in costs. TMS apportioned its claim over three law firms who had represented them during the litigation as follows: $385,756.75 in attorney fees and $5,911.59 in taxable costs incurred by Burch & Cracchiolo, P.A. "for the quiet title claims and defending the quiet title counterclaims"; $234,488.50 in attorney fees and $8,947.42 in costs incurred by Beus Gilbert PLLC "for defending the anticipatory nuisance counterclaim"; and $33,135.00 in attorney fees incurred by Berry Riddell, LLC "for initially defending the non-covered counterclaims (before referring the matter to Beus Gilbert)." The court awarded $369,410.25 in attorney fees and $4,466.43 in costs "for work performed by Burch & Cracchiolo, P.A.," $8,947.42 in costs but no fees "for work performed by Beus Gilbert PLLC," and no fees for work performed by Berry Riddell, LLC.
¶8 The Neighbors timely appealed from the final judgment. TMS timely cross-appealed the court's fee award. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(1).
¶9 After a bench trial, we review the court's legal conclusions de novo but defer to its findings of fact unless clearly erroneous. Town of Marana v. Pima County, 230 Ariz. 142, 152, ¶ 46 (App. 2012). A finding of fact is not clearly erroneous if it is supported by substantial evidence even if there is substantial conflicting evidence. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51-52, ¶ 11 (App. 2009).
¶10 On appeal, the Neighbors limit their arguments to "the superior court's legal rulings, not the superior court's findings of fact." Nonetheless, we must consider the evidence presented at trial in the light most favorable to upholding the court's rulings. Town of Marana, 230 Ariz. at 152, ¶ 46.
¶11 The Neighbors do not challenge the court's ruling finding an implied way of necessity within the area described in the Easement for Roadway; they only challenge the court's finding of a public dedication. As access to the TMS Property is not at issue, we first consider whether the distinction the Neighbors seek is meaningful or purely theoretical. See Progressive Specialty Ins. Co. v. Farmers Ins. Co. of Ariz., 143 Ariz. 547, 548 (App. 1985) ().
¶12 A landowner can dedicate land to a proper public use. Pleak v. Entrada Property Owners' Ass'n, 207 Ariz. 418, 421, ¶ 8 (2004) (citing Restatement (Third) of Prop.: Servitudes § 2.18(1) (2000)). Under common law dedication, the public acquires an easement to use the dedicated property for the specified purposes but fee title remains with the dedicator.2 Id. Once perfected, a common law dedication is irrevocable. City of Chandler v. Ariz. Dep't of Transp., 224 Ariz. 400, 403, ¶ 9 (App. 2010).
¶13 In contrast, an implied way of necessity only grants access to the owner of the landlocked parcel. Dabrowski v. Bartlett, 246 Ariz. 504, 514, ¶ 26 (App. 2019). And it only grants whatever access is necessary for the beneficial use of the landlocked parcel. Bickel v. Hansen, 169 Ariz. 371, 374 (App. 1991). Moreover, unlike a common law dedication, an implied way of necessity is appurtenant to the parcel it serves. College Book Ctrs., Inc. v. Carefree Foothills Homeowners Ass'n, 225 Ariz. 533, 541, ¶ 29 (App. 2010).
¶14 As such, there are meaningful and relevant differences between a common law dedication of the Roadway for Easement and an implied way of necessity within the Roadway for Easement. Cf. Kadlec v. Dorsey, 224 Ariz. 551, 553, ¶ 10 (2010) (). We therefore consider the merits of the Neighbors' appeal.
¶15 An effective dedication of private land for public use has two components—the landowner's offer to dedicate and the general public's acceptance. Pleak, 207 Ariz. at 423-24, ¶ 21. The party asserting dedication bears the burden of proof. Kadlec, 224 Ariz. at 552, ¶ 8. "Dedication is not presumed nor does a presumption of an intent to dedicate arise unless it is clearly shown by the owner's acts and declarations." City of Phx. v. Landrum & Mills Realty Co., 71 Ariz. 382, 386 (1951). "No particular words, ceremonies, or form of conveyance is necessary to dedicate land to public use; anything fully demonstrating the intent of the donor to dedicate can suffice." Pleak, 207 Ariz. at 424, ¶ 21.
¶16 The Neighbors concede the...
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