Williams v. King

• Decision Date: 23 January 2020
• Docket Number: No. 1 CA-CV 18-0498,1 CA-CV 18-0498
• Parties: James P. WILLIAMS, et al., Plaintiffs/Appellants-Cross Appellees, v. Kevin KING, et al., Defendants/Appellees-Cross Appellants.
• Court: Arizona Court of Appeals

248 Ariz. 311

460 P.3d 303

James P. WILLIAMS, et al., Plaintiffs/Appellants-Cross Appellees,

v.Kevin KING, et al., Defendants/Appellees-Cross Appellants.

No. 1 CA-CV 18-0498

Court of Appeals of Arizona, Division 1.

FILED January 23, 2020

AS AMENDED January 29, 2020

Macqueen & Gottlieb, PLC, Phoenix, By Benjamin L. Gottlieb, Christopher J. Zarda, Brandon P. Bodea, Counsel for Plaintiffs/Appellants-Cross Appellees

Elardo Bragg Rossi & Palumbo, Phoenix, By John A. Elardo, April A. Hancock, Alexis Tinucci, Counsel for Defendants/Appellees-Cross Appellants

Judge David D. Weinzweig delivered the opinion of the Court, in which Presiding Judge Randall M. Howe and Judge John C. Gemmill¹ joined.

WEINZWEIG, Judge:

¶1 This case requires us to examine whether the Arizona Constitution guarantees a jury trial for a private civil action created by statute. At issue is the private action for altering a watercourse without authorization under A.R.S. § 48-3613(D). We hold the Constitution affords no such right because the common law did not afford that right at statehood.

¶2 Plaintiffs James Williams and Susan Holcombe sued Defendants Kevin and Bouatheo King for flood damage, asserting various common law tort claims and a private right of action under A.R.S. § 48-3613(D). Plaintiffs received a jury trial and jury verdict on all common law claims, but the superior court held a bench trial on the statutory claim and ruled for Defendants. Plaintiffs appeal, arguing the superior court improperly denied them a jury trial on their statutory claim, and erroneously denied their request for attorney fees and injunctive relief under the statute. Defendants cross-appeal the jury verdict and the court’s denial of Rule 68 sanctions. We find no error and thus affirm.

FACTS AND PROCEDURAL BACKGROUND

¶3 This appeal arises from a dispute between neighbors over flood damage. Plaintiffs and Defendants live on adjacent lots at the base of South Mountain in Phoenix. Defendants erected a perimeter concrete wall in 2012 and imported fill dirt to elevate their lot. Defendants did not hire an engineer to determine the waterflow consequences of their improvements and never sought or secured prior approval from government regulators for grading or drainage plans.

¶4 A severe monsoon storm swept the area in August 2014, dumping large amounts of rain in a brief period. Plaintiffs sustained serious flood damage from the rainwater, which breached their home and devastated their yard. Plaintiffs claimed that Defendants diverted the rainwater onto Plaintiffs’ lot—pointing to Defendants’ concrete wall and fill dirt. Plaintiffs sued Defendants for flood damage, asserting five common law theories—strict liability, negligence, trespass, negligence per se and nuisance—and one statutory claim for unauthorized alteration of a watercourse under A.R.S. § 48-3613(D) (the "Altered Watercourse Claim"). Plaintiffs timely demanded a jury trial on all theories.

¶5 After the court denied both parties’ summary judgment motions, Defendants served an offer of judgment on Plaintiffs for $65,000. A cover letter accompanied the offer of judgment, indicating that Defendants would also be willing to convert part of the fence into a "wrought iron view fence through which ground water could pass" and level the ground around the modified fence. Plaintiffs declined the offer.

¶6 As trial approached, Defendants asked the superior court to clarify whether the court or a jury would decide the Altered Watercourse Claim, including whether the concrete wall was erected in a "watercourse" as defined in A.R.S. § 48-3601(12). The court said it intended to submit a special interrogatory to the jury on the watercourse issue, while reserving the right to accept or reject the jury’s factual finding if the court determined the question was for the court. The court reiterated this plan at the final pretrial conference.

¶7 The jury trial began in mid-April 2018. After Plaintiffs presented their case, Defendants unsuccessfully moved for judgment as a matter of law. The same day, the court informed the parties that it would decide the statutory Altered Watercourse Claim and would not submit a special interrogatory to the jury. The jury ultimately returned a verdict on the common law tort claims for Plaintiffs, awarding them $58,790 in damages. But the court ruled against Plaintiffs on the Altered Watercourse Claim because "[n]either the initial wall, nor the 2015 wall, nor the [fill] dirt, are in a watercourse."

¶8 Plaintiffs moved to clarify and reconsider the court’s ruling on the Altered Watercourse Claim, arguing the jury found in their favor on every claim. The court denied the motions, explaining in relevant part that Plaintiffs had no statutory or constitutional right to a jury trial on the Altered Watercourse Claim.

¶9 Plaintiffs moved for an award of attorney fees under A.R.S. § 48-3613(D) and costs under A.R.S. § 12-341, while Defendants moved for Rule 68 sanctions based on their offer of judgment. The court awarded costs to Plaintiffs but declined to award fees and denied Defendants’ motion for Rule 68 sanctions.

¶10 Plaintiffs timely appealed from the final judgment. Defendants timely cross-appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), -2101(A)(1) and -2101(A)(5)(b).

DISCUSSION

I. Plaintiffs’ Appeal

¶11 Plaintiffs argue the superior court erroneously denied them a jury trial on the Altered Watercourse Claim, A.R.S. § 48-3613(D), and contend the court’s decision on the merits of that claim was unsupported by substantial evidence.

A. Right to Jury Trial on Private Civil Action

¶12 Plaintiffs first challenge the superior court’s denial of a jury trial on their private cause of action under Section 48-3613(D). Plaintiffs enjoyed a jury trial on their common law tort claims—including negligence, nuisance, strict liability, trespass and negligence per se—but the superior court determined that no jury trial was available on the statutory claim. We review de novo whether Plaintiffs were entitled to a jury trial. Carey v. Soucy , 245 Ariz. 547, 550-51, ¶ 12, 431 P.3d 1200, 1203–04 (App. 2018).

1. Private action under A.R.S. § 48-3613

¶13 Section 48-3613 was enacted in 1984 along with many other statutes to "establish[ ] and regulate[ ] flood control districts." A Tumbling-T Ranches v. Flood Control Dist. , 222 Ariz. 515, 539, ¶ 77, 217 P.3d 1220, 1244 (App. 2009) ; A.R.S. §§ 48-3601 to -3628. Subsection A of the statute generally declares that "a person shall not engage in any development which will divert, retard, or obstruct the flow of waters in any watercourse without securing written authorization from the board of the [flood control] district in which the watercourse is located," while subsection B identifies various exceptions that require no authorization. A.R.S. § 48-3613(A), (B). At issue here is subsection D, which recognizes a private action against "violators" of the statute, directing that courts "shall require the violator to ... remove the obstruction and restore the watercourse to its original state," and "may award such monetary damages as are appropriate to the injured parties resulting from the violation, including reasonable costs and attorney fees." A.R.S. § 48-3613(D).

¶14 We have interpreted this private action to require proof of three elements: (1) a diversion, retardation or obstruction of a watercourse, (2) lack of authorization from the flood control district, and (3) the possibility of resulting damage. Smith v. Beesley , 226 Ariz. 313, 323, ¶ 37, 247 P.3d 548, 558 (App. 2011). The statute leaves the issue of whether to award money damages or attorney fees "entirely [to] the court’s discretion," and "[n]othing in the statute prohibits a trial court from considering the availability of authorization or the good faith efforts of a developer to comply with the law when deciding whether to award monetary damages or attorney fees." Id . at 324, ¶ 40, 247 P.3d at 559, ¶ 40.

2. No basis for jury trial under statute or constitution

¶15 Arizona law recognizes the right to a jury trial in civil actions only when afforded by a statute or the constitution. See In re Estate of Newman , 219 Ariz. 260, 272, ¶ 45, 196 P.3d 863, 875 (App. 2008) ("Unless the statute expressly so provides, there is no right to a jury trial on statutory claims that did not exist at common law prior to statehood.").

¶16 Plaintiffs do not contend that Section 48-3613 guarantees a jury trial; the statute never mentions the topic. Plaintiffs instead rely on Article 2, Section 23, of the Arizona Constitution, which recognizes "[t]he right of trial by jury shall remain inviolate."² Section 23 preserves the historical right to a jury trial in civil actions if that right "existed at common law when the Arizona Constitution was adopted in 1910." Life Inv’rs Ins. Co. v. Horizon Res. Bethany, Ltd. , 182 Ariz. 529, 532, 898 P.2d 478 , 481(App. 1995).

¶17 Plaintiffs rely on Kroeger v. Twin Buttes R. Co. , 13 Ariz. 348, 114 P. 553 (1911), as the historical right they wish to preserve, insisting the court in Kroeger afforded a jury trial for a common law tort claim that is "substantially similar[ ]" to the private action under Section 48-3613(D).

¶18 But Plaintiffs received precisely the jury trial recognized in Kroeger . The plaintiff landowner in Kroeger received a jury trial on his common law tort claims against a railroad for building an embankment that diverted storm water onto his property, including claims that the railroad "did not use due and reasonable care" and he suffered damages "by reason of the [railroad’s] negligence." Kroeger v. Twin Buttes R. R. Co. , 14 Ariz. 269, 272-73, 127 P. 735, 738–39 (1912). Plaintiffs correctly describe the "source of the remedy" in Kroeger as "likely negligence, trespass, or nuisance, all claims with the right to a jury trial." So too here. Plaintiffs enjoyed a jury trial on their common law tort claims against Defendants for building a concrete wall that diverted storm water onto...