Opinion
1 CA-CV 12-0002
02-21-2013
LARRY D. and PATRICIA K. ELLERMANN, husband and wife, Plaintiffs/Appellees, v. STEPHEN F. SNYDER, as Trustee of the STEPHEN F. SNYDER LIVING TRUST, DATED THE 31 DAY OF JANUARY, 2005, Defendant/Appellant.
Ridenour Hienton & Lewis, PLLC By Patricia A. Premeau Attorneys for Plaintiffs/Appellees The Keating Law Firm, PLC By Kevin R. Keating Attorneys for Defendant/Appellant Scottsdale
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2007-004301
The Honorable Emmet J. Ronan, Judge
AFFIRMED
Ridenour Hienton & Lewis, PLLC
By Patricia A. Premeau
Attorneys for Plaintiffs/Appellees
Phoenix
The Keating Law Firm, PLC
By Kevin R. Keating
Attorneys for Defendant/Appellant
Scottsdale
MORAN, Judge ¶1 Stephen F. Snyder ("Snyder") appeals the superior court's judgment in favor of Larry D. and Patricia K. Ellermann (collectively, "the Ellermanns") on their breach of contract and trespass claims and their award for costs. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Snyder, the Ellermanns and another landowner not subject to this appeal ("the third landowner") are parties to an easement agreement created for the purpose of providing roadway access to each owner's parcel of land. The easement agreement provides that "the approval of all parties shall be required before maintenance work is done on the road-way." Without the Ellermanns' consent and over their objections, Snyder installed a culvert across the easement; altered the grade of the easement, causing the low spot to change and water to collect in the Ellermanns' carport; and dumped dirt excavated from his swimming pool onto the easement and the Ellermanns' property. ¶3 The Ellermanns filed suit against Snyder in 2007, alleging claims concerning this unapproved work on the easement. First, the Ellermanns alleged breach of contract for Snyder's installation of the culvert and change in the grade of the easement without their consent in violation of the easement agreement. Second, the Ellermanns alleged Snyder's dumping of dirt onto their property constituted trespass. Lastly, the Ellermanns sought declaratory relief to determine the parties' respective rights and obligations with regard to the easement agreement. ¶4 In lieu of an answer, Snyder filed a motion to dismiss, arguing under Arizona Rules of Civil Procedure ("Rules") 12(b)(6), 12(b)(7) and 19 that the Ellermanns failed to include all necessary parties - namely, the third landowner subject to the easement agreement - and that the trespass action was time-barred. The superior court initially dismissed all but the trespass claim, but it later reinstated the breach of contract claim upon the Ellermanns' motion for reconsideration. Meanwhile, Snyder filed a motion for partial summary judgment as to the trespass action and maintained that the applicable statute of limitations had expired. The court denied that motion, finding the "continuing trespass" theory applied because the dirt remained on the Ellermanns' property. ¶5 The Ellermanns tried their breach of contract and trespass claims against Snyder to the bench. The court ruled in the Ellermanns' favor, holding there was no dispute that the culvert constituted "maintenance work" under the easement agreement and Snyder had not obtained the Ellermanns' approval for such work. Additionally, the court found the trespass elements satisfied because Snyder testified that he dumped dirt on the Ellermanns' property. The court ordered Snyder to restore the easement back to its original form and remove the dirt at his own expense. Though the court named the Ellermanns the prevailing party, it noted in its minute entry both parties' failure to resolve the dispute out of court and ordered each to carry their own expenses. Upon motion by the Ellermanns, however, the superior court reversed that ruling and awarded the Ellermanns their taxable costs. ¶6 Snyder timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (West 2013) and -2101(A)(1) (West 2013).
Snyder did not provide a transcript of the trial. See ARCAP 11(b)(1). In the absence of a transcript, we will presume the record supports the superior court's rulings. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995).
Absent material revisions after the relevant date, we cite a statute's current version.
DISCUSSION
A. Legal Principles.
¶7 We review a superior court ruling denying a motion to dismiss de novo. Coleman v. City of Mesa, 230 Ariz. 352, ___, ¶ 7, 284 P.3d 863, 867 (2012). The denial of a motion for summary judgment generally is neither appealable nor subject to review after judgment. Martin v. Schroeder, 209 Ariz. 531, 533, ¶ 5, 105 P.3d 577, 579 (App. 2005); see also O'Day v. George Arakelian Farms, Inc. , 24 Ariz. App. 578, 582, 540 P.2d 197, 201 (1975) (denial of a motion for summary judgment becomes "moot as a legal issue" after trial). A party who wishes to preserve a summary judgment issue for appeal must reassert it in a Rule 50 motion for judgment as a matter of law or in another post-trial motion. John C. Lincoln Hosp. & Health Corp. v. Maricopa County, 208 Ariz. 532, 539, ¶ 19, 96 P.3d 530, 537 (App. 2004). ¶8 That rule does not apply, however, when the denial of a motion for summary judgment is based on a purely legal issue. Id.; Strojnik v. General Ins. Co. of Am. , 201 Ariz. 430, 433, ¶ 11, 36 P.3d 1200, 1203 (App. 2001). Here, the issue of which statute of limitations applies is a purely legal one that we will review de novo. Levinson v. Jarrett, 207 Ariz. 472, 474, ¶ 4, 88 P.3d 186, 188 (App. 2004) (applicability of statute of limitations to undisputed facts is a purely legal question). ¶9 Finally, we review the superior court's award of costs for an abuse of discretion. Maleki v. Desert Palms Prof'l Props., L.L.C., 222 Ariz. 327, 333-34, ¶ 32, 214 P.3d 415, 421-22 (App. 2009). We will uphold the award "[i]f there is any reasonable basis." State Farm Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, 261, ¶ 27, 963 P.2d 334, 340 (App. 1998). With these principles in mind, we discuss each of Snyder's arguments in turn.
B. Necessary and Indispensable Parties.
¶10 Snyder argues the superior court erred in denying his motion to dismiss because the Ellermanns failed to join the third landowner subject to the easement agreement as required by Rule 19. See Rule 12(b)(7) (motion to dismiss for failure to join a party under Rule 19). Without citation to any authority, he claims the third landowner is "more than merely helpful for a full adjudication of the [Ellermanns'] claim in this action, [it is] indispensable ." We disagree. ¶11 "The compulsory joinder of parties under Rule 19 entails a three-step analysis." Copper Hills Enters., Ltd. v. Ariz. Dep't of Revenue, 214 Ariz. 386, 392, ¶ 22, 153 P.3d 407, 413 (App. 2007). The court must determine whether: (1) complete relief can be accorded in the party's absence; (2) there is a substantial risk that the existing parties could be subjected to multiple or inconsistent obligations; and (3) the absent party is indispensable if joinder is not feasible. Id. ; see also Rule 19(a)(1)-(2), (b). ¶12 Here, "complete relief can[] be accorded among those already parties" despite the third landowner's absence. Rule 19(a)(1). As evidenced by the superior court's ruling in favor of the Ellermanns, their injury could be rectified regardless of any interest the third landowner claims in the action. Snyder's arguments regarding this first step of the analysis lack merit. He maintains that the third landowner must defend against whether it was the real "culprit[]" who changed the easement. But the Ellermanns note that they never claimed anyone but Snyder caused the changes and if Snyder's defense was that the third landowner caused them, he could have presented such evidence. Additionally, contrary to Snyder's argument, complete relief can be accorded between the Ellermanns and Snyder regardless of whether the third landowner "approved of whatever changes were made" because the easement agreement requires unanimous consent and the Ellermanns objected. Snyder also argues the third landowner must be joined in the trespass claim because the court "will have to issue a determination about what the boundaries of the Easement in question actually are and, then, about what actions . . . actually constituted the trespass." The record, however, contains no evidence that the boundaries were anything but how the metes and bounds identified them in the easement agreement. ¶13 Second, Synder cannot maintain that he faces a "substantial risk of incurring double, multiple, or otherwise inconsistent obligations" under Rule 19(a)(2)(ii). It is mere speculation that the third landowner has a claim at all as required by Rule 19(a)(2). Snyder points to no evidence in the record that the third landowner prefers the work Snyder performed on the easement or that it suffered injury by that work. See United States v. Bowen, 172 F.3d 682, 688-89 (9th Cir. 1999) (an absent party has no legally protected interest in the action if it never claimed it had any interest). Finally, joinder of the third landowner was clearly feasible, so indispensability under Rule 19(b) is irrelevant. ¶14 In sum, the superior court properly denied Snyder's motion to dismiss because the third landowner's joinder was not required by Rule 19.
Snyder asserts that the owners of all four parcels adjacent to the easement must be joined. At the time of the litigation, however, Snyder owned two of those parcels and the Ellermanns owned one. Therefore, the owner of only one parcel was not joined in the action.
C. Statute of Limitations for Trespass Claim.
¶15 Snyder also argues the superior court erred in denying his summary judgment motion on the trespass claim because it was barred by the applicable statute of limitations. Of the several statutes of limitations the parties assert control, we must determine which in fact applies. The parties have argued the following apply: A.R.S. § 12-542(3) (West 2013) (two-year period for trespass actions), A.R.S. § 12-526(A) (West 2013) (ten-year period for recovery of land in adverse possession action) and the "continuing trespass" rule. Although we generally use the longer statute when in doubt as to which statute to apply, Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 590, 898 P.2d 964, 968 (1995), it is clear that the continuing trespass rule governs the Ellermanns' claim. Therefore, we affirm the superior court's denial of Snyder's motion for partial summary judgments. ¶16 Snyder argues the two-year limitation in § 12-542(3) bars the Ellermanns' trespass cause of action. It provides that actions "[f]or trespass for injury done to the estate or the property of another" shall be "commenced and prosecuted within two years after the cause of action accrues." A.R.S. § 12-542(3). The Ellermanns do not dispute that they sent Snyder a letter in April 2004 complaining of the dirt he left on their property. Snyder maintains that the trespass claim therefore accrued as of the date of that letter. See Hall v. Romero, 141 Ariz. 120, 124, 685 P.2d 757, 761 (App. 1984) (statute of limitations begins to run when the plaintiff knows or should have known of the defendant's tortious conduct). Snyder contends that because the Ellermanns did not file their complaint until March 2007 (ten months after the two-year period expired), their action is time-barred pursuant to § 12-542(3). We do not agree with Snyder that A.R.S. § 12-542(3) is controlling here. ¶17 Neither is the ten-year limitations period in A.R.S. § 12-526(A) applicable, contrary to the Ellermanns' argument. That statute provides that "[a] person who has a cause of action for recovery of any lands . . . from a person having peaceable and adverse possession thereof, cultivating, using and enjoying such property, shall commence an action therefor within ten years after the cause of action accrues." The Ellermanns did not plead adverse possession, so § 12-526(A) is irrelevant. ¶18 We affirm the superior court's ruling that the action was timely because Snyder's failure to remove the dirt he dumped on the Ellermanns' property constituted a continuing trespass. A trespass is continuing "when the defendant . . . places something on or underneath the plaintiff's land, . . . [and] he fails to stop the invasion and to remove the harmful condition." Hoery v. United States, 64 P.3d 214, 218 (Colo. 2003). ¶19 Here, Snyder admitted to placing the dirt on the Ellermanns' property. Moreover, it remained there throughout the litigation. We are not persuaded by Snyder's contention that his failure to remove the dirt "does not transform the one-time inadvertent placement . . . into a 'continuing' series of acts of 'dumping.'" Under the continuing trespass rule, it is continuing "so long as the offending object remains and continues to cause the plaintiff harm." Id.; see also Woldson v. Woodhead, 149 P.3d 361, 363 (Wash. 2006) ("A continuing trespass tort is different; the 'event' happens every day the trespass continues. . . . Thus, the statute of limitations does not prevent recovery for a continuing trespass that 'began' before the statutory period . . . ."). ¶20 Even though the Ellermanns were aware of the trespass when they sent Snyder the letter in April 2004, their action was nonetheless timely. "[W]here a trespass is continuing in its nature, if the action be brought at any time within two years of the last trespass, it is good and damages may be recovered for all of the statutory period prior to the commencement of the action." Garcia v. Sumrall, 58 Ariz. 526, 533, 121 P.2d 640, 643 (1942). In other words, the statute of limitations for a continuing trespass claim "does not run from the date the tort begins; it is applied retrospectively to allow recovery for damages sustained" within two years of filing. Woldson, 149 P.3d at 365. Here, the dirt wrongfully remained on the Ellermanns' property within the two years before filing their complaint, throughout the litigation and even at the time of this appeal. Thus, we affirm the superior court's denial of Snyder's motion for partial summary judgment.
D. Award of Costs.
¶21 Lastly, Snyder claims the superior court erred in awarding the Ellermanns their taxable costs. Snyder takes issue with the fact that the court first denied both parties all attorney's fees and costs because "these neighbors have been arguing for years" and the case "could have and should have[] been resolved a long time ago," but then reversed itself and awarded the Ellermanns $1,133.30 in costs without explanation. ¶22 What Snyder fails to realize and what the Ellermanns correctly note is that unlike attorney's fees, the superior court has no discretion in awarding the prevailing party its costs pursuant to A.R.S. § 12-341 (West 2013). That statute provides that "[t]he successful party to a civil action shall recover from his adversary all costs expended or incurred therein unless otherwise provided by law." "This language is mandatory; the superior court has no discretion to deny costs to the successful party." Roddy v. County of Maricopa, 184 Ariz. 625, 627, 911 P.2d 631, 633 (App. 1996). The superior court here determined the Ellermanns the prevailing party. Thus, the court did not abuse its discretion in awarding the Ellermanns their costs as required by § 12-341.
ATTORNEY'S FEES AND COSTS ON APPEAL
¶23 Both parties request an award of attorney's fees and costs on appeal pursuant to A.R.S. § 12-341.01 (West 2013) and ARCAP 21. Snyder did not prevail on appeal so we deny his request. As to the Ellermanns' request, § 12-341.01(A) permits an award of attorney's fees to the successful party in any action "arising out of a contract." This requirement is satisfied because the easement agreement constitutes a contract between the landowners. See Scalia v. Green, 229 Ariz. 100, 103-04, ¶¶ 13, 19, 271 P.3d 479, 482-83 (App. 2011) (court interprets easement as a contract and gives effect to the intent of the contracting parties). In the exercise of our discretion, we award reasonable attorney's fees and costs to the Ellermanns upon their compliance with ARCAP 21. We note, however, that because the superior court declined to award attorney's fees to the Ellermanns, ARCAP 21(c) does not empower us to ignore that ruling and allow the Ellermanns to claim an award for the work done in superior court. See Autenreith v. Norville, 127 Ariz. 442, 444, 622 P.2d 1, 3 (1980).
CONCLUSION
¶24 For the foregoing reasons, we affirm the superior court's judgment in favor of the Ellermanns.
______________________________
MARK MORAN, Judge Pro Tempore
CONCURRING: ________________________________________
PATRICIA A. OROZCO, Presiding Judge
_______________________
PETER B. SWANN, Judge
The Honorable Mark Moran, Presiding Judge of the Coconino County Superior Court, is authorized by the Chief Justice of the Arizona Supreme Court to participate in the disposition of this appeal pursuant to Article 6, Section 3, of the Arizona Constitution and A.R.S. §§ 12-145 to -147 (2003).
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