Opinion
1 CA-CV 10-0599
10-20-2011
EXCEL REALTY SERVICES, INC., an Arizona corporation; JAMES R. JOHNSON and GAIL E. JOHNSON, husband and wife, Plaintiffs/Appellants/ Cross-Appellees, v. RONALD JOHN SUTTER and MILDRED JANE SUTTER, husband and wife; RONALD J. SUTTER and M. JANE SUTTER, as Trustees of the Sutter Family Trust, dated July 2, 1980, Defendants/Appellees Cross-Appellants.
Arthur P. Allsworth Attorney for Appellants/Cross-Appellees Phoenix The Van Wyck Law Firm By Robert B. Van Wyck Attorneys for Appellee/Cross-Appellant Flagstaff
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(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)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 Coconino County
Cause No. CV2008-0692
The Honorable Dana Hendrix, Judge
The Honorable Fred Newton, Judge
AFFIRMED
Arthur P. Allsworth
Attorney for Appellants/Cross-Appellees
Phoenix
The Van Wyck Law Firm
By Robert B. Van Wyck
Attorneys for Appellee/Cross-Appellant
Flagstaff
HALL, Judge
¶1 James R. Johnson, Gail E. Johnson, and Excel Realty Services, Inc. (collectively, the Johnsons) appeal from the trial court's final judgment dismissing their claim for quiet title as moot. Ronald J. Sutter and M. Jane Sutter (collectively, the Sutters) cross-appeal from the trial court's denials of their motion for summary judgment and request for attorneys' fees. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 The facts relevant to the issues raised on appeal are not disputed. The Johnsons own a parcel of land located at 5500 Oak Ranch Road. The Sutters own an adjacent parcel of land located at 5565 Oak Ranch Road. The Johnsons' property is the dominant estate for a sixty-foot express easement, recorded by deed, for ingress, egress, and utilities that runs from Silver Saddle Drive to the Johnsons' property. The Sutters' property, and other adjoining properties, are the servient estates for this easement. The width of the easement for ingress, egress, and utilities goes over thirty feet of the Sutters' property, along its southern border.
¶3 On May 17, 2008, the Sutters placed five or six metal fence posts several inches into the ground spaced over the last twenty to thirty feet of the length of the easement, near the Johnsons' mailbox and gate. These stakes and a "No Trespassing" sign were placed within the northern border of the easement, but not on the driveway the Johnsons' had constructed from Silver Saddle Drive to their property.
¶4 On June 13, 2008, the Sutters received a letter from the Johnsons' attorney asserting that the stakes and the sign interfered with the Johnsons' use of the easement and demanding that the Sutters execute a quit claim deed transferring to the Johnsons their "interest in the [] Easement[,]" but reserving "an equal nonexclusive" right to use the easement for ingress, egress, and utility purposes themselves. The proffered quit claim deed states:
Ronald John Sutter and Mildred Jane Sutter, individually and as trustees of the Sutter Family Trust dated July 2, 1980, the GRANTORS, hereby quit claim, without warranty, to James R. Johnson and Gail Johnson, husband and wife, and to Excel Realty Services, Inc., an Arizona corporation, and to their respective heirs, successors and assigns forever, the GRANTEES, all the right[,] title and interest of the GRANTORS in that certain easement (the "Easement") for ingress, egress and utility purposes . . . .
RESERVING, NEVERTHELESS, UNTO THE GRANTORS, THEIR HEIRS, SUCCESSORS AND ASSIGNS FOREVER, an equal nonexclusive right to use the said Easement for ingress, egress and utility purposes.
¶5 On June 18, 2008, the Sutters removed the stakes and sign from the easement and placed them approximately six-feet within the portion of their property not subject to the easement. On June 26, 2008, the Sutters' attorney mailed a letter to the Johnsons' attorney explaining that the Sutters had "permanently removed the barriers that they had recently erected from inside the easement . . . render[ing] [the] Johnson[s'] claims moot." The Sutters' attorney also explained that the Sutters declined the Johnsons' invitation to quit claim their interest in the easement to the Johnsons. Finally, the Suttters' attorney requested that the Johnsons' remove their mailbox that was placed on the easement without the Sutters' permission.
¶6 In a letter dated August 29, 2008, the United States Postal Service notified the Johnsons that they needed to "relocate" their mailbox because its "current location does not provide for a safe and efficient manner for the mail carrier to turn around." The letter further stated that the new location for the Johnsons' mailbox would be 5570 Oak Ranch Road as the "resident there has given us permission to use the circular drive on the property." Sometime later, the Johnsons removed their mailbox from the easement.
¶7 On September 3, 2008, the Johnsons filed a complaint against the Sutters alleging that the metal poles and "No Trespassing" sign that the Sutters had placed on the easement had interfered with their ability "to use the full width of the easement." The Johnsons raised two claims, one for quiet title and the other for trespass. The Johnsons requested exemplary and punitive damages for the willful and malicious interference by the Sutters with their easement. In their answer, the Sutters countered that they had removed the offending posts and sign and therefore any issue "has been rendered moot."
¶8 On June 11, 2009, the Sutters filed a motion for summary judgment. The Sutters explained that they erected the posts and sign to prevent the Johnsons' guests and mail-deliverers from using portions of their property, not subject to an easement, to turn around their vehicles. The Sutters asserted that neither the posts nor the sign they placed on the easement interfered with the Johnsons' use of the easement for ingress and egress and contended that they timely removed the posts and sign when they were notified of the Johnsons' dispute with their placement. As summarized by the Sutters, "the entire legal dispute, such as it was, was resolved within a week." In their response and cross-motion for summary judgment, the Johnsons acknowledged that delivery drivers "sometimes trespassed on [the Sutters'] unburdened lands" and that such trespasses may have damaged the Sutters' property.
¶9 In an unsigned minute entry filed May 21, 2010, the trial court dismissed the quiet title claim as moot and referred the trespass claim to arbitration based on its finding that the Johnsons' claim for money damages did not exceed the jurisdictional limit for arbitration. See Ariz. Rev. Stat. (A.R.S.) § 12-133(A)(1) (Supp. 2010) (requiring superior court to "[e]stablish jurisdictional limits of not to exceed sixty-five thousand dollars for submission of disputes to arbitration"); Ariz. Local R. Prac. Super. Ct. (Coconino) 16 (permitting court to submit a civil case to arbitration when the court finds "that the amount in controversy does not exceed the limit set in A.R.S. § 12-133"). On June 21, 2010, the trial court entered a final judgment pursuant to Arizona Rule of Civil Procedure (Rule) 54(b) stating in relevant part:
[The Johnsons] have an easement over a portion of [the Sutters'] property for ingress and egress to [the Johnsons'] home. The easement ends at the gate to [the Johnsons'] property. [The Johnsons'] have a closed gate at the entrance to their property which in the past has made mail carriers and service providers to cut across a portion of [the Sutters'] land to turn around and drive back from where they came. This caused tire ruts in [the Sutters'] property so they put up some stakes in the easement but not on the road to prevent vehicles from turning around on [the Sutters'] property. When asked by [the Johnsons] to remove the stakes, they did so within four days. At this time, [the Johnsons] have constructed, but have not yet completed a gravel turnaround completely within the easement such that the mail carriers and other service providers can turn around without entering [the Sutters'] land. [The Sutters] are satisfied with this arrangement.
. . . .
Both [the Johnsons] and [the Sutters'] Motion for Summary Judgement are denied as the issues are moot. Each party shall bear their own attorneys fees and costs.
. . . .
[The Sutters] shall not interfere in any way with [the Johnsons] newly constructed turn around as long as it
is fully contained within [the Johnsons'] easement and does not exceed forty five feet in length along the easement.
[The Johnsons] may finish construction of their turnaround but [they] shall not modify the easement in any way that interferes with [the Sutters] use and enjoyment of [their] land such as increased drainage issues.
¶10 The parties timely appealed. Except as discussed in paragraph 18, infra, we have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003).
DISCUSSION
¶11 On appeal, the Johnsons argue that the trial court erred by finding their claim for quiet title is moot. Both parties contend that the trial court erred by denying their respective motions for summary judgment. Finally, the Sutters assert that the trial court erred by denying their request for attorneys' fees. We address each argument in turn.
I. Claim for Quiet Title
¶12 The Johnsons contend that the trial court erred by finding their claim for quiet title is moot because (1) they do not "view the removal of the fence posts and sign, alone, without the quit claim deed, as an unequivocal abandonment of the clearly threatening message the sign and fence posts had delivered"; and (2) the trial court's order that the Johnsons' be permitted to construct a turnaround area within the easement does not sufficiently protect the Johnsons' interest in having full use of the entire easement in the future, independent of any reasonable need for ingress and egress.
¶13 Pursuant to A.R.S. § 12-1101 (2003), a party claiming an interest in real property may bring an action to determine and quiet title to that real property against any person claiming an "interest in the real property which is adverse to the party bringing the action." In their complaint, the Johnsons requested relief in the form of: (1) a court order confirming the existence of their easement, (2) a court order authorizing the Johnsons' full use of the thirty-foot width of the easement to construct a turnaround near the Johnsons' mailbox, (3) the Sutters' express disclaimer of any adverse interest in the easement, and (4) a court order enjoining the Sutters from interfering with the Johnsons' use of the easement.
¶14 The Johnsons contend that by placing the sign and the posts in the easement, the Sutters expressed an adverse interest in the easement. In response, the Sutters point out that they removed the sign and posts within five days of receiving a letter from the Johnsons' attorney challenging the placement of the sign and posts. They also note that they repeatedly acknowledged the Johnsons' easement on the property both through counsel-to-counsel correspondence and in their responsive pleadings. In addition to acknowledging the existence of the easement, the Sutters expressly disclaimed any intent to interfere with the Johnsons' ingress and egress to their property, and instead asserted that they simply intended to prevent the Johnsons' guests and service-providers from turning their vehicles around on portions of the Sutters' property not subject to the easement. Indeed, the Johnsons acknowledged that their guests "perhaps [on] many occasions" traveled across the Sutters' unburdened land to turn their vehicles around.
¶15 In its final order and judgment, the trial court acknowledged both the existence of the Johnsons' easement and the damage caused to the Sutters' unburdened property by the Johnsons' guests. The court enjoined the Sutters from interfering "in any way" with the Johnsons' construction of a turnaround "as long as [the turnaround] is fully contained within [the Johnsons'] easement and does not exceed forty five feet in length along the easement." In addition, the trial court's order enjoins the Johnsons from modifying "the easement in any way that interferes with [the Sutters] use and enjoyment of [their] land such as increased drainage issues." Finally, the court denied the Johnsons' claim for quiet title as moot.
¶16 "A question is moot if it seeks to determine an abstract problem which does not arise upon existing facts or rights." Mueller v. City of Phoenix, 102 Ariz. 575, 583, 435 P.2d 472, 480 (1967). We conclude, as did the trial court, that no claim or controversy existed at the time the trial court entered its final order and judgment. As repeatedly characterized by the Johnsons in their pleadings, the "central" and "sole" issue underlying their claim was their ability to construct a thirty-foot wide turnaround near their gate and mailbox. The trial court's order resolved this issue in their favor. Although the Johnsons assert on appeal that they may wish to improve the entire length of the easement at some point in the future, this prospective claim of possible future use does not create a justiciable controversy. See Hunt v. Richardson, 216 Ariz. 114, 125, ¶ 37, 163 P.3d 1064, 1075 (App. 2007) ("A justiciable controversy exists if there is an assertion of a right, status, or legal relation in which the plaintiff has a definite interest and a denial of it by the opposing party . . . . The controversy, however, must be real, not merely theoretical.") (internal quotation omitted). Declaratory relief is only justified "upon an existing state of facts, not one upon a state of facts which may or may not arise in the future. Nor will future rights be determined in anticipation of an event that may never happen." Id. at ¶ 38 (internal quotation omitted). If, at some point in the future, the Johnsons attempt to improve the remainder of the easement, and such attempt is met with resistance by the Sutters, the matter will be ripe for adjudication. See id. (noting that if and when future conflicts arise over the use of an easement, "the current parties may no longer own their respective properties"). Under the present circumstances, however, the existing dispute has been resolved and the trial court did not err by dismissing the claim for quiet title as moot.
II. Denial of Motions for Summary Judgment
¶17 The Johnsons and the Sutters each contend that the trial court erred by denying their respective motions for summary judgment. Generally, the denial of a motion for summary judgment is not subject to review on appeal from a final judgment. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 316, ¶ 7, 965 P.2d 47, 50 (App. 1998). The only exception to this rule is when the trial court's judgment is vacated on appeal and it is determined that there are no material actual disputes and that one of the parties is entitled to summary judgment as a matter of law. Id. In section I above, we affirmed the trial court's dismissal of the Johnsons' quiet title claim as moot. Therefore, the exception does not apply here.
¶18 As to the denial of Sutters' additional request for summary judgment on the Johnsons' trespass claim, the trial court's order referring the trespass claim to arbitration was not encompassed in the Rule 54(b) order and is not properly before us as a final judgment. Therefore we lack jurisdiction to review this ruling on appeal.
III. Denial of Request for Attorneys' Fees
¶19 The trial court required each party to bears its own attorneys' fees and costs. On appeal, the Sutters claim that the trial court should have awarded them their attorneys' fees pursuant to A.R.S. §§ 12-1103 and -342(A)(1) and (2) (2003). Essentially, the Sutters contend that the Johnsons' complaint was moot at its inception because they removed the sign and posts two months before the Johnsons filed their complaint.
¶20 Section 12-1103(B), which permits a court to award fees to the party prosecuting a quiet title action who meets its requirements, does not provide a basis for a fee award to a party, such as the Sutters, who defend a quiet title action. See Long v. Clark, 226 Ariz. 95, 96, ¶¶ 4-5, 244 P.3d 99, 100 (App. 2010). The second statute cited by the Sutters addresses the issue of costs on appeal, not attorneys' fees. Because the Sutters have not cited any statute on appeal that supports their argument that they were entitled to an award of fees in the trial court, we cannot conclude that the court erred when it required the Sutters to bear their own fees.
CONCLUSION
¶21 The final order and judgment is affirmed. We deny both parties' request for attorneys' fees on appeal. Because neither party is, in our judgment, the "net winner" on appeal, each party shall bear their own costs.
PHILIP HALL, Judge CONCURRING: MICHAEL J. BROWN, Presiding Judge PATRICIA K. NORRIS, Judge