Opinion
2 CA-CV 2021-0126
05-10-2022
Frank S. Granillo and Mary Lou Granillo; Frank M. Granillo; John P. Myers and Frances M. Myers; Erasmo S. Teran and Susan M. Teran, Plaintiffs/Appellants, v. Pinnacle West Capital Corporation, Arizona Public Service Company, Bright Canyon Energy Corporation, Jeffrey D. Guldner, Robert Smith, and James R. Hatfield, Defendants/Appellees.
Frank S. Granillo and Mary Lou Granillo, Gilbert Frank M. Granillo, Erasmo S. Teran, and Susan M. Teran, Florence John P. Myers and Frances M. Myers, Mesa In Propria Personae Berry Riddell LLC, Scottsdale By Martin A. Aronson, Jeffrey D. Gross, and Michael W. Zimmerman Counsel for Defendants/Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CV202100960 The Honorable Steven J. Fuller, Judge
Frank S. Granillo and Mary Lou Granillo, Gilbert
Frank M. Granillo, Erasmo S. Teran, and Susan M. Teran, Florence
John P. Myers and Frances M. Myers, Mesa
In Propria Personae
Berry Riddell LLC, Scottsdale
By Martin A. Aronson, Jeffrey D. Gross, and Michael W. Zimmerman
Counsel for Defendants/Appellees
Presiding Judge Eckerstrom authored the decision of the Court, in which Judge Espinosa and Judge Brearcliffe concurred.
MEMORANDUM DECISION
ECKERSTROM, PRESIDING JUDGE:
¶1 Frank S. Granillo, Mary Lou Granillo, Frank M. Granillo, John Myers, Frances Myers, Erasmo Teran, and Susan Teran (collectively, "the property owners") appeal from the trial court's order dismissing their complaint, which alleges that Arizona Public Service Company ("APS")illegally installed certain above-ground power lines on their property in Florence. In particular, the property owners argue the court erred in granting the power company's motion to dismiss without holding a trial or considering evidence supporting their claims. They further contend the statute of limitations does not apply to their claims brought under 42 U.S.C. § 1983. Because we agree with the court's conclusion that all cognizable claims asserted by the property owners are barred by the applicable statutes of limitations, we affirm.
The complaint and the opening brief also name APS affiliates and individual officers as defendants. Because the alleged injuries stem from actions taken on behalf of APS, and for the sake of clarity, we refer to all appellees as "APS" in this decision.
Factual and Procedural Background
¶2 When considering an appeal from a dismissal pursuant to Rule 12(b)(6), Ariz. R. Civ. P., we "assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts, but mere conclusory statements are insufficient." Coleman v. City of Mesa, 230 Ariz. 352, ¶ 9 (2012). In July 2007, the property owners became aware that above-ground power lines had been constructed on and over their property. Five days later, they sent a letter to APS to "inform them of the illegally] constructed power lines." After meeting with a representative from APS, the property owners demanded the company "vacate and remove the subject powerline poles" and "made it clear" APS was engaging in criminal trespass. APS did not move the power lines. Thirteen years later, in October 2020, the property owners sent a second demand notice, again requesting removal of the poles as well as "just compensation." APS responded in writing, refusing to remove the power lines or to compensate the property owners for the use of the land, claiming, among other things, that APS had acquired a prescriptive easement across the land.
¶3 After APS refused to comply with the property owners' 2020 request, the property owners filed a complaint in May 2021. They claimed, among other things, that APS had "proceeded by covert criminal trespass" to enter and survey their property, and then installed two poles for power lines, without providing notice or obtaining the property owners' consent. They styled the complaint as arising under § 1983. Citing purported violations of the United States and Arizona constitutions and statutes, the complaint requested injunctive relief and monetary compensation.
¶4 APS filed a motion to dismiss the complaint for failure to state a claim, pursuant to Rule 12(b)(6). APS argued it had acquired a prescriptive easement over the land, barring any claims for compensation. It further asserted all of the property owners' claims were barred by the applicable statutes of limitations. After a hearing, the trial court granted APS's motion. Reasoning that the longest limitation period for any of the property owners' claims was four years, the court concluded that given the fourteen-year interlude between the discovery of the power lines and the commencement of the action, the complaint was filed "well beyond any statute of limitations."
¶5 The property owners appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
Discussion
¶6 We review de novo the trial court's dismissal of a complaint under Rule 12(b)(6) to determine whether the court correctly concluded that, as a matter of law, the plaintiff would not be entitled to relief under any interpretation of the alleged facts. Coleman, 230 Ariz. 352, ¶¶ 7-8. A complaint fails to state a claim for relief if all possible claims are barred by applicable statutes of limitations. See Dicenso v. Bryant Air Conditioning Co., 131 Ariz. 605, 606 (1982) (motion to dismiss appropriate when, "from the face of the complaint," claim barred by statute of limitations). We hold unrepresented litigants "to the same familiarity with court procedures and the same notice of statutes, rules, and legal principles as is expected of a lawyer." Higgins v. Higgins, 194 Ariz. 266, ¶ 12 (App. 1999).
¶7 As below, the property owners argue on appeal that the installation of the power lines without notice, permission, or compensation violated a variety of their constitutional rights. In particular, they argue that APS, as a "private corporation," could only lawfully acquire private land for public use through the eminent domain procedures set forth in A.R.S. § 12-1116 and the related statutes. They further maintain that the "trial court failed to address or consider any" of their issues raised pursuant to § 1983 and that it erred in finding those claims barred by a statute of limitations. Alternatively, they argue they were unaware they could file a claim under § 1983 until August 2020, and therefore their injury did not accrue until that time. They further complain they were denied a trial or "conference" to "present exhibits and evidence."
Claims Arising Under 42 U.S.C. § 1983
¶8 With respect to any of the property owners' claims arising out of § 1983, we agree with the trial court that all such claims are barred by the statute of limitations. The property owners correctly recite the principle that "[f]ederal statutes contain no specific limitation period for civil rights claims brought under § 1983." Madden-Tyler v. Maricopa County, 189 Ariz. 462, 465 (App. 1997). However, "[i]f no limitation period exists for a federal cause of action, a local time limitation will apply unless it conflicts with federal law or policy." Id.; see also Flood Control Dist. of Maricopa Cnty. v. Gaines, 202 Ariz. 248, ¶ 16 (App. 2002) (state legislatures may "reasonably regulate the manner and time for bringing constitutionally-based causes of action"); Rutledge v. State, 100 Ariz. 174, 180 (1966) ("reasonable statute of limitations may be applied as to even a constitutional right"). Because § 1983 actions are "best characterized as personal injury actions," the applicable statute of limitations in § 1983 actions is the forum state's statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 280 (1985), superseded on other grounds by 28 U.S.C. § 1658; see also City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 124 (2005) (affirming Wilson's directive); Madden-Tyler, 189 Ariz. at 465-66.
We assume arguendo that the property owners' claims would otherwise be cognizable under § 1983, although we note that the property owners have cited no case law to establish that APS acted under color of law, such that it could be subject to a such an action, which is reserved for claims against the government and government actors. See Boudette v. Ariz. Pub. Serv. Co., 685 F.Supp. 210, 211, 213 (D. Ariz. 1988) (APS not state actor and thus not subject to § 1983 action); see also Jackson v. Metro. Edison Co., 419 U.S. 345, 346, 350, 358-59 (1974) (rejecting argument that acts of privately owned and operated, "heavily regulated" utility company constituted state action for purposes of § 1983 complaint).
¶9 In Arizona, personal injury actions must be "commenced and prosecuted within two years after the cause of action accrues." A.R.S. § 12-542; see also Madden-Tyler, 189 Ariz. at 466 (applying two-year limitation to claims arising from, inter alia, Americans with Disabilities Act). A cause of action for personal injury accrues "when a claimant knows or should know she has been injured and when she likewise 'knows or with reasonable diligence should know the facts underlying the cause.'" Wyckoff v. Mogollon Health All., 232 Ariz. 588, ¶ 9 (App. 2013) (quoting Doe v. Roe, 191 Ariz. 313, ¶ 29 (1998)). The complaint alleges that the property owners knew they were injured-that the power lines had been constructed on their property-no later than 2007. Thus, by the time the property owners filed their lawsuit in 2021, any action arising under § 1983 was time-barred. We therefore find no error in the trial court's dismissal of the § 1983 claims on statute of limitations grounds.
Accordingly, the trial court also did not err, abuse its discretion, or abuse the judicial process by refusing to address the § 1983 claims on their merits, contrary to the property owners' complaints on appeal.
Inverse Condemnation Claim
¶10 The property owners also complain that APS failed to comport with the requirements for acquiring land through eminent domain proceedings. Article II, § 17 of our state constitution provides that "[n]o private property shall be taken or damaged for public or private use without just compensation having first been made" and "no right of way shall be appropriated to the use of any corporation other than municipal, until full compensation therefor be first made." An inverse condemnation claim arises out of this section when a landowner's property rights are appropriated, occupied, or otherwise damaged without institution of condemnation proceedings as outlined in § 12-1116. See State v. Hollis, 93 Ariz. 200, 203 (1963). In such cases, the "property owner's remedy is to sue . . . to recover the fair market value of the property interest taken or damaged." A Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cnty., 222 Ariz. 515, ¶ 18 (App. 2009).
¶11 Typically, the right of eminent domain rests with a governmental entity. See, e.g., id. ("In Arizona, the government must pay just compensation when it takes or damages private property." (emphasis added)). The parties have cited no authority supporting the proposition that a non-government entity may exercise eminent domain powers, and it is unclear whether a privately held corporation such as APS may exercise that right. See A.R.S. § 12-1111(10) ("right of eminent domain may be exercised by the state, a county, city, town, village, or political subdivision, or by a person, for . . . [e]lectric light and power transmission lines"); see also Hollis, 93 Ariz. at 203 ("essential nature" of eminent domain action is "a condemnation of a private property right by the State under the sovereign right of eminent domain"). But even assuming APS holds the "power of condemnation," as it asserts in its answering brief, the property owners' inverse condemnation claim is barred by the ten-year statute of limitations provided by A.R.S. § 12-526. Busby v. State ex rel. Herman, 101 Ariz. 388, 390 (1966) (applying § 12-526, as "applicable statute of limitations pertaining to condemnation actions," to preclude inverse condemnation claim arising out of governmental construction and maintenance of fence over privately owned land, depriving landowner of freeway access); see also De Alfy Props. v. Pima County, 195 Ariz. 37, ¶ 4 (App. 1998) (§ 12-526 provides ten-year limitations period for inverse condemnation actions). Because the property owners did not file their inverse condemnation claim within ten years of 2007, when they evidently discovered the power lines, their claim for just compensation is time-barred.
APS does not dispute that it did not follow the statutory procedure for taking land through eminent domain.
Additionally, A.R.S. § 12-550 imposes a four-year limitation for all "[a]ctions other than for recovery of real property for which no limitation is otherwise prescribed." See also Ranch 57 v. City of Yuma, 152 Ariz. 218, 222 (App. 1986) (applying § 12-550 to "regulatory takings action based on the Arizona and United States constitutions does not violate these constitutional guarantees" against government takings).
¶12 Furthermore, the trial court did not err in concluding that any claim to recover the land is barred because APS had acquired a prescriptive easement over the land. A party may establish the existence of a prescriptive easement by showing that "the land in question has actually and visibly been used for ten years, that the use began and continued under a claim of right, and [that] the use was hostile to the title of the true owner of the land." Paxson v. Glovitz, 203 Ariz. 63, ¶ 22 (App. 2002) (alteration in Paxson) (quoting Harambasic v. Owens, 186 Ariz. 159, 160 (App. 1996)). We agree that the allegations in the complaint establish these elements. The property owners acknowledge they knew of the installment of the power lines by no later than 2007, that they promptly requested that APS remove the lines, and that APS refused to do so for a period exceeding ten years. Therefore, any cause of action for recovery of that land expired at the time APS acquired the easement, ten years after the 2007 discovery of the power lines. See § 12-526(A) ("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, and not afterward.").
Remaining Claims
¶13 The property owners also assert various other causes of action on appeal. The property owners' claims stemming from criminal statutes, including A.R.S. §§ 13-1502 (criminal trespass) and 13-1802 (theft), do not create private rights of action or remedy. See Shimko v. Goldfarb, 246 Fed.Appx. 525, 527-28 (9th Cir. 2007). Likewise, no private right of action exists under the federal criminal statutes cited by the property owners, including 18 U.S.C. §§ 241, 242, and 371. Rockefeller v. U.S. Court of Appeals Off. for Tenth Cir. Judges, 248 F.Supp.2d 17, 23 (D.D.C. 2003) (addressing §§ 242 and 371 in particular). Finally, the property owners argue for the first time on appeal that APS violated A.R.S. § 12-1131, the Private Property Rights Protection Act. But this issue was not raised before the trial court. Therefore, we do not address it. See Trantor v. Fredrikson, 179 Ariz. 299, 300-01 (1994).
Disposition
¶14 For the foregoing reasons, we affirm the trial court's dismissal of the property owners' complaint.