Opinion
No. 1 CA-CV 17-0700
01-24-2019
HDB PROPERTIES LLC, Plaintiff/Appellant, v. SRINI VASAN, et al., Defendants/Appellees.
COUNSEL Provident Law PLLC, Scottsdale By Christopher J. Charles, Edwin G. Anderson, Philip A. Overcash Counsel for Plaintiff/Appellant Platt and Westby PC, Phoenix By R. Andrew Rahtz Counsel for Defendants/Appellees
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
No. CV2016-051166
The Honorable Susan M. Brnovich, Judge Retired
AFFIRMED IN PART; REVERSED IN PART
COUNSEL
Provident Law PLLC, Scottsdale
By Christopher J. Charles, Edwin G. Anderson, Philip A. Overcash
Counsel for Plaintiff/Appellant
Platt and Westby PC, Phoenix
By R. Andrew Rahtz
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kenton D. Jones and Judge David D. Weinzweig joined.
SWANN, Judge:
¶1 HDB Properties LLC ("HDB") challenges the superior court's entry of summary judgment on counter-claims for quiet title on an easement between its property and the neighboring property owned by Srini Vasan and Caroline Lobo (collectively "Vasan"). HDB also challenges the court's attorney's fee award to Vasan under A.R.S. § 12-1103(B). We affirm the court's grant of summary judgment to Vasan on HDB's quiet title claim and summary judgment on Vasan's quiet title claim, reverse the entry of the injunction, and affirm the attorney's fees award.
FACTS AND PROCEDURAL HISTORY
¶2 In 1954, the former owners of HDB's and Vasan's adjacent properties executed and recorded a reciprocal right-of-way easement that extended four feet to either side of their common boundary line running from the front to the rear of the properties (the "1954 Easement"). The 1954 Easement granted each owner:
an Easement and Right of Way, together with the full and free right for him, her, and them, their tenants, servants, visitors and licensees, in common with all others having a like right, at all times hereafter, with or without automobiles, or other vehicles, or on foot, for the purpose of ingress and egress to and from the rear or any other portion of [the other property].
Srini Vasan acquired his property in 2000 and later conveyed it to himself and Lobo. HDB acquired the adjacent property in 2012 via a quitclaim deed that specifically referenced the 1954 Easement.
¶3 In 2016, HDB sued to quiet title to the 1954 Easement, claiming adverse possession based upon its predecessor-in-interest building "a block wall[ ] separating the easement from the Vasan Property" and paving the driveway within the easement "apparently without consent or permission." Vasan responded that his predecessor-in-interest built the wall and he modified it in 2007. Vasan also contended that both parties
"jointly use the driveway" and that paving it did not "exceed[ ] the permitted use of the easement."
¶4 Vasan later counterclaimed for quiet title, alleging that HDB's quiet title claim "constitute[d] a cloud upon the title to the Vasan Property." He sought a declaration that "HDB has no estate or interest whatsoever in or to the Vasan Property, other than as described in the [1954 Easement]" and requested that HDB be "forever enjoined and barred from asserting any claim whatsoever in or to the Vasan Property which is or may be adverse to Vasan and Lobo."
¶5 Vasan moved for summary judgment after the close of discovery. He offered a declaration stating that he used the 1954 Easement multiple times each year, including to park cars and to access the wash located at the rear of both properties from the time he purchased the property until 2013. He also testified that neither the wall nor the improvements made to it impacted his ability to use the 1954 Easement.
¶6 In response, HDB offered a declaration from its property manager, who testified that he had regularly visited HDB's property since its purchase in 2012. He testified that HDB and its predecessors "paved the easement . . . as [a] driveway for the HDB property and built a brick and concrete planter, both without consent or permission." He also testified that the wall "physically limits [Vasan's] access to the easement" and he had not seen Vasan park any vehicles in the easement.
¶7 The court granted summary judgment for Vasan. HDB moved for reconsideration, contending Vasan could not obtain summary judgment on his counterclaim because "HDB has placed an 'immovable structure' within the easement, establishing a claim to it beyond ingress and egress, [and Vasans] have built a wall that interferes with their use of the easement, which proves their intent to abandon the strip of property in question." HDB also argued that Vasan's ability to access the wash via the 1954 Easement was irrelevant because he was trespassing when entering the wash. Finally, HDB argued genuine issues of material fact remained as to whether Vasan intended to abandon the 1954 Easement.
¶8 The court denied the motion for reconsideration and awarded Vasan $43,840.50 in attorney's fees under A.R.S. § 12-1103. HDB appeals.
DISCUSSION
¶9 On review of a grant of summary judgment, we determine de novo whether any genuine issues of material fact exist and whether the
superior court properly applied the law. Sign Here Petitions LLC v. Chavez, 243 Ariz. 99, 104, ¶ 13 (App. 2017). We view the facts and reasonable inferences in the light most favorable to HDB as the non-prevailing party. Rasor v. Nw. Hosp., LLC, 243 Ariz. 160, 163, ¶ 11 (2017). Summary judgment should be granted only "if the facts produced in support of [a] claim . . . have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim." Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990).
I. THE SUPERIOR COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT TO VASAN ON HDB'S QUIET TITLE CLAIM.
¶10 HDB contends genuine issues of material fact remain as to whether Vasan intended to abandon the 1954 Easement. An owner of an easement abandons it by relinquishing his or her rights thereto. Scalia v. Green, 229 Ariz. 100, 102, ¶ 9 (App. 2011). Abandonment requires both the intent to abandon and an act or failure to act that carries out the intent. IB Prop. Holdings, LLC v. Rancho Del Mar Apartments Ltd., 228 Ariz. 61, 68, ¶ 23 (App. 2011). When an easement has been granted by deed, as is the case here, the party alleging abandonment must point to acts that "decisively, conclusively and unequivocally establish the holder's clear intent to abandon the easement." Scalia, 229 Ariz. at 102, ¶ 10. The holder's non-use of the easement standing alone does not prove abandonment. Id. We have explained that proof of abandonment should at least require "[a]ffirmative acts rendering use or enjoyment of the [easement] benefit extremely difficult, or unequivocal statements of intent coupled with actions inconsistent with continued existence of the servitude." Id. at 102-103, ¶ 9.
¶11 HDB points to no unequivocal statement of intent, but instead argues that Vasan (or his predecessor-in-interest) abandoned the easement when (1) he built or improved a block wall between his lot and the easement, and/or (2) he did not object to HDB (or its predecessor-in-interest) building a planter and smaller wall. Even if accurate, however, these alleged acts and omissions did not make it "extremely difficult" for Vasan to use the easement. Nor are they inconsistent with the 1954 Easement's express terms, which provide that the parties grant an easement "at all times hereafter, with or without automobiles, or other vehicles, or on foot, for the purpose of ingress and egress to and from the rear or any other portion of said Lot 4, and/or all other purposes connected with the use of said Lot 4."
¶12 Vasan testified that the wall did not prevent him from using the easement, that his intent in improving the wall was "to limit dust and dirt that frequently would blow across the properties during construction," and that he did not intend to abandon the 1954 Easement. HDB offered the same response to each of these statements:
Contrary to testimony from Mr. Vasan, there is no legal access to the desert wash behind the HDB Property and Vasan Property by way of the easement. Rather, there exists a planter and block wall that prevent such access. Further, [Vasan] built a block wall that physically limits their access to the easement.
HDB cited its own supplemental disclosure statement to support this response. HDB also offered its property manager's testimony and four photographs to support its contention that the planter and another wall impeded Vasan's access to the easement and to the wash behind the two properties. Assuming this is true, as we must in reviewing a grant of summary judgment, there is no evidence to suggest that either the planter or the wall also prevented Vasan from accessing the easement. Whether these items prevented access to someone else's property is irrelevant to either adverse possession or Vasan's alleged abandonment of the 1954 Easement.
¶13 HDB also contended that it and its predecessors-in-interest "exceeded the permitted use of the easement by paving the driveway and building a brick and concrete planter, all without consent or permission," again relying upon its property manager's testimony. But HDB offered no evidence to show that either of these actions exceeded the permitted uses of the 1954 Easement. The declaration of easement authorized both property owners to use the 1954 Easement "with or without automobiles, or other vehicles, or on foot, for the purpose of ingress and egress to and from the rear or any other portion of [the other property]." Paving the driveway did not impede use of the easement with or without vehicles, and there is no evidence to suggest that placing a planter that blocked access to the wash did anything to block access to Vasan's property.
¶14 HDB cited its property manager's testimony that Vasan "built a block wall that physically limits their access to the easement." But that wall only ran "the length of the boundary that separate[d] the HDB property from the [Vasan] property;" it did not block access to the easement from the roadway. Vasan presented undisputed evidence that he used the easement to park vehicles through 2013, when the dispute with HDB arose.
¶15 HDB also contends the superior court should not have considered Vasan's evidence that he used the 1954 Easement to access the wash because he would have been trespassing in the wash. Even assuming Vasan trespassed upon leaving the boundaries of the easement, that cannot be said to have precluded his use of the easement.
¶16 We conclude the court did not err in granting summary judgment to Vasan on HDB's quiet title claim. See Scalia, 229 Ariz. at 103, ¶ 16.
II. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT ON VASAN'S COUNTERCLAIM FOR INJUNCTION, BUT DID NOT ERR AS TO THE QUIET TITLE CLAIM.
¶17 HDB also contends the superior court erred in granting summary judgment on Vasan's counterclaim. Vasan obtained not only a declaration that "HDB has no estate or interest whatsoever in or to the Vasan property, other than as described in the [1954 Easement]," but an order permanently enjoining HDB from "asserting any claim whatsoever in or to the Vasan Property which is or may be adverse to Vasan or Lobo." The record does not support this broad injunction.
¶18 As noted above, Vasan presented undisputed evidence that he used the 1954 Easement to park and access vehicles until 2013 and had no intention of abandoning the easement. But HDB's inability to establish abandonment or adverse possession of the 1954 Easement at this time should not preclude it from bringing a future claim should the facts then warrant. Indeed, the injunction is written in such broad terms that it cannot even be interpreted as limited to future claims regarding the 1954 Easement, which was the only issue before the court.
¶19 Vasan presented no evidence to show that HDB should be enjoined from bringing future claims. See Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 213, ¶ 17 (App. 2012) (stating that "the party moving for summary judgment . . . bears the 'burden of persuasion,' which 'never shifts to the non-moving party.'") (quoting Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 15 (App. 2008)); see also State ex rel. Babbitt v. Goodyear Tire & Rubber Co., 128 Ariz. 483, 486 (App. 1981) (in considering injunctive relief, "the trial court must look at factors which indicate proof of likelihood to engage in future violations").
¶20 We reverse the grant of summary judgment on Vasan's counterclaim as to the injunction, but affirm the quiet title claim.
III. THE SUPERIOR COURT DID NOT ERR IN AWARDING VASAN ATTORNEY'S FEES.
¶21 We review an attorney's fees award for an abuse of discretion and will not overturn the court's decision unless no reasonable basis exists for it. See Associated Indem. Co. v. Warner, 143 Ariz. 567, 571 (1985). HDB alleges that the court erred when it awarded Vasan attorney's fees based on A.R.S. § 12-1103. The statute's technical requirements provide that a party must, twenty days before bringing a quiet title action, ask the opposing party to execute a quit claim deed and tender five dollars for its execution and delivery. A.R.S. § 12-1103(B). If the opposing party refuses to comply, the court may allow the plaintiff to recover attorney's fees. Id.
¶22 HDB argues that the superior court erred when it awarded Vasan attorney's fees because Vasan only became a plaintiff when he filed his counterclaim in December 2016. HDB asserts that Vasan is not entitled to any fees that predate his counterclaim, but points to no authority for its contention outside of the language of the statute, which does not specifically address the question. It is undisputed that Vasan complied with the technical requirements of A.R.S. § 12-1103(B) when he asked HDB to execute the quit claim deed and tendered the five dollars for its execution. We perceive nothing in the statute that limits recovery of fees by a compliant party in an amount appropriate to offset the cost of establishing a meritorious position.
¶23 The court may, at its discretion, award fees under § 11-341.01 to a party by considering the factors set out in Associated Indemnity Co. v. Warner, 143 Ariz. at 570:
1. The merits of the claim or defense presented by the unsuccessful party.
2. The litigation could have been avoided or settled and the successful party's efforts were completely superfluous in achieving the result.
3. Assessing fees against the unsuccessful party would cause an extreme hardship.
4. The successful party did not prevail with respect to all of the relief sought.
¶24 Here, the superior court considered the above factors and awarded fees to Vasan. The court ruled that the case "should have settled
but Plaintiff chose to proceed without evidence to substantiate its claims for the 10 year statutory period necessary for its claim." And the court found that HDB pursued the claim "with no evidence to support the high standard to defeat an express easement," and that assessing fees would not cause HDB extreme hardship.
¶25 HDB fails to show that grant of attorney's fees was unreasonable in the circumstances, and we find no such error. HDB brought its claim without substantial evidence, and the suit could have been avoided altogether.
ATTORNEY'S FEES ON APPEAL
¶26 Both parties request attorney's fees on appeal pursuant to § 12-1103(B). In our discretion, we award Vasan fees and taxable costs as the successful party on appeal upon compliance with ARCAP 21.
CONCLUSION
¶27 We affirm the superior court's grant of summary judgment to Vasan on HDB's quiet title claim and on Vasan's quiet title claim, and reverse the order entering the injunction.