Opinion
No. 2 CA-CV 2014-0050
11-10-2014
EDWARD LEE AND YURIKO LEE, HUSBAND AND WIFE, Plaintiffs/Appellants, v. MARK APEL AND CANDACE QUIBELL, HUSBAND AND WIFE, Defendants/Appellees.
COUNSEL Law Office of Ethan Steele, PC, Tucson By Ethan Steele Counsel for Plaintiffs/Appellants Law Office of John A. MacKinnon, PLLC, Bisbee By John A. MacKinnon Counsel for Defendants/Appellees
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Cochise County
No. CV201300001
The Honorable Karl D. Elledge, Judge
AFFIRMED
COUNSEL Law Office of Ethan Steele, PC, Tucson
By Ethan Steele
Counsel for Plaintiffs/Appellants
Law Office of John A. MacKinnon, PLLC, Bisbee
By John A. MacKinnon
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 This case involves a real property dispute between neighbors who contend they each have acquired a prescriptive easement over the other's property for ingress and egress to their own parking spaces. Appellants Edward and Yuriko Lee appeal from the trial court's judgment denying their claim for an easement and granting an easement to appellees Mark Apel and Candace Quibell. On appeal, the Lees maintain the court's findings of fact are insufficient to support its ruling but nonetheless argue there is "sufficient undisputed evidence" for this court to reverse the trial court and grant them an easement over the Apel-Quibell property. The Lees also challenge the court's award of attorney fees. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's judgment. Bennett v. Baxter Grp., Inc., 223 Ariz. 414, ¶ 2, 224 P.3d 230, 233 (App. 2010). In October 1997, Apel rented a residence located on real property described as "Lots 8, 9, and 10 in Block 32" in Bisbee. Quibell began living there with Apel later that year. Apel purchased the property in March 1998, and Quibell became a joint owner in 2005, after the couple married. In July 2002, Edward Lee purchased Lot 7A, which is adjacent to and south of the Apel-Quibell property. Lee's wife, Yuriko, was added to the deed in February 2003.
Hereinafter, the Lees will be collectively referred to as Lee, and Apel and Quibell will be collectively referred to as Apel.
¶3 Lee has three covered parking spaces located on the north side of his property, and Apel parks his vehicles in an open area along the southern border of his own property. The parties use the same general area to drive in and out of their parking areas. In April 2004, Apel relocated a wooden fence on his property, moving it approximately five feet to the south, nearer to the border between the two properties. The new fence reduced the area the parties had to access their parking spaces.
¶4 The parties initially gave each other permission to enter their properties to access their respective parking spaces. However, Lee requested that Apel sign a "quit claim deed" for an easement over Apel's property. Apel refused to sign the proposed deed but did execute an "access and use easement," allowing Lee to use approximately fourteen feet of his property for "motor vehicle ingress and egress." Lee signed a similar document for Apel to use "an area measuring 8.75 square feet." But the parties continued to dispute the appropriate boundaries for the easements, each claiming more than had been granted.
¶5 In January 2013, Lee filed a complaint seeking to quiet title to a claimed prescriptive easement over Apel's property and alleging Apel had committed trespass. Apel filed a counterclaim for quiet title, similarly seeking a prescriptive easement over Lee's property. After a two-day trial, the court concluded Lee had not established a prescriptive easement but had proven trespass, awarding him nominal damages. The court also concluded Apel had proven the existence of a prescriptive easement and awarded him attorney fees and costs. The court entered a final judgment, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 12-2101(A)(1).
Before trial, Lee signed a revised easement in favor of Apel, but it was still more limited than what Apel had requested.
Findings of Fact
¶6 Lee argues the trial court's findings of fact are insufficient because they do not address the "'essential' or 'ultimate' facts bearing upon each of" the parties' prescriptive easement claims. He further maintains, "[w]ithout these findings, it is not possible to know, nor review, the actual factual and legal basis" of the court's ruling. Whether, following a bench trial, a court has made sufficient findings of fact and conclusions of law is a mixed question of fact and law that we review de novo. Murphy Farrell Dev., LLLP v. Sourant, 229 Ariz. 124, ¶ 13, 272 P.3d 355, 359 (App. 2012).
¶7 "In all actions tried upon the facts without a jury . . . , the court, if requested before trial, shall find the facts specially and state separately its conclusions of law thereon." Ariz. R. Civ. P. 52(a). The purpose of Rule 52(a) is to encourage trial courts to carefully consider the issues raised and to allow appellate courts to review their reasoning. Murphy Farrell Dev., 229 Ariz. 124, ¶ 19, 272 P.3d at 360. However, "[a] litigant must object to inadequate findings of fact and conclusions of law at the trial court level so that the court will have an opportunity to correct them." Elliott v. Elliott, 165 Ariz. 128, 134, 796 P.2d 930, 936 (App. 1990). "Failure to do so constitutes waiver." Id.; see also Trantor v. Fredrikson, 179 Ariz. 299, 300-01, 878 P.2d 657, 658-59 (1994) ("[B]y failing to act at all, a litigant is not in the position to complain about how helpful findings would have been on appeal.").
To the extent Lee suggests this court is bound by the "legal principles agreed to by the parties," we disagree. See Stonecreek Bldg. Co. v. Shure, 216 Ariz. 36, n.3, 162 P.3d 675, 676 n.3 (App. 2007).
¶8 Here, Apel requested findings of fact and conclusions of law before trial. Notably, Lee neither joined nor filed a similar request. Lee also failed to challenge the sufficiency of the trial court's findings and conclusions after the court had issued its ruling. He has therefore waived this argument. See Elliott, 165 Ariz. at 134, 796 P.2d at 936; Trantor, 179 Ariz. at 300-01, 878 P.2d at 658-59. Nevertheless, even assuming the argument is not waived, it is meritless.
¶9 Pursuant to Rule 52(a), a trial court must make findings on the "ultimate facts," but it need not "bolster them by subsidiary findings on evidentiary matters upon which such ultimate facts are based." Gilliland v. Rodriquez, 77 Ariz. 163, 167, 268 P.2d 334, 337 (1954). "The ultimate facts are 'the essential and determinative facts on which the conclusion was reached.'" In re $26,980.00 U.S. Currency, 199 Ariz. 291, ¶ 7, 18 P.3d 85, 88 (App. 2000), quoting Miller v. Bd. of Supervisors, 175 Ariz. 296, 300, 855 P.2d 1357, 1361 (1993). In reviewing a trial court's findings, we must determine "whether they are pertinent to the issues and comprehensive enough to provide a basis for the decision." Gilliland, 77 Ariz. at 167, 268 P.2d at 337.
¶10 The ultimate facts at issue here include those necessary for the trial court to determine whether the parties had established prescriptive easements. Cf. Ellingson v. Fuller, 20 Ariz. App. 456, 459, 513 P.2d 1339, 1342 (1973) (discussing ultimate facts for adverse possession). "To gain a prescriptive easement, 'a person must establish 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.'" Paxson v. Glovitz, 203 Ariz. 63, ¶ 22, 50 P.3d 420, 424 (App. 2002), quoting Harambasic v. Owens, 186 Ariz. 159, 160, 920 P.2d 39, 40 (App. 1996) (alteration in Paxson). And, "'[t]he scope of a prescriptive easement is determined by the use through which it is acquired.'" Stamatis v. Johnson, 71 Ariz. 134, 138, 224 P.2d 201, 203 (1950), quoting Hannah v. Pogue, 147 P.2d 572, 574 (Cal. 1944).
¶11 Here, the trial court's findings of fact included a review of each of the properties' description and use, their current and previous owners, and when each party acquired them. Pointing out the strengths and weaknesses in the evidence, the court then summarized the trial testimony. For example, the court found that one of Lee's witnesses, who had previously lived in the area and had used Apel's property for vehicular access when taking one of Lee's predecessors on errands, "could not identify, with specificity, the portion of [Apel's property] he used." The court also noted that another of Lee's witnesses "estimated the extent" of his use of Apel's property. In contrast, it found that Apel had "described in detail the route he took (and still takes) across [Lee's property] to access [his] parking spaces." The court explained that, "[f]rom October 1997 to the present," Apel "drove along the cobblestone driveway for a distance of approximately 32 feet to access the westernmost parking space on Lot 8."
¶12 The trial court further adopted as "supplemental facts" those agreed upon by the parties in their joint pretrial statement, to the extent they did not conflict with its own findings. See Gilliland, 77 Ariz. at 168, 268 P.2d at 338 ("It is unnecessary for the court to make findings on undisputed matters."). The court also listed the applicable legal principles, noting that the party claiming a prescriptive easement bears the burden of proof. See Paxson, 203 Ariz. 63, ¶ 22, 50 P.3d at 424; Spaulding v. Pouliot, 218 Ariz. 196, ¶ 14, 181 P.3d 243, 248 (App. 2008).
¶13 Relying on its findings of fact, the trial court then concluded, Lee "ha[s] not clearly proven by competent evidence the establishment and scope of a prescriptive easement over [Apel's property]." The court also concluded, Apel "ha[s] clearly proven by competent evidence the establishment and scope of a prescriptive easement on [Lee's property]." The findings, which discussed the parties' and their predecessors' use of the properties for parking access, are pertinent to the establishment of a prescriptive easement and comprehensive enough to support the court's ruling. See Gilliland, 77 Ariz. at 167, 268 P.2d at 337.
¶14 Citing Fritts v. Ericson, 87 Ariz. 227, 349 P.2d 1107 (1960), and Miller v. McAlister, 151 Ariz. 435, 728 P.2d 654 (App. 1986), Lee nonetheless contends the trial court failed to make findings on each of the elements necessary to establish a prescriptive easement. However, those cases are distinguishable. In Fritts, our supreme court remanded the case involving a claim of adverse possession for more specific findings because the judgment entered by the trial court contained "vague, indefinite and unintelligible descriptions," leaving the supreme court "completely in the dark" as to the portion of the property included in the judgment. 87 Ariz. at 233, 349 P.2d at 1110-11. In addition, the evidence supporting the judgment was unclear. Id. And, in Miller, the trial court made no findings whatsoever. 151 Ariz. at 437, 728 P.2d at 656.
¶15 We acknowledge the trial court's findings of fact in this case could have been more precise as to the elements of a prescriptive easement. For example, the court observed that "Lee testified the scope of the express easement [granted by Apel] was different from the historical access to the parking spaces on Lot 7A," but it did not elaborate on his use. But such specificity is not necessary for our review in light of the court's other findings. See Miller, 175 Ariz. at 299, 855 P.2d at 1360 (findings sufficient if we can test validity of judgment); cf. Ellingson, 20 Ariz. App. at 459-60, 513 P.2d at 1342-43 (although findings did not specifically refer to elements of adverse possession, elements encompassed within definition of term, which trial court used). Based on the language used, the court concluded that Lee had not sustained his burden of proof, particularly with regard to the scope of the easement, while Apel had. The court's findings of fact therefore are sufficient under Rule 52(a). See Murphy Farrell Dev., 229 Ariz. 124, ¶ 19, 272 P.3d at 360.
In an apparent attempt to bolster the evidence regarding his use of Apel's property, Lee has submitted an appendix on appeal that includes a trial exhibit showing the two properties. But Lee has modified the exhibit by drawing lines and dimensions of his claimed easement. We disregard this document because our review is limited to the trial court's record. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990).
¶16 Lee also argues that, "[g]iven the fact that the [t]rial [c]ourt's findings . . . failed to include necessary findings of 'essential facts,'" we must determine the "appropriate remedy." He maintains that, despite the insufficient findings of fact, this court "may order judgment in [his] favor if supported by the undisputed evidence." We need not reach this issue, however, because we have already determined that the court made sufficient findings to support its judgment. Moreover, Lee essentially is asking us to reweigh the evidence on appeal. But that is not our function, and, instead, we defer to the trial court's findings. See $26,980.00 U.S. Currency, 199 Ariz. 291, ¶ 23, 18 P.3d at 92.
¶17 Lee contends, however, that the trial court's finding on Apel's use of his easement is "erroneous because the evidence unquestionably shows that the location of Apel['s] path of travel materially changed after moving the[] fence in 2004." As we understand his argument, Lee seems to suggest Apel failed to establish a prescriptive easement because he did not maintain the same use for the requisite ten-year period. Notably, he cites no legal authority to support this argument. See Ariz. R. Civ. App. P. 13(a)(6) (opening brief shall include argument with citation to authorities); Sholes v. Fernando, 228 Ariz. 455, ¶ 16, 268 P.3d 1112, 1118 (App. 2011) (failure to support argument waives issue on appeal).
¶18 As evidence of a change in use, Lee points to "Exhibit #1," a notarized statement by Apel. But, in that affidavit, Apel only admits the relocation of his fence changed the place where he parked his vehicles on his own property, not how he accessed those spaces using Lee's property. The affidavit therefore does not support Lee's contention that there was a change in use. Lee also directs us to trial testimony that he maintains "contradict[s] Apel's assertion that he . . . traveled exactly the same path before and after [the fence relocation]." But he is again asking us to reweigh the evidence on appeal, which we will not do. See $26,980.00 U.S. Currency, 199 Ariz. 291, ¶ 23, 18 P.3d at 92. We see no error in the trial court's findings.
It is unclear from the record whether the "Exhibit #1" Apel cites on appeal was admitted at trial. Exhibit #1 at trial was a withdrawn video, not a notarized statement. However, Exhibit #42 was an admitted affidavit from Apel, originally made in support of his motion for partial summary judgment. Although the language does not match perfectly, it is similar to that cited by Lee as "Exhibit #1."
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Attorney Fees
¶19 Lee asserts that because the trial court's judgment granting Apel a prescriptive easement and denying his claim should be reversed, so too should the award of attorney fees in favor of Apel. The court awarded Apel attorney fees pursuant to A.R.S. § 12-1103(B). We generally review an award of attorney fees for an abuse of discretion. See Jones v. Burk, 164 Ariz. 595, 598, 795 P.2d 238, 241 (App. 1990); Kay v. Biggs, 13 Ariz. App. 172, 177, 475 P.2d 1, 6 (1970).
¶20 However, because we reject Lee's argument on the merits, his claim with respect to attorney fees similarly fails. Moreover, we note the trial court's award was consistent with § 12-1103(B)—Apel tendered a quitclaim deed to Lee more than twenty days prior to bringing this claim, along with $5 for execution and delivery of the deed, and Lee refused to execute it. See Lewis v. Pleasant Country, Ltd., 173 Ariz. 186, 195, 840 P.2d 1051, 1060 (App. 1992) (describing statutory criteria); see also Spaulding, 218 Ariz. 196, ¶ 29, 181 P.3d at 251 (awarding fees under § 12-1103(B) for counterclaim).
Disposition
¶21 For the reasons stated above, we affirm. Both parties have requested their attorney fees and costs on appeal pursuant to § 12-1103(B). As discussed above, Apel has fulfilled the requirements of that statute. Therefore, in our discretion, we grant Apel attorney fees and costs on appeal upon compliance with Rule 21, Ariz. R. Civ. App. P. See Lewis, 173 Ariz. at 195, 840 P.2d at 1060 (fees on appeal available under § 12-1103(B)).