Opinion
2 CA-CV 2021-0123
01-26-2023
Arlene D. Leoni, a single woman, and Dennis E. Leoni, a married man, Plaintiffs/Appellants, v. Nancy Ochoa Droeger, a single woman, Defendant/Appellee.
Richard A. Beck, Sahuarita Counsel for Plaintiffs/Appellants McMahon & Ekblaw, Patagonia By James V. McMahon Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Santa Cruz County No. CV201500168 The Honorable Thomas Fink, Judge
Richard A. Beck, Sahuarita
Counsel for Plaintiffs/Appellants
McMahon & Ekblaw, Patagonia
By James V. McMahon
Counsel for Defendant/Appellee
Vice Chief Judge Staring authored the decision of the Court, in which Presiding Judge Eppich and Judge Brearcliffe concurred.
MEMORANDUM DECISION
STARING, Vice Chief Judge:
¶1 Arlene and Dennis Leoni appeal from the trial court's judgment after a bench trial declaring Nancy Droeger the owner of certain real property by adverse possession. For the reasons that follow, we reverse and remand.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's judgment. See Smith v. Beesley, 226 Ariz. 313, ¶ 3 (App. 2011). In 1975, Rafael Miranda received a warranty deed for lots 17 and 22 within the town of Patagonia, Santa Cruz County, Arizona. Lots 17 and 22 are separated by a road. In 1978, Nancy and Gregory Droeger purchased lots 18 and 20, which are adjacent to and share a boundary with lot 22. At that time, this boundary was delineated by a fence. The Droegers subsequently moved the fence between six to ten feet into lot 22, and Miranda later returned the fence to its original position. In November 1979, after the Droegers again moved the fence over into lot 22, Miranda filed a lawsuit against them. The lawsuit was dismissed in June 1981.
¶3 In 1981 or 1982, after the dismissal of the lawsuit, Nancy expressed an interest in purchasing lots 17 and 22, and Miranda "said [she] could have both of them" and told her not to "worry about it, it's yours, nobody wants it." Around the same time, Gregory wrote a letter to Miranda offering to purchase lot 22 and proposing a trade of other Patagonia properties owned by the Droegers for Miranda's property. Shortly thereafter, Nancy entered into a verbal agreement with Miranda to rent an adobe structure on lot 17 for furniture storage. The Droegers later made improvements to that structure, including adding a ceiling, windows, and electricity. Additionally, the Droegers removed the fence between their property and lot 22, built a fence surrounding both properties, and began constructing a small barn on lot 22 for their daughter's horse.
¶4 In 1982 or 1983, after the Droegers had partially completed construction of the barn and had finished construction of the fence encircling both their property and lot 22, Miranda visited his property and observed what was happening. The Droegers again offered to purchase lots 17 and 22 from Miranda, but he refused, instead telling Nancy not to "worry about it, nobody's interested in this property," and "it was [hers]." This was the last time Nancy ever saw or talked to Miranda.
¶5 Within a couple of years of Miranda's visit, the Droegers converted the barn into a shop with running water and electricity. The Droegers also parked a travel trailer on lot 22 beginning in approximately 1985 or 1986. Over the years, the Droegers, and later just Nancy, maintained lot 22 by planting trees and bushes, mowing the lawn, installing utilities, and replacing the fence surrounding the Droegers' property and lot 22. Gregory moved out of the marital home in 2004 after he and Nancy had divorced, but Nancy continued to pay rent for her use of the adobe structure on lot 17 until 2011.
¶6 When Miranda died in 2012, he left lots 17 and 22 to his niece and nephew, Arlene and Dennis Leoni. Arlene subsequently demanded back rent from Nancy and terminated Nancy's lease, asking her to leave the property. In 2015, the Leonis filed a lawsuit against Nancy relating to lots 17 and 22, seeking to quiet title and asserting claims of breach of contract, unjust enrichment, and trespass.
Miranda created a revocable trust on October 1, 2011, "for the disposition of his assets upon his death, including the Patagonia lots, which he bequeathed to [the Leonis]."
¶7 Nancy answered, denying most of the substantive allegations and counterclaiming to quiet title to lots 17 and 22 on the grounds that she had adversely possessed the properties. In an amended answer and counterclaim, Nancy later abandoned her adverse possession claim as to lot 17 but maintained it as to lot 22. Following a two-day bench trial, the trial court determined Nancy was "the owner of lot 22 by adverse possession." This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Nancy moved to amend her answer and counterclaim to withdraw her claim to lot 17, and the court granted that motion. The amended answer does not appear in the record, but the parties' amended joint pretrial statement and Nancy's failure to assert a claim to lot 17 at trial are consistent with her withdrawal of any adverse possession claim to lot 17.
We initially dismissed the appeal for lack of jurisdiction, concluding the trial court's certification of the judgment as final under Rule 54(c), Ariz. R. Civ. P., was inappropriate based on unresolved issues related to the Leonis' claims for back rent and trespass as to lot 17.
Discussion
¶8 On appeal, the Leonis argue Nancy failed to establish her possession of lot 22 was "open and notorious" and therefore the trial court erred in concluding she had "established] a prima faci[e] case for adverse possession." Further, they challenge the court's finding that Nancy's use of lot 22 was not permissive. Finally, the Leonis contend the court failed to apply the correct standard of proof for an adverse possession claim and failed to base its findings on credible evidence. "We are bound by the trial court's findings of fact unless they are demonstrated to be clearly erroneous." Combs v. DuBois, 135 Ariz. 465, 468 (App. 1982). But "[w]e are not bound by the trial court's conclusions of law." Id. "A finding of fact is not clearly erroneous if substantial evidence supports it, even if substantial conflicting evidence exists." Kocher v. Dep 't of Revenue, 206 Ariz. 480, ¶ 9 (App. 2003).
Although the Leonis' reply brief includes appropriate citations to the record, their opening brief fails to comply with Rule 13(a)(5), Ariz. R. Civ. App. P., which requires an appellant's opening brief to include a "'statement of facts' that are relevant to the issues presented for review, with appropriate references to the record." Further, although Rule 13(a)(7)(A) requires the argument section of an opening brief to contain citations "to the portions of the record on which the appellant relies," the Leonis' brief largely fails to comply with this rule. While we could find their arguments waived, see Rice v. Brakel, 233 Ariz. 140, ¶ 28 (App. 2013) (party waives claim on appeal by failing to cite relevant portions of the record or address basis of trial court's decision), in the exercise of our discretion, we address the merits. See Varco Inc. v. UNS Electric, Inc., 242 Ariz. 166, n.5 (App. 2017) (waiver for failure to comply with Rule 13 is discretionary); Adams v. Valley Nat'l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) (we prefer to decide cases on merits).
¶9 Title by adverse possession requires "an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another," A.R.S. § 12-521(A)(1), for a period of at least ten years, A.R.S. § 12-526(A). Once an individual claiming title by adverse possession establishes his or her possession was "open, visible, continuous, and undisturbed" for the statutory period, we presume the possession was "under a claim of right and not permissive." Spaulding v. Pouliot, 218 Ariz. 196, ¶ 25 (App. 2008). Then, the burden shifts to the landowner to establish "he or she expressly or impliedly permitted the claimant's use of the property." Id. ¶¶ 24-25. If the landowner fails to meet this burden, the possession is presumed to be hostile and title by adverse possession is established. See id.
In Spaulding, we applied the burden-shifting framework to both adverse possession and prescriptive easements. 218 Ariz. 196, ¶¶ 14, 24-25. We explained that, "[a]lthough the requirements for establishing a prescriptive easement and title by adverse possession are not identical, we generally apply their principles interchangeably." Id. ¶ 24.
¶10 "[I]f a use is shown to have begun with the owner's permission, any subsequent use is presumed to have remained permissive." Id. ¶ 15. In other words, "a use that begins permissively cannot 'ripen into a prescriptive right' by the mere passage of time." Id. (quoting Etz v. Mamerow, 72 Ariz. 228, 232 (1951)). "Permission can be either express or implied." Id. Even without evidence of permission, "a use may be deemed permissive if the user 'acknowledge[s]' his or her use of property was 'in subordination to the owner's title.'" Id. ¶ 21 (alteration in Lewis) (quoting Lewis v. Pleasant Country, Ltd., 173 Ariz. 186, 190 (App. 1992)); see Combs, 135 Ariz. at 468 (possession is not adverse where occupant of land acknowledges the title of the real owner before the statutory period has run).
¶11 An initially permissive use of land can become hostile with actions that amount to a "clear disclaimer of the true owner's title." Lewis, 173 Ariz. at 191; see Spaulding, 218 Ariz. 196, ¶ 15 (to overcome presumption of continued permissive use, claimant's later actions must "indicate[] to the owner that the use had become hostile and under a claim of right"). Such actions must give the landowner some notice of the claimant's intent to change the character of the use. See Herzog v. Boykin, 148 Ariz. 131, 133 (App. 1985); Spillsbury v. Sch. Dist. No. 19 of Maricopa Cnty., 37 Ariz. 43, 47 (1930) (occupancy beginning with oral grant of permission may ripen to adverse possession if "there is a positive disclaimer and disavowal of the owner's title," "notice of which is brought home to the landowner"). "Sufficient notice of a hostile and adverse use has been defined as acts of possession which 'fly the flag' over the land telling the owner the land is held under an adverse claim." Herzog, 148 Ariz. at 133 (quoting Knapp v. Wise, 122 Ariz. 327, 329 (App. 1979)).
¶12 In Combs v. DuBois, we reversed the trial court's ruling in favor of Marcellus and Eva DuBois on their adverse possession claim, concluding the evidence showed their use of the property at issue was permissive. 135 Ariz. at 469-70. In 1974, Combs purchased a 161-acre lot completely surrounded by property owned by the DuBoises. Id. at 466. The DuBois family had been maintaining and using the 161-acre property for cattle grazing since 1942. Id. When the DuBoises refused to grant Combs an easement for access to his land and instead offered to purchase the land from him, Combs filed a complaint seeking a private way of necessity. Id. at 466-67. The DuBoises counterclaimed, asserting ownership of Combs's property by adverse possession. Id. at 466.
¶13 At trial, Marcellus testified that, after his family had acquired their property, he wrote several letters to the Hooker sisters-the previous owners of Combs's land-about purchasing or leasing the property but never received a response. Id. He further testified that when the Hooker sisters visited their property in 1954, he "showed them their country" and told them he was "going to use [the property] like it was [his] own," and the sisters nodded their heads in response. Id. at 466-67 (emphasis omitted). The DuBoises continued to offer to purchase or lease the property after the sisters' visit. Id. at 467. Marcellus admitted at trial that "he never told the Hooker sisters or Combs that he owned the property because he did not have to since he knew he owned it." Id.
¶14 The court concluded the DuBoises had used the land "under a claim of right and without permission," id., and, as noted, we reversed, reasoning the court's conclusion was "not supported by the findings of fact nor by the uncontradicted testimony of [the Duboises] themselves," id. at 469. Additionally, we explained that, under the circumstances, the DuBoises' offers to purchase or lease the property from both the Hooker sisters and Combs established they "recognized that their claim, if any, was subordinate to that of the true owners of the property" and were not "merely trying to 'buy their peace.'" Id. at 470.
¶15 Here, Nancy testified she and her former husband had "once or twice" offered to purchase both lots 17 and 22 from Miranda but he "was never interested in selling, he always told [her] that it was [hers], nobody was interested in it." When asked if she had been "using the property with his permission," Nancy responded, "I was not using the property with his permission. I used that property as my own. I intended to use it as my own and that's what I did." And, when asked to confirm her testimony that Miranda had given the property to her, she replied, "[W]hen I offered to purchase it, he said, do not worry about it, nobody's interested in this property. Not that he gave it to me, he said nobody was interested. My intent was to take lot 22 and that's what I did." Nancy also testified she had "include[d] lot 22 in [her] homeowner's insurance policy" and intended to own lot 22 since the settlement of the lawsuit with Miranda.
¶16 After determining Nancy had shown that her use of lot 22 during the statutory period was "open, visible, continuous, unmolested and exclusive," and therefore that such use was presumed to be under a claim of right, the trial court turned to the question of whether the Leonis had satisfied their burden of establishing that Nancy's use was permissive. The court noted the parties' testimony was conflicting as to whether Miranda had "intended the Droegers' use to be permissive" and whether "the rent paid was only for use of the adobe on lot 17, or for both lot 22 and 17." It also stated that "[t]rying to discern the intentions and understandings of a dead person from trial testimony consisting of conflicting hearsay statements he is alleged to have made is problematic," and "Miranda's known actions (and inaction) . . . reveal far more as to his intentions." The court went on to consider, among other things, that Miranda had: not spoken to the Droegers about their use of his property since the early 1980s; "[s]howed no interest in pursuing" the 1979 property line lawsuit; "[n]ever sought to list any of the property for sale" and was not interested in a formal rental agreement; "[expressed no objection to any of the Droegers' use of lot 22," including construction of the barn; and "[s]howed no interest in returning to live in Patagonia," rarely returning to check on the property. It also stated Miranda had "[a]llowed the Droegers to use lot 22 as entirely their own without any stated objection."
¶17 The trial court ultimately found Miranda "had no measurable or abiding interest in whatever was happening on lots 17 and 22," adding it appeared he "simply did not care about the property" or "whether rent was being paid" on either lot. In light of its findings, the court stated it could not "conclude that the [Leonis had] shown that Nancy Droeger's use was permissive." It continued,
Permission implies a person's knowledge, along with some words, measures, actions or indications of consent or assent to the actions
taken by another. Implied permission is consent which is not expressly granted by a person, but rather implicitly granted, or inferred, by a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). Based upon the evidence presented in this case, the court does not infer that Rafael Miranda's indifference, apathy, lack of concern and impassivity over the Patagonia lots is evidence from which the court should infer [his] implied consent to Nancy Droeger's use of lot 22.
¶18 On appeal, the Leonis argue the "trial court's finding that [Nancy's] use of lot 22 was not permissive is clearly erroneous." In support of their argument, they appear to suggest the evidence indicated Nancy had been paying rent to Miranda for use of both lots 17 and 22 and therefore her possession of lot 22 could not have been hostile. Further, the Leonis assert the court failed to consider the "Droegers' recognition of superior title evidenced by their offers to purchase Miranda's property," contending such offers "negated their claim of hostility against Miranda." And, they argue, these offers were not merely attempts to "buy [the] peace" because the Droegers had offered "valuable consideration" and the 1979 litigation had already been dismissed with prejudice.
¶19 In response, Nancy contends "there were no facts to support the proposition that Mr. Miranda gave his permission to [her] to use Lot 22." Moreover, she argues that although the "facts of [this] case find a recognition of ownership by Mr. Miranda," they also show that she made "permanent improvements" to and built "substantial enclosures" on lot 22. Nancy asserts these "improvements" are sufficient to "overcome the recognition of ownership when Mr. Miranda d[id] nothing for more than the statutory period of ten years, or in this case thirty-eight years, to exert ownership over Lot 22."
¶20 Assuming without deciding Nancy's possession of lot 22 was open, thus giving rise to the presumption that such possession was hostile, the trial court erred in concluding the Leonis had failed to rebut that presumption. Nancy's use of lot 22 was permissive as evidenced by her own uncontradicted testimony that Miranda "always told [her] that it was [hers]" and that "since 1978, [she knew] that Ra[f]ael Miranda was the owner of lot 22 and lot 17." Additionally, she and her former husband testified they had made multiple offers to purchase Miranda's lots between 1981 and 1983. See Combs, 135 Ariz. at 469-70 (attempt to purchase land may indicate acknowledgment of another's superior title).
¶21 Although Nancy concluded she had not used the land with Miranda's permission because she "intended the property to be [hers]" and "used it as [hers] for over 37 years," a claim of right must exist more than solely "in the mind of the person claiming it. It must in some way be asserted in such manner that the owner may know of the claim." LaRue v. Kosich, 66 Ariz. 299, 303 (1947). Once Miranda gave his broad permission for Nancy to use lot 22-a fact the trial court acknowledged - her subsequent use of the lot is "presumed to have remained permissive," Spaulding, 218 Ariz. 196, ¶¶ 15, 24, and could not have become hostile without a clear disclaimer of Miranda's title, see Lewis, 173 Ariz. at 191. The record is devoid of evidence establishing Nancy made such a disclaimer.
¶22 Although the trial court appears not to have reached the issue of whether Nancy's actions were sufficient to overcome the presumption of permissive use, there is no indication in the record of Nancy engaging in overt acts or making statements indicating her use of lot 22 exceeded the boundless permission Miranda had given her in the early 1980s. As the court found, "[o]ver the course of 38 years Nancy Droeger . . . openly fenced the lot, built a barn/work shed on it, ran utilities to it[,] planted a garden and trees on it, kept animals on it, stored an Airstream trailer on it, and generally used it as [her] own." However, these activities were insufficient to "indicate[] to [Miranda] that [Nancy's] use had become hostile and under a claim of right." Spaulding, 218 Ariz. 196, ¶ 15; see also Combs, 135 Ariz. at 468 (even if permissive possession is "long continued" and "exclusive," doctrine of adverse possession is still inapplicable).
¶23 Indeed, Nancy testified Miranda had seen the completed fence encircling her property and lot 22, as well as the partially constructed barn, when he visited the property in approximately 1982 or 1983. And, Miranda told her during his visit that "no one would want" lot 22 and that it was hers, and she never saw Miranda again or had any other contact with him regarding lot 22. Thus, her use of the property was without any claim of right adverse to Miranda's ownership, and the court's finding that her possession of lot 22 was not permissive was clearly erroneous. See Combs, 135 Ariz. at 468. Accordingly, the court erred in concluding Nancy had obtained title to lot 22 by adverse possession.
Attorney Fees and Costs
¶24 Both parties request attorney fees on appeal. Nancy requests attorney fees and costs pursuant to Rule 21, Ariz. R. Civ. App. P., and A.R.S. § 12-1103(B), the latter of which authorizes an award to the prevailing party in an action to quiet title if certain prerequisites are met. See Cook v. Grebe, 245 Ariz. 367, ¶ 5 (App. 2018). Assuming without deciding she would otherwise be entitled to fees under this statute, we decline her request because she is not the prevailing party on appeal.
¶25 Without citation to legal authority, the Leonis request that we award them attorney fees on appeal and "for trial." A general request for an award of attorney fees on appeal without citation to statutory authority or case law supporting the request does not comply with the requirement that all such claims "specifically state the statute, rule, decisional law, contract, or other authority for an award of attorneys' fees." Ariz. R. Civ. App. P. 21(a)(2). Accordingly, we deny the Leonis' request. See Parkway Bank & Tr. Co. v. Zivkovic, 232 Ariz. 286, ¶ 24 (App. 2013). But, as the prevailing party on appeal, the Leonis are entitled to their costs upon compliance with Rule 21. See A.R.S. § 12-341.
Disposition
¶26 For these reasons, we reverse the trial court's judgment declaring Nancy the owner of lot 22 by adverse possession and remand for further proceedings consistent with this decision.