Opinion
No. 1 CA-CV 17-0555
01-31-2019
KIMBERLY A. LUJAN, Plaintiff/Appellee/Cross-Appellant, v. C&D ENGDAHL LP, Defendant/Appellant/Cross-Appellee
COUNSEL Dessaules Law Group, Phoenix By Jonathan A. Dessaules, F. Robert Connelly Counsel for Plaintiff/Appellee/Cross-Appellant Platt and Westby PC, Phoenix By R. Andrew Rahtz Counsel for Defendant/Appellant/Cross-Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2016-009196
The Honorable Randall H. Warner, Judge
AFFIRMED
COUNSEL Dessaules Law Group, Phoenix
By Jonathan A. Dessaules, F. Robert Connelly
Counsel for Plaintiff/Appellee/Cross-Appellant Platt and Westby PC, Phoenix
By R. Andrew Rahtz
Counsel for Defendant/Appellant/Cross-Appellee
MEMORANDUM DECISION
Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined. WEINZWEIG, Judge:
¶1 C&D Engdahl, LP appeals the superior court's order quieting title in Kimberly Lujan's favor, and Lujan cross-appeals the court's order denying her request for attorneys' fees. Finding no error, we affirm.
Duane and Christina Engdahl (the "Engdahls") are the principals of C&D Engdahl, LP.
FACTS AND PROCEDURAL BACKGROUND
¶2 Lujan and the Engdahls have been next-door neighbors in the Courtland Village II subdivision for over twenty years. They share a property line and block wall. As a quirk of the subdivision, the block wall does not track the property line, but instead sits five feet west of the recorded boundary line. As a result, a five-foot strip of the Engdahls' lot has always been located on Lujan's side of the block wall. This appeal concerns that five-foot strip of land (the "disputed land").
¶3 Until this dispute, the parties had always treated the block wall as the boundary line. The Engdahls had never asserted or even suggested they possessed an interest in the disputed land. And Lujan treated and used the disputed land as her own, even landscaping it.
¶4 The Engdahls reversed course in May and June 2016, asserting, for the first time, their ownership and control over the disputed land. In particular, the Engdahls submitted an architectural application to the Courtland Village II Association ("Association"), which governs the subdivision and enforces the CC&Rs, for permission to move the existing wall, aligning it with the recorded property line and using the additional space to construct a driveway and RV storage area. The Engdahls received approval for the project from the Association and City of Phoenix.
¶5 Lujan protested. Her counsel wrote a letter to the Engdahls asserting she owned the disputed land and the Engdahls' plans to tear down the wall and build an RV storage area would violate provisions in the CC&Rs regarding motor vehicles and party fences. She demanded the Engdahls stand down. The Engdahls disagreed and promised to move forward with the project unless Lujan obtained a court order. Lujan then took the first statutory step toward a quiet title action on June 22, 2016, tendering five dollars to the Engdahls and requesting they sign a quitclaim deed to the disputed land to avoid litigation. The Engdahls refused and intended to begin construction on July 4, 2016.
¶6 Lujan sued the Engdahls and Association on July 1, 2016, seeking a temporary restraining order and preliminary injunction. She asserted two claims against the Engdahls for quiet title and breach of contract, and one claim against the Association for breach of contract. Lujan alleged she owned the disputed land or acquired it via adverse possession. The Engdahls counterclaimed for quiet title and breach of contract. The court granted a temporary restraining order, but a preliminary injunction was unnecessary because the Engdahls agreed to delay construction until the lawsuit was resolved.
¶7 Trial was held on May 18, 2017. Three witnesses testified, including Lujan and the Association's president and accountant. The Engdahls called no witnesses. After trial, the court entered findings of fact and conclusions of law, deciding that (1) Lujan prevailed on her quiet title claim under the independent theories of adverse possession and boundary by acquiescence, and (2) the Engdahls lost on their quiet title counterclaim. The court rejected Lujan's contract claims and the Engdahls' contract counterclaims.
¶8 Lujan requested her attorneys' fees under A.R.S. § 12-1103(B), A.R.S. § 12-341.01 and the CC&Rs. The Association sought attorneys' fees under A.R.S. § 12-341.01. The court awarded fees to the Association but denied Lujan's request because the core issue was quiet title, not breach of contract, and Lujan did not comply with the strict requirements to obtain fees under the quiet title statute.
¶9 The parties timely appealed and cross-appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
A. The Engdahls' appeal
¶10 The Engdahls challenge the superior court's decision quieting title in Lujan's favor. As a threshold matter, they challenged the court's adverse possession rationale, but neglected to contest the court's alternative basis for quieting title—boundary by acquiescence. A boundary by acquiescence claim requires different elements than an adverse possession claim. Compare Berryhill v. Moore, 180 Ariz. 77, 82 (App. 1994) (adverse possession claim requires proof that a person (1) actually and visibly appropriated the disputed land, and (2) commenced and continued the appropriation under a claim of right inconsistent with and hostile to the claim of another for a period of 10 years), with Mealey v. Arndt, 206 Ariz. 218, 221-22, ¶¶ 13, 15 (App. 2003) (boundary by acquiescence claim requires proof that (1) a party occupy or possess property up to a definite, visible and clearly marked boundary, and (2) that person and the other party mutually acquiesce to that boundary line as the dividing line between their properties for at least 10 years). We affirm on this basis. See Navajo Nation v. MacDonald, 180 Ariz. 539, 548 (App. 1994).
¶11 We also affirm on the merits. The Engdahls argue the CC&Rs preclude the adverse possession theory adopted in the superior court to quieting title. We review legal issues of contract interpretation under a de novo standard. Cypress on Sunland Homeowners Ass'n v. Orlandini, 227 Ariz. 288, 297, ¶ 31 (App. 2011).
¶12 We assume, but do not reach or decide, that CC&Rs can expressly exclude the application of adverse possession within a given community. Even so, the CC&Rs here would not accomplish this exclusion. The CC&Rs do not mention adverse possession or quiet title. The Engdahls ask us to interpret a separate general restriction in the CC&Rs to preclude adverse possession. The provision reads: "No lot shall be further subdivided and no portion less than all of any such lot, or any easement shall be conveyed by any owner."
The parties did not address this issue in their briefs.
¶13 The superior court's finding of adverse possession here does not implicate this section. The court's decision did not "further subdivide[]" a lot because two lots remained at all times; neither lot was divided into smaller parts. Subdivision, Black's Law Dictionary (10th ed. 2014) ("The division of a thing into smaller parts. . . . subdivide, v[er]b."). Nor did the Engdahls "convey" the disputed land to Lujan. Convey, Black's Law Dictionary (10th ed. 2014) ("[T]ransfer or deliver (something, such as a right or property) to another, esp[ecially] by deed or other writing."). Rather, title to the disputed property vested with Lujan "at the end of the adverse possession period." Babo v. Bookbinder Fin. Corp., 27 Ariz. App. 73, 74 (1976).
The Engdahls further argue that the creation of a zoning violation precludes the superior court's adverse possession finding. We need not consider the argument because they have cited no supporting authority. In re Aubuchon, 233 Ariz. 62, 64-65, ¶ 6 (2013) ("[W]e consider waived those arguments not supported by adequate explanation, citations to the record, or authority."). The Engdahls' parallel reliance on public policy is misplaced because this court cannot ignore the legislature's directives on quiet title and adverse possession to achieve some other policy objectives. See A.R.S. § 12-1101(A) (anyone having or claiming an adverse interest in a property's title may initiate a quiet title action); A.R.S. § 12-526(A) (right to recover land from adverse possessor lost after ten years).
B. Attorneys' fees
¶14 Lujan contests the superior court's denial of her request for attorneys' fees under A.R.S. § 12-1103(B), A.R.S. § 12-341.01(A) and the CC&Rs. Prevailing parties in quiet title actions may recover their attorneys' fees if they meet all requirements set forth in A.R.S. § 12-1103(B), which requires them to first tender five dollars to the adverse party with a request for that party to execute a quit claim deed, and then to wait 20 days before filing suit. See Lange v. Lotzer, 151 Ariz. 260, 262 (App. 1986) ("The Arizona Legislature has expressly determined that only a prevailing party who follows certain prerequisites may recover attorney's fees in quiet title actions.").
¶15 Lujan concedes she did not meet all formal, technical requirements under A.R.S. § 12-1103(B). Though she tendered the proper sum and request, she did not wait twenty days to file the lawsuit. Lujan asks us to ignore the twenty-day requirement because the Engdahls had rejected her request and were set to immediately begin construction. She also makes several policy arguments, such as the unwanted consequence of rewarding the Engdahls for their "aggressive yet meritless conduct in pressing forward with construction."
¶16 At bottom, though Lujan's arguments might resonate in equity, we are powerless to ignore the legislature's clear and express directive. Lewis v. Debord, 238 Ariz. 28, 31, ¶ 11 (2015) ("It is not the function of the courts to rewrite statutes . . . .") (quotation omitted). The court correctly denied Lujan's fee request under A.R.S. § 12-1103(B). Long v. Clark, 226 Ariz. 95, 96, ¶ 5 (App. 2010) ("[T]o recover attorneys' fees in a quiet title action, a party must meet all requirements set forth in [statute].").
Lujan also directs us to Mariposa Development Company v. Stoddard, 147 Ariz. 561 (App. 1985), and cases discussing futility. But these cases are inapposite. The Stoddard court determined only that the requirement of tendering to the opposing party five dollars for execution and delivery of a deed was met under the facts of that case. 147 Ariz. at 564-65. And the futility cases never suggest a court may overlook a statutory time limit. See, e.g., Coronado Co. v. Jacome's Dep't Store, Inc., 129 Ariz. 137, 140 (App. 1981) (discussing futility in context of lease agreement).
¶17 Nor was Lujan entitled to her attorneys' fees under A.R.S. § 12-341.01 or the CC&Rs. Though Lujan and the Engdahls asserted dueling contract actions, Lujan did not prevail on her contract claim and the "essence of the action" was for quiet title. Keystone Floor & More, LLC v. Ariz. Registrar of Contractors, 223 Ariz. 27, 30, ¶ 10 (App. 2009). As examples, neither Lujan's trial memorandum or the joint pretrial statement mentioned Lujan's contract claim against the Engdahls, Lujan said the action was "quiet title" at trial when asked by the superior court and the Engdahls' allegations and arguments regarding the CC&Rs centered on how the CC&Rs prevented Lujan from quieting title. Further, the attorneys' fees clause in the CC&Rs is not a fee-shifting provision and requires proving a violation of the CC&Rs, which Lujan did not do.
The clause reads: "If a person is found guilty of violating [the CC&Rs], all costs and attorney fees assessed against him by the court shall be paid by such person."
¶18 We affirm the superior court's denial of Lujan's request for attorneys' fees.
CONCLUSION
¶19 For these reasons, we affirm.