Opinion
No. 1 CA-CV 11-0215
03-07-2013
TIMOTHY MANNING and DIANE MANNING, Plaintiffs/Appellees, v. BIEMECK GOULD, LLC, an Arizona limited liability company, Defendant/Appellant.
Mack Drucker & Watson PLLC By Daxton R. Watson Michael H. Orcutt Attorneys for Plaintiffs/Appellees Bowman and Brooke LLP By Wayne D. Struble and Titus Brueckner & Levine PLC By John R. Tellier Attorneys for Defendant/Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2007-050533
The Honorable Brian R. Hauser, Judge (Retired)
VACATED AND REMANDED
Mack Drucker & Watson PLLC
By Daxton R. Watson
Michael H. Orcutt
Attorneys for Plaintiffs/Appellees
Phoenix Bowman and Brooke LLP
By Wayne D. Struble
and
Titus Brueckner & Levine PLC
By John R. Tellier
Attorneys for Defendant/Appellant
Phoenix Scottsdale GEMMILL, Judge ¶1 This case presents the question of how final judgment should be entered when a jury has found in favor of an adverse possession claimant but has not provided in its verdict a legal description of the property or a clear reference to such a description already existing in the trial record. In this action, the jury opted not to divide the property according to the various legal descriptions presented at trial, but instead designated a physical landmark in order to form a border between the parcels to which each party is entitled. In entering judgment, the superior court set forth a legal description of the portion of the property awarded to Appellees based on one of the legal descriptions admitted into evidence. Appellant argues on appeal that this portion of the judgment conflicts with the verdict rendered. Although we find the verdict to be supported by the evidence and sufficient to support the entry of judgment, we conclude the trial court erred in entering judgment using the particular legal description in question. We therefore vacate the judgment and remand for further proceedings.
BACKGROUND AND PROCEDURAL HISTORY
¶2 In March 1994, Appellees Timothy and Diane Manning ("the Mannings") purchased a home situated on Lot 9 of the Blue Ridge Hills subdivision in Cave Creek. At the time, the Seitts family owned the home on Lot 11, which is located immediately south and southwest of Lot 9. The subdivision was platted in 1957 to include a 50-foot right-of-way between Lots 9 and 11 for Maricopa County to construct Saguaro Road. Some time later, the County cut the roadway. In 1980, the County realized that it had erroneously placed Saguaro Road 30 feet south of its platted location, situating it entirely in Lots 10 and 11. In 1981, the County ultimately decided to abandon the Saguaro Road alignment. The then-owners of Lots 9 and 11 claimed ownership, respectively, of the north and south halves of the abandoned roadway. The roadway as erroneously constructed, along with portions of two driveways leading from the road to the home on Lot 9, still remained within the legal boundary of Lot 11. ¶3 Appellant Biemeck Gould LLC ("Biemeck Gould") purchased Lot 11 in April 2004. One of its members, Bruce Biemeck, ordered a survey of Lot 11 in 2006. Following receipt of the survey, Mr. Biemeck sent the Mannings a letter, notifying them that "[t]he property line is likely closer to [the Mannings'] house than [they] thought" and seeking to "commence a dialog regarding our individual rights and needs as owners of contiguous property." The Mannings then filed an action to quiet title on February 14, 2007, claiming adverse possession and a prescriptive easement over a portion of Lot 11. They alleged that during their ownership of Lot 9, they used the Saguaro Road portion of Lot 11 for ingress and egress to Lot 9, used additional portions of Lot 11 as driveways to their home, and used and maintained other portions of Lot 11 as their front yard. The Mannings ordered a survey (Exhibit 14) that reflected two portions of Lot 11, "Area A" and "Area A-B" (with the former included within the latter), as to which they were claiming adverse possession. ¶4 The superior court held a three-day jury trial in August 2010. On the prescriptive easement claim, the jury returned a verdict in favor of Biemeck Gould. On the adverse possession claim, the jury returned a verdict described as partially in favor of each side, with a handwritten physical description of the property division, as follows:
We find in favor of Plaintiffs Tim and Diane Manning, on their claim of adverse possession, for the following portion of the disputed land:No objections were noted after the verdicts were read. ¶5 The Mannings thereafter lodged a proposed form of judgment with the superior court. In addition to including the handwritten verbiage from the verdict form, the proposed judgment also contained the following legal description of the Mannings' portion of the property:
The southern boundary will run directly east to west and will be located at the southern-most point of the rock wall/structure that runs along the western border of Lot 9. We believe that this border is approximated, but not necessarily exactly located at, S89°54'32"W.
We find in favor of Defendant Biemeck Gould LLC for the following portion of the disputed land:
The northern boundary will run directly east to west, as described above. We intend to find in favor of Defendant for the portion including the majority of the private way, up to the southern-most point of the rock wall/structure indicated above.
BEING a parcel of land situated in the northeast quarter of Section 33, Township 6 North, Range 4 East of the Gila and Salt River Base and Meridian and being a portion of the Lot 11 of BLUE RIDGE HILLS according to the Plat recorded in Book 72 of Maps, Page 08 of the Maricopa County Records and being a portion of the Saguaro Road abandonment as described in Docket 15338, Page 526 of the Maricopa County Records and being more particularly described as follows:Biemeck Gould's counsel filed an objection to the proposed form of judgment, arguing inter alia that the evidence did not support the particular property division specified in the verdict, that the verdict was unclear and could not support entry of judgment, and that there was no basis in the record for the court to rely on the legal description specified in the proposed form. Without comment, the superior court entered judgment using the exact form the Mannings proposed. ¶6 The parties then stipulated to stay the judgment pending the resolution of any post-judgment motions and appeals. Biemeck Gould filed a renewed motion for judgment as a matter of law or, in the alternative, motions for new trial or for amendment of the judgment ("the post-judgment motions"), largely re-asserting the same three arguments from its earlier objection to the proposed form of judgment. The superior court denied the post-judgment motions without explanation. ¶7 Biemeck Gould filed a notice of appeal from both the judgment and the denial of the post-judgment motions. In an order dated April 28, 2011, this court ruled that the notice of appeal was premature because the superior court's denial of the post-judgment motions was set forth in an unsigned minute entry. Biemeck Gould then filed with the superior court an application for a signed order, petitioning that court to sign identical language to its previous order to make the order properly appealable. See Tripati v. Forwith, 223 Ariz. 81, 84-85, ¶¶ 14-17, 219 P.3d 291, 294-95 (App. 2009). The court proceeded to sign and enter the order denying the post-judgment motions. Based on Craig v. Craig, 227 Ariz. 105, 107, ¶ 13, 253 P.3d 624, 626 (2011) and Barassi v. Matison, 130 Ariz. 418, 422, 636 P.2d 1200, 1204 (1981), we conclude that the "Barassi exception" is applicable, and Biemeck Gould's premature notice of appeal became effective to trigger our appellate jurisdiction when the trial court signed and entered the order. Accordingly, we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003) and 12-2101(A)(1) (Supp. 2012).
BEGINNING at the intersection of the centerline of said Saguaro Road abandoned
with the westerly right-of-way line of Sunset Trail (an eighty foot right-of-way);
THENCE along the westerly right-of-way line of Sunset Trail, South 09 degrees 57 minutes 35 seconds West, a distance of 35.55 feet;
THENCE 35 feet south of and parallel with the centerline of said Saguaro Road abandoned, South 89 degrees 54 minutes 32 seconds West, a distance of 85.16 feet;
THENCE North 00 degrees 01 minutes 28 seconds West, a distance of 35.00 feet to a point in the centerline of said Saguaro Road abandoned;
THENCE along said centerline, North 89 degrees 54 minutes 32 seconds East, a distance of 91.36 feet to the POINT OF BEGINNING
or "Area 'A'" in Plaintiff's Trial Exhibits 12 & 14 . . . .
There are four homes in the immediate vicinity of the Saguaro Road alignment. Lot 8 is located directly to the west of Lot 9, and Lot 10 is located directly to the west of Lot 11. The Saguaro Road alignment runs between the lots on the north (Lots 8 and 9) and the lots on the south (Lots 10 and 11). However, the owners of Lots 8 and 10 are not involved — nor are those lots directly at issue — in the present appeal.
At the time, the Blue Ridge Hills subdivision was located in unincorporated Maricopa County, but it has since become incorporated into the Town of Cave Creek.
Throughout this opinion, a reference to "abandoned" Saguaro Road or to the "abandoned" roadway is to the road as originally platted and subsequently abandoned, as reflected in the public records. The abandoned roadway must be distinguished from the existing dirt road which is, as a result of the County's earlier error, considerably south of its platted location.
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DISCUSSION
¶8 Biemeck Gould presents three issues on appeal. First, it contends that the evidence was insufficient to support the jury verdict that the Mannings had adversely possessed a portion of its property. Second, it argues that the jury verdict, even if supported by the evidence, was too uncertain and incomplete to support a judgment. Third, it asserts that, even if the verdict was supported by the evidence and sufficiently clear and definite, the judgment conflicts with the verdict. We review the trial court's denial of the post-judgment motions for an abuse of discretion. See Mullin v. Brown, 210 Ariz. 545, 547, ¶ 2, 115 P.3d 139, 141 (App. 2005). Questions of law, however, we review de novo. Spaulding v. Pouliot, 218 Ariz. 196, 199, ¶ 8, 181 P.3d 243, 246 (App. 2008).
I. Sufficiency of the Evidence
¶9 We first consider Biemeck Gould's argument that the evidence is insufficient to support the jury's finding that the Mannings adversely possessed a portion of Lot 11 (such portion hereinafter termed "the Property"). Adverse possession requires "an actual and visible appropriation of land commenced and continued under a claim of right inconsistent with and hostile to the claim of another for a period of 10 years." Berryhill v. Moore, 180 Ariz. 77, 82, 881 P.2d 1182, 1187 (App. 1994); see also A.R.S. §§ 12-521(A)(1) (2003) and -526(A) (2003). The claimant must establish the elements of adverse possession by clear and convincing evidence. Sabino Town & Country Estates Ass'n v. Carr, 186 Ariz. 146, 149, 920 P.2d 26, 29 (App. 1996) (quotation omitted). On appeal, "[w]e view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the judgment." Lewis v. Pleasant Country, Ltd., 173 Ariz. 186, 188, 840 P.2d 1051, 1053 (App. 1992). We will not disturb a jury verdict unless there is a lack of "substantial evidence in the record to justify it." Mealey v. Arndt, 206 Ariz. 218, 221, ¶ 12, 76 P.3d 892, 895 (App. 2003). ¶10 At trial, Timothy and Diane Manning testified regarding their history of use and maintenance of the Property since the start of their ownership of Lot 9 in March 1994. Mr. Manning testified that he made "numerous improvements" to the Property during his ownership of Lot 9. He constructed and restacked several of the rock walls on the Property. He planted golden barrel cacti, maintained bushes, and groomed and raked an indigenous cactus called a "cat claw." The Mannings often stored a boat on the Property, as well as a dumpster for the disposal of landscaping debris. Mrs. Manning testified that the couple's children had played and ridden go-carts on the Property and that the family generally treated and used the area as its front yard. The Mannings entered into evidence a receipt for landscaping work done on the Property, which included the planting of hanging fruit cholla and the transplanting of fifty staghorn cholla. Additional evidence consisted of a video featuring Mr. Manning giving a narrated tour of the Property, as well as various photographs, which highlighted some of the uses to which the Mannings put the Property. All of this evidence corroborated the testimony given by the Mannings at trial and was generally uncontroverted. ¶11 One issue that was in dispute at trial was whether the Seitts family had, as predecessors-in-interest to Biemeck Gould with respect to Lot 11, given the Mannings permission to use the Property, thus rendering the possession permissive rather than hostile. Mr. Manning testified that Anne Seitts had never given him or his family permission to use the front yard area or the Saguaro Road private way. He stated that "in 16 years, I have never had a conversation with George, Michael, [or] Ann[e] [Seitts] or anybody concerning the use of that land, cars parked on it or otherwise." Mrs. Manning testified that she had "never spoken to any of the Seitts." Biemeck Gould, however, offered into evidence an affidavit by Anne Seitts declaring that the Mannings "were permitted to access the southern portion of their property by traveling across the northern portion of our property by means of a private way." George Seitts, a former owner of Lot 11 and a son of Anne Seitts, testified at trial that the Mannings were permitted to use the private way for ingress and egress "as a matter of neighborly accommodation" and that he had spoken with the Mannings about removing their parked cars from the private way. Ultimately, it was within the fact-finding province of the jury to determine the credibility of the witnesses and to weigh the evidence. The jury's resolution in the Mannings' favor of the issue of permissiveness is supported by substantial evidence and will not now be disturbed. ¶12 Biemeck Gould also argues that the Mannings did not present evidence of adverse possession over "all" of the Property. We begin by noting that "[c]ontinuity of possession does not mean that the adverse possessor must occupy every square foot of the land every moment." Fritts v. Ericson (Fritts II), 103 Ariz. 33, 36, 436 P.2d 582, 585 (1968). Rather, "it is sufficient that the use [the adverse possession claimant] makes of it be a use suitable to the nature of the land or the use an owner would make of his identical land." Id. These statements by our supreme court are dispositive here. The character of the parties' neighborhood — as well as the requirement of the Town of Cave Creek — called for property owners to retain native desert landscapes. The language of Fritts II makes it clear that the Mannings were not obligated to take the Property outside the realm of its "suitable" use — for example, by installing and maintaining a lawn and a rose garden — in order to succeed on an adverse possession claim. Nevertheless, most of Biemeck Gould's arguments address the extent to which the Mannings used and maintained the entire lot. In light of Fritts II, the jury was at liberty to find that the uses the Mannings undertook were "suitable" given the nature of the Property. ¶13 To further support its position, Biemeck Gould relies on this court's opinion in Berryhill v. Moore. In that case, we held that an adverse possession claimant must show adverse possession of the "very land in question." 180 Ariz. at 85-86, 881 P.2d at 1190-91. Biemeck Gould contends Berryhill stands for the proposition that the Mannings must have put forth evidence supporting their adverse possession of "all — not just some — of Area A." We do not read Berryhill this broadly. Berryhill held that adverse possession was not established over a portion of real property that had collapsed into a river, because the claimant's possession "was neither actual nor exclusive." Id. at 86, 881 P.2d at 1191. The Berryhill court did not address the central issue of Fritts II — namely, whether the claimant must use all of the property in order to show continuous use. Our statement in Berryhill that "acts which properly state a cause of action for adverse possession on a certain area of unenclosed land may not be imputed elsewhere," id. , is not equivalent to a requirement that a claimant prove adverse possession over all or "every square foot" of that land. Fritts II, 103 Ariz. at 36, 436 P.2d at 585. ¶14 With regard to actuality and exclusivity of possession, Biemeck Gould contends Berryhill and other cases require that "[s]ome landmark . . . must exist to demark and support each boundary claimed." We do not agree. As we stated in Berryhill, "the presence of fencing or the use of the land as pasture is further indicia of actuality of possession." 180 Ariz. at 86, 881 P.2d at 1191 (emphasis added). That is to say, a claimant's placement of a permanent physical boundary might be "sufficient to 'fly the flag' over the land and put the true owner on notice that his land is held under an adverse claim of ownership." Knapp v. Wise, 122 Ariz. 327, 329, 594 P.2d 1023, 1025 (App. 1979) (emphasis added). But installing a fence is not a necessary condition for the claimant to establish actual and exclusive possession. Indeed, we recognized in Berryhill that "[t]he intent to take actual control of open range, and hence 'wild and undeveloped' land, requires a lesser exercise of actual ownership by affirmative act than does the intent with regard to other property," with the caveat that "this intent must be more than a 'mere mental enclosure.'" 180 Ariz. at 86, 881 P.2d at 1191 (quotations omitted). This is in keeping with the supreme court's holding in Fritts II that the use of the property — which necessarily includes the construction of physical boundaries around it — need only "be a use suitable to the nature of the land or the use an owner would make of his identical land." 103 Ariz. at 36, 436 P.2d at 585. ¶15 The evidence as a whole permitted the jury to find that the Mannings had the "intent to take actual control" of their front yard area and that such intent was more than a "mere mental enclosure." See Berryhill, 180 Ariz. at 86, 881 P.2d at 1191. Mr. Manning testified at trial that the western rock wall of Lot 9 formed a physical boundary between the Property and the remainder of Lot 11 (in addition to continuing northward to physically separate Lot 9 from Lot 8). Scarcely a more obvious and appropriate type of boundary demarcation, consistent with the character of the Property, could have been imagined or constructed. As for the southern boundary line, the jury was within its fact-finding prerogative to find that the Mannings actually and exclusively possessed the land extending as far south as the roadway even though there was no physical landmark, like a fence, explicitly demarcating the "front yard" area. We believe the presence of the roadway itself, along with a portion of rock wall that framed the Saguaro Road driveway on its eastern side opposite the western boundary wall, as well as "numerous" additional rock wall structures "accommodat[ing] different elevations" and providing "an esthetic element to the landscaping," sufficiently supported a rational inference of the Mannings' actual and exclusive possession. The jury was able to conclude from the evidence that the Mannings adversely possessed the "front yard" area between their house and the roadway. ¶16 Finally, Biemeck Gould takes issue with the fact that some of the Mannings' use and maintenance of the area in front of their home actually occurred in the Sunset Trail right-of-way to the east rather than on Lot 11. While it may be true that the Mannings did use and maintain part of the right-of-way, it does not logically follow therefrom that they did not use and maintain the land at issue in this case. ¶17 The Mannings presented evidence at trial describing their use and maintenance of the property since March 1994. We conclude that there was sufficient evidence entered at trial to support the jury verdict finding adverse possession over a portion of Lot 11.
II. Form and Clarity of the Verdict
¶18 Biemeck Gould next argues that the jury verdict "is too uncertain and incomplete to enter any judgment" in favor of the Mannings. In its view, the verdict and judgment ought to be reversed and a new trial granted because (1) the Mannings tacitly admitted that the verdict was insufficient upon which to enter judgment; (2) the verdict's "approximation" of the southern boundary was too uncertain to enter judgment in a real property action; (3) the verdict did not specify northern, eastern, and western boundaries; and (4) the verdict cannot be reformed. The Mannings respond that, by failing to invoke Rule 49(c) of the Arizona Rules of Civil Procedure before the jury was excused, Biemeck Gould waived its argument to contest the form and clarity of the verdict. For the reasons that follow, we find that the verdict was sufficient upon which to enter judgment, and we need not address the Mannings' waiver argument or Biemeck Gould's verdict reformation argument.
A. The Mannings' Tacit Admission
¶19 Biemeck Gould first contends that, "[b]y insisting on a form of judgment that 'more particularly described' the verdict 'as dictated by the jury,' [the Mannings] have tacitly admitted that the verdict — standing alone — is not certain or complete enough to enter judgment." This argument misses the mark. ¶20 Judgments in real property actions demand great precision so that the parties, their successors-in-interest, and the public are on notice of who owns exactly what property. "We are cognizant of the Arizona Supreme Court's pronouncement . . . to avoid vague legal descriptions that would 'require the services of a detective or . . . [a] scout rather than a surveyor to locate them.'" Berryhill, 180 Ariz. at 87, 881 P.2d at 1192 (quoting Fritts v. Ericson (Fritts I), 87 Ariz. 227, 232, 349 P.2d 1107, 1110 (1960)). ¶21 It was incumbent on the trial court to describe the property division in the judgment with more legal particularity than the jury provided in the verdict, and the Mannings' proposal to do so did not preclude them from arguing on appeal that the verdict itself was sufficiently clear to allow judgment to be entered. We note that, at the verdict stage, our concern is not whether the jury has set forth a sufficient legal description of the boundary lines, but only whether a legal description might reasonably be ascertained on the basis of the verdict. Our judicial system does not require jurors to possess "sagacious powers" allowing them to formulate complex legal descriptions from the jury room. Fritts I, 87 Ariz. at 232, 349 P.2d at 1110.
B. The Southern Boundary
¶22 Biemeck Gould also takes issue with the southern boundary, which the jury described with specificity on the back of the verdict form as running "east to west" and "located at the southern-most point of the rock wall/structure that runs along the western border of Lot 9." Biemeck Gould argues that the jury "approximated the southern boundary at 'the wrong line'" and that such approximation was too "uncertain to enter any judgment" for the Mannings. ¶23 During deliberations, the jury sent the judge the following note:
Could we get an indication on Exhibit 14 of the southern-most point of the rock wall/structure that runs along the western north-south border of Lot 9? Is that point reflected by the east-west line marked S89°54'32"W?The trial court convened with counsel to discuss the question and formulate a response. The judge pointed to one line on Exhibit 14 he thought might be what the jury was referencing, and then Biemeck Gould's counsel noted that "[i]t's the line below, that's what they're talking about." Both attorneys and the judge went back and forth until all agreed that the answer to the jury's second question was no. The court issued the following response to the jury: "You must refer to the testimony presented at trial to answer the first question. The answer to your second question is 'no'." ¶24 On appeal, Biemeck Gould contends that the jury's location of the southern boundary line had no evidentiary support in the record. We disagree. Although not in final legal description format, the line drawn by the jury was in fact supported by the evidence. Mr. Manning testified at trial that "the stacked rock walls . . . define the entrance to our driveway of East Saguaro Road" and that "if you were to draw a line that was — that bordered the entrance — well these two rock walls in an easterly direction, everything north of that would define our front yard." The jury was entitled to draw the southern boundary line where it did. ¶25 The question then turns to whether that southern boundary line is sufficiently clear and definite upon which judgment could be entered. Biemeck Gould argues that, because the jury noted that the boundary line was "approximated, but not necessarily located at, S89°54'32"W," the jury improperly approximated the location of the boundary. In its view, "approximation is not acceptable in determining real property boundaries." But the jury was precise in its actual description. The plain language of the verdict form indicates that the jury delineated a southern boundary "run[ning] directly east to west" and "located at the southern-most point of the rock wall/structure that runs along the western border of Lot 9." The jury specified a landmark on the property from which a legal description for the boundary line could be determined. The specificity and definiteness of this determination is not undermined by the jury's further statement that they "believe that this border is approximated, but not necessarily exactly located at, S89°54'32"W." Furthermore, given a specific physical location ("the southern-most point of the rock wall/structure that runs along the western border of Lot 9") and a directional heading ("directly east to west"), a competent surveyor could readily ascertain a legal description of this boundary dividing the property between the parties. Accordingly, we hold that the southern boundary line set by the jury provides a sufficient basis upon which judgment can be entered.
C. The Lack of Northern, Eastern, and Western Boundaries
¶26 The final reason Biemeck Gould gives for why the verdict was insufficiently clear and definite to support entry of judgment is that the verdict "failed to describe northern, eastern, western, or any other set of boundaries that, together with the southern boundary, would make up a 'property.'" Despite giving a very detailed description of the southern boundary, the jury never did explicitly set forth northern, eastern, and western boundaries of the portion of the Property it awarded the Mannings. We conclude on these facts, however, that these omissions do not render the verdict defective or incomplete. ¶27 Biemeck Gould's view is that the jury should have specified all boundaries of the portion of Lot 11 awarded to the Mannings. On the other hand, the Mannings argue that the southern boundary line set by the jury served as a kind of line in the sand, namely, that everything to the north would be owned by the Mannings and that everything to the south would be owned by Biemeck Gould. The written description on the verdict form evidences a clear intention that the line the jury described would form "[t]he southern boundary" for the Mannings and "[t]he northern boundary" for Biemeck Gould. Further, the jury declared that "[w]e intend to find in favor of [Biemeck Gould] for the portion including the majority of the private way, up to the southern-most point of the rock wall/structure indicated above." This language evidences the jury's manifest intent to take the approach to division advocated by the Mannings. With this in mind, we consider the three remaining boundaries. ¶28 First, we turn to the lack of a northern boundary in the verdict. Based on the methods used by the jury, the northern boundary was never at issue. The jury intended that the Mannings would take title of the land south of the property to which the Mannings held record title, down to the southern boundary as delineated in the verdict. Given the jury's method of division, it makes sense that the jury did not set forth a northern boundary. There was no need to do so. ¶29 Second, we examine the lack of an eastern boundary. Again, this omission is not problematic. The real property to the east of Lots 9 and 11 is the Sunset Trail right-of-way owned by the Town of Cave Creek. The Mannings never alleged that they adversely possessed any of the property owned by the town, nor has the town ever been a party to this litigation. Based on the jury's method of apportioning the property in this case, the eastern boundary of the property awarded the Mannings must necessarily be the western boundary of the Sunset Trail alignment. ¶30 Third, we examine the omission of a western boundary from the verdict. At trial, Mr. Manning testified that the rock wall located at the western edge of Lot 9 "follows a semicircular contour that would suggest you're entering the property" on the driveway and then proceeds to "travel[] due north" and "frame[] the west[ern] boundary" to his lot. He further testified that the wall became "a structural retaining wall because [Lot 8] to the west has an elevation of some three or four feet below" Lot 9. It is clear from the record that the rock wall physically separated Lot 9 from Lot 11, and no other interpretation of the jury's location of the western boundary line between those two lots would have evidentiary support. We therefore hold that the jury found the rock wall at the western edge of Lot 9 to form both the physical and legal boundaries between Lots 9 and 11.
D. Summary of the Physical Boundary Lines
¶31 Based on our analysis of the verdict, we conclude that the boundaries of the portion of Lot 11 awarded to the Mannings are as follows: The northern boundary is the southern edge of the property to which the Mannings held record title. The eastern boundary shall track the western boundary of the Sunset Trail right-of-way, apparently evidenced in Exhibit 14 by the line marked S09°57'35"W. The southern boundary shall be exactly as described by the jury, to wit: a line "run[ning] directly east to west" from "the southern-most point of the rock wall/structure that runs along the western border of Lot 9" to the eastern border. Finally, the western boundary between Lots 9 and 11 shall be the rock wall that physically separates Lot 9 to the east from Lot 8 (and a small portion of Lot 11) to the west.
III. Inconsistency Between the Judgment and the Verdict
¶32 Biemeck Gould's final argument on appeal is that the judgment entered by the trial court conflicts with the verdict rendered by the jury. The Mannings respond by contending that Area A, which is the legal description set forth in the judgment, was in fact what the jury verdict purported to award the Mannings. In the alternative, the Mannings argue that, if the court finds there is a conflict between the judgment and the verdict, we should strike the legal description from the judgment. ¶33 After careful review, we conclude that the record is devoid of evidence establishing that Area A corresponds to the description set forth by the jury. It is true Mr. Manning testified at trial that "Area A, by our interpretation, constitutes our front yard" and "aligns with the entry to my driveway." (Emphasis added). But nowhere in the record is there any evidence that the boundaries of Area A were formulated in a manner equivalent to the jury verdict. The surveyor who prepared Exhibit 14 did not testify at trial, and thus there is no evidence describing the manner in which the survey was prepared or the physical locations of the boundaries the surveyor chose to delineate. In short, the jury did not award the Mannings Area A, but rather awarded them the property as described in handwriting on the verdict form. ¶34 It might be argued that the trial court made a finding that Area A and the property described by the jury are essentially the same. The court did not explain its determination, however, and, as already noted, we do not find sufficient evidence to support the legal description in the final judgment. Because there was insufficient evidence in the record linking the jury verdict's physical boundary descriptions to the legal description of Area A contained in the judgment, the trial court erred in entering judgment using the legal description of Area A, and we must vacate the judgment and remand for further proceedings. ¶35 We now turn to the scope of further proceedings on remand. During oral argument before this court, both parties agreed that if the trial court's judgment is vacated and remanded, further fact finding (including the ordering of a survey) is appropriate to formulate a legal description of the Property based on the jury verdict. ¶36 This course of action is supported by prior Arizona cases that considered similar problems in related contexts. In Wise v. Knapp, the superior court entered judgment on an adverse possession claim using a legal description that had not been introduced into evidence during the trial. 3 Ariz. App. 99, 104, 412 P.2d 96, 101 (1966). After the claim was upheld "in general," a surveyor was employed to formulate a proper legal description of the property for inclusion in the judgment. Id. This court held that there was "no error in the [trial] court's adopting as its own language a description provided by a surveyor" when there was no variance in the legal description from the testimony presented at trial and the legal description was supported by the evidence. Id. ¶37 Later, in Berryhill, we were faced with a similar problem after we decided that there was no evidence of adverse possession over a portion of the property awarded in the trial court's judgment. 180 Ariz. at 87, 881 P.2d at 1192. There was no evidence on the record establishing a legal description of the remaining property. Id. We reversed the judgment and remanded to the trial court "with directions to set forth a corrected accurate legal description for the property." Id. With regard to the scope of remand, we noted that "the trial court shall, if necessary, take testimony regarding the exact location [of the property] and then, if necessary, order a competent survey." Id. ¶38 Accordingly, it is appropriate for a trial court to receive additional evidence to establish a legal description of adversely possessed property if the verdict does not contain a legal description and the jury has not decisively referenced or incorporated a legal description existing in the evidentiary record. When the jury has determined the parcel that has been adversely possessed, as here, we believe the best approach is for the trial court to withhold entering judgment until further evidence is presented, which may include the ordering of a competent survey. ¶39 Because the court below did not engage in this additional fact-finding prior to entry of judgment, we will remand for that opportunity. The guiding principle for the trial court is that the parties are entitled to the portions of the real property exactly as determined and set forth by the jury. Since the jury did not provide or incorporate by reference a precise legal description, further proceedings are necessary to ascertain the correct legal description in accordance with the jury's manifest intent as reflected in its written description on the verdict form and as interpreted by this court. The trial court shall undertake whatever means are necessary to ascertain a legal description of the property awarded to the Mannings, including, if necessary, ordering a competent survey and conducting any fact-finding needed to determine the location of "the southern-most point of the rock wall/structure that runs along the western border of Lot 9" as of the date of the verdict. The court should enter judgment when satisfied that any newly formed legal description gives full effect to the jury verdict.
COSTS AND FEES
¶40 We deem Biemeck Gould the prevailing party on appeal and award its taxable costs on appeal upon its timely compliance with Arizona Rule of Civil Appellate Procedure 21. No party has made any claim for fees on appeal.
CONCLUSION
¶41 Substantial evidence exists to support the jury verdict finding adverse possession, and the verdict is sufficiently clear and definite to allow for entry of judgment. The trial court erred, however, by entering a legal description of the awarded property in its judgment that is not sufficiently supported by the verdict and the evidence. To resolve this issue, the judgment of the superior court is vacated and the case is remanded for further proceedings consistent with this opinion.
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JOHN C. GEMMILL, Judge
CONCURRING: ______________________
PATRICIA A. OROZCO, Presiding Judge
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PHILIP HALL, Judge