Hatch v. Klump

DANNY R. HATCH JR. AND DENICE R. HATCH,HUSBAND AND WIFE, Plaintiffs/Appellants, v. RONALD J. KLUMP AND JANE DOE KLUMP, HUSBAND AND WIFE;ROY J. KLUMP AND JANE DOE KLUMP, HUSBAND AND WIFE;DAYLA HEAP AND JOHN DOE HEAP,WIFE AND HUSBAND, Defendants/Appellees.

No. 2 CA-CV 2015-0203

ARIZONA COURT OF APPEALS DIVISION TWO

February 1, 2017

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NOT FOR PUBLICATION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)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Cochise County

No. CV201400128

The Honorable John F. Kelliher, Jr., Judge

AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL

Mesch, Clark & Rothschild, P.C., Tucson

By Patrick J. Lopez

Counsel for Plaintiffs/Appellants

Udall Law Firm, LLP, Tucson

By Jeanna Chandler Nash

Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge Staring authored the decision of the Court, in which Presiding Judge Howard and Judge Gordon¹ concurred.

STARING, Judge:

¶1 Appellants Danny and Denice Hatch brought an action to quiet title against appellees Ronald and Roy Klump and Dayla Heap and their spouses (collectively the "Klumps"). The trial court granted summary judgment in favor of the Klumps, and denied the Hatches' motion for new trial. This appeal followed. For the reasons that follow, we affirm the grant of summary judgment against the Hatches but remand for further proceedings on the issue of attorney fees.

Factual and Procedural Background

¶2 When reviewing a summary judgment, we view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. State v. Mabery Ranch, Co., L.L.C., 216 Ariz. 233, ¶ 23, 165 P.3d 211, 217 (App. 2007). In December 1976, Continental Service Corporation dedicated an easement "on the North 30 feet, East 60 feet and South 60 feet of Parcel 32." The easement deed reads:

KNOW ALL MEN BY THESE PRESENT, that the undersigned, CONTINENTAL SERVICE CORPORATION . . . does hereby grant and convey to the public for ingress and egress and public utilities, an easement to construct, operate and maintain utilities and appurtenances across, over and under the surface of the premises hereinafter described.

. . . .

Together with said easement is granted the right to operate, repair, replace, maintain and use said easement; to add to or alter any improvements and/or facilities at any reasonable time, with access to said easement and egress therefrom to permit normal operations of public utilities in connection with said easement.

Grantor shall not erect or construct or permit to be erected or constructed any building or other structure in the above described easement.

The Hatches purchased Parcel 32 in 2003, subject to "all easements, rights of way, encumbrances, liens, covenants, restrictions, obligations, and liabilities as may appear of record." The Klumps own and reside on land adjacent to the Hatches' land.

¶3 In December 2013, the Klumps began using the easterly sixty feet of the Hatches' property to access their property. In response, pursuant to A.R.S. § 12-1103(B), and prior to filing an action to quiet title, the Hatches tendered a check in the amount of five dollars together with a Quit Claim Deed to each of the Klumps. In February 2014, the Klumps having rejected the tender, the Hatches filed a "Complaint to Quiet Title" and an ex parte motion for temporary restraining order (TRO). The trial court denied anex parte TRO and set a hearing. At the hearing, the court again denied a TRO.

¶4 In March 2015, the Klumps moved for summary judgment, asserting they were "entitled to judgment in their favor for unrestricted use and access to the easement." In opposition, the Hatches asserted the language of the easement deed "limit[ed] the right [of way] to the use to construct, operate or maintain utilities," and, thus, the easement in question was a private easement "subject to extinguishment by adverse possession." The court granted summary judgment in favor of the Klumps and awarded them attorney fees and costs. In the "Final Judgment," the court awarded the Klumps "all rights for use of the easement," and "forever estopped [the Hatches] from interfering with use of the easement for purpose of ingress and egress."

¶5 The Hatches timely moved for a new trial. The court denied the motion for new trial and directed them to pay attorney fees in the amount of $5,000 and costs in the amount of $206.88.

¶6 The Hatches filed a timely notice of appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

Discussion

Waiver

¶7 The Hatches argue the trial court erred in granting summary judgment because the express language of the easement deed limits ingress and egress to the operation and maintenance of public utilities. The parties, however, dispute whether the issue was properly preserved for appeal. Generally, arguments not timely raised in the trial court are waived. Cont'l Lighting & Contracting, Inc. v. Premier Grading & Utilities, LLC, 227 Ariz. 382, ¶ 12, 258 P.3d 200, 204 (App. 2011) (Legal theories must be timely presented "to the trial court so that the court may have an opportunity to address all issues on the merits.").²

¶8 We generally decline to consider an issue raised for the first time in a motion for new trial. Kent v. Carter-Kent, 235 Ariz. 309, ¶ 20, 332 P.3d 56, 60 (App. 2014) (spouse could not use "motion for new trial as vehicle for a revaluation . . . because that remedy was not at issue in the underlying order"); Conant v. Whitney, 190 Ariz. 290, 293, 947 P.2d 864, 867 (App. 1997) (issue not raised until motion for new trial waived). We have on occasion, however, considered arguments first raised in a motion for new trial when the trial court heard "the new arguments and evidence," expressly ruled on them, and the denial of the motion for new trial was itself appealed. Parra v. Cont'l Tire N. Am., Inc., 222 Ariz. 212, ¶ 7 & n.2, 213 P.3d 361, 363 & n.2 (App. 2009). But, even if an issue first raised in a motion for new trial is not deemed waived, "to preserve an argument for review, the defendant must make a sufficient argument to allow a trial court to rule on the issue." State v. Kinney, 225 Ariz. 550, ¶ 7, 241 P.3d 914, 918 (App. 2010); see also State v. Fulminante, 193 Ariz. 485, ¶ 64, 975 P.2d 75, 93 (1999) (objection sufficient if it provides judge with opportunity to remediate).

¶9 The Hatches argue they "preserved the issue concerning the scope of the ingress-egress grant" by filing a motion for new trial following the grant of summary judgment. In the motion, they asserted the language of the easement "expressly defines a public utilities easement that permits ingress and egress to access and maintain said public utilities." However, they went on to claim:

Continental Service Corporation, in creating the "Right of Way Easement" did, by the very language therein, limit same to ingress and egress to access and maintain public utilities. This must be determined by the application of ejusdem generis and more particularly upon the fact the conveyance put a comma after utilities. Consequently, Defendants have the burdenof proving by clear, satisfactory, unequivocal evidence that the roadway was dedicated to the public. Defendants have presented no such evidence to the Court.

(Emphasis added.) The Hatches had previously argued in opposition to the Klumps' motion for summary judgment the easement was "a private easement which is subject to extinguishment by adverse possession" and that "[a]lthough, the grant does not expressly state the easement is for the purpose of a road, the use of 'ingress and egress' to describe the easement implies a roadway," which was neither properly dedicated nor accepted by the public. Given the Hatches' previous arguments in connection with the motion for summary judgment, we do not read the motion for new trial as raising a new argument concerning the scope of the easement, but, rather, as the Hatches again urging their argument that the Klumps had failed to provide "clear, satisfactory, unequivocal evidence . . . of a dedication to the public."

¶10 In response to the motion for new trial, the Klumps argued the language of "[t]he easement for public utilities [did] not qualify, limit, or restrict the public easement for ingress and egress." Only then, in their reply, did the Hatches make any argument that the scope of the easement was limited to the operation and maintenance of utilities. Even so, the reply was neither a crucial nor even a significant part of the Hatches' argument that the Klumps "rel[ied] solely on the language of the right of way easement to justify their position" and had "provided no evidence to the Court of the grantor's (Continental Service Corporation) intent" to dedicate to the public a roadway "beyond the granting instrument." In context, we can hardly say the Hatches made "a sufficient argument to allow a trial court to rule on the issue" they advance on appeal, namely whether the express language of the easement deed limits ingress and egress to the operation and maintenance of public utilities. See Kinney, 225 Ariz. 550, ¶ 7, 241 P.3d at 918. Accordingly, we find the argument waived.³

Attorney Fees

¶11 The Hatches argue it was improper for the trial court to award attorney fees to the Klumps because they did not comply with the requirements of A.R.S. § 12-1103(B). In response, the Klumps argue the Hatches have conceded the propriety of the court awarding fees pursuant to A.R.S. § 12-341.01 by asserting the applicability of the statute themselves on two separate occasions. The Klumps also argue the Hatches have waived the issue by failing to object in the trial court. "We review a trial court's award of attorney fees for an abuse of discretion." Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz. 204, ¶ 5, 330 P.3d 961, 962 (App. 2014). However, we review de novo as a question of law whether the court had authority to award...