Court of Appeals of Arizona, Second Division, Department A
PAUL KADLEC and RACHEL KADLEC, husband and wife; and DUANE HOWELL and BRENDA HOWELL, husband and wife, Plaintiffs/Appellants,
DANIEL DORSEY and SHERRI DORSEY, husband and wife, Defendants/Appellees.
Not for Publication Rule 28, Rules of Civil Appellate Procedure
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. C20076040 Honorable Christopher P. Staring, Judge Honorable Jan E. Kearney, Judge
Vernon E. Peltz Tucson Attorney for Plaintiffs/Appellants
Hinderaker Rauh & Weisman, P.L.C. By Adam Weisman and Robert Rauh Tucson Attorneys for Defendants/Appellees
VÁSQUEZ, Presiding Judge.
¶1 In this real property dispute, appellants Paul and Rachel Kadlec and Duane and Brenda Howell (collectively "the Kadlecs") appeal from the trial court's judgment in favor of appellees Daniel and Sherri Dorsey on the Dorseys' quiet title claim. On appeal, the Kadlecs argue the court erred by: (1) finding they had not established a prescriptive easement by adverse use or by imperfectly created servitude; (2) allowing the Dorseys to amend their answer to include a counterclaim seeking quiet title; and, (3) awarding attorney fees to the Dorseys pursuant to A.R.S. § 12-1103(B). For the reasons stated below, we reverse the court's judgment and remand for proceedings consistent with this decision.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's judgment. Smith v. Beesley, 226 Ariz. 313, ¶ 3, 247 P.3d 548, 551 (App. 2011). Richard Turigliatto owned forty acres of undeveloped land south of Tucson, which he split into three parcels. A dirt roadway, referred to by the parties as Rega Road, passed through all three parcels, connecting with public roads at either end. Turigliatto conveyed all three parcels subject to the Rega Road easement. In 1995, he conveyed the central parcel to Jonathan Perkins "subject to an undefined easement as shown in [the survey of Rega Road] attached [to the deed as] Exhibit 'B.'"
¶3 Howell and Kadlec own property nearby. Howell began using Rega Road when he acquired his property in November 1990. Kadlec's predecessor, Felix Lucero, began using the roadway shortly after acquiring his property in October 1994, and Kadlec continued using Rega Road after he purchased the property in September 1999.
¶4 In 2006, Dorsey purchased the central parcel from Perkins' successor-in- interest, Laura Bradley. Although the deed provided that the property was being conveyed subject to "all easements [and] rights-of-way . . . as may appear of record, " Bradley told Dorsey that Rega Road was a "private road, " which belonged to "whoever owned the property." Later that year, Dorsey blocked access to Rega Road. The Kadlecs filed this action, alleging among other things that they had an easement by prescription and seeking a declaratory judgment that they had "the right to the reasonable use and enjoyment of the right-of-way easement across the Dorsey Property known as Rega Road."
¶5 The Kadlecs moved for partial summary judgment, arguing the Dorsey property "was subject to a recorded easement, " pursuant to the 1995 Turigliatto deed to Perkins. In a cross-motion for partial summary judgment, the Dorseys argued that because Turigliatto never identified a beneficiary of the easement, he intended only to retain an easement "for the benefit of his own remaining properties." The trial court granted the Kadlecs' motion, concluding "the Turigliatto deed must be read to permit ingress and egress over the road without limitation to any particular beneficiary." On appeal, this court affirmed. Kadlec v. Dorsey, 223 Ariz. 330, ¶ 10, 223 P.3d 674, 677 (App. 2009). Our supreme court, however, vacated our decision and remanded the case to the trial court. Kadlec v. Dorsey, 224 Ariz. 551, ¶ 13, 233 P.3d 1130, 1132 (2010).
¶6 After a bench trial, the trial court issued its under-advisement ruling, finding the Kadlecs had failed to prove an easement by prescription by clear and convincing evidence and quieting title in favor of the Dorseys. In relevant part, the court explained:
The weight of the evidence supports finding that Rega Road was an easement of necessity until July 1996, when [the Dorseys' predecessor, ] . . . Perkins, built Mountain Canyon Road [to the south.] . . . Necessity is not prescription. Further, the evidence supports the conclusion that . . . Perkins blocked the road with berms for at least several days in July 1996, significantly interrupting any prescriptive period that allegedly began before that time. Notably, . . . Perkins' testimony establishes that he intended to stop people from using Rega Road. See Higginbotham v Kuehn, 102 Ariz. 37, 39, 424 P.2d 165, 167 (1967) (interruption of adverse possession must be made with intent to take possession). Further, the Court does not believe . . . Perkins removed the berms the same day he installed them. In summary, the Court concludes that, due to necessity and/or . . . Perkins installing the berms, any period of prescription did not begin to run until July 1996 at the earliest.
The court therefore concluded that the Kadlecs had failed to establish a prescriptive use for ten years because "Dorsey gated the property less than ten years after . . . Perkins removed the berms." The court also rejected the Kadlecs' argument that they were the beneficiaries of an imperfectly ...