GERALD C. FREEMAN and JANICE B. FREEMAN, husband and wife, Plaintiffs/Appellants,
DONALD R. SORCHYCH and SHARI JO SORCHYCH, husband and wife, Defendants/Appellees.
Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV 2011-092693 The Honorable Mark F. Aceto, Judge
Mahaffy Law Firm, P.C., Chandler By Steven C. Mahaffy Counsel for Plaintiffs/Appellants
Carol Lynn de Szendeffy, Attorney at Law, Carefree By Carol Lynn de Szendeffy Counsel for Defendants/Appellees
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Samuel A. Thumma joined.
Patricia K. Norris, Judge
¶1 This appeal arises out of the superior court's entry of summary judgment against Plaintiffs/Appellants Gerald C. and Janice B. Freeman finding they do not have an exclusive easement over certain property owned by Defendants/Appellees Donald R. and Shari Jo Sorchych. On appeal, the Freemans challenge that finding, see infra ¶ 7, as well as orders entered by the superior court awarding sanctions, see infra ¶ 10, and attorneys' fees, see infra ¶ 13. As we explain, we reject the Freemans' challenges to the superior court's finding and orders and affirm its judgment.
FACTS AND PROCEDURAL HISTORY
¶2 Through a "Special Warranty Deed, " recorded in the records of Maricopa County, Arizona on July 20, 1983, Baker Enterprises, Ltd., as grantor, conveyed to Alan Simberloff a parcel of property in Maricopa County, Arizona. The Special Warranty Deed reserved to Baker an "exclusive easement" on a 33 foot-wide strip of land ("33 foot strip") within the property. In full, the Special Warranty Deed reservation read as follows:
Reserving unto the Grantor herein an exclusive easement for ingress, egress, utilities and water lines over the South 33 feet of the within described property.
¶3 Subsequently, Simberloff conveyed a portion of the property to a third party. That conveyance was made subject to existing recorded easements, rights of way, and encumbrances. After several intermediate conveyances, the Freemans acquired this portion ("Freeman parcel") in November 1991.
¶4 Simberloff also conveyed a different portion of the property which was contiguous to the Freeman parcel to a different third party, the Fosters, by a joint tenancy deed recorded July 25, 1983. The Sorchychs acquired this portion ("Sorchych parcel") from the Fosters in November 2000. The transfers were made subject to existing encumbrances, covenants, and easements of record. The exclusive easement for the 33 foot strip described in the Special Warranty Deed lies along the southern boundary of the Sorchych parcel.
¶5 In February 2011, the Freemans sued the Sorchychs and requested a declaratory judgment that pursuant to the exclusive easement reserved by the Special Warranty Deed, the 33 foot strip was for their sole and exclusive use and the Sorchychs had no right to use the exclusive easement for any purpose or to grant permission to others to use it.
¶6 The parties filed cross-motions for summary judgment. As the superior court correctly recognized, the core issue presented in the cross-motions was whether, pursuant to the exclusive easement, the Freemans had the exclusive right to use the 33 foot strip. The superior court granted the Sorchychs' motion, denied the Freemans' motion, and found the Sorchychs had established the ...