Dabrowski v. Bartlett

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          Appeal from the Superior Court in Maricopa County, No. CV2013-008944, The Honorable Lori Horn Bustamante, Judge. AFFIRMED IN PART; REVERSED IN PART; JURISDICTION ACCEPTED/RELIEF GRANTED IN PART AND REMANDED WITH INSTRUCTIONS

         MacQueen & Gottlieb PLC, Phoenix, By Benjamin L. Gottlieb (argued), Patrick R. MacQueen, Counsel for Plaintiffs/Counter-Defendants/Appellants/Cross-Appellees

          Radix Law, PLC, Scottsdale, By Donald R. Alvarez, Counsel for Defendant/Counter-Claimant/Appellee/Cross-Appellant

         Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

          OPINION

         McMURDIE, Judge:

         [¶1] Bogdan and Jolanta Dabrowski appeal from a judgment granting David C. Bartlett a private way of necessity ("private condemnation") over the Dabrowskis’ property. Bartlett cross-appeals, contending he was entitled to either express easement rights or an easement by implied way of necessity. For the reasons set forth below, we hold that: (1) an unactivated easement is subject to a merger; (2) a common law easement by implied way of necessity does not exist if the severance of the parcel did not cause the lot to lack a reasonable outlet; (3) unity of ownership for a merger may occur even if the parties are technically different; (4) in a private condemnation action, a finding that a more reasonable route exists through the subject property constitutes "bad faith, oppression, or abuse of power" under Solana Land Co. v. Murphey, 69 Ariz. 117, 125, 210 P.2d 593 (1949), precluding the condemnor from condemning its selected route; and (5) a private condemnation judgment must be satisfied before a final order of condemnation can issue and an easement recorded. Accordingly, we affirm the judgment on the easement claims and remand for the court to determine the route, scope, and cost of the private condemnation.

          FACTS AND PROCEDURAL BACKGROUND

         [¶2] The parties dispute whether Bartlett should have access to his five-acre lot in Cave Creek over the Dabrowskis’ adjacent lot. Both lots were part of a larger parcel that

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was split into three lots in 1999, then identified as Parcels A, B, and C. In 2002, Parcel A was divided into three separate lots of approximately five acres each, which include the lots now owned by the Dabrowskis ("Lot 1") and Bartlett ("Lot 2") (collectively the "Lots").

         [¶3] Until 2007, Rockaway Hills Drive (the "access road") was the only road on the land.

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          On March 2, 2000, Jack Lewis, the owner of Parcels A and B, declared an easement that reached Lot 2 through Lot 1 (the "2000 Express Easement") and then sold the Lots in Parcel A.

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         [¶4] In April 2001, Lewis conveyed Parcel B to Andrew C. Jacob in his capacity as trustee of the ACJ [Andrew C. Jacob] Declaration of Trust ("Jacob Trust"). On September 18, 2001, Lewis reacquired the Lots via a trustee’s sale.

         [¶5] On September 18, 2002, the Town of Cave Creek approved a lot split ("2002 Lot Split"), which established the Lots as they currently appear. The survey that accompanied the 2002 Lot Split was prepared for Jacob and reflected an ingress, egress, and utility easement over Parcel B for the benefit of Lot 1, similar to the 2000 Express Easement, but did not extend to Lot 2. The month after the 2002 Lot Split was approved, Lewis conveyed Lots 1 and 2 to Jacob and his wife.

         [¶6] Cave Creek approved a second lot split of Parcel A on April 11, 2003, based on a separate survey ("2003 Lot Split") also prepared for Jacob. The 2003 Lot Split was recorded on April 12, 2003. The survey, depicted below, showed an easement over Parcel B reaching the midpoint of the eastern

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border of the Lots and did not encumber Lot 1 for the benefit of Lot 2.

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         [¶7] The next month, Jacob and his wife sold the Lots to Bartlett ("Jacob-Bartlett conveyance"). In 2005, Bartlett conveyed Lot 1 to Michael Hiltner and Julie Mahon but retained Lot 2 in his capacity as a trustee of the JoshuaBleu Trust ("Bartlett-Hiltner conveyance"). Bartlett did not record an express easement in connection with the conveyance. The Jacob Trust sold Parcel B to Bryan Anderson in June 2005.

         [¶8] In 2007, Hiltner completed construction of a house and driveway located on Lot 1. Anderson began construction of his house on Parcel B in 2006, which was completed in 2014. The Dabrowskis acquired the house and property comprising Lot 1 via a trustee’s sale in January 2012. A dispute arose shortly thereafter between the Dabrowskis and Bartlett regarding Bartlett’s access to Lot 2, leading to the Dabrowskis filing suit to quiet title in 2013. Bartlett counterclaimed, alleging that he was entitled to an implied way of necessity, an implied easement of necessity, or in the alternative, a private condemnation across Lot 1. Bartlett later added a counterclaim alleging that he had express access rights via the 2000 Express Easement. At the time of trial, the land appeared as follows:

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         [¶9] The superior court granted summary judgment to the Dabrowskis on Bartlett’s express easement claim, finding that the 2000 Express Easement had terminated by a merger. The parties proceeded to a bench trial on the remaining claims. Following the trial, the court ruled that:

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[T]he 2003 Lot Split did not create a valid easement, there is no express easement, and there is no implied easement at this time over the Dabrowski property in favor of the Bartlett lot. The court further finds there is no other adequate alternative access to Bartlett’s property. Accordingly, [Arizona Revised Statutes ("A.R.S.") section] 12-1202 allows a [private condemnation] under the circumstances presented in this case.

          The court allowed Bartlett to "select the route location and nature of the [private condemnation] ensuring the greatest amount of deference to the privacy and concerns of the Dabrowskis," ordered Bartlett to "compensate the Dabrowskis for the easement over their property," and requested simultaneous briefing regarding the values of the available routes, stating that it could not "provide a value based upon the testimony provided at the hearing."

         [¶10] In the post-trial briefing, the Dabrowskis submitted affidavits from a real estate appraiser, their trial expert, and Bogdan Dabrowski. They sought compensation ranging from $96,000 to $433,250 depending on Bartlett’s choice of route. Bartlett objected, contending the affidavits had not been disclosed or offered at trial. The court overruled his objection and determined compensation for three potential routes as follows:

"Graham #1" Easement = $37,200

"Graham #2" Easement = $36,000 ...