Bogdan DABROWSKI, et al., Plaintiffs/Counter-Defendants/Appellants/Cross-Appellees,
v.
David C. BARTLETT, Defendant/Counter-Claimant/Appellee/Cross-Appellant.
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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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Omitted)
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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Omitted)
[¶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 trustees 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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Omitted)
[¶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 trustees sale in January 2012. A dispute arose shortly
thereafter between the Dabrowskis and Bartlett regarding
Bartletts 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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Omitted)
[¶9]
The superior court granted summary judgment to the Dabrowskis
on Bartletts 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 Bartletts 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 Bartletts 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
...