Opinion
No. 2 CA-CV 2014-0136
07-09-2015
INOCENTE DIAZ AND PETRA DIAZ, HUSBAND AND WIFE AND AS TRUSTEES FOR THE DIAZ LIVING TRUST DATED DECEMBER 10, 2010, Plaintiffs/Appellants, v. GASTON BACHELIER JR., AN UNMARRIED PERSON; LISA D. BACHELIER, FORMERLY KNOWN AS LISA D. BACHELIER BADILLO, AN UNMARRIED PERSON; AND ENRIQUE AGUIRRE AND SABRINA AGUIRRE, HUSBAND AND WIFE, Defendants/Appellees.
COUNSEL Stephen J. Gonzalez, Tucson Counsel for Plaintiffs/Appellants
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NOT FOR PUBLICATION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 Santa Cruz County
No. cv12256
The Honorable Monica L. Stauffer, Judge
AFFIRMED IN PART; VACATED IN PART; REMANDED
COUNSEL Stephen J. Gonzalez, Tucson
Counsel for Plaintiffs/Appellants
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Kelly and Judge Howard concurred. VÁSQUEZ, Presiding Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 In this real-property dispute, Inocente and Petra Diaz, as trustees of the Diaz Living Trust (collectively Diaz), appeal from a judgment entered after a bench trial in favor of appellees Gaston Bachelier Jr., Lisa Bachelier, and Enrique and Sabrina Aguirre (collectively Bachelier) and the trial court's subsequent denial of Diaz's motion for a new trial or to amend the judgment. Diaz argues the court committed several legal errors and abused its discretion in denying his claims for nuisance, trespass, quiet title, and easement by prescription or necessity. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.
Bachelier did not file an answering brief on appeal, which we may regard as an admission of error. See In re Marriage of Diezsi, 201 Ariz. 524, ¶ 2, 38 P.3d 1189, 1190 (App. 2002). However, in our discretion, we will attempt to address the merits of Diaz's appeal.
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). In September 1991, Diaz acquired title to residential property in Nogales, Arizona. The property is bordered on the north by Bachelier's property purchased earlier that same year. The land between Diaz's and Bachelier's houses is largely owned by Bachelier, and Diaz used part of it to access the north side of his house to perform maintenance. In 2003, Bachelier built a gated wood fence between the two houses, effectively blocking access to that area. At first, Bachelier told Diaz he would give him a key to the gate. However, according to Diaz, Bachelier later refused and said he "d[idn't] want [Diaz] back there."
¶3 In 2005, Bachelier started building a shed on the southwest corner of his property. Bachelier used an existing adobe wall near the property line as one of the walls of the shed. Diaz confronted Bachelier about the shed because he thought it encroached on his property. In response, Bachelier trimmed back the roof of the shed to the edge of the adobe wall. According to Diaz, he saw a "Stop Work Order" posted on the shed because no permit had been issued for its construction.
Although his children own the property, which is used as a rental, Gaston Bachelier Sr. constructed the fence and shed at issue in this case. He has since died.
¶4 In August 2005, Diaz filed a lawsuit against Bachelier seeking monetary damages for (1) the "fence and gate" because they blocked access to his property and prevented him from doing maintenance and (2) the "structure on top of [the] adobe retaining wall" because it was unsafe and encroached on his property. However, that case was dismissed without prejudice "for lack of prosecution" in June 2009, after Diaz had sold the property. In 2011, however, Diaz repurchased the property at a sheriff's sale and titled it in the name of his trust.
¶5 In May 2012, Diaz initiated this lawsuit. He alleged that both the fence and the shed constituted nuisances and continuing trespasses. Diaz sought a declaratory judgment that Bachelier was adversely possessing Diaz's property and to quiet title to his own property. Through a survey of the properties that Diaz had obtained during the litigation, he learned "the actual boundary line did not match [his] use from 1991 to October 2003." His house nearly abutted his northern property line, with less than a foot of setback in some places. Consequently, he sought to amend his complaint to include a claim for "a varying 5 to 10 foot ingress/egress easement" across the southern border of the Bachelier property, primarily so he could access the north side of his house for maintenance.
Nothing in the record indicates Bachelier opposed the amendment, and the trial court apparently allowed it.
¶6 A one-day bench trial was held. Alex Kory, a civil engineer, testified that, based on the survey, the gated wood fence was encroaching on Diaz's property. He also stated the adobe wall was on Diaz's property and, consequently, the shed's wall and roof, which were built on top of the adobe wall, were encroaching on his property. In addition, Kory prepared a report detailing various structural safety concerns with the shed.
¶7 In its under-advisement ruling, the trial court denied the relief sought by Diaz. Diaz filed a motion for a new trial or to amend the judgment, which the court denied without ordering a response or holding a hearing. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21 and 12-2101(A)(1), (5)(a).
Because neither the under-advisement ruling nor the denial of the motion for a new trial or to amend the judgment contained language indicating that "no further matters remain[ed] pending," we suspended the appeal and remanded for the trial court to consider entering an order in compliance with Rule 54(c), Ariz. R. Civ. P. The court entered that order, and we reinstated the appeal.
Nuisance
¶8 Diaz first challenges the trial court's denial of his nuisance claim for the construction of the shed. The court summarily concluded that "the equitable relief sought by [Diaz] is barred by laches." We review a ruling on laches for an abuse of discretion. Rash v. Town of Mammoth, 233 Ariz. 577, ¶ 17, 315 P.3d 1234, 1240 (App. 2013). "Generally, a court abuses its discretion where the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision." Files v. Bernal, 200 Ariz. 64, ¶ 2, 22 P.3d 57, 58 (App. 2001).
The trial court's finding of laches was limited to Diaz's nuisance claim for the shed. Diaz does not challenge the court's denial of his nuisance claim for the fence.
¶9 Laches "is an equitable counterpart to the statute of limitations, designed to discourage dilatory conduct." Sotomayor v. Burns, 199 Ariz. 81, ¶ 6, 13 P.3d 1198, 1200 (2000). It "requires a lack of diligence on the part of the plaintiff and injury or prejudice to the defendant due to such lack of diligence." Leon v. Byus, 115 Ariz. 451, 453, 565 P.2d 1312, 1314 (App. 1977).
¶10 Diaz argues "[i]t was inappropriate for the [t]rial [c]ourt to use the laches defense" because "[i]t was never noticed, never disclosed and never litigated." He also contends "[t]here was no showing of a lack of diligence" or "prejudice as a result of any delay." We agree.
¶11 Laches is an affirmative defense. Flynn v. Rogers, 172 Ariz. 62, 66, 834 P.2d 148, 152 (1992). An answer to a complaint must set forth "any . . . matter constituting an avoidance or affirmative defense." Ariz. R. Civ. P. 8(c); see also Ariz. R. Civ. P. 12(b) (every defense shall be asserted in responsive pleading). "[I]t is the defendant's duty to plead and prove [laches]." Jerger v. Rubin, 106 Ariz. 114, 117, 471 P.2d 726, 729 (1970). "Defenses omitted from an answer or Rule 12 motion are . . . waived." City of Phoenix v. Fields, 219 Ariz. 568, ¶ 27, 201 P.3d 529, 535 (2009).
¶12 Here, Bachelier did not allege laches as an affirmative defense in his answer to Diaz's complaint, nor did he raise it in any subsequent motion. It therefore was waived. Moreover, laches was not discussed at trial. Consequently, even if Bachelier had properly raised the defense, he did not meet his burden of proving Diaz's lack of diligence in asserting the claim or that Bachelier had been prejudiced by the delay. The trial court therefore erred by denying relief on the basis of laches. See Files, 200 Ariz. 64, ¶ 2, 22 P.3d at 58; see also In re Guardianship of Stanfield, 276 P.3d 989, 1001 (Okla. 2012) ("A court generally may not raise sua sponte a nonjurisdictional affirmative defense such as laches.").
¶13 Because the trial court relied on the defense of laches, it did not consider the merits of Diaz's nuisance claim for the shed. Without any guidance from the trial court, we would be forced to weigh the evidence on appeal in the first instance—something we will not do. See Pugh v. Cook, 153 Ariz. 246, 247, 735 P.2d 856, 857 (App. 1987). We therefore vacate the portion of the court's ruling relating to Diaz's nuisance claim for the shed and remand for further proceedings.
Trespass
¶14 Diaz next argues the trial court's denial of his trespass claim "was arbitrary and not exercised according to reason, the uncontroverted evidence and the law." We defer to the trial court's findings of fact unless clearly erroneous but review its legal conclusions de novo. Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶ 9, 156 P.3d 1149, 1152 (App. 2007). We can "affirm the trial court's ruling if it is correct for any reason apparent in the record." Forszt v. Rodriguez, 212 Ariz. 263, ¶ 9, 130 P.3d 538, 540 (App. 2006).
¶15 In its under-advisement ruling, the trial court addressed Diaz's claims of continuing trespass for the fence and the shed together. In denying relief, the court explained: "[Diaz] bear[s] the burden of establishing [Bachelier] ha[s] trespassed as an intentional tort. However, [Diaz's] trial brief and the evidence at trial established that the property boundaries and surveys have changed since original ownership and boundaries were established."
¶16 Diaz first points out that his survey was the only one admitted at trial and that it showed encroachments on his property by both the fence and the shed. He contends Kory testified consistently with the survey and Bachelier offered no evidence to contradict it. He therefore reasons that the trial court's "ruling based upon 'changing boundaries and surveys' [was] . . . contradictory and ill-founded."
¶17 To the extent Diaz maintains the trial court was bound by his survey because it was "uncontroverted," he is mistaken. A trial court is not "bound to accept as true the [evidence] of disinterested witnesses unless in the whole case there are no circumstances or matters which cast suspicion upon or impair its accuracy." In re Wainola's Estate, 79 Ariz. 342, 346, 289 P.2d 692, 695 (1955). Here, Diaz did not call the surveyor as a witness at trial. Although Kory testified he relied on the survey and would have used the same procedure as the surveyor presumably used, Kory also testified it is "very hard to find actual property lines . . . based on pins" and "there might be a difference between where" the surveyor placed the pins and their original location.
¶18 Nevertheless, it is unclear whether the trial court accepted or rejected Diaz's survey. Instead, the court focused on Diaz's own admission that the property lines were not where he had originally thought. But, as Diaz points out, he testified that he had thought the property lines were located differently, not that the property lines actually had changed. And, a determination of the location of property lines is necessary for the resolution of the trespass claim, see Rogers v. Bd. of Regents of Univ. of Ariz., 233 Ariz. 262, ¶ 22, 311 P.3d 1075, 1081-82 (App. 2013) ("In order to establish a claim of trespass against another, the claimant must possess a legal interest in the land against which the trespass is alleged."); Ranch 57 v. City of Yuma, 152 Ariz. 218, 221, 731 P.2d 113, 116 (App. 1986) ("Trespass is any unauthorized physical presence on another's property."), particularly in light of the fact that Diaz alleged a continuing trespass, see Woldson v. Woodhead, 149 P.3d 361, 363 (Wash. 2006) ("A continuing trespass tort is different; the 'event' happens every day the trespass continues.").
Diaz originally thought Bachelier was encroaching on his property by "several feet." The survey indicated, however, that the encroachment was "under a foot in some instances."
¶19 Determining whether to accept or reject the survey was the function of the trial court. See Blaine v. McSpadden, 111 Ariz. 147, 149, 526 P.2d 390, 392 (1974) (trial court makes credibility determinations and factual findings); Thompson v. Leeper Living Trust, 698 N.E.2d 395, 397 (Ind. Ct. App. 1998) ("The question of the correctness of a survey is one of fact."). And, without this finding, we cannot determine whether the ruling is supported by the record. See Forszt, 212 Ariz. 263, ¶ 9, 130 P.3d at 540.
¶20 Diaz also contends the trial court committed an error of law with respect to intent because "[t]here is no need to prove an intention to trespass" and "only proof [of] the act [that results in the trespass] is required." To the extent the court concluded Diaz had not met his burden of proving trespass because he did not show Bachelier intended to trespass given that the property lines had changed, the court was legally incorrect. A trespasser need not "'intend to commit a trespass or even . . . know that his act will constitute a trespass.'" Mountain States Tel. & Tel. Co. v. Kelton, 79 Ariz. 126, 132, 285 P.2d 168, 172 (1955), quoting Socony-Vacuum Oil Co. v. Bailey, 109 N.Y.S.2d 799, 802 (Sup. Ct. 1952). But a trespasser must "'inten[d] to do the very act which results in the immediate damage.'" Id., quoting Socony-Vacuum Oil, 109 N.Y.S.2d at 802; see also 87 C.J.S. Trespass § 4 (2015) ("The trespasser must intend the act that constitutes unwarranted entry, even though the trespasser need not intend or expect the damaging consequences of the entry."). Here, the relevant intent was to construct the fence and the shed, which may or may not have resulted in a trespass—not the intent to commit the trespass itself.
¶21 Because the trial court's trespass ruling is unclear, lacks a critical factual finding, and appears to involve a legal error, we vacate that portion of the ruling and remand to the court for further proceedings.
Quiet Title
¶22 Diaz also contends the trial court erred by "failing to quiet title in [his] favor." He points out "[t]his case involved a boundary dispute" and his complaint asked the court to quiet title to his property but the court "failed to do so." In its under-advisement ruling on this issue, the court referred to its prior resolution of the nuisance, trespass, and declaratory judgment claims without any further explanation. The court said: "See Court ruling pursuant to Count I, II and III." But, like the trespass claim, the quiet-title action necessarily required the court to resolve the location of Diaz's property line, which the court did not do. See A.R.S. § 12-1102(5) (quiet-title complaint shall "[p]ray for establishment of plaintiff's estate"); see also Berryhill v. Moore, 180 Ariz. 77, 87, 881 P.2d 1182, 1192 (App. 1994) (judgment in quiet title to contain accurate legal description). In any event, because we have vacated the nuisance and trespass portions of the ruling, which the court relied on, we likewise vacate the quiet-title portion of the court's ruling and remand for further proceedings.
Diaz also contends the trial court erred in denying his request "to enjoin [Bachelier's] trespasses and nuisance." Because we are remanding the nuisance and trespass issues, the court can revisit the injunctive relief requested by Diaz on remand. --------
Easements
¶23 Diaz also challenges the trial court's denial of his request for an easement by prescription or necessity over the south side of the Bachelier property. Again, we defer to the trial court's findings of fact unless they are clearly erroneous, but we review its legal conclusions de novo. Flying Diamond Airpark, LLC, 215 Ariz. 44, ¶ 9, 156 P.3d at 1152. A finding of fact is not clearly erroneous if it is supported by substantial evidence. Castro v. Ballesteros-Suarez, 222 Ariz. 48, ¶ 11, 213 P.3d 197, 200-01 (App. 2009). And, we can uphold a ruling if it is legally correct for any reason supported by the record. Forszt, 212 Ariz. 263, ¶ 9, 130 P.3d at 540.
¶24 In its under-advisement ruling, the trial court addressed the two easements together, explaining that it was denying Diaz's request for both an easement by prescription and necessity because: "The evidence established that 1) [Diaz] has access to the property (see testimony by Mr. Kory); 2) [Bachelier] ha[s] not denied [Diaz] access upon reasonable request; and 3) [Diaz] ha[s] other access to the area." Diaz challenges each of the three findings on appeal.
¶25 As to the first finding, Diaz argues Kory was only "asked if he had permission to enter [the Bachelier] property" and "would not be in a position to know if . . . Diaz had been given access generally." The portion of the transcript on which the trial court appears to have relied comes from Kory's direct examination:
A. I found that there's a fence that actually stopped us from entering the property when we got there because I . . . didn't want to create a problem. I had to go ask permission or make sure that there was permission for me to cross that fence to get in to even . . . look at the property. So there's a wood gate fence that is actually attached to Mr. Diaz' wall.As we understand it, Kory testified that Bachelier had given Diaz permission to enter the gated area specifically for the completion of Kory's report in preparation for this litigation. If the court was relying on other testimony, such testimony is not readily apparent. We therefore are not satisfied that the court's finding is supported by substantial evidence. See Castro, 222 Ariz. 48, ¶ 11, 213 P.3d at 200-01.
Q. Okay. And in your opinion that fence and that's an encroachment on to the Diaz' property?
A. Yes, it is.
Q. Who did you ask permission from?
A. I spoke to Mr. Diaz who said he had permission from the neighbors and then he walked me in.
¶26 As to the second finding, Diaz maintains "[n]o one testified . . . under oath" that Bachelier had not denied Diaz access upon reasonable request. However, on direct examination, Diaz testified that Bachelier had told him, "[I]f you have [an] emergency, go and talk to my tenant and tell them you're going to fix something and go out." But, on cross-examination, Bachelier asked Diaz, "Did Mr. Bachelier, Sr., ever not grant you access to the property if you needed to get back there? Did he ever say you cannot go into the property?" Diaz responded, "No. He said I cannot have a key and he don't want me back there." Although there is a discrepancy in Diaz's testimony about whether he had been given permission to enter Bachelier's property, we cannot say the court's finding is not supported by substantial evidence. See id.
¶27 As to the court's third finding, Diaz asserts that other access is "irrelevant" because "an equal or better alternative[] does not preclude" an easement by prescription. However, other access is relevant to Diaz's claim of an easement by necessity. See Bickel v. Hansen, 169 Ariz. 371, 375, 819 P.2d 957, 961 (App. 1991); Chandler Flyers, Inc. v. Stellar Dev. Corp., 121 Ariz. 553, 554, 592 P.2d 387, 388 (App. 1979). Because the court addressed both easement claims together, our analysis of this issue is more difficult. We therefore turn to a consideration of the two types of easements.
Easement by Prescription
¶28 To obtain an easement by prescription, a claimant must show by clear and convincing evidence "that the land in question has actually and visibly been used for ten years, that the use began and continued under a claim of right, and [that] the use was hostile to the title of the true owner." Harambasic v. Owens, 186 Ariz. 159, 160, 920 P.2d 39, 40 (App. 1996); see Inch v. McPherson, 176 Ariz. 132, 135, 859 P.2d 755, 758 (App. 1992). If the claimant establishes "open, visible, continuous, and unmolested use of the land" for at least ten years, the use is presumptively hostile and under a claim of right. Harambasic, 186 Ariz. at 160-61, 920 P.2d at 40-41, quoting LaRue v. Kosich, 66 Ariz. 299, 306, 187 P.2d 642, 647 (1947). The burden then shifts to the owner to show the use was permissive. Id.
¶29 Here, none of the trial court's findings indicate whether Diaz met his initial burden of proving an easement by prescription. Based on the second finding, the court appears to have determined that Diaz's use of Bachelier's property was permissive. But, assuming that was the court's determination, we are not satisfied it is supported by the record. See Castro, 222 Ariz. 48, ¶ 11, 213 P.3d at 200-01. Although we have concluded there is evidence to support the second finding, that evidence involves communications between the parties after the gated wood fence was constructed in 2003. And, as Diaz argues on appeal: "The major point missed by the [t]rial [c]ourt . . . is not whether [he] had permission to enter since being locked out. It is whether [he] obtained [p]rescriptive [e]asement rights by twelve (12) years of uninterrupted use prior to being locked out." See Restatement (Third) of Property (Servitudes) § 2.17 (2000) ("A servitude can be acquired by prescription only if the owner or possessor of the claimed servient estate does not effectively interrupt the adverse use prior to the end of the prescriptive period.").
¶30 "'Proper findings are essential to enable [this court] to perform its function of assuring that the findings support the judgment and that the evidence supports the findings.'" Miller v. Bd. of Supervisors, 175 Ariz. 296, 299, 855 P.2d 1357, 1360 (1993), quoting Bastian v. King, 661 P.2d 953, 957 (Utah 1983). We will not hesitate to remand for additional findings of fact and conclusions of law when we cannot readily ascertain the trial court's rationale. See Miller, 175 Ariz. at 300, 855 P.2d at 1361 ("Where possible, when a trial court in a non-jury case fails to make or makes insufficient findings of fact and conclusions of law, a reviewing court should remand the case to the trial court for further findings."); see also Anderson v. Contes, 212 Ariz. 122, ¶ 12, 128 P.3d 239, 242 (App. 2006). We do so here because the court's denial of Diaz's request for an easement by prescription is not supported by the present record on appeal.
Easement by Necessity
¶31 "Under the common law, [an easement by necessity is established] where land is sold that has no outlet, [and] the vendor by implication of the law grants ingress and egress over the parcel to which he retains ownership, enabling the purchaser to have access to his property." Bickel, 169 Ariz. at 374, 819 P.2d at 960; see also 28A C.J.S. Easements § 111 (2015) ("The creation of an easement by necessity depends on the conveyance of a lot out of a larger parcel; a lack . . . of access to the conveyed lot; and the availability of relief in the form of an easement across the retained land of the conveyor . . . ."). "Former unity of title and subsequent separation are factual predicates to implying a way of necessity." Tobias v. Dailey, 196 Ariz. 418, ¶ 13, 998 P.2d 1091, 1094 (App. 2000). These factual predicates distinguish an easement by necessity from an easement by prescription. See Oyler v. Gilliland, 351 So. 2d 886, 887-88 (Ala. 1977) (easement by necessity based on implied intended grant).
¶32 Here, Diaz presented no evidence that the two properties originally were comprised of one parcel that subsequently was divided. His claim therefore fails. See Bickel, 169 Ariz. at 374, 819 P.2d at 960. We therefore cannot say the court erred by denying Diaz's request for an easement by necessity. See Forszt, 212 Ariz. 263, ¶ 9, 130 P.3d at 540.
Motion for a New Trial or to Amend the Judgment
¶33 Diaz lastly contends the trial court erred by denying his motion for a new trial or to amend the judgment. Diaz made the same arguments in his motion that he is making on appeal. Because we have addressed those arguments, we do not separately address the motion for a new trial or to amend the judgment.
¶34 However, we note that on appeal Diaz is not seeking a new trial but rather contends the "trial court should have amended [the] judgment." On remand, the court shall hold additional proceedings as it deems necessary to resolve the rulings vacated by this decision. To the extent the court can make additional findings of fact and conclusions of law to support its judgment, a new trial is unnecessary. See Anderson, 212 Ariz. 122, ¶ 14, 128 P.3d at 243. But, if in the process of doing so, the court determines "[t]hat the verdict, decision, findings of fact, or judgment is not justified by the evidence or is contrary to law," as highlighted in this decision, it may grant Diaz's request for a new trial. Ariz. R. Civ. P. 59(a)(8); see also In re Estate of Hanscome, 227 Ariz. 158, ¶ 16, 254 P.3d 397, 402 (App. 2011).
Disposition
¶35 For the foregoing reasons, we affirm in part, vacate in part, and remand for further proceedings. Diaz requests attorney fees on appeal for his quiet-title and easement claims. But he has only cited authority, albeit indirectly, for an award on the quiet-title action. See A.R.S. § 12-1103(B). Because the easement theories involve a distinct claim, we deny his request as to that claim. See Ariz. R. Civ. App. P. 21(a)(2) (we may decline to award fees if basis of award not stated). And, because we do not yet know who the prevailing party on the quiet-title action will be, we defer any award of attorney fees incurred on appeal for this claim to the trial court. See Scottsdale Mem'l Health Sys, Inc. v. Clark, 164 Ariz. 211, 215, 791 P.2d 1094, 1098 (App. 1990) (§ 12-1103(B) allows award to prevailing party); cf. Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, ¶ 37, 165 P.3d 173, 182 (App. 2007) (deferring award of attorney fees to trial court pending resolution of matter on merits). However, Diaz is entitled to his costs contingent upon his compliance with Rule 21.