Opinion
No. 2 CA-CV 2018-0155
05-17-2019
BRIAN J. TEGOWSKI AND PEGGY DIERKING TEGOWSKI, HUSBAND AND WIFE, Plaintiffs/Appellants, v. DAVID BAREISS AND MARIAN STODDARD, HUSBAND AND WIFE, Defendants/Appellees.
COUNSEL Law Offices of Gregory L. Droeger, Nogales By Gregory L. Droeger Counsel for Plaintiffs/Appellants David Bareiss and Marian Stoddard, Sonoita In Propria Personae
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NOT FOR PUBLICATION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. CV201800117
The Honorable Thomas Fink, Judge
AFFIRMED
COUNSEL Law Offices of Gregory L. Droeger, Nogales
By Gregory L. Droeger
Counsel for Plaintiffs/Appellants David Bareiss and Marian Stoddard, Sonoita
In Propria Personae
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Brian and Peggy Tegowski appeal the trial court's order dismissing their complaint, arguing the court erred in doing so and refusing to modify a previously entered injunction prohibiting them from interfering with an easement serving the appellees herein and third parties. For the following reasons, we affirm.
Factual and Procedural Background
¶2 In 2004, David Bareiss and Marian Stoddard ("Appellees") brought an action against the Tegowskis ("Appellants") seeking to quiet title to an ingress and egress easement over a strip of land, referred to as the Roadway. In February 2006, following a two-day bench trial, the trial court entered judgment in favor of Appellees, finding they had a valid easement and Appellants had no legal title to the Roadway. The court additionally found that "[e]ven if [Appellants] had legal title," "the erection and maintenance of the two gates across the . . . Roadway constitutes an unreasonable interference with [Appellees'] right of ingress and egress" and permanently enjoined Appellants from obstructing the Roadway "by gates or any other obstruction." The court subsequently denied Appellants' motion for new trial. According to their "complaint" in the present matter, Appellants "obtained title to the fee of the Roadway" in October 2007. In October 2008, the court denied a motion for relief filed by Appellants based on "newly discovered evidence"—apparently that Appellants had obtained title to the disputed roadway.
¶3 Almost ten years later in May 2018, Appellants brought the current complaint against Appellees under a new case number, citing Rule 60(d)(1), Ariz. R. Civ. P., and again seeking "to obtain relief from [the 2006] order and to obtain permission to place gates across the Roadway." Appellees filed a request for dismissal that the trial court treated as a motion to dismiss for failure to state a claim. At a hearing on the motion, Appellants "appeared to concede" they were relying on Rule 60(b) for relief. With leave of court, they amended their complaint to list both Rule 60(b)(5) and Rule 60(d)(1) as the bases for the action. The court then granted Appellees' motion to dismiss, citing Rule 12(b)(6), Ariz. R. Civ. P., and reasoning that Rule 60 "does not afford [Appellants] relief, even assuming the truth of all their pleaded factual allegations and indulging all reasonable inferences from those facts." This appeal followed, over which we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Standard of Review
¶4 Appellants assert that "appellate courts review a grant of injunctive relief for abuse of discretion" and because this case "is the opposite," "the same standard should logically apply" to their claims. That standard does apply, but only to their first two claims, and for a different reason. Despite the procedural title as a "complaint," Appellants' claims that the trial court erred by determining the 2006 order "can effectively never be modified" and by "failing to consider the totality of allegations" effectively challenge the court's denial of Rule 60 relief, which we review for abuse of discretion. See State ex rel. Brnovich v. Culver, 240 Ariz. 18, ¶ 4 (App. 2016). Their third claim—that the court erred by "ignoring the extra-legal and equitable grant of use of the easement by appellees to a third party,"—apparently challenges the court's dismissal of their complaint under Rule 12(b)(6), which we review de novo. Coleman v. City of Mesa, 230 Ariz. 352, ¶ 7 (2012).
Rule 60 Relief from Prior Order
¶5 Appellants first contend the trial court abused its discretion because, as noted above, it ruled the 2006 permanent injunction "can effectively never be modified." An abuse of discretion occurs when the trial court "commits an error of law in the process of exercising its discretion." Amanti Elec. Inc. v. Engineered Structures, Inc., 229 Ariz. 430, ¶ 4 (App. 2012) (quoting Fuentes v. Fuentes, 209 Ariz. 51, ¶ 23 (App. 2004)).
¶6 Appellants correctly point out it is well established that permanent injunctions may be modified and dissolved. Ahwatukee Custom Estates Mgmt. Ass'n v. Turner, 196 Ariz. 631, ¶ 9 (App. 2000) (injunctions are equitable remedies); see Brown v. Plata, 563 U.S. 493, 561 (2011) (Scalia, J., dissenting) ("[A] party is always entitled to move to modify an equitable decree."). Because the power of a court to enforce a permanent injunction "continues for all time[, a]s a correlative, there must also exist the power to . . . modify or vacate" inequitable injunctions. Gillespie Land & Irrigation Co. v. Narramore, 93 Ariz. 67, 71-72 (1963) (quoting Lowe v. Prospect Hill Cemetery Ass'n, 106 N.W. 429, 431 (Neb. 1905)). Under the doctrine of res judicata, however, "an existing final judgment rendered upon the merits . . . by a court of competent jurisdiction is conclusive as to every point decided and as to every point which could have been raised by the record." Di Orio v. City of Scottsdale, 2 Ariz. App. 329, 330 (1965). A party seeking modification or dissolution of a final permanent injunction, therefore, bears the burden of establishing a significant change in facts or law warranting revision or dissolution of the injunction because applying it prospectively "is no longer equitable." Ariz. R. Civ. P. 60(b)(5); accord Sharp v. Weston, 233 F.3d 1166, 1170 (9th Cir. 2000).
¶7 Contrary to Appellants' claim, the trial court did not conclude the 2006 injunction could never be modified; it only determined Appellants had not shown that applying the injunction "prospectively is no longer equitable," or that any other reason justified relief. In their complaint, Appellants alleged public overuse and their purchase of the Roadway as the changes in circumstance entitling them to dissolution of the 2006 injunction. But the court disagreed that these allegations amounted to "clear" evidence of changed circumstances, see Gillespie Land & Irrigation Co., 93 Ariz. at 72, noting that the 2006 order stated even if Appellants obtained title to the Roadway, they could not construct gates and that public use of the Roadway was a prospective and foreseeable consequence of the injunction. Appellants have not demonstrated that this reasoning was in error.
We agree with Appellants that nothing in the 2006 order denies them relief due to changed circumstances. And we do not suggest they could never meet their burden in that regard under Rule 60(b)(5) or any other provision of that rule. We simply conclude here that they have not demonstrated the trial court's conclusion was an abuse of discretion.
¶8 Appellants next argue the trial court erred by "failing to consider the totality of the allegations" because it did not address the "discernable facts that emerged" from the pleadings filed after Appellees' motion to dismiss. Those facts were that Appellees "hardly use" the Roadway and Appellants have developed the need to erect gates because of their "rescue horses." But Appellants cite no authority demonstrating that the facts alleged would be sufficient to constitute changed circumstances, nor that a trial court would be required to consider those untimely alleged facts. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) ("Opening briefs must present and address significant arguments, supported by authority that set forth the appellant's position on the issue in question" . . . [and] provide "citations to the authorities, statutes and parts of the record relied on."). Indeed, Appellants concede that "the flurry of documents filed after the [m]otion to [d]ismiss find questionable support in the Rules of Civil Procedure, and could . . . arguably be excluded from consideration of the case as a whole." Appellants thus having filed these documents late below and absent any compelling authority on the merits, we do not address this claim further.
In response to Appellants' claim that Appellees seldom used the Roadway in favor of alternate access to their property by Hitchcock Lane, Appellees asserted below that while they "generally use Hitchcock Lane" in order to minimize any burden on Appellants, the Roadway is their only legal easement.
Allegation of Extra-Legal Grant of Easement
¶9 As noted above, we review de novo Appellants' final claim that the trial court "ignor[ed] the allegation of extra-legal grant of use of the easement" in dismissing their complaint. Coleman, 230 Ariz. 352, ¶ 7. In doing so, we look only to Appellants' pleading, assuming the truth of all well-pled factual allegations and indulging all reasonable inferences. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, ¶ 7 (2008). Although we will uphold dismissal "if the plaintiffs would not be entitled to relief under any facts susceptible of proof in the statement of the claim," Mohave Disposal, Inc. v. City of Kingman, 186 Ariz. 343, 346 (1996), we also may affirm if the dismissal is correct for any reason, Dube v. Likins, 216 Ariz. 406, n.3 (App. 2007). Moreover, "we do not accept as true allegations consisting of conclusions of law, inferences or deductions that are not necessarily implied by well-pleaded facts, unreasonable inferences or unsupported conclusions from such facts, or legal conclusions alleged as facts." Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, ¶ 4 (App. 2005).
¶10 Appellants' sole claim was captioned "Overburdening of Easement," under which they alleged that "[i]mmediately following" the 2006 injunction, Appellees "conveyed a fee of a small portion of their homesite to neighboring third parties . . . , together with a right to enjoy the use of the Roadway by express easement." Appellants asserted the conveyance was "contrary to settled Arizona law," citing DND Neffson Co. v. Galleria Partners, 155 Ariz. 148 (App. 1987), but acknowledged that in a separate action, the third parties "granted a quit-claim to [Appellants] in settlement of their claims."
Appellants also alleged in their complaint that "[a]s a result of the unimpeded access to the Roadway, the public in general uses the Roadway constantly and continually, to the harassment" of Appellants and that "[s]uch use by members of the public is an unreasonable overburdening of the Roadway" and "the direct result of [Appellees'] steadfast refusal to allow gates to be erected on the Roadway." But their argument on appeal relates only to Appellees' easement conveyance to specific third parties, not the public as a whole. Accordingly, Appellants have waived any other claim that their complaint stated a different cause of action that should have moved forward. See Ritchie, 221 Ariz. 288, ¶ 62. --------
¶11 On appeal, Appellants contend dismissal was improper because the trial court "ignored" their allegation of the "'extra-legal' grant by Appellees of the . . . right to the use of the easement" to the third parties, claiming such a grant "was in derogation" of Galleria Partners. In that case, this court held that improper use of an easement may overburden it and that an easement appurtenant to the dominant parcel "may not be used to benefit another parcel of land to which the easement is not appurtenant even though the two parcels are adjacent and under common ownership." Galleria Partners, 155 Ariz. at 149. But that case is distinguishable from the situation at hand, in which there is no showing that Appellees used the easement to benefit land not appurtenant to the easement.
¶12 And to the extent Appellants claim the 2006 conveyance overburdened the easement through improper use, their complaint did not allege sufficient facts to withstand dismissal. Aside from their conclusory allegation that Appellees' conveyance of the easement was improper, Appellants alleged only that Appellees conveyed to third parties a portion of their land along with the right to use the easement, which was not the situation addressed in Galleria Partners and is not on its face "contrary to settled Arizona law" as claimed. See State ex rel. Herman v. Schaffer, 110 Ariz. 91, 95 (1973); Solana Land Co. v. Murphey, 69 Ariz. 117, 122 (1949) ("right of way appurtenant" inheres in land to which it is appurtenant and passes with the land unlike "right of way in gross [which] is a mere personal privilege"). Appellants likewise did not allege that Appellees' easement is personal and may not be conveyed when a portion of the dominant estate is sold to third parties. Taking the actual facts alleged as true, we cannot say the trial court erred in concluding that Appellants failed to state a claim upon which relief could be granted. See Belen Loan Inv'rs, LLC v. Bradley, 231 Ariz. 448, ¶ 18 (App. 2012) (complaint must state supporting factual allegations, not only legal conclusions, to satisfy notice pleading standard).
¶13 Moreover, Appellants acknowledged the apparent mootness of their claim because before filing their complaint, they had already litigated the easement extension and obtained a settlement with the third parties in which they were granted a quit-claim deed, thus resolving any dispute the conveyance may have caused. See Moot Case, Black's Law Dictionary (10th ed. 2014) (defining moot case as "[a] matter in which a controversy no longer exists"); see also Contempo-Tempe Mobile Home Owners Ass'n v. Steinert, 144 Ariz. 227, 229 (App. 1985) ("A case is moot when it seeks to determine an abstract question which does not arise upon existing facts or rights."). Although the trial court did not address the mootness of the issue, as noted earlier, we nevertheless may uphold the dismissal of a complaint if it is correct for any reason. Sw. Non-Profit Hous. Corp. v. Nowak, 234 Ariz. 387, ¶ 10 (App. 2014).
Disposition
¶14 The trial court's order of dismissal is affirmed.