Wells v. Zummallen ( 2023 )


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  •                       NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    KEVIN E. WELLS AND ELISA M. WELLS, Plaintiffs/Appellees,
    v.
    JOSEPH W. ZUMMALLEN, SUSAN K. ZUMMALLEN,
    Defendants/Appellants.
    No. 1 CA-CV 22-0326
    FILED 2-16-2023
    Appeal from the Superior Court in Yavapai County
    No. P1300CV201900989
    The Honorable Michael P. McGill, Judge
    AFFIRMED
    COUNSEL
    Holdsworth Law Firm PC, Prescott
    By Michael L. Holdsworth, Lori Marschke
    Co-counsel for Plaintiffs/Appellees
    Matthew J. Mansfield PLLC, Flagstaff
    By Matthew J. Mansfield
    Co-counsel for Plaintiffs/Appellees
    J. Jeffrey Coughlin PLLC, Prescott
    By J. Jeffrey Coughlin
    Counsel for Defendants/Appellants
    WELLS, et al. v. ZUMMALLEN, et al.
    Decision of the Court
    MEMORANDUM DECISION
    Judge Randall M. Howe delivered the decision of the court, in which
    Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.
    H O W E, Judge:
    ¶1            Joseph W. ZumMallen and Susan K. ZumMallen appeal from
    the trial court’s granting Kevin E. Wells and Elisa M. Wells summary
    judgment. For the following reasons, we affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶2            The ZumMallens own an undeveloped parcel of land next to
    the Wells’s property in Yavapai County. The properties had been owned by
    the Lane-Smith Investment Company (“Lane-Smith”) until 1931. The
    ZumMallens bought their property from someone who had purchased it
    from Lane-Smith. Beginning on the parcel just south of the ZumMallen
    property, Sunnyside Road passed over its southeast corner, ran north
    between the parties’ properties, cut through the northwest portion of the
    Wells property, and sliced across the property directly north of the Wells
    (“northern property”) before merging with other roads. By the time the
    ZumMallens acquired their property, they did not have legal access to reach
    or drive on Sunnyside Road and other existing roadways.
    ¶3            To obtain access to these roadways, the ZumMallens sent
    letters to surrounding property owners, including the Wells and their
    property’s previous owner, asking them to sign a quitclaim deed to create
    an easement for access. They explained that they had actual, but not legal,
    access to their property, making it a landlocked parcel. Many property
    owners signed quitclaim deeds in the ZumMallens’ favor. This included the
    owner of the northern property, who granted the ZumMallens an easement
    over the portion of Sunnyside Road that cut through their property. The
    Wells, however, refused to grant an easement to drive over their property.
    ¶4           Instead, the Wells asked the ZumMallens to sign a quitclaim
    deed to stop pursuing access across their property. This time, the
    ZumMallens refused and renewed their request for an easement. The Wells
    consequently sued the ZumMallens for declaratory relief that no express or
    implied easement existed to encumber their property. The ZumMallens
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    WELLS, et al. v. ZUMMALLEN, et al.
    Decision of the Court
    counterclaimed that their property had an implied easement across the
    Wells property and that they were entitled to condemn a private way of
    necessity across it.
    ¶5            The Wells moved for summary judgment, arguing that the
    ZumMallens did not have an express easement across the Wells property
    because they had never been granted one. The ZumMallen property’s
    previous owner had purchased the land from Lane-Smith, who had granted
    her and her heirs or assigns access to roads over land it owned. But by that
    time Lane-Smith had already sold a parcel of land that included the Wells
    property. Thus, the ZumMallens never acquired an easement over that
    parcel. The Wells further argued that the ZumMallens did not have an
    implied easement across the Wells property and did not satisfy the legal
    requirements to condemn it. They argued last that the ZumMallens did not
    satisfy the common law requirements for a private way of necessity because
    they had access to their property through two alternative routes.
    ¶6             In response, the ZumMallens argued that these alternate
    routes were not reasonable alternatives because they would have to seek
    multiple easements through multiple properties, which required
    “substantial legal gymnastics and physical earth moving, grading and
    expense.” During the hearing on the motion, the ZumMallens argued that
    the easement on the Wells property “would be the easiest possible
    transition from their property to egress,” while the alternate routes were
    “full of rocks and hills and other people’s properties.” The court asked the
    ZumMallens about access to Sunnyside Road on the northern property. The
    ZumMallens noted that the owner of the northern property, through which
    Sunnyside Road extended, had granted them an easement to drive on the
    road. But the ZumMallens had not pursued an easement to cross from their
    property line, through the existing posts and chain, to that roadway because
    they sought to follow the “traveled path.”
    ¶7            The court granted the Wells summary judgment on all counts,
    finding that the ZumMallens did not have an express or implied easement
    across their property and were barred from condemning a private way of
    necessity over it. The court found that in a private condemnation claim, the
    ZumMallens should have “attempt[ed] all remedies” to show that they
    could not gain access to the northern property for ingress and egress
    through the existing posts and chain. Although the road ran parallel to the
    ZumMallen parcel, “that, nevertheless, [did not] eliminate the Wells’[s]
    interest in that property and ownership.” The court concluded that the
    ZumMallens had not shown that the route through the northern property
    was inadequate or unavailable. The ZumMallens timely appealed.
    3
    WELLS, et al. v. ZUMMALLEN, et al.
    Decision of the Court
    DISCUSSION
    ¶8             The ZumMallens argue that the trial court erred in finding
    that they were barred from privately condemning the northwest portion of
    the Wells property because their property was landlocked. As a threshold
    matter, the Wells point out that the ZumMallens failed to comply with
    Arizona Rule of Civil Procedure 56(e), requiring that a response, by
    affidavits or other evidence, “set forth specific facts showing a genuine
    issue for trial.” Although the ZumMallens did not produce evidence to
    support their response to the motion for summary judgment, such as
    affidavits or deposition testimony, we prefer to decide cases on their merits.
    Ramos v. Nichols, 
    252 Ariz. 519
    , 523 ¶ 13 (App. 2022).
    ¶9            We review a grant of summary judgment de novo, “viewing
    the facts and inferences in the light most favorable to the non-prevailing
    party.” Hale v. Window Rock Unified Sch. Dist., 
    252 Ariz. 420
    , 423 ¶ 6 (App.
    2021) (quoting BMO Harris Bank N.A. v. Wildwood Creek Ranch, LLC, 
    236 Ariz. 363
    , 365 ¶ 7 (2015)). A court properly grants summary judgment if no
    genuine dispute of material fact exists and “the moving party is entitled to
    judgment as a matter of law.” Ariz. R. Civ. P. 56(a). A trial court should
    grant summary judgment “if the facts produced in support of the claim or
    defense have so little probative value, given the quantum of evidence
    required, that reasonable people could not agree with the conclusion
    advanced by the proponent of the claim or defense.” Orme Sch. v. Reeves,
    
    166 Ariz. 301
    , 309 (1990).
    ¶10           The trial court properly granted the Wells summary
    judgment. A landowner or “person entitled to the beneficial use of land”
    may pursue a private condemnation to construct and maintain a private
    way of necessity over another’s land only when his land “is so situated with
    respect to the land of another that it is necessary for its proper use and
    enjoyment to have and maintain a private way of necessity.” A.R.S. § 12–
    1202(A). Arizona courts interpret this to mean that “only a party owning or
    having a beneficial use in land that is ‘land-locked’ may bring an action to
    condemn a private way of necessity across the land of another.” Solana Land
    Co. v. Murphy, 
    69 Ariz. 117
    , 123 (1949). The party seeking to condemn land
    has the burden to show a “reasonable necessity” for the taking, which
    requires “proving either the unavailability or inadequacy of an alternative
    access route.” Siemsen v. Davis, 
    196 Ariz. 411
    , 417 ¶ 28 (App. 2000).
    ¶11          The ZumMallens did not meet this burden because they
    offered no evidence to prove an alternate access route was unavailable or
    inadequate. Their access to drive on Sunnyside Road across the northern
    4
    WELLS, et al. v. ZUMMALLEN, et al.
    Decision of the Court
    property is undisputed. But their easement did not extend to grant them
    access to get to the road. The ZumMallens did not even attempt to acquire
    an easement from the owner of the northern property for ingress and egress
    through the existing posts and chain to access Sunnyside Road.
    ¶12           Although the availability of an alternate route does not
    prevent a private condemnation, Tobias v. Dailey, 
    196 Ariz. 418
    , 421–22 ¶ 14
    (App. 2000), the ZumMallens also did not demonstrate the
    unreasonableness or inadequacy of the available route through the existing
    posts and chain. At the hearing, they merely argued that crossing over the
    Wells property was more reasonable or convenient because they were
    following the “traveled path” of Sunnyside Road. But they did not provide
    any evidence or affidavit to support their argument. On appeal, they rely
    on a summary of their expert witness’s opinion found in their initial
    disclosure statement. The Wells argue that this is inadmissible evidence.
    But that evidence concerns the reasonableness of alternate routes which we
    do not reach.
    ¶13           Further, inconvenience alone does not determine the
    adequacy of an alternate route. Siemsen, 196 Ariz. at 416–17 ¶¶ 19–24
    (holding that the alternate route—increasing the plaintiffs’ travel time “by
    approximately two hours of rough road”—was not inadequate because
    allowing condemnation would have been detrimental to the defendants’
    ranching operations). The ZumMallens did not provide any evidence that
    accessing Sunnyside Road through the existing posts and chain would be,
    for example, uneconomical or disruptive. See Dabrowski v. Bartlett, 
    246 Ariz. 504
    , 517–18 ¶ 45 (App. 2019) (holding that counterclaimant was entitled to
    a private condemnation after evidence demonstrated that building a road
    across the alternate route would cause a disturbance and leave about 90
    square feet on the lot for the counterclaimant’s home).
    ¶14           The ZumMallens, therefore, did not raise a genuine dispute
    of material fact. The parties argue about the adequacy of other alternate
    routes. But we need not consider the availability and adequacy of every
    possible route. Because the ZumMallens have not proved a reasonable
    necessity for the private condemnation, we do not consider whether they
    exercised good or bad faith in seeking to condemn a portion of the Wells
    property. See Siemsen, 196 Ariz. at 414 ¶ 10.1
    1     The Wells also argue that the ZumMallens’ condemnation claim fails
    because they failed to satisfy condemnation procedures pursuant to A.R.S.
    5
    WELLS, et al. v. ZUMMALLEN, et al.
    Decision of the Court
    CONCLUSION
    ¶15           For the foregoing reasons, we affirm. The Wells request
    attorneys’ fees and costs under A.R.S. §§ 12–1103, 12–341, 12–341.01, and
    12–349, and the ZumMallens request attorneys’ fees and costs under A.R.S.
    §§ 12–1840 and 12–341. Neither party is entitled to attorneys’ fees on appeal.
    This is not an action arising from a contract, see A.R.S. § 12–341.01, and the
    Wells did not comply with A.R.S. § 12–1103(B). Nor are the ZumMallens’
    arguments so meritless that awarding fees is justified under A.R.S. § 12–
    349. As the successful party, however, the Wells may recover their taxable
    costs on appeal upon compliance with Arizona Rule of Civil Appellate
    Procedure 21.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    § 12–1116(A). But because we affirm summary judgment under A.R.S.
    § 12–1202, we do not reach this argument.
    6
    

Document Info

Docket Number: 1 CA-CV 22-0326

Filed Date: 2/16/2023

Precedential Status: Non-Precedential

Modified Date: 2/16/2023