Payne v. Lemons

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DIVISION ONE FILED: 02/18/2010 PHILIP G. URRY,CLERK BY: GH ROBERT PAYNE, an individual; LEVI ) No. 1 CA-CV 09-0122 SLAUGHTER and DEBORAH SLAUGHTER, ) husband and wife, ) DEPARTMENT D ) Plaintiffs/Appellees, ) MEMORANDUM DECISION ) v. ) (Not for Publication ) Rule 28, Arizona Rules of LLOYD LEMONS and CHRISTA LEMONS, ) Civil Appellate Procedure) husband and wife; EVERETT ) PEMBERTON, an individual, ) ) Defendants/Appellants. ) ) Appeal from the Superior Court in Apache County Cause No. CV2007358 The Honorable Donna J. Grimsley, Judge REVERSED AND REMANDED Holland Law Firm, PLLC By Joseph E. Holland Attorneys for Appellees Higgins, Hitchcock & Hesse, PLLC By Robert S. Hitchcock Attorneys for Appellants Snowflake Pinetop J O H N S E N, Judge ¶1 Lloyd Lemons, Christina Lemons and Everett Pemberton ( Appellants ) appeal from the superior court s grant of a motion for partial summary judgment on liability in favor of Robert Payne, Levi Slaughter and Deborah Slaughter ( Appellees ) and denial of Appellants motion for summary judgment. For the following reasons, we reverse and remand. FACTUAL AND PROCEDURAL HISTORY ¶2 Appellants own adjacent 40-acre parcels in the Ranch of the White Mountains subdivision. In 1981, when Ranch of the White Mountains was subdivided, its owner dedicated and recorded a 50-foot public roadway and utility easement along all four sides of each parcel in the subdivision, including Appellants parcels. Jeff Lake Road, a dirt road not maintained by the county, runs along the southern boundary of Appellants parcels within the 50-foot easement. Appellees must use Jeff Lake Road to access their properties. ¶3 difficult After a heavy rainfall in 2007 made Jeff Lake Road to navigate, Appellees drove on the road s north shoulder (but still within the easement) to bypass difficult patches. According to Appellants, Appellees bypass route destroyed vegetation, causing erosion that threatened a fence on the Lemonses parcel. To protect the fence, Appellants erected a new fence blocking Appellees bypass on the north side of the 2 road and created southern an alternate shoulder. constructed existed; did bypass not intrude Appellees, on however, Jeff contend Appellants on the the road maintain partially blocked the existing road. 2007, Appellants received as that Lake Road s fence it they previously the new fence On September 18 and 25, letters from demanding they remove the new fence. Appellees counsel Appellants complied. In early October 2007, after removing the fence, Appellants dug a drainage ditch within was located Appellees, the in easement, the which, approximate according location to of the recently removed fence. ¶4 On December 6, 2007, Appellees filed a complaint alleging Appellants were negligent per se because their conduct violated Arizona Revised Statutes ( A.R.S. ) sections 13-2906 (2001), obstructing a highway or other public thoroughfare, and 48-3615 (Supp. watercourse 2009), creating diverting a hazard to the flow life or of waters in property. a After Appellants answered, denying the allegations, Appellees moved for partial liability. judgment, summary judgment Appellants alleging filed their on the their actions issue own did of motion not Appellants for summary interfere with Appellees right to the easement, that A.R.S. § 13-2906 did not apply, that Appellants did not violate A.R.S. §§ 13-2906 or 48- 3 3615 and that Appellants actions were not the proximate cause of any injury suffered by Appellees. ¶5 The superior court set a hearing on the parties motions at which, without explanation, it also heard testimony and admitted exhibits. The court entered an unsigned order finding Appellants had violated A.R.S. §§ 13-2906 and 48-3615, were negligent per se and therefore were liable to Appellees for damages. After directing Appellees to prepare an order for its signature, the court issued a signed order finding Appellants liable to Appellees for their actions in blocking the easement along Jeff Lake Road and ordering Appellants to refrain from attempting to maintain Jeff Lake Road past their current driveways, to remove existing fences lying within the easement and to avoid intentionally causing surface waters to run down the easement to Appellees detriment. The superior court then scheduled a hearing on the issue of damages. Before the damages hearing was held, however, Appellants filed a notice of appeal of the signed order on liability. DISCUSSION A. Jurisdiction. ¶6 The general rule is that jurisdiction of appeals is limited to final judgments which dispose of all claims and all parties. Maria v. Najera, 222 Ariz. 306, ___, ¶ 5, 214 P.3d 394, 395 (App. 2009) (quoting Musa v. Adrian, 130 Ariz. 311, 4 312, 636 P.2d 89, 90 (1981)). Arizona Revised Statutes § 12- 2101(G) (2003), however, grants this court jurisdiction over an interlocutory parties and judgment directs which an determines accounting or determine the amount of the recovery. the rights other of proceeding the to A party may appeal such a judgment when the superior court has exercised its discretion to expressly direct that the only remaining issue is the amount of recovery. Bilke v. State, 206 Ariz. 462, 468, ¶ 28, 80 P.3d 269, 275 (2003). ¶7 did Here, the signed order from which Appellants appeal not dispose of all claims because, although it granted Appellees motion for partial summary judgment on the issue of liability, it did not dispose of their damage claim. The superior court did not expressly state that the only remaining issue was the amount of Appellees recovery, but after entering the order on liability, the court set a scheduling conference regarding the issue of damages only. Therefore, because the court s order held Appellants liable to Appellees and left open only the matter of damages, we have jurisdiction of Appellees appeal of the order. A.R.S. § 12-2101(G); see Bilke, 206 Ariz. at 462, 80 P.3d at 269. B. ¶8 Standard of Review. We review the superior court s grant of summary judgment de novo and view the facts in the light most favorable 5 to the non-moving party. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). the pleadings, Summary judgment is appropriate if deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ariz. R. Civ. P. 56(c)(1); see also Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). 1 C. Negligence Per Se. ¶9 The superior court held Appellants actions in constructing the fence and digging the ditch violated A.R.S. §§ 13-2906 and 48-3615 and constituted negligence per se. 1. ¶10 A.R.S. § 13-2906. Pursuant to A.R.S. § 13-2906, [a] person commits obstructing a highway or other public thoroughfare if, having no legal privilege to do so, such person, alone or with other persons, recklessly interferes with the passage of any highway or public thoroughfare by creating an unreasonable inconvenience or hazard. misdemeanor. A violation of this section is a class 3 A.R.S. § 13-2906(B). 1 We presume the superior court treated testimony offered at the hearing in the same manner as it would have treated affidavits or deposition testimony presented in support of the cross-motions for summary judgment, and so do we. 6 ¶11 The superior court granted Appellees partial summary judgment motion blocking the because roadway it found violated Appellants A.R.S. § actions 13-2906. In in their cross-motions for summary judgment and on appeal, the parties dispute whether the fence Appellants constructed blocked a portion of Jeff Lake Road as it had existed before it was washed out or blocked only the bypass route Appellees created to the north of Jeff Lake Road. summary judgment, At oral argument on the motions for however, Appellees counsel stated, the dispute is not whether or not [the fence] obstructed a roadway, but whether it was obstructing an easement. ¶12 Even if we do not take this statement as a concession that the fence did not enter the roadway, a disputed issue of fact exists as to whether the fence obstructed any part of Jeff Lake Road. cannot Viewing the facts most favorable to Appellants, we conclude based on the evidence offered on the cross motions for summary judgment that the fence entered the roadway. Appellants submitted a declaration of Lloyd Lemons in which he avowed that [t]he newly constructed fence did not block Jeff Lake Road as it existed. Although Appellees assert the fence entered the roadway, they offered no affidavit in support of that contention, but relied instead on photographs from which no conclusions can be drawn. Because Appellants offered evidence that at the very least created a genuine issue of material fact 7 on this issue, the superior court erred in granting summary judgment. ¶13 See Andrews, 205 Ariz. at 240, ¶ 13, 69 P.3d at 11. Additionally, to the extent they assert Appellants violated A.R.S. § 13-2906 by blocking the easement (rather than, or in addition to, blocking Jeff Lake Road), Appellees provided no authority either in the superior court or on appeal for the proposition that the whole of an easement for ingress and egress constitutes a highway or other public thoroughfare within the meaning of the statute. When interpreting a statute, we first look to the statutory language with the goal of ascertaining and giving effect to the legislature s intent. Lincoln v. Holt, 215 Ariz. 21, 24, ¶ 7, 156 P.3d 438, 441 (App. 2007). and phrases their ordinary meanings unless legislature intended a different meaning. We give words it appears the State v. Wise, 137 Ariz. 468, 470 n.3, 671 P.2d 909, 911 n.3 (1983). When words are not defined in the statute and there is no indication the legislature intended an extraordinary meaning, we may turn to an established, widely respected dictionary. Id.; see also Lincoln, 215 Ariz. at 24, ¶ 7, 156 P.3d at 441. ¶14 The legislature has provided no definition for highway or public thoroughfare for purposes of A.R.S. § 132906 but defines public as affecting or likely to affect a substantial group of persons. 8 A.R.S. § 13-2901(2) (2001). The Random House Webster s Dictionary provides the following definitions: Highway: a main road, esp. one between towns or cities . . . ; any public road or waterway; any main or ordinary route, track, or course. Thoroughfare: a road, street, or the like, that leads at each end into another street; a major road or highway; a passage or way through: no thoroughfare. Random House Webster s Unabridged Dictionary 903, 1974 (Deluxe ed. 2004). ¶15 These definitions of highway and thoroughfare do not support the proposition that A.R.S. § 13-2906 applies to the portion of an easement for ingress and egress that is not a road or street. Certainly those portions of the easement existing beyond the boundaries of Jeff Lake Road do not constitute a main road, or a road, street, or the like. Similarly, even those portions of the easement beyond the road that travelers might drive upon to avoid rough patches when the road is muddy are not ordinary route[s], track[s], or course[s]. assuming Jeff Lake Road constitutes a highway Thus, even or public thoroughfare, we conclude the statute does not apply to those portions of the easement beyond the roadway. superior court erred in finding violated A.R.S. § 13-2906. 9 that As a result, the Appellants actions 2. A.R.S. § 48-3615. ¶16 Arizona Revised Statutes § 48-3615 designates engaging in any development or to divert, retard or obstruct the flow of waters in a watercourse if it creates a hazard to life or property without securing the written authorization required by § 48-3613 a class 2 misdemeanor. watercourse for purposes of The legislature has defined the statute to mean a lake, river, creek, stream, wash, arroyo, channel or other topographic feature on or over which waters flow at least periodically. Watercourse includes substantial flood specifically damage may designated occur. areas A.R.S. § in which 48-3601(12) (Supp. 2009). ¶17 A.R.S. The § superior 48-3615, court thereby found that committing Appellants negligence violated per se. Appellees contend the area of the easement on which Appellants dug the trench constitutes a topographic feature on or over which waters flow at least periodically and where substantial flood damage may occur. See A.R.S. §§ 48-3601(12), -3615. They support this argument with the superior court s finding that during heavy rains, runoff flows into a nearby wash. ¶18 Appellees, however, provide no authority for the proposition that the easement constitutes a watercourse to which A.R.S. § 48-3615 applies. First, the provision of § 48-3601 that includes as watercourses areas in which substantial flood 10 damage may occur applies only to areas specially designated as such. easement Appellees has been make no specially showing or designated suggestion as an that area the in which easement falls substantial flood damage may occur. ¶19 Furthermore, we disagree that the within the definition of a watercourse as a topographic feature on or over which waters flow at least periodically. §§ 48-3601(12), -3615. Though the phrase See A.R.S. topographical feature is somewhat ambiguous, Campbell Estates, Inc. v. Bates, 21 Ariz. App. 162, 517 P.2d 515 (1973), provides guidance. In determining the difference between surface waters and waters in a watercourse, the court in that case turned to a previous Arizona Supreme Court decision which stated, [T]he essential characteristics of a water course are a channel, consisting of well-defined bed and banks, and a current of water. And the best-reasoned cases go to the extent that without all these characteristics there can be no water course. Id. at 166, 517 P.2d at 519 (quoting Maricopa County Mun. Water Conservation Dist. No. 1 v. Sw. Cotton Co., 39 Ariz. 65, 85, 4 P.2d 369, 376 (1931)). ¶20 The superior court in this case found that when it rains, surface waters flow over the easement toward a wash, sometimes causing Jeff Lake Road to wash out. made no showing that the easement 11 contains Appellees have any feature exhibiting a characteristic bed, channel, of watercourse a banks or that any other Appellants retarded or obstructed by constructing the ditch. 48-3615. such diverted, See A.R.S. § Under Appellees theory, any area on which rain waters fall would constitute a watercourse for purposes of § 48-3615. Therefore, we conclude § 48-3615 does not apply to Appellants conduct and that, as a result, the court erred in finding Appellants negligent per se for violating the statute. D. Interference with the Easement. ¶21 Appellants argue that instead of deciding the parties cross-motions for summary judgment on the issue of negligence per se, the superior governing easements. court should have looked to the law Appellants contend that under those legal principles, their construction privileged, entitling claims against them. them to of the summary fence and judgment on ditch was Appellees Although we agree that the superior court erred in granting judgment in favor of Appellees on their claims alleging negligence per se, we cannot conclude the court should have entered summary judgment in Appellants favor under the law governing easements. ¶22 When considering whether a servient estate owner is entitled to burden an easement by erecting improvements, such as fences and examines gates, the terms [courts] of the have employed easement 12 and a test then, that first assuming the easement terms are not preclusive, balances the needs of the parties. Hunt v. Richardson, 216 Ariz. 114, 121, ¶ 21, 163 P.3d 1064, 1071 (App. 2007) (internal quotation omitted). As stated, the court first must look to whether the terms of the easement prohibit servient owner the is servient owner s prohibited from improvements; making the improvements inconsistent with the easement s terms, even if the improvements do not unreasonably interfere with use of the easement. Id. at 121, ¶ 22, 163 P.3d at 1071. ¶23 If the court finds that the easement s terms do not preclude construction of the improvement, the court next must balance the parties interests. 163 P.3d at 1071. Hunt, 216 Ariz. at 121, ¶ 23, The servient estate owner may make any use of the servient estate not barred by the easement s terms that does not unreasonably Id. At the interfere same time, with the enjoyment easement of the holder s easement. use of an ambiguous easement is constrained to that which is necessary or reasonable under the circumstances. Neal v. Brown, 219 Ariz. 14, 19, ¶ 19, 191 P.3d 1030, 1035 (App. 2008) (citing Squaw Peak Cmty. Covenant Church v. Anozira Dev., Inc., 149 Ariz. 409, 412, 719 P.2d 295, 298 (App. 1986)). Additionally, the easement holder s permissible uses of the easement include those which do not unreasonably interfere with the enjoyment of the servient estate and do not cause it unreasonable 13 damage. Paxson v. Glovitz, 203 Ariz. 63, 70, ¶ 36, 50 P.3d 420, 427 (App. 2002) (quoting Restatement (Third) of Property § 4.10 (2000)). What is reasonable becomes an issue of fact for the trier of fact to determine considering all relevant circumstances. Squaw Peak, 149 Ariz. at 412, 719 P.2d at 298. ¶24 We may affirm summary judgment on any ground supported by the record and the law. Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App. 1996). The record in this case, however, does not allow us to determine that there exists no genuine issue of material fact as to whether the easement s terms prohibit Appellants actions or whether Appellees use of the easement and Appellants actions were reasonable under the circumstances. CONCLUSION ¶25 For the foregoing reasons, we reverse the judgment entered in Appellees favor and remand for further proceedings consistent with this decision. Although Appellants request their attorney s fees on appeal, they cite no legal authority for their request, which we deny. Fid. Nat. Title Co. v. Town of Marana, 220 Ariz. 247, 251, ¶ 17, 204 P.3d 1096, 1100 (App. 2009). We grant Appellants their costs on appeal, contingent 14 upon their compliance with Arizona Rule of Civil Appellate Procedure 21. /s/_______________________________ DIANE M. JOHNSEN, Judge CONCURRING: /s/________________________________ PATRICIA A. OROZCO, Presiding Judge /s/________________________________ JON W. THOMPSON, Judge 15

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