Richardson v. Transitional

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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 PHILLIP L. RICHARDSON and JULIA D. RICHARDSON, husband and wife, ) ) ) Defendants/Third-Party ) Plaintiffs/Appellants, ) ) v. ) ) ) TRANSITIONAL LIVING CORPORATION, ) an Arizona Corporation, ) ) ) Third-Party Defendants/ ) Appellees. ) __________________________________) DIVISION ONE FILED: 11/04/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL No. 1 CA-CV 09-0700 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2004-070155 The Honorable Edward O. Burke, Judge AFFIRMED Combs Law Group PC Phoenix By Christopher A. Combs, Christopher J. Charles and Adam D. Martinez Attorneys for Defendants/Third-Party Plaintiffs/Appellants Keller & Hickey PC By Craig L. Keller and Daryl R. Wilson Attorneys for Third-Party Defendants/Appellees B R O W N, Judge Tempe ¶1 appeal Phillip the and trial Transitional Julia court s Living Richardson order Corporation (the granting ( TLC ). 1 Richardsons ) attorneys For the fees to following reasons, we affirm. BACKGROUND ¶2 In 2000, the Simpson Cattle Company ( Simpson Cattle ) owned five adjoining parcels of land. Thomas and Sherry Hunt (the parcels Hunts ) Richardsons acquired acquired a one of the different parcel in in 2001, the and TLC 2002, subsequently acquired the three remaining parcels. conveyance of these properties, Simpson Cattle Prior to recorded an easement to provide access and utilities to the five parcels. In March 2004, Larry and Sharon Simpson (the Simpsons ), who operated Simpson Cattle, filed suit to compel the removal of a fence and gate obstructions easement. the Richardsons interfered with the had use installed, and alleging enjoyment of the the The Hunts intervened as plaintiffs and obtained a temporary restraining order enjoining the Richardsons from using their gate. In addressing subsequent cross-motions for summary judgment, the trial court determined that the easement was valid 1 On the court s own motion, it is hereby ordered amending the caption for this appeal as reflected in this decision. The above referenced caption shall be used on all documents filed in this appeal. 2 and that material issues of fact existed as to whether the gate and fence installed by the Richardsons was permissible. ¶3 In October 2005, the Richardsons filed a counterclaim and third-party complaint against the Hunts and the Simpsons and included TLC as included claims a third-party of reformation of third-party complaint all parties an fraud, easement sought responsible, defendant. negligent deed a The misrepresentation, against the declaratory pro-rata, counterclaim Simpsons. judgment for and The declaring maintaining the [e]asement and liable, pro-rata, for any failure to maintain the [e]asement. the Richardsons The third-party complaint also alleged that act of chip-sealing the easement was an improvement that benefitted all parties and the public at large. ¶4 In January 2006, the Richardsons again sought summary judgment on the validity common law dedication. of the easement, alleging a failed Alternatively, the Richardsons sought judgment against all parties on the issues of pro-rata liability for and maintenance of the easement and the lack prevailing party s entitlement to attorneys fees. of any The trial court denied the motion, confirming the validity of the easement and finding no justiciable controversy that would permit the court to enter a declaratory judgment regarding liability and maintenance of the easement. The court further determined the Hunts were entitled to judgment as a matter of law on the claim 3 the Richardsons gate and fence unreasonably interfered with the Hunts right to use the easement. attorneys fees were recoverable The court also found that pursuant to Arizona Statutes ( A.R.S. ) section 12-341.01 (2003). 2 Revised On appeal, we affirmed the trial court s rulings that the easement is valid and the Richardsons fence unreasonably interfered with its use. Hunt v. Richardson, 216 Ariz. 114, 126, ¶ 42, 163 P.3d 1064, 1076 (App. 2007). We also concluded, however, that issues of fact precluded summary judgment relating to whether the gate constituted an unreasonable interference rights of the other property owners. at 1075. for with the easement Id. at 125, ¶ 35, 163 P.3d We further determined that the Richardsons request a declaratory concerning the judgment parties presented responsibility a justiciable for claim maintaining the easement but that whether the parties share responsibility for any future justiciable. ¶5 injuries incurred on the easement is non- Id. at 126, ¶ 41, 163 P.3d at 1076. 3 In April 2009, the unreasonable interference claim was tried to an advisory jury, which found that the gate was not necessary for the Richardsons use of their property. The trial 2 We cite the current version of the applicable statutes when no revisions material to this decision have since occurred. 3 In January 2007, TLC conveyed its interest in the three lots to the Simpsons. 4 court ordered the Richardsons to remove all structures from the easement and enjoined them from taking any other actions that would interfere with its use. On the Richardsons declaratory judgment claim, the court ordered that TLC, having conveyed its interest in the parcels 3, 4 & 5 back to the Simpsons in January of 2007, ha[s] no current or future obligation to maintain the easement. The court determined that the Simpsons, Hunts, and Richardsons were maintain and responsible repair the for easement the but legal that obligation to Simpsons and the Hunts had no obligation to reimburse the Richardsons for the costs of chip-sealing the easement. ¶6 All parties requested attorneys fees pursuant to A.R.S. § 12-341.01. The trial court denied the Richardsons application, that finding [t]he fact that the Richardsons [sic] were successful on one of their requests for a declaratory judgment does not attorneys fees. compel the court to award them their Instead, the court awarded attorneys fees to the Hunts, Simpsons, and TLC as the prevailing parties. 4 The Richardsons the unsuccessfully moved for reconsideration of award of fees to TLC and this timely appeal followed. 4 The amounts awarded were as follows: $29,000 Simpsons, $62,000 to the Hunts, and $23,000 to TLC. requested an award of fees in excess of $46,000. 5 to the TLC had DISCUSSION ¶7 We review the trial court s award of attorneys fees for abuse of discretion. Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, ¶ 17, 141 P.3d 824, 830 (App. 2006). Under A.R.S. § 12-341.01, the prevailing party in any contested action arising out of a contract, expressed or implied, may be awarded reasonable attorneys fees. Whether a party has prevailed in litigation for the purposes of awarding attorneys fees is primarily within the discretion of the trial court, and the court s decision will not be reversed on appeal if there is any reasonable basis for it. Sanborn v. Brooker & Wake Prop. Mgmt., Inc., 178 Ariz. 425, 430, 874 P.2d 982, 987 (App. 1994). Additionally, claims, the in multiple trial court successful party. party has the cases with discretion various to competing determine the Schwartz v. Farmers Ins. Co. of Ariz., 166 Ariz. 33, 38, 800 P.2d 20, 25 (App. 1990). In doing so, a court may apply a percentage of success factor, Pioneer Roofing Co. v. Mardian Constr. Co., 152 Ariz. 455, 467, 733 P.2d 652, 664 (App. 1986), or a totality of the litigation test. Nataros v. Fine Arts Gallery, 126 Ariz. 44, 49, 612 P.2d 500, 505 (App. 1980). ¶8 The Richardsons argue the trial court erred in applying the totality of the litigation test because there was only one claim at issue regarding easement maintenance and they 6 prevailed on that claim. The Richardsons further contend that the court mistakenly grouped TLC in with the Hunts and the Simpsons . . . even counterdefendant. ¶9 though TLC was neither a plaintiff or We disagree. We note at the outset that the Richardsons did not provide us with a transcript of the jury trial, yet they argue the main thrust of the Richardsons declaratory judgment claim was still at issue at trial, and in fact . . . it was the only issue at trial as to TLC. verify the scope of the Without a transcript, we cannot issues raised at trial nor can we evaluate what evidence the Richardsons presented in support of their claim or what TLC presented in defense of its position. Thus, we must presume that issues and evidence presented to the jury support the trial court s finding prevailing party in this litigation. that TLC was the See Johnson v. Elson, 192 Ariz. 486, 489, ¶ 11, 967 P.2d 1022, 1025 (App. 1998) (finding that when no transcript is provided on appeal, the reviewing court assumes that the record supports the trial court s decision ). ¶10 Moreover, the record before court s decision to award fees to TLC. us supports the trial The court evaluated the parties requests for attorneys fees based on the totality of the litigation. the court In denying the Richardsons request for fees, reasoned that simply 7 prevailing on one of their requests for a declaratory judgment does not compel the court to award them fees. The court explained that the crux of the litigation was whether the Richardsons had the right to use any kind of gate on the easement, not the maintenance issue. The court then found that the Hunts, Simpsons, and TLC were the successful parties. Although the court gave no separate reasons to explain why it considered TLC a prevailing party, the court was not required to do so. See Horton v. Mitchell, 200 Ariz. 523, 526, ¶ 13, 29 P.3d 870, 873 (App. 2001) (recognizing that when there is no request for findings of fact, the reviewing court assumes that the trial court found every fact necessary to reasonable support its construction [ruling] of the and must evidence affirm if justifies any the decision ). ¶11 lost Contrary in conclusion the that to the Richardsons trial court, the TLC prevailed in assertions record supports this litigation. that the TLC court s In their third-party complaint, the Richardsons sought to hold the Hunts, the Simpsons, and TLC responsible for past maintenance expenses, 5 5 Although the request for easement maintenance against TLC in the third-party complaint was somewhat ambiguous, the Richardsons later clarified the relief requested. Less than two months before trial, counsel for the Richardsons stated in a letter, [a]nd to be clear, the Richardsons are also seeking damages from TLC for past maintenance of the easement. TLC subsequently filed a motion in limine to exclude testimony regarding past easement expenses on the basis that the 8 future maintenance sealing the expenses, easement. As and expenses their claim incurred related to in chip- TLC, the Richardsons did not prevail because the court excluded evidence supporting their claim for past maintenance expenses and expressly found that TLC had no current or future obligation to maintain the easement. Moreover, the court found that the Richardsons were not entitled to reimbursement for the chipsealing. Thus, the Richardsons did not succeed against TLC in obtaining an order requiring payment of easement expenses nor did it obtain whatsoever. an order requiring TLC to take any action In sum, the Richardsons obtained no relief against TLC. ¶12 Notwithstanding the court s ruling, the Richardsons suggest that they did prevail against TLC in the sense that the court s judgment finding the lot owners responsible for maintenance was retroactively applicable to TLC prior to January 2007, when the three lots were transferred to new ownership. Even if that is legally correct, it is meaningless here because TLC was not ordered to pay any money to the Richardsons nor was there any court determination that TLC acted improperly or was otherwise liable for its conduct in relation to the easement. Richardsons failed to properly disclose documentation of past expenses incurred. The court granted TLC s motion, thus disposing of the Richardsons claim for past easement expenses. 9 Therefore, the Richardsons obtained no relief against TLC as TLC is neither liable nor responsible for easement maintenance. ¶13 Alternatively, the Richardsons contend that even if they were not the prevailing party, then TLC did not prevail either because TLC had no claims. A party does not have to assert a claim, however, to be considered the prevailing party. See Schwartz, 166 Ariz. at 38, 800 P.2d at 25. In Schwartz, the plaintiffs vehicle was destroyed in an accident. 800 P.2d at 21. Id. at 34, Farmers Insurance Company ( Farmers ), which had issued an insurance policy covering the vehicle, offered to pay $11,000 but the plaintiffs desired $14,000. Id. Unable to reach an agreement, the plaintiffs filed a complaint against Farmers alleging breach of contract and bad faith along with a claim for punitive damages. Id. A jury found in favor of plaintiffs on their breach of contract claim and awarded them $12,000 as the actual cash value of the vehicle, but found in favor of Farmers on the bad faith claim. Both parties requested fees pursuant to A.R.S. § 12-341.01(A). Id. considering the totality of the litigation, The trial court, determined that Farmers was the successful party and awarded it $20,000 in fees. Id. On appeal, we recognized the discretion of the trial court in cases involving multiple parties and multiple claims, noting that A.R.S. § 12-341.01[(A)] is remedial in nature and such relief is equally available to those who successfully defend an 10 action as to those who successfully seek affirmative relief. Id. at 38, 800 P.2d at 25. We then concluded that in light of Farmers' successful defense of the bad faith claim, the court did not abuse its discretion in awarding Farmers a portion of its fees under A.R.S. § 12-341.01(A). ¶14 Id. Applying the totality of the litigation test to the third-party complaint filed in this case, the Richardsons brought TLC into the litigation, forcing it to take a position regarding the claims asserted in the third-party complaint. At the conclusion of the trial court proceedings, the Richardsons failed to gain any of the relief sought against TLC. Thus, on this record, we cannot conclude the court abused its discretion in finding TLC was a prevailing party and therefore entitled to an award of attorneys fees. ¶15 Both parties seek an award of attorneys fees on the instant appeal pursuant to A.R.S. § 12-341.01. As TLC is the prevailing party on appeal, in the exercise of our discretion, we award attorneys fees to TLC upon its compliance with Arizona Rule of Civil Appellate Procedure 21. 11 CONCLUSION ¶16 For the foregoing reasons, we affirm the trial court s order awarding attorneys fees to TLC. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ __________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ __________________________________ JOHN C. GEMMILL, Judge 12

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