Kingman Airport v. Hays

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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 KINGMAN AIRPORT AUTHORITY, INC., an Arizona corporation, Plaintiff/Appellee, v. CARL W. HAYS and JILL GERNETZKEHAYS, husband and wife, dba CARL W. HAYS ENTERPRISES; M-14P, INC., an Arizona corporation, Defendants/Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 07-15-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CV 08-0817 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Mohave County Cause No. CV 2007-0818 The Honorable James Chavez, Judge, Retired AFFIRMED Fennemore Craig P.C. By Andrew M. Federhar, Theresa Dwyer-Federhar, and Al Arpad Phoenix Bruno, Brooks & Goldberg, PC By Jeffery A. Goldberg Kingman Attorneys for Plaintiff/Appellee Osborn Maledon, P.A. By Thomas L. Hudson and Mark P. Hummels Attorneys for Defendants/Appellants Phoenix K E S S L E R, Judge ¶1 Carl Hays, Jill Gernetzke-Hays, and M-14P, Inc. (collectively Hays ) appeal from the superior court s grant of summary judgment and preliminary injunction in favor of Kingman Airport Authority, Inc. ( KAA ). We hold that the superior court correctly applied the unambiguous language creating Hays easement as a matter of law and affirm the superior court s entry of summary judgment. FACTUAL AND PROCEDURAL HISTORY ¶2 KAA filed suit against Hays in May 2007 seeking declaratory relief and to enjoin Hays from using KAA s airfield for commercial aeronautical purposes without entering licensing agreement and paying KAA s standard fees. the complaint, restraining KAA order filed ( TRO ) a Along with an application for a temporary and preliminary injunction. The superior court denied the TRO and ordered an evidentiary hearing on the preliminary injunction. Hays then filed counterclaims based on his claim to access to the airstrip, alleging three claims under contract and 42 United negligent States Code section misrepresentation 1983, and breach of requesting declaratory relief that he had unrestricted rights to access the 2 airstrip. The evidence at the preliminary injunction hearing showed that KAA required persons or entities conducting off-site commercial aeronautical operations ( through-the-fence ) to enter a licensing agreement to use the airfield and runway for commercial aeronautical aircraft per month. operations and pay fifty dollars per The superior court also found that Hays had used the runway four times in connection with work on customer aircraft, that Hays had been invoiced for two hundred dollars, and that Hays had refused to pay the invoice. ¶3 The evidence also included Article XIII, Section L of the conditions, covenants, and restrictions ( CC&Rs ) applicable to Hays property and all property within the industrial park abutting the airport in which Hays property is situated. The relevant section of the CC&Rs reads as follows: Certain roads or portions of roads within the Industrial Park are designated as aircraft easements and as such vehicular traffic is required to yield right of way when aircraft are present in the easement. The following roads are designated as aircraft easements: Flightline Drive from the south intersection of Olympic Way to the north intersection of Olympic Way; Finance Way from the intersection of Olympic Way to the intersection of Flightline Drive. Defendant Carl Hays testified that he believed this section of the CC&Rs memorializes his right to use of the runway. He also believed he had the right to use the airstrip for commercial aviation purposes because of his negotiations with Robert Riley, KAA s director of economic development. 3 Hays also presented evidence that aeronautical KAA use had of the consistently airstrip to allowed other commercial industrial park landowners without requiring a licensing agreement and fee, and that Hays knew about this practice and relied on it in deciding to purchase property at the industrial park for his business. ¶4 In closing, KAA argued that it could require the license agreement and fee arrangement because of its power to control access to the airfield, that it would suffer substantial harm if it did not receive an injunction, including the potential loss of FAA funding, and that protecting KAA s control over the airfield is safety of air travel. a public good because it improves the Hays argued that he possessed an easement whose scope included use of the airfield and that KAA would suffer little, if any, harm from its inability to collect fee revenue from Hays. The superior court granted a preliminary injunction prohibiting Hays from engaging in through-the-fence commercial aeronautical operations personally own first without of entering aircraft a they written do not licensing agreement with KAA. ¶5 for KAA filed a motion for summary judgment on its request declaratory relief relying in part on the findings at the preliminary injunction hearing. evidence and The separate statements of facts regarding the summary judgment motion reveal that each party rested its case on a competing interpretation of 4 two documents: 1) The CC&Rs incorporated into Hays deed; and 2) a resolution by the Mohave County Board of Supervisors setting aside certain roads as airport access roadways. resolution provided that certain roadway The latter right-of-ways are necessary to provide access to the airport facilities and to serve utilities to the incoming industries [in the Industrial Park] . It then provided a limited right-of-way on Flightline Drive, described as Airport Access Roads for the purpose of a public roadway right-of-way with uses normally attributed to a Dedication of purposes, and right-of-way clarifying airport facilities. for that public the road road was and a utility part of the KAA contended that these documents allow use of the roads to travel to and from the airport, but not unrestricted use of the runway to take-off and land aircraft. Hays argued that he had a right to gain access from [his] property along Flightline Drive and onto the airstrip. Hays supported his interpretation of the easement with an affidavit from Robert issued to purchase Riley nearby were stating that landowners intended to the intent several include an of decades implied several prior right to to deeds Hays gain access to the airstrip. ¶6 The superior court found that the documents did not give Hayes a property right to access the airfield through the fence for providing off-airfield aeronautical-related commercial 5 services to the public or to access the airfield through the fence for such purposes and granted summary judgment to KAA. The superior court first expressed its entry with no Rule 54(b) language. judgment in a minute The superior court later issued a second order holding that there was no just reason for delay and entered a Rule 54(b) final judgment in favor of KAA. The order incorporating received by Hays. new counsel the easement. with Hays the claim rearguing The reconsideration, 54(b) language was never Without knowledge of the Rule 54(b) judgment, associated reconsideration, Rule superior holding that court Hays filed a that Hays denied motion the easement had a valid motion rights for for permitted access to the airport gate but that Hays needed permission to pass through the gate. Hays also filed a motion for extension of time to appeal, citing lack of knowledge regarding the Rule 54(b) judgment as good cause to extend the time for filing a notice of pursuant Hays to filed appeal. Arizona a The Rule timely superior court of Appellate notice Civil of granted appeal. the motion Procedure This Court 9(a). has jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona 12-120.21(A)(1) (2003) and Revised Statutes ( A.R.S. ) 12-2101(B) (2003). 6 sections ANALYSIS ¶7 On erroneously appeal, entered Hays contends summary that judgment the superior against him court because it improperly found that his easement does not include a right of access to and from the runway and that the superior court abused its discretion by entering a preliminary injunction against him. KAA argues that Hays waived his argument concerning the scope of his easement by failing to adequately raise it below, that the scope of the easement does not include unrestricted access to the runway, and that the superior court was within its discretion to enter the preliminary injunction. We hold that Hays statement raised the easement issue in his separate of facts but that the superior court correctly concluded that the scope of Hays easement does not include access to the runway and other operations. abused because its we injunction. facilities at the airport for through-the-fence We decline to decide whether the superior court discretion lack by entering jurisdiction to a preliminary review the injunction preliminary Moreover, our resolution of the summary judgment moots the issue. I. The Easement Issue Was Not Waived ¶8 KAA contends that this Court should not consider Hays contention that an easement permits him access to the airfield including the airstrip because he did not raise the issue below. 7 Our review of the record reveals that the issue was thoroughly litigated below. Therefore, we will consider the issue on the merits. ¶9 Hays raised his claim to an easement in his separate statement of facts. When a nonmoving party denies a claim in a statement of facts in support of a summary judgment, the denial raises the issue for summary judgment purposes. State, 189 (holding Ariz. that 168, the 171, denial dispute the facts). of 939 P.2d specific 801, facts See Tobel v. 804 is (App. 1997) sufficient to KAA s statement of facts in support of summary judgment asserted that Hays deed does not grant him the right to unrestricted through-the-fence operations. Hays statement of facts objected to KAA s assertion regarding the deed and asserted that the property deed in the adjacent industrial part required him to use the property for aircraft restoration and warehousing so that a reasonable person purchasing the property would expect to be able to access the airfield without further restrictions. Hays also contended that since the easement on Flightline Drive was part of the airport facilities and he had an aircraft easement for taxiing on Flightline Drive, the easement must extend onto the airstrip. The separate statement of facts also attached and cited the two documents Hays relies on to show the scope of his easement. Moreover, at the oral argument Hays stated that the main issue 8 in the case was the scope of his easement. Hays sufficiently raised his easement argument to preserve it on appeal, therefore we will consider it on the merits. II. Hays Easement Does Not Include Runway Access ¶10 Hays granted claims summary that judgment the superior because his court erroneously easement allows him airstrip or runway access and the easement cannot end at the gate that blocks further airfield access. We disagree. The plain unambiguous language of the easement allows aircraft use of certain roadways. runways or other It does not allow Hays access to the airport facilities without a licensing agreement. ¶11 We review judgment de novo. the superior court s grant of summary Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App. 1996). Summary judgment is appropriate when the record reveals that there are no genuine issues of material fact. Ariz. R. Civ. P. 56(c)(1). We will affirm the superior court s grant of summary judgment for any basis apparent from the record. Logerquist, 188 Ariz. at 18, 932 P.2d at 283. The interpretation of an unambiguous easement is a question of law for the court to decide. Squaw Peak Cmty. Covenant Church of Phoenix v. Anozira Dev., Inc., 149 Ariz. 409, 412, 719 P.2d 295, 298 (App. 1986). which would be The superior court may consider only evidence admissible at trial, 9 and may not consider evidence which would violate the parol evidence rule. Mason v. Bulleri, 25 Ariz. App. 357, 359, 543 P.2d 478, 480 (1975). ¶12 The superior court properly granted summary judgment on the scope of Hays easement because the express unambiguous terms of the easement do not allow use of all airport facilities or the airstrip without the right of KAA to require a licensing agreement. When the language creating the easement is clear and unambiguous, its express terms govern the scope of the easement. Squaw Peak, 149 Ariz. at 412, 719 P.2d at 298. The language creating the easement is in the CC&Rs and a resolution of the Mohave County Board of Supervisors. The language creating the easement merely says that the road is an aircraft easement and that traffic on the road must yield to aircraft. The relevant resolution sets aside Flightline Drive as an airport access roadway . 1 The clear intent of these documents is to create a road enables that vehicles designated roadways. airport generally, and aircraft to travel on the It does not create a right to use the or use the airstrip, unrestricted right of KAA to require a licensing agreement. by the Therefore, we affirm the superior court s grant of summary judgment on the scope of Hays easement. 1 It is undisputed that Flightline Drive is actually on airport property. 10 ¶13 Hays contends that the language creating his easement is ambiguous on its face because his deed requires him to build an aircraft aircraft restoration easement without and warehousing runway access facility would create and a an mere bridge to nowhere that no rational real estate purchaser would accept. We disagree. The unambiguous language of the easement creates a right more like a bridge to a toll road than a bridge to nowhere. The right to access a portion of the airport on the roadway permits continue M-14P s operating on aircraft Hays restoration property; the fact business that to further airport access would be provided subject to a reasonable fee and a licensing agreement is not so unreasonable that no rational purchaser would accept it. 2 ¶14 Hays also contends that parol evidence of a contrary intent creates a genuine issue of material fact and precludes summary judgment. We hold that the easement rights created by the CC&Rs are not reasonably susceptible to the interpretation supported by Hays parol evidence. The parol evidence is therefore inadmissible and does not create a genuine issue of material fact precluding summary judgment. 2 In a motion filed in this Court, Hays contended that the only issue before the trial court was the extent of the easement and not Hays counterclaims. Hays correctly points out a proposed licensing agreement is not in the record, but ignores his stipulation with KAA and the trial court s acceptance thereof that if this Court affirms the judgment, Hays will stipulate to dismiss his counterclaims. 11 ¶15 The parol evidence rule applies to an easement created in CC&Rs because CC&Rs are primarily contractual in nature. See Powell v. Washburn, 211 Ariz. 553, 555, ¶ 8, 125 P.3d 373, 375 (2006); Restatement (Third) of Property (Servitudes) § 4.1 cmt.d (2009) (incorporating the parol evidence rule from the Restatement (Second) of Contracts when interpreting restrictive covenants). The parol evidence rule is particularly important when construing CC&Rs, because they run with the land and will eventually bind individuals who were not parties to the original agreement and do not know the circumstances of its creation. Id. ¶16 The parol evidence rule governs attempts to use extrinsic evidence to alter or vary the meaning of an express easement. Gulotta v. Triano, 125 Ariz. 144, 145, 608 P.2d 81, 82 (1980). court When a party offers parol evidence, the superior considers easement and reasonably the parol determines susceptible proffered parol evidence. evidence and the whether the to meaning the language the language easement of is supported by Taylor v. State Farm. Mut. Auto. Ins. Co., 175 Ariz. 148, 154, 854 P.2d 1134, 1140 (1993). determination is a the question of law. See In re This Estate of Lamparella, 210 Ariz. 246, 250, ¶ 21, 109 P.3d 959, 963 (App. 2005) ( Although parties from determination extrinsic of evidence 12 the may intent require of contracting fact finding, whether contract language is reasonably susceptible to more than one interpretation so that extrinsic evidence is even admissible is a question of law for the court. ); Hartford v. Indus. Comm'n, 178 Ariz. 106, 111, 870 P.2d 1202, 1207 (App. 1994) ( Whether a contract (citations omitted). is not reasonably is ambiguous is a question of law. ) If the judge determines that the contract susceptible extrinsic evidence, admissible and does then not to the view supported by the extrinsic evidence is a create preclude summary judgment. the issue fact genuine of not to Taylor, 175 Ariz. at 152, 154, 854 P.2d at 1138, 1140; Mason, 25 Ariz. App. at 359, 543 P.2d at 480. ¶17 The documents creating the easement are not reasonably susceptible to the view favored by the parol evidence. Resolution 1272, which created the easement on Flightline Drive, stated that Mohave County and the KAA were negotiating with industries for development of the industrial park and certain roadway right-of-ways are necessary to provide access to the airport facilities industries [to the and to serve Industrial utilities Park] . It to the then incoming provided a limited right-of-way on Flightline Drive, described as Airport Access Roads for the purpose of a public roadway right-of-way with uses normally attributed to a Dedication of right-of-way for public road and utility purposes, and clarifying that the 13 road was a part of the airport facilities. The CC&R s provided, in pertinent part, that Flightline Drive within the Industrial Park was designated as aircraft easements and as such vehicular traffic is required to yield right of way when aircraft are present in the easement. aircraft access on a At most, the documents merely permit road within the airport and give the aircraft the right of way on the road; they do not state that as part of the easement, an owner in the industrial park would have access to all airport facilities including the airstrip without further agreement by the KAA. Hays relies on evidence that including access to the runway in the scope of the easement comports with the purpose for which the easement was created, that KAA has regularly allowed unrestricted access to the runway, and that KAA represented that the easement existed when he purchased the property. This evidence all supports the contention that the scope of the easement includes access to the airport runway without further permission of the KAA. However, the language creating the easement is not reasonably susceptible to the view supported by this evidence, so it is inadmissible parol evidence. See Taylor, 175 Ariz. at 154, 854 P.2d at 1140. Because it was not admissible, it does not create a genuine issue of fact precluding summary judgment. App. at 359, 543 P.2d at 480. 14 See Mason, 25 Ariz. ¶18 The superior court correctly construed the unambiguous easement language as a matter of law. The language creates an easement over Flightline Drive, allowing aircraft access to and from a certain portion of the airport. It does not create a right to use all the airport facilities, including the airstrip, without further agreement of the KAA. We affirm the superior court s entry of summary judgment based on the unambiguous terms of the easement. ¶19 Hays injunction. also appeals However, we the lack entry of jurisdiction the to preliminary consider the preliminary injunction because Hays did not timely file a notice of appeal. An order granting a preliminary appealable pursuant to A.R.S. § 12-2101(F)(2). injunction is A party must file a notice of appeal within thirty days of the appealable order. Hays Arizona Rule of Civil Appellate Procedure 9(a). failed to file jurisdiction to review a timely the notice preliminary of appeal, injunction. Because we lack Further, because our decision to affirm the summary judgment moots the appeal from the preliminary injunction, we need not address it. See Brethauer v. Gen. Motors Corp., 221 Ariz. 192, 201, ¶ 33, 211 P.3d 1176, 1185 (App. 2009). III. KAA Is Not Entitled To Attorneys Fees On Appeal ¶20 KAA request attorneys fees pursuant to A.R.S. § 12- 341.01(A) (2003) and costs pursuant to A.R.S. § 12-341 (2003). 15 In our exercise of discretion, we decline to award attorneys fees to KAA. KAA is entitled to costs on appeal pursuant to A.R.S. §§ 12-341, -342 (2003) upon compliance with Arizona Rule of Civil Appellate Procedure 21(a). CONCLUSION ¶21 For the foregoing reasons we affirm court s grant of summary judgment in favor of KAA. /s/ DONN KESSLER, Judge CONCURRING: /s/ PHILIP HALL, Presiding Judge /s/ PATRICIA A. OROZCO, Judge 16 the superior

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