Knowlton v. Replogle
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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
RANDALL K. KNOWLTON and LINDA J.
KNOWLTON, husband and wife,
Plaintiffs/Counterdefendants/
Appellees,
v.
STEPHEN P. REPLOGLE,
Defendant/Counterclaimaint/
Appellant.
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1 CA-CV 10-0640
DIVISION ONE
FILED: 09/29/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
DEPARTMENT A
MEMORANDUM DECISION
Not for Publication –
(Rule 28, Arizona Rules
of Civil Appellate Procedure)
Appeal from the Superior Court in Yuma County
Cause No. S1400CV200600846
The Honorable John Paul Plante, Judge
AFFIRMED
DON B. ENGLER, P.C.
By Don B. Engler
Attorney for Plaintiffs/Counterdefendants/Appellees
Yuma
WILLIAM S. DIECKHOFF, ESQ.
By William S. Dieckhoff
Attorney for Defendant/Counterclaimant/Appellant
Yuma
B A R K E R, Judge
¶1
Defendant/Counterclaimant
Stephen
Replogle
appeals
from the trial court’s judgment for Plaintiffs Randall Knowlton
and Linda Knowlton following a bench trial.
voided
a
contract
Replogle’s
by
property
the
to
parties
the
conveying
Knowltons
in
The trial court
an
easement
exchange
for
over
the
Knowltons’ surrender of all other legal rights to Replogle’s
property.
For the reasons set forth below, we affirm.
Facts and Procedural History
¶2
The
Knowltons
and
Replogle
own
adjacent
properties.
Replogle’s property is to the east of the Knowlton’s property.
To the east of Replogle’s property is another parcel, and to the
east of that parcel is Shannon Way, a county roadway.
¶3
A
Knowlton
and
canal
runs
Replogle
along
the
parcels.
northern
About
portion
half-way
of
the
across
the
Replogle parcel, the canal turns forty-five degrees north, and
it continues at that angle until it is no longer inside of the
Replogle property line.
The canal then turns back forty-five
degrees and continues east.
¶4
Directly south of the canal prior to its northward
turn is a road, which the parties have termed the “Canal Road.”
This road is usable and provides access to Shannon Way.
The
Canal Road is part of a United States Bureau of Reclamation
right-of-way established in 1960, and it is also part of the
Replogle parcel.
South of the Canal Road on the western part of
2
the
Replogle
parcel
is
another
termed the “Inside Road.”
and the Inside Road.
road,
which
the
parties
have
A fence runs between the Canal Road
The Knowltons and the previous owners of
the Knowlton parcel had historically (for at least the past ten
years) used the Inside Road rather than the Canal Road to travel
to Shannon Way.
¶5
In 2004, the Knowltons and Replogle installed a gate
on the Inside Road to limit outside traffic.
At some point
after the gate was installed, Replogle stopped the Knowltons
from
using
the
Inside
Road.
The
Knowltons
demanded
that
Replogle grant or confirm an easement over the Inside Road to
them.
¶6
The
Knowltons
had
an
existing
Replogle property contained in a 1973 deed.
easement
over
the
This deed conveyed
an easement over the north twenty feet of the Replogle parcel.
After various communications between the parties, they executed
a deed in 2006.
The deed allegedly described an easement using
similar language to the 1973 deed, and it granted an easement
over the north twenty feet of the Replogle parcel in exchange
for the Knowltons’ surrender of all other legal rights to the
Replogle parcel.
¶7
Knowltons
Prior to execution of the deed, Replogle warned the
that
the
legal
description
may
not
be
correct
and
requested an extension of time to obtain a survey and clarify
3
the legal description.
The Knowltons denied the request.
The
trial court found that the Knowltons’ refusal to obtain a survey
“greatly increased the cost and complexity of this litigation.”
According
boundary
to
a
of
later
the
survey
Canal
Road
of
on
the
the
property,
western
the
portion
southern
of
the
Replogle parcel was approximately 37.5 feet from the northern
boundary of the property.
The southern boundary of the Inside
Road was approximately 52.5 feet from the northern boundary of
the property.
¶8
reflect
The
an
property
Knowltons
easement
as
requested
measured
over
from
Reclamation’s right-of-way.
easement
over
the
the
Inside
reformation
northern
the
of
twenty
United
the
deed
to
feet
of
the
Bureau
of
States
This would grant the Knowltons an
Road.
Replogle
requested
that
the
easement be reformed to conform to the area encompassing the
Canal Road.
The Knowltons filed this lawsuit, and the court
issued a preliminary judgment against Replogle mandating that he
keep the Inside Road open to the Knowltons.
¶9
Following a bench trial, the trial court voided the
2006 deed.
The court found that the Knowltons had intended to
contract for an easement over the Inside Road while Replogle had
intended to grant an easement over the Canal Road.
Therefore,
the court reasoned, reformation of the deed was not appropriate
4
because the parties never had a “meeting of the minds” as to the
easement granted.
¶10
Next,
the
court
found
that
the
Knowltons
prescriptive easement over the Inside Road.
had
a
The court found
that the Knowltons’ and their predecessors’ use of the Inside
Road was “open, notorious, continuous, and for far more than 10
years.”
The court granted the Knowltons an easement over the
northern
fifteen
government
parcel.
veered
feet
right-of-way
of
on
the
property
the
western
as
measured
side
of
from
the
the
Replogle
On the eastern portion of the parcel, where the canal
north,
the
court
granted
described in the original 1973 deed.
the
twenty-foot
easement
The court also awarded the
Knowltons attorneys’ fees.
Replogle timely appealed.
We have
jurisdiction
Revised
section
under
Arizona
Statute
(“A.R.S.”)
12-2101(B) (2003).
Discussion
1.
Whether the Trial Court Erred in Voiding the 2006 Deed for
Lack of Mutual Assent 1
1
Replogle states that the issue of mutual assent was
never argued by either party in the trial court proceedings. An
issue not raised in the pleadings may be tried by implied
consent if the record shows the defendant was aware of the issue
and did not object when the court considered it. Hill v. Chubb
Life Am. Ins. Co., 182 Ariz. 158, 161, 894 P.2d 701, 704 (1995).
Here, the record reveals that the trial court raised the issue
of mutual assent:
THE COURT: The only other matter that I just
want to raise with counsel is that there is
the legal issue of what happens if the court
5
¶11
Replogle argues that the trial court erred when it
ruled that the parties did not have a “meeting of the minds”
when they signed the 2006 deed conveying an easement over the
northern twenty feet of the Replogle property.
argues
separately
that
the
trial
court
Replogle also
erred
equitable relief in voiding the 2006 deed.
in
granting
Because we view
these two issues as having considerable overlap, we resolve both
in the following discussion of whether the trial court erred in
voiding the deed on “meeting of the minds” grounds.
¶12
We view the issue of whether the trial court erred in
finding that the parties did not have a “meeting of the minds”
(commonly referred to as “mutual assent,” Restatement (Second)
of Contracts § 17 cmt. c (1981)) at contract formation to hinge
on
whether
the
court
properly
classified
the
parties’
miscommunication as lack of mutual assent rather than as mutual
finds
that
the
parties
had
completely
different
–
different
ideas
when
they
exchanged
these
deeds,
that
one
party
thought one thing, the other party thought
another.
[Plaintiffs’ counsel] has raised
the possibility that the court just simply
reforms it to means something, but it also
has been raised the possibility that maybe
it means that nothing happens, and I’m not
sure what the answer to that is.
I just
want counsel to think about that . . . .
It was therefore proper for the trial court to consider this
issue.
6
or unilateral mistake.
contract
formation,
Mutual assent is an essential element of
and
lack
of
mutual
assent
will
void
a
contract unless one of the parties knows or has reason to know
of
the
misunderstanding.
§§ 17, 20.
Restatement
(Second)
of
Contracts
If the Knowltons’ mistake here is classified as lack
of mutual assent, and if their misunderstanding of the deed was
objectively reasonable, then the trial court properly voided the
deed.
¶13
If the misunderstanding of the parties is classified
as a mutual or unilateral mistake, however, the applicable law
is
different.
§ 154, “A
party
Under
the
Restatement
bears
the
risk
of
a
(Second)
mistake
of
Contracts
when . . . [the
party] is aware, at the time the contract is made, that he has
only limited knowledge with respect to the facts to which the
mistake relates but treats his limited knowledge as sufficient.”
Arguably, under this scenario, the Knowltons bore the risk of
their error in assessing their easement boundaries when they
refused to obtain a survey.
If the Knowltons’ misunderstanding
was a post-formation “mistake,” then it is possible that the
deed was not properly voided.
¶14
find
Although not cited by either party in this appeal, we
the
case
of
Hill-Shafer
Partnership
v.
Chilson
Family
Trust, 165 Ariz. 469, 799 P.2d 810 (1990), to be controlling.
Hill-Shafer
involved
an
almost
7
identical
fact-pattern
to
the
case at hand.
There, the seller conveyed a parcel of land to
the buyer using a legal description that inadvertently conveyed
more land than what the seller intended to sell.
799 P.2d at 812-13.
insisted
that
the
Id. at 471-72,
The seller refused to obtain a survey and
land
be
indentified
solely
by
the
description contained in the seller’s counter-offer.
471, 799 P.2d at 812.
legal
Id. at
When the seller discovered his error, he
requested an amendment to correct the legal description.
472, 799 P.2d at 813.
Id. at
The buyer refused and claimed it was
entitled to the property included in the plain language of the
legal description.
¶15
Id. at 472, 799 P.2d at 813.
The trial court rescinded the contract for lack of
mutual assent.
Id. at 472, 799 P.2d at 813.
We reversed,
holding that because the legal description in the contract was
not vague or ambiguous, no misunderstanding of it could void a
contract for lack of mutual assent.
813.
We then remanded the case for further proceedings based on
the theory of mutual mistake.
supreme
court
Id. at 472, 799 P.2d at
court
reversed
properly
voided
assent.
¶16
the
decision,
contract
holding
based
on
Our
that
the
trial
lack
of
mutual
Id. at 472, 799 P.2d at 813.
The
classifying
mistake”
our
Id. at 472, 799 P.2d at 813.
a
Hill-Shafer
court
misunderstanding
described
as
as follows:
8
“mutual
the
dilemma
assent”
or
between
“mutual
Generally, if a seller intends to sell and a
buyer intends to buy land other than that
described in a deed, a case of mutual
mistake is presented.
A mutual mistake
exists where there has been a meeting of the
minds of the parties, and an agreement is
actually entered into, but the agreement in
its written form does not express what was
really intended by the parties.
. . . .
[But] [b]ecause we view the evidence in the
light most favorable to buyer, we accept its
contention that it intended to purchase
whatever
the
legal
description
identified . . . . Because seller did not
have a similar intent and did not intend to
convey whatever was included in the legal
description, this case does not present a
problem of mutual mistake but, rather, a
problem of lack of mutual assent.
. . . .
If one party thinks he is buying one thing
and the other party thinks he is selling
another thing, no meeting of the minds
occurs, and no contract is formed.
Id. at 473, 799 P.2d at 814 (citations omitted).
In response to
the court of appeals’ holding that the contract could not be
voided for lack of mutual assent because it was not ambiguous,
our supreme court reasoned that ambiguity “is only one situation
in which a court can find a lack of mutual assent.”
799
P.2d
at
815.
misunderstandings
The
of
the
court
then
parties
held:
are
“As
Id. at 474,
long
reasonable
as
the
under
the
specific circumstances of the case, a court may properly find a
lack of mutual assent.”
Id. at 475, 799 P.2d at 816.
9
¶17
Here, the trial court found that the Knowltons’ intent
was to obtain an easement over the Inside Road and Replogle’s
intent was to grant an easement over the Canal Road.
“[T]he
intent of the parties is a question of fact left to the fact
finder.”
Chopin v. Chopin, 224 Ariz. 425, 428, ¶ 7, 232 P.3d
99, 102 (App. 2010).
We are bound by the factual findings of
the trial court following a bench trial as long as they are not
clearly erroneous.
Sabino Town & Country Estates Ass'n v. Carr,
186 Ariz. 146, 149, 920 P.2d 26, 29 (App. 1996).
We view the
evidence in the light most favorable to upholding the judgment,
and we affirm if any evidence supports it.
Id. at 149, 920 P.2d
at 26.
¶18
Although
the
northern
twenty
feet
of
the
Replogle
parcel did not encompass the Inside Road, or even the entirety
of the Canal Road, the northern part of the property was also
subject to a government right-of-way.
The trial court could
reasonably have found that this constituted objective evidence 2
that
the
Knowltons
believed
they
were
contracting
for
the
northern twenty feet of the Replogle parcel as measured from the
southern
boundary
of
the
right-of-way.
Thus,
they
could
reasonably believe that they were contracting for the Inside
2
Evidence of lack of mutual assent must be “based on
objective evidence, not the hidden intent of the parties.”
Hartford v. Indus. Comm’n, 178 Ariz. 106, 112, 870 P.2d 1202,
1208 (App. 1994).
10
Road.
been
Mr. Knowlton’s testimony that “the [Inside] road’s always
there”
purpose
of
would
the
also
contract
support
was
a
to
reasonable
convey
an
belief
that
the
easement
over
the
Inside Road.
¶19
As to Replogle’s intent, the Knowltons also testified
that they had initially believed that the Replogle property line
ran through the middle of the canal. 3
The trial court could have
inferred that Replogle also believed that his property line was
located
in
the
middle
of
the
canal.
Therefore,
Replogle’s
belief that the twenty-foot easement would be measured from this
line, thus encompassing the Canal Road, would be reasonable as
well.
Based on this evidence, the trial court could properly
find that the “misunderstandings of the parties are reasonable
under the specific circumstances of the case,” and that the deed
was properly voided for lack of mutual assent.
See Hill-Shafer,
165 Ariz. at 475, 799 P.2d at 816.
¶20
Replogle argues that the equitable relief of voiding
the contract was improper because the Knowltons refused to share
in the cost of a proper survey of the area. 4
As stated above,
3
The property line is, in fact, north of the canal on
the western portion of the parcel.
It does not appear that
either party was aware of this fact during contract formation.
4
Replogle also argues that use of the easement will
damage his driveway and irrigation berms and that the Knowltons
will open the Inside Road to public use.
Replogle, however,
does not cite to any evidence that the Knowltons have actually
11
under Hill-Shafer, equitable relief is appropriate in such an
instance.
The trial court, however, found that “[t]here are
substantial
added.)
equities
in
favor
of
both
parties.”
(Emphasis
The Knowltons and their predecessors have continuously
used the Inside Road throughout their ownership of their parcel
to travel to the nearby county roadway.
Thus, the balance of
equities does not indisputably favor Replogle.
We do not find
error in the trial court’s remedy.
2.
¶21
Whether the Trial Court Erred in Granting the Knowltons a
Prescriptive Easement over the Inside Road
Replogle next argues that the trial court erred in
granting a prescriptive easement over the Inside Road due to
insufficient
evidence
proving
easement by prescription.
the
required
elements
of
an
A grant of a prescriptive easement
requires: (1) that the land in question has actually and visibly
been used for a specific purpose, (2) for ten years, and (3)
that the use was non-permissive, meaning it began and continued
under a claim of right that was inconsistent with and hostile to
the claim of the true owner.
Ammer v. Ariz. Water Co., 169
Ariz. 205, 208, 818 P.2d 190, 193 (App. 1991); see also A.R.S.
caused any damage or opened the road to the public.
He only
expresses concern that such problems will manifest in the
future.
If the Knowltons at some point in the future cause
damage to Replogle’s property, these claims are properly brought
in a separate suit against the Knowltons, should such damage
occur.
12
§§ 12-521(A), -526(A).
Replogle does not contest the first two
elements, but argues only that no evidence was presented that
the use was non-permissive.
¶22
Replogle’s argument, however, misstates the burden of
proof.
the
Under Arizona law, “when a person uses an easement over
land
of
unmolested
another
manner,
in
there
an
is
open,
a
visible,
presumption
continuous
that
the
use
and
is
hostile to the title of the owner of the land, and under a claim
of right, as opposed to the use being permissive.”
Harambasic
v. Owens, 186 Ariz. 159, 160, 920 P.2d 39, 40 (App. 1996).
It
was therefore Replogle’s burden to prove that the use was with
permission.
¶23
Although Replogle did present some evidence that the
Knowlton’s use was permissive after he installed a gate over the
road, the Knowltons and their predecessors had used the road
openly without asking permission for at least ten years prior
from
1992
through
2005.
Such
a
situation
establish a prescriptive easement.
is
sufficient
to
See id. (affirming trial
court’s grant of a prescriptive easement when the easement had
been used for greater than ten years without incident prior to
the landowner erecting fences and blocking the easement with his
truck for the years leading up to the lawsuit).
reasons,
Replogle’s
argument
that
the
For the same
Knowltons’
use
of
Replogle’s gate and key to access the Inside Road barred their
13
claim that the use was not permissive under waiver, estoppel,
and laches also fails.
¶24
Replogle
easement
were
also
argues
unsupported
by
that
the
the
dimensions
evidence
because
of
the
(1)
the
easement included the fence line between the Canal Road and the
Inside Road which is not necessary to use the easement, (2) the
easement widened to twenty feet on the eastern portion of the
parcel from fifteen feet on the western portion, and (3) the
fifteen-foot width was wider than necessary to support one car
being driven across the easement.
assessment
that
access
to
the
We defer to the trial court’s
fence
line
and
access
to
the
fifteen-foot width were necessary for the practical use of the
easement.
As to the widening of the easement on the eastern
portion of the parcel, the trial court found that the twentyfoot width on that side corresponded with the original twentyfoot
grant
parties.
in
the
1973
deed,
which
was
undisputed
by
the
We therefore affirm the dimensions of the easement as
stated by the trial court.
3.
Whether the Trial Court Erred in Awarding Attorneys’ Fees
¶25
Finally, Replogle argues that the trial court erred in
awarding
the
1103(B).
In an action to quiet title, the trial court may award
fees
under
Knowltons
§ 12-1103(B)
attorneys’
when
the
fees
party
under
A.R.S.
seeking
relief
§ 12-
has
tendered a deed and nominal fee to the adverse party in an
14
effort to resolve the dispute before seeking judicial relief.
An award of fees under § 12-1103(B) is left to the discretion of
the trial court, and we will not disturb it absent an abuse of
that discretion.
See Jones v. Burk, 164 Ariz. 595, 598, 795
P.2d 238, 241 (App. 1990).
Under the circumstances of this case
as cited by Replogle, the trial court would have been within its
discretion to decline an award of fees.
argue
that
the
Knowltons
did
not
But Replogle does not
comply
with
the
statutory
requirements of § 12-1103(B), and the Knowltons were ultimately
successful in their action.
an abuse of discretion.
“the
court
costs,
an
plaintiff
may
allow
attorney's
complies
Therefore, Replogle has not shown
See A.R.S. § 12-1103(B) (stating that
plaintiff,
in
fee
fixed
with
to
the
be
addition
statutory
added).
15
by
to
the
the
ordinary
court”
requirements)
if
the
(emphasis
Conclusion
¶26
For the reasons set forth above, the trial court’s
ruling and award of attorneys’ fees are affirmed.
On appeal,
the Knowltons request their reasonable attorneys’ fees and costs
under A.R.S. § 12-1103(B).
award
attorneys’
fees.
The
In our discretion, we decline to
Knowltons
are
entitled
to
their
costs.
/s/
____________________________
DANIEL A. BARKER, Judge
CONCURRING:
/s/
____________________________________
ANN A. SCOTT TIMMER, Presiding Judge
/s/
____________________________________
PATRICK IRVINE, Judge
16
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