Attorneys’ fees stand against Freeman, Smith-Haff suit heads to ADR

Gerald and Janice Freeman, Janelle Smith-Haff

CAVE CREEK – Back in 2012, Gerald and Janice Freeman sued the town of Cave Creek, Cahava Springs Corp., aka Morningstar Road Properties, Inc., as well as their neighbors, Don and Shari Jo Sorchych to prevent a trail from being built on Cahava Springs’ property.

Despite the Sorchychs not having a dog in this fight other than voicing support for the trail, the Freemans named them as defendants.

Following oral arguments in December 2014, Maricopa County Superior Court Judge David Talamante took the matter under advisement.

On April 28, 2015, Talamante declined to issue a declaratory judgment based on the Freemans’ first claim that defendants have denied them the “right to exclusive use of their driveway,” which is located upon an easement that traverses five properties.

Talamante also found the Freemans’ allegation in their third claim relating to a trail becoming a “private nuisance,” was not yet ripe for determination and dismissed the claim without prejudice.

Talamante also denied their second claim, a request for a permanent injunction against the town for constructing the trail or against the co-defendants for agreeing to it or cooperating with its construction.

However, Talamante did grant the Freemans’ request for a permanent injunction against the town that required appropriate engineers, trail designers and contractors to utilize appropriate grading and drainage to minimize maintenance and adverse impact on the roadway used by the Freemans to access their property, as well as utilize retaining walls “whenever necessary to maintain the trail to provide equestrian use at all times.”

Talamante directed the Freemans to submit a form of judgment consistent with his findings by June 4, 2015.

Although he was not inclined to award attorneys’ fees in this matter, Talamante directed the parties to file any requests for taxable costs and fees by the same deadline.

The Freemans submitted a form of judgment, which was followed by the town’s objection and an alternate form of judgment.

Talamante issued an order on July 28, 2015 stating the form of judgment submitted by the Freemans exceeded the relief, findings and orders of the court set forth in his April 28 minute entry, whereas the proposed form of judgment submitted by the town of Cave Creek was substantially consistent with the court’s prior order.

After considering the matter from its inception, Talamante concluded that neither the plaintiff nor the principle defendant, town of Cave Creek, were successful parties in this litigation and ordered each of the parties to bear their own costs and fees.

The Freemans appealed.

A unanimous panel for the Arizona Court of Appeals affirmed Talamante’s ruling and on April 13, 2017 it also awarded $26,000 to the town and $25,398.50 to Morningstar Road Properties in attorneys’ fees.

The Freemans filed a petition for review to the Arizona Supreme Court.

On Sept. 26, 2017, the Arizona Supreme Court denied the Feemans’ petition, allowing the order for attorneys’ fees to stand.

Another lawsuit was filed against the town in November 2016 because the town of Cave Creek didn’t agree to the demands outlined in their notice of claim, including a payment of $9,500 for legal fees, or, in the alternative, payment of $1,597,150 to avoid a lawsuit.

The complaint was filed by failed mayoral candidate Janelle Smith-Haff, Stephen Haff, Keith and Kathy Johnson, Paul and Barbara Stockford, plus Heather Larson and John Sawazhki, Honda Bow Road residents and directors of Treat Creekers Fairly, Inc., the name under which the notice of claim was filed.

The complaint asserts the town is in violation of various development/annexation agreements and ordinances and states the town made a series of covenants with respect to Cave Creek Crossings, Honda Bow Alignment, Morning Star Road and Spur Cross Road.

On Oct. 2, 2017, Maricopa County Superior Court Judge Sherry Stephens issued an order referring the case, which was placed on the 150 day dismissal calendar in April, to the court’s Alternative Dispute Resolution Office (ADR) for the appointment of a judge pro tempore to conduct a settlement conference.

Stephens requested that the settlement conference be conducted no later than Feb. 15, 2018 and directed all counsel and their clients or non-lawyer representatives who have full and complete authority to settle this case to “personally appear and participate in good faith in the settlement conference even if no settlement is expected.”