By Linda Bentley
PHOENIX – On March 7, the Arizona Court of Appeals affirmed Superior Court Judge David M. Talamante’s order in favor of defendants: Town of Cave Creek, Cahava Springs Corp., Morningstar Road Properties, Inc. and Donald and Shari Jo Sorchych, and against Gerald and Janice Freeman, awarding costs and attorney fees to Cahava/Morningstar (Cahava) and the town.
Because the property transferred holdings from Cahava to Morningstar, the court noted the case would be re-captioned to add Morningstar but would continue to use “Cahava” for continuity.
The Sorchychs, who essentially have no dog in this fight, were not represented by an attorney in the case.
The Freemans sued to prevent the town from constructing a trail on land owned by Cahava, over which an easement that traverses Cahava’s, Sorchychs’ and other properties that the Freemans use to access their property.
Talamante denied the Freemans’ requests for declaratory judgment, permanent injunction, sanctions and attorney fees.
In 2012, the town, with Cahava’s permission, planned to construct a trail entirely on Cahava’s property that would intersect the easement in two locations, but would otherwise be completely separate from the easement and roadway.
The Sorchychs, who own property adjacent to the Freemans, were granted the same easement through a separate conveyance.
Despite the Sorchychs not owning property over which the proposed multi-purpose trail is slated to be constructed, the Freemans said they named the Sorchychs as “nominal defendants for the sole purpose of binding them to any court decisions.”
The appeals panel noted this was the third time the Freemans have sued the Sorchychs.
In 2004 the Freemans sued to force the Sorchychs to pay a contribution toward road maintenance and unjust enrichment for the easement and roadway.
The appeals court held the doctrine of equitable contribution required Sorchych to pay his share but denied the claim of unjust enrichment.
While that case was on appeal, the Freemans sued the Sorchychs again in February 2011, claiming a separate 33-foot exclusive easement for ingress, egress, utilities and water along the south side of the Sorchychs’ property was for the Freemans’ exclusive use and argued the Sorchychs could not use their own land to access their own property.
The Sorchychs were granted summary judgment and the court found the Freemans do not have exclusive use of the easement. In fact, the court noted nowhere in the conveyance documents can the word “exclusive” be found.
After Talamante issued his final ruling in July 2015, he rejected the Freemans proposed form of judgment, stating it “exceeds the relief and findings and order of the court set forth” in the under advisement ruling minute entry.
The Freemans appealed and filed an unsuccessful motion to stay construction of the trail pending the outcome of the appeal.
The court of appeals does not reweigh the evidence presented in the trial court and only reviews whether a trial court abused its discretion, committed an error of law or failed to consider evidence in reaching a discretionary conclusion.
The only issue before the court was whether the proposed trail would “unreasonably interfere” with the Freemans’ easement.
Freeman testified at trial he has between 1,200 to 1,400 trespassers per year on the easement, consisting primarily of horseback riders, while claiming every day he sees at least one trespasser and up to three or four vehicles trespassing, including four-wheelers in the roadway spinning their wheels and tearing up the road.
Sorchych testified he has always been in favor of the trail and said wouldn’t mind waiting a few minutes to allow horses to cross the roadway. He said Freeman’s notion that people will ride their horses on the roadway is exaggerated and while Sorchych uses the easement every day he claimed he has only seen two or three horseback riders in the 14 years he has lived there, not the 1,400 trespasses per year as Freeman testified.
Talamante did order a limited form of injunction that the town must abide by for construction of the trail and its subsequent maintenance.
The appeals panel cited the laws as they pertain to easements and the underlying property, whereas the holder of the servient estate (underlying property) is entitled to make any use of the servient estate that “does not reasonably interfere with the enjoyment of the servitude (easement holder).”
While the Freemans cited various out-of-state cases, the appeals panel stated, “Determining unreasonable interference is a fact-specific analysis, narrowly tailored to each case, and the trial judge here was in the best position to make that finding.”
The Freemans also argued the court erred in denying their injunction because inherent in the court’s ruling was a conclusion that Cahava may give permission for a third party public entity to use the easement.
The appeals panel pointed out the lower court did not, as the Freemans asserted, find that Cahava may give permission for a third party public entity to “use” the easement and stated, “The fact that the court only used ‘unreasonable interference’ and did not cite a case or the Restatement is not determinative because the law is settled – Cahava may make any use of its property that does not unreasonably interfere with the Freemans’ use of the easement and roadway.”
The Freemans argued they should have been awarded attorney fees as the successful/prevailing party because Talamante granted a limited form of injunctive relief.
In denying attorney fees to all parties, the trial court found it could not conclude either the Freemans or the town were the successful parties in the litigation.
However, Talamante also found many of the positions taken by the Freemans at trial were unreasonable and ultimately not accepted by the court.
Because the Freemans were not the successful parties on appeal, the appeals panel declined to award them fees or costs.
As the appeals panel affirmed the trial court’s judgment, and because Cahava and the town were the prevailing parties on appeal, it awarded them attorney fees and costs incurred on appeal.
On March 15, Cahava submitted an application for an award of fees in the amount of $25,398.50.
On March 21, the town submitted an application for an award of fees in the amount of $27,729.50.
The Freemans have until April 6 to file a petition for review to the Arizona Supreme Court.
