Opinion
No. 2 CA-CV 2019-0208
09-21-2020
GARY SEGAL, Plaintiff/Appellant, v. STEPHEN W. CARSTENSEN AND MARGARET C. CARSTENSEN, Defendants/Appellees.
COUNSEL The Russell's Law Firm PLC, Sierra Vista By D. Christopher Russell Counsel for Plaintiff/Appellant Udall Law Firm LLP, Tucson By Debra C. Boyer Counsel for Defendants/Appellees
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Cochise County
No. CV201800175
The Honorable Laura Cardinal, Judge
REVERSED AND REMANDED
COUNSEL The Russell's Law Firm PLC, Sierra Vista
By D. Christopher Russell
Counsel for Plaintiff/Appellant Udall Law Firm LLP, Tucson
By Debra C. Boyer
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Eckerstrom concurred. STARING, Presiding Judge:
¶1 Gary Segal appeals from the trial court's grant of summary judgment in favor of his neighbors, Margaret and Stephen Carstensen, in a boundary-by-acquiescence and adverse-possession action concerning a strip of land between the parties' properties. For the following reasons, we reverse and remand.
Factual and Procedural Background
¶2 In July 2006, Segal built a block wall between his lot and the adjacent vacant lot, which was owned by the Carstensens. The wall does not track the property line and instead sits east of the recorded boundary line, leaving 440 square feet of Segal's property on the Carstensens' side of the wall (the "disputed area"). The Carstensens assert Segal asked that they share in the cost of constructing the wall, which Segal denies.
¶3 The Carstensens regularly sprayed for weeds and cleared debris from their lot as well as the disputed area. Segal claims he performed similar maintenance on the disputed area during the same period of time. Shortly after Segal built the wall, the Carstensens asked him to remove construction equipment and materials he had placed on their property, and Segal complied.
¶4 In 2010, the Carstensens began construction of their home on the lot and, in 2011, they built a permanent shed and drainage structure within the disputed area. The Carstensens also enclosed their backyard with a "wing wall" attached to Segal's wall. According to Segal, he informed the Carstensens in February 2011 that their construction encroached on his land, an assertion the Carstensens dispute. It is undisputed, however, that during the construction of the Carstensens' shed, Segal complained to the City of Sierra Vista that the shed did not comply with the city's setback requirements; a city inspector found no violations.
¶5 In 2018, Segal obtained a survey, which revealed that 440 square feet of his land was on the Carstensens' side of the wall and included part of their shed and drainage structure. Segal tendered a quitclaim deed and five dollars to the Carstensens to resolve the boundary dispute. The Carstensens refused to sign the deed and, the next month, tendered their own quitclaim deed and five dollars to Segal, who also refused to sign. Segal subsequently filed a quiet-title action, and the Carstensens counterclaimed, arguing they had "obtained the legal right to the disputed land strip through adverse possession and/or boundary by acquiescence through their use and cultivation of the area for a period of more than 10 years."
Upon learning of the boundary discrepancy, the Carstensens obtained their own survey which revealed the same.
¶6 Both parties moved for summary judgment, and the trial court granted the Carstensens' motion, finding they had acquired title by adverse possession and both parties had acquiesced for more than ten years to the establishment of the property line created by the wall Segal built. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶7 On appeal, Segal argues the record does not support the Carstensens' boundary-by-acquiescence claim and does not establish that all of the elements of adverse possession occurred between 2005 and 2011. He asserts these issues are "question[s] of fact, inappropriate for summary judgment." We review de novo the trial court's grant of summary judgment. See Jackson v. Eagle KMC L.L.C., 245 Ariz. 544, ¶ 7 (2019).
¶8 Summary judgment is only appropriate when "the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). It is inappropriate, in considering summary judgment, for a trial court to weigh witness credibility, or quality of evidence, and "choose among competing or conflicting inferences." Orme Sch. v. Reeves, 166 Ariz. 301, 311 (1990). Once the moving party has made a prima facie showing of a lack of material facts in dispute and entitlement to judgment on the law, "the burden of production shifts to the non-moving party to produce evidence sufficient to raise a triable issue of fact." McCleary v. Tripodi, 243 Ariz. 197, ¶ 21 (App. 2017). In producing such evidence, "the opposing party cannot rely on the pleadings, but must 'respond with specific facts showing a genuine issue for trial.'" Id. (quoting Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, ¶ 15 (App. 2000)).
¶9 Therefore, "[o]n appeal from summary judgment, we must determine whether any material factual disputes exist and, if not, whether the trial court correctly applied the law." Cliff Findlay Auto., LLC v. Olson, 228 Ariz. 115, ¶ 8 (App. 2011). And, the facts and all reasonable inferences therefrom must be viewed in the light most favorable to Segal. See Overson v. Cowley, 136 Ariz. 60, 63 (App. 1982) ("All facts shown by the record, and all reasonable inferences which may be drawn from the evidence, must be considered in a light most favorable to the party against whom judgment is sought.").
Boundary by Acquiescence
¶10 To establish a boundary by acquiescence, a party must prove "(1) occupation or possession of property up to a clearly defined line, (2) mutual acquiescence by the adjoining landowners in that line as the dividing line between their properties, and (3) continued acquiescence for a long period of time." Mealey v. Arndt, 206 Ariz. 218, ¶ 13 (App. 2003) (citing Davis v. Mitchell, 628 A.2d 657, 660 (Me. 1993); Platt v. Martinez, 563 P.2d 586, 587 (N.M. 1977); Knox v. Bogan, 472 S.E.2d 43, 49 (S.C. Ct. App. 1996); Staker v. Ainsworth, 785 P.2d 417, 420 (Utah 1990)). The boundary in question must be visible, definite, and clearly marked, id. ¶ 15, and the required time period for the parties' acquiescence is ten years, id. ¶ 13; A.R.S. § 12-526(A); Hein v. Nutt, 66 Ariz. 107, 114 (1947) (applying adverse possession time requirement in absence of boundary-by-acquiescence statute). Whether the elements of boundary by acquiescence have been established is a question of fact. Stone v. Turner, 738 P.2d 1327, 1328 (N.M. Ct. App. 1987).
In the absence of boundary-by-acquiescence case law or statutes in Arizona, we look to other jurisdictions for guidance. See Mealey, 206 Ariz. 218, ¶ 13; cf. Swenson v. County of Pinal, 243 Ariz. 122, ¶ 12 (App. 2017) (although not binding, laws of other jurisdictions instructive).
¶11 There is no dispute that the boundary in question is visible, definite, and marked by the wall Segal built in 2006. There is also no dispute that the Carstensens occupied the disputed area up to Segal's wall from 2010 to 2018, or that the Carstensens performed weed and debris control on the disputed area. Rather, the parties disagree as to whether the Carstensens occupied the disputed area before 2010, whether Segal acquiesced that the wall he built was the boundary line, and whether such acquiescence continued for at least ten years.
¶12 On appeal, Segal argues the trial court erred when it "summarily and erroneously concluded that [he] acquiesced to the boundary line, without making a determination on Mealey's first element," and that "the Carstensens' weed and debris control up to the . . . wall after it was constructed in July 2006, as a matter of law, did not equate to actual occupancy or possession of Segal's property, because it was invisible, intermittent and occasional." Segal also states the court ignored his testimony that he was unaware of the Carstensens' use and occupancy of the disputed area until 2011.
¶13 Segal further asserts the trial court "ignored an express denial of acquiescence when it disregarded Segal's testimony that he informed the Carstensens that their building encroached on his property when its construction first began on February 24, 2011." He also claims the court improperly relied on a disputed fact because he had denied ever asking the Carstensens to share in the cost of his wall. Moreover, Segal contends his "neighborly act of removing his [construction] equipment from [the] Carstensens' land in 2006 was not an acknowledgement" of their rights to the disputed area because he "did not know the exact placement" of the equipment and materials; he ultimately asserts the "equipment was not placed on the disputed strip of land, but was, in fact, well within the Carstensen property." Segal further argues "any inference" his removal of the equipment and materials established the Carstensens' claim of right is negated by the fact he continued to access and use the disputed area until the Carstensens built their home.
¶14 The Carstensens counter that the record shows they maintained the disputed area starting in July 2006, as they "continued their regular maintenance activities of all property located on the west of the wall" and these "acts constituted much more than mere casual or occasional acts." Citing Mealey, they assert Segal's compliance with their demand that he move his construction equipment and materials in July 2006 "constituted an unequivocal assertion of [the] Carstensen[s'] ownership rights in the Disputed Area, and Segal's acquiescence in [the] Carstensen[s'] rights." As to Segal's assertion that the equipment and materials were only on the Carstensens' property and not on the disputed area, the Carstensens counter that the photographs admitted to the trial court show the equipment and materials were "right up against the wall on the Disputed Area."
¶15 First, we consider whether the Carstensens occupied or possessed the disputed area before they began building their home in 2010. See Mealey, 206 Ariz. 218, ¶ 13. "[T]he occupation element of boundary by acquiescence corresponds with the 'actual, open and notorious' requirements of adverse possession." Anderson v. Fautin, 379 P.3d 1186, ¶ 26 (Utah 2016) (quoting Allred ex rel. Jensen v. Allred, 182 P.3d 337, ¶ 17 (Utah 2008)). That is, "a claimant must occupy his or her land up to a visible line in a manner that provides the nonclaimant with notice" for the required period. Id. ¶ 30 (emphasis omitted).
¶16 Here, it is undisputed the Carstensens maintained their lot and the disputed area by regularly performing weed and debris control from 2006, after Segal built the wall, to 2010, when they built their house. However, the "occupation" element of boundary by acquiescence is a question of fact, see Stone, 738 P.2d at 1328, and whether it is satisfied depends on the individual circumstances of the case, cf. Wise v. Knapp, 3 Ariz. App. 99, 104-05 (1966) (explaining the standard for "possession" in adverse-possession claims).
¶17 Segal asserts that these actions—weeding and other maintenance—were insufficient to put him on notice of the Carstensens' alleged possession. Specifically, he stated: "[B]etween 2005 and 2009 I had no idea that Mr. Carstensen would go to the [disputed area] . . . nor did I know that Mr. Carstensen sprayed for weeds [there] between 2005 and 2011." Segal also pointed to his claims that he had performed similar maintenance on the disputed area during this time. Thus, we conclude Segal raised a triable issue of fact as to whether the Carstensens had satisfied the first element of boundary by acquiescence through their regular weeding and maintenance.
¶18 Next, we consider the issue of whether the parties mutually acquiesced in the wall constituting the dividing line between their properties. See Mealey, 206 Ariz. 218, ¶ 13. And, because "acquiesce" is not defined, we give this term its ordinary meaning, which is: "to accept, comply, or submit tacitly or passively." Acquiesce, Merriam-Webster, https://www.merriam-webster.com/dictionary/acquiesce (last visited September 1, 2020); see also RHN Corp. v. Veibell, 96 P.3d 935, ¶ 24 (Utah 2004) ("To acquiesce means to 'recognize and treat an observable line, such as a fence, as the boundary dividing the owner's property from the adjacent landowner's property.'" (quoting Ault v. Holden, 44 P.3d 781, ¶ 19 (Utah 2002))); Platt, 563 P.2d at 588 ("to 'acquiesce' in something is to accept or comply tacitly or passively, without implying assent or agreement" (adopting definition from Webster's New International Dictionary of the English Language (2d ed. 1960))). Boundary by acquiescence need not be based on mutual intent, as "'[a]cquiescence' is more nearly synonymous with 'indolence,' or 'consent by silence.'" Sachs v. Bd. of Trs., 557 P.2d 209, 216-17 (N.M. 1976) (quoting Lane v. Walker, 505 P.2d 1199, 1200 (Utah 1973)).
¶19 In the trial court, the Carstensens pointed to Segal's alleged request for them to share costs for the wall he was constructing in 2006 as evidence showing "all parties acted as though [it] was the boundary" from 2006 to 2018. However, Segal attested he had never discussed sharing costs with them. Segal also claimed he had informed the Carstensens that their shed encroached on his property when they began constructing it in 2011. Thus, even if the Carstensens made a prima facie showing of entitlement to summary judgment on their boundary-by-acquiescence claim, Segal met his burden and provided evidence of a disputed material fact—whether he acquiesced to his wall constituting the boundary for the statutory period. See Stone, 738 P.2d at 1328. Under these circumstances, the court erred in granting summary judgment on this issue.
The Carstensens assert this fact is not material because Segal still "silently allowed [them] to finish construction of the outbuilding and workshop based on use of the wall as the property boundary—and then waited another 7 years . . . before bringing this action for quiet title." Regardless, acquiescence in this case is a question of fact, see Stone, 738 P.2d at 1328, and evidence of Segal's explicit denial of the Carstensens' ownership, viewed in the light most favorable to Segal, was sufficient to require trial of the issue. See Orme Sch., 166 Ariz. at 311; see also Overson, 136 Ariz. at 63 (facts viewed in the light most favorable to nonmoving party on summary judgment).
While not argued in support of the Carstensens' motion for summary judgment on boundary-by-acquiescence grounds, the trial court's assertion that Segal's removal of his construction equipment at the Carstensens' request demonstrated his acquiescence to the wall as the boundary was still subject to Segal's claim that he did not know if the equipment had been located within the disputed area. Thus, Segal met his burden of presenting evidence sufficient to raise acquiescence as a triable issue of fact.
Adverse Possession
¶20 To establish title by adverse possession, the party claiming title must prove an (1) actual or visible, (2) open and notorious appropriation of land, (3) under a claim of right (4) hostile to the claim of another that is (5) exclusive and (6) continuous (7) for a period of ten years. A.R.S. §§ 12-521(A)(1), 12-526(A); Ziggy's Opportunities, Inc. v. I-10 Indus. Park Developers, 152 Ariz. 104, 107 (App. 1986); Overson, 136 Ariz. at 65; Ellingson v. Fuller, 20 Ariz. App. 456, 458 (1973). Whether the elements of adverse possession have been satisfied is a question of fact based on the circumstances of the case. Sabino Town & Country Estates Ass'n v. Carr, 186 Ariz. 146, 149 (App. 1996).
¶21 Again, the parties disagree as to whether the elements of adverse possession coincided prior to 2010. See Overson, 136 Ariz. at 65. Segal claims: the Carstensens' occasional entry onto the disputed area was insufficient to satisfy the "appropriation" element of adverse possession; the Carstensens did not "visibly occup[y] Segal's property in an open and notorious manner" by maintaining the disputed area; the record did not establish the Carstensens' exclusive possession of the disputed area due to Segal's access to it; and the record did not support a finding that the Carstensens occupied the disputed area under a hostile claim of right. In sum, Segal argues, "summary judgment in favor of [the] Carstensens was improper because the question of whether the elements of adverse possession were met" is a question of fact inappropriate for determination on summary judgment in this case.
¶22 In response, the Carstensens argue Segal's ability to enter the disputed area did not undermine their entitlement to the land because the exclusivity element of adverse possession does not apply here. They also assert the lack of an enclosure around the disputed area does not affect their claim to it. Lastly, the Carstensens emphasize that "there was ample evidence submitted by the parties and examined by the trial court to support the trial court's conclusion that Segal was [on] notice of [the] Carstensen[s'] adverse claim" to the disputed area.
¶23 Foremost, the Carstensens' assertion that the "exclusivity and hostility requirements of adverse possession are not required in an adverse possession claim based on boundary by acquiescence" is misplaced. The South Carolina case on which the Carstensens rely, which is not binding on this court, only discusses whether the element of hostility is required. See State v. Dean, 226 Ariz. 47, ¶ 19 (App. 2010) (legal precedent from other jurisdictions not controlling on this court); Knox, 472 S.E.2d at 47-48. But, established Arizona case law requires the claimant's exclusive possession of the land in order for it to transfer by adverse possession. Overson, 136 Ariz. at 65; Ellingson, 20 Ariz. App. at 458. Specifically, the claimant must exclude the owner of record from the disputed land. Overson, 136 Ariz. at 65.
¶24 Below, the Carstensens broadly claimed they had been "in the exclusive possession of" the disputed area for more than ten years. Yet, Segal submitted to the trial court that he regularly "had access to and used and maintained the disputed strip of land" before the Carstensens built their home in 2010. Therefore, Segal demonstrated that whether the Carstensens had exclusively, and thus adversely, possessed the disputed area for the statutory period was a triable issue of fact, see Sabino Town & Country Estates Ass'n, 186 Ariz. at 149, and the court erred in granting summary judgment on that ground.
Attorney Fees
¶25 Segal seeks attorney fees and costs pursuant to Rule 21, Ariz. R. Civ. App. P., and A.R.S. §§ 12-1103(B) and 12-341. However, because Segal has not prevailed on his quiet-title claim, we deny his request for attorney fees on appeal without prejudice. See Pac. W. Bank v. Castleton, 246 Ariz. 108, ¶¶ 22, 24 (App. 2018) (prevailing party on appeal not entitled to attorney fees under § 12-1103(B) because it had "not yet formally prevailed on its quiet title counterclaim"); Long v. Clark, 226 Ariz. 95, ¶ 6 (App. 2010). If the trial court ultimately awards Segal attorney fees under § 12-1103(B), it may also award his reasonable attorney fees incurred from this appeal. See Pac. W. Bank, 246 Ariz. 108, ¶ 23.
Disposition
¶26 For the foregoing reasons, we reverse and remand to the trial court for further proceedings consistent with this decision.