*1 wrongful arrest and alleged disclosing tained to his wrongfully County allegedly incarceration, per- include facts to it did not records, required to Haab was his medical County Haab’s claims to evaluate mit the had filed on of claim he amend the notice alleged wrongful dissemination on the based If not to amend his July 2005. he chose records, give nor did of his medical notice, a new July could have filed he to settle those claims County opportunity relating to his new containing the facts notice of claim there- prior litigation. The notice County provided the But unless he claims. satisfy requirements of not fore did § 12- required A.R.S. with the notice reasons, we For these A.R.S. 12-821.01. days after those claims within 180 821.01 Haab. judgment against affirm the accrued, the claims were barred.4 BARKER, D. Due Process. DANIEL A CONCURRING: IRVINE, Judge, PATRICK Presiding lastly argues he was de Haab Judge. process procedural due be nied his notice of the oral cause he did not receive County’s motion for sum
argument on the mary judgment and the court heard County’s argument without
part of the being present. Haab’s coun Haab’s counsel argument oral tele participated sel time that he was phone explained P.3d 1030 “scheduling Counsel late because of issues.” Neal, Perry husband NEAL and Deborah only later that contends that he discovered wife; and Denise J. Pitts Scott argument. had not received notice of the he wife, Plaintiffs/Ap- Pitts, husband however, failed, to advise the court He pellees, Nor did Haab he had not received notice. on the basis that he move for reconsideration opportunity prepare or did not have the BROWN, M. an unmarried Patricia his the court’s actions violated assert Defendant/Appellant. woman, rights. Having presented process due court, 06-0756. arguments superior Haab No. CA-CV these to the Englert appeal. them on v. Car waives See Arizona, Appeals Court Network, 21, 26, ondelet Health 1, Department A Division (even ¶ 13, (App.2000) con P.3d trial court issues not raised stitutional July appeal). on are considered CONCLUSION required to hold that Haab was We County facts on notice relating to the
which he based his claims Army alleged wrongful disclosure of his med- provided the ical records. He could have by amending July required notice his by filing a new notice. Be- 2005 notice or per- July 19 notice of claim cause Haab’s claims, County imprisonment County argues and false because the did not 4. Haab § 12-821.01 argument the dismissal based on A.R.S. the statute. Because seek under waived its original complaint that arose superi- of the claims in his argument make that Haab failed to County’s alleged wrongful disclosure out of the court, however, address it here. we do not records, to assert the his medical but waited Network, 199 Englert Health See v. Carondelet after Haab had amend- statute as a defense until (App.2000) complaint wrongful arrest ed his to abandon *2 Angle Hallam Jackson & Forma- Warner Klausner, By Brent nek PLC Jack Daniel J. Phoenix, Welker, Attorneys for Defen- dant/Appellant.
OPINION
HALL, Judge.
appeals
1 Patricia M. Brown
from the
summary judgment
entered
favor of her
neighbors, Perry and
Deborah Neal
(collectively,
Scott and Denise Pitts
Neighbors),
quiet
on their claims for
to a
title
property
over
and in-
Brown’s
junctive
requiring
relief
that Brown remove a
blocking
fence
access to the
Loeks,
Bernal v.
Drive, the Pitts on the Brown’s fence of the Neals and west al- original properties, Drive. to access north side of Skinner the easement Drive though they was issued conceded that Skinner properties Act and includes the follow- over the provided access to their *3 ing language: They that the fact graded area. contended they access to their that had other subject right-of-way not to a
This roadway provided width, grading or that the exceeding 33-feet property was of better access to their purposes, to be located even and utilities they had They claimed that consequence. of said no along and south boundaries the east that right right-of-way, a land. obstructing right-of-way, Brown was along constructed the Skinner Drive was they right right-of-way the had a property, and portion of Brown’s southern unhampered by ingress egress ob- and Drive for Neighbors the have used Skinner structions, they entitled to and that were years properties. to access their require Brown to rights their a graded 25-foot Brown cleared They argued that also remove the fence.1 boundary line. road south of her southern right-of- changed Brown the location entirely within a similar This road is located obtaining way without their consent. parcel located immedi- 33-foot easement a property. ately of the Brown to the south Neighbors disputed that Brown permit Maricopa from obtaining After a right-of-way, assert- were beneficiaries of the running east County, constructed a fence she ing that the reservation was for the benefit boundary of her along the southern west and to landowners entities a minimum property; the fence was located property. Brown had to landlocked boundary north of her southern of two inches permit to construct the fence obtained of her south- to a maximum of 66-feet north County Maricopa and ar- its location from boundary. fence run ern The ends of the a dedicated gued that Skinner Drive was north the east and west boundaries Neighbors with provided designated enclosing some or all of the area properties without abundant access to their roadway, re- right-of-way. The which property. having to cross Brown’s Drive, provides am- tained the name Skinner Further, Neighbors Brown claimed properties ple for vehicle travel to all to determine how did not have roadway, including those of the along the Maricopa right-of-way could be used because Neighbors. County Brown to construct had authorized the fence within the area of February Neighbors In filed circum- on her Under these quiet complaint against Brown for title objection stances, any Brown asserted injunction. They alleged that were regarding size or Neighbors had of an easement the owners and beneficiaries Drive must be raised location Skinner property created the land over Brown’s pro- Maricopa County. support, Brown Brown’s construction of a and that Graham, an of John K. vided the affidavits deprived right to use the fence them of their company, and attorney for a title insurance Neighbors sought an order easement. The Junkar, survey- registered Gregory B. directing to remove the fence Brown or. enjoining interfering permanently her from with their to use the easement. of the deeds of the 8 Based on his review county documents parties involved as well as complaint, 6 After Brown answered construction, Graham summary permitting the fence Neighbors filed a motion Maricopa County exercised its opined that responded and filed a judgment and Brown not) (and does because she cannot "is irrelevant Brown asserted that one or both When alleged allege Neighbors’] obstruct violations Neighbors [the extend over also erected fences that injure her in proper- or otherwise right-of-ways access to her associated with their ties, any way.” that her contention claimed by accepting upon proving a need to use entitlement to the Plaintiffs using Drive of the south- to access their Skinner properties by permitting Brown to to an ern amounts right. her fence within the construct that, so, doing concluded Marico- Graham Neighbors’ granted The trial court mo- County regarding
pa made a determination summary judgment tion for and denied right-of- the reasonable use of the Brown The trial court Brown’s cross-motion. also County, way. opined Maricopa Graham the fence and ordered Brown to remove en- Neighbors, had deter- interfering Neigh- joined her from with the mine where Skinner Drive would be located. use of the bors’ easement. moved to strike Graham’s *4 ¶ judgment 10 After final was entered in argument and affidavit related to timely Neighbors, appeal- favor of the Brown grounds the affidavit on the that Graham’s jurisdiction pursuant We have to Ari- ed. they opinions were inadmissible because im- (A.R.S.) 12- zona Revised Statutes section opined permissibly on to be decided issues 2101(B) (2003). trial court. ¶ argument parties’ 9 At oral on the cross-
motions,
parties
DISCUSSION
agreed
the trial
court would not consider Graham’s affidavit
Summary judgment
granted
11
must be
testimony,
as sworn
but
consider it
would
as
genuine
any
“there is no
issue
to
argument.
In
ruling,
its under-advisement
the moving party
material fact and
is
[]
trial court
stated:
as a
judgment
entitled to
matter of law.”
Loeks,
parties agree
The
that Bernal v.
56(e).
reviewing
R.
Ariz.
Civ. P.
In
a motion
Ariz.
(App.2000)
196
Bernal did not indicate (4th ed.1974). struction 64.07 The right to rights-of-way required enforce the provided Act for the sale lands “for proof right-of- that the Plaintiff needed the residence, recreation, community business way property. to to access his purposes.” site States Tel & Tel. Mountain private The Bernal Court held Kennedy, v. Co. to enforce the existed (App.1985). rights-of-way The re place any did limits on the grants served the land were created to enforcement. utility provide street and access and to allevi governments Court This finds that the ex- ate the burden on local to ac right-of- quire to benefit the Plaintiffs. The roads and ists easements to install utilities. way is not depend conditional and does not Brown Brown does argues Brown that the trial court dispute recognizes concluding land that Bernal
erred in
patent right-
land
right of action to enforce a
her
created an unconditional ease
depen-
asserts that the
of-way, but
regard
ment
entire
width
over the
33-foot
neighboring prop-
dent on the need
necessity.
argues that
less of
She
erty.
properties
have
to their
Drive, they
over Skinner
are not entitled to
The facts Bernal are different from
her
enforce the
over
The
concede that
those here.
Neighbors argue
they
prop
have a
they already
proper-
have full access
their
erty
and are entitled
interest
Drive,
parallel
ties
which is
via Skinner
regardless
to enforce it
whether
have
contiguous
right-of-way the
prop
sufficient or even better access
their
Likewise,
Neigh-
Neighbors seek
use.
erties over Skinner Drive.
inability
that their
bors have not claimed
portion
use
enclosed
¶ 14
parties rely
support
Both
on Bernal
any way
Brown’s fence in
hinders their
plaintiff
respective positions.
of their
effect,
own
of their
patent rights-
sought
Bernal
injury
claimed
is the denial of their use of
of-way
neighbors
over the
of two
*5
right-of-way,
any consequence
not
of that
portion
property
access a
of his
to which he
Therefore,
the
of the land
denial.
only
had
foot access because his
otherwise
grant
rights-of-way,
the related
which
and
arroyo.
property
by an
196
was bisected
analysis,
crucial
Bernal
are
were
¶
363, 2,
Ariz.
997
1192.
at
P.2d at
Because
implicated here.
access,
he could
restricted
make
¶
Neighbors
argue that
17 The
nonetheless
rights-
limited use of the
Id. The
in
important
Bernal was
of-way
consideration
sought
over which he
access were
¶
rights-of-way
pat-
that
in
364, 5,
the
individual
part of
at
yet-to-be-built
a
road.
Id.
regulations
to
ents were reserved
Noting
purpose
ment “remains
PORTLEY,
MAURICE
CONCURRING:
purpose
right is
with the
as such
consistent
Judge.
easement”) (quotation
character of the
SNOW,
dissenting.
Judge,
omitted).
place,
both
With Brown’s fence
have
to and
and the
Brown
colleagues
create a
My
respective proper
make full use of their
can
express
re-
easements
governing
new rule
remove
fence
require
To
Brown to
her
ties.
changes
patents that
served in federal land
property
pre
would
to allow travel over her
the ma-
I believe
the settled law. Because
making
proper
from
full use
her
vent her
actual lan-
jority’s
rule misreads the
new
Neighbors’
ty
no benefit
law,
existing
misapplies
guage
patent,
already
using
that is not
available
Small Tract
fails to
serve
Drive.
Skinner
1976) (“STA”
Act,
§
(repealed
682a
43 U.S.C.
Act”),4
mischief with
and will work
“the
requested
has
an award
Brown
every
land that contains
tract of
attorneys’
has
appeal but
not cited
fees on
reservation, I dissent.
a basis for such an award. We therefore
appeal
request.
Country
in this
Mut. Ins.
issue
decline her
See
Fonk,
now
Drive in
located on what is
East Skinner
Co.
between Dix-
(App.2000) (denying request
Cave
east of 56th Street
for fees
Creek
Dynamite Boulevard. Pursu-
party
ileta Drive and
appeal
prevailing
on
failed
Act,
patent-
ant to
Brown’s
any
request).
for the
state
substantive basis
Brown will be
ed
the federal
prevailing party,
As the
upon
predecessors in interest in 1959.
appeal contingent
her
on
awarded
costs
following
reservation:
compliance
Arizona Rule of Civil
included
her
21(a).
See
12-
Appellate Procedure
A.R.S.
subject
right-of-way not
This
to a
(2003).
width,
exceeding
33 feet
to be
purposes,
utilities
located
*7
of
CONCLUSION
east and south boundaries
said
the
land.
possess
an
party
23 A
does
of
parcel
to the immediate south
right
right-of-way
the
absolute
use a
reserved
government also
parcel,
issued
the federal
under federal land
Instead,
right-of-way “not exceed-
rights-of-
such
a similar
Tract Act.
reserved
the Small
northern
only
ing
parcel’s
feet” across the
way may
used to the extent the use
Thus,
patents together
the
boundary.
Act.
two
of the
is consistent
the
sixty-six
right-of-way cen-
a
foot
existing
provides
reserved
Because
boundary line.
and use
tered on Brown’s southern
Neighbors full access to
of
roadway corri-
right-of-way
are not
to This
properties,
Neighbors
entitled
multiple lane
prop-
dor
right-of-way over Brown’s
sufficient
enforce the
developing
Therefore,
needs
reverse the trial court’s
was both sufficient for
erty.3
we
two
fairly apportioned
and
lots.
summary judgment
Neigh-
between
grant of
purposes.
tract
See Bureau
that the
classified for small
3. Based on our determination
Interior,
right-of-way
Dep’t
may
the cir-
In-
Mgmt,
not enforce the
under
U.S.
of Land
here,
presented
80-540,
we do
address
cumstances
Small Tract Act
Mem. No.
struction
argument
Amended):
Brown’s additional
(Act
Guide Book
June
for
rights
because Marico-
have no
under
(1980), cit-
Existing
Managing
Small Tract Areas
County
rights
pa
under
has exercised its
Respondent
West Materi-
ed in
at New
Brief of
by
creating
Drive.
Skinner
als,
Appeals,
Board
No.
v. Interior
Land
LLC
Thus,
2007).
(U.S.
effect of
07-44
Nov.
repealed approximate-
By the time the Act was
majority’s
could be considerable.
decision
450,000
ly
acres
western states were
in fourteen
¶26
Brown,
of the ease-
against
the beneficiaries
point,
on her own
and
At some
so,
only
initiative,
apparently,
graded an east-west ment. But it does
cleared and
neigh-
private, as
entirely
beneficiary claiming
on her
use is a
road that was located
beneficiary.
This road and its contin-
right-of-way.
governmental,
bor’s
opposed to
eventually
Drive.
named Skinner
uation were
doing, the
makes
In so
question,
Skinner Drive is
At the location
First,
in order to find
least three errors.
twenty-five
provides
and
feet wide
majority ignores
plain
ambiguity the
properties along the
travel
to all
vehicle
regulations governing
meaning of the federal
roadway, including
Appellees.
those of the
Second,
majority inter-
when the
the STA.
placed the
Sometime after Brown
ambiguity
of the
purported
in favor
prets the
property, Brown ob-
neighbor’s
road on her
than the
holder of the servient estate rather
County
permit
Maricopa
from
tained a
beneficiary,
ignores
settled Arizona law
a fence around the border of her
constructed
Third, pertains
as it
to STA reservations.
portion
property, which blocked access to the
majority not
ignoring the settled law the
prop-
across her
runs
question
scope of
potentially calls into
erty.
neighbors
then
Her
to the east
every
in an STA land
against
impeding
brought suit
Brown for
the Arizona,
hopeless
it also makes a
muddle
right-of-way.
of their
Brown con-
extent
based
right
to use such
neighbors
tends that her
do not need to use
reservations,
express
not on the text of the
proper-
that runs across her
identity
beneficiary. This
but on the
ty due to the existence of Skinner Drive.
policy.
good public
is not
claims,
Therefore,
legal
she
have no
majority acknowledges,
As the
to use that
passed
to authorize the transfer
Nevertheless,
the well-settled law
pri-
from the federal
specifies
that if an
ex-
easement created
recreation,
residence,
vate users “for
busi-
press grant
unambiguous
“is
reservation
community
purposes.”
See
ness or
site
grants
party]
ingress
[a
Kennedy,
Mountain States Tel. & Tel. Co. v.
egress over the entire ... width of the ease-
(App.
ment,
governs
the deed
and considerations of
1985)
II).
necessary,
(Kennedy
It was
necessary
ingress
what is reasonable and
separate
dividing up the federal
land into
egress
controlling.” Squaw
are not
parcels,
provide rights-of-way necessary to
Cmty.
Peak
Covenant Church
Phoenix v.
separately-patented parcels that
access the
Dev., Inc.,
Anozira
single parcel
previously
had
been held in a
(App.1986).
further
The rule
government.
rights-of-
the federal
that,
specifies
“the owner of a
way
to the users of such
were
ingress
egress
has
public entity
de-
whether or not
full width of the area
un-
[of
easement]
*8
or maintain roads over the
cided
construct
hampered by
placed
obstructions
thereon.”
rights-of-way.
298;
Id. at
719 P.2d at
see also 28A
(1996) (“The
§
fact that
C.J.S. Easements
¶
Act thus reserved
32 Patents under the
necessary
is
not bar its
the easement
will
multiple
an
sufficient to
creation.”).
regardless
size of
lane access
of whether the
consistently
granted would be
majority acknowledges that
the easement
City
property developed. See
patent
at issue is
used while the
reservation
the federal
406, 408,
Kennedy,
scope
138 Ariz.
express.
acknowledges
It also
that the
Phoenix
I);
(Kennedy
(App.1983)
generally not limit-
675 P.2d
express
of an
easement is
Loeks,
363, 366,
196 Ariz.
by
necessity
see also Bernal v.
ed
notions of
or reasonableness.
(“It
Nevertheless,
legal
(App.2000)
is
majority, with no
whatsoever,
only
parcels
...
authority
when the
are used
precedent or
ventures
justified
government
expending
is
the time
explicit reservation in the federal
to hold the
to build such road-
ambiguous.
interprets
It then
and resources needed
patent
roadways
ways.”).
did not need to be
purported ambiguity
in Brown’s favor
Such
roadways
gives
neighbors
rights
to be authorized
the re-
her
similar
across her
patent
easement:
in Brown’s
served
reserving
right-of-way
exceeding
“not
Although
invariably
in-
utilities almost
are
feet” on the south and east boundaries of her
entities,
by public
stalled and maintained
property
plainly explained by
the federal
obviously
roadways,
this is
not true for
regulations implementing the STA. Those
especially
forged
those
are
rural
that,
regulations specified
unless otherwise
newly developing
[regula-
areas. That the
stated,
explicitly
reservation
pertaining
tions
to STA
did not
easements]
under
issued
to the STA
modify
phrase
“street and road
fifty
would be
feet:
therefore,
poses”
“public,”
with the word
roadways
may provide
evinces a clear intent that such
The classification order
publicly
rights-of-way
are not limited to those that are
over each tract for
street
built and maintained.
If
road
and for
utilities.
provide,
the classification order does not so
Bernal,
365, 9,
997 P.2d at
will be 50 feet
boundaries of the tract.
¶33 Further, by providing for easements
(removed 1980). Thus,
43 C.F.R.
2731.6-2
heavy
Act
some size the
reduced “the
Secretary
because the
intended for the reser-
governments
subsequently
burden on local
property
vation from Brown’s
to be for less
having
acquire
roadways
an easement” for
feet,
fifty
specified
than
he
utilities
the need
access to these
thirty-three
the reservation would not exceed
I,
properties expanded. Kennedy
did,
only thing
Secretary
feet. The
so
potentially public policy serious ramifications any property subject to an STA P.3d 1040 majority just reservation. The has declared YOLLIN, Plaintiff/Appellant, Allan every patent reserving an ease- exceeding ment “not used feet” — GLENDALE, municipal corpo CITY OF every reported involving case STA ease- organized existing ration under the Thus, ambiguous. ments in this state —is Arizona, laws of the State of Defen despite the reasons for which the easement dant/Appellee. reserved, used, it can at least No. 1 CA-CV 07-0513. private parties, only party when that can satisfy a court demonstrably that it needs to Arizona, Appeals Court of scope use the whole of the easement 1, Department Division E. majority nothing achieve access. The offers Aug. the text of the reservation itself justify that would such a limitation. Nor any justification
does it
treating
offer
Bernal, however,
erty,
spanned by footbridge
5. The
limits
assert
it was
and thus the
ing
that Bernal’s
was "landlocked” and
entirety of the lot was accessible.
Id. Bernal’s
gain
thus that Bernal needed the approaching
claim
“need” was his assertion
¶¶ 1,
property. Supra
access to his
14. With all
keep
that “he would like to
horses on the west
”
respect
majority,
due
Bernal did not
section,”
"readily
to which he did not
have
"need” the easement
to access his
A
added).
given
arroyo.
(emphasis
length
road ran the entire
of Bernal’s eastern
may
easy
While Bernal
not have had
access to
which,
court,
boundary,
"pro
in the words of the
every part
any potential purpose,
of his land for
Bernal,
property.”
vided] access to his
saying
that is far indeed
Bernal
from
was in
363, ¶2,
added).
(emphasis