Yard v. Perkins

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

GEORGE H. YARD and SHARON ANN YARD,
as Trustees of The Yard Family Revocable Trust
dated December 15, 2000,
Plaintiffs/Counter-Defendants/Appellees,

v.

SILKIE PERKINS,
Defendant/Counter-Claimant/Appellant.

No. 1 CA-CV 18-0367
FILED 6-6-2019

Appeal from the Superior Court in Yavapai County
No. V1300CV201580202
The Honorable Jeffrey G. Paupore, Judge Pro Tempore

AFFIRMED

COUNSEL

Hunter, Humphrey & Yavitz, PLC, Phoenix
By Isabel M. Humphrey, Randall S. Yavitz
Counsel for Plaintiffs/Counter-Defendants/Appellees

Silkie Perkins, Clarkdale
Defendant/Counter-Claimant/Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kent E. Cattani joined.

J O H N S E N, Judge:

¶1 In an earlier appeal in this quiet-title case, we vacated a
attorney's fee award in favor of George and Sharon Yard, as trustees, and
remanded to the superior court to determine how much in fees, if any,
should be awarded to the prevailing party, Silkie Perkins. Perkins now
appeals the superior court's order on remand declining to award her any
attorney's fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Perkins and the Yards own adjacent properties in Yavapai
County. A fence divides the properties, but it does not follow the property
line and roughly three-quarters of an acre of Perkins's property lies on the
Yards' side of the fence. For many years, the Yards could get to their
property only by using a dirt road that crossed Perkins's property.

¶3 In May 2015, the Yards sent Perkins a letter asserting claims
for adverse possession and prescriptive easement. The Yards enclosed $15
and three quit claim deeds and demanded that Perkins sign and return the
deeds. Perkins refused, and, in June 2015, the Yards filed a quiet-title
complaint in superior court that requested attorney's fees under Arizona
Revised Statutes ("A.R.S.") section 12-1103(B) (2019).1 Perkins answered the
complaint, and then, like the Yards, sent them $15 and three quit claim
deeds disclaiming the Yards' interest in the disputed properties. After the
Yards refused to return Perkins's deeds, Perkins filed a counterclaim in
November 2015 to quiet title in her favor. She also requested attorney's fees
under § 12-1103(B).

¶4 By May 2016, the Yards had built an access road on their own
property so that they no longer needed to cross Perkins's property to get to
theirs. They also recorded quit claim deeds to the disputed property and

1 Absent material revision after the relevant date, we cite the current
version of a statute or rule.

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moved to dismiss their complaint. In response, Perkins sought summary
judgment on her counterclaim and asked the court to grant her attorney's
fees. Ultimately, the superior court dismissed the Yards' complaint with
prejudice and ruled Perkins's counterclaim moot. The court then awarded
attorney's fees to the Yards under § 12-1103(B).

¶5 After Perkins appealed, this court affirmed the dismissal of
her counterclaim but vacated the attorney's fees award, holding that only
Perkins had prevailed and was eligible for attorney's fees under § 12-
1103(B). We then remanded to the superior court solely for it to decide what
amount of attorney's fees, if any, to award Perkins under § 12-1103(B).

¶6 On remand, the court declined to award any fees to Perkins.
Perkins timely appealed. We have jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2019)
and -2101(A)(1) (2019).

DISCUSSION

¶7 A party prevailing in a quiet-title action may recover
attorney's fees if, at least 20 days before bringing the action, he or she
tendered five dollars with a request that the other party execute a quit claim
deed, and the other party did not comply. A.R.S. § 12-1103(B); see Cook v.
Grebe, 245 Ariz. 367, 369, ¶ 5 (App. 2018). But a fees award under the statute
is not mandatory; even when the requirements of the statute are satisfied,
the court may decline to award fees. Scottsdale Mem'l Health Sys., Inc. v.
Clark, 164 Ariz. 211, 215 (App. 1990). In deciding whether to award fees
under § 12-1103(B), the superior court "may consider the same factors that
are considered in determining whether to award attorney's fees pursuant
to A.R.S. section 12-341.01." Id. See Fulton Homes Corp. v. BBP Concrete, 214
Ariz. 566, 570, ¶ 15 (App. 2007) ("no single factor requires or prohibits an
award of fees"); State Farm Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255,
261, ¶ 27 (App. 1998) (superior court has "broad discretion" in determining
whether to award attorney's fees). We review a ruling denying attorney's
fees for an abuse of that discretion, and "if there is any reasonable basis for
the [court's ruling], its judgment will not be disturbed." BBP Concrete, 214
Ariz. at 569, ¶ 9; see Cook, 245 Ariz. at 370, ¶ 11.

¶8 In denying Perkins's request for attorney's fees, the superior
court made the following findings:

1. Perkins is the prevailing party in this case.
2. The Yards did not waive the issue of defective deeds.
3. Both parties held meritorious legal positions.

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Decision of the Court

4. Both parties attempted to avoid litigation by first
complying with A.R.S. § 12-1103(B).
5. Both parties concede that when a party complies with the
statutory provisions, it nevertheless remains within the
trial court's discretion to determine whether to award
attorney's fees to the prevailing party.
6. The claims of both parties were not fully and finally
litigated because the Yards elected to build a new road
thereby quieting title in favor of Perkins in a unique but
costly manner.2

¶9 In addition, the court characterized the litigation as "intense"
and noted that "attempts to settle were unsuccessful." Ultimately, the court
found, Perkins prevailed "due to the Yards' unilateral decision to dismiss
their complaint" after they elected "to build [a] new road on their land."

¶10 Perkins argues the superior court abused its discretion
because the Yards initiated the suit, which Perkins contends was without
merit. Regardless of which party commenced the litigation, in deciding
whether to grant fees, the superior court may consider, inter alia, whether
the parties could have agreed to settle the case without involvement (or
additional involvement) of the court. Clark, 164 Ariz. at 215-16 (citing Assoc.
Indem. Corp. v. Warner, 143 Ariz. 567, 570 (1985)). As we noted in our prior
decision, the Yards' dismissal of their complaint, along with their execution
of a quit claim deed in Perkins's favor, provided Perkins with the relief she
sought. In light of the "intense" manner in which the case was litigated and
the prior unsuccessful attempts to settle the case, we cannot say the court
abused its discretion when it declined Perkins's request for attorney's fees,
considering the Yards' unilateral efforts to resolve the dispute, which in the
end provided Perkins with her requested relief. Cook, 245 Ariz. at 370, ¶ 11.

¶11 Perkins appears to contend we should revisit our prior
decision affirming the superior court's dismissal of her counterclaim and
also argues we should grant her all of her attorney's fees pursuant to A.R.S.
§ 12-349 (2019). We will not consider these arguments. Our prior decision
disposing of the mootness issue is final. See Sepo v. Case, 25 Ariz. App. 176,
180-81 (1975). Moreover, we see nothing in the record meriting a fees award
pursuant to § 12-349, even assuming Perkins had properly raised that issue
in the superior court. See City of Tempe v. Fleming, 168 Ariz. 454, 456 (App.

2 The superior court's second finding on remand resolved a dispute
relating to the timeliness of the Yards' challenge to the deeds Perkins
offered under § 12-1103(B).

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1991) ("[A]rguments not made at the trial court cannot be asserted on
appeal.").

CONCLUSION

¶12 For the reasons stated above, we affirm the superior court's
order denying Perkins's request for attorney's fees.

AMY M. WOOD • Clerk of the Court
FILED: JT

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