Flaum v. Hoernig

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JAMES N. FLAUM, TRUSTEE OF THE JAMES N. FLAUM REVOCABLE
TRUST, Plaintiffs/Appellants/Cross-Appellees,

v.

KURT R. HOERNIG and BELINDA G. HOERNIG, husband and wife,
Defendants/Appellees/Cross-Appellants.

No. 1 CA-CV 23-0573
FILED 07-30-2024

Appeal from the Superior Court in Yavapai County
No. P1300CV202000154
The Honorable John David Napper, Judge

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Robert A. Miller PC, Prescott
By Robert A. Miller
Counsel for Plaintiffs/Appellants/Cross-Appellees

Law Office of Michael Warzynski PLLC, Phoenix
By Michael Warzynski
Counsel for Defendants/Appellees/Cross-Appellants
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Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge James B. Morse Jr. joined.

C A T L E T T, Judge:

¶1 The superior court granted James N. Flaum, as trustee of the
James N. Flaum Revocable Trust (“the Trust”), a prescriptive easement for
pedestrian, recreational use over a short path on adjacent property owned
by Kurt and Belinda Hoernig (“the Hoernigs”). The Trust challenges that
judgment in two ways. It first contends the prescriptive easement should
have included vehicular use. It also contends the court failed to declare its
rights under two preexisting express easements that, when combined, grant
vehicular access across the entire Hoernig property to a nearby public road.
The Hoernigs cross-appeal, challenging the attorney fees award to the
Trust, while the Trust contends the court applied an incorrect interest rate
to that award. We affirm the grant of a prescriptive easement limited to
pedestrian, recreational use but vacate the attorney fees award and remand
for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The Trust and the Hoernigs own adjacent parcels in Yavapai
County. The Trust owns parcels 104-06-020Q and 104-06-020R (“020Q” and
“020R,” respectively). The Hoernigs own parcel 104-06-020V (“020V”),
which the parties agree was formed in 2000 when the Yavapai County
Assessor combined former parcels 104-06-020T (“020T”) and 038. The
image1 below shows the parcels’ locations relative to one another and to Big
Bug Mesa Road, the road both sides use to access their properties:

1 Though the image depicts 020V and 038 as separate parcels, the
parties agree that current parcel 020V includes 038.

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¶3 Two relevant easements exist over the Hoernigs’ property. In
1993, the then-owners of parcel 020T granted an easement “20 feet in width,
over, under and across present roadways as they now exist” to benefit
parcel 020Q (the “Cochran/Fuzzell Easement”). Seven years later, the
Hoernigs granted an easement over parcel 038 to the prior owners of parcel
020Q (the “Gustafson Easement”), in which they agreed that “the existing
Road from Big Bug Mesa Road . . . is for the use and enjoyment of any
owners of 20Q Parcel[.]” The image below shows the roadways and paths
that existed on parcel 020T in 1996, with the existing roadway on parcel 038
represented to the right:

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The parties agree the Cochran/Fuzzell Easement applies to the roadway
crossing parcel 020T and the top branch depicted above. The Flaums and
their guests use that roadway to access the Trust’s cabin on parcel 020Q.

¶4 The bottom branch, which the parties call the Spur, reaches a
different point on parcel 020Q near a capped wellhead. Ms. Flaum testified
that the Spur was not accessible by passenger vehicle beyond the wellhead.
The parties originally disputed whether the Spur existed in 1993 and,
therefore, whether it was included in the Cochran/Fuzzell Easement.

¶5 The Trust sued the Hoernigs in 2020 seeking a declaration of
ingress and egress rights over the roadway, the top branch, and the Spur
via the Gustafson Easement and the Cochran/Fuzzell Easement. The Trust
also alleged it had established a prescriptive easement “for ingress and
egress over, across and on the [Gustafson] Easement, the Cochran/Fuzzell
Easement, and the [Spur]” to access parcels 020Q and 020R.

¶6 The superior court held a bench trial, at which the parties
agreed the only issue was use of the Spur. At the close of the Trust’s case,
the superior court granted judgment as a matter of law in part, finding the
Spur was not included in the Cochran/Fuzzell Easement. Following trial,

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the court entered findings of fact and conclusions of law and determined
the Trust had established a prescriptive easement over the Spur for
pedestrian, recreational purposes.

¶7 The Trust moved for reconsideration, contending it had
shown that the Flaums’ use of the Spur “included vehicular traffic in
addition to pedestrian traffic.” The court denied that motion, concluding
that “the evidence produced about vehicle usage was that it is sporadic and
rare, thereby failing to establish a prescriptive easement for vehicle usage.”
It then entered final judgment granting the Trust “a pedestrian only ingress
and egress easement” over the Spur. The court also awarded the Trust
$73,000 in attorney fees and $2,525.16 in taxable costs with 4.25% annual
interest.

¶8 The Trust appealed, and the Hoernigs cross-appealed
challenging the fee award. We have jurisdiction over the appeal and cross-
appeal. See A.R.S. § 12-2101(A)(1).

DISCUSSION

¶9 The Trust contends the superior court erred in refusing to
include vehicular access in the prescriptive easement over the Spur. We
defer to the court’s factual findings unless they are clearly erroneous, but
we review its legal conclusions de novo. Town of Marana v. Pima County, 230
Ariz. 142, 152 ¶ 46 (App. 2012). A factual finding is not clearly erroneous if
it is supported by substantial evidence even if there is substantial
conflicting evidence. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51–52 ¶ 11
(App. 2009). We may draw our own legal conclusions from facts found or
inferred in the judgment. FL Receivables Trust 2002-A v. Ariz. Mills, L.L.C.,
230 Ariz. 160, 166 ¶ 24 (App. 2012); Matter of Est. of Musgrove, 144 Ariz. 168,
170 (App. 1985).

I. Prescriptive Easement

¶10 A prescriptive easement grants a nonexclusive right of
continued use. Paxson v. Glovitz, 203 Ariz. 63, 68 ¶ 31 (App. 2002). A party
claiming a prescriptive easement must show (1) the land in question has
actually and visibly been used for a specific purpose for ten years; (2) the
use began and continued under a claim of right; and (3) the use was hostile
to the true owner’s title. Ammer v. Ariz. Water Co., 169 Ariz. 205, 208 (App.
1991); see also Beck v. Neville, 256 Ariz. 361, ___ ¶ 45 (2024) (for purposes of
a prescriptive easement, “it is only the use of the land which must be shown
to be open, notorious, and adverse.”) (quoting Etz v. Mamerow, 72 Ariz. 228,
231 (1951)).

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¶11 The scope of a prescriptive easement is determined by the use
through which it is acquired. Stamatis v. Johnson, 71 Ariz. 134, 138 (1950).
Use need not be continuous or frequent; the claimant need only show that
he or she uses the land “as would an ordinary owner of the same type of
land.” Kay v. Biggs, 13 Ariz. App. 172, 175 (1970). “Seasonal uses,
intermittent uses, and changing uses all may meet the continuity
requirement so long as they are open or notorious.” Restatement (Third) of
Property (Servitudes) § 2.17, cmt. i (2000).2

¶12 The Trust contends it established that vehicular uses of the
Spur “were as regular and continuous as any owner . . . would have made
of it for nearly two decades,” thereby entitling the Trust to an easement
permitting general vehicular ingress and egress over the Spur. The record,
on balance, does not support this contention. Only two witnesses testified
that they used the Spur for vehicular use. Richard Grover, who did tree
and landscaping work for the Flaums starting in 2006, testified that he
would back his truck onto the Spur to perform work on parcel 020R. How
often he did this is unclear: he testified he did “ongoing property
maintenance” as needed, which included “the weeds need[ing] to be
cleaned up at least every other year if not every year.”

¶13 Thomas Keller, who had maintained the Trust’s septic system
since 2002, testified that he used either the Spur or the roadway to the
Trust’s cabin to service the septic system, “whichever suited [his] purposes
at that time.” He could only estimate that he used the Spur for
approximately half of his service visits, which occurred two or three times
each year. He also conceded he never drove to the end of the Spur. The
Trust contends “the septic system on . . . 020Q can only be accessed by
vehicles via the Spur and has been accessed as such since 2002,” but Keller’s
testimony suggests otherwise.

¶14 All other witnesses testified they primarily used the Spur
either on foot or for parking vehicles. For example, Joanne Flaum testified
the Flaums would occasionally park cars on the Spur when they had
visitors. She also testified they used the Spur for “walking [and] hiking”
and would “drive [their] ATVs down” the Spur from time to time. She also
testified that the Trust filled ruts on the Spur in 2017 and 2018, but those

2 We have applied the Restatement (Third) of Property: Servitudes in
resolving prescriptive easement claims. See Paxson, 203 Ariz. at 67 ¶ 21.

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repairs were necessitated by “storms . . . and the snow,” not frequent
vehicular use.

¶15 Jim Flaum testified that he would walk the Spur to play with
the Flaums’ dog, look for dead trees, take his grandson to the creek on the
Trust’s property, or check the capped wellhead. Katherine Wait, who
resided at the Trust’s cabin from 2014 to 2017, similarly testified that she
used the Spur to walk the Flaums’ dogs or visit the creek with her
grandchildren. She also testified, consistent with Joanne’s testimony, that
the Spur was occasionally used for “overflow parking.” The Flaums’
daughter, Kendra Pieratt, testified that she and her family used the Spur
primarily for hiking, sledding, and parking. She also testified that her
family “rode around” on quads in the area, including visits to the creek.
But when asked whether they did “anything significant” near the split, she
said no and testified that they always walked one way or the other.

¶16 In sum, the superior court heard consistent testimony
describing frequent pedestrian use of the Spur by the Flaums and their
family but only heard testimony regarding occasional vehicular use by two
contractors. This occasional vehicular use to service the Trust’s property
was insufficient to establish a prescriptive easement for general vehicular
ingress and egress. The court did not abuse its discretion by limiting the
prescriptive easement to pedestrian, recreational use. See Inch v. McPherson, 176 Ariz. 132, 136 (App. 1992) (“Those using the land of another for the
prescriptive period may acquire the right to continue such use, but do not
acquire the right to make other uses of it.”).

II. Access to Parcel 020R

¶17 The Trust also contends the superior court’s judgment “did
not include access over . . . [parcel] 038 for the benefit of . . . [parcel] 020R,”
which it says leaves it without legal access to parcel 020R. The Trust’s
counsel represented at the start of trial, however, that the parties’ only
remaining dispute was about access to the Spur:

If you read the pleadings, then you’ll know this case is about
access of two properties that are adjoining each other, and
[the Trust’s] property is only accessible over the Hoernigs’
property . . . . There are some easements established over the
years that provide access to those properties, and my
understanding is that this Court’s only dispute—I think I’m
correct about this—is over what we have been calling the
spur.

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In response, the Hoernigs’ counsel conceded that the Trust “ha[s] a right to
travel across [parcel 020V on] what’s called the Gustafson easement and
across the Cochran/Fuzzell easement to their property[.]”

¶18 Although the Trust argued in its written closing statement
that “there is . . . a dispute as to whether [it] has the right to use the road on
. . . [parcel] 038” to access parcel 020R, it cited no trial evidence to show the
Hoernigs ever challenged its rights under the Gustafson Easement. The
Trust also presented no evidence suggesting the Gustafson Easement,
which states that “the existing Road from Big Bug Mesa Road . . . is for the
use and enjoyment of any owners of 20Q Parcel,” is insufficient given (1)
the Trust owns parcel 020Q and 020R and (2) parcels 038 and 020R do not
touch. The court did not err by only resolving access to the Spur in its final
judgment.

III. Attorney Fees

¶19 The Hoernigs raise two challenges to the Trust’s attorney fees
award. First, the Hoernigs contend the Trust cannot recover attorney fees
under A.R.S. § 12-1103(B). Second, the Hoernigs argue that if the court was
permitted to award fees under A.R.S. § 12-1103(B), the court should have
considered various factors in granting the award, including the Trust’s
success, and reduced the amount awarded accordingly. We conclude the
superior court was permitted to award fees under § 12-1103(B), but it is
unclear from the record whether the court was aware it could reduce the
requested fee amount using the relevant factors.

A. Application of A.R.S. § 12-1103(B)

¶20 To recover fees under § 12-1103(B), a quiet title claimant must
“request[] the person . . . holding an apparent adverse interest or right
therein . . . execute a quit claim deed thereto, and . . . tender[] to him five
dollars for execution and delivery of the deed” at least twenty days before
filing suit. The Hoernigs do not dispute the Trust sent them quitclaim
deeds in compliance with § 12-1103(B). Still, they contend the Trust cannot
recover attorney fees because “[t]his matter never involved an action that
could be resolved by use of a quit claim deed permissible under A.R.S. § 33-
402[.]”

¶21 We first note the Hoernigs stipulated before trial that § 12-
1103(B) “allow[s] for an award of attorney’s fees if the terms therein were
satisfied.” In any event, § 33-402 does not control; it merely provides form
language for a quitclaim deed in which the grantor would relinquish “all .
. . interest” in the property at issue. A.R.S. § 33-402(1). Section 12-1103(B)

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does not require a defendant to disclaim all interest in a property to avoid
a potential fee award. It instead provides:

If a party, twenty days prior to bringing the action to quiet
title to real property, requests the person, other than the state,
holding an apparent adverse interest or right therein to
execute a quit claim deed thereto, and also tenders to him five
dollars for execution and delivery of the deed, and if such
person refuses or neglects to comply, the filing of a disclaimer
of interest or right shall not avoid the costs and the court may
allow plaintiff, in addition to the ordinary costs, an attorney’s
fee to be fixed by the court.

(Emphasis added). Thus, to avoid a fee award, a defendant need only
disclaim whatever interests or rights it holds that are adverse to the
plaintiff’s claim.

¶22 Moreover, we have previously awarded attorney fees under
§ 12-1103(B) to parties who successfully quieted title to a prescriptive
easement. See Lee v. Apel, 2014 WL 5819818, at *1, *5 ¶¶ 5, 21 (Ariz. App.
Nov. 10, 2014) (mem. decision) (awarding § 12-1103(B) fees on a claim
quieting title to a prescriptive easement); Potters Clay Realty, L.L.C. v.
Kummer, 2014 WL 1832876, at *4–*5 ¶¶ 15–22 (Ariz. App. May 6, 2014)
(mem. decision) (stating that § 12-1103(B) applies to a quiet title action
addressing a prescriptive easement but denying fees based on
noncompliance with the statutory prerequisites). The Trust therefore was
eligible to recover some amount of attorney fees under § 12-1103(B).

B. Amount of Award

¶23 The Hoernigs next argue that even if the Trust was eligible to
recover attorney fees under § 12-1103(B), the question of the proper amount
of fees should be remanded “for consideration of an appropriate amount
reflecting what the [Trust] actually obtained.” We agree.

¶24 We review an award of attorney fees for an abuse of
discretion. Cook v. Grebe, 245 Ariz. 367, 370 ¶ 11 (App. 2018). “The court
abuses its discretion if the reason for the award is ‘legally incorrect.’” In re
Est. of Ganoni, 238 Ariz. 144, 147 ¶ 18 (App. 2015). An attorney fees award
is not mandated but “[i]t is within the trial court’s discretion to determine
whether to award attorney’s fees to a party who has prevailed in a quiet
title action and otherwise complied with the provisions of section 12–
1103(B).” Scottsdale Mem’l Health Sys., Inc. v. Clark, 164 Ariz. 211, 215 (App.
1990); see also Fields v. Oates, 230 Ariz. 411, 415 ¶ 13 (App. 2012)

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(“[R]esolution of an application for attorneys’ fees is a discretionary
determination, not a merely ministerial act.”). Factors for the superior court
to consider in setting an award under § 12-1103(B) include:

(1) the merits of the claim or defense presented by the
unsuccessful party;

(2) whether the litigation could have been avoided or settled
and the successful party’s efforts were completely
superfluous in achieving the results;

(3) whether assessing fees against the unsuccessful party
would cause an extreme hardship;

(4) whether the successful party did not prevail with respect
to all the relief sought;

(5) the novelty of the legal question presented;

(6) whether such claim or defense had previously been
adjudicated in this jurisdiction; and

(7) whether the award would discourage other parties with
tenable claims or defenses from litigating or defending
legitimate . . . issues for fear of incurring liability for
substantial amounts of attorney’s fees.

Scottsdale Mem’l Health Sys., Inc., 164 Ariz. at 215–16 (citing Associated Indem.
Corp. v. Warner, 143 Ariz. 585, 589 (1985)) (“[T]he trial 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.”).

¶25 In its application for attorney fees, the Trust requested
$73,260. The superior court awarded $73,000—virtually all the requested
amount—but provided no explanation for doing so. The Hoernigs contend
the Trust obtained far less at trial than it demanded in the quitclaim deeds
it tendered, which they argue should have been considered in setting the
amount of attorney fees. This is true. The Trust’s proffered quitclaim
deeds, if executed, would have granted it a perpetual, non-exclusive 14-foot
ingress, egress, and public utility easement over the Spur. Instead, the Trust
obtained only a prescriptive easement for pedestrian, recreational use.

¶26 The Hoernigs correctly cite Jones v. Burk, 164 Ariz. 595 (App.
1990), for the proposition that the superior court can reduce a § 12-1103(B)

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fee award if the plaintiff only partially succeeds. Indeed, it is commonplace
for courts to reduce a fee award if a party obtains only partial success. See,
e.g., Jones, 164 Ariz. at 597 (affirming a significantly reduced fee amount
after partial success); Cook, 245 Ariz. at 371 ¶ 10–15 (affirming an
approximately 40% fee reduction after a partial success); see also Schweiger
v. China Doll Restaurant, Inc., 138 Ariz. 183, 189 (App. 1983) (recognizing that
in certain circumstances “[w]here a party has achieved only partial or
limited success . . . it would be unreasonable to award compensation for all
hours expended, including time spent on the unsuccessful issues or
claims.”).

¶27 Here, the superior court did not indicate why it concluded the
Trust was entitled to the full amount of its requested fees or whether the
court was exercising its discretion in making such an award. Thus, it is
unclear whether the court believed it was required to grant the Trust all its
requested fees, which would be legally incorrect, or if it concluded the Trust
was entitled to its full fee request for another reason. See Freeport Minerals
Corp. v. Corbell, 2017 WL 3623257, at *5 (Ariz. App. Aug. 23, 2017) (mem.
decision) (affirming a fee award where “the trial court did not ‘presume[]
an entitlement of attorney fees’ but rather noted in its ruling that it ‘ha[d]
the discretion to award attorneys’ fees as well as the discretion to fix the
amount.’”); see also Associated Indem. Corp., 143 Ariz. at 589 (remanding the
denial of a fee award for the court to consider the relevant factors when the
superior court failed to give a reason for its denial). Consequently, we
vacate the fee award and remand for the superior court to reconsider the
amount of fees awarded, if any, considering the above factors, including the
Trust’s limited success and any efforts the Hoernigs made to settle this
litigation.

IV. Interest Rate

¶28 The Trust also argues that the superior court erred by
awarding only 4.25% annual interest. Unless specifically provided for by
law or by contract, interest on any judgment other than a judgment on
medical debt is the lesser of (1) ten percent annually or (2) one percent plus
the prime rate as published by the board of governors of the federal reserve
system. A.R.S. § 44-1201(B).The superior court entered its final judgment
on July 14, 2023. The federal prime rate on that date was 8.25%.

¶29 The Hoernigs do not address this issue in their answering
brief. We may consider this a confession of error. In re 1996 Nissan Sentra,
201 Ariz. 114, 117 ¶ 7 (App. 2001). If, on remand, the superior court again
concludes the Trust is entitled to attorney fees, the court should also enter

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a corrected annual interest rate of the lesser of either (1) ten percent
annually or (2) one percent plus the prime rate as published by the board
of governors of the federal reserve system. A.R.S. § 44-1201(B).

V. Attorney Fees on Appeal

¶30 The Trust requests an additional award of attorney fees on
appeal under § 12-1103(B). The Trust failed to expand its prescriptive
easement rights beyond those the superior court granted. Therefore, in our
discretion, we decline to award attorney fees on appeal. See Cook, 245 Ariz.
at 369 ¶ 8. The Hoernigs are, on balance, the successful parties in this appeal
and may recover their taxable costs upon compliance with Arizona Rule of
Civil Appellate Procedure 21.

CONCLUSION

¶31 We vacate the attorney fees award and interest provision of
the judgment and remand for further proceedings consistent with this
decision. We affirm the judgment in all other respects.

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

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