Ivey v. Captiva

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENNETH IVEY AND CYNTHIA IVEY, husband and wife; KENNETH
R. IVY and CYNTHIA C. IVEY as Trustees of The Ivey Family Living
Trust dated July 23, 2008, Plaintiffs/Appellants,

v.

CAPTIVA INVESTMENTS III, LLC, an Arizona limited liability company;
PHILLIP L. STEWART and KATHLEEN STEWART, Trustees of the
Phillip and Kathleen Stewart Revocable Trust, Defendants/Appellees.

No. 1 CA-CV 23-0636
FILED 07-11-2024

Appeal from the Superior Court in Yavapai County
Nos. P1300CV201801126, P1300CV201901051, P1300CV202000967
The Honorable John David Napper, Judge

AFFIRMED

COUNSEL

J. Jeffrey Coughlin, PLLC, Prescott
By J. Jeffrey Coughlin
Counsel for Plaintiffs/Appellants

Robert C. Kozak, PLLC, Prescott
By Robert C. Kozak
Co-Counsel for Defendant/Appellee Captiva Investments III, LLC
 IVEY, et al. v. CAPTIVA, et al.
Decision of the Court

¶3 Both lots are governed by a Declarations of Covenants,
Conditions and Restrictions (“CC&Rs”) and a recorded Plat. The CC&Rs
reserve a homeowner’s right to create “a common driveway located
wholly or partially upon an adjacent property.” Section 8.2 grants a
nonexclusive easement to owners using a common driveway “for free and
unrestricted pedestrian and vehicular access to [their] property.” Section
8.3 then explains that driveway easements “shall be maintained in suitable
condition for passenger car travel and shall have dust free, hard surfaces.”

¶4 As shown above, the southern stem of Lot 2 is crosshatched
to reflect a driveway easement for ingress and egress in favor of Lot 1 and
Lot 3. The recorded Plat directs the owners of Lot 1 and Lot 2 to jointly
maintain the driveway easement area. Before this lawsuit, that easement
was paved and bordered with gravel.

¶5 Captiva built a garage on Lot 1 facing the easement and
began construction of a paved driveway to connect the garage and
driveway easement. At one point, Captiva’s driveway crossed the gravel
strip, so some gravel and mesh had to be removed.

¶6 The Iveys saw the construction and objected to Captiva’s
installation of pavers. They also requested that Captiva replace the
rock and mesh. Captiva continued with construction. The Iveys sued
in superior court to block Captiva from building the driveway. The Iveys
first requested a temporary restraining order on the construction of the
driveway. After a hearing, that request was denied.

¶7 The Iveys raised seven claims in all against both Captiva and
the Stewarts, including for (1) conversion of the removed gravel; (2)
declaratory relief that the easement is only to be used for ingress and egress,
and not for parking; (3) injunctive relief ordering Captiva/the Stewarts to
remove the pavers, restore the gravel and stop parking on the easement; (4)
nuisance based on the pavers; (5) breach of good faith and fair dealing; (6)
breach of contract based on the pavers violating the CC&Rs; and (7) trespass
based on the pavers.

¶8 The case proceeded to a jury trial. By the end of the second
day, Iveys’ counsel had called all but one witness: Kenneth Ivey.
Kenneth Ivey appeared in court that day, but the superior court sent
him home for being sick. His symptoms worsened, and he believed he
had Covid. At that point, the superior court granted a mistrial based
on Kenneth Ivey’s illness.

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 IVEY, et al. v. CAPTIVA, et al.
Decision of the Court

¶9 To avoid subjecting Captiva and the Stewarts to a
second jury trial, the superior court severed the injunctive claim and
ordered Kenneth Ivey to testify at a bench trial once he recovered. That
way, the court could rule from the bench. The court also ordered the
Iveys to introduce all evidence related to the jury-eligible claims in his
testimony. After Kenneth Ivey’s testimony, both parties moved for
JMOL.

¶10 The superior court granted partial relief to both parties. It
sided with the Iveys on two of the seven claims, enjoining the Stewarts
from parking on the easement and ordering Captiva to pay for the
conversion of gravel. The court found for Captiva and the Stewarts on
all other claims and granted them attorney’s fees. The Iveys timely
appealed. We have jurisdiction. See A.R.S. § 12-2101(A)(1).

DISCUSSION

¶11 The Iveys argue the superior court erred (1) by proceeding as
a bench trial after declaring a mistrial in the jury trial, (2) by finding that the
easement was a driveway easement and granting judgment to Captiva and
the Stewarts, and (3) by awarding attorney fees to Captiva and the Stewarts.
We address each argument in turn.

I. Procedural Error

¶12 The Iveys argue the superior court erred when it declared a
mistrial in the jury trial and proceeded as a bench trial. We review a mistrial
ruling for an abuse of discretion, see Gray v. Gardiner, 92 Ariz. 208, 210
(1962), but we review de novo the application of court rules, Haroutunian v.
Valueoptions, Inc., 218 Ariz. 541, 549, ¶ 22 (App. 2008).

¶13 The Iveys contend the mistrial immediately voided the trial,
so the superior court had no authority to convert the jury trial into a bench
trial, and that they were denied due process because they were not fully
heard before the court entered JMOL.

¶14 We agree with the Iveys on both counts. First, the superior
court should not have continued the trial after declaring a mistrial. After
declaring a mistrial, “the right to a new trial necessarily follows, as a mistrial
is equivalent to no trial.” Gray, 92 Ariz. at 211 (emphasis added). Second,
Arizona Rule of Civil Procedure 50(a) requires that a party be “fully heard
on an issue during a jury trial” before JMOL is entered against that party.
Here, Kenneth Ivey was present but unable to testify at trial before the court
entered JMOL. His later testimony in the bench trial is not sufficient.

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 IVEY, et al. v. CAPTIVA, et al.
Decision of the Court

¶15 That being said, we cannot reverse based on a technical error
when no prejudice results from that error. See Ariz. Const. art. VI, § 27 (“No
cause shall be reversed for technical error in pleadings or proceedings when
upon the whole case it shall appear that substantial justice has been done.”);
see also Creach v. Angulo, 189 Ariz. 212, 214 (1997) (“To justify the reversal of
a case, there must not only be error, but the error must have been prejudicial
to the substantial rights of the party.”).

¶16 Neither error prejudiced the Iveys here. The court declared
the mistrial to accommodate Kenneth Ivey’s illness and ultimately decided
all jury-eligible claims on JMOL. Indeed, the Iveys’ attorney admitted as
much when questioned by the court:

THE COURT: So, I ask it again, if I had granted the Motion
for a Directed Verdict a couple of Tuesdays ago, the case
would never have gone to the jury; correct?

MR. COUGHLIN: Correct.

THE COURT: What’s the difference?

MR. COUGHLIN: There is none.

THE COURT: Okay. So then what’s the harm in proceeding
in the way that I am proposing?

MR. COUGHLIN: There is none.

¶17 Likewise, there was no prejudice when Kenneth Ivey did not
testify at the jury trial. He later testified to the bench. So although Kenneth
Ivey was not “fully heard” during the jury section of the trial, his case was
presented in full before the judge who ultimately ruled on the issues as a
matter of law. We will not reverse a case based on a technical error that
prejudiced no one. See Creach, 189 Ariz. at 214–15.

¶18 Finally, the Iveys are estopped from asserting harm on
appeal, even if there was prejudice. Judicial estoppel prevents a party from
taking an inconsistent position in successive actions. State v. Towery, 186
Ariz. 168, 182 (1996). The Iveys did not object to the proposed procedure at
trial, and they admitted there was no harm, so they are estopped from
taking a contrary position on appeal.

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 IVEY, et al. v. CAPTIVA, et al.
Decision of the Court

II. Substantive Error

¶19 The Iveys next argue that the superior court erred by granting
JMOL to the Stewarts and Captiva. We review that issue de novo, viewing
the facts and all reasonable inferences in the light most favorable to the
nonmoving party. Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, 130–31,
¶ 25 (App. 2008). JMOL “should be granted only if the facts presented in
support of a claim have so little probative value that reasonable people
could not find for the claimant.” Johnson v. Pankratz, 196 Ariz. 621, 623, ¶ 4
(App. 2000).

¶20 This appeal turns on two contracts: the CC&Rs and the
recorded Plat. See Powell v. Washburn, 211 Ariz. 553, 555, ¶ 8 (2006) (“A deed
containing a restrictive covenant that runs with the land is a contract.”) We
review the interpretation of contracts de novo as a question of law. Andrews
v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). Principles of contract interpretation
apply to easements. IB Prop. Holdings, LLC v. Rancho Del Mar Apartments
Ltd. P’ship, 228 Ariz. 61, 66, ¶ 16 (App. 2011). We construe a contract to
determine and enforce the parties’ intent. Taylor v. State Farm Mut. Auto.
Ins. Co., 175 Ariz. 148, 152 (1993). In doing so, we consider the plain
meaning of the words. United Cal. Bank v. Prudential Ins. Co. of Am., 140
Ariz. 238, 259 (App. 1983). We do not construe terms “in a way that renders
another meaningless.” ELM Retirement Center, LP v. Callaway, 226 Ariz. 287,
291, ¶ 18 (App. 2010). We read separate parts of the contract together when
possible to harmonize the overall document. Id.

¶21 The Iveys make two arguments. They contend the cross-
hatched section of the recorded Plat is not a driveway easement, and the
pavers are a “structure” in violation of the CC&Rs.

A. Driveway Easement

¶22 The Iveys first argue the crosshatch is not a driveway
easement because Lot 1 is not landlocked. They offer no authority for the
argument, however, that driveway easements are permissible only if one
plot is landlocked. Nothing in the CC&Rs or recorded Plat supports this
argument. The Iveys do not even account for the other crosshatches on the
recorded Plat, which create driveway easements for lots that are not
landlocked (Lots 6 and 7).

¶23 The Iveys next argue the crosshatches cannot be a driveway
easement because they do not extend onto Lot 1. They offer no authority
for this argument. Moreover, section 8.2 of the CC&Rs envisions and
describes a driveway easement located entirely on one property.

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 IVEY, et al. v. CAPTIVA, et al.
Decision of the Court

¶24 The recorded Plat and text of the CC&Rs show that the Iveys’
easement is a driveway easement. The Plat even labels the cross-hatched
section as an easement for ingress and egress in favor of Lot 2. And the
cross-hatched section matches section 8.2’s definition of a common
driveway, so we interpret the cross-hatched section as a common
driveway.

B. Pavers

¶25 The Iveys next argue that Captiva built a “structure” in
violation of the CC&Rs when Captiva installed pavers on the driveway
easement. We disagree. Section 4.19 prohibits the excavation and
placement of a “structure” on an easement.

¶26 The pavers are not a “structure” under section 4.19. Pavers
do not resemble any “Permanent Structure[s]” identified in section 4.13—
“garage, trailer, mobile home, motor home, motor vehicle, or any
temporary structure of any nature may be used temporarily or permanently
as a residence on any Lot.” These examples are concerned with residential
structures. Each structure extends above the ground; pavers lie flat on the
ground’s surface. And the CC&Rs’ plain terms authorize pavers because
they represent a “dust free, hard surface[].”

III. Attorney’s fees

¶27 The Iveys contend the superior court erred in awarding
attorney’s fees to the Stewarts and Captiva under A.R.S. § 12-341.01(A).
Attorney’s fees are properly awarded under § 12-341.01(A) to successful
parties in claims arising out of a contract. Because no one disputes this
claim arose out of a contract, the superior court did not err in awarding fees
to the Stewarts and Captiva.

¶28 The Iveys requested fees and costs on appeal in a
supplemental brief that contained no legal authorities. Captiva and the
Stewarts moved to strike the supplemental brief as improper. We grant the
motions to strike because an award of costs and fees must be requested in
the opening brief, see ARCAP 21(a)(1), and supplemental citations are not
for new arguments, see ARCAP 17.

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 IVEY, et al. v. CAPTIVA, et al.
Decision of the Court

CONCLUSION

¶29 We affirm.

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

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