Oursland v. Hon mackey/aps

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JEFFREY ALAN OURSLAND, an unmarried man; SECURITY LENDERS,
INC., an Arizona corporation

And

LAWYERS TITLE OF ARIZONA, INC., an Arizona corporation, formerly
known as LandAmerica Title Agency, as Trustee under its Trust No.
10,002; SIEGEL ARIZONA PROPERTIES, L.L.C., a Utah limited liability
company; COYOTE SPRINGS, L.L.C., an Arizona limited liability
company, Petitioners,

v.

THE HONORABLE DAVID MACKEY, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of YAVAPAI,
Respondent Judge,

ARIZONA PUBLIC SERVICE COMPANY, an Arizona public service
corporation, Real Party in Interest.

No. 1 CA-SA 18-0100
FILED 6-21-2018

Appeal from the Superior Court in Yavapai County
No. P1300CV200901923; P1300CV200920124
The Honorable David L. Mackey, Judge

JURISDICTION ACCEPTED; RELIEF DENIED
 COUNSEL

Zeitlin & Zeitlin, P.C., Phoenix
By Dale S. Zeitlin
Counsel for Petitioners

Berry Riddell, LLC, Scottsdale
By Martin A. Aronson, Jeffrey D. Gross, Michael W. Zimmerman
Co-Counsel for Real Party in Interest

MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Kent E. Cattani joined.

B E E N E, Judge:

¶1 Jeffrey Alan Oursland; Security Lenders, Inc.; Lawyers Title
of Arizona, Inc.; Siegel Arizona Properties, L.L.C.; and Coyote Springs,
L.L.C. (collectively, “Oursland”) seek special action relief from the superior
court’s order denying a request for attorneys’ fees and appraisal costs
following the court’s dismissal without prejudice of Real Party in Interest
Arizona Public Service Company’s (“APS”) action. Because substantial
evidence supports the court’s order, we accept jurisdiction but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In December 2009, APS filed an eminent domain action
seeking 30-foot right-of-way easements (“Easements”) over property
owned by Oursland in Yavapai County to install and operate electrical
power and transmission lines.1 At that time, APS also recorded a lis pendens
on the subject properties.

1 APS filed two actions in December 2009; one against Oursland and
Security Lenders, Inc. and the other against Lawyers Title of Arizona, Inc.;
Siegel Arizona Properties, L.L.C.; and Coyote Springs, L.L.C. The cases

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¶3 Oursland moved for summary judgment, arguing APS failed
to produce any evidence showing it needed the Easements within a
reasonable time. In March 2012, the superior court (Judge Kenton Jones)
granted Oursland’s motion, finding that APS’s action was arbitrary and
capricious because APS (1) could not state with any degree of certainty
when it would build on the Easements, (2) stated only that it may use the
Easements in 15 years, and (3) provided no evidence when future
residential or commercial needs would require this power line.

¶4 Shortly thereafter, APS moved to reconsider and supplied
new information to the court. In pertinent part, APS provided the Regional
Transportation Plan Update from Yavapai County planning authorities
(“Update”). The Update, which issued in June 2012 after the court’s grant
of summary judgment to Oursland, concluded that new construction of a
major four-lane highway would bring significant commercial and
residential development to the area and increased population would
increase demand for electricity. APS concluded it expected to build the
power line on the Easements within the next 10 to 15 years.

¶5 After briefing and oral argument, in September 2012, the
superior court (Judge Jones) granted APS’s motion for reconsideration and
reversed its previous grant of summary judgment to Oursland. Noting that
the Update did not issue until three months after its March 2012 summary
judgment ruling, the court found that based upon the new information,
particularly the Update,

It is not unreasonable to assume that if construction of the
boulevard is going to be complete by 2030 (18 years from
now), as reflected within the above referenced RTP Update,
that creation of the power line would need to occur within the
next fifteen (15) years, as [APS] now asserts.

****

[T]he fifteen (15) years now having been articulated based
upon objective evidence of the need to coincide the provision
of electrical utilities with the development of the area . . . is
not arbitrary and capricious[.]

¶6 Following the court’s September 2012 ruling, no action was
taken in the case for more than three years. Apparently, no deadlines were

were consolidated in June 2017; therefore, we address the matter as
consolidated.

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established and, despite that the matter was not placed on the inactive
calendar, the parties and the court failed to move it forward. Then, in May
2016, Oursland moved for involuntary dismissal under Arizona Rule of
Civil Procedure (“Rule”) 41(b) for failure to prosecute and requested
attorneys’ fees under Arizona Revised Statutes (“A.R.S.”) section 12-
1129(B) and Arizona common law, claiming that APS acted in bad faith.
The following month, Oursland moved for summary judgment, to set aside
the court’s September 2012 order, and for Rule 11 sanctions.

¶7 After briefing and oral argument, the superior court, Judge
David Mackey now presiding, granted involuntary dismissal under Rule
41(b) and took Oursland’s request for attorneys’ fees under advisement.
Without argument from the parties, the court also denied Oursland’s
motions for summary judgment, to set aside, and for sanctions.

¶8 The next month, the superior court denied Oursland’s request
for attorneys’ fees. The court found that (1) the dismissal under Rule 41(b)
for failure to diligently prosecute was not an adjudication on the merits, the
court’s own statements throughout the hearing reflected the lack of a ruling
on the merits, and the court refused to revisit the prior ruling of Judge Jones
in declining to find bad faith or lack of a legal basis for APS to file the
condemnation action; (2) under A.R.S. § 12-1129(B), Oursland was not
entitled to attorneys’ fees because APS had not abandoned the proceeding
to condemn the Easements on its own motion, and there was no final
judgment that APS cannot acquire the Easements by condemnation because
there was no ruling on the merits; (3) Oursland was not entitled to
attorneys’ fees under State ex rel. Morrison v. Helm, 86 Ariz. 275 (1959), and
Whitestone v. Town of South Tucson, 2 Ariz. App. 494 (1966), because A.R.S.
§ 12-1129(B) superseded those cases, and there was no finding APS acted in
bad faith; and (4) while APS was primarily responsible for timely
prosecuting the case, Oursland was also responsible for assisting the court
in moving the case forward but for tactical reasons did not. Following
dismissal, APS released the lis pendens on the subject properties.

¶9 Oursland moved for reconsideration and for attorneys’ fees
under A.R.S. § 12-349, arguing APS brought and maintained the action
without substantial justification and then continued it solely to delay and
harass. While those motions were pending in the superior court, in October
2016, Oursland filed his first notice of appeal here, and the superior court
subsequently denied both motions for lack of jurisdiction given Oursland’s
appeal.

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¶10 In December 2016, we dismissed Oursland’s appeal for lack
of jurisdiction because the superior court’s minute entry was unsigned and
there was no final judgment. In June 2017, the superior court issued its final
order of dismissal without prejudice, stating again that it was not an
adjudication on the merits, and ordering each party to bear its own
attorneys’ fees but requiring APS to pay Oursland’s taxable costs.

¶11 Oursland filed his second appeal and, the next month, we
again dismissed for lack of jurisdiction because the dismissal was without
prejudice. We denied Oursland’s motion for reconsideration as well as his
request to treat the appeal as a special action. Oursland’s petition for
review with the Arizona Supreme Court was denied. Oursland now seeks
special action review.

JURISDICTION

¶12 Although we previously denied Oursland’s request to treat
his second appeal as a special action, we stated that our denial did “not
constitute an expression of [our] opinion about whether jurisdiction will be
accepted on a petition for special action review.” Accepting special action
jurisdiction is appropriate here because we do not have appellate
jurisdiction to review an attorneys’ fee award (or denial of such award) in
conjunction with the dismissal of an action without prejudice. See Kool
Radiators, Inc. v. Evans, 229 Ariz. 532, 534-35, ¶¶ 8-11 (App. 2012). Thus,
Oursland has no equally plain, speedy, and adequate remedy by appeal.
Ariz. R.P. Spec. Act. 1(a).

DISCUSSION

¶13 Oursland argues that the superior court erred in denying his
request for attorneys’ fees and appraisal costs. Specifically, Oursland
asserts he is entitled to fees and costs because APS (1) brought the
condemnation action and maintained it in bad faith, (2) does not have the
right to acquire the Easements, (3) abandoned the action by failing to
diligently prosecute, and (4) brought and maintained the action without
substantial justification and then continued it solely to delay and harass.

¶14 “We defer to a trial court’s factual findings, so long as they are
supported by substantial evidence, but we review any issues of law de
novo.” Sw. Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, 442, ¶ 12
(App. 2001). “[E]ven where conflicting evidence exists, this court will not
reweigh the evidence and we affirm the trial court’s ruling [if] substantial
evidence supports it.” Sholes v. Fernando, 228 Ariz. 455, 460, ¶ 15 (App. 2011)
(citation and internal quotations omitted).

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I. No Finding APS Acted in Bad Faith

¶15 Oursland argues APS acted in bad faith because “APS simply
could not satisfy a constitutional right to take the properties because it did
not need them. APS has admitted time after time, that it does not know
when or if it will ever need these properties.”

¶16 Public service entities have the right to take private property
for public use, such as to install and operate power lines. A.R.S. § 12-
1111(10). The taking must, however, be “necessary to such use.” A.R.S. §
12-1112(2). As a condemning authority, APS “may legitimately consider
future needs in determining what property and the amount of property is
necessary for use,” City of Phoenix v. McCullough, 24 Ariz. App. 109, 114
(App. 1975), but must act in good faith “in instituting and in abandoning
[condemnation] proceedings,” Helm, 86 Ariz. at 282. A condemnor acts “in
bad faith by arbitrarily initiating condemnation proceedings for land
unnecessary for public use.” City of Sedona v. Devol, 196 Ariz. 178, 183 (App.
1999).

¶17 The record shows that APS initiated the condemnation
proceeding in December 2009. By that time, APS had already acquired
easements for 24 of the 27 acres it needed for the subject power line from
Granite Dells Ranch Holdings for approximately $400,000. In its September
2012 ruling, the superior court found that objective evidence, particularly
the Update, showed it was reasonable that APS would need the Easements
to construct the power line within 15 years to coincide with the construction
of a new highway and development in the area. The court found APS’s
taking was not arbitrary and capricious because, based upon future needs
for electrical utilities, it was necessary for public use. See McCullough, 24
Ariz. App. at 114. Thus, the court found APS had a legal basis in instituting
the condemnation action and did not act in bad faith. See Devol, 196 Ariz.
at 183. Oursland’s argument that APS did not know if or when it would
ever need the Easements is without merit.

¶18 In its October 2016 ruling, the court specifically declined to
revisit its prior rulings — that APS did not act in bad faith or lacked a legal
basis for filing the condemnation action. Accordingly, the court determined
that APS’s proposed taking of the Easements was both reasonable and
necessary for public use. Again, the record reflects that a new major four-
lane highway may be constructed by 2030, bringing significant
development and increased population to the area, thereby requiring APS
to build the power line within 10 to 15 years to meet increased demand for
electricity. Substantial evidence supports the court’s ruling and we find no

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error. See Sholes, 228 Ariz. at 460, ¶ 15; see also City of Phoenix v. Superior Ct., 137 Ariz. 409, 412 (1983) (“[A] condemnor’s determination of necessity
should not be disturbed on judicial review in the absence of fraud or
arbitrary or capricious conduct.”) (citation omitted).

¶19 Furthermore, while we agree with Oursland that Helm and
Whitestone are still good law, they do not support his position that he is
entitled to attorneys’ fees and costs. Here, there was no finding of bad faith.
And, both Helm and Whitestone are distinguishable because they involve
post-trial dismissals initiated by the condemnor. See Helm, 86 Ariz. at 282-
83 (remanding to trial court with direction to take evidence and award fees
to property owner after condemnor requested to abandon case pending
appeal and after trial court approved taking and decided value of just
compensation condemnor deemed excessive); Whitestone, 2 Ariz. App. at
496-97 (remanding to trial court with direction to determine whether
condemnor acted in good faith and award fees to property owner after
condemnor requested to abandon case following jury award of just
compensation condemnor deemed excessive).

II. No Finding that APS Cannot Acquire Easements or that APS Filed
an Abandonment Motion

¶20 The court must award the property owner subject to a
condemnation action reasonable attorneys’ fees and appraisal costs,
“actually incurred2 because of the condemnation proceeding” if:

1. The final judgment is that the plaintiff cannot acquire the
real property by condemnation[; or]

2. The proceeding is abandoned on a motion by the plaintiff.

A.R.S. § 12-1129(B).

2 APS argues that no evidence showed Oursland “actually incurred”
attorneys’ fees because Oursland had a contingency fee agreement with his
counsel and any amendment to the agreement imposing an hourly fee
“appears to have been backdated.” Because we find Oursland is not
entitled to fees under Arizona Revised Statutes section 12-1129(B), we do
not address APS’s argument.

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A. No Ruling on Merits

¶21 Oursland argues that the court should have found that APS
does not have the right to acquire the Easements because APS “would not
need the properties for at least another decade or more. And even that was
no more than pure speculation.”

¶22 A condemning authority may “take not only such property as
is necessary to satisfy present needs, but may acquire such additional
property as will be put to public use within a reasonable time thereafter. In
determining what constitutes a reasonable time, the surrounding
circumstances must be considered.” McCullough, 24 Ariz. App. at 115.

¶23 In its September 2012 order reversing its previous grant of
summary judgment to Oursland, the superior court found that

It is not unreasonable to assume that if construction of the
boulevard is going to be complete by 2030 (18 years from
now), as reflected within the above referenced RTP Update,
that creation of the power line would need to occur within the
next fifteen (15) years, as [APS] now asserts. It is also not
unreasonable to assume that if that nine (9) mile stretch of
road is going to be completed by 2013, and that initial
construction is going to begin at the southern end of the
planned roadway; that portion of the roadway being within
the service area requiring construction of the power line,
acquisition of the property and construction of the power line
will be required prior to 2030, and that construction may,
therefore, be required in less than 15 years.

****

[T]he fifteen (15) years now having been articulated based
upon objective evidence of the need to coincide the provision
of electrical utilities with the development of the area . . . is
not arbitrary and capricious[.]

¶24 The superior court considered the surrounding circumstances
(construction of a roadway requiring construction of the power line in
advance) to determine that APS would need to acquire and use the
Easements within a reasonable time (less than 15 years) to build the power
line at issue. Contrary to Oursland’s contention, APS’s 15-year timeframe
was not speculative as it was supported by objective evidence showing APS
needed the Easements within a reasonable time.

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¶25 In its subsequent October 2016 ruling dismissing the action,
the court stated that dismissal for APS’s failure to diligently prosecute was
not an adjudication on the merits, meaning there was no finding that APS
was precluded from acquiring the Easements. And the court’s final order
of dismissal again reiterated that dismissal was not a ruling on the merits.
Thus, because there was no final judgment that APS cannot acquire the
Easements, Oursland is not entitled to attorneys’ fees and costs under
A.R.S. § 12-1129(B)(1).

B. APS Did Not Abandon the Proceeding

¶26 Oursland contends that by failing to diligently prosecute and
“purposefully delaying these actions, APS should be considered to have de
facto abandoned this proceeding.”

¶27 First, Oursland is not entitled to fees and costs because APS
failed to diligently prosecute. A plaintiff has a duty “to see that his case is
brought up for trial within a reasonable time[;]” failure to do so may result
in dismissal. Price v. Sunfield, 57 Ariz. 142, 148-49 (1941). In dismissing
APS’s action, the superior court found, and the record reflects, that APS
failed to diligently prosecute this matter for more than three years. APS
had the burden to prosecute and we disagree with the court’s finding that
Oursland was also responsible for moving it forward. Nevertheless, the
consequence for APS’s delay is dismissal of the action. Dismissal is
Oursland’s remedy here. But dismissal for failing to prosecute does not
equate to abandonment nor to an award of attorneys’ fees and costs under
A.R.S. § 12-1129(B)(2).

¶28 Next, APS’s failure to prosecute does not constitute de facto
abandonment. Oursland cites to Devol, 196 Ariz. at 182, in support of this
assertion. Oursland’s reliance is misplaced as Devol involved a situation
significantly different than the instant case. In Devol, property owners
sought attorneys’ fees and costs in defending against a condemnation
action initiated by the City of Sedona. Id. at 179, ¶ 2. The owners argued
that when the City twice amended its complaint to modify the location and
amount of land to be condemned, each complaint constituted a new
proceeding and an abandonment of the prior proceeding. Id. at 181, ¶ 14.
The court disagreed, finding that “merely by amending its complaint to
adjust the scope of its proposed condemnation,” the City did not abandon
its proceeding subjecting it to statutory liability for fees and costs. Id. at
181-82, ¶ 18. The court clarified that “[w]e can envision an amended
complaint in condemnation that changes the nature of the action so
completely as to amount to . . . abandonment . . . [and] . . . do not rule out

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the possibility that such a case, if it arises, might satisfy both the statutory
and common law standard of abandonment of proceedings.” Id. at 182, ¶
18. Such is not the case here.

¶29 Last and more importantly, given the plain language of the
statute, APS’s delay is not an abandonment on its own motion. An award
of attorneys’ fees and costs is required when “[t]he proceeding is
abandoned on a motion by the plaintiff.” A.R.S. § 12-1129(B)(2) (emphasis
added). In declining to award Oursland fees and costs after granting
involuntary dismissal, the superior court found that APS had “not
abandoned the proceedings on its own motion.” Oursland cites no
authority, and we find none, supporting his argument that by failing to
diligently prosecute, APS effectively abandoned the proceeding. APS did
not file a motion to abandon this proceeding, and we decline to read into or
expand the statute as Oursland requests. See Ariz. Sec. Ctr., Inc. v. State, 142
Ariz. 242, 244 (App. 1984) (statute’s language “is the best and most reliable
index of its meaning, and where language is clear and unequivocal it is
determinative of its construction.”); Deatherage v. Deatherage, 140 Ariz. 317,
320 (App. 1984) (“The legislature is presumed to express its meaning as
clearly as possible and therefore words used in a statute are to be accorded
their obvious and natural meaning.”); City of Phoenix v. Donofrio, 99 Ariz.
130, 133 (1965) (we may not “inflate, expand, stretch or extend a statute to
matters not falling within its expressed provisions”); State ex rel. Morrison v.
Anway, 87 Ariz. 206, 209 (1960) (we “cannot read into a statute something
which is not within the manifest intention of the legislature as gathered
from the statute itself”).

¶30 Given the plain meaning of the statute’s text, APS did not
abandon the proceeding on its own motion. Thus, Oursland is not entitled
to fees and costs under A.R.S. § 12-1129(B)(2).

III. APS’s Action was Not Groundless

¶31 Oursland argues that APS initiated, maintained, and
prolonged this action in “bad faith” and in a “predatory fashion[,]”
knowing it did not need the Easements, and “continued to fabricate reasons
to justify its need” for the Easements.

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¶32 In pertinent part, A.R.S. § 12-349(A) provides that the court
must award attorneys’ fees “if the attorney or party . . . [b]rings or defends
a claim without substantial justification . . . solely or primarily for delay or
harassment . . . [or] [u]nreasonably expands or delays the proceeding.”
“[W]ithout substantial justification means that the claim or defense is
groundless and is not made in good faith.” A.R.S. § 12-349(F). “Section 12-
349 was enacted with the express purpose of reducing groundless
lawsuits.” Phoenix Newspapers, Inc. v. Dep’t of Corrections, 188 Ariz. 237, 244
(1997). A party seeking attorneys’ fees under § 12-349 must prove, “by a
preponderance of the evidence, that the [opposing party’s] lawsuit was
groundless, in bad faith and harassing.” Id.

¶33 The record belies Oursland’s repeated assertions that APS
brought and maintained this action in bad faith and that it never needed
the Easements. There has been no finding that APS acted, at any time, in
bad faith; no finding that APS purposely delayed the action to harass; and
no finding that APS did not need the Easements. To the contrary, the record
reflects, and the superior court found, that APS’s action was not arbitrary
or capricious because objective evidence showed APS needed the
Easements within a reasonable time. Indeed, APS would need to build the
power line within 10 to 15 years to accommodate the increased
development and population stemming from the new highway expected by
2030. Thus, Oursland has failed to show by a preponderance of the
evidence that APS’s action is groundless.

¶34 Moreover, because the court dismissed the action without
prejudice and without an adjudication on the merits, Oursland is not the
prevailing party and therefore not entitled to attorneys’ fees. See Monti v.
Monti, 186 Ariz. 432, 435 (App. 1996), superseded by rule on other grounds,
(“Only the party who prevails on the merits can seriously argue that the
other’s claim was groundless. A trial court cannot make a finding of
‘groundlessness,’ nor can an appellate court review such a finding, without
considering the merits of the challenged claim.”).

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CONCLUSION

¶35 Because substantial evidence supports the superior court’s
denial of Oursland’s request for attorneys’ fees and appraisal costs, we
accept special action jurisdiction but deny relief. We also deny Oursland’s
request for attorneys’ fees and costs for this special action.

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

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