Pat Spaulding v. Michael Pouliot

FILED BY CLERK
IN THE COURT OF APPEALS APR 23 2008
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO

PAT SPAULDING, in her capacity as a )
Trust Officer of STEWART TITLE & ) 2 CA-CV 2007-0108
TRUST OF TUCSON, an Arizona ) DEPARTMENT A
corporation, as Trustee under Stewart )
Title Trust Number 3610, )
) OPINION
Plaintiff/Appellee, )
)
v. )
)
MICHAEL A. POULIOT, an unmarried )
man, )
)
Defendant/Appellant. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. C20062051

Honorable John F. Kelly, Judge

REVERSED IN PART; VACATED AND
REMANDED IN PART WITH INSTRUCTIONS

Aboud & Aboud, P.C.
By Michael J. Aboud Tucson
Attorneys for Plaintiff/Appellee

Butler & Associates, P.L.C.
By Michael J. Butler and Michael A. Fleishman Tucson
Attorneys for Defendant/Appellant
B R A M M E R, Judge.

¶1 This is a dispute between two property owners regarding the use of a road and

the ownership of a small, adjacent parcel of land. Appellant, Michael Pouliot, appeals the

trial court’s grant of injunctive relief and award of attorney fees and costs in favor of

appellee, Pat Spaulding, acting in her capacity as trustee of Stewart Title Trust No. 3610 (the

Trust), and its dismissal of his counterclaim. Pouliot argues the trial court erred in dismissing

his counterclaim and granting the Trust’s requested injunction, based on the court’s legal

determination that the use and possession of land, by a party claiming rights to it by

prescriptive easement or adverse possession, are presumed to be permissive. Pouliot further

argues the trial court erred in awarding the Trust its costs and attorney fees.

Factual and Procedural Background

¶2 The following facts are undisputed. Pouliot owns and resides on a parcel of

land adjacent to a large vacant lot in Pima County. Pouliot purchased his parcel in 1996 from

Beatrice Redmond, who had purchased it in 1968. Since 1968, Redmond had used an

unpaved road over the neighboring vacant lot to access a carport on her property. During that

time, she regularly had the road graded. She had also maintained a small parcel of land

between the road and her home (the “adjoining parcel”), upon which she kept and maintained

a propane tank that provided fuel to heat her home. Shortly after Pouliot bought Redmond’s

property in 1996, he built a large garage to replace the carport. He later paved the part of the

road he used to access his garage and placed decorative rock on the adjoining parcel.

2
Throughout his ownership, he continued to use and grade the road and to use and maintain

the adjoining parcel.

¶3 In 1971, John and Emily Aboud purchased the vacant lot next to the

Redmond/Pouliot property and visited it periodically over the following three decades. In

2003, the Abouds’ children acquired the lot and placed it in the Trust for their benefit. In

2005, in accordance with A.R.S. § 12-1103(B), the Trust requested that Pouliot execute a

quitclaim deed to the portions of the Trust’s property he had been using. Pouliot refused to

do so.

¶4 The Trust sued Pouliot, alleging he was trespassing on its property. It asked

the court to bar Pouliot from further use of the property and to order him to remove the

paving from the road. Pouliot answered, claiming he had a prescriptive easement over the

road and had acquired title to the adjoining parcel by adverse possession. Pouliot then served

and asked the Trust to execute quitclaim deeds to the road and adjoining parcel.1 After the

Trust refused, Pouliot amended his answer to add a counterclaim, asking the court to rule that

he had acquired title to the adjoining parcel by adverse possession and had acquired a

prescriptive easement over the road. He also requested his attorney fees and costs.

1
Although the deeds are not included in the record on appeal, Pouliot alleged in his
counterclaim and in the statement of facts accompanying his motion for summary judgment
that he had served two deeds on the Trust, claiming a prescriptive easement over the road and
title by adverse possession to the adjoining parcel. In its responses to Pouliot’s counterclaim
and motion for summary judgment, the Trust admitted it had received those deeds.

3
¶5 Before trial, Pouliot moved for summary judgment. Despite the Trust’s failure

to deny that Pouliot and Redmond had used the road and the adjoining parcel openly, visibly,

continuously, and without interference for at least ten years, the trial court denied Pouliot’s

motion, stating that unspecified questions of material fact remained.

¶6 After a one-day bench trial, the trial court entered judgment in favor of the

Trust. It found that, although Pouliot and Redmond had used the road “openly and

continuously since 1968” without having received express permission to do so,2 their use was

presumed to be permissive under applicable case law and Pouliot had failed to overcome that

presumption as to either the road or the adjoining parcel. Granting the Trust’s request, the

court ordered Pouliot to remove the paving, enjoined his further use of Trust property, and

awarded the Trust its attorney fees and costs. This appeal followed.

Discussion

Prescriptive easement over road

¶7 Pouliot first argues the trial court erred in determining that, under applicable

supreme court precedent, the use of land over which a prescriptive easement is claimed is

presumed to have been with the permission of the title-holder. Relying on LaRue v. Kosich,

66 Ariz. 299, 304-05, 187 P.2d 642, 645-46 (1947), the trial court ruled that Pouliot “had the

burden of proving that the use was not with the implied permission of [the owner].” The

court recognized, however, that an earlier supreme court case, Gusheroski v. Lewis, 64 Ariz.

2
The trial court made no express findings regarding the adjoining parcel.

4
192, 167 P.2d 390 (1946), had adopted the opposite presumption. But, because LaRue was

decided after Gusheroski and “has never been overruled,” the court applied the presumption

it believed LaRue announced. It then concluded Pouliot had “failed to meet his burden of

proof that his and his predecessor’s use of the road [was] under a claim of right and hostile

to the owner.”

¶8 Pouliot contends the trial court erroneously interpreted LaRue. He asserts

LaRue “was fully on board with the Gusheroski holding,” despite the LaRue court’s

discussion of the opposite presumption. Pouliot further contends the presumption the trial

court applied does not “accurately reflect[] the current state of the law concerning

prescriptive easements.” On appeal, we review de novo questions of law, but we will not

disturb the trial court’s findings of fact unless they are clearly erroneous. See Sabino Town

& Country Estates Ass’n. v. Carr, 186 Ariz. 146, 149, 920 P.2d 26, 29 (App. 1996). We will

affirm the trial court’s judgment if there is any reasonable evidence supporting it. See id.;

Inch v. McPherson, 176 Ariz.132, 135, 859 P.2d 755, 758 (App. 1992).

¶9 As the trial court noted, our supreme court held in Gusheroski that:

[w]here the claimant has shown an open, visible, continuous,
and unmolested use of the land of another for the period of time
sufficient to acquire title by adverse possession, the use will be
presumed to be under a claim of right, and not by license of the
owner. In order to overcome this presumption, thereby saving
his title from the encumbrance of an easement, the burden is
upon the owner to show that the use was permissive.

5
Gusheroski, 64 Ariz. at 198, 167 P.2d at 393, quoting Glantz v. Gabel, 212 P. 858, 860

(Mont. 1923). One year later, while discussing Clarke v. Clarke, 66 P.2d 10, 11 (Cal. 1901),

a California decision that long preceded Gusheroski, the LaRue court did observe that, under

the facts of Clarke, “[t]he law . . . presume[d] . . . that the use was by permission.” But the

court nonetheless clearly confirmed in LaRue that it agreed with the presumption adopted in

Gusheroski “in its entirety,” although apparently concluding the presumption had been

overcome in that particular case. LaRue, 66 Ariz. at 304, 306, 187 P.2d at 645, 647.

¶10 In Harambasic v. Owens, 186 Ariz. 159, 920 P.2d 39 (App. 1996), Division

One of this court acknowledged the apparent conflict in LaRue that confused the trial court

here. The court in Harambasic recognized the presumption, adopted by Gusheroski and

subsequently followed by our courts, that a “‘use will be presumed to be under a claim of

right, and not by license of the owner,’” once “‘the claimant has shown an open, visible,

continuous, and unmolested use of the land’” for the statutory period. Harambasic, 186 Ariz.

at 160-61, 920 P.2d at 40-41, quoting Glantz, 212 P. at 860; see Gusheroski, 64 Ariz. at 198,

167 P.2d at 393; see also Inch, 176 Ariz. at 136, 859 P.2d at 759 (recognizing Gusheroski

presumption); Brown v. Ware, 129 Ariz. 249, 251, 630 P.2d 545, 547 (App. 1981) (same);

see generally Restatement (Third) of Property: Servitudes § 2.16 cmt. (g) (2000) (“The

majority of American states apply a presumption that an unexplained, open or notorious use

of land, continued for the prescriptive period, is adverse.”). We agree with the Harambasic

court that the presumption first adopted in Gusheroski correctly represents the law in our

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state.3 The Trust did not contest here or below that Redmond’s and Pouliot’s use of the road

over its property was “open, visible, continuous, and unmolested” for the statutory period.

Therefore, the trial court erred by not following Gusheroski.

¶11 But the Trust suggests this presumption is inconsistent with our supreme

court’s decision in England v. Ally Ong Hing, 105 Ariz. 65, 72, 459 P.2d 498, 505 (1969),

in which the court stated that, “[u]nless notice of [the] use, hostile to the owner, is clearly

brought home to the true owner, such use will be deemed permissive.” The court observed

that notice could be achieved either if the owner had actual knowledge of the hostile use or

if the adverse nature of the use was “‘so plainly apparent from [the claimant’s] acts that

knowledge should be imputed to [the owner].’” Id., quoting Hester v. Sawyers, 71 P.2d 646,

651 (N.M. 1937). We need not decide here, however, whether the rule declared in England

and cited by the Trust would in fact be inconsistent with the Gusheroski presumption,

because the rule’s application is limited to prescriptive claims over large, unenclosed, rural

parcels of land.

¶12 In England, the claimant asserted, inter alia, that he had acquired a prescriptive

easement to drive his cattle over another’s ranch land. Id. at 71-72, 459 P.2d at 504-05. As

the court noted, “In [Arizona], it is not uncommon for cattle to range at will across the open

3
Indeed, to the extent Clarke was ever part of our jurisprudence, given its status as
California law, Clarke is no longer the law in California, which now applies a presumption
akin to that adopted in Gusheroski. See Harambasic, 186 Ariz. at 161, 920 P.2d at 41; see
also Warsaw v. Chicago Metallic Ceilings, Inc., 676 P.2d 584, 588 (Cal. 1984); MacDonald
Props., Inc. v. Bel-Air Country Club, 140 Cal. Rptr. 367, 373 (Cal. Ct. App. 1977).

7
ranch lands. An owner of [such land] over which cattle grazed would certainly not be

expected to surmise that the rancher who owned these cattle was asserting any claim of right

to his land.” Id. at 69, 459 P.2d at 502. When adopting the rule on which the Trust relies,

the England court reasoned the rule was appropriate “‘where large bodies of privately owned

land are open and unenclosed, [because] it is a matter of common knowledge that the owners

do not object to persons passing over them for their accommodation and convenience.’” Id.

at 72, 459 P.2d at 505, quoting Hester, 71 P.2d at 651. Indeed, our courts have recognized

that England represents “the law in Arizona regarding the grazing of [livestock] on

unenclosed land,” Combs v. DuBois, 135 Ariz. 465, 468, 662 P.2d 140, 143 (App. 1982), but

they have never applied England to prescriptive easement claims outside the context of large,

open, rural properties. This is consistent with the Restatement (Third) of Property:

Servitudes § 2.16 comment (g), which notes that “[e]vidence that the claimed servient estate

was wild, unenclosed, vacant land overcomes the presumption of prescriptive use . . .

creating a presumption that the use was permissive.” The Trust did not assert here or below

that its land is of the type described in England, and, although the Trust’s property is

unenclosed, the record suggests it is neither large nor rural but simply a vacant parcel in an

urban, residential area.

¶13 Nonetheless, the Trust asserts that, because the party claiming a prescriptive

easement bears the burden of proving all the elements necessary to establish it, see Inch, 176

Ariz. at 134, 859 P.2d at 757, and because a use that begins with permission cannot “ripen[]”

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into a prescriptive easement, see Etz v. Mamerow, 72 Ariz. 228, 232, 233 P.2d 442, 445

(1951), Redmond’s and Pouliot’s use of the road must therefore presumptively be permissive.

On the facts before us, we must disagree.

¶14 A party claiming an easement by prescription “‘must establish that the land in

question has actually and visibly been used for ten years, that the use began and continued

under a claim of right, and [that] the use was hostile to the title of the true owner.’” Paxson

v. Glovitz, 203 Ariz. 63, ¶ 22, 50 P.3d 420, 424 (App. 2002), quoting Harambasic, 186 Ariz.

at 160, 920 P.2d at 40 (alteration in Paxson); see Inch, 176 Ariz. at 136, 859 P.2d at 759;

A.R.S. §§ 12-521, 12-526. As the Trust correctly notes, the “‘mere use of [another’s

property] for the required time is not [alone] sufficient to give rise to the presumption of a

grant.’” Etz, 72 Ariz. at 232, 233 P.2d at 445, quoting 17 Am. Jur. Easements § 71. But,

once the party claiming the easement has shown that his or her use during the statutory period

was “‘open, visible, continuous, and unmolested,’” Arizona law presumes that the use was

under a claim of right and not permissive. Gusheroski, 64 Ariz. at 198, 167 P.2d at 393,

quoting Glantz, 212 P. at 860. The burden then shifts to the owner of the property to show

that the use was indeed permissive. Id.

¶15 Permission can be either express or implied, and, if a use is shown to have

begun with the owner’s permission, any subsequent use is presumed to have remained

permissive. See LaRue, 66 Ariz. at 305, 187 P.2d at 646. That is, a use that begins

permissively cannot “‘ripen into a prescriptive right’” by the mere passage of time. Etz, 72

9
Ariz. at 232, 233 P.2d at 445, quoting LaRue, 66 Ariz. at 305, 187 P.2d at 646.

Consequently, in order to overcome the presumption of continued permissive use, the party

claiming the easement must show that, despite the initial permissive nature of the use, his or

her later actions indicated to the owner that the use had become hostile and under a claim of

right. See LaRue, 66 Ariz. at 306, 187 P.2d at 646; cf. Herzog v. Boykin, 148 Ariz. 131, 133,

713 P.2d 332, 334 (App. 1985); Gospel Echos Chapel, Inc. v. Wadsworth, 19 Ariz. App. 382,

384, 507 P.2d 994, 996 (1973).

¶16 We now consider whether, despite the trial court’s failure to utilize the

presumption Gusheroski announced, the facts nonetheless support its judgment in favor of

the Trust. See Sabino Town & Country, 186 Ariz. at 149, 920 P.2d at 29; Inch, 176 Ariz. at

135, 859 P.2d at 758. The court found Redmond and Pouliot had used the road “openly and

continuously since 1968.” This finding is supported by the evidence presented at trial and

is undisputed by the Trust, which conceded below that Redmond and Pouliot had used the

road in an open, visible, continuous, and unchallenged manner for the requisite statutory

period. Because Pouliot presented a prima facie case for an easement by prescription, his and

Redmond’s use of the road was presumed to be under a claim of right and not with

permission. Accordingly, the burden shifted to the Trust to show that the use was, in fact,

with express or implied permission. See Gusheroski, 64 Ariz. at 198, 167 P.2d at 393.

¶17 The Trust contends that “Redmond’s use clearly commenced and remained

permissive.” The trial court, however, found that Redmond had never received express

10
permission to use the road. Indeed, the Trust presented no evidence that it, or the Abouds

before it, had expressly permitted Redmond’s use of the road, and Redmond testified that she

had never received permission from anyone but had “just used the road” and “never talked

about it” with any of its owners.

¶18 Relying on Herzog, the Trust counters that the “history of the Abouds’

ownership is replete with indicia of implied permission.” In Herzog, the claimant asserted

he had acquired title by adverse possession to a neighboring vacant lot where he parked his

vehicles. 148 Ariz. at 132-33, 713 P.2d 333-34. We found that the claimant’s “use was not

adverse but was with the owner’s implied permission” because he had had conversations with

the property owner about his use of the lot and had, upon the owner’s request, “mov[ed] his

vehicles without protest when his use interfered with the owner’s use.” Id. at 133, 713 P.2d

at 334.

¶19 The Trust contends evidence that John Aboud had given other residents in the

area express permission to use the road “strongly suggests” that Redmond, too, had at least

implied permission to use the road. But, unlike the claimant in Herzog, Redmond testified

she “[n]ever ha[d] conversations with anybody . . . the entire time [she] lived there” about

her use of the road. To prove Redmond and Pouliot had had the Abouds’ implied permission

to use the road, the Trust was required to show that Aboud’s interactions with Redmond had

suggested such permission. Cf. Herzog, 148 Ariz. at 133, 713 P.2d at 334. We will not

impute permission to use property to a claimant or the claimant’s predecessors in interest

11
based solely on such permission’s having been granted to others. The Trust offered no

evidence that John or Emily Aboud had communicated at all with Redmond, much less had

the type of interaction that would imply that either had given her permission to continue to

use the road.

¶20 The Trust additionally claims that, in 1996, John Aboud had sent Pouliot a

letter granting him permission to use the road and, during a subsequent meeting between the

two, had consented to Pouliot’s plans to construct the garage so Pouliot could obtain a

variance for it. These events, the Trust argues, suggest Pouliot had been given Aboud’s

permission to use the road. But whether Aboud had granted Pouliot either express or implied

permission in 1996 is irrelevant because the easement would have already existed, created

by Redmond’s continuous use of the road, if non-permissive, since 1968. Cf. Weber v.

Roosevelt Water Conserv. Dist., 126 Ariz. 509, 511, 617 P.2d 17, 19 (1980) (claimant’s

subsequent discussion of possible permission with landowner irrelevant when easement

already established based on previous years’ nonpermissive use).

¶21 The Trust next asserts Redmond “specifically testified that she believed she

used [the road] with [the Abouds’ predecessors’] permission.” The Trust argues Redmond’s

belief that she had permission to use the road should defeat the presumption that her use was

nonpermissive and under a claim of right. In Lewis v. Pleasant Country, Ltd., 173 Ariz. 186,

190, 840 P.2d 1051, 1055 (App. 1992), Division One of this court suggested—albeit in

dicta—that a use may be deemed permissive if the user “acknowledge[s]” his or her use of

12
property was “in subordination to the owner’s title.” This statement is consistent with the

requirement that, to acquire an easement by prescription, the claimant must have used the

property under a claim of right. See Paxson, 203 Ariz 63, ¶ 22, 50 P.3d at 424. “[T]he claim

of right is nothing more than the intention of the one wrongfully [using another’s property]

to . . . use the land . . . irrespective of any semblance or shadow of actual title or right.”

Weber, 126 Ariz. at 510-11, 617 P.2d at 18-19. As the Restatement has further explained,

“[u]ses made in subordination to the property owner are not [made under a claim of right],

even if the property owner has not given [express] permission, and the use is not otherwise

authorized.” Restatement (Third) of Property (Servitudes) § 2.16 cmt. f. Thus, although a

property owner has shown no other evidence of permission, the owner could overcome the

presumption that the claimant’s use was not permissive and was made under a claim of right

if the claimant clearly acknowledges he or she used the land in subordination to the owner’s

title. See Lewis, 173 Ariz. at 190, 840 P.2d at 1055; Gusheroski, 64 Ariz. at 198, 167 P.2d

at 393.

¶22 Pouliot asserts Redmond’s statement is not an acknowledgment that her use of

the road was subordinate to the Trust’s predecessors’ title because she clarified in later

testimony that she “simply believed that others could not stop her from using the [road]

because it was the only way to park her car in her carport.” Redmond did testify that she

simply “took it for granted” that she was entitled to use the road and that, because her carport

faced the road when she purchased her property, “there would be no reason not to [use the

13
road].” And, indeed, this testimony could show that Redmond, in making the statement on

which the Trust relies, merely meant that none of the Trust’s predecessors had told her she

could not use the road and that she would have used the road regardless. But such

determinations are for the fact finder.

¶23 We express no opinion on how the totality of Redmond’s testimony or the

circumstances of her original and continued use of the road should be viewed. Because the

trial court based its ruling on an erroneous application of the law, we remand the issue to the

trial court for redetermination under the correct legal standard.

Adverse possession of adjoining parcel

¶24 Pouliot also contends the trial court erred in rejecting his counterclaim that he

had acquired title to the adjoining parcel by adverse possession. The court apparently relied

exclusively on its incorrect interpretation of LaRue. As discussed above, our case law,

including LaRue, has consistently followed the presumption adopted in Gusheroski regarding

prescriptive easements. See ¶¶ 9-10, supra. Although the requirements for establishing a

prescriptive easement and title by adverse possession are not identical, we generally apply

their principles interchangeably. Ammer v. Ariz. Water Co., 169 Ariz. 205, 208, 818 P.2d

190, 193 (App. 1991); see Tenney v. Luplow, 103 Ariz. 363, 367, 442 P.2d 107, 111 (1968)

(applying prescriptive easement principles to adverse possession); Paxson, 203 Ariz. 63,

¶ 22, 50 P.3d at 424 (applying adverse possession law to prescriptive easements); Herzog,

148 Ariz. at 133, 713 P.2d at 334 (applying prescriptive easement principles to adverse

14
possession). Moreover, our supreme court has recognized and applied the Gusheroski

presumption in the adverse possession context. Tenney, 103 Ariz. at 367, 442 P.2d at 111.

¶25 A party claiming title to real property by adverse possession must show that his

or her possession of the property was actual, visible, and continuous for at least ten years and

that it was under a claim of right, hostile to the claims of others, and exclusive. Berryhill v.

Moore, 180 Ariz. 77, 82, 881 P.2d 1182, 1187 (App. 1994); Chandler v. Jackson, 148 Ariz.

307, 311, 714 P.2d 477, 481 (App. 1986); see §§ 12-521, 12-526. Once shown to be open,

visible, continuous, and undisturbed, however, the possession is presumed to be under a

claim of right and not permissive. Tenney, 103 Ariz. at 367, 442 P.2d at 111; see Knapp v.

Wise, 122 Ariz. 327, 329, 594 P.2d 1023, 1025 (App. 1979) (if possession “complete . . .

open and notorious,” the law places “true owner on notice that his land is held under an

adverse claim of ownership”). Again, the owner of the property then bears the burden of

showing he or she expressly or impliedly permitted the claimant’s use of the property. See

Tenney, 103 Ariz. at 367, 442 P.2d at 111.

¶26 Although the trial court erred in its application of LaRue, we must determine,

as we did with Pouliot’s prescriptive-easement claim, whether the evidence supports the

court’s judgment in favor of the Trust on Pouliot’s claim to have acquired title to the

adjoining parcel by adverse possession. See Sabino Town & Country, 186 Ariz. at 149, 920

P.2d at 29; Inch, 176 Ariz. at 135, 859 P.2d at 758. At trial, Redmond testified that, since

1968, she had cared for the adjoining parcel. She also testified that the propane tank she used

15
had been located on the adjoining parcel continuously since before she purchased the

property. Shortly after moving in, Redmond had hired people to clear the adjoining parcel,

which had become overgrown, and she then maintained the landscaping on it for the next

twenty-eight years. In contrast to her testimony about the road, Redmond never testified she

believed she had used this parcel with permission. After Pouliot purchased Redmond’s

property in 1996, he added decorative rock to the adjoining parcel.

¶27 The Trust does not dispute these facts; neither here nor below has it denied that

Pouliot and Redmond used the adjoining parcel openly, continuously, and without challenge

for at least ten years. It does suggest, however, that John Aboud had expressly approved

Pouliot’s use of the adjoining parcel in the 1996 letter. But the letter discussed only Pouliot’s

use of the road, not the adjacent parcel. And, as explained above, any permission Pouliot

may have received in 1996 was irrelevant in any event, because he had already acquired his

rights in the parcel from Redmond based on her prior acquisition of the property by adverse

possession. Cf. Weber, 126 Ariz. at 511, 617 P.2d at 19; Ammer, 169 Ariz. at 209, 818 P.2d

at 194. In light of the undisputed facts and the applicable law, the trial court erred in ruling

against Pouliot on his counterclaim asserting title to the adjoining parcel by adverse

possession. We accordingly reverse its judgment on that counterclaim.

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Attorney fees and costs

¶28 Pouliot asserts that, if we reverse the judgment of the trial court, we should also

vacate its award of attorney fees and costs to the Trust. He further contends that, as the

prevailing party, he should be awarded his attorney fees and costs below, pursuant to A.R.S.

§ 12-1103(B), together with his costs and attorney fees on appeal. See Lewis v. Pleasant

Country, Ltd., 173 Ariz. 186, 195, 840 P.2d 1051, 1060 (App. 1992) (fees on appeal available

under § 12-1103(B)).

¶29 A prevailing party in an action to quiet title may recover costs and attorney fees

if it served a quitclaim deed on the other party twenty days before bringing the action to quiet

title, asked the other party to execute the deed, tendered consideration of five dollars along

with the request, and if the other party refused to execute the deed. § 12-1103(B). Although

Pouliot took those steps as to each of his claims, and although the Trust failed to execute the

deeds, Pouliot has only prevailed on his counterclaim asserting title to the adjoining parcel.

We therefore award Pouliot his attorney fees and costs relating to that counterclaim.

Disposition

¶30 For all the foregoing reasons, we reverse the trial court’s judgment in favor of

the Trust as to the adjoining parcel and remand the case to the trial court with instructions

to enter an appropriate judgment in favor of Pouliot on the Trust’s claims and Pouliot’s

counterclaims pertaining to that parcel. We also vacate the trial court’s judgment in favor

of the Trust on its claims and Pouliot’s counterclaims regarding Pouliot’s use of the road, and

17
we remand this matter to the trial court for a determination of those claims consistent with

this decision. Because we reverse in part and vacate in part the trial court’s judgment, we

vacate its award of attorney fees and costs to the Trust. We grant in part Pouliot’s request

for his attorney fees and costs in the trial court, awarding him that portion of his fees and

costs attributable to his counterclaim for adverse possession of the adjoining parcel. We

further award him, subject to his compliance with Rule 21(c), Ariz. R. Civ. App. P., his

attorney fees and costs on that issue on appeal. All other claims for attorney fees will be

determined by the trial court after it resolves Pouliot’s prescriptive-easement claim.

J. WILLIAM BRAMMER, JR., Judge

CONCURRING:

JOSEPH W. HOWARD, Presiding Judge

JOHN PELANDER, Chief Judge

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