Todd Underwood v. Thomas Wilczynski and Dana Wilczynski Janet A. Bewley...

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

TODD UNDERWOOD, AN UNMARRIED MAN;
CHRISTOPHER BURMASTER,
Plaintiffs/Appellants,

v.

THOMAS WILCZYNSKI AND DANA WILCZYNSKI, HUSBAND AND WIFE; JANET A.
BEWLEY, IN HER CAPACITY AS TRUSTEE FOR THE JANET A. BEWLEY TRUST
DATED AUGUST 30, 2000,
Defendants/Appellees.

No. 2 CA-CV 2021-0077
Filed December 16, 2021

Appeal from the Superior Court in Pinal County
No. S1100CV202000576
The Honorable Jason R. Holmberg, Judge

AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL

MacQueen & Gottlieb PLC, Phoenix
By Patrick R. MacQueen, Patrick T. Nackley, and Brandon P. Bodea
Counsel for Plaintiffs/Appellants

Fowler St. Clair PLLC, Scottsdale
By Brian C. Locker
Counsel for Defendants/Appellees Thomas and Dana Wilczynski

Schern Richardson Finter PLC, Mesa
By Aaron M. Finter
Counsel for Defendant/Appellee Janet A. Bewley Trust
 UNDERWOOD v. WILCZYNSKI
Opinion of the Court

OPINION

Presiding Judge Espinosa authored the opinion of the Court, in which Vice
Chief Judge Staring and Judge Eckerstrom concurred.

E S P I N O S A, Presiding Judge:

¶1 Todd Underwood appeals from the trial court’s entry of
summary judgment in favor of his neighbors, Dana and Thomas Wilczynski
(the “Wilczynskis”) and the Janet A. Bewley Trust Dated August 30, 2000
(“the Trust”), arising from a dispute over the construction of a road on a
portion of his property and the entry of judgment granting a broad
easement for the disputed road. For the reasons that follow, we affirm the
summary judgment ruling but vacate portions of the judgment and remand
to the trial court for further proceedings.

Factual and Procedural Background

¶2 We view the facts, which are largely undisputed, in the light
most favorable to Underwood, the party who opposed the summary
judgment motion below. See Keonjian v. Olcott, 216 Ariz. 563, ¶ 2 (App.
2007). This appeal involves three parcels of residential land in Pinal
County—owned by Underwood and his neighbors—which had originally
been acquired from the federal government by land patents pursuant to the
Small Tract Act, 43 U.S.C. §§ 682a through 682e (repealed 1976). The parcels
are subject to thirty-three foot wide rights-of-way along their boundaries
created by the federal land patents (FLP). The parcels to the east of
Underwood’s property were at one time a singular parcel that was later
divided in two; the Wilczynskis own the parcel adjacent to the southern half
of Underwood’s property, and the Trust owns the parcel adjacent to the
northern half of Underwood’s property. While the Underwood and Trust
parcels are accessible to the north by the east-west running East Forest
Street, the Wilczynski property had no physical connection to that road
until the Trust constructed a north-south running roadway, Holmes Road,
along the border of Underwood’s and the Trust’s property providing
physical access from the Wilczynski property to East Forest Street.
Although the precise size and location of Holmes Road is disputed, it is a
dirt road, eight to twelve feet wide, approximately centered on
Underwood’s eastern boundary and the Trust’s and the Wilczynskis’
western boundaries.

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¶3 After Underwood sought to prevent the Wilczynskis’ use of
Holmes Road, the Wilczynskis sent a letter to Underwood asserting their
interest in an easement over his property to allow access to their property
by way of the FLP rights-of-way and an easement of necessity. They also
began traversing Underwood’s property for ingress and egress on Holmes
Road. In April 2020, Underwood sued the Wilczynskis and the Trust,
pleading claims for quiet title, declaratory relief, trespass, and trespass to
chattels in relation to the construction and use of Holmes Road. The
Wilczynskis denied that Underwood was entitled to relief on his claims and
filed counterclaims to quiet title and for declaratory relief against
Underwood.1 The Trust likewise denied Underwood’s claims.

¶4 The Trust and the Wilczynskis moved for summary
judgment, arguing the FLP rights-of-way granted them the right to
construct and utilize Holmes Road along the border of Underwood’s
property. In response, Underwood argued judgment should be entered in
his favor because he claimed there was no evidence in the record that his
property was subject to any easement as the defendants had failed to
identify an FLP covering his property. He further argued the Wilczynski
property was not landlocked because it had both an express easement and
an implied easement of necessity across the Trust property.2

¶5 After a hearing, the trial court granted summary judgment to
the Wilczynskis and the Trust. The court reasoned that based on Bernal v.
Loeks, 196 Ariz. 363 (App. 2000), and Neal v. Brown, 219 Ariz. 14 (App. 2008),
the Wilczynskis had established the need to use the FLP right-of-way
because they “do not have an existing roadway” to access their property.
The court entered a final judgment, and Underwood appealed. We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1).3

1The Wilczynskis also asserted a negligence cross-claim against the
Trust, which was later dismissed with prejudice by stipulation.
2Underwood argued the express easement was created by the FLP
reserving a thirty-three foot wide right-of-way along the border of the Trust
property and the implied easement of necessity was created when the one
large parcel was divided into what is now the Trust and Wilczynski parcels.
3The Wilczysnkis argue as an initial matter that we should dismiss
this appeal as moot because while the appeal was pending, Underwood
sold the property at issue. Because the purchaser of the Underwood
property has been substituted into the appeal, however, we decline to

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Discussion

¶6 Summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to judgment as a
matter of law. Ariz. R. Civ. P. 56(a). In reviewing a grant of summary
judgment, we determine de novo whether any genuine issues of material
fact exist and whether the trial court properly applied the law. Neal, 219
Ariz. 14, ¶ 11.

Wilczynskis’ Entitlement to Underwood Right-of-Way

¶7 Underwood first claims the trial court erred in concluding the
Wilczynskis were entitled to enforce the easement across his property
because his neighbors “already possessed a legal ingress/egress easement.”
Specifically, Underwood maintains “an implied way of necessity arose as a
matter of law” when “the Wilczynski property was severed from the
common ownership of the Trust property in March of 1997 because no
recorded access existed at that time.” We disagree.

¶8 The elements of an implied way of necessity are: (1) common
ownership of the dominant and servient estate; (2) severance; (3) no outlet
for the dominant estate at the time of severance; and (4) reasonable
necessity for access when severance occurred. Coll. Book Ctrs., Inc. v.
Carefree Foothills Homeowners’ Ass’n, 225 Ariz. 533, ¶ 30 (App. 2010). Thus,
“a way of necessity can be implied only when the necessity existed at the
time of the original severance of the estates.” Bickel v. Hansen, 169 Ariz. 371,
374 (App. 1991). Contrary to Underwood’s argument, the Wilczynski
parcel was not landlocked when severance occurred because it had an
outlet by way of the recorded FLP rights-of-way over the Trust and
Underwood properties. Thus, no implied way of necessity arose over the
Trust parcel in 1997.4

dismiss it. See Ariz. R. Civ. App. P. 27(b) (providing for substitution of
party). And for consistency with the record and clarity, we will continue to
use “Underwood” in referring to the property and the appellant.
4 Underwood repeatedly asserts, with no citation to relevant
supporting authority, that “the determination of whether an implied way
of necessity arises must precede an analysis of whether the private right of
enforcement [through the FLP easements] exists.” However, the FLP
easements were recorded in 1956 and 1958—long before the Trust and
Wilczynski parcels were severed—and we therefore disagree that, on these
facts, the implied-way-of-necessity analysis must precede the private-right-

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¶9 Underwood next contends the trial court erred by applying
Bernal instead of Neal to his case. In Bernal, this court determined that
private parties could enforce the easements reserved in parcels acquired
from the federal government by land patents pursuant to the Small Tract
Act, even if the state or local governments had not yet constructed
roadways. 196 Ariz. 363, ¶¶ 2, 5, 11. Neal addressed whether the private
enforcement right recognized in Bernal extended to a parcel owner who
already had an adequate roadway to access his property. Neal, 219 Ariz.
14, ¶ 1. We concluded that “easement rights conveyed by the federal land
patents pursuant to the [Small Tract] Act are not unconditional private
rights of ingress and egress” but are “circumscribed by their purposes,
which . . . are ‘to provide street and utility access and to alleviate the burden
on local governments to acquire easements to install roads and utilities.’”
Id. ¶ 18. Because the clear intent of the reserved right-of-way in the FLP
was to ensure adequate roadway access and not to create a right in nearby
parcel owners to traverse a neighbor’s property regardless of actual need,
id., we determined that neighboring property owners were not entitled to
enforce the right-of-way over the defendant’s property where an adequate
roadway already existed, id. ¶ 23.

¶10 In granting summary judgment for the Trust and
Wilczynskis, the trial court found that, unlike the neighbors in Neal, the
Wilczynskis “do not have an existing roadway” and had therefore
established the need to use the FLP easements to access their property.
Underwood disputes that conclusion as incorrect because the Wilczynskis
have adequate legal ingress and egress through the Trust’s FLP easement
and they should therefore not be permitted to enforce the FLP easement
across his property. But nothing in Neal supports his argument. As noted
above, Neal dealt with whether neighbors could privately enforce the FLP
easement against another property when they already had adequate
physical—not simply legal—access. Id. ¶ 17. Underwood nevertheless asks
us to extend Neal to conclude that because the Wilczynskis have alternate
legal access to their property by way of the Trust parcel’s FLP easement,
they have no need to use the FLP easement across his property. As the

of-enforcement determination. We similarly reject Underwood’s
unsupported argument that “[t]o the extent the lot split . . . did not create
an implied way of necessity,” the Wilczynskis and the Trust should be
“equitably bound” to first seek placement of a driveway access on the Trust
property rather than his. See Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, ¶ 50
(App. 1998) (rejecting assertions made “without supporting argument or
citation of authority”).

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Trust pointed out below, however, such an extension would require courts
to determine priority among essentially identical FLP easements that were
originally reserved to allow governments to create a system of adequate
roadway access. See id. ¶ 18. We conclude the court did not err in
determining the Wilczynskis have the right to use the FLP easement on the
Underwood property and granting summary judgment to the Wilczynskis
and the Trust on Underwood’s claims.

Entry of Judgment

¶11 Underwood also argues the trial court made various errors in
the judgment entered against him. The relevant portion of the judgment is
as follows:

1. Title to that . . . certain easement over a
portion of real property located on
[Underwood’s property], legally described
in Exhibit A and illustrated in Exhibit B, is
quieted in favor of the Defendants and their
right to use such land for “roadway and
public utilities purposes . . . along the
boundaries of said land.”

2. It is declared and adjudicated that:

a. Defendants hold a dominant estate in
the Easement for the purposes of
ingress and egress with a superior
right, title, estate, claim and interest
to the Easement than that of Plaintiff.

b. Plaintiff is estopped from preventing
Defendants, or any other person,
from utilizing the Easement for
ingress and egress.

¶12 Exhibit A and Exhibit B together depict a thirty-three foot
wide easement along the entire northern and eastern borders of
Underwood’s parcel. We agree with Underwood that such a grant exceeds
the amount of land the Wilczynskis had proven was “actually necessary”
for ingress and egress.

¶13 The Trust acknowledges that it and the Wilczynskis “were not
seeking an easement over the entire thirty-three” foot width, but only the

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amount needed for Holmes Road. And the Wilczynskis acknowledge “if
[they] were to try and pave a 66-foot wide road over the entirety” of the
FLP easement, “the current owner of the Underwood Property would likely
have a viable action to restrict such a use,” but they assert “this is a remedy
that should be left for a future date when Underwood [or a future owner]
can actually argue that the use . . . is unreasonable.” Contrary to the
Wilczynskis’ and the Trust’s arguments regarding their intended use of the
easement, however, the language of the judgment here purports to grant
them entitlement to a wider area than they had shown was necessary, a
limitation we set forth in Neal construing the same FLP right-of-way
language.5 See id. ¶ 19. Accordingly, we vacate the portion of the judgment
entitling the Wilczynskis to the entirety of the FLP right-of-way and remand
for the trial court to determine the proper scope of the Wilczynskis’
entitlement.

¶14 Additionally, the judgment declares generally that
“Defendants,” defined as the Wilczynskis and the Trust collectively, “hold
a dominant estate in the Easement” when there had been no finding that
the Trust was entitled to use the FLP easement given its direct access to East
Forest Road.6 We also agree with Underwood that the judgment’s reference
to “any other person” is “unreasonably broad” and essentially makes his
property “a public roadway for which anyone may traverse, irrespective of

5We recognize that the dissent in Neal criticized such a limitation, see
id. ¶¶ 24-45 (Snow, J., dissenting), but no party in this case has mentioned
that dissent let alone urged us to adopt it or otherwise disagree with the
majority analysis. See Neil B. McGinnis Equip. Co. v. Henson, 2 Ariz. App. 59,
62 (1965) (“When we disagree with a prior decision of our Court . . . we
should do so only upon the most cogent of reasons being presented.”); State
v. Robertson, 249 Ariz. 256, ¶ 9 (2020) (appellate courts should avoid
deciding cases with no research assistance or analytical input from parties).
6The trial court’s ruling stated “the defendants have established the
need to use the . . . easement to access their property and do not have an
existing roadway.” Because the ruling designates the Wilczynskis as
“Defendants” but also identifies the Trust as “Defendants,” it is ambiguous
whether the court actually found or intended to find that the Trust
“established the need to use the . . . easement.” To the extent such a finding
was made, we vacate it as contrary to the record—it was undisputed the
Trust has access to its property via East Forest Street. See Mohave Elec. Coop.,
Inc. v. Byers, 189 Ariz. 292, 308 (App. 1997) (“A trial court’s general factual
conclusions are reversed if they are clearly erroneous.”).

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what parcel of land they are travelling to,” in contravention of Neal. See
id. ¶ 18 (rejecting argument that neighbors “are entitled to use the easement
regardless whether they can conveniently access their properties without
it” and concluding purpose of FLP easement “was not to create a right in
nearby parcel owners to traverse a neighbor’s property regardless of actual
need”). Accordingly, those portions of the judgment are vacated as well.

¶15 Finally, we agree with Underwood that the judgment’s
statement that the Wilczynskis and the Trust have “a superior right, title,
estate, claim and interest to the Easement than that of [Underwood]” is also
incorrect and must be vacated. See A Tumbling-T Ranches v. Flood Control
Dist. of Maricopa Cnty., 222 Ariz. 515, ¶ 87 (App. 2009) (easement does not
alter legal title to property except as to the limited character of the
easement); Smith v. Beesley, 226 Ariz. 313, ¶¶ 17, 19 (App. 2011) (although
use of servient estate may not impair use of easement, servient estate holder
entitled to “other compatible uses of the land”); Hunt v. Richardson, 216
Ariz. 114, ¶ 21 (App. 2007) (“Unless barred by the terms of the easement,
the servient estate owner ‘is entitled to make any use of the servient estate
that does not unreasonably interfere with enjoyment of the servitude.’”
(quoting Restatement (Third) of Property: Servitudes § 4.9 (2000))). Neither
the Wilczynskis nor the Trust adequately addressed this argument in their
answering briefs, which we deem a confession of error. 7 See In re 1996
Nissan Sentra, 201 Ariz. 114, ¶ 7 (App. 2001).

Attorney Fees and Costs on Appeal

¶16 Underwood requests his attorney fees on appeal pursuant to
A.R.S. § 12-1103(B), which permits their recovery when prevailing parties
have met certain prerequisites in seeking to quiet title. Underwood,
however, is not entitled to recover his attorney fees here because he did not
prevail on his quiet title claim. See Cook v. Grebe, 245 Ariz. 367, ¶¶ 5, 8 (App.
2018) (prevailing party who follows prerequisites may recover attorney fees
in quiet title actions but determination of who is prevailing party “turns on
whether a party successfully quieted title”).

7We disagree, however, with Underwood’s further contention that
the judgment granted the Wilczynskis and the Trust title to his property.
He apparently misreads that portion of the judgment, which, as noted
above, quiets “[t]itle to that . . . certain easement” in favor of the
Wilczynskis and the Trust.

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¶17 The Wilczynskis too request their attorney fees and costs on
appeal, and the Trust requests its costs. Because the Wilczynskis have not
cited any substantive basis for a fee award, only citing Rule 21, Ariz. R. Civ.
App. P., we deny their request for attorney fees. See Ariz. R. Civ. App. P.
21(a)(2) (claim for attorney fees must specifically state “the statute, rule,
decisional law, contract, or other authority for an award of attorneys’ fees”;
this rule “only establishes the procedure for claiming attorneys’ fees and
does not create any substantive right to them”). However, as substantially
prevailing on appeal, both the Wilczynskis and the Trust are granted their
costs, upon compliance with Rule 21. See A.R.S. § 12-341.

Disposition

¶18 The trial court’s summary judgment ruling is affirmed;
however, portions of the subsequent judgment as specified herein are
vacated, and we remand to the trial court for further proceedings consistent
with this opinion.

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