After not publishing a civil case for a month Division One has given us this landmark (we’re being sarcastic) easement case.

Vanyo’s trust (College Book Centers) bought a lot on the edge of Carefree Foothills and some adjacent land outside the subdivision. He wanted to develop lots on the adjacent land and to build a road to them over his Carefree Foothills lot. The Homeowners Association refused his request to do so since the CC&Rs permit  only houses – not a road –  on its lots. So he sued, claiming that the HOA had waived the CC&Rs by allowing two other roads to be built and that he had an easement by way both of implied and private necessity.  The trial court denied motions for summary judgment and Carefree’s JMOL. The jury found for Vanyo on the waiver issue but did not decide the other issues. Carefree  appealed.

Frequent violations may result in a waiver. The Court of Appeals held as a matter of law that two violations – both of which occurred 20 or more years ago, one of which was before the HOA was formed and neither of which the HOA had ever formally approved – is not “frequent.” And the CC&Rs said that failure to enforce them was not a waiver; the court held that such provisions are enforceable as long as there had not been a “complete abandonment” of the restrictive provision. This is what the court spends the most time on and appears to be why the case was thought worthy of publication.

The Carefree lot and the adjoining land had been commonly owned until 1912. An implied way of necessity across the lot could exist if, when they were severed, the only access to the adjacent land had been across what is now the  lot. But all Vanyo could prove was that there was no recorded access road, not that there was in fact no access. The court found this insufficient. Carefree had presented some evidence of other access and Vanyo had a burden to disprove it. The court also “could not ignore” the fact, although Carefree hadn’t mentioned it, that a 1909 survey showed various roads running across the property (in other words, the court couldn’t resist weighing evidence and making arguments the parties hadn’t).

In a footnote the court says it needn’t decide whether a person can obtain a private way of necessity over his own land. As much as we don’t like footnotes, since the parties didn’t brief this that’s probably the best way to handle what should perhaps have been a main issue.

But the court held that Vanyo did have a claim for a public way of necessity. The statute (12-1202) allows the owner of landlocked property to condemn property rights for an easement. What Vanyo can condemn here is the provision in the CC&Rs preventing him from building the road. The court seems to agree that that sounds odd but points out that Carefree did not object to the idea that that can be done. So the court remanded for new trial on that issue.

(link to opinion)

THIS OPINION HAS BEEN VACATED

In this wrongful-arrest case the majority and the dissent agree that the law was clear to the arresting officers and then argue back and forth, for fourteen pages each, about what the law was.

Maricopa County Sheriff’s deputies arrested Ochser on a child-support warrant that turned out, unbeknownst to the Sheriff, to have been quashed. Ochser had a copy of the minute entry quashing it but the deputies didn’t look at it; instead they basically called their office and were told that the warrant was valid. So he sued them under §1983, alleging violations of the fourth and fourteenth amendments. The trial court granted summary judgment for the deputies; the Court of Appeals affirms.

Federal authority gives officers a qualified privilege to arrest on a facially-valid warrant. Ochser argued that they had an obligation to review readily-available objective information; his “expert” witness agreed with him. Federal authority says that if the warrant is facially valid then the officers have no duty to inquire further. That could have been enough to resolve the case but the court, which seems to have been following the briefs, uses a two-step qualified-immunity analysis from a U.S. Supreme Court case that a later Supreme Court case says isn’t necessary (as this court admits in a footnote).

The first question in the analysis is whether a constitutional right has been violated. It takes the majority a page, and two footnotes, to decide that jailing someone on an invalid warrant violates his rights. Or it apparently does, as the analysis never really reaches a conclusion. The real point of it seems simply to be that the first part of the two-step test shouldn’t be confused with the second.

Which is whether the right was “clearly established” such that “a reasonable official would understand that what he is doing violates that right.” The court concludes that it was objectively reasonable for the deputies to rely on the processes of the Sheriff’s office in checking the warrant. It distinguishes on their facts various cases that found no qualified immunity.

The dissent disagrees that those cases should be distinguished and therefore concludes that the law clearly established that the officers should have looked at – and, presumably, assumed to be valid – Ochser’s minute entry. The majority responds that those cases are, too, distinguishable and that the dissent relies on cases from the First and Third Circuits, not the Ninth or the Supreme Court.

The dissent beats the majority on footnotes, if nothing else, 8-5.

(link to opinion)

As we’ve said before, people file motions like this because they know that, once in a while, one of our trial judges will actually grant one. But you do sometimes have to wonder how they talked even their own client into believing.

The Nielson’s were injured when their plane hit a power line near the St. Johns airport. They sued St. Johns, the local power company (Navopache), and the Maricopa County firm that designed the airport, filing the case in Maricopa County. Navopache moved for change of venue to Apache County, arguing that the action concerned real property (i.e., it alleged that the power poles were in the wrong places in the ground) and therefore had to be brought where the property was (12-401(12)). The trial judge granted the motion. Plaintiffs then got a stay (from Apache County) and filed special action. The Court of Appeals accepted it and reversed. (The court treats this as a special action from Maricopa County so it isn’t clear if the case ever got to Apache County or, if it didn’t, how Apache County came to enter an order in it.)

12-401(12) deals with such things as title, possession, mortgages, rents, “and all other actions concerning real property.”  Under the doctrine of ejusdem generis “all other actions” means all other actions in which real property is the subject matter or basis of the action, not in which it is peripherally involved. When there are both tort and real property claims then the property venue may take precedence (Amparano) but the subject matter of this Complaint was personal injury, not real property.

The opinion is only eight pages long but does manage to include four footnotes, so it meets the CA1 style guidelines.

(link to opinion)