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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 07-11-2024

IVEY, et al. v. CAPTIVA, et al.

Decision of the Court

3

¶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.
IVEY, et al. v. CAPTIVA, et al.

Decision of the Court

4

¶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.
IVEY, et al. v. CAPTIVA, et al.

Decision of the Court

5

¶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.
IVEY, et al. v. CAPTIVA, et al.

Decision of the Court

6

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 crosshatched 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.
IVEY, et al. v. CAPTIVA, et al.

Decision of the Court

7

¶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.
IVEY, et al. v. CAPTIVA, et al.

Decision of the Court

8

CONCLUSION

¶29 We affirm.