IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO ROBIN R. PLEAK and AUDREY PLEAK, husband and wife; and M ICHAEL T. SHURTLIFF and ANN SHURTLIFF, husband and wife, Plaintiffs/Appellants,

v. ENTRADA PROPERTY O WNERS’ ASSOCIATION, an Ar

izona non-profit corporation; PALO SECO CORPORATION, an Ar izona corporation; BETTY C. BRITTON, an unmarried woman; JUAN A. SOMOZA, an unmarried man; TRES PIEDRAS , L.L.C., an Arizona limited liability corporation; STEVE V. THILL, an unmarried ma n; CINDY D. BEGNER, an unmarried woman; EDNA C. STACK, an unmarrie

d woman; CAROLINE DODGE, a married woman; MARY R. DERRICK, an unmar

ried woman; FLEET MORTGAGE CORP., a

South Carolina corporation; DETLEF D. LANG E and SALLY F. LANGE, husband and wife; BGR, L.L.C., an Ariz

ona limited liability company; and MORTON R. ROSEN, a widower, Defendants/Appellees

. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2 CA-CV 2001-0100

DEPARTMENT B O P I N I O N

APPEAL FROM THE SUPER IOR COURT OF PIMA C OUNTY Cause No. C20001553 Honorable Jane L. Eiklebe rry, Judge REVERSED AND REMANDED2

Gust Rosenfeld P.L.C. By Charles W. Wirken Law Office of Mark Rubin, P.L.C. By Mark Rubin Mariscal, Weeks, M

cIntyre, & Friedlande

r, P.A. By P. Bruce Converse a nd Gary L. Birnbaum Phoenix Attorneys for Plaintiffs/

Appellants

Tucson Attorneys for Defendants/Appellees

Phoenix Attorneys for Amicus Curia e Land Title Association of Arizona E S P I N O S A, Chief Judge. ¶1 Plaintiffs Robin and Audrey Pleakand Michael and Ann Shurtliff (collectiv

ely, the Pleaks) filed this action see k ing a roadway easeme nt over real property the de fendants (collectively, Entrada) own or hold liens against. The Pleaks appeal from the trial court’s order denying their motion for summar y judgment

and granting partial summ ary judgment in favor

of Entrada, arguing Entrada’s predecessor in interest, First American Title Insuranc e Company of Arizona, dedicated the easeme nt to the public. The Pleaks f urther claim the trial cou rt erred in awardingEntrada attorney’s fees pursuant to A.R.S. § 12-341.01. We a gree F irst American dedicated the roadway e

asement to the public and r everse the judgment. Facts and Procedural H

istory ¶2 In

reviewing a grant of summ ary judgment, we view the facts and all

reasona ble inferences in the light most favorable to the party opposing the motion

. Link v. Pima County , 193 Ariz. 336, 972 P.2d

669 (App. 1998). On June 3, 1 988, First American rec orded a “Record of Survey” on three adjacent sectio ns of real property in rural Pim a County comprising the

Entrada property. The su rvey divid ed each section into sixteen, forty-acre parcels and depicted an1 The Pleaks’ complaint, the trial court’s ju

dgment, an d, accordingly, the scop e of our review are limited to add ressing only the status of Kolb R oad abutting Entrada’s prop erty. 3 easement, later nam

ed Kolb Road by the

county, along the eastern edge of the aligned secti ons. The one-page survey als

o contained a “Grant of

Roadway and Utility Easem ent” stating, “First American Title Insurance Compa

ny of Arizon

a, a n Arizona corporation, as Trustee, the owner of record of the property included in the easeme nts s hown hereon[,] hereb y dedicate[s] these easements to the public f or the use as such.” A First Am erican officer attest

ed the survey. ¶3 The Pleaks, who own real property in a section abutting the easter n edge of the Entrada property, filed a three-

count complaint requesting the trial cou

r t to declare that First American had dedicated the Kolb R oad easement to the public , quiet title in the roadway “in trust forthe public,” and permane ntly enjoin Entrada

from interfering with the Pleaks’ use of the Kolb Roadeasement. 1 They also alleged t he survey “constitute[d] a co ntract, express or implie d, between [ First Ame rican] and Pima County and members of the pub lic” and argued, “as the

succ essfu l parties in this action, [they were] entitled to recove

r their attorneys’ fees p

ursuant to A.R.S. § 12-341.01.” The Pleaks also requested attorney’s fees pursuant to A.R.S . § 12-1103. Entrada filed a counterclaim a

sking thetrial court to quiet title in the easement “as a priv ate road” and to enjoin the Pleaks from using it. ¶4 The Pleaks moved for summ ary judgment, conte

nding tha t First American had dedicated the easement to the public , both statutorily and pursuant to common law. Entrada filed

across-motion for summa ry judgment. The

trial court granted partial summary judgme nt in favor of Entrada on count one, find ing that the survey did not constit u te a statutory dedication of the roadway to the public

and that, although First

American had intended t o dedicate the easeme

nt to the public, because the dedication had never bee n acce pted, no common law dedication had4

occurred. The court also

awarded Entrada their a

ttorney’s fees. After

the court denied the Plea

ks’ motion for reconsiderati

on, they appealed.

Statutory Dedication ¶5 Summary

judgment is proper if the evidence presented by the party opposing the motion has so little probative value, giv en the required burden of proof, that reasonable j

urors could not agree wi

th t he opposing party’s conclusions. Ariz. R. Civ. P. 56(c)(1), 16 A.R.S., Pt. 2; Orme School v. Ree ves , 16 6 Ariz. 301, 802 P.2d 1000 ( 1990). In reviewing a gra nt of summary judgment, we determine de novo whether any genuine issues of material fac

t exist and

w hether the trial court erred in applying the law. Bothell v. Two Point Acres, Inc. , 192 Ariz

. 313, 965 P.2d 47 (App. 1998). ¶6 We first address the Pleaks’ contention that summar y judg ment was erroneous because the survey constituted a statu tory dedication of

the roadway. The Pleaks admit the survey does not meet the requirement

s of A.R.S. § 11-806. 01 as a plat depicting a subdiv ision under the county’s jurisdiction, see A.R.S. § 32-2101(54) (defining “subdivision”), but contend the survey fulfills the requirements of A.R.S. § 9-254. That section provides:

Upon filing a map or plat, the fee of the stre ets, alleys, avenues, highways, parks and other parcels of ground reserved therein to the use of the public vest s in the town, in trust, for the uses therein expressed. If the town is not incorporated, then the fee vests in the county until the town b ecomes incorporated. Whether the statute can serve as th e basis for any dedication of the easement here

is a question of law subject to our de novo review. See State v. C & H Nationwide, Inc., 179 Ariz. 164, 876 P.2d 1199 (App. 1994). ¶7 Ourprincipal goal in interpreting a statute is to discern legislative intent. Moore

v. Browning , 203 Ariz. 102, 50 P.3d 8 52 (App. 2002). Th

e cleares t indication of legislative2 Section § 611, Rev. S tat. Ariz. (1901), prov

ided: Upon the filing of any such map or plat, the fee of all streets, a lleys, avenues, highway[s], parks and oth er parcels of gr

ou nd reserved therein to the use of the public, sha ll v est in s uch city or town, if incorporated, in trust, for the uses therein named and expressed; or if such town be not incorporated, then in the county until such town shall become incorpora

ted, for the like uses. 5 intent is a statute’s language. Lowing v. Allstate Ins. Co. , 176 Ariz. 101, 859 P.2d 724 (1993). But we may nonetheless limit th e scope of an otherwi

s e unambiguous statute to con form to the statutoryscheme in which the statute is f ound. See Estate of Hernandez v. Arizona Bd. of Regents , 177 Ariz. 244, 866 P.2d 1330 (1994); Ruth Fisher Elementary S ch. Dist. v. Buckeye Union High Sch. Dist. , 202 Ariz. 107, 41 P.3d 645 (A pp. 2002). And, although titl e and section headings of statutes are not law, we may look to them for guidance. Florez v. Sargeant , 185 Ariz. 521, 917 P.2d 250 (1996). ¶8 Section

9-25 4 li es within Title 9 (titled “Cities and Towns”), Chapter 2 (ti tled “Form o f Government”), Articl e 3 (titled “Town Incorpora ted under Common Counc il Government”). Section 9-251, A.R. S., prov ides in part , “[w]hen a town is laid out, the proprietorsof the town shall cause to be made an accurate

plat or map thereof . . . .” Themaps required under § 9-251 must be acknowledged and filed with the county rec o rder and with the town clerk. A.R.S. § 9-252. These headings and statute s clearly encompass

only issues affecting cities and towns and

strongly suggest the legislature did not intend

§ 9-254 to apply to land such

as Entrada’s, which lies enti rely outside the shadow of a ny municipality’s corpora te boundaries. ¶9 Oursupreme court reache d this same result with respe ct to § 9-254’s predecessor statutein County of Yuma v. Leidendeker , 81 Ariz. 208, 303 P.2d 531 (1956). 2 There, the owner of a forty-acre parcel had recorded a plat that subdiv ided a property into ten block s. A reference6

on the plat stated one block was dedicated to the public for use as a park. Over forty years later, the block’s successo

r owner sought to have the dedication declared ineffective or the public’s interest deemed abandoned. In addressing the applicability of § 9-254’s predecessor, the supreme court concluded that, based on the statutory scheme, the le gislature had intended it to ap ply only to pro perty either within a munic ipality or adjacent to and pa rt of a proposed addition ther eto. Because the property had been neither at the time the plat was re corded, the court held the statute didnot apply. As in Leidendeker , the record here doe s no t show that, when First American recorded the survey, Entrada’s pro perty la y either within a municipality or a pro posed addition to a municipality. We there fore conclude § 9-254 is no t a viable basis for find

ing a s tatutory dedication of Entrada’s p roperty. Common Law Dedication ¶10 The Pleaks alternatively ask us to find that th e survey established a common law dedication

of the Kolb Road easem ent to the public. Such a “[ d]edication is

the intent ional appropriation

of land by the

owner to some proper public use.” Allied Am. Inv. Co. v. Petti t , 65 Ariz. 283, 287, 179 P.2d 437, 4 39 (1947). “The right conf erred by common law de dication is only an easement.” 26 C.J.S. Dedication § 2 (1991); see also Moeur v. City of Tempe , 3 Ariz. App. 196, 412 P.2d 878 (1966). “An intent to dedicate must be clearly shown and the burde n of proof of establishing a dedicatio n is on the one asserting it.” Lacer v. Navajo County , 141 Ariz. 396, 402, 687 P.2d 404, 410 (App. 1983). ¶11 Entr adacontends Arizona courts no longer recognize comm

on law dedication of

roa dway easements, citing Burlington Northern & Santa Fe Railway Co. v. Ariz ona Corp

. Commission , 198 Ariz. 604, 12 P.3d 1208 (App. 2000). The Pleaks point out that Entrada failed to raise this argument befo re the trial court, suggestin g it is therefor

e waived on appeal. See7

Souzav. Fred Carries Contracts, Inc. , 191 Ariz. 247, 955 P.2d 3 (App. 1997). We neve rtheless exercise our discretion to address it because it is an importan t issue bearing on the disposition o f this appeal. See Bank One, Arizona v. Rouse , 181 Ariz. 36, 887 P.2d 566 (App. 1994); see also Nestle Ice Cream Co. v. Fuller , 186 Ariz. 521, 924 P.2d 1040 (App. 1996). ¶12 Arizona

courts follow the common law to the extent i

t i s “not repugnant to or inconsistent

with the constitution of the Unite d States or t

he con stitution or laws of this state.” A.R.S. § 1-201; see also Berthot v. Sec urity Pac. Bank of

Arizona , 170 Ariz. 318, 823 P.2d 1326 (App. 199 1) . If possible, we constru e statutes consistently with the common law. Unless the legislature

has clearly manifested its intent to do so either expressly or by necessary implication,

we will not find the legislature has abrogated the common law. United Bank of Ariz. v. M esa N.O. Nelson Co. , 121 Ariz. 438, 590 P.2d 1384 (1979); see also Wyatt v. Wehmueller , 167 Ariz. 281, 806 P.2d 870 (1991). ¶13 In Burlington , pursuant to its statutory authority

to determine whether crossings at “public roads or streets” are nec essary, A.R.S. § 40

-337(C), the Arizona

Corpora tion Comm ission had ordered the plainti

ff railway company to maintain a road crossing it had intended to close. On appeal, the company c

hallenged the commission’s jurisdiction, arguing th e r oad was not a public road. Although the roa d had never been “established by any gov ernmental entity as a public road,” Burlington , 198 Ariz. 604, ¶5, 12 P. 3d 1208, ¶5, the commissio n argued that a history of public use

had prescriptively established it as a public roadway. Division O ne of this court rejected the commission’s argume nts, n oting that “Arizona courts hav e repeatedly interpreted Arizona law as providing th at public roads and highways can only be established as provided by statute and not by other me ans such as pre scriptive use.” Id. at ¶18. The court further stated:8 We have found one ca se sugges ting that public roads may be established by “common-law dedica tion and acceptance.” Rodgers v. Ray , 10 Ariz. Ap p. 119, 121, 457 P.2d 281, 283 (1969). Rodgers , however, relies on Allied American Investm ent Co. v. Pettit , 65 Ariz. 283, 290, 179 P.2d 437, 441 (1947), in which the issue was whether a subdivision plot was properly dedicated as a public park. We find Rodgers entirely unpersuasive on this point. Burlington , 198 Ariz. 604, n.2, 12 P.3d 1208, n.2. ¶14 The Pleaks ask us to reject this stateme nt in Burlington

as constituting no more than dictum, citing several cases that, they argue, have recognized com mon law dedications of

public roadway easements. Avery v. Drane , 77 Ariz. 328, 271 P.2d 480 (1954); Drane v. Avery , 72 Ariz. 100, 231 P.2d 444 (1951), overruled in part on other g rounds, Ch adwick v. Larsen , 75 Ariz. 207, 254 P.2d 1010 (1953); Edwards v . Sheets , 66 A riz. 213, 185 P.2d 1001 (1947); Thorpev. Clanton , 10 Ariz. 94, 85 P. 1061 (1906). But in each of these case s, as the Pleaks acknowledge, the dedication at issue occ urred before the enac

tment of the Arizona Revised Statutes of 1901, when the legislatur e “changed the law so

that, thereafter, ‘in

Arizona, “public highways” are limited to tho se est ablished in the manner provided by law and to no others.’” Burlington , 198 Ariz. 604, ¶20, 12 P. 3d 1208, ¶20, quoting State ex rel. Herma n v. Cardon , 112 Ariz. 548, 549, 544 P.2d 657, 658 (1976). ¶15 The Pleaks maintain, howev er, thata roadway such as the Kolb Road easement here is neither a

“public highway” nor a private road and sugg est that, as the amicus c

uriae frames the issue, there “exists a class of roa ds which are

public, in the sense that the public has a right to use them, but which the governm ent has not yet committed to maintain. These latter r oads may be established by common law . . . but [ that law] impose[s] no bu rden on anyone

to maintain [them].” Notwithstanding Entrada’s sugg estion to the contrary, the issue of maintenance is not9

before us, and we limit our discussion to whether Arizona law permits the dedication of a roadway easement to the public by o ther than statutory means. ¶16 The Pleaks rely on Leidendeker for their contention that a roadway easement can be dedicated to the public under the common law. As discussed earlier, our supreme court found in that case that recording a plat had not effectuate

d a statutory dedication within the meaning of § 9-254 of property situated o utside any municipality’s actua l or proposed boundaries. Th e court then addressed whether a co

mmon law dedication had occurred, noting the common law rule that the mere act of surveying land into lots, streets, and sq uares by the owner, and the recordati on of such plat, constituted an of fer to dedicate and was subjectto revocation by the dedicator until it was accepted, but the mere act of sellin g lots with

reference to

such plat resulted in an immediate and irrevocable common la

w dedication

of areas delineated there

on for public purposes. Leidendeker , 81 Ariz. at 213, 303 P.2d at 535. Applying that rule, the c ourt held that the park had been dedicated to the publ ic because

the owner of the land had recorded the plat with language purporting to do so and had sold lots referring to the recorde

d plat. ¶17 The supreme court addresse d asimi lar question more than sixty y ears earlier in Evans v. Blankenship , 4 Ariz. 307, 39 P. 812 (1895). There, the

owner of a parcel had recorded

aplat on which a parcel was labeled “Public Grounds.” Id. at 313, 39 P. at 812

. Referring to Archer v. Salinas City , 28 P. 839 (Cal. 1892), for

the principle that the sale o f property referring to a plat containing a dedication to the public constitutes acce ptance of a common la

w dedication, the court held that referenc e to the park in the plat couple d with the ow ner’s sale of parcels referring to the plat constituted a dedication of the park. Indeed, the United States Supreme Court noted long before Evans that dedication of property to public use is a “we ll-established principle of the common law.” Mayor of New Orleans v. United State s , 35 U.S. (10 Pet.) 662, 712, 910

L. Ed. 573, 593 (1836). Moreover, the Court als o noted “[i]t is not essential tha t th[e] right of

use [of property dedicated to the public] should be veste d in a corporate

body; it may exist in the public, and have no other limitation than the wants of the c ommunityat large.” Id. at 713, 9 L. Ed. at 593. Thus, under the common law, it is unnecessary that the title of property dedicated to the public vest in a governing body for its use t o actually be dedicated to the public. Suc h a notion in the common law is distinc t from statutory dedication under either § 9-254 or § 11-806.01, in which title to a public roadway vests in trust in a governing body. ¶18 Citing among other cases Cardon , and Champie v. Castle Hot Springs Co. , 27 Ariz. 463, 233 P. 1107 (1925), and a cknowledging that commo n law dedication of

propertyis generally allo wed, Entrad a nonetheless contends tha t Arizona has rejected the common law method of dedicatingroadway easements. We disagree thatthose cases necessarily so hold. The defendants in Cardon

owned business property off a road in an unincorporated town. The state and Gila County sued the defendants after they destroyed a portion of a curb the state had constructed along the road to allow automobile ac cess to their property. In affirming the trial court’s denial of relief,

oursupreme court noted that the county was empowered only to ex pend public money on “public highways.” The court also noted that, pursuant tothen A.R.S. § 18-209( B), although the county had authority todesignate roads and stree ts within unincorporated are a as public

highways, it had not so designated the roadway at issue. The court conclu ded the road was not a

public highway “in the restricted sense . . . [of] streets, roads or w ays accepted by

the governing authority upon whichpublic monies could be expende d without limitation,” Cardon , 112 Ariz. at 551, 544 P. 2d at 660, and held that, becau s e the county had not been a uthorized to construct the c urb on the road, the defendants were en titled to remove it. In rea ching its conclusion, the cou rt relied on the statutorydefinition of a “public highwa y,” as distingui shed fro m its common law definitio n,11

namely, a “‘way common and free to all the king’s subjects to pass and repass at liberty.’” Id. , quoting House-Wives League, Inc. v. Ci ty of Indianapolis , 185 N.E. 511, 513 (Ind. 1933), quoting State v. Berdetta , 73 Ind. 185, 185 (1880) . Althoug h the c ourt said, “[I]n Arizona[,] ‘pu blic highways’ are limited to tho se established in the manne r provided by law and to no others,” Cardon , 112 Ariz. at 549, 544 P. 2d at 658, that statement w as by implication

limited to the statutory definition of “public highways.” Because we a ddress only the Pleaks’ argument that First American created a common law public roadway and because the court in Cardon

made no pronouncement on the con tinuing viability of such roadwa ys, we find Cardon

inapposite. ¶19 In Champie , the plaintiff had filed a trespass action against the defendant, alleging he competed with the plaintif f’s stables by bringing horse s onto the plaintiff’s proper ty and renting them to the plaintiff’s customer s. Thetrial court permanently e njoined the defendant fr

om taking his horses onto the plaintiff’s p roperty despite his claim

that the property was a public road created by prescription. On review, the supreme court rejected the notion th at publicroadways could be createdby prescription. Although, as Entrada p oints out, the court stated tha t the only method of establishing public roads was statutory, that statement does not preclude a finding of common law dedication of a public roadway, not only because the issue was not b efore the court, but also because the court expressly affirmed its

previous holding in Territory v. Richardson , 8 Ariz. 336, 76 P. 456 (1904). ¶20 There, the defendants were char ged with digging up a private way. I n affirming the trial court’s sustaining of the defendants’ demurre

r, the supreme court ad

dressed the

definitions of public highway and privat e way, noting that, in 1901, the legislature had declared “vacated” all roads within the

territory that were not public highways. The court held tha t, by doing so, the legislature

had not automatically made vac at ed roads into private ways bu t had instead created,12

in addition topublic highways and private w ays, a third class of road s within the state, namely, “roa ds establ ished without authority [of law ] for the convenience o

f individuals, and without a legal status either as public highways or p rivate ways.” Id . at 339-40, 76 P. at 4 57. Thus, roadwaysthathave been dedicated to the public, see New Orleans , but have not been accepted by

agovernment body, see §§ 9-254, 11-806. 01, fall within the ambit of public roads under Richardson

. Accordingly, the common law ded ication of roadways is not inconsistent with the statutorymethods for creating pub lic highways, and we conclud e that parties to land transf ers may still employ the common law to dedicate public roadway easements. See § 1-201; Berthot

. ¶21 We therefore turn to the Ple aks’ argument thatEntrada’s predecessor in interest, First American, effec

ted a common law dedi

cation of the

Kolb Road easement. The Pleaks maintain that under Leidendeker and Evans , once a “plat” purporting to dedicate land to the public had been recorded, the sa le and purchase of parc

els referrin

g to that plat constituted effe ctive acceptance of th e dedication as it pertains to members of the public a t large. The trial court, however, found that the survey here did not constitute a plat, noting that, whereas a plat under § 11-806.01 requires “not only exact dimensions, but also water and sewa

ge pla ns, as well as approval by the county’s legislative bo dy,” the survey here “only se ts forth ageneral description of the land, describing the

boundaries of a large tra

ct of land.” But in its brief on a ppeal, Entrada acknowledg es the sur vey “may constitute a plat f or purposes of meeting [th e] requirements associated with a common-law ded icatio n.” We agree. See Transamerica Title Ins. Co. v. Cochise County , 26 Ariz. App. 323, 548 P.2d 416 (1976) (statu te enumerating require

ments of platrecorded in county jurisdic tion inapplica ble to division of land into parc els of 36 acres or more); Black’s Law Dictionary 115 1 (6th ed. 1990) (defining “plat” as “[a] map of a spec ific land

areasuch as a

. . . subdivision showing the locatio n and boundaries of individua l parcels of land13

subdivided into lots, with streets, alleys,easements, etc., usually drawn to a scale”); see also Ten Z’s Inc. v. Perry , 166 Ariz. 203, 204, 801 P.2d 438, 439 (App. 1990) (in addressing adequacy of legal description in trustee’ s sale, “[t]he crucial question to be answe red is whether a member of the public who saw the

notice in question would be abl e, without

difficulty, to determine what property was being noticed for sale”). ¶22 Entr adanevertheless contends tha t, even “if appellant’s le gal theory can be sustained under Arizona law,” ques tions of fact remain as to whe ther thesurvey “established an intent to dedicate” the Kolb Road easement. The trial court, however, expre ssly found that First American had recorded the survey with th e intent “to dedicate a seve nty-five foot strip of land f or
aroadway and utility

easement.” Entrada

failed to make this argum ent or controvert the Plea ks’ factual assertion below, adopted by the trial court, a ndthereby waived the issue on appeal. See United Bank of Arizona v. Allyn , 167 Ariz. 191, 805 P.2d 1012 (App . 199 0) (party opposing summary judgment must respond with f acts showing genuine issue if movant offers evidence demonstrating

entitlement to summary

judgment); see also Napier v. Bertram , 191 Ariz. 238, 239, 954 P.2d 1389, 1390

(1998) (“Ordinarily, cou rts should not consider new factual theories raised forthe first time on appeal f rom summary judgment o r judgment

on the pleadings.”). Absent such questions of fact, the survey here defined the K olb Road easement with sufficie nt specificity to demonstrate an intent to “de dicate these easeme

nts to the public for the use as such.” ¶23 The trial court also found that, although Entrada had purch ased parcels of land, th

e ge ne ral public had never accep ted the dedication. Entrad a agrees, asserting tha

t a dedication is not accepted by the public

until both the purchasers of land and the general pu blic accept it, citing three cases from othe

r jurisdictions. City of Santa Clara v. Ivancovich , 118 P.2d 303 (Cal. Ct. App. 1941) (recorded plat pur porting to dedicate roadwa y to publ ic was invalid attempted14

dedicati on

becauseonly one of two purchasers had signed deed conveying property); Litvak v. Sunderland , 353 P.2d 381 (Colo. 1960) (attempt to accept roadway made more thansixty years after dedication

held ineffective); Houghton v. Woodley , 313 S.E.2d 225 (N.C. Ct. App. 1984) (member of public may acquire rights to road way dedicat ed by plat only upon government’s acceptance o f dedication). We note that these cases are readily distinguishable from the one at hand a nd that only Houghton appears to provide Entrada any support. More importa ntly, our supreme court has adopted a contrary view, allowing the sale of property to constitute acceptance by the public. Leidendeker; Evans . Thus, Entrada’s cases are inapposite. See City of Phoenix

v. Leroy’s Liquors, Inc. , 177 Ariz. 375, 868 P.2d 958 (App. 1993) (court

of appeals bound by controllingdecisions of supreme co urt). Accordingly, unde

r Arizona law, Entrada’ s purchase of land referring t

o the recorded survey and the delineated Kolb Road ea sement completed the common law dedication o f the roadway easeme

nt. ¶24 We disa gree with Entrada that this re sult “forces private landow ners to provide public access to property they do n’t own, so long as they want a ccess to th

ei r own property.” Instead, our decision merely conf irms an d effectuates First American’s attempt to attract purchasers

b y creating a p ublic easement allowing a ccess to its rural land. It is also consistent with the purcha sers’ kno wledge that First America n had, according to the sur vey, “dedicate[d] theseeasements to the public for the use as such.” Bec ause dedication

of the Kolb Road easem

ent

was complete upon

the sale of lots referring

to the recorded survey, see Richardson , the trial court erred in granting summa ry judgment in Entrada’s f avor. Attorney’s Fees ¶25 The Pleaks contest the trial co urt’s authority to

award attorney’s fees against them pursuant to § 12-341.01, arguing in direct contravention of the position they took in their15

complaint. But because Entrada is not the prevailing party, we vacate the trial court’s

award of attorney’s fees. Disposition ¶26 The trial court’s order granting Entrada partial summary judgment and attorney’s fees is reversed, and the ca se is remanded for furt

her proceedings consist

e nt with this decision. At oral argument, the Ple

aks urged that we also direct the trial court to enter summ ary judgment in their favor. Although the de nial of summary judgme nt is generally neither appe alableno r subjectto review, we may in ce rtain lim ited circums tances reverse a trial c ourt’s denial of

summa ry j udgment. See Bothell v. Two Point Acres, Inc. , 192 Ariz. 313, 965 P.2d 47 (App. 1998). We decline

to do so here, however, because of the remaining counts requ iring resolution by the trial court. In our discr etion, we deny the Pleak s’ request for attorney’ s f ees on appea l made pursuant to § 12-1103.

PHILIP G. ESPINOS A, Chief Judge CONCURRING:

J. WILLIAM BRAMMER, JR., Judge.

WILLIAM E. DRUKE, Judg e (Retired)