NOTICE: NOT FOR OFFICIAL PUBLICATION.

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

PRECEDENT IAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

DONALD HAWKINS and MAUREEN HAWKINS, husband and wife

, Plaintiff s /Appell ees ,

v.

FLORENCE BLAIR

, Defendant/Appell ant

.

No. 1 CA

- CV 15

- 0227

Appeal from the Superior Court in Yavapai County

No. P1300 CV 20090599

The Honorable David L. Mackey

, Judge

AFFI RM ED IN PART; VACATED IN PART; REMANDED

COUNSEL

The Vakula Law Firm, PLC, Prescott By Alex B. Vakula Counsel for Plaintiff

s /Appell ee s

Florence Blair

, Prescott Defendant/Appell ant

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge John C. Gemmill joined.HAWKINS v. BLAIR

Decision of the Court

2 D O W N I E

, Judge:

Florence Blair a ppeals from judgments declar ing an easement

over her property and d ismiss ing her counterclaim for adverse possession

. For the following reasons, we affirm the dismissal of the counterclaim but vacate the judgment against Blair o n the implied easement claims.

FACT S AND PROCEDURAL HISTORY

Donald and Maureen Hawkins (collectively, “ the Hawkins”)

and Blair own r eal property in Yavapai County. T he Hawkins sued Blair

to quiet title to an easement for ingress, egress, and utilities over the north

25 feet of Blair’s property (the “Disputed Ease ment”). Alternatively, the

Hawkins sought either a private way of necessity or a prescriptive

easement. Blair denied th e existence of a valid easement , but alleged in a counterclaim that “if the Disputed Easement is valid, Blair has gained

adverse posses sion.”

The Hawkins and Blair propert ies were previously part of a unified parcel owned by John Magee. O wnership of th at unified parcel was

severed in 1980, when Magee sold part of the property known as the “Carlo

min ing claim” to Kenneth McIntyre. The Hawkins property, which consists of two parcels, was part of the Carlo mining claim. 1 Magee later sold the remaining property, known as the “Why Not mining claim,” to Douglas McIntyre. The Blair property was pa rt of the Why Not mining claim.

In November 2012, t he Hawkins moved for partial summary judgment on their claim for an implied easement based on common law theories of implied way of necessity and easement implied on severance

. The superior court granted the Hawkin s ’ motio n and later granted

summar y judgment to the Hawkins on Blair’s counterclaim as well

. Blair timely appealed. We have jurisdiction pu rsuant to Arizona Revised Statutes (“A.R.S.”) section 12

- 2101(A)(1).

1 Chain of title is undisputed. Hawkins parcel 1: Kenneth McIntyre to Roger and Barbara Miller (October 1980); Miller to Hawkins (March 1999). Hawkins parcel 2: Kenneth McIntyre to Susan Slavin (December 1980); under a trustee’s deed, to Coppercrest Leveraged Mortgage Fund LLC (“CLM”) (May 2008); CLM to Hawkins (June 2011). Blair parcel: Douglas McIntyre to Terry and Shirley Novak (May 198 1); Novak to Blair (June 1983).HAWKINS v. BLAIR

Decision of the Court

3 DISCUSSION

As a threshold matter

, the Hawkins ask that we not consider this appeal because Blair’s opening b rief fails to comply with th e A rizona

Rule s of Civ il Appellate Procedure

. U nless a brief is “totally deficient,”

however

, we prefer to decide appeals on the ir merits, rather than on procedural grounds

. Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984). Because the opening brief is not “totally deficient

, ” we will

address Blair’s claims as we understand them.

We review a grant of summary judg ment de novo

. Chalpin v. Snyder , 220 Ariz. 413, 418, ¶ 17 (App. 2008). Summ ary judgment is appropria te if “ there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). “ We view the facts and any inferenc es drawn from those facts in the light most favorable to the party again st whom judgment was entered. ”

Tierra Ranchos Homeowners Ass ’ n v. Kitchukov , 216 Ariz. 195, 199, ¶ 15 (App. 2007)

.

I. Easement by Implication

A. Implied Way of Necessity

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 th e time of severance ; and (4) reasonable necessity for access when severance occurred

. Coll. Book Ctrs., Inc. v. Carefree Foothills Homeowner s ’ Ass’n

, 225 Ariz. 533, 541, ¶ 30 (App. 2010). “[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).

I n pursuing their motion for partial summary judgment, the

Hawkins did not establish that the dominant estate

— the Carlo mining

claim

— was left without an outlet at th e time of severance

. Indeed, evidence

of record raises a factual question about whether the converse was true.

T he Hawkins submitted the declaration of Roger Miller , who purchased part of the modern

- day Hawkins property from Kenneth McIntyre in

October 1980

. Miller stated he was able to access the property by way of a

route he depicted in orange on a survey attached to his declaration. Miller

stated he began accessing the property by way of the Disputed Easement only after Blair blocked access to the “orange route” in 1986

— well after

severance occurred

. And in opposing the Hawkins’ motion, Blair raised a

clear factual issue regarding access by various routes at the time ofHAWKINS v. BLAIR

Decision of the Court

4 severance. Under these circumstances, t he superior court erred in granting summary judgment to the Hawkins on their implied way of necessity claim

.

B. Easem ent Implied on Severance

The elements of a n easement i mplied on severance are : (1) the existence of a single tract of land arranged so that one portion derives a benefit from the other, division by a single owner into two or more parcels, and separation of title; (2) long, continued, obvious or manifest use before separation occurs, to a degree that shows permanency; and (3) use that is essential to the beneficial enjoyment of the parcel to be benefitted. Koestel v. Buena Vista Pub. Serv. Corp., 138 Ariz. 578, 580 (App. 1984). “[I]t is required that the use shall have been so long continued prior to the severance and so obvious as to show that it was meant to be permanen t[.] ”

Id

.

T he record before the superior court did not establish “l ong, continued, obvious, or manifest use ” of the Disputed Easement prior to

severance

. The Miller s purchased part of the modern

- day Hawkins property

from Kenneth McIntyre

, but Miller stated in his declaration that he negotiated the transaction , including access, with Mag ee. During those negotiations, Magee told Miller that Magee would “cut in a road” so that Miller would “have a way to get up there.” According to Miller, Magee “cut and graded” the Disputed Easement “ i n about 1981”

— after the 1980

severance.

Based on the record before it, t h e superior court erred in granting summary judgment to the Hawkins on a theory of easement implied on severance

.

II. Adverse Possession 2

To prove adverse possession of the Disputed Easement, Blair was required to show by clear and convi ncing evidence that her use was

2 The Hawkins argued below that there was no pending counterclaim

because Blair failed to re

- assert her counterclaim when answering their amended complaint. However, an answer to an amended complaint does not supersede a separate and distinct counterclaim. Mohave Concrete &
Materials, Inc. v. Scaramuzzo, 154 Ariz. 28, 30 (App. 1987); see also 2 Daniel J. McAuliffe & Shirley J. McAuliffe, Ci vil Trial Practice § 13.19, n.5 (2d ed. 2001 ) (“The failure to replead a counterclaim in response to an amendedHAWKINS v. BLAIR

Decision of the Court

5 “actual, open and notorious, hostile, under a claim of right, con tinuous for [10 years], and exclusive.” See Sabino Town & Country Estates Ass’n v. Carr

, 186 Ariz. 146, 149 (App. 1996). Because the owner of a servient esta te claiming adverse possession of an easement “has the right to possess and use the land so long as that use is not inconsistent with the easement,” it

must be shown “by clear, positive and unequivocal evidence that its use of

the easement was inconsistent with and antagonistic to def endant’s right.”

Id

.

To the extent Blair contends she was denied due process

because she did not realize oral argument on the motion for summary judgment would be heard at the time of the final pretrial conference

, the record does not support her claim. By minute entr y dated August 19, 2014,

the trial court prescribed deadlines for dispositive motion s and motions in

limine and set a final pretrial conference for December 8, 2014

. The court

ordered that trial counse l and “any party representing themselves shall be present, and the Court will hear oral argument on pending dispositive

motions and motions in limine. ” Although Blair claims she did not understand what a “dispositive” motion was , “a party who conducts a ca se without an attorney is entitled to no more consideration from the court than a party represented by counsel, and is held to the same standards expected of a lawyer.” Kelly v. Nations Ba nc Mortg. Corp., 199 Ariz. 284, 287, ¶ 16 (App. 2000). Moreover

, Blair was offered an adequate opportunity to be heard.

T urning to the merits, t he Hawkins argued that Blair did n ot

carry her burden of presenting clear and convincing evidence in support of

her counterclaim ; the trial court agreed.

The only evidence Blair proffered was her statement that

, when she purchased her property in 1983, she rendered the Disputed Easement impassable by placing a chain across it. Not only is this legally

insuffic ient, see Sabino, 186 Ariz. at 150, but Blair’s statement is belied by other portions of the record. Miller stated that he used the Disputed

Easement to access his property from 1986 through 1999

. Further, Bob Foote, a housemate of Blair’s for approximately 11 years beginning in the late 1980s, stated the Dispu ted Easement was unchained and traversable, and he saw several people us ing it, including the Millers and Hawkins. He stated that Blair put a “daisy chain ” at the northeast entrance to the Disputed Easement in about 1999, but the Hawkins had a key to the lock on

complaint does not invalidate or waive a previously asserted counterclaim.”).HAWKINS v. BLAIR

Decision of the Court

6 one side of the chain. H e stated that he graded the Di sputed Easement for

the Hawkins “on several occasions.” Finally, Blair acknowledged that

several persons accessed the Hawkins property by way of the Disputed
Easement, includi ng a large well d rilling truck.

Based on the evidence before it, the superior court properly granted summary judgment to the Hawkins on Blair’s counterclaim.

CONCLUSION

We vacate the entry of summary judgment in favor of the

Hawkins on their implied easement claims, as wel l as the corresponding fee

award to the Hawkins

. We affirm the entry of summary judgment for the

Hawkins on Blair’s counterclaim. The Hawkins request an award of attorneys’ fees and costs on appeal pursuant to A.R.S. § 12

- 1103(B). Although the y prevailed on the counterclaim, the merits of the quiet title action have not been determined. We therefore deny the fee request

, but permit the superior court to award fees incurred on appeal, in its discretion, after it determines the successful party o n remand. Because each side has partially prevailed on appeal, we make no award of taxable costs.