                    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       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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


         EARL LOUIS WHITMORE and JOHN B. WHITMORE,
                      Plaintiffs/Appellants,

                                       v.

  UNION PACIFIC RAILROAD COMPANY, a Delaware corporation,
                     Defendant/Appellee.

                            No. 1 CA-CV 14-0839
                              FILED 12-24-2015


          Appeal from the Superior Court in Maricopa County
                         No. CV2012-011581
                 The Honorable Mark H. Brain, Judge

                                 AFFIRMED


                                  COUNSEL

Earl L. Whitmore and John B. Whitmore, Phoenix
Plaintiffs/Appellants

Beaugureau, Hancock, Stoll & Schwartz, PC, Phoenix
By Anthony J. Hancock, W. Reed Campbell
Counsel for Defendant/Appellee
                     WHITMORE v. UNION PACIFIC
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Patricia K. Norris joined.


GOULD, Judge:

¶1            Appellants Earl L. Whitmore and John B. Whitmore, (“the
Whitmores”), appearing in propria persona, appeal the trial court’s judgment
granting Appellee Union Pacific Railroad Company (“Union Pacific”) a
prescriptive easement across a portion of their property to operate railroad
tracks. The Whitmores also challenge the trial court’s rejection of their
claims for damages stemming from Union Pacific’s use of the tracks. For
the reasons set forth below, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            The Whitmores appeal from a grant of summary judgment;
we therefore recite the facts in a light most favorable to them. Wells Fargo
Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 Pension
Trust Fund, 201 Ariz. 474, 482, ¶ 13 (2002). The Whitmores raise farm
animals on land they have owned since 1973 and leased from the prior
owner from 1960 to 1973. Unbeknownst to them, the prior owner entered
into an “Easement Agreement” with Union Pacific’s predecessor-in-interest
in 1960 establishing an easement to build and operate railroad tracks on
part of the land. The Easement Agreement provided that, if the railroad
did not build tracks within two years, the easement would expire.
According to the Whitmores, the tracks were not completed until 1975.

¶3             The Whitmores filed suit against Union Pacific in 2012,
alleging that Union Pacific’s use of the tracks had damaged their land in
numerous ways. Union Pacific counterclaimed to quiet title, contending
that it either held an express easement under the Easement Agreement or
that it had established a prescriptive easement through its longstanding use
of the tracks. Union Pacific then moved for summary judgment on the
Whitmores’ breach of contract claim and its counterclaim, which the trial
court granted.

¶4            The Whitmores then filed an amended complaint restating
the alleged harms they alleged were “a direct result of [Union Pacific] being



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                     WHITMORE v. UNION PACIFIC
                         Decision of the Court

on their property.” Union Pacific moved for a more definite statement
under Ariz. R. Civ. P. 12(e), and the trial court granted the motion. The
Whitmores then filed a second amended complaint stating approximate
dates ranging from the 1970s to 2012 for each alleged harm. Union Pacific
responded with a second motion for more definite statement, as well as two
partial motions to dismiss.

¶5           The trial court granted both partial motions to dismiss, at
which point the Whitmores withdrew the remainder of their second
amended complaint. The trial court entered final judgment granting Union
Pacific an easement and assessing costs and attorneys’ fees against the
Whitmores. The Whitmores timely appealed. We have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1).

                              DISCUSSION

I.    The Trial Court Properly Granted Summary Judgment on The
      Whitmores’ Breach of Contract Claim and Union Pacific’s Quiet
      Title Claim.

¶6             The Whitmores challenge the grant of summary judgment to
Union Pacific on its quiet title claim.1 We review the grant of summary
judgment de novo to determine whether any genuine issue of material fact
exists, viewing the evidence and all reasonable inferences in favor of the
non-moving parties. Russell Piccoli P.L.C. v. O'Donnell, 237 Ariz. 43, 46-47,
¶ 10 (App. 2015). Summary judgment is appropriate only “if the pleadings,
deposition, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter
of law.” Ariz. R. Civ. P. 56(c)(1) (2012).

¶7           In order to establish a prescriptive easement, Union Pacific
had to show that it actually and visibly used the land allegedly subject to
the easement for a specific purpose for ten years, that the use began and
continued under a claim of right, and that the use was hostile to the
Whitmores’ title. Paxson v. Glovitz, 203 Ariz. 63, 67, ¶ 22 (App. 2002).




1     The Whitmores do not challenge the trial court’s ruling on their
breach of contract claim, the rulings granting the motions for more definite
statement, or the rulings granting the partial motions to dismiss.

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                     WHITMORE v. UNION PACIFIC
                         Decision of the Court

       A.     Union Pacific Actually and Visibly Used the Tracks for
              More Than Ten Years Before the Whitmores Filed Suit.

¶8            The Whitmores first contend that the trial court improperly
granted summary judgment because the parties do not agree as to when the
train tracks were built. But the parties agree that the tracks were completed
by 1975 at the latest. The Whitmores further concede that Union Pacific has
used and maintained the tracks since they were completed. Union Pacific
and/or its predecessor thus actually and visibly used the tracks for
significantly more than ten years before the Whitmores filed suit in 2012.

       B.     Union Pacific Used the Tracks Under a Claim of Right.

¶9             Once a claimant shows open, visible, and continuous use of
the land for ten years, a presumption arises that the use was under a claim
of right. Gusheroski v. Lewis, 64 Ariz. 192, 198 (1946); Inch v. McPherson, 176
Ariz. 132, 136 (App. 1992). The Whitmores try to rebut this presumption by
contending Union Pacific did not “fly the flag” over the disputed land,
citing Knapp v. Wise, 122 Ariz. 327 (App. 1979).

¶10            Knapp does not support the Whitmores’ position. The Knapp
court found that the act of fencing in disputed property was sufficient to
“fly the flag” and put the owners on notice of an adverse claim. Id. at 329.
Again, the Whitmores do not dispute that Union Pacific has operated trains
on the tracks since at least 1975. They had ample notice that Union Pacific
was using the tracks under a claim of right.

¶11            The Whitmores also contend Union Pacific admitted that
genuine issues of material fact existed when it alleged that there was “an
actual, justiciable controversy … regarding whether Union Pacific has an
easement to use the subject property … .” The Whitmores are incorrect; this
allegation relates to the trial court’s jurisdiction to grant declaratory relief
under A.R.S. § 12-1831. See, e.g., Canyon del Rio Investors, L.L.C. v. City of
Flagstaff, 227 Ariz. 336, 341, ¶ 18 (App. 2011) (declaratory judgments can be
sought “[w]hen a justiciable controversy exists”). The Whitmores thus did
not establish any genuine issues of material fact as to whether Union
Pacific’s use of the tracks was under a claim of right.

       C.     Union Pacific’s Use Was “Hostile.”

¶12           Because Union Pacific’s longstanding use of the tracks was
undisputed, the Whitmores also bore the burden to show that the use was
not hostile. Spaulding v. Pouliot, 218 Ariz. 196, 201, ¶ 14 (App. 2008) (citing
Gusheroski, 64 Ariz. at 198). The Whitmores first contend Union Pacific’s


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                     WHITMORE v. UNION PACIFIC
                         Decision of the Court

use was not hostile because they “did not interfere with the laying of the
tracks; they did not call the police to try to stop the railroad and they never
asked the railroad to leave the property.” But the Whitmores also
acknowledge that they never gave Union Pacific permission to use the
tracks. The Whitmores’ unwillingness to “call the police” or “interfere with
the laying of the tracks,” standing alone, does not convert Union Pacific’s
use into a permissive use. See Lewis v. Pleasant Country, Ltd., 173 Ariz. 186,
190 (App. 1992) (“In order for a possession to be permissive, the possessor
must acknowledge that he holds the property in subordination to the
owner’s title”); see also Inch, 176 Ariz. at 135-36 (finding that placing gravel
on disputed land and using it as a driveway was sufficient to deem use
hostile).

¶13           The Whitmores also contend Union Pacific’s use was not
hostile because it commenced under the Easement Agreement. Even
assuming the easement provided for in the Easement Agreement expired
as the Whitmores contend, Union Pacific’s continued use of the tracks
under the mistaken belief that it held an express easement would satisfy the
hostility element. Inch, 176 Ariz. at 135.

¶14            For these reasons, we affirm the trial court’s order granting
summary judgment on the Whitmores’ breach of contract claim and Union
Pacific’s quiet title claim.

II.    The Whitmores Presented No Evidence of “Improper Courtroom
       Behavior.”

¶15           The Whitmores allege that the trial judge improperly
“encouraged the railroad to file a motion for summary judgment” during a
status conference. We have reviewed the transcript excerpt provided and
find no improprieties.

¶16            The Whitmores also argue that the trial court should not have
granted summary judgment because the motion “was set on a court date
and ruled on by the judge when the Whitmores were not there to defend
their position … .” Appellants offer no evidence to show why their failure
to attend the scheduled hearing should be excused or that their attendance
would have changed the trial court’s decision. See Ariz. R. Civ. P. 5.1(b)
(stating that attorneys “shall be responsible for keeping advised of … any
assignments for hearing or argument”); Kelly v. NationsBanc Mortg. Corp.,
199 Ariz. 284, 287, ¶ 16 (App. 2000) (“[A] party who conducts a case without
an attorney … is held to the same standards expected of a lawyer.”).




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                     WHITMORE v. UNION PACIFIC
                         Decision of the Court

III.   The Whitmores Did Not Oppose the Motion to Dismiss Their
       “Continuing Harm” Claims Below.

¶17            Finally, the Whitmores contend some of the damages claims
in their second amended complaint were not barred by the applicable
statutes of limitations because they were “continuing” in nature. They
point specifically to paragraphs 11(d), (f) and (h) of their second amended
complaint, which the trial court dismissed on Union Pacific’s motion.
However, the Whitmores did not oppose Union Pacific’s motion to dismiss
below, and then after the motion was granted withdrew the remaining
allegations in their second amended complaint. Under these circumstances,
the Whitmores cannot oppose the dismissal of these damage claims for the
first time on appeal. Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶
13 (App. 2000).

                              CONCLUSION

¶18          We affirm the trial court’s rulings as set forth above. We grant
Union Pacific its costs on appeal upon compliance with ARCAP 21.




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