                                                                     FILED BY CLERK
                        IN THE COURT OF APPEALS
                            STATE OF ARIZONA                            JUL 30 2010
                              DIVISION TWO
                                                                         COURT OF APPEALS
                                                                           DIVISION TWO


LYLE E. ROBINSON and MOLLY A.              )
ROBINSON, husband and wife,                )
                                           )     2 CA-CV 2009-0185
                    Plaintiffs/Appellants, )     DEPARTMENT B
                                           )
                v.                         )     OPINION
                                           )
THOMAS T. KAY and DENA S. KAY, )
husband and wife,                          )
                                           )
                   Defendants/Appellees. )
                                           )


       APPEAL FROM THE SUPERIOR COURT OF SANTA CRUZ COUNTY

                                  Cause No. CV08288

                       Honorable Anna M. Montoya-Paez, Judge

                                  APPEAL DISMISSED


Gregory L. Droeger                                                              Nogales
                                                      Attorney for Plaintiffs/Appellants

Mesch, Clark & Rothschild, P.C.
 By Douglas H. Clark and David J. Hindman                                   Tucson
                                                 Attorneys for Defendants/Appellees


V Á S Q U E Z, Presiding Judge.
¶1            In this quiet title action, Lyle Robinson and Molly Robinson (the

Robinsons) appeal from the trial court‟s summary judgment in favor of Thomas Kay and

Dena Kay (the Kays) on the Robinsons‟ claim that they had an implied easement to use a

roadway over the Kays‟ property. For the reasons that follow, we dismiss the appeal for

lack of jurisdiction.

                         Factual and Procedural Background

¶2            On appeal from a summary judgment, “we view the facts and all reasonable

inferences from them in the light most favorable to the nonmoving party.” Aranda v.

Cardenas, 215 Ariz. 210, ¶ 2, 159 P.3d 76, 78 (App. 2007). The Kays are the owners of

the Las Jarrillas Ranch and the Robinsons own the Tres Ballotas Ranch located in Santa

Cruz County. The two properties are separated by the Coronado National Forest. Since

1971, the Robinsons had used a roadway that extends across the Kays‟ property and

continues to the community of Arivaca. Beginning in 2007, improvements were made to

the roadway, including a detour from its original course. After the Robinsons had learned

of the improvements and proposed detour, a dispute arose between the parties concerning

the Robinsons‟ continued use of the roadway.

¶3            In 2008, the Robinsons filed a lawsuit seeking to enforce their use of the

roadway and to enjoin the Kays from placing a gate across it. The complaint alleged the

Robinsons had a right to use the roadway under alternative theories of easement by

implication and prescription. The parties filed cross-motions for summary judgment on

count one of the complaint, which alleged the Robinsons had an implied easement to use

the roadway. In their motion, the Robinsons characterized the easement by implication

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claim as one of “two arguments in support of their right to permanently enjoy the right to

pass over the original roadway.” The trial court denied the Robinsons‟ motion, granted

the Kays‟ cross-motion and, pursuant to stipulation of the parties, certified its order as a

final judgment pursuant to Rule 54(b), Ariz. R. Civ. P. This appeal followed.

                                        Discussion

¶4            Although neither party has raised the issue, we have an independent

obligation in every appeal to ensure we have jurisdiction, McMurray v. Dream Catcher

USA, Inc., 220 Ariz. 71, ¶ 4, 202 P.3d 536, 539 (App. 2009), and we must dismiss an

appeal over which we lack jurisdiction, Davis v. Cessna Aircraft Corp., 168 Ariz. 301,

304, 812 P.2d 1119, 1122 (App. 1991). Because “[p]ublic policy is against deciding

cases piecemeal,” our jurisdiction over appeals generally is “limited to final judgments

which dispose of all claims and all parties.” Musa v. Adrian, 130 Ariz. 311, 312, 636

P.2d 89, 90 (1981); see also A.R.S. § 12-2101. However, Rule 54(b) permits a trial court

to enter an appealable final judgment on fewer than all of the claims in a case, Garza v.

Swift Transp. Co., Inc., 222 Ariz. 281, ¶ 13, 213 P.3d 1008, 1011 (2009), where such

judgment “dispose[s] of at least one separate claim of a multi-claim action,” Davis, 168

Ariz. at 304, 812 P.2d at 1122.        We review de novo whether a trial court has

appropriately certified a judgment as final and appealable pursuant to Rule 54(b). Davis,

168 Ariz. at 304, 812 P.2d at 1122.

¶5            “A party has multiple claims if the factual basis for recovery states different

claims that could be separately enforced.” Id. “„However, when a claimant presents a

number of legal theories, but will be permitted to recover only on one of them, his bases

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for recovery are . . . simply presented in the alternative, and he has only a single claim for

relief.‟” Id. at 304-05, 812 P.2d at 1122-23, quoting Musa, 130 Ariz. at 313, 636 P.2d at

91. When a judgment merely disposes of one or more legal theories supporting a single

claim, “Rule 54(b) language does not make the judgment final and appealable.” Musa,

130 Ariz. at 313, 636 P.2d at 91.

¶6            Easements by prescription and implication are separate legal “theories”

supporting the existence of an easement; they do not in themselves constitute separate

“claims.” See, e.g., Capstar Radio Operating Co. v. Lawrence, 152 P.3d 575, 577 (Idaho

2007); Leisz v. Avista Corp., 174 P.3d 481, 484-85 (Mont. 2007); Hilley v. Lawrence, 972

A.2d 643, 647 (R.I. 2009); see also City of Chandler v. Ariz. Dep’t of Transp., 224 Ariz.

400, ¶ 24, 231 P.3d 932, 939 (App. 2010) (plaintiff‟s contention it had “prescriptive or

implied easement” considered as single claim). The Robinsons acknowledge this action

was brought to “quiet title as to a disputed roadway across the Kays‟ property in both

easement by prescriptive use and by implication.” Thus, “[t]he [Robinsons] are limited

to a single [remedy] against [the Kays] no matter how many theories they may advance.”

Davis, 168 Ariz. at 305, 812 P.2d at 1123.           And because their arguments for a

prescriptive or implied easement support “only a single claim for relief . . . Rule 54(b)

language c[an]not make the summary judgment which the [trial] court entered appealable

under A.R.S. § 12-2101(B).” Musa, 130 Ariz. at 313, 636 P.2d at 91.

¶7            Although we lack appellate jurisdiction, we may nevertheless exercise our

discretion to accept special action jurisdiction. See Grand v. Nacchio, 214 Ariz. 9, ¶¶ 20-

21, 147 P.3d 763, 771 (App. 2006). But neither party has requested that we do so, and

                                              4
even though the case raises “questions of law, which are particularly appropriate for

special action review,” the questions presented do not appear to be issues of first

impression or of statewide importance. See Chartone, Inc. v. Bernini, 207 Ariz. 162,

¶¶ 8, 9, 83 P.3d 1103, 1106-07 (App. 2004). Moreover, because the Robinsons “may

ultimately prevail    on the complete action, rendering interlocutory appellate

determinations unnecessary,” public policy against deciding cases piecemeal does not

favor our acceptance of special action jurisdiction. See Musa, 130 Ariz. at 312, 636 P.2d

at 90; see also Chartone, 207 Ariz. 162, ¶ 6, 83 P.3d at 1106 (special action jurisdiction

appropriate where “no equally plain, speedy, or adequate remedy by appeal); Ariz. R. P.

Spec. Actions 1. We therefore decline to do so.

                                       Disposition

¶8            For the foregoing reasons, we dismiss this appeal. The Kays request an

award of attorney fees and costs pursuant to A.R.S. § 12-1103(B) and, arguing the

Robinsons‟ appeal is frivolous, pursuant to Rule 25, Ariz. R. Civ. App. P. However,

given our dismissal of the appeal on jurisdictional grounds, any award of fees pursuant to

§ 12-1103(B) would be premature. And in our discretion we deny the Kays‟ request for

attorney fees under Rule 25. They did not challenge our jurisdiction of this appeal in

their answering brief and, in stipulating to an entry of judgment pursuant to Rule 54(b),

they share at least some responsibility for an appeal over which we lack jurisdiction. See

Ariz. Dep’t of Revenue v. Gen. Motors Acceptance Corp., 188 Ariz. 441, 446, 937 P.2d

363, 368 (App. 1996) (“The determination to award or decline attorney‟s fees [pursuant

to Rule 25] is within this Court‟s discretion.”). But as the prevailing party, the Kays are

                                            5
entitled to their costs on appeal upon compliance with Rule 21, Ariz. R. Civ. App. P. See

In re Perez, 71 Ariz. 352, 353, 227 P.2d 385, 385 (1951) (appellee entitled to costs as

prevailing party when appeal dismissed).




                                            /s/ Garye L. Vásquez
                                            GARYE L. VÁSQUEZ, Presiding Judge

CONCURRING:


/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge


/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge




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