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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


 WALTER A. HEUSCHKEL and BONNIE L. HEUSCHKEL, husband and
            wife, Plaintiffs/Counterdefendants/Appellees,

                                         v.

    COLLEEN RAE YOUNG; MICHELE (ROBINSON) BERGMANN,
             Defendants/Counterclaimants/Appellants.

                              No. 1 CA-CV 14-0501
                                FILED 6-30-2015


            Appeal from the Superior Court in Mohave County
                        No. B8015CV201304007
               The Honorable Randolph A. Bartlett, Judge

                                   AFFIRMED


                                    COUNSEL

Gregory & Elias, PLC, Bullhead City
By Kenneth L. Gregory, T’shura-Ann Elias
Counsel for Plaintiffs/Counterdefendants/Appellees

Law Offices of Gregory A. Ring, Bullhead City
By Gregory A. Ring
Counsel for Defendants/Counterclaimants/Appellants
                   HEUSCHKEL v. BERGMANN, et al.
                        Decision of the Court



                      MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge Michael J. Brown joined.


G E M M I L L, Judge:

¶1          Colleen Young and Michele Bergmann appeal the Mohave
County Superior Court’s summary judgment quieting title to a parcel of
land in favor of Appellees Walter and Bonnie Heuschkel (“the
Heuschkels”). For the following reasons, we affirm.

                                  FACTS

¶2            This case involves a dispute over ownership of six lots in
Bullhead City, Arizona (“the Property”). The Property was originally
owned by Vicki Crawford and Charlene Shreves, as tenants in common
with equal fifty-percent interests. Crawford died in June 1998 and Shreves
died in August 2002.                Appellants Bergmann and Young
(“Bergmann/Young”) are beneficiaries of the two respective estates.

¶3            In either May or June of 2002, before Shreves passed away,
the Heuschkels began negotiating to buy the Property after they saw it
advertised for sale. They entered into dealings with Shreves’ step-daughter
Rebecca Lasa, who claimed that she had authority on behalf of both owners
of record to sell and dispose of the property. Two months after Shreves’
death, the Heuschkels and Lasa executed two documents involving transfer
of the Property. The documents were titled, respectively, “Sale Agreement
to Purchase Real Estate” and “Commercial Lease.” The Heuschkels
immediately took possession of the Property and began to operate their
business thereon. By the time this litigation began, the Heuschkels had paid
the Property’s full purchase price.

¶4           In June 2007, the probate issues of the estates of Crawford and
Shreves were resolved and finalized. Lasa, acting as the Personal
Representative of Crawford’s estate, deeded Crawford’s interest in the
Property to her heirs. The Personal Representative of Shreves’ estate




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                    HEUSCHKEL v. BERGMANN, et al.
                         Decision of the Court

deeded Shreves’ interest in the property to her heirs. In total, twelve
different grantees were given interests in the Property.1

¶5              In 2012, the Heuschkels hired counsel and sent letters to all
twelve heirs, demanding that the heirs convey their respective fractional
interests in the Property to the Heuschkels. Of the twelve, ten complied
with the demand and quitclaimed their respective interests to the
Heuschkels. Bergmann/Young, however, refused to comply. The
Heuschkels filed a quiet title action against them in superior court, claiming
title to the Property by adverse possession.

¶6             Bergmann/Young filed a motion for summary judgment,
arguing the Heuschkels had not proven they possessed the land in a
manner hostile and adverse to the interests of Bergmann/Young for the
statutory period. The Heuschkels filed a cross-motion for summary
judgment. The court denied Bergmann/Young’s motion and granted
judgment in favor of the Heuschkels. The court then entered an order
quieting title and awarding attorney fees, from which Bergmann/Young
timely appeal. This court has jurisdiction under Arizona Revised Statutes
(“A.R.S.”) sections 12-2101(A)(3) and -2101(A)(7).

                               DISCUSSION

¶7             This court reviews de novo a trial court’s grant of summary
judgment, viewing the evidence in the light most favorable to the party
against whom judgment was entered. Law v. Verde Valley Med. Ctr., 217
Ariz. 92, 94, ¶ 7, 170 P.3d 701, 703 (App. 2007).

¶8            Adverse possession is defined as “actual and visible
appropriation of [ ] land, commenced and continued under a claim of right
inconsistent with and hostile to the claim of another.” A.R.S. § 12-521(A)(1).
Adverse possession of land requires a claimant to show that the possession
was actual, open, hostile, pursuant to a claim of right, and continuous and
exclusive for a ten-year period. Lewis v. Pleasant Country, Ltd., 173 Ariz. 186,
189, 840 P.2d 1051, 1054 (App. 1992).
¶9            Bergmann/Young argue that the Heuschkels cannot meet the
requirements of adverse possession for two reasons. First, they claim that


1 Collectively, Bergmann/Young claim ownership of 16.25 percent of the
land: Bergmann asserts that she is entitled to a 6.25 percent interest, and
Young asserts that she is entitled to a 10 percent interest.



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                    HEUSCHKEL v. BERGMANN, et al.
                         Decision of the Court

the Heuschkels entered the Property under a lease, rather than a purchase
agreement, and therefore had no claim of right. Second, because the
Heuschkels entry on the Property was permissive, Bergmann/Young assert
they did not possess the land hostile to the claims of all others.

       A.     The Sale Agreement and Commercial Lease

¶10            Bergmann/Young first argue that the Heuschkels’ claim is
barred from the outset, because they were tenants and not purported
owners of the Property. It is well-settled that a tenant cannot bring a claim
for adverse possession against its landlord. Pleasant Country, 173 Ariz. at
189–90, 840 P.2d at 1054–55; Quon v. Sanguinetti, 60 Ariz. 301, 303, 135 P.2d
880, 880 (1943); Gibbs v. Basham, 53 Ariz. 357, 364, 89 P.2d 630, 633 (1939); see
also A.R.S. § 33-324. When, however, there is no landlord-tenant
relationship, the rule barring a tenant from bringing an adverse possession
claim does not apply. Pleasant Country, 173 Ariz. at 190, 840 P.32d at 1055.

¶11           When a question arises as to the relationship created by real
estate contracts, no single provision of the contracts is dispositive. E-Z
Livin’ Mobile Sales, Inc. v. Van Zanen, 26 Ariz. App. 363, 364, 548 P.2d 1175,
1176 (App. 1976). Neither are the names given to the instruments
determinative of their effect. Id. Instead, the court must look to the purpose
of the instruments as revealed by their substance and the circumstances
surrounding their use. Id. Whether a contract is susceptible to multiple
interpretations is a question of law. Grosvenor Holdings, L.C. v. Figueroa, 222
Ariz. 588, 593, ¶ 9, 218 P.3d 1045, 1050 (App. 2009).

¶12           The two real estate contracts executed after the Heuschkels
responded to an advertisement listing the Property for sale are the
documents in question. The one-page Sale Agreement describes the
Property, lists the “purchase price” as $100,000, and describes “lease
deposits” to be paid monthly and subtracted from the total purchase price
at closing. The lease deposits totaled $600 per month, $100 of which was to
be paid to Lasa and $500 of which was to be “deducted from the total.” The
Sale Agreement lists Rebecca Lasa as the “Owner/Seller” and the
Heuschkels as “Buyer.” It also purports to convey clear, marketable title
and full possession to the Heuschkels, closing “on or before 06/01/2003.”

¶13           The three-page Commercial Lease lists the same property and
outlines again that the Heuschkels are to pay $600 per month, “$500 to
apply to Sale” and “$100.00/Lessor.” The Commercial Lease states, in type-
written addendum:



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                    HEUSCHKEL v. BERGMANN, et al.
                         Decision of the Court


       This lease is Option to Purchase, until Owners Probate is
       satisfied. $500.00 to go toward sales agreement, and $100.00
       to go to Rebecca Lasa for help with taxes or costs incurred
       while completing probate transactions. Sale agreement is
       $100,000/total.”

It also states “As Purchaser; Lessee will be responsible for repairs.”

¶14           Furthermore, at her deposition, Lasa testified that she
intended to, and thought she did, sell the Property to the Heuschkels. The
Heuschkels’ affidavit states that they intended to purchase the Property,
and explains that the lease was meant to be simply a “mechanism” to start
making payments before probate was completed on the estates of the
deceased owners.

¶15           Given the language of the contracts and the circumstances
surrounding their execution, we agree with the trial court that the
transaction purported to be a sale of the Property, rather than merely a
lease. See E-Z Livin’ Mobile Sales, Inc., 26 Ariz. App. at 364–65, 548 P.2d at
1176–77 (analyzing intent of the parties in conjunction with the language of
real estate contracts in determining that the parties intended a sale, rather
than a lease, of real estate). The documents consistently indicate that the
parties intended to sell, not just to lease, the Property. In addition, the full
purchase price for the Property was ultimately paid in accordance with the
contracts, further supporting the Heuschkels’ claim that they entered the
property under a claim of right.2



2   The statute of limitations for adverse possession began when the
Heuschkels entered onto the property. In order to trigger the period for
adverse possession to begin against co-tenants, an ouster must occur.
Morga v. Friedlander, 140 Ariz. 206, 208, 680 P.2d 1267, 1269 (App. 1984).
Entry by a purchaser under an executory agreement purporting to convey
full title to property constitutes an ouster of all co-tenants. See Snook v.
Bowers, 12 P.3d 771, 783 (Alaska 2000); see also Eric Larsson, Cause of Action
for Ownership of Property by Adverse Possession Between Cotenants, 63
Causes of Action 2d 1, § 11 (2014). Regardless of the authority Lasa actually
had, she purported to act on behalf of both original owners, and the Sale
Agreement purported to transfer full title in the Property to the Heuschkels.
Heuschkels’ possession was therefore hostile as to any co-tenants, and the
statutory period began to run when they took possession of the property.


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                    HEUSCHKEL v. BERGMANN, et al.
                         Decision of the Court

¶16            For these reasons, we conclude that the relationship intended
by the documents was not a landlord-tenant relationship. The Heuschkels
logically believed they acquired legal title. They are, therefore, not barred
from bringing an adverse possession claim. The trial court did not err.

       B.     Hostile Possession and Claim of Superior Title

¶17            Bergmann/Young also assert that because the Heuschkels
had permissive possession of the property, they cannot satisfy the element
of hostility. In order for a claim to be hostile, the possessor of the property
must intend and declare that he owns the land superior to both the true
owner and the world. Pleasant Country, 173 Ariz. at 191, 840 P.2d at 1056.
A permissive possessor, on the other hand, acknowledges that he holds the
property subordinate to the title of the true owner. Id. at 190, 840 P.2d at
1055.

¶18              The Arizona Supreme Court has explained that there is a
difference between permission to merely occupy land and permission to
possess land with the design to confer legal title upon the possessor. Tenney
v. Luplow, 103 Ariz. 363, 368–69, 442 P.2d 107, 112–13 (1968). Occupying
land with the permission of the initial owner, while still claiming superior
title to that of said owner, satisfies the hostility requirement. Id. In granting
summary judgment, the trial court held that there was no genuine issue of
material fact regarding whether the Heuschkels claimed superior title to the
Property. We agree. The Heuschkels entered the Property immediately
after the contracts were executed and treated it as if they were the true
owners. They operated their business on the Property and made significant
improvements to the Property as a result. They also paid the entire
purchase price for the Property, as required by the Sale Agreement. And in
2010, before the statutory period had run and when they still had not been
presented a clear title, they demanded that Lasa deliver title to them,
indicating a belief that they were the rightful owners of the land. All of
these actions are consistent with a claim of ownership, superior to that of
the record title holder and all others.

¶19           Bergmann/Young claim the plain language of the real estate
contracts indicates that the Heuschkels did not intend to acquire superior
ownership. As discussed above, we disagree because the contracts
purported to accomplish a sale rather than just a lease. See supra ¶¶ 13–16.

¶20          Bergmann/Young further claim that the Heuschkels
expressly disclaimed ownership in the property when they sent the



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                    HEUSCHKEL v. BERGMANN, et al.
                         Decision of the Court

demand letters directing the heirs to quitclaim their interest in the property.
They argue that in these letters, the Heuschkels “admit they don’t have
title.” The facts undermine the argument, however. By demanding that the
heirs quitclaim their purported title to themselves, the Heuschkels were, in
fact, asserting that they had a claim of ownership superior to that of the
heirs. The demand letters were not an admission by the Heuschkels that
their claim in the land was subordinate to that of the heirs. Moreover, such
letters complied with statutorily approved procedure prior to instituting a
quiet title action. See A.R.S. § 12-1101(A).

¶21           Accordingly, we find that the Heuschkels satisfied the
hostility requirement. The trial court did not err in granting summary
judgment in favor of the Heuschkels and quieting title to the Property in
their favor.

                      ATTORNEY FEES ON APPEAL

¶22            The Heuschkels have also requested an award of attorney fees
on appeal pursuant to A.R.S. § 12-1103(B). In accordance with A.R.S. § 12-
1103, the Heuschkels tendered quitclaim deeds and a check for $5.00 to
Bergmann/Young in January 2012. In our discretion, therefore, we grant
their request and will award an amount of reasonable attorney fees and
taxable costs, subject to their compliance with ARCAP 21.

                              CONCLUSION

¶23         For these reasons, we affirm the trial court’s grant of summary
judgment quieting title in favor of the Heuschkels.




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