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Newpaper publisher victorious over neighbors as court of appeals affirms ruling

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The superior court found the Sorchychs had established the Freemans ‘do not have the exclusive right to use the property in question’

PHOENIX – On Dec. 17, the Arizona Court of Appeals upheld Maricopa County Superior Court Judge Mark F. Aceto’s entry of summary judgment against Gerald and Janice Freeman finding they do not have an exclusive easement over property owned by Sonoran News publisher Don and Shari Jo Sorchych.

On appeal, the three-judge panel unanimously rejected each of Freemans challenges to the lower court’s finding as well as its award of sanctions and attorneys’ fees.

The memorandum decision, drafted by Judge Patricia K. Norris and joined by Presiding Judge Peter B. Swann and Judge Samuel A. Thumma, summarized the history of the property from the time Baker Enterprises, Ltd., conveyed a parcel of property to Alan Simberloff on July 20, 1983, with the Special Warranty Deed reserving to Baker an “exclusive easement” on a 35-foot wide strip of land within the property.

Simberloff subsequently conveyed a portion of the property to a third party, with the conveyance made subject to existing recorded easements, rights of way and encumbrances.

After several intermediate conveyances, the Freemans acquired a portion of the property in November 1991.

Simberloff also conveyed another portion of the property, contiguous to the Freeman parcel, to a different third party, the Fosters, in July 1983.

In November 2000, the Sorchychs acquired the Foster parcel.

The conveyances were all made subject to existing encumbrances, covenants and easements of record.

The exclusive 33-foot easement described in the Special Warranty Deed lies along the southern boundary of the Sorchych parcel.

In February 2011, the Freemans sued the Sorchychs and requested a declaratory judgment stating the 33-foot exclusive easement on the Sorchych parcel was for their exclusive use and the Sorchychs had no right to use the easement for any purpose or to grant permission to others to use it.

The parties filed cross motions for summary judgment.

Norris wrote, “As the superior court correctly recognized, the core issue presented in the cross-motions was whether, pursuant to the exclusive easement, the Freemans had the exclusive right to use the 33 foot strip. The superior court granted the Sorchychs’ motion, denied the Freemans’ motion, and found the Sorchychs had established the Freemans ‘do not have the exclusive right to use the property in question.’”

The court found the Special Warranty Deed “unambiguous” in that it expressly reserved the exclusive easement “unto the grantor” and clearly defined the grantor as Barker.

Because the grantor was not Simberloff, the property purchased by Simberloff became subject to the exclusive easement reserved by Barker and the Freemans are successors in interest to Simberloff, not Barker.

“Accordingly, the superior court correctly found the Freemans did not have the exclusive right to use the 33 foot strip pursuant to the exclusive easement reserved by the Special Warranty Deed,” wrote Norris.

While the award of fees and costs on appeal are discretionary, the court awarded the Sorchychs their request for reasonable attorneys’ fees and costs.

In conclusion, the court found “the exclusive easement reserved by the Special Warranty Deed did not grant the Freemans the exclusive right to use the 33-foot strip.”

It also found the superior court did not abuse its discretion in awarding sanctions and did not misapply the statute, as it affirmed the superior court’s judgment in favor of the Sorchychs.

Attorney Carol Lynn de Szendeffy, who represented the Sorchychs filed affidavits for $8,277 in attorney’s fees and costs.

This is in addition to the $6,283 in attorney’s fees and costs awarded to the Sorchychs ordered by Aceto in September 2012, which was stayed pending the outcome of this appeal, bringing the total to $14,560.

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