Preview
Clerk of the Superior Court
*** Electronically Filed ***
C. Nasui, Deputy
6/17/2024 4:19:20 PM
Filing ID 18007446
1 Nino Abate, Esq. (SBN 017098)
THE LAW OFFICE OF NINO ABATE, PLC
2 300 W. Clarendon Ave., Suite 130
Phoenix, Arizona 85013
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(480) 314-3304
4
nino@abatelaw.com
Attorney for Plaintiff
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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
7 IN AND FOR THE COUNTY OF MARICOPA
8
PATRICIA E. EVRON-SNYDER, aka Pat E. Case No.: CV2024-015635
9 Snyder, a widow,
COMPLAINT
10 Plaintiff,
(Commercial Torts, Declaratory Judgment)
11 vs.
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ORANGEWOOD EQUITIES, LLC, an
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Arizona limited liability company; ORANGE
TREE MARKETPLACE, LLC, an Arizona
14 limited liability company; ABC
CORPORATIONS, 1-10; DEF
15 PARTNERSHIPS, 1-10; GHI LIMITED
LIABILITY PARTNERSHIPS, 1-10; JOHN
16 DOES, 1-10; JANE DOES, 1-10,
17 Defendant(s).
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Plaintiff, by and through undersigned attorney, for her claims for relief against
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Defendants, states and alleges the following:
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PARTIES AND JURISDICTION
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1. Plaintiff Patricia E. Evron-Snyder aka Patricia E. Snyder (“Ms. Snyder”), has
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resided in Maricopa County, Arizona, at all relevant times.
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2. Defendant Orangewood Equities, LLC, is a duly organized and validly existing
Arizona limited liability company, which maintains an officer or agent in and/or conducts
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business in Maricopa County, Arizona.
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1 3. Defendant Orange Tree Marketplace, LLC, is a duly organized and validly existing
2 Arizona limited liability company, which maintains an officer or agent in and/or conducts
3 business in Maricopa County, Arizona.
4 4. Defendants ABC Corporations 1-10, DEF Partnerships 1-10, and GHI Limited
5 Liability Partnerships 1-10 are fictitious entities that may be parties to this Complaint. Plaintiff
6 reserves the right to amend this Complaint when the true identities of these parties become known.
7 5. Defendants John and Jane Does 1-10 are fictitious individuals that may be parties
8 to this Complaint. Plaintiff reserves the right to amend this Complaint when the true identities of
9 these parties become known.
10 6. All of the relevant acts, events, and agreements alleged herein were caused, done,
11 transpired, or entered into in Maricopa County, State of Arizona.
12 7. This Court has jurisdiction pursuant to A.R.S. § 12-123, and venue is proper in
13 Maricopa County Superior Court.
14 FACTUAL BACKGROUND
15 8. On or about August 25, 1988, ABD Enterprises, Inc. purchased the real property
16 located off McKellips and Gilbert Roads in Mesa, Arizona, which would later become the Orange
17 Tree Shopping Center (“Shopping Center”).1 A site plan for the Shopping Center and the Corner
18 Parcel is attached as hereto as Exhibit “A”.
19 9. On or about June 4, 1992, Ms. Snyder’s predecessor-in-interest, Murry Reisman
20 (“Reisman”), purchased the parcel located on the Northwest corner of the Gilbert and McKellips
21 Roads, commonly referred to as 1960 E. McKellips Road, Mesa, AZ 85203 (“Corner Parcel”), at
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24 On or about September 26, 1991, the Declaration of Covenants, Conditions, and Restrictions for the
Shopping Center were recorded in the Official Records of the Maricopa County Recorder’s Office at
25 Instrument No. 91-0451591 (“Declaration”). At the time, the Shopping Center was owned by the
Resolution Trust Corporation.
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1 an auction by the Resolution Trust Corporation. At the time of Reisman’s purchase, the Corner
2 Parcel had direct access to Gilbert Road.
3 10. On or about September 10, 1993, Orsett/Orangetree Limited Partnership
4 (“Orsett/Orangetree”) purchased the Shopping Center.
5 11. On or about December 3, 1997, as part of the City of Mesa’s improvements to
6 Gilbert and McKellips’ Roads, the City condemned a portion of the Corner Parcel, including the
7 Corner Parcel’s direct access to Gilbert Road.
8 12. Over the next ten years, Reisman continuously and openly used the Shopping
9 Center driveways on the North and West sides of the Corner Parcel (“Driveways”).
10 Access Agreement
11 13. On or about October 19, 2007, Reisman entered into a 30-year commercial lease
12 with Dutch Brothers to operate a retail Coffee Business (“Tenant”), which featured a drive-thru
13 coffee and beverage sales shop on the Corner Parcel.
14 14. In order for Tenant to improve the Corner Parcel for its intended use, Tenant
15 needed to obtain a Development Improvement Permit from the City of Mesa, which required,
16 among other things, that Tenant to show evidence that the Corner Parcel had adequate access to
17 public streets. Due to the City of Mesa’s condemnation in 1997, the only option was to use the
18 Driveways, which Reisman used for public access to the Corner Parcel over the previous ten
19 years.
20 15. On or about February 23, 2009, after learning about the Tenant’s situation,
21 Orsett/Orangetree demanded Tenant enter into that certain Non-Exclusive Vehicular and
22 Pedestrian Access Easement Agreement with Orsett/Orangetree in order to have the right to use
23 the Driveways to access to the public streets. (“Access Agreement”). The Access Agreement was
24 recorded on February 25, 2009, in the Official Records of the Maricopa County Recorder’s Office
25 at Instrument No. 2009-0162836. A true and correct copy of the Access Agreement is attached
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1 hereto as Exhibit “B” (less certain exhibits and counterparts).2
2 16. The Access Agreement, which terminates in February 2029, requires the Tenant
3 to pay Orsett/Orangetree $2,000 each month for the right to use the Driveways.
4 17. Between 2015 and 2017, the Shopping Center was sold or otherwise transferred to
5 Orsett/Orangetree’s related entities.3
6 In 2018, OTM-Klossco Creates the Orangewood Parcel
7 18. On or about April 30, 2018, OTM-Klossco and Orangewood Equities, LLC
8 (“Orangewood”) conspired to deny the Corner Parcel direct access to the public streets by
9 transferring a portion of the Shopping Center to Orangewood, thereby creating a new parcel
10 (“Orangewood Parcel”), which contains both of the Driveways. Below is an aerial image of the
11 Orangewood Parcel:
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Reisman, the owner of the Corner Parcel, consented to the to the Access Easement between Tenant and
Orsett/Orangetree.
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25 On June 30, 2015, the Shopping Center was transferred to Orange Tree Equities LLC, and on January
25, 2017, to Orange Tree Marketplace, LLC (64.9123%) and Klossco (35.0877%), as tenants-in-common
(“OTM-Klossco”).
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1 19. Also, on April 30, 2018, OTM-Klossco assigned the Access Agreement to
2 Orangewood, which was recorded on May 8, 2018, in the Official Records of the Maricopa
3 County Recorder’s Office at Instrument No. 2018-0351299. A true and correct copy of the
4 Assignment is attached hereto as Exhibit “C”.
5 20. On August 16, 2018, OTM-Klossco sold the Shopping Center’s anchor parcel.4
6 As part of the sale, OTM-Klossco executed the First Amendment to the Declaration, which among
7 other things, granted Orangewood “the exclusive right and authority to grant, control, restrict, or
8 eliminate the access, ingress, egress and parking of the Permittees” of the Shopping Center.
9 21. As a result of the actions taken by OTM-Klossco and Orangewood, by August 16,
10 2018, Orangewood had backed the Corner Parcel into a corner: Orangewood now had complete
11 ownership and control of the Driveways and full authority under the Declaration to deny the
12 Corner Parcel access to the Driveways.
13 OTM-Klossco and Orangewood Attempt to Strongarm Ms. Snyder
14 22. On April 25, 2019, Reisman passed on, and Ms. Snyder became the owner of the
15 Corner Parcel by beneficiary deed.
16 23. A short time after Ms. Snyder became the owner of the Corner Parcel, Defendants
17 contacted Ms. Snyder and over a series of phone calls, told her they controlled the Driveways,
18 and she had three choices: (i) sell the Corner Parcel to them, (ii) purchase the Orangewood Parcel
19 from Defendants, or (iii) Defendants would deny use of the Driveways to the Cornel Parcel unless
20 Ms. Snyder (or her tenants) continued to pay Defendants’ a substantial monthly license fee in
21 perpetuity.
22 24. When Ms. Snyder refused to sell the Corner Parcel to Defendants at a price well
23 below market value, Defendants pressured Ms. Snyder to purchase the Orangewood Parcel for a
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The buyer of the anchor parcel was Gilbert McKellips Fitness, LLC (aka Barclay).
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1 price well above market value. When Ms. Snyder again refused, Defendants reminded her that
2 she would have to pay a small ransom to Defendants in perpetuity for access to the Driveways.
3 25. After Ms. Snyder refused to give in to the Defendants’ strongarm tactics, she
4 learned that the Defendants’ actions to landlock the Corner Parcel substantially adversely
5 impacted its value.
6 26. Since 2019, pursuant to the Access Agreement, Ms. Snyder’s Tenant has been
7 forced to pay Defendants approximately $122,000, which Tenant would have paid to Ms. Snyder
8 but for the Access Agreement.
9 27. Ms. Snyder brings this lawsuit in order to enforce the Corner Parcel’s right to the
10 Driveways for legal access to the public streets.
11 28. This matter qualifies as a Tier 3 case pursuant to Rule 8(b)(2), A.R.C.P.
12 COUNT I
13 PRIVATE WAY OF NECESSITY
14 29. Plaintiff hereby adopts and incorporates the prior allegations set forth above as
15 though fully set forth herein.
16 30. The Corner Parcel and the Orangewood Parcel are so situated with respect to each
17 other it is necessary for the Corner Parcel’s proper use and enjoyment to have and maintain a
18 private way of necessity over the Driveways.
19 31. Condemning a private way of necessity in favor of the Corner Parcel over the
20 Driveways is a “reasonable necessity” because the Corner Parcel lacks adequate alternatives for
21 ingress and egress to the public streets.
22 32. Since there is no other right to access that exists by statute or common law, the
23 Corner Parcel is entitled to condemn a private way of necessity over the Driveways.
24 33. Defendants and their predecessor-in-interest have been holding the Corner Parcel
25 hostage, forcing Ms. Snyder’s Tenant to pay a small ransom for the use of the Driveways to access
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1 to the public streets, access to which the Corner Parcel is otherwise entitled to as a matter of law.
2 34. Therefore, Ms. Snyder is entitled to an order condemning a private way of
3 necessity over the Driveways.
4 COUNT II
5 PRIVATE NUISANCE
6 35. Plaintiff hereby adopts and incorporates the prior allegations set forth above as
7 though fully set forth herein.
8 36. Ms. Snyder’s interest in the enjoyment of the Corner Parcel requires convenient
9 access to the public streets.
10 37. Ms. Snyder’s interest in the enjoyment of the Corner Parcel includes the right to
11 profit from its use.
12 38. Defendants took specific actions with the intent to interfere with Ms. Snyder’s
13 interest in the use and enjoyment of the Corner Parcel, including creating the Orangewood Parcel
14 and otherwise refusing to allow the Corner Parcel or its Tenant to use the Driveways without
15 payment of substantial fees.
16 39. Defendants used the nuisance they created to extract substantial fees from Tenant,
17 fees that Tenant would have otherwise paid to Ms. Snyder.5
18 40. Defendants’ intentional acts to landlock the Corner Parcel have also caused the
19 Corner Parcel to suffer a diminution in value.
20 41. Defendants’ interference with the Corner Parcel’s ingress and egress to the public
21 streets is, therefore much more than a slight inconvenience – it is serious, continuing, and comes
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The Access Agreement is unconscionable and therefore unenforceable. Likewise, Defendants’ actions to
create the Orangewood Parcel for the sole purpose of landlocking the Corner Parcel so Defendants could
25 force Ms. Snyder into selling the Corner Parcel to them, or force other financial concessions from Ms.
Snyder, for their own personal benefit and to the detriment of Ms. Snyder, are also unconscionable.
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1 at a substantial cost to Ms. Snyder.
2 42. As a direct and proximate result of Defendants’ interference with the Corner
3 Parcel’s ingress and egress, Ms. Snyder has suffered substantial damages, including the
4 substantial loss of income and the Corner Parcel’s diminution of value, in an amount to be
5 determined at trial, but in no event less than $500,000.
6 COUNT III
7 TORTIOUS INTERFERENCE WITH BUSINESS EXPECTANCY
8 43. Plaintiff hereby adopts and incorporates the prior allegations set forth above as
9 though fully set forth herein.
10 44. Ms. Snyder had a valid business expectancy to have convenient legal access to and
11 from the Corner Parcel and to be able to lease or sell the Corner Parcel with such legal access.
12 45. Defendants knew of Ms. Snyder’s valid business expectancy when they created
13 the Orangewood Parcel.
14 46. Defendants created the Orangewood Parcel to intentionally interfere with Ms.
15 Snyder’s valid business expectancy and to create a cloud on title due to lack of access.
16 47. Defendants’ intentional interference prevents Ms. Snyder from selling or leasing
17 the Corner Parcel at the best price that the free market will bear.
18 48. The defendant’s conduct was and is improper in terms of the nature of the
19 Defendant’s conduct, motives, and Ms. Snyder’s interests.
20 49. As a direct and proximate result of Defendants’ unlawful interference and unfair
21 competition, Ms. Snyder has suffered substantial damages, in an amount to be determined at trial,
22 but in no event less than $500,000.
23 50. Defendants intentionally engaged in a pattern of aggravated and outrageous
24 conduct with an “evil hand guided by an evil mind” with the clear intent to injure, defraud, or
25 deliberately interfere with Owners’ legal rights as to justify an award of punitive damages in an
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1 amount to be determined at trial but in no event less than $500,000.
2 COUNT IV
3 CONSPIRACY TO VIOLATE A.R.S. § 44-1402
4 51. Plaintiff hereby adopts and incorporates the prior allegations set forth above as
5 though fully set forth herein.
6 52. Pursuant to A.R.S. § 44-1402, a conspiracy between two or more persons to
7 “monopolize, trade or commerce” is unlawful.
8 53. Defendants agreed to create the Orangewood Parcel to monopolize access to the
9 Driveways to substantially impair Ms. Snyder’s ability to sell the Corner Parcel to anyone but
10 Defendants.
11 54. As a result of Defendants’ actions, Ms. Snyder is forced to either sell the Corner
12 Parcel to Defendants, or sell on the free market at a price well below market value.
13 55. A.R.S. § 44-1408(B) provides that a person threatened with injury or injured in his
14 business or property may bring an action for appropriate injunctive or other equitable relief,
15 damages sustained, and as determined by the court, taxable costs and reasonable attorney’s fees.
16 56. A.R.S. § 44-1408(B) also provides that a flagrant violation of A.R.S. § 44-1402
17 entitles a plaintiff to recover treble damages.
18 57. Therefore, pursuant to A.R.S. § 44-1408(B), Ms. Snyder is entitled to injunctive
19 relief, compensatory and consequential damages, attorney’s fees and costs, and treble the actual
20 damages against Defendants.
21 COUNT V
22 CIVIL CONSPIRACY
23 58. Plaintiff hereby adopts and incorporates the prior allegations set forth above as
24 though fully set forth herein.
25 59. Defendants knowingly agreed and conspired to landlock the Corner Parcel,
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1 intending to force Ms. Snyder to sell the Corner Parcel to them at a price well below market value.
2 60. Defendants knew that by creating the Orangewood Parcel, the result would be to
3 cause the Corner Parcel to suffer a substantial diminution of value.
4 61. When Ms. Snyder refused to sell the Corner Parcel to Defendants at a price far
5 below market value or purchase the Orangewood Parcel from Defendants at a price far above
6 market value, Defendants essentially forced Ms. Snyder (or her tenants) to pay for the use of the
7 Driveways in perpetuity.
8 62. To date, Defendants’ conspiracy to interfere with the Corner Parcel’s right to use
9 the Driveways has cost Ms. Snyder not less than $122,000 in lost profits.
10 63. Defendants’ conspiracy to interfere with the Corner Parcel’s right to use the
11 Driveways has caused a substantial diminution of the Corner Parcel’s value.
12 64. As a direct and proximate result of the Defendants' conspiracy to create a private
13 nuisance, Ms. Snyder has suffered compensatory and consequential damages in an amount to be
14 proven at trial but in no event less than $500,000.
15 65. Defendants intentionally engaged in a pattern of aggravated and outrageous
16 conduct with an “evil hand guided by an evil mind” with the clear intent to injure, defraud, or
17 deliberately interfere with Owners’ legal rights as to justify an award of punitive damages in an
18 amount to be determined at trial but in no event less than $500,000.
19 COUNT VI
20 AIDING AND ABETTING
21 66. Plaintiff hereby adopts and incorporates the prior allegations set forth above as
22 though fully set forth herein.
23 67. OTM-Klossco aided Orangewood in its scheme to deny legal access to the Corner
24 Parcel to extort a financial benefit from Ms. Snyder.
25 68. OTM-Klossco knew at all relevant times that the Defendants’ scheme to deny
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1 access to the Corner Parcel to extort a substantial financial benefit from Ms. Snyder was unlawful.
2 69. OTM-Klossco substantially encouraged, assisted, and conspired with
3 Orangewood to withhold or threaten to withhold access to the Corner Parcel in order to unfairly
4 extract a substantial financial benefit from Ms. Snyder.
5 70. As a direct and proximate result of the conspiracy, Ms. Snyder has suffered
6 compensatory and consequential damages in an amount to be proven at trial but in no event less
7 than $500,000.
8 71. Defendants intentionally engaged in a pattern of aggravated and outrageous
9 conduct with an “evil hand guided by an evil mind” with the clear intent to injure, defraud, or
10 deliberately interfere with Owners’ legal rights as to justify an award of punitive damages in an
11 amount to be determined at trial but in no event less than $500,000.
12 COUNT VII
13 DECLARATORY JUDGMENT
14 72. Plaintiff hereby adopts and incorporates the prior allegations set forth above as
15 though fully set forth herein.
16 73. Pursuant to A.R.S. § 12-1832, a justiciable controversy exists between Ms. Snyder
17 and Defendants.
18 74. Accordingly, this Court may enter a declaratory judgment declaring that (i) the
19 Corner Parcel is entitled to the condemnation of a private way of necessity for ingress and egress
20 over the Driveways, and (ii) the Access Agreement is void as unlawful to the extent that it requires
21 Tenant to pay for the use of the Driveways.
22 WHEREFORE, Ms. Snyder respectfully requests that the Court enter judgment against
23 Defendants, jointly and severally, as follows:
24 A. For declaratory relief, ordering that (i) the Corner Parcel is entitled to an
25 easement of necessity over the Driveways on the Orangewood Parcel for ingress and
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1 egress to the public streets, and (ii) the Access Agreement is void as unlawful to the
2 extent that it requires Tenant to pay for the use of the Driveways.
3 B. For an award of compensatory and consequential damages;
4 C. For punitive damages;
5 D. For Plaintiff’s attorney’s fees and taxable costs to the greatest extent available
6 under Arizona law; and
7 E. For interest on all amounts owed at the highest legal rate until paid in full; and
8 F. For such other and further relief as may be proper and just under the
9 circumstances.
10 RESPECTFULLY SUBMITTED this 24th day of June, 2024.
11 THE LAW OFFICE OF NINO ABATE, PLC
12
By: /s/ Nino Abate
13 Nino Abate
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EXHIBIT "A"
"SITE PLAN"
r
EXISTING
SHOPS
UJ
llJ
..J
McKELLIPS ROAD
EXHIBIT "B"
Unofficial
Document
C
MAR
HELEN PURCELL
2009-0162836 02125109 10:42 AM
1 OF 1
F"LORESC
WHEN RECORDED, RETURN TO:
Joseph J. Moritz, Jr., Esq.
FRANCIS J. SLAVIN, P.C.
2198 East Camelback Road, Suite 285
Phoenix, Arizona 85016
NON-EXCLUSIVE VEHICULAR AND
PEDESTRIAN ACCESS EASEMENT AGREEMENT,
CONSENT OF OWNER OF BENEFITED PROPERTY
AND CONSENT AND SUBORDINATION
OF LIENHOLDER
;;;,~~t~
This Non-Exclusive Vehic~,u and edestriari Access Easement Agreement (the
"Agreement') is made this 2-~!-day of'Na-'l"l'ffl!ff', 2668, by ORSETT/ORANGETREE
LIMITED PARTNERSHIP, a Massachusetts limited partnership ("Grantor"), and
GILBERT ROAD/MCKELLIPS DB LLC, an Oregon limited liability company
("Grantee").
RECITALS:
A. Grantor is the owner of that certain real property located in the City of
Mesa, Maricopa County, Arizona legally described on Exhibit A attached hereto and
incorporated herein by this reference (the "Burdened Property'i;
8. Grantee has leased that certain real property located in the City of Mesa,
Maricopa County, Arizona legally described on Exhibit B attached hereto and
incorporated herein by this reference (the "Benefited Property'i owned by MURRAY
REISMAN, a single man;
C. The Burdened Property and the Benefited Property are contiguous to each
other and are depicted on the site plan attached hereto as Exhibit C and incorporated
herein by this reference (the ''Site Plan'?.
D. Pursuant to its lease Grantee will improve the Benefited Property for the
purpose of providing retail and drive-through sales of coffee ("Coffee Business'?.
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2860-002
20090162836
E. In connection with the improvement of the Benefited Property, Grantee
has obtained a Development Improvement Permit (the "DIP'') from the City of Mesa,
the issuance of which is dependent upon, among other things, evidence that the
Benefited Property has adequate access to public streets.
F. Grantor wishes to grant certain easements to Grantee to provide for
pedestrian and vehicular ingress and egress from the Benefited Property over the
Burdened Property in connection with the Coffee Business and the DIP.
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
agreements, covenants and promises contained in this Agreement, and other good and
valuable consideration, the receipt, sufficiency and validity of which is hereby
acknowledged, the parties agree as follows:
AGREEMENTS:
1. Grant of Easement. Granter hereby grants and conveys to Grantee, for
the benefit of Grantee and its agents, employees, contractors, invitees and licensees
("Permitees"), the non-exclusive right, easement and privilege during the term of this
Agreement of ingress and egress upon, across and over the driveways, entryways,
access ways, walkways, and sidewalks of the Burdened Property (" Surface
Improvements") for the purpose of providing ingress and egress for the use,
enjoyment and benefit of pedestrians, and motorized or non-motorized vehicular traffic
(the "Easement''). The Easement pr~ .ff0:l~~m•nJ_r
0
rights of ingress and egress only.
Nothing contained in this Agreement shall be deemed to create any implied easements
not otherwise expressly provided for in this Agreement. Specifically, but without
limitation, this Agreement does not grant any parking rights over or on the Burdened
Property, and no grant of parking rights is intended by or shall be inferred from this
Agreement.
Subject to the terms of this Agreement, the Easement granted hereby shall
remain in full force and effect so long as Grantee or its successors and/or assigns shall
be in possession of, and/or shall hold any interest, legal or equitable, in, all or any part
of the Benefited Property. For all purposes under this Agreement, the "Commencement
Date" shall be the date on which this Agreement, fully executed and acknowledged, is
recorded in the official records of the Maricopa County, Arizona Recorder (the
"Commencement Date"). Grantee shall record this Agreement by the earlier of (i)
receipt of a building permit from the City of Mesa for the improvements to the Benefited
Property contemplated hereby, or (ii) 120 days from the date of this Agreement.
2. Consideration. In consideration of Grantor's granting of the Easement to
Grantee, Grantee agrees to pay Grantor, in advance, commencing on the later of the 1st
day of December; 2008, or the Commencement Date, and on the same day of each
subsequent month during the term of the Easement, a monthly fee of $2,000.00 per
month; provided, however, that in the event the Easement commences on a date which
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2860-002
20090162836
is other than on first day of the month, Grantee shall pay Granter a prorated portion of
such monthly fee for such partial month within five (5) days of the Commencement
Date, which shall be determined by dividing the number of days remaining in the month
in which the term of the Easement commences (including the Commencement Date)
divided by the total number of days contained in such month and then multiplying the
sum of $2,000.00 by the quotient derived therefrom. In the event that the term of the
Easement expires on a day which is other than on the last day of the month, the
prorated fee payable for the final month of the term of the Easement shall be
determined by dividing the number of days in the final month prior to and including the
date on which the term of the Easement expires by the total number of days contained
in such month and then multiplying the sum of $2,000.00 by the quotient derived
therefrom. The monthly fee required to be paid to Granter by Grantee under the
Easement shall be sent or delivered to the address of Granter for giving written notices
required or permitted hereunder set forth below.
In the event that Grantee fails to pay an installment of the monthly fee payable to
Granter during the term of the Easement on or prior to the date on which such monthly
installment is due and Grantee fails to cure such default within five (5) days of written
notice from Granter that such payment has not been made {a "Default Notice"), the
Easement shall automatically terminate without any further action by Granter. Further,
Granter shall only be obligated to provide a Default Notice to Grantee two (2) times
during the term of the Easement. Subsequent to the second time that Granter has
given a Default Notice to Grantee, Granter shall not be required to provide any further
Default Notices to Grantee, and in the t"~ff~•)~~'"e>f
.my subsequent failure by Grantee to
pay an installment of the monthly fee payable to Granter during the term of the
Easement on or prior to the date on which such monthly installment is due, the
Easement shall automatically terminate without any further action by Granter. In the
event of any other default by Grantee hereunder, Grantee shall be entitled to a period of
(20) days after receipt of written notice from Granter within which Grantee may cure
such default before Granter shall be entitled to terminate this Easement or exercise any
other remedies available to Granter hereunder or under applicable law, provided,
however, that Granter shall not be entitled seek any incidental or consequential or
punitive damages from Grantee.
3. Maintenance and Damage. In the event that Grantee or its Permittees, in
the course of exercising the rights granted herein, shall damage any of the Surface
Improvements or any other improvements on the Burdened Property, Grantee at its sole
cost shall promptly restore the damaged Surface Improvements or other improvements
to a condition substantially the same as that which existed immediately before such
damage occurred. Grantee otherwise shall not have any obligation to inspect, maintain,
repair and replace the Surface Improvements, except to the extent expressly provided
herein. Grantee covenants and agrees that Grantee's use of the Surface Improvements
shall not obstruct, or be in conflict or interfere with the use and enjoyment of the
Burdened Property by Granter. Subject to the requirements of any consensual
lienholder under any mortgage or deed of trust encumbering the Burdened Property
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20090162836
concerning impounds for payment thereof, Grantor shall pay or cause to be paid, prior
to delinquency, directly to the appropriate taxing authorities, all ad valorem real property
taxes and assessments which are levied against the Burdened Property.
4. Indemnity. Grantee further covenants and agrees with Granter, on behalf
of itself or its successors and assigns, as the case may be, to indemnify, hold harmless
and defend (with legal counsel reasonably acceptable to Granter) Granter for, from and
against any and all claims, liabilities, and expenses, and reasonable attorneys' fees and
court costs which may be claimed or asserted against Grantor, its successors or
assigns, or the Burdened Property, on account of the exercise by Grantee and/or its
invitees, licensees, agents, employees, successors and assigns of the rights,
easements and privileges herein granted and conveyed, including, but without limitation,
claims for property damage and bodily injury or death and any mechanics' or
materialmen's liens or claims of lien which may be asserted against Granter, its
successors or assigns, or the Burdened Property, except to the extent such claims,
liabilities and expenses are the result of the negligence or intentional misconduct of
Granter and/or its tenants, licensees, permittees, invitees, successors and assigns on or
about the Burdened Property.
5. Modifications. Granter reserves the absolute right to modify, reconfigure,
and otherwise change the Surface Improvements without notice to Grantee, including
installation of reasonable traffic controls which may be necessary to guide and control
the orderly flow of traffic, so long as access driveways and entryways are not closed or
blocked and access to the Benefited ~ii;.[o,;u::!;t is preserved. No walls, fences, or
barriers of any kind may be constructed or maintained on the Burdened Property, or any
portion thereof, by Granter or any tenants, licensees, permittees, invitees, successors
and assigns of Granter which prevent or impair the use or exercise of the Easement, or
the free access and movement, including without limitation, pedestrians and vehicular
traffic between the Benefited Property and the Burdened Property. The only exception
to this provision is for incidental encroachments upon the aisleways, driveways,
entryways and the like located on the Burdened Property which may occur as a result of
the use of the ladders, scaffolding, storefront barricades and similar facilities resulting in
temporary obstruction of the aisleways, driveways, entryways and the like located on
the Burdened Property, all of which are permitted hereunder so long as their use is kept
within reasonable requirements of construction and maintenance, repair and
replacement work being expeditiously pursued.
6. Insurance. During the term of the Easement, and prior to entry upon the
Burdened Property, Grantee shall deliver to Granter a currently effective certificate of
commercial general liability insurance written on an "occurrences" basis with a minimum
combined single limit of $3,000,000.00 with coverage for owned and non-owned motor
vehicles and contractual liability coverage and with a reasonable deductible amount. All
policies of insurance required by the terms of this Agreement shall contain an
endorsement or agreement by the insurer that any loss shall be payable in accordance
with the terms of such policy notwithstanding any act or negligence of the insured which
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20090162836
might otherwise result in forfeiture of said insurance and the further agreement of the
insurer waiving all rights of set off, counterclaim or deductions against the insured.
Granter and their successors and assigns shall be named as an additional insured
under all such insurance policies. Such insurance coverage may be included in blanket
insurance policies. The insurer(s) of such certificates shall commit to give Grantor thirty
(30) days prior written notice before cancellation of the policies or reduction in coverage,
except in case of nonpayment of premiums, in which case the insurer(s) shall commit to
give Grantor ten (10) days prior written notice before cancellation or reduction in
coverage. If Grantee fails to pay such premium prior to the due date, then Granter may
pay all or any part thereof and Grantee shall immediately reimburse Grantor the amount
so paid together with interest thereon at ten percent (10%) per annum from date of
payment until such reimbursement has been made in full. Such insurance shall be
underwritten by corporate insurers licensed in Arizona which are reasonably acceptable
to Grantor. Grantee agrees to maintain such insurance in force throughout the term of
this Easement. Grantee agrees from time to time to furnish to Grantor current
certificates or other evidence of insurance satisfactory to Granter (ACORD 25(S) form)
to evidence that such insurance is in full force and effect as required hereunder. Upon
each anniversary date of the term of this Easement, the amount of the combined single
limit set forth above, as the same may previously have been increased as provided
herein, shall be increased if the Consumer Price Index -- U.S. City Average All Items --
All Urban Consumers (Index) as published by the United States Department of Labor's
Bureau of Labor Statistics (the "Bureau'j, increases over the base period Index. The
base period Index shall be the Index for the calendar month which is two months prior to
the month in which the Commencemenf"~t~~me!vcurs.The base period Index shall be
0
compared with the Index for the same calendar month for each subsequent year of the
term of this Easement ("comparison month'j. If the Index for any comparison month
is higher than the base period Index, then the amount of the combined single limit set
forth above then in effect under this Easement shall be increased in excess of the
amount of the combined single limit set forth above by the identical percentage. In no
event shall the amount of the combined single limit be less than the amount set forth
above. By way of illustration only, if the Commencement Date occurred on
September 1, 2008, then the base period Index is that for July of 2008 (assume 376.3)
and that Index shall be compared to the Index for July 2009 (assume 385.8), and
because the Index for July of 2009 is 2.52% higher, the adjusted amount of the
combined single limit shall be 2.52% higher than the amount of the combined single
limit set forth above for the next year of the term of this Easement, or $3,075,600.00,
and so on.
Should the Bureau discontinue the publication of the above Index, or publish
same less frequently, or alter same in some other manner, then Grantor and Grantee
shall adopt a substitute index or substitute procedure which reasonably reflects and
monitors consumer prices.
7. Run with Land. Subject to and conditioned upon the requirement that the
Benefited Property shall be used exclusively as and for a Coffee Business during the
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2860-002
20090162836
term of the Easement, the Easement and the benefits and burdens thereof shall (i) be
binding upon and run with the Benefited Property and the Burdened Property,
respectively, and (ii) inure to the benefit of and be binding upon Grantor and Grantee
and their respective heirs, personal representatives, successors and assigns.
8. Termination. Except as otherwise provided in this Agreement, the
Easement may be terminated, modified, or amended only by a writing signed by all the
then owners of the Burdened Property and the Benefited Property. Notwithstanding the
above, this Agreement and the Easement shall automatically terminate:
(i) if at any time during the term of the Easement the Benefited
Property is used for any purpose other than a Coffee Business;
(ii) if at any time during the term of the Easement the use of the
Benefited Property as a Coffee Business ceases or is interrupted for a period of more
than sixty (60) consecutive days; provided, however, that if the cause of such cessation
or interruption is a casualty, and Grantee diligently pursues the repair and reopening of
the Coffee Business, then the Easement shall not terminate unless the Coffee Business
does not recommence on an ongoing basis within nine (9) months of the date of such
casualty.
(iii) twenty (20) years from the Commencement Date.
In the event of termination Grau-;o~cialDocu;;;.';;711
at Grantor's request execute and
acknowledge a written instrument in recordable form memorializing such termination. If
Grantee refuses to do so, Grantor shall have the right to record such an instrument
executed only by Grantor.
9. Breach. In the event either party hereto breaches either the covenants or
warranties contained in this Agreement, such party shall indemnify, hold harmless and
defend (with legal counsel reasonably acceptable to the non-breaching party) the other
party for all costs incurred in connection with such breach. Such costs shall include all
losses and expenses of any type or kind and interest thereon in the manner provided by
law, including, without limitation, reasonable attorneys' fees. Further, the non-breaching
party shall have the right to all other legal and equitable remedies, including injunctive
relief, in the event of any such breach.
10. Miscellaneous.
10.1. No Public Rights. Nothing contained herein shall be interpreted or
construed as either creating a dedication or grant of any rights to the public or causing
any party to be a joint venturer or partner of any other party.
10.2. Counterparts. This Agreement may be executed in counterparts
each of which shall be deemed an original and all of which, taken together, shall
constitute one and the same instrument.
6
2860-002
20090162836
10.3. Notice. All notices required or permitted to be given under this
Agreement shall be in writing and shall be sent by United States Postal Service,
postage prepaid, registered or certified, return receipt requested, or any nationally
known overnight delivery service, or by courier, or in person. All notices shall be
deemed to have been given forty-eight (48) hours following deposit in the United States
Postal Service or upon personal delivery if sent by overnight delivery service, courier or
personal delivery. All notices shall be addressed to the party at the address below:
If to Grantee:
GILBERT ROAD/MCKELLIPS DB LLC
27915 N. 100th Place
Scottsdale, Arizona 85262
Attention: James L. Thompson, Manager
If to Grantor:
ORSETT/ORANGETREE LIMITED PARTNERSHIP
2929 E. Camelback Road, Suite 210
Phoenix, Arizona 85016
Attention: Mr. Robert Rosenberg
With a copy to:
Unofficial Document
CITY OF MESA
20 East Main Street, Suite 850
Mesa, Arizona 85201
Attention: City Attorney
Any address or name specified above may be changed by notice given to the
addressee by the other party in accordance with the above methods for giving notice.
The inability to deliver because of a changed address of which no notice was given, or
rejection or other refusal to accept any notice, shall be deemed to be the receipt of the
notice as of the date of such inability to deliver or rejection or refusal to accept. Any
Notice to be given by any party hereto may be given by the legal counsel for such party.
[THE REMAINDEROF THIS PAGE INTENTIONALLYLEFT BLANK]
[SIGNATURESFOLLOWON SUCCEEDINGPAGES]
7
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20090162836
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Agreement this f 7 day of ~ 2008.
GRANTEE:
GILBERT ROAD/MCKELLIPSDB LLC,
r
an Oregon limited liability company
By: d--, •
J~ L.Thompson, Manager
213""::;P ~
.,-
GRANTOR:
ORSETT/ORANGETREELIMITED PARTNERSHIP,
a Massachusetts limited partnership
By:
8
2860-002
EXHIBIT "C"
Preview
Clerk of the Superior Court *** Electronically Filed *** C. Nasui, Deputy 6/17/2024 4:19:20 PM Filing ID 18007446 1 Nino Abate, Esq. (SBN 017098) THE LAW OFFICE OF NINO ABATE, PLC 2 300 W. Clarendon Ave., Suite 130 Phoenix, Arizona 85013 3 (480) 314-3304 4 nino@abatelaw.com Attorney for Plaintiff 5 6 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 7 IN AND FOR THE COUNTY OF MARICOPA 8 PATRICIA E. EVRON-SNYDER, aka Pat E. Case No.: CV2024-015635 9 Snyder, a widow, COMPLAINT 10 Plaintiff, (Commercial Torts, Declaratory Judgment) 11 vs. 12 ORANGEWOOD EQUITIES, LLC, an 13 Arizona limited liability company; ORANGE TREE MARKETPLACE, LLC, an Arizona 14 limited liability company; ABC CORPORATIONS, 1-10; DEF 15 PARTNERSHIPS, 1-10; GHI LIMITED LIABILITY PARTNERSHIPS, 1-10; JOHN 16 DOES, 1-10; JANE DOES, 1-10, 17 Defendant(s). 18 Plaintiff, by and through undersigned attorney, for her claims for relief against 19 Defendants, states and alleges the following: 20 PARTIES AND JURISDICTION 21 22 1. Plaintiff Patricia E. Evron-Snyder aka Patricia E. Snyder (“Ms. Snyder”), has 23 resided in Maricopa County, Arizona, at all relevant times. 24 2. Defendant Orangewood Equities, LLC, is a duly organized and validly existing Arizona limited liability company, which maintains an officer or agent in and/or conducts 25 business in Maricopa County, Arizona. -1- 1 3. Defendant Orange Tree Marketplace, LLC, is a duly organized and validly existing 2 Arizona limited liability company, which maintains an officer or agent in and/or conducts 3 business in Maricopa County, Arizona. 4 4. Defendants ABC Corporations 1-10, DEF Partnerships 1-10, and GHI Limited 5 Liability Partnerships 1-10 are fictitious entities that may be parties to this Complaint. Plaintiff 6 reserves the right to amend this Complaint when the true identities of these parties become known. 7 5. Defendants John and Jane Does 1-10 are fictitious individuals that may be parties 8 to this Complaint. Plaintiff reserves the right to amend this Complaint when the true identities of 9 these parties become known. 10 6. All of the relevant acts, events, and agreements alleged herein were caused, done, 11 transpired, or entered into in Maricopa County, State of Arizona. 12 7. This Court has jurisdiction pursuant to A.R.S. § 12-123, and venue is proper in 13 Maricopa County Superior Court. 14 FACTUAL BACKGROUND 15 8. On or about August 25, 1988, ABD Enterprises, Inc. purchased the real property 16 located off McKellips and Gilbert Roads in Mesa, Arizona, which would later become the Orange 17 Tree Shopping Center (“Shopping Center”).1 A site plan for the Shopping Center and the Corner 18 Parcel is attached as hereto as Exhibit “A”. 19 9. On or about June 4, 1992, Ms. Snyder’s predecessor-in-interest, Murry Reisman 20 (“Reisman”), purchased the parcel located on the Northwest corner of the Gilbert and McKellips 21 Roads, commonly referred to as 1960 E. McKellips Road, Mesa, AZ 85203 (“Corner Parcel”), at 22 23 1 24 On or about September 26, 1991, the Declaration of Covenants, Conditions, and Restrictions for the Shopping Center were recorded in the Official Records of the Maricopa County Recorder’s Office at 25 Instrument No. 91-0451591 (“Declaration”). At the time, the Shopping Center was owned by the Resolution Trust Corporation. -2- 1 an auction by the Resolution Trust Corporation. At the time of Reisman’s purchase, the Corner 2 Parcel had direct access to Gilbert Road. 3 10. On or about September 10, 1993, Orsett/Orangetree Limited Partnership 4 (“Orsett/Orangetree”) purchased the Shopping Center. 5 11. On or about December 3, 1997, as part of the City of Mesa’s improvements to 6 Gilbert and McKellips’ Roads, the City condemned a portion of the Corner Parcel, including the 7 Corner Parcel’s direct access to Gilbert Road. 8 12. Over the next ten years, Reisman continuously and openly used the Shopping 9 Center driveways on the North and West sides of the Corner Parcel (“Driveways”). 10 Access Agreement 11 13. On or about October 19, 2007, Reisman entered into a 30-year commercial lease 12 with Dutch Brothers to operate a retail Coffee Business (“Tenant”), which featured a drive-thru 13 coffee and beverage sales shop on the Corner Parcel. 14 14. In order for Tenant to improve the Corner Parcel for its intended use, Tenant 15 needed to obtain a Development Improvement Permit from the City of Mesa, which required, 16 among other things, that Tenant to show evidence that the Corner Parcel had adequate access to 17 public streets. Due to the City of Mesa’s condemnation in 1997, the only option was to use the 18 Driveways, which Reisman used for public access to the Corner Parcel over the previous ten 19 years. 20 15. On or about February 23, 2009, after learning about the Tenant’s situation, 21 Orsett/Orangetree demanded Tenant enter into that certain Non-Exclusive Vehicular and 22 Pedestrian Access Easement Agreement with Orsett/Orangetree in order to have the right to use 23 the Driveways to access to the public streets. (“Access Agreement”). The Access Agreement was 24 recorded on February 25, 2009, in the Official Records of the Maricopa County Recorder’s Office 25 at Instrument No. 2009-0162836. A true and correct copy of the Access Agreement is attached -3- 1 hereto as Exhibit “B” (less certain exhibits and counterparts).2 2 16. The Access Agreement, which terminates in February 2029, requires the Tenant 3 to pay Orsett/Orangetree $2,000 each month for the right to use the Driveways. 4 17. Between 2015 and 2017, the Shopping Center was sold or otherwise transferred to 5 Orsett/Orangetree’s related entities.3 6 In 2018, OTM-Klossco Creates the Orangewood Parcel 7 18. On or about April 30, 2018, OTM-Klossco and Orangewood Equities, LLC 8 (“Orangewood”) conspired to deny the Corner Parcel direct access to the public streets by 9 transferring a portion of the Shopping Center to Orangewood, thereby creating a new parcel 10 (“Orangewood Parcel”), which contains both of the Driveways. Below is an aerial image of the 11 Orangewood Parcel: 12 13 14 15 16 17 18 19 20 21 22 23 24 2 Reisman, the owner of the Corner Parcel, consented to the to the Access Easement between Tenant and Orsett/Orangetree. 3 25 On June 30, 2015, the Shopping Center was transferred to Orange Tree Equities LLC, and on January 25, 2017, to Orange Tree Marketplace, LLC (64.9123%) and Klossco (35.0877%), as tenants-in-common (“OTM-Klossco”). -4- 1 19. Also, on April 30, 2018, OTM-Klossco assigned the Access Agreement to 2 Orangewood, which was recorded on May 8, 2018, in the Official Records of the Maricopa 3 County Recorder’s Office at Instrument No. 2018-0351299. A true and correct copy of the 4 Assignment is attached hereto as Exhibit “C”. 5 20. On August 16, 2018, OTM-Klossco sold the Shopping Center’s anchor parcel.4 6 As part of the sale, OTM-Klossco executed the First Amendment to the Declaration, which among 7 other things, granted Orangewood “the exclusive right and authority to grant, control, restrict, or 8 eliminate the access, ingress, egress and parking of the Permittees” of the Shopping Center. 9 21. As a result of the actions taken by OTM-Klossco and Orangewood, by August 16, 10 2018, Orangewood had backed the Corner Parcel into a corner: Orangewood now had complete 11 ownership and control of the Driveways and full authority under the Declaration to deny the 12 Corner Parcel access to the Driveways. 13 OTM-Klossco and Orangewood Attempt to Strongarm Ms. Snyder 14 22. On April 25, 2019, Reisman passed on, and Ms. Snyder became the owner of the 15 Corner Parcel by beneficiary deed. 16 23. A short time after Ms. Snyder became the owner of the Corner Parcel, Defendants 17 contacted Ms. Snyder and over a series of phone calls, told her they controlled the Driveways, 18 and she had three choices: (i) sell the Corner Parcel to them, (ii) purchase the Orangewood Parcel 19 from Defendants, or (iii) Defendants would deny use of the Driveways to the Cornel Parcel unless 20 Ms. Snyder (or her tenants) continued to pay Defendants’ a substantial monthly license fee in 21 perpetuity. 22 24. When Ms. Snyder refused to sell the Corner Parcel to Defendants at a price well 23 below market value, Defendants pressured Ms. Snyder to purchase the Orangewood Parcel for a 24 25 4 The buyer of the anchor parcel was Gilbert McKellips Fitness, LLC (aka Barclay). -5- 1 price well above market value. When Ms. Snyder again refused, Defendants reminded her that 2 she would have to pay a small ransom to Defendants in perpetuity for access to the Driveways. 3 25. After Ms. Snyder refused to give in to the Defendants’ strongarm tactics, she 4 learned that the Defendants’ actions to landlock the Corner Parcel substantially adversely 5 impacted its value. 6 26. Since 2019, pursuant to the Access Agreement, Ms. Snyder’s Tenant has been 7 forced to pay Defendants approximately $122,000, which Tenant would have paid to Ms. Snyder 8 but for the Access Agreement. 9 27. Ms. Snyder brings this lawsuit in order to enforce the Corner Parcel’s right to the 10 Driveways for legal access to the public streets. 11 28. This matter qualifies as a Tier 3 case pursuant to Rule 8(b)(2), A.R.C.P. 12 COUNT I 13 PRIVATE WAY OF NECESSITY 14 29. Plaintiff hereby adopts and incorporates the prior allegations set forth above as 15 though fully set forth herein. 16 30. The Corner Parcel and the Orangewood Parcel are so situated with respect to each 17 other it is necessary for the Corner Parcel’s proper use and enjoyment to have and maintain a 18 private way of necessity over the Driveways. 19 31. Condemning a private way of necessity in favor of the Corner Parcel over the 20 Driveways is a “reasonable necessity” because the Corner Parcel lacks adequate alternatives for 21 ingress and egress to the public streets. 22 32. Since there is no other right to access that exists by statute or common law, the 23 Corner Parcel is entitled to condemn a private way of necessity over the Driveways. 24 33. Defendants and their predecessor-in-interest have been holding the Corner Parcel 25 hostage, forcing Ms. Snyder’s Tenant to pay a small ransom for the use of the Driveways to access -6- 1 to the public streets, access to which the Corner Parcel is otherwise entitled to as a matter of law. 2 34. Therefore, Ms. Snyder is entitled to an order condemning a private way of 3 necessity over the Driveways. 4 COUNT II 5 PRIVATE NUISANCE 6 35. Plaintiff hereby adopts and incorporates the prior allegations set forth above as 7 though fully set forth herein. 8 36. Ms. Snyder’s interest in the enjoyment of the Corner Parcel requires convenient 9 access to the public streets. 10 37. Ms. Snyder’s interest in the enjoyment of the Corner Parcel includes the right to 11 profit from its use. 12 38. Defendants took specific actions with the intent to interfere with Ms. Snyder’s 13 interest in the use and enjoyment of the Corner Parcel, including creating the Orangewood Parcel 14 and otherwise refusing to allow the Corner Parcel or its Tenant to use the Driveways without 15 payment of substantial fees. 16 39. Defendants used the nuisance they created to extract substantial fees from Tenant, 17 fees that Tenant would have otherwise paid to Ms. Snyder.5 18 40. Defendants’ intentional acts to landlock the Corner Parcel have also caused the 19 Corner Parcel to suffer a diminution in value. 20 41. Defendants’ interference with the Corner Parcel’s ingress and egress to the public 21 streets is, therefore much more than a slight inconvenience – it is serious, continuing, and comes 22 23 24 5 The Access Agreement is unconscionable and therefore unenforceable. Likewise, Defendants’ actions to create the Orangewood Parcel for the sole purpose of landlocking the Corner Parcel so Defendants could 25 force Ms. Snyder into selling the Corner Parcel to them, or force other financial concessions from Ms. Snyder, for their own personal benefit and to the detriment of Ms. Snyder, are also unconscionable. -7- 1 at a substantial cost to Ms. Snyder. 2 42. As a direct and proximate result of Defendants’ interference with the Corner 3 Parcel’s ingress and egress, Ms. Snyder has suffered substantial damages, including the 4 substantial loss of income and the Corner Parcel’s diminution of value, in an amount to be 5 determined at trial, but in no event less than $500,000. 6 COUNT III 7 TORTIOUS INTERFERENCE WITH BUSINESS EXPECTANCY 8 43. Plaintiff hereby adopts and incorporates the prior allegations set forth above as 9 though fully set forth herein. 10 44. Ms. Snyder had a valid business expectancy to have convenient legal access to and 11 from the Corner Parcel and to be able to lease or sell the Corner Parcel with such legal access. 12 45. Defendants knew of Ms. Snyder’s valid business expectancy when they created 13 the Orangewood Parcel. 14 46. Defendants created the Orangewood Parcel to intentionally interfere with Ms. 15 Snyder’s valid business expectancy and to create a cloud on title due to lack of access. 16 47. Defendants’ intentional interference prevents Ms. Snyder from selling or leasing 17 the Corner Parcel at the best price that the free market will bear. 18 48. The defendant’s conduct was and is improper in terms of the nature of the 19 Defendant’s conduct, motives, and Ms. Snyder’s interests. 20 49. As a direct and proximate result of Defendants’ unlawful interference and unfair 21 competition, Ms. Snyder has suffered substantial damages, in an amount to be determined at trial, 22 but in no event less than $500,000. 23 50. Defendants intentionally engaged in a pattern of aggravated and outrageous 24 conduct with an “evil hand guided by an evil mind” with the clear intent to injure, defraud, or 25 deliberately interfere with Owners’ legal rights as to justify an award of punitive damages in an -8- 1 amount to be determined at trial but in no event less than $500,000. 2 COUNT IV 3 CONSPIRACY TO VIOLATE A.R.S. § 44-1402 4 51. Plaintiff hereby adopts and incorporates the prior allegations set forth above as 5 though fully set forth herein. 6 52. Pursuant to A.R.S. § 44-1402, a conspiracy between two or more persons to 7 “monopolize, trade or commerce” is unlawful. 8 53. Defendants agreed to create the Orangewood Parcel to monopolize access to the 9 Driveways to substantially impair Ms. Snyder’s ability to sell the Corner Parcel to anyone but 10 Defendants. 11 54. As a result of Defendants’ actions, Ms. Snyder is forced to either sell the Corner 12 Parcel to Defendants, or sell on the free market at a price well below market value. 13 55. A.R.S. § 44-1408(B) provides that a person threatened with injury or injured in his 14 business or property may bring an action for appropriate injunctive or other equitable relief, 15 damages sustained, and as determined by the court, taxable costs and reasonable attorney’s fees. 16 56. A.R.S. § 44-1408(B) also provides that a flagrant violation of A.R.S. § 44-1402 17 entitles a plaintiff to recover treble damages. 18 57. Therefore, pursuant to A.R.S. § 44-1408(B), Ms. Snyder is entitled to injunctive 19 relief, compensatory and consequential damages, attorney’s fees and costs, and treble the actual 20 damages against Defendants. 21 COUNT V 22 CIVIL CONSPIRACY 23 58. Plaintiff hereby adopts and incorporates the prior allegations set forth above as 24 though fully set forth herein. 25 59. Defendants knowingly agreed and conspired to landlock the Corner Parcel, -9- 1 intending to force Ms. Snyder to sell the Corner Parcel to them at a price well below market value. 2 60. Defendants knew that by creating the Orangewood Parcel, the result would be to 3 cause the Corner Parcel to suffer a substantial diminution of value. 4 61. When Ms. Snyder refused to sell the Corner Parcel to Defendants at a price far 5 below market value or purchase the Orangewood Parcel from Defendants at a price far above 6 market value, Defendants essentially forced Ms. Snyder (or her tenants) to pay for the use of the 7 Driveways in perpetuity. 8 62. To date, Defendants’ conspiracy to interfere with the Corner Parcel’s right to use 9 the Driveways has cost Ms. Snyder not less than $122,000 in lost profits. 10 63. Defendants’ conspiracy to interfere with the Corner Parcel’s right to use the 11 Driveways has caused a substantial diminution of the Corner Parcel’s value. 12 64. As a direct and proximate result of the Defendants' conspiracy to create a private 13 nuisance, Ms. Snyder has suffered compensatory and consequential damages in an amount to be 14 proven at trial but in no event less than $500,000. 15 65. Defendants intentionally engaged in a pattern of aggravated and outrageous 16 conduct with an “evil hand guided by an evil mind” with the clear intent to injure, defraud, or 17 deliberately interfere with Owners’ legal rights as to justify an award of punitive damages in an 18 amount to be determined at trial but in no event less than $500,000. 19 COUNT VI 20 AIDING AND ABETTING 21 66. Plaintiff hereby adopts and incorporates the prior allegations set forth above as 22 though fully set forth herein. 23 67. OTM-Klossco aided Orangewood in its scheme to deny legal access to the Corner 24 Parcel to extort a financial benefit from Ms. Snyder. 25 68. OTM-Klossco knew at all relevant times that the Defendants’ scheme to deny -10- 1 access to the Corner Parcel to extort a substantial financial benefit from Ms. Snyder was unlawful. 2 69. OTM-Klossco substantially encouraged, assisted, and conspired with 3 Orangewood to withhold or threaten to withhold access to the Corner Parcel in order to unfairly 4 extract a substantial financial benefit from Ms. Snyder. 5 70. As a direct and proximate result of the conspiracy, Ms. Snyder has suffered 6 compensatory and consequential damages in an amount to be proven at trial but in no event less 7 than $500,000. 8 71. Defendants intentionally engaged in a pattern of aggravated and outrageous 9 conduct with an “evil hand guided by an evil mind” with the clear intent to injure, defraud, or 10 deliberately interfere with Owners’ legal rights as to justify an award of punitive damages in an 11 amount to be determined at trial but in no event less than $500,000. 12 COUNT VII 13 DECLARATORY JUDGMENT 14 72. Plaintiff hereby adopts and incorporates the prior allegations set forth above as 15 though fully set forth herein. 16 73. Pursuant to A.R.S. § 12-1832, a justiciable controversy exists between Ms. Snyder 17 and Defendants. 18 74. Accordingly, this Court may enter a declaratory judgment declaring that (i) the 19 Corner Parcel is entitled to the condemnation of a private way of necessity for ingress and egress 20 over the Driveways, and (ii) the Access Agreement is void as unlawful to the extent that it requires 21 Tenant to pay for the use of the Driveways. 22 WHEREFORE, Ms. Snyder respectfully requests that the Court enter judgment against 23 Defendants, jointly and severally, as follows: 24 A. For declaratory relief, ordering that (i) the Corner Parcel is entitled to an 25 easement of necessity over the Driveways on the Orangewood Parcel for ingress and -11- 1 egress to the public streets, and (ii) the Access Agreement is void as unlawful to the 2 extent that it requires Tenant to pay for the use of the Driveways. 3 B. For an award of compensatory and consequential damages; 4 C. For punitive damages; 5 D. For Plaintiff’s attorney’s fees and taxable costs to the greatest extent available 6 under Arizona law; and 7 E. For interest on all amounts owed at the highest legal rate until paid in full; and 8 F. For such other and further relief as may be proper and just under the 9 circumstances. 10 RESPECTFULLY SUBMITTED this 24th day of June, 2024. 11 THE LAW OFFICE OF NINO ABATE, PLC 12 By: /s/ Nino Abate 13 Nino Abate 14 15 16 17 18 19 20 21 22 23 24 25 -12- EXHIBIT "A" "SITE PLAN" r EXISTING SHOPS UJ llJ ..J McKELLIPS ROAD EXHIBIT "B" Unofficial Document C MAR HELEN PURCELL 2009-0162836 02125109 10:42 AM 1 OF 1 F"LORESC WHEN RECORDED, RETURN TO: Joseph J. Moritz, Jr., Esq. FRANCIS J. SLAVIN, P.C. 2198 East Camelback Road, Suite 285 Phoenix, Arizona 85016 NON-EXCLUSIVE VEHICULAR AND PEDESTRIAN ACCESS EASEMENT AGREEMENT, CONSENT OF OWNER OF BENEFITED PROPERTY AND CONSENT AND SUBORDINATION OF LIENHOLDER ;;;,~~t~ This Non-Exclusive Vehic~,u and edestriari Access Easement Agreement (the "Agreement') is made this 2-~!-day of'Na-'l"l'ffl!ff', 2668, by ORSETT/ORANGETREE LIMITED PARTNERSHIP, a Massachusetts limited partnership ("Grantor"), and GILBERT ROAD/MCKELLIPS DB LLC, an Oregon limited liability company ("Grantee"). RECITALS: A. Grantor is the owner of that certain real property located in the City of Mesa, Maricopa County, Arizona legally described on Exhibit A attached hereto and incorporated herein by this reference (the "Burdened Property'i; 8. Grantee has leased that certain real property located in the City of Mesa, Maricopa County, Arizona legally described on Exhibit B attached hereto and incorporated herein by this reference (the "Benefited Property'i owned by MURRAY REISMAN, a single man; C. The Burdened Property and the Benefited Property are contiguous to each other and are depicted on the site plan attached hereto as Exhibit C and incorporated herein by this reference (the ''Site Plan'?. D. Pursuant to its lease Grantee will improve the Benefited Property for the purpose of providing retail and drive-through sales of coffee ("Coffee Business'?. 1 2860-002 20090162836 E. In connection with the improvement of the Benefited Property, Grantee has obtained a Development Improvement Permit (the "DIP'') from the City of Mesa, the issuance of which is dependent upon, among other things, evidence that the Benefited Property has adequate access to public streets. F. Grantor wishes to grant certain easements to Grantee to provide for pedestrian and vehicular ingress and egress from the Benefited Property over the Burdened Property in connection with the Coffee Business and the DIP. NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual agreements, covenants and promises contained in this Agreement, and other good and valuable consideration, the receipt, sufficiency and validity of which is hereby acknowledged, the parties agree as follows: AGREEMENTS: 1. Grant of Easement. Granter hereby grants and conveys to Grantee, for the benefit of Grantee and its agents, employees, contractors, invitees and licensees ("Permitees"), the non-exclusive right, easement and privilege during the term of this Agreement of ingress and egress upon, across and over the driveways, entryways, access ways, walkways, and sidewalks of the Burdened Property (" Surface Improvements") for the purpose of providing ingress and egress for the use, enjoyment and benefit of pedestrians, and motorized or non-motorized vehicular traffic (the "Easement''). The Easement pr~ .ff0:l~~m•nJ_r 0 rights of ingress and egress only. Nothing contained in this Agreement shall be deemed to create any implied easements not otherwise expressly provided for in this Agreement. Specifically, but without limitation, this Agreement does not grant any parking rights over or on the Burdened Property, and no grant of parking rights is intended by or shall be inferred from this Agreement. Subject to the terms of this Agreement, the Easement granted hereby shall remain in full force and effect so long as Grantee or its successors and/or assigns shall be in possession of, and/or shall hold any interest, legal or equitable, in, all or any part of the Benefited Property. For all purposes under this Agreement, the "Commencement Date" shall be the date on which this Agreement, fully executed and acknowledged, is recorded in the official records of the Maricopa County, Arizona Recorder (the "Commencement Date"). Grantee shall record this Agreement by the earlier of (i) receipt of a building permit from the City of Mesa for the improvements to the Benefited Property contemplated hereby, or (ii) 120 days from the date of this Agreement. 2. Consideration. In consideration of Grantor's granting of the Easement to Grantee, Grantee agrees to pay Grantor, in advance, commencing on the later of the 1st day of December; 2008, or the Commencement Date, and on the same day of each subsequent month during the term of the Easement, a monthly fee of $2,000.00 per month; provided, however, that in the event the Easement commences on a date which 2 2860-002 20090162836 is other than on first day of the month, Grantee shall pay Granter a prorated portion of such monthly fee for such partial month within five (5) days of the Commencement Date, which shall be determined by dividing the number of days remaining in the month in which the term of the Easement commences (including the Commencement Date) divided by the total number of days contained in such month and then multiplying the sum of $2,000.00 by the quotient derived therefrom. In the event that the term of the Easement expires on a day which is other than on the last day of the month, the prorated fee payable for the final month of the term of the Easement shall be determined by dividing the number of days in the final month prior to and including the date on which the term of the Easement expires by the total number of days contained in such month and then multiplying the sum of $2,000.00 by the quotient derived therefrom. The monthly fee required to be paid to Granter by Grantee under the Easement shall be sent or delivered to the address of Granter for giving written notices required or permitted hereunder set forth below. In the event that Grantee fails to pay an installment of the monthly fee payable to Granter during the term of the Easement on or prior to the date on which such monthly installment is due and Grantee fails to cure such default within five (5) days of written notice from Granter that such payment has not been made {a "Default Notice"), the Easement shall automatically terminate without any further action by Granter. Further, Granter shall only be obligated to provide a Default Notice to Grantee two (2) times during the term of the Easement. Subsequent to the second time that Granter has given a Default Notice to Grantee, Granter shall not be required to provide any further Default Notices to Grantee, and in the t"~ff~•)~~'"e>f .my subsequent failure by Grantee to pay an installment of the monthly fee payable to Granter during the term of the Easement on or prior to the date on which such monthly installment is due, the Easement shall automatically terminate without any further action by Granter. In the event of any other default by Grantee hereunder, Grantee shall be entitled to a period of (20) days after receipt of written notice from Granter within which Grantee may cure such default before Granter shall be entitled to terminate this Easement or exercise any other remedies available to Granter hereunder or under applicable law, provided, however, that Granter shall not be entitled seek any incidental or consequential or punitive damages from Grantee. 3. Maintenance and Damage. In the event that Grantee or its Permittees, in the course of exercising the rights granted herein, shall damage any of the Surface Improvements or any other improvements on the Burdened Property, Grantee at its sole cost shall promptly restore the damaged Surface Improvements or other improvements to a condition substantially the same as that which existed immediately before such damage occurred. Grantee otherwise shall not have any obligation to inspect, maintain, repair and replace the Surface Improvements, except to the extent expressly provided herein. Grantee covenants and agrees that Grantee's use of the Surface Improvements shall not obstruct, or be in conflict or interfere with the use and enjoyment of the Burdened Property by Granter. Subject to the requirements of any consensual lienholder under any mortgage or deed of trust encumbering the Burdened Property 3 2860-002 20090162836 concerning impounds for payment thereof, Grantor shall pay or cause to be paid, prior to delinquency, directly to the appropriate taxing authorities, all ad valorem real property taxes and assessments which are levied against the Burdened Property. 4. Indemnity. Grantee further covenants and agrees with Granter, on behalf of itself or its successors and assigns, as the case may be, to indemnify, hold harmless and defend (with legal counsel reasonably acceptable to Granter) Granter for, from and against any and all claims, liabilities, and expenses, and reasonable attorneys' fees and court costs which may be claimed or asserted against Grantor, its successors or assigns, or the Burdened Property, on account of the exercise by Grantee and/or its invitees, licensees, agents, employees, successors and assigns of the rights, easements and privileges herein granted and conveyed, including, but without limitation, claims for property damage and bodily injury or death and any mechanics' or materialmen's liens or claims of lien which may be asserted against Granter, its successors or assigns, or the Burdened Property, except to the extent such claims, liabilities and expenses are the result of the negligence or intentional misconduct of Granter and/or its tenants, licensees, permittees, invitees, successors and assigns on or about the Burdened Property. 5. Modifications. Granter reserves the absolute right to modify, reconfigure, and otherwise change the Surface Improvements without notice to Grantee, including installation of reasonable traffic controls which may be necessary to guide and control the orderly flow of traffic, so long as access driveways and entryways are not closed or blocked and access to the Benefited ~ii;.[o,;u::!;t is preserved. No walls, fences, or barriers of any kind may be constructed or maintained on the Burdened Property, or any portion thereof, by Granter or any tenants, licensees, permittees, invitees, successors and assigns of Granter which prevent or impair the use or exercise of the Easement, or the free access and movement, including without limitation, pedestrians and vehicular traffic between the Benefited Property and the Burdened Property. The only exception to this provision is for incidental encroachments upon the aisleways, driveways, entryways and the like located on the Burdened Property which may occur as a result of the use of the ladders, scaffolding, storefront barricades and similar facilities resulting in temporary obstruction of the aisleways, driveways, entryways and the like located on the Burdened Property, all of which are permitted hereunder so long as their use is kept within reasonable requirements of construction and maintenance, repair and replacement work being expeditiously pursued. 6. Insurance. During the term of the Easement, and prior to entry upon the Burdened Property, Grantee shall deliver to Granter a currently effective certificate of commercial general liability insurance written on an "occurrences" basis with a minimum combined single limit of $3,000,000.00 with coverage for owned and non-owned motor vehicles and contractual liability coverage and with a reasonable deductible amount. All policies of insurance required by the terms of this Agreement shall contain an endorsement or agreement by the insurer that any loss shall be payable in accordance with the terms of such policy notwithstanding any act or negligence of the insured which 4 2860-002 20090162836 might otherwise result in forfeiture of said insurance and the further agreement of the insurer waiving all rights of set off, counterclaim or deductions against the insured. Granter and their successors and assigns shall be named as an additional insured under all such insurance policies. Such insurance coverage may be included in blanket insurance policies. The insurer(s) of such certificates shall commit to give Grantor thirty (30) days prior written notice before cancellation of the policies or reduction in coverage, except in case of nonpayment of premiums, in which case the insurer(s) shall commit to give Grantor ten (10) days prior written notice before cancellation or reduction in coverage. If Grantee fails to pay such premium prior to the due date, then Granter may pay all or any part thereof and Grantee shall immediately reimburse Grantor the amount so paid together with interest thereon at ten percent (10%) per annum from date of payment until such reimbursement has been made in full. Such insurance shall be underwritten by corporate insurers licensed in Arizona which are reasonably acceptable to Grantor. Grantee agrees to maintain such insurance in force throughout the term of this Easement. Grantee agrees from time to time to furnish to Grantor current certificates or other evidence of insurance satisfactory to Granter (ACORD 25(S) form) to evidence that such insurance is in full force and effect as required hereunder. Upon each anniversary date of the term of this Easement, the amount of the combined single limit set forth above, as the same may previously have been increased as provided herein, shall be increased if the Consumer Price Index -- U.S. City Average All Items -- All Urban Consumers (Index) as published by the United States Department of Labor's Bureau of Labor Statistics (the "Bureau'j, increases over the base period Index. The base period Index shall be the Index for the calendar month which is two months prior to the month in which the Commencemenf"~t~~me!vcurs.The base period Index shall be 0 compared with the Index for the same calendar month for each subsequent year of the term of this Easement ("comparison month'j. If the Index for any comparison month is higher than the base period Index, then the amount of the combined single limit set forth above then in effect under this Easement shall be increased in excess of the amount of the combined single limit set forth above by the identical percentage. In no event shall the amount of the combined single limit be less than the amount set forth above. By way of illustration only, if the Commencement Date occurred on September 1, 2008, then the base period Index is that for July of 2008 (assume 376.3) and that Index shall be compared to the Index for July 2009 (assume 385.8), and because the Index for July of 2009 is 2.52% higher, the adjusted amount of the combined single limit shall be 2.52% higher than the amount of the combined single limit set forth above for the next year of the term of this Easement, or $3,075,600.00, and so on. Should the Bureau discontinue the publication of the above Index, or publish same less frequently, or alter same in some other manner, then Grantor and Grantee shall adopt a substitute index or substitute procedure which reasonably reflects and monitors consumer prices. 7. Run with Land. Subject to and conditioned upon the requirement that the Benefited Property shall be used exclusively as and for a Coffee Business during the 5 2860-002 20090162836 term of the Easement, the Easement and the benefits and burdens thereof shall (i) be binding upon and run with the Benefited Property and the Burdened Property, respectively, and (ii) inure to the benefit of and be binding upon Grantor and Grantee and their respective heirs, personal representatives, successors and assigns. 8. Termination. Except as otherwise provided in this Agreement, the Easement may be terminated, modified, or amended only by a writing signed by all the then owners of the Burdened Property and the Benefited Property. Notwithstanding the above, this Agreement and the Easement shall automatically terminate: (i) if at any time during the term of the Easement the Benefited Property is used for any purpose other than a Coffee Business; (ii) if at any time during the term of the Easement the use of the Benefited Property as a Coffee Business ceases or is interrupted for a period of more than sixty (60) consecutive days; provided, however, that if the cause of such cessation or interruption is a casualty, and Grantee diligently pursues the repair and reopening of the Coffee Business, then the Easement shall not terminate unless the Coffee Business does not recommence on an ongoing basis within nine (9) months of the date of such casualty. (iii) twenty (20) years from the Commencement Date. In the event of termination Grau-;o~cialDocu;;;.';;711 at Grantor's request execute and acknowledge a written instrument in recordable form memorializing such termination. If Grantee refuses to do so, Grantor shall have the right to record such an instrument executed only by Grantor. 9. Breach. In the event either party hereto breaches either the covenants or warranties contained in this Agreement, such party shall indemnify, hold harmless and defend (with legal counsel reasonably acceptable to the non-breaching party) the other party for all costs incurred in connection with such breach. Such costs shall include all losses and expenses of any type or kind and interest thereon in the manner provided by law, including, without limitation, reasonable attorneys' fees. Further, the non-breaching party shall have the right to all other legal and equitable remedies, including injunctive relief, in the event of any such breach. 10. Miscellaneous. 10.1. No Public Rights. Nothing contained herein shall be interpreted or construed as either creating a dedication or grant of any rights to the public or causing any party to be a joint venturer or partner of any other party. 10.2. Counterparts. This Agreement may be executed in counterparts each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. 6 2860-002 20090162836 10.3. Notice. All notices required or permitted to be given under this Agreement shall be in writing and shall be sent by United States Postal Service, postage prepaid, registered or certified, return receipt requested, or any nationally known overnight delivery service, or by courier, or in person. All notices shall be deemed to have been given forty-eight (48) hours following deposit in the United States Postal Service or upon personal delivery if sent by overnight delivery service, courier or personal delivery. All notices shall be addressed to the party at the address below: If to Grantee: GILBERT ROAD/MCKELLIPS DB LLC 27915 N. 100th Place Scottsdale, Arizona 85262 Attention: James L. Thompson, Manager If to Grantor: ORSETT/ORANGETREE LIMITED PARTNERSHIP 2929 E. Camelback Road, Suite 210 Phoenix, Arizona 85016 Attention: Mr. Robert Rosenberg With a copy to: Unofficial Document CITY OF MESA 20 East Main Street, Suite 850 Mesa, Arizona 85201 Attention: City Attorney Any address or name specified above may be changed by notice given to the addressee by the other party in accordance with the above methods for giving notice. The inability to deliver because of a changed address of which no notice was given, or rejection or other refusal to accept any notice, shall be deemed to be the receipt of the notice as of the date of such inability to deliver or rejection or refusal to accept. Any Notice to be given by any party hereto may be given by the legal counsel for such party. [THE REMAINDEROF THIS PAGE INTENTIONALLYLEFT BLANK] [SIGNATURESFOLLOWON SUCCEEDINGPAGES] 7 2660-002 20090162836 IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement this f 7 day of ~ 2008. GRANTEE: GILBERT ROAD/MCKELLIPSDB LLC, r an Oregon limited liability company By: d--, • J~ L.Thompson, Manager 213""::;P ~ .,- GRANTOR: ORSETT/ORANGETREELIMITED PARTNERSHIP, a Massachusetts limited partnership By: 8 2860-002 EXHIBIT "C"