Acedo v. Mannion


                                    IN THE
                                DIVISION ONE

    JUAN SALVADOR ESQUER ACEDO, et al., Plaintiffs/Appellants,


                GEORGE B. MANNION, Defendant/Appellee.

                             No. 1 CA-CV 20-0017
                              FILED 10-27-2020

           Appeal from the Superior Court in Maricopa County
                          No. CV2015-013980
                The Honorable Michael W. Kemp, Judge



Dominguez Law Firm, P.C., Phoenix
By Antonio Dominguez, Lisa Montes
Counsel for Plaintiffs/Appellants

Fidelity National Law Group, Phoenix
By Nathaniel B. Rose, Jamey A. Thompson
Counsel for Defendant/Appellee
                          ACEDO v. MANNION
                           Decision of the Court

                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.

C R U Z, Judge:

¶1           This case addresses the validity of a recorded lis pendens on
a Condominium with disputed ownership. Juan Salvador Esquer Acedo
and his wife Alma Laura Valenzuela Ubiarco (collectively, “Esquer”)
appeal from the summary judgment against them. The court found Esquer
never had an ownership interest in the Condominium and did not have a
valid constructive trust claim. The court subsequently denied Esquer’s
motion for a new trial. Finding no error, we affirm.


¶2           George B. Mannion purchased the Condominium from
MWM 3G, PLLC (“MWM”) in September 2017 for $433,900. MWM had
purchased the Condominium at a trustee’s sale a month earlier. The court
previously denied Esquer’s request for an injunction on the trustee’s sale
because Esquer never personally held title to the Condominium.

¶3             Esquer used the Condominium for approximately two years,
made improvements to it, and had vehicles there. The ownership before
the 2017 trustee’s sale is a “maze” of transfers. Title reports were done in
December 2015 and January 2016 for property transfers. The second report
should have captured the then-recorded lis pendens, but someone missed
it.1 After Mannion purchased the Condominium in 2017, Esquer filed a
third-amended complaint adding Mannion as a defendant and filed an
additional lis pendens.

¶4           The court ruled that Esquer’s lis pendens was invalid and
granted summary judgment on quiet title in favor of Mannion. The court
entered a judgment pursuant to Arizona Rule of Civil Procedure (“Rule”)

1     As to Mannion, we treat the first and second lis pendes as one
because they have the same legal effect.

                           ACEDO v. MANNION
                            Decision of the Court

54(b)2 and denied Esquer’s motion for a new trial. Esquer immediately filed
a notice of appeal. Esquer’s claims for money damages against other
defendants are currently set for trial. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1), (5)(a).


¶5             Summary judgment is appropriate if the moving party is
entitled to judgment as a matter of law and there is no genuine dispute as
to any material fact. S & S Paving & Constr., Inc. v. Berkley Reg’l Ins. Co., 

239 Ariz. 512

, 514, ¶ 7 (App. 2016); Ariz. R. Civ. P. 56(a). We review questions
of law de novo but review the facts in a light most favorable to Esquer. See
Nelson v. Phoenix Resort Corp., 

181 Ariz. 188

, 191 (App. 1994).

I.     The Role of a Lis Pendens

¶6            The recording of a notice of a lis pendens is authorized by
A.R.S. § 12-1191, and that recording gives notice to the world of the
pendency of an action “affecting title to real property.” A.R.S. § 12-1191(A).
A lis pendens provides constructive notice to a purchaser or encumbrancer
of the property. A.R.S. § 12-1191(B). The mere filing of a lis pendens,
however, does “not establish the validity of [the plaintiff’s] claim.” BT Cap.,
LLC v. TD Serv. Co. of Ariz., 

229 Ariz. 299

, 301, ¶ 14 (2012). In determining
whether a lis pendens was recorded wrongfully, the court considers only
“whether the ‘action is one affecting title to real property.’” Santa Fe Ridge
Homeowners’ Ass’n v. Bartschi, 

219 Ariz. 391

, 395, ¶ 11 (App. 2008) (citations

II.    Esquer’s Claim Is Groundless

¶7             A property right incident to title only exists if such a judgment
would expand, restrict, or burden a new owner’s rights under the title. See
Hatch Cos. Contracting, Inc. v. Ariz. Bank, 

170 Ariz. 553

, 558 (App. 1991)
(equating “rights incident to title” with a “connection . . . with rights in real
property”). A lis pendens is groundless when the claim to title “has no
arguable basis or is not supported by any credible evidence.” Evergreen W.,
Inc. v. Boyd, 

167 Ariz. 614

, 621 (App. 1991). Esquer’s claim is groundless for
two primary reasons.

2      The Rule 54(b) language is sufficient to pursue the appeal, because
the removal of Mannion did not affect the balance of Esquer’s claims.

                           ACEDO v. MANNION
                            Decision of the Court

¶8              First, Esquer’s best claim to an interest in the Condominium
is his alleged membership in an entity that was a beneficiary of a trust
holding the title. That alleged membership would not support a claim to
title by Esquer. See Corp. Comm’n v. Consol. Stage Co., 

63 Ariz. 257

, 259 (1945)
(“By the very nature of a corporation the corporate property is vested in the
corporation itself and not in the stockholders.”). Second, a trustee’s sale
extinguishes a lis pendens. See A.R.S. § 33-811(C), (E) (“That conveyance
shall be absolute without right of redemption and clear of all liens, claims
or interests that have a priority subordinate to the deed of trust and shall be
subject to all liens, claims or interests that have a priority senior to the deed
of trust.”); BT 

Capital, 229 Ariz. at 301

, ¶¶ 10-12. Here, the Condominium
was sold twice after the court refused Esquer an injunction of the trustee’s
sale. Therefore, the lis pendens was extinguished.

III.   Esquer Does Not Have a Valid Constructive Trust Because a Remedy
       at Law is Available

¶9            Neither A.R.S. § 12-1191 nor A.R.S. § 33-420 allows parties to
record a notice of lis pendens to recover a debt merely by alleging the action
was seeking a constructive trust or equitable lien. Coventry Homes, Inc. v.
Scottscom P’ship, 

155 Ariz. 215

, 218 (App. 1987). “There must be some basis
for concluding that an equitable lien or constructive trust would be
imposed on the real property subject to the notice of lis pendens.”

Id. ¶10 A constructive

trust is improper when another adequate
remedy at law is available to the harmed party. ML Servicing Co. v. Coles,

235 Ariz. 562

, 569, ¶ 24 (App. 2014). Esquer has no valid claim for a
constructive trust or equitable lien. However, even if the facts had
supported his claim of title to the Condominium, Esquer had a remedy at
law—money damages against the other defendants. And Esquer is still
litigating issues of fraud and breach of fiduciary duty against several other

¶11           Because Mannion’s use of the Condominium would not be
affected by a judgment against the other defendants, Esquer’s lis pendens
was improper and void. See Santa Fe 

Ridge, 219 Ariz. at 395-98

, ¶¶ 11, 18,
22-23. Additionally, a constructive trust is an equitable remedy imposed
when a plaintiff proves by clear and convincing evidence that a wrongful
holding of property unjustly enriched the defendant at the plaintiff’s
expense. Burch & Cracchiolo, P.A. v. Pugliani, 

144 Ariz. 281

, 285-86 (1985);
Harmon v. Harmon, 

126 Ariz. 242

, 244 (App. 1980). Mannion was not
unjustly enriched as he paid $433,900 for the Condominium.

                           ACEDO v. MANNION
                            Decision of the Court

¶12           We viewed the evidence on Esquer’s constructive trust claim
in the light most favorable to Esquer. Nevertheless, the record on appeal
supports Mannion’s claim, and we find no error in the grant of summary
judgment. See Mutschler v. City of Phoenix, 

212 Ariz. 160

, 162, ¶ 8 (App.
2006); Ariz. R. Civ. P. 56(a).3 The court correctly determined that the lis
pendens was improper and void because Esquer’s claims did not affect title
to the Condominium.

IV.    Motion for New Trial

¶13            The standard of review for denial of a motion for a new trial
is abuse of discretion. Suciu v. Amfac Distrib. Corp., 

138 Ariz. 514

, 520 (App.
1983). We defer to the court’s factual findings unless clearly erroneous. See
Ahwatukee Custom Ests. Mgmt. Ass’n v. Turner, 

196 Ariz. 631

, 634, ¶ 5 (App.
2000). We review the interpretation and application of statutes de novo.
Schwarz v. City of Glendale, 

190 Ariz. 508

, 510 (App. 1997) (citation omitted).
For the reasons stated above, denial of Esquer’s motion for a new trial was
not an abuse of discretion.

V.     Attorneys’ Fees and Costs

¶14          Mannion does not make a claim for attorneys’ fees, only for
costs. Mannion is awarded his costs after compliance with Arizona Rule of
Civil Appellate Procedure 21.

3      Esquer additionally argues on appeal that: (1) the court
impermissibly granted summary judgment in favor of Mannion based on
law of the case and findings from the earlier injunction hearing and (2)
summary judgment should be reversed because a special warranty deed
from the Arizotex Villa Trust to Virtuoso was allegedly forged. Mannion
argues, and Esquer disputes, whether these claims were raised for the first
time on appeal. Regardless, neither of Esquer’s claims are meritorious.
First, in ruling on the motion for summary judgment, the court
independently made the same findings as the prior ruling denying Esquer
an injunction. Second, his claim that the special warranty deed was forged
is barred given there have been two separate new owners following the
trustee sale. See A.R.S. § 33-811(C).

                          ACEDO v. MANNION
                           Decision of the Court


¶15           For the above-stated reasons, the summary judgment against
Esquer is affirmed. The Condominium is Mannion’s real property, and
there is no constructive trust on it. Mannion is awarded his costs on appeal.

                        AMY M. WOOD • Clerk of the Court
                        FILED: AA

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