Rigoli v. 44 Monroe , 236 Ariz. 112 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JOHN I. RIGOLI and DELPHINE D. RIGOLI, husband and wife; JULIAN
BLUM, and FLEETA BLUM, husband and wife; DENNIS FARRELL and
ALBERTA FARRELL, husband and wife; ZENEPE KOCI; PHUONG
PHAN and HOANG PHAN, husband and wife; MT & TE NELSON, LTD.
aka MT NELSON, LTD, an Iowa corporation; KEVIN DANEY and
BARBARA DANEY, husband and wife; JOSEPH CHARTERS and MARY
CHARTERS, husband and wife; KNOT OAKS HOLDING, LLC, a
Delaware limited liability company; JOHN CARPENTER,
Plaintiffs/ Appellees,
v.
44 MONROE MARKETING, LLC, a Delaware limited liability company,
Defendant/Appellant.
__________________________________
No. 1 CA-CV 12-0587
FILED 10-09-2014
Appeal from the Superior Court in Maricopa County
No. CV2010-016766
The Honorable George H. Foster, Judge
AFFIRMED
COUNSEL
Moyes Sellers & Hendricks, Phoenix
By Keith L. Hendricks, Stephen Brower
Counsel for Plaintiffs/Appellees
Dickinson Wright PLLC, Phoenix
By Michael S. Rubin, Todd A. Baxter
Counsel for Defendant/Appellant
RIGOLI v. 44 MONROE
Opinion of the Court
OPINION
Judge John C. Gemmill delivered the opinion of the Court, in which
Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.
G E M M I L L, Judge:
¶1 This appeal arises from an unsuccessful project to construct
and sell condominium units in Phoenix. Defendant/Appellant 44 Monroe
Marketing, LLC (“Marketing”) challenges the summary judgment granted
to Plaintiffs/Appellees – condominium purchasers – that recognized the
validity and priority of Plaintiffs’ vendees’ liens. Several questions are
presented. Did Plaintiffs acquire equitable vendees’ liens — to secure the
return of their earnest money and down payments in the event of default
— by entering into purchase contracts with the developer-seller and
making initial payments on the contracts? Did these vendees’ liens arise at
the time of payment of money to the developer? Are the vendees’ liens
superior in priority to the interests of a lender who thereafter provided a
construction loan to the developer? These questions are answered in the
affirmative, and the trial court’s judgment in favor of Plaintiffs is therefore
affirmed.
FACTS1
¶2 44 Monroe, LLC (“Developer”) wanted to build a
condominium project at 44 West Monroe Street (“the Property”).2 During
2005 and 2006, “Plaintiffs” entered into purchase contracts with Developer
and made corresponding down payments for individual units. All
1 “We view the evidence in the light most favorable to the party opposing
the motion for summary judgment and construe all inferences in favor of
that party.” BAC Home Loans Servicing, LP v. Semper Invs. L.L.C., 230 Ariz.
587, 589, ¶ 2, 277 P.3d 784, 786 (App. 2012). We review de novo a trial
court’s summary judgment ruling. Strojnik v. Gen. Ins. Co. of Am., 201 Ariz.
430, 433, ¶ 10, 36 P.3d 1200, 1203 (App. 2001).
2 The entity known as 44 Monroe Marketing, LLC, referred to as
“Marketing” herein, is separate from and unrelated to the entity known as
44 Monroe, LLC, referred to as “Developer” herein.
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Opinion of the Court
Plaintiffs had entered into binding purchase contracts and paid down
payments before September 2006.
¶3 To obtain construction financing, Developer contacted Corus
Bank, N.A. In April 2006, Corus Bank sent Developer a loan commitment
letter that imposed a requirement that Developer obtain valid sales
contracts for at least 100 units with a gross sales amount of $66,500,000
before Corus Bank would fund a construction loan. The letter also required
Developer to have at least $4,406,000 of earnest money deposits from valid
sales contracts on deposit with Corus Bank and available to fund project
costs before Corus Bank would fund the construction loan. In addition to
requiring all sales contracts to be executed on a form pre-approved by
Corus Bank, the commitment letter further directed that the sales contracts
inform the purchaser that earnest money deposits would be used for costs
of construction.
¶4 Corus Bank then loaned Developer $86,829,000 for
construction and secured the loan with a deed of trust against the Property
(“Corus Bank deed of trust”) that was recorded on September 1, 2006.
¶5 Developer defaulted on the construction loan in March 2009
when it failed to pay the balance at the loan’s maturity date. By September
2009, Corus Bank was closed and the Federal Deposit Insurance
Corporation (“FDIC”) was appointed as receiver. The FDIC assigned the
Corus Bank deed of trust and other loan documents to Corus Construction
Venture, LLC (“Corus Construction”). The assignment was recorded in
December 2009. Five months later, the Property was sold at a trustee’s sale
at which Corus Construction was the highest bidder. Corus Construction
made a credit bid toward the obligations secured by the Corus Bank deed
of trust and directed that title to the Property be issued to Marketing. The
trustee’s deed conveying the Property to Marketing was recorded on June
1, 2010.
¶6 Plaintiffs then filed this action to quiet title and foreclose
against Marketing, asserting purchasers’ (vendees’) lien rights in the
Property. Marketing filed an answer and counterclaim asserting that
Plaintiffs’ equitable lien interests were invalid because federal law
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Opinion of the Court
controlled and Marketing, as a successor to the FDIC, was entitled to the
benefit of the D’Oench, Duhme doctrine and 12 U.S.C. § 1823(e).3
¶7 Marketing filed a motion for summary judgment arguing that
federal law controlled and precluded Plaintiffs’ interests in the Property.
Plaintiffs responded that they had vested interests in the Property through
vendees’ liens and that the D’Oench, Duhme doctrine and 12 U.S.C. § 1823(e)
did not apply to bar their claims. After briefing, the trial court denied
Marketing’s motion for summary judgment, finding that Plaintiffs had
valid vendees’ liens and federal law did not bar Plaintiffs’ claims.
¶8 In a subsequent motion for summary judgment, Plaintiffs
argued that their equitable vendees’ liens had priority over Marketing’s
interest in the Property. Plaintiffs asserted that their interests had priority
over the Corus Bank deed of trust because the bank had notice, before
making the construction loan, of Plaintiffs’ purchase contracts and deposits
on the Property. Thus, according to Plaintiffs, “the priority of the
construction loan was subject to Plaintiffs’ vendee liens and [was] not
extinguished by [Corus Bank’s] credit bid at the trustee’s sale.” At oral
argument before the trial court, Plaintiffs argued that Corus Bank was at
least on inquiry notice of the purchase contracts. The trial court agreed and
found that Corus Bank “not only was on notice, but had required pre-sales
of the various units resulting in payments by the various Plaintiffs that
result[ed] in the vendees’ liens.”
¶9 In February 2012, the trial court addressed a then recently
filed motion for summary judgment by Marketing on the issues of waiver
and lien priority. In addition to finding Marketing’s motion untimely, the
trial court rejected Marketing’s arguments, explaining that “nothing in the
record indicates any fact supporting the notion that the Plaintiffs[ ]
intended to subordinate their lien to any lender or to waive[ ] any right in
this regard.”
3 In D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 460–61 (1942), the United
States Supreme Court held that the receiver of a failed, FDIC-secured bank
cannot be bound by a secret side agreement in which the bank allegedly
promised not to collect a debt owed by a borrower. Section 1823(e) was
enacted to codify the D’Oench, Duhme doctrine. See FDIC. v. Adams, 187
Ariz. 585, 588, 931 P.2d 1095, 1098 (App. 1996).
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Opinion of the Court
¶10 The court entered final judgment, confirming that Plaintiffs
have vendees’ liens against the Property, dismissing with prejudice
Marketing’s counterclaims, and awarding Plaintiffs attorney fees and costs
against Marketing.
ANALYSIS
¶11 Marketing presents four arguments on appeal. First,
Marketing asserts that Plaintiffs waived their right to acquire vendees’ liens
because the purchase contracts provided the “sole and exclusive remedies”
available to Plaintiffs. Second, Marketing contends that Corus Bank has a
superior security interest because it did not have knowledge of Plaintiffs’
vendees’ liens at the time it funded the construction loan. Third, Marketing
posits that the FDIC’s interest in the Property is superior to Plaintiffs’
because the FDIC did not have knowledge of the vendees’ liens when it was
appointed receiver of Corus Bank, in accordance with the protection of the
D’Oench, Duhme doctrine. Fourth, Marketing argues that it is protected as
the FDIC’s successor in interest and as such, benefits as a Federal Holder in
Due Course (“FHDC”).
No Contractual Waiver of Vendees’ Liens
¶12 Marketing argues that Plaintiffs cannot assert vendees’ liens
as a remedy for the breach of their purchase contracts because the contracts
precluded the availability of vendees’ liens. To establish Plaintiffs’ alleged
waivers of their lien rights, Marketing points to the following language in
the purchase contracts:
Buyer, as its sole and exclusive remedies, may either (i)
terminate this Contract and receive a refund of the Earnest
Money and all other amounts paid to Seller under this
Contract, or (ii) if construction of the Unit is complete but
Seller refuses to complete the Closing and convey title to
Buyer, then . . . Buyer may seek to enforce specific
performance of this Contract . . . . Buyer shall have no
remedies except as expressly set forth in the preceding
sentence and regardless of the legal theory underlying any
claim by Buyer against Seller (whether such legal theory is
based on principle of contract law, negligence, or otherwise).
Our supreme court has defined waiver as the “express, voluntary,
intentional relinquishment of a known right or such conduct as warrants an
inference of such an intentional relinquishment.” Am. Cont’l Life Ins. Co. v.
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Ranier Constr. Co., Inc., 125 Ariz. 53, 55, 607 P.2d 372, 374 (1980); see also City
of Tucson v. Koerber, 82 Ariz. 347, 356, 313 P.2d 411, 418 (1957). A “clear
showing of an intent to waive” is required in order to find that a waiver of
contractual rights has occurred. Societe Jean Nicolas et Fils v. Mousseux, 123
Ariz. 59, 61, 597 P.2d 541, 543 (1979); Goglia v. Bodnar, 156 Ariz. 12, 19, 749
P.2d 921, 928 (App. 1987). Because vendees’ liens arise in equity and not
from express language in real property purchase contracts, see infra ¶¶ 18–
21, contractual waivers of vendees’ lien rights must be stated very clearly.4
¶13 Applying these principles, we hold that contractual language
alleged to establish waiver must manifest a clear and unequivocal intent to
waive the right to vendees’ liens. See Societe Jean Nicolas et Fils, 123 Ariz. at
61, 597 P.2d at 543; Pac. Lumber & Timber Co. v. Dailey, 111 P. 869, 870 (Wash.
1910) (“The evidence showing an agreement to waive a lien must be clear,
certain, and unequivocal.”); see also Mathis v. DCR Mortgage III Sub I, LLC,
389 S.W.3d 494, 507–08 (Tex. App. 2012) (explaining that a waiver of rights
in a promissory note or deed of trust must be “clear and unequivocal”);
Stewart v. Leasure, 55 P.2d 917, 919 (Cal. Ct. App. 1936) (ruling that waiver
of a right in a real estate contract must be “clear, unequivocal, and
decisive”). We further conclude that the language of Plaintiffs’ purchase
contracts is not sufficiently clear and unequivocal to waive Plaintiffs’ rights
to assert their vendees’ liens. See id.5
¶14 Marketing also relies on the loan commitment letter from
Corus Bank, which expressly required the purchase contracts to state that
the purchaser “has no lien rights with respect to the Project and all of
purchaser’s rights under the contract are subordinate to the Bank’s
4 Indeed, at least one court has concluded that because a vendee’s lien is an
equitable remedy, a court may still determine that the lien exists in the
interest of justice even when the contract language limits the extent of
available remedies. See In re Laketown Wharf Mktg. Corp., 433 B.R. 401, 415
(Bankr. N.D. Fl. 2010) (explaining that despite contract language
disclaiming lien rights, the purchasers could still “assert an equitable
vendee’s lien in order to aid recovery” of their deposits for “the purpose of
justice”); see also Glad Tidings Church of Am v. Hinkley, 71 Ariz. 306, 314, 226
P.2d 1016, 1022 (explaining that equitable remedies are dependent on the
discretion of the court).
5 Because we have resolved this issue for the reasons explained herein, we
do not reach the question whether Marketing, which was not a party to the
purchase agreements, is entitled to assert the benefit of language in the
agreements.
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Opinion of the Court
mortgage and other security interests.” This particular language would
likely be sufficient to waive Plaintiffs’ vendees’ liens – if Plaintiffs had
agreed to such language – but we need not reach that issue because the
language is not part of any contracts signed by Plaintiffs. The language was
not included in Plaintiffs’ purchase contracts with Developer, which
preceded the Corus Bank construction loan to Developer. The loan
commitment letter and related construction loan documents govern the
relationship between Developer and Corus Bank, and Plaintiffs are not
parties thereto. Marketing acknowledges that “Corus Bank had no
contractual relationship with the [Plaintiffs][.]” Accordingly, Plaintiffs’
pre-existing rights cannot be limited by the language in the subsequently
executed contractual documents between Developer and Corus Bank. See
Samsel v. Allstate Ins. Co., 199 Ariz. 480, 484, ¶ 14, 19 P.3d 621, 625 (App.
2001) (explaining that a “connection or relationship” between parties must
exist “before one may seek to enforce or defeat the contract.”), vacated on
other grounds by Samsel v. Allstate Ins. Co., 204 Ariz. 1, 59 P.3d 281 (2002);
Stratton v. Inspiration Consol. Copper Co., 140 Ariz 528, 530–31, 683 P.2d 327,
329–30 (App. 1984) (holding that a subcontractor could not enforce the
benefit of an owner’s agreement with a prime contractor “[s]ince there was
no privity of contract between” the owner and the subcontractor); Keith
Equip. Co. v. Casa Grande Cotton Finance Co., 187 Ariz. 259, 261, 928 P.2d 683,
685 (App. 1996) (holding that a finance company which agreed to finance a
farming operation was not obligated to a contract made between the
farming operation and a third party because “it was not party to the
agreement”); see also 17B C.J.S. Contracts § 836 (“Generally only a party to a
contract . . . may enforce it.”).
¶15 For these reasons, we agree with the trial court’s conclusions
that by signing the purchase contracts, Plaintiffs did not waive their rights
to assert the existence and protection of vendees’ liens and did not
subordinate their liens to the Corus Bank deed of trust.
Plaintiffs’ Vendees’ Liens Have
Priority Over the Corus Bank Deed of Trust
¶16 Marketing next argues that Plaintiffs’ vendees’ liens were
inferior to Corus Bank’s interest because Corus Bank did not have notice of
Plaintiffs’ interests in the Property when it funded the construction loan.
¶17 Generally, a vendee of realty acquires an equitable interest in
property and a vendee’s lien is created when the purchaser enters into a
binding written contract and renders payment. Tucson Fed. Sav. & Loan
Ass’n v. Sundell, 106 Ariz. 137, 141, 472 P.2d 6, 10 (1970) (“When [plaintiff]
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Opinion of the Court
paid $25 down and entered into a binding written contract to purchase the
property she acquired an interest in the land.”).6 A purchaser is entitled to
an implied vendee’s lien for “advances made on the purchase price, if
through the fault of the vendor the sale is not finally consummated.” Pima
Farms, 32 Ariz. at 343, 258 P. at 304–05 (1927); see also Sundell, 106 Ariz. at
141, 472 P.2d at 10.
¶18 Plaintiffs entered into binding contracts to purchase the
condominium units on the Property between April 2005 and September
2006. In conjunction with those contracts, Plaintiffs paid earnest money
payments and down payments. Thus, Plaintiffs’ vendees’ liens arose when
they put money down after entering binding contracts to purchase, and the
liens remain so long as there exists a right to recover the payments. See 92A
C.J.S. Vendor & Purchaser § 723 (“a vendee’s lien is not created by express
terms of contract; rather, it is a right that is recognized for purposes of doing
justice and may arise even if [the] contract limits [the] purchaser to a return
of its deposit”).
¶19 The holder of a vendee’s lien is protected against a purchaser
with notice of the facts upon which the equitable right to the lien depends.
Murphey v. Brown, 12 Ariz. 268, 277–78, 100 P. 801, 805 (1909). Thus, a
vendee’s lien is superior to subsequent rights created in a person or entity
with actual or inquiry notice. Sundell, 106 Ariz. at 141, 472 P.2d at 10. As a
condition of funding the construction loan to Developer, Corus Bank
required Developer to raise significant revenues from down payments on
the purchase contracts. From that, the trial court found that Corus Bank
was on notice that individuals would be entering into purchase contracts
and paying earnest money deposits, and thus was on notice that individuals
would be acquiring vendee’s liens. We agree. See id. at 142, 472 P.2d at 11
(holding that lender was on notice of buyer’s interest in the property
6 In Pima Farms Co. v. Elliot, 32 Ariz. 342, 347, 258 P. 304, 306 (1927), our
supreme court stated that “[t]he lien comes into existence when the vendor
defaults in the performance of his part of the contract[.]” This language
from Pima Farms in 1927 appears inconsistent with the clear holding of
Sundell in 1970 that a vendees’ lien is created when the purchaser enters into
a binding written contract and renders payment. The Pima Farms language
may be dicta, and, in any event, the issue has been clarified by the more
recent Arizona Supreme Court case of Sundell, which we follow herein. See
Bailey v. Myers, 206 Ariz. 224, 227 n.1, ¶ 14, 76 P.3d 898, 901 n.1 (App. 2003)
(explaining that, under analogous circumstances, the court of appeals will
follow the more recent supreme court opinion).
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Opinion of the Court
because “prior to granting the construction loan, and prior to disbursing
any money under that loan,” the lender had a copy of buyer’s purchase
contracts).
¶20 Because Plaintiffs’ vendees’ liens arose when they put money
down as required by their respective purchase agreements in 2005 and 2006,
prior to the recording of the Corus Bank deed of trust on September 1, 2006,
and because Corus Bank had at least inquiry notice, if not actual notice, of
those purchase agreements and payments by Plaintiffs, the vendees’ liens
have priority over Marketing’s position and may be enforced against the
Property.
Marketing is not Protected by the D’Oench, Duhme
Doctrine or 12 U.S.C. § 1823(e)
¶21 Marketing characterizes Plaintiffs’ claims as arising from
unwritten agreements that are barred in actions against the FDIC by the
D’Oench, Duhme doctrine and 12 U.S.C. § 1823(e).
¶22 In D'Oench, Duhme, the Supreme Court rejected a borrower’s
assertion that an undisclosed agreement with the bank had given the
borrower greater rights than were reflected in the loan documents. 315 U.S.
at 460–61. The Court noted that the side agreement “was designed to
deceive the creditors or the public authority or would tend to have that
effect.” Id. at 460. Under D’Oench, Duhme, borrowers are thus prevented
from asserting defenses based on undisclosed agreements in order to
“protect the FDIC from misrepresentations and secret agreements which
might result in [the FDIC] incorrectly assessing the value of bank holdings
for institutions which it insures, makes loans, or acquires in its corporate
capacity.” Bateman v. FDIC, 970 F.2d 924, 926 (1st Cir. 1992).
¶23 After the Supreme Court’s decision in D’Oench, Duhme,
Congress enacted 12 U.S.C. § 1823(e), which essentially codifies the
Supreme Court’s holding:
No agreement which tends to diminish or defeat the interest of the
Corporation [FDIC] in any asset acquired by it under this section . .
. either as security for a loan or by purchase . . . shall be valid
against the Corporation unless such agreement:
(A) is in writing,
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Opinion of the Court
(B) was executed by the [bank] and any person claiming an
adverse interest thereunder, including the obligor,
contemporaneously with the acquisition of the asset by
the [bank],
(C) was approved by the board of directors of the [bank] or
its loan committee, which approval shall be reflected in
the minutes of said board or committee, and
(D) has been, continuously, from the time of its execution, an
official record of the [bank].
¶24 The D’Oench, Duhme doctrine and 12 U.S.C. § 1823(e) are
generally applied to protect the FDIC from a borrower’s claims or defenses
based on side agreements between the borrower and the failed bank. See,
e.g., FDIC v. Kasal, 913 F.2d 487, 492 (8th Cir. 1990) (“We hold that § 1823(e)
and the common law doctrine of D’Oench, Duhme bar appellants from
raising any aspect of their secret unwritten side agreements with the Bank
as a defense to the FDIC’s claims on the notes.”); see also FDIC v. Adams, 187
Ariz. 585, 590, 931 P.2d 1095, 1100 (App. 1996) (“The purpose of the doctrine
is to enable the FDIC to enforce agreements between failed banks and their
borrowers in strict accordance with the terms of the loan documents.”).
¶25 When Corus Bank was closed in 2009, the FDIC was
appointed as receiver. The FDIC assigned the Corus Bank deed of trust to
Corus Construction. The trustee sold the Property at public auction in May
2010 to Corus Construction, which directed that title be vested in
Marketing. Marketing is thus entitled to the same protections the FDIC
would receive if unrecorded side agreements existed between Corus Bank
and Developer. See Bell & Murphy & Assocs., Inc. v. Interfirst Bank Gateway,
N.A., 894 F.2d 750, 754 (5th Cir. 1990).
¶26 We acknowledge the force of D’Oench, Duhme and § 1823(e)
to protect the FDIC from claims arising from agreements that are “not
documented in the institution’s records,” but we conclude that neither the
doctrine nor the statute bars Plaintiffs’ claims in this case because the
vendees’ liens at issue are not side agreements between Developer (the
debtor) and Corus Bank. Although Marketing argues that the doctrine has
been so expanded that it should apply to bar any claim brought against an
interest of the FDIC or its assignees that is based on an unrecorded side
agreement, for D’Oench, Duhme to apply, there must be a side agreement at
issue between a debtor and the bank. See Adams, 187 Ariz. at 589–90, 931
P.2d at 1099-1100. That is not the case here. Plaintiffs’ lien rights arise out
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Opinion of the Court
of equity, not out of any side agreement with Developer or with Corus
Bank. The D’Oench, Duhme doctrine and 12 U.S.C. § 1823(e) therefore do
not apply.
Marketing Waived its Federal Holder in Due Course Argument
¶27 Marketing further argues that the FDIC’s interest is superior
to Plaintiffs’ unrecorded vendees’ liens because the FDIC did not have
notice of Plaintiffs’ liens. Marketing asserts the FDIC is granted a federal
holder-in-due-course (“FHDC”) status with regard to notes it acquires
through purchase and assumption transactions. See FDIC v. Wood, 758 F.2d
156, 161 (6th Cir. 1985) (“[W]hen the FDIC in its corporate capacity, as part
of a purchase and assumption transaction, acquires a note in good faith, for
value, and without actual knowledge of any defense against the note, it
takes the note free of all defenses that would not prevail against a holder in
due course.”); see also Bell & Murphy & Associates, Inc., 894 F.2d at 754; Gunter
v. Hutcheson, 674 F.2d 862, 867 (11th Cir. 1982), cert. denied, 459 U.S. 826,
overruled on other grounds, Langley v. FDIC, 484 U.S. 86 (1987).
¶28 We need not decide this substantive issue, however, because
Marketing did not assert before the trial court that it is protected as an
FHDC. Issues and arguments raised for the first time on appeal are
untimely and usually deemed waived. See Pro Finish USA, Ltd. v. Johnson,
204 Ariz. 257, 267, ¶ 41, 63 P.3d 288, 298 (App. 2003). This court has stated
that “[o]n appeal from summary judgment, the appellant may not advance
new theories or raise new issues to secure a reversal.” Lansford v. Harris,
174 Ariz. 413, 419, 850 P.2d 126, 132 (App. 1992).
¶29 Marketing nevertheless contends that it should not be barred
from bringing this claim on appeal. Marketing argues that by relying on a
case at the trial court that contained a discussion of FHDC, it has in essence
raised the FHDC issue. Although Marketing did rely on a case that
mentions the FHDC doctrine, it cited the case to support a different
contention.
¶30 Marketing further asserts that even if it has not expressly
raised an issue, we should exercise our discretion to address the new
argument on appeal. See City of Sierra Vista v. Sierra Vista Wards Sys. Voting
Project, 229 Ariz. 519, 524 n.8, P.3d 297, 302 n.8 (App. 2012) (court may
exercise discretion to consider issues not sufficiently raised when the issues
involve purely questions of law). We decline to exercise our discretion in
favor of addressing Marketing’s substantive argument here.
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Opinion of the Court
¶31 Resolution of the FHDC issue may have required fact-finding
by the trial court, and no persuasive reason has been provided for
Marketing not raising the argument in the trial court. Merely raising a
related issue using a case that mentions FHDC protection is not tantamount
to actually raising the argument. Because Marketing did not assert the
FHDC argument in the trial court, we decline to review the argument on
appeal.
Attorney Fees
¶32 Both sides have requested an award of attorney fees under
Arizona Revised Statutes (“A.R.S.”) section 12-341.01(A), which provides
that “[i]n any contested action arising out of a contract, express or implied,
the court may award the successful party reasonable attorney fees[.]”
Because the parties agree that § 12-341.01(A) is applicable, we will apply
the statute in favor of Plaintiffs, the successful parties on appeal. Marketing
is not the successful party on appeal and is not entitled to fees under § 12-
341.01(A). Marketing also requested attorney fees and costs pursuant to
A.R.S. § 33-420, addressing the filing of liens that are forged, groundless,
false, or otherwise invalid. That statute is not applicable.
¶33 Accordingly, in our discretion under A.R.S. § 12-341.01(A),
we will award Plaintiffs an amount of reasonable attorney fees upon their
compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶34 We affirm the trial court’s judgment establishing the validity
and priority of Plaintiffs’ vendees’ liens over Marketing’s subsequently
created interest in the property.
:gsh
12