NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

TRAILHEAD RESTRICTION, LLC, Plaintiff/Appellant,

v.

CITY OF PHOENIX, et al., Defendants/Appellees.

No. 1 CA-CV 22-0735 

Appeal from the Superior Court in Maricopa County

No. CV2020-009035

The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

McGill Law Firm, Scottsdale

By Gregory G. McGill

Counsel for Plaintiff/Appellant

Burch & Cracchiolo, P.A., Phoenix

By Casey S. Blais, Andrew Abraham, Daryl Manhart

Counsel for Defendant/Appellee City of Phoenix

Fidelity National Law Group, Phoenix

By Nathaniel B. Rose

Counsel for Defendant/Appellee Fidelity National Title Insurance Company

FILED 10-3-2023
TRAILHEAD v. PHOENIX, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Vice 

Chief Judge Randall M. Howe and Judge Jennifer M. Perkins joined.

K I L E Y, Judge:

¶1 Trailhead Restriction, LLC (“Trailhead”) appeals the grant of 

summary judgment on its claims against the City of Phoenix (the “City”) 

and Fidelity National Title Insurance Company f/k/a Lawyers Title of 

Arizona, Inc. (“Lawyers Title”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 This dispute arises out of a decades-old land swap transaction

involving property in the Laveen area of the foothills of South Mountain in 

Phoenix. Viewed in the requisite light most favorable to Trailhead as the 

party against whom summary judgment was entered, see Kim v. Wong, 253 

Ariz. 247, 248, ¶ 9 (App. 2022), the evidence shows that Trailhead’s 

predecessor-in-interest Barbara Nerison (“Nerison”), along with her nowdeceased husband James Nerison, entered into a land swap transaction

with the City in 1977. As part of the transaction, the Nerisons sold 6.13 acres 

of hillside land (the “hillside property”), located in what the parties refer to 

as “South Mountain Preserve Lot 13,” to the City for $17,100 while the City 

simultaneously sold 4.4 acres of nearby land to the Nerisons for $22,600.

According to Trailhead, this exchange allowed the Nerisons to acquire 

developable land in the South Mountain foothills to be subdivided into 

“buildable lots” for resale while the City acquired “pristine hillside 

property” in its “natural state” to add to the South Mountain Preserve.

¶3 The terms of the parties’ agreement also required the 

Nerisons to purchase, from third parties John and Ila Christensen, a parcel 

of land (the “Christensen property”) located between the hillside property 

and the 4.4 acres the Nerisons acquired from the City. As Nerison later 

explained, she and her husband “had to agree,” as “part of the [land swap] 

deal,” that the Christensen property would be added to the property they 

bought from the City and then subdivided for resale. According to Nerison, 

this arrangement gave the buyers of the subdivided lots “additional square 

footage” to help meet “setback and permitting requirements” while 

generating additional property tax revenue for the City.
TRAILHEAD v. PHOENIX, et al.

Decision of the Court

3

¶4 The deeds to the properties that the Nerisons and the City 

exchanged, signed by the Nerisons and a representative of the City, contain 

identical language to the effect that the conveyance of the deeded property 

was subject to “[r]eservations in patents and all easements, rights of way, 

covenants, conditions, and restrictions as may appear of record.”

¶5 The deed to the Christensen property, signed by the Nerisons 

and the Christensens, similarly provides that the conveyance of the deeded 

property was subject to “[c]urrent taxes and other assessments, reservations 

in patents and all easements, rights of way, encumbrances, liens, covenants, 

conditions, restrictions, obligations and liabilities as may appear of record.”

¶6 The deed to the Christensen property also contains the 

following development restriction, which does not appear in the deeds to 

the other properties involved in the land swap: 

RESTRICTIONS: That this land remain in its natural state forever. 

This restriction prohibits construction of any kind or type of

buildings, structures, walls, fences, improvements or any roads 

in or upon the property above described. 

IT IS UNDERSTOOD that the above restrictions cannot be 

removed without a written agreement from all the property 

owners that adjoin the restricted area, stating they have no 

objection to its removal. 

(Emphasis added.)

¶7 The deeds for all properties involved in the land swap, 

including the Christensen property, were recorded on the same day, May

17, 1977.

¶8 The Nerisons later subdivided the 4.4 acres they acquired 

from the City into lots zoned for single-family residences, which they then 

sold to Gordon Dysthe and other buyers.

¶9 In 2019, the City began constructing trails for hiking and 

horseback riding on part of the hillside property it purchased from the 

Nerisons in 1977. Concerned that the presence of hikers and riders on the 

hillside property would lead to “increased litter,” “noise,” and “reduc[ed] 

privacy and . . . property values,” Nerison, Dysthe, and the owners of the 

other subdivided lots formed Trailhead to “facilitate their joint interests in 

maintaining the natural surroundings in the South Mountain Preserve 

area.” Trailhead requested that the City cease construction of the trails, 
TRAILHEAD v. PHOENIX, et al.

Decision of the Court

4

asserting that the development prohibition in the deed to the Christensen 

property also applies to the hillside property that was conveyed to the City 

as part of the same land swap. Responding that the hillside property is 

subject to no development restrictions, the City continued constructing the 

trails.

¶10 Trailhead then sued the City and Lawyers Title for breach of 

contract and breach of the implied-in-law covenant of good faith and fair 

dealing, asserting that the deed and escrow instructions for the 1977 land 

swap transaction constitute an enforceable contract that prohibits the 

construction of trails on the hillside property. Trailhead also asserted a 

claim for promissory estoppel, arguing that its members purchased the 

subdivided lots in reasonable reliance on the defendants’ assurances to the 

Nerisons that the hillside property would remain undeveloped. In the 

alternative, Trailhead asserted tort claims against the City, including 

fraudulent concealment and negligent misrepresentation, and against 

Lawyers Title for breach of fiduciary duty, alleging that the absence of a 

development restriction in the deed to the hillside property is attributable 

to the defendants’ negligent or otherwise wrongful conduct.

¶11 The City and Lawyers Title each moved for summary 

judgment, arguing that the hillside property is subject to no development 

restrictions and that, in any event, various defenses, including the statute 

of limitations and the statute of frauds, apply to bar Trailhead’s claims.

¶12 Trailhead responded that the parties to the 1977 land swap 

transaction intended that the development prohibition set forth in the deed 

to the Christensen property also apply to the hillside property. Trailhead 

sought to establish the intent of the parties to the land swap through 

extrinsic evidence in the form of an affidavit (the “Nerison affidavit”) that 

Nerison signed in 2019 and a declaration (the “Dysthe declaration”) that 

Dysthe signed in 2022.

¶13 The superior court granted summary judgment on all of 

Trailhead’s claims. After denying Trailhead’s subsequent motion for a new 

trial and granting the defendants’ applications for attorney fees and costs, 

the court entered the final judgment from which Trailhead appeals. We 

have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶14 Trailhead argues that the court erroneously granted summary 

judgment to the City and Lawyers Title. Summary judgment is appropriate 

when “there is no genuine dispute as to any material fact and the moving 
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Decision of the Court

5

party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). The 

moving party is entitled to summary judgment “if the facts produced in 

support of the [non-movant’s] claim or defense have so little probative 

value . . . that reasonable people could not agree with the conclusion 

advanced by the [non-movant].” Kim, 253 Ariz. at 248, ¶ 9 (cleaned up). We 

review the grant of summary judgment de novo, id., and we will affirm the 

judgment if it “is correct for any reason, even if that reason was not

considered by the court,” Melendez v. Hallmark Ins. Co., 232 Ariz. 327, 330, 

¶ 9 (App. 2013) (cleaned up).

I. The Contract for the Sale of the Hillside Property Is Not 

Ambiguous, and the Court Properly Interpreted It as a Matter of 

Law.

¶15 Trailhead argues that issues of fact surrounding the 1977 land 

swap transaction barred the court from construing the parties’ agreement 

as a matter of law. The court erred, Trailhead maintains, in granting 

summary judgment instead of allowing a jury to determine whether “the 

restrictive language” in the deed to the Christensen property was also 

“intended for the deed to the hillside property but [was] mistakenly 

omitted.”

¶16 In construing a deed, the court “must give effect to the 

contracting parties’ intent.” Paulden Indus. LLC v. Big Chino Materials LLC, 

249 Ariz. 442, 444, ¶ 9 (App. 2020). “If the deed is unambiguous,” the court 

must discern the parties’ intent “from the four corners of the document.” 

Id. (citation omitted). Trailhead argues that “logic and common sense” 

compel the conclusion that the Nerisons would not have agreed to restrict 

development of the Christensen property without insisting on a reciprocal 

restriction barring development of the adjacent hillside property. But the 

deed to the hillside property contains no nondevelopment provision, and 

we “may not add something” to the deed “that is not there.” Id. at 446, ¶ 23. 

¶17 Noting that a contract “regarding real estate may be broader 

than the deed,” Trailhead asserts that the “concurrent escrow documents” 

form part of the contract for the sale of the hillside property. According to 

Trailhead, the escrow documents are “not a model of clarity,” and the 

“ambiguities” therein create factual issues regarding the intent of the 

contracting parties that should have been left to a jury to determine.

¶18 The escrow instructions for Nerison’s sale of the hillside 

property to the City and for the City’s sale of 4.4 acres to the Nerisons 

provide that the two closings were to be concurrent. The escrow 
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Decision of the Court

6

instructions for Nerison’s sale of the hillside property also provide in part, 

“This Escrow is also subject to Deed restrictions (per attached suplemental 

[sic] instructions.).” The attached supplemental instructions, in turn, 

provide: 

It has been agreed by and between the parties hereto that the 

above numbered escrow instructions be amended as follows: 

The closing of this escrow is subject to the Seller placing Deed 

restrictions on the property on or before this escrow closes as 

described in Exhibit “C” attached and such restrictions being that 

land so described in Exhibit “C” shall remain in its natural state 

forever, prohibiting construction of any kind or type of 

buildings, structures, walks, fences, improvement or any 

roads in or upon said described property. The restrictions 

may not be removed without the consent of all adjoining 

property owners. 

(Emphasis added.) Exhibit C attached to the escrow instructions is the legal 

description to the Christensen property.

¶19 Read as a whole, the escrow instructions make clear that 

(1) the City would not sell the 4.4-acre parcel to the Nerisons unless they

concurrently sold the hillside property to the City; and (2) neither sale 

would close unless the Nerisons simultaneously acquired, and placed a 

development restriction on, the Christensen property. In other words, to 

complete their intended purchase of the 4.4 acres they sought to develop

for resale, the Nerisons were required to agree to prohibit development of 

the Christensen property. As the City correctly notes, the escrow 

instructions establish that the Christensen property was to be an 

undevelopable “buffer between the land the Nerisons wanted to develop 

and the land the City protects in the Mountain Preserve.”

¶20 Nothing in the escrow instructions indicates, however, that 

the development prohibition set forth in the deed to the Christensen 

property also applied to any of the other property involved in the land 

swap. The escrow instructions do not support Trailhead’s position that the 

parties intended the hillside property to be subject to a development 

restriction that appears only in the deed to the Christensen property. 

¶21 Trailhead cites Burkons v. Ticor Title Ins. Co., 168 Ariz. 345 

(1991), for the proposition that contracts should be construed using a 

“common sense approach” that takes into account “all surrounding 

circumstances” rather than “only the text of the agreement.” In Burkons, the 
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Decision of the Court

7

Arizona Supreme Court held that the agreement between parties to a real 

property purchase transaction could not be construed as a matter of law in 

view of conflicting provisions among various documents the parties signed 

to complete the transaction. Id. at 349-50. Among other things, the Burkons

court noted, the escrow instructions provided that the seller’s security 

interest “was to be a first lien” while a separate document subordinated the 

seller’s security interest to that of the lender. Id. at 348, 350. In light of these 

conflicting provisions, the Court held, “the documents cannot as a matter 

of law be interpreted as an unconditional agreement that [the lender’s] lien 

is to take first position over [the seller’s] purchase money lien.” Id. at 351. 

¶22 Unlike the documents that formed the agreement in Burkons, 

the relevant documents here contain no conflicting provisions that preclude 

interpreting the parties’ agreement as a matter of law. The absence of a 

development restriction in the deed to the hillside property, coupled with 

the absence of any indication in the relevant escrow instructions that the 

parties intended to include such a restriction in the deed, warranted

summary judgment on Trailhead’s contract claims. Paulden Indus., 249 Ariz. 

at 444, ¶ 9 (noting that an “unambiguous” deed is construed “from the four 

corners of the document”); see also Shattuck v. Precision-Toyota, Inc., 115 Ariz. 

586, 588 (1977) (“Where the intent of the parties is expressed in clear and 

unambiguous language, there is no need or room for construction or 

interpretation and a court may not resort thereto.”) (citation omitted).

II. Trailhead’s Proffered Extrinsic Evidence Cannot Be Admitted To

Vary the Meaning of the Unambiguous Deed to the Hillside 

Property.

¶23 Trailhead argues that the court erred in refusing to consider 

the Nerison affidavit and the Dysthe declaration when construing the 

parties’ agreement, insisting that those sworn statements support its 

position that the prohibition on development “was not intended solely for 

the [Christensen property]” but “was also intended for the hillside parcel.”

¶24 “[T]he parol evidence rule bars admission of extrinsic 

evidence” to interpret a written contract if such evidence “varies or 

contradicts the terms of [the] written contract.” Aztar Corp. v. U.S. Fire Ins. 

Co., 223 Ariz. 463, 478, ¶ 52 (App. 2010). The court may consider parol 

evidence when interpreting a written agreement only if “the court finds the 

writing is ‘reasonably susceptible’ to the interpretation suggested by the 

proponent of the extrinsic evidence.” Long v. City of Glendale, 208 Ariz. 319, 

328, ¶ 28 (App. 2004). The proponent of parol evidence cannot, in other 

words, offer extrinsic evidence under the guise of “interpreting” a written 
TRAILHEAD v. PHOENIX, et al.

Decision of the Court

8

agreement “if the resulting ‘interpretation’ unavoidably changes the 

meaning of the writing.” Id. at 329, ¶ 34.

¶25 Courts have long applied the parol evidence rule to bar the 

use of extrinsic evidence to show that real property was conveyed subject 

to use or ownership restrictions that do not appear in the conveyance 

instrument. See IB Prop. Holdings, LLC v. Rancho Del Mar Apartments Ltd. 

P’ship, 228 Ariz. 61, 67-68, ¶¶ 20-21 (App. 2011) (rejecting affidavits offered 

to show that easement granted for “pedestrian and passenger” vehicles was 

intended for emergency vehicles only because “the contract language [was] 

not reasonably susceptible to the interpretation” set forth in the affidavits)

(cleaned up); Valento v. Valento, 225 Ariz. 477, 484, ¶¶ 21-22 (App. 2010) 

(holding that, where the deed’s language was “unambiguous in that [the 

grantors] conveyed the property interest to [their son] and [his wife] 

jointly,” the parol evidence rule prohibited testimony that the grantors 

intended the property to be gifted to their son alone).

¶26 Because, as the superior court correctly found, the deed to the 

hillside property is unambiguous, accepting Trailhead’s proffered extrinsic 

evidence would “unavoidably change[]” the deed’s meaning by adding a 

use restriction. See Long, 208 Ariz. at 329, ¶ 34. The parol evidence rule 

therefore precluded the court from considering the proffered extrinsic 

evidence when construing the deed.

¶27 Asserting that “[m]isrepresentation and mistake can provide 

a basis for rescission,” Trailhead argues that “in a rescission case, . . . the 

parol evidence rule” does not “bar evidence establishing misrepresentation 

or mistake.” This contention, even if true, is irrelevant because Trailhead 

never asserted a rescission claim.

III. In Any Event, Trailhead’s Proffered Extrinsic Evidence Is 

Insufficient To Defeat Summary Judgment.

¶28 Even if the parol evidence rule did not preclude the court 

from considering Trailhead’s proffered extrinsic evidence, that evidence 

would not help Trailhead. An affidavit offered to support or defeat 

summary judgment must “set out facts that would be admissible in 

evidence.” Ariz. R. Civ. P. 56(c)(5). Statements lacking in foundation are not 

admissible, nor are speculative or conclusory assertions about another

party’s state of mind. Florez v. Sargeant, 185 Ariz. 521, 527 (1996) (holding 

psychologist’s affidavit insufficient to withstand summary judgment on 

statute of limitations grounds because, when affidavit stated, in conclusory 

terms, that plaintiff was of “unsound mind” without identifying “facts to 
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Decision of the Court

9

support [that] opinion,” it raised no triable issue of fact about whether 

plaintiff’s cause of action was tolled due to plaintiff’s unsound mind).

A. The Nerison Affidavit

¶29 In her affidavit, Nerison asserts that she and her husband 

“were assured by the [C]ity that Lot 13 would forever remain undisturbed 

in any way.” Because this vague statement does not indicate who gave this 

purported assurance on behalf of the City or when the assurance was given, 

the statement is inadmissible for lack of foundation and thus insufficient to 

defeat summary judgment. See Holcomb v. Ariz. Dep’t of Real Est., 247 Ariz. 

439, 446, ¶ 24 (App. 2019) (“Hearsay is unreliable,” and therefore 

inadmissible in administrative proceeding, if “the speaker is not identified, 

when no foundation for the speaker’s knowledge is given, or when the 

place, date and time, and identity of others present is unknown.”) (citation 

omitted); see also Lindenbaum v. Realgy, LLC, 606 F. Supp. 3d 732, 742 (N.D. 

Ohio 2022) (holding plaintiff’s affidavit insufficient to defeat summary 

judgment because “plaintiff laid no foundation to show that the 

anonymous” speaker, who made the actionable statement, “was authorized 

to speak on defendant’s behalf”).

¶30 The Nerison affidavit also states that the City’s “interest” in 

the land swap transaction “was to keep the higher area from any 

development or disturbance,” and “[i]t was completely understood that Lot 

13 would remain as a natural and undisturbed part of the South Mountain 

Park Preserve.” Nerison’s conclusory assertions about the City’s interest in, 

and understanding of, the land swap transaction, unaccompanied by any 

specific facts, do not constitute admissible evidence, and so cannot defeat 

summary judgment. See Florez, 185 Ariz. at 527; see also People v. Sanchez, 375 

P.3d 812, 850 (Cal. 2016) (“A lay witness generally may not give an opinion 

about another person’s state of mind, but may testify about objective 

behavior.”).

¶31 Moreover, the law is clear that a single municipal official—

even a member of the municipal governing body—is not competent to 

testify about the municipality’s intent in engaging in a particular 

transaction. Long, 208 Ariz. at 331, ¶ 42 n.8 (observing that city council 

member would not “be allowed to testify as to the intent of the City in its 

dealings with [plaintiff]”). If an individual City official could not properly 

testify about the City’s understanding and intent in entering the land swap 

transaction, then Nerison is certainly not competent to do so. For these 

reasons, the assertions in the Nerison affidavit are inadmissible and thus
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Decision of the Court

10

insufficient to create a triable fact issue regarding the intent of the parties to 

the 1977 land swap transaction. 

B. The Dysthe Declaration

¶32 The Dysthe declaration states that Dysthe purchased his lot 

from the Nerisons in 1978 in reliance on the Nerisons’ assurance that the 

nearby hillside property “was restricted from development” and would 

remain “pristine desert land.” Dysthe’s recitation of statements Nerison

made in 1978, even if accurate, do not establish the City’s intent in entering 

the land swap transaction the year before. 

¶33 The Dysthe declaration also states that in 1988, Dysthe 

requested, and the City approved, a variance “to forego [sic] street 

construction re 3-lots” that were sold by the Nerisons “in order to avoid 

construction that would scar the mountain.” Although it is not entirely 

clear, the Dysthe declaration appears to indicate that in 1988, the City 

agreed, at Dysthe’s behest, to forgo street construction in the area of the 

subdivided lots so as not to disturb the desert’s natural condition. This

assertion, too, is of no help to Trailhead; the City’s willingness to forgo 

street construction in the vicinity of the subdivided lot in 1988 sheds no 

light on the City’s intent in entering the land swap transaction in 1977. 

¶34 Even if, therefore, the parol evidence rule did not bar the 

admission of Trailhead’s proffered extrinsic evidence, that evidence is 

insufficient to withstand summary judgment. 

IV. Trailhead’s Tort Claim Against Lawyers Title Is Time-Barred. 

¶35 Trailhead further argues that the court erred in granting 

summary judgment on its breach of fiduciary duty claim against Lawyers 

Title because, Trailhead contends, Lawyers Title should not have 

proceeded with closing without first alerting the parties to the absence of a 

nondevelopment provision in the deed to the hillside property. Trailhead

maintains that, upon realizing that the relevant deeds provided that the 

Christensen property “was restricted to its natural state” but “the hillside 

property” was not, Lawyers Title should have requested “clarification” 

from all of the property owners “before proceeding with the concurrent 

escrows.” Its failure to “stop the transaction and ask for clarification,” 

Trailhead asserts, breached the duty that Lawyers Title, as escrow agent, 

owed to the Nerisons.

¶36 Irrespective of the merits (which we do not address) of 

Trailhead’s breach of fiduciary claim against Lawyers Title, the claim
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accrued in 1977 when the deed was signed and recorded. See Ader v. Estate 

of Felger, 240 Ariz. 32, 39, ¶ 19 (App. 2016) (“A cause of action accrues, and 

the statute of limitations commences, when one party is able to sue 

another.”) (cleaned up). As a result, the two-year limitations period has 

long since run. See A.R.S. § 12-542; Coulter v. Grant Thornton, LLP, 241 Ariz. 

440, 444, ¶ 9 (App. 2017) (“A two-year limitations period applies to claims 

for breach of fiduciary duty.”).

¶37 Trailhead contends that the accrual of its claims was tolled

until the City began constructing the trails in 2019, asserting that until then 

Nerison “had no reason to believe” that the hillside property deed “omitted 

the restrictive language.” But Nerison and her husband personally signed 

the deed to the hillside property, and so had notice of its contents. Mut. 

Benefit Health & Accident Ass’n v. Ferrell, 42 Ariz. 477, 489 (1933) (“A person 

cannot sign a paper in ignorance of its contents and thereafter excuse such 

ignorance by the mere plea that he was busy or that he is habitually 

neglectful in such circumstances.”), overruled in part on other grounds by 

Occidental Life Ins. Co. v. Bocock, 77 Ariz. 51 (1954). Because Nerison knew or 

should have known that the deed lacked a development restriction when 

she signed it in 1977, any breach of fiduciary duty claim against Lawyers 

Title arising out of a purported defect in the deed accrued at that time and 

ran two years later. See Vaughn-Leavitt Ltd. P’ship v. U.S. Bank Nat’l Ass’n, 1 

CA-CV 22-0040, 2023 WL 2377711, at *4, ¶ 18 (Ariz. App. Mar. 23, 2023) 

(mem. decision) (finding that a “lienholder’s cause of action for the 

wrongful release of its lien . . . [was] not delayed until the property [was] 

sold and the lienholder left empty-handed” but rather accrued once the 

unauthorized release was recorded); see also Cosgrove v. Cade, 468 S.W.3d 32, 

34-35, 37, 40 (Tex. 2015) (holding that property sellers’ claims against buyer, 

which were brought five years after sale and which arose out of 

purportedly erroneous omission from deed of sellers’ reservation of 

mineral rights, accrued on “the date of [the deed’s] execution” and so were 

barred by four-year limitations statute, noting that a “grantor who signs an 

unambiguous deed is presumed as a matter of law to have immediate 

knowledge of material omissions”).

¶38 Although the court did not grant summary judgment on 

limitations grounds, we may affirm the judgment if it “is correct for any 

reason, even if that reason was not considered by the court.” See Melendez, 

232 Ariz. at 330, ¶ 9 (cleaned up). We hold that Trailhead’s breach of 

fiduciary duty claim against Lawyers Title is time-barred, and so affirm

summary judgment on that claim. 
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Decision of the Court

12

¶39 Because Trailhead does not address, on appeal, the claims it 

asserted below for promissory estoppel, fraudulent concealment, and 

negligent misrepresentation, we deem those claims abandoned. See Torrez 

v. Knowlton, 205 Ariz. 550, 552, ¶ 3 n.1 (App. 2003) (considering claim not 

argued on appeal to be abandoned). And because we affirm summary 

judgment on Trailhead’s contract and breach of fiduciary duty claims for 

the reasons set forth above, we need not address the defendants’ alternative 

arguments in support of the court’s ruling. 

¶40 The City and Lawyers Title request an award of attorney fees 

on appeal under A.R.S. § 12-341.01 and sanctions under A.R.S. § 12-2106. 

We find no basis for an award of sanctions. In our discretion, we award the 

City and Lawyers Title reasonable attorney fees under A.R.S. § 12-341.01. 

As the prevailing parties, the City and Lawyers Title may recover their 

taxable costs on appeal as well. 

CONCLUSION

¶41 The superior court correctly interpreted the deed to the 

hillside property, which contains no development restriction, in accordance 

with its terms, and correctly rejected the extrinsic evidence Trailhead 

offered to vary the deed’s terms. Further, any claim arising out of the 

omission of restrictive language from the deed accrued when the deed was 

signed and recorded in 1977, and any such claim is therefore time-barred.

Accordingly, we affirm.