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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GEORGE H. YARD and SHARON ANN YARD, 

as Trustees of The Yard Family Revocable Trust 

dated December 15, 2000,

Plaintiffs/Counter-Defendants/Appellees,

v.

SILKIE PERKINS,

Defendant/Counter-Claimant/Appellant.

No. 1 CA-CV 18-0367 

Appeal from the Superior Court in Yavapai County

No. V1300CV201580202

The Honorable Jeffrey G. Paupore, Judge Pro Tempore

AFFIRMED

COUNSEL

Hunter, Humphrey & Yavitz, PLC, Phoenix

By Isabel M. Humphrey, Randall S. Yavitz

Counsel for Plaintiffs/Counter-Defendants/Appellees

Silkie Perkins, Clarkdale

Defendant/Counter-Claimant/Appellant

FILED 6-6-2019
YARD, et al. v. PERKINS

Decision of the Court

2

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Kent E. Cattani joined.

J O H N S E N, Judge:

¶1 In an earlier appeal in this quiet-title case, we vacated a 

attorney's fee award in favor of George and Sharon Yard, as trustees, and 

remanded to the superior court to determine how much in fees, if any, 

should be awarded to the prevailing party, Silkie Perkins. Perkins now 

appeals the superior court's order on remand declining to award her any 

attorney's fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Perkins and the Yards own adjacent properties in Yavapai 

County. A fence divides the properties, but it does not follow the property 

line and roughly three-quarters of an acre of Perkins's property lies on the 

Yards' side of the fence. For many years, the Yards could get to their 

property only by using a dirt road that crossed Perkins's property.

¶3 In May 2015, the Yards sent Perkins a letter asserting claims 

for adverse possession and prescriptive easement. The Yards enclosed $15 

and three quit claim deeds and demanded that Perkins sign and return the 

deeds. Perkins refused, and, in June 2015, the Yards filed a quiet-title 

complaint in superior court that requested attorney's fees under Arizona 

Revised Statutes ("A.R.S.") section 12-1103(B) (2019).1 Perkins answered the 

complaint, and then, like the Yards, sent them $15 and three quit claim 

deeds disclaiming the Yards' interest in the disputed properties. After the

Yards refused to return Perkins's deeds, Perkins filed a counterclaim in 

November 2015 to quiet title in her favor. She also requested attorney's fees 

under § 12-1103(B).

¶4 By May 2016, the Yards had built an access road on their own 

property so that they no longer needed to cross Perkins's property to get to 

theirs. They also recorded quit claim deeds to the disputed property and 

 

1 Absent material revision after the relevant date, we cite the current 

version of a statute or rule.
YARD, et al. v. PERKINS

Decision of the Court

3

moved to dismiss their complaint. In response, Perkins sought summary 

judgment on her counterclaim and asked the court to grant her attorney's 

fees. Ultimately, the superior court dismissed the Yards' complaint with 

prejudice and ruled Perkins's counterclaim moot. The court then awarded 

attorney's fees to the Yards under § 12-1103(B).

¶5 After Perkins appealed, this court affirmed the dismissal of 

her counterclaim but vacated the attorney's fees award, holding that only 

Perkins had prevailed and was eligible for attorney's fees under § 12-

1103(B). We then remanded to the superior court solely for it to decide what 

amount of attorney's fees, if any, to award Perkins under § 12-1103(B).

¶6 On remand, the court declined to award any fees to Perkins.

Perkins timely appealed. We have jurisdiction pursuant to Article 6, 

Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2019) 

and -2101(A)(1) (2019).

DISCUSSION

¶7 A party prevailing in a quiet-title action may recover 

attorney's fees if, at least 20 days before bringing the action, he or she

tendered five dollars with a request that the other party execute a quit claim 

deed, and the other party did not comply. A.R.S. § 12-1103(B); see Cook v. 

Grebe, 245 Ariz. 367, 369, ¶ 5 (App. 2018). But a fees award under the statute 

is not mandatory; even when the requirements of the statute are satisfied, 

the court may decline to award fees. Scottsdale Mem'l Health Sys., Inc. v. 

Clark, 164 Ariz. 211, 215 (App. 1990). In deciding whether to award fees 

under § 12-1103(B), the superior court "may consider the same factors that 

are considered in determining whether to award attorney's fees pursuant 

to A.R.S. section 12-341.01." Id. See Fulton Homes Corp. v. BBP Concrete, 214 

Ariz. 566, 570, ¶ 15 (App. 2007) ("no single factor requires or prohibits an 

award of fees"); State Farm Mut. Auto. Ins. Co. v. Arrington, 192 Ariz. 255, 

261, ¶ 27 (App. 1998) (superior court has "broad discretion" in determining 

whether to award attorney's fees). We review a ruling denying attorney's 

fees for an abuse of that discretion, and "if there is any reasonable basis for 

the [court's ruling], its judgment will not be disturbed." BBP Concrete, 214 

Ariz. at 569, ¶ 9; see Cook, 245 Ariz. at 370, ¶ 11.

¶8 In denying Perkins's request for attorney's fees, the superior 

court made the following findings:

1. Perkins is the prevailing party in this case.

2. The Yards did not waive the issue of defective deeds.

3. Both parties held meritorious legal positions.
YARD, et al. v. PERKINS

Decision of the Court

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4. Both parties attempted to avoid litigation by first

complying with A.R.S. § 12-1103(B).

5. Both parties concede that when a party complies with the 

statutory provisions, it nevertheless remains within the 

trial court's discretion to determine whether to award 

attorney's fees to the prevailing party.

6. The claims of both parties were not fully and finally 

litigated because the Yards elected to build a new road 

thereby quieting title in favor of Perkins in a unique but 

costly manner.2

¶9 In addition, the court characterized the litigation as "intense" 

and noted that "attempts to settle were unsuccessful." Ultimately, the court 

found, Perkins prevailed "due to the Yards' unilateral decision to dismiss 

their complaint" after they elected "to build [a] new road on their land."

¶10 Perkins argues the superior court abused its discretion 

because the Yards initiated the suit, which Perkins contends was without 

merit. Regardless of which party commenced the litigation, in deciding 

whether to grant fees, the superior court may consider, inter alia, whether 

the parties could have agreed to settle the case without involvement (or 

additional involvement) of the court. Clark, 164 Ariz. at 215-16 (citing Assoc. 

Indem. Corp. v. Warner, 143 Ariz. 567, 570 (1985)). As we noted in our prior 

decision, the Yards' dismissal of their complaint, along with their execution 

of a quit claim deed in Perkins's favor, provided Perkins with the relief she 

sought. In light of the "intense" manner in which the case was litigated and 

the prior unsuccessful attempts to settle the case, we cannot say the court 

abused its discretion when it declined Perkins's request for attorney's fees, 

considering the Yards' unilateral efforts to resolve the dispute, which in the 

end provided Perkins with her requested relief. Cook, 245 Ariz. at 370, ¶ 11.

¶11 Perkins appears to contend we should revisit our prior 

decision affirming the superior court's dismissal of her counterclaim and 

also argues we should grant her all of her attorney's fees pursuant to A.R.S. 

§ 12-349 (2019). We will not consider these arguments. Our prior decision 

disposing of the mootness issue is final. See Sepo v. Case, 25 Ariz. App. 176, 

180-81 (1975). Moreover, we see nothing in the record meriting a fees award 

pursuant to § 12-349, even assuming Perkins had properly raised that issue 

in the superior court. See City of Tempe v. Fleming, 168 Ariz. 454, 456 (App. 

 

2 The superior court's second finding on remand resolved a dispute 

relating to the timeliness of the Yards' challenge to the deeds Perkins

offered under § 12-1103(B).
YARD, et al. v. PERKINS

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1991) ("[A]rguments not made at the trial court cannot be asserted on 

appeal.").

CONCLUSION

¶12 For the reasons stated above, we affirm the superior court's 

order denying Perkins's request for attorney's fees.