IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

LAMB EXCAVATION, INC., an Arizona

corporation,

Plaintiff/Appellee,

 v. 

CHASE MANHATTAN MORTGAGE

CORPORATION,

Defendant/Appellant,

and

INTEGRA WINDOW & DOOR, INC.;

ATKO BUILDING MATERIALS, INC.; and

U.S. COMPONENTS L.L.C.,

Defendants/Cross-Claimants/Appellees.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

2 CA-CV 2002-0139

DEPARTMENT B

O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. C-20010928

Honorable Jane L. Eikleberry, Judge

REVERSED AND REMANDED
2

Durazzo & Eckle, P.C.

 By Patric E. Durazzo

Snell & Wilmer, L.L.P.

 By Marc G. Simon and Wade R. Swanson

 Slutes, Sakrison & Hill, P.C.

 By James M. Sakrison 

Norman R. Freeman II, P.C.

Anderson, Brody, Levinson, Weiser & Horwitz, P.A.

 By Jeffrey H. Levinson & Janessa E. Koenig

Tucson

Attorneys for Plaintiff/Appellee

Tucson

Attorneys for Defendant/Appellant

Chase Manhattan Mortgage

Corporation

Tucson

Attorneys for Defendant/CrossClaimant/Appellee 

Integra Window & Door, Inc.

Tucson

Attorney for Defendant/CrossClaimant/Appellee 

U.S. Components L.L.C. 

Phoenix

Attorneys for Defendant/CrossClaimant/Appellee

ATKO Building Materials, Inc.

E S P I N O S A, Acting Presiding Judge.

¶1 In this mechanics’ lien foreclosure action, appellant Chase Manhattan Mortgage

Corporation (Chase) appeals from the trial court’s grant of summary judgment in favor of

appellee Lamb Excavation, Inc. (Lamb). Chase contends the court erred in declining to apply

the doctrine of equitable subrogation in its favor, which would have placed Chase in the

primary lien position occupied by the construction lender after Chase provided permanent
1The construction loan and the permanent financing differed in their terms: the CFB

loan, by its temporary nature, had a one-year term, while the Chase loan was for thirty years;

the CFB interest rate was 8.25% and the Chase financing, an adjustable rate note, carried an

11.275% interest rate; and the CFB loan was for the amount of $240,000, while the Chase note

listed $248,000 as the principal balance.

3

financing for the subject project and satisfied the construction loan. We agree and reverse the

grant of summary judgment in favor of Lamb and remand the case to the trial court for further

proceedings consistent with this decision.

Facts and Procedural Background

¶2 The essential facts are undisputed. In February 2000 Edwin and Catherine

Torrejon obtained a construction loan from Commercial Federal Bank (CFB) to build a house

on a parcel of property they had purchased. The loan was secured by a deed of trust. The

Torrejons employed several subcontractors during construction, including Lamb, ATKO

Building Materials (ATKO), U.S. Components, and Integra Window & Door (Integra). Those

four subcontractors subsequently served on CFB and the Torrejons preliminary twenty-day

notices of mechanics’ and materialmen’s liens pursuant to A.R.S. § 33-992.01. In

November 2000, the Torrejons obtained permanent financing from Chase to satisfy the CFB

construction loan, executing a promissory note and deed of trust to the property, which Chase

recorded on December 15, 2000.1 Shortly thereafter, Lamb, ATKO, Integra, and U.S.

Components (collectively referred to as mechanics’ lienholders), who had not been fully paid

for their work, all recorded mechanics’ liens against the property.
2

In addition to the lien-foreclosure claim, Lamb’s complaint and the subsequent

amended complaint contained three additional counts for breach of contract, unjust enrichment

and equitable lien, and quantum meruit.

4

¶3 In February 2001, Lamb filed an action to foreclose its lien, naming as

defendants the Torrejons, CFB, Chase, and the three other mechanics’ lienholders.2

 The three

answered and filed cross-claims asserting lien priority positions identical to Lamb’s. In

November 2001 Chase moved for summary judgment, arguing its lien should be subrogated

to the extent of the CFB lien. Lamb filed a countermotion for summary judgment, which the

other three mechanics’ lienholders joined, contending that Chase was not entitled to equitable

subrogation because the CFB lien had been extinguished and thus there was no agreement or

intent to subrogate. Lamb also argued that subrogation “would work a substantial injustice” on

the lienholders. The trial court denied Chase’s motion and granted the lienholders’ motion

instead. 

¶4 In granting Lamb’s motion for summary judgment, the trial court rejected

Chase’s argument that it was entitled to equitable subrogation, finding that Chase was “a

sophisticated lender” and had “constructive notice of the potential for the filing of a

mechanic’s liens [sic] against the property when it made the loan.” Citing Mosher v. Conway,

45 Ariz. 463, 46 P.2d 110 (1935), the trial court also found that the decision to apply equitable

subrogation depends on the particular circumstances of each case and that applying the

doctrine here would produce an “inequitable result” and be contrary to public policy. In
5

addition, the court reasoned that subrogation did not apply because the terms of the CFB and

Chase loans were “not identical.” This appeal followed.

Standard of Review

¶5 A trial court properly grants summary judgment if the moving party is entitled

to judgment as a matter of law. Ariz. R. Civ. P. 56(c)(1), 16 A.R.S., Pt. 2; Orme School v.

Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990). Because determining whether Chase was

entitled to equitable subrogation involves a question of law, we review de novo the issue of

whether that relief is appropriate. See Johnson v. Hispanic Broadcasters of Tucson, Inc., 196

Ariz. 597, 2 P.3d 687 (App. 2000) (entry of summary judgment reviewed de novo); see also

Andrews v. Blake, 205 Ariz. 236, 69 P.3d 7 (2003) (availability and propriety of equitable

relief reviewed de novo). 

Equitable Subrogation

¶6 The doctrine of equitable subrogation permits the substitution of one lienholder

into the lien-priority position of a prior lienholder. Subrogation is “an equitable remedy

designed to avoid a person’s receiving an unearned windfall at the expense of another.”

Restatement (Third) of Property (Mortgages) (hereinafter “Restatement”) § 7.6 cmt. a. In

general, previously recorded liens have priority over subsequent mechanics’ liens recorded

after labor has begun or materials have been furnished. The mechanics’ liens then have

priority over later-recorded encumbrances. See A.R.S. § 33-992; E. Sav. Bank v. Pappas, 829

A.2d 953 (D.C. 2003); see generally Restatement § 7.6. But application of the doctrine of

equitable subrogation allows a subsequent lender who supplies funds used to pay off a primary
6

and superior encumbrance to be substituted into the priority position of the primary lienholder,

despite the recording of an intervening lien. See Mosher; Peterman-Donnelly Eng’rs &

Contractors Corp. v. First Nat’l Bank of Ariz., 2 Ariz. App. 321, 408 P.2d 841 (1965); see

also Mort v. United States, 86 F.3d 890 (9th Cir. 1996). 

¶7 On appeal, Chase contends it was entitled to equitable subrogation based on the

two-part test enunciated in Peterman-Donnelly, which considers (1) whether an express or

implied agreement to subrogate existed and (2) whether any prejudice to the lien claimants

resulted. Conversely, Lamb urges us to uphold the trial court’s ruling, asserting the trial court,

in denying subrogation, properly considered factors such as Chase’s actual or constructive

notice of the intervening liens, its status as a sophisticated lender, and public policy issues.

Thus, the parties disagree on the appropriate legal standard for assessing whether equitable

subrogation should apply. In order to clarify the Arizona standard, we first review the

approaches taken by other jurisdictions.

Majority Approach

¶8 The four primary elements of equitable subrogation are as follows: (1) the party

claiming subrogation has paid the debt; (2) the party was not a volunteer; (3) the party was not

primarily liable for the debt; and (4) no injustice will be done to the other party by allowing

subrogation. See Kuznik v. Bees Ferry Assocs., 538 S.E.2d 15 (S.C. Ct. App. 2000); accord

St. Paul Fire & Marine Ins. Co. v. Murray Guard, Inc., 37 S.W.3d 180 (Ark. 2001); County

v. Jensen, 83 P.3d 405 (Utah Ct. App. 2003); cf. Mosher. A majority of jurisdictions apply

the doctrine of equitable subrogation when the subsequent mortgagee had no actual knowledge
3

Indeed, an “increasingtrend” isto allow subrogation notwithstanding actual knowledge

of intervening liens, if the parties had intended that subrogation occur. Osterman, 714 N.E.2d

at 739.

7

of an existing lien, reasoning that the subsequent mortgagee, having paid the preexisting

obligation, reasonably had expected to step into the shoes of the previous creditor. Houston

v. Bank of Am. Fed. Sav. Bank, 78 P.3d 71 (Nev. 2003) (characterizing, though declining to

adopt, majority approach viewing equitable subrogation as defeated only by actual, but not

constructive, knowledge of existing lien; adopting instead more liberal approach); Osterman

v. Baber, 714 N.E.2d 735 (Ind. Ct. App. 1999) (same); see, e.g., Han v. United States, 944

F.2d 526 (9th Cir. 1991); Smith v. State Sav. & Loan Ass’n, 223 Cal. Rptr. 298 (Cal. Ct. App.

1985).3 

Minority Approach

¶9 A minority of states, however, consider, in addition to the primary elements

considered by the majority, such things as whether the subsequent mortgagee had constructive

notice of intervening liens, the lender’s sophistication, and the lender’s negligence in failing

to discover an existing encumbrance. See, e.g., Bankers Trust Co. v. United States, 25 P.3d

877 (Kan. Ct. App. 2001) (denying equitable subrogation to negligent sophisticated lender);

Carl H. Peterson Co. v. Zero Estates, 261 N.W.2d 346 (Minn. 1977) (equitable subrogation

denied because of sophistication of party seeking subrogation); see also Landmark Bank v.

Ciaravino, 752 S.W.2d 923 (Mo. Ct. App. 1988) (equitable subrogation allowed only in

extreme cases bordering on fraud); Richards v. Sec. Pac. Nat’l Bank, 849 P.2d 606 (Utah Ct.
8

App. 1993) (constructive notice of mechanics’ lien defeats claim of equitable subrogation);

Kim v. Lee, 31 P.3d 665 (Wash. 2001) (constructive notice bars equitable subrogation).

Restatement Approach

¶10 The Restatement sets forth an even more liberal rule concerning equitable

subrogation than that of the majority of jurisdictions. Section 7.6 of the Restatement states:

(a) One who fully performs an obligation of another, secured by

a mortgage, becomes by subrogation the owner of the obligation

and the mortgage to the extent necessary to prevent unjust

enrichment. Even though the performance would otherwise

discharge the obligation and the mortgage, they are preserved and

the mortgage retains its priority in the hands of the subrogee.

(b) [S]ubrogation is appropriate to prevent unjust enrichment if

the person seeking subrogation performs the obligation:

. . . . 

(4) upon a request . . . to do so, if the person performing was

promised repayment and reasonably expected to receive a

security interest in the real estate with the priority of the

mortgage being discharged, and if subrogation will not materially

prejudice the holders of intervening interests in the real estate.

Thus, under the Restatement, a subsequent mortgagee’s negligence in failing to discover an

existing lien does not preclude application of the doctrine so long as the intervening

lienholders are not prejudiced. And, notice is not a consideration. Rather, the question is

whether a subsequent mortgagee reasonably expected a security interest with the same priority

as that of the mortgage being discharged. See Restatement § 7.6(b)(4) and cmt. e; see also

Houston. 
9

¶11 The rationale behind the Restatement’s approach is that the intervening

lienholder suffers no prejudice because its lien maintains the same position it occupied before

the subsequent lender satisfied the pre-existing obligation. Restatement § 7.6 cmt. a. (“The

holders of intervening interests can hardly complain about this result, for they are no worse

off than before the senior obligation was discharged. If there were no subrogation, such junior

interests would be promoted in priority, giving them an unwarranted and unjust windfall.”); see

also Pappas (focus of Restatement is on whether intervening lienholders prejudiced). 

Arizona Approach

¶12 As this court stated in Herberman v. Bergstrom, 168 Ariz. 587, 590, 816 P.2d

244, 247 (App. 1991), “[f]or equitable subrogation to apply, there must be an agreement, either

express or implied, that the subsequent lender will be substituted for the holder of the prior

encumbrance.” See also Peterman-Donnelly. In addition, the subsequent mortgagee must

not be a volunteer. Id. Because subrogation is a creature of equity, “its application may be

defeated by intervening rights which would be prejudiced by the substitution.” Id. at 326, 408

P.2d at 846. As an equitable construct, “[i]t rests upon the principle that substantial justice

should be attained, regardless of form.” Mosher, 45 Ariz. at 468, 46 P.2d at 115.

¶13 Arizona’s approach to equitable subrogation appears consistent with the

Restatement: the doctrine will apply when there is an express or implied agreement to

subrogate, which is concordant with a party’s having a reasonable expectation of receiving a

security interest, and when an intervening lien claimant suffers no prejudice. See PetermanDonnelly; see also Wetherill v. Basham, 197 Ariz. 198, ¶ 13, 3 P.3d 1118, 1123 (App. 2000),
10

quoting Ramirez v. Health Partners of So. Ariz., 193 Ariz. 325, ¶ 26, 972 P.2d 658, 665

(App. 1998) (Arizona courts usually follow Restatement absent controlling authority, provided

its application “is logical, furthers the interests of justice, is consistent with Arizona law and

policy, and has been generally acknowledged elsewhere.”). 

¶14 Although expressly declining to set forth a general rule for the future

applicability of equitable subrogation, our supreme court in Mosher nonetheless stated, “when

one, being himself a creditor, pays another creditor, whose claim is preferable to his, it is held

that the person so paying is subrogated to the rights of the other creditor.” 45 Ariz. at 469, 46

P.2d at 116. The court determined that whether the doctrine applies “depends upon the

particular facts and circumstances of each case as it arises,” id. at 468, 46 P.2d at 115, but

equitable subrogation will not be applied when the subsequent creditor is a mere volunteer. Id.

¶15 Peterman-Donnelly, this court’s most recent interpretation of Mosher, includes

the following observation:

Although the Mosher case indicates that an ad hoc approach is

required, the following statement . . . approximates a generality:

“[A] third person, having agreed to advance money to

discharge an encumbrance on property of another, where he [or

she] is not a volunteer, and where payment is made under an

agreement that he [or she] will be substituted in place of the

holder of the encumbrance, is entitled to subrogation, whether

such agreement is express or whether such agreement is

implied.” 

Peterman-Donnelly, 2 Ariz. App. at 325, 408 P.2d at 845 (citing what is now 83 C.J.S.

Subrogation § 50, p. 583-4). Although the parties dispute the import of this language, which
4

Interestingly, the trial court in its decision cited Mosher for the proposition that the

applicability of equitable subrogation depends upon the particular facts and circumstances of

each individual case, but made no mention of Peterman-Donnelly.

5We note that, immediately after refusing to promulgate a general rule, the Mosher

court remarked that “the modern tendency is to extend [equitable subrogation’s] use rather than

to restrict it” and that “it now has a very liberal application, its principle being modified to

meet the circumstances of cases as they arise.” 45 Ariz. at 468, 46 P.2d at 115. 

11

Lamb characterizes as mere dicta, we find it persuasive when viewed in combination with the

remainder of the court’s analysis. Moreover, we do not find the two cases incompatible.4

 In

considering whether to apply subrogation, the court in Peterman-Donnelly focused primarily

on the parties’ express or implied understanding and intent to subrogate and on whether any

intervening rights would be prejudiced by subrogation. Neither Mosher nor PetermanDonnelly requires that subrogation be denied where a subsequent creditor has actual or

constructive notice of intervening liens; nor does either contain any language suggesting

subrogation is inappropriate when a sophisticated lender is involved. Furthermore, Mosher’s

dictate, were we to apply it, that courts must consider the facts and circumstances of each

individual case,5 seems merely to state the obvious, that, in evaluating an equitable subrogation

claim, a court must necessarily consider the factual and procedural framework in which the

case developed. Lamb’s protestations notwithstanding, nothing in Peterman-Donnelly

contradicts the general language in Mosher. 

¶16 Having identified the appropriate parameters for applying equitable subrogation,

we now examine whether the trial court failed to properly apply it here. We find that it did.

First, as Chase maintains and Lamb does not dispute, there existed at least an implied
12

agreement to subrogate, reflected in the form of the loan documents and escrow closing

instructions. For example, the closing instructions provide that “[the] title insurance policy

. . . must show [Chase’s] mortgage to be a valid first lien against the property.” In addition, one

of the conditions in the closing instructions specifically stated that the loan was to “payoff the

following: comm fed-$231100.” It is clear and undisputed that Chase was not acting as a

volunteer in paying off the CFB loan, and nothing in the record suggests its motivation was

anything other than commercial.

¶17 Second, we agree with Chase that the trial court erred in finding that the

mechanics’ lienholders would be prejudiced by subrogation. In so finding, the court simply

stated, without elaboration, that equitable subrogation would “defeat the rights of other

creditors who would be prejudiced by its application” and that applying the doctrine would be

“inequitable.”

¶18 We fail to comprehend the nature of the perceived prejudice or inequity, as it

appears the lienholders would remain in the same position they occupied before subrogation

if that doctrine were applied. To the contrary, without subrogation, the lienholders would

receive a windfall if elevated to a higher priority status. See Restatement § 7.6 cmt. a. The

record establishes that when the lienholders agreed to perform work on the property they

understood that CFB, not they, had a superior position. They therefore accepted the risk that

the Torrejons would not pay them and would not pay the first lienholder, thereby defeating

their liens. See E. Boston Sav. Bank v. Ogan, 701 N.E.2d 331 (Mass. 1998). Furthermore,

although the lienholders emphasize Chase’s alleged negligence, they offer no concrete
13

example of how subrogation would prejudice their interests other than characterizing

themselves as “truly innocent intervening lienholders” who, if subrogation is denied, “will be

paid for the work they have already performed and nothing else.” Lamb’s contentions rest

solely on theoretical policy arguments and fail to demonstrate how applying the criteria stated

in Mosher and Peterman-Donnelly supports the trial court’s grant of summary judgment in

its favor.

¶19 In denying equitable subrogation, the trial court cited the difference in terms

between the CFB and Chase loans as an “important” factor in its decision, suggesting that, from

the court’s perspective, the lien claimants would have been prejudiced by the implementation

of the Chase loan terms, which differed from the terms of the original CFB financing.

However, it is well settled in Arizona that, when equitable subrogation is applied, its

application is limited to the extent of the prior lien only. See Mosher; Restatement § 7.6 cmt.

e. Peterman-Donnelly does not suggest otherwise. The Mosher court recognized the limits

of subrogation, stating, “the doctrine . . . cannot give any greater rights to the subrogee than are

held by the person to whose rights he is subrogated.” According to the Restatement, “[t]he

payor is subrogated only to the extent that the funds disbursed are actually applied toward

payment of the prior lien. There is no right of subrogation with respect to any excess funds.”

Restatement § 7.6 cmt. e. The Restatement also recognizes that when a lender, such as Chase,

demands a higher interest rate than that under the prior loan, the intervening lienholders may

be jeopardized. In this situation, “[s]ubrogation should be granted only to the extent of the debt

balance that would have existed if the interest rate had been unchanged.” Id. While
14

emphasizing that the terms of the two loans differed, Lamb has failed to explain precisely how

it is prejudiced by that difference. Indeed, Chase readily concedes that “its lien can only be

subrogated to the extent of the [CFB lien].” Thus, if Chase is only subrogated to the extent of

the original loan, the lien claimants can hardly claim they will be prejudiced. We see no reason

to deny equitable subrogation on this basis. 

¶20 Finally, we briefly address the trial court’s statement that “Chase had

constructive notice of the potential for the filing of a mechanic’s lien[] against the property

when it made the loan.” (Emphasis added.) Significantly, when Chase recorded its deed, no

mechanics’ liens had yet been recorded. Thus, in addition to imposing an improper

constructive-notice requirement, the trial court also impliedly charged Chase with notice of

mechanics’ liens not then in existence, based purely on the future possibility of such liens. Cf.

Richards (commencement of visible work imparts constructive notice of lien). Regardless,

the court’s finding is irrelevant, given our determination that constructive notice is not an

element of equitable subrogation under Arizona law. This conclusion is also consistent with

those of the majority of jurisdictions that have addressed the issue. See, e.g., Han; Smith;

Osterman; Dodge City of Spartanburg, Inc. v. Jones, 454 S.E.2d 918 (S.C. Ct. App. 1995).

Disposition

¶21 We reverse the grant ofsummary judgment in favor of Lamb and remand the case

to the trial court for further proceedings consistent with this opinion. Both parties have

requested attorney fees on appeal, and Chase also has requested attorney fees incurred at the

trial level. In view of Chase’s failure to provide any substantive basis for an award of fees, we
15

decline to grant its requests. See In re Wilcox Revocable Trust, 192 Ariz. 337, 965 P.2d 71

(App. 1998).

¶22 Reversed and remanded for further proceedings. 

 

PHILIP G. ESPINOSA, Acting Presiding Judge

CONCURRING:

 

PETER J. ECKERSTROM, Judge

JOSEPH W. HOWARD, Judge