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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MENA BISHARA, et al., Plaintiffs/Appellants, 

v.

US BANK NATIONAL ASSOCIATION, et al., Defendants/Appellees. 

No. 1 CA-CV 16-0176 

Appeal from the Superior Court in Maricopa County

No. CV2015-054088 

The Honorable Susan M. Brnovich, Judge

AFFIRMED

COUNSEL

Mena Bishara and Aida Aziz, Scottsdale 

Plaintiffs/Appellants 

Chernoff Law Firm, PLLC, Scottsdale

By Mark D. Chernoff, Patricia A. Premeau 

Counsel for Defendant/Appellee US Bank

Tiffany & Bosco, P.A.

By Leonard J. McDonald

Counsel for Defendants/Appellees

FILED 8-15-2017
BISHARA et al. v. US BANK et al.

Decision of the Court

2 

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in 

which Vice Chief Judge Peter B. Swann and Judge Patricia A. Orozco1

joined.

H O W E, Judge:

¶1 Mena Bishara and Aida Aziz (collectively, “Appellants”) 

challenge the trial court’s dismissal of their complaint on claim preclusion 

grounds. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Bishara entered into a loan agreement with US Bank National 

Association (“US Bank”) in April 2008 to finance the purchase of a home.

US Bank recorded a deed of trust on the property that same month. Bishara 

defaulted on the loan, however, and in May 2010, US Bank noticed a 

trustee’s sale. 

¶3 Bishara sued US Bank in May 2011 seeking to halt the trustee’s 

sale (the “First Lawsuit”). Bishara later amended his complaint to allege 

that his signature on the recorded deed of trust had been forged. He sought

an order staying any sale of the property, requiring the return of all past 

payments on the loan, and ordering payment for significant emotional and 

punitive damages.

¶4 US Bank removed the case to federal district court and 

subsequently moved to dismiss Bishara’s amended complaint on several 

grounds. Bishara opposed the motion and separately moved for leave to 

amend his complaint again. His proposed second amended complaint

asserted a quiet title claim, sought damages for the fraudulent recording of 

the allegedly forged deed of trust pursuant to A.R.S. § 33–420(A), and 

alleged intentional infliction of emotional distress.

¶5 The federal district court dismissed Bishara’s amended 

complaint with prejudice, finding that his claims arose from the alleged 

1 Pursuant to Article VI, Section 3 of the Arizona Constitution, the 

Arizona Supreme Court has designated the Honorable Patricia A. Orozco, 

Retired Judge of the Court of Appeals, to sit in this matter.
BISHARA et al. v. US BANK et al.

Decision of the Court

3 

forgery but that he had “failed to connect th[e] alleged forgery to the relief 

he is seeking.” The district court also denied Bishara’s motion for leave to 

amend, finding that Bishara’s quiet title and A.R.S. § 33–420 claims were 

time-barred and that he had failed to allege any extreme or outrageous 

conduct necessary to support his intentional infliction of emotional distress 

claim. 

¶6 Bishara appealed the district court’s ruling to the Ninth 

Circuit Court of Appeals. See Bishara v. U.S. Bank Home Mortg., 608 Fed. 

Appx. 484 (9th Cir. 2015) (mem. decision). The Ninth Circuit affirmed, 

finding that Bishara’s proposed second amended complaint was futile 

because he had “admit[ted] entering into a loan agreement . . . for the same 

real property where he currently resides and, thus, cannot possibly state a 

claim for fraudulent recording.” Id. 

¶7 Shortly after the Ninth Circuit’s 2015 ruling, Bishara 

quitclaimed the security property to his mother Aziz, who then filed for 

bankruptcy. Bishara and Aziz then filed a new lawsuit against US Bank and

the trustees involved in the trustee’s sale. Their complaint largely mirrored 

Bishara’s proposed second amended complaint from the First Lawsuit; they

again sought quiet title to the property, damages under A.R.S. § 33–420(A) 

for the alleged fraudulent recording of a false deed, and damages for 

intentional infliction of emotional distress. 

¶8 US Bank moved to dismiss the complaint pursuant to Arizona 

Rule of Civil Procedure (“Rule”) 12(b)(6) for failing to state a claim for 

which relief could be granted, alleging that the claims were barred by both 

claim preclusion and issue preclusion. In its motion, US Bank also requested 

its attorneys’ fees pursuant to A.R.S. § 12–341.01 and A.R.S. § 12–349. The 

trustee defendants separately moved to dismiss the complaint under Rule

12(b)(5) for insufficient service of process. Upon receiving the trustee’s 

motion, the trial court allowed Appellants an opportunity to amend their 

service affidavit or hire a registered process server to re-serve the trustee 

defendants. The trial court then dismissed the claims against US Bank, 

finding that they were “all handled in federal court.” In its order, the trial 

court granted US Bank’s request for attorneys’ fees.

¶9 US Bank subsequently filed its statement of costs and 

requisite affidavit and itemized billing statements. The court then entered 

final judgment “as to all defendants, all claims, in its entirety.” In doing so, 

the trial court also awarded US Bank $9,287.30 in attorneys’ fees and $273 

in costs. Bishara and Aziz timely appealed.
BISHARA et al. v. US BANK et al.

Decision of the Court

4 

DISCUSSION

¶10 Appellants argue that the trial court improperly dismissed 

their complaint. We review the dismissal of a complaint under Rule 12(b)(6) 

de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 7 (2012). We accept all 

well-pleaded facts as true and give Appellants the benefit of all inferences 

arising therefrom. Botma v. Huser, 202 Ariz. 14, 15 ¶ 2 (App. 2002). We will 

affirm the dismissal only if Appellants would not have been entitled to 

relief under any facts susceptible of proof in their complaint. Coleman, 230 

Ariz. at 356 ¶ 8. Because Appellants are not entitled to relief under any facts 

they could prove, the trial court did not err by dismissing Appellants’ 

complaint. 

1. Claim Preclusion

¶11 Appellants argue first that the trial court erred by dismissing 

their complaint for claim preclusion because that doctrine does not apply.

We review the trial court’s application of claim preclusion de novo. 

A. Miner Contracting, Inc. v. Toho-Tolani Cty. Imp. Dist., 233 Ariz. 249, 253

¶ 11 (App. 2013). The court did not erroneously apply claim preclusion

here.

¶12 Under claim preclusion, a judgment on the merits in a prior 

suit involving the same parties or their privies bars a second suit based on 

the same causes of action. Stearns v. Ariz. Dep’t of Revenue, 231 Ariz. 172, 177

¶ 25 (App. 2012). Claim preclusion bars litigation not only of those facts that 

were actually litigated but also those facts which might have been raised in 

the earlier suit. Id. To establish a claim preclusion defense, a moving party

must show (1) an identity of claims in the suit in which a judgment was 

entered and the current litigation, (2) a final judgment on the merits in the 

previous litigation, and (3) identity or privity between parties in the two 

suits. In re Gen. Adjudication of All Rights to Use Water in Gila River Sys. & 

Source, 212 Ariz. 64, 69–70 ¶ 14 (2006). 

1a. Identity of Claims

¶13 Appellants first challenge the identity of claims element. 

Arizona follows the “same evidence” test; identity of claims is present if no 

additional evidence would be needed to prevail in the second action than 

in the first. Pettit v. Pettit, 218 Ariz. 529, 532 ¶ 8 (App. 2008); Phx. Newspapers, 

Inc. v. Dep’t of Corr., 188 Ariz. 237, 241–42 (App. 1997). 

¶14 Appellants do not show that their current claims would have 

required any additional or different evidence than that needed to prove the 
BISHARA et al. v. US BANK et al.

Decision of the Court

5 

claims that Bishara alleged in his proposed second amended complaint. 

Indeed, the two complaints state the same causes of action supported by

essentially the same factual allegations. Thus, sufficient identity of claims 

exists for claim preclusion purposes.

1b. Final Judgment on the Merits

¶15 We look to federal law to determine the preclusive effect of a 

federal district court judgment. Howell v. Hodap, 221 Ariz. 543, 546 ¶ 17 

(App. 2009). Generally, a ruling denying leave to amend triggers claim 

preclusion under federal law. See, e.g., Mpoyo v. Litton Electro-Optical Sys., 

430 F.3d 985, 989 (9th Cir. 2005); EFCO Corp. v. U.W. Marx, Inc., 124 F.3d 

394, 399–400 (2d Cir. 1997). But Appellants contend that the Ninth Circuit

stripped the district court’s judgment of any preclusive effect because, they 

argue, the court found that “the cloud of title is perpetual, [and the] US 

Bank foreclosure request is moot.” Appellants have misread the Ninth 

Circuit’s ruling. The circuit court affirmed the district court’s ruling 

denying leave to amend and specifically found that Bishara’s A.R.S. 

§ 33–420 and quiet title claims were futile. Bishara, 608 Fed. Appx. at 484.

The second claim preclusion element therefore is satisfied. See Prof’l Mgmt.

Assocs., Inc. v. KPMG LLP, 345 F.3d 1030, 1032 (8th Cir. 2003) (stating that

under federal law “denial of leave to amend constitutes res judicata on the

merits of the claims which were the subject of the proposed amended

pleading . . . even when denial of leave to amend is based on reasons other

than the merits, such as timeliness”).

1c. Identity of Parties

¶16 Appellants also challenge the identity of parties element by 

pointing out that Aziz was not a party in the earlier case. But claim 

preclusion applies to those who acquire an interest in the subject matter 

affected by the earlier judgment through or under one of the parties after 

judgment is entered. Hall v. Lalli, 191 Ariz. 104, 106 (App. 1997). Bishara 

quitclaimed the property to Aziz in 2015, after the district court entered 

judgment.2 The parties are therefore the same. Because all three claim 

2 Appellants contend for the first time on appeal that Bishara deeded 

some portion of the property to Aziz in 2009. They offer no evidence to 

support this contention. Moreover, issues raised for the first time on appeal 

are waived. Barkhurst v. Kingsmen of Route 66, Inc., 234 Ariz. 470, 476 ¶ 22 

(App. 2014). 
BISHARA et al. v. US BANK et al.

Decision of the Court

6 

preclusion elements are met, the trial court did not err by dismissing 

Appellants’ complaint. 

2. Claims Against Trustee Defendants

¶17 Appellants also challenge the dismissal of their claims against 

the trustee defendants on the merits. The trial court did not dismiss these 

claims on their merits but rather for insufficient service of process, having 

first given Appellants an opportunity to file an amended service affidavit 

or retain a registered process server to re-serve the trustee defendants. 

¶18 The record lacks any evidence to suggest Appellants did 

either of these things. We therefore do not reach Appellants’ contentions. 

See Postal Instant Press, Inc. v. Corral Rests., Inc., 187 Ariz. 487, 488 (1997)

(stating that incomplete service deprives the trial court of jurisdiction).

3. Attorneys’ Fees in the Trial Court

¶19 Appellants appeal finally the trial court’s granting of US 

Bank’s attorneys’ fees. We review the reasonableness of an award of 

attorneys’ fees for an abuse of discretion. ABC Supply, Inc. v. Edwards, 191 

Ariz. 48, 52 (App. 1996). We will not disturb the trial court’s award if any 

reasonable basis supports the amount of attorneys’ fees awarded. Id. The 

court here did not err. 

¶20 Appellants argue that the trial court erred by granting fees 

generally under A.R.S. § 12–1103(B). However, US Bank requested, and the 

trial court granted, US Bank’s attorneys’ fees pursuant to A.R.S. § 12–341.01, 

not A.R.S. § 12–1103(B). Appellants’ substantive arguments under the latter 

are therefore irrelevant. Appellants also argue generally that the court erred

by granting US Bank over $9,000 in attorneys’ fees because that amount 

represents an “unrealistic” number of hours “to write and file [its] motion 

to dismiss.” But a party does not meet its burden of demonstrating

unreasonableness of attorneys’ fees by stating simply “that the hours 

claimed are excessive and the rates submitted too high.” Nolan v. Starlight 

Pines Homeowners Ass’n, 216 Ariz. 482, 491 ¶ 38 (App. 2007). Thus, no error 

occurred.

4. Attorneys’ Fees and Costs on Appeal

¶21 US Bank requests attorneys’ fees and costs incurred on appeal

under the note and deed of trust, A.R.S. §§ 12–341, –341.01(A), and –349. 

Generally, we enforce a contractual attorneys’ fees provision according to 

its terms. Berry v. 352 E. Virginia, L.L.C., 228 Ariz. 9, 13 ¶ 17 (App. 2011). We 
BISHARA et al. v. US BANK et al.

Decision of the Court

7 

retain discretion, however, to limit the award to a reasonable amount. 

McDowell Mountain Ranch Cmty. Ass’n v. Simons, 216 Ariz. 266, 270 ¶ 16 

(App. 2007). We therefore will award US Bank reasonable attorneys’ fees 

and costs incurred in this appeal upon compliance with Arizona Rule of 

Civil Appellate Procedure 21. US Bank also requests that this Court order 

sanctions pursuant to Arizona Rule of Civil Appellate Procedure 25. We 

decline to award sanctions under either that rule or A.R.S. § 12–349. 

CONCLUSION

¶22 For the foregoing reasons, we affirm.