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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUAN SALVADOR ESQUER ACEDO, et al., Plaintiffs/Appellants,

v.

GEORGE B. MANNION, Defendant/Appellee.

No. 1 CA-CV 20-0017

Appeal from the Superior Court in Maricopa County

No. CV2015-013980

The Honorable Michael W. Kemp, Judge

AFFIRMED

COUNSEL

Dominguez Law Firm, P.C., Phoenix

By Antonio Dominguez, Lisa Montes

Counsel for Plaintiffs/Appellants

Fidelity National Law Group, Phoenix

By Nathaniel B. Rose, Jamey A. Thompson

Counsel for Defendant/Appellee

FILED 10-27-2020
ACEDO v. MANNION

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge James B. Morse Jr. and Judge Paul J. McMurdie joined.

C R U Z, Judge:

¶1 This case addresses the validity of a recorded lis pendens on 

a Condominium with disputed ownership. Juan Salvador Esquer Acedo

and his wife Alma Laura Valenzuela Ubiarco (collectively, “Esquer”) 

appeal from the summary judgment against them. The court found Esquer 

never had an ownership interest in the Condominium and did not have a 

valid constructive trust claim. The court subsequently denied Esquer’s

motion for a new trial. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 George B. Mannion purchased the Condominium from 

MWM 3G, PLLC (“MWM”) in September 2017 for $433,900. MWM had 

purchased the Condominium at a trustee’s sale a month earlier. The court

previously denied Esquer’s request for an injunction on the trustee’s sale 

because Esquer never personally held title to the Condominium.

¶3 Esquer used the Condominium for approximately two years, 

made improvements to it, and had vehicles there. The ownership before

the 2017 trustee’s sale is a “maze” of transfers. Title reports were done in 

December 2015 and January 2016 for property transfers. The second report 

should have captured the then-recorded lis pendens, but someone missed 

it.1 After Mannion purchased the Condominium in 2017, Esquer filed a 

third-amended complaint adding Mannion as a defendant and filed an 

additional lis pendens.

¶4 The court ruled that Esquer’s lis pendens was invalid and 

granted summary judgment on quiet title in favor of Mannion. The court 

entered a judgment pursuant to Arizona Rule of Civil Procedure (“Rule”) 

1 As to Mannion, we treat the first and second lis pendes as one 

because they have the same legal effect.
ACEDO v. MANNION

Decision of the Court

3

54(b)2 and denied Esquer’s motion for a new trial. Esquer immediately filed 

a notice of appeal. Esquer’s claims for money damages against other 

defendants are currently set for trial. We have jurisdiction pursuant to 

Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1), (5)(a).

DISCUSSION

¶5 Summary judgment is appropriate if the moving party is 

entitled to judgment as a matter of law and there is no genuine dispute as 

to any material fact. S & S Paving & Constr., Inc. v. Berkley Reg’l Ins. Co., 239 

Ariz. 512, 514, ¶ 7 (App. 2016); Ariz. R. Civ. P. 56(a). We review questions 

of law de novo but review the facts in a light most favorable to Esquer. See 

Nelson v. Phoenix Resort Corp., 181 Ariz. 188, 191 (App. 1994).

I. The Role of a Lis Pendens

¶6 The recording of a notice of a lis pendens is authorized by 

A.R.S. § 12-1191, and that recording gives notice to the world of the 

pendency of an action “affecting title to real property.” A.R.S. § 12-1191(A). 

A lis pendens provides constructive notice to a purchaser or encumbrancer 

of the property. A.R.S. § 12-1191(B). The mere filing of a lis pendens, 

however, does “not establish the validity of [the plaintiff’s] claim.” BT Cap., 

LLC v. TD Serv. Co. of Ariz., 229 Ariz. 299, 301, ¶ 14 (2012). In determining 

whether a lis pendens was recorded wrongfully, the court considers only 

“whether the ‘action is one affecting title to real property.’” Santa Fe Ridge

Homeowners’ Ass’n v. Bartschi, 219 Ariz. 391, 395, ¶ 11 (App. 2008) (citations

omitted).

II. Esquer’s Claim Is Groundless

¶7 A property right incident to title only exists if such a judgment 

would expand, restrict, or burden a new owner’s rights under the title. See

Hatch Cos. Contracting, Inc. v. Ariz. Bank, 170 Ariz. 553, 558 (App. 1991)

(equating “rights incident to title” with a “connection . . . with rights in real 

property”). A lis pendens is groundless when the claim to title “has no 

arguable basis or is not supported by any credible evidence.” Evergreen W.,

Inc. v. Boyd, 167 Ariz. 614, 621 (App. 1991). Esquer’s claim is groundless for 

two primary reasons.

2 The Rule 54(b) language is sufficient to pursue the appeal, because 

the removal of Mannion did not affect the balance of Esquer’s claims.
ACEDO v. MANNION

Decision of the Court

4

¶8 First, Esquer’s best claim to an interest in the Condominium 

is his alleged membership in an entity that was a beneficiary of a trust 

holding the title. That alleged membership would not support a claim to 

title by Esquer. See Corp. Comm’n v. Consol. Stage Co., 63 Ariz. 257, 259 (1945) 

(“By the very nature of a corporation the corporate property is vested in the 

corporation itself and not in the stockholders.”). Second, a trustee’s sale 

extinguishes a lis pendens. See A.R.S. § 33-811(C), (E) (“That conveyance

shall be absolute without right of redemption and clear of all liens, claims

or interests that have a priority subordinate to the deed of trust and shall be

subject to all liens, claims or interests that have a priority senior to the deed

of trust.”); BT Capital, 229 Ariz. at 301, ¶¶ 10-12. Here, the Condominium

was sold twice after the court refused Esquer an injunction of the trustee’s

sale. Therefore, the lis pendens was extinguished.

III. Esquer Does Not Have a Valid Constructive Trust Because a Remedy 

at Law is Available

¶9 Neither A.R.S. § 12-1191 nor A.R.S. § 33-420 allows parties to 

record a notice of lis pendens to recover a debt merely by alleging the action 

was seeking a constructive trust or equitable lien. Coventry Homes, Inc. v. 

Scottscom P’ship, 155 Ariz. 215, 218 (App. 1987). “There must be some basis 

for concluding that an equitable lien or constructive trust would be 

imposed on the real property subject to the notice of lis pendens.” Id.

¶10 A constructive trust is improper when another adequate 

remedy at law is available to the harmed party. ML Servicing Co. v. Coles, 

235 Ariz. 562, 569, ¶ 24 (App. 2014). Esquer has no valid claim for a 

constructive trust or equitable lien. However, even if the facts had 

supported his claim of title to the Condominium, Esquer had a remedy at 

law—money damages against the other defendants. And Esquer is still 

litigating issues of fraud and breach of fiduciary duty against several other 

defendants.

¶11 Because Mannion’s use of the Condominium would not be 

affected by a judgment against the other defendants, Esquer’s lis pendens

was improper and void. See Santa Fe Ridge, 219 Ariz. at 395-98, ¶¶ 11, 18, 

22-23. Additionally, a constructive trust is an equitable remedy imposed 

when a plaintiff proves by clear and convincing evidence that a wrongful 

holding of property unjustly enriched the defendant at the plaintiff’s 

expense. Burch & Cracchiolo, P.A. v. Pugliani, 144 Ariz. 281, 285-86 (1985); 

Harmon v. Harmon, 126 Ariz. 242, 244 (App. 1980). Mannion was not 

unjustly enriched as he paid $433,900 for the Condominium.
ACEDO v. MANNION

Decision of the Court

5

¶12 We viewed the evidence on Esquer’s constructive trust claim 

in the light most favorable to Esquer. Nevertheless, the record on appeal 

supports Mannion’s claim, and we find no error in the grant of summary 

judgment. See Mutschler v. City of Phoenix, 212 Ariz. 160, 162, ¶ 8 (App. 

2006); Ariz. R. Civ. P. 56(a).3 The court correctly determined that the lis 

pendens was improper and void because Esquer’s claims did not affect title 

to the Condominium.

IV. Motion for New Trial

¶13 The standard of review for denial of a motion for a new trial 

is abuse of discretion. Suciu v. Amfac Distrib. Corp., 138 Ariz. 514, 520 (App.

1983). We defer to the court’s factual findings unless clearly erroneous. See

Ahwatukee Custom Ests. Mgmt. Ass’n v. Turner, 196 Ariz. 631, 634, ¶ 5 (App.

2000). We review the interpretation and application of statutes de novo. 

Schwarz v. City of Glendale, 190 Ariz. 508, 510 (App. 1997) (citation omitted).

For the reasons stated above, denial of Esquer’s motion for a new trial was 

not an abuse of discretion.

V. Attorneys’ Fees and Costs

¶14 Mannion does not make a claim for attorneys’ fees, only for 

costs. Mannion is awarded his costs after compliance with Arizona Rule of 

Civil Appellate Procedure 21.

3 Esquer additionally argues on appeal that: (1) the court

impermissibly granted summary judgment in favor of Mannion based on 

law of the case and findings from the earlier injunction hearing and (2) 

summary judgment should be reversed because a special warranty deed 

from the Arizotex Villa Trust to Virtuoso was allegedly forged. Mannion 

argues, and Esquer disputes, whether these claims were raised for the first 

time on appeal. Regardless, neither of Esquer’s claims are meritorious. 

First, in ruling on the motion for summary judgment, the court 

independently made the same findings as the prior ruling denying Esquer 

an injunction. Second, his claim that the special warranty deed was forged 

is barred given there have been two separate new owners following the 

trustee sale. See A.R.S. § 33-811(C).
ACEDO v. MANNION

Decision of the Court

6

CONCLUSION

¶15 For the above-stated reasons, the summary judgment against 

Esquer is affirmed. The Condominium is Mannion’s real property, and 

there is no constructive trust on it. Mannion is awarded his costs on appeal.