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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

JUAN SALVADOR ESQUER ACEDO, et al.

, Plaintiff s /Appellant s ,

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 Plaintiff

s /Appellant s

Fidelity National Law Group

, Phoenix By Nathaniel B. Rose , Jamey A. Thompson

C ounsel for Defendant/Appellee FILED 10-27-2020ACEDO 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, 9 00

. MWM had purchased the Condominium at a trustee’s sale a month earlier

. The court previously denied Esquer’s request for a n 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 vehicle s there. The ownership before

the 2017 trustee’s sale is a “maze” of transfe rs. Title reports were done in December 2015 and January 2016 for property transfers

. The second report should have captured the then

- recorded l is p endens, but someone missed

it. 1 After Mannion purchased the Condominium in 201 7

, E squer filed a

t hird

- a mended c omplaint adding Mannion as a defendant and fil ed an

additional lis pende n s.

¶4 The court ruled that E s quer’s lis pende n s was in valid and granted summary judgment on quiet title in favor of Mannion

. T he court entered a judgment pu rsuant to Arizona Rule of Civil Procedure (“Rule”)

1 As to Mannion, we treat t he 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 mater ial fact. S & S Paving & Const r ., Inc. v. Berkley Reg ’ l Ins. Co. , 239 Ariz. 512, 514, ¶ 7 (App. 2016) ; Ariz. R. Civ. P. 56(a)

. W e 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 Pende n s

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

A.R.S

. § 12

- 1191

, and that r ecording give s 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 n ew 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 a n entity that was a beneficiary of a trust holding the title

. That alleged membership would n ot 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, t he 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 N either A.R.S. § 12

- 1191 n or A.R.S. § 33

- 420 allow s parties to record a notice of lis pendens to recover a debt merely by alleging the action

w as 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 par ty. 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, e ven 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 defend ants, Esquer’s lis pendens

w as 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 enriche d the defendant at the plaintiff’s

expense. Burch & Cracchiolo, P.A. v. Pugliani , 144 Ariz. 281, 2 85

- 86 (1985) ;
Harmon v. Harmon

, 126 Ariz. 242, 244 (Ap p. 1980)

. Mannion was not unjustly enriched as he paid $433,900 for the Condominium

.ACEDO v. MANNION

Decision of the Court

5 ¶12 We view ed the evidence on Esquer’s constructive trust claim in the light most favorable to Esquer

. Nevertheless, t he 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 l is

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

to the Condominium

.

IV. Motion for N ew T rial

¶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 Est s. 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 argue s on a ppeal that : (1) the court impermissibly granted summary judgment in favor of Mannion based on

law of the case and findings from t he earlier injunction hearing and (2) summary judgment should be reversed because a special warranty deed

from the Arizotex Vil la 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 injunc t ion. Second, his claim that the special warranty deed was forged

is barred given there have been two separate new owners following t he

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

.