Wells Fargo v. Terrenate

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

WELLS FARGO BANK NA, Plaintiff/Appellee,

v.

TERRENATE ENTERPRISES INC, et al., Defendants/Appellants.

No. 1 CA-CV 19-0081
FILED 5-26-2020

Appeal from the Superior Court in Maricopa County
No. CV 2015-006912
The Honorable Roger E. Brodman, Judge

AFFIRMED

COUNSEL

Gallagher & Kennedy PA, Phoenix
By Dale C. Schian, Kortney Otten
Counsel for Defendants/Appellants

Engelman Berger PC, Phoenix
By Wade M. Burgeson, Bradley D. Pack
Counsel for Plaintiff/Appellee

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.

C A M P B E L L, Judge:

¶1 Terrenate Enterprises, Inc. (“TEI”), Cornejo Enterprises, Inc.
(“CEI”), Santos and Eva Cornejo (“the Cornejos”), Fernando Cornejo, and
Teresa Cornejo (collectively, “the Defendants”) appeal from the superior
court’s judgment in favor of Wells Fargo Bank, N.A. (“Wells Fargo”). For
the following reasons, we affirm.

BACKGROUND

¶2 The Cornejos and their children, Fernando and Teresa
Cornejo, own and operate a restaurant. They are also the principals of both
TEI and CEI.

¶3 In July 2007, TEI obtained two loans from Wells Fargo. The
first loan (“First TEI Loan”) of $1,563,300 was secured by a deed of trust
conveying to Wells Fargo a first position lien on certain real property (“the
Pinal Property”). As additional security, CEI and the Cornejos executed
separate corporate and personal guarantees assuring repayment of the First
TEI Loan. The second loan (“Second TEI Loan”) of $1,157,000 was secured
by a second deed of trust conveying to Wells Fargo a second position lien
on the Pinal Property. In their separate guarantees, the Cornejos also
assured repayment of the Second TEI Loan.

¶4 In December 2007, CEI obtained a loan of $648,400 (“CEI
Loan”) from Wells Fargo, secured by an agreement granting Wells Fargo a
lien on and interest in all CEI inventory, equipment, and accounts. To
provide additional security, the Cornejos executed two deeds of trust
conveying to Wells Fargo liens on certain real properties (“the San Lazaro
Property” and “the Indian Trail Property”). TEI and the Cornejos also
executed separate personal guarantees assuring repayment of the CEI Loan.

¶5 In October 2009, TEI, CEI, and the Cornejos negotiated
modification agreements with Wells Fargo to extend the repayment terms
of the TEI and CEI Loans. In conjunction with the TEI modification
agreement, the Cornejos executed first and second deeds of trust conveying

2

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

to Wells Fargo first and second position liens on certain real properties (“the
Sunland Gin Property” and “the Eloy Property”). No additional deeds of
trust were executed in conjunction with the CEI modification agreement.

¶6 During the three years that followed, the Defendants entered
several other modification and addendum agreements with Wells Fargo
that both extended the terms for repayment and required additional
guarantees. Despite these extensions, the Defendants failed to make the
requisite payments when due. After Wells Fargo provided the Defendants
with written notice of default on the TEI and CEI Loans, it accelerated the
unpaid balances on each.

¶7 On May 20, 2015, Wells Fargo foreclosed its liens on the Pinal
and Sunland Gin Properties by conducting trustee’s sales. It purchased the
Pinal Property with a $1,487,260 credit bid and the Sunland Gin Property
with a $351,285.32 credit bid.

¶8 Six days later, Wells Fargo filed a complaint against the
Defendants alleging: (1) breach of contract (against TEI and CEI (loan
documents)), (2) breach of contract (against the Defendants (guarantees)),
(3) breach of the implied covenant of good faith and fair dealing (against
the Defendants), (4) declaratory relief for possession of real properties and
other collateral (against the Defendants), (5) deficiency on the Pinal
Property (against the Defendants), and (6) deficiency on the Sunland Gin
Property (against the Defendants).1 Wells Fargo asserted the Defendants
owed: (1) $366,891.85 on the First TEI Loan, (2) $792,905.45 on the Second
TEI Loan, and (3) $523,579.04 on the CEI Loan.

¶9 In their answer, the Defendants admitted that TEI, CEI, and
the Cornejos had failed to pay the amounts due and owing on the three
loans. But they raised numerous affirmative defenses, such as alleging
Wells Fargo’s claims were barred because the fair market value of the Pinal
and Sunland Gin Properties exceeded the total unpaid balances on the TEI
and CEI Loans.

1 Wells Fargo later amended its complaint to allege claims for quiet
title and reformation concerning the Eloy Property, a parking lot parcel
adjacent to the Sunland Gin Property. The parties eventually settled the
quiet title claim, however, and the Eloy Property was transferred to Wells
Fargo. As part of that settlement agreement, the Defendants received a
$165,000 credit against their outstanding debts.

3

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

¶10 More than a year into the litigation, the Defendants asked the
superior court to determine the fair market value of the Pinal and Sunland
Gin Properties at the time of the trustee’s sales. In their request, the
Defendants reasserted their contention that the fair market value of the
Pinal and Sunland Gin Properties exceeded Wells Fargo’s credit bids, and,
therefore, no deficiency remained “due and owing under the loans.”

¶11 At an evidentiary hearing on the motion, the parties
presented conflicting expert opinion testimony concerning the Pinal and
Sunland Gin Properties’ fair market values on the date of the trustee’s sales.
After considering the evidence, the superior court determined that the fair
market value of the Pinal Property was $2,351,960, and the fair market value
of the Sunland Gin Property was $523,780.16.

¶12 At that point, Wells Fargo moved for partial summary
judgment on its claims that: (1) TEI and CEI breached their obligations
under the loan documents, (2) the Defendants breached their obligations
under the guarantees, and (3) deficiency balances remained due and owing
under both the First and Second TEI Loans. In response, the Defendants
argued that genuine issues of material fact concerning the alleged
remaining deficiencies precluded summary judgment. While conceding
Wells Fargo had proved the principal balances of the TEI Loans, the
Defendants contended Wells Fargo had failed to prove the amount of
interest and late charges purportedly owed. Nonetheless, the Defendants
asserted that, even accepting Wells Fargo’s calculations, there was a
“sizeable surplus” on the TEI Loans, exclusive of attorneys’ fees and costs,
that had to “be applied to the outstanding balance” on the CEI Loan.

¶13 After the parties fully briefed the matter, the superior court
granted Wells Fargo’s motion for partial summary judgment in part,
concluding no genuine dispute of material fact existed concerning: (1) the
Defendants’ breach of the loan documents and associated guarantees, and
(2) the principal balances due. The court found issues of fact remained,
however, as to whether: (1) the Pinal and Sunland Gin Properties secured
both the TEI and CEI Loans, (2) there was a surplus on the TEI Loans, and
(3) any TEI Loan surplus should be applied to the CEI Loan.

¶14 After trial, the superior court found: (1) neither the Pinal nor
Sunland Gin Properties secured the CEI Loan; (2) Wells Fargo proved the
interest and late charges that accrued on the TEI and CEI Loans; (3) Wells
Fargo was entitled to an award for the reasonable attorneys’ fees and costs
it incurred enforcing the Defendants’ obligations under the loan
documents; (4) the total amount owed for the First and Second TEI Loans

4

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

as of the date of the trustee’s sales was $1,746,633.02 (First TEI Loan) plus
$1,126,067.13 (Second TEI Loan) plus $68,121.20 (costs and expenses
associated with enforcement, exclusive of attorneys’ fees); (5) the
Defendants were entitled to offsets for the fair market values of the Pinal
and Sunland Gin Properties and the $165,000 settlement agreement; (6) the
Defendants owed Wells Fargo $2,940,821.35 on the TEI Loans, plus
undetermined attorneys’ fees, with offsets of $3,040,740.16; (7) Wells Fargo
received $99,919 more than it was owed on the TEI Loans, exclusive of
attorneys’ fees; and (8) the Defendants owed Wells Fargo $573,803.60 on the
CEI Loan.

¶15 Both parties filed applications for an award of attorneys’ fees.
The superior court denied the Defendants’ request and awarded Wells
Fargo $15,761.50 for attorneys’ fees incurred before the trustee’s sales and
$170,000 for attorneys’ fees incurred during the litigation. After subtracting
the prelitigation attorneys’ fees from the $99,919 surplus on the TEI Loans,
the court applied the remaining $84,157.50 overage to the outstanding
balance on the CEI Loan, finding Wells Fargo was entitled to $481,671 on
the CEI Loan and $170,000 for its litigation attorneys’ fees.

¶16 Once the superior court reduced its findings and conclusions
to a final judgment, the Defendants timely appealed.

DISCUSSION

I. Fair Market Values

¶17 The Defendants challenge the superior court’s fair market
valuations of the Pinal and Sunland Gin Properties. First, they contend
Wells Fargo failed to prove the Pinal and Sunland Gin Properties’ fair
market values on the date of the trustee’s sales, as required by statute. Second,
they assert Wells Fargo’s appraisals imposed improper conditions,
artificially lowering the Pinal and Sunland Gin Properties’ valuations.

¶18 “The valuation of assets is a factual determination that must
be based on the facts and circumstances of each case.” Kelsey v. Kelsey, 186
Ariz. 49, 51 (App. 1996). Because the superior court is in the best position to
assess and resolve conflicting evidence, we accept its factual findings absent
clear error. Id.; A.N.S. Props., Inc. v. Gough Indus., Inc., 102 Ariz. 180, 182
(1967) (explaining “we will not substitute our opinion” for that of the
superior court “if there is any reasonable evidence” to support the superior
court’s findings). In determining a property’s fair market value, the court
has the discretion to rely on a testifying expert’s opinion, and if the expert
“fails to calculate the value of an asset according to standard methodology,

5

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

that failure goes to the weight of the expert’s opinion,” not its admissibility.
See Kelsey, 186 Ariz. at 51. Likewise, the court “may adopt portions of the
evidence from different witnesses,” and we “will sustain a result anywhere
between the highest and lowest estimate which may be arrived at by using
the various factors appearing in the testimony in any combination which is
reasonable.” CSA 13-101 Loop, LLC v. Loop 101, LLC, 233 Ariz. 355, 362-63,
¶ 25 (App. 2013) (internal quotations omitted).

¶19 At the valuation hearing, Wells Fargo submitted the
appraisals for both the Pinal and Sunland Gin Properties as exhibits. Using
multiple approaches (sales comparison, income, as-is value), the appraisal
reports reflected that: (1) the Pinal Property’s value range on March 25, 2015
was between $2,335,000 and $2,545,000, and (2) the Sunland Gin Property’s
value range on March 25, 2015 was between $165,000 and $290,000. When
asked to explain the substantial discrepancy between the appraisal figures
and Wells Fargo’s credit bids on the Properties, Wells Fargo’s Vice-
President of Loan Adjustment, Dorothy Koster, acknowledged that Wells
Fargo had made “modifications from the actual appraisals.” She
maintained, however, that the credit bids, at their core, “stemmed from the
appraisal[s].” For example, Koster stated that in calculating the credit bids,
Wells Fargo deducted carrying costs from the appraisal values. Despite the
reduced credit bids, Koster “agreed” the Defendants should receive credit
for the Properties’ full appraisal values minus outstanding property taxes.

¶20 Wells Fargo’s appraiser for both Properties, Albert Nava,
testified regarding his methodology. Specific to the Pinal Property, Nava
explained that: (1) it is “over-improve[d]” for its market; (2) it is a mixed-
use property (restaurant, banquet facility, and office rental space), which
presents a “marketing challenge” given its location; and (3) the office-space
tenant’s lease expired in April 2015, resulting in a loss of rental income.
Nava also noted the Defendants’ financial statements from 2012 to 2014
demonstrated a loss of revenue from the Pinal Property and explained
Wells Fargo asked him to conduct a market value assessment with an
assumption that the property was vacant. For the Sunland Gin Property
appraisal, Nava likewise testified that Wells Fargo provided him with
valuation parameters as well as comparable sales. Nonetheless, he avowed
that he independently determined the Properties’ valuations. When asked
about the valuation date for the Properties, March 25, 2015—55 days before
the trustee’s sales on May 20, 2015—Nava testified that the market was
stable and there was no fluctuation in value during the interim period.

¶21 Testifying for the defense, William Dominick acknowledged
that he conducted his appraisals of the Pinal and Sunland Gin Properties

6

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

on April 8, 2016, but stated his valuations applied retroactively to May 20,
2015. He explained there were no comparable sales in the Properties’ area,
so he used other markets’ restaurants and adjusted for differences in
location. In contrast to Nava’s figures, Dominick concluded the fair market
value of the Pinal Property on May 20, 2015 was $2,940,000 and the fair
market value of the Sunland Gin Property on May 20, 2015 was $550,000.
When asked about his methodology for determining the Properties’
retroactive valuations, Dominick explained “relatively stable market
conditions” existed from the eight months that preceded the trustee’s sales
until a year afterward, allowing him to reasonably apply the Properties’
values on April 8, 2016 retroactively to May 20, 2015.

¶22 After hearing from the witnesses and reviewing the affidavits
and exhibits, the superior court determined the Properties required
different appraisal methodologies. Because the Pinal Property was
operating at a loss, the court determined Nava’s use of vacant buildings as
comparable sales was more appropriate than Dominick’s use of chain
restaurants. Specifically, the court found, “[f]or practical purposes,” the
Pinal Property “could be treated” as vacant because there was no basis to
conclude it could continue to operate into the foreseeable future.
Accordingly, the court adopted Nava’s overall approach for appraising the
Pinal Property. The court disagreed, however, with Nava’s deduction of
$166,000 for lease-up costs, explaining the Pinal Property had already been
devalued based on vacancy, reflecting the loss of rental income. In adopting
Nava’s approach, the court expressly rejected the Defendants’ contention
that Nava’s appraisal was statutorily defective because it reflected a fair
market value as of March 25, 2015, rather than May 20, 2015. In so doing,
the court found the undisputed evidence demonstrated there was no
material change either to the Pinal Property or the broader market during
that interim period. Deviating only slightly from Nava’s appraisal, the court
concluded the fair market value of the Pinal Property as of the date of the
trustee’s sale was $2,500,000.

¶23 In contrast, the superior court found “that a ‘going concern’
evaluation” was appropriate for the Sunland Gin Property, noting it had
successfully operated for many years and garnered sufficient net revenues
“to cover rent.” As such, the court found “Dominick’s analysis more
credible because he did not assume the Sunland Property was vacant.”
Relying primarily on Dominick’s opinion testimony, the court determined
the fair market value of the Sunland Gin Property as of the date of the
trustee’s sale was $540,000.

7

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

¶24 After deducting the outstanding property taxes for each
property in accordance with A.R.S. § 33-814, the superior court determined
the statutory fair market value of the Pinal Property as of the date of the
trustee’s sale was $2,351,960 and the statutory fair market value of the
Sunland Gin Property as of the date of the trustee’s sale was $523,780.16.

¶25 To recover a balance owed after a trustee’s sale, a party must
bring a deficiency action against any person “liable on the contract for
which the trust deed was given as security, including any guarantor of or
surety for the contract,” within 90 days of the sale. A.R.S. § 33-814(A). In
such an action,

[T]he deficiency judgment shall be for an amount equal to the
sum of the total amount owed the beneficiary as of the date of
the sale, as determined by the court less the fair market value
of the trust property on the date of the sale as determined by
the court or the sale price at the trustee’s sale, whichever is
higher.

....

“[F]air market value” means the most probable price, as of the
date of the execution sale . . . after deduction of prior liens and
encumbrances with interest to the date of the sale, for which
the real property or interest therein would sell after
reasonable exposure in the market under conditions requisite
to fair sale, with the buyer and seller each acting prudently,
knowledgeably and for self-interest, and assuming that
neither is under duress.

Id.

¶26 We interpret statutes de novo. Wilks v. Manobianco, 237 Ariz.
443, 446, ¶ 8 (2015). “When interpreting a statute, our primary goal is to
give effect to the legislature’s intent.” Id. (internal quotation omitted). “We
derive that intent by examining the statute’s language.” Id. When
construing a statute, each word or phrase “must be given meaning so that
no part is rendered void, superfluous, contradictory or insignificant.” Pinal
Vista Properties, L.L.C. v. Turnbull, 208 Ariz. 188, 190, ¶ 10 (App. 2004)
(internal quotation omitted).

¶27 The Defendants contend Wells Fargo failed to meet its burden
of proof under A.R.S. § 33-814(A) by relying on appraisals conducted 55
days before the trustee’s sales. Although the statute requires the court to

8

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

determine a property’s fair market value as of the date of the trustee’s sale,
nothing in the statute requires the party seeking a deficiency judgment to
conduct appraisals on the date of the actual sale.

¶28 In this case, both parties’ experts opined that the real estate
market was stable during the months preceding the trustee’s sales and no
market fluctuations altered the fair market values of the Pinal and Sunland
Gin Properties between March and May 2015. On this record, the superior
court did not abuse its discretion by finding the evidence adequately
established the fair market values of the Pinal and Sunland Gin Properties
on the date of the trustee’s sales.2 See Fannie Mae v. LaRuffa, 702 Fed. Appx.
505, 507 (9th Cir. 2017) (“[A] valuation conducted months before the date
of a trustee sale may be credited so long as evidence is presented that
connects the date of valuation to the date of the sale.”).

¶29 Next, the Defendants argue the superior court erred by
substantially adopting Nava’s appraisal of the Pinal Property.3 They
contend Nava applied improper assumptions when he calculated the fair
market value—classifying the property as both “owner-user” and vacant,
as well as applying a “carrying” discount.

¶30 Challenges to “the accuracy and reliability of a witness’
factual basis, data, and methods go to the weight and credibility of the
witness’ testimony and are questions of fact.” Logerquist v. McVey, 196 Ariz.
470, 488, ¶ 52 (2000). While the Defendants correctly note that A.R.S. § 33-
814 defines fair market value as “the most probable price . . . for which the
real property . . . would sell after reasonable exposure in the market under
conditions requisite to fair sale,” the statute tasks the court, as the fact-
finder, with determining what constitutes fair conditions.

2 Although the Defendants argue Wells Fargo had the burden of
proving the Pinal and Sunland Gin Properties’ values, A.R.S. § 33-814(A)
does not impose that requirement on the party seeking a deficiency
judgment. Instead, the statute permits the debtor to apply for a
determination of the fair market value of the real property, id., and, as the
moving party, the debtor has “the burden of going forward with the
evidence.” Life Inv’rs Ins. Co. of Am. v. Horizon Res. Bethany, Ltd., 182 Ariz.
529, 533 (App. 1995).
3 While the Defendants do not expressly limit their challenge to the
superior court’s valuation of the Pinal Property, the record reflects that the
court adopted their expert’s valuation of the Sunland Gin Property.

9

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

¶31 Here, the superior court concluded that Nava properly
classified the Pinal Property as owner-occupied because the Defendants
both owned the property and used it for their restaurant. Based on the
Defendants’ substantial loss of revenue from the property during the
preceding years, the court found that Nava properly applied a vacancy
assumption as well, determining there was no basis to conclude the
property could function as a viable restaurant in the foreseeable future. The
court rejected Nava’s imposition of “carrying” costs, however, and
increased Nava’s fair market valuation accordingly. Because substantial
evidence supports these findings, the superior court’s valuation of the Pinal
Property was not clearly erroneous.4

II. Security for the CEI Loan

¶32 The Defendants contend the superior court improperly
permitted Wells Fargo to change its position concerning which properties
secured the CEI Loan. Asserting they relied, to their detriment, on Wells
Fargo’s representations that the Pinal and Sunland Gin Properties secured
the CEI Loan, the Defendants argue the court should have found Wells
Fargo judicially estopped from claiming otherwise.

¶33 In its statements of breach, Wells Fargo stated that the Pinal
and Sunland Gin Properties secured both the TEI and CEI Loans. Likewise,
in both its original and amended complaints, Wells Fargo indirectly alleged
that the Pinal and Sunland Gin Properties secured the three loans,
collectively.

¶34 A week before the fair market valuation hearing, however,
Wells Fargo submitted Koster’s affidavit, which stated the appraisal values
of the Pinal and Sunland Gin Properties should be credited against the
balances of the TEI Loans, with no reference to the CEI Loan. Likewise, at
trial, Wells Fargo’s attorney asserted that the Pinal and Sunland Gin
Properties secured only the TEI Loans. As support for this contention,

4 To the extent the Defendants contend Wells Fargo used unethical
valuation practices to artificially decrease its Pinal and Sunland Gin
Property credit bids, thereby artificially increasing the remaining
deficiencies on the TEI Loans following the trustee’s sales, application of
A.R.S. § 33-814’s fair market value provision prevented Wells Fargo from
obtaining an undeserved windfall. CSA 13-101 Loop, LLC v. Loop 101, LLC,
236 Ariz. 410, 413, ¶ 13 (2014) (“Section 33-814(A) protects against
artificially inflated deficiencies by preventing windfalls resulting from
below-market credit bids.”).

10

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

counsel elicited testimony from Koster that the TEI modification agreement
contained a cross-collateralization provision whereby the security for each
TEI Loan secured the indebtedness of the other TEI Loan, but neither the
original TEI Loans nor the TEI modification agreement contained a cross-
collateralization provision for the CEI Loan. Addressing this point further,
Koster testified that the CEI modification agreement contained a cross-
collateralization provision securing the TEI Loans with the San Lazaro and
Indian Trail Properties, but did not provide that the Pinal and Sunland Gin
Properties secured the CEI Loan.

¶35 During closing argument, Wells Fargo’s attorney asserted
that the language of the TEI and CEI Loan documents, not the legal theories
advanced in Wells Fargo’s statements of breach or complaints, exclusively
determined which properties secured the CEI Loan. Defense counsel
countered that the Pinal and Sunland Gin Properties necessarily secured
the CEI Loan because: (1) the Defendants both owned those properties and
served as guarantors on the CEI Loan, and (2) Wells Fargo stated the
Properties secured all three loans in its complaints. Building on that
contention, defense counsel argued that the $165,000 settlement agreement
offset should be credited against the balance owed on the CEI Loan. In
rebuttal, Wells Fargo’s attorney argued the $165,000 offset should be
credited against the attorneys’ fees and costs Wells Fargo incurred to
enforce the TEI Loans.

¶36 After taking the matter under advisement, the superior court
determined that under the express terms of the loan documents, neither the
Pinal nor Sunland Gin Properties secured the CEI loan. Acknowledging
that Wells Fargo’s statements of breach contained language suggesting that
both properties secured the CEI Loan, the court explained a statement of
breach does not create a lien and may not be used to imply a grant of a
security interest. While the TEI modification agreement contained a cross-
collateralization provision between the First and Second TEI Loans, the
court further found no comparable provision concerning the CEI
indebtedness. In making this finding, the court expressly rejected the
Defendants’ claim that Wells Fargo was judicially estopped from arguing
the CEI Loan was not secured by the Pinal and Sunland Gin Properties,
finding “no persuasive evidence that Wells Fargo took a contrary position
to the prejudice of the defendants.” The court largely agreed with the
Defendants’ contention regarding the $165,000 settlement agreement offset,
however, and deducted only Wells Fargo’s costs and prelitigation
attorneys’ fees incurred in enforcing the TEI Loans from that amount,
applying the remainder, $84,157.50, to the balance owed on the CEI Loan.

11

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

¶37 First, the Defendants argue that Wells Fargo’s statements of
breach created an ambiguity concerning which properties secured the CEI
Loan. They contend this alleged ambiguity should have been resolved
against Wells Fargo or, in the alternative, that they should have been
permitted to explore the parties’ intent “in front of a jury.”

¶38 We review the interpretation of a contract de novo. Grosvenor
Holdings, L.C. v. Figueroa, 222 Ariz. 588, 593, ¶ 9 (App. 2009). “[W]hen
parties bind themselves by a lawful contract, the terms of which are clear
and unambiguous, a court must give effect to the contract as written.” Id.
(internal quotation omitted). In other words, the purpose of contract
interpretation is to determine and enforce the parties’ intent, and when that
intent “is expressed in clear and unambiguous language, there is no need
or room for construction or interpretation and a court may not resort
thereto.” Id. (internal quotation omitted).

¶39 The TEI and CEI Loan documents are not ambiguous. To the
contrary, they clearly reflect that apart from guarantees and a lien on CEI’s
inventory, equipment, and accounts, the CEI Loan was secured only by
deeds of trust to the San Lazaro and Indian Trail Properties.

¶40 Nonetheless, construing the terms “related document” and
“indebtedness” broadly, as those terms are used in the loan documents, the
Defendants contend the CEI modification agreement is essentially
encompassed within the TEI modification agreement, and therefore the TEI
and CEI Loans are secured by the same properties. As defined in the TEI
Loan documents: (1) related documents are “all promissory notes, credit
agreements, loan agreements, environmental agreements, guarantees,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and other instruments, agreements and documents, whether
now or hereafter existing, executed in connection with the Loan”; and (2)
“indebtedness” is “all principal and interest together with all other
indebtedness and costs and expenses for which Borrower is responsible
under this Agreement or under any of the Related Documents.” Under these
definitions, related documents are limited to contracts entered “in
connection with” the TEI Loans, not separate loan agreements.
Nonetheless, even if the definitional provisions set forth in the TEI Loan
documents could otherwise lend themselves to the Defendants’ posited
construction, the CEI modification agreement plainly and unambiguously
states that the Defendants’ “indebted[ness]”under the TEI Loan is
“pursuant to separate debt instruments and obligations.” Simply put, the
CEI modification agreement makes clear that it is a discrete contract, wholly
distinct from the TEI modification agreement.

12

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

¶41 Moreover, while the Defendants contend Wells Fargo’s
representations, years after the loan documents were executed, somehow
injected ambiguity into the otherwise unambiguous contracts, they have
cited no authority for this proposition and our research has revealed none.
To the contrary, the Defendants cite cases holding that both the
circumstances surrounding contract formation and the parties’ conduct
before a controversy arises provide the best evidence of an ambiguous
contractual term’s meaning. See Pendergast v. Ariz. State Ret. Sys., 234 Ariz.
535, 541, ¶ 19 (App. 2014); United Cal. Bank v. Prudential Ins. Co. of Am., 140
Ariz. 238, 264-65 (App. 1983). These cases are inapposite because the TEI
and CEI Loan documents are not ambiguous and Wells Fargo’s statements
of breach and complaints were clearly drafted after a controversy arose.

¶42 Next, the Defendants contend Wells Fargo was judicially
estopped from changing its position. We review a superior court’s decision
whether to apply judicial estoppel for an abuse of discretion. See State v.
Brown, 212 Ariz. 225, 228, ¶ 13 (2006). “Judicial estoppel is not intended to
protect individual litigants but is invoked to protect the integrity of the
judicial process by preventing a litigant from using the courts to gain an
unfair advantage.” Id. (internal quotation omitted). “Three requirements
must exist before the court can apply judicial estoppel: (1) the parties must
be the same, (2) the question involved must be the same, and (3) the party
asserting the inconsistent position must have been successful in the prior
judicial proceeding.” State v. Towery, 186 Ariz. 168, 182 (1996). Because no
issue concerning the security for the CEI Loan was litigated in a prior
judicial proceeding, the doctrine of judicial estoppel has no application to
this case.

¶43 Furthermore, although the Defendants contend they relied to
their detriment on Wells Fargo’s statements of breach when they entered
the settlement agreement, they have demonstrated no resulting prejudice.
The record clearly reflects the superior court applied the surplus from the
settlement agreement offset to the amount owed on the CEI Loan.
Therefore, the Defendants received the benefit they bargained for in the
settlement agreement.

¶44 Finally, the Defendants contend, had they known the Pinal
and Sunland Gin Properties only secured the TEI Loans, they would not
have requested a fair market valuation hearing or trial “because there was
no deficiency” on the TEI Loans. Nothing in the record supports this
assertion. The parties provided vastly different valuations for the
Properties. Had the superior court accepted both of Wells Fargo’s
valuations, deficiencies would have remained on the principal balances of

13

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

the TEI Loans. Furthermore, on this record, there is no basis to conclude the
Defendants would have accepted Wells Fargo’s calculation of interest, late
fees, and costs on the three loans had they known that the Pinal and
Sunland Gin Properties did not secure the CEI Loan. Therefore, because the
unambiguous language of the TEI and CEI Loan documents clearly and
unequivocally establishes the security for the CEI Loan, the superior court
did not err by finding Wells Fargo was not bound by its subsequent
representations, made years after contract formation.

III. Request for a Jury Trial

¶45 The Defendants contend the superior court improperly
denied their request for a jury trial. They argue Wells Fargo created a jury
issue by changing its position concerning the security for the CEI Loan.

¶46 After the superior court entered its fair market value findings,
the Defendants demanded a jury trial. In response, Wells Fargo argued the
Defendants waived their right to a jury trial by failing to make a timely
request under Arizona Rule of Civil Procedure (“Rule”) 38(d). The
Defendants countered that Rule 38(b) requires only that a request for a jury
trial be filed no later than ten days after the date a joint report or proposed
scheduling order is filed, not that a request be filed no later than ten days
after the original joint report or scheduling order is filed. Because their
demand for a jury trial was filed before the filing of the second amended
joint report and the third amended scheduling order, though more than a
year after the original joint report was filed, the Defendants asserted the
request was timely. Nonetheless, the court summarily found the
Defendants had waived their right to a jury trial.

¶47 “Whether a party is entitled to a jury trial is a question of law
we review de novo.” Carey v. Soucy, 245 Ariz. 547, 550-51, ¶ 12 (App. 2018).
Likewise, we review the interpretation of statutes and rules de novo. In re
Commitment of Jaramillo, 217 Ariz. 460, 462, ¶ 5 (App. 2008). We affirm the
superior court’s ruling if it is correct for any reason. Forszt v. Rodriguez, 212
Ariz. 263, 265, ¶ 9 (App. 2006).

¶48 Under A.R.S. § 33-814(A), “the court,” not a jury, is tasked
with determining both the fair market value of trust property and the
amount owed to the beneficiary on the date of the trustee’s sale. Upon
making these findings, “the court” shall issue an order crediting the amount
due on the judgment. Id. “Nowhere in the language of the statute is a jury
suggested or required.” Life Inv’rs Ins. Co. of Am., 182 Ariz. at 531. Nor does

14

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

the constitution confer a “right to a jury trial” in a deficiency action. Id. at
532.

¶49 Although the Defendants concede that debtors are not
generally entitled to a jury trial for the “matters at issue in this case,” they
assert Wells Fargo created a factual issue, triable to a jury, when it asserted,
mid-litigation, that the Pinal and Sunland Gin Properties secured only the
TEI Loans. As discussed, the plain language of the CEI Loan documents
makes clear only two properties secured the CEI Loan, the San Lazaro and
Indian Trail Properties. Because there was no contractual ambiguity
regarding the CEI Loan’s security, there was no factual issue for a jury to
resolve.5 Cf. State v. Mabery Ranch, Co., L.L.C., 216 Ariz. 233, 246, ¶ 57 (App.
2007) (“Where interpretation of a contract is needed because its terms are
reasonably susceptible to different meanings, the matter should be
submitted to [a] jury.”). Therefore, the superior court did not err by denying
the Defendants’ demand for a jury trial.

IV. Pretrial Disclosures

¶50 The Defendants argue that Wells Fargo failed to comply with
its pretrial disclosure obligations. Specifically, the Defendants assert Wells
Fargo concealed appraisals of the Pinal and Sunland Gin Properties, as well
as other documents, despite repeated requests for production.

¶51 As evidence for their claim, the Defendants note that Wells
Fargo did not disclose Nava’s appraisals for the Pinal and Sunland Gin
Properties until April 8, 2016, more than ten months after the litigation
began. Although defense counsel referenced the alleged disclosure
violations at both the valuation hearing and trial, the Defendants neither
moved to compel disclosure nor asked for a continuance based on an
untimely production of documents.

¶52 We review a superior court’s rulings on discovery and
disclosure issues for an abuse of discretion, Bowen Prod., Inc. v. French, 231
Ariz. 424, 427, ¶ 9 (App. 2013), but the Defendants never squarely raised a
disclosure issue in the superior court. Regardless, the Defendants
acknowledge they received Nava’s appraisals in April 2016, a year before

5 Having found Wells Fargo did not create, mid-litigation, an issue of
fact triable to a jury, there was no basis to extend Rule 38’s time limits for
requesting a jury trial. Therefore, as found by the superior court, the
Defendant’s demand for a jury trial, more than a year after the original joint
report was filed, was untimely.

15

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

the fair market valuation hearing. On this record, they have not identified,
much less demonstrated, any resulting prejudice from the arguably late
disclosure.6 See Zimmerman v. Shakman, 204 Ariz. 231, 235-36, ¶ 14 (App.
2003) (noting the disclosure rules “should be interpreted to maximize . . . a
decision on the merits” and explaining that the “relevant question” is
whether a late disclosure “is harmful to the opposing party or to the justice
system”) (internal quotation omitted).

V. Final Judgment

¶53 The Defendants contend that Wells Fargo failed to prove the
amounts due and owing on the TEI and CEI Loans. Without disputing the
principal balances remaining, the Defendants contest Wells Fargo’s
calculation of the total debts, which included interest, fees, and costs.
Specifically, they assert: (1) Wells Fargo failed to present admissible
evidence to establish the overall debts, and (2) the superior court
improperly shifted the burden of production to them.

¶54 To prove the total debts on the TEI and CEI Loans, Wells
Fargo submitted as exhibits redacted pay histories and spreadsheets, which
contained no identifying customer information. Although another Wells
Fargo employee compiled the reports, Koster testified that Wells Fargo
maintained the TEI and CEI Loan records in the ordinary course of
business. She also explained that she was able to identify the redacted pay
histories and spreadsheets as reflecting the Defendants’ accounts by
matching the principal balances owed.7

¶55 Apart from the principal balances, Koster testified to the
variable interest rates on the TEI and CEI Loans, clearly set forth in the loan
documents, as well as the imposition of late charges, authorization fees,

6 To the extent the Defendants likewise challenge other appraisals
purportedly not disclosed until after the valuation hearing, they have
similarly failed to demonstrate any prejudice.
7 Contrary to the Defendants’ contentions, Koster testified she was
able to identify the payment histories and spreadsheets for the TEI and CEI
Loans based on her review of the Defendants’ loan files. To the extent the
Defendants argue the payment histories and spreadsheets are inaccurate
and untrustworthy based on Koster’s purported admission that the
documents were not “true and accurate,” the record reflects only that
Koster acknowledged the exhibits redacted the customers’ identifying
information while the source documents contained no corresponding
redactions.

16

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

expenses, and costs, also expressly provided for in the loan agreements.
Accounting for the principal, late charges, fees, and costs, Koster testified
that the combined amount owed on the First and Second TEI Loans on May
20, 2015 was $2,872,700.15 and the remaining balance on the CEI Loan was
$573,803.60. Given the superior court’s determination that the combined
fair market value of the Pinal and Sunland Gin Properties on May 20, 2015
was $2,875,740.16, Koster acknowledged a $3,040.01 surplus on the TEI
Loans, as well as the Defendants’ $165,000 credit from the settlement
agreement. She further testified, however, that the TEI and CEI
modification agreements not only required the Defendants to pay all costs
associated with the enforcement of the loans, but also all reasonable
attorneys’ fees, which she stated amounted to $225,852.61.

¶56 When Wells Fargo’s attorney moved to enter the payment
histories and spreadsheets into evidence, defense counsel objected, arguing
the exhibits lacked sufficient foundation. While acknowledging Wells
Fargo had provided the entire TEI and CEI Loan files to the Defendants for
review, defense counsel asserted the underlying source documents were
not made reasonably available, given the substantial volume of the loan
files, and therefore the payment summaries were inadmissible under
Arizona Rule of Evidence (“Evidence Rule”) 1006. The superior court
overruled the objection, finding Wells Fargo had made the underlying
documents reasonably available for examination as required under
Evidence Rule 1006 and defense counsel could have timely requested an
unredacted copy of the payment histories and spreadsheets, if necessary,
rather than waiting until trial to raise an objection.

¶57 On cross-examination, Koster admitted that an entry
pertaining to an unrelated file of a different customer had mistakenly been
logged in one of the reports and a few other charges had been improperly
included as well. When the Defendants moved to dismiss the complaint
after Wells Fargo rested, Wells Fargo’s attorney acknowledged that the
exhibits included four improper entries but argued the evidence otherwise
substantiated Wells Fargo’s claims for reimbursement on the outstanding
balances. The superior court denied the motion to dismiss, concluding
Wells Fargo had presented sufficient evidence of late fees, interest, and
reimbursable costs.

¶58 After hearing from both parties and considering the evidence
presented, the superior court found, in relevant part: (1) both the TEI and
CEI Loan modification agreements included express provisions imposing
interest and permitting Wells Fargo to recover all costs, expenses, and fees
incurred to enforce the loan obligations; (2) Wells Fargo demonstrated, by

17

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

a preponderance of the evidence, the interest, late fees, and costs that
accrued on the TEI and CEI Loans; (3) the TEI and CEI Loan documents set
forth the applicable interest rates and Wells Fargo presented a credible
calculation for the total debts; (4) Wells Fargo withdrew cost claims of
$9,625 and the Defendants “persuasively demonstrated” that other charges
(totaling $9,397) were not appropriate; (5) deducting those costs, Wells
Fargo was entitled to $68,121.20 in costs; (6) Wells Fargo was entitled to an
award for reasonable attorneys’ fees incurred enforcing the Defendants’
obligations under the loan documents, including fees associated with the
trustee’s sales; (7) the amount owed for the two TEI loans as of the date of
the trustee’s sales was $2,940,821.35, consisting of First TEI Loan principal
in the amount of $1,746,633.02 plus Second TEI Loan principal of
$1,126,067.13—together with $68,121.20 in costs and expenses, exclusive of
attorneys’ fees; (8) the amount owed on the TEI Loans was offset by the fair
market valuations of the Pinal and Sunland Gin Properties and the $165,000
settlement agreement; (9) the Defendants owed Wells Fargo $2,940,821.35
on the TEI Loans plus undetermined attorneys’ fees, with offsets of
$3,040,740.16; (10) Wells Fargo received $99,919 more than it was owed on
the TEI Loans, exclusive of attorneys’ fees; and (11) both Koster’s credible
testimony and the exhibits demonstrated that the Defendants owed
$573,803.60 on the CEI Loan as of June 28, 2017.

¶59 We review evidentiary rulings for an abuse of discretion and
affirm a superior court’s admission of evidence absent a clear abuse or legal
error and resulting prejudice. John C. Lincoln Hosp. and Health Corp. v.
Maricopa Cty., 208 Ariz. 532, 543, ¶ 33 (App. 2004). The admission of
summaries is governed by Evidence Rule 1006, which permits a party to
“use a summary, chart, or calculation to prove the content of voluminous
writings . . . that cannot be conveniently examined in court.” Before
presenting such a summary at trial, “[t]he proponent must make the
originals or duplicates available for examination or copying, or both, by
other parties at a reasonable time and place.” Id.

¶60 On appeal, the Defendants contend Wells Fargo failed “to
produce [the] actual, real documents that evidenced” the interest, fees, and
costs it imposed on the TEI and CEI Loans. When the superior court
questioned the Defendants’ access to the underlying source documents at
trial, however, defense counsel admitted that Wells Fargo had permitted
him to review the TEI and CEI Loan files in their entirety, though
contending the files were so voluminous that the access was insufficient for
purposes of Evidence Rule 1006. This admission was consistent with
Koster’s testimony that Wells Fargo had made the TEI and CEI Loan files
available to the Defendants, and after defense counsel’s inspection, no

18

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

additional disclosure requests were made. Because reasonable evidence
supports the superior court’s finding that Wells Fargo provided the
Defendants with an opportunity to review unredacted “hard copies” of the
underlying documents, we cannot conclude the court abused its discretion
by finding Wells Fargo’s payment histories and spreadsheets satisfied the
foundation requirements.

¶61 Moreover, to the extent the Defendants argue the exhibits
“constituted inadmissible hearsay,” the uncontroverted record reflects that
the payment histories and spreadsheets were compiled and maintained by
a Wells Fargo employee familiar with the TEI and CEI Loans during the
ordinary course of business. Under the business records exception to the
rule against hearsay, a record of a regularly conducted activity is admissible
if: (1) made at or near the time by someone with knowledge, (2) kept in the
ordinary course of business, (3) made as a regular practice, (4) a qualified
witness testifies to these criteria, and (5) the opponent does not show the
record lacks indicia of trustworthiness. Ariz. R. Evid. 803(6). To lay
adequate foundation under the business records exception, the testifying
witness need not have personal knowledge of the creation of the document.
See State v. Parker, 231 Ariz. 391, 401-02, ¶ 33 (2013) (holding a credit card
company’s custodian laid sufficient foundation for admitting business
records even though the company’s merchant―not the company or the
custodian―created the records). Here, Koster testified that another Wells
Fargo employee created the records in the normal course of business,
though identifying customer information was redacted from the records for
trial purposes. Accordingly, Koster’s testimony provided the court with a
reasonable basis to conclude that the exhibits were admissible under the
business records exception.

¶62 The Defendants’ remaining evidentiary challenges concern a
few, specific entries in the exhibits. While the undisputed evidence reflects
that some entries were improper, those inaccuracies go to the weight
afforded the evidence rather than its admissibility. See State ex rel.
Winkleman v. Ariz. Navigable Stream Adjudication Comm’n, 224 Ariz. 230, 243,
¶ 31 (App. 2010). Given Koster’s unqualified admission that the challenged
entries were improper, the superior court deducted those amounts from the
overall debt calculations. Therefore, on this record, we cannot say the
superior court abused its discretion by admitting the payment history and
spreadsheet exhibits.

¶63 Furthermore, although the Defendants contend the superior
court improperly shifted the burden of production to them the record
reflects only that the court found: (1) Wells Fargo had presented a

19

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

reasonable and credible calculation of the total debts owed; and (2) the
Defendants, other than challenging a few specific entries, had not presented
any conflicting evidence. Rather than shifting the burden of production, the
court determined Wells Fargo had proven its damages with reasonable
certainty and simply noted that its evidence was largely uncontroverted.
Gilmore v. Cohen, 95 Ariz. 34, 36 (1963) (stating a plaintiff “should supply
some reasonable basis for computing the amount of damage and must do
so with such precision as, from the nature of his claim and the available
evidence, is possible”). On this record, we cannot conclude the superior
court’s factual findings concerning the amounts due and owing to Wells
Fargo are clearly erroneous. See Shooter v. Farmer, 235 Ariz. 199, 200-01, ¶ 4
(2014) (explaining the superior court, as fact-finder, weighs the evidence
and resolves any conflicting facts, and the appellate court defers to the
superior court’s findings of fact unless they are clearly erroneous).

VI. Attorneys’ Fees Award

¶64 The Defendants challenge the superior court’s award of
attorneys’ fees to Wells Fargo. Asserting Wells Fargo failed to prevail on its
deficiency claims, the Defendants argue they were the successful party
entitled to an attorneys’ fees award. Alternatively, the Defendants contend
that, even if Wells Fargo is the prevailing party, the amount of attorneys’
fees awarded was unreasonable and excessive.

¶65 After entering its trial findings, the superior court directed the
parties to submit applications for attorneys’ fees, specifically instructing
Wells Fargo to “differentiate between fees, costs and expenses incurred in
enforcing the obligations evidenced by” the loan documents, including the
events leading to the trustee’s sale, “from attorneys’ fees, costs and
expenses incurred in prosecuting the lawsuit.” In its application, Wells
Fargo requested: (1) $28,553 for the attorneys’ fees it incurred enforcing the
Defendants’ obligations under the loan documents through the trustee’s
sales, and (2) $217,165.60 for the attorneys’ fees it incurred in prosecuting
this case. The Defendants, in turn, requested $80,513 for the attorneys’ fees
they incurred defending against the lawsuit.

¶66 Given the “net judgment in its favor,” the superior court
determined Wells Fargo was entitled to an award of its reasonable
attorneys’ fees, and the Defendants were not entitled to any attorneys’ fees
award. Although Wells Fargo recovered only a fraction of the damages
sought in its original complaint, the court concluded it was nonetheless the
prevailing party, and therefore entitled to an award of both its prelitigation
and litigation-related attorneys’ fees under the express terms of the loan

20

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

documents. Noting the Defendants failed to raise any specific objections to
Wells Fargo’s fee entries or challenge the reasonableness of its attorneys’
hourly rate, and subtracting the attorneys’ fees Wells Fargo incurred
pursuing “unsuccessful issues,” the court found $15,761.50 for prelitigation
attorneys’ fees and $170,000 for litigation-related attorneys’ fees was “a fair
and reasonable award.” After subtracting the prelitigation attorneys’ fees
from the surplus on the TEI Loans ($99,919 - $15,761.50), the court applied
the $84,157.50 overage to the outstanding balance on the CEI Loan and
entered judgment in Wells Fargo’s favor.

¶67 We review de novo issues of contract interpretation.
Grosvenor Holdings, L.C., 222 Ariz. at 593, ¶ 9. We review a superior court’s
award or denial of attorney’s fees, however, for an abuse of discretion.
Democratic Party of Pima Cty. v. Ford, 228 Ariz. 545, 547, ¶ 6 (App. 2012).

¶68 In pertinent part, A.R.S. § 12-341.01 provides: “In any
contested action arising out of a contract, . . . the court may award the
successful party reasonable attorney fees. . . . This section shall not be
construed as altering, prohibiting or restricting . . . contracts . . . that . . .
provide for attorney fees.”

¶69 As noted by the superior court, the parties do not dispute that
their various contracts included express provisions requiring the
Defendants to pay Wells Fargo for all legal expenses and attorneys’ fees it
incurred enforcing the loan obligations. While the Defendants argue Wells
Fargo is not entitled to a fee award because it failed to recover the majority
of the damages sought, the loan documents do not impose the statutory
“successful party” limitation and, by its own terms, A.R.S. § 12-341.01 is
inapplicable when it “effectively conflicts with an express contractual
provision governing recovery of attorney’s fees.” Am. Power Prod., Inc. v.
CSK Auto, Inc., 242 Ariz. 364, 368, ¶ 14 (2017).

¶70 The loan documents entitle Wells Fargo to recover only its
reasonable attorneys’ fees. Although the Defendants argued Wells Fargo
was ineligible for an attorneys’ fee award on a “deficiency action where no
deficiency existed,”8 they did not challenge the reasonableness of the hours

8 The Defendants maintain there was no deficiency on the TEI Loans
because the fair market valuations of the Pinal and Sunland Gin Properties
exceeded the loan balances (principle, interest, and late charges) by
$3,040.01. While there was a small surplus on the TEI Loan balances after
subtracting the Properties’ fair market values, the Defendants’ argument

21

WELLS FARGO v. TERRENATE, et al.
Decision of the Court

expended or the rates charged by Wells Fargo’s attorneys. Noting the
absence of such a challenge, the superior court nonetheless considered the
reasonableness of Wells Fargo’s fee request and deducted a substantial
portion of the requested fees, finding Wells Fargo was not entitled to fees it
incurred pursuing “unsuccessful issues.”

¶71 On this record, the superior court did not abuse its discretion
by awarding Wells Fargo reduced prelitigation attorneys’ fees of $15,761.50
and reduced litigation-related attorneys’ fees of $170,000. Nor did the
superior court abuse its discretion by finding the Defendants did not
prevail, having ordered them to pay Wells Fargo $481,671 for their defaults
on the CEI Loan and associated guarantees.

CONCLUSION

¶72 For the foregoing reasons, we affirm. Wells Fargo and the
Defendants request an award of their attorneys’ fees incurred on appeal.
The Defendants have not prevailed, and we deny their request. See A.R.S.
§ 12-341.01(A). Under the express terms of the loan documents, we award
Wells Fargo its reasonable attorneys’ fees and costs incurred on appeal,
both conditioned upon compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

fails to account for the $68,121.20 in costs Wells Fargo incurred enforcing
the Defendants’ TEI Loan obligations.

22