Dominguez v. Dominguez

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ESTATE OF MAGDELENA RIOS DE DOMINGUEZ, Plaintiff/Appellant,

v.

RENEE KAY DOMINGUEZ, Defendant/Appellee.

No. 1 CA-CV 23-0363
FILED 03-28-2024

Appeal from the Superior Court in Maricopa County
No. CV2020-011404
CV2020-013833
CV2022-001764
(Consolidated)
The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Combs Law Group PC, Phoenix
By Christopher A. Combs, Haille Saal-Khalili
Counsel for Plaintiff/Appellant

Tiffany & Bosco PA, Phoenix
By Lance R. Broberg, Timothy C. Bode, Kyle J. Kopinski, Nicholas Beatty
Counsel for Defendant/Appellee
 DOMINGUEZ v. DOMINGUEZ
Opinion of the Court

OPINION

Vice Chief Judge Randall M. Howe delivered the opinion of the court, in
which Presiding Judge Anni Hill Foster and Judge Brian Y. Furuya joined.

H O W E, Judge:

¶1 The Estate of Magdalena Rios De Dominguez appeals the trial
court’s grant of summary judgment to Renee Kay Dominguez1 on the
parties’ competing quiet title and false documents claims. The Estate argues
that its quiet title claim was not time-barred because A.R.S. § 12–524’s five-
year limitation period does not apply to suits against a person who forges
a deed to property. The Estate also argues that even if the quiet title claim
was time-barred and the property belonged to Renee, it could still pursue
the false documents claim against Renee for recording the forged deed. See
A.R.S. § 33–420(A).

¶2 We reject the Estate’s first argument because a forgery
allegation does not excuse a quiet title claim from A.R.S. § 12–524’s five-
year limitation period. We also reject its second argument because the false
document claim was time-barred under the applicable statute of limitation.
Because we reject these arguments and the other arguments discussed
below, we affirm the trial court’s orders.

FACTS AND PROCEDURAL HISTORY

¶3 This appeal arises out of a real property dispute. In 1995,
Magdalena and her husband, Isidro Dominguez, obtained title as joint
tenants with right of survivorship to a vacant lot in Maricopa County,
Arizona (“Property”). A few years later, their son Jose married Renee. In
April 2002, a notarized warranty deed conveying the Property to “Jose Luis
Dominguez and Rene Kay Dominguez” as “husband and wife” was
executed and recorded in November 2003. Over the following years, all the
assessed taxes on the Property were paid. Isidro died in 2012. Jose went
missing in January 2020, and his remains were found a few months later.
According to Magdalena’s signed declaration, shortly after Jose went

1 Because the parties share the same last name, we respectfully refer
to them by their first names to avoid confusion.

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Opinion of the Court

missing, she started reviewing his belongings and discovered the deed,
which she alleged was forged.

¶4 In September 2020, 17 years after the deed was recorded,
Magdalena filed a complaint against Renee seeking to quiet title to the
Property in her favor and claiming under A.R.S. § 33–420 that Renee had
recorded a forged deed to the Property. To support her claim, Magdalena
provided a forensic document examiner’s report concluding the signatures
on the deed were likely forged. Shortly thereafter, Magdalena recorded a
lis pendens—a document noting the pendency of an action affecting a
property’s title—against the Property.

¶5 In response, Renee demanded that Magdalena quitclaim any
interest in the Property to her. When Magdalena refused, Renee filed a
separate complaint against Magdalena seeking to quiet the Property’s title
in her favor and alleging false documents because Magdalena had clouded
the Property’s title by filing the lis pendens and refusing to remove it. The
trial court consolidated the cases.

¶6 Renee moved for summary judgment on the competing quiet
title claims. She argued that Magdalena’s claim was barred by A.R.S. § 12–
524, which established a five-year limitation on actions to recover
ownership of a lot in a city or town. In response, Magdalena did not dispute
that the lot was in a town or city, nor that Renee had claimed ownership.
Instead, she argued that Renee did not have a “recorded deed” as the
statute requires because the forged deed was void from the beginning. She
also argued that although Renee has provided statements to show that the
taxes on the Property were paid, she had not shown that she had paid the
taxes herself.

¶7 After oral argument, the court granted Renee summary
judgment on both competing quiet title claims (“First Order”). The court
found that the parties did not dispute that the Property was within a town
or city or that Renee had claimed ownership of it. It also found that no
material question of fact existed that Renee had paid the taxes on the
Property for at least the past five years before the suit was filed and noted
that Magdalena offered no evidence controverting that fact. Finally, it
found that Renee had a “recorded deed” to the Property, even though the
evidence supported an inference of forgery. The deed was valid on its face
because it properly described the Property, and the signatures of the
grantors were notarized. The court held that an allegation of forgery did
not suspend A.R.S. § 12–524’s five-year statute of limitations because it did
not expressly have a “forgery exclusion.”

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Opinion of the Court

¶8 Magdalena moved for reconsideration but died soon after,
and the Estate assumed her role in the litigation as the real party in interest.
The court denied the motion to reconsider. Renee asked the Estate to
remove the lis pendens, but it refused to do so, claiming that it could still
pursue its false documents claim. Renee again moved for summary
judgment on the parties’ competing false documents claims, arguing that
the Estate lacked standing to bring such a claim because it was not the
current owner of the Property. The Estate responded and cross-moved for
partial summary judgment on its claim, arguing that it could still pursue
that claim because Magdalena had been the owner of the Property when
the forged deed was recorded.

¶9 The court granted Renee summary judgment on both parties’
claims (“Second Order”). It found that the First Order quieting title in Renee
barred the Estate’s false documents claim. It found that because Magdalena
was not an owner “when she filed suit,” she lacked standing to bring a
claim under that statute, and the Estate had no good-faith basis to maintain
the lis pendens against the Property. The court entered a judgment quieting
title in Renee’s favor and granting her attorneys’ fees under A.R.S. § 12–
1103(B). The Estate timely appealed. This court has jurisdiction under
A.R.S. § 12–2101(A)(1).

DISCUSSION

¶10 The Estate argues that the trial court erred in granting Renee
summary judgment on the competing quiet title and false documents
claims.2 This court “reviews a grant of summary judgment de novo,
viewing the evidence in the light most favorable to the party against whom
summary judgment was entered.” Dabush v. Seacret Direct LLC, 250 Ariz.
264, 267 ¶ 10 (2021). Summary judgment is appropriate when the moving
party shows that no genuine dispute as to any material fact exists and that
it is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a).

2 Although in the trial court, the dispute also involved other
properties, the Estate’s opening brief limits its arguments to the Property
alone. The Estate has thus waived any arguments not related to the
Property and this court’s review on appeal is limited only to the rulings
about the Property. See Ariz. R. Civ. App. P. 13(a)(7)(A); see also Zubia v.
Shapiro, 243 Ariz. 412, 416 ¶ 25 n.1 (2018).

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I. The First Order

¶11 The Estate argues that the trial court erred in granting
summary judgment to Renee on the competing quiet title claims because
A.R.S. § 12–524 did not apply. Section 12–524 provides that “[a]n action to
recover a lot located in a city or town from a person having a recorded deed
therefor, who claims ownership and has paid the taxes thereon, shall be
brought within five years after the cause of action accrues, and not
afterward.” Although the Estate does not dispute that Renee has claimed
ownership of the Property, it does dispute the other statutory elements. An
analysis of the facts of this case shows, however, that the statute of
limitations applies to the Estate’s claim.

A. A Lot in a City or Town Element

¶12 The Estate argues—for the first time on appeal—§ 12-524 does
not apply because the Property is not in a city or town. The Estate concedes
that Magdalena did not dispute in the trial court that the Property is in a
city or a town and did not raise this issue in post-ruling filings. But the
Estate cannot dispute material facts in this court that it did not dispute in
the trial court. Daggett v. Jackie Fine Arts, Inc., 152 Ariz. 559, 564 (App. 1986).
As the party opposing the motion for summary judgment, Magdalena—
and the Estate as her successor-in-interest—had “the burden of showing the
trial court that an issue of fact exist[ed] and [] offer[ing] specific facts in
opposition to the motion for summary judgment.” Id. (citations omitted).
She did not meet this burden.

¶13 Moreover, Magdalena’s concession was a judicial admission.
A judicial admission is

[a]n express waiver made in court or preparatory to trial by
the party or his attorney conceding for the purposes of the
trial the truth of some alleged fact, has the effect of a
confessory pleading, in that the fact is thereafter to be taken
for granted; so that the one party need offer no evidence to
prove it and the other is not allowed to disprove it. . . . It is, in
truth, a substitute for evidence, in that it does away with the
need for evidence.

State v. Allen, 253 Ariz. 306, 356 ¶ 181 (2022) (internal quotation and citations
omitted). Section 12–524’s requirement that the lot in question be in a city
or town is therefore established and the Estate cannot disprove it.

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¶14 The Estate asked this court at oral argument to overlook its
admission and take judicial notice that the Property is not a lot in a city or
town because a county government website indicates that the Property
appears to be located within an unincorporated area of Maricopa County.
Renee responded that because of the Estate’s concession below, it
conducted no investigation and presented no evidence whether the
Property is a lot in a city or town and disputes the conclusiveness of the
website’s information. Because reviving this issue on appeal after the Estate
affirmatively eschewed litigating it would be unfair to Renee, we decline to
excuse the Estate’s waiver. We thus find no factual issue that was preserved
on appeal that would have precluded the trial court from granting
summary judgment. Contempo Const. Co. v. Mountain States Tel. & Tel. Co.,
153 Ariz. 279, 282 (App. 1987) (“On appeal from a summary judgment,
parties are not allowed to advance new theories or raise new issues in order
to secure a reversal.”).

B. The Recorded Deed Element

¶15 The Estate next argues that § 12–524’s five-year statute of
limitation does not apply to forged deeds because a forged deed does not
satisfy that statute’s “recorded deed” requirement. This argument fails
because although the deed here may have been forged, it still qualifies as a
“recorded deed” under the statute.

¶16 “The recorded deed requirement in [§] 12–524 is in the nature
of a color of title requirement.” Quality Plastics, Inc. v. Moore, 131 Ariz. 238,
241–42 (1981). A deed meets the requirement if the deed is “not void upon
its face . . . not that it is a conveyance, but that it purports to operate as a
conveyance.” Id. at 242 (quoting Sparks v. Douglas, 19 Ariz. 123, 127 (1917)
(internal quotation marks omitted)). The Arizona Supreme Court has
applied § 12–524’s five-year statute of limitation to void deeds. In Nicholas
v. Giles, the trial court found a deed void for failure to comply with a
statutory due diligence requirement. 102 Ariz. 130, 131 (1967). The Court
upheld the judgment by applying § 12–524’s five-year limitation period,
although the parties had never raised the statute’s applicability. Id. at 133.
In analyzing § 12–524’s “recorded deed” requirement, the Court stated that
the deed, “though void, was sufficient to operate as a recorded deed.” Id.

¶17 Applying Nicholas, § 12–524 governs here even though the
Property deed was allegedly forged and thus void. See id. Regardless of any
signature forgeries, the Property deed was sufficient to satisfy § 12–524’s
“recorded deed” requirement. Id.; see also Quality Plastics, Inc., 131 Ariz. at
241–42 (finding that a deed that inadequately described the property

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satisfied the recorded deed requirement). As the trial court noted, the deed
properly described the Property, and the signatures of the grantors were
notarized. The Property’s deed was thus valid on its face. And, contrary to
the Estate’s argument, a forged deed may—and in this case did—purport
to operate as a conveyance. Quality Plastics, Inc., 131 Ariz. at 241–42. The
trial court properly interpreted and applied § 12–524.

¶18 The Estate cites several cases from other jurisdictions holding
that a challenge to a forged deed is not subject to a statute of limitations
defense. But those cases are not binding. See Kotterman v. Killian, 193 Ariz.
273, 291 ¶ 68 (1999) (“We alone must decide how persuasive the legal
opinions of other jurisdictions will be to our holdings.”). The Arizona
legislature did not proscribe the benefits of § 12–524 to those who hold title
through an alleged forged deed, as it did in the very next section of the same
statute. Compare A.R.S. § 12–524 with A.R.S. § 12–525 (providing a five-year
limitation period for claims to recover real property from a person in
peaceable and adverse possession but expressly prohibiting the benefits of
the provision to those who claim title through a forged deed). Because § 12–
524 does not expressly exclude its application to an alleged forged deed, the
statute defeats the Estate’s challenge as untimely. See World Egg Bank, Inc.
v. Nesco Investments, LLC, 251 Ariz. 377, 381 ¶ 12 (App. 2021) (“The best and
most reliable index of a statute’s meaning is its language, and where the
language is plain and unambiguous, courts generally must follow the text
as written.” (quoting Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz.
526, 529 (1994) (internal quotation marks omitted))). The legislature,
exercising its power, has allowed for validation of an otherwise-invalid
deed by operation of § 12–524 and we cannot inject an exemption into a
statute that is not provided for by its language. Moreover, injection of an
exemption into the statute would adversely affect the public policy favoring
finality of title to real property, which serves to protect bona fide purchasers
and avoid needless litigation. Shirley v. Shirley, 525 S.E.2d 274, 277 (Va.
2000); Matter of Estate of Violi, 482 N.E.2d 29, 32 (N.Y. 1985).

C. The Taxes Element

¶19 The Estate also argues that although Renee did the physical
act of paying the taxes on the Property, she did so with Magdalena’s funds.
As a result, Renee did not satisfy § 12–524’s payment of taxes requirement.
However, Renee provided tax bills and her signed declaration to show that
she paid the taxes on the property. Magdalena provided no evidence
beyond her own signed declaration that Renee had paid the property taxes
with Magdalena’s funds. Self-serving assertions without factual support in
the record will not defeat a motion for summary judgment. Florez v.

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Sargeant, 185 Ariz. 521, 526 (1996) (citation omitted). Magdalena failed to
create a genuine issue of material fact that Renee paid the taxes on the
Property. The trial court thus did not err.

D. Equitable Tolling

¶20 Finally, the Estate also argues that the trial court erred in not
applying equitable tolling to her quiet title claim. But the Estate did not raise
this argument in the trial court when arguing that her quiet title claim was
not barred. As a result, it has waived that argument, and we need not
address it. See McCleary v. Tripodi, 243 Ariz. 197, 202 ¶ 24, n.4 (App. 2017)
(holding that failure to raise an argument before the trial court constituted
waiver). The trial court properly awarded the Property to Renee.

II. The Second Order

¶21 The Estate further argues that the trial court erred in ruling
that the Estate could not pursue its false documents claim. It contends that
it could pursue such a claim, even if the court correctly ruled that Renee
was the owner of the Property.

¶22 A person may be liable under A.R.S. § 33–420(A) for filing in
the county recorder’s office a groundless or forged document purporting to
claim an interest in real property. Only the “owner or beneficial title holder”
can bring such a claim. A.R.S. § 33–420(A). The claimant must have been
the owner when the alleged forged document was filed in the county
recorder’s office. See Richey v. W. Pac. Dev. Corp., 140 Ariz. 597, 601 (App.
1984) (holding that the operative time of the statute is when the document
was filed in the county recorder’s office); see also Sitton v. Deutsche Bank
Nat’l. Tr. Co., 233 Ariz. 215, 219 ¶ 16 (App. 2013). Here, the trial court held
that Magdalena was not the owner of the Property “when she filed suit.”
The operative time is not when the suit was filed, however, but when the
documents were recorded. See Richey, 140 Ariz. at 601; see also Sitton, 233
Ariz. at 219 ¶ 16. The court thus erred because it focused on the wrong time
to determine the ownership of the Property.

¶23 But summary judgment will be affirmed nevertheless if
“correct for any reason supported by the record, even if not explicitly
considered by the [trial] court.” KB Home Tucson, Inc. v. Charter Oak Fire Ins.
Co., 236 Ariz. 326, 329 ¶ 14 (App. 2014). Claims brought under § 33–420(A)
are subject to the four-year limitations period prescribed in § 12–550. See
Sitton, 233 Ariz. at 219 ¶ 19. Here, the alleged forged deed was recorded in
2003. Magdalena sued Renee in 2020. As a result, because Magdalena
brought the suit more than a decade after the four-year limitations period

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had run, her § 33–420(A) claim is time-barred, and the trial court correctly
granted Renee summary judgment.

¶24 The Estate contends that the § 33–420(A) claim is not time-
barred because the equitable tolling doctrine and the discovery rule apply,
and thus the statute of limitation did not start running until 2020 when
Magdalena discovered the fraudulent conveyance. It argues that Renee had
a fiduciary relationship with Magdalena because Magdalena did not speak
English and she trusted Renee with her financial affairs. But the Estate
failed to raise these arguments in the trial court in response to Renee’s
second motion for summary judgment. As a result, the Estate has waived
them. See McCleary, 243 Ariz. at 202 ¶ 24 n.4.

III. Attorneys’ Fees

¶25 The Estate argues that the trial court erred in granting Renee
attorneys’ fees because Renee’s quiet claim title claim failed as a matter of
law. We review an award of attorneys’ fees for an abuse of discretion. ABC
Supply, Inc. v. Edwards, 191 Ariz. 48, 52 (App. 1996). The court did not err.
As explained supra ¶¶ 11–20, Renee prevailed in her quiet title claim and
was entitled to her attorneys’ fees under A.R.S. § 12–1103(B). We thus do
not disturb the trial court’s award of attorneys’ fees to Renee.

CONCLUSION

¶26 We affirm. We deny the Estate’s request for attorneys’ fees
and costs under A.R.S. §§ 12–1103, –341, and 33–420(A) because it did not
prevail in the action. We also deny Renee’s requests attorneys’ fees under
A.R.S. §§ 12–341 and 12–341.01 because this appeal did not arise out of a
contract and the exclusive basis for attorneys’ fees in a quiet title action lies
in A.R.S. § 12–1103(B). Lewis v. Pleasant County, Ltd., 173 Ariz. 186, 195 (App.
1992). As the prevailing party, however, Renee is entitled to her costs
incurred in this appeal upon compliance with Arizona Rule of Civil
Appellate Procedure 21.

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

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