Dragoons v. 1881 Preserve

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DRAGOONS OF TOMBSTONE ACQUISITIONS LLC, Plaintiff/Appellant,

v.

1881 PRESERVE, LLC, et al., Defendants/Appellees.

No. 1 CA-CV 24-0826
FILED 07-29-2025

Appeal from the Superior Court in Maricopa County
No. CV2020-003915
CV2021-011133
CV2024-022023
The Honorable Jennifer C. Ryan-Touhill, Judge

APPEAL DISMISSED

COUNSEL

DeConcini McDonald Yetwin & Lacy, PC, Tucson
By Paul A. Loucks
Counsel for Plaintiff/Appellant

Mesch Clark & Rothschild, PC, Tucson
By Fredrick J. Petersen
Counsel for Defendants/Appellees
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Angela K. Paton delivered the decision of the Court, in
which Judge Daniel J. Kiley and Judge Brian Y. Furuya joined.

P A T O N, Judge:

¶1 Dragoons of Tombstone Acquisitions, LLC (“Dragoons”)
appeals the superior court’s dismissal of its complaint against 1881
Preserve, LLC (“1881”) and the court’s order that Dragoons remove its
associated lis pendens. For the following reasons, we dismiss the appeal as
moot.

FACTS AND PROCEDURAL HISTORY

¶2 1881 is an investment company that was formed to purchase
and develop vineyard and equestrian property in southeastern Arizona in
2017. 1881 had rights to several thousand acres of land in Cochise County,
Arizona. After litigation commenced concerning 1881 in March 2020, the
superior court appointed a receiver (“Receiver”) in February 2023 “to take
possession, custody, and control of [1881’s] real, personal, and intellectual
property.” The Receiver began to wind down 1881’s operations.

¶3 In March 2024, the Receiver moved for authorization to sell
1881’s land to Morin Ranch, LLC (“Morin Ranch”). Some parties to the
underlying litigation objected to the sale and the Receiver ultimately
entered a Purchase and Sale Agreement (“PSA”) with Dragoons in late May
2024. The Receiver recommended the superior court approve the sale to
Dragoons with Morin Ranch as backup buyer. After an evidentiary
hearing, the court authorized the sale to Dragoons on July 3, 2024, noting
“[i]f the sale to Dragoons does not close timely, other than because of a
delay caused by the Receiver, the Receiver is authorized to cancel the
Dragoon[s] sale and undertake all actions necessary to close the sale to
Morin [Ranch].”

¶4 The PSA set the closing date as five days after court approval
of the sale. 1881 and Dragoons amended the PSA in mid-July to extend the
closing date to August 5, 2024, and did so again at the beginning of August
to extend closing to August 6, 2024. On August 14, 2024, the parties
amended the PSA a third time to extend the closing date to August 16, 2024,

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Decision of the Court

for which Dragoons would pay an additional $15,000 at closing. On the
same day, still two days before the closing date, Dragoons commenced a
separate action against 1881, alleging breach of contract and requesting
specific performance. Dragoons also filed a lis pendens on the land to be
sold.

¶5 1881 terminated the PSA with Dragoons on August 16, 2024,
alleging that Dragoons had not met its closing obligations. 1881 then
moved the court in the underlying receivership litigation to dismiss
Dragoons’ complaint and lis pendens and to consolidate Dragoons’ breach
of contract suit with the receivership case. Dragoons opposed these
motions.

¶6 The court held a hearing on 1881’s motions on August 20,
2024, and when asked whether it had the funds to close, Dragoons admitted
it “doesn’t have the money right now, correct.” Accordingly, the court
ordered Dragoons’ lis pendens removed and ordered briefing on the
motion to dismiss. On August 21, 2024, the superior court consolidated the
two cases and amended the sales order to authorize the sale to Morin
Ranch. In early September 2024, the court granted 1881’s motion to dismiss
and issued a final judgment regarding the dismissal of the complaint and
lis pendens later in September 2024. Dragoons timely appealed. 1881
finalized the sale to Morin Ranch in early January 2025 after the appeal was
initiated.

¶7 We have jurisdiction under Arizona Revised Statutes
(“A.R.S.”) Section 12-2101(A)(1).

DISCUSSION

¶8 Dragoons argues the superior court erred in dismissing its
complaint requesting specific performance of the sale and ordering its lis
pendens against the land removed. 1881 responds that this appeal is moot
because the land has already been sold to a third party, Morin Ranch, and
because of certain provisions in the Uniform Commercial Real Estate
Receivership Act (“UCRERA”). Dragoons counters that we should address
this case on the merits because of exceptions to mootness and that the
UCRERA is not applicable to this case.

¶9 “Specific performance is ordinarily available to enforce
contracts for the sale of real property because land is viewed as unique.”
Woliansky v. Miller, 135 Ariz. 444, 446 (App. 1983). But a court cannot order
specific performance against a party who no longer has title to the land. See
Canton v. Monaco P’ship, 156 Ariz. 468, 470 (App. 1987) (“Because equity will

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not undertake to do a vain and useless thing, specific performance will not
be awarded against a seller in a land contract when the seller has no title to
the land he contracted to convey.”); see also Grummel v. Hollenstein, 90 Ariz.
356, 359 (1962). Further, “specific performance cannot be granted where it
is dependent upon the acts of a third person not a party to the litigation.”
Vinson v. Marton & Associates, 159 Ariz. 1, 4 (App. 1988).

¶10 Dragoons requested only specific performance in its breach of
contract suit against 1881; it did not request damages. But specific
performance cannot be granted here because the land that 1881 contracted
to sell to Dragoons in the PSA has already been sold to third-party Morin
Ranch and thus 1881 no longer has “title to the land [it] contracted to
convey.” See Canton, 156 Ariz. at 470. Dragoons’ requested relief is
unavailable.

¶11 As a result, this appeal is moot. “A decision becomes moot
for purposes of appeal where as a result of a change of circumstances before
the appellate decision, action by the reviewing court would have no effect
on the parties.” Vinson, 159 Ariz. at 4. The change of circumstances must
have “end[ed] the underlying controversy and transform[ed] the litigation
into ‘an abstract question which does not arise upon existing facts or
rights.’” Workman v. Verde Wellness Ctr., Inc., 240 Ariz. 597, 603, ¶ 17 (App.
2016) (citation omitted). This case fits squarely within the doctrine of
mootness. Even assuming we were to find error with the superior court’s
dismissal of Dragoons’ complaint, it would have no effect because the
superior court cannot award Dragoons the specific performance it seeks.

¶12 We may exercise discretion and consider an appeal that has
become moot when it presents an issue “of great public importance or one
capable of repetition yet evading review.” Cardoso v. Soldo, 230 Ariz. 614,
617, ¶ 5 (App. 2012). An issue of great public importance “usually involves
an issue that will have broad public impact beyond resolution of the specific
case.” Id. at ¶ 6. And an issue is capable of repetition yet evading review
“when, because of time constraints, an issue that is capable of recurring”
between the parties “cannot be decided by the appellate court.” Id. at ¶ 7;
KPNX Broad. v. Super. Ct., 139 Ariz. 246, 250 (1984). The legal issues here
are specific to and limited by the facts of this case and involve Dragoons’
failure to comply with closing requirements it renegotiated multiple times.
The determination of this specific case will have no broad public impact
beyond the parties, and nothing in the record suggests there are other
pending sales between the parties such that this issue is capable of recurring
between 1881 and Dragoons.

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 DRAGOONS v. 1881 PRESERVE, et al.
Decision of the Court

¶13 Because 1881 has sold the property to Morin Ranch and
therefore no longer has title to the property, specific performance—the only
relief sought—cannot be awarded. We therefore hold that Dragoons’
appeal is moot.

¶14 Dragoons requests attorneys’ fees under Section 12-341.01
and Arizona Rule of Civil Appellate Procedure (“ARCAP”) 21. 1881
requests attorneys’ fees and costs under Sections 12-341, 12-341.01, Section
8.3 of the PSA, and ARCAP 21. In our discretion, we will award 1881 its
reasonable attorneys’ fees. As the prevailing party, 1881 is also entitled to
its taxable costs on appeal upon compliance with ARCAP 21(b).

CONCLUSION

¶15 We dismiss this appeal.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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