CHOPKO v. FIDELITY NATIONAL

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IHOR CHOPKO, Plaintiff/Appellant,

v.

FIDELITY NATIONAL TITLE INSURANCE COMPANY, et al.,
Defendants/Appellees.

No. 1 CA-CV 25-0431
FILED 01-27-2026

Appeal from the Superior Court in Maricopa County
No. CV2024-011288, CV2024-022404
(CONSOLIDATED)
The Honorable Susanna C. Pineda, Judge

AFFIRMED

COUNSEL

Ihor Chopko, Phoenix
Plaintiff/Appellant

Fidelity National Law Group, Phoenix
By Brian J. Cosper
Counsel for Defendants/Appellees
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MEMORANDUM DECISION

Vice Chief Judge David D. Weinzweig delivered the decision of the Court,
in which Presiding Judge Michael J. Brown and Judge Veronika Fabian
joined.

W E I N Z W E I G, Vice Chief Judge:

¶1 Ihor Chopko appeals from the dismissal of his complaint, an
attorney fee award and a garnishment judgment. We affirm the dismissal
and fee award but lack appellate jurisdiction over the garnishment.

FACTS AND PROCEDURAL BACKGROUND

¶2 Chopko sold his Phoenix home in October 2023. According
to Chopko, the buyer quickly backed out of the deal after an appraiser
found the house lacked proper permits and violated the zoning setback
requirement.

¶3 Chopko believed he had title insurance coverage from
Fidelity National Title Insurance (“Fidelity”). He filed a claim but heard
nothing. After weeks of being told over the phone his claim was being
reviewed, he visited Fidelity’s office and demanded to speak with a
manager. He argued with the employees and police were called. Police
escorted Chopko from the building, but he was not arrested or charged.

¶4 Chopko sued Fidelity for breach of contract, fraudulent
misrepresentation, negligence and bad faith. He also sued Fidelity for
malicious prosecution because Fidelity personnel called the police on him.
Chopko attached the title insurance policy he claimed was breached, but
the policy was issued by Security Title Agency and Ticor Title Insurance
Company, not Fidelity, and it insured Chopko’s mortgage company against
defects, liens and encumbrances. It also expressly excluded coverage for
losses arising from zoning laws. For his part, Chopko pointed to a
“Fidelity” stamp on his warranty deed and deed of trust.

¶5 Fidelity moved to dismiss under Rule 12(b)(6). See Ariz. R.
Civ. P. 12(b)(6). The superior court allowed Chopko to amend his
complaint three times before ultimately dismissing Chopko’s lawsuit. It
dismissed the malicious prosecution claim after his second amended
complaint because Chopko was not arrested, detained or charged. It

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dismissed his third amended complaint holding that Chopko alleged no
contract between himself and Fidelity. As the prevailing party in this
contract dispute, the court granted Fidelity $10,332 in attorney fees and
$316.56 in costs.

JURISDICTION AND WAIVER

¶6 We must determine our jurisdiction over this appeal.
Bridgeman v. Certa, 251 Ariz. 471, 473, ¶ 5 (App. 2021). The legislature limits
and defines our jurisdiction. Brumett v. MGA Home Healthcare, L.L.C., 240
Ariz. 420, 426, ¶ 4 (App. 2016). We may review final judgments from the
superior court, A.R.S. § 12-2101(A)(1), but not pending issues, Barassi v.
Matison, 130 Ariz. 418, 422 (1981). We will dismiss for lack of jurisdiction
when a litigant attempts to appeal while a motion is pending in the trial
court or when there is no final judgment. Id.

¶7 We lack jurisdiction over Chopko’s garnishment arguments
because no final garnishment judgment existed when Chopko filed his
amended notice of appeal. Id. Garnishment proceedings are original,
independent actions, separate from their underlying lawsuit, and can be
appealed separately. Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz. 204, 207,
¶ 13 (App. 2014). Chopko did not file a second amended notice of appeal
after entry of the garnishment judgment, so we lack jurisdiction over these
arguments, A.R.S. §§ 12-2101(A)(1), -120.12, but still consider his remaining
claims.

DISCUSSION

¶8 Chopko appeals the superior court’s dismissal of his
complaint and award of attorney fees to Fidelity. We address each
argument in turn.

I. Failure to State a Claim.

¶9 We review de novo whether the court properly dismissed a
complaint under Rule 12(b)(6). Conklin v. Medtronic, Inc., 245 Ariz. 501, 504,
¶ 7 (2018). “Arizona follows a notice pleading standard, the purpose of
which is to give the opponent fair notice of the nature and basis of the claim
and indicate generally the type of litigation involved.” Cullen v. Auto-
Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6 (2008) (citation modified).

¶10 A motion to dismiss should be granted only if the law bars
relief under any version of the facts plaintiffs could prove. Conklin, 245
Ariz. at 504, ¶ 7. Our review is limited to Chopko’s complaints. See Cullen,

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218 Ariz. at 419, ¶ 7. We assume well-pleaded facts are true and draw
reasonable inferences from those facts. Coleman v. City of Mesa, 230 Ariz.
352, 356, ¶ 9 (2012). We do not, however, “accept as true allegations
consisting of conclusions of law, inferences or deductions that are not
necessarily implied by well-pleaded facts, unreasonable inferences or
unsupported conclusions from such facts, or legal conclusions alleged as
facts.” Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4 (App. 2005).

A. Breach of Contract.

¶11 Chopko argues the title insurance policy between Ticor,
Security Title and his mortgage company created a contract between him
and Fidelity. To assert breach of contract, the plaintiff must allege a
contract, breach and damages. Graham v. Asbury, 112 Ariz. 184, 185 (1975).

¶12 The superior court properly dismissed this claim because
Chopko was not a party to the title insurance policy he claims was breached
and he does not argue he was a third-party beneficiary of that contract.
What is more, Chopko argued his title was not marketable because of a
zoning violation, but title deficiencies based on zoning violations are
expressly excluded under the title insurance policy.

¶13 For the first time on appeal, Chopko also contends that
Fidelity destroyed his title insurance policy, but a party waives issues not
preserved in the trial court. Sobol v. Marsh, 212 Ariz. 301, 303, ¶ 7 (App.
2006).

II. Malicious Prosecution.

¶14 Chopko next argues he stated a valid claim for malicious
prosecution. The “elements of malicious prosecution are (1) a criminal
prosecution, (2) that terminates in favor of plaintiff, (3) with defendants as
prosecutors, (4) actuated by malice, (5) without probable cause, and (6)
causing damages.” Slade v. City of Phoenix, 112 Ariz. 298, 300 (1975).

¶15 The superior court properly dismissed this claim. Chopko
alleged no criminal proceeding. The police merely escorted him from
Fidelity’s office—his complaint does not allege he was cited, arrested or
charged. These facts cannot support a malicious prosecution claim. See
Coleman, 230 Ariz. at 356, ¶ 9.

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III. Attorney Fees.

¶16 Chopko challenges the superior court’s award of attorney fees
under A.R.S. § 12-341.01, asserting the award does not further the statute’s
purpose of “mitigating the burden of litigation.” But the statute says a fee
award “should be made to mitigate the burden of the expense of litigation
to establish a just claim or a just defense.” A.R.S. § 12-341.01(B) (emphasis
added).

¶17 Attorney fees are available to the prevailing party in a
contested action arising from contract under A.R.S. § 12-341.01(A). “Even
when a contract is alleged by a plaintiff and the defendant successfully
proves that there was no contract, the action is considered to have arisen
out of contract for purposes of A.R.S. § 12-341.01.” Rudinksy v. Harris, 231
Ariz. 95, 101, ¶ 27 (App. 2012).

¶18 A fee award is reviewed for an abuse of discretion. Orfaly v.
Tucson Symphony Soc’y, 209 Ariz. 260, 265, ¶ 18 (App. 2004). The court
abuses its discretion when its reasons are unsupported, untenable, incorrect
or deny justice. Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350,
¶ 17 (App. 2006).

¶19 The superior court did not abuse its discretion because the
record contains reasonable evidence to support the fee award. Chopko
sued for breach of a title insurance policy and lost. He was not a party to
the policy, the policy excluded the damages he requested and he received
no relief from the court. Cf. Chaurasia v. Gen. Motors Corp., 212 Ariz. 18, 29,
¶ 43 (App. 2006) (“The legislature intended that the risk of paying the
opposing party’s attorneys’ fees would encourage more careful analysis
prior to filing suit.”).

IV. Arizona Rules of Civil Appellate Procedure.

¶20 We pause to admonish Chopko about serious deficiencies in
his briefing. Chopko’s opening and reply briefs violate Arizona Rule of
Civil Appellate Procedure 13(a)(7), which requires that arguments contain
citations to legal authority and the portions of the record on which the
appellant relies.

¶21 Our review reveals that sixteen of Chopko’s thirty legal
citations contain substantial defects, including unsupported premises,
fabricated quotations or fictitious cases. Add to that, neither brief offers
citations to the record.

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¶22 Compliance with this court’s rules is not optional. The
integrity of our appellate process depends on accurate and honest
advocacy. Going forward, the failure to provide accurate legal authority
and proper record citations may result in sanctions. See ARCAP 13(a)(7).

CONCLUSION

¶23 We affirm. Fidelity requests its attorney fees and costs on
appeal under § 12-341.01 and ARCAP 21. We grant Fidelity’s request upon
compliance with ARCAP 21.

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

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