                              IN THE

   SUPREME COURT OF THE STATE OF ARIZONA
   THE WEITZ COMPANY L.L.C., AN IOWA LIMITED LIABILITY COMPANY,
                        Plaintiff/Appellee,

                                v.

   NICHOLAS HETH, A SINGLE MAN; BARRY SCHWARTZ, A MARRIED MAN;
  JEFFREY TEMPLIN, A MARRIED MAN; KEN PERLMUTTER, A MARRIED MAN;
  SHELLY MALKIN, A MARRIED WOMAN; JODY STORM GALE AND CHRISTIE
   BAUER GALE, HUSBAND AND WIFE; JEFF TEMPLIN AND TERRI TEMPLIN,
     HUSBAND AND WIFE; GREGG TEMPLIN AND SUZANNE W. TEMPLIN,
     HUSBAND AND WIFE; MICHAEL J. HAASCH AND LAURA S. HAASCH,
  HUSBAND AND WIFE; JEFFREY M. LEZAK AND CAROL E. LEZAK, HUSBAND
AND WIFE; RICHARD H. FOX, A MARRIED MAN; BRAD BLOCK, AN UNMARRIED
   MAN; GREGORIO MEZA AYON, A MARRIED MAN; SIGLIFREDO LOPEZ, A
MARRIED MAN; EDWARD C. RAMOS AND TAMARA C. RAMOS, HUSBAND AND
    WIFE; SCOTT ROSE AND NICOLLE ROSE, HUSBAND AND WIFE; SCOTT
   MATTHEW ROSE AND NICOLLE CLAUDINE ROSE FAMILY TRUST DATED
     AUGUST 28, 2008; DARRYL GOLDSTEIN, AN UNMARRIED MAN; KEN
ADELSON; CARY E. FRUMES, AN UNMARRIED MAN; ARI SILVASTI, A MARRIED
 MAN; BEN YORK III, AN UNMARRIED MAN; CHICAGO SUMMIT, LLC; FRANC
     W. BRODAR AND JENNIFER A. BRODAR, HUSBAND AND WIFE; ROSS
 KERIEVSKY, AN UNMARRIED MAN; MICHAEL SCHWARTZ, A MARRIED MAN;
  WILLIAM SCHWARTZ, A MARRIED MAN; MICHAEL CASTILLO, A MARRIED
  MAN; H. DENNIS PETERSON AND CAROL A. PETERSON, TRUSTEES OF THE
  PETERSON LIVING TRUST DATED MARCH 6, 2006; PATRICK ESTFAN AND
 SALLY ESTFAN, HUSBAND AND WIFE; TINA ROSPOND, A SINGLE WOMAN; L.
KENNETH BROOKS, AN UNMARRIED MAN; PATRICK H. WALSH AND MELISSA
      R. WALSH, HUSBAND AND WIFE; AFARIN RADJAEI-BOKHARAI, AN
 UNMARRIED PERSON; MICHAEL DAVEY, A MARRIED MAN; JEFFREY A. HART,
  AN UNMARRIED MAN; VINCENZO COSTA, AN UNMARRIED MAN; JOSHUA
     POPE, AN UNMARRIED MAN; CARL L. FAIRCLOTH AND PATRICIA S.
 FAIRCLOTH, HUSBAND AND WIFE; ART GARTENBERG, AN UNMARRIED MAN;
  MARK F. RUDINSKY AND CHRISTINA J. RUDINSKY, HUSBAND AND WIFE;
 PITRE PROPERTIES LIMITED PARTNERSHIP, AN ARIZONA LIMITED LIABILITY
 PARTNERSHIP; ON-CALL SOLUTIONS, LLC, AN ARIZONA LIMITED LIABILITY
     COMPANY; MICHAEL L. MCCARTNEY, TRUSTEE OF THE MICHAEL L.
MCCARTNEY REVOCABLE LIVING TRUST DATED DECEMBER 27, 2005; DAVID
  HOCHBERG AND ELYSE HOCHBERG, HUSBAND AND WIFE; JORDAN GREEN
AND STEPHANIE GREEN, HUSBAND AND WIFE; LAWRENCE R. KUSHNER AND
  EILEEN S. KUSHNER, HUSBAND AND WIFE; DEBRA J. GOODWIN, A SINGLE
          THE WEITZ COMPANY v. NICHOLAS HETH et al.
                     OPINION OF THE COURT


   WOMAN; LYNDA L. GIBSON, AN UNMARRIED WOMAN; TING AND LING
  DEVELOPMENT GROUP, LLC, AN ARIZONA LIMITED LIABILITY COMPANY;
 FIRST NATIONAL BANK OF ARIZONA, A NATIONAL BANKING ASSOCIATION;
   ING BANK, FSB, A FEDERAL SAVINGS BANK; MORTGAGE ELECTRONIC
 REGISTRATION SYSTEMS, INC., A DELAWARE CORPORATION; WASHINGTON
MUTUAL BANK, F.A., A FEDERAL SAVINGS BANK; WELLS FARGO BANK, N.A.,
A NATIONAL ASSOCIATION; COLE TAYLOR BANK, A FOREIGN CORPORATION;
BANK OF AMERICA, N.A., A NATIONAL BANKING ASSOCIATION; M&I BANK,
FSB, A FEDERAL SAVINGS BANK; NATIONAL CITY MORTGAGE, A DIVISION OF
 NATIONAL CITY BANK, A NATIONAL BANKING ASSOCIATION; ABN AMRO
MORTGAGE GROUP, INC., A DELAWARE CORPORATION; HARRIS BANK, N.A.,
  A NATIONAL BANKING ASSOCIATION; CITIMORTGAGE, INC., A NEW YORK
     CORPORATION; PERL MORTGAGE, INC., AN ILLINOIS CORPORATION;
    CHARLES SCHWAB BANK, N.A., A NATIONAL BANKING ASSOCIATION;
   COUNTRYWIDE BANK, FSB, A FEDERAL SAVINGS BANK; FIRST HORIZON
     HOME LOANS, A DIVISION OF FIRST TENNESSEE BANK, A NATIONAL
 BANKING ASSOCIATION; PREMIER FINANCIAL SERVICES, INC., AN ARIZONA
                           CORPORATION,
                        Defendants/Appellants.

                           No. CV-13-0378-PR
                          Filed August 26, 2014

          Appeal from the Superior Court in Maricopa County
                    The Honorable John A. Buttrick
                         No. CV2008-028378
                   REVERSED AND REMANDED

             Opinion of the Court of Appeals, Division One
                233 Ariz. 442, 314 P.3d 569 (App. 2013)
                              VACATED

COUNSEL:

Michael J. Holden (argued), Barry A. Willits, Holden Willits PLC, Phoenix;
and Jonathan Sternberg, Jonathan Sternberg, Attorney, P.C., Kansas City,
MO, for The Weitz Company, L.L.C.

Charles W. Wirken (argued), Scott A. Malm, Gust Rosenfeld P.L.C.,
Phoenix, for Nicholas Heth, et al.

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           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT



Michael R. Scheurich, Dickinson Wright/Mariscal Weeks, Phoenix, for
Amicus Curiae Land Title Association of Arizona

John J. Egbert, Jennings, Strouss & Salmon, P.L.C., Phoenix, for Amici
Curiae BMO Harris Bank and Arizona Bankers Association

James L. Csontos, Jennings, Haug & Cunningham, LLP, Phoenix, for Amici
Curiae Arizona Builders’ Alliance

Gaye L. Gould, Sharon B. Shively, Matthew B. Meaker, James W.
Armstrong, Sacks Tierney P.A., for Amici Curiae American Subcontractors
Association and American Subcontractors Association of Arizona

JUSTICE TIMMER authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER, JUSTICE BERCH, JUSTICE BRUTINEL, and
JUDGE KELLY joined.

JUSTICE TIMMER, opinion of the Court:

¶1           Arizona Revised Statutes § 33-992(A) gives mechanics’ liens

priority over liens recorded after construction begins on real property. We

are asked to decide whether that statute precludes assignment by equitable

subrogation of a lien that attached before construction began on the project

at issue. We hold that it does not. Additionally, although a third party

generally must discharge the entire lien obligation to qualify for equitable




 Chief Justice Scott Bales has recused himself from this case. Pursuant to
Article 6, Section 3 of the Arizona Constitution, the Honorable Virginia C.
Kelly, Judge of the Court of Appeals, Division Two, was designated to sit
in this matter.

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           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT


subrogation, when a single mortgage burdens multiple parcels, a third

party may be entitled to equitable subrogation when that party has paid a

pro rata amount of the obligation and obtained a full release of the parcel

at issue from the mortgage.

                              I. BACKGROUND

¶2            We view the evidence and its reasonable inferences in the

light most favorable to Appellants as the parties against whom partial

summary judgment was granted. See Andrews v. Blake, 205 Ariz. 236, 240

¶ 12, 69 P.3d 7, 11 (2003).

¶3            First National Bank of Arizona loaned approximately $62

million over time to The Summit at Copper Square, LLC to construct a high-

rise commercial and condominium project in Phoenix.           First National

secured its initial loan of $44 million with a deed of trust against the

property in April 2005; eight months later it increased that loan by

approximately $8 million, recording a modification to its deed of trust. First

National recorded a second deed of trust in February 2007 to secure

approximately $10 million in additional loaned funds.         First National

agreed with Summit to release condominium units from both deeds of trust

upon payment of release prices set forth in the parties’ loan agreements as

third parties purchased completed units. Our record does not contain the

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              THE WEITZ COMPANY v. NICHOLAS HETH et al.
                         OPINION OF THE COURT


loan agreements, and nothing reflects how the release prices would be

calculated.

¶4              The Weitz Company, L.L.C. was the general contractor for the

project and began construction in November 2005. For nearly two years,

Summit timely paid Weitz, which in turn paid its subcontractors and

suppliers. As the project neared completion, however, Summit failed to

pay Weitz approximately $4 million.

¶5              Beginning in September 2007, before the project was finished,

Summit sold ninety-one completed condominium units to buyers who

either financed their purchases or paid cash. Some of the purchase money

for these units was applied to the construction loan, resulting in First

National releasing these units from both its deeds of trust. Deeds of trust

securing the owners’ purchase money loans were then recorded against the

condominium units. The lenders required their deeds of trust to be in first-

lien position as a condition for funding. Once the units were sold, they were

treated as separate parcels of real estate. A.R.S. § 33-1204(A).

¶6              In May 2008, after Summit had sold eighty-five of the ninety-

one units at issue, Weitz recorded a mechanics’ lien against the project. Six

months later, Weitz sued to foreclose its lien against Summit, the unit

owners, and their lenders.

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           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT


¶7           The owners and lenders (“Owners and Lenders”) contested

the foreclosure and moved for partial summary judgment. They asserted

that because they had paid the portions of the construction loan allocated

to their units, they were equitably subrogated to First National’s April 2005

deed of trust and therefore had priority over Weitz’s mechanics’ lien.1

Weitz filed a cross-motion for partial summary judgment, arguing that

A.R.S. § 33-992(A) precludes equitable subrogation or, alternatively, that

the Owners and Lenders were not eligible to invoke the doctrine because

they did not fully discharge Summit’s obligation to First National.

¶8           The trial court agreed with Weitz’s alternative argument. The

court then ruled that, because Weitz indisputably commenced work on the

project before any units were sold, A.R.S. § 33-992(A) gave Weitz’s

mechanics’ lien priority. The parties subsequently allocated percentages of

Weitz’s lien among the sold units, and the court entered judgment

foreclosing Weitz’s lien against those units. Additionally, because Summit




1     Weitz conceded in the trial court that First National’s April 2005
deed of trust was superior to Weitz’s mechanics’ lien. But neither Weitz
nor the Owners and Lenders addressed whether the December 2005
modification to the deed of trust had priority over Weitz’s lien, and we do
not address that issue.
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           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT


failed to pay its remaining obligation, First National’s successor-in-interest

foreclosed on the unsold remainder of the project.

¶9            The court of appeals agreed that Weitz’s lien had priority, but

for a different reason. It held that § 33-992(A) precludes application of

equitable subrogation to give the Owners and Lenders lien priority over

Weitz’s lien. Weitz Co. v. Heth, 233 Ariz. 442, 446–47 ¶¶ 12–16, 314 P.3d 569,

573–74 (App. 2013).

¶10           We granted review because the interplay between § 33-992(A)

and application of the equitable subrogation doctrine presents a legal issue

of statewide importance.     We have jurisdiction pursuant to Article 6,

Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

                               II. DISCUSSION

                                     A.

¶11           We review the trial court’s grant of partial summary

judgment de novo. See Andrews, 205 Ariz. at 240 ¶ 12, 69 P.3d at 11 (2003).

                                     B.

¶12           Arizona applies “equitable subrogation” as set forth in

Restatement (Third) of Property: Mortgages § 7.6(a) (1997) (“Restatement”):

       One who fully performs an obligation of another, secured by
       a mortgage, becomes by subrogation the owner of the
       obligation and the mortgage to the extent necessary to

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            THE WEITZ COMPANY v. NICHOLAS HETH et al.
                       OPINION OF THE COURT


       prevent unjust enrichment. Even though the performance
       would otherwise discharge the obligation and the mortgage,
       they are preserved and the mortgage retains its priority in the
       hands of the subrogee.

See Sourcecorp, Inc. v. Norcutt, 229 Ariz. 270, 273 ¶ 12, 274 P.3d 1204, 1207

(2012) (adopting the Restatement approach).       Under this doctrine, for

example, a junior lienholder who fully satisfies a debt secured by a superior

mortgage on real property may be equitably subrogated to that mortgage

to the extent necessary to prevent an intervening lienholder from receiving

an unearned windfall afforded by an advancement in lien priority.2 See id.

at 275–76 ¶¶ 26–27, 274 P.3d at 1209–10; Restatement § 7.6 cmt. a. If

equitable subrogation is permitted, the junior lienholder, now the subrogee,

is entitled to obtain and record a written assignment of the superior

lienholder’s rights to place others on notice of the subrogation. Restatement

§ 7.6 cmt. a.

¶13             This case presents our first opportunity to address the

interplay between equitable subrogation and the priority granted to

mechanics’ liens by § 33-992(A), which provides, in relevant part, as

follows:




2       Throughout this opinion, we use the terms “mortgage,” “deed of
trust,” and “lien” interchangeably.
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           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT


       The liens provided for in this article . . . are preferred to all
       liens, mortgages or other encumbrances upon the property
       attaching subsequent to the time the labor was commenced or
       the materials were commenced to be furnished except any
       mortgage or deed of trust that is given as security for a loan
       made by a construction lender . . . if the mortgage or deed of
       trust is recorded within ten days after labor was commenced
       or the materials were commenced to be furnished.

Until this case, our court of appeals has consistently acknowledged the

viability of equitable subrogation in the mechanics’ lien context. See Cont’l

Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC, 227 Ariz. 382,

385 ¶ 9, 258 P.3d 200, 203 (App. 2011); Lamb Excavation, Inc. v. Chase

Manhattan Mortg. Corp., 208 Ariz. 478, 480 ¶ 6, 95 P.3d 542, 544 (App. 2004);

Nw. Fed. Sav. & Loan v. Tiffany Constr. Co., 158 Ariz. 100, 104–05, 761 P.2d

174, 178–79 (App. 1988); Peterman-Donnelly Eng’rs & Contractors Corp. v.

First Nat’l Bank of Ariz., 2 Ariz. App. 321, 325–26, 408 P.2d 841, 845–46 (1965).

¶14           The court of appeals in this case did not address Northwest

Federal Savings & Loan, and either distinguished its other decisions or

rejected them as contrary to § 33-992(A). Weitz, 233 Ariz. at 446–47 ¶¶ 13–

16, 314 P.3d at 573–74. Relying substantially on the Nevada Supreme

Court’s decision in Fontainebleau Las Vegas Holdings, LLC v. A1 Concrete

Cutting & Demolition, LLC, 289 P.3d 1199 (Nev. 2012), which addressed a

statute similar to § 33-992(A), the court of appeals held that the statute


                                       9
           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT


precludes equitable subrogation because subrogation would grant lien

priority to an encumbrance recorded after laborers and materialmen had

begun work on the property. Weitz, 233 Ariz. at 448–49 ¶¶ 21–24, 314 P.3d

at 575–76. We disagree with this reasoning for several reasons.

¶15           First, it misapprehends how equitable subrogation operates.

When equitable subrogation occurs, the superior lien and attendant

obligation are not discharged but are instead assigned by operation of law

to the one who paid the obligation. Restatement § 7.6 cmt. a; see also United

States v. Munsey Trust Co., 332 U.S. 234, 242 (1947) (“One who rests on

subrogation stands in the place of one whose claim he has paid, as if the

payment giving rise to the subrogation had not been made.”); Sourcecorp,

229 Ariz. at 272 ¶ 5, 274 P.3d at 1206 (defining “equitable subrogation” as

“the substitution of another person in the place of a creditor, so that the

person in whose favor it is exercised succeeds to the rights of the creditor

in relation to the debt” (quoting Mosher v. Conway, 45 Ariz. 463, 468, 46 P.2d

110, 112 (1935))). The subrogee is in the same position as if the superior

lienholder had expressly assigned the superior lien to the subrogee. See

Sourcecorp, 229 Ariz. at 275 ¶ 21, 274 P.3d at 1209; Restatement § 7.6 cmt. a.

Because an equitably subrogated lien “attaches” when the superior lien was

recorded, § 33-992(A) does not require that an intervening mechanics’ lien

                                     10
           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT


be given priority. Cf. Restatement § 7.6 cmt. f, illus. 30 (recognizing that one

who discharges the debt of a lienholder with priority over a mechanics’ lien

can be equitably subrogated to the superior lien even when applicable law

provides that mechanics’ liens have priority from the time work on the

contract commenced).

¶16           Second, nothing in § 33-992(A) suggests that the legislature

intended to preclude equitable subrogation in the mechanics’ lien context.

The statute’s purpose is to protect the rights of laborers and materialmen

who enhance the value of property. Collins v. Stockwell, 137 Ariz. 416, 418,

671 P.2d 394, 396 (1983). Equitable subrogation does not prejudice those

rights. When a lien that is superior to a mechanics’ lien is assigned to

another through equitable subrogation, the mechanics’ lien remains in the

same position it occupied before subrogation. See Sourcecorp, 229 Ariz. at

276 ¶ 26, 274 P.3d at 1210 (noting that intervening lienholders remain in the

same position after subrogation as before); Restatement § 7.6 cmt. e

(providing that an intervening lienholder’s priority position “is simply

unchanged” through equitable subrogation).

¶17           Third, permitting equitable subrogation of a lien that is

superior to a mechanics’ lien is consistent with the legislature’s treatment

of junior lienholders’ interests in foreclosure actions.       Section 33-723

                                      11
           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT


provides that a junior lienholder “shall be entitled to an assignment of all

the [superior lienholder’s] interest” by paying that person or entity the

amount secured by the superior mortgages or deeds of trust together with

interest and costs.    Because the statute makes no exception for an

intervening mechanics’ lien, § 33-723 authorizes a junior lienholder to

assume a superior lien position over any mechanics’ lien by discharging the

superior lien. We have no reason to conclude that the legislature intended

to preclude assignment of a superior lien by equitable subrogation in the

mechanics’ lien context while permitting an assignment by statutory

subrogation in a foreclosure action.

¶18           We hold that § 33-992(A) does not preclude equitable

subrogation of a lien that is superior to a mechanics’ lien.

                                       C.

¶19           Weitz alternatively argues, and the trial court agreed, that the

Owners and Lenders cannot be equitably subrogated to First National’s

April 2005 deed of trust because they did not fully discharge Summit’s

obligation to First National, and Arizona does not permit partial equitable

subrogation. The Owners and Lenders counter that because they paid

Summit’s obligation as allocated to the sold condominium units and First

National released those units from its deeds of trust, they have discharged

                                       12
           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT


their portion of the lien in full, and therefore partial satisfaction of the

construction loan does not preclude equitable subrogation.

¶20           Equitable subrogation is generally permitted only when a

person fully discharges a debt secured by a mortgage. See Sourcecorp, 229

Ariz. at 272 ¶ 5, 274 P.3d at 1206. “Partial subrogation to a mortgage is not

permitted,” because it “would have the effect of dividing the security

between the original obligee and the subrogee, imposing unexpected

burdens and potential complexities of division of the security and

marshaling upon the original mortgagee.” Restatement § 7.6(a) cmt. a; see

Dietrich Indus. v. United States, 988 F.2d 568, 572 (5th Cir. 1993) (reasoning

that full discharge of debt is required to prevent prejudice to “the senior

lienholder’s attempt to collect the entire indebtedness secured by the senior

lien” (citations omitted)); Byers v. McGuire Props., Inc., 679 S.E.2d 1, 8 (Ga.

2009) (same); Providence Inst. for Sav. v. Sims, 441 S.W.2d 516, 519 (Tex. 1969)

(to same effect).

¶21           We agree with the Owners and Lenders, however, that a

prospective subrogee is required to discharge only the portion of an

obligation that is secured by the property at issue. The complexities and

equities attendant to dividing security between the original obligee and the

subrogee do not exist when the original obligee has released its lien against

                                      13
              THE WEITZ COMPANY v. NICHOLAS HETH et al.
                         OPINION OF THE COURT


the property. Cf. Dietrich Indus., 988 F.2d at 572–73 (deciding that a real

estate purchaser could be equitably subrogated to a senior lien even though

the purchaser partially paid the obligation because the senior lienholder

released its lien and therefore would not suffer prejudice from

subrogation); Byers, 679 S.E.2d at 8 (concluding that a purchase money

lender’s partial payment of a construction loan secured by a single

mortgage on multiple parcels in a housing subdivision did not preclude

equitable subrogation because the construction lender released the parcel

at issue from its lien and would not suffer prejudice from the subrogation);

73 Am. Jur. 2d Subrogation § 25 (updated May 2014) (noting that the rule

prohibiting partial subrogation “does not apply where the reason for it does

not exist as where there is no possibility that the creditor could be . . .

prejudiced”).     And permitting equitable subrogation when a party

discharges only part of an obligation secured by a single mortgage on

multiple properties but obtains a release of the lien on the property at issue

coincides with the Restatement’s expansive view of equitable subrogation.

See Sourcecorp, 229 Ariz. at 273 ¶ 10, 274 P.3d at 1207. Any inequities in such

cases are appropriately considered when deciding whether equitable

subrogation is needed to prevent unjust enrichment to an intervening

lienholder.

                                      14
           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT


¶22           We conclude that equitable subrogation of a mortgage is

prohibited when it would divide security between the original obligee and

a payor who discharges part of the obligation. But when the obligation is

secured by a single mortgage on multiple properties and the obligee

releases the property at issue from the mortgage lien in return for discharge

of the entire obligation allocated to that property, equitable subrogation is

permitted. Our holding is consistent with cases applying subrogation in

the guarantor/creditor context. See, e.g., W. Coach Corp. v. Rexrode, 130 Ariz.

93, 97, 634 P.2d 20, 24 (App. 1981) (concluding that the rule disallowing

subrogation of a guarantor to a creditor’s rights unless full payment of debt

is made is inapplicable to subrogation claims that would not impair the

creditor’s rights). Because First National released the sold units from its

deeds of trust and ceased looking to those properties to satisfy Summit’s

remaining obligation, equitable subrogation is available.

                                      D.

¶23           Weitz also argues that the court should not permit equitable

subrogation because doing so would prejudice Weitz’s interests.            See

Sourcecorp, 229 Ariz. at 275 ¶ 25, 274 P.3d at 1209 (holding that equitable

subrogation is permitted only if it will not materially prejudice the

intervening lienholders’ interests). Weitz contends it would be prejudiced

                                      15
           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT


because it completed construction only after First National and Summit

promised payment from the condominium unit sales, and the Owners and

Lenders failed to timely assert their equitable subrogation rights, thereby

lulling Weitz into thinking it had first-lien priority while it completed

construction.

¶24             Weitz failed to preserve these arguments for our review. It

raised the former argument for the first time in its response to the Owners’

and Lenders’ second motion for reconsideration of the partial summary

judgment ruling. The trial court did not permit a reply or oral argument

before denying the motion, and the Lenders did not have an opportunity to

address this argument or the supporting evidence. See Best Choice Fund,

LLC v. Low & Childers, P.C., 228 Ariz. 502, 508 ¶ 17 n.3, 269 P.3d 678, 684 n.3

(App. 2011) (not considering an issue raised “for the first time in a motion

for reconsideration if the opposing party is deprived of an opportunity to

respond with applicable evidence and arguments.” (citation omitted)).

Weitz asserted the latter argument for the first time before this Court and

has therefore waived it for purposes of our review. See Estate of DeSela v.

Prescott Unified Sch. Dist. No. 1, 226 Ariz. 387, 389 ¶ 8, 249 P.3d 767, 769

(2011). Neither the trial court nor the court of appeals addressed these



                                      16
           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT


arguments, and we decline to do so in the first instance. Weitz may present

these arguments to the trial court on remand.

                                      E.

¶25           Finally, Weitz argues that it would not receive an unearned

windfall by having first-lien priority because it built the condominium units

and should be paid for its work. The “windfall” sought to be avoided by

equitable subrogation, however, does not relate to a lienholder’s

entitlement to payment of the outstanding debt. Rather, the “windfall”

addresses the equity of advancing a lienholder’s lien priority after a third

party pays off a superior obligation. See Restatement § 7.6 cmt. a (“If there

were no subrogation, . . . junior interests would be promoted in priority,

giving them an unwarranted and unjust windfall.”).

¶26           That Weitz is owed money for completing the condominium

units does not mean it is entitled to a promotion in lien priority. Cf.

Sourcecorp, 229 Ariz. at 275 ¶¶ 23–24, 274 P.3d at 1209 (stating that junior

lienholder would receive a windfall by being promoted in priority unless

homebuyers were equitably subrogated to the superior mortgage they paid

off). But see Ex parte Lawson, 6 So. 3d 7, 15–16 (Ala. 2008) (holding that even

if Restatement § 7.6 applies, purchase-money lenders could not subrogate

to a construction loan because the seller would reap the benefit of a

                                      17
           THE WEITZ COMPANY v. NICHOLAS HETH et al.
                      OPINION OF THE COURT


subcontractor’s work without paying for it). If Weitz’s argument were

correct, equitable subrogation would never apply as junior lienholders are

always entitled to payment.       Because equitable subrogation is not

precluded in the mechanics’ lien context, we reject a bright-line rule that

homebuyers and their lenders can never be equitably subrogated to a

construction lien that occupies a superior position to a mechanics’ lien.

Instead, whether equitable subrogation is warranted should hinge on the

unique facts of each case.

                             III. CONCLUSION

¶27           Section 33-992(A) does not preclude equitable subrogation

that results in the subrogee, through assignment by operation of law,

obtaining lien priority over a mechanics’ lien. Accordingly, we hold that

when a single mortgage is recorded against multiple parcels, a third party

is not precluded from attaining equitable subrogation rights when it pays

the pro rata amount of the superior obligation and obtains a full release of

the parcel at issue from the mortgage lien. We therefore vacate the court of

appeals’ opinion and reverse the trial court’s partial summary judgment.

We remand to the trial court to decide whether equitable subrogation is

appropriate in this case. The court should consider, among other things,



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                      OPINION OF THE COURT


whether equitable subrogation is needed to prevent Weitz from becoming

unjustly enriched by a promotion in lien priority.




                                    19
