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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                    ROSE HERNANDEZ, Plaintiff/Appellee,

                                         v.

       MARCELINO S. HERNANDEZ, et al., Defendants/Appellants.

                              No. 1 CA-CV 16-0412
                                FILED 6-6-2017


            Appeal from the Superior Court in Maricopa County
                           No. CV2011-020949
                 The Honorable Douglas Gerlach, Judge

                                   AFFIRMED


                                    COUNSEL

Rose Hernandez, Carson City, NV
Plaintiff/Appellee

Rivera Law Group, PC, Phoenix
By Sal J. Rivera, Marcos A. Tapia
Counsel for Defendants/Appellants



                        MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia K. Norris joined.
                  HERNANDEZ v. HERNANDEZ et al.
                       Decision of the Court

C A M P B E L L, Judge:

¶1            Marcelino S. Hernandez challenges the trial court’s ruling
declaring Rose Hernandez to be the successful party below and denying his
application for attorney fees. We affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             We recite the facts relevant to this appeal only. Additional
background may be found in this court’s first decision in this case,
Hernandez v. Hernandez, 1 CA-CV 14-0457, 2015 WL 7777072 (Ariz. App.
Dec. 3, 2015) (mem. decision).

¶3            Marcelino and Rose are brother and sister. Marcelino made
several loans to Rose over a span of many years, none of which were
reduced to writing and some of which were secured by a series of quitclaim
deeds to Rose’s Phoenix house. The siblings agreed Marcelino would sign
all deeds back over to Rose when she repaid the loans. Rose filed a quiet
title action against Marcelino in 2011, alleging that in breach of their
agreement Marcelino refused to sign over a quitclaim deed she executed in
December 2002. Rose also alleged that Marcelino kept rent payments he
collected from tenants living in Rose’s Phoenix house. Marcelino
counterclaimed, seeking amounts allegedly outstanding on loans made
between 2002 and October 2006 and for reimbursement of several mortgage
payments he claimed he made on Rose’s California and Phoenix houses.

¶4           The trial court granted summary judgment in favor of Rose
on her quiet title and equitable lien claims. The remaining claims and
counterclaims were tried to the court, found Rose had satisfied all loans
made before February 11, 2005. The court also found that Rose’s rent claim
and the remainder of Marcelino’s counterclaim were time-barred. The
court awarded Rose $28,331.00 in attorney fees on her quiet title claim
pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-1103(B).

¶5             Marcelino appealed from that judgment, and we reversed in
part, finding that Marcelino’s counterclaims were not fully time-barred.
Hernandez, 2015 WL 7777072, at *2, ¶ 11. We directed the trial court to enter
judgment for Marcelino in the amount of $17,111.90. Id. We also reversed
the trial court’s denial of Marcelino’s attorney fees request and ordered the
trial court to consider on remand “whether a fee award in favor of
Marcelino is appropriate.” Id. at *3, ¶ 13.

¶6           After our mandate issued, Marcelino moved to vacate the
earlier judgment and renewed his attorney fees request. The trial court


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                   HERNANDEZ v. HERNANDEZ et al.
                        Decision of the Court

denied Marcelino’s request and entered a modified judgment that included
the $17,111.90 award to Marcelino. The court found that Rose was the
successful party, see A.R.S. § 12-341.01(A), but did not award additional
attorney fees beyond the previous $28,331.00 awarded to Rose on her quiet
title claim.

¶7            Marcelino timely appealed the modified judgment. We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

                               DISCUSSION

¶8            “In any contested action arising out of a contract, express or
implied, the court may award the successful party reasonable attorney
fees.” A.R.S. § 12-341.01(A). The trial court has broad discretion to
determine who is the successful party for purposes of awarding attorney
fees. Lee v. ING Inv. Mgmt., LLC, 240 Ariz. 158, 161, ¶ 8 (App. 2016)
(appellate court will not disturb trial court’s award of attorney fees if there
is any reasonable basis for it).

¶9             Marcelino first contends he was the successful party because
he prevailed in part on his counterclaim and because our decision in his
first appeal rendered Rose the unsuccessful party on her quiet title claim.
While Marcelino’s result improved, he only recovered approximately half
the amount he originally sought. Moreover, Marcelino did not challenge
the court’s ruling on Rose’s quiet title claim or the resulting fee award in his
first appeal. Hernandez, 2015 WL 7777072, at *3 n.2, ¶ 13. He cannot,
therefore, challenge those rulings for the first time in this appeal. PLM Tax
Certificate Program 1991-92, L.P. v. Schweikert, 216 Ariz. 47, 50, ¶ 16 (App.
2007) (appellate court will not consider issues in second appeal that
appellant should have raised in first appeal); see also Bogard v. Cannon &
Wendt Elec. Co., Inc., 221 Ariz. 325, 332, ¶ 24 (App. 2009) (appellant’s failure
to challenge a ruling in his first appeal meant that the ruling was affirmed
by implication and could not be challenged in second appeal).

¶10           Marcelino next contends he was the successful party because
he prevailed on nine of Rose’s ten claims and obtained monetary relief
while Rose did not. We disagree. The trial court is not required to count the
number of successful claims and defenses to determine the prevailing party
for the purpose of awarding attorney fees. Additionally, money judgments
are relevant but not dispositive in a successful party analysis. See Ocean W.
Contractors, Inc. v. Halec Const. Co., Inc., 123 Ariz. 470, 473 (1979) (party
awarded money judgment is not always the successful or prevailing party).
The trial court may consider Rose’s success in clearing title to her home,
which was a significant issue that carried no potential for a money


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                   HERNANDEZ v. HERNANDEZ et al.
                        Decision of the Court

judgment. See Schwartz v. Farmers Ins. Co. of Ariz., 166 Ariz. 33, 38-39 (App.
1990) (affirming fee award to party that prevailed on “a major issue to be
decided in [the] litigation” that did not include a monetary award).

¶11             Finally, Marcelino cites Ayala v. Olaiz, 161 Ariz. 129 (App.
1989), for the proposition that the “net winner” in a multi-claim case is the
successful party. That case is not controlling under these circumstances:
The trial court did not abuse its discretion in not finding Marcelino to be
the “net winner” when Rose cleared title to her home and limited
Marcelino’s recovery to approximately half of the amount he claimed. See,
e.g., U.S. Insulation, Inc. v. Hilro Constr. Co., 146 Ariz. 250, 259 (App. 1985)
(under A.R.S. § 12-341.01 successful party is the “ultimate prevailing party”
in the litigation).

                               CONCLUSION

¶12           We affirm the modified judgment and award Rose her costs
incurred in this appeal contingent upon her compliance with Arizona Rule
of Civil Appellate Procedure 21.




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




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