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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


        DAVID W. NIELSON, Plaintiff/Counter-Defendant/Appellant,

                                         v.

  MERLE ROGER STARR, et al., Defendants/Counter-Claimants/Appellees.

                              No. 1 CA-CV 17-0145
                                FILED 6-12-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2014-070001
                 The Honorable Dawn M. Bergin, Judge

                                   AFFIRMED


                                APPEARANCES

David W. Nielson, Peoria
Plaintiff/Counter-Defendant/Appellant

Jackson White, PC, Mesa
By Roger R. Foote
Counsel for Defendants/Counter-Claimants/Appellees



                        MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Maria Elena Cruz joined.
                          NIELSON v. STARR, et al.
                            Decision of the Court

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

¶1           David Nielson (“Son”) appeals from a quiet title judgment in
favor of Merle Roger Starr (“Personal Representative”), as personal
representative of the estate of Evelyn Nielson (“the Estate”). We affirm.

             FACTS AND PROCEDURAL BACKGROUND 1

¶2             In 1994, Lawrence Nielson (“Father”) and Evelyn Nielson
(“Mother”) (collectively, “Parents”) purchased a house in Peoria (the
“Property”) for $94,000. Parents obtained a Veteran’s Administration loan
to fund the purchase as evidenced by a promissory note and secured by a
deed of trust on the Property. Son and his family have lived in the house
since then. Parents never lived there. Father died in 2005, leaving Mother
with sole title. For several years thereafter, Son tried to convince Mother to
transfer legal title to him, but she refused. Mother died intestate in 2014.
Son concedes that Parents never conveyed the Property to him in a will or
trust document.

¶3              In 2014, Son sued the Estate to quiet title to the Property based
on an alleged oral contract between him and Parents. Son claimed that
Parents promised to transfer title to him if he made the down payment and
monthly mortgage payments. The Estate answered and counterclaimed to
quiet title in its favor, arguing that Son never fulfilled the bargain.

¶4            The superior court conducted a three-day bench trial and
ruled in the Estate’s favor:

       Based on the evidence presented, including the Court’s
       assessment of the credibility of the witnesses, and the
       arguments of counsel, the Court makes the following findings
       and orders.
                                      ...




1      Son’s opening brief does not include “appropriate references to the
record” under ARCAP 13(a)(5). As such, we disregard his statement of
facts and rely on our review of the record. State Farm Mut. Auto. Ins. Co. v.
Arrington, 192 Ariz. 255, 257 n.1 (App. 1998).




                                       2
                         NIELSON v. STARR, et al.
                           Decision of the Court

       Defendant Merle Roger Starr proved by a preponderance of
       the evidence that the rightful title holder of the [Property] is
       the Estate of Evelyn Lorrayne Nielson.

The court awarded attorney’s fees and costs to the Estate under A.R.S. § 12-
1103(B). Son timely appealed. We have jurisdiction pursuant to A.R.S. §
12-2101(A)(1). 2

                               DISCUSSION

A.     General Principles.

¶5             On appeal from a bench trial, we review the court’s legal
conclusions de novo and defer to its findings of fact unless clearly erroneous.
Town of Marana v. Pima County, 230 Ariz. 142, 152, ¶ 46 (App. 2012). We
consider the evidence in the light most favorable to upholding the court’s
ruling. Id. We affirm the court’s judgment if correct for any reason. FL
Receivables Tr. 2002-A v. Ariz. Mills, L.L.C., 230 Ariz. 160, 166, ¶ 24 (App.
2012). Because neither party requested findings of fact and conclusions of
law, we “must presume that the trial court found every fact necessary to
support the judgment [and] [t]he judgment must be sustained if any
reasonable construction of the evidence justifies it.” Berryhill v. Moore, 180
Ariz. 77, 82 (App. 1994).

B.     Quiet Title.

¶6             A quiet title action seeks a judicial determination of adverse
claims in order to clear the title of a disputed property. Cook v. Town of
Pinetop-Lakeside, 232 Ariz. 173, 176, ¶ 13 (App. 2013). A person having or
claiming an interest in real property may bring an action to quiet title
against any person who claims an adverse interest in the property. A.R.S.
§ 12-1101(A). 3



2     The Estate also prevailed in this proceeding on its third-party
complaint to quiet title against Son’s wife, Maria Nielson. Maria did not
appeal.

3      We question but do not reach whether this lawsuit presents a proper
quiet title action. Son brought this action to secure title in the Property
under an alleged oral contract, but “[a] plaintiff pursuing a quiet title action
must allege he holds title to the property.” Steinberger v. McVey ex rel. County
of Maricopa, 234 Ariz. 125, 140, ¶ 65 (App. 2014) (emphasis added).


                                       3
                         NIELSON v. STARR, et al.
                           Decision of the Court

¶7            Son had the burden in the superior court to establish his title.
Allison v. State, 101 Ariz. 418, 421 (1966). We conclude the record here
contains reasonable evidence to support the court’s finding. The evidence
in the record supports an oral agreement between Son and Parents. The
court received evidence that Parents agreed to transfer title to Son if he
made the down payment and paid all monthly mortgage payments.

¶8           A reasonable construction of the evidence also supports that
Son did not fulfill his end of the oral agreement. The record indicates that
Son did not pay the full down payment. Son claimed he paid
approximately $21,000 toward the down payment, but the evidence only
supports his payment of $1,000 in earnest money.

¶9            The record also includes reasonable evidence that Son failed
to make all monthly mortgage payments. Although Son claimed he “made
most of the payments on the property,” including all payments through
2005, the court heard contrary testimony from the Personal Representative
and Ron Nielson, Son’s half-brother.

¶10            Son testified he made all mortgage payments from 1994 to
1996 through his Father; he wrote monthly checks to Father and Father then
paid the mortgage company. But Son’s half-brother testified that Father
would be upset “from time to time” because Son had written him bad
checks “to pay for the house payment,” which bounced, and Father “had to
make up the money for the house payment.” After 1996, Son said he made
payments directly to the mortgage company. But here again, the half-
brother testified that Son often used funds from Mother’s checking account
to make monthly mortgage payments between 2007 and late 2013.

¶11         The Personal Representative corroborated that testimony. He
provided evidence that Mother paid $96,397.60 to Son between January
2007 and September 2013, which far exceeded the loan payments for that
period.

¶12            Son offers several arguments on appeal. We are not
persuaded. He first argues that Father and Mother waived or deemed
immaterial his “occasional failures to make payments” because they did not
“oust” him from the house. That argument confuses two distinct concepts:
Parents’ refusal to evict their child and his family from house and home
doesn’t prove that Parents mutually assented to modify their pre-existing
oral agreement with Son. See Demasse v. ITT Corp., 194 Ariz. 500, 509-10, ¶
30 (1999) (a contract “must be performed according to its terms and . . . any




                                      4
                         NIELSON v. STARR, et al.
                           Decision of the Court

modification of those terms must be made by mutual assent and for
consideration”).

¶13          Son also urges an estoppel theory to preclude the Personal
Representative from contesting title. Son points to an application submitted
on Father’s behalf in 2005 to the Arizona Long Term Care System. But the
record indicates that Son provided inaccurate information in the
application upon which he now relies, including that he made the down
payment and all monthly mortgage payments.

¶14            And last, Son argues the superior court erred by applying the
statute of frauds because Son demonstrated partial performance. See Owens
v. M.E. Schepp Ltd. P’ship, 218 Ariz. 222, 226, ¶¶ 15-16 (2008) (a written
agreement is not required where one party has undertaken acts in reliance
on and consistent with the agreement). But the court did not bar Son’s
action based on the statute of frauds; instead, it ruled that Son was not
entitled to quiet title.4

                               CONCLUSION

¶15          For the foregoing reasons, we affirm the superior court’s
judgment.    In our exercise of discretion, we grant the Personal
Representative’s request for an award of attorney’s fees and costs on appeal
pursuant to A.R.S. §§ 12-341.01, -341, upon compliance with ARCAP 21.




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




4       Son further argues he holds equitable title to the Property. See A.R.S.
§ 33-721 et seq. Son did not raise this argument in the superior court. We
thus decline to address it here. Airfreight Express Ltd. v. Evergreen Air Ctr.,
Inc., 215 Ariz. 103, 109-10, ¶ 17 (App. 2007).


                                         5
