                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


         STANLEY F. STAZENSKI and PATRICIA STAZENSKI,
               husband and wife, Plaintiffs/Appellants,

                                        v.

   J. JEFFREY COUGHLIN and HEIDI COUGHLIN, husband and wife;
J. JEFFREY COUGHLIN, PLLC, an Arizona professional limited liability
        company; BOYLE, PECHARICH, CLINE, WHITTINGTON &
STALLINGS, P.L.L.C., an Arizona professional limited liability company,
                         Defendants/Appellees.

                             No. 1 CA-CV 14-0401
                              FILED 6-25-2015


            Appeal from the Superior Court in Yavapai County
                        No. P1300CV201200199
                             P1300CV201200200
                             P1300CV201200201
                             P1300CV201200202
                               (Consolidated)
               The Honorable Patricia A. Trebesch, Judge

                                  AFFIRMED


                                   COUNSEL

Christopher Jacobson LLC, Phoenix
By Jay C. Jacobson
Counsel for Plaintiffs/Appellants
Broening Oberg Woods & Wilson PC, Phoenix
By James R. Broening, Kerry L. Beringhaus, Richard E. Chambliss, and
  Kevin R. Myer
Counsel for Defendants/Appellees Coughlins & J. Jeffrey Coughlin PLLC

Renaud Cook Drury Mesaros PA, Phoenix
By Denise J. Wachholz
Counsel for Defendant/Appellee Boyle et al.



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.


K E S S L E R, Judge:

¶1           Plaintiffs/Appellants Stanley and Patricia Stazenski
(“Stazenskis”) appeal the superior court’s grant of summary judgment in
favor of Defendants/Appellees J. Jeffrey and Heidi Coughlin (“Coughlin”),
J. Jeffrey Coughlin, PLLC (“Coughlin Firm”) (collectively “Coughlin
Defendants”), and Boyle, Pecharich, Cline, Whittington & Stallings, PLLC
(“Boyle Firm”). For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY1

¶2            In 2005, before becoming Coughlin’s clients, the Stazenskis
bought a 431-acre parcel and a 10-acre parcel, with street addresses located
on Mule Shoe Ranch Road and Iron Horse Road respectively, from the
Lindahls for $1.2 million. These contiguous parcels are accessed using Mule
Shoe Ranch Road which crosses a neighbor’s property. Stazenski v. Lindahl,
1 CA-CV 14-0001, 2015 WL 1456658, at *1, ¶¶ 2-4, n.2 (Ariz. App. Mar. 31,
2015) (mem. decision).

¶3           Several years before the Stazenskis’ 2005 purchase, Coughlin
represented the Lindahls in obtaining a quit claim deed for a grant of an
easement from the neighbor (“Quit Claim Easement”) for use of Mule Shoe
Ranch Road. The neighbor had already acknowledged the existence of a

1 We view the facts, including legitimate inferences, in the light most
favorable to the Stazenskis. See Walk v. Ring, 202 Ariz. 310, 312, ¶ 3, 44 P.3d
990, 992 (2002).


                                      2
                       STAZENSKI v. COUGHLIN
                          Decision of the Court

prescriptive easement, but the Quit Claim Easement clarified the width of
the easement. Id. at *1, ¶ 3. The Quit Claim Easement was properly
recorded and before the Stazenskis purchased the properties in 2005 the
Lindahls gave them a copy of the recorded Quit Claim Easement. Id. at *5,
¶ 19.

¶4           In February 2006, the Stazenskis hired Coughlin, who was
working at the Boyle Firm, for advice about the easement and access to the
parcels. According to the Stazenskis, Coughlin did not disclose to them that
the recorded Quit Claim Easement was defective because it allegedly was
nontransferable and fell 212 feet short of the parcels.

¶5             In 2007, without consulting Coughlin, the Stazenskis
borrowed $920,000 from Country Bank using one or both of the two parcels
as collateral and granted a deed of trust to Country Bank to secure the loan
(“Trust Deed”).2 The Stazenskis used part of the loan to buy an adjacent 13-
acre parcel from the Havens for $300,000. Like the 431-acre and 10-acre
parcels, the 13-acre parcel was also accessed using Mule Shoe Ranch Road
via the prescriptive easement. Id. at *1-2, ¶¶ 2, 4, 8. However, the Quit
Claim Easement did not apply to the 13-acre parcel. Id. at *6, ¶ 20.

¶6            The Stazenskis’ loan matured in 2009, they failed to pay the
loan off, and the bank noticed a trustee sale for the property described in




2 The first page of the Trust Deed states that the property is described in
Exhibit A to the trust. Underneath that statement, the Trust Deed states the
property is commonly known as 3050 Mule Shoe Ranch Road and gives the
tax identification number for that property, which is the identifying
information for the 431-acre parcel. Exhibit A, however, lists two parcels
(Parcel I and II) by their legal descriptions without providing street
addresses or tax identification numbers. Exhibit A describes both the 431-
acre parcel and the 10-acre parcel. Exhibit A to the Trust Deed is identical
to Exhibit A to the deed the Stazenskis received from the Lindahls when
buying the 431-acre and 10-acre parcels in 2005.




                                     3
                       STAZENSKI v. COUGHLIN
                          Decision of the Court

the Trust Deed (“Sale Notice”).3 Because the Sale Notice included both the
431-acre and 10-acre parcels, but according to the Stazenskis was not
supposed to include the 10-acre parcel, the Stazenskis hired Coughlin, who
by then had opened his own law firm, to object to Country Bank’s efforts to
sell the 10-acre parcel.

¶7            Without Coughlin’s involvement, the day before the
scheduled trustee sale, the Stazenskis entered a March 24, 2010 agreement
with Country Bank. The Bank agreed to not pursue the Stazenskis for any
deficiency on the loan if the trustee sale netted less than the balance owed
(“Deficiency Agreement”).4 The Deficiency Agreement was conditioned
upon the Stazenskis’ payment of $25,000 to Country Bank and the trustee
sale netting at least $930,000.5 The Stazenskis signed the agreement, paid
Country Bank $25,000, and the next day a third party (the “Sachs”) bought
both the 431-acre and 10-acre parcels for $930,001 at the trustee sale.

¶8         In July 2010, the Stazenskis learned that the recorded Quit
Claim Easement for the 431-acre and 10-acre parcels was not valid because




3 Like the Trust Deed, the Sale Notice stated the property for sale was 3050
Mule Shoe Ranch Road, listed the tax identification number for the 431-acre
parcel, and also incorporated an attached Exhibit A providing the legal
description. Exhibit A to the Sale Notice had the same description of Parcel
I and II as Exhibit A attached to the Trust Deed that listed the legal
descriptions for both the 431-acre and the 10-acre parcels.

4The subject line of the Deficiency Agreement referenced both the 431-acre
parcel and 10-acre parcel by their street addresses on Mule Shoe Ranch
Road and Iron Horse Road respectively. It also referenced the Sale Notice
described supra at Footnote 3.

5 By the time of the Deficiency Agreement, the Stazenskis owed
approximately $1,003,000.




                                     4
                        STAZENSKI v. COUGHLIN
                           Decision of the Court

it allegedly did not provide complete access to the two parcels and might
not have been transferable with the land to them as the new owners.6

¶9             In February 2012, the Stazenskis filed complaints against the
Lindahls, Havens, a real estate agent and her brokerage firm, as well as the
Coughlin Defendants and the Boyle Firm.7 As it relates to the Boyle Firm
and Coughlin Defendants, the Stazenskis asserted three claims: (1)
malpractice, (2) negligent misrepresentation, and (3) breach of fiduciary
duty. Each claim is premised on various alleged breaches of the standard
of care by Coughlin. Ultimately, the Stazenskis contended that those
breaches resulted in Coughlin: (1) failing to advise the Stazenskis that the
recorded Quit Claim Easement was defective thus causing them to buy the
13-acre parcel with no valid easement for access; (2) failing to advise them
to make title insurance claims on the title policy covering the 431-acre and
10-acre parcels so those claims became time-barred; and (3) abandoning the




6 It is unclear in the record whether the Stazenskis were referring to Quit
Claim Easement access to all three properties or just access to the 431-acre
and 10-acre parcels. For purposes of resolving this appeal, however, it is
inconsequential because we have previously concluded they had access to
all three parcels through the prescriptive easement. Lindahl, 2015 WL
1456658, at *1-2, ¶¶ 2, 4, 8, n.2.

7 The matters were eventually consolidated and final judgments as to all
defendants were entered at different times. The claims involving the
Lindahls and Havens concluded previously, were separately appealed and
were resolved on March 31, 2015, affirming summary judgment granted in
favor of the Lindahls and Havens on the basis that the Stazenskis had access
to all three parcels by a prescriptive easement and had marketable title to
those parcels. Lindahl, 2015 WL 1456658, at *1-2, 5, ¶¶ 4-8, 17. That appeal
became final on May 7, 2015, when the mandate issued. See Tucson Gas &
Elec. Co. v. Superior Court In & For Pima County, 9 Ariz. App. 210, 212, 450
P.2d 722, 724 (1969) (stating “the final decision of an intermediate appellate
court, when not reviewed or otherwise set aside by an appellate court of
higher authority, has the same finality as a decision of the highest court”).
After the superior court’s final judgment in this matter, a judgment on the
claims against the real estate agent and her firm was entered and has been
separately appealed and is not at issue here.




                                      5
                        STAZENSKI v. COUGHLIN
                           Decision of the Court

Stazenskis and failing to object to the inclusion of the 10-acre parcel in the
trustee sale.8

I.     Summary Judgment for Coughlin and the Boyle Firm Based on a
       Lack of Damages Because None of the Properties are Landlocked

¶10            All defendants filed a joint motion for summary judgment
(“MSJ”) arguing that the Stazenskis had actual or constructive notice of any
alleged defects in/of the recorded Quit Claim Easement, but in any event
were not damaged because all three parcels were accessible and not
landlocked, the 13-acre parcel by a prescriptive easement and the 431-acre
and 10-acre parcels by both a prescriptive easement and the recorded Quit
Claim Easement. In addition, the Boyle Firm filed a separate MSJ in which
Coughlin joined. In that separate motion, they also argued that they had
no duty to the Stazenskis in drafting the Quit Claim Easement, that the Quit
Claim Easement did not pertain to the 13-acre parcel, that none of their
alleged acts caused any damages based on the 2005 or 2007 purchases or
the dealings with Country Bank, and that the claims were barred by the
statute of limitations as to the Boyle Firm.

¶11            The Stazenskis opposed the MSJ, asserting Coughlin caused
“$300,283 in damages in April of 2007 when the Stazenskis bought the [13-
acre] parcel (which would not have occurred with proper disclosures [from]
Coughlin).” Specifically, the Stazenskis argued that because Coughlin did
not disclose that the “recorded easement” was defective, the Stazenskis
bought the 13-acre parcel and “assumed that they could use the easement
to get to this new parcel.” The Stazenskis attached a report from their
standard of care expert, containing opinions based upon Coughlin’s

8  The Stazenskis have abandoned two other alleged sources of
damages―sale of the 431-acre and 10-acre parcels to the Sachs, and lost title
insurance claim for the 13-acre parcel. In their complaint, the Stazenskis
alleged that they were damaged by the misconduct of the Boyle Firm and
the Coughlin Defendants in the sale of the 431-acre and 10-acre parcels to
the Sachs. Eventually, the Stazenskis clarified that they were not asserting
any damages against Coughlin related to the sale of the properties to the
Sachs, and the superior court entered summary judgment for Coughlin.
The Stazenskis do not appeal the court’s judgment related to that issue. In
addition, the Stazenskis alleged in their complaint that they were damaged
by Coughlin not advising them to file a claim on the title insurance policy
for the 13-acre parcel’s alleged lack of access. The Stazenskis do not make
any claim for such alleged loss in their opening brief and we have found no
evidence in the record to support such a claim.


                                      6
                        STAZENSKI v. COUGHLIN
                           Decision of the Court

failures in relation to the allegedly defective Quit Claim Easement. They
attached a report from their damages expert, stating that “without legal
easement for access” the Stazenskis would not have obtained the Country
Bank loan using their existing property as collateral nor bought the 13-acre
parcel. Their damages expert also contended that the Stazenskis incurred
an additional $4000 in damages in attorneys’ fees apparently related to the
purchase of the 13-acre parcel, although the exhibit referenced is not in the
statement of facts filed by the Stazenskis. Thus, the claimed damages were
premised on the lack of access to the parcels.

¶12            The Stazenskis asserted $150,000 in damages “caused by
Coughlin in February of 2006 for failure to advise them to make a title
claim” on the policy covering the 431-acre and 10-acre parcels. They
attached a report from their title insurance expert, who opined they “would
have had a valid claim against the title company [as to the 431-acre and 10-
acre parcels] for up to $1.2 million because the title policy specifically
insures the right of access to and from their property and, according to the
appraisal of [another expert], the value of the property without an easement
is $0.”9 Thus, the claim as to the title insurance was premised on the lack of
access as well.

¶13           In reply, the Boyle Firm and Coughlin Defendants argued that
even assuming some defect of the recorded Quit Claim Easement, the policy
did not insure the Quit Claim Easement and only insured losses based on
lack of access. They attached a report from a their own expert that opined:
(1) there was access through Iron Horse Road directly to the 10-acre parcel;
(2) there was no actual damage or loss that would trigger the policy; and (3)
even assuming the policy was triggered, the title company would have
opted to cure the defect and not made a payment to the Stazenskis.10 The
Boyle Firm also noted there was no dispute that the Quit Claim Easement
does not pertain to the 13-acre parcel.

¶14         After oral argument the superior court determined the parcels
were not landlocked and granted judgment for Coughlin and the Boyle

9The appraisal determined the market value of each of the three parcels
with and without an easement.

10The Stazenskis provided another report from their title insurance expert
stating his opinions were unchanged upon review of the defense expert
report.




                                      7
                        STAZENSKI v. COUGHLIN
                           Decision of the Court

Firm finding the Stazenskis could not make a prima facie case on any claims
based on Coughlin’s work while at the Boyle Firm due to a lack of evidence
of resulting damages.11 The court did not enter a final appealable judgment.
See Ariz. R. Civ. P. 54(b).

II.    Summary Judgment for the Coughlin Defendants Related to the
       Inclusion of the 10-Acre Parcel in the Trustee Sale

¶15             The Coughlin Defendants moved for summary judgment on
the claim dealing with the trustee’s sale arguing that the Stazenskis
voluntarily entered an agreement with Country Bank conditioned on the
sale of both the 431-acre and 10-acre parcels and benefitted from the
agreement. The Coughlin Defendants contended they could not be held
liable for acts over which Coughlin had no involvement or control.

¶16           The Stazenskis responded, arguing that there were disputed
material facts, but did not address the Coughlin Defendants’ argument that
by voluntarily entering the Deficiency Agreement without Coughlin’s
involvement the Stazenskis compromised their claim that they were
damaged by Coughlin’s alleged failure to object to the sale of the 10-acre
parcel.

¶17            The superior court determined that the Stazenskis had no
claim against the Coughlin Defendants for failing to object to the inclusion
of the 10-acre parcel in the trustee sale because the Stazenskis “of their own
volition, entered into a deficiency agreement with Country Bank to proceed
with the trustee’s sale that included both parcels.”

¶18           The court entered a final appealable Rule 54(b) judgment in
favor of the Coughlin Defendants, and the Boyle Firm. The Stazenskis filed
a timely notice of appeal. We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) section 12-2101(A)(1) (Supp. 2014).

                               DISCUSSION

¶19          The Stazenskis assert that evidence presented to the superior
court was sufficient to state a claim and survive summary judgment as to
every claim asserted against the Coughlin Defendants and the Boyle Firm.


11 The court also granted judgment for the Lindahls and Havens as to all
claims against them and partial summary judgment for the real estate
agent.



                                      8
                        STAZENSKI v. COUGHLIN
                           Decision of the Court

¶20             We review de novo whether summary judgment is warranted,
including whether genuine issues of material fact exist and whether the
superior court properly applied the law. Dreamland Villa Cmty. Club, Inc. v.
Raimey, 224 Ariz. 42, 46, ¶ 16, 226 P.3d 411, 415 (App. 2010). We will affirm
the superior court if its determination “is correct for any reason, even if that
reason was not considered” by the court. Hill v. Safford Unified Sch. Dist.,
191 Ariz. 110, 112, 952 P.2d 754, 756 (App. 1997); accord Gary Outdoor Adver.
Co. v. Sun Lodge, Inc., 133 Ariz. 240, 242, 650 P.2d 1222, 1224 (1982) (stating
“trial court will be affirmed when it reaches the correct conclusion even if
it does so for an incorrect reason”). Summary judgment “should be granted
if the facts produced in support of the claim or defense have so little
probative value, given the quantum of the evidence required, that
reasonable people could not agree with the conclusion advanced by the
proponent of the claim or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309,
802 P.2d 1000, 1008 (1990). A “scintilla” of evidence, or evidence that creates
the “slightest doubt,” is insufficient to withstand summary judgment. Id.

¶21             Each of the Stazenskis’ claims for legal malpractice,
negligent misrepresentation and breach of fiduciary duty require that the
breach of the standard of care cause resulting damages. Glaze v. Larsen, 207
Ariz. 26, 29, ¶ 15, 83 P.3d 26, 29 (2004) (stating party asserting legal
malpractice must prove defendant’s negligence caused the injury; actual
injury/damage caused by lawyer’s negligence is critical to claim of legal
malpractice); Lane Title & Trust Co. v. Brannan, 103 Ariz. 272, 278, 440 P.2d
105, 111 (1968) (stating a claim of breach of fiduciary duty requires proving
that the breach caused the loss); KB Home Tucson, Inc. v. Charter Oak Fire Ins.
Co., 236 Ariz. 326, 332-33, ¶ 30, 340 P.3d 405, 411-12 (App. 2014) (stating
elements of claim for negligent misrepresentation and reaffirming that
claim is governed by principles of law of negligence requiring damages
resulting from breach of duty). The Stazenskis make broad arguments that
sufficient evidence was presented to show genuine issues of material fact
as to breach of duty, and we assume for purposes of appeal that there were
genuine factual issues about the standard of care and any breach thereof.
The dispositive issue central to the viability of these claims, however, is
whether such breaches caused any damages to the Stazenskis.

I.     Collateral Estoppel

¶22           We allowed the parties to submit supplemental briefs
addressing the effect of Stazenski v. Lindahl, 1 CA-CV 14-0001, 2015 WL
1456658 (Ariz. App. Mar. 31, 2015) (mem. decision) on the Stazenskis’
appeal in this matter and whether collateral estoppel applies to any issues
on appeal. In their supplemental brief, the Stazenskis argue that the


                                       9
                        STAZENSKI v. COUGHLIN
                           Decision of the Court

decision in that case has no bearing on their damages related to the
purchase of the 13-acre parcel because but for Coughlin’s negligence, they
would not have bought that parcel. The Stazenskis also argue that Lindahl
does not affect their claim for damages related to the title insurance on the
431-acre and 10-acre parcels because the insurer denied their claim on the
basis of it being time-barred and the Stazenskis’ experts had opined that
they would have had a valid claim under the policy. The Coughlin
Defendants and Boyle Firm argue that the Stazenskis are collaterally
estopped from arguing that the properties are inaccessible, that they did not
receive marketable title, and that they bought the properties without notice
of title defects. The parties agree the trustee’s sale issue is not collaterally
estopped by Lindahl.

¶23             “Collateral estoppel, or issue preclusion, binds a party to a
decision on an issue litigated in a previous lawsuit if the following factors
are satisfied: (1) the issue was actually litigated in the previous proceeding,
(2) the parties had a full and fair opportunity and motive to litigate the
issue, (3) a valid and final decision on the merits was entered, (4) resolution
of the issue was essential to the decision, and (5) there is common identity
of the parties.” Campbell v. SZL Properties, Ltd., 204 Ariz. 221, 223, ¶ 9, 62
P.3d 966, 968 (App. 2003). Common identity of the parties is not necessary
if collateral estoppel is invoked “defensively,” as it is here, to prevent a
plaintiff from relitigating an issue the plaintiff previously litigated
unsuccessfully. Id. at ¶ 10.

¶24            Because these elements are satisfied, we determine the
Stazenskis are collaterally estopped from relitigating accessibility,
marketable title, and notice of title defects. Each of those issues was
conclusively resolved in Lindahl, when we held that the Stazenskis had
access to the 431-acre and 10-acre parcels through a prescriptive easement,
have access to the 13-acre parcel by that same prescriptive easement, had
marketable title to the property bought from the Lindahls and the Havens,
and had notice of the alleged title defects. Lindahl, 2015 WL 1456658 at *2,
5-6, ¶¶ 8, 17-19. Moreover, we rejected the Stazenskis’ claim that they could
not enforce their access by a prescriptive easement without joining the
neighboring landowner who owned the servient estate over which the
prescriptive easement ran, see, e.g., supra ¶¶ 3, 5. Id. at *2-3, ¶¶9, 12, n.6.
Thus, as established by Lindahl, the Stazenskis had or have access to all three
properties by the prescriptive easement and marketable title.




                                      10
                        STAZENSKI v. COUGHLIN
                           Decision of the Court

II.    Claims Related to Damages in the Form of a Lack of Access to the
       Properties / Lack of Marketable Title

       A.     Purchase of the 13-Acre Parcel / Lost Investment

¶25            The Stazenskis’ claims that they have been damaged by the
lost investment in the 13-acre parcel in 2007 hinge on Coughlin’s purported
failures to tell the Stazenskis about the allegedly defective nature of the
recorded Quit Claim Easement. All three claims based on this damage are
barred by collateral estoppel.

¶26             In support of that argument, the Stazenskis stated in response
to the motions for summary judgment that “[i]n light of Coughlin not
disclosing . . . before March of 2007 . . . that the recorded [Quit Claim]
[E]asement to the [431-acre and 10-acre parcels] was not transferable and
fell short of the property . . . the Stazenskis proceeded to buy [the 13-acre
parcel] . . . assum[ing] that they could use the [Quit Claim] [E]asement to
get to this new parcel.” Mr. Stazenski’s affidavit was attached to the
statement of facts wherein he avowed “[w]e would not have purchased this
real estate if we knew the properties had no valid easement for access.” The
reference to “this real estate” related to all three parcels. The Stazenskis’
damages expert opined that the damages were $300,283 based on the
assumption that the Stazenskis would not have purchased the 13-acre
parcel “had [the Stazenskis] known that a legal easement did not exist, or if
the lack of easement was not cured, for the [431-acre] and the [10-acre
parcels].” This expert also referred to $4000 in attorneys’ fees, apparently
in relation to the purchase of the 13-acre parcel which would not have been
incurred if the Stazenskis had known the parcel was landlocked. On
appeal, the Stazenskis characterize that $4000 as upkeep expenses for
maintaining the 13-acre parcel.

¶27           The superior court did not err in granting summary judgment
against the Stazenskis on these claimed damages because the Stazenskis
had access to all three properties through the prescriptive easement.
Lindahl, 2015 WL 1456658, at *2, ¶ 8. Each of the claims against the Coughlin
Defendants and the Boyle Firm require a showing of damages to the
Stazenskis caused by the alleged improper acts and omissions by these
defendants. See supra ¶ 21.

¶28          Because the Stazenskis have access to the 13-acre parcel, they
can show no resulting damages, meaning their claims on this issue fail as a
matter of law.




                                     11
                        STAZENSKI v. COUGHLIN
                           Decision of the Court

¶29            Beginning in their motion for reconsideration, the Stazenskis
began articulating their argument slightly differently―that they would not
have bought the 13-acre parcel but for Coughlin’s failures to tell them that
access to the 13-acre parcel was based on a prescriptive easement.
Likewise on appeal, they maintain they “did not bargain for a prescriptive
easement [and] do not want to litigate it,” and “would not have purchased
the 13 acres if Coughlin had disclosed to them that the 13 acres (or the two
other properties purchased) had no valid recorded easement or that access
was based wholly or partially on a prescriptive easement.” This argument
fails for several reasons.

¶30           First, a party may not assert new facts in a motion for
reconsideration after a court has granted summary judgment unless the
new facts constitute newly discovered evidence. Tilley v. Delci, 220 Ariz.
233, 238, ¶ 17, 204 P.3d 1082, 1087 (App. 2009). Similarly, we will not
consider on appeal new arguments made in a motion for reconsideration.
Evans Withycombe, Inc. v. Western Innovations, Inc., 215 Ariz. 237, 240, ¶ 15,
159 P.3d 547, 550 (App. 2006). In response to the superior court’s holding
on summary judgment that the Stazenskis have access to the 13-acre parcel
by the prescriptive easement, the Stazenskis cannot assert new facts by
declaration and argue that they would only have bought the 13-acre parcel
with access by the recorded Quit Claim Easement and not a prescriptive
easement.

¶31           Second, even under their revised theory that they would not
have bought the 13-acre parcel unless they had access through a recorded
easement, no reasonable factfinder could determine that Coughlin caused
damage of a lost investment. The Stazenskis’ experts based their damage
opinions on claims of lack of access to the 13-acre parcel, not lack of access
by a recorded easement. See supra ¶¶ 11-12, 26. Access by a prescriptive
easement is still access by any other name. Nor can we infer that the lack
of a recorded easement to the 13-acre parcel affected their title. Our decision
in Lindahl forecloses a determination that they suffered damage by buying
an inaccessible/unmarketable property or that they would have to litigate
the prescriptive easement with the owners of the servient estate. In Lindahl
we affirmed the superior court’s determination that the owner of the 13-
acre parcel has and had vested, perfected prescriptive easement rights in
South Mule Shoe Ranch Road for ingress and egress and marketable title.
2015 WL 1456658, at *2, 5, ¶¶ 8, 17. Thus, even assuming that Coughlin’s
alleged failures caused the Stazenskis to buy the 13-acre parcel, without
proof of the damage of an inaccessible/unmarketable property, the
Stazenskis cannot prove their claims against the Coughlin Defendants or
Boyle Firm related to the purchase.


                                      12
                       STAZENSKI v. COUGHLIN
                          Decision of the Court

¶32           Finally, in Lindahl, we determined that the Stazenskis had
constructive knowledge of any defects in the Quit Claim Easement when
they purchased the first two parcels. 2015 WL 1456658, at *5, ¶ 19. “[T]he
Stazenskis purchased the 431 and 10-acre parcels [in 2005] with full
knowledge of the alleged Quit Claim Deed defect.” Id. Thus, their claim
that they would not have purchased the 13-acre parcel had they known the
recorded Quit Claim Easement was defective and that there was only a
prescriptive easement cannot withstand summary judgment because they
had the same knowledge when they purchased the 13-acre parcel in 2007
notwithstanding any of Coughlin’s alleged disclosure failures.12

¶33           The superior court was correct that the Stazenskis cannot
carry their burden to show the Coughlin Defendants or the Boyle Firm
caused the Stazenskis’ damage and summary judgment was warranted on
the claims related to the purchase of the 13-acre parcel.

      B.     Lost Claim for Title Insurance Benefits for the 431-acre and
             10-acre Parcels

¶34            The Stazenskis assert that because Coughlin did not advise
them to make a title insurance claim on their policy insuring access to the
431-acre and 10-acre parcels before ceasing to own the properties, they lost
between $150,000 and $1.2 million in title insurance benefits. To support
this claim, the Stazenskis’ title insurance expert opined that the Stazenskis
“would have had a valid claim against the title company” on the policy
insuring the 431-acre and 10-acre parcels because the “title policy
specifically insures the right of access to and from their property” and “the
value of the property without an easement is $0.”

¶35           This claim for damages also fails because the expert’s opinion
was based on the assumption that the properties had no easement for
access. See supra ¶ 12. In Lindahl, we held that the Stazenskis had a
prescriptive easement for ingress and egress to these properties, thus
foreclosing a claim that there was no easement for access to the properties.
2015 WL 1456658, at *1-2, ¶¶ 4, 8. There is no evidence in the record that
the Stazenskis would have recovered any monetary benefit under any title


12In Lindahl we determined that the recorded Quit Claim Easement “did
not, on its face, have anything to do with the 13-acre parcel.” 2015 WL
1456658, at *6, ¶ 20. Therefore, even assuming Coughlin failed to tell them
about the allegedly defective Quit Claim Easement or that there was only a
prescriptive easement, such failures cannot be the cause of the Stazenskis’
purchase of the 13-acre parcel.


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                        STAZENSKI v. COUGHLIN
                           Decision of the Court

insurance policy when they had vested, perfected prescriptive easement
access.

¶36           This conclusion is further supported by the terms of the policy
itself. The policy expressly limited the coverage to loss caused by lack of
access to the properties or unmarketable title. In Lindahl, we held the
Stazenskis had access to the properties through the prescriptive easement
and had marketable title to the 431-acre and 10-acre parcels.13 Id. at *1-2, 5,
¶¶ 4, 8, 17.

¶37            Even assuming Coughlin failed to advise the Stazenskis to file
a title insurance claim, they cannot prove damages caused by such failure
when they had both access and marketable title and the policy coverage
was for lack of access or lack of marketable title.

III.   Claims Related to Damages Premised Upon Trustee Sale

¶38           The Stazenskis’ final argument is that the superior court erred
by granting summary judgment on the claims related to the trustee sale of
the 10-acre parcel. The Stazenskis contend the court improperly found that
they voluntarily entered the Deficiency Agreement with Country Bank to
proceed with the trustee sale that included both parcels. The Stazenskis
maintain that the court could not have made this determination had it
considered Mr. Stazenski’s affidavit filed in opposition to Coughlin’s MSJ.
The Stazenskis direct us to the part of the affidavit that states when they
signed the Deficiency Agreement, it was Mr. Stazenski’s understanding the
sale would be rescheduled to a later date so the Stazenskis had time to sell
to the Sachs.

¶39           It is unclear what, if any, significance the fact that the
Stazenskis thought the sale would be rescheduled by Country Bank has
upon the question of whether Coughlin caused them damages in the loss of
the 10-acre parcel by not objecting to the trustee sale.

¶40         In any event, the Stazenskis never asserted that but for
Coughlin’s alleged failures to enjoin the sale prior to the Deficiency

13We note that although the defense expert opined that the Stazenskis had
access by Iron Horse Road to the 10-acre parcel and the Stazenskis’ title
insurance expert averred that did not change his opinion on the title claim
as to the 431-acre and 10-acre parcels, this does not preclude summary
judgment on the title claim. We determined that the Stazenskis had access
to the 431-acre and 10-acre parcels insured by the title company through
Mule Shoe Ranch Road. Lindahl, 2015 WL 1456658 at *2, ¶ 8.


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                       STAZENSKI v. COUGHLIN
                          Decision of the Court

Agreement they would not have entered into the Deficiency Agreement.
The Stazenskis also never asserted that Coughlin was involved or was
supposed to be involved in the Deficiency Agreement or in the alleged
rescheduling of the sale date. Nor have they asserted that as a matter of
law the Deficiency Agreement somehow prevented Country Bank’s ability
to sell the 10-acre parcel at the trustee sale or that they would have
recovered the value of the property due to an alleged wrongful foreclosure.
In short, the record supports that the Stazenskis voluntarily entered the
Deficiency Agreement without Coughlin’s involvement, and the Stazenskis
do not challenge the superior court’s legal determination about the effect of
the Deficiency Agreement or that it compromised their claim against
Coughlin for failing to object to the sale.

¶41          No reasonable factfinder could determine that but for
Coughlin’s alleged failure to object, either before or after the Deficiency
Agreement, the Stazenskis would not have lost the 10-acre parcel at the sale
or would have recovered the value of the property due to an alleged
wrongful foreclosure.

                              CONCLUSION

¶42          For the reasons stated above, we affirm the summary
judgments for the Coughlin Defendants and the Boyle Firm.14 We will
award the Coughlin Defendants and the Boyle Firm their taxable costs on
appeal upon timely compliance with Arizona Rule of Civil Appellate
Procedure 21.




                                  :ama




14Given the analysis and resolution of the issues above, we do not address
the other arguments made by the parties.


                                     15
