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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


               THOMAS A. D. WHEELER, Plaintiff/Appellant,

                                        v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, Defendant/Appellee.

                             No. 1 CA-CV 18-0693
                               FILED 9-17-2019


           Appeal from the Superior Court in Maricopa County
                          No. CV2016-097052
               The Honorable Janice K. Crawford, Judge

                                  AFFIRMED


                                   COUNSEL

Thomas A. D. Wheeler, Mesa
Plaintiff/Appellant

Gust Rosenfeld PLC, Phoenix
By Scott A. Malm, Mina O’Boyle, Charles W. Wirken
Counsel for Defendant/Appellee
                    WHEELER V. DEUTSCHE BANK
                        Decision of the Court



                     MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Vice Chief Judge Kent E. Cattani
joined.


J O N E S, Judge:

¶1          Thomas Wheeler appeals the decision of the superior court
granting summary judgment in favor of Deutsche Bank National Trust
Company.1 For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            In June 2000, Wheeler entered into a written contract with
John Chubbuck to purchase real property in Mesa (the Property). Neither
the contract, nor any other document transferring ownership or otherwise
memorializing the sale, was recorded. Six years later, Chubbuck borrowed
$81,000 from the Bank and secured the loan through a deed of trust
executed in favor of the Bank, identifying the Property as collateral, and
duly recorded.

¶3           In 2014, Wheeler filed a complaint against Chubbuck seeking
declaratory relief, quiet title to the Property, and an accounting of his
performance under the contract.2 After the September 2016 trial, the trial
court found Wheeler failed to prove he had any ownership interest in the
Property and dismissed the matter with prejudice.

¶4          Shortly thereafter, Wheeler filed a complaint against the
Bank, again seeking quiet title of the Property. In 2018, the trial court
entered summary judgment for the Bank and awarded the Bank its


1      Within this decision, we refer to both Deutsche Bank National Trust
Company, and its predecessor-in-interest, Downey Savings and Loan, as
“the Bank.”

2      In 2015, after the Bank initiated foreclosure proceedings, Chubbuck
presented a quit claim deed to the Property to Wheeler, which was recorded
in October.



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                     WHEELER V. DEUTSCHE BANK
                         Decision of the Court

attorneys’ fees and costs. Wheeler timely appealed, and we have
jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-
120.21(A)(1)3 and -2101(A)(1).

                               DISCUSSION

I.     Summary Judgment

¶5              Wheeler argues the trial court erred in granting summary
judgment for the Bank. We review a grant of summary judgment de novo
and will affirm if, after viewing the evidence and all reasonable inferences
in the light most favorable to the party against whom judgment was
entered, “there is no genuine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a);
Tarron v. Bowen Mach. & Fabricating, Inc., 225 Ariz. 147, 151, ¶ 16 (2010).
Although the court indicated in its minute entry order that it was applying
the doctrine of judicial estoppel, 4 its reasoning suggests it found Wheeler
was collaterally estopped from making a claim of quiet title against the Bank.
We may affirm the judgment on any basis supported by the record. Leflet
v. Redwood Fire & Cas. Ins., 226 Ariz. 297, 300, ¶ 12 (App. 2011) (citing
Solimeno v. Yonan, 224 Ariz. 74, 82 (App. 2010)).

¶6            Collateral estoppel applies when:

       the issue or fact to be litigated was actually litigated in a
       previous suit, a final judgment was entered, and the party
       against whom the doctrine is to be invoked had a full
       opportunity to litigate the matter and actually did litigate it,
       provided such issue or fact was essential to the prior
       judgment.

Bridgestone/Firestone N. Am. Tire, L.L.C. v. Naranjo, 206 Ariz. 447, 452 ¶ 19
(App. 2003) (quoting FDIC v. Adams, 187 Ariz. 585, 593 (App. 1996), and

3     Absent material changes from the relevant date, we cite the current
version of rules and statutes.

4       Judicial estoppel prevents a party from presenting an inconsistent
position in subsequent litigation if the parties are the same, the question
involved is the same, and the party asserting the inconsistent position was
successful in the prior proceeding. State v. Towery, 186 Ariz. 168, 182 (1996)
(citing Standage Ventures, Inc. v. State, 114 Ariz. 480, 483-84 (1977)). Because
Wheeler was not successful in asserting any position in the prior
proceeding, we agree judicial estoppel does not apply.


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                     WHEELER V. DEUTSCHE BANK
                         Decision of the Court

citing Restatement (Second) of Judgments § 27 (1982)). “When those
elements are present, Arizona permits a new defendant in a subsequent
case to use the doctrine defensively to preclude relitigation of an issue.” Id.
(citing Standage, 114 Ariz. at 484, and Campbell v. SZL Props., Ltd., 204 Ariz.
221, 223, ¶ 10 (App. 2003)).

¶7           The record here indeed indicates Wheeler fully litigated title
of the Property in his suit against Chubbuck, and a final judgment was
entered indicating Wheeler had no ownership interest in the Property.
Contrary to Wheeler’s claims otherwise, the court in that case specifically
found Wheeler had not “presented persuasive evidence” to support his
claim to quiet title such that he was “not entitled to any relief under his
Complaint” before dismissing the matter with prejudice. Thus, the court
considered and rejected the merits of Wheeler’s claim to title. And because
Wheeler had no interest in the Property then, much less a recorded interest,
he cannot claim an interest now, particularly where the Bank had secured
and recorded a deed of trust on the Property nearly a decade earlier.

¶8           The doctrine of collateral estoppel supports the trial court’s
entry of judgment against Wheeler. Accordingly, we find no error.

II.    Attorneys’ Fees

¶9             Wheeler also argues the trial court erred in awarding the Bank
its attorneys’ fees under A.R.S. § 12-341.01(A) (authorizing an award of fees
to the prevailing party “[i]n any contested matter arising out of a contract”),
because he and the Bank were not parties to the same contract with
Chubbuck. The application of A.R.S. § 12-341.01(A) is a question of
statutory interpretation that we review de novo. Chaurasia v. Gen. Motors
Corp., 212 Ariz. 18, 26, ¶ 24 (App. 2006) (citing Hampton v. Glendale Union
High Sch. Dist., 172 Ariz. 431, 433 (App. 1992)).

¶10            This Court has previously held that an award of attorneys’
fees is permissible under A.R.S. § 12-341.01(A) “in a contest between
competing security interests in the same collateral.” Wollenberg v. Phx.
Leasing Inc., 182 Ariz. 4, 11 (App. 1994) (citing Ariz. Farmers Prod. Credit
Ass’n v. Northside Hay Mill & Trading Co., 153 Ariz. 333, 336 (App. 1987), and
Ariz. Ammonia of Tucson, Inc. v. Mission Bank, 152 Ariz. 361, 364 (App. 1986)).
Because this is a contest between competing security interests in the same




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                   WHEELER V. DEUTSCHE BANK
                       Decision of the Court

collateral, attorneys’ fees were permissible. Id. We therefore affirm the
award of fees to the Bank.5

                             CONCLUSION

¶11          The trial court’s orders are affirmed.

¶12          The Bank requests an award of attorneys’ fees incurred on
appeal pursuant to A.R.S. § 12-341.01. In our discretion, we decline this
request. However, as the prevailing party, the Bank is awarded its costs
incurred on appeal upon compliance with ARCAP 21(b). See A.R.S. § 12-
341.




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




5      Wheeler also argues the trial court erred in awarding fees under
A.R.S. § 33-806. Because the record reflects fees were awarded only under
A.R.S. § 12-341.01, and properly so, we do not address that argument.


                                       5
