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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
JON C. CLARK,
Plaintiff/Appellee,
v.
JENNIFER A. CLARK,
Defendant/Appellant.
No. 1 CA-CV 20-0156
FILED 12-8-2020
Appeal from the Superior Court in Maricopa County
No. CV2018-004234
The Honorable Sherry K. Stephens, Judge
AFFIRMED
COUNSEL
Cheri L. McCracken Attorney at Law, Phoenix
By Cheri L. McCracken
Counsel for Plaintiff/Appellee
Williams Mestaz, LLP, Phoenix
By Daryl M. Williams
Co-Counsel for Defendant/Appellant
Ahwatukee Legal Office, PC, Phoenix
By David L. Abney
Co-Counsel for Defendant/Appellant
CLARK v. CLARK
Decision of the Court
MEMORANDUM DECISION
Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.
M O R S E, Judge:
¶1 Jennifer Clark ("Wife") appeals from the superior court's order
granting quiet title to real property in favor of Jon Clark ("Husband"). For
the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 We view the facts after a bench trial in the light most favorable
to upholding the court's rulings. Bennett v. Baxter Group, Inc., 223 Ariz. 414,
417, ¶ 2 (App. 2010).
¶3 Husband and Wife married in 2008, separated in 2010, and
divorced in October 2017. When they separated, Husband and Wife
entered a separation agreement which provided for a "complete division of
their tangible personal property," and that after-acquired property would
be separate property. In December 2012, Husband purchased a house as
his sole and separate property in Whitman ("Property"). Wife signed a
disclaimer deed for the Property and Husband paid the mortgage,
insurance, and other expenses on the Property. The 2017 divorce decree
incorporated the separation agreement but did not specifically address the
Property.
¶4 In December 2017, Wife recorded a quitclaim deed
("Quitclaim Deed"). She claimed that Husband executed the Quitclaim
Deed in 2013 to grant her ownership of the Property. In 2018, Husband
filed a complaint seeking quiet title to the Property and other relief.
¶5 After a bench trial, the superior court found "by clear and
convincing evidence that the Quitclaim Deed . . . is an invalid document,
contained a material misstatement or false claim, and was forged." The
court awarded Husband quiet title to the Property, $40,000 in damages,
$59,199.71 in attorney fees, and $1,636 in costs. Wife timely appealed, and
we have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).
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CLARK v. CLARK
Decision of the Court
DISCUSSION
I. Validity of the Quitclaim Deed.
¶6 Wife argues Husband failed to meet the clear-and-convincing
standard for proving a forgery or a violation of A.R.S. § 33-420.1
¶7 We accept the superior court's factual findings unless they are
clearly erroneous. Castro v. Ballesteros-Suarez, 222 Ariz. 48, 51, ¶ 11 (App.
2009). If substantial evidence supports a finding of fact, that finding is not
clearly erroneous, even if there may be substantial conflicting evidence. Id.
at 51-52, ¶ 11. We do not reweigh contradictory evidence or substitute our
judgment for that of the superior court. Great W. Bank v. LJC Dev., LLC, 238
Ariz. 470, 478, ¶ 22 (App. 2015).
¶8 Under A.R.S. § 33-420(A), an owner of real property can
collect damages for the recording of a forged, groundless, or otherwise
invalid document purporting to claim an interest in the real property. See
Sitton v. Deutsche Bank Nat'l Trust Co., 233 Ariz. 215, 219, ¶¶ 16-17 (App.
2013). A person commits forgery if he "[f]alsely makes, completes or alters
a written instrument" with intent to defraud. A.R.S. § 13-2002(1). A
recorded document is groundless or invalid when it has no arguable basis
or is not supported by credible evidence. SWC Baseline & Crismon Inv'rs,
LLC v. Augusta Ranch Ltd. P'ship, 228 Ariz. 271, 281, ¶ 31 (App. 2011).
¶9 The record contains sufficient evidence to support the
superior court's finding that the Quitclaim Deed was invalid. That evidence
includes Husband's testimony that he did not sign the Quitclaim Deed, and
testimony by a handwriting expert that the signature on the Quitclaim Deed
was forged. Additionally, the Quitclaim Deed was notarized by Wife's
family member, the notary expiration was inconsistent, the Quitclaim Deed
was recorded four years after its alleged execution, the Quitclaim Deed
incorrectly stated the parties' marital status, and the Quitclaim Deed
contradicted the divorce decree, which provided that property acquired
after separation would be separate.
¶10 Wife advances two primary arguments on appeal. First, she
claims that Husband identified the signature on the Quitclaim Deed as his
signature during his deposition. However, the full deposition transcript
1 Husband argues no Arizona case has determined that the
evidentiary standard is "clear and convincing." Because the superior court
made a finding based on clear and convincing evidence, we do not decide
whether this or a lesser standard is appropriate.
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CLARK v. CLARK
Decision of the Court
reflects that Husband was shown only one page of a three-page document
and Husband explained that he did not sign the Quitclaim Deed.
Moreover, Husband testified at trial that he "signed a beneficiary deed, not
a quit claim deed." The superior court concluded that Husband did not sign
the Quitclaim Deed, and we do not reweigh the court's credibility
determination. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, ¶ 13 (App. 1998)
("We will defer to the trial court's determination of witnesses' credibility
and the weight to give conflicting evidence.").
¶11 Wife also disputes the reliability of the handwriting expert's
conclusions because Husband's "legal staff apparently identified the
quitclaim signature to him as being a forgery." Husband counters that the
expert "clearly states he was not told which document was a forgery." The
record reveals the expert testified he "was not told it was false," but that it
was a "questioned document." Wife argues on appeal that this prior-
identification of the Quitclaim Deed caused confirmation bias. See D.
Michael Risinger & Michael J. Saks, Science and Nonscience in the Courts:
Daubert Meets Handwriting Identification Expertise, 82 Iowa L. Rev. 21, 64
(1996) (noting that "the presentation of extraneous information to the
examiner which indicates the answer desired and reasons beyond
handwriting for its being the correct conclusion may affect the document
examiner's conclusion"). However, Wife did not object to the qualification
of the expert, cross-examined the expert on confirmation bias, and
addressed it in the closing argument. See State v. Bernstein, 237 Ariz. 226,
230, ¶ 18 (2015) (noting the adversarial system allows the opposing party to
question the reliability and application of an expert's experience and
knowledge).
¶12 Wife asserts other criticisms of the handwriting expert's
analysis, but these arguments all go to the weight of the evidence, not its
admissibility. The weight given expert testimony is within the sole
province of the fact finder. Sandretto v. Payson Healthcare Mgmt., Inc., 234
Ariz. 351, 359, ¶ 24 (App. 2014). We will not reweigh the expert's testimony
on appeal. See Gutierrez, 193 Ariz. at 347, ¶ 13.
¶13 Although the parties presented conflicting evidence,
sufficient evidence supports the superior court's findings, and we defer to
the superior court's credibility determinations and resolution of conflicts in
facts and expert opinions. Great W. Bank, 238 Ariz. at 482, ¶ 42.
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CLARK v. CLARK
Decision of the Court
II. Form of the Complaint.
¶14 Wife also argues Husband could not seek quiet title and
alternative forms of relief.
¶15 A quiet-title action is the exclusive remedy available to a
private landowner seeking to remove a cloud on property. Land Dep't v.
O'Toole, 154 Ariz. 43, 46-47 (App. 1987). Although Husband sought
alternative relief for declaratory judgment, unjust enrichment, or rescission,
the superior court did not enter judgments on these alternative claims.
Thus, Wife's argument is moot.
¶16 The court entered judgment for quiet title and a violation of
A.R.S. § 33-420. "The purpose of § 33-420 is to protect property owners from
actions clouding title to their property." Wyatt v. Wehmueller, 167 Ariz. 281,
286 (1991). That statute provides "[t]he owner or beneficial title holder may
bring a separate special action to clear title to the real property or join such
action with an action for damages as described in this section." A.R.S. § 33-420(B)
(emphasis added); see Stauffer v. U.S. Bank Nat'l Ass'n, 233 Ariz. 22, 27, ¶ 19
(App. 2013) (finding "an action to clear title of a false or fraudulent
document that asserts an interest in real property may be joined with an
action for damages under § 33-420"). Accordingly, there is no error in
prosecuting both an action to quiet title and a violation of A.R.S. § 33-420.
III. Attorney Fees.
¶17 At trial, Husband sought an award of fees and costs under
A.R.S. §§ 12-332 and -341.01. Wife did not object to the statutory ground
for fees. The superior court held that Husband was entitled to his
reasonable fees and costs under A.R.S. §§ 12-332, -341, -341.01, and 33-420.
Wife argues on appeal that the attorney fee award is improper. We find
Wife waived these arguments by raising them for the first time on appeal.
Airfreight Exp. Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, 109, ¶ 17 (App.
2007).
¶18 Husband seeks his attorney fees and costs incurred on appeal
under A.R.S. §§ 12-341.01 and 33-420. Husband also seeks sanctions under
ARCAP 25. Fees are not available under A.R.S. § 12-341.01(A) in a quiet
title action. Lange v. Lotzer, 151 Ariz. 260, 261 (App. 1986). However, A.R.S.
§ 33-420 mandates the awarding of attorney fees to a prevailing owner in a
false documents case. Janis v. Spelts, 153 Ariz. 593, 598 (App. 1987).
Accordingly, Husband is awarded his reasonable attorney fees and costs
incurred on appeal in an amount to be determined upon the timely
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CLARK v. CLARK
Decision of the Court
compliance with ARCAP 21. In our discretion, we decline to award
sanctions. See ARCAP 25.
CONCLUSION
¶19 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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