Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Petition for Special Action from the Superior Court in Maricopa County No. CV2009-015587 The Honorable Douglas L. Rayes, Judge.
Gust Rosenfeld, P.L.C., Phoenix By Charles W. Wirken, Scott A. Malm Counsel for Petitioners
Stinson Morrison Hecker, LLP, Phoenix, Michael C. Manning, James E. Holland, Jr., Sharon W. Ng Foster, Graham, Milstein & Calisher, LLP, Denver, CO, Daniel K. Calisher, Chip G. Schoneberger Counsel for Real Party in Interest.
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.
¶1 This special action challenges provisions of a judgment entered by the superior court on remand that Petitioners, Brimet II, L.L.C. and ME 12, L.L.C. (collectively, "Brimet"), argue exceeded the instructions and mandate issued by this court in Brimet II, L.L.C. v. Destiny Homes Marketing, L.L.C, 231 Ariz. 457, 296 P.3d 993 (App. 2013) ("Brimet II"). Because the appropriate method of seeking review of a superior court judgment on remand entered pursuant to specific instructions by an appellant court is through special action, Scates v. Ariz. Corp. Comm'n, 124 Ariz. 73, 76, 601 P.2d 1357, 1360 (App. 1979) (citation omitted), the court accepts special action jurisdiction and grants relief.
¶2 As explained in Brimet II, Northern Bank, N.A., as Brimet's predecessor in interest, filed a quiet title action against the real party in interest, Destiny Homes Marketing, L.L.C. ("Destiny") to obtain "judicial confirmation" that a trustee's sale of certain real property ("Property") had extinguished an option contact ("Option") granted to Destiny by Destiny Holdings II, L.L.C. ("Borrower"). 231 Ariz. at 458-59, ¶¶ 2-6, 296 P.3d at 994-95. Brimet moved for summary judgment and, pursuant to the doctrines of replacement and equitable subrogation, argued Destiny's Option had been "wiped out" through the foreclosure. Id. at 459, ¶ 6, 296 P.3d at 995. In response, Destiny cross-moved for partial summary judgment. In its cross-motion, Destiny asserted the Option was senior to the interest acquired by Brimet and had not been extinguished by the trustee's sale. Notably, Destiny did not seek summary judgment on its counterclaims in which it had requested a declaration that the Option remained a "valid, senior interest in the Property enforceable as against Brimet and all subsequent transferees of the Property . . . pursuant to . . . the Option's express terms, " and an order "[e]stablishing [its] interests in the Property under the Option."
¶3 The superior court denied Destiny's motion and granted Brimet's motion for summary judgment, ruling "the doctrines of replacement and equitable subrogation apply here and collectively have the legal effect of wiping out Destiny's option upon Northern Trust's foreclosure of its priority lien position."
¶4 Destiny appealed. We reversed and held Northern's foreclosure had not extinguished the Option:
Destiny's Option was not extinguished when Northern foreclosed on its deed of trust and purchased the property at the trustee's sale. Therefore, Brimet did not acquire title to the property free and clear of the Option and the Option remains as a senior encumbrance on the property.
Brimet II, 231 Ariz. at 461, ¶ 21, 296 P.3d at 997. We remanded the matter to the superior court "with instructions that summary judgment be entered in favor of Destiny." Id. at ¶ 23.
¶5 On remand, over Brimet's objection, the superior court entered a judgment ("remand judgment") that, as relevant here, stated in paragraphs 2(a) ...