Chopko v. Fidelity Nat'l Title Ins. Co. (Jan. 27, 2026)

Case details
Full caption
Ihor Chopko v. Fidelity National Title Insurance Company
Country
United States
Jurisdiction
Arizona (AZ)
Court
Arizona Supreme Court
Decided
Jan. 27, 2026
Disposition
Affirmed
Majority
Weinzweig (Vice Chief Judge), joined by Brown (Presiding Judge), Fabian (Judge)
IHOR CHOPKO, Plaintiff/Appellant, v. FIDELITY NATIONAL..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 208329Only the Westlaw citation is currently available.NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDERARIZONA RULE OF THE SUPREME COURT 111(c),THIS DECISION IS NOT PRECEDENTIAL ANDMAY BE CITED ONLY AS AUTHORIZED BY RULE.Court of Appeals of Arizona, Division 1.IHOR CHOPKO, Plaintiff/Appellant,v.FIDELITY NATIONAL TITLE INSURANCECOMPANY, et al., Defendants/Appellees.No. 1 CA-CV 25-0431|FILED 01-27-2026Appeal from the Superior Court in Maricopa County No.CV2024-011288, CV2024-022404 (CONSOLIDATED) TheHonorable Susanna C. Pineda, JudgeAFFIRMEDAttorneys and Law FirmsIhor Chopko, Phoenix Plaintiff/AppellantFidelity National Law Group, Phoenix By Brian J. CosperCounsel for Defendants/AppelleesVice Chief Judge David D. Weinzweig delivered the decisionof the Court, in which Presiding Judge Michael J. Brown andJudge Veronika Fabian joined.MEMORANDUM DECISIONWEINZWEIG, Vice Chief Judge:*1 ¶1 Ihor Chopko appeals from the dismissal ofhis complaint, an attorney fee award and a garnishmentjudgment. We affirm the dismissal and fee award but lackappellate jurisdiction over the garnishment.FACTS AND PROCEDURAL BACKGROUND¶2 Chopko sold his Phoenix home in October 2023.According to Chopko, the buyer quickly backed out of thedeal after an appraiser found the house lacked proper permitsand violated the zoning setback requirement.¶3 Chopko believed he had title insurance coverage fromFidelity National Title Insurance (“Fidelity”). He filed a claimbut heard nothing. After weeks of being told over the phonehis claim was being reviewed, he visited Fidelity's officeand demanded to speak with a manager. He argued with theemployees and police were called. Police escorted Chopkofrom the building, but he was not arrested or charged.¶4 Chopko sued Fidelity for breach of contract, fraudulentmisrepresentation, negligence and bad faith. He also suedFidelity for malicious prosecution because Fidelity personnelcalled the police on him. Chopko attached the title insurancepolicy he claimed was breached, but the policy was issued bySecurity Title Agency and Ticor Title Insurance Company, notFidelity, and it insured Chopko's mortgage company againstdefects, liens and encumbrances. It also expressly excludedcoverage for losses arising from zoning laws. For his part,Chopko pointed to a “Fidelity” stamp on his warranty deedand deed of trust.¶5 Fidelity moved to dismiss under Rule 12(b)(6). See Ariz.R. Civ. P. 12(b)(6). The superior court allowed Chopko toamend his complaint three times before ultimately dismissingChopko's lawsuit. It dismissed the malicious prosecutionclaim after his second amended complaint because Chopkowas not arrested, detained or charged. It dismissed his thirdamended complaint holding that Chopko alleged no contractbetween himself and Fidelity. As the prevailing party inthis contract dispute, the court granted Fidelity $10,332 inattorney fees and $316.56 in costs.JURISDICTION AND WAIVER¶6 We must determine our jurisdiction over this appeal.Bridgeman v. Certa, 251 Ariz. 471, 473, 5 (App. 2021).The legislature limits and defines our jurisdiction. Brumettv. MGA Home Healthcare, L.L.C., 240 Ariz. 420, 426, 4 (App. 2016). We may review final judgments from thesuperior court, A.R.S. § 12-2101(A)(1), but not pendingissues, Barassi v. Matison, 130 Ariz. 418, 422 (1981). Wewill dismiss for lack of jurisdiction when a litigant attemptsto appeal while a motion is pending in the trial court or whenthere is no final judgment. Id.
IHOR CHOPKO, Plaintiff/Appellant, v. FIDELITY NATIONAL..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.2¶7 We lack jurisdiction over Chopko's garnishmentarguments because no final garnishment judgment existedwhen Chopko filed his amended notice of appeal. Id.Garnishment proceedings are original, independent actions,separate from their underlying lawsuit, and can be appealedseparately. Bennett Blum, M.D., Inc. v. Cowan, 235 Ariz.204, 207, 13 (App. 2014). Chopko did not file a secondamended notice of appeal after entry of the garnishmentjudgment, so we lack jurisdiction over these arguments,A.R.S. §§ 12-2101(A)(1), -120.12, but still consider hisremaining claims.DISCUSSION*2 ¶8 Chopko appeals the superior court's dismissal of hiscomplaint and award of attorney fees to Fidelity. We addresseach argument in turn.I. Failure to State a Claim.¶9 We review de novo whether the court properly dismisseda complaint under Rule 12(b)(6). Conklin v. Medtronic,Inc., 245 Ariz. 501, 504, 7 (2018). “Arizona follows anotice pleading standard, the purpose of which is to give theopponent fair notice of the nature and basis of the claim andindicate generally the type of litigation involved.” Cullen v.Auto-Owners Ins. Co., 218 Ariz. 417, 419, 6 (2008) (citationmodified).¶10 A motion to dismiss should be granted only if the lawbars relief under any version of the facts plaintiffs couldprove. Conklin, 245 Ariz. at 504, 7. Our review is limitedto Chopko's complaints. See Cullen, 218 Ariz. at 419, 7.We assume well-pleaded facts are true and draw reasonableinferences from those facts. Coleman v. City of Mesa, 230Ariz. 352, 356, 9 (2012). We do not, however, “accept astrue allegations consisting of conclusions of law, inferencesor deductions that are not necessarily implied by well-pleadedfacts, unreasonable inferences or unsupported conclusionsfrom such facts, or legal conclusions alleged as facts.” Jeterv. Mayo Clinic Ariz., 211 Ariz. 386, 389, 4 (App. 2005).A. Breach of Contract.¶11 Chopko argues the title insurance policy between Ticor,Security Title and his mortgage company created a contractbetween him and Fidelity. To assert breach of contract, theplaintiff must allege a contract, breach and damages. Grahamv. Asbury, 112 Ariz. 184, 185 (1975).¶12 The superior court properly dismissed this claim becauseChopko was not a party to the title insurance policy he claimswas breached and he does not argue he was a third-partybeneficiary of that contract. What is more, Chopko arguedhis title was not marketable because of a zoning violation,but title deficiencies based on zoning violations are expresslyexcluded under the title insurance policy.¶13 For the first time on appeal, Chopko also contends thatFidelity destroyed his title insurance policy, but a party waivesissues not preserved in the trial court. Sobol v. Marsh, 212Ariz. 301, 303, 7 (App. 2006).II. Malicious Prosecution.¶14 Chopko next argues he stated a valid claim for maliciousprosecution. The “elements of malicious prosecution are (1) acriminal prosecution, (2) that terminates in favor of plaintiff,(3) with defendants as prosecutors, (4) actuated by malice, (5)without probable cause, and (6) causing damages.” Slade v.City of Phoenix, 112 Ariz. 298, 300 (1975).¶15 The superior court properly dismissed this claim. Chopkoalleged no criminal proceeding. The police merely escortedhim from Fidelity's office—his complaint does not allege hewas cited, arrested or charged. These facts cannot support amalicious prosecution claim. See Coleman, 230 Ariz. at 356, 9.III. Attorney Fees.¶16 Chopko challenges the superior court's award of attorneyfees under A.R.S. § 12-341.01, asserting the award does notfurther the statute's purpose of “mitigating the burden oflitigation.” But the statute says a fee award “should be made tomitigate the burden of the expense of litigation to establish ajust claim or a just defense.” A.R.S. § 12-341.01(B) (emphasisadded).*3 ¶17 Attorney fees are available to the prevailing partyin a contested action arising from contract under A.R.S. §12-341.01(A). “Even when a contract is alleged by a plaintiffand the defendant successfully proves that there was nocontract, the action is considered to have arisen out of contractfor purposes of A.R.S. § 12-341.01.” Rudinksy v. Harris, 231Ariz. 95, 101, 27 (App. 2012).¶18 A fee award is reviewed for an abuse of discretion. Orfalyv. Tucson Symphony Soc'y, 209 Ariz. 260, 265, 18 (App.
IHOR CHOPKO, Plaintiff/Appellant, v. FIDELITY NATIONAL..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.32004). The court abuses its discretion when its reasons areunsupported, untenable, incorrect or deny justice. Charles I.Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344, 350, 17(App. 2006).¶19 The superior court did not abuse its discretion becausethe record contains reasonable evidence to support the feeaward. Chopko sued for breach of a title insurance policy andlost. He was not a party to the policy, the policy excludedthe damages he requested and he received no relief from thecourt. Cf. Chaurasia v. Gen. Motors Corp., 212 Ariz. 18, 29, 43 (App. 2006) (“The legislature intended that the risk ofpaying the opposing party's attorneys’ fees would encouragemore careful analysis prior to filing suit.”).IV. Arizona Rules of Civil Appellate Procedure.¶20 We pause to admonish Chopko about serious deficienciesin his briefing. Chopko's opening and reply briefs violateArizona Rule of Civil Appellate Procedure 13(a)(7), whichrequires that arguments contain citations to legal authority andthe portions of the record on which the appellant relies.¶21 Our review reveals that sixteen of Chopko's thirty legalcitations contain substantial defects, including unsupportedpremises, fabricated quotations or fictitious cases. Add to that,neither brief offers citations to the record.¶22 Compliance with this court's rules is not optional.The integrity of our appellate process depends on accurateand honest advocacy. Going forward, the failure to provideaccurate legal authority and proper record citations may resultin sanctions. See ARCAP 13(a)(7).CONCLUSION¶23 We affirm. Fidelity requests its attorney fees and costs onappeal under § 12-341.01 and ARCAP 21. We grant Fidelity'srequest upon compliance with ARCAP 21.All CitationsNot Reported in Pac. Rptr., 2026 WL 208329End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
ProvenanceKnow exactly where this document came from.Members see the sourcing behind every authority on DocPost — so you can check the record yourself and cite with confidence.Request access