                          NOTICE: NOT FOR PUBLICATION.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


           DOROTHY EMERMAN, a legally separated woman,
                      Plaintiff/Appellant,

                                        v.

    ARIZONA HOLDING SERVICES, LLC, dba ARIZONA TRAFFIC
   SERVICES, an Arizona limited liability corporation authorized to do
 business in the foreign corporation duly authorized to do business in the
                    State of Arizona, Defendant/Appellee.

                             No. 1 CA-CV 13-0328
                              FILED 06-03-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2011-008761
                   The Honorable Dean M. Fink, Judge

                                  AFFIRMED


                                   COUNSEL

Rubin & Samuels, Phoenix
By Michael S. Samuels
Counsel for Plaintiff/Appellant

Riviere Law Group PLLC, Phoenix
By Roger W. Riviere
Counsel for Defendant/Appellee
                      EMERMAN v. AZ HOLDING
                         Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


O R O Z C O, Judge:

¶1            Dorothy Emerman (Emerman) appeals the trial court’s
orders granting summary judgment in favor of Appellee Arizona Holding
Services, LLC (AZ Holding), a funeral procession escort business; denying
Emerman’s motions for relief from a judgment or order pursuant to Rule
60(c) of the Arizona Rules of Civil Procedure; and denying Emerman’s
motion for a new trial pursuant to Rule 59(a). Because we find the trial
court did not err in finding that Emerman failed to sufficiently identify the
motorcycle rider she alleged caused her harm as an AZ Holding employee
or agent at the time of summary judgment, we affirm the trial court’s
orders.

                FACTS AND PROCEDURAL HISTORY

¶2             Emerman was driving westbound with a passenger,
approaching a green light in Phoenix, Arizona. As Emerman neared the
intersection, a motorcycle, traveling several blocks ahead of a funeral
procession involving hundreds of motorcycles and other vehicles, entered
the same intersection heading northbound. As a result, Emerman quickly
stopped to avoid colliding with the motorcycle. Emerman’s vehicle came
to a complete stop before it entered the intersection or even crossed the
first line of the crosswalk. However, the vehicle following Emerman,
driven by Clive Byfield (the second car or Byfield), rear-ended Emerman’s
vehicle, allegedly causing bodily injuries to Emerman.

¶3           Emerman filed suit against AZ Holding. Emerman alleged
that AZ Holding employed the rider of the motorcycle (the motorcycle
rider) and therefore was vicariously liable under a theory of respondeat
superior. Emerman also alleged the AZ Holding riders ran a red light
without need or justification, which caused her property damage and




                                     2
                      EMERMAN v. AZ HOLDING
                         Decision of the Court

injuries.1 AZ Holding avowed that on the date in question, it did not own
any motorcycles, did not employ any motorcycle riders or escorts and did
not know the identity of the motorcycle rider alleged to be responsible for
Emerman’s accident. Accordingly, AZ Holding affirmatively denied any
involvement or fault in the car accident between Emerman and Byfield.
AZ Holding filed a motion for summary judgment, arguing there was no
genuine issue of material fact and that the trial court should grant
judgment as a matter of law. Emerman filed a response, and AZ Holding
filed their reply.

¶4            Over a month after filing her response, Emerman filed
additional exhibits, which the trial court treated as a “sur-reply.” The sur-
reply included photographs of the funeral procession that Emerman
found online through her own investigation, which depicted a motorcycle
rider, wearing what looked like an AZ Holding’s uniform in front of the
church where the funeral took place. These pictures were posted online
on the day of the funeral. The trial court noted at oral argument, and in its
minute entry, that this filing was unusual, and it would not consider the
sur-reply’s exhibits when ruling on AZ Holding’s summary judgment
motion.

¶5            The trial court granted summary judgment in favor of AZ
Holding, first noting Emerman argued an incorrect burden of proof
because it is “always incumbent upon the plaintiff to prove the
defendant’s fault.” The trial court also ruled that Emerman’s affidavit,
which identified Rodney Baker (Baker), owner of AZ Holding, as the
motorcycle rider, was insufficient to establish a genuine issue of material
fact. The trial court treated the affidavit as a “sham affidavit” pursuant to
Allstate Indemnity Co. v. Ridgley, because Emerman could not identify the
motorcycle rider with any confidence at her deposition, but unequivocally
stated in her summary judgment affidavit that Baker was the motorcycle
rider. See 214 Ariz. 440, 444, ¶ 16, 153 P.3d 1069, 1073 (App. 2007) (holding
that “when a party’s affidavit is submitted to defeat summary judgment
and contradicts the party’s own deposition testimony, it should be
disregarded in deciding the motion.”).

¶6          In addition to finding that Emerman failed to meet her
burden of proving the motorcycle rider was an AZ Holding employee at

1     Emerman and her passenger settled their claims against Byfield.
Emerman also received underinsured motorist benefits from her
insurance carrier.



                                     3
                      EMERMAN v. AZ HOLDING
                         Decision of the Court

the time of her injury, the trial court granted summary judgment on the
separate ground that AZ Holding did not owe Emerman a duty pursuant
to Arizona Revised Statutes (A.R.S.) section 28-776 (2012).2 The trial court
held that even if employed by AZ Holding, the motorcycle rider’s actions
would not create liability because the motorcycle rider was acting within
his statutory rights. Therefore, in the absence of an established duty,
Emerman had failed to state a legally cognizable negligence claim against
AZ Holding.

¶7            Thereafter, Emerman filed her first motion for Rule 60(c)
relief, which the trial court denied, finding the motion did not meet the
standard entitling her to relief under Rule 60(c), and because the
photographs Emerman wanted to add as evidence were not “newly
discovered” evidence since they were available prior to Emerman filing
her response to the motion for summary judgment.

¶8            Emerman then filed a Rule 59(a) motion for a new trial. She
first argued that “[t]he Court based its ruling on the premise that there
was no evidence ‘that Defendant believed its representations to be false.’”
Emerman continued to argue, “Rule 60(c) contains no such requirement
that the Defendant believed his representation to be false.” She also
argued that “reasonable inferences are to be viewed in [the] light most
favorable to the non-moving party.” The trial court denied the motion
and clarified its ruling regarding the Rule 60(c) motion. It held Emerman
was not entitled to a new trial because there was no basis for fraud. Also,
the “newly discovered evidence” or photographs could have been found
with “reasonable diligence.”

¶9            Emerman filed a second motion for Rule 60(c) relief, which
the trial court also denied. Emerman timely appealed the trial court’s
grant of summary judgment, denial of Emerman’s Rule 60(c) motions, and
denial of Emerman’s Rule 59(a) motion. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 12-120.21.A.1
(2003), and -2101.A.1 (Supp. 2013).




2     We cite to the current version of the applicable statutes when no
material revisions have since occurred.




                                     4
                        EMERMAN v. AZ HOLDING
                           Decision of the Court

                                DISCUSSION

I.     AZ Holding’s Motion for Summary Judgment

¶10            A motion for 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 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). We review the trial court’s grant of summary judgment based
upon the record made in the trial court, but we determine de novo
whether the judgment was proper. Schwab v. Ames Constr., 207 Ariz. 56,
60, ¶ 17, 83 P.3d 56, 60 (App. 2004). In our review, we determine if the
trial court applied the law properly and if, viewing the facts in the light
most favorable to the non-moving party, there remains any genuine issue
of material fact. Id.; Nicoletti v. Westcor, 131 Ariz. 140, 142, 693 P.2d 330,
332 (1982). When uncontroverted, the trial court may accept the facts
alleged in an affidavit attached to summary judgment motions as true.
Ancell v. Union Station Assoc., Inc., 166 Ariz. 457, 458, 803 P.2d 450, 451
(App. 1990). Nonetheless, an affidavit may be insufficient to withstand a
summary judgment motion, even if the affidavit creates the “slightest
doubt” that a material fact may be disputed, when the affidavit tends to
contradict the affiant’s sworn deposition testimony. Orme Sch., 166 Ariz.
at 309, 802 P.2d at 1008.

¶11            To survive summary judgment, the non-moving party must
show that a genuine issue of material fact is in dispute on the record
before the court. See Ariz. R. Civ. P. 56(c); see also Tilley v. Delci, 220 Ariz.
233, 236-37, ¶ 10, 204 P.3d 1082, 1085-86 (App. 2009) (granting summary
judgment when the non-moving party “submitted no competent evidence
to create a genuine issue of material fact.”). A genuine issue of material
fact exists when the trial court finds on examination of the entire record,
the parties dispute a fact, which if true, could affect the final judgment.
See Elson Dev. Co. v. Ariz. Sav. & Loan Ass’n, 99 Ariz. 217, 220, 407 P.2d 930,
932 (1965). However, the “sham affidavit” rule holds that “when a party’s
affidavit is submitted to defeat summary judgment and contradicts the
party’s own deposition testimony, it should be disregarded in deciding
the motion.” Allstate Indem. Co., 214 Ariz. at 442, ¶ 9, 153 P.3d at 1071. We
apply the “sham affidavit” rule to prevent parties from thwarting the
purpose of Rule 56 by creating issues of fact through affidavits that
contradict their own depositions. Id.




                                       5
                       EMERMAN v. AZ HOLDING
                          Decision of the Court

¶12            In this case, the only material fact at issue was whether the
motorcycle rider was an AZ Holding employee because AZ Holding
could not be held vicariously liable for the actions of a person not
employed by it. Compare Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title,
197 Ariz. 535, 540, 5 P.3d 249, 254 (App. 2000) (“An employer is
vicariously liable for the negligent or tortious acts of its employee acting
within the scope and course of employment.”), with Ft. Lowell-NSS Ltd.
P’ship v. Kelly, 166 Ariz. 96, 101, 800 P.2d 962, 967 (1990) (holding that the
general rule is that an employer is not vicariously liable for an
independent contractor’s negligence unless the employer has been
independently negligent). Emerman asserts a genuine issue of material
fact existed because she presented evidence through her affidavit and
through the exhibits contained in her sur-reply proving the motorcycle
rider was, in fact, associated with AZ Holding.

¶13            Nonetheless, the plaintiff bears the burden of showing
available, competent evidence that would justify a trial once the defendant
establishes it is entitled to summary judgment. Ulibarri v. Gerstenberger,
178 Ariz. 151, 156, 871 P.2d 698, 703 (App. 1993). The plaintiff cannot
solely rely “on unsupported contentions that a dispute exists to create a
factual issue that would defeat summary judgment.” State v. Mecham, 173
Ariz. 474, 478, 844 P.2d 641, 645 (App. 1992). The trial court, when ruling
on a motion for summary judgment, will not view unsworn or unproven
assertions by the non-moving party as “facts” that justify denial of a
motion for summary judgment. Id.

¶14            Here, the trial court declined to consider the exhibits
submitted in the sur-reply. Arizona Rule of Civil Procedure 56(c) permits
the parties to submit a motion for summary judgment, a response, and a
reply, but there is no provision for a sur-reply. Therefore, we find the
trial court did not abuse its discretion in declining to consider documents
beyond those provided for within the Rule.

¶15           Next we consider Emerman’s affidavit regarding the identity
of the motorcycle rider. In her deposition, Emerman was uncertain as to
the description of the motorcycle rider and the motorcycle, but her
affidavit -- filed when facing a dispositive motion -- affirmatively
identified Baker as the motorcycle rider. In an impermissible effort to
create a genuine issue of material fact, the affidavit contradicted
Emerman’s prior, sworn, deposition testimony. As previously noted, the
trial court was not required to consider the affidavit, and did not abuse its
discretion in declining to do so. See Mecham, 173 Ariz. at 478, 844 P.2d at



                                      6
                       EMERMAN v. AZ HOLDING
                          Decision of the Court

645 (a trial court need not consider unproven assertions as a “fact,” which
would justify the denial of the motion for summary judgment).

¶16          On this record, there was no competent evidence that the
motorcycle rider was an AZ Holding employee. Because we decide that
there are no contested issues of fact, we need not decide whether AZ
Holding owed a duty of care to Emerman pursuant to A.R.S. § 28-776.B.

II.    Emerman’s Motions for Relief from Judgment

¶17           Arizona Rule of Civil Procedure 60(c) permits the trial court
to relieve a party from a judgment based upon several enumerated
reasons, including: (1) “mistake, inadvertence, surprise, or excusable
neglect”; (2) “newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under Rule
59(d)”; or (3) “fraud . . . , misrepresentation or other misconduct of an
adverse party”; among various other reasons, not applicable here. We
review the trial court’s denial of such motions for abuse of discretion.
Ezell v. Quon, 224 Ariz. 532, 536, ¶ 15, 233 P.3d 645, 649 (App. 2010). As a
matter of public policy, a judgment must become final at some point;
otherwise there would never be any certainty as to the rights acquired
under the court’s judgments. Panzino v. City of Phx., 196 Ariz. 442, 448, ¶
19, 999 P.2d 198, 204 (2000).

¶18         Emerman argues on appeal that the trial court erred in
denying both of her Rule 60 motions. We disagree.

       A.     Newly Discovered Evidence

¶19            Emerman first argues she should be afforded relief because
the trial court did not consider “newly discovered” photographs – not
disclosed in discovery -- when deciding AZ Holding’s motion for
summary judgment. These photographs, taken from various websites
including Shutterfly and Facebook, depicted a motorcycle rider wearing
what appears to be an AZ Holding’s uniform. However, evidence “that
could have been discovered with reasonable diligence” before the time the
plaintiff could file a motion for a new trial is not “newly discovered” as
defined by Rule 60. See Ariz. R. Civ. P. 60(c)(2); see also Catalina Foothills
Ass’n, Inc. v. White, 132 Ariz. 427, 429, 646 P.2d 312, 314 (App. 1982).

¶20           Here, the evidence at issue was readily available with the
exercise of due diligence, and Emerman had some of the photographs at
least four months prior to her deadline for filing her response to the
motion for summary judgment. Accordingly, we find no abuse of


                                      7
                       EMERMAN v. AZ HOLDING
                          Decision of the Court

discretion in the trial court’s refusal to grant relief on the basis of newly
discovered evidence.

       B.     Fraud

¶21            Emerman also argued in her first motion for relief that the
trial court should grant relief because AZ Holding committed fraud upon
the court in two ways. First, by “representing to [Emerman and the trial
court] that the motorcycle rider was not with [AZ Holding’s] funeral
procession escort company.” Emerman asserted the photographs of a
motorcycle rider with an AZ Holding uniform demonstrated AZ
Holding’s fraud and that this fraud justified relief. Second, Emerman
asserted that AZ Holding committed fraud by arguing an “incorrect”
standard of care required of funeral escort vehicles. The trial court
disagreed, as do we.

¶22           To justify Rule 60(c)(3) relief for fraud, the party seeking
relief bears the onerous burden of presenting clear and convincing
evidence proving the fraudulent activity perpetrated on the court. See
Lake v. Bonham, 148 Ariz. 599, 601, 716 P.2d 56, 58 (App. 1986). The cases
justifying reversal contain only “the most egregious conduct involving a
corruption of the judicial process itself.” Id. A party that sincerely
believes its testimony to the court when given, or given not for the
purpose of deceiving the court, does not rise to this level of egregiousness.
See id.

¶23            Emerman did not present any evidence demonstrating AZ
Holding believed its representations to the court were false regarding AZ
Holding’s relationship to the motorcycle rider. Nor did Emerman present
any evidence AZ Holding committed fraud in its arguments regarding the
standard of care required of funeral escort vehicles. Therefore, the trial
court did not abuse its discretion in holding that this purported “fraud”
did not rise to the level of egregiousness that justifies Rule 60(c)(3) relief.

       C.     Misrepresentation

¶24          In her second motion for Rule 60 relief, Emerman argued she
should be afforded relief due to AZ Holding’s misrepresentation that it
did not employ the motorcycle rider on the day of the accident, as
indicated by her later-filed photographs. Emerman also attempted to
admit evidence from the Maricopa County Sheriff’s Office indicating AZ
Holding had registered a motorcycle as a funeral escort vehicle in 2009.
The trial court again denied Emerman’s request for relief because it was
not persuaded by her arguments and deemed it inappropriate for


                                      8
                       EMERMAN v. AZ HOLDING
                          Decision of the Court

Emerman to submit two motions for Rule 60 relief, when the language of
Rule 60(c) is singular, implying only one motion may be filed under this
Rule.

¶25            When reviewing a trial court’s order for abuse of discretion,
“we will affirm the trial court’s decision if it is correct for any reason.” See
Delbridge v. Salt River Project Agric. Improvement and Power Dist., 182 Ariz.
46, 54, 893 P.2d 46, 54 (App. 1994). Although Emerman presented new
evidence to support her claim of misrepresentation, that evidence was
available to her at the time of AZ Holding filed its Motion for Summary
Judgment. That being the case, the trial court did not abuse its discretion
by declining to consider this new evidence introduced to support
Emerman’s claims. As discussed above, a judgment must become final at
some point. See Panzino, 196 Ariz. at 448, ¶ 19, 999 P.2d at 204. We must
respect this finality. Rule 60 relief is not a tool to allow an unsuccessful
plaintiff to further develop the record after summary judgment is granted.
Rather, the “purpose of the rule is to provide relief for those mistakes and
errors which inevitably occur despite diligent efforts to comply with the
rules.” See City of Phx. v. Geyler, 144 Ariz. 323, 332, 697 P.2d 1073, 1082
(1985). The trial court, therefore, did not abuse its discretion in denying
Emerman’s motions for Rule 60 relief, and we affirm the trial court’s
orders.

III.   Motion for New Trial

¶26            We will not overturn the trial court’s decision to deny a
motion for a new trial absent a clear abuse of discretion. Suciu v. AMFAC
Distrib. Corp., 138 Ariz. 514, 520, 675 P.2d 1333, 1339 (App. 1983).

¶27           Emerman moved for a new trial, pursuant to Rule 59(a),
asserting the trial court used the wrong standard in evaluating her first
Rule 60(c)(3) motion and the trial court used the incorrect standard in
granting summary judgment. Having already affirmed the trial court’s
grant of summary judgment as proper, and affirmed the trial court’s
denial of Rule 60(c) relief, we hold that the trial court was also acting
within its discretion by denying Emerman’s motion for new trial.
Therefore, we affirm this order.

IV.    Request for Attorney Fees

¶28          AZ Holding requests its attorney fees and costs associated
with this appeal. In our discretion, we decline to award attorney fees.
However, as the prevailing party, we award the costs of this appeal to AZ
Holding upon compliance with ARCAP 21.


                                       9
                     EMERMAN v. AZ HOLDING
                        Decision of the Court

                            CONCLUSION

¶29         For the reasons discussed above, we affirm the trial court’s
orders granting AZ Holding’s motion for summary judgment and
denying Emerman’s motions for relief under Rules 59(a) and 60(c).




                                 :gsh




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