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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   JACKSON WHITE PC, Plaintiff/Appellee,

                                         v.

          TEOFILO B. DEQUINA, JR., et al., Defendants/Appellants.

                              No. 1 CA-CV 17-0253
                                FILED 5-17-2018


            Appeal from the Superior Court in Maricopa County
                           No. CV2016-005821
                 The Honorable James T. Blomo, Retired

                                   AFFIRMED


                                    COUNSEL

Germaine Law Office, PLC, Phoenix
By Sanford J. Germaine
Counsel for Plaintiff/Appellee

Teofilo B. DeQuina, Jr., Scottsdale
Defendant/Appellant

Mark K. Jones, Julia K. Jones, Phoenix
Defendants/Appellants
                        JACKSON v. DEQUINA, et al.
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.


P E R K I N S, Judge:

¶1            Teofilo DeQuina, Mark Jones, and Julia Jones appeal the trial
court’s grant of summary judgment in favor of Appellee Jackson White P.C.
(“Jackson”) and denial of their motion for new trial and request for relief
from judgment. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In May 2015, Appellants DeQuina and the Joneses, among
others, retained Jackson to represent Reclamation Sciences, LLC.
Appellants agreed to be personally liable for payment under the contract
(“Retainer Agreement”). Jackson notified Appellants in January 2016 that
the partner handling their matters would be changing firms in February. In
response, Appellants elected to follow the partner to his new firm and
discontinue their relationship with Jackson.

¶3              Thereafter, Jackson filed suit against Appellants, Reclamation
Sciences, and several others involved with Reclamation Sciences for breach
of contract to collect unpaid legal fees. DeQuina and the Joneses, appearing
pro se, filed nearly identical answers alleging they did not owe Jackson any
money. Jackson filed a motion for summary judgment in December 2016,
accompanied by an affidavit, a copy of its disclosure statement, and copies
of invoices. DeQuina filed a response, “opposition,” and disclosure
statement, to which Jackson replied. The Joneses did not file a formal
response to Jackson’s motion, but, after the time had run to respond, filed a
disclosure statement substantially similar to DeQuina’s disclosure
statement.

¶4           The trial court granted Jackson’s motion for summary
judgment, as there remained no genuine dispute of material fact precluding
summary judgment. In so ruling, the court noted it had considered each of
DeQuina’s filings. The court also noted the Joneses had failed to file a
response and that no party had requested oral argument.




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                       JACKSON v. DEQUINA, et al.
                          Decision of the Court

¶5             Appellants then filed two virtually identical sets of
documents framed as responses to Jackson’s reply. The trial court deemed
these filings to be motions for reconsideration, considered the filings in their
entirety, and denied the motions. In March, the trial court entered judgment
in favor of Jackson, amended the judgment to reflect the proper plaintiff,
and denied Appellants’ requests for relief from judgment and motions for
new trial. Appellants now appeal.

                               DISCUSSION

¶6              We review denial of a request for relief from judgment for
abuse of discretion. State ex rel. Brnovich v. Culver, 240 Ariz. 18, 19–20, ¶ 4
(App. 2016). Similarly, we review the trial court’s decision on a motion for
new trial for abuse of discretion. American Power Prods., Inc. v. CSK Auto,
Inc., 239 Ariz. 151, 154, ¶ 10 (2016). However, we review a grant of summary
judgment de novo and will affirm if the judgment is correct for any reason.
S & S Paving & Const., Inc. v. Berkley Reg’l Ins. Co., 239 Ariz. 512, 514, ¶ 7
(App. 2016). Summary judgment is appropriate if the moving party is
entitled to judgment as a matter of law and there is no genuine dispute as
to any material fact. Id.

I.     Grant of Summary Judgment

¶7             On appeal, Appellants argue the Retainer Agreement was
subject to an oral modification and did not accurately reflect the personal
obligations of each Appellant. In opposing summary judgment, Appellants
argued that Jackson was not entitled to any payment because of the alleged
changes to the Retainer Agreement. However, it is not clear whether the
purported oral modification took place before or after the signing of the
Retainer Agreement. Appellants argue the Retainer Agreement did not
reflect the terms of the agreement the parties had reached before Jackson
commenced the representation. Essentially, Appellants contend they
entered into an oral agreement inconsistent with the written terms of the
Retainer Agreement prior to signing. This argument is barred by the terms
of the Retainer Agreement, which provides that it “supersedes all prior or
contrary agreements . . . with respect to any matter which is the subject of
this agreement.” Moreover, the Retainer Agreement invites the parties to
list, in a provided blank space, any promise or representation that should
become part of the Retainer Agreement before proceeding, and no such
promises or representations were listed.

¶8           Even assuming the alleged modification took place after the
Retainer Agreement was signed, Appellants offer no evidence or argument



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                       JACKSON v. DEQUINA, et al.
                          Decision of the Court

of subsequent consideration to support the alleged material change in
payment terms. Generally, a written contract may be modified by
subsequent oral agreement supported by consideration. Coronado Co., Inc.
v. Jacome’s Dept. Store, Inc., 129 Ariz. 137, 139 (App. 1981). Absent
consideration, a contract cannot be modified. See Demasse v. ITT Corp., 194
Ariz. 500, 506, ¶ 18 (1999) (modification of a contract requires offer,
acceptance, and consideration). Appellants failed to present facts sufficient
to support modification of the contract, whether before or after signing the
Retainer Agreement, and thus, failed to raise an issue of material fact
barring summary judgment.

¶9              Moreover, Appellants failed to satisfy their burden under
Rule 56 by failing to offer admissible evidence sufficient to create a genuine
issue of fact concerning Jackson’s claim for breach. Rule 56 requires a party
opposing summary judgment to file a response accompanied by a
statement of facts specifying “the numbered paragraphs in the moving
party’s statement that are disputed” and the facts that preclude summary
judgment in favor of the movant. Ariz. R. Civ. P. 56(c)(3)(B). Moreover,
these facts must be supported by admissible evidence, such as affidavits
based on the personal knowledge of an affiant competent to testify to the
matters stated. Ariz. R. Civ. P. 56(c)(4), (5).

¶10            Here, Appellants failed to offer admissible evidence sufficient
to create a dispute of material fact in response to Jackson’s motion for
summary judgment. Neither DeQuina nor the Joneses submitted affidavits
or other evidence controverting the facts contained in Jackson’s affidavit.
As a result, the facts submitted by Jackson are presumed to be true. Tilley v.
Delci, 220 Ariz. 233, 237, ¶ 11 (App. 2009). Under these circumstances,
summary judgment in Jackson’s favor was mandatory. See Ariz. R. Civ. P.
56(e) (when opposing party fails to set forth genuine issue for trial,
“summary judgment, if appropriate, shall be entered against that party”).

¶11           Appellants argue their failure to file affidavits or submit other
admissible evidence is excusable, in part because of their decision to
proceed in propria persona. Specifically, Appellants argue their failure to
respond or submit evidence is excusable because: (1) they believed their
answers were equivalent to sworn testimony and obviated the need for
affidavits; (2) the appointment of an arbitrator gave Appellants the
impression no response to Jackson’s motion for summary judgment was
necessary; and (3) the trial court erred in assuming they did not expect oral
argument. However, litigants proceeding in propria persona are presumed to
be familiar with the relevant statutes and rules of procedure and are held



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                       JACKSON v. DEQUINA, et al.
                          Decision of the Court

to the same standard as if they were represented by counsel. Smith v. Rabb,
95 Ariz. 49, 53 (1963).

¶12            Notwithstanding Appellants’ failure to abide by the rules of
procedure, their argument that the appointment of an arbitrator created
confusion about the necessity of a response fails. The initial notice
appointing an arbitrator was filed December 30, 2016, approximately one
week before DeQuina filed his response. The notice to the parties
specifically states that motions for summary judgment that would dispose
of the case are still within the trial court’s jurisdiction regardless of pending
arbitration. To the extent Appellants argue their confusion arose from the
subsequent notice of arbitration hearing, that notice was filed on February
3, 2017, after Jackson’s reply and after the time for filing a response had
lapsed.

¶13           Furthermore, the trial court did not err in ruling without oral
argument, as Rule 56 requires the trial court to set a hearing only on the
request of any party. Ariz. R. Civ. P. 56(c)(1). Nothing in Rule 56 requires
the trial court to assume, absent a request, that a party is seeking oral
argument. As we generally do not consider arguments raised for the first
time in a reply brief, we do not further consider Appellants’ arguments
regarding the appointment of the arbitrator or their mistaken belief about
the rules of procedure. Coombs v. Maricopa Cty. Special Health Care Dist., 241
Ariz. 320, 322 (App. 2016).

¶14            Finally, even if Appellants had timely submitted their
affidavits, which were submitted after the trial court’s grant of summary
judgment, these affidavits do not create a genuine issue of material fact. In
their affidavits, Appellants allege that an in-person discussion took place
prior to signing the Retainer Agreement and that discussion concluded in
an oral arrangement regarding payment contrary to the terms of the
Retainer Agreement. As discussed above, the Retainer Agreement
specifically precludes and supersedes prior contrary agreements.
Appellants further allege that any balances should have been transferred to
their prior attorney’s new firm and that there are problems with Jackson’s
accounting. Because the written Retainer Agreement contains no support
for Appellants’ contentions, the affidavits do not establish a genuine
dispute of material fact as to these allegations. Accordingly, the trial court
properly granted summary judgment in favor of Jackson.




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                       JACKSON v. DEQUINA, et al.
                          Decision of the Court

II.    Denial of New Trial and Relief from Judgment

¶15           Appellants argue the trial court abused its discretion in failing
to vacate the judgment or grant a new trial based on newly discovered
evidence. Though the Appellants filed separate motions to vacate, their
motions were almost identical and presented the same argument: that
Jackson and its former partner’s new firm were the same law firm “for the
purposes of this case.” They thus claimed that thier ability to “produce facts
relevant to this matter” was “impeded” by the alleged commonality
between Jackson and Jackson’s former partner. Moreover, Appellants
alleged this continued relationship meant that the attorney-client
relationship between Jackson and Appellants never ended. Thus, according
to Appellants, Jackson was ethically prohibited from filing suit against
Appellants, as existing clients.

¶16           Appellants moved for a new trial pursuant to Arizona Rule of
Civil Procedure 59. Rule 59(a)(1) permits a court to grant a new trial on
several grounds if the moving party’s rights were materially affected. Ariz.
R. Civ. P. 59(a)(1). Appellants offered no explanation for why a new trial
was warranted, except to the extent their motion was predicated on their
arguments in support of their request for relief from judgment. At best,
Appellants’ motions were based on Rule 59(a)(1)(D)—that they had
discovered new material evidence that could not have been located and
produced earlier. Ariz. R. Civ. P. 59(a)(1)(D). Appellants’ argument fails.

¶17           Appellants provided no explanation of how the allegedly new
evidence could not have been located and produced in opposition to
Jackson’s motion for summary judgment. Moreover, Appellants could not
explain how Jackson’s former partner was still a member of the firm.
Importantly, nothing alleged in Appellants’ motions is material to Jackson’s
underlying breach of contract claim. Accordingly, the trial court did not
abuse its discretion in denying Appellants’ motions for new trial.

¶18            Appellants additionally requested relief from judgment
pursuant to Rule 60(b), citing purported newly discovered evidence.
However, Rule 60(b)(2) permits relief from judgment only on discovery of
evidence that could not have been discovered in time to move for a new
trial pursuant to Rule 59(b)(1). Ariz. R. Civ. P. 60(b)(2). Here, Appellants
simultaneously sought relief under both rules on the same grounds. Thus,
the trial court did not abuse its discretion in denying Appellants’ requests
for relief from judgment pursuant to Rule 60(b)(2).




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                       JACKSON v. DEQUINA, et al.
                          Decision of the Court

                               CONCLUSION

¶19            For the foregoing reasons, we affirm the trial court’s grant of
summary judgment in favor of Jackson and the court’s denial of Appellants’
motions for new trial and relief from judgment. Jackson requests its
attorneys’ fees in defending this appeal pursuant to A.R.S. § 12-341.01, as
this is a matter arising out of contract. In our discretion, we decline to award
attorneys’ fees.




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




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