                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 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


  BURCH & CRACCHIOLO, P.A., an Arizona professional association,
                    Plaintiff/Appellee,

                                          v.

        JOYCE MOORE and SAMUEL MOORE, wife and husband,
                      Defendants/Appellants.

                              No. 1 CA-CV 13-0066
                               FILED 2-27-2014


            Appeal from the Superior Court in Maricopa County
                           No. CV 2009-038630
               The Honorable Katherine M. Cooper, Judge

                                    AFFIRMED


                                    COUNSEL

The Reiman Law Firm, Phoenix
By Clarissa B. Reiman

Counsel for Plaintiff/Appellee

Joyce Moore and Samuel Moore, Phoenix

Defendants/Appellants In Propria Persona
                    BURCH & CRACCHIOLO v. MOORE
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop
joined.


J O N E S, Judge:

¶1            Joyce and Samuel Moore (Moore) appeal the trial court’s
denial of their motions for summary judgment, judgment as a matter of
law (JMOL), and motion for new trial. The matter culminated in a jury
verdict in favor of Burch & Cracchiolo, P.A. (Burch). For the reasons
discussed below, we affirm the trial court’s rulings.

             FACTS AND PROCEDURAL BACKGROUND

¶2           On October 29, 2004, William (Billy) Everett Preston granted
Joyce Moore medical power of attorney. Billy Preston, a Grammy Award-
winning soloist who performed with the Beatles and other musicians, was
admitted to the hospital in 2005 and died in June of 2006. Preston v.
Kindred Hosps. W., L.L.C., 226 Ariz. 391, 392, ¶ 2, 249 P.3d 771, 772 (2011).

¶3            According to Moore, in March 2006, while Preston was in a
comatose state, Preston’s disinherited half-sister petitioned to be
appointed conservator of Preston’s estate in Maricopa superior court.1 In
order to oppose the petition, Moore hired Burch to represent her. The
parties entered a fee agreement on March 30, 2006. At the time of the
agreement, Moore understood she hired Burch to represent her solely in
her capacity as medical power of attorney for Billy Preston, and the
Preston estate (estate) would be liable for the fees. Burch, however,
understood it was providing representation to Moore individually and on
her own behalf as Moore had a personal and business relationship with
Preston.     Consequently, Burch understood Moore was personally
responsible for costs and fees associated with providing representation.



1 This action was captioned “In re the Matter of Guardianship of:
WILLIAM EVERETT PRESTON (a.k.a. BILLY PRESTON) Adult” and
given the case number PB 2006-090202.



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                  BURCH & CRACCHIOLO v. MOORE
                        Decision of the Court

¶4            In December 2009, Burch filed a complaint against Moore
alleging her personal liability for legal representation in the matter of the
“Guardianship/Conservatorship of William Everett Preston.” Citing costs
and fees for services rendered pursuant to the fee agreement, Burch
claimed it was owed $29,481.38. Moore defended the action on the basis
that she had entered into the fee agreement with Burch only in her
capacity as medical power of attorney for Billy Preston, and the bill for
attorney fees belonged to the estate. 2

¶5            Moore filed a motion for summary judgment asserting that a
representative of the Preston Trust informed Burch the Preston Trust
(trust) was “in all likelihood responsible” for attorney fees which would
be paid when funds were unfrozen, and the Trust received documents
requested from Burch.         Burch filed a cross-motion for summary
judgment, alleging Moore breached the fee agreement and owed, at that
time, $36,648.04 in costs and fees. The trial court denied both motions on
the ground that a genuine issue of material fact existed regarding who
was liable for the legal services rendered by Burch; Moore personally or
the trust. In deciding the motions, the trial court limited its findings of
fact to the parties’ knowledge that Moore needed legal representation in
her capacity as medical power of attorney for Billy Preston. 3

¶6            The parties subsequently submitted the fee dispute to
arbitration. On May 16, 2012, the arbitrator found Burch the prevailing
party, and awarded $13,550.86 for legal services plus fees and costs. In
response, Moore filed a Rule 76 objection claiming, among other issues,
the award of costs was excessive, and reasserting her contention that
Burch represented her only in her capacity as medical power of attorney
for Billy Preston rather than “individually” as claimed by Burch. Shortly

2 As part of the agreement, Burch required a $10,000.00 retainer fee.
Moore paid $9,000.00 of the retainer, drawing the payment from what
Moore indicated were monies of Billy Preston. On October 21, 2005, the
estate of Billy Preston filed for bankruptcy under Chapter 11. On October
19, 2007, the Trustee commenced a civil action against Burch to recover
Moore’s payment of $9,000.00 towards the retainer fee which the Trustee
stated was “neither authorized under the Bankruptcy Code nor by the
Bankruptcy Court.” On January 18, 2011, the bankruptcy estate of Billy
Preston and Burch entered a settlement agreement for the partial return of
funds Moore paid to retain Burch.
3 As summarized by the trial court, “Her role was clear; who would pay

the legal fees unfortunately was not.”



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                  BURCH & CRACCHIOLO v. MOORE
                        Decision of the Court

thereafter, Moore appealed the arbitration award and moved to set the
matter for trial.

¶7             A three day trial commenced on September 17, 2012. On the
first day of trial, and prior to the commencement of proceedings before
the jury, Moore orally moved to dismiss the case which the trial court
denied. During the second day of trial, Moore orally moved the court for
judgment as a matter of law on two occasions: first, at the close of the
Burch’s case, and second, following the discussion of final jury
instructions. The minute entry for the second day of trial notes that the
trial court denied Moore’s second JMOL on the grounds that a reasonable
juror could find for Burch, and the triers of fact were to decide the issues
in the case. 4 Following trial, the jury found in favor of Burch and awarded
$20,000 of the $30,909.26 in costs and fees Burch asserted to be owed at the
time of trial.

¶8             Moore subsequently filed a motion for a new trial under
Arizona Rule of Civil Procedure 59(A)(8), asserting the jury verdict was
“contrary to law,” and arguing for the first time that the terms of the fee
agreement specified “two independent thresholds” requiring preparation
of a new fee agreement. The first threshold was if “litigation becomes
necessary,” and the second threshold was if “significant legal work needs
to be undertaken.” In its response to Moore’s motion for new trial, Burch
countered that, assuming for the sake of argument, the fee arrangement
did provide thresholds for new arrangements for attorney costs, Moore
was still obligated to pay for those fees incurred, which a trier of fact had
already determined to be $20,000.00. The trial court denied Moore’s
motion for new trial. This appeal followed. We have jurisdiction pursuant
to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1), (5)(a) (2014). 5

                           ISSUES ON APPEAL

¶9          As an initial matter, we note Moore’s opening brief, filed by
Moore as a self-represented litigant, fails to meet the requirements of
Arizona Rule of Civil Procedure 13(a)(1)-(6) and is thus procedurally


4 Because the record on appeal does not contain the trial transcript, and
the minute entry notes only that Moore moved for a JMOL after the close
of the Burch’s case, the trial court’s rationale for denying Moore’s first
motion for JMOL made on the second day of trial is unknown.
5 Absent material revisions after the relevant date, we cite to the current

version of the statute.



                                     4
                  BURCH & CRACCHIOLO v. MOORE
                        Decision of the Court

deficient as it lacks a jurisdictional statement, citations to the record, or
citations to relevant authorities. In addition, Moore failed to clearly
articulate the issues on appeal. The failure to comply with the briefing
requirements may be sufficient cause for dismissal. Clemens v. Clark, 101
Ariz. 413, 414, 420 P.2d 284, 285 (1966). In this instance, we exercise our
discretion to reach the merits of the issues raised on appeal. Drees v. Drees,
16 Ariz.App. 22, 23, 490 P.2d 851, 852 (1971).

¶10          For the first time on appeal, Moore contends the fee
agreement she entered into with Burch limited the cost of legal services to
the amount of the retainer provision ($10,000.00) unless the parties
entered into a new fee arrangement when litigation or advanced legal
work became necessary. 6 After a careful review of the opening brief, we
conclude the existence of three issues on appeal. Moore asserts the trial
court erred by denying her 1) motion for summary judgment; 2) oral
motions for JMOL; and 3) motion for new trial under Arizona Rule of
Civil Procedure 59(a)(8).

                               DISCUSSION

I.     Legal Fees “Capped” at the Amount of the Retainer Agreement

¶11           Moore initially asserts the fee agreement limited or
“capped” the cost of legal services at ($10,000.00) absent a new agreement.
An issue is proper on appeal if it has been raised first at the trial court
level. Dillon-Malik, Inc. v. Wactor, 151 Ariz. 452, 454, 728 P.2d 671, 673
(App. 1986). Burch claims the issue was never raised before the trial court
and should not be considered on appeal.

¶12          Neither Moore’s motion for summary judgment, nor
motions in opposition to Burch’s motion for summary judgment,
presented the issue of capped fees to the trial court. Furthermore, the
record on appeal does not contain trial transcripts of the summary
judgment hearing or the three-day trial. Consequently, we are unable to
determine if Moore argued the issue of capped fees below. Under
Arizona Rule of Civil Appellate Procedure 11(b), the appellant is


6 In the motion for new trial, Moore raised the issue of Burch’s alleged
failure to prepare a new fee arrangement when representation in court or
“significant legal work” became necessary. We are unable to determine
whether this issue was litigated during trial because the trial transcript
was not submitted in the record on appeal.



                                      5
                   BURCH & CRACCHIOLO v. MOORE
                         Decision of the Court

responsible for providing all relevant transcripts necessary for this Court
to consider the issues on appeal. Because Moore failed to do so, we
presume the evidence and arguments support the trial court’s rulings, and
do not consider the issue of capped fees on appeal. Blair v. Burgener, 226
Ariz. 213, 217, ¶ 9, 245 P.3d 898, 902 (App. 2010).

II.    Denial of Motions for Summary Judgment and JMOL

       A.     Moore’s Motion for Summary Judgment

¶13            Next, Moore contends the trial court erred as a matter of law
by denying her motion for summary judgment and “permitting the case to
be submitted to the jury.”         Ordinarily, the denial of a motion for
summary judgment is not appealable because it is not a final order.
Sorenson v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465-66, 957 P.2d 1007,
1008-09 (App. 1997) (“A denial of a motion for summary judgment is an
intermediate order deciding simply that the case should go to trial.”);
Hauskins v. McGillicuddy, 175 Ariz. 42, 49, 852 P.2d 1226, 1233 (App. 1992).
An appellate court may, however, review a trial court’s denial of
summary judgment when the denial is based solely on a matter of law or,
as in this case, the appellant preserved the appeal by filing a motion for
judgment as a matter of law during trial. Hauskins, 175 Ariz. at 49, 852
P.2d at 1233; John C. Lincoln Hosp. & Health Corp. v. Maricopa Cnty., 208
Ariz. 532, 539, ¶ 19, 96 P.3d 530, 537 (App. 2004). We review de novo
whether a pure question of law precluded the denial of summary
judgment. Stallings v. Spring Meadows Apartment Complex Ltd. P’ship, 185
Ariz. 156, 158, 913 P.2d 496, 498 (1996); Chi. Ins. Co. v. Manterola, 191 Ariz.
344, 346, ¶ 7, 955 P.2d 982, 984 (App. 1998).

¶14            Although the record on appeal does not contain trial
transcripts, the minute entries indicate Moore made two oral motions for
JMOL on the second day of trial, and by so doing, preserved the issue of
whether the trial court erred by denying Moore’s motion for summary
judgment and submitting the case to the jury. In its denial of summary
judgment, the trial court concluded genuine issues of material fact existed
as to who would pay for the legal services, Moore or the Preston Trust.
We find no error in the trial court’s denial of Moore’s motion for summary
judgment.

       B.     Moore’s Motions for Judgment as a Matter of Law

¶15         We also review de novo whether the trial court erred when it
denied Moore’s motions for JMOL, determining as a part of the analysis
whether a genuine dispute existed in regard to material facts, and viewing


                                      6
                   BURCH & CRACCHIOLO v. MOORE
                         Decision of the Court

the evidence in light most favorable to upholding the jury verdict.
McBride v. Kieckhefer Assocs., Inc., 228 Ariz. 262, 265, ¶ 10, 265 P.3d 1061,
1064 (App. 2011).

¶16              The record indicates the trial court denied Moore’s second
motion for JMOL on the grounds that genuine issues of material fact
existed during trial, and a reasonable juror could find for Burch. We find
no error in the trial court’s denial of Moore’s JMOLs, and therefore affirm
the trial court’s rulings on Moore’s motions for summary judgment and
JMOLs, concluding a motion for summary judgment and JMOL are
properly denied when there are genuine facts in dispute. See Orme Sch. v.
Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).

III.   Denial of Motion for New Trial

¶17            Lastly, Moore appeals the denial of her motion for new trial.
In her motion, Moore asserted the jury verdict was contrary to law, and
based her contention on the terms of the engagement letter. The trial
court denied Moore’s motion for new trial, noting the evidence presented
at trial was sufficient to support the verdict and was not so deficient as to
constitute a decision contrary to law. We review the trial court’s denial of
Moore’s motion for an abuse of discretion. McBride, 228 Ariz. at 266, ¶ 16,
265 P.3d at 1065.

¶18           However, the record on appeal does not include the trial
transcripts by which we might review the evidence presented.
Consequently, we are unable to review the sufficiency of that evidence in
support of the jury’s verdict. As a result, we assume the transcript would
support the jury’s verdict. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767
(App. 1995) (“When a party fails to include necessary items, we assume
they would support the court’s findings and conclusions.”). Accordingly,
we affirm the trial court’s denial of the motion for new trial.

                              CONCLUSION

¶19           For the foregoing reasons, we find the issue of “capped fees”
was not preserved for appeal, and affirm the trial court’s denial of
Moore’s motions for summary judgment, JMOL, and new trial. The trial
court correctly determined genuine issues of material fact precluded
summary judgment and the granting of Moore’s Motions for Judgment as
a Matter of Law. Furthermore, in the absence of trial transcripts, we
assume the evidence on appeal is determined sufficient to support the
verdict in favor of Burch.



                                      7
                  BURCH & CRACCHIOLO v. MOORE
                        Decision of the Court

¶20          Burch requests its attorney fees on appeal pursuant to A.R.S.
§ 12-341, -341.01 (2013). In our discretion, we award Burch reasonably
incurred attorney fees and costs on appeal, subject to its compliance with
ARCAP 21.




                                    :mjt




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