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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


JUDSON C. BALL REVOCABLE TRUST, Plaintiff/Appellant Cross-Appellee,

                                         v.

  PHOENIX ORCHARD GROUP I LP, et al., Defendants/Appellees/Cross-
                      Appellants.

                              No. 1 CA-CV 19-0032
                                FILED 2-4-2020


            Appeal from the Superior Court in Maricopa County
                           No. CV2015-011768
                               CV2016-000284
                               (Consolidated)
               The Honorable Timothy J. Thomason, Judge

                                   AFFIRMED


                                    COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Co-Counsel for Plaintiff/Appellant Cross-Appellee

Thomas E. Littler, Tempe
By Thomas E. Littler
Co-Counsel for Plaintiff/Appellant Cross-Appellee

Freeman Law PLLC, Scottsdale
By Shelton L. Freeman, Elizabeth C. Heims
Counsel for Defendants/Appellees/Cross-Appellants
                  J. BALL TRUST v. PHX ORCHARD, et al.
                           Decision of the Court



                       MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Acting
Presiding Judge David D. Weinzweig and Chief Judge Peter B. Swann
joined.


G A S S, Judge:

¶1            The Judson C. Ball Revocable Trust (the Trust) appeals from
the superior court’s grant of summary judgment for John P. Norton, the
Estate of John R. Norton (Norton Sr.), and Roger Stevenson (collectively,
appellees). Judson C. Ball (Ball) is sole trustee of the Trust. This case
concerns investments the Trust made in a mandarin orange project. Because
the Trust has shown no genuine issues of material fact, the superior court’s
judgment is affirmed.

                FACTUAL AND PROCEDURAL HISTORY

¶2            Ball and Norton Sr. were friends for many years. They
invested in several projects together and often met for lunch. In early June
2006, they met for one such lunch. At the end of lunch, Norton Sr. told Ball
about a mandarin orange project run by Phoenix Orchard Group I, L.P. and
Phoenix Orchard Group II, L.P. (collectively, POG). They spoke about the
project for twenty or thirty minutes.

¶3           During their discussion, Norton Sr. showed Ball POG’s
Executive Summary. Ball looked at the first few pages. Ball did not keep a
copy for himself. Norton Sr. invited Ball to invest in POG. After this brief
discussion, Ball invested approximately $400,000 in POG on behalf of the
Trust.

¶4            Nearly a decade later, in October 2015, the Trust sued POG
and related parties, including appellees. This case has a long history,
including two previous stops at this court. Along the way, the primary
claims were resolved, and the Trust received full reimbursement of its
investment, with interest and fees, and some of the Trust’s additional claims
were dismissed. See Judson C. Ball Revocable Tr. v. Phoenix Orchard Grp. I,
L.P., 1 CA-CV 16-0557, 2018 WL 283049 (Ariz. App. Jan. 4, 2018) (mem.
decision); Judson C. Ball Revocable Tr. v. Phoenix Orchard Grp. I, L.P., 245 Ariz.
519 (App. 2018), review denied (Apr. 30, 2019).



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                 J. BALL TRUST v. PHX ORCHARD, et al.
                          Decision of the Court

¶5            In this appeal, the Trust seeks to revive its remaining claims
of fraud and negligent misrepresentation. In April 2018, appellees moved
for summary judgment on these claims. The superior court granted
appellees’ motion. The superior court later denied the Trust’s request for
reconsideration and appellees’ request for attorney fees. The superior court
then entered final judgment dismissing the case.

¶6           The Trust timely appealed. Appellees conditionally cross-
appealed the denial of fees.1 This court has jurisdiction over the appeal and
cross-appeal under Article 6, Section 9, of the Arizona Constitution, and
A.R.S. §12-2101(A)(1).

                                 ANALYSIS

¶7            Grants of summary judgment are reviewed de novo for both
the superior court’s factual and legal determinations. Kiley v. Jennings,
Strouss & Salmon, 187 Ariz. 136, 139 (App. 1996). This court reviews the facts
and reasonable inferences in the light most favorable to the non-moving
party. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). Summary judgment
is appropriate only when “the facts produced in support of the [non-
movant’s] claim . . . have so little probative value, given the quantum of
evidence required, that reasonable people could not agree with the
conclusion advanced [by the non-movant].” Orme Sch. v. Reeves, 166 Ariz.
301, 309 (1990).

¶8            The movant, therefore, may succeed on summary judgment
by demonstrating a lack of evidence for an essential element of the claim.
Aranki v. RKP Invs., Inc., 194 Ariz. 206, 209, ¶ 12 (App. 1999), as corrected
(May 3, 1999). Once this showing is made, the non-movant “bears the
burden of producing sufficient evidence that an issue of fact does exist.”
Doe v. Roe, 191 Ariz. 313, 323, ¶ 33 (1998). This burden requires the non-
movant to go beyond mere reliance on its pleadings. Nat’l Bank of Ariz. v.
Thruston, 218 Ariz. 112, 119, ¶ 26 (App. 2008), as amended (Jan. 23, 2008). The
non-movant “must call the court’s attention to evidence overlooked or
ignored by the moving party or must explain why the motion should
otherwise be denied.” Id.

¶9          Here, the Trust produced no admissible evidence on
damages, a key element of both its remaining claims. Fraud and negligent
misrepresentation are separate, but related, torts. Each require the plaintiff


1Based on this ruling, appellees have withdrawn their motion to dismiss
and their cross-appeal.


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                 J. BALL TRUST v. PHX ORCHARD, et al.
                          Decision of the Court

to show damage resulting from the defendant’s conduct. See Echols v. Beauty
Built Homes, Inc., 132 Ariz. 498, 500 (1982) (fraud); KB Home Tucson, Inc. v.
Charter Oak Fire Ins. Co., 236 Ariz. 326, 333 n.7 (App. 2014) (negligent
misrepresentation). Admissible evidence must support the claimed
damages. Pompeneo v. Verde Valley Guidance Clinic, 226 Ariz. 412, 415, ¶ 18
(App. 2011).

¶10           The Trust correctly says the previous recovery of its
investment will not bar recovery of additional damages. Attorney fees and
costs, however, cannot be used to establish the damage element of its
claims. See City Ctr. Exec. Plaza, LLC v. Jantzen, 237 Ariz. 37, 41, ¶ 13 (App.
2015).

¶11            The Trust’s original rescission claim may have been within an
exception to this general rule. See Desert Mountain Prop. Ltd. P’ship v. Liberty
Mut. Fire Ins. Co., 225 Ariz. 194, 209, ¶ 61 (App. 2010). The Trust, however,
was previously reimbursed its attorney fees and costs associated with that
claim. See Judson C. Ball Revocable Tr., 1 CA-CV 16-0557. Accordingly, this
case gives no reason to depart from the general rule.

¶12           The Trust further argues it is entitled to damages for
accountant fees and lost opportunity costs resulting from appellees’
conduct. The Trust’s only evidentiary support for this claim are
inadmissible, conclusory statements in an unverified disclosure and an
unsigned spreadsheet. “It is well settled that conjecture or speculation
cannot provide the basis for an award of damages.” Rancho Pescado, Inc. v.
Nw. Mut. Life Ins. Co., 140 Ariz. 174, 186 (App. 1984).

¶13          Because the Trust has not met its burden to produce
admissible evidence supporting its damage claims, a discussion of the
remaining elements is unnecessary. Appellees are entitled to judgment as a
matter of law. See Ariz. R. Civ. P. 56(a).

                      ATTORNEY FEES ON APPEAL

¶14            Appellees request attorney fees and costs incurred in this
appeal pursuant to A.R.S. §§ 12-341.01(A) and 12-349. This Court exercises
its discretion and declines to award attorney fees related to this appeal but
awards appellees their costs upon compliance with ARCAP. See Berry v. 352
E. Virginia, L.L.C., 228 Ariz. 9, 16, ¶ 35 (App. 2011) (“[I]n our discretion, we
deny [the party’s] request for attorneys’ fees but award its costs.”).




                                       4
                J. BALL TRUST v. PHX ORCHARD, et al.
                         Decision of the Court

                             CONCLUSION

¶15           The superior court’s evidentiary rulings and final judgment
are affirmed for the reasons set forth above.




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




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