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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                    MITCHELL L. PEARCE, Special
                     Administrator of the Estate of
                JACQUELINE B. PEARCE, Plaintiff/Appellant,

                                         v.

                 CITY OF YUMA, et al., Defendants/Appellees.

                              No. 1 CA-CV 16-0574
                                FILED 12-5-2017


              Appeal from the Superior Court in Yuma County
                         No. S1400CV201600419
               The Honorable Lawrence C. Kenworthy, Judge

                                   AFFIRMED


                                    COUNSEL

Mitchell L. Pearce, Fountain Valley, CA
Plaintiff/Appellant

Jones, Skelton & Hochuli PLC, Phoenix
By Lori L. Voepel
Co-Counsel for Defendants/Appellees

Yuma City Attorney’s Office, Yuma
By Rodney Short
Co-counsel for Defendants/Appellees
                           PEARCE v. YUMA, et al.
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Chief Judge Samuel A. Thumma
joined.


T H O M P S O N, Judge:

¶1           Jacqueline Pearce 1 appeals the trial court’s order dismissing
her lawsuit against the City of Yuma, and the City of Yuma’s Mayor and
City Council (collectively, City Appellees). We affirm the order.

                FACTUAL AND PROCEDURAL HISTORY

¶2            Pearce filed a complaint on June 14, 2016 seeking declaratory
and mandamus relief for alleged violations of Arizona Revised Statutes
(A.R.S.) section 28-7201, et seq. (disposition of public roadways). The
complaint asserted that the City of Yuma’s legislative approval of the
Desert Ridge Subdivision Phase 4 in July 2001 cut off access to Pearce’s
property via a “strip of Avenue 8E” due to abandonment, improper
disposal, and physical occupation. However, exhibits provided to the trial
court through their attachment to Pearce’s own complaint illustrated that
the City’s approval of the development never implicated her property in
any fashion.

¶3           The City Appellees moved to dismiss the complaint pursuant
to Arizona Rules of Civil Procedure (Rule) 12(b)(1), 12(b)(6), 12(b)(7) and
19. After briefing was complete, but without oral argument, which was
requested by neither party, the trial court granted the motion.

¶4            Within the court’s order, it concluded that Pearce’s assertions
in her lawsuit “lack[ed] the prima facie showing of minimal detail
necessary to satisfy ‘injury in fact’ [or to show a] ‘sufficient concrete interest
at stake.’” Pearce made no further filings in the trial court. The court issued
a final judgment pursuant to Rule 54(c) and we have jurisdiction over



1      This appeal was initially filed by Jacqueline Pearce. Jacqueline
subsequently passed, and the appeal was maintained by Mitchell L. Pearce,
in her place, as the Special Administrator of her estate.


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                           PEARCE v. YUMA, et al.
                            Decision of the Court

Pearce’s timely appeal pursuant to A.R.S. §§ 12-2101(A)(1) (2016) and -1837
(2016).

                                DISCUSSION

¶5           Pearce raises various issues on appeal, and “requests this
court grant any and all relief it deems proper under the circumstances.”
Pearce’s arguments, however, are all either unsupported by the record,
waived, or without merit.

I.     Dismissal of Pearce’s Complaint

¶6           In her opening brief, Pearce avers that (1) the trial court
violated her procedural due process rights by dismissing her complaint
without a notice of hearing and opportunity to be heard; and (2) City
Appellees’ trial attorney committed fraud upon the court by making
“imaginary statements” to the court, and participating in a purported “ex
parte hearing” with the trial court, without providing Pearce notice of the
hearing or providing the court with facts favorable to Pearce.

¶7             Within her reply brief, Pearce, for the first time, challenges the
substance of the court’s order dismissing the complaint. She additionally
argues that “the order granting the motion to dismiss is not an appealable
judgment” because she believes it dismisses her complaint for grounds
upon which the City Appellees’ motion to dismiss was not premised. She
also argues that the trial court’s order does not “fully” address the material
facts raised within her complaint and considered information that, in effect,
converted the motion to dismiss to a Rule 56 motion for summary
judgment. While this court generally does not consider issues raised for the
first time in an appellant’s reply brief, 2 to the extent the issues raised within
Pearce’s reply brief constitute an extension of her violation of procedural
due process claim raised in the opening brief, we consider them.

¶8             As a preliminary matter, nothing in the record supports
Pearce’s claims of “fraud on the court,” or that any “ex parte hearing” took
place. Apart from the lack of any record support, because she raises these
claims for the first time on appeal, they are waived. See Banales v. Smith, 200
Ariz. 419, 420, ¶ 8 (App. 2001) (finding that a failure to raise an issue with
the trial court waives the issue on appeal); Jimenez v. Sears, Roebuck & Co.,
183 Ariz. 399, 406 n.9 (1995) (noting a “rare exception” to the waiver rule

2       See, e.g., Marco C. v. Sean C., 218 Ariz. 216, 219 n.1, ¶ 8 (App. 2008)
(citing Ariz. Dep’t of Revenue v. Ormond Builders, Inc., 216 Ariz. 379, 385 n.7
(App. 2007)).


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                          PEARCE v. YUMA, et al.
                           Decision of the Court

where a “good reason exists,” such as when the issue raised is a
constitutional argument which is “fundamental, affect[s] an entire body of
legislation, and ha[s] been advanced in other cases but not squarely
decided”).

¶9            The dispositive issue within this appeal is whether the trial
court properly dismissed Pearce’s complaint. We review de novo the trial
court’s grant of a motion to dismiss, Coleman v. City of Mesa, 230 Ariz. 352,
355, ¶ 7 (2012), and find that the trial court properly disposed of Pearce’s
nonviable complaint.

¶10            In substance Pearce argues she had a right to a hearing or oral
argument. However, she did not request an oral argument, and was not
entitled to one, even if she had made such a request. Further, the superior
court did not err, violate Pearce’s due process right, or conduct an ex parte
proceeding by granting the motion to dismiss without a hearing or oral
argument. Pursuant to Rule 7.1(c), “the court at any time or place, and on
such notice, if any, as the court considers reasonable, may make orders for
the advancement, conduct, and hearings of motions.”

¶11           The record shows that the court considered the City
Appellees’ argument raised within their motion to dismiss that “[Pearce’s]
Complaint fails to allege a ‘justiciable controversy’ or ‘injury in fact.’” The
court also appeared to have considered the City Appellees’ assertion that
documents attached to Pearce’s complaint show she did not otherwise have
a legal right of access across the property her complaint alleges she was
deprived of through the actions of the City of Yuma. As noted, such
documents were submitted with Pearce’s complaint. Pearce also submitted
a response to the City Appellees’ motion to dismiss wherein she effectively
conceded not having had legal access across the subject property.

¶12           In ruling on the motion, the trial court found:

       [T]he documents [attached to Pearce’s complaint] show no
       one can get access to Desert Ridge Subdivision from Plaintiff’s
       property without first crossing the railroad property. Finally,
       those documents show there is no Avenue 8E access across the
       railroad property from Plaintiff’s property to Desert Ridge
       Subdivision.

(Emphasis added.) The court noted that in her response to the motion,
Pearce speculatively argued “that there is a possibility she could have the
necessary authority create the missing access at some time in the future, she
could have secured that access in the past and that her ability to obtain


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                          PEARCE v. YUMA, et al.
                           Decision of the Court

access has been impaired.” As permitted by Rule 7.1(c), the court
determined Pearce’s complaint insufficient and granted the motion to
dismiss.

¶13            We are additionally unconvinced by Pearce’s argument that,
in dismissing her complaint, the trial court may have considered materials
that effectively converted the City Appellees’ motion to dismiss into a Rule
56 motion. Pearce’s “evidence” in this regard is that (1) the word “railroad,”
which appeared only once in her complaint, “is used 28 times in the motion
to dismiss” and “three times in the order granting the motion to dismiss;”
(2) in the motion, the City Appellees made “numerous references to events
that occurred south of the railroad tracks;” and (3) “six exhibits” were
attached to the motion to dismiss. The import of Pearce pinpointing these
details appears to be to suggest that the trial court improperly considered
this information. Compare Strategic Dev. & Constr., Inc. v. 7th & Roosevelt
Partners, LLC, 224 Ariz. 60, 61, ¶ 1 (App. 2010) (stating that if a court does
not exclude matters outside the pleadings, a Rule 12(b)(6) motion to dismiss
must be treated “as a Rule 56 motion for summary judgment and [the court
must] allow the plaintiff a ‘reasonable opportunity to present’ all pertinent
material in response”) with Brosie v. Stockton, 105 Ariz. 574, 576 (1970) (no
conversion necessary when extraneous material was “unnecessary to the
final outcome”). While the court expressly relied on the documents in
Pearce’s compliant, there is no indication or showing that the court
considered other documents attached to the motion to dismiss.

¶14            Section (d) of Rule 7.1 provides: “Subject to Rule 56(c)(1), the
court may decide motions without oral argument, even if oral argument is
requested.” However, Rule 56(c)(1) applies to summary judgment and
states the court must set oral argument, “unless it determines that the
motion should be denied or the motion is uncontested.” Because the
materials the court considered were attached to Pearce’s complaint or
concessions intrinsic to her complaint, the motion to dismiss needed not be
converted to a Rule 56 motion. See, e.g., Strategic Dev. & Constr., Inc., 224
Ariz. at 61-62 (concluding that “[b]ecause the extraneous documents were
both matters of public record and the basis of one of the claims in the
complaint, . . . the court did not abuse its discretion by granting the motion
without permitting the plaintiff an opportunity to respond pursuant to Rule
56”). The court did not err in granting the motion to dismiss without oral
argument.

¶15            The court dismissed Pearce’s complaint for failure to satisfy
justiciable controversy requirements. See Hunt v. Richardson, 216 Ariz. 114,
125, ¶ 37 (App. 2007) (internal quotation and citations omitted) (“For a court


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                          PEARCE v. YUMA, et al.
                           Decision of the Court

to grant declaratory judgment, a justiciable controversy must exist. A
justiciable controversy exists if there is ‘an assertion of a right, status, or
legal relation in which the plaintiff has a definite interest and a denial of it
by the opposing party.’ The controversy, however, must be real, not merely
theoretical.”). Because Pearce failed to show she had past or present legal
access across the property at the heart of her complaint, and merely
speculates regarding obtaining such access at some unspecified time in the
future, we affirm the trial court’s order granting the motion to dismiss.

II.    Attorneys’ Fees and Costs

¶16            The City Appellees request an award of attorneys’ fees and
costs pursuant to A.R.S. § 12-349 (2016) (frivolous lawsuits), Arizona Rule
of Civil Appellate Procedure (ARCAP) 25 (sanctions), and Rule 11
(sanctions). We award them fees pursuant to § 12-349 for the following
reasons: 3 First, we agree that the claims were baseless and frivolous. See
Evergreen W., Inc. v. Boyd, 167 Ariz. 614, 615 (App. 1991) (internal quotation
and citation omitted) (noting that a claim is frivolous “if [the] proponent
can present no rational argument based upon the evidence or law in
support of that claim”). We find the injury in frivolity was compounded
when Pearce continued to pursue the lawsuit after the opposing party made
her aware that it was baseless. Second, the lawsuit is uncivil, asserts
scurrilous claims, and meritlessly attacks opposing counsel. Third, as he is
not an attorney, the estate’s special administrator was not legally
authorized to file a reply brief in this court without counsel. Cf. Byers–Watts
v. Parker, 199 Ariz. 466, 469, ¶ 13 (App. 2001) (non-attorney parent or like
fiduciary must be represented by attorney to maintain lawsuit on behalf of
child or incompetent person); see also Hansen v. Hansen, 7 Cal. Rptr. 3d 688,
691 (Cal. Ct. App. 2003) (non-lawyer representing mother’s estate as
personal representative could not appear in propria persona for estate
outside probate proceedings); In re Marriage of Kanefsky, 260 P.3d 327, 329–
30 (Colo. App. 2010) (non-lawyer conservator could not represent party in
divorce action without attorney).

¶17          We additionally grant the City Appellees’ request for an
award of taxable costs contingent upon their compliance with ARCAP 21,
and in an amount to be determined.



3      In assessing fees under A.R.S. § 12-349, a court shall set forth enough
specific reasons for an award so a reviewing court may test the judgment’s
validity. Rogone v. Correia, 236 Ariz. 43, 50, ¶ 22 (App. 2014) (citing A.R.S. §
12-350).


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                        PEARCE v. YUMA, et al.
                         Decision of the Court

                             CONCLUSION

¶18           For the foregoing reasons, we affirm the trial court’s order
granting the City Appellees’ motion to dismiss Pearce’s lawsuit requesting
declaratory judgment and mandamus action.




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




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