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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


               RAYMOND MUHAMMAD, Plaintiff/Appellant,

                                         v.

        BASHAS’ INC., an Arizona corporation, Defendant/Appellee.

                              No. 1 CA-CV 14-0091
                                 FILED 3-19-2015


            Appeal from the Superior Court in Maricopa County
                           No. CV2011-070313
              The Honorable Eileen S. Willett, Judge, Retired

                                   AFFIRMED


                                    COUNSEL

Raymond Muhammad, Phoenix
Plaintiff/Appellant In Propria Persona

Burch & Cracchiolo, PA, Phoenix
By Theodore A. Julian, Jr., Sarah N. O’Keefe
Counsel for Defendant/Appellee



                        MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.
                        MUHAMMAD v. BASHAS’
                          Decision of the Court

B R O W N, Judge:

¶1         Raymond Muhammad appeals the superior court’s entry of
summary judgment in favor of Bashas’ Inc. For the following reasons, we
affirm.

                              BACKGROUND1

¶2            Muhammad filed this action against Bashas’ seeking
compensation for injuries allegedly sustained when he slipped at a grocery
store owned by Bashas’. After the close of discovery,2 Bashas’ filed a
motion for summary judgment on causation and damages, asserting that
Muhammad failed to disclose any admissible evidence of causation and
had not identified any expert witness who could establish damages.
Muhammad did not timely respond and, addressing the merits of the
motion, the superior court granted summary judgment, finding no genuine
issue of material fact regarding the cause of his injuries, the reasonableness
and necessity of his medical treatment, or his lost wage claim. Muhammad
timely appealed from the subsequent judgment.3




1      Muhammad’s opening brief fails to make appropriate references to
the record as required, see Ariz. R. Civ. App. P. 13(a)(5), and contains
numerous factual assertions for which no support appears in the record.
As a result, the recitation of the facts is based on the court’s review of the
record. See Sholes v. Fernando, 228 Ariz. 455, 457 n.2, ¶ 2, 268 P.3d 1112, 1114
n.2 (App. 2011).

2     Muhammad twice failed to appear at the final pretrial conference
and the superior court dismissed the action. Both times the court granted
Muhammad’s motion to vacate the judgment of dismissal and reinstated
the case. However, the court never extended the original discovery
deadline.
3       Muhammad’s “Notice of Appeal to Vacate Judgment,” filed several
weeks after the court granted the motion for summary judgment, stated
Muhammad was confused by Bashas’ notice of lodging judgment because
he had advised Bashas’ counsel he would be out of town and had
understood that the court would not rule on any motions until the pretrial
conference. The document did not cite Rule 60(c) or present any grounds
for relief from judgment under that rule, and the superior court treated it
as a notice of appeal.


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                        MUHAMMAD v. BASHAS’
                          Decision of the Court

                               DISCUSSION

¶3             Muhammad argues he is entitled to relief from the judgment
pursuant to Arizona Rules of Civil Procedure Rule 60(c) because (1) he was
out of town when Bashas’ filed its motion for summary judgment and he
did not receive notice of the motion; and (2) he discovered new evidence
concerning his medical expenses and lost wages. A trial court may grant
relief from judgment on the grounds of “mistake, inadvertence, surprise or
excusable neglect,” or when there is “newly discovered evidence which by
due diligence could not have been discovered in time to move for a new
trial under Rule 59(d),” Ariz. R. Civ. P. 60(c)(1) and (2), and this court
reviews an order resolving such a motion for an abuse of discretion. City of
Phoenix v. Geyler, 144 Ariz. 323, 328, 697 P.2d 1073, 1078 (1985). Because
Muhammad did not seek Rule 60(c) relief in the superior court, there is no
ruling for this court to review, and we decline to consider the issue for the
first time on appeal. See Orfaly v. Tucson Symphony Soc’y, 209 Ariz. 260, 265,
¶ 15, 99 P.3d 1030, 1035 (App. 2004) (arguments raised for the first time on
appeal are untimely and deemed waived).

¶4             Moreover, to the extent that Muhammad contends the
superior court erred by granting summary judgment for Bashas’, we find
no error. See Schwab v. Ames Const., 207 Ariz. 56, 60, ¶ 17, 83 P.3d 56, 60
(App. 2004) (“We review the trial court’s grant of summary judgment on
the basis of the record made in the trial court, but we determine de novo
whether the entry of judgment was proper.”). Bashas’ sought summary
judgment on the basis that Muhammad had not disclosed any admissible
evidence to establish causation or damages. Bashas’ motion showed that
Muhammad failed to produce any evidence that (1) his injuries were the
result of his slip at Bashas’ grocery store; (2) his claimed future medical
expenses were reasonably probable; or (3) his injuries resulted in the loss of
wages. Muhammad did not timely respond to the motion or offer evidence
that a genuine issue of material fact existed concerning the cause of his
injuries, the reasonableness and necessity of his medical expenses, or his
lost wage claim. See Ariz. R. Civ. P. 56(e)(4); Nat’l Bank of Ariz. v. Thruston,
218 Ariz. 112, 114-15, ¶ 12, 180 P.3d 977, 979-80 (App. 2008) (party opposing
a summary judgment motion must produce evidence establishing a
genuine issue of material fact once the moving party satisfies its initial
burden).4 Accordingly, the superior court properly entered summary

4      After the superior court entered its ruling, Muhammad filed an
untimely response to the summary judgment motion in which he asserted
that he was still seeking medical treatment and gathering new evidence



                                       3
                         MUHAMMAD v. BASHAS’
                           Decision of the Court

judgment for Bashas’. See Grafitti-Valenzuela ex rel. Grafitti v. City of Phoenix,
216 Ariz. 454, 460, ¶ 21, 167 P.3d 711, 717 (App. 2007) (a court may grant
summary judgment when a party fails to demonstrate a material question
of fact upon which a reasonable jury could find causation); Tritschler v.
Allstate Ins. Co., 213 Ariz. 505, 520, ¶ 52, 144 P.3d 519, 534 (App. 2006)
(affirming summary judgment because plaintiff did not present sufficient
evidence to create a genuine issue of material fact regarding damages).

¶5             Finally, Muhammad claims his previous counsel was
ineffective, and he was not able to receive a fair trial at the Northwest
Regional Center of the Maricopa County Superior Court because there was
no available public transportation to that location. Because Muhammad
did not raise these issues with the superior court, he cannot do so on appeal.
See Orfaly, 209 Ariz. at 265, ¶ 15, 99 P.3d at 1035 (arguments raised for the
first time on appeal are untimely and deemed waived); Yuma County v.
Keddie, 132 Ariz. 552, 554, 647 P.2d 1150, 1152 (1982) (holding that a request
for change of venue “can be waived if not asserted in a timely fashion”).
Even if Muhammad had not waived these arguments, we would conclude
they are without merit. Relief from a civil judgment is generally not
available based on counsel’s inexcusable neglect. See Glaze v. Larsen, 207
Ariz. 26, 31, ¶ 20, 83 P.3d 26, 31 (2004). Muhammad has not alleged any
error by counsel that could warrant such relief; indeed, he could not make
such an allegation as he was not represented by counsel when the court
entered the judgment. Further, Arizona law contains no provision for
change of venue within a county and Muhammad has not alleged that
grounds for change of venue existed under the relevant statute. See Ariz.
Rev. Stat. § 12-406(B).




about his injuries, but he did not request additional time as required by
Rule 56(f). The court therefore acted within its discretion in striking the
untimely response.



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                     MUHAMMAD v. BASHAS’
                       Decision of the Court


                          CONCLUSION

¶6          Because Muhammad has not shown the superior court erred,
the judgment is affirmed.




                                :ama




                                 5
