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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


               WAYNE SIMMONS and TRUDY SIMMONS,
                 husband and wife, Plaintiffs/Appellants,

                                        v.

  MILTON FERRANTELLI, as Trustee of the MMF TRUST; WILLIAM
       “BILL” WEST AND LISA WEST, Defendants/Appellees.

                             No. 1 CA-CV 13-0687
                              FILED 8-20-2015


            Appeal from the Superior Court in Navajo County
                        No. S0900CV201300122
                 The Honorable Ralph E. Hatch, Judge

                      VACATED AND REMANDED


                                   COUNSEL

Law Offices of J. Roger Wood, P.L.L.C., Tempe
By J. Roger Wood, Erin S. Iungerich
Counsel for Plaintiffs/Appellants

Brown & Brown Law Offices, P.C., Pinetop
By Douglas E. Brown, Nicholas D. Patton
Counsel for Defendants/Appellees
                   SIMMONS v. FERRANTELLI/WEST
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.


D O W N I E, Judge:

¶1            Wayne and Trudy Simmons appeal from the superior court’s
entry of summary judgment against them.1 For the following reasons, we
vacate that judgment and remand for further appropriate proceedings.

                FACTS AND PROCEDURAL HISTORY

¶2           The Simmonses and Milton Ferrantelli, as trustee of the
MMF Family Trust (“Ferrantelli”), own homes next door to each other in
Show Low. Both properties are governed by the Torreon Community
Association, Inc. (“Torreon”). Summit Development Company, LLC
(“Summit”) developed the Torreon community.

¶3             Ferrantelli purchased his property in 2008 and subsequently
leased it to the Kings. After the Kings’ tenancy ended, Ferrantelli rented
the property to Bill and Lisa West. Neighbor-to-neighbor disputes have
persisted for years, including allegations by the Simmonses of set-back
violations and complaints about noise and other disturbances on the
Ferrantelli property. In 2012, the Simmonses sued Torreon, Summit,
Ferrantelli, and the Wests, alleging breach of contract, breach of covenant
of good faith and fair dealing, breach of duty, nuisance, and negligence
per se.

¶4             Torreon moved to dismiss the Simmonses complaint for
failure to state a claim upon which relief can be granted, see Ariz. R. Civ.
P. 12(b)(6), and Summit joined in that motion. Torreon argued dismissal
was appropriate because the Simmonses had not followed the alternative
dispute resolution (“ADR”) provisions set forth in the Torreon Declaration
of Covenants, Conditions, and Restrictions (“Declaration”).



1      We grant the Simmons’ unopposed procedural motion to correct
the caption. The caption is amended to read “Wayne Simmons.”



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                    SIMMONS v. FERRANTELLI/WEST
                         Decision of the Court

¶5             In March 2013, the Simmonses voluntarily dismissed
Torreon and Summit from the litigation. Ferrantelli and the Wests
thereafter filed a joinder in Torreon’s still-pending motion to dismiss.
After briefing and argument of the Rule 12(b)(6) motion, the superior
court entered summary judgment in favor of Ferrantelli and the Wests.
The Simmonses timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and 12-
2101(A)(1).

                               DISCUSSION

¶6           One of the Simmonses’ appellate arguments is that the
superior court improperly converted the motion to dismiss into a motion
for summary judgment. We agree. Rule 12(b) provides:

       If, on a motion asserting the defense numbered 6 to dismiss
       for failure of the pleading to state a claim upon which relief
       can be granted, matters outside the pleading are presented
       to and not excluded by the court, the motion shall be treated
       as one for summary judgment and disposed of as provided
       in Rule 56, and all parties shall be given reasonable
       opportunity to present all material made pertinent to such a
       motion by Rule 56.

¶7            Exceptions to Rule 12(b)’s conversion mandate exist for
materials that are intrinsic to the complaint, unnecessary to the final
outcome, or public records. See Coleman v. City of Mesa, 230 Ariz. 352, 356,
¶ 9, 284 P.3d 863, 867 (2012); Strategic Dev. & Constr., Inc. v. 7th & Roosevelt
Partners, LLC, 224 Ariz. 60, 63–64, ¶¶ 8, 13, 226 P.3d 1046, 1049–50 (App.
2010). A document is intrinsic to the complaint if it is attached to the
complaint, sufficiently referenced in the complaint, or an official public
record. Belen Loan Investors, LLC v. Bradley, 231 Ariz. 448, 452, ¶ 6, 296
P.3d 984, 988 (App. 2012).

¶8             Torreon’s Rule 12(b)(6) motion included four multi-page
exhibits consisting of photographs and communications between counsel
for various parties. The motion discussed and relied on these documents
to support the contention that the Simmonses had failed to comply with
the Declaration’s ADR terms, thereby waiving all claims set forth in the
civil complaint. The superior court did not exclude these exhibits. On the
contrary, it relied on and discussed them, stating for the first time in its
under advisement ruling that it would be treating the Rule 12(b)(6) motion
as one for summary judgment. With the exception of the Declaration,



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                   SIMMONS v. FERRANTELLI/WEST
                        Decision of the Court

though, the exhibits accompanying the motion were not public records,
intrinsic to the complaint, or unnecessary to the final outcome. Cf. Young
v. Rose, 230 Ariz. 433, 438, ¶¶ 26, 28, 286 P.3d 518, 523 (App. 2012)
(submitting “copies of numerous e-mail messages” converted 12(b)(6)
motion into motion for summary judgment).

¶9            When a court converts a motion to dismiss into a motion for
summary judgment, it must give all parties “reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.” Ariz. R.
Civ. P. 12(b); see also Parks v. Macro-Dynamics, Inc., 121 Ariz. 517, 519–20,
591 P.2d 1005, 1007–08 (App. 1979) (“If matters outside the complaint are
presented to and not excluded by the court, the motion is one for
summary judgment, provided all parties are given a reasonable
opportunity to present their factual claims to the court.”). That did not
occur here, and the Simmonses contend they were deprived of “an
opportunity to fully address additional facts, provide affidavits or
otherwise provide a robust defense to the Rule 56 Motion for Summary
Judgment.” Contrary to appellees’ suggestion, whether the Simmonses
were familiar with the documents attached to the motion or can ultimately
prevail under Rule 56 standards is not the proper focus. Rule 12 and due
process principles make clear that the Simmonses are entitled to notice
and a meaningful opportunity to present controverting facts and evidence
before summary judgment is entered against them.

¶10           We vacate the entry of summary judgment and remand to
the superior court for further appropriate proceedings. See Young, 230
Ariz. at 434, 438, ¶¶ 2, 26–27, 286 P.3d at 519 (judgment vacated because
extrinsic documents were attached to 12(b)(6) motion, discussed by
parties, and relied on by court). Based on our determination, we do not
reach the Simmonses’ substantive arguments regarding the ADR
provisions. We do, however, address one substantive issue likely to arise
on remand: whether the ADR provisions govern the Simmonses’
nuisance claim.

¶11           Section 15.2 of the Declaration exempts from the ADR
requirements “any suit between Owners, which does not include
Declarant or the Association as a party, if such suit asserts a Claim which
would constitute a cause of action independent of the Governing
Documents.” Nuisance is a common law action independent of the
Declaration. See Armory Park Neighborhood Ass’n v. Episcopal Cmty. Servs. in
Ariz., 148 Ariz. 1, 4, 712 P.2d 914, 917 (1985). At all times, only Ferrantelli
and the Wests have been defendants regarding the nuisance count. And



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                  SIMMONS v. FERRANTELLI/WEST
                       Decision of the Court

by the time the court granted the motion to dismiss, neither Torreon nor
Summit was a party.

¶12            We disagree with the superior court’s conclusion that,
simply because Torreon and Summit were initially named as defendants
in other counts of the complaint, the Simmonses were forever barred from
proceeding against Ferrantelli and the Wests on a common law nuisance
claim that is clearly independent of the “Governing Documents.”
Therefore, even if the superior court determines on remand that the
Simmonses failed to comply with binding ADR terms, the nuisance cause
of action is not subject to dismissal on that basis.

                            CONCLUSION

¶13          We vacate the entry of summary judgment and remand for
further appropriate proceedings. We deny appellees’ request for an
award of attorneys’ fees under A.R.S. § 12-341.01 because they have not
prevailed on appeal. We award the Simmonses their taxable costs on
appeal upon compliance with ARCAP 21.




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