Knight v. Elias

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NANCY KNIGHT, Plaintiff/Appellant,

v.

T’SHURA-ANN ELIAS, Defendant/Appellee.

No. 1 CA-CV 25-0618
FILED 03-24-2026

Appeal from the Superior Court in Mohave County
No. S8015CV202500843
The Honorable Megan A. McCoy, Judge

AFFIRMED

APPEARANCES

Nancy Knight, Fort Mohave
Plaintiff/Appellant

Gordon Rees Scully Mansukhani, LLP, Phoenix
By Matthew G. Kleiner and Solomon S. Krotzer
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of the court, in which
Judge Anni Hill Foster and Chief Judge Randall M. Howe joined.
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G A S S, Judge:

¶1 Nancy Knight appeals the superior court’s order dismissing
her complaint against T’Shura-Ann Elias, who was opposing counsel in a
case in which Knight was a party. Because the superior court did not err in
dismissing her complaint, the court affirms.

FACTUAL AND PROCEDURAL HISTORY

¶2 The court views the facts “in the light most favorable to the
non-moving party.” Mirchandani v. BMO Harris Bank, N.A., 235 Ariz. 68, 69
¶ 2 (App. 2014). The court assumes “the truth of all well-pleaded factual
allegations and indulge[s] all reasonable inferences from those facts.”
Coleman v. City of Mesa, 230 Ariz. 352, 356 ¶ 9 (2012). But the court does not
accept as true “conclusions of law or unwarranted deductions of fact.” Folk
v. City of Phoenix, 27 Ariz. App. 146, 150 (1976).

I. Knight lost two earlier cases, one of which involved Elias as
Knight’s opposing counsel.

¶3 Elias represented parties in an earlier case in which Knight
was the plaintiff: Yavapai County Case No. CV2022-00177 (the 2022 case).
The claims in the 2022 case are irrelevant to resolution of this appeal. Knight
looks to the 2022 case because she believes Elias’s clients should not have
prevailed at the superior court and on appeal in 1 CA-CV 24-0018. In this
appeal, Knight asks the court to correct what she perceives were errors in
the 2022 case and the appeal. And she seeks to hold Elias liable for acts and
statements Elias made in representing her clients.

¶4 Knight also wants the court to correct perceived errors in
another case: Mohave County Superior Court Case No. CV2018-04003 (the
2018 case) and the related appeal, 1 CA-CV 24-0075. Elias was not involved
in the 2018 case. As with the 2022 case, the claims in the 2018 case are
irrelevant to resolution of this appeal. Knight also did not prevail on the
appeal of the 2018 case.

¶5 The appeals in the 2018 and 2022 cases have become final; the
court mandated both on April 24, 2025.

II. Knight sued Elias based on Elias’s representation of her clients in
the 2022 case.

¶6 In her 63-page complaint, Knight alleged claims for “Fraud
and Breach of Duty (negligence) as a Defense Counsel.” Knight alleged

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Elias’s “Fraud and Breaches of Duty contributed to dismissal of all
Defendants in Plaintiffs CV 2022 00177 and where Plaintiff seeks remedy
on multiple levels as found in the Demands for Relief.”

III. The superior court granted Elias’s motion to dismiss.

¶7 Elias moved to dismiss Knight’s complaint. The superior
court considered the briefing on that motion. The superior court also took
judicial notice of Knight’s other cases, including the 2018 and the 2022 case.

¶8 The superior court began by recognizing Knight brought
claims “against Defendant, a lawyer representing opposing parties in prior
litigation.” For that reason, the superior court concluded Elias owed Knight
no duty. The superior court found the fraud claim failed because Knight
did not plead it with particularity. The alleged facts did not support fraud
because Knight could not reasonably rely on Elias’s statements as opposing
counsel. And the superior court concluded any alleged ethical violations by
Elias do “not create a cause of action, and must be dealt with in the proper
format.”

¶9 The court granted the motion: “Taking all allegation of
material fact in the complaint as true, it still fails. As a matter of law,
Plaintiff is not entitled to relief under any interpretation of the Complaint.”
The superior court then denied leave for Knight to amend her complaint,
saying Knight could not prevail under any set of facts against Elias because
of the litigation privilege and the statute of limitations.

IV. Important to this appeal, Knight’s complaint is silent on aiding
and abetting.

¶10 When Knight was before the superior court, she made just 2
passing comments about aiding and abetting in her response to Elias’s
motion to dismiss. At page 4 of Knight’s response to the motion to dismiss,
she said, “Elias’[s] Breach of Duty and fraud for assisting her clients to
continue to breach their Declaration of CC&Rs is called aiding and abetting
a client to do harm. . . . Elias chose to aid and abet her clients to do harm to
Knight rather than represent her clients in a counterclaim . . . .” Knight did
not elaborate or provide any legal authority.

¶11 Despite the lack of discussion before the superior court,
Knight’s briefing on appeal mentions “aiding and abetting” 18 times (14
time in the opening brief and 4 times in the reply brief). But the opening
and the reply brief cite no legal authority to support a claim for aiding and

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abetting. That said, Elias did not address or even use the words “aiding” or
“abetting” before the superior court or in Elias’s answering brief.

¶12 The court has jurisdiction over Knight’s timely appeal under
Article VI, Section 9, of the Arizona Constitution, and A.R.S. § 12-2101.A.1.

DISCUSSION

I. The court cannot grant Knight any relief in either the 2018 or 2022
case.

¶13 A significant amount of Knight’s 71-page brief discusses relief
Knight wants the court to grant in those cases. But they are not before the
court and they have become final. Mandates have been issued in those
cases, but Knight does not explain how the court has jurisdiction to alter the
final decisions in those appeals. See Doty-Perez v. Doty-Perez, 245 Ariz. 229,
231 ¶ 7 n.6 (App. 2018) (citing Ariz. R. Civ. App. P. 24(a)) (“An appellate
court retains jurisdiction of an appeal until it issues the mandate.”). The
court thus cannot grant Knight any relief in the 2018 and the 2022 cases.

¶14 If Knight believes Elias engaged in misconduct in the earlier
cases, Knight had to pursue her remedies in the earlier litigation. See
Safeway Ins. Co., Inc. v. Guerrero, 210 Ariz. 5, 14–15 ¶¶ 32–33, 35 (2005)
(describing existing “deterrence to lawyer misbehavior,” including “severe
jeopardy” for deceit in litigation under civil procedure and ethical rules);
Norwest Bank, N.A. v. Symington, 197 Ariz. 181, 186 ¶ 22 (App. 2000) (finding
disclosure failures to be misconduct warranting Rule 60 relief from
judgment in same action); Linder v. Brown & Herrick, 189 Ariz. 398, 406–07
(App. 1997) (describing “other remedies” available to litigants who believe
opposing counsel are guilty of misconduct in litigation, including filing of
Rule 60 motion for relief from final judgment on basis of fraud,
misrepresentation, or other misconduct); see also Lewis v. Swenson, 126 Ariz.
561, 565 (App. 1980) (“The court’s inherent power to manage its affairs
necessarily includes authority to impose appropriate sanctions on those
appearing before it.”).

II. Knight’s opening and reply brief do not comply with Rule 13,
Arizona Rules of Civil Appellate Procedure.

¶15 “An appellant who fails to make a bona fide and reasonably
intelligent effort to comply with the rules will waive issues and arguments
not supported by adequate explanation, citations to the record, or
authority.” Ramos v. Nichols, 252 Ariz. 519, 522 ¶ 8 (App. 2022) (cleaned up).
The court holds Knight, a self-represented litigant, to the same standards as

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an attorney and does not afford her special leniency. See Flynn v. Campbell, 243 Ariz. 76, 83–84 ¶ 24 (2017).

¶16 Under Rule 13, the opening brief must set forward “a
statement of the case that must concisely state the nature of the case, the
course of the proceedings, the disposition in the court from which the
appeal is taken, and the basis of the appellate court’s jurisdiction with
appropriate references to the record.” Ramos, 252 Ariz. at 522 ¶ 8; Ariz. R.
Civ. App. Proc. 13(a)(4). The brief also must cite any legal authority and
make any substantive argument. See Ariz. R. Civ. App. Proc. 13(a)(7)(A)
(“Appellant’s contentions concerning each issue presented for review, with
supporting reasons for each contention, and with citations of legal
authorities and appropriate references to the portions of the record on
which the appellant relies.”). And a party waives claims by failing “to
develop and support [the party’s] conclusory arguments.” Boswell v.
Fintelmann, 242 Ariz. 52, 54 ¶ 7 n.3 (App. 2017); See Ariz. R. Civ. App. Proc.
13(a)(7).

¶17 Elias argues Knight waived her arguments on appeal because
her opening brief does not conform with Rule 13, Arizona Rules of Civil
Appellate Procedure. Knight’s statement of the case is far from concise (9
pages) and includes almost no citations to the record. Knight’s statement of
facts, at 44 pages long, is similarly deficient with regard to record citations.
The opening brief uses 10 pages to address the standard of review, but then
includes just 8 pages of arguments. The authority on which Knight relies
generally is not on point. And as Elias points out, Knight tries to avoid the
page limit by saying, “Word limit requires arguments to be incorporated in
the Appendix.” That appendix consists of 3 pages of requests for the court
to grant relief here and in other cases.

¶18 For the above reasons, the court could consider Knight to
have abandoned and waived her claims. Ramos, 252 Ariz. at 522 ¶ 8. Even
so, the court exercises its discretion to decide this appeal on its merits based
on its own review of the record. See Adams v. Valley Nat’l Bank of Ariz., 139
Ariz. 340, 342 (App. 1984) (recognizing courts prefer to decide each case
upon its merits rather than dismissing on procedural grounds).

III. The superior court did not err when it granted Elias’s motion to
dismiss.

¶19 The court reviews de novo a ruling on a motion to dismiss. See
City of Mesa v. Ryan, 258 Ariz. 297, 299 ¶ 8 (2024); Shepherd v. Costco Wholesale
Corp., 250 Ariz. 511, 513 ¶ 11 (2021) (dismissal under Arizona Rules of Civil

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Procedure 12(b)(6) reviewed de novo). In so doing, the court considers just
the complaint itself, its exhibits, and public records of matters referenced in
the complaint. See Coleman, 230 Ariz. at 356 ¶ 9. The court thus takes judicial
notice of the records in the earlier and this case. See Ariz. R. Evid. 201(c)(1),
(d); Gordon v. Est. of Brooks, 242 Ariz. 440, 442 ¶ 2 n.2 (App. 2017); Visco v.
Universal Refuse Removal Co., 11 Ariz. App. 73, 74 (1969).

¶20 “Dismissal is appropriate under Rule 12(b)(6) only if ‘as a
matter of law [Knight] would not be entitled to relief under any
interpretation of the facts susceptible of proof.’” Coleman, 230 Ariz. at 356
¶ 8 (quoting Fid. Sec. Life Ins. Co. v. State Dep’t of Ins., 191 Ariz. 222, 224 ¶ 4
(1998)). The court will affirm the superior court’s dismissal of a complaint
“if it is correct for any reason.” Fappani v. Bratton, 243 Ariz. 306, 309 ¶ 8
(App. 2017).

¶21 Because Knight seeks relief based on Elias’s action in the 2022
case, the court may take judicial notice of anything the superior court could
have, even if it did not do so. See Gordon, 242 Ariz. at 442 ¶ 2 n.2; see also
Ariz. R. Evid. 201(c)(1), (d) (saying court may take judicial notice on its own,
at any stage of the proceeding). And Arizona has long recognized a court
properly may “take judicial notice of the record in another action tried in
that same court.” Visco, 11 Ariz. App. at 74.

a. Knight cannot prevail on her claims for fraud or for breach of
duty (whether sounding in negligence or otherwise).

¶22 Almost 30 years ago, the court said parties cannot prevail on
a fraud claim against opposing counsel, well-pled or otherwise. Linder, 189
Ariz. at 402, 405. Linder ruled those claims “legally deficient” because, “as a
matter of law and common sense, [the parties] had no right to rely on
statements made by the attorneys opposing them.” Id. at 405. In Linder, the
parties who lost an earlier lawsuit sued the prevailing adverse party’s
attorneys, arguing—much like Knight does—the attorneys “committed
fraud by making false representations to the court and by withholding
material information during th[e] litigation.” Id. at 402. As Linder said, “[n]o
authority exists in Arizona for bringing a claim of fraud against an
opposing attorney for statements made during litigation.” Id. at 406 (noting
that Arizona’s case law “narrowly limits claims against opposing
counsel.”); see also Safeway Ins. Co., Inc., 210 Ariz. at 14 ¶ 31 (citing Linder
with approval for proposition that “[a] party to a lawsuit generally may not
premise a fraud claim on alleged misrepresentations by adverse counsel.”).

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¶23 Knight also cannot prevail on her breach of duty claim
(whether sounding in negligence or otherwise) because Elias owed Knight
no duty. Knight has cited no authority allowing her to pursue a negligence
claim against Elias and as the superior court said, Arizona cases support a
contrary conclusion. See Lewis v. Swenson, 126 Ariz. 561 (App. 1980). In
Lewis, the court explained lawyers in litigation owe duties to their clients
and “to the court, and not to the adverse party.” Id. at 565–66 (rejecting
appellant’s claim defense counsel owed duty to plaintiff to prevent
defense’s expert witness from mentioning medical malpractice insurance to
the jury).

¶24 And contrary to Knight’s arguments, “[t]he breach of the duty
owed to the court would not give rise to a cause of action in tort by the
adverse party against the [attorney].” Id. at 566; see also Wetherill v. Basham, 197 Ariz. 198, 208–209 ¶¶ 39, 42 (App. 2000) (refusing to impose on
attorneys duty of care “to nonclient third parties whose interests are
directly adverse to those of the attorney’s client,” noting that “practice of
law has enough potential pitfalls without adding another one that . . . is not
supported by law, public policy, or common sense.”).

¶25 In her reply brief, Knight relies on a secondary authority, an
article in the Maricopa County Bar Association’s August 2022 Maricopa
Lawyer. But her citation to that authority undermines her argument. She
quotes the article as saying,

The litigation privilege [is] not a green light for lawyers to
make false or malicious statements. The Massachusetts court
noted, just as the courts in Arizona have, that a determination
that a lawyer is immune from civil liability for making
fraudulent misrepresentations . . . would not shield the
lawyer from any applicable sanction for conduct contrary to
the rules of professional responsibility, nor would it suggest
to other lawyers that such behavior is acceptable.

Joseph A. Brophy, Litigation Privilege Provides Tort Immunity for False
Statements to Court, MARICOPA LAW, Aug. 2022, at 6.

¶26 Consistent with Arizona case law, the quoted discussion
makes the point. Knight has no cause of action for damages against Elias
because in Arizona, “a lawyer is immune from civil liability for making
fraudulent misrepresentations.” Id. So even if Knight’s allegations would
support a “sanction for conduct contrary to the rules of professional
responsibility,” which the court does not suggest the allegations do, those

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allegations are irrelevant in this proceeding because Knight’s appeal is not
about whether Elias is subject to sanctions. See id.

b. The superior court did not err when it did not allow Knight to
amend the complaint because she cannot prevail on the merits
on any “aiding and abetting” tortious conduct claim.

¶27 The court could consider Knight’s aiding and abetting
tortious conduct claim abandoned and waived. See State v. Carver, 160 Ariz.
167, 175 (1989) (“Failure to argue a claim usually constitutes abandonment
and waiver of the claim.”) (citation omitted). Knight did not develop any
arguments or cite any legal authority to support the claim. Indeed, she
barely mentioned it before the superior court. And though she referenced
it more often in her briefing here, she again provided no legal authority or
argument. But the court exercises its discretion to decide the issue on its
merits. See Adams, 139 Ariz. at 342.

¶28 Generally, Arizona follows the Restatement (Third) of the
Law Governing Lawyers in that “lawyers have no special privilege against
civil suit.” Chalpin v. Snyder, 220 Ariz. 413, 424 ¶ 44 (App. 2008) (citing
Safeway Ins. Co., Inc., 210 Ariz. at 10 ¶ 15). Generally, “a lawyer is subject to
liability to a client or nonclient when a nonlawyer would be in similar
circumstances.” Chalpin, 220 Ariz. at 424 ¶ 45 (quoting Restatement (Third)
of the Law Governing Lawyers § 56 (A.L.I. 2000)). “When a lawyer advises
or assists a client in acts that subject the client to civil liability to others,
those others may seek to hold the lawyer liable along with or instead of the
client.” Id. (quoting Restatement (Third) of the Law Governing Lawyers
§ 56 cmt. c (A.L.I. 2000)).

¶29 No doubt, aiding and abetting tortious conduct is a valid
claim against another party’s lawyer. See id. (citing Wells Fargo Bank v. Ariz.
Laborers, Teamsters & Cement Masons, 201 Ariz. 474, 485 ¶ 31 (2002)). After
reviewing the relevant authority, Chalpin reached that conclusion. But that
does not end the court’s analysis here.

¶30 To prevail on an aiding and abetting tortious conduct, the
plaintiff must prove 3 elements:

(1) the primary tortfeasor must commit a tort that causes
injury to the plaintiff;

(2) the defendant must know that the primary tortfeasor’s
conduct constitutes a breach of duty; and

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(3) the defendant must substantially assist or encourage the
primary tortfeasor in the achievement of the breach.

Federico v. Maric, 224 Ariz. 34, 36 ¶ 8 (App. 2010) (quoting Wells Fargo, 201
Ariz. at 485 ¶ 34).

¶31 Knight cannot satisfy the first element because the 2022 case
resulted in a finding that the primary tortfeasors, Elias’s clients, did not
commit a tort that caused Knight injury. Indeed, the defendants prevailed
in all of Knight’s claims against them. Having failed to prevail against the
primary tortfeasors, Knight now seeks to hold their counsel, Elias, liable
based on how she helped the defendants obtain the judgment. Because the
defendants in the 2022 case were not liable to Knight, Elias also cannot be
liable under an aiding and abetting theory. For that reason, the superior
court did not err in not allowing Knight to amend her complaint because
Knight could not prevail on the aiding and abetting claim. See Elm Ret. Ctr.,
LP v. Callaway, 226 Ariz. 287, 292 ¶ 26 (App. 2010) (stating a court does not
err in denying a motion to amend if the amendment would be futile).

ATTORNEY FEES AND COSTS

¶32 Elias requests her reasonable attorney fees associated with
this appeal under A.R.S. § 12-349. Under section 12-349, the courts “shall
assess reasonable attorney fees” if a party “[b]rings or defends a claim
without substantial justification [or] solely or primarily for delay or
harassment.” The court exercises its discretion and declines to award
attorney fees. Upon compliance with Rule 21, Arizona Rules of Civil
Appellate Procedure, the court awards Elias her reasonable costs.

CONCLUSION

¶33 The court affirms.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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