Brown v. Olde Fashioned

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DUJHAN BROWN, et al., Plaintiffs/Appellants,

v.

OLDE FASHIONED, LLC, et al., Defendants/Appellees.

No. 1 CA-CV 23-0763
FILED 09-24-2024

Appeal from the Superior Court in Maricopa County
No. CV2021-011631
The Honorable Jennifer C. Ryan-Touhill, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Co-Counsel for Plaintiffs/Appellants

Miller Kory Rowe LLP, Phoenix
By Jeffrey B. Miller
Co-Counsel for Plaintiffs/Appellants

Law Office of Dale Norris, LLC, Phoenix
By Dale F. Norris
Co-Counsel for Plaintiffs/Appellants
Schneider & Onofry, PC, Phoenix
By Dee R. Giles, Charles D. Onofry
Counsel for Defendant/Appellee Olde Fashioned, LLC

Resnick & Louis, PC, Scottsdale
By Scott Humble, Derek J. Warner
Counsel for Defendant/Appellee Uncle Shady’s, LLC

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Michael J. Brown and Judge D. Steven Williams joined.

K I L E Y, Judge:

¶1 Dujhan Brown and Mark Lucas (“Plaintiffs”) challenge the
superior court’s dismissal, on limitations grounds, of their claims against
Olde Fashioned, LLC and Uncle Shady’s, LLC (the “Bars”). For the
following reasons, we hold that the superior court did not abuse its
discretion in dismissing Plaintiffs’ claims as time-barred.

FACTS AND PROCEDURAL HISTORY

¶2 The operative complaint sets forth the following allegations
which, for purposes of this appeal, we accept as true. See Rogers v. Bd. of
Regents of Univ. of Ariz., 233 Ariz. 262, 265, ¶ 6 (App. 2013).

¶3 Brown and Lucas were officers with the Tempe Police
Department who were on duty in the early morning hours of November 4,
2019. They received a call about a Chevrolet Corvette driving the wrong
way on State Route 51, and so responded in their respective patrol cars. As
they approached the Corvette, it swerved into the path of Lucas’s vehicle.
The ensuing head-on collision severely injured Lucas. Debris from the
collision struck Brown’s patrol car; he, too, was injured. The Corvette’s
driver, later identified as Eldorado Mukaj, was arrested and charged with
various offenses, including aggravated assault, felony endangerment, and
aggravated driving under the influence (“DUI”).

¶4 Plaintiffs filed their original Complaint on July 22, 2021,
asserting negligence-based claims against Mukaj and his employer
Technology Service Professionals, Inc. (“TSP”). Alleging that Mukaj was

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intoxicated at the time of the accident and “may have been served alcohol
in violation of Arizona statutes and common law principles by an unknown
person, entity or entities,” Plaintiffs also named fictitious persons and
entities as defendants, stating that they would “seek leave to amend” their
Complaint when they “ascertained” the fictitious defendants’ “true
names.”

¶5 Throughout the subsequent criminal proceedings, Mukaj
invoked his constitutional right against self-incrimination and refused to
provide information to Plaintiffs about his whereabouts or activities before
the collision. Mukaj’s criminal defense attorney also told Plaintiffs’ counsel
that, in any event, Mukaj had no memory of the events leading up to the
collision.

¶6 Mukaj entered a plea agreement and was sentenced on
October 3, 2022. About four months later, on February 1, 2023, he disclosed
to Plaintiffs his November 2019 credit card statement, which reflected that
he made purchases at both of the Bars the night of the collision.

¶7 Plaintiffs filed the First Amended Complaint (“FAC”) on
March 28, 2023, asserting negligence and dram shop claims against the
Bars.1 The FAC alleged that the collision occurred on November 4, 2019,
and included no allegations to suggest that the cause of action accrued at a
later date or that the limitations period was tolled.

¶8 The Bars moved to dismiss the FAC, arguing that Plaintiffs’
claims were time-barred because they were filed more than two years after
the collision and “[t]he FAC does not contain allegations which could
justify tolling of any statute of limitations period.” In response, Plaintiffs
asserted that their claims were “timely filed” because the Plaintiffs neither
knew nor reasonably should have known “the identity of [the Bars] until
February 1, 2023.” While they knew all along that “liquor liability” may
have been “a factor in the collision,” Plaintiffs explained, they did not know
“whether liquor was provided at a commercial establishment, or the
identity of any such liquor providers,” until Mukaj “disclosed his credit
card statement” on February 1, 2023. Until then, they asserted, they had no
means of obtaining discovery from Mukaj because he “had consistently
asserted his Fifth Amendment privilege against self-incrimination.”

1 Plaintiffs stipulated to dismiss their claims against TSP in February 2023,

and stipulated to dismiss their claims against Mukaj in April 2023.

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Plaintiffs provided no affidavit, exhibits, or other evidentiary support for
their assertions.

¶9 The superior court granted the Bars’ motions to dismiss,
holding that Plaintiffs’ injuries “occurred in late 2019” and the FAC
“contain[s] no allegations of any significant attempts by Plaintiffs” to
discover the Bars’ identities “prior to expiration of the statute of
limitations.” Acknowledging that “the statute of limitations may be tolled
where a plaintiff presents evidence a defendant concealed facts that
prevented [the] plaintiff from timely filing the claim,” the court found that
the tolling doctrine was not “applicable here.”

¶10 Plaintiffs then moved for reconsideration, again asserting that
their efforts to determine whether Mukaj had patronized a bar in the hours
before the collision were stymied by Mukaj’s assertion of his right against
self-incrimination during the pendency of the criminal proceedings.2
Plaintiffs attached various documents to their motion for reconsideration,
including copies of documents apparently obtained from the superior
court’s website and emails purportedly exchanged between their attorney
and Mukaj’s counsel. Plaintiffs did not indicate, however, when they
obtained those documents, nor did they explain why they did not submit
those documents to the court with their response to the Bars’ motions to
dismiss.

¶11 In response, the Bars pointed out that Plaintiffs raised “new
matters” for “the first time in [their] motion for reconsideration,” and
argued that Plaintiffs’ new arguments are “waived.”

¶12 After briefing, the superior court denied Plaintiffs’ motion for
reconsideration, agreeing with the Bars that “Plaintiffs could have and
should have included the information in their response to the motion[s] to
dismiss and failed to do so.” Stating that it would “address many of the
arguments” Plaintiffs raised in their motion for reconsideration “in order to
have a clear record,” the court rejected Plaintiffs’ contention that the
discovery rule should apply to toll the running of the limitations period
because they purportedly “had no reasonable means” of learning the Bars’
identities until the criminal proceedings against Mukaj concluded. By
Plaintiffs’ own admission, the court stated, they took no action to try to

2 According to Plaintiffs, Mukaj was sentenced on October 3, 2022, but

continued to assert his right against self-incrimination for an additional
ninety days until the deadline had passed for seeking post-conviction relief
under Ariz. R. Crim. P. 33.4(b)(3)(A).

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ascertain the Bars’ identities and, instead, “simply waited for Mukaj to
cooperate with discovery when Mukaj was willing to do so.”

¶13 The superior court entered final judgment and Plaintiffs
timely appealed. We have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

A. The Claims in the FAC Do Not Relate Back to the Filing of the
Original Complaint

¶14 Plaintiffs challenge the court’s dismissal of their FAC as time-
barred. Noting that their original Complaint alleged that, in the hours
before the collision, unknown persons or entities “may have . . . served
alcohol” to Mukaj “in violation of Arizona statutes and common law
principles,” Plaintiffs argue that the FAC’s claims against the Bars relate
back to the date of filing of the original Complaint.

¶15 Common law claims for “injuries done to the person of
another” must be brought within two years. A.R.S. § 12-542(1). While a
claim based upon liability created by statute generally must be filed within
one year, A.R.S. § 12-541(5), a two-year limitations period applies to dram
shop claims under A.R.S. § 4-311. See Andrews ex rel. Woodard v. Eddie’s Place,
Inc., 199 Ariz. 240, 242, ¶ 8 (App. 2000).

¶16 An appellate court reviews de novo an order granting a motion
to dismiss, Romero v. Hasan, 241 Ariz. 385, 386, ¶ 6 (App. 2017), as well as
“questions of law regarding statute of limitations defenses,” City of Tucson
v. Clear Channel Outdoor, Inc., 218 Ariz. 172, 178, ¶ 5 (App. 2008). “Further,
we will affirm [an] order dismissing a complaint if it is correct for any
reason.” Fappani v. Bratton, 243 Ariz. 306, 309, ¶ 8 (App. 2017); see also Ariz.
Republican Party v. Richer, 257 Ariz. 210, __, 547 P.3d 356, 363, ¶ 17 (2024)
(stating that “an appellate court may affirm the superior court’s ruling if it
is correct for any reason apparent in the record”) (citation omitted).

¶17 Arizona Rule of Civil Procedure (“Rule”) 10 provides in part
that

[i]f the name of the defendant is unknown to the plaintiff, the
defendant may be designated in the pleadings or proceeding
by any name. If the defendant’s true name is discovered, the
pleading or proceeding should be amended accordingly.

Ariz. R. Civ. P. 10(d).

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¶18 Noting that the original Complaint named fictitious
defendants due to “the possible existence of one or more pre-collision
liquor-purveying commercial entities,” Plaintiffs argue that once they
discovered the Bars’ identities, Rule 10(d) gave them “the right to amend
the Complaint and proceed with litigation” against the Bars.

¶19 But an amendment to a complaint adding a defendant relates
back to the date of the filing of the complaint only if “the party to be brought
in by amendment . . . knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would have been
brought against the party.” Ariz. R. Civ. P. 15(c)(2)(B)(ii) (emphasis added);
see also Flynn v. Campbell, 243 Ariz. 76, 81, ¶ 16 (2017) (holding that an
amendment to complaint adding a new defendant relates back to the date
of filing of the original complaint if “the defendant . . . knew or should have
known that, absent some mistake, the action would have been brought
against him or her”) (emphasis added). In Flynn, the plaintiff, who was
injured in a motor vehicle accident allegedly caused by Campbell, filed suit
against Campbell’s insurer, State Farm, instead of Campbell herself. Id. at
79, ¶¶ 2-3. After the statute of limitations had run, the plaintiff filed an
amended complaint naming Campbell as the defendant. Id. at ¶ 4. The court
granted Campbell’s motion to dismiss the claim as time-barred, holding
that the plaintiff’s amended complaint did not relate back to the date of
filing of the original complaint. Id. at ¶ 5. On appeal, the Arizona Supreme
Court reversed, holding that Campbell “knew or should have known” that
the plaintiff sued Campbell’s insurer instead of Campbell herself as a result
of the plaintiff’s “mistake concerning the proper party’s identity.” Id. at 83,
¶ 20. The plaintiff “obviously misunderstood the legal significance of State
Farm’s role,” the Court held, and “Campbell was, or should have been,
aware that,” but for the plaintiff’s mistake, the plaintiff “would have sued”
Campbell “in the original complaint.” Id. at ¶ 23; accord Levinson v. Jarrett ex
rel. Cnty. of Maricopa, 207 Ariz. 472, 473, ¶ 1 (App. 2004) (stating that “[t]he
element of mistake is required” for “an amended complaint that adds a
defendant” to “relate back to the date of the original complaint”).

¶20 Here, Plaintiffs do not contend that they failed to name the
Bars as defendants in their original Complaint as a result of a mistake about
the Bars’ role in the litigation or in the underlying events. Moreover,
Plaintiffs do not contend that the Bars had any knowledge of this litigation
or the underlying events at any time before the limitations period expired.
See Pargman v. Vickers, 208 Ariz. 573, 578, ¶¶ 23-25 (App. 2004) (holding that
for an amendment to relate back to the original complaint, “the plaintiff
must show,” inter alia, “that the to-be-named defendant knew or should
have known that the plaintiff would have sued it but for a mistake”). In the

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absence of any indication in the record that the Bars knew or should have
known, within the limitations period, that they would have been named as
defendants in the original Complaint, the FAC does not relate back to the
filing of the original Complaint. See Flynn, 243 Ariz. at 81, ¶ 11 (“[F]or an
amended complaint to relate back under Rule 15(c), . . . the party to be
joined by amendment” must have actual or constructive notice that “but for
a mistake concerning the identity of the proper party, plaintiff would have
named the proper party in the original complaint.”).

¶21 In support of their position that the FAC relates back to the
date of filing of the original Complaint, Plaintiffs rely on General Motors
Corp. v. Superior Court, 55 Cal. Rptr. 2d 871 (Ct. App. 1996), in which the
California Court of Appeals held that

when a complaint sets forth a cause of action against a
defendant designated by a fictitious name because the
plaintiff is genuinely ignorant of his name or identity, and his
true name thereafter is discovered and substituted by
amendment, he is considered a party to the action from its
commencement so that the statute of limitations stops
running as of the date the original complaint was filed.

Id. at 877. We find Plaintiffs’ argument unpersuasive, for two reasons.

¶22 First, Plaintiffs waived this argument by raising it for the first
time on appeal. See Roebuck v. Mayo Clinic, 256 Ariz. 161, __, 53 P.3d 289, 294
¶ 16 (App. 2023) (“Legal theories must be presented timely to the trial court
so that the court may have an opportunity to address all issues on their
merits. If the argument is not raised below so as to allow the trial court such
an opportunity, it is waived on appeal.”) (cleaned up).

¶23 Second, the holding of General Motors was based on
California’s “fictitious name” statute, Cal. Code Civ. Proc. § 474 (“Section
474”), which is materially different from Arizona’s rule governing the
relation back of pleading amendments. Under Section 474, a pleading
amendment substituting a defendant in place of a fictitious defendant will
relate back to the date of the original filing as long as the plaintiff lacked
knowledge of the defendant’s identity at the time of the original filing.
Camarillo v. Vaage, 130 Cal. Rptr. 2d 26, 38 (Cal. App. 2003) (“The policy of
section 474 seeks to protect those plaintiffs who are truly ignorant of the
identity of a person brought into the case as a Doe defendant. If that
requirement is met, the amendment to the complaint relates back to the date
the complaint was filed and the statute of limitations is preserved.”).

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Section 474 thus permits “[a] plaintiff to commence suit in time to avoid the
bar of the statute of limitations where he is ignorant of the identity of the
defendant.” Barnes v. Wilson, 114 Cal. Rptr. 839, 842 (Cal. App. 1974).

¶24 Section 474’s applicability depends on the plaintiff’s
knowledge, i.e., whether the plaintiff is ignorant of the defendant’s true
identity when the complaint was filed. See Motor City Sales v. Superior Court, 107 Cal. Rptr. 280, 282 (Cal. App. 1973) (recognizing that applicability of
Section 474 depends on “the plaintiff’s actual good faith ignorance of the
defendant’s true name”). Arizona has no statute or rule comparable to
Section 474. On the contrary, the relation-back analysis under Arizona’s
Rule 15(c)(2)(B)(ii) focuses on the knowledge of “the defendant rather than
the plaintiff,” i.e., “whether the defendant . . . knew or should have known”
that he would have been sued “absent some mistake” by the plaintiff. Flynn,
243 Ariz. at 81, ¶ 16 (emphasis added). Because the holding of General
Motors was based on a California statute that is materially different from
Arizona’s rule governing the relation back of pleading amendments, we
find General Motors inapposite. Accordingly, we reject, as contrary to
Arizona law, Plaintiffs’ argument that the FAC’s claims relate back to the
date of filing of the original Complaint.

B. Plaintiffs Failed to Establish that the Discovery Rule Tolled the
Running of the Applicable Limitations Statutes.

¶25 Plaintiffs also argue that the superior court abused its
discretion by dismissing their FAC on limitations grounds, asserting that
“the application of the discovery rule involved questions of material fact
that only the jury could resolve.”

¶26 “Generally, a cause of action accrues, and the statute of
limitations commences, when one party is able to sue another.” Satamian v.
Great Divide Ins. Co., 257 Ariz. 136, __, 545 P.3d 918, 924, ¶ 11 (2024) (citation
omitted). Under the “discovery rule,” however, a limitations statute “does
not begin to run until the plaintiff possesses a minimum knowledge
sufficient to recognize that a wrong occurred and caused injury.” Ritchie v.
Krasner, 221 Ariz. 288, 304, ¶ 57 (App. 2009) (citations omitted). Under the
discovery rule, in other words, the limitations period “begins to run not
from the moment of the defendant’s injurious conduct, but when [the]
claimant knows or should know she has been injured and when she
likewise knows or with reasonable diligence should know the facts
underlying the cause.” Wyckoff v. Mogollon Health All., 232 Ariz. 588, 591, ¶
9 (App. 2013) (citation omitted). The discovery rule may toll the limitations
statute, for example, when a plaintiff neither knows nor could, through the

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exercise of reasonable diligence, discover the tortfeasor’s identity. See
Lawhon v. L.B.J. Institutional Supply, Inc., 159 Ariz. 179, 183 (App. 1988) (“[A]
cause of action ‘accrues’ when the plaintiff discovers or by the exercise of
reasonable diligence should have discovered that he or she has been injured
by a particular defendant’s negligent conduct.”) (emphasis in original).

¶27 A defendant may properly move to dismiss on limitations
grounds under Rule 12(b)(6) if the complaint, on its face, shows that the
claim is time-barred. Republic Nat’l Bank of N.Y. v. Pima Cnty, 200 Ariz. 199,
204, ¶ 20 (App. 2001); cf. Vega v. Morris, 183 Ariz. 526, 531 (App. 1995)
(reversing dismissal of complaint on limitations grounds because “there is
nothing on the face of the complaint that indicates” when cause of action
accrued). Here, the FAC alleged that Plaintiffs were injured in a motor
vehicle collision on November 4, 2019. The FAC was filed more than three
years after the collision, and nothing in the FAC explained the delay
between the accident and the assertion of claims against the Bars. The FAC
contained no allegations of any difficulty in determining the Bars’
identities, nor did the FAC indicate that Plaintiffs made any efforts, much
less diligent efforts, to discover their identities sooner. It therefore
appeared, from the face of the FAC, that Plaintiffs’ claims against the Bars
were time-barred.

¶28 “If it appears on the face of the complaint that an action may
be barred by limitations, the burden is on the plaintiff to establish that the
statute has been tolled.” Satamian, 545 P.3d at 925, ¶ 11; see Republic Nat’l
Bank, 200 Ariz. at 204, ¶ 20 (“[I]f it appears on the face of the complaint that
the claim is barred[,] . . . [t]he plaintiff then must show the statute has not
expired.”). A plaintiff responding to a motion to dismiss on limitations
grounds may meet its burden of showing that the limitations period is
tolled by identifying allegations in the complaint which may justify
application of the tolling doctrine. See Verduzco v. Am. Valet, 240 Ariz. 221,
225, ¶ 9 (App. 2016) (holding that complaint will survive motion to dismiss
if plaintiff could be “entitle[d] . . . to relief on some theory of law susceptible
of proof under the allegations made”) (emphasis added); see also Elm Ret. Ctr.,
LP v. Callaway, 226 Ariz. 287, 290, ¶¶ 10, 13 (App. 2010) (affirming Rule
12(b)(6) dismissal of tort claims against seller who allegedly misrepresented
square footage of house’s living space because complaint was filed “nearly
four years after” the sale, “well beyond the applicable limitations periods,”
and the complaint did “not allege facts” sufficient “to satisfy the discovery
rule”).

¶29 Alternatively, a plaintiff seeking to establish that the
limitation period is tolled may present evidence of matters outside the

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pleadings. See McCloud v. State, Dep’t of Public Safety, 217 Ariz. 82, 87, ¶ 13
(App. 2007) (holding that to justify applying equitable tolling of limitation
period, the “petitioner must support his allegations with evidence; he
cannot rely solely on personal conclusions or assessments”) (citation
omitted); see also Ploof v. State, 1 CA-CV 22-0486, 2023 WL 2663348 at *5, ¶
33 (Ariz. App. Mar. 28, 2023) (mem. decision) (noting that a plaintiff
responding “to a Rule 12(b)(6) motion” may “rest on the allegations in the
complaint” or may “respond . . . with affidavits or other evidence outside
the pleadings”).

¶30 Here, Plaintiffs did neither. In their response to the Bars’
motions to dismiss, Plaintiffs identified no allegations in the FAC that could
justify applying the tolling doctrine. Nor did they submit affidavits or other
exhibits outside the pleadings to show that the limitations period was
tolled. Instead, Plaintiffs’ response to the motions to dismiss consisted
simply of counsel’s assertions, unsupported by evidence, about Plaintiffs’
purported inability to determine the Bars’ identities. Because assertions of
counsel that are both outside the pleadings and unsupported by evidence
are insufficient to establish a basis for tolling a limitations period, the court
properly looked solely to the allegations in the FAC in resolving the Bars’
motions to dismiss. See Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶
7 (2008) (“Arizona courts look only to the pleading itself” when
“adjudicating a Rule 12(b)(6) motion to dismiss.”); cf. Date Street Capital,
LLC v. Clearcover Ins. Co., 256 Ariz. 376, __, 540 P.3d 921, 925, ¶ 12 (App.
2023) (reversing dismissal of complaint because “the superior court
improperly relied on factual assertions not contained in the complaint”).
Because the allegations in the FAC show that the accident occurred over
three years before the FAC was filed, and nothing in the FAC suggested a
basis for tolling the two-year limitations period, the court properly
dismissed Plaintiffs’ claims against the Bars as time-barred. See Gallardo v.
West Sand LLC, 1 CA-CV 18-0010, 2018 WL 5990375 at *3, ¶ 14 (Ariz. App.
Nov. 15, 2018) (mem. decision) (affirming dismissal of dram shop action
because “it appeared from the face of” the operative complaint “that the
two-year statute of limitations had already expired” when complaint was
filed and plaintiffs “alleged no facts from which the court could discern an
issue relating to their reasonable diligence in investigating the identity of
the defendants”).

¶31 Noting that, after the court dismissed the FAC, the Plaintiffs
“filed a motion for reconsideration” to which they attached “18 exhibits,”
Plaintiffs assert that their exhibits established an issue of fact about
“whether what Plaintiffs did was enough to satisfy the discovery rule.” In
support of their position, Plaintiffs cite Rule 12(d), which provides in part

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that “[i]f, on a motion under Rule 12(b)(6) or (c), matters outside the
pleadings are presented to, and not excluded by, the court, the motion must
be treated as one for summary judgment under Rule 56.” Ariz. R. Civ. P.
12(d). According to Plaintiffs, their motion for reconsideration “acted to
convert the motions to dismiss into motions for summary judgment” and
the court’s denial of their motion for reconsideration “improperly took the
fact-intensive accrual-date determination from the jury.”

¶32 Plaintiffs contend, in effect, that their filing of a motion for
reconsideration with exhibits attached had the effect of (1) vacating the
court’s order granting the motions to dismiss and (2) requiring the court to
consider the motions all over again, this time under Rule 56 rather than Rule
12(b)(6). Nothing in Rule 12(d) supports Plaintiffs’ contention that their
belated submission of exhibits along with a motion seeking reconsideration
of a dismissal order automatically vacated the dismissal order and
retroactively transformed the Bars’ motions to dismiss into motions for
summary judgment. We reject, as unsupported by Arizona law, Plaintiffs’
novel position that a party dissatisfied by a court’s ruling on a motion can
secure a “do-over” simply by filing a motion for reconsideration with
exhibits attached.

¶33 Further, case law is clear that a court need not consider
evidence presented for the first time in connection with a motion for
reconsideration, at least when, as here, the newly-submitted evidence could
have been presented earlier. See Tilley v. Delci, 220 Ariz. 233, 238, ¶ 17 (App.
2009) (“The superior court was not required to accept and examine evidence
presented to it for the first time in connection with [plaintiff’s] motion for
reconsideration.”); see also RT Automotive Ctr., Inc. v. Westlake Services, LLC,
253 Ariz. 91, 95, ¶ 12 (App. 2022) (“We typically do not consider matters
raised for the first time in a motion for reconsideration unless the facts or
arguments presented were not available when the court entered the
challenged ruling.”). Plaintiffs have at no time offered any explanation for
submitting the exhibits for the first time with their motion for
reconsideration. They do not contend, for example, that the documents
were unavailable when they filed their response to the Bars’ motions to
dismiss. In the absence of any explanation for their failure to submit the
exhibits when they responded to the Bars’ motions to dismiss, Plaintiffs
waived any claim for relief based on the new exhibits. See Evans Withycombe,
Inc. v. W. Innovations, Inc., 215 Ariz. 237, 240, ¶ 15 (App. 2006) (observing
that “[g]enerally, we do not consider arguments on appeal that were raised
for the first time at the trial court in a motion for reconsideration”).

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¶34 Plaintiffs argue that even if the court was not required to treat
the Bars’ motions to dismiss as motions for summary judgment, the court
did, in fact, do so by discussing Plaintiffs’ newly-filed exhibits in its ruling
denying Plaintiffs’ motion for reconsideration.

¶35 We disagree. A court cannot properly treat a motion to
dismiss as one for summary judgment without notifying the parties of its
intent and giving them “a reasonable opportunity to present” additional
evidence “pertinent to the motion.” Ariz. R. Civ. P. 12(d); see also Gatecliff v.
Great Republic Life Ins. Co., 154 Ariz. 502, 508 (App. 1987) (explaining that
courts cannot consider matters outside the pleadings in resolving motion to
dismiss without giving parties “some indication . . . that it is treating the
Rule 12(b)(6) motion as one for summary judgment”). Here, the court never
gave notice of an intent to treat the Bars’ motions to dismiss as motions for
summary judgment.

¶36 Moreover, the submission of matters outside the pleadings
will trigger the conversion of a Rule 12(b)(6) motion to dismiss to one for
summary judgment only if the court relies on the extra-pleading matters in
ruling on the motion. See Date Street Capital, 540 P.3d at 925, ¶ 9 (App. 2023)
(noting that Rule 12(d)’s conversion provision “is inapplicable when a court
does not rely on the extra-pleading material in its ruling”). Here, Plaintiffs’
exhibits obviously had no bearing on the court’s ruling on the Bars’ motions
to dismiss, since the court granted the motions before Plaintiffs submitted
the exhibits. See Belen Loan Investors, LLC v. Bradley, 231 Ariz. 448, 452, ¶ 7
(App. 2012) (holding that “extrinsic documents” did not convert
defendants’ Rule 12(b)(6) motion to one for summary judgment because
“the court did not rely on the extrinsic documents in ruling on [the] motion,
instead basing its dismissal on the allegations of the complaint and the legal
arguments of the parties”). After Plaintiffs submitted their exhibits, the
court did not set aside its dismissal order or otherwise indicate that it would
re-open the motions to dismiss. Instead, the court simply stated that it
reviewed the exhibits and found nothing in them to warrant reconsidering
its prior dismissal order. The exhibits thus had no bearing on the dismissal
of this case, and so cannot be said to have triggered Rule 12(d)’s
“conversion” provision. See Brosie v. Stockton, 105 Ariz. 574, 576 (1970)
(affirming dismissal and holding that court properly treated motion as a
Rule 12(b)(6) dismissal, and not motion for summary judgment, because
“the material extraneous to the pleadings” was “unnecessary to the final
outcome”).

¶37 Because Plaintiffs did not support their response to the Bars’
motions to dismiss with extra-pleading material, the superior court

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properly looked only to the allegations in the FAC to resolve the motions to
dismiss. Because the FAC established that the collision occurred well
outside the applicable limitations period, and the FAC contained no
allegations that would support applying the discovery rule or tolling the
limitations statute, the court properly granted the motions to dismiss. And
the court did not abuse its discretion by refusing to set aside its dismissal
order and reconsider the motions to dismiss after Plaintiffs belatedly came
forward with exhibits that could have been submitted before the court
granted the motions to dismiss.

CONCLUSION

¶38 For the foregoing reasons, we affirm.

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

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