NIEBLAS v. BONITAS CASITAS

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSE SARATIEL HEREDIA NIEBLAS, Plaintiff/Appellant,

v.

BONITAS CASITAS, LLC, et al., Defendants/Appellees.

No. 1 CA-CV 25-0156
FILED 02-19-2026

Appeal from the Superior Court in Maricopa County
No. CV2023-002536
The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Law Offices of Kyle A. Kinney PLLC, Scottsdale
By Kyle A. Kinney
Counsel for Plaintiff/Appellant

Chester Law PC, Scottsdale
By Mark D. Chester
Counsel for Defendants/Appellees
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael S. Catlett delivered the decision of the Court, in
which Judge Angela K. Paton and Judge Jennifer M. Perkins joined.

C A T L E T T, Judge:

¶1 This appeal stems from the second of two lawsuits Jose
Saratiel Heredia Nieblas (“Nieblas”) filed to recover excess amounts paid
to redeem real property following a sheriff’s sale. In addition to seeking
those excess amounts through a declaratory judgment, Nieblas asserted
claims against Bonitas Casitas, LLC (“Bonitas”) and its sole member Linda
Lynaugh (“Lynaugh”) (collectively “BCL”) for wrongful lis pendens,
breach of statutory duty/negligence per se, and fraud. After discovery, the
superior court granted summary judgment for Nieblas on his declaratory
judgment claim and for BCL on Nieblas’ remaining claims. The court also
awarded BCL attorney fees and costs.

¶2 Nieblas appeals the summary judgment order and the
attorney fee award. We affirm.

FACTS AND PROCEDURAL HISTORY

¶3 Nieblas owned real property located at 4016 South 12th Street
in Phoenix (“the Property”). On July 11, 2019, the Maricopa County
Sheriff’s Office (“MCSO”) auctioned the Property to satisfy a judgment
against Nieblas. Lynaugh attended the auction with non-party Gregory
Best (“Best”). Bonitas won the auction, so MCSO executed a Sheriff’s
Certificate recognizing Bonitas as making the highest bid at $55,000.

¶4 The Sheriff’s Certificate said the Property “is subject to
redemption in six months pursuant to [A.R.S. § 12-1281 et seq.]” Nieblas
could redeem the Property for $55,000, plus eight percent interest and any
assessments or taxes Bonitas incurred before January 11, 2020. See A.R.S.
§§ 12-1285(A); 12-1282(B).

¶5 On December 29, 2019, MCSO contacted Bonitas to ask for the
amount of expenses it incurred for purposes of redemption. The next day,
Lynaugh provided documents showing $6,411.51 in expenses. These
additional expenses included $6,000 for “Unpaid Fair Market Value Rent”
owed during the redemption period and other miscellaneous costs.

2
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

Lynaugh believed Bonitas was entitled to rent because Nieblas agreed to
pay while he used the Property during the redemption period.

¶6 Based on the amounts Lynaugh provided, MCSO informed
Nieblas he had to pay $65,997.50 to redeem the Property, and it provided
him with a receipt reflecting that amount. But MCSO refused to provide a
line-item description without receiving a subpoena requesting that
information. Nieblas disputed the redemption amount but believed he did
not have “enough time to make a judicial challenge” before the redemption
period ended. He also believed he would lose the Property without
payment. So he paid $65,997.50. MCSO executed a Sheriff’s Deed
conveying the Property to Nieblas, and it provided a check to BCL for
$65,797.50.

¶7 On January 14, 2020, after Nieblas redeemed Property, Best
recorded a Notice of Lis Pendens (“Notice”) against the Property. The
Notice referenced a quiet title action (“Quiet Title Action”) Best and non-
party Henry Cadriel (“Cadriel”) had pending against Nieblas. The Notice
did not mention Bonitas or Lynaugh, and neither were named parties in the
Quiet Title Action.

I. First Lawsuit

¶8 In July 2020, Nieblas filed his first lawsuit (“First Lawsuit”)
against Bonitas, challenging the redemption amount for the Property.
Nieblas alleged Bonitas overcharged him, and he sought declaratory relief
and damages for breach of statutory duty. Nieblas also asserted a wrongful
lis pendens claim against Best and Cadriel under A.R.S. § 33-420(A).

¶9 On January 12, 2023, the court dismissed the First Lawsuit
without prejudice. The court did so for lack of prosecution because the
parties had not complied with its November 28, 2022, deadline for filing a
judgment, stipulation for dismissal, or joint status report. Nieblas moved
for reconsideration, which the court denied.

II. Second Lawsuit

¶10 One month later, Nieblas filed a second lawsuit (“Second
Lawsuit”) challenging the redemption amount and the lis pendens. This
time, Nieblas named only Bonitas and Lynaugh as defendants. Nieblas
asserted claims for declaratory judgment, breach of statutory
duty/negligence per se (“breach/negligence”), and common law fraud,
and he again brought a wrongful lis pendens claim.

3
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

¶11 BCL moved to dismiss all claims on statute of limitations
grounds. Nieblas responded but also moved for leave to file a first
amended complaint. In responding to the motion to dismiss, Nieblas
argued his declaratory judgment and breach/negligence claims were
timely because “[t]he first part of the [savings] statute [A.R.S. § 12-504(A)],
[is] applicable here, [and it] does not [give the] court discretion” to decide
whether to allow him to refile those claims.

¶12 Nieblas’ proposed amended complaint (1) added factual
allegations that the savings statute applies to his declaratory judgment and
breach/negligence claims, and (2) included an alleged date of discovery for
his fraud claim. BCL did not respond to Nieblas’ request to amend the
complaint.

¶13 The court granted Nieblas leave to file his amended complaint
(that made BCL’s motion to dismiss moot). In its minute entry, the court
concluded that the amended complaint added factual allegations not
pleaded in the original complaint. BCL answered the amended complaint
and the parties then conducted discovery.

¶14 After discovery, both parties moved for summary judgment.
Nieblas moved for partial summary judgment on his declaratory judgment
claim that BCL had to reimburse him for his inflated redemption payment.
BCL moved for summary judgment on all of Nieblas’ claims. They argued
that Nieblas’ breach/negligence and fraud claims were time-barred, and
his wrongful lis pendens, fraud, and declaratory relief claims failed on the
merits.

¶15 Following oral argument, the court granted Nieblas summary
judgment on his declaratory judgment claim. The court concluded, as a
matter of law, that “Nieblas overpaid by $6,271.51, and that Bonitas Casitas
received $6,271.51 more than it was entitled to.” The court granted BCL
summary judgment on all remaining claims. The court concluded Nieblas’
fraud and breach/negligence claims were time-barred. As to Nieblas’
wrongful lis pendens claim, the court concluded that Nieblas had not
presented evidence permitting “an inference that either [Bonitas] or
Lynaugh caused the lis pendens . . . to be recorded.” Lastly, the court
ordered the parties to submit proposed forms of judgment and requests for
attorney fees and costs by November 12, 2024.

¶16 On November 13, 2024, at 12:04 a.m., BCL asked for
approximately $54,000 in attorney fees incurred in the First and Second
Lawsuits. BCL sought fees and costs on grounds Nieblas unreasonably

4
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

expanded the litigation by asserting meritless claims and bringing two
lawsuits in four years. See A.R.S. § 12-349(A)(1)–(3). Two of the four
documents filed in support of their motion were for an unrelated matter.

¶17 In response, Nieblas argued the court should deny BCL’s fee
request because they failed to provide the required supporting documents.
Regardless, Nieblas argued the court should deny BCL’s request because
he prevailed by establishing that BCL overcharged him.

¶18 After Nieblas responded, BCL filed an errata attaching the
supporting documents for the correct matter. BCL also filed a reply and
explained that they untimely filed the motion because of technical
problems, and the misfiling was inadvertent. Over a week later, Nieblas
moved to strike the errata alleging untimeliness and prejudice.

¶19 The court awarded BCL $28,900 in attorney fees and $389 in
costs for the Second Lawsuit and entered final judgment. In a minute entry
explaining its fee award, the court deemed BCL’s fee application timely.
Relying on A.R.S. § 12-349(A)(3), the court awarded BCL attorney fees and
costs incurred only in the Second Lawsuit because Nieblas unreasonably
expanded the proceedings “by asserting meritless claims[.]” The court later
denied Nieblas’s motion to strike for lack of “good cause[.]”

¶20 Nieblas timely appealed. We have jurisdiction. A.R.S. § 12-
2101(A)(1).

DISCUSSION

¶21 Nieblas appeals the superior court’s entry of partial summary
judgment for BCL, award of attorney fees and costs to BCL, and denial of
his motion to strike.

¶22 As an initial matter, Nieblas attached certain filings to his
opening brief from his First Lawsuit and asked that we take judicial notice
of them. We will not consider evidence that is not part of the record on
appeal. GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4-5 (App.
1990); see also In re Ests. of Spear, 173 Ariz. 565, 567 (App. 1992) (“New
exhibits cannot be introduced on appeal to secure reversal”). We decline
Nieblas’ request to take judicial notice of certain filings from the First
Lawsuit.

5
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

I. Summary Judgment for BCL

¶23 Nieblas argues the superior court erred in granting summary
judgment to BCL on his wrongful lis pendens, fraud, and
breach/negligence claims. He contends there were genuine issues of
material fact about whether BCL caused Best to record the Notice and when
he should have discovered BCL’s alleged fraud. Nieblas argues the court
erred by granting summary judgment on his breach/negligence claim
because the court had determined that the savings statute applied to that
claim.

¶24 Summary judgment is appropriate when “the moving party
shows that there is no genuine dispute as to any material fact” and “is
entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(a). Under this
standard, “if the facts produced in support of the claim or defense have so
little probative value, given the quantum of evidence required, that
reasonable people could not agree with the conclusion advanced by the
proponent of the claim or defense,” then summary judgment is proper.
Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990).

¶25 On appeal, we determine de novo whether there are genuine
issues of material fact. United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195 (App.
1990) (appellate courts apply the same standard used by the superior court).
We view the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences arising from the evidence in their favor.
Doe v. Roe, 191 Ariz. 313, 324 ¶ 34 (1998); Wells Fargo Bank v. Ariz. Laborers,
Teamsters and Cement Masons Local No. 395 Pension Tr. Fund, 201 Ariz. 474,
482 ¶ 13 (2002).

A. Wrongful Lis Pendens

¶26 Liability for wrongfully recording a document under A.R.S.
§ 33-420(A) requires that the alleged violator (1) cause to be recorded, (2) a
document claiming an interest in real property, such as a lis pendens, (3)
knowing or having reason to know that document is invalid. See Wyatt v.
Wehmueller, 167 Ariz. 281, 284 (1991). The superior court determined
Nieblas did not meet his burden of persuasion because his evidence did
“not permit an inference that either [Bonitas] or Lynaugh caused the lis
pendens” to be recorded.

¶27 To support their motion, BCL included a declaration from
Lynaugh stating that she “had no involvement in the preparation or
recording of the [lis pendens] nor did [she] request Mr. Best or anyone else
to record it.” “[F]acts alleged by affidavits attached to [] motion[s] for

6
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

summary judgment may be considered true,” when such facts are not
controverted by the opposing party. Portonova v. Wilkinson, 128 Ariz. 501,
502 (1981). Nieblas claims Lynaugh’s testimony is unreliable, but a party
opposing summary judgment cannot prevail based on a mere hope the jury
will disbelieve uncontroverted testimony. See Orme Sch., 166 Ariz. at 311.

¶28 So to defeat summary judgment, Nieblas needed to produce
“sufficient evidence demonstrating the existence of a genuine factual
dispute as to” whether BCL caused Best to record the Notice. See Nat’l Bank
of Ariz. v. Thruston, 218 Ariz. 112, 119 ¶ 26 (App. 2008). see also Ariz. R. Civ.
P. 56(a). Nieblas argues his evidence was sufficient to do so.

¶29 The Notice does not reference Bonitas or Lynaugh. And
neither Bonitas nor Lynaugh were named parties in the Quiet Title Action
underlying the Notice. Still, Nieblas theorizes that Best had been an agent
or member of Bonitas and only Bonitas had motive to record the lis
pendens. Combining those two theories, Nieblas claims a jury could find
that BCL caused Best to record the Notice. We disagree.

¶30 In attempting to show BCL caused Best to record the Notice,
Nieblas relied on several documents. None of them created a genuine issue
of material fact.

¶31 First, Nieblas relied on the “Judicial Enforcement Records”
from MCSO concerning the July 2019 auction of the Property. Nieblas
asserts the “vesting sheet” shows title to the Property would vest with
Bonitas and the “bid log” identifies Best as winning the auction. Nieblas
argues these two documents show Best acted as BCL’s agent at the auction.

¶32 The first document—the “vesting sheet”—is a single page of
an untitled, undated form filled out by an unknown individual. The form
lists “Bonitas Casitas LLC” in the “Vesting Name” section and “Greg Best”
in the “Contact name” section. The second document—the “bid log”—is a
single page with a list of cases identified by case number and party name,
and with names and phone numbers of various individuals immediately
below each case number. The top of the page includes the heading “Real
Estate Sale July 11, 2019 10:00 A.M.” Among the cases listed is “BEST VS.
NIEBLAS” and Best’s name and a phone number appear immediately
below. Nieblas asserts that because Best’s name is listed on the vesting
sheet and the bid log, Best acted as BCL’s agent.

¶33 But Nieblas did not lay foundation supporting that these
documents mean what he claims they do. See Ariz. R. Evid. 602. Perhaps
Nieblas is correct that Best appeared at the auction and submitted the

7
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

winning bid for Bonitas, but he did not submit evidence from the individual
who prepared those documents supporting that his view of them is correct.
Id. But even if he had done so, there is no evidence that Bonitas instructed
Best to bid at the auction, and more importantly, there is no evidence
connecting that instruction to the later Notice. In other words, there is no
evidence that if Best submitted the winning bid for the Property, he also
acted as BCL’s agent whenever he acted vis-à-vis the Property, including
when he later recorded the Notice.

¶34 Nieblas next relied on deposition testimony Best gave in 2018
in an unrelated action. During that deposition, Best said he had an “interest
in a new company called Bonitas Casitas, LLC,” and he and Lynaugh were
members. From this admission, Nieblas thinks a reasonable person could
conclude that BCL caused Best to record the Notice. Best’s testimony would
require the jury to assume that he remained a member in Bonitas two years
later, in 2020. But even if Best remained a member in 2020, that does not
mean every action he took vis-à-vis the Property was as an agent for
Bonitas. Like his reliance on the vesting sheet and the bid log, Nieblas’
reliance on Best’s alleged membership in Bonitas is insufficient to show that
Best recorded the Notice on BCL’s behalf, particularly when the Notice did
not mention BCL or any lawsuit involving either Bonitas or Lynaugh.

¶35 Nieblas also relied on Best’s filings in June 2021 in an
unrelated justice court eviction action. Based on those documents, Nieblas
argued that Best “prosecutes justice court eviction cases” on Bonitas’ behalf.
Tellingly, there is no reference to Bonitas or Lynaugh in any of these
documents and no information supporting Nieblas’ claim that Best
prosecutes eviction actions for Bonitas.

¶36 The last document Nieblas relied on was a 10-year lease
development agreement signed by Lynaugh and Best in February 2012,
eight years before Best recorded the Notice. The agreement concerns other
real property Lynaugh owned near the Property. Nieblas contended the
agreement shows Lynaugh and Best “shared a real estate development
partnership.” We fail to see how a development agreement Best entered
with Lynaugh in 2012 supports that, eight years later, Best acted on BCL’s
behalf in recording a notice that neither mentioned BCL nor referenced
litigation involving BCL.

¶37 Nieblas’ theory about BCL’s motive for having the Notice
recorded also misses the mark. He theorized BCL did so to prevent him
from redeeming the Property. Contrary to that theory, Best recorded the
Notice after Nieblas redeemed the Property. Even if one can use a lis

8
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

pendens to prevent redemption, one cannot use a lis pendens to prevent
redemption once redemption has occurred.

¶38 At bottom, Nieblas claims BCL caused Best to record the
Notice on its behalf to prevent redemption after redemption had already
occurred. Nieblas claims a jury could find Best did so based on (1) a vesting
sheet and bid log listing Best, (2) Best’s testimony in 2018 that he had an
interest in Bonitas, (3) Best’s justice court filings in unrelated actions, and
(4) a 2012 development agreement between Best and Lynaugh. To infer
from these documents that Best was acting on BCL’s behest when recording
the Notice would require a jury “to pile inference upon inference, which
stretches the evidence presented beyond the bounds of circumstantial
evidence.” Dawson v. Withycombe, 216 Ariz. 84, 103 ¶ 52 (App. 2007). The
superior court did not err in granting summary judgment for BCL on
Nieblas’ wrongful lis pendens claim.

B. Negligence and Fraud Claims

¶39 Nieblas next argues the superior court erred by granting
summary judgment on his fraud and breach/negligence claims on statute
of limitations grounds.

¶40 The limitations period for Nieblas’s claims are: (1) three years
for fraud, see A.R.S. § 12-543(3); (2) two years for negligence, see A.R.S. § 12-
542; and (3) one year for breach of statutory duty, see AR.S. § 12-541(5). The
court concluded Nieblas’ claims accrued on January 2, 2020, when he had
notice of any claims “arising from an excessive redemption amount.”
Nieblas filed his First Lawsuit in July 2020, and the court dismissed it in
January 2023. By filing his Second Lawsuit in February 2023, more than
three years after accrual, all three claims came too late. That is, unless those
claims were tolled.

¶41 To save his claims, Nieblas must show that an exception to
the statutes of limitations applied and delayed accrual. Troutman v. Valley
Nat’l Bank of Ariz., 170 Ariz. 513, 517 (App. 1992) (when a defendant
establishes that a statute of limitations applies, the plaintiff must show that
the limitations period was tolled); see also Passmore v. McCarver, 242 Ariz.
288, 292 ¶ 12 (App. 2017) (the plaintiff has the burden to show entitlement
to relief under the savings statute).

1. Fraud and the Discovery Rule

¶42 Nieblas argues there was a genuine issue of material fact
about when his fraud claim accrued. He asserts he did not know facts

9
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

supporting a “viable” fraud claim until March 2022. BCL responds that the
superior court was correct that Nieblas earlier knew about all facts
necessary to bring a fraud claim and that Nieblas’s discovery of additional
facts “does not matter” because “a plaintiff need not know all relevant facts
to trigger accrual.” We agree with BCL.

¶43 The discovery rule is an exception to the traditional rule that
the statute of limitations accrues “when the act upon which legal action is
based took place, even though the plaintiff may be unaware of the facts
underlying his or her claim.” Gust, Rosenfeld & Henderson v. Prudential Ins.
Co. of Am., 182 Ariz. 586, 588 (1995). The limitations period runs, not from
the moment of the defendant’s injurious conduct, but when a plaintiff
knows or should know he has been injured and when he “knows or with
reasonable diligence should know the facts underlying the cause.” Roe, 191
Ariz. at 322 ¶ 29; Mister Donut of Am., Inc. v. Harris, 150 Ariz. 321, 323–24
(1986) (applying the discovery rule to common law fraud claim). A claim
accrues when the plaintiff has “reason to connect the ‘what’ to a particular
‘who’ in such a way that a reasonable person would be on notice to
investigate whether the injury might result from fault.” See Walk v. Ring, 202 Ariz 310, 316 ¶ 22 (2002). The key inquiry is “whether a reasonable
person would have been on notice to investigate.” Id. ¶ 24.

¶44 Nieblas concedes he knew the redemption amount was
“grossly overinflated” on January 2, 2020. He does not dispute that he also
knew or had reason to know that BCL was the party responsible for
communicating an inflated redemption amount to MCSO. Still, Nieblas
contends he did not know sufficient facts to support a “viable” fraud claim
until March 2022, when he obtained documents from MCSO confirming
Best’s attempted acquisition of the Property. He argues those documents
for the first time supported “that the overcharge was purposeful” rather
than the result of Lynaugh’s unfamiliarity with the redemption process.
We disagree that receipt of those documents tolled accrual.

¶45 The statute of limitations “may begin to run before a person
has actual knowledge of the fraud or even all the underlying details of the
alleged fraud.” Mister Donut, 150 Ariz. at 323; Coronado Dev. Corp. v. Super.
Ct., 139 Ariz. 350, 352 (App. 1984) (“[A] person does not have to know every
fact about his fraud claim before the statute begins to run.”). Because
Nieblas knew by January 2, 2020, that he paid more than required to redeem
the Property and that BCL was responsible, he was then on notice to
investigate whether BCL committed fraud. Walk, 202 Ariz. at 316 ¶ 22.

10
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

¶46 Nieblas argues he lacked sufficient knowledge because he
later received documents from MCSO showing Best’s involvement in the
auction. Nieblas overlooks that he had three years after accrual to subpoena
those documents from MCSO. Neither BCL nor Best prevented Nieblas
from doing so as soon as he knew in January 2020 that BCL overcharged
him for redemption. Moreover, it is unclear why Nieblas’ fraud claim
against BCL should be tolled until he believed Best had some role in the
auction. By the time the court dismissed the First Lawsuit in January 2023,
Nieblas possessed MCSO documents showing Best’s purported role, and
yet he did not seek to amend the complaint in the First Lawsuit to assert a
fraud claim against BCL or Best.

¶47 The court therefore did not err in concluding that, as of
January 2020, Nieblas knew he had overpaid for redemption and that BCL
caused that overpayment. So the statute of limitations accrued then, and
Nieblas’ fraud claim brought in February 2023 as part of the Second
Lawsuit was time-barred.

2. Breach/Negligence and the Savings Statute

¶48 Nieblas next maintains the superior court erred by holding
his breach/negligence claim was time barred. Nieblas argues the court, by
allowing him to amend his complaint, determined that claim was timely
under the savings statute. In its summary judgment ruling, the court
concluded that it had not granted Nieblas permission to untimely file his
claim under the savings statute. We agree.

¶49 The savings statute, A.R.S. § 12-504(A), allows plaintiffs, “in
some circumstances, [to] refile terminated actions without regard to the
statute of limitations.” Passmore, 242 Ariz. at 291 ¶ 7. Generally, it applies
to claims filed within the statutory period and subsequently dismissed. See
Jepson v. New, 164 Ariz. 265, 270–75 (1990) (discussing the history and
underlying purposes of the savings statute).

¶50 Whether the savings statute allows a party to refile as of right
or instead with permission turns on the reason why a party’s prior lawsuit
was dismissed. Schwartz v. Ariz. Primary Care Physicians, 192 Ariz. 290, 294
¶ 14 (App. 1998). The superior court must allow a plaintiff to refile claims
dismissed in an earlier action when that action was: (1) commenced within
the applicable statutory period; and (2) terminated for reasons other than
certain enumerated reasons, like lack of prosecution. A.R.S. § 12-504(A); see
also Jepson, 164 Ariz. at 271. If the earlier action was dismissed for lack of

11
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

prosecution, the superior court has discretion to allow the claims to be
refiled. A.R.S. § 12-504(A); see also Jepson, 165 Ariz. at 271.

¶51 Nieblas does not dispute that he included his
breach/negligence claim in his First Lawsuit and that the court dismissed
that Lawsuit for lack of prosecution. Nieblas therefore needed the court’s
permission under the savings statute to refile his breach/negligence claim.
See A.R.S. § 12-504(A).

¶52 Nieblas claims the court granted him permission under the
savings statute when it granted him leave to amend his complaint in the
Second Lawsuit. Nieblas contends the court must have granted him
permission because the only authority he relied on to amend his
breach/negligence claim was the savings statute. So by granting leave to
amend, the court necessarily granted him permission to re-file under the
savings statute.

¶53 Nieblas overinflates what a court considers when deciding
whether to grant leave to amend. Under Arizona Rule of Civil Procedure
15, a court must grant leave to amend unless the “unless the court finds
undue delay in the request, bad faith, undue prejudice, or futility in the
amendment.” MacCollum v. Perkinson, 185 Ariz. 179, 185 (App. 1996). On
the other hand, whether to grant relief under the savings statute requires “a
case-by-case application and evaluation[,]” focusing on the plaintiff’s
diligence. Jepson, 164 Ariz. at 271–72.

¶54 Nothing in the court’s minute entry granting Nieblas leave to
amend can be read as granting Nieblas leave under the savings statute. As
Nieblas acknowledged, the court did not make any express reference or
determination regarding the savings statute. The superior court never
conducted such an analysis because Nieblas never asked it to. And BCL
did not respond to Nieblas’ request for leave to amend, so it did not raise
the issue. The court’s silence on the savings statute is not surprising. A
motion for leave to amend is not the proper vehicle to ask the superior court
for permission to file an untimely claim under the savings statute. If
Nieblas wanted to assert such a claim, he should have asked for permission
to do so when he filed his original complaint in the Second Lawsuit. And
in any event, the court did not understand the order on Nieblas’ motion for
leave to amend as granting permission to file under the savings statute. We
agree with the court’s interpretation of its own order. Because Nieblas
never received permission under the savings statute to file his untimely
breach/negligence claim, the court did not err in granting summary
judgment on that claim for BCL.

12
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

III. Attorney Fees and Costs to BCL

¶55 Nieblas challenges the court’s award of attorney fees and
costs and its denial of his motion to strike BCL’s errata. Nieblas argues (1)
the court erred by granting BCL’s untimely motion because he was not
afforded an opportunity to respond and BCL did not seek relief as required
under Arizona Rule of Civil Procedure 6(b)(1)(B); and (2) the factors in
A.R.S. § 12-350 do not support the court’s award.

¶56 The court may consider an untimely motion when the moving
party shows excusable neglect. Ariz. R. Civ. P. 6(b)(1)(B). Excusable neglect
is neglect or inadvertence that “might be the act of a reasonably prudent
person under the same circumstances.” Smith & Wesson Corp. v. The Wuster, 243 Ariz. 355, 357 ¶ 9 (App. 2017). The moving party “has the burden of
showing excusable neglect, . . . and the superior court has substantial
discretion in determining whether that burden has been met.” Id.

¶57 Here, BCL filed its motion four minutes after midnight on the
day it was due. Although BCL did not formally move to allow the late
filing, they explained in later filings why their motion was four minutes
late. The court concluded it would consider the motion. Nieblas has not
established that the court abused its discretion to do so. See Findlay v. Lewis, 172 Ariz. 343, 346 (1992) (“A trial court has broad discretion over the
management of its docket. Appellate courts do not substitute their
judgment for that of the trial court in the day-to-day management of
cases.”); Strategic Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224
Ariz. 60, 66 ¶ 24 (App. 2010) (“Whether to grant an extension of time is
within the discretion of the court.”). Nieblas complains the court did not
afford him an opportunity to respond, but he does not explain how a four-
minute delay in BCL’s filing prevented him from responding in the time
permitted.

¶58 BCL also attached the wrong supporting materials to its
motion. It later filed a notice of errata attaching the correct materials.
Rather than respond to the errata, Nieblas moved to strike it. The superior
court denied that request. Nieblas contends doing so was error.

¶59 A motion to strike is permitted only when “expressly
authorized by statute or other rule, or if it seeks to strike any part of a filing
or submission on the ground that it is prohibited, or not authorized, by a
specific statute, rule, or court order.” Ariz. R. Civ. P. 7.1(f)(1). There is no
specific statute prohibiting a party from correcting materials attached in
error to a motion for attorney fees. If Nieblas thought BCL’s errata put him

13
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

at a disadvantage in responding to BCL’s request for attorney fees, he
should have opposed the errata on the merits or asked for leave to make
additional arguments responding to the new materials (he did neither). The
court did not err in denying Nieblas’ motion to strike.

¶60 Nieblas also argues the superior court’s award under § 12-
349(A)(3) should be reversed because it was not supported by the factors in
§ 12-350. For an award of attorney fees under A.R.S. § 12-349, we review
the superior court’s findings of fact for clear error, and we review de novo
the court’s application of the statute. Fisher ex rel. Fisher v. Nat’l Gen. Ins.
Co., 192 Ariz. 366, 370 ¶ 13 (App. 1998). Under A.R.S. § 12-349(A)(3), “the
court shall assess reasonable attorney fees [and] expenses . . . against an
attorney or party” when they “[u]nreasonably expand[] or delay[] the
proceeding.” The court must “set forth the specific reasons for the award,”
but such findings “need only be specific enough to allow an appellate court
to test the validity of the judgment.” Bennett v. Baxter Group, Inc., 223 Ariz.
414, 421 ¶ 28 (App. 2010); A.R.S. § 12-350.

¶61 Here, the court found Nieblas unreasonably expanded
litigation over a $6,500 overpayment that should have been resolved by
“spending a few thousand dollars” on uncomplicated motion practice. But
because of Nieblas’ conduct, BCL spent “tens of thousands of dollars [and]
over four years of litigation defending against meritless claims.”

¶62 Nieblas maintains he had a “legitimate reason to file suit” and
there was only “minor additional briefing” in the Second Lawsuit. But the
court’s award was based on Nieblas escalating matters by asserting claims
in the Second Lawsuit that were time-barred and lacking evidentiary
support. The court acknowledged there was a reasonable dispute between
the parties about overpayment. But the Second Lawsuit was “necessitated”
because of Nieblas’ failure to prosecute the First Lawsuit.

¶63 The court concluded that Nieblas’ fraud and
breach/negligence claims were not only unsuccessful, but “time-barred”
and lacked “any evidentiary support.” It further found that he failed to
present “evidence that would support a wrongful lis pendens claim.”
Despite that BCL sought its fees incurred in both the First and Second
Lawsuit, the court only awarded BCL fees incurred in the Second Lawsuit.

¶64 Nieblas has not shown that the superior court failed to
properly consider the relevant factors. See A.R.S. § 12-350. Having
reviewed the record, we conclude the superior court’s findings are not

14
 NIEBLAS v. BONITAS CASITAS, et al.
Decision of the Court

clearly erroneous and the record supports the court’s award. See A.R.S.
§ 12-349(A)(3).

ATTORNEY FEES AND COSTS ON APPEAL

¶65 BCL requests attorney fees and costs on appeal under A.R.S.
§ 12-349. BCL does not adequately explain why we should impose
appellate fees against Nieblas under § 12-349. In any event, exercising our
discretion, we decline to award BCL their appellate attorney fees. But as
the successful party on appeal, BCL is awarded their taxable costs upon
compliance with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

¶66 We affirm the judgment.

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

15