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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ABN INVESTMENTS, LLC, an Arizona limited liability company, 

Plaintiff/Appellant,

v.

JAMES G. GARVEY, JR. and JULIE LYNN GARVEY, husband and wife, 

Defendants/Appellees.

No. 1 CA-CV 14-0616

Appeal from the Superior Court in Maricopa County

No. CV 2013-009529

The Honorable J. Richard Gama, Judge

AFFIRMED

COUNSEL

R. Stewart Halstead, P.C., Glendale

By Stewart Halstead

Counsel for Plaintiff/Appellant

Dennis L. Hall, PLLC, Scottsdale

By Dennis L. Hall

Counsel for Defendants/Appellees
ABN v. GARVEY

Decision of the Court

2

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.

T H U M M A, Judge:

¶1 ABN Investments, LLC (ABN) appeals from an order 

dismissing its claims against James and Julie Garvey (the Garveys) as timebarred and denying a subsequent motion for new trial. Because the superior 

court did not err, the orders are affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 Beginning in 2002, Integrated Information Systems, Inc. (IIS) 

borrowed money from Anchorbank, FSB, ultimately totaling more than $5 

million. James Garvey signed the loan documents as CEO of IIS. The 

Garveys also each signed a personal guaranty, agreeing to pay Anchorbank 

up to $1 million of the loan obligations “when due” or “at the time [IIS]

becomes the subject of bankruptcy or other insolvency proceedings.”

¶3 In 2005, Anchorbank sued IIS and the Garveys for nonpayment on the loan. In May 2006, while Anchorbank’s suit was pending,

IIS entered involuntary bankruptcy, which became a Chapter 11 

reorganization in August 2006. Also in August 2006, and with the Garveys’ 

consent, Anchorbank assigned the loan and guaranty to ABN. ABN agreed 

to conditionally release the Garveys from the 2002 guaranty upon the 

completion by IIS of certain conditions related to the bankruptcy, and 

Anchorbank dismissed its claims against the Garveys without prejudice. 

The record does not indicate these agreements included a provision 

purporting to toll the applicable limitations period for a claim by 

Anchorbank or its successors against the Garveys on the 2002 guarantee.

 

1 In reviewing the grant of a motion to dismiss, this court assumes the truth 

of all well-pleaded facts alleged in the compliant. Fid. Sec. Life Ins. Co. v. 

State, 191 Ariz. 222, 224 ¶ 4, 954 P.2d 580, 582 (1998). 
ABN v. GARVEY

Decision of the Court

3

¶4 The bankruptcy court confirmed IIS’ Chapter 11 plan of 

reorganization in a May 2007 order. In a September 2008 motion for entry 

of final decree, IIS avowed it had complied with the plan of reorganization, 

including payments, resolution of contested matters and completion of the 

conditions necessary to release the Garveys from the guaranty. The 

bankruptcy court entered its final decree and closed the bankruptcy. No 

appeal was taken from that decree. 

¶5 In October 2011, at a time when the bankruptcy court’s final 

decree was in place, ABN sued the Garveys for breach of the 2002 guaranty.

In May 2013, that suit was placed on the inactive calendar and was then 

dismissed without prejudice off of the inactive calendar in December 2013.

In May 2013, the bankruptcy court found IIS and the Garveys failed to 

comply with the terms of the reorganization plan, and converted the matter 

into a Chapter 7 liquidation. This May 2013 bankruptcy order voided IIS’ 

Chapter 11 plan of reorganization, thereby reinstating IIS’ repayment 

obligation to ABN for the full balance of the loan. 

¶6 In July 2013, even though ABN’s October 2011 suit against the 

Garveys for breach of the 2002 guaranty was pending, ABN filed this suit

against the Garveys for breach of the 2002 guaranty, including the implied 

obligation of good faith and fair dealing. The Garveys moved to dismiss, 

arguing ABN’s claims were barred by the statute of limitations and their 

guaranty obligations had been released. ABN’s opposition argued its claim 

did not accrue before May 2013: “Prior to May 1, 2013, ABN had no claims 

against the Garveys” because before that date it was not yet impossible to 

fulfill the terms of the guaranty waiver. Thus, ABN argued its claim accrued 

on May 1, 2013. 

¶7 After full briefing,2 the superior court granted the motion to 

dismiss, finding the Garveys’ obligations on the 2002 guaranty accrued: (1) 

by November 2005 for failure to make required payments; and (2) by May 

2006, at the latest, when IIS was placed in bankruptcy. Using a six-year 

 

2 Without objection, the briefs addressing the motion to dismiss attached 

materials not included in the complaint. As applicable here, those filings 

did not convert the motion to dismiss into a motion for summary judgment. 

See Coleman v. City of Mesa, 230 Ariz. 352, 356 ¶ 9, 284 P.3d 863, 867 (2012)

(holding, in deciding motion to dismiss for failure to state a claim, court 

may consider pleading and “complaint’s exhibits, or public records 

regarding matters referenced in a complaint”).
ABN v. GARVEY

Decision of the Court

4

limitations period contained in Arizona Revised Statutes (A.R.S.) section 

12-548 (2015),3 the court concluded that the payment obligations in “the 

underlying loan and guaranty agreements became due more than six years 

prior to the filing of this action” but were not paid “and as a consequence 

are barred by the applicable statute of limitation.” The court also noted that 

the conditions of the 2006 conditional release “were met more than six years 

prior to the filing of the present action.”

¶8 ABN filed a timely motion for new trial, challenging the 

superior court’s ruling and arguing, for the first time, that equitable tolling 

meant the claims were timely and equitable estoppel prevented the Garveys 

from arguing the claims were time barred. ABN did not argue, however, 

that the 2005 suit by Anchorbank or the 2011 suit by ABN tolled the 

limitations period under A.R.S. § 12-504. The superior court denied the 

motion for new trial. This court has jurisdiction over ABN’s timely appeal 

pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. § 12-

120.21(A)(1). 

DISCUSSION

I. The Superior Court Did Not Err In Concluding ABN’s Claims Are 

Time-Barred.

¶9 ABN argues the superior court erred in dismissing its claims

as time-barred. This court reviews de novo an order dismissing a complaint 

for failure to state a claim. Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 7, 284 

P.3d 863, 866 (2012). This court examines four issues to determine whether 

a claim is time-barred: (1) when the cause of action accrued; (2) the

applicable limitations period; (3) when the claim was filed and (4) whether 

the running of the limitations period was suspended or tolled for any 

reason. Logerquist v. Danforth, 188 Ariz. 16, 18, 932 P.2d 281, 283 (App. 1996).

¶10 A breach of contract claim generally “accrues immediately 

upon the happening of the breach,” Enyart v. Transamerica Ins. Co., 195 Ariz. 

71, 76 ¶ 13, 985 P.2d 556, 561 (App. 1998) (citation omitted), which occurred 

by November 2005 when IIS and the Garveys failed to make required 

payments. Another default implicating the guaranty obligations occurred 

 

3 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
ABN v. GARVEY

Decision of the Court

5

in May 2006, when IIS was placed into bankruptcy.4 The parties do not 

dispute that a breach of contract claim is subject to a six-year limitations

period, while a contractual good faith and fair dealing claim is subject to a 

two-year limitations period. See A.R.S. §§ 12-548, -542(3). 

¶11 ABN did not file this case until July 11, 2013, more than six 

years after the November 2005 breach for failure to make payments and 

more than six years after the May 2006 placement of IIS into bankruptcy. 

Neither the complaint, nor ABN’s opposition to the motion to dismiss, 

claimed the limitations period should be tolled for any reason. Although 

ABN argued their claims accrued when the bankruptcy proceeding was

converted to a chapter 7 liquidation in 2013, ABN provided no law to 

support that argument. In fact, ABN sued on the guaranty in 2011, reflecting 

a belief that the cause of action on the guaranty accrued before 2013.

Because ABN failed to demonstrate that the correct date of accrual was 2013 

(rather than in 2005 or 2006) and failed to argue that the limitations period

had been tolled or should be tolled, the superior court properly granted the 

Garveys’ motion to dismiss ABN’s claims as time-barred.

¶12 ABN’s motion for new trial argued, for the first time, that the 

application of equitable tolling and equitable estoppel meant its claims 

were not time-barred. Where applicable and properly raised, these 

equitable doctrines allow a plaintiff to press what otherwise may be an 

untimely claim. See McCloud v. State, 217 Ariz. 82, 87 ¶ 12, 170 P.3d 691, 696 

(App. 2007) (discussing equitable tolling); Nolde v. Frankie, 192 Ariz. 276, 

280–81 ¶ 16–20, 964 P.2d 477, 481–82 (1998) (discussing equitable estoppel).

“The party opposing a motion to dismiss based on a statute of limitations 

defense ‘bears the burden of proving the statute has been tolled.’” McCloud, 

217 Ariz. at 85 ¶ 8, 170 P.3d at 694 (citation omitted). The superior court 

denied the motion for new trial, finding no error of law in its dismissal of 

the case and no new issue that ABN could not have raised in opposing the 

motion to dismiss.

 

4 As assignee, ABN steps into the shoes of Anchorbank and is subject to the 

same defenses as could have been raised against Anchorbank. K.B. v. State 

Farm Fire & Cas. Co., 189 Ariz. 263, 267, 941 P.2d 1288, 1292 (App. 1997).
ABN v. GARVEY

Decision of the Court

6

¶13 ABN first raised equitable tolling and estoppel arguments in 

their motion for new trial, after the superior court had granted the Garveys’ 

motion to dismiss. Arguments raised for the first time in a motion for new 

trial that could have been raised previously generally are deemed waived. 

See, e.g., Nickerson v. Green Valley Recreation, Inc., 228 Ariz. 309, 315 ¶ 9, 265 

P.3d 1108, 1114 (App. 2011); Conant v. Whitney, 190 Ariz. 290, 293, 947 P.2d 

864, 867 (App. 1997); see also Evans Withycombe, Inc. v. W. Innovations, Inc., 

215 Ariz. 237, 240-41 ¶¶ 15-16, 159 P.3d 547, 550-51 (App. 2006) (holding 

argument relating to claim was waived where first raised in motion to 

reconsider). This general rule may not apply, however, for an issue first 

raised in a motion for new trial if the opposing party did not object and the 

court considered the argument on the merits. Crown Life Ins. Co. v. Howard, 

170 Ariz. 130, 132, 822 P.2d 483, 485 (App. 1991).

¶14 In response to ABN’s motion for new trial, raising for the first 

time the equitable tolling and estoppel, the Garveys objected, arguing that

such tolling arguments could have been asserted in responding to the 

motion to dismiss. ABN made no claim it was precluded from raising 

equitable tolling or estoppel in opposing the Garveys’ motion to dismiss. 

Moreover, the superior court did not consider the merits of the belatedly 

proffered equitable arguments in denying the motion for new trial. On this 

record, ABN’s equitable arguments are waived. ABN failed to raise them in 

opposing the motion to dismiss, the Garveys objected to them in opposing 

the motion for new trial and the superior court did not consider the merits

of the arguments. See Nickerson, 228 Ariz. at 315 ¶ 9, 265 P.3d at 1114; Crown 

Life Ins. Co., 170 Ariz. at 132, 800 P.2d at 485. Accordingly, the trial court did 

not err in granting the motion to dismiss or denying ABN’s motion for new 

trial.5

 

5 Given this conclusion, this court need not address ABN’s challenge to the 

superior court’s conditional release finding.
ABN v. GARVEY

Decision of the Court

7

II. Attorneys’ Fees On Appeal.

¶15 Both ABN and the Garveys request attorneys’ fees and costs

under A.R.S. §§ 12-341 and -341.01. Because ABN is not the prevailing party 

on appeal, its requests for attorneys’ fees and costs are denied. This court, 

in its discretion, denies the Garveys’ request for attorneys’ fees. The 

Garveys are, however, awarded taxable costs on appeal, upon compliance 

with Arizona Rule of Civil Appellate Procedure 21. 

CONCLUSION

¶16 Because the superior court did not err in dismissing ABN’s 

claims and denying the motion for a new trial, the orders are affirmed.