NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS DIVISION ONE

BURCH & CRACCHIOLO, P.A., an Arizona professional association, 

Plaintiff/Appellee,

v.

JOYCE MOORE and SAMUEL MOORE, wife and husband, 

Defendants/Appellants.

No. 1 CA-CV 13-0066

Appeal from the Superior Court in Maricopa County

No. CV 2009-038630

The Honorable Katherine M. Cooper, Judge

AFFIRMED

COUNSEL

The Reiman Law Firm, Phoenix

By Clarissa B. Reiman

Counsel for Plaintiff/Appellee

Joyce Moore and Samuel Moore, Phoenix

Defendants/Appellants In Propria Persona
BURCH & CRACCHIOLO v. MOORE

Decision of the Court

2

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which 

Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop 

joined.

J O N E S, Judge:

¶1 Joyce and Samuel Moore (Moore) appeal the trial court’s 

denial of their motions for summary judgment, judgment as a matter of 

law (JMOL), and motion for new trial. The matter culminated in a jury 

verdict in favor of Burch & Cracchiolo, P.A. (Burch). For the reasons 

discussed below, we affirm the trial court’s rulings.

FACTS AND PROCEDURAL BACKGROUND

¶2 On October 29, 2004, William (Billy) Everett Preston granted 

Joyce Moore medical power of attorney. Billy Preston, a Grammy Awardwinning soloist who performed with the Beatles and other musicians, was

admitted to the hospital in 2005 and died in June of 2006. Preston v. 

Kindred Hosps. W., L.L.C., 226 Ariz. 391, 392, ¶ 2, 249 P.3d 771, 772 (2011).

¶3 According to Moore, in March 2006, while Preston was in a 

comatose state, Preston’s disinherited half-sister petitioned to be 

appointed conservator of Preston’s estate in Maricopa superior court.1 In 

order to oppose the petition, Moore hired Burch to represent her. The 

parties entered a fee agreement on March 30, 2006. At the time of the 

agreement, Moore understood she hired Burch to represent her solely in 

her capacity as medical power of attorney for Billy Preston, and the

Preston estate (estate) would be liable for the fees. Burch, however,

understood it was providing representation to Moore individually and on 

her own behalf as Moore had a personal and business relationship with 

Preston. Consequently, Burch understood Moore was personally 

responsible for costs and fees associated with providing representation. 

 1 This action was captioned “In re the Matter of Guardianship of: 

WILLIAM EVERETT PRESTON (a.k.a. BILLY PRESTON) Adult” and 

given the case number PB 2006-090202. 
BURCH & CRACCHIOLO v. MOORE

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¶4 In December 2009, Burch filed a complaint against Moore 

alleging her personal liability for legal representation in the matter of the 

“Guardianship/Conservatorship of William Everett Preston.” Citing costs 

and fees for services rendered pursuant to the fee agreement, Burch 

claimed it was owed $29,481.38. Moore defended the action on the basis 

that she had entered into the fee agreement with Burch only in her 

capacity as medical power of attorney for Billy Preston, and the bill for 

attorney fees belonged to the estate.2 

¶5 Moore filed a motion for summary judgment asserting that a 

representative of the Preston Trust informed Burch the Preston Trust 

(trust) was “in all likelihood responsible” for attorney fees which would 

be paid when funds were unfrozen, and the Trust received documents 

requested from Burch. Burch filed a cross-motion for summary 

judgment, alleging Moore breached the fee agreement and owed, at that 

time, $36,648.04 in costs and fees. The trial court denied both motions on 

the ground that a genuine issue of material fact existed regarding who 

was liable for the legal services rendered by Burch; Moore personally or 

the trust. In deciding the motions, the trial court limited its findings of 

fact to the parties’ knowledge that Moore needed legal representation in 

her capacity as medical power of attorney for Billy Preston.3

¶6 The parties subsequently submitted the fee dispute to 

arbitration. On May 16, 2012, the arbitrator found Burch the prevailing 

party, and awarded $13,550.86 for legal services plus fees and costs. In 

response, Moore filed a Rule 76 objection claiming, among other issues, 

the award of costs was excessive, and reasserting her contention that 

Burch represented her only in her capacity as medical power of attorney 

for Billy Preston rather than “individually” as claimed by Burch. Shortly 

 2 As part of the agreement, Burch required a $10,000.00 retainer fee. 

Moore paid $9,000.00 of the retainer, drawing the payment from what 

Moore indicated were monies of Billy Preston. On October 21, 2005, the 

estate of Billy Preston filed for bankruptcy under Chapter 11. On October 

19, 2007, the Trustee commenced a civil action against Burch to recover 

Moore’s payment of $9,000.00 towards the retainer fee which the Trustee 

stated was “neither authorized under the Bankruptcy Code nor by the 

Bankruptcy Court.” On January 18, 2011, the bankruptcy estate of Billy

Preston and Burch entered a settlement agreement for the partial return of 

funds Moore paid to retain Burch. 3 As summarized by the trial court, “Her role was clear; who would pay 

the legal fees unfortunately was not.” 
BURCH & CRACCHIOLO v. MOORE

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thereafter, Moore appealed the arbitration award and moved to set the 

matter for trial. 

¶7 A three day trial commenced on September 17, 2012. On the 

first day of trial, and prior to the commencement of proceedings before 

the jury, Moore orally moved to dismiss the case which the trial court

denied. During the second day of trial, Moore orally moved the court for 

judgment as a matter of law on two occasions: first, at the close of the 

Burch’s case, and second, following the discussion of final jury 

instructions. The minute entry for the second day of trial notes that the 

trial court denied Moore’s second JMOL on the grounds that a reasonable 

juror could find for Burch, and the triers of fact were to decide the issues 

in the case.4 Following trial, the jury found in favor of Burch and awarded

$20,000 of the $30,909.26 in costs and fees Burch asserted to be owed at the 

time of trial. 

¶8 Moore subsequently filed a motion for a new trial under 

Arizona Rule of Civil Procedure 59(A)(8), asserting the jury verdict was 

“contrary to law,” and arguing for the first time that the terms of the fee 

agreement specified “two independent thresholds” requiring preparation 

of a new fee agreement. The first threshold was if “litigation becomes 

necessary,” and the second threshold was if “significant legal work needs 

to be undertaken.” In its response to Moore’s motion for new trial, Burch 

countered that, assuming for the sake of argument, the fee arrangement

did provide thresholds for new arrangements for attorney costs, Moore 

was still obligated to pay for those fees incurred, which a trier of fact had 

already determined to be $20,000.00. The trial court denied Moore’s 

motion for new trial. This appeal followed. We have jurisdiction pursuant 

to Arizona Revised Statutes (A.R.S.) section 12-2101(A)(1), (5)(a) (2014).5

ISSUES ON APPEAL 

¶9 As an initial matter, we note Moore’s opening brief, filed by 

Moore as a self-represented litigant, fails to meet the requirements of 

Arizona Rule of Civil Procedure 13(a)(1)-(6) and is thus procedurally 

 4 Because the record on appeal does not contain the trial transcript, and 

the minute entry notes only that Moore moved for a JMOL after the close 

of the Burch’s case, the trial court’s rationale for denying Moore’s first 

motion for JMOL made on the second day of trial is unknown. 5 Absent material revisions after the relevant date, we cite to the current 

version of the statute. 
BURCH & CRACCHIOLO v. MOORE

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deficient as it lacks a jurisdictional statement, citations to the record, or 

citations to relevant authorities. In addition, Moore failed to clearly 

articulate the issues on appeal. The failure to comply with the briefing 

requirements may be sufficient cause for dismissal. Clemens v. Clark, 101 

Ariz. 413, 414, 420 P.2d 284, 285 (1966). In this instance, we exercise our

discretion to reach the merits of the issues raised on appeal. Drees v. Drees, 

16 Ariz.App. 22, 23, 490 P.2d 851, 852 (1971).

¶10 For the first time on appeal, Moore contends the fee 

agreement she entered into with Burch limited the cost of legal services to 

the amount of the retainer provision ($10,000.00) unless the parties 

entered into a new fee arrangement when litigation or advanced legal 

work became necessary.6 After a careful review of the opening brief, we 

conclude the existence of three issues on appeal. Moore asserts the trial 

court erred by denying her 1) motion for summary judgment; 2) oral 

motions for JMOL; and 3) motion for new trial under Arizona Rule of 

Civil Procedure 59(a)(8). 

DISCUSSION

I. Legal Fees “Capped” at the Amount of the Retainer Agreement

¶11 Moore initially asserts the fee agreement limited or 

“capped” the cost of legal services at ($10,000.00) absent a new agreement. 

An issue is proper on appeal if it has been raised first at the trial court 

level. Dillon-Malik, Inc. v. Wactor, 151 Ariz. 452, 454, 728 P.2d 671, 673 

(App. 1986). Burch claims the issue was never raised before the trial court 

and should not be considered on appeal. 

¶12 Neither Moore’s motion for summary judgment, nor 

motions in opposition to Burch’s motion for summary judgment,

presented the issue of capped fees to the trial court. Furthermore, the 

record on appeal does not contain trial transcripts of the summary 

judgment hearing or the three-day trial. Consequently, we are unable to 

determine if Moore argued the issue of capped fees below. Under 

Arizona Rule of Civil Appellate Procedure 11(b), the appellant is 

 6 In the motion for new trial, Moore raised the issue of Burch’s alleged 

failure to prepare a new fee arrangement when representation in court or 

“significant legal work” became necessary. We are unable to determine 

whether this issue was litigated during trial because the trial transcript 

was not submitted in the record on appeal. 
BURCH & CRACCHIOLO v. MOORE

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responsible for providing all relevant transcripts necessary for this Court 

to consider the issues on appeal. Because Moore failed to do so, we 

presume the evidence and arguments support the trial court’s rulings, and 

do not consider the issue of capped fees on appeal. Blair v. Burgener, 226 

Ariz. 213, 217, ¶ 9, 245 P.3d 898, 902 (App. 2010).

II. Denial of Motions for Summary Judgment and JMOL

A. Moore’s Motion for Summary Judgment

¶13 Next, Moore contends the trial court erred as a matter of law 

by denying her motion for summary judgment and “permitting the case to 

be submitted to the jury.” Ordinarily, the denial of a motion for

summary judgment is not appealable because it is not a final order. 

Sorenson v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465-66, 957 P.2d 1007, 

1008-09 (App. 1997) (“A denial of a motion for summary judgment is an 

intermediate order deciding simply that the case should go to trial.”); 

Hauskins v. McGillicuddy, 175 Ariz. 42, 49, 852 P.2d 1226, 1233 (App. 1992). 

An appellate court may, however, review a trial court’s denial of 

summary judgment when the denial is based solely on a matter of law or, 

as in this case, the appellant preserved the appeal by filing a motion for 

judgment as a matter of law during trial. Hauskins, 175 Ariz. at 49, 852 

P.2d at 1233; John C. Lincoln Hosp. & Health Corp. v. Maricopa Cnty., 208 

Ariz. 532, 539, ¶ 19, 96 P.3d 530, 537 (App. 2004). We review de novo 

whether a pure question of law precluded the denial of summary 

judgment. Stallings v. Spring Meadows Apartment Complex Ltd. P’ship, 185 

Ariz. 156, 158, 913 P.2d 496, 498 (1996); Chi. Ins. Co. v. Manterola, 191 Ariz. 

344, 346, ¶ 7, 955 P.2d 982, 984 (App. 1998). 

¶14 Although the record on appeal does not contain trial 

transcripts, the minute entries indicate Moore made two oral motions for 

JMOL on the second day of trial, and by so doing, preserved the issue of 

whether the trial court erred by denying Moore’s motion for summary 

judgment and submitting the case to the jury. In its denial of summary 

judgment, the trial court concluded genuine issues of material fact existed 

as to who would pay for the legal services, Moore or the Preston Trust. 

We find no error in the trial court’s denial of Moore’s motion for summary 

judgment.

B. Moore’s Motions for Judgment as a Matter of Law

¶15 We also review de novo whether the trial court erred when it 

denied Moore’s motions for JMOL, determining as a part of the analysis 

whether a genuine dispute existed in regard to material facts, and viewing 
BURCH & CRACCHIOLO v. MOORE

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the evidence in light most favorable to upholding the jury verdict. 

McBride v. Kieckhefer Assocs., Inc., 228 Ariz. 262, 265, ¶ 10, 265 P.3d 1061, 

1064 (App. 2011).

¶16 The record indicates the trial court denied Moore’s second 

motion for JMOL on the grounds that genuine issues of material fact 

existed during trial, and a reasonable juror could find for Burch. We find 

no error in the trial court’s denial of Moore’s JMOLs, and therefore affirm 

the trial court’s rulings on Moore’s motions for summary judgment and 

JMOLs, concluding a motion for summary judgment and JMOL are 

properly denied when there are genuine facts in dispute. See Orme Sch. v. 

Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).

III. Denial of Motion for New Trial

¶17 Lastly, Moore appeals the denial of her motion for new trial.

In her motion, Moore asserted the jury verdict was contrary to law, and 

based her contention on the terms of the engagement letter. The trial 

court denied Moore’s motion for new trial, noting the evidence presented 

at trial was sufficient to support the verdict and was not so deficient as to 

constitute a decision contrary to law. We review the trial court’s denial of 

Moore’s motion for an abuse of discretion. McBride, 228 Ariz. at 266, ¶ 16,

265 P.3d at 1065.

¶18 However, the record on appeal does not include the trial 

transcripts by which we might review the evidence presented. 

Consequently, we are unable to review the sufficiency of that evidence in 

support of the jury’s verdict. As a result, we assume the transcript would 

support the jury’s verdict. Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 

(App. 1995) (“When a party fails to include necessary items, we assume 

they would support the court’s findings and conclusions.”). Accordingly, 

we affirm the trial court’s denial of the motion for new trial. 

CONCLUSION

¶19 For the foregoing reasons, we find the issue of “capped fees” 

was not preserved for appeal, and affirm the trial court’s denial of 

Moore’s motions for summary judgment, JMOL, and new trial. The trial 

court correctly determined genuine issues of material fact precluded

summary judgment and the granting of Moore’s Motions for Judgment as 

a Matter of Law. Furthermore, in the absence of trial transcripts, we 

assume the evidence on appeal is determined sufficient to support the 

verdict in favor of Burch.
BURCH & CRACCHIOLO v. MOORE

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¶20 Burch requests its attorney fees on appeal pursuant to A.R.S. 

§ 12-341, -341.01 (2013). In our discretion, we award Burch reasonably 

incurred attorney fees and costs on appeal, subject to its compliance with 

ARCAP 21.