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

5TH AVENUE PROFESSIONAL OFFICE LLC, an Arizona limited

liability company, Plaintiff/Appellant,

v.

MANINDER KAHLON and RAMIT KAHLON, husband and wife; 

ATUL SYAL and JYOTI SYAL, husband and wife; JATIN SHAH and 

RIMA SHAH, husband and wife; JASON REINHART, an unmarried 

man; ANDREW GORMAN and BRENDA GORMAN, husband and 

wife; ANDRE HAGEVIK and MELANIE LANE, husband and wife; 

NIRMALA ARYAL and PRASHANT NARAIN, husband and wife; 

LAWRENCE KUTZ and ELANA KUTZ, husband and wife; PRAFUL 

REDDY and AMRITA REDDY, husband and wife, Defendants/Appellees.

No. 1 CA-CV 15-0666

Appeal from the Superior Court in Maricopa County

No. CV2014-015004

The Honorable James T. Blomo, Judge

REVERSED AND REMANDED

COUNSEL

Ayers & Brown PC, Phoenix

By Charles K. Ayers

Counsel for Plaintiff/Appellant
5TH AVENUE v. KAHLON et al.

Decision of the Court

2

Poli & Ball P.L.C., Phoenix

By Jeffrey Messing

Counsel for Defendants/Appellees Syal, Shah, Reinhart, Gorman, Hagevik, Lane, 

Aryal, Narain, and Kutz

MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which 

Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.

O R O Z C O, Judge:

¶1 Appellant 5th Avenue Professional Office LLC (5th Avenue)

sued to enforce a commercial lease guaranty (Guaranty) signed by all but 

one of a number of named personal guarantors. The trial court found the 

missing signature rendered the Guaranty incomplete and invalid under 

Modular Systems, Inc. v. Naisbitt, 114 Ariz. 582, 585 (App. 1977) and entered

judgment to the guarantors. For the reasons set forth below, we reverse and 

remand for further proceedings consistent with this decision.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 5th Avenue leased office space to Arizona Neurological 

Institute, P.C. (ANI). An addendum to the lease obligated ANI to “deliver 

. . . a fully executed Guaranty of Lease, to include signatures from all above 

named Guarantors.” The addendum named the Kahlons, the Syals, the 

Shahs, the Gormans, the Kutzes, the Reddys, Nirmala Aryal, Prashant 

Nararin, Jason Reinhart, and Kirk Puttlitz as guarantors. 

¶3 The Guaranty provided that all named guarantors would 

“jointly, severally, unconditionally and irrevocably guarantee the prompt 

payment by [ANI] of all rents and other sums payable . . . .” The Guaranty 

further provided that 5th Avenue “would not execute the Lease if 

Guarantors did not execute and deliver to Lessor this Guaranty of Lease.” 

All named guarantors signed the Guaranty except Puttlitz. 5th Avenue 

accepted the Guaranty without Puttlitz’s signature, and ANI took

possession of the space. 
5TH AVENUE v. KAHLON et al.

Decision of the Court

3

¶4 ANI subsequently breached the lease and filed for 

bankruptcy. 5th Avenue sued the named guarantors, including Puttlitz,

1 to 

collect on the Guaranty. Appellees moved to dismiss the complaint, 

arguing the Guaranty was ineffective because Puttlitz did not sign it. In its 

response, 5th Avenue attached an affidavit from one of its assistant building 

managers and a series of emails between its broker and ANI’s broker. 

Based on the affidavit and emails, 5th Avenue argued the signing 

guarantors had “affirmatively represented . . . through their agent that the 

sole missing signature on the Guaranty was not necessary to make the 

Guaranty binding.” 

¶5 The trial court dismissed 5th Avenue’s complaint, finding 

that “Dr. Puttlitz did not sign the Guaranty and therefore the Guaranty of 

Lease is not a valid contract.” The trial court entered final judgment 

pursuant to Arizona Rule of Civil Procedure 54(c) and awarded attorney’s 

fees and costs to Appellees. 5th Avenue timely appealed. We have 

jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, 

and Arizona Revised Statutes (A.R.S.) section 12-120.21.A.1 and -2101.A.1

(West 2016).

2

DISCUSSION

I. The Motion to Dismiss Should Have Been Converted into a 

Motion for Summary Judgment

¶6 5th Avenue first contends the trial court should have 

converted Appellees’ motion to dismiss into a motion for summary 

judgment. If “matters outside the pleading are presented to and not 

excluded by the court,” a Rule 12(b)6 motion to dismiss “shall be treated as 

one for summary judgment and disposed of as provided in Rule 56, and all 

parties shall be given reasonable opportunity to present all material made 

pertinent to such a motion by Rule 56.” Ariz. R. Civ. P. 12(b).

¶7 5th Avenue presented an affidavit and email evidence beyond 

the pleadings in response to Appellees’ motion to dismiss. The trial court 

did not exclude any of this evidence; indeed, in making its ruling, the court 

 

1 There is no proof of service for Puttlitz but at oral argument 5th

Avenue admitted he was never served. 

2 We cite the current version of applicable statutes when no revisions 

material to this decision have since occurred. 
5TH AVENUE v. KAHLON et al.

Decision of the Court

4

considered this evidence, expressly noting that Dr. Puttlitz refused to sign 

the Guaranty - a fact outside the pleadings that was contained in the factual 

information attached to 5th Avenue’s response. Therefore, the superior 

court was required to treat Appellees’ motion to dismiss as a motion for

summary judgment, and give both parties a “reasonable opportunity to 

present all material made pertinent to such a motion by Rule 56.” Ariz. R. 

Civ. P. 12(b)6. Because the superior court did not comply with Rule 12(b)6, 

we reverse and remand, directing the trial court to comply with the Rule, 

and give “all parties . . . reasonable opportunity to present all material made 

pertinent to [the motion for summary judgment] by Rule 56.” Id.

II. Attorney Fees on Appeal

¶8 5th Avenue requests its attorney fees and costs pursuant to 

the Guaranty and A.R.S. § 12-341.01.A. In our discretion, we deny the 

request for fees, but award 5th Avenue its taxable costs incurred in this

appeal upon compliance with ARCAP 21.

CONCLUSION

¶9 We reverse and remand to the superior court for proceedings 

consistent with this decision.