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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

WAYNE SIMMONS and TRUDY SIMMONS, 

husband and wife, Plaintiffs/Appellants,

v.

MILTON FERRANTELLI, as Trustee of the MMF TRUST; WILLIAM 

“BILL” WEST AND LISA WEST, Defendants/Appellees.

No. 1 CA-CV 13-0687

Appeal from the Superior Court in Navajo County

No. S0900CV201300122

The Honorable Ralph E. Hatch, Judge

VACATED AND REMANDED

COUNSEL

Law Offices of J. Roger Wood, P.L.L.C., Tempe

By J. Roger Wood, Erin S. Iungerich

Counsel for Plaintiffs/Appellants

Brown & Brown Law Offices, P.C., Pinetop

By Douglas E. Brown, Nicholas D. Patton

Counsel for Defendants/Appellees
SIMMONS v. FERRANTELLI/WEST

Decision of the Court

2

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.

D O W N I E, Judge:

¶1 Wayne and Trudy Simmons appeal from the superior court’s

entry of summary judgment against them.

1 For the following reasons, we 

vacate that judgment and remand for further appropriate proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 The Simmonses and Milton Ferrantelli, as trustee of the 

MMF Family Trust (“Ferrantelli”), own homes next door to each other in 

Show Low. Both properties are governed by the Torreon Community 

Association, Inc. (“Torreon”). Summit Development Company, LLC 

(“Summit”) developed the Torreon community. 

¶3 Ferrantelli purchased his property in 2008 and subsequently 

leased it to the Kings. After the Kings’ tenancy ended, Ferrantelli rented

the property to Bill and Lisa West. Neighbor-to-neighbor disputes have 

persisted for years, including allegations by the Simmonses of set-back 

violations and complaints about noise and other disturbances on the 

Ferrantelli property. In 2012, the Simmonses sued Torreon, Summit, 

Ferrantelli, and the Wests, alleging breach of contract, breach of covenant 

of good faith and fair dealing, breach of duty, nuisance, and negligence 

per se. 

¶4 Torreon moved to dismiss the Simmonses complaint for 

failure to state a claim upon which relief can be granted, see Ariz. R. Civ. 

P. 12(b)(6), and Summit joined in that motion. Torreon argued dismissal 

was appropriate because the Simmonses had not followed the alternative 

dispute resolution (“ADR”) provisions set forth in the Torreon Declaration 

of Covenants, Conditions, and Restrictions (“Declaration”). 

 

1 We grant the Simmons’ unopposed procedural motion to correct

the caption. The caption is amended to read “Wayne Simmons.” 
SIMMONS v. FERRANTELLI/WEST

Decision of the Court

3

¶5 In March 2013, the Simmonses voluntarily dismissed 

Torreon and Summit from the litigation. Ferrantelli and the Wests

thereafter filed a joinder in Torreon’s still-pending motion to dismiss. 

After briefing and argument of the Rule 12(b)(6) motion, the superior 

court entered summary judgment in favor of Ferrantelli and the Wests. 

The Simmonses timely appealed. We have jurisdiction pursuant to 

Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and 12-

2101(A)(1).

DISCUSSION

¶6 One of the Simmonses’ appellate arguments is that the 

superior court improperly converted the motion to dismiss into a motion 

for summary judgment. We agree. Rule 12(b) provides:

If, on a motion asserting the defense numbered 6 to dismiss 

for failure of the pleading to state a claim upon which relief 

can be granted, matters outside the pleading are presented 

to and not excluded by the court, the motion 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.

¶7 Exceptions to Rule 12(b)’s conversion mandate exist for 

materials that are intrinsic to the complaint, unnecessary to the final 

outcome, or public records. See Coleman v. City of Mesa, 230 Ariz. 352, 356, 

¶ 9, 284 P.3d 863, 867 (2012); Strategic Dev. & Constr., Inc. v. 7th & Roosevelt 

Partners, LLC, 224 Ariz. 60, 63–64, ¶¶ 8, 13, 226 P.3d 1046, 1049–50 (App. 

2010). A document is intrinsic to the complaint if it is attached to the 

complaint, sufficiently referenced in the complaint, or an official public 

record. Belen Loan Investors, LLC v. Bradley, 231 Ariz. 448, 452, ¶ 6, 296 

P.3d 984, 988 (App. 2012).

¶8 Torreon’s Rule 12(b)(6) motion included four multi-page 

exhibits consisting of photographs and communications between counsel 

for various parties. The motion discussed and relied on these documents

to support the contention that the Simmonses had failed to comply with 

the Declaration’s ADR terms, thereby waiving all claims set forth in the 

civil complaint. The superior court did not exclude these exhibits. On the 

contrary, it relied on and discussed them, stating for the first time in its 

under advisement ruling that it would be treating the Rule 12(b)(6) motion 

as one for summary judgment. With the exception of the Declaration, 
SIMMONS v. FERRANTELLI/WEST

Decision of the Court

4

though, the exhibits accompanying the motion were not public records, 

intrinsic to the complaint, or unnecessary to the final outcome. Cf. Young 

v. Rose, 230 Ariz. 433, 438, ¶¶ 26, 28, 286 P.3d 518, 523 (App. 2012) 

(submitting “copies of numerous e-mail messages” converted 12(b)(6) 

motion into motion for summary judgment). 

¶9 When a court converts a motion to dismiss into a motion for 

summary judgment, it must give all parties “reasonable opportunity to 

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

Civ. P. 12(b); see also Parks v. Macro-Dynamics, Inc., 121 Ariz. 517, 519–20, 

591 P.2d 1005, 1007–08 (App. 1979) (“If matters outside the complaint are 

presented to and not excluded by the court, the motion is one for 

summary judgment, provided all parties are given a reasonable 

opportunity to present their factual claims to the court.”). That did not 

occur here, and the Simmonses contend they were deprived of “an 

opportunity to fully address additional facts, provide affidavits or 

otherwise provide a robust defense to the Rule 56 Motion for Summary 

Judgment.” Contrary to appellees’ suggestion, whether the Simmonses

were familiar with the documents attached to the motion or can ultimately 

prevail under Rule 56 standards is not the proper focus. Rule 12 and due 

process principles make clear that the Simmonses are entitled to notice 

and a meaningful opportunity to present controverting facts and evidence 

before summary judgment is entered against them. 

¶10 We vacate the entry of summary judgment and remand to 

the superior court for further appropriate proceedings. See Young, 230 

Ariz. at 434, 438, ¶¶ 2, 26–27, 286 P.3d at 519 (judgment vacated because 

extrinsic documents were attached to 12(b)(6) motion, discussed by 

parties, and relied on by court). Based on our determination, we do not 

reach the Simmonses’ substantive arguments regarding the ADR 

provisions. We do, however, address one substantive issue likely to arise 

on remand: whether the ADR provisions govern the Simmonses’ 

nuisance claim. 

¶11 Section 15.2 of the Declaration exempts from the ADR 

requirements “any suit between Owners, which does not include 

Declarant or the Association as a party, if such suit asserts a Claim which 

would constitute a cause of action independent of the Governing 

Documents.” Nuisance is a common law action independent of the 

Declaration. See Armory Park Neighborhood Ass’n v. Episcopal Cmty. Servs. in 

Ariz., 148 Ariz. 1, 4, 712 P.2d 914, 917 (1985). At all times, only Ferrantelli 

and the Wests have been defendants regarding the nuisance count. And 
SIMMONS v. FERRANTELLI/WEST

Decision of the Court

5

by the time the court granted the motion to dismiss, neither Torreon nor 

Summit was a party. 

¶12 We disagree with the superior court’s conclusion that, 

simply because Torreon and Summit were initially named as defendants 

in other counts of the complaint, the Simmonses were forever barred from 

proceeding against Ferrantelli and the Wests on a common law nuisance 

claim that is clearly independent of the “Governing Documents.” 

Therefore, even if the superior court determines on remand that the 

Simmonses failed to comply with binding ADR terms, the nuisance cause 

of action is not subject to dismissal on that basis. 

CONCLUSION

¶13 We vacate the entry of summary judgment and remand for 

further appropriate proceedings. We deny appellees’ request for an 

award of attorneys’ fees under A.R.S. § 12-341.01 because they have not 

prevailed on appeal. We award the Simmonses their taxable costs on 

appeal upon compliance with ARCAP 21.