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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THERON I. FLEMING, Plaintiff/Appellee/Cross-Appellant,

v.

FRIPPS MOHAVE LAND, LLC, Defendant/Appellant/Cross-Appellee

No. 1 CA-CV 23-0022

Appeal from the Superior Court in Mohave County

No. S8015CV202100708

The Honorable Lee Frank Jantzen, Judge

APPEAL DISMISSED IN PART;

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

COUNSEL

Law Offices of Frederick E. Kearns, Kingman

By Frederick E. Kearns

Counsel for Plaintiff/Appellee/Cross-Appellant

The Kozub Law Group, PLC, Scottsdale

By Richard W. Hundley

Counsel for Defendant/Appellant/Cross-Appellee

FILED 11-2-2023
FLEMING v. FRIPPS

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Jennifer B. Campbell and Judge Anni Hill Foster joined.

C A T T A N I, Judge:

¶1 Fripps Mohave Land, LLC (“Land”) appeals the superior 

court’s judgment against it on several contract claims brought by Theron I. 

Fleming. Fleming cross-appeals from the judgment against him on his 

claims for fraud. For reasons that follow, we dismiss the cross-appeal as it 

relates to any defendants other than Land. We reverse the judgment 

entered against Land, and affirm the superior court’s ruling rejecting 

Fleming’s fraud claims.

FACTS AND PROCEDURAL BACKGROUND

¶2 George Ripps is a home builder and land developer in 

Mohave County. He is the manager and a member of Fripps Mohave 

Construction, LLC (“Construction”), which builds homes; a manager and a 

member of Land, which owns land; and a manager of RIPPCO, LLC, which 

owns lots in a particular area.

¶3 Fleming loaned $40,000 to Ripps and Construction in 2016, 

then another $40,000 in 2018. The parties did not initially execute 

promissory notes, but Ripps provided Fleming a series of deeds of trust as 

security. None of the deeds of trust were notarized as required by law. And 

although the deeds of trust were signed by Ripps and listed Construction 

as trustor, they purported to encumber property owned by either Land (the 

first three deeds of trust) or RIPPCO (the fourth unreleased deed of trust).

¶4 Additionally, in 2018, Construction and Ripps executed a 

promissory note in favor of Fleming for approximately $9,300 for work 

performed by Fleming. Later, in 2019, at Fleming’s insistence, Ripps and 

Construction executed promissory notes (prepared by Fleming’s counsel 

and backdated to the dates of the loans) evidencing the two $40,000 loans.

¶5 When Ripps and Construction failed to pay on the loans, 

Fleming sued. Fleming’s operative complaint against Ripps (and his 

marital community), Construction, RIPPCO, and Land (collectively, 

“Defendants”) alleged ten unjust enrichment-type claims, three breach of 
FLEMING v. FRIPPS

Decision of the Court

3

contract claims (one for each promissory note), and three fraud claims

(premised on defects in the deeds of trust), each asserted against all 

Defendants. The Defendants moved for partial summary judgment,

requesting dismissal of (1) all unjust enrichment-type claims as to all 

Defendants, (2) all fraud claims as to all Defendants, and (3) all claims 

against Land and RIPPCO. At oral argument on the motion, Fleming 

agreed to dismiss the unjust enrichment-type claims in their entirety and to 

dismiss the contract claims as to Land and RIPPCO. The court ultimately

ruled consistently with Fleming’s concession, dismissing the unjust 

enrichment-type claims and limiting the contract claims to those against 

Ripps and Construction only (not against Land and RIPPCO, who were not 

parties to the contracts). The court denied summary judgment on the fraud 

claims. This ruling left only the contract claims on each note (against Ripps 

and Construction) and the fraud claims (against all Defendants) for trial.

¶6 Ripps, Fleming, and two other witnesses involved with 

Ripps’s business dealings testified at the bench trial that followed. 

Although the Defendants contested the fraud claims, they conceded that 

Fleming was entitled to judgment on the notes against Ripps and 

Construction.

¶7 The superior court found Ripps (and his marital community) 

and Construction liable on the debts evidenced by the three promissory 

notes—and the court also held Land liable on the notes. The court noted 

that Land was the owner of the three pieces of property that were “subject 

to the loans” when Construction issued the deeds of trust. Citing Ripps’s 

testimony that, because he owned both companies, his practice was to issue 

deeds of trust in Construction’s name even when Land owned the property 

to be encumbered, the court reasoned that Land should also be held 

responsible for repaying the loans given Ripps’s “unusual process.”

¶8 The court ruled against Fleming on his fraud claims. The 

court acknowledged substantial evidence that Ripps routinely issued 

unnotarized (and thus technically unenforceable) deeds of trust in the name 

of a company that did not own the land to be encumbered, which the court 

characterized as “strange and disconcerting.” But the court concluded that 

“[f]raud requires more than just doing things wrong, even knowingly” and 

specifically flagged the additional elements of “intent to deceive, . . . 

reliance on the deception and, ultimately, some loss or damages because of 

the deception.” After noting that Ripps did not attempt to use the flaws in 

the deeds of trust to avoid the debt when confronted by Fleming, the court 

found no fraud “based on the lack of loss of money.”
FLEMING v. FRIPPS

Decision of the Court

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¶9 The superior court also awarded Fleming attorney’s fees and 

costs against all Defendants found liable on the notes. After the court 

entered final judgment, Land appealed and Fleming cross-appealed.

DISCUSSION

I. Appellate Jurisdiction.

¶10 Preliminarily, Land asserts—and Fleming appears to agree—

that we have appellate jurisdiction over Fleming’s cross-appeal only as to 

Land, not any other Defendant. By statute, we have appellate jurisdiction 

over appeals taken from the superior court’s final judgment. A.R.S. § 12-

2101(A)(1). An appellant must file a notice of appeal “no later than 30 days”

after judgment is entered. ARCAP 9(a). An opposing party may file a 

notice of cross-appeal within the later of “20 days after appellant’s filing of 

a notice of appeal, or 30 days after entry of the judgment.” ARCAP 9(b). 

But a timely cross-appeal filed more than 30 days after judgment may only 

be directed against the appellant, not other parties that opted not to appeal. 

Maxwell v. Aetna Life Ins. Co., 128 Ariz. 350, 352–53 (App. 1981). We lack 

jurisdiction to consider untimely appeals. See ARCAP 9(a); Edwards v. 

Young, 107 Ariz. 283, 284 (1971); Focal Point, Inc. v. U-Haul Co. of Ariz., 155 

Ariz. 318, 319 n.1 (App. 1986) (untimely cross-appeal).

¶11 Here, Land (but no other Defendant) filed its notice of appeal 

27 days after the superior court entered final judgment. Fleming filed his 

notice of cross-appeal naming all Defendants (not just Land) 19 days after 

Land’s notice, but 46 days after judgment was entered. Land’s appeal was 

timely under ARCAP 9(a), and Fleming’s cross-appeal was timely as to 

Land under ARCAP 9(b). But because Fleming’s cross-appeal was filed 

more than 30 days after judgment, we only have jurisdiction over the crossappeal as it relates to Land and not as to the other Defendants. See Maxwell, 

128 Ariz. at 352–53. Although Fleming asserts that we should consider his 

cross-appeal as to all Defendants because all are necessary parties and all 

are represented by the same attorney (and thus received contemporaneous 

notice of his cross-appeal), he provides no legal authority authorizing our 

jurisdiction despite an untimely appeal.

¶12 Accordingly, we have jurisdiction over Land’s appeal and 

Fleming’s cross-appeal as to Land under A.R.S. § 12-2101(A)(1). We lack 

jurisdiction over Fleming’s cross-appeal as to the other Defendants and 

thus dismiss the cross-appeal to that extent.
FLEMING v. FRIPPS

Decision of the Court

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II. Land’s Appeal.

¶13 Land argues that, having dismissed the contract (and all other 

non-fraud) claims as against Land and having found no fraud, the superior 

court erred by holding Land liable on the promissory notes. On review 

after a bench trial, we defer to the superior court’s factual findings unless 

clearly erroneous and will affirm provided reasonable evidence supports 

the judgment. Spaulding v. Pouliot, 218 Ariz. 196, 199, ¶ 8 (App. 2008). We 

review de novo, however, any questions of law, including the court’s legal 

conclusions based on its findings of fact. Castro v. Ballesteros-Suarez, 222 

Ariz. 48, 52, ¶ 12 (App. 2009).

¶14 Before trial, and with Fleming’s agreement, the superior court 

granted Land summary judgment on Fleming’s contract claims for the debt 

evidenced by the promissory notes because Land was not a party to the 

notes, as well as on Fleming’s unjust enrichment-type claims. In its ruling

after trial, however, the court found Land “also responsible for the unpaid 

loans” because of Ripps’s “unusual process” of extending deeds of trust in 

Construction’s name but applicable to property owned by Land.

¶15 Land, however, is a separate entity. The court acknowledged 

as much before trial when granting Land summary judgment on the

contract claims as one of the “nonparties that are not parties to the 

Contract.” Although there are legal theories under which one party’s 

liability may be attributed to a third party, Fleming never pursued any such 

theory in superior court. As Land points out, Fleming never raised theories 

such as alter ego, corporate veil-piercing, or successor liability to extend 

liability beyond the parties to the notes. See generally Dietel v. Day, 16 Ariz. 

App. 206 (1972) (discussing alter ego and corporate veil-piercing); A.R. 

Teeters & Assocs., Inc. v. Eastman Kodak Co., 172 Ariz. 324, 329–30 (App. 1992) 

(discussing successor liability in Arizona).

¶16 Fleming—for the first time in his cross-reply brief—asserts 

that Land may be liable as an intended beneficiary of the contracts. But he 

waived any such argument by (1) abandoning any unjust enrichment-type 

claim premised on Land receiving the loan proceeds before trial, (2)

presenting no such evidence at trial, and (3) failing to raise the argument 

until his reply brief on appeal. See Englert v. Carondelet Health Network, 199 

Ariz. 21, 26, ¶ 13 (App. 2000); Dawson v. Withycombe, 216 Ariz. 84, 111, ¶ 91 

(App. 2007); see also ARCAP 13(c). And although Fleming urges that 

judgment against Land was proper because Construction is judgmentproof, he offers no legal basis for extending liability to a separate entity 

merely because a wrongdoer lacks sufficient assets to satisfy a judgment. 
FLEMING v. FRIPPS

Decision of the Court

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Ultimately, although Fleming has secured a judgment against Ripps, that 

judgment does not extend to other entities Ripps owns.

¶17 At trial, the only claims remaining against Land were for 

alleged fraud, and the superior court ruled against Fleming on those claims. 

Absent a viable legal basis to extend liability to Land, the superior court 

erred by holding Land responsible for repayment of Construction’s and 

Ripps’s debts evidenced by Construction’s and Ripps’s promissory notes. 

Accordingly, we reverse the judgment as against Land (necessarily 

including Land’s liability for the attorney’s fees award as well) and remand 

for entry of judgment consistent with this decision.

III. Fleming’s Cross-Appeal.

¶18 Fleming cross-appeals the superior court’s finding that he 

failed to prove fraud, asserting that the court erred in evaluating both the 

law and the facts. He further argues that the court erred in various 

discovery and evidentiary rulings and other matters. As described above, 

our review is limited to Fleming’s arguments as to Land only. See supra ¶¶ 

10–12.

A. Fraud as against Land.

¶19 In ruling on Fleming’s fraud claims after the bench trial, the 

superior court found Fleming had proven (and Ripps had acknowledged) 

Ripps’s “incorrect practices” in routinely issuing unnotarized deeds of trust 

in the name of a company that did not own the land to be encumbered. But 

the court found that proof of this wrongful conduct did not suffice to prove 

fraud absent “some intent to deceive, some reliance on the deception and, 

ultimately, some loss or damages because of the deception.” Noting that 

Ripps did not attempt to use the flawed deeds of trust to avoid the debt 

when pressed by Fleming, as well as Ripps’s testimony that he did not 

know the practices were wrong, the court found no fraud “based on the 

lack of loss of money.” In this context, we review de novo the court’s legal 

conclusions and any other questions of law. Castro, 222 Ariz. at 52, ¶ 12. 

We defer to the superior court’s factual findings provided substantial 

evidence supports them, even in the face of substantial conflicting evidence. 

Id. at 51–52, ¶ 11.

¶20 Fleming asserts the superior court “recognize[d] the fraud 

was there” but erroneously ruled against him based solely on “the lack of 

loss of money,” instead of considering loss of expected security as 

cognizable damages. As Fleming acknowledges, a fraud claim requires 

proof, by clear and convincing evidence, of nine elements:
FLEMING v. FRIPPS

Decision of the Court

7

(1) a representation; (2) its falsity; (3) its materiality; (4) the 

speaker’s knowledge of its falsity or ignorance of its truth; (5) 

the speaker’s intent that it be acted upon by the recipient in 

the manner reasonably contemplated; (6) the hearer’s 

ignorance of its falsity; (7) the hearer’s reliance on its truth; (8) 

the right to rely on it; (9) his consequent and proximate injury.

Echols v. Beauty Built Homes, 132 Ariz. 498, 500 (1982); see also Comerica Bank 

v. Mahmoodi, 224 Ariz. 289, 291–92, ¶ 14 (App. 2010). The “consequent and 

proximate injury” element requires proof of some pecuniary loss. Echols, 

132 Ariz. at 501; see also Aaron v. Fromkin, 196 Ariz. 224, 227, ¶ 13 (App. 

2000).

¶21 Although Fleming argues the superior court erred by 

requiring proof of monetary loss, damages are a required element of a fraud 

claim. Echols, 132 Ariz. at 501. Even if a detrimental change in position (like 

loss of a security interest) could, in principle, be the basis for the measure 

of damages, such harm must nevertheless be proven. And here, Fleming’s 

only claim for actual damages due to alleged fraud was the amount owed

under the notes, not some undefined measure of lost priority in collateral. 

Fleming’s counsel confirmed as much at trial when asked to describe the 

damages sought for fraud: “The damages are simple, because the damage 

is he didn’t pay what [Fleming] was owed.”

¶22 Moreover, the superior court’s ruling is not as narrow as 

Fleming posits. Although the court concluded that Fleming failed to prove 

damages, the court further noted that Fleming had not proved “some intent 

to deceive, some reliance on the deception.” The record supports this 

assessment. Ripps testified he thought his practice in issuing deeds of trust 

was viable, and, when Fleming questioned that practice, Ripps agreed to 

retroactively enter promissory notes evidencing the debts and offered to 

correct the defective deeds of trust. Although Fleming initially testified that 

he relied on Ripps’s experience with deeds of trust, he later admitted he did 

not rely on the contents of the notes (entered retroactively in 2019) when 

extending the loans in 2016 and 2018.

¶23 Furthermore, none of that evidence implicated Land

specifically (as opposed to Ripps, or Ripps acting on behalf of 

Construction), and only Fleming’s claims as to Land are properly before us. 

See supra ¶¶ 10–12. Fleming now asserts Ripps was acting in his capacity 

as manager of Land, see A.R.S. § 29-3301(B)(2)–(3), or that Land and Ripps 

were acting in concert, rendering Land liable for Ripps’s fraud. But Fleming 

did not timely appeal the judgment as to Ripps, so the court’s ruling that 
FLEMING v. FRIPPS

Decision of the Court

8

Ripps was not liable for fraud remains in effect. Fleming thus cannot rely 

on Ripps’s (non-existent) liability for fraud as a basis to hold Land liable. 

And although the parties did not dispute that Ripps was a manager of Land 

(as well as several other entities), Fleming did not present evidence that 

Ripps acted on behalf of Land—as opposed to on behalf of Construction, 

the actual signatory of the notes.

¶24 Fleming further argues that the court erred by declining to 

award him punitive damages. But punitive damages may be awarded only 

if a plaintiff proves fraud, including actual damages. Echols, 132 Ariz. at 

501; Edmond v. Fairfield Sunrise Vill., Inc., 132 Ariz. 142, 144 (App. 1982). 

Accordingly, because Fleming did not prove fraud, his claim for punitive 

damages likewise fails.

B. Other Arguments.

¶25 Fleming asserts several other claims of error that lie beyond 

the proper scope of the cross-appeal. First, Fleming urges that the superior 

court erred by denying his request for production—directed only to Ripps 

and Construction, not Land—seeking bank records to trace the loan funds. 

Because this argument does not implicate Land, it falls beyond our 

jurisdiction over the cross-appeal.

¶26 Second, Fleming contends the superior court erred by 

precluding several witnesses he proffered who had personal experience 

with Ripps’s practice (issuing unnotarized deeds of trust naming 

Construction but purporting to encumber properties owned by a different 

entity), testimony that he urges should have been admissible as other-act 

evidence. See Ariz. R. Evid. 404(b). But the court permitted Fleming to 

present testimony from two of these witnesses, and the court may 

permissibly preclude cumulative evidence. See Ariz. R. Evid. 403; see also

Lee v. Hodge, 180 Ariz. 97, 100 (1994) (incorporating Rule 403 balancing in 

Rule 404(b) analysis). In any event, the proffered testimony would have 

addressed Ripps’s business practices, but not any actions by or for Land. 

Accordingly, this argument, too, falls beyond the limited scope of Fleming’s 

cross-appeal.

¶27 Finally, in an apparent rejoinder to an argument pressed by 

Ripps and Construction before the superior court, Fleming asserts that 

Ripps cannot escape his fraudulent conduct by relying on A.R.S. § 33-411(c) 

(2019), which cures a deed of trust’s defective acknowledgement after it is 

recorded for one year. But again, this argument is directed to Ripps’s 

conduct and deeds of trust in Construction’s name. Because it does not 
FLEMING v. FRIPPS

Decision of the Court

9

implicate the claims as against Land, it falls outside the scope of the crossappeal.

IV. Attorney’s Fees.

¶28 Land requests attorney’s fees and costs on appeal pursuant to 

A.R.S. § 12-341.01. Fleming also requests attorney’s fees and costs on appeal 

under A.R.S. §§ 12-341 and -341.01.

¶29 We must award taxable costs to “[t]he successful party to a 

civil action” under A.R.S. § 12-341, and we have discretion to award 

attorney’s fees to the successful party in a contested matter arising out of 

contract. A.R.S. § 12-341.01. Because Land is the successful party on appeal, 

we award Land its costs upon compliance with ARCAP 21.

¶30 Fleming contends that Land is not entitled to attorney’s fees 

under § 12-341.01 because Land denied being a party to the contract at issue. 

Although we may not award fees whenever a case simply involves a 

contract, Dooley v. O’Brien, 226 Ariz. 149, 152, ¶ 11 (App. 2010), we “look to 

the fundamental nature of the action” to determine whether an action arises 

out of contract. Ramsey Air Meds, L.L.C. v. Cutter Aviation, Inc., 198 Ariz. 10,

15, ¶ 27 (App. 2000). And where a breached duty would not exist “but for”

the contract, then breach of express covenants or those implied from them 

sounds in contract. Barmat v. John and Jane Doe Partners A–D, 155 Ariz. 519, 

523 (1987).

¶31 Fleming cites no authority supporting his assertion that Land

should be precluded from recovering attorney’s fees under A.R.S. § 12-

341.01(A) because it denies being a party to the contracts—here, deeds of 

trust and promissory notes. More importantly, this case does not simply 

involve a contract. Rather, Fleming asserted that he entered into these 

contracts because he relied on defendants’ misrepresentations. Thus, 

Fleming’s fraud claims would not exist but for the deeds of trust. See 

McAlister v. Citibank, 171 Ariz. 207 (App. 1992) (holding that a case arose 

out of contract under § 12-341.01 where a party alleged fraud claims 

resulting from a breach of contract to loan money). Therefore, we award 

Land attorney’s fees under § 12-341.01(A).

¶32 Finally, Ripps (and his marital community), Construction, 

and RIPPCO seek to recover attorney’s fees and costs under A.R.S. §§ 12-

341 and -341.01 for Fleming’s attempt to include them in his cross-appeal. 

Because the cross-appeal as to these defendants was untimely, we also grant

their request for attorney’s fees and costs.
FLEMING v. FRIPPS

Decision of the Court

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CONCLUSION

¶33 We affirm the superior court’s finding of no fraud. We 

reverse, however, the superior court’s judgment against Land and remand 

for further proceedings consistent with this decision.