NOTICE: NOT FOR PUBLICATION. 

UNDER ARIZONA RULE OF THE SUPREME COURT 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

DOROTHY EMERMAN, a legally separated woman, 

Plaintiff/Appellant, 

v.

ARIZONA HOLDING SERVICES, LLC, dba ARIZONA TRAFFIC 

SERVICES, an Arizona limited liability corporation authorized to do 

business in the foreign corporation duly authorized to do business in the 

State of Arizona, Defendant/Appellee. 

No. 1 CA-CV 13-0328 

 

Appeal from the Superior Court in Maricopa County 

No. CV2011-008761 

The Honorable Dean M. Fink, Judge 

AFFIRMED 

COUNSEL 

Rubin & Samuels, Phoenix 

By Michael S. Samuels 

Counsel for Plaintiff/Appellant 

Riviere Law Group PLLC, Phoenix 

By Roger W. Riviere 

Counsel for Defendant/Appellee
EMERMAN v. AZ HOLDING 

Decision of the Court 

2 

MEMORANDUM DECISION 

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

which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined. 

O R O Z C O, Judge: 

¶1 Dorothy Emerman (Emerman) appeals the trial court’s 

orders granting summary judgment in favor of Appellee Arizona Holding 

Services, LLC (AZ Holding), a funeral procession escort business; denying 

Emerman’s motions for relief from a judgment or order pursuant to Rule 

60(c) of the Arizona Rules of Civil Procedure; and denying Emerman’s 

motion for a new trial pursuant to Rule 59(a). Because we find the trial 

court did not err in finding that Emerman failed to sufficiently identify the 

motorcycle rider she alleged caused her harm as an AZ Holding employee 

or agent at the time of summary judgment, we affirm the trial court’s 

orders. 

FACTS AND PROCEDURAL HISTORY 

¶2 Emerman was driving westbound with a passenger, 

approaching a green light in Phoenix, Arizona. As Emerman neared the 

intersection, a motorcycle, traveling several blocks ahead of a funeral 

procession involving hundreds of motorcycles and other vehicles, entered 

the same intersection heading northbound. As a result, Emerman quickly 

stopped to avoid colliding with the motorcycle. Emerman’s vehicle came 

to a complete stop before it entered the intersection or even crossed the 

first line of the crosswalk. However, the vehicle following Emerman, 

driven by Clive Byfield (the second car or Byfield), rear-ended Emerman’s 

vehicle, allegedly causing bodily injuries to Emerman. 

¶3 Emerman filed suit against AZ Holding. Emerman alleged 

that AZ Holding employed the rider of the motorcycle (the motorcycle 

rider) and therefore was vicariously liable under a theory of respondeat 

superior. Emerman also alleged the AZ Holding riders ran a red light 

without need or justification, which caused her property damage and 
EMERMAN v. AZ HOLDING 

Decision of the Court 

3 

injuries.1 AZ Holding avowed that on the date in question, it did not own 

any motorcycles, did not employ any motorcycle riders or escorts and did 

not know the identity of the motorcycle rider alleged to be responsible for 

Emerman’s accident. Accordingly, AZ Holding affirmatively denied any 

involvement or fault in the car accident between Emerman and Byfield. 

AZ Holding filed a motion for summary judgment, arguing there was no 

genuine issue of material fact and that the trial court should grant 

judgment as a matter of law. Emerman filed a response, and AZ Holding 

filed their reply. 

¶4 Over a month after filing her response, Emerman filed 

additional exhibits, which the trial court treated as a “sur-reply.” The surreply included photographs of the funeral procession that Emerman 

found online through her own investigation, which depicted a motorcycle 

rider, wearing what looked like an AZ Holding’s uniform in front of the 

church where the funeral took place. These pictures were posted online 

on the day of the funeral. The trial court noted at oral argument, and in its 

minute entry, that this filing was unusual, and it would not consider the 

sur-reply’s exhibits when ruling on AZ Holding’s summary judgment 

motion. 

¶5 The trial court granted summary judgment in favor of AZ 

Holding, first noting Emerman argued an incorrect burden of proof 

because it is “always incumbent upon the plaintiff to prove the 

defendant’s fault.” The trial court also ruled that Emerman’s affidavit, 

which identified Rodney Baker (Baker), owner of AZ Holding, as the 

motorcycle rider, was insufficient to establish a genuine issue of material 

fact. The trial court treated the affidavit as a “sham affidavit” pursuant to 

Allstate Indemnity Co. v. Ridgley, because Emerman could not identify the 

motorcycle rider with any confidence at her deposition, but unequivocally 

stated in her summary judgment affidavit that Baker was the motorcycle 

rider. See 214 Ariz. 440, 444, ¶ 16, 153 P.3d 1069, 1073 (App. 2007) (holding 

that “when a party’s affidavit is submitted to defeat summary judgment 

and contradicts the party’s own deposition testimony, it should be 

disregarded in deciding the motion.”). 

¶6 In addition to finding that Emerman failed to meet her 

burden of proving the motorcycle rider was an AZ Holding employee at 

 

1 Emerman and her passenger settled their claims against Byfield. 

Emerman also received underinsured motorist benefits from her 

insurance carrier. 
EMERMAN v. AZ HOLDING 

Decision of the Court 

4 

the time of her injury, the trial court granted summary judgment on the 

separate ground that AZ Holding did not owe Emerman a duty pursuant 

to Arizona Revised Statutes (A.R.S.) section 28-776 (2012).2 The trial court 

held that even if employed by AZ Holding, the motorcycle rider’s actions 

would not create liability because the motorcycle rider was acting within 

his statutory rights. Therefore, in the absence of an established duty, 

Emerman had failed to state a legally cognizable negligence claim against 

AZ Holding. 

¶7 Thereafter, Emerman filed her first motion for Rule 60(c) 

relief, which the trial court denied, finding the motion did not meet the 

standard entitling her to relief under Rule 60(c), and because the 

photographs Emerman wanted to add as evidence were not “newly 

discovered” evidence since they were available prior to Emerman filing 

her response to the motion for summary judgment. 

¶8 Emerman then filed a Rule 59(a) motion for a new trial. She 

first argued that “[t]he Court based its ruling on the premise that there 

was no evidence ‘that Defendant believed its representations to be false.’” 

Emerman continued to argue, “Rule 60(c) contains no such requirement 

that the Defendant believed his representation to be false.” She also 

argued that “reasonable inferences are to be viewed in [the] light most 

favorable to the non-moving party.” The trial court denied the motion 

and clarified its ruling regarding the Rule 60(c) motion. It held Emerman 

was not entitled to a new trial because there was no basis for fraud. Also, 

the “newly discovered evidence” or photographs could have been found 

with “reasonable diligence.” 

¶9 Emerman filed a second motion for Rule 60(c) relief, which 

the trial court also denied. Emerman timely appealed the trial court’s 

grant of summary judgment, denial of Emerman’s Rule 60(c) motions, and 

denial of Emerman’s Rule 59(a) motion. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 12-120.21.A.1 

(2003), and -2101.A.1 (Supp. 2013). 

 

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

material revisions have since occurred. 
EMERMAN v. AZ HOLDING 

Decision of the Court 

5 

DISCUSSION 

I. AZ Holding’s Motion for Summary Judgment 

¶10 A motion for summary judgment “should be granted if the 

facts produced in support of the claim or defense have so little probative 

value, given the quantum of evidence required, that reasonable people 

could not agree with the conclusion advanced by the proponent of the 

claim or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 

1008 (1990). We review the trial court’s grant of summary judgment based 

upon the record made in the trial court, but we determine de novo 

whether the judgment was proper. Schwab v. Ames Constr., 207 Ariz. 56, 

60, ¶ 17, 83 P.3d 56, 60 (App. 2004). In our review, we determine if the 

trial court applied the law properly and if, viewing the facts in the light 

most favorable to the non-moving party, there remains any genuine issue 

of material fact. Id.; Nicoletti v. Westcor, 131 Ariz. 140, 142, 693 P.2d 330, 

332 (1982). When uncontroverted, the trial court may accept the facts 

alleged in an affidavit attached to summary judgment motions as true. 

Ancell v. Union Station Assoc., Inc., 166 Ariz. 457, 458, 803 P.2d 450, 451 

(App. 1990). Nonetheless, an affidavit may be insufficient to withstand a 

summary judgment motion, even if the affidavit creates the “slightest 

doubt” that a material fact may be disputed, when the affidavit tends to 

contradict the affiant’s sworn deposition testimony. Orme Sch., 166 Ariz. 

at 309, 802 P.2d at 1008. 

¶11 To survive summary judgment, the non-moving party must 

show that a genuine issue of material fact is in dispute on the record 

before the court. See Ariz. R. Civ. P. 56(c); see also Tilley v. Delci, 220 Ariz. 

233, 236-37, ¶ 10, 204 P.3d 1082, 1085-86 (App. 2009) (granting summary 

judgment when the non-moving party “submitted no competent evidence 

to create a genuine issue of material fact.”). A genuine issue of material 

fact exists when the trial court finds on examination of the entire record, 

the parties dispute a fact, which if true, could affect the final judgment. 

See Elson Dev. Co. v. Ariz. Sav. & Loan Ass’n, 99 Ariz. 217, 220, 407 P.2d 930, 

932 (1965). However, the “sham affidavit” rule holds that “when a party’s 

affidavit is submitted to defeat summary judgment and contradicts the 

party’s own deposition testimony, it should be disregarded in deciding 

the motion.” Allstate Indem. Co., 214 Ariz. at 442, ¶ 9, 153 P.3d at 1071. We 

apply the “sham affidavit” rule to prevent parties from thwarting the 

purpose of Rule 56 by creating issues of fact through affidavits that 

contradict their own depositions. Id.
EMERMAN v. AZ HOLDING 

Decision of the Court 

6 

¶12 In this case, the only material fact at issue was whether the 

motorcycle rider was an AZ Holding employee because AZ Holding 

could not be held vicariously liable for the actions of a person not 

employed by it. Compare Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title, 

197 Ariz. 535, 540, 5 P.3d 249, 254 (App. 2000) (“An employer is 

vicariously liable for the negligent or tortious acts of its employee acting 

within the scope and course of employment.”), with Ft. Lowell-NSS Ltd. 

P’ship v. Kelly, 166 Ariz. 96, 101, 800 P.2d 962, 967 (1990) (holding that the 

general rule is that an employer is not vicariously liable for an 

independent contractor’s negligence unless the employer has been 

independently negligent). Emerman asserts a genuine issue of material 

fact existed because she presented evidence through her affidavit and 

through the exhibits contained in her sur-reply proving the motorcycle 

rider was, in fact, associated with AZ Holding. 

¶13 Nonetheless, the plaintiff bears the burden of showing 

available, competent evidence that would justify a trial once the defendant 

establishes it is entitled to summary judgment. Ulibarri v. Gerstenberger, 

178 Ariz. 151, 156, 871 P.2d 698, 703 (App. 1993). The plaintiff cannot 

solely rely “on unsupported contentions that a dispute exists to create a 

factual issue that would defeat summary judgment.” State v. Mecham, 173 

Ariz. 474, 478, 844 P.2d 641, 645 (App. 1992). The trial court, when ruling 

on a motion for summary judgment, will not view unsworn or unproven 

assertions by the non-moving party as “facts” that justify denial of a 

motion for summary judgment. Id.

¶14 Here, the trial court declined to consider the exhibits 

submitted in the sur-reply. Arizona Rule of Civil Procedure 56(c) permits 

the parties to submit a motion for summary judgment, a response, and a 

reply, but there is no provision for a sur-reply. Therefore, we find the 

trial court did not abuse its discretion in declining to consider documents 

beyond those provided for within the Rule. 

¶15 Next we consider Emerman’s affidavit regarding the identity 

of the motorcycle rider. In her deposition, Emerman was uncertain as to 

the description of the motorcycle rider and the motorcycle, but her 

affidavit -- filed when facing a dispositive motion -- affirmatively 

identified Baker as the motorcycle rider. In an impermissible effort to 

create a genuine issue of material fact, the affidavit contradicted 

Emerman’s prior, sworn, deposition testimony. As previously noted, the 

trial court was not required to consider the affidavit, and did not abuse its 

discretion in declining to do so. See Mecham, 173 Ariz. at 478, 844 P.2d at 
EMERMAN v. AZ HOLDING 

Decision of the Court 

7 

645 (a trial court need not consider unproven assertions as a “fact,” which 

would justify the denial of the motion for summary judgment). 

¶16 On this record, there was no competent evidence that the 

motorcycle rider was an AZ Holding employee. Because we decide that 

there are no contested issues of fact, we need not decide whether AZ 

Holding owed a duty of care to Emerman pursuant to A.R.S. § 28-776.B. 

II. Emerman’s Motions for Relief from Judgment 

¶17 Arizona Rule of Civil Procedure 60(c) permits the trial court 

to relieve a party from a judgment based upon several enumerated 

reasons, including: (1) “mistake, inadvertence, surprise, or excusable 

neglect”; (2) “newly discovered evidence which by due diligence could 

not have been discovered in time to move for a new trial under Rule 

59(d)”; or (3) “fraud . . . , misrepresentation or other misconduct of an 

adverse party”; among various other reasons, not applicable here. We 

review the trial court’s denial of such motions for abuse of discretion. 

Ezell v. Quon, 224 Ariz. 532, 536, ¶ 15, 233 P.3d 645, 649 (App. 2010). As a 

matter of public policy, a judgment must become final at some point; 

otherwise there would never be any certainty as to the rights acquired 

under the court’s judgments. Panzino v. City of Phx., 196 Ariz. 442, 448, ¶ 

19, 999 P.2d 198, 204 (2000). 

¶18 Emerman argues on appeal that the trial court erred in 

denying both of her Rule 60 motions. We disagree. 

A. Newly Discovered Evidence 

¶19 Emerman first argues she should be afforded relief because 

the trial court did not consider “newly discovered” photographs – not 

disclosed in discovery -- when deciding AZ Holding’s motion for 

summary judgment. These photographs, taken from various websites 

including Shutterfly and Facebook, depicted a motorcycle rider wearing 

what appears to be an AZ Holding’s uniform. However, evidence “that 

could have been discovered with reasonable diligence” before the time the 

plaintiff could file a motion for a new trial is not “newly discovered” as 

defined by Rule 60. See Ariz. R. Civ. P. 60(c)(2); see also Catalina Foothills 

Ass’n, Inc. v. White, 132 Ariz. 427, 429, 646 P.2d 312, 314 (App. 1982). 

¶20 Here, the evidence at issue was readily available with the 

exercise of due diligence, and Emerman had some of the photographs at 

least four months prior to her deadline for filing her response to the 

motion for summary judgment. Accordingly, we find no abuse of 
EMERMAN v. AZ HOLDING 

Decision of the Court 

8 

discretion in the trial court’s refusal to grant relief on the basis of newly 

discovered evidence. 

B. Fraud 

¶21 Emerman also argued in her first motion for relief that the 

trial court should grant relief because AZ Holding committed fraud upon 

the court in two ways. First, by “representing to [Emerman and the trial 

court] that the motorcycle rider was not with [AZ Holding’s] funeral 

procession escort company.” Emerman asserted the photographs of a 

motorcycle rider with an AZ Holding uniform demonstrated AZ 

Holding’s fraud and that this fraud justified relief. Second, Emerman 

asserted that AZ Holding committed fraud by arguing an “incorrect” 

standard of care required of funeral escort vehicles. The trial court 

disagreed, as do we. 

¶22 To justify Rule 60(c)(3) relief for fraud, the party seeking 

relief bears the onerous burden of presenting clear and convincing 

evidence proving the fraudulent activity perpetrated on the court. See 

Lake v. Bonham, 148 Ariz. 599, 601, 716 P.2d 56, 58 (App. 1986). The cases 

justifying reversal contain only “the most egregious conduct involving a 

corruption of the judicial process itself.” Id. A party that sincerely 

believes its testimony to the court when given, or given not for the 

purpose of deceiving the court, does not rise to this level of egregiousness. 

See id.

¶23 Emerman did not present any evidence demonstrating AZ 

Holding believed its representations to the court were false regarding AZ 

Holding’s relationship to the motorcycle rider. Nor did Emerman present 

any evidence AZ Holding committed fraud in its arguments regarding the 

standard of care required of funeral escort vehicles. Therefore, the trial 

court did not abuse its discretion in holding that this purported “fraud” 

did not rise to the level of egregiousness that justifies Rule 60(c)(3) relief. 

C. Misrepresentation 

¶24 In her second motion for Rule 60 relief, Emerman argued she 

should be afforded relief due to AZ Holding’s misrepresentation that it 

did not employ the motorcycle rider on the day of the accident, as 

indicated by her later-filed photographs. Emerman also attempted to 

admit evidence from the Maricopa County Sheriff’s Office indicating AZ 

Holding had registered a motorcycle as a funeral escort vehicle in 2009. 

The trial court again denied Emerman’s request for relief because it was 

not persuaded by her arguments and deemed it inappropriate for 
EMERMAN v. AZ HOLDING 

Decision of the Court 

9 

Emerman to submit two motions for Rule 60 relief, when the language of 

Rule 60(c) is singular, implying only one motion may be filed under this 

Rule. 

¶25 When reviewing a trial court’s order for abuse of discretion, 

“we will affirm the trial court’s decision if it is correct for any reason.” See 

Delbridge v. Salt River Project Agric. Improvement and Power Dist., 182 Ariz. 

46, 54, 893 P.2d 46, 54 (App. 1994). Although Emerman presented new 

evidence to support her claim of misrepresentation, that evidence was 

available to her at the time of AZ Holding filed its Motion for Summary 

Judgment. That being the case, the trial court did not abuse its discretion 

by declining to consider this new evidence introduced to support 

Emerman’s claims. As discussed above, a judgment must become final at 

some point. See Panzino, 196 Ariz. at 448, ¶ 19, 999 P.2d at 204. We must 

respect this finality. Rule 60 relief is not a tool to allow an unsuccessful 

plaintiff to further develop the record after summary judgment is granted. 

Rather, the “purpose of the rule is to provide relief for those mistakes and 

errors which inevitably occur despite diligent efforts to comply with the 

rules.” See City of Phx. v. Geyler, 144 Ariz. 323, 332, 697 P.2d 1073, 1082 

(1985). The trial court, therefore, did not abuse its discretion in denying 

Emerman’s motions for Rule 60 relief, and we affirm the trial court’s 

orders. 

III. Motion for New Trial 

¶26 We will not overturn the trial court’s decision to deny a 

motion for a new trial absent a clear abuse of discretion. Suciu v. AMFAC 

Distrib. Corp., 138 Ariz. 514, 520, 675 P.2d 1333, 1339 (App. 1983). 

¶27 Emerman moved for a new trial, pursuant to Rule 59(a), 

asserting the trial court used the wrong standard in evaluating her first 

Rule 60(c)(3) motion and the trial court used the incorrect standard in 

granting summary judgment. Having already affirmed the trial court’s 

grant of summary judgment as proper, and affirmed the trial court’s 

denial of Rule 60(c) relief, we hold that the trial court was also acting 

within its discretion by denying Emerman’s motion for new trial. 

Therefore, we affirm this order. 

IV. Request for Attorney Fees 

¶28 AZ Holding requests its attorney fees and costs associated 

with this appeal. In our discretion, we decline to award attorney fees. 

However, as the prevailing party, we award the costs of this appeal to AZ 

Holding upon compliance with ARCAP 21. 
EMERMAN v. AZ HOLDING 

Decision of the Court 

10 

CONCLUSION 

¶29 For the reasons discussed above, we affirm the trial court’s 

orders granting AZ Holding’s motion for summary judgment and 

denying Emerman’s motions for relief under Rules 59(a) and 60(c).