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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JUDSON C. BALL REVOCABLE TRUST, Plaintiff/Appellant Cross-Appellee,

v.

PHOENIX ORCHARD GROUP I LP, et al., Defendants/Appellees/CrossAppellants.

No. 1 CA-CV 19-0032

Appeal from the Superior Court in Maricopa County

No. CV2015-011768

CV2016-000284

 (Consolidated)

The Honorable Timothy J. Thomason, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix

By David L. Abney

Co-Counsel for Plaintiff/Appellant Cross-Appellee 

Thomas E. Littler, Tempe

By Thomas E. Littler

Co-Counsel for Plaintiff/Appellant Cross-Appellee

Freeman Law PLLC, Scottsdale

By Shelton L. Freeman, Elizabeth C. Heims

Counsel for Defendants/Appellees/Cross-Appellants

FILED 2-4-2020
J. BALL TRUST v. PHX ORCHARD, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Acting 

Presiding Judge David D. Weinzweig and Chief Judge Peter B. Swann 

joined.

G A S S, Judge:

¶1 The Judson C. Ball Revocable Trust (the Trust) appeals from 

the superior court’s grant of summary judgment for John P. Norton, the 

Estate of John R. Norton (Norton Sr.), and Roger Stevenson (collectively, 

appellees). Judson C. Ball (Ball) is sole trustee of the Trust. This case 

concerns investments the Trust made in a mandarin orange project. Because 

the Trust has shown no genuine issues of material fact, the superior court’s 

judgment is affirmed. 

FACTUAL AND PROCEDURAL HISTORY

¶2 Ball and Norton Sr. were friends for many years. They 

invested in several projects together and often met for lunch. In early June 

2006, they met for one such lunch. At the end of lunch, Norton Sr. told Ball 

about a mandarin orange project run by Phoenix Orchard Group I, L.P. and 

Phoenix Orchard Group II, L.P. (collectively, POG). They spoke about the 

project for twenty or thirty minutes. 

¶3 During their discussion, Norton Sr. showed Ball POG’s 

Executive Summary. Ball looked at the first few pages. Ball did not keep a 

copy for himself. Norton Sr. invited Ball to invest in POG. After this brief 

discussion, Ball invested approximately $400,000 in POG on behalf of the 

Trust. 

¶4 Nearly a decade later, in October 2015, the Trust sued POG 

and related parties, including appellees. This case has a long history, 

including two previous stops at this court. Along the way, the primary 

claims were resolved, and the Trust received full reimbursement of its 

investment, with interest and fees, and some of the Trust’s additional claims 

were dismissed. See Judson C. Ball Revocable Tr. v. Phoenix Orchard Grp. I, 

L.P., 1 CA-CV 16-0557, 2018 WL 283049 (Ariz. App. Jan. 4, 2018) (mem. 

decision); Judson C. Ball Revocable Tr. v. Phoenix Orchard Grp. I, L.P., 245 Ariz. 

519 (App. 2018), review denied (Apr. 30, 2019). 
J. BALL TRUST v. PHX ORCHARD, et al.

Decision of the Court

3

¶5 In this appeal, the Trust seeks to revive its remaining claims 

of fraud and negligent misrepresentation. In April 2018, appellees moved

for summary judgment on these claims. The superior court granted 

appellees’ motion. The superior court later denied the Trust’s request for 

reconsideration and appellees’ request for attorney fees. The superior court 

then entered final judgment dismissing the case. 

¶6 The Trust timely appealed. Appellees conditionally crossappealed the denial of fees.

1 This court has jurisdiction over the appeal and 

cross-appeal under Article 6, Section 9, of the Arizona Constitution, and 

A.R.S. §12-2101(A)(1).

ANALYSIS

¶7 Grants of summary judgment are reviewed de novo for both 

the superior court’s factual and legal determinations. Kiley v. Jennings, 

Strouss & Salmon, 187 Ariz. 136, 139 (App. 1996). This court reviews the facts 

and reasonable inferences in the light most favorable to the non-moving 

party. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). Summary judgment 

is appropriate only when “the facts produced in support of the [nonmovant’s] claim . . . have so little probative value, given the quantum of 

evidence required, that reasonable people could not agree with the 

conclusion advanced [by the non-movant].” Orme Sch. v. Reeves, 166 Ariz. 

301, 309 (1990).

¶8 The movant, therefore, may succeed on summary judgment 

by demonstrating a lack of evidence for an essential element of the claim. 

Aranki v. RKP Invs., Inc., 194 Ariz. 206, 209, ¶ 12 (App. 1999), as corrected

(May 3, 1999). Once this showing is made, the non-movant “bears the 

burden of producing sufficient evidence that an issue of fact does exist.” 

Doe v. Roe, 191 Ariz. 313, 323, ¶ 33 (1998). This burden requires the nonmovant to go beyond mere reliance on its pleadings. Nat’l Bank of Ariz. v. 

Thruston, 218 Ariz. 112, 119, ¶ 26 (App. 2008), as amended (Jan. 23, 2008). The 

non-movant “must call the court’s attention to evidence overlooked or 

ignored by the moving party or must explain why the motion should 

otherwise be denied.” Id.

¶9 Here, the Trust produced no admissible evidence on 

damages, a key element of both its remaining claims. Fraud and negligent 

misrepresentation are separate, but related, torts. Each require the plaintiff 

1 Based on this ruling, appellees have withdrawn their motion to dismiss 

and their cross-appeal. 
J. BALL TRUST v. PHX ORCHARD, et al.

Decision of the Court

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to show damage resulting from the defendant’s conduct. See Echols v. Beauty 

Built Homes, Inc., 132 Ariz. 498, 500 (1982) (fraud); KB Home Tucson, Inc. v. 

Charter Oak Fire Ins. Co., 236 Ariz. 326, 333 n.7 (App. 2014) (negligent 

misrepresentation). Admissible evidence must support the claimed 

damages. Pompeneo v. Verde Valley Guidance Clinic, 226 Ariz. 412, 415, ¶ 18 

(App. 2011). 

¶10 The Trust correctly says the previous recovery of its 

investment will not bar recovery of additional damages. Attorney fees and 

costs, however, cannot be used to establish the damage element of its 

claims. See City Ctr. Exec. Plaza, LLC v. Jantzen, 237 Ariz. 37, 41, ¶ 13 (App. 

2015). 

¶11 The Trust’s original rescission claim may have been within an 

exception to this general rule. See Desert Mountain Prop. Ltd. P’ship v. Liberty 

Mut. Fire Ins. Co., 225 Ariz. 194, 209, ¶ 61 (App. 2010). The Trust, however,

was previously reimbursed its attorney fees and costs associated with that 

claim. See Judson C. Ball Revocable Tr., 1 CA-CV 16-0557. Accordingly, this 

case gives no reason to depart from the general rule. 

¶12 The Trust further argues it is entitled to damages for 

accountant fees and lost opportunity costs resulting from appellees’ 

conduct. The Trust’s only evidentiary support for this claim are 

inadmissible, conclusory statements in an unverified disclosure and an 

unsigned spreadsheet. “It is well settled that conjecture or speculation 

cannot provide the basis for an award of damages.” Rancho Pescado, Inc. v. 

Nw. Mut. Life Ins. Co., 140 Ariz. 174, 186 (App. 1984).

¶13 Because the Trust has not met its burden to produce 

admissible evidence supporting its damage claims, a discussion of the 

remaining elements is unnecessary. Appellees are entitled to judgment as a 

matter of law. See Ariz. R. Civ. P. 56(a).

ATTORNEY FEES ON APPEAL

¶14 Appellees request attorney fees and costs incurred in this 

appeal pursuant to A.R.S. §§ 12-341.01(A) and 12-349. This Court exercises 

its discretion and declines to award attorney fees related to this appeal but 

awards appellees their costs upon compliance with ARCAP. See Berry v. 352 

E. Virginia, L.L.C., 228 Ariz. 9, 16, ¶ 35 (App. 2011) (“[I]n our discretion, we 

deny [the party’s] request for attorneys’ fees but award its costs.”).
J. BALL TRUST v. PHX ORCHARD, et al.

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CONCLUSION

¶15 The superior court’s evidentiary rulings and final judgment 

are affirmed for the reasons set forth above.