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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

SALLY P. VALENCIA, 

Plaintiff/Appellant, 

v.

BP CAPITAL VENTURES, LLC; CASEY and KATELYN BLOCK; 

BRETT KALINA; BLOCK ESTATES, LLC; 

RLI INSURANCE COMPANY, 

Defendants/Appellees. 

No. 1 CA-CV 14-0330 

 

Appeal from the Superior Court in Maricopa County 

No. CV2012-055263 

The Honorable Alfred M. Fenzel, Judge 

DISMISSED IN PART; AFFIRMED IN PART AND REVERSED IN 

PART 

COUNSEL 

Ivan & Kilmark, PLC, Glendale 

By Florin V. Ivan 

Counsel for Plaintiff/Appellant 
2 

Miranda Law Firm, Gilbert 

By Daniel L. Miranda 

Counsel for Defendant/Appellee BP Capital Ventures, LLC 

Schneider & Onofry, PC, Phoenix 

By Jonathan D. Schneider, Erin A. Hertzog 

Counsel for Defendants/Appellees Casey Block and Katelyn Block 

Fowler St. Clair, PLLC, Mesa 

By Andrew M. Fowler 

Counsel for Defendant/Appellee Brett J. Kalina 

Gust Rosenfeld, PLC, Phoenix 

By Timothy J. Watson 

Counsel for Defendant/Appellee Block Estates, LLC 

Keller & Hickey, PC, Tempe 

By Thomas F. Hickey 

Counsel for Defendant/Appellee RLI Insurance Company 

MEMORANDUM DECISION 

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

Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined. 

O R O Z C O, Judge: 

¶1 Sally P. Valencia appeals the trial court’s: (1) grant of 

summary judgment in favor of Casey Block, Brett Kalina, BP Capital 

Ventures, LLC (BP), and Block Estates, LLC (BE) (collectively Appellees); 

(2) grant of RLI Insurance Company’s (RLI) motion to dismiss without 

prejudice; (3) denial of Valencia’s motion for a new trial and to amend her 

complaint; (4) denial of Valencia’s motion to strike BP’s answer, and (5) 

award of taxable costs to Appellees. For the following reasons, we dismiss 

the appeal to the extent it purports to challenge the dismissal without 

prejudice; reverse the portion of the judgments awarding Block, as taxable 

costs, the expense of a “CD court transcript” and in all other respects affirm. 
VALENCIA v. BP CAPITAL et al. 

Decision of the Court 

3 

FACTS AND PROCEDURAL HISTORY 

¶2 BP purchased a house at 5327 E. Wallace Ave. (the Property) 

at a trustee’s sale following a bank foreclosure. At the time of the sale, 

Kalina was a member of BP and Valencia resided at the Property. Shortly 

thereafter, BP filed an eviction action in justice court. The justice court 

issued a Writ of Restitution and a constable removed Valencia from the 

Property. 

¶3 Pursuant to Arizona Revised Statute (A.R.S.) section 33-

1368.E, BP was required to hold Valencia’s personal property remaining at 

the Property for twenty-one days after serving her with the Writ of 

Restitution. Casey Block, BP’s owner and manager, called and left three 

voicemails for Valencia, advising her that more than twenty-one days had 

passed since her eviction but that she could retrieve her belongings from 

the Property on a date specified by Block. 

¶4 Valencia claimed she was not given sufficient time to retrieve 

her property and that Appellees removed “personal property, including 

jewelry, furniture, and other sentimental items” from the Property. 

Valencia subsequently filed suit in superior court, alleging breach of 

covenant of good faith and fair dealing, violation of the Arizona Consumer 

Fraud Act, violation of the Arizona Residential Landlord and Tenant Act, 

replevin, conversion, intentional infliction of emotional distress, unjust 

enrichment, and civil conspiracy. 

¶5 Valencia later filed an application for entry of default against 

BP, alleging BP failed to plead or otherwise defend in a timely fashion. BP 

filed an answer shortly thereafter. Valencia moved to strike the answer as 

untimely and the trial court denied the motion. 

¶6 The trial court granted summary judgment on behalf of BE, 

Block, BP, and Karina and granted RLI’s motion to dismiss without 

prejudice. It denied Valencia’s cross-motion for partial summary judgment 

as well as Valencia’s motions for reconsideration and for leave to file a first 

amended complaint. The trial court entered partial judgments reflecting 

these rulings and awarding BE, BP, Block and Kalina their taxable costs. 

¶7 Valencia moved for a new trial or in the alternative to amend 

the judgments to include the trial court’s specific findings of fact and 

conclusions of law upon which it relied in each judgment. The trial court 

denied both motions. Valencia timely appealed and we have jurisdiction 
VALENCIA v. BP CAPITAL et al. 

Decision of the Court 

4 

pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 

12-120.21.A.1. and -2101.A.1. (West 2015).1

DISCUSSION 

I. Summary Judgment 

¶8 Valencia argues the trial court erred by granting Appellee’s 

Motions for Summary Judgment. We review the grant of summary 

judgment de novo. Lewis v. Debord, 236 Ariz. 57, 59, ¶ 5 (App. 2014). “[W]e 

view the facts in the light most favorable to the party opposing the 

summary judgment.” Kaufmann v. M & S Unltd, L.L.C., 211 Ariz. 314, 315, 

¶ 2 (App. 2005). “We will affirm summary judgment only if there is no 

genuine issue as to any material fact and the party seeking judgment is 

entitled to judgment as a matter of law.” Williamson v. PVOrbit, Inc., 228 

Ariz. 69, 71, ¶ 11 (App. 2011). 

¶9 Valencia contends that the trial court did not provide a reason 

for its ruling in violation of Arizona Rule of Civil Procedure 56(a). 

However, the relevant portion of Rule 56(a) simply states, “The court should

state reason on the record the reasons for granting or denying the request.” 

(Emphasis added.). 

¶10 “If the statute is clear and unambiguous, we apply the plain 

meaning of the statute.” Stein v. Sonus USA, Inc., 214 Ariz. 200, 201, ¶ 3 

(App. 2007) (citation omitted). A plain reading of Rule 56(a) suggests that 

the trial court may or may not state the reason(s) for its rulings at its own 

discretion. See Purchase v. Mardian Constr. Co., Inc., 21 Ariz. App. 435, 438 

(App. 1974) (noting the word “’should’ [is] permissive and not 

mandatory”). 

¶11 Additionally, Valencia argues, “[G]enuine disputes existed to 

be resolved by a jury and other facts in [Valencia’s] favor were undisputed.” 

In her opening brief, Valencia notes that her cross motion for summary 

judgment and reply addresses these arguments and attempts to incorporate 

them by reference without further specifying what disputed facts exist 

therein. However, we have held that such an incorporation does not 

comport with Arizona Rule of Civil Appellate Procedure 13(a)(6). See Ortiz 

v. Rappeport, 169 Ariz. 449, 452 (App. 1991) (finding that appellant’s 

reference to arguments presented in a prior special action filed in the case 

 

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

material to this decision have since occurred. 
VALENCIA v. BP CAPITAL et al. 

Decision of the Court 

5 

without further development in the briefs did not comply with the rule). 

Thus, we do not address these arguments. 

¶12 Throughout her opening brief, which has a lengthy, detailed 

recitation about her view of the facts, Valencia sporadically references what 

a “jury could have concluded.” For example, she asserts that “a jury could 

have found that the trustee sale was improper and [Valencia] had a 

property interest in [the Property].” As support, Valencia claims 

Christopher R. Perry, who recorded “a notice of sale attempting to reforeclose” on the Property, could be impeached because he was involved in 

a car crash and was suspended from practicing law three days after filing 

an affidavit concerning the Property’s sale. However, Valencia does not 

cite to any documents in the record supporting her contention that a factual 

dispute exists concerning her interest in the Property, nor does she cite legal 

authority supporting her proposition. Thus, this argument is waived, and 

we do not address it. See Ritchie v. Krasner, 221 Ariz. 288, 305 ¶ 62 (App. 

2009).2 Because Valencia has not demonstrated genuine issues of material 

fact exist, we affirm the trial court’s summary judgment rulings. 

II. The Eviction Proceedings 

¶13 On appeal, Valencia sets forth various purported facts and 

arguments regarding the eviction proceedings leading up to the July 7, 2011 

eviction judgment. Valencia, however, abandoned her appeal from that 

judgment in 2011 and the time for her to appeal from that judgment had 

passed before Valencia filed this action. Moreover, the claims Valencia 

presses in this action all post-date that judgment. Valencia’s claims in this 

case turn on a purported agreement negotiated and reached “[a]t sometime 

after the Judgment,” Appellees’ purported breaches of their obligations in 

negotiating and performing under that purported agreement, and 

Appellees’ purported failure to return personal property and pets to 

Valencia after she was removed from the Property. Given Valencia’s claims 

in this case, she has not shown how her claimed “[f]acts concerning the 

 

2 We also do not address Valencia’s arguments that a jury could find 

that “Block had never intended to follow through on his promises to 

[Valencia];” “Block and Kalina decided to remove [Valencia] from her home 

despite having knowledge of her property rights in the home,” “BP [] failed 

to provide [Valencia] with notice and adequate access to retrieve her 

property,” “[BE] was [Block’s] alter ego. . .and that BP was Block and 

Kalina’s alter ego,” etc., for these same reasons. 
VALENCIA v. BP CAPITAL et al. 

Decision of the Court 

6 

eviction proceedings” precluded the superior court’s rulings challenged in 

this appeal. 

III. Motion to Amend Complaint 

¶14 Valencia next argues the trial court erred by denying her 

motion to amend. “We review a trial court’s denial of a motion to amend a 

complaint for an abuse of discretion.” Tumacacori Mission Land Dev., Ltd. v. 

Union Pac. R.R. Co., 231 Ariz. 517, 519, ¶ 4 (App 2013). When the trial court 

does not state the basis for its ruling, we will affirm if the denial was correct 

for any reason. Id.

¶15 Valencia filed her complaint in August 2012 and her motion 

to amend in August 2013, after the trial court granted Appellees’ Motions 

for Summary Judgment and Motion to Dismiss.3 “Delay alone is not 

usually cause to deny a request to amend.” Uyleman v. D.S. Rentco, 194 Ariz. 

300, 303, ¶ 11 (App. 1999). However, on this record, the trial court properly 

acted within its discretion. See Hall v. Romero, 141 Ariz. 120, 124 (App. 1984) 

(finding no abuse of discretion when trial court denied plaintiffs’ motion to 

amend after summary judgment had been entered against them).4

 

3 A dismissal without prejudice is not a final judgment and thus, the 

trial court’s grant of RLI’s motion to dismiss is not an appealable order. See 

McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, 74, ¶ 4 (App. 2009). 

Valencia does not argue the statute of limitations barred her from refiling 

her claims so that the trial court’s dismissal effectively “prevented final 

judgment from which an appeal might have been taken.” See id. (internal 

punctuation and citation omitted). Thus, we lack jurisdiction over this 

claim and we dismiss that portion of the appeal purporting to challenge 

that ruling. 

4 Valencia argues that she had claims pending against “the Fine 

Parties and TM3” after the trial court denied her motion for a new trial. The 

parties were included in Valencia’s proposed first amended complaint but 

were not listed in her original complaint. Because the Fine Parties and TM3 

were never properly joined as parties to the litigation, we need not address 

this issue. 

 
VALENCIA v. BP CAPITAL et al. 

Decision of the Court 

7 

IV. Motion for a New Trial 

¶16 Valencia also claims the trial court erred by denying her 

motion for a new trial. We review the denial of a motion for a new trial for 

an abuse of discretion. Desert Palm Surgical Grp. P.L.C. v. Petta, 236 Ariz. 

568, 582, ¶ 37 (App. 2015). “[T]he burden is upon the party seeking to 

overturn the ruling to show that the trial court abused its discretion.” Harris 

v. Murch, 18 Ariz. App. 466, 467 (App. 1972). 

¶17 Valencia argues a new trial was warranted because there were 

issues of material fact and the court did not provide “findings and legal 

reasoning” when it denied her motion. As previously noted, Valencia has 

not shown that the trial court erred in finding no genuine issues of material 

fact on this record. See supra ¶¶ 11-12. Moreover, Valencia has not 

demonstrated how the trial court’s decision to omit findings in its order 

denying the motion necessitates a new trial under Arizona Rule of Civil 

Procedure 59(a).5 Thus, we find no abuse of discretion and affirm the trial 

court’s ruling. 

V. Award of Costs 

¶18 We review the trial court’s award of costs for an abuse of 

discretion, and we will affirm the award if it has any reasonable basis. 

Maleki v. Desert Palms Prof’l Props., L.L.C., 222 Ariz. 327, 333-34, ¶ 32 (App. 

2009). However, we review issues of statutory interpretation de novo. 

Schwab Sales, Inc. v. GN Constr. Co., Inc., 196 Ariz. 33, 36, ¶ 9 (App. 1998). 

A. CD Transcripts 

¶19 Citing A.R.S. § 12-332.A, Valencia argues the trial court 

should not have granted “some or all costs” to Appellees. Specifically, 

Valencia disputes the trial court’s award of $20 to Block for a “CD court 

transcript.” We agree that a court transcript is not taxable cost in superior 

court under A.R.S. § 12-332. See Cyprus Bagdad Copper Corp. v. Ariz. Dep’t of 

Revenue, 188 Ariz. 345, 347 (App. 1997) (holding hearing transcripts were 

not taxable costs). Thus, we reverse the trial court’s award for this cost. 

 

5 Valencia again attempts to incorporate arguments made in motions 

or response before the trial court without further developing them in her 

opening brief. We do not address those arguments. See supra ¶ 11. 
VALENCIA v. BP CAPITAL et al. 

Decision of the Court 

8 

B. Deposition Costs 

¶20 Valencia also contends that the trial court abused its 

discretion by allowing “the entire [deposition] transcript costs [to] be taxed 

against [Valencia].” Moreover, Valencia argues Kalina and Block should 

not have been awarded these costs because they “were not the ones who 

took the depositions.” 

¶21 Under A.R.S. § 12-332.A.2, the “[c]ost of taking depositions” 

is a taxable cost. The Arizona Supreme Court has held that a party who did 

not conduct the deposition may collect such costs. See Young’s Mkt. Co. v. 

Laue, 60 Ariz. 512, 517 (1943) (holding defendant could recover costs for 

attorney’s travel expenses incurred attending a deposition conducted by 

plaintiff’s attorney). Thus, the trial court properly awarded Appellees the 

costs they incurred attending depositions. Moreover, Appellees may 

recover their costs incurred photocopying deposition transcripts. See 

Motzer v. Escalante, 228 Ariz. 295, 297, ¶ 11 (App. 2011). Thus, we affirm the 

trial court’s award. 

VI. Motion to Strike 

¶22 Valencia argues the trial court erred by denying her motion to 

strike BP’s answer. We review a ruling on a motion to strike for an abuse 

of discretion. Dowling v. Stapley, 221 Ariz. 251, 266, ¶ 45 (App. 2009). 

¶23 Citing Arizona Rules of Civil Procedure 12(a)(1)(A) and 6(b), 

Valencia contends that BP did not file a timely answer to her complaint and 

failed to show good cause or excusable neglect for doing so and thus, the 

trial court should have stricken BP’s answer. BP argues that it filed it 

answer in compliance with Rule 55, rendering the trial court’s ruling 

proper. Valencia filed her Motion/Application for Default on October 30, 

2012 and BP filed its answer on November 8, 2012. 

¶24 Under Rule 55(a)(4), “[a] default shall not become effective if 

the party claimed to be in default pleads or otherwise defends as provided 

by these Rules prior to the expiration of ten (10) days from the filing of the 

application for entry of default.” “Rule 55(a) . . . creates a ‘grace period’ of 

ten days. If the defaulting party answers within the period, the clerk’s entry 

of default never takes effect.” Corbet v. Superior Court In and For Cnty. of 

Maricopa, 165 Ariz. 245, 247 (App. 1990). Because BP filed its answer within 

ten days after Valencia filed her Motion/Application for Default, the trial 

court properly acted within its discretion. 
VALENCIA v. BP CAPITAL et al. 

Decision of the Court 

9 

VII. Due Process Rights 

¶25 Lastly, Valencia argues the trial court abused its discretion 

and violated her due process rights by its “refusal to state its reasons in key 

adverse rulings.” She contends that the trial court’s rulings were 

“conclusory” and left her “without relief.” 

¶26 As noted above, the trial court was not required to state 

reasoning for its rulings. Supra ¶¶ 9-10. Moreover, Arizona Rule of Civil 

Procedure 52(a) provides, “Findings of fact and conclusions of law are 

unnecessary on decisions of motions under Rule. . .56[.]” 

¶27 “Due process requires notice and an opportunity to be heard 

at a meaningful time and in a meaningful manner.” Huck v. Haralambie, 122 

Ariz. 63, 65 (1979). Valencia does not dispute that she had notice of 

Appellees’ motions and an opportunity to respond to them nor does she 

claim the trial court denied her an opportunity to be heard concerning the 

motions she presented. Thus, we find no due process violation. 

CONCLUSION 

¶28 For the foregoing reasons, we dismiss the appeal to the extent 

it purports to challenge the dismissal without prejudice; reverse that 

portion of the judgments awarding Block as taxable costs the expense of a 

“CD court transcript” and in all other respects affirm.