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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JACKSON WHITE PC, Plaintiff/Appellee, 

v.

TEOFILO B. DEQUINA, JR., et al., Defendants/Appellants. 

No. 1 CA-CV 17-0253 

Appeal from the Superior Court in Maricopa County

No. CV2016-005821 

The Honorable James T. Blomo, Retired

AFFIRMED

COUNSEL

Germaine Law Office, PLC, Phoenix

By Sanford J. Germaine

Counsel for Plaintiff/Appellee

Teofilo B. DeQuina, Jr., Scottsdale

Defendant/Appellant

Mark K. Jones, Julia K. Jones, Phoenix

Defendants/Appellants

FILED 5-17-2018
JACKSON v. DEQUINA, et al.

Decision of the Court

2 

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.

P E R K I N S, Judge:

¶1 Teofilo DeQuina, Mark Jones, and Julia Jones appeal the trial 

court’s grant of summary judgment in favor of Appellee Jackson White P.C. 

(“Jackson”) and denial of their motion for new trial and request for relief 

from judgment. For the following reasons, we affirm. 

FACTS AND PROCEDURAL BACKGROUND

¶2 In May 2015, Appellants DeQuina and the Joneses, among 

others, retained Jackson to represent Reclamation Sciences, LLC. 

Appellants agreed to be personally liable for payment under the contract 

(“Retainer Agreement”). Jackson notified Appellants in January 2016 that 

the partner handling their matters would be changing firms in February. In 

response, Appellants elected to follow the partner to his new firm and 

discontinue their relationship with Jackson. 

¶3 Thereafter, Jackson filed suit against Appellants, Reclamation 

Sciences, and several others involved with Reclamation Sciences for breach 

of contract to collect unpaid legal fees. DeQuina and the Joneses, appearing 

pro se, filed nearly identical answers alleging they did not owe Jackson any 

money. Jackson filed a motion for summary judgment in December 2016, 

accompanied by an affidavit, a copy of its disclosure statement, and copies 

of invoices. DeQuina filed a response, “opposition,” and disclosure 

statement, to which Jackson replied. The Joneses did not file a formal 

response to Jackson’s motion, but, after the time had run to respond, filed a 

disclosure statement substantially similar to DeQuina’s disclosure 

statement. 

¶4 The trial court granted Jackson’s motion for summary 

judgment, as there remained no genuine dispute of material fact precluding 

summary judgment. In so ruling, the court noted it had considered each of 

DeQuina’s filings. The court also noted the Joneses had failed to file a 

response and that no party had requested oral argument. 
JACKSON v. DEQUINA, et al.

Decision of the Court

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¶5 Appellants then filed two virtually identical sets of 

documents framed as responses to Jackson’s reply. The trial court deemed 

these filings to be motions for reconsideration, considered the filings in their 

entirety, and denied the motions. In March, the trial court entered judgment 

in favor of Jackson, amended the judgment to reflect the proper plaintiff, 

and denied Appellants’ requests for relief from judgment and motions for 

new trial. Appellants now appeal.

DISCUSSION

¶6 We review denial of a request for relief from judgment for 

abuse of discretion. State ex rel. Brnovich v. Culver, 240 Ariz. 18, 19–20, ¶ 4

(App. 2016). Similarly, we review the trial court’s decision on a motion for 

new trial for abuse of discretion. American Power Prods., Inc. v. CSK Auto, 

Inc., 239 Ariz. 151, 154, ¶ 10 (2016). However, we review a grant of summary 

judgment de novo and will affirm if the judgment is correct for any reason. 

S & S Paving & Const., Inc. v. Berkley Reg’l Ins. Co., 239 Ariz. 512, 514, ¶ 7 

(App. 2016). Summary judgment is appropriate if the moving party is 

entitled to judgment as a matter of law and there is no genuine dispute as 

to any material fact. Id. 

I. Grant of Summary Judgment

¶7 On appeal, Appellants argue the Retainer Agreement was 

subject to an oral modification and did not accurately reflect the personal 

obligations of each Appellant. In opposing summary judgment, Appellants 

argued that Jackson was not entitled to any payment because of the alleged 

changes to the Retainer Agreement. However, it is not clear whether the 

purported oral modification took place before or after the signing of the 

Retainer Agreement. Appellants argue the Retainer Agreement did not 

reflect the terms of the agreement the parties had reached before Jackson 

commenced the representation. Essentially, Appellants contend they 

entered into an oral agreement inconsistent with the written terms of the 

Retainer Agreement prior to signing. This argument is barred by the terms 

of the Retainer Agreement, which provides that it “supersedes all prior or 

contrary agreements . . . with respect to any matter which is the subject of 

this agreement.” Moreover, the Retainer Agreement invites the parties to 

list, in a provided blank space, any promise or representation that should 

become part of the Retainer Agreement before proceeding, and no such 

promises or representations were listed. 

¶8 Even assuming the alleged modification took place after the 

Retainer Agreement was signed, Appellants offer no evidence or argument 
JACKSON v. DEQUINA, et al.

Decision of the Court

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of subsequent consideration to support the alleged material change in 

payment terms. Generally, a written contract may be modified by 

subsequent oral agreement supported by consideration. Coronado Co., Inc. 

v. Jacome’s Dept. Store, Inc., 129 Ariz. 137, 139 (App. 1981). Absent 

consideration, a contract cannot be modified. See Demasse v. ITT Corp., 194 

Ariz. 500, 506, ¶ 18 (1999) (modification of a contract requires offer, 

acceptance, and consideration). Appellants failed to present facts sufficient 

to support modification of the contract, whether before or after signing the 

Retainer Agreement, and thus, failed to raise an issue of material fact 

barring summary judgment.

¶9 Moreover, Appellants failed to satisfy their burden under 

Rule 56 by failing to offer admissible evidence sufficient to create a genuine 

issue of fact concerning Jackson’s claim for breach. Rule 56 requires a party 

opposing summary judgment to file a response accompanied by a 

statement of facts specifying “the numbered paragraphs in the moving 

party’s statement that are disputed” and the facts that preclude summary 

judgment in favor of the movant. Ariz. R. Civ. P. 56(c)(3)(B). Moreover, 

these facts must be supported by admissible evidence, such as affidavits 

based on the personal knowledge of an affiant competent to testify to the 

matters stated. Ariz. R. Civ. P. 56(c)(4), (5). 

¶10 Here, Appellants failed to offer admissible evidence sufficient

to create a dispute of material fact in response to Jackson’s motion for 

summary judgment. Neither DeQuina nor the Joneses submitted affidavits 

or other evidence controverting the facts contained in Jackson’s affidavit. 

As a result, the facts submitted by Jackson are presumed to be true. Tilley v. 

Delci, 220 Ariz. 233, 237, ¶ 11 (App. 2009). Under these circumstances,

summary judgment in Jackson’s favor was mandatory. See Ariz. R. Civ. P. 

56(e) (when opposing party fails to set forth genuine issue for trial, 

“summary judgment, if appropriate, shall be entered against that party”). 

¶11 Appellants argue their failure to file affidavits or submit other 

admissible evidence is excusable, in part because of their decision to 

proceed in propria persona. Specifically, Appellants argue their failure to 

respond or submit evidence is excusable because: (1) they believed their 

answers were equivalent to sworn testimony and obviated the need for 

affidavits; (2) the appointment of an arbitrator gave Appellants the 

impression no response to Jackson’s motion for summary judgment was 

necessary; and (3) the trial court erred in assuming they did not expect oral 

argument. However, litigants proceeding in propria persona are presumed to 

be familiar with the relevant statutes and rules of procedure and are held 
JACKSON v. DEQUINA, et al.

Decision of the Court

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to the same standard as if they were represented by counsel. Smith v. Rabb, 

95 Ariz. 49, 53 (1963). 

¶12 Notwithstanding Appellants’ failure to abide by the rules of 

procedure, their argument that the appointment of an arbitrator created 

confusion about the necessity of a response fails. The initial notice 

appointing an arbitrator was filed December 30, 2016, approximately one 

week before DeQuina filed his response. The notice to the parties 

specifically states that motions for summary judgment that would dispose 

of the case are still within the trial court’s jurisdiction regardless of pending 

arbitration. To the extent Appellants argue their confusion arose from the 

subsequent notice of arbitration hearing, that notice was filed on February 

3, 2017, after Jackson’s reply and after the time for filing a response had 

lapsed. 

¶13 Furthermore, the trial court did not err in ruling without oral 

argument, as Rule 56 requires the trial court to set a hearing only on the 

request of any party. Ariz. R. Civ. P. 56(c)(1). Nothing in Rule 56 requires 

the trial court to assume, absent a request, that a party is seeking oral 

argument. As we generally do not consider arguments raised for the first 

time in a reply brief, we do not further consider Appellants’ arguments 

regarding the appointment of the arbitrator or their mistaken belief about 

the rules of procedure. Coombs v. Maricopa Cty. Special Health Care Dist., 241 

Ariz. 320, 322 (App. 2016). 

¶14 Finally, even if Appellants had timely submitted their 

affidavits, which were submitted after the trial court’s grant of summary 

judgment, these affidavits do not create a genuine issue of material fact. In 

their affidavits, Appellants allege that an in-person discussion took place 

prior to signing the Retainer Agreement and that discussion concluded in 

an oral arrangement regarding payment contrary to the terms of the 

Retainer Agreement. As discussed above, the Retainer Agreement 

specifically precludes and supersedes prior contrary agreements. 

Appellants further allege that any balances should have been transferred to 

their prior attorney’s new firm and that there are problems with Jackson’s 

accounting. Because the written Retainer Agreement contains no support 

for Appellants’ contentions, the affidavits do not establish a genuine 

dispute of material fact as to these allegations. Accordingly, the trial court 

properly granted summary judgment in favor of Jackson. 
JACKSON v. DEQUINA, et al.

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II. Denial of New Trial and Relief from Judgment

¶15 Appellants argue the trial court abused its discretion in failing 

to vacate the judgment or grant a new trial based on newly discovered 

evidence. Though the Appellants filed separate motions to vacate, their 

motions were almost identical and presented the same argument: that

Jackson and its former partner’s new firm were the same law firm “for the 

purposes of this case.” They thus claimed that thier ability to “produce facts 

relevant to this matter” was “impeded” by the alleged commonality 

between Jackson and Jackson’s former partner. Moreover, Appellants 

alleged this continued relationship meant that the attorney-client 

relationship between Jackson and Appellants never ended. Thus, according 

to Appellants, Jackson was ethically prohibited from filing suit against 

Appellants, as existing clients. 

¶16 Appellants moved for a new trial pursuant to Arizona Rule of 

Civil Procedure 59. Rule 59(a)(1) permits a court to grant a new trial on 

several grounds if the moving party’s rights were materially affected. Ariz. 

R. Civ. P. 59(a)(1). Appellants offered no explanation for why a new trial 

was warranted, except to the extent their motion was predicated on their 

arguments in support of their request for relief from judgment. At best, 

Appellants’ motions were based on Rule 59(a)(1)(D)—that they had 

discovered new material evidence that could not have been located and 

produced earlier. Ariz. R. Civ. P. 59(a)(1)(D). Appellants’ argument fails. 

¶17 Appellants provided no explanation of how the allegedly new 

evidence could not have been located and produced in opposition to 

Jackson’s motion for summary judgment. Moreover, Appellants could not 

explain how Jackson’s former partner was still a member of the firm. 

Importantly, nothing alleged in Appellants’ motions is material to Jackson’s 

underlying breach of contract claim. Accordingly, the trial court did not 

abuse its discretion in denying Appellants’ motions for new trial.

¶18 Appellants additionally requested relief from judgment 

pursuant to Rule 60(b), citing purported newly discovered evidence. 

However, Rule 60(b)(2) permits relief from judgment only on discovery of 

evidence that could not have been discovered in time to move for a new 

trial pursuant to Rule 59(b)(1). Ariz. R. Civ. P. 60(b)(2). Here, Appellants 

simultaneously sought relief under both rules on the same grounds. Thus, 

the trial court did not abuse its discretion in denying Appellants’ requests 

for relief from judgment pursuant to Rule 60(b)(2).
JACKSON v. DEQUINA, et al.

Decision of the Court

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CONCLUSION

¶19 For the foregoing reasons, we affirm the trial court’s grant of 

summary judgment in favor of Jackson and the court’s denial of Appellants’ 

motions for new trial and relief from judgment. Jackson requests its 

attorneys’ fees in defending this appeal pursuant to A.R.S. § 12-341.01, as 

this is a matter arising out of contract. In our discretion, we decline to award 

attorneys’ fees.