THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

DOWNIE, Judge.

¶ 1 Cactus Park Estates Homeowners' Association ("Cactus Park") appeals the superior court's dismissal of its complaint and the denial of its motion for new trial. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 Cactus Park filed a lawsuit against Ron and Jeanette Chacon on November 30, 2010, seeking injunctive relief and alleging a breach of contract. Cactus Park claimed the Chacons violated the Covenants, Conditions, and Restrictions ("CC&Rs") governing their property by extending an exterior wall and constructing "other improvements" without approval. Cactus Park requested an order to show cause ("OSC") hearing regarding its permanent injunction request and asked "that trial on the merits be heard at the same time as the permanent injunction."

¶ 3 By order filed December 8, 2010, the superior court set an OSC hearing for December 14, 2010. On December 9, Cactus Park served the Chacons with the summons, complaint, certificate of arbitration, and OSC. The Chacons appeared at the scheduled hearing, but Cactus Park did not. The court's judicial assistant contacted Cactus Park's counsel, who apparently made an off-the-record request for a continuance that was denied. Counsel thereafter participated telephonically in the hearing, stating he was "ready to proceed."

¶ 4 Without objection, the court admitted into evidence the Chacons' project request and approval letter from the Cactus Park Architectural Approval Committee. Mr. Chacon was the only witness. He testified he completed the approved wall before receiving Cactus Park's letter revoking its approval.

¶ 5 The court denied Cactus Park's request for injunctive relief and dismissed its complaint. The court ruled the Chacons received approval from Cactus Park and completed the improvements before the approval was revoked. After the court denied its motion for new trial, Cactus Park timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S") sections 12-2101(A)(1) and (A)(5)(a).

DISCUSSION

I. Motion for New Trial

¶ 6 We will not reverse the denial of a motion for new trial absent a clear abuse of discretion. See State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984) (citation omitted); Styles v. Ceranski, 185 Ariz. 448, 450, 916 P.2d 1164, 1166 (App. 1996). We find no abuse of discretion here.

A. Alleged Irregularity in Proceedings

¶ 7 Cactus Park argues the superior court: (1) should have continued the hearing; (2) "may not have considered" all evidence before rendering a decision; and (3) did not allow cross-examination of Mr. Chacon. We address each contention in turn.

¶ 8 We review the denial of a continuance request for an abuse of discretion. Ornelas v. Fry, 151 Ariz. 324, 329, 727 P.2d 819, 824 (App. 1986). "An `abuse of discretion' is discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40, 658 P.2d 835, 840 (App. 1983) (citation omitted).

¶ 9 Although the transcript does not include it, the record reflects that Cactus Park's counsel made an off-the-record request for a continuance after being contacted by the court's judicial assistant. In denying that request, the court stated Cactus Park had offered "no good reason" for failing to appear.

¶ 10 Nothing in the record suggests Cactus Park offered any reason on December 14 for its failure to appear. As such, the court acted well within its discretion in denying the requested continuance. Nor did the court err by denying Cactus Park's motion for new trial based on the continuance issue. See King v. Superior Court (Noyes), 138 Ariz. 147, 151, 673 P.2d 787, 791 (1983) (under Rule 59(a), a party's "allegations of his own counsel's neglect, inadvertence, or mistake do not justify the granting of a new trial in civil cases") (citations omitted).

¶ 11 Cactus Park's next contention — that the court "may not have considered all of the evidence" — is wholly speculative. The court referenced the complaint and the hearing exhibits before rendering its decision. During the hearing, Cactus Park did not bring any specific documents to the court's attention and introduced no evidence.

¶ 12 Cactus Park next claims entitlement to a new trial because it was unable to cross-examine Mr. Chacon. However, we will not consider "any alleged error regarding the cross-examination of a witness as a ground for granting a new trial" unless an objection is raised in the superior court. Helena Chem. Co. v. Coury Bros. Ranches, Inc., 126 Ariz. 448, 451, 616 P.2d 908, 911 (App. 1980); see also Medina v. Ariz. Dep't of Transp., 185 Ariz. 414, 418, 916 P.2d 1130, 1134 (App. 1995) ("[P]rocedural defects are waived if not raised and preserved in the trial court."). Cactus Park never asked to cross-examine Mr. Chacon. When the court asked at the end of the hearing if the parties had "[a]nything further," counsel for Cactus Park responded, "No," and voiced no objection to the manner in which the hearing was conducted, including any purported limitation on his cross-examination of Mr. Chacon. "Any irregularity in procedure may be waived if a party expressly or implicitly consents to it, as by acquiescing or failing to object to the procedure."1 Valley Nat'l Bank of Ariz. v. Meneghin, 130 Ariz. 119, 122, 634 P.2d 570, 573 (1981) (citations omitted).

B. Alleged Insufficiency of Evidence

¶ 13 Cactus Park also contends for the first time on appeal that insufficient evidence supported the superior court's decision. Its motion for new trial made no argument regarding insufficiency of the evidence. As such, this argument has been waived for purposes of appeal. See Sun Lodge, Inc. v. Ramada Dev. Co., 124 Ariz. 540, 543, 606 P.2d 30, 33 (App. 1979) (citation omitted). A motion must "state with particularity" the relief it seeks and cite specific portions of the record in support of its claim. See Ariz. R. Civ. P. 7.1(a), 59(c); see also Winters v. Ariz. Bd. of Educ., 207 Ariz. 173, 177, ¶ 13, 83 P.3d 1114, 1118 (App. 2004) (a challenge not raised with specificity and addressed in the trial court will not generally be considered on appeal) (citations omitted).

II. Dismissal of Breach of Contract Claim

¶ 14 Finally, Cactus Park argues it was denied due process because the court consolidated the OSC hearing with the trial on the merits. Once again, though, Cactus Park failed to raise this issue below, even in its motion for new trial. It has thus waived this claim. See Sun Lodge, 124 Ariz. at 543, 606 P.2d at 33; Richter v. Dairy Queen of S. Ariz., Inc., 131 Ariz. 595, 596, 643 P.2d 508, 509 (App. 1982) (appellate court cannot consider issues and theories not presented to the superior court) (citation omitted).2

III. Attorneys' Fees

¶ 15 The Chacons request attorneys' fees and costs pursuant to A.R.S. §§ 12-341 and -341.01. We will consider an application for attorneys' fees from the Chacons that establishes their entitlement to a fee award. Such an application may be filed within the time set by ARCAP 21.

CONCLUSION

¶ 16 The judgment of the superior court is affirmed.

PATRICIA K. NORRIS, Presiding Judge, MICHAEL J. BROWN, Judge, concurring.