In Herren v. Armenta, 1-CA-CV-18-0381, the plaintiff sued her former lawyers alleging that they committed legal malpractice when the represented her in another case (the underlying case). In the underlying case, Tonto Supply, Inc., sued Herren for breach of contract and other torts. Herren alleged that her lawyers were negligent because they failed to timely respond to requests to admit and to several motions for summary judgment, resulting in a judgment against her.
This case presented a common problem with legal malpractice actions – would Herren have won the underlying case if the lawyers had responded in timely fashion?
In the malpractice case, Herren had the burden to prove that the lawyer’s negligence was the cause of her loss. She was unable to meet that standard, despite the fact that she hired an expert. The court explains its decision to affirm the dismissal of the malpractice case:
¶12 Because Herren’s claims sought damages arising from the unsuccessful outcome in the Tonto Supply litigation, she was required to provide an expert opinion affidavit detailing how Appellees’ negligence damaged her, i.e., show that but for the alleged negligence, she would have been successful in the Tonto Supply litigation. See A.R.S. § 12-2602(B)(4); Elliott, 164 Ariz. at 119-20.
¶13 An expert affidavit in this context must detail the “manner in which the [attorney’s] acts, errors or omissions caused or contributed to the damages or other relief sought” by the plaintiff. See A.R.S. § 12-2602(B)(4). “But affidavits that only set forth ultimate facts or conclusions of law can neither support nor defeat a motion for summary judgment.” Florez v. Sargeant, 185 Ariz. 521, 526-27 (1996)(collecting cases).
¶14 Herren submitted a preliminary affidavit from an expert to attempt to establish causation. Although the preliminary affidavit offered some detail as to how Appellees’ performance in the Tonto Supply litigation was sub-standard, it offered only a conclusory statement as to causation:
In my opinion, Plaintiff Herren was damaged as a result of the Defendants’ negligence. The careless manner in which her case was handled by her attorneys caused or contributed to the final judgment entered against her. She certainly lost any chance she had to present her factual and legal positions in the most persuasive fashion.But “[n]egligence is not actionable in the abstract,” Barrett v. Harris, 207 Ariz. 374, 382, ¶ 28 (App. 2004) (citation omitted), and the proffered affidavit failed to point out how Appellees’ negligence “caused or contributed” to the unsuccessful outcome in the Tonto Supply litigation. See A.R.S. § 12-2602(B)(4). It did not describe any facts or identify any legal positions that could have led to a different result in the underlying case, and it provided no explanation of what would have occurred (and why) had the underlying lawsuit been litigated properly. See Florez,185 Ariz. at 526; Molever v. Roush, 152 Ariz. 367, 374 (App. 1986).
¶15 Nor did the supplemental affidavit cure the problem. First, the superior court could properly reject the supplemental affidavit as untimely because it was filed one month after the discovery deadline, without any showing of good cause, and after Appellees had already submitted their dispositive motions. See Ariz. R. Civ. P. 26.1(a)(6), 37(c)(1). Second, and more importantly, as the superior court noted, the supplemental affidavit was insufficient because it still did not explain how, but for Appellees’ negligence, Herren would have achieved a more successful outcome to her dispute with Tonto Supply. The supplemental affidavit offered additional examples and detail of Appellees’ deficient performance. And it referenced “causation” more times than the preliminary affidavit. But it did not provide meaningful information describing how Herren could have prevailed but for Appellees’ failures.
¶16 The supplemental affidavit stated, for example, that “Herren’s chances of prevailing on any theory in the underlying case were certainly diminished, if not completely extinguished, by the inadequate representation,” without explaining what theory would have led to Herren prevailing. The supplemental affidavit similarly offered an opinion that “[b]ut for” Appellees’ substandard conduct in “instigating and handling” the Tonto Supply litigation, “Herren would have had a better chance of success in her defense of that lawsuit” and “would have been able to mount a successful defense.” But again, the affidavit failed to describe what meritorious defense could have been offered by competent counsel.
¶17 As an alternative to relying on Appellees’ deficient performance in the course of the Tonto Supply litigation, the supplemental affidavit posited that Appellees caused Herren harm because they should have advised her to avoid the litigation entirely, or at least to consider settling or abandoning the case at an early stage. But this causation theory relies on the premise that Herren would in fact have abandoned the litigation or settled with Tonto Supply if so advised, and Herren did not present any evidence to that effect. Nor did the affidavit explain how a competent attorney could have persuaded her to drop the case, particularly given that Herren continues to assert she would have won the case against Tonto Supply with competent representation.
¶18 In sum, neither the initial expert affidavit nor the supplemental affidavit proffered either (1) a theory under which Herren could have prevailed in the underlying litigation or (2) facts showing that Herren would have dropped the litigation if she had been competently advised by Appellees. Accordingly, the superior court did not err by concluding Herren had failed to demonstrate a genuine issue of fact as to causation and by entering summary judgment in favor of Appellees.
In sum, this is a classic legal malpractice case where there was negligence (allegedly), but no proof that the result would have been better if the lawyers had met all the deadlines they missed.
Ed Clinton, Jr.