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Court Upholds Dismissal of Legal Malpractice Case With Clear Negligence But No Proximate Causation

The case, Herren v. Armenta, No. 1-CA-CV-18-0381 (Arizona Court of Appeals January 14, 2020) is a legal malpractice case where Herren lost her underlying case, a business dispute. As we shall see, despite evidence of negligence she also lost the legal malpractice case.

In the underlying matter, Herren hired Armenta to defend a lawsuit by Tonto Supply over a gravel-mining contract. The defense did not go well as we can see from this quote:

¶4 Tonto Supply then filed a multi-claim lawsuit against Herren, and Herren hired Arizona-licensed Holden and her firm to assist with the lawsuit. After Appellees filed an answer and counterclaims on Herren’s behalf, Tonto Supply filed five motions for partial summary judgment on various claims and counterclaims and sent Herren a request for admission of 25 factual matters. Appellees did not respond to the request for admissions and failed to timely respond to the partial summary judgment motions. Appellees were late responding to four of the motions, even after obtaining an extension following the initial deadline, and Appellees neglected to respond at all to one of the motions.

¶5 The superior court deemed the requested fact submissions to be admitted and granted Tonto Supply’s motions for partial summary judgment, citing among other rationales the fact admissions and the failure to comply with the procedural requirements of the summary judgment rule. See Ariz. R. Civ. P. 56(c).

¶6 Herren appealed the resulting judgment, and another panel of this court affirmed. Tonto Supply, Inc., v. Herren, No. 1-CA-CV 11-0495, 2012 WL 6645691 (Ariz. App. Dec. 20, 2012). The court rejected Herren’s argument that the judgment against her was in effect an improper discovery sanction based on her deemed admissions. See id. at *3, ¶ 18. Although the court noted the admissions and Herren’s discovery violations, the court did not rely solely on those factors or on Appellees’ failure to comply with the procedural requirements of Rule 56. Id. at *3-4, ¶¶ 19, 22. Instead, the court concluded that summary judgment was proper on the merits because, even without considering the deemed admissions, Herren’s responses failed to present admissible evidence supporting her opposition to Tonto Supply’s claims. See id. at *4-5, ¶¶ 23-25. The court held that, because Tonto Supply had submitted “deposition transcripts and other exhibits that provided independent grounds showing that no genuine dispute of material fact existed for trial,” Tonto Supply was entitled to judgment as a matter of law. Id. at *5, ¶ 25.

Comment: there is plenty of evidence that the lawyers were negligent – there were missed deadlines and failures to respond. However, there was no legal malpractice. How could that be?

Essentially, neither Herren nor her expert witness could explain how she would have won the underlying litigation even if the lawyers had met all the deadlines.

¶10 Herren challenges the superior court’s final summary judgment ruling on causation. Summary judgment is proper when no genuine issues of material fact exist and those undisputed facts establish that the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a); Orme Sch. v. Reeves, 166 Ariz. 301, 309-10 (1990). Even an issue of fact (like causation) that is generally reserved for the jury is amenable to summary judgment “if no reasonable juror could conclude that the . . . damages were proximately caused by the defendant’s conduct.” Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 n.1 (2007). We review de novo the superior court’s ruling granting summary judgment, considering the facts and all reasonable inferences in the light most favorable to the party opposing summary judgment. Rasor v. Nw. Hosp., LLC, 243 Ariz. 160, 163, ¶ 11 (2017)Cramer v. Starr, 240 Ariz. 4, 7, ¶ 8 (2016).

¶11 As in any negligence case, a plaintiff asserting legal malpractice must prove (1) duty, (2) breach, (3) causation, i.e., “that the [attorney’s] negligence was the actual and proximate cause of injury,” and (4) damages. Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 12 (2004). For alleged negligence during litigation, the plaintiff must prove a “case within a case” to establish causation: but for the attorney’s negligence, the plaintiff/client would have succeeded in the underlying lawsuit. Id.; Elliott v. Videan, 164 Ariz. 113, 119-20 (App. 1989).

¶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 526Molever 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.

Comment: This is a common result in a legal malpractice case. There is negligence (or arguable negligence) but no way to prove that the negligence of the lawyer caused any harm to the client. Here the court is concluding that Herren would have lost the Tonto Supply litigation even if she had representation that met the standard of care.

If you have a question concerning legal malpractice, do not hesitate to contact me. My email is I am happy to discuss any potential malpractice claim with you.

Ed Clinton, Jr.

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