Beynon v. Trezza

Decision Date13 April 2009
Docket NumberNo. 2 CA-CV 2008-0082.,2 CA-CV 2008-0082.
Citation211 P.3d 1203,221 Ariz. 219
PartiesDaniel BEYNON and Susan Beynon, husband and wife, Plaintiffs/Appellants, v. Stephen M. TREZZA, a single man, dba Trezza & Bradley; Brad Thrush and if married, Jane Doe Thrush, Defendants/Appellees.
CourtArizona Court of Appeals

Robert S. Wolkin, Tucson, Attorney for Plaintiffs/Appellants.

Gust Rosenfeld, P.L.C. By James W. Kaucher and Magdalena Osborn, Tucson, Attorneys for Defendants/Appellees.


PELANDER, Chief Judge.

¶ 1 In this attorney malpractice action, plaintiffs/appellants Daniel and Susan Beynon appeal from the trial court's grant of summary judgment in favor of defendants/appellees Brad Thrush, Stephen Trezza, and their law firm, Trezza & Bradley (collectively Thrush). It is undisputed that, on plaintiffs' underlying negligence claim against the state, Thrush failed to timely file an action on their behalf within the one-year limitations period prescribed in A.R.S. § 12-821. Nonetheless, the trial court ruled, plaintiffs could not have prevailed in their underlying case because they failed to strictly comply with the notice-of-claim statute, A.R.S. § 12-821.01(A), thereby barring any cause of action against the state. For the reasons set forth below, we affirm.


¶ 2 "In reviewing a grant of summary judgment, we view the facts and inferences therefrom in the light most favorable to the party against whom judgment was entered." Collins v. Miller & Miller, Ltd., 189 Ariz. 387, 392, 943 P.2d 747, 752 (App.1996). On March 1, 2002, while driving a vehicle titled in the name of a third party (Rooney), Daniel Beynon was injured when his vehicle collided with another vehicle driven by a state employee. On March 11, Anthony Peck, an adjuster for the Risk Management Section of the Arizona Attorney General's Office, went to Beynon's residence. Peck brought with him a notice-of-claim form, which he assisted Beynon in filling out before taking the completed form with him. Rooney was the only claimant designated on that form, which Beynon signed on Rooney's behalf. The form specified $10,000 as the amount of the claim and included the following statement: "I am seeking reimburs[e]ment for my truck & [d]octor." On March 18, the state settled the property damage claim with Rooney for $2,500.

¶ 3 On March 25, 2002, Beynon visited his chiropractor. Beynon averred below that during that appointment, he "realized the amount and costs of [his] treatment were going to be more than [he] had alleged in the March 11th, 2002 Notice of Claim." The chiropractor provided a blank notice-of-claim form, which Beynon completed with the chiropractor's assistance. The chiropractor then telefaxed that notice of claim to Peck, who received it on March 25.

¶ 4 The March 25 notice of claim designated only Daniel Beynon as the claimant and specified $50,000 as the amount for which his claim could be settled.1 The form instructed the claimant to "[i]dentify the circumstances under which the damage or injuries were sustained, the cause thereof and the nature and extent of the damages and/or injuries." In that section of the form, Beynon merely stated: "[The state employee] did a u[-]turn in front of me. She was talking on her phone & looking at maps[, w]hich caused me to colide [sic] with her."

¶ 5 On January 28, 2003, Beynon retained attorney Thrush to represent him on his claim against the state arising from the March 2002 accident. Beynon and Thrush entered into a contingent fee agreement on that date. Beynon averred in an affidavit below that up to that point he had "maintained communication" with Peck, who had "informed [him] that [his] claim was being investigated and adjusted by the State." Similarly, Peck averred that he had "adjust[ed]" Beynon's claim for one year, until the limitations period expired on March 1, 2003, and had spoken with Thrush before that expiration date.

¶ 6 In a letter dated February 26, 2003, Thrush informed Beynon that his law firm was "already working on" Beynon's "personal injury case" and would "work to correct any oversight." As noted above, however, it is undisputed that Thrush did not file an action on Beynon's behalf against the state and, therefore, the one-year limitations period expired on March 1, 2003, pursuant to § 12-821. On March 27, Peck informed Beynon by telephone that "his claim was barred because counsel who represented him did not send a Subrogation Demand package or [timely] file suit." Peck confirmed that conversation by letter to Beynon dated March 31, stating his claim was time-barred pursuant to § 12-821. In a letter to Beynon dated March 27, Thrush canceled the contingency fee agreement, stating, "it appears that the question of legal responsibility or liability in your case will generate considerable debate" and "the outlook for recovery for you does not justify our proceeding with your case." In that same letter, Thrush informed Beynon of the one-year limitations period and the notice-of-claim requirement applicable to claims against governmental entities, stating "[t]hese and other time periods, subject to several exceptions, may cut off your right to claim for your injury."

¶ 7 On February 25, 2005, Beynon filed this action, alleging Thrush committed attorney malpractice by failing to timely file a lawsuit on Beynon's behalf against the state. Thrush generally denied liability and alleged various affirmative defenses, but none relating to the notice-of-claim requirements. In late December 2006, however, Thrush moved for summary judgment, contending Beynon's notice of claim was substantively deficient and improperly served. On that same date, Beynon moved to amend his complaint to add claims for breach of contract and breach of fiduciary duty, and the trial court ultimately granted that motion.

¶ 8 In late February 2007, the Arizona Supreme Court issued its opinion in Deer Valley Unified School District No. 97 v. Houser, 214 Ariz. 293, 152 P.3d 490 (2007). The parties then filed supplemental briefs to address the effect, if any, of Deer Valley on Thrush's pending motion for summary judgment. After the parties argued the motion in September 2007,2 the trial court granted summary judgment in favor of Thrush. This appeal followed the court's entry of formal judgment in his favor.


¶ 9 On appeal from the grant of summary judgment, we review de novo whether any genuine issue of material fact exists and whether the trial court erred in applying the law. See Collins, 189 Ariz. at 392, 943 P.2d at 752; see also Jones v. Cochise County, 218 Ariz. 372, ¶ 7, 187 P.3d 97, 100 (App.2008). We also review de novo the "trial court's determination that [Beynon]'s notice of claim failed to comply with § 12-821.01." Id. Summary judgment is appropriate if the law supports the motion and "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).


¶ 10 An attorney-malpractice claim based on the lawyer's allegedly negligent acts or omissions in the litigation context essentially requires analysis of "`the case within the case.'" Hyatt Regency Phoenix Hotel Co. v. Winston & Strawn, 184 Ariz. 120, 131, 907 P.2d 506, 517 (App.1995); see also Molever v. Roush, 152 Ariz. 367, 374-75, 732 P.2d 1105, 1112-13 (App.1986). "As with all negligence claims, a plaintiff asserting legal malpractice must prove the existence of a duty, breach of duty, that the defendant's negligence was the actual and proximate cause of injury, and the `nature and extent' of damages." Glaze v. Larsen, 207 Ariz. 26, ¶ 12, 83 P.3d 26, 29 (2004); see also Molever, 152 Ariz. at 371, 732 P.2d at 1109; Phillips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300, 303 (App.1986). "A necessary part of the legal malpractice plaintiff's burden of proof of proximate cause is to establish that `but for the attorney's negligence, he would have been successful in the prosecution or defense of the original suit.'" Glaze, 207 Ariz. 26, ¶ 12, 83 P.3d at 29, quoting Phillips, 152 Ariz. at 418, 733 P.2d at 303; see also DeSilva v. Baker, 208 Ariz. 597, ¶ 11, 96 P.3d 1084, 1087 (App.2004). If a question of law would have been dispositive in the underlying action, "it remain[s] a question of law for the court to decide in the malpractice action." DeSilva, 208 Ariz. 597, ¶ 13, 96 P.3d at 1088; see also Molever, 152 Ariz. at 374-75, 732 P.2d at 1112-13.

¶ 11 Originally enacted in 1993 and amended in 1994, § 12-821 provides: "All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward." Section 12-821.01(A), enacted in 1994, provides:

Persons who have claims against a public entity or a public employee shall file claims with the person or persons authorized to accept service for the public entity or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues. The claim shall contain facts sufficient to permit the public entity or public employee to understand the basis upon which liability is claimed. The claim shall also contain a specific amount for which the claim can be settled and the facts supporting that amount. Any claim which is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.

When, as here, a claim is against the state, the only "person ... authorized to accept service for the public entity or public employee" is the Attorney General, on whom service must be made by mail or personal service. § 12-821.01(A); see Ariz. R. Civ. P. 4.1(h); Lee v. State, 218 Ariz. 235, ¶ 7, 182 P.3d 1169, 1171 (2008) ("filing" of notice of claim against state...

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