DeSilva v. Baker

• Decision Date: 07 September 2004
• Docket Number: No. 1 CA-CV 03-0700.,1 CA-CV 03-0700.
• Parties: Lionel DESILVA, an individual, Plaintiff-Appellant, v. Thomas BAKER and Jane Doe Baker, husband and wife; Baker & Baker, an Arizona partnership, Defendants-Appellees.
• Court: Arizona Court of Appeals

96 P.3d 1084

208 Ariz. 597

Lionel DESILVA, an individual, Plaintiff-Appellant, v. Thomas BAKER and Jane Doe Baker, husband and wife; Baker & Baker, an Arizona partnership, Defendants-Appellees.

No. -0700.

Court of Appeals of Arizona, Division 1, Department C.

September 7, 2004.

Blumberg & Associates by Bruce E. Blumberg, Phoenix, Attorneys for Plaintiff-Appellant.

Broening Oberg Woods Wilson & Cass, P.C. by Donald Wilson, Jr., Matthew L. Cates, Phoenix, Attorneys for Defendants-Appellees.

OPINION

KESSLER, Judge.

¶ 1 Lionel DeSilva ("DeSilva") appeals from the grant of summary judgment to his former lawyer, Thomas Baker ("Baker") of Baker & Baker, in a legal malpractice action. DeSilva, represented by Baker, had brought common-law tort and 42 U.S.C. § 1983 claims against probation officers and the Maricopa County Sheriff and employees of the Maricopa County Sheriff's Office (collectively, "MCSO") (the "underlying action"). The superior court dismissed the underlying action for lack of prosecution. DeSilva then filed this malpractice action against Baker. DeSilva contends questions of material fact precluded summary judgment in Baker's favor. For the reasons that follow, we agree in part that the trial court erred in granting summary judgment. We hold that probation officers are absolutely immune from liability for filing petitions to revoke probation status. Accordingly, summary judgment of the legal malpractice action based on the suit against the probation officers was correct because DeSilva could not have prevailed on that claim. However, DeSilva presented a genuine issue of material fact whether the MCSO could have been held liable under § 1983, thus precluding summary judgment on that aspect of the malpractice action. We remand for further proceedings on DeSilva's negligence claim against Baker for failure to prosecute the action against the MCSO.

BACKGROUND

¶ 2 In 1993, DeSilva was convicted of driving while intoxicated and was placed on intensive probation. In 1995, his probation officers filed a petition seeking revocation of his probation. Pursuant to a bench warrant, DeSilva was arrested and placed in the Maricopa County jail. Although the court hearing on the petition to revoke probation had not been completed, the court ordered DeSilva released from jail on February 10, 1995. DeSilva was hospitalized from February 10 to 13 for an acute "Group A Streptococcal infection of his feet." The probation revocation petition was later dismissed.

¶ 3 DeSilva retained Baker to represent him in the suit against the probation officers and the MCSO; however, Baker and DeSilva did not memorialize their agreement in writing. In May and June 1995, Baker submitted notices of claims pursuant to Arizona Revised Statutes ("A.R.S.") section 12-821.01 (2003) but did not file a lawsuit until January 1997.

¶ 4 The complaint alleged the probation officers had filed a petition to revoke DeSilva's probation knowing that the petition's allegations were false and DeSilva was arrested based on the allegations. It also alleged that due to unsanitary jail conditions DeSilva contracted a blood infection and repeatedly requested medical attention. A nurse finally examined him but failed to recognize the severity of the infection or to offer treatment. This failure to provide care was alleged to have exacerbated his injury. The trial court sent its 150-day order to Baker, but Baker took no further action to prosecute the case. In April 1998, the court dismissed the complaint without prejudice for lack of prosecution.

¶ 5 In July 2001, DeSilva sued Baker for legal malpractice. DeSilva alleged Baker did not notify him of the dismissal and that Baker did not timely seek reinstatement. DeSilva claimed he did not learn of the dismissal until August 1999 and consequently was unable to refile the underlying action. His complaint against Baker alleged negligence, breach of contract and misrepresentation and/or wrongful concealment. Baker moved for summary judgment on the negligence claim, asserting that DeSilva could not establish that absent Baker's failure to prosecute the case, DeSilva would have prevailed in the underlying lawsuit. Baker contended: (1) the probation officers were absolutely immune from prosecution for conduct performed in the course of their official duties; and (2) DeSilva failed to offer evidence of a causal connection between the jail conditions and his infected feet that would have subjected the MCSO to liability.

¶ 6 Baker also moved for summary judgment on the breach of contract claim. He argued that he had never specifically promised to file suit by a certain date; thus the contract claim was premised on nonperformance of a duty imposed by law, which is a tort. Without evidence of a specific promise, DeSilva could not sue for breach of contract.

¶ 7 DeSilva responded that some courts have held that probation officers are entitled only to qualified immunity, citing Brown v. Lyford, 243 F.3d 185 (5th Cir.2001); Wilson v. Kelkhoff, 86 F.3d 1438 (7th Cir.1996); and Ray v. Pickett, 734 F.2d 370 (8th Cir.1984). As to his allegations concerning the MCSO, DeSilva attached an affidavit from Dr. Timothy Kuberski stating that he had reviewed the medical records from DeSilva's hospitalization. Dr. Kuberski concluded that the infection had not been properly diagnosed and treated while DeSilva was in jail; that the infection would have been diagnosed by a medical doctor; and that with reasonable medical certainty DeSilva would not have required hospitalization had the infection been promptly treated. Finally, DeSilva argued that Baker should not benefit from his wrongful failure to have DeSilva sign a written contingent fee contract and thus the lack of such a contract should not have barred his breach of contract claim.

¶ 8 As to the negligence claim, the trial court held that probation officers are absolutely immune while carrying out their official duties. It also found that DeSilva failed to establish with expert evidence that his infected feet were caused by unsanitary jail conditions. Thus, DeSilva could not have prevailed on his negligence claims against the probation officers or the MCSO. Citing Collins v. Miller & Miller, Ltd., 189 Ariz. 387, 943 P.2d 747 (App.1996), the trial court also granted Baker summary judgment on the contract claim because there was no evidence of a specific promise by Baker. Accordingly, the trial court concluded Baker was entitled to summary judgment because DeSilva could not prove that any harm resulted from Baker's negligent handling of the underlying action.

¶ 9 DeSilva unsuccessfully moved for reconsideration.¹ After the parties agreed to dismiss the remaining misrepresentation/wrongful concealment count, the court entered judgment in favor of Baker, dismissed DeSilva's complaint and awarded costs to Baker. This appeal followed. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9 and A.R.S. § 12-2101(B) (2003).

DISCUSSION

¶ 10 On appeal from a summary judgment, we view the evidence in a light most favorable to the party against whom judgment was granted. Woerth v. City of Flagstaff, 167 Ariz. 412, 416, 808 P.2d 297, 301 (App.1990). We independently determine whether questions of material fact exist and whether the superior court properly applied the law. Gonzalez v. Satrustegui, 178 Ariz. 92, 97, 870 P.2d 1188, 1193 (App.1993).

A. NEGLIGENCE

¶ 11 "To recover compensatory damages in a legal malpractice action the plaintiff must prove that but for the attorney's negligence, the prosecution ... of the original action would have been successful." Hyatt Regency Phoenix Hotel Co., v. Winston & Strawn, 184 Ariz. 120, 131, 907 P.2d 506, 517 (App.1995) (citing Asphalt Eng'r, Inc., v. Galusha, 160 Ariz. 134, 136-37, 770 P.2d 1180, 1182-83 (App.1989)). In Tennen v. Lane, 149 Ariz. 94, 97, 716 P.2d 1031, 1034 (App.1985), we reversed a directed verdict in a legal malpractice action because the plaintiff's evidence created a genuine question of material fact on whether the attorney's negligence proximately caused her damages. We also stated that proximate cause is a jury question unless reasonable persons could not differ on that issue. Id. (citing Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 358, 706 P.2d 364, 370 (1985)).

1. The Probation Officers Were Entitled to Absolute Immunity.

¶ 12 DeSilva contends that in the underlying action the probation officers would have had to assert and prevail upon the affirmative defense of absolute immunity. He argues Baker bore that same burden in the legal malpractice case. Baker argues that because DeSilva cannot show that a reasonable jury or judge would have found in his favor in the underlying lawsuit, DeSilva cannot establish a causal link between Baker's negligence and any harm suffered by dismissal of that case.

¶ 13 We need not decide who had the burden of proof to show whether the probation officers were entitled to absolute immunity because there is no factual dispute about what the probation officers had done. Since the issue of absolute immunity was a question of law in the underlying action, it remained a question of law for the court to decide in the malpractice action. See Molever v. Roush, 152 Ariz. 367, 375, 732 P.2d 1105, 1113 (App.1986)

("[i]ssues resolved by the finder of fact, whether judge or jury, during the underlying action are likewise resolved by the finder of fact in the subsequent malpractice action; issues of law resolved by the court in the underlying action are likewise resolved by the court in the subsequent malpractice action."); Widoff v. Wiens, 202 Ariz. 383, 385, ¶ 8, 45 P.3d 1232, 1234 (App.2002) (existence of judicial immunity is question of law subject to de novo review).

¶ 14 DeSilva's complaint alleged that his probation officers filed with the superior court a petition to revoke probation, that the probation officers knew the allegations of misconduct were false,...