Lund v. Burch & Cracchiolo P.A.

• Decision Date: 19 November 2020
• Docket Number: No. 1 CA-CV 19-0688,1 CA-CV 19-0688
• Court: Arizona Court of Appeals
• Parties: BRADFORD D. LUND, Plaintiff/Appellant, v. BURCH & CRACCHIOLO P.A., et al., Defendants/Appellees.

BRADFORD D. LUND, Plaintiff/Appellant, v. BURCH & CRACCHIOLO P.A., et al., Defendants/Appellees.

No. 1 CA-CV 19-0688

ARIZONA COURT OF APPEALS DIVISION ONE

November 19, 2020

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. CV2016-055128

The Honorable Cynthia J. Bailey, Judge (Retired)

AFFIRMED

COUNSEL

Horne Slaton, PLLC, Scottsdale

By Sandra L. Slaton, Matthew J. Monaco

Counsel for Plaintiff/Appellant

Burch & Cracchiolo, P.A., Phoenix

By Brian F. Murphy, Daryl Manhart, Laura Meyer

Counsel for Defendants/Appellees

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann joined.

WINTHROP, Judge:

¶1 Bradford D. Lund appeals the superior court's judgment in favor of Burch & Cracchiolo, P.A., et al. (collectively, "Defendants") on Lund's claims of abuse of process and invasion of privacy. Lund argues the court erred in partially granting Defendants' motion to dismiss, denying his motion for reconsideration, and granting Defendants' motion for summary judgment on the remainder of his complaint, all based on statute of limitations grounds. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In October 2009, relatives of Lund retained Defendants to file a petition seeking appointment of a guardian and conservator for Lund based on his alleged congenital cognitive incapacity and inability to manage his financial affairs. See Lund v. Donahoe, 227 Ariz. 572, 576, ¶ 2 (App. 2011). The petitioners alleged that other family members—including Lund's father and stepmother—had isolated Lund to convert to their advantage income distributed to him from family trusts. Jeffrey Shumway represented Lund, who (along with the other respondents) opposed the petition. See id.

¶3 In September 2011, Defendants served a subpoena duces tecum on the law firm of Jennings, Strouss & Salmon ("JSS"), which had briefly represented Lund in a previous 2006 guardianship proceeding. The subpoena required the production of all "non-privileged" portions of the legal file in JSS' possession regarding Lund.¹ Shortly thereafter, without first conducting a privilege review of the file's contents, JSS produced itsentire file (239 pages of records) to Defendants, based on the mistaken assumption that Defendants represented Lund.

¶4 Lund's attorney, Shumway, became aware of the mistake and during a brief October 4, 2011 email exchange with Bryan Murphy, an attorney with Burch & Cracchiolo, Shumway notified Defendants that he believed certain portions of the JSS file were attorney-client privileged. Shumway noted he did not have a copy of the file in front of him, but requested that Defendants return materials clearly subject to the attorney-client privilege, and stated he would review the file that week at the JSS office and promptly notify Murphy of any other file materials he considered privileged. No further communications regarding the JSS file occurred between Shumway and Murphy in the next several weeks, and Murphy later asserted he forgot about the email exchange.

¶5 On October 27, 2011, as part of a second supplemental disclosure statement, see Ariz. R. Civ. P. ("Rule") 26.1, Defendants forwarded the documents in the JSS file to all other counsel² involved in the 2009 guardianship/conservatorship proceeding.³

¶6 On November 14, 2011, Lund (and the other respondents) moved to disqualify Defendants as the petitioners' counsel for disclosing the contents of the JSS file. Lund asserted that because Defendants had "read, kept, and distributed" privileged materials, the only remedy to rectify the "breach of ethics and rules" would be disqualification.⁴

¶7 Defendants possessed both a hard copy of the JSS file and a digital copy stored on their office server. In May 2012, the digital copy of the JSS file was irretrievably lost in a server failure and, according to a declaration attested to by Murphy, the hard copy was never re-scanned into the computer system. On October 11, 2012, Murphy returned to JSS the hard copy file in Defendants' possession.⁵ As a result, the record indicates Defendants no longer had any copy of the JSS file after October 11, 2012.

¶8 On December 29, 2014, the superior court (now-retired Judge Edward W. Bassett) granted the motion to disqualify Defendants from further representation of the petitioners in the 2009 guardianship/conservatorship proceeding.⁶ Defendants challenged the disqualification by filing a special action with this court, arguing they had been denied due process by having to defend the motion without having access to the JSS file. On June 4, 2015, this court in its special action order affirmed the superior court's disqualification order. See Burch & Cracchiolo, P.A. v. Myers, 237 Ariz. 369, 380, ¶ 38 (App. 2015). The 2009 guardianship/conservatorship proceeding was finally resolved in July 2016.

¶9 On December 28, 2016, Lund filed a complaint against Burch & Cracchiolo, Murphy, and others (Defendants). Lund alleged Defendants were liable for abuse of process and invasion of privacy based on their receipt and review of the privileged materials produced in response to the subpoena to JSS.

¶10 In January 2017, Defendants moved to dismiss the complaint. They argued (1) Lund's claims were barred by the two-year statute of limitations and (2) Lund's claim for invasion of privacy was also barred by the doctrine of absolute immunity attending judicial proceedings. Lund responded that the causes of action did not accrue upon Defendants' October 2011 disclosure and use of the assertedly privileged information because he did not at that time have "the requisite knowledge that a wrong had occurred which caused him injury," and instead, the limitations periodbegan to run either when Judge Bassett granted his disqualification motion in December 2014, or when this court affirmed Judge Bassett's ruling on special action in June 2015. After further briefing and oral argument, the superior court took the matter under advisement.

¶11 In a minute entry filed June 21, 2017, the court granted the motion in part after finding claims based on conduct before December 29, 2014—two years preceding the filing of the complaint—were time-barred, but Lund could maintain an action for any tortious conduct occurring after that date:

Taking all of the allegations in the complaint as true, as required on a motion to dismiss, it is possible that . . . [D]efendants' allegedly tortious conduct - invading the privacy of privileged communications and misusing records containing those communications in litigation - was ongoing after the date two years prior to the filing of the complaint. If it was, [Lund] can maintain the action to redress that alleged conduct. He may not, however, seek a remedy for any conduct before that date, which is December 29, 2014.

¶12 Discovery closed in October 2018, and on November 1, 2018, Defendants moved for summary judgment as to any claim they had engaged in tortious misconduct after December 29, 2014. After responsive briefing, the superior court held oral argument on the motion for summary judgment and took the matter under advisement.

¶13 Meanwhile, in May 2019, Lund moved for reconsideration of the court's June 21, 2017 ruling on Defendants' motion to dismiss, arguing that, under Cruz v. City of Tucson, 243 Ariz. 69 (App. 2017), abuse of process could be a continuing tort that would toll the running of the statute of limitations before January 21, 2015, the date Defendants were substituted for as counsel in the 2009 guardianship/conservatorship proceeding.

¶14 Defendants responded, correctly noting that Cruz "never decided whether the continuing tort doctrine can be applied to a claim for abuse of process." Defendants also argued (1) the continuing tort doctrine had no application to Lund's claims for abuse of process and invasion of privacy, (2) continuing damages, as opposed to continuing tortious conduct did not extend accrual of the statute of limitations under the continuing tort doctrine, and (3) Lund could not identify any alleged tortious conduct that occurred after December 2014.

¶15 On August 15, 2019, the superior court struck Lund's reply in support of the motion for reconsideration, see Ariz. R. Civ. P. 7.1(e)(2), and denied Lund's motion for reconsideration premised on the continuing tort doctrine, explaining in part as follows:

Nothing [Lund] presented, including his reference to Cruz is persuasive to the Court that the continuing tort doctrine can be applied to a claim for abuse of process.

Further, [Lund] has not presented any authority that the continuing tort doctrine applies to his claim of invasion of privacy/intrusion claim.

Even if the continuing tort doctrine did apply, [Lund's] motion is devoid of any specific conduct that occurred after December 28, 2014[,] which he contends was part of the ongoing tort he alleges occurred. [Lund] clearly alleges that he suffered ongoing damages, but no ongoing tortious conduct.

¶16 In a separate minute entry issued that same day, the superior court granted Defendants' motion for summary judgment regarding claims they had engaged in tortious conduct after December 29, 2014. The court found no tortious activity related to the JSS file could have occurred, as Defendants did not then have a copy of the JSS file:

There are no facts alleged by [Lund], nor credible evidence from which a jury could conclude that Defendants had a hard copy of the JSS file after December 29, 2014 nor that the file was available in electronic form after the law firm server crash. Speculation about whether the jury would believe Defendants on these issues is not enough to survive a summary judgment motion.

¶17 On September 18, 2019, the superior court entered a final judgment dismissing Lund's claims. See Ariz. R. Civ. P. 54(c). We...