Scott v. Nussbaum

• Decision Date: 03 April 2018
• Docket Number: No. 1 CA-CV 16-0583,1 CA-CV 16-0583
• Parties: R. DALE SCOTT and MARY JANE SCOTT, husband and wife; SCOTT HOSPITALITY, LLC, an Arizona limited liability company, Plaintiffs/Appellants, v. RANDY NUSSBAUM and POLLY MORRIS husband and wife; GREGORY P. GILLIS and BETTY GILLIS, husband and wife; NUSSBAUM AND GILLIS P.C.; NUSSBAUM, GILLIS & DINNER, P.C.; JABURG & WILK, P.C., Arizona professional corporation, Defendants/Appellees.
• Court: Arizona Court of Appeals

R. DALE SCOTT and MARY JANE SCOTT,
husband and wife; SCOTT HOSPITALITY, LLC,
an Arizona limited liability company, Plaintiffs/Appellants,
v.
RANDY NUSSBAUM and POLLY MORRIS husband and wife;
GREGORY P. GILLIS and BETTY GILLIS, husband and wife;
NUSSBAUM AND GILLIS P.C.; NUSSBAUM, GILLIS & DINNER, P.C.;
JABURG & WILK, P.C., Arizona professional corporation, Defendants/Appellees.

No. 1 CA-CV 16-0583

ARIZONA COURT OF APPEALS DIVISION ONE

April 3, 2018

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2015-006155
The Honorable Arthur T. Anderson, Judge

AFFIRMED

COUNSEL

Treon & Aguirre, PLLC, Phoenix
By Richard T. Treon
Counsel for Plaintiffs/Appellants

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Broening Oberg Woods & Wilson, PC, Phoenix
By Alicyn M. Freeman
Counsel for Defendants/Appellees Randy Nussbaum, Polly Morris, Gregory Gillis, Betty Gillis, Nussbaum & Gillis P.C., and Nussbaum, Gillis & Dinner, P.C.

Jaburg & Wilk, PC, Phoenix
By Roger L. Cohen, David N. Farren
Counsel for Defendant/Appellee Jaburg & Wilk, P.C.

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined.

JONES, Judge:

¶1 Appellants (collectively, Scott) appeal the trial court's order granting summary judgment in favor of Appellees on Scott's claims for legal malpractice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In August 2007, Scott sued Five Star Development, Inc., Five Star Development Resort Communities, L.L.C., and their principals (collectively, Five Star) to recover a real estate commission related to Scott's actions in assisting Five Star with the purchase and development of real property in Maricopa County in 2004. The trial court in Scott I granted summary judgment in favor of Five Star after finding Scott was not entitled to payment because he did not have a written agreement for brokerage services and did not have a valid real estate license during the relevant times. This Court affirmed that analysis on appeal in February 2011. See Scott v. Five Star Dev., Inc., 1 CA-CV 10-0139, 2011 WL 540292, at *7, ¶ 40 (Feb. 15, 2011) (mem. decision).

¶3 Thereafter, Scott filed a second action against Five Star. In Scott II, Scott sought tort damages for fraud, intentional interference with a prospective economic advantage, and intentional infliction of emotional distress, all on the theory that Five Star wrongfully employed Scott's services and prevented Scott from working with other developers without any intention to compensate him. In May 2014, the trial court in Scott II

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granted summary judgment in favor of Five Star on multiple grounds, finding that: (1) Scott was precluded from bringing tort claims that arose from the same transaction that formed the basis of Scott I, (2) Scott failed to bring his tort claims within the applicable statutes of limitations, and (3) Scott was unable to prove his damages resulted from Five Star's conduct, rather than his own failure to procure a written contract and maintain his real estate license. Scott did not appeal the Scott II judgment.

¶4 In May 2015, Scott brought the present action against Appellees, his legal counsel in Scott I and II, alleging they committed malpractice by failing to timely identify and plead the tort claims raised in Scott II.¹ Appellees immediately moved for summary judgment, arguing, inter alia, that the Scott II judgment, concluding that Scott was unable to prove causation on his tort claims, proved that he was not damaged by attorney negligence. The trial court granted Appellees' motions and entered final judgment in their favor. Scott timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1)² and -2101(A)(1).

DISCUSSION

¶5 Scott argues the trial court erred in granting Appellees' motion for summary judgment. Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a); Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 14 (App. 2008). When reviewing a grant of summary judgment, we view the facts in the light most favorable to the non-moving party. Campbell v. SZL Props., Ltd., 204 Ariz. 221, 223, ¶ 8 (App. 2003) (quoting Hartford Accident & Indem. Co. v. Fed. Ins., 172 Ariz. 104, 107 (App. 1992)). We then determine de novo whether a genuine issue of material fact exists and whether the court correctly applied the substantive law. Id. (citing Gonzalez v. Satrustegui, 178 Ariz. 92, 97 (App. 1993)).

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¶6 Appellees urge us to affirm the trial court's application of collateral estoppel to bar Scott's negligence claim against them. We hesitate to do so where the estoppel traces back to a judgment against Scott purportedly occasioned by Appellees' misconduct. To adopt Appellees' position would sanction, as a general rule of law, the ability of an attorney to malpractice himself out of a malpractice case. We need not decide the issue, however, because we may affirm summary judgment on any ground argued by the parties and supported by the record. KB Home Tucson, Inc. v. Charter Oak Fire Ins., 236 Ariz. 326, 329, ¶ 14 (App. 2014) (citing Mutschler v. City of Phx., 212 Ariz. 160, 162, ¶ 8 (App. 2006)). Here, even accepting Scott's facts as true, his malpractice claim fails as a matter of law.

¶7 To prevail on a claim for legal malpractice, a plaintiff must prove duty, breach, causation, and damages. See Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 12 (2004) (citing Phillips v. Clancy, 152 Ariz. 415, 418 (App. 1986)). A plaintiff is entitled to relief...