concurring.
¶ 38 I agree that the summary judgment in favor of Hirseh should be reversed and this ease remanded for further factual development regarding the application of the statute of limitations, and I therefore concur generally with the result reached by my colleagues in the majority. I do not subscribe to the entirety of the majority’s reasoning, however, because I believe that the bankruptcy proceeding in which Hirseh represented Cannon constituted “litigation” for purposes of applying the extended discovery rule set forth in Amfac I and II. Because the trial court in my view erred in concluding that the alleged malpractice did not occur “during the course of litigation,” I would remand for further proceedings including application of accrual principles from Amfac. See Amfac I, 138 Ariz. at 156, 673 P.2d at 796 (“a cause of action for legal malpractice occurring in the course of litigation accrues when the plaintiff knew or should reasonably have known of the malpractice and when the plaintiffs damages are certain and not contingent upon the outcome of an appeal”), approved as supplemented, Amfac II, 138 Ariz. at 153, 673 P.2d at 793; see also Amfac II, 138 Ariz. at 154, 673 P.2d at 794 (explaining that the “injury or damaging effect on the unsuccessful party is not ascertainable until the appellate process is completed or is waived by a failure to appeal”).
¶ 39 Whether a particular legal proceeding constitutes “litigation” for the purposes of the statute of limitations should not be decided on the basis of a hypertechnical analysis. See Associated Aviation Underwriters v. Wood, 209 Ariz. 137, 179, ¶ 147, 98 P.3d 572, 614 (App.2004) (“Arizona courts disfavor hypertechnical arguments”) (quoting Guinn v. Schweitzer, 190 Ariz. 116, 119, 945 P.2d 837, *183840 (App.1997)). Although this bankruptcy proceeding may not have been “adversarial” within the technical meaning of bankruptcy law and procedure, nonetheless it should be considered “litigation” for statute of limitations purposes. One respected dictionary defines “litigate” as “[t]o subject (something) to legal proceedings” and “litigation” as “[ljegal action or process.” The American Heritage Dictionary of the English Language 763 (1970). Here, the parties were represented by attorneys; the attorneys filed papers on behalf of their clients at a courthouse; and the parties’ interests were often adverse even though not technically classified as “adversarial” within the parlance of bankruptcy court.
¶ 40 Resolution of disputes on the merits is favored. Morgan v. Carillon Invs., Inc., 207 Ariz. 547, 552, ¶ 26, 88 P.3d 1159, 1164 (App. 2004), aff'd, 210 Ariz. 187, 109 P.3d 82 (2005); see also Montano v. Browning, 202 Ariz. 544, 546, ¶ 4, 48 P.3d 494, 496 (App.2002). But dismissal based on a statute of limitation defense is not favored. See Morgan, 207 Ariz. at 552, ¶ 26, 88 P.3d at 1164.
¶ 41 For these reasons, I concur in reversing the summary judgment and remanding this case to the trial court for further factual development regarding the potential application of the statute of limitations and for any additional proceedings that may be appropriate.