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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MISSY ATKINS, et al., Plaintiffs/Appellants,
v.
SNELL & WILMER LLP, Defendants/Appellees.
No. 1 CA-CV 17-0519
FILED 10-16-2018
Appeal from the Superior Court in Maricopa County
Nos. CV2011-052578; CV2011-052858; CV2014-052003 (Consolidated)
The Honorable Roger E. Brodman, Judge
AFFIRMED
APPEARANCES
Missy Atkins, Barry M. Atkins, West Palm Beach, Florida
Plaintiffs/Appellants
The Marhoffer Law Firm, PLLC, Scottsdale
By David Marhoffer
Counsel for Plaintiff/Appellant Maverick
Fennemore Craig, P.C., Phoenix
By Jessica Post, Amy Abdo, Timothy J. Berg
Counsel for Defendants/Appellees
ATKINS, et al. v. SNELL & WILMER, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge James P. Beene delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined.
B E E N E, Judge:
¶1 Barry and Missy Atkins (the “Atkinses”) and Maverick 8610,
LLC, (“Maverick”) appeal the superior court’s judgment awarding
damages and sanctions in favor of Snell & Wilmer, LLP, Donald W. Bivens
and Particia Lee Refo, Robert M. Kort and Myndi M. Kort (collectively
“Snell”). For the following reasons, we affirm.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 In April 2011, Missy Atkins (“Missy”) filed a complaint
against Snell, alleging professional negligence, breach of fiduciary duty,
fraud, and requested punitive damages. In May 2011, Barry M. Atkins
(“Barry”) filed a separate complaint against Snell, alleging the same causes
of action for the same events. Missy amended her complaint to add
Maverick as a plaintiff in May 2011. Snell sued the Atkinses and Maverick
for breach of contract for unpaid legal fees and costs in April 2012. In
January 2014, Barry filed another complaint stemming from the same
factual allegations, but added claims for constructive fraud, fraudulent
concealment, breach of the covenant of good faith and fair dealing, while
1 Snell argues in its opening brief the Atkinses and Maverick failed to:
1) include citations to the record or legal authorities; 2) provide any legal
argument regarding certain issues; 3) identify issues for which they raised
legal arguments; and 4) argue certain issues beyond incorporating an
argument by reference to their filings in the superior court. The lack of
reference to legal authority and the record could be considered
abandonment and waiver of a claim. See ARCAP 13(a)(7)(A); State v. Carver,
160 Ariz. 167, 175 (1989). Issues the Atkinses or Maverick failed to address
according to these authorities are waived. In our discretion, we may,
however, decide a waived issue on its merits based on our own review of
the record. See Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App.
1984) (recognizing that courts prefer to decide each case upon its merits
rather than dismissing on procedural grounds).
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ATKINS, et al. v. SNELL & WILMER, et al.
Decision of the Court
restating the other causes of action. The cases were consolidated in March
2015.2
¶3 In their complaints, the Atkinses alleged Snell negligently
represented them and Maverick during a lawsuit filed in May 2007 by
Randall K. Zeller, who asserted claims for breach of contract,
fraud/conversion, and fraudulent transfer (the “Zeller litigation”). Barry
settled the Zeller litigation upon Snell’s analysis and advice in May 2009.
Barry attended the settlement conference on behalf of himself, Missy, and
Maverick, but Missy signed the settlement agreement in her own right; both
Atkinses signed for Maverick as its members.
¶4 In the Zeller litigation, Zeller was collecting on loans he
extended to the Atkinses and Maverick. Through his first loan, Zeller lent
Barry $220,000 to continue litigating Barry’s unrelated lawsuit against
various corporate and individual defendants in Florida (the “Topp
litigation”), a loan for which Barry executed three documents—a
promissory note, a security agreement, and a “Participation Agreement.”
The promissory note required Barry to repay the $220,000 to Zeller with
interest at a fixed rate of 10% per annum and 18% upon default, which the
Atkinses repaid with 10% interest. Through the Participation Agreement,
however, Barry also agreed to pay Zeller 10% of any net recovery received
in the Topp litigation, a share the Atkinses subsequently refused to pay
Zeller. While awaiting resolution of the Topp litigation, Zeller extended
three additional loans for the Atkinses’ living expenses—for $50,000 (in
April 2005), $30,000 (in August 2005), and $10,000 (in January 2006). Lastly,
Zeller lent the Atkinses $100,000 to deposit on their $2.7 million house in
Carefree, Arizona, which Maverick bought in July 2006.
¶5 On June 14, 2006, both Barry and Missy executed a $15 million
settlement agreement in the Topp litigation. The Atkinses netted $6,569,114,
which they immediately deposited in an M&I Bank account held solely by
2 Throughout the litigation, we have resolved two appeals the
Atkinses and Maverick filed: 1) we ruled, inter alia, the superior court erred
by dismissing the legal malpractice claim on a motion to dismiss, see Atkins
v. Snell & Wilmer, L.L.P. (“Atkins I”), 1 CA-CV 12-0018, 2012 WL 6720355, at
*6, ¶ 27 (Ariz. App. Dec. 27, 2012) (mem. decision); and 2) we ruled the
superior court’s denial of a Rule 60(c)(4) motion and its award of sanctions
were proper. See Atkins v. Snell & Wilmer LLP (“Atkins II”), 1 CA-CV
16-0733, 2018 WL 710243, at *3, ¶¶ 13, 16 (Ariz. App. Feb. 6, 2018) (mem.
decision).
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ATKINS, et al. v. SNELL & WILMER, et al.
Decision of the Court
Missy. Missy then distributed the funds to accounts held by Maverick and
Adventure Ventures, two entities owned and operated exclusively by the
Atkinses and formed when the Atkinses received the Topp settlement.
Maverick, formed in July 2006, for the purpose of purchasing the $2.7
million house in Carefree, Arizona, was funded solely from the Topp
litigation settlement. Moreover, the Atkinses used accounts established for
Maverick and Adventure Ventures to pay for personal expenses because
Barry did not have a personal bank account between 1998 and 2010.
¶6 At the core of the Atkinses’ professional malpractice lawsuit
against Snell is their postnuptial agreement (“PNA”) executed in February
1998 in connection with their pending divorce proceedings. In March 1998,
a Florida court entered an order titled “Agreed Order Validating Post-
Nuptial Agreement” (“Agreed Order”), domesticated in Arizona in May
2015. The Atkinses never divorced and the matter was dismissed without
prejudice in June 1999. The PNA states in section 11 that “attached to this
Post Nuptial Agreement is an Agreed Order to be entered . . . at the time of
their dissolution of marriage . . . .” In August 2015, our superior court found
section 11 ambiguous in relation to the parties’ intent to effectuate the PNA
without first obtaining a decree of dissolution, a genuine issue of material
fact to be resolved by the jury.
¶7 In December 2015, the superior court granted Snell’s motion
for summary judgment on the Atkinses’ and Maverick’s claim for punitive
damages. In June 2016, the superior court granted Snell’s multiple motions
for summary judgment on the Atkinses’ and Maverick’s claims for breach
of fiduciary duty, fraud, constructive fraud, and breach of the implied
covenant of good faith and fair dealing.
¶8 Between October 4 and 26, 2016, the Atkinses’ and Maverick’s
remaining claim of legal malpractice and Snell’s claim for breach of contract
were tried to a jury. On October 20, 2016, Snell moved for a directed verdict
on Maverick’s claim, which was granted. On October 25, 2016, before the
case was submitted to the jury, the Atkinses made 12 oral motions for
directed verdict, all of which the superior court denied. The jury
unanimously found in favor of Snell on all counts.
¶9 On April 25, 2017, the superior court entered a judgment in
favor of Snell and assessed $581,483.70 in Arizona Rule of Civil Procedure
(“Rule”) 68(g) sanctions against the Atkinses and Maverick. On May 26,
2017, the Atkinses filed an amended Rule 59 motion for a new trial, joined
by Maverick, which the court denied. The Atkinses and Maverick timely
appealed. We have jurisdiction pursuant to Article 6, Section 9, of the
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ATKINS, et al. v. SNELL & WILMER, et al.
Decision of the Court
Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1) and -2101(A)(1).
DISCUSSION
¶10 The Atkinses argue the superior court erred by: 1) denying
their motions for directed verdicts; 2) denying their Rule 59 motion for a
new trial; 3) giving three jury instructions, which incorrectly stated the law
and caused them prejudice; 4) improperly granting motions for summary
judgment on their remaining claims; and 5) awarding sanctions against
them. Maverick additionally argues the superior court erred by granting a
directed verdict to Snell on Maverick’s professional malpractice claim
because it sufficiently alleged damages independent of Barry and Missy.
¶11 In our review, we defer to a superior court’s factual findings
supported by substantial evidence, “but we review any issues of law de
novo.” Sw. Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, 442, ¶ 12
(App. 2001). “[W]e view the evidence, and all reasonable inferences arising
therefrom, in the light most favorable to sustaining the judgment.” Alliance
Marana v. Groseclose, 191 Ariz. 287, 288 (App. 1997).
I. The Atkinses’ Appeal
A. This court lacks jurisdiction to review issues raised in the
Atkinses’ motions for a directed verdict but not raised in
their Rule 59 motion for a new trial.
¶12 The Atkinses argue the superior court erred by denying the
12 motions for directed verdicts because the PNA was valid, enforceable,
and improperly collaterally attacked by Snell.
¶13 A Rule 50(a) motion allows a party to request that a perceived
insufficiency of proof be cured by the reopening of a party’s case before the
case is submitted to the jury, Marquette Venture Partners II, L.P. v. Leonesio,
227 Ariz. 179, 182, ¶ 10 (App. 2011), when “a party has been fully heard on
an issue and there is no legally sufficient evidentiary basis for a reasonable
jury to find for that party on that issue,” Rule 50(a)(1); Desert Mountain
Props. Ltd. P’ship v. Liberty Mut. Fire Ins. Co., 225 Ariz. 194, 199-200, ¶ 12
(App. 2010), aff’d, 226 Ariz. 419, ¶ 2 (2011). The Rule 50(a) motion is a time
saving device. Leonesio, 227 Ariz. at 182, ¶ 10. Once the jury delivers a
verdict, however, the Rule 50(a) motion must be renewed by a Rule 50(b)
motion because “a Rule 50(a) motion is insufficient to satisfy the
jurisdictional requirement of § 12-2102(C),” which a Rule 50(b) motion
satisfies. Leonesio, 227 Ariz. at 182-83, ¶¶ 9, 13; see also A.R.S. § 12-2102(C)
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ATKINS, et al. v. SNELL & WILMER, et al.
Decision of the Court
(after a jury trial, a motion for a new trial must be made before the supreme
court shall “consider the sufficiency of the evidence to sustain the verdict
or judgment”).
¶14 After Snell presented its case to the jury, the Atkinses’
attorney raised 12 oral motions for a directed verdict pursuant to Rule 50(a),
which were all denied. On October 26, 2016, the jury rendered its verdicts.
On April 25, 2017, the superior court entered judgment for Snell. The
Atkinses filed a timely Rule 59 motion for a new trial, but they failed to
request that the court “direct the entry of judgment as a matter of law”
pursuant to Rule 50(b) as part of the Rule 59 motion, or in a separate filing,
on all or some of the issues submitted for the directed verdicts. See Rule
50(b).
¶15 Because the Atkinses failed to renew their Rule 50(a) motions
in a Rule 50(b) motion and our post-verdict review would involve
assessment of the sufficiency of the evidence, we lack jurisdiction to review
issues not raised in their Rule 59 motion. See Gibson v. Boyle, 139 Ariz. 512,
518 (App. 1983) (“A directed verdict may only be granted where there is no
evidence introduced which would justify a reasonable person in returning a
verdict for the opposing party.”) (emphasis added) (citation omitted).
B. The superior court did not abuse its discretion when it
denied the Atkinses’ Rule 59 motion for a new trial.
¶16 The Atkinses argue the superior court erroneously denied
their Rule 59 motion because 1) the court failed to abide by the Full Faith
and Credit Clause of the United States Constitution, U.S. Const. art. IV, § 1,
regarding their PNA and allowed irrelevant and prejudicial evidence
regarding the PNA to be introduced at trial; and 2) three jury instructions—
usury, postnuptial, and defamation—were “contrary to the rule of law.”
1. Substantial evidence supported the jury finding that
the Atkinses failed to inform Snell about the PNA.
¶17 The superior court may grant a new trial when “the verdict,
decision, findings of fact, or judgment is not supported by the evidence or
is contrary to law.” Rule 59(a)(1)(H). We review the denial of a Rule 59
motion based on the verdict being against the weight of evidence for an
abuse of discretion. Dawson v. Withycombe, 216 Ariz. 84, 95, ¶ 25 (App.
2007). We view the evidence in the light most favorable to sustaining the
jury verdict and will affirm if substantial evidence supports it. Warrington
v. Tempe Elementary Sch. Dist. No. 3, 197 Ariz. 68, 69, ¶ 4 (App. 1999). “The
credibility of a witness’ testimony and the weight it should be given are
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ATKINS, et al. v. SNELL & WILMER, et al.
Decision of the Court
issues particularly within the province of the jury.” In re Estate of Reinen v.
N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287, ¶ 12 (2000) (citation omitted).
¶18 At trial, the jury expressly found that the Atkinses had not
informed Snell about the PNA before the May 2009 Zeller litigation
settlement conference. In reaching its conclusion, the jury made credibility
determinations: it evaluated the direct testimony of both Barry and Missy
Atkins against the direct testimony of Snell’s attorneys Robert M. Kort and
Donald W. Bivens.
¶19 At trial, Barry testified that he informed Snell about the PNA
and about his understanding that the PNA protected Missy from being
sued for his debts. Missy testified she told Kort about the PNA and
assumed he had a copy. To the contrary, Kort testified the Atkinses never
told him about the PNA and did not provide a copy to Snell, although all
relevant documents were requested in the Snell engagement letter
formalizing Snell’s representation of the Atkinses and Maverick in the Zeller
litigation. Bivens testified that the Atkinses never told him about the PNA
and that he understood, from their actions, that the Atkinses lived in a
community property arrangement. See In re Estate of Reinen, 198 Ariz. at
287, ¶ 12.
¶20 The jury received other evidence that contradicted the
Atkinses’ testimony. In 2006, the Atkinses hired Hymson law firm to
prepare estate planning documents for them. The Atkinses did not inform
Hymson about the PNA at any time during the drafting process, although
Hymson’s intake form specifically asked them to bring any pre- or post-
nuptial agreements. The resulting document, the Atkins Family Trust
executed in 2006, identified no separate property and identified as
community property both Maverick and Adventure Ventures, the entities
holding the $6.5 million Topp settlement. The Atkinses, acting as the sole
members of Maverick and Adventure Ventures, assigned their 100%
interests in these entities to the Trust.
¶21 Additionally, the jury received evidence the Atkinses had not
provided a copy of the PNA to other former attorneys: 1) Don Hayden, who
represented Barry in the Topp litigation; 2) Ken Johnson, who also
represented Barry in the Topp litigation; 3) Blaine Hibberd, who represented
the Atkinses in negotiating the reduction of a judgment for monies owed to
American Express; and 4) Gordon Dudley, who represented the Atkinses
in a lawsuit prior to the Zeller litigation.
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ATKINS, et al. v. SNELL & WILMER, et al.
Decision of the Court
¶22 Further, the Atkinses’ expert on an attorney’s standard of
care, Robert Garrett, did not testify that the Arizona attorney standard of
care includes a duty to search for undisclosed documents by a client, such
as the PNA or the Florida judgment, or that constructive notice creates a
duty to investigate clients’ public filings in other states. Through counsel,
Missy conceded that she was not alleging a breach of the standard of care
arising out of a duty to investigate.
¶23 Because the jury determined credibility and substantial
evidence supported the jury finding that the Atkinses failed to inform Snell
about the PNA, we affirm the superior court’s denial of the motion for new
trial on this issue. See Warrington, 197 Ariz. at 69, ¶ 4.
¶24 Moreover, in their Rule 59 motion and appellate briefs, the
Atkinses raised multiple arguments pertaining to the enforceability of the
PNA. Because the jury determined that the Atkinses failed to disclose the
PNA to Snell during the firm’s representation of the Atkinses in the Zeller
litigation, their enforceability arguments are irrelevant. Therefore, we do
not review the superior court’s rulings regarding the admissibility or
validity of the PNA made before and during trial because any such error
would be harmless. Gibson, 139 Ariz. at 518.
2. None of the jury instructions given misled the jury.
¶25 In their Rule 59 motion, the Atkinses further challenged three
of the jury instructions given: 1) the usury instruction, 2) the “Postnuptial
Agreement” and “Separate Property” instruction, and 3) the defamation
instruction—contending all three were “directly contrary to the rule of law
and were harmful to [them,] requiring a new trial.”
¶26 Although we review a superior court’s denial of a motion for
new trial based on giving a jury instruction for an abuse of discretion, “we
review de novo whether jury instructions accurately state the law.” Stafford
v. Burns, 241 Ariz. 474, 478, ¶ 10 (App. 2017) (citation omitted). “A jury
instruction need not be a model instruction, as long as it does not mislead
the jury when the instructions are read together and in light of each other.”
Life Inv’rs Ins. Co. of Am. v. Horizon Res. Bethany, Ltd., 182 Ariz. 529, 532 (App.
1995). A jury instruction will warrant reversal only if it was “both harmful
to the complaining party and directly contrary to the rule of law.” Powers
v. Taser Int’l, Inc., 217 Ariz. 398, 400, ¶ 12 (App. 2007), as corrected (Jan. 4,
2008).
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Decision of the Court
a. The usury instruction accurately stated Florida
law on corrupt intent.
¶27 The Atkinses argue the usury instruction should not have
included five of the seven stated factors in determining corrupt intent to
receive more than the legally permissible interest, contrary to applicable
Florida law. We disagree.
¶28 The “corrupt intent” part of the superior court’s “usury
instruction” defined corrupt intent as “requir[ing] a corrupt purpose in the
lender’s mind to get more than [the] legal rate of interest for the money
lent.” The instruction further listed seven factors, which it directed “the
jury may consider in determining corrupt intent” (emphasis added),
stressing that “[t]he determination of corrupt intent is to be made based
upon the circumstances surrounding the entire transaction.” See Kraft v.
Mason, 668 So. 2d 679, 684 (Fla. Dist. Ct. App. 1996) (quoting Jersey Palm-
Gross, Inc. v. Paper, 658 So. 2d 531, 534 (Fla. 1995)). In Florida, the factors
that can be considered in determining corrupt intent include: the lender’s
knowledge, the total amount the lender would receive, the sophistication
of the parties, who dictated the terms of the note, whether there was duress,
whether repayment was contingent on an uncertain event, and the
bargaining position of the parties. See Kraft, 668 So. 2d at 684; Valliappan v.
Cruz, 917 So. 2d 257, 260 (Fla. Dist. Ct. App. 2005) (considering
sophistication of the parties, repayment’s dependency upon a contingency,
who wrote the terms of the loan); Jersey Palm-Gross, Inc. v. Paper, 639 So. 2d
664, 668 (Fla. Dist. Ct. App. 1994) (considering sophistication of the parties,
the lender’s knowledge of the amount of interest to be received and intent
to receive the amount charged, borrower’s financial distress and urgent
need for the loan, who dictates terms of the loan, ignorance of the usury
laws); Ross v. Whitman, 181 So. 2d 701, 703 (Fla. Dist. Ct. App. 1966) (stating
ignorance of the usury laws or reliance upon legal advice does not preclude
a finding of corrupt intent).
¶29 The Atkinses argue the superior court failed to include their
proposed instruction on contingencies. This is incorrect. One of the seven
factors of corrupt intent to be considered by the jury included an instruction
on contingencies and incorporated the substantial risk measure as
proposed by the Atkinses, which is an accurate expression of Florida law.
See Kraft, 668 So. 2d at 684 (Fla. Dist. Ct. App. 1996) (“A loan agreement is
not usurious when payment depends upon a contingency.”); Diversified
Enters., Inc. v. West, 141 So. 2d 27, 30 (Fla. Dist. Ct. App. 1962) (“When the
principal sum lent or any part of it is placed in hazard, the lender may
lawfully require, in return for the risk, as large a sum as may be reasonable,
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ATKINS, et al. v. SNELL & WILMER, et al.
Decision of the Court
provided it is done in good faith. The risk, however, must be substantial,
for a mere colorable hazard will not preclude excessive interest charges
from being usurious.”).
¶30 Accordingly, the superior court’s corrupt intent instruction
did not prejudice the Atkinses as it appropriately stated Florida law, see
Powers, 217 Ariz. at 400, ¶ 12, and, read in conjunction with the additional
permissive and the totality of the circumstances language, the instruction
gave the jury considerable discretion in finding all or some of the factors
listed, see Life Inv’rs Ins. Co. of Am., 182 Ariz. at 532; Stafford, 241 Ariz. at 478,
¶ 10.
¶31 The Atkinses further argued the jury was improperly
instructed on determining statutorily defined remedies for a Florida usury
loan. Any potential error would have been harmless because the jury found
that Zeller did not have a corrupt intent and the instruction conditioned
review of remedies upon finding corrupt intent by clear and convincing
evidence. See Gibson, 139 Ariz. at 518. Additionally, the Atkinses argue the
jury should have been instructed on novation because Snell argued Zeller
changed the terms of the loan when he forewent enforcement of the
promissory note in December 2005. Because the Atkinses do not support
their argument by citations to the record, they waived it for our review. See
ARCAP 13(a)(7)(A); State v. Carver, 160 Ariz. 167, 175 (1989). Still, the
superior court’s decision to exclude a novation instruction was within its
discretion because Snell argued, contrary to the Atkinses’ position, Zeller
understood the loan would be repaid only if Barry won at the Topp
litigation. See Pima County v. Gonzalez, 193 Ariz. 18, 20, ¶ 7 (App. 1998)
(stating the superior court cannot instruct the jury on a theory that is not
supported by the facts).
b. Any potential error by instructing the jury on
the PNA and property characterization was
harmless.
¶32 The Atkinses argue the jury should not have been instructed
on the characterization of property as separate or community because it is
a question of law for the court. The Atkinses further argue the court failed
to instruct the jury about the status of their postnuptial agreement as a final
judgment that cannot be abandoned, and it erred by failing to give an
instruction defining constructive notice.
¶33 As explained in ¶¶ 17-24, supra, substantial evidence
supported the jury’s finding that the Atkinses did not inform Snell about
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Decision of the Court
the PNA. Any error in instructing the jury on characterization of the marital
property in relation to the PNA, its validity, or abandonment, would have
been harmless, causing no prejudice to the Atkinses. See Gibson, 139 Ariz.
at 518.
¶34 Because the Atkinses’ expert testimony on the attorneys’
standard of care did not include a duty to search for an undisclosed
document or a duty to investigate their clients’ public filings in other states,
the court did not abuse its discretion by declining to instruct the jury on
constructive notice. See Stafford, 241 Ariz. at 478, ¶ 10; Gonzalez, 193 Ariz. at
20, ¶ 7 (stating we must reverse the jury verdict “when the court instructs
the jury on a theory that is not supported by the facts”).
c. The Atkinses failed to preserve appellate
review of the defamation instruction.
¶35 The Atkinses contend the court erred by instructing the jury
that Arizona, rather than Florida, law on defamation applied in this case.
¶36 To preserve an objection to jury instructions on appeal, a
party must specifically object to the superior court’s ruling “before the jury
retires to consider its verdict” by stating distinctly “what is being objected
to and the grounds for the objection.” S. Dev. Co. v. Pima Capital Mgmt. Co.,
201 Ariz. 10, 19, ¶ 20 (App. 2001) (quotations omitted); see also Rule
51(b)(3)(C), (c). Subsequently, a party must move for a new trial on the
issue to preserve it for appellate review because a review of the superior
court’s refusal to instruct the jury on a theory of the case requires a
sufficiency of the evidence determination. See A.R.S. § 12-2102(C); Rule
59(a)(1)(F) (stating grounds for a new trial include an error in giving or
refusing jury instructions); Lewis v. S. Pac. Co., 105 Ariz. 582, 583 (1970).
¶37 The Atkinses argue the court’s conclusion that Arizona law
on defamation applies was a purely legal issue. See State Farm Fire & Cas.
Ins. Co. v. Grabowski, 214 Ariz. 188, 192, ¶ 12 (App. 2007) (party challenging
legality of jury instruction, rather than whether evidence supported the
instruction, need not move for new trial to preserve issue for appellate
review). In Arizona, the “courts apply the principles of the Restatement
(Second) of Conflict of Laws (1971) to determine the controlling law for
multistate torts.” Bates v. Superior Court, 156 Ariz. 46, 48 (1988) (footnote
omitted). “In an action for defamation, the local law of the state where the
publication occurs determines the rights and liabilities of the parties . . .
unless . . . some other state has a more significant relationship under the
principles stated in § 6 to the occurrence and the parties, in which event the
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Decision of the Court
local law of the other state will be applied.” Restatement (Second) of
Conflict of Laws (“Restatement”) § 149 (1971) (emphasis added). To
determine which law controls, the court must apply the Restatement’s
choice of law principles to the facts of the case. Bates, 156 Ariz. at 49.
¶38 Because the superior court had to have engaged in a
qualitative evidentiary inquiry into the parties’ relevant contacts, as guided
by section 145 of the Restatement, its conclusion that Arizona law governs
is not a purely legal conclusion. See Grabowski, 214 Ariz. at 192, ¶ 12; see also
Bates, 156 Ariz. at 48-49 (listing relevant factors to consider in determining
contacts). Therefore, the Atkinses had to have filed a motion for a new trial
to preserve the issue for our review. See A.R.S. § 12-2102(C); Lewis, 105 Ariz.
at 583. Although the Atkinses’ attorneys objected to the defamation
instruction before the jury deliberated, the Atkinses failed to include this
issue in their Rule 59 motion for a new trial. We conclude, thus, that the
Atkinses waived this issue for our review. See Lewis, 105 Ariz. at 583.
¶39 In summary, none of the challenged jury instructions misled
the jury on the applicable law. See Keg Restaurants Ariz., Inc. v. Jones, 240
Ariz. 64, 78, ¶ 50 (App. 2016); see also Gonzalez, 193 Ariz. at 20, ¶ 7 (stating
an instruction is correct when, “considering the instructions as a whole, the
jury was properly guided in arriving at a correct decision”). The superior
court did not abuse its discretion in denying the Atkinses’ Rule 59 motion.
See Stafford, 241 Ariz. at 478, ¶ 10.
C. Motions for summary judgment were properly granted.
¶40 The Atkinses contend many of their claims were improperly
dismissed by summary judgment because evidence supported the claims.
The dismissed claims included: 1) breach of fiduciary duty, 2) constructive
fraud, 3) fraudulent concealment, 4) breach of the good faith and fair
dealing covenant implied in their contract with Snell, and 5) punitive
damages.
¶41 Entry of summary judgment is proper “if the moving party
shows that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Rule 56(a). We
determine de novo whether any genuine issue of material fact exists and
whether the superior court erred in applying the law; we will uphold the
court’s ruling if correct for any reason. Logerquist v. Danforth, 188 Ariz. 16,
18 (App. 1996). We construe the evidence and reasonable inferences in the
light most favorable to the non-moving party. Wells Fargo Bank v. Ariz.
Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund, 201 Ariz.
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474, 482, ¶ 13 (2002). “[O]ur review of the superior court’s decision is
limited to the record before the court when it considered the motion for
summary judgment.” Desert Mountain, 225 Ariz. at 215, ¶ 94.
1. The breach of fiduciary duty claim
¶42 The Atkinses assert Snell breached its fiduciary duty to them
and disputed material facts remain regarding Snell: 1) giving incomplete,
false, and misleading legal advice; 2) subordinating their interests to Snell’s
and Zeller’s interests; 3) failing to disclose to them that Snell determined
that Zeller should receive the benefit of his bargain; and 4) exposing Missy
to liability in the Zeller litigation, although “she was not a party to any Zeller
agreement.”
¶43 An attorney’s bad advice, without more, is not a breach of
fiduciary duty. See Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6,
26 (App. 1996); see also, e.g., Crist v. Loyacono, 65 So. 3d 837, 842, ¶ 15 (Miss.
2011) (“The law recognizes a clear distinction between allegations of legal
malpractice based on negligence (sometimes called a breach of the standard
of care) and those based on breach of fiduciary duty (sometimes called a
breach of the standard of conduct).”); Smith v. Mehaffy, 30 P.3d 727, 733 (Co.
App. 2000) (same). “[T]he essential elements of legal malpractice based on
breach of fiduciary duty include the following: (1) an attorney-client
relationship; (2) breach of the attorney’s fiduciary duty to the client; (3)
causation, both actual and proximate; and (4) damages suffered by the
client.“ Cecala v. Newman, 532 F.Supp. 2d 1118, 1135 (D. Ariz. 2007)
(citations omitted).
¶44 To breach a fiduciary duty, an attorney must put his or her
own interests or the interests of another before the interests of a client. See
Weil, Gotshal & Manges, LLP, v. Fashion Boutique of Short Hills, Inc., 780
N.Y.S.2d 593, 595-96 (A.D. 2004); see also Trousdale v. Henry, 261 S.W.3d 221,
227 (Tex. App. 2008) (stating a breach of fiduciary duty claim “requires
allegations of self-dealing, deception, or misrepresentations that go beyond
the mere negligence allegations in a malpractice action”) (emphasis added).
¶45 The Atkinses fail to cite to evidence in the record regarding
the relationship between Snell and Zeller that would cause Snell to seek to
benefit Zeller. Accordingly, this claim is waived. See ARCAP 13(a)(7)(A)
(requiring appellant’s brief to contain arguments with “citations of legal
authorities and appropriate references to the portions of the record on
which the appellant relies”); Carver, 160 Ariz. at 175 (“Failure to argue a
claim usually constitutes abandonment and waiver of that claim.”); Schabel
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ATKINS, et al. v. SNELL & WILMER, et al.
Decision of the Court
v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167 (App. 1996) (“Issues
not clearly raised and argued in a party’s appellate brief are waived.”).
Further, the Atkinses’ allegation that Snell put its own interests of
generating fees before the Atkinses’ interests is contrary to Snell
encouraging the Atkinses to settle the Zeller litigation, and ultimately
reaching a settlement in the Atkinses’ favor. Snell brought about other
favorable outcomes in the Zeller litigation: Snell successfully defended
against Zeller’s motion for summary judgment and won a dismissal of two
counts in the Zeller litigation. Moreover, arguing that “disputed facts
remain regarding whether the legal advice [Snell] gave [the Atkinses and
Maverick] was proper” is not a proper basis for a fiduciary duty claim, but
rather for a legal malpractice claim. See Standard Chartered PLC, 190 Ariz. at
26.
¶46 Similarly, the Atkinses do not explain how Snell breached its
fiduciary duty to Missy on her separate claim, which is based on the PNA.
If the PNA was not valid, both Barry and Missy share the same interest as
co-owners of the community property. If the PNA was valid, any loss
incurred by Missy was to be indemnified by Barry under the PNA. Further,
the Atkinses failed to argue, or demonstrate with evidence in the record,
any reason for Snell to favor Barry over Missy. The jury also found that
Snell did not provide negligent legal services to Missy based on any conflict
of interest, separate property and/or the PNA.
¶47 Although the Atkinses incorporate by reference “numerous
additional allegations of breaches of fiduciary duty,” they provide no legal
arguments regarding those allegations, waiving them on appeal. See
ARCAP 13(a)(7)(A); Carver, 160 Ariz. at 175; Schabel, 186 Ariz. at 167.
2. The constructive fraud, fraudulent concealment, and
good faith and fair dealing covenant claims
¶48 The Atkinses argue Snell misrepresented to Barry various
legal theories and made incorrect interpretations of Arizona and Florida
laws related to the Zeller litigation. They maintain that sufficient evidence
exists which supports their claim that these misrepresentations constitute a
basis for constructive fraud, fraudulent concealment, and good faith/fair
dealing claims.
¶49 “The essence or gravamen of the cause of action controls this
determination, not the form in which the cause is pleaded.” Dunlap v. City
of Phoenix, 169 Ariz. 63, 68 (App. 1990); see also Kimleco Petroleum, Inc. v.
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ATKINS, et al. v. SNELL & WILMER, et al.
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Morrison & Shelton, 91 S.W.3d 921, 924 (Tex. App. 2002) (A case arising out
of an attorney’s alleged bad legal advice or improper representation should
not “be split out into separate claims for negligence, breach of contract, or
fraud . . . .”).
¶50 Because Snell did not breach its fiduciary duty to the
Atkinses, see ¶¶ 42-47, supra, the Atkinses’ constructive fraud claim also
fails. See Lasley v. Helms, 179 Ariz. 589, 591-92 (App. 1994) (stating a
constructive fraud claim can arise only from breach of duties stemming
from a fiduciary or confidential relationship). Because the Atkinses
complain about inadequate legal advice, their claim does not sound in
fraud.
¶51 The Atkinses also point to no evidence regarding Snell’s
concealment showing “that they had not researched Florida law before
rendering advice” and that “Zeller’s law suit was likely dismissible in
Arizona.” See Local No. 395, 201 Ariz. at 496 n.22 (“Liability for fraudulent
concealment . . . lies against a party to a transaction who by concealment or
other action intentionally prevents the other from acquiring material
information.”) (citation and quotations omitted). To the contrary, the
record demonstrates that Snell openly discussed the now questioned legal
advice with the Atkinses.
¶52 Additionally, the Atkinses do not argue, or cite to any
evidence, that Snell made a specific contractual promise beyond a general
representation in the Zeller litigation or what such a promise might have
been. See Collins v. Miller & Miller, Ltd., 189 Ariz. 387, 395 (App. 1996) (An
action for breach of a general contract to provide legal services can sound
in contract “[o]nly if there is a specific promise contained in the
contract . . . and then only to the extent the claim is premised on the
nonperformance of that promise;” otherwise, “a professional malpractice
action does not ‘arise’ from contract, but rather from tort.”) (quoting Barmat
v. John &Jane Doe Partners A-D, 155 Ariz. 519, 524 (1987)).
¶53 Although Missy stated a separate claim for fraud, the
Atkinses do not specifically argue this issue in their legal briefs on appeal.
Therefore, this issue is waived on appeal. See ARCAP 13(a)(7)(A); Carver,
160 Ariz. at 175.
3. Punitive damages claim
¶54 The Atkinses argue the superior court erred by granting
Snell’s motion for summary judgment on punitive damages because the
Atkinses “cited over 54 facts supporting an award of punitive damages,”
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ATKINS, et al. v. SNELL & WILMER, et al.
Decision of the Court
demonstrating Snell’s conscious choice to subordinate their legal rights and
best interests to those of Zeller. As an initial matter, the Atkinses contend
the superior court is bound by our decision on their motion to dismiss. See
Atkins I, 2012 WL 6720355, at *8, ¶ 36 (“Atkins pled sufficient facts to
support his claim for punitive damages.”). We stress, however, that the
superior court reviews a Rule 12(b)(6) motion under a different standard of
review: all facts plead are assumed to be true. See, e.g., Cullen v. Auto-
Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008) (in reviewing the complaint’s
dismissal, we “assume the truth of the well-pled factual allegations and
indulge all reasonable inferences therefrom”). On a Rule 56 motion,
however, the court reviews the facts in a light most favorable to the non-
moving party and considers whether the parties presented a “genuine
dispute as to any material fact.” See Rule 56(a); Orme Sch. v. Reeves, 166 Ariz.
301, 310 (1990).
¶55 Because punitive damages are “only to be awarded in the
most egregious of cases, where there is reprehensible conduct combined
with an evil mind over and above that required for commission of a tort,”
the Atkinses must show by clear and convincing evidence “an ‘evil mind’
and aggravated and outrageous conduct.” Linthicum v. Nationwide Life Ins.
Co., 150 Ariz. 326, 331-32 (1986). Such conduct is to involve “some element
of outrage similar to that usually found in crime.” Rawlings v. Apodaca, 151
Ariz. 149, 162 (1986).
¶56 There is no evidence in the record of a relationship between
Snell and Zeller that would cause Snell to seek to benefit Zeller. It further
includes no evidence showing the “evil mind” requirement for punitive
damages. In a 2013 deposition, Kort testified that Snell’s analysis regarding
fairness and equity was rooted in its concern for the strength and likelihood
of success for the Atkinses. In response to a question about his discussion
with Barry of the “pros and cons of a jury trial versus a bench trial,” Kort
stated he repeatedly disclosed his opinion to Barry and further explained:
[T]he fact is that Mr. Zeller provided repeated loans to Mr.
and Mrs. Atkins for a variety of reasons including buying
their house. And they did not repay several of those loans.
And at least this loan $220,000 allowed essentially them to
keep the law firm of their choice and go exact a very beneficial
settlement, six and a half million dollars or so, that Barry and
Missy netted. To try to argue because of this Florida statute
they weren’t obligated to repay Mr. Zeller under the contract
that Barry prepared, that’s a tough argument . . . to make to
any trier of fact, whether it be a judge or a jury.
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ATKINS, et al. v. SNELL & WILMER, et al.
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¶57 Bivens testified similarly that, during a telephone call with
Mr. Hayden, Barry, and Kort, they realized the advantage the Florida usury
statute provided as leverage in the pleadings and negotiations. Bivens also
agreed about the difficulty of arguing, whether to a judge or a jury, that
Zeller’s $220,000 loan, which resulted in Barry receiving $6.5 million
dollars, did not need to be repaid. As the superior court recognized, “[t]his
is a negligence case about strategy; not about punitive damages.”
¶58 The superior court properly granted Snell’s motions for
summary judgment.
D. The superior court acted within its discretion when it
awarded sanctions and fees to Snell.
¶59 The Atkinses argue that their requests for the superior court
to accord the PNA full faith and credit were proper because the PNA was
entitled to this treatment as a matter of law and awarding attorneys’ fees
and costs “related to this issue” was error. Maverick made no separate
argument regarding this claim. We review the superior court’s rulings on
sanctions for abuse of discretion. Cal X-Tra v. W.V.S.V. Holdings, L.L.C., 229
Ariz. 377, 410, ¶ 113 (App. 2012).
¶60 The superior court granted Snell the sanctions it requested
against the Atkinses for their efforts to prevent discovery and motion
practice related to the PNA. The court also held Maverick jointly and
severally liable with the Atkinses for Snell’s reasonable fees incurred in
responding to any motions relating to the enforceability of the PNA signed
by Maverick’s attorney.
¶61 Because the Atkinses did not present any argument regarding
discovery, they waived challenging any resulting award on appeal. See City
of Phoenix v. Fields, 219 Ariz. 568, 573, ¶ 23 (2009) (citation omitted)
(“Generally, we do not address arguments raised in the trial court but not
in the court of appeals.”). Because Maverick did not challenge the issue of
sanctions on appeal, it also waived the issue. See Schabel, 186 Ariz. at 167.
¶62 The Atkinses argue the sanctions based on the PNA were
awarded in error. We disagree. In August 2015, the superior court found
two material issues of fact requiring a jury determination, even though the
PNA had been reduced to a judgment. First, the Atkinses were not
divorced at that time and it was unclear whether they intended the
judgment to become effective without first obtaining a decree of dissolution
of their marriage. Second, even if the PNA, reduced to a judgment, went
into effect, it was ambiguous whether the Atkinses abandoned it, making
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ATKINS, et al. v. SNELL & WILMER, et al.
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the PNA unenforceable. The court also correctly noted that the subsequent
domestication would not necessarily turn an unenforceable judgment into
an enforceable one.
¶63 Considering the Atkinses filed numerous motions subsequent
to the superior court’s August 2015 ruling, we conclude the superior court
did not abuse its discretion in granting sanctions. See Cal X-Tra, 229 Ariz.
at 410, ¶ 113.
II. The Appeal Filed by Maverick
¶64 Maverick argues the superior court erred by granting a
directed verdict to Snell on Maverick’s claim for legal malpractice because:
1) Maverick provided sufficient expert testimony that Snell “gave Maverick
negligent advice”; and 2) Maverick sufficiently alleged damages
independent of Barry and Missy to prevail on its claim.
¶65 “[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, 29, ¶ 12 (2004). Actual injury or
damages must be “ascertainable, and not speculative or contingent.” Id. at
¶ 13; Tullar v. Walter L. Henderson, P.C., 168 Ariz. 577, 579 (App. 1991)
(concluding “ascertainable and nonspeculative damages” are required
before a cause of action for professional negligence accrues). A directed
verdict is properly granted when a party fails to establish damages as an
essential element of its claim. See Mammas v. Oro Valley Townhouses, Inc.,
131 Ariz. 121, 124 (App. 1981).
¶66 At trial, Mitchell Carter, an expert witness on damages,
testified only to damages sustained by Barry; he did not opine on damages
separately suffered by Maverick. Maverick’s attorney did not ask Carter
any questions. Maverick also presented no evidence it paid Zeller, or Snell,
although it argues it suffered damages due to its consent to the settlement
agreement executed in the Zeller litigation, “culminat[ing] in the loss of its
house.” The IRS, however, held a senior lien on the house worth in excess
of $1.5 million for non-payment of federal income tax assessed in 2006.
Further, Barry and Missy Atkins signed the settlement agreement
individually and on behalf of Maverick as its members. Substantial
evidence supported finding that Maverick was the “alter ego” of Barry and
Missy because the financial expert witness, David Perry, testified to
substantial commingling of assets, no separate business activity by
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ATKINS, et al. v. SNELL & WILMER, et al.
Decision of the Court
Maverick, no arm’s length transactions, Maverick’s paying of the Atkinses’
personal expenses, and lack of corporate formalities.
¶67 The superior court, thus, properly granted a directed verdict
in favor of Snell because Maverick failed to establish damages separate
from the Atkinses.3
¶68 Any evidentiary rulings unrelated to damages are mooted by
Maverick’s inability to prove the damages element of its claim. See Arpaio
v. Maricopa Cty. Bd. of Supervisors, 225 Ariz. 358, 361, ¶ 7 (App. 2010)
(citation omitted) (“A case becomes moot when an event occurs which
would cause the outcome of the appeal to have no practical effect on the
parties.”).
¶69 Because it is not necessary to our ruling, we decline to reach
Maverick’s other arguments. See State v. Hardwick, 183 Ariz. 649, 657 (App.
1995) (declining to reach the remaining issues once the court found grounds
for resolution,); State v. Boteo-Flores, 230 Ariz. 551, 553, ¶ 7 (App. 2012)
(stating an appellate court will uphold the superior court’s ruling if correct
for any reason).
III. An Appellate Challenge to Snell’s Counterclaim was Waived
¶70 In their opening brief, Maverick made no legal argument as
to Snell’s counterclaim, and the Atkinses merely stated: “The jury’s verdict
on the counterclaim should be reversed because Defendants would not be
entitled to compensation for breaching their fiduciary duties to Appellants
by rendering deficient, incomplete, false and misleading legal advice
causing damages to Appellants.” This statement lacks reference to legal
authority and the record. See ARCAP 13(a)(7)(A). The issue is, therefore,
waived. See Carver, 160 Ariz. at 175; Schabel, 186 Ariz. at 167.
IV. Attorneys’ Fees and Costs on Appeal
¶71 Snell and Maverick request we grant an award of their
reasonable attorneys’ fees and costs incurred on appeal under A.R.S.
§ 12-349. Snell additionally raises Rule 11 and A.R.S. § 12-341 as a ground
3 On appeal, Maverick does not offer any separate argument that it
should be granted a new trial, although it joined the Atkinses’ Rule 59
motion. Because the Atkinses do not argue Maverick suffered damages
distinct from the Atkinses as a basis for a new trial, Maverick waived any
such argument on appeal. See ARCAP 13(a)(7)(A); Carver, 160 Ariz. at 175;
Schabel, 186 Ariz. at 167.
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ATKINS, et al. v. SNELL & WILMER, et al.
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for awarding its attorneys’ fees against Maverick. Maverick, however, did
not raise issues sounding in contract. In the exercise of our discretion, we
decline to award either party their attorneys’ fees on appeal. We award
Snell its costs on appeal upon compliance with ARCAP 21.
CONCLUSION
¶72 For the reasons stated above, we affirm the superior court’s
judgment in favor of Snell.
AMY M. WOOD • Clerk of the Court
FILED: AA
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