Hope v. Renaud Cook ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND
MAYBE BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
SANDRA J. HOPE, a single person,
Plaintiff/Appellant,
v.
RENAUD COOK DRURY MESAROS, P.A., an Arizona professional
association corporation; DAVID E. MCDOWELL, JAMES L. BLAIR,
WILLIAM W. DRURY, JR., RICHARD H. GOLDBERG, CAROL M.
ROMANO, BARRY P. HOGAN, MARK E. GOVE, and JOHN A. KLECAN;
CAMPANA, VIEH & LOEB, PLC, a professional limited liability company;
DONALD O. LOEB; THUR & O’SULLIVAN, P.C., a professional
corporation; CALVIN THUR, Defendants/Appellees.
No. 1 CA-CV 13-0641
FILED 1-15-2015
Appeal from the Superior Court in Maricopa County
No. CV2012-070090
The Honorable Michael D. Gordon, Judge
AFFIRMED
COUNSEL
Sandra J. Hope, Peoria
Plaintiff/Appellant Pro Se
Broening Oberg Woods & Wilson, P.C., Phoenix
By Robert T. Sullivan, Brian W. Purcell, Jathan P. McLaughlin
Attorneys for Renaud Cook Drury Mesaros, P.A.
Dickinson Wright, PLLC, Phoenix
By Jonathan S. Batchelor
Attorneys for Campana, Vieh & Loeb, PLC, and Donald Loeb
Thur & O’Sullivan, P.C., Calvin C. Thur, Phoenix
By Calvin C. Thur
Attorney for Thur & O’Sullivan, P.C.
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.
H O W E, Judge:
¶1 Sandra J. Hope appeals the trial court’s orders (1) granting
summary judgment in favor of Renaud Cook Drury & Mesaros, P.A.
(“RCDM”); David E. McDowell, James L. Blair, William W. Drury, Jr.,
Richard H. Goldberg, Carol M. Romano, Barry P. Hogan, Mark E. Gove,
and John A. Klecan; Campana, Vieh & Loeb, PLC (“CVL”); and Donald O.
Loeb; (2) dismissing Thur & O’Sullivan, P.C. (“TO”) and Calvin C. Thur;
and (3) striking her proposed legal malpractice standard of care expert
witness. We find no error and therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In July 2006, Hope contacted RCDM seeking representation
for a malpractice claim against two dentists. Hope alleged that in 1996, a
dentist improperly performed a root canal. As a result of the botched root
canal, another dentist had to put a permanent crown on that tooth. Hope
alleged, however, that the second dentist left a cotton pellet under the tooth,
which she did not discover until a third dentist found it in 2006 while
replacing the crown. Hope alleged that the cotton pellet caused her ear pain,
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headaches, anxiety/stress, interstitial cystitis, a urinary tract infection, a
clostridium difficile (“C-diff”) infection, and bad breath/taste.
¶3 In February 2008, RCDM filed a complaint on behalf of Hope,
alleging malpractice on the part of the two dentists, their spouses, their
business entity and business partner, and “other healthcare professionals
who rendered health care services to Hope . . . whose true names are
unknown to Hope at present.” A few months later, RCDM notified Hope
that it was withdrawing as her counsel because it was unable to find an
expert to testify that the alleged dental malpractice caused Hope’s injuries.
The trial court granted RCDM’s motion to withdraw.
¶4 Hope then went to Loeb and CVL. CVL agreed to represent
Hope and filed a notice of appearance. During the representation, Loeb
approached Thur for funds to pay legal costs associated with Hope’s case
and for strategic advice. Although Loeb and Thur spoke about the
possibility of Thur’s becoming cocounsel, they never agreed to jointly
represent Hope and never prepared or signed any agreement to act as
cocounsel.
¶5 CVL found Dr. Joseph Silva to testify as the causation expert.
At trial, Dr. Silva testified that Hope’s injuries, excluding the bad
breath/taste, could have been caused by conditions unrelated to the alleged
dental malpractice. His review of Hope’s dental records only revealed one
instance where she complained of bad breath/taste.
¶6 After Hope rested her case-in-chief, the defendants moved for
judgment as a matter of law pursuant to Arizona Rule of Civil Procedure
50. The trial court granted the motion for claims made for ear pain,
headaches, anxiety/stress, interstitial cystitis, urinary tract infection, and C-
diff, but denied it for claims made for bad breath/taste, intermittent fatigue,
fevers, sweats, and general malaise. For the remaining issues, the jury
returned a full defense verdict. Hope moved for a new trial, but it was
denied. CVL subsequently moved to withdraw as Hope’s counsel without
consent, which was granted.
¶7 In July 2012, Hope filed a pro se legal malpractice suit against
her former attorneys and their firms, alleging that the parties engaged in
various acts or omissions to act that adversely affected her dental
malpractice suit. After Hope served the defendants, the trial court quashed
Hope’s service of attorney Gove of RCDM. However, she later successfully
served Gove, and he participated in the defense.
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¶8 The complaint also listed Thur and TO as defendants, alleging
that they impermissibly acted as undisclosed cocounsel with CVL. They
moved for dismissal pursuant to Arizona Rule of Civil Procedure 12(b)(6).
The trial court granted the motion and dismissed the claims against Thur
and TO with prejudice because Hope’s complaint failed to state a cause of
action against them and amending the complaint would not cure the defect.
Hope moved to vacate the order, but it was denied.
¶9 Hope later mailed her first set of requests for admissions to
Loeb, but not his attorney. Loeb failed to timely respond to the request.
Loeb’s counsel moved for leave to amend the responses, stating that Loeb’s
failure to timely respond “was due to simple oversight” and no party
would be prejudiced if he was allowed to amend his responses because
discovery had not been completed and trial had not been set. The trial court
granted the motion. Hope’s proposed attorney expert witness, Michael
Bynane, was subsequently disqualified to testify about the standard of care
of attorneys in Arizona. Hope did not find a replacement or disclose any
other standard of care expert.
¶10 The remaining defendants then moved for summary
judgment, and the trial court granted the motions. The court found that “no
genuine issues of material fact exist as to the underling claim for legal
malpractice, which stems from the ‘case within a case’ action brought on
behalf of Plaintiff.” The court also found no evidence that all of Hope’s
medical ailments resulted from the cotton pellet being left in her mouth or
that defendants failed to properly assert her claim before the jury. It noted
that in the original suit, the trial court dismissed all but two theories of
potential liability and the jury returned a full defense verdict. The court also
noted that the legal rationale for its ruling was set forth in the defendants’
motions.
¶11 On September 19, 2013, Hope moved for reconsideration and
for findings of fact and conclusions of law and filed a notice of appeal.1
1 In February 2013, the trial court ordered Hope to post $5,000 bond
as a security for costs pursuant to Arizona Rule of Civil Procedure 67(d). In
response to RCDM’s motion regarding the bond, we ordered released
$1,387.90 to its counsel. Hope then moved to exonerate the remaining bond
before the trial court, but that court declined to rule on the motion, stating
that it no longer had jurisdiction. Hope thus moved for us to either order
the trial court to exonerate the bond or remand the case to that court. We
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DISCUSSION
1. Motion for Summary Judgment
¶12 Hope argues that the trial court erred by granting summary
judgment because the defendants failed to properly bring her claim before
the jury. Summary judgment may be granted when no genuine issue as to
any material fact exists, and the moving party is entitled to judgment as a
matter of law. Ariz. R. Civ. P. 56(c)(1). We review a summary judgment
order de novo. Cannon v. Hirsch Law Office, P.C., 222 Ariz. 171, 174 ¶ 7, 213
P.3d 320, 323 (App. 2009). We view the evidence and reasonable inferences
“in the light most favorable to the party opposing the motion.” Wells Fargo
Bank v. Ariz. Laborers Local No. 395 Pension Trust Fund, 201 Ariz. 474, 482 ¶
13, 38 P.3d 12, 20 (2002).
¶13 In Arizona, a plaintiff asserting legal malpractice must prove
that a duty existed, the duty was breached, the defendant’s negligence
actually and proximately caused the injury, and that the plaintiff suffered
damages. Glaze v. Larsen, 207 Ariz. 26, 29 ¶ 12, 83 P.3d 26, 29 (2004) (internal
quotation marks and citation omitted). Moreover, when complaining that
the attorney was negligent in a medical malpractice case, “[a] necessary part
of the legal malpractice plaintiff’s burden of proof of proximate cause is to
establish that ‘but for’ the attorney’s negligence, [the plaintiff] would have
been successful in the prosecution or defense of the original suit.” Id. “[T]he
plaintiff must convince the trier of fact in the malpractice suit that a
reasonable judge or jury would have decided in [his or her] favor in the
underlying action but for the attorney’s negligence”—commonly referred
to as the case-within-the-case doctrine. Collins v. Miller & Miller, Ltd., 189
Ariz. 387, 396, 943 P.2d 747, 756 (App. 1996).
¶14 Because the original suit was a dental malpractice action, to
prove the case-within-a-case, a plaintiff had to demonstrate through expert
medical testimony that: (1) the health care provider failed to exercise the
degree of care, skill, and learning expected of a reasonable, prudent health
care provider in the profession or class to which he or she belongs acting in
the same or similar circumstances; and (2) the failure was a proximate cause
of the injury. See A.R.S. § 12–563; Barrett v. Harris, 207 Ariz. 374, 378, 380 ¶¶
12, 20, 86 P.3d 954, 958, 960 (App. 2004) (providing that expert medical
testimony is required to establish whether a causal connection between an
denied that motion and also another motion to remand this appeal to allow
the trial court to rule on other motions. We also directed the trial court to
rule on the pending motions to exonerate the bond, which it did.
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act and the ultimate injury exists and whether a physician breaches a duty
by falling below the accepted standard of care).
¶15 Here, Hope asserts that her attorneys were negligent in the
prosecution of the original suit. During that trial, the trial court dismissed
all but two theories of potential liability at the close of Hope’s case because
it found insufficient evidence “for a reasonable jury to find for plaintiff as
to any claims made for ear pain, headaches, anxiety/stress, interstitial
cystitis, urinary tract infection, or C-diff.”
¶16 Hope has two problems on appeal. First, in the absence of
claiming that her attorney negligently hired her trial expert, which she did
not allege, her expert testified in the original suit and she did not appeal
that trial court’s rulings or resulting verdict. Hope’s causation expert
testified that her injuries, excluding the bad breath/taste, could have been
caused by conditions unrelated to the alleged dental malpractice.
Moreover, the jury subsequently determined that the facts did not support
liability on the remaining theories—bad breath/taste and intermittent
fatigue, fevers, sweats, and general malaise—and found for the defendants.
Therefore, the evidence presented in this case does not create a genuine
issue of material fact requiring a jury to hear that but for her attorneys’
negligence, she would have prevailed in the original suit. See Collins, 189
Ariz. at 396, 943 P.2d at 756.
¶17 Second, Hope failed to demonstrate that her attorneys’
actions in the original suit fell below the applicable of standard of care. See
id. at 394, 943 P.2d at 754. Although she hired Bynane as her standard of
care expert, the trial court found that he was not qualified to testify as to the
standard of care for attorneys in Arizona, and she did not disclose another
expert. See Riedisser v. Nelson, 111 Ariz. 542, 544, 534 P.2d 1052, 1054 (1975)
(providing that expert testimony is required in professional negligence
cases, unless the negligence is so grossly apparent that a layperson would
have no difficulty in recognizing it). Thus, without a standard of care
expert, no genuine issue of material fact exists about whether the
defendants’ representation fell below the applicable standard of care that
would have precluded summary judgment. See Orme School v. Reeves, 166
Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). Consequently, the trial court did
not err in granting the defendants’ motions for summary judgment.
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2. Motion for Findings of Fact and Conclusions of Law
¶18 Hope argues that the trial court erred by not ruling on her
motion for findings of fact and conclusions of law. But that court was
divested of jurisdiction to rule on her motion because she filed her notice of
appeal on the same day. See Southwest Gas Corp. v. Irwin ex rel. Cnty. of
Cochise, 229 Ariz. 198, 201 ¶ 8, 273 P.3d 650, 653 (App. 2012) (“When a party
files a notice of appeal from a final judgment, it generally divests the trial
court of jurisdiction to proceed except in furtherance of the appeal.”)
(internal quotation marks and citation omitted).
¶19 Even if the trial court had jurisdiction, however, Rule 56 does
not require the court to issue findings of fact and conclusions of law. Rule
56(a) provides that a “court should state on the record the reasons for
granting or denying the [summary judgment] request.” Ariz. R. Civ. P.
56(a). The rule also recognizes that “[f]indings of fact and conclusions of
law are unnecessary on decisions of motion under” Rule 56. Id. Here, the
ruling stated why the trial court was granting the motion for summary
judgment. Consequently, even if the court could have ruled on the motion,
the court did not err by not making findings of fact and conclusions of law.
3. Motion for Reconsideration
¶20 Hope argues that the trial court erred by not ruling on her
motion for reconsideration. Like her motion for findings of fact and
conclusions of law, the trial court was divested of jurisdiction to rule on this
motion after Hope filed her notice of appeal. See City of Phoenix v. Leroy’s
Liquors, Inc., 177 Ariz. 375, 381, 868 P.2d 958, 964 (App. 1993) (providing
that when a party files a notice of appeal before the trial court had a chance
to rule on the motion for reconsideration, the court is divested of
jurisdiction); Southwest Gas, 229 Ariz. at 201 ¶ 8, 273 P.3d at 653. Because
Hope filed her notice of appeal and her motion for reconsideration on the
same day, the trial court did not have the opportunity to rule on the motion
for reconsideration. The notice of appeal had divested the court of
jurisdiction to resolve that motion. Consequently, the trial court did not err
by not ruling on Hope’s motion for reconsideration.
4. Motion to Dismiss
¶21 Hope argues that the trial court erred in dismissing Thur and
TO because “they had their hands literally in every pleading and dealt with
every issue of the case” all the way to the jury. We review a dismissal
pursuant to Rule 12(b)(6) de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355
¶ 7, 284 P.3d 863, 866 (2012). In our review, we accept the complaint’s
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allegations as true and resolve all inferences in the plaintiff’s favor.
Southwest Non-Profit Housing Corp. v. Nowak, 234 Ariz. 387, 390–91 ¶ 10, 322
P.3d 204, 207–08 (App. 2014). We will uphold a dismissal when it is certain
that the plaintiff could not prove any set of facts entitling him or her to
relief. Wallace v. Casa Grande Union High School Dist. No. 82 Bd. of Governors,
184 Ariz. 419, 424, 909 P.2d 486, 491 (App. 1995).
¶22 A plaintiff asserting legal malpractice must allege, among
other elements, that the defendant owed her a duty of care. See Glaze, 207
Ariz. at 29 ¶ 12, 83 P.3d at 29. An attorney-client relationship must exist,
and one “exists when a person has manifested to a lawyer [his or her] intent
that the lawyer provide [him or her] with legal services and the lawyer has
manifested consent to do so.” Simms v. Rayes, 234 Ariz. 47, 50 ¶ 11, 316 P.3d
1235, 1238 (App. 2014). A purported client’s belief that the lawyer was his
or her attorney is crucial to the existence of an attorney-client relationship,
so long as that belief is objectively reasonable. Paradigm Ins. Co. v. Langerman
Law Offices, P.A., 200 Ariz. 146, 149 ¶ 10, 24 P.3d 593, 596 (2011). We review
questions of law de novo. Phoenix Newspaper, Inc. v. Dep’t of Corrections, 188
Ariz. 237, 244, 934 P.2d 801, 808 (App. 1997).
¶23 Here, although we accept the complaint’s allegations as true,
nothing in the record shows that Hope manifested to Thur or TO her intent
that they provide legal services to her or that Thur or TO manifested any
consent to do so. Hope’s complaint alleged that Thur and Loeb entered into
a fee agreement where Thur would receive 25% of Loeb’s 40% contingent
fee on Hope’s dental malpractice suit and that Thur and TO prepared
motions, the pretrial statement, and a settlement memorandum for the
dental malpractice suit. But the complaint also states that “Thur has never
personally met with Plaintiff ‘Hope,’” neither Thur nor anyone from his
firm has ever spoken with her, and she never consented to authorizing Thur
or TO “to work on any aspect or level on her legal matter.” Moreover, Hope
“never consented to waive her attorney client relationship with Donald O.
Loeb Esq.” to allow Thur to discuss the case, to participate in drafting the
pleadings, and to be part of a fee splitting relationship. Thus, no attorney-
client relationship existed between Hope and Thur or TO, and as a result,
neither Thur nor TO owed a duty to Hope. Consequently, the trial court did
not err by dismissing Thur and TO from the legal malpractice suit.
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5. Motion to Strike
¶24 Hope argues that the trial court erred by striking her standard
of care expert. Section 12–2602 provides that in an action against a licensed
professional where expert opinion testimony is necessary, the plaintiff must
submit an affidavit containing (1) the expert’s qualifications to express an
opinion on the licensed professional’s standard of care; (2) the factual basis
for each claim; (3) the licensed professional’s acts, errors, or omissions that
the expert considers to be a violation of the standard of care resulting in
liability; and (4) the manner in which the licensed professional’s acts, errors,
or omissions caused or contributed to the damages or other relief sought by
the plaintiff. A.R.S. § 12–2602(B). We review the decision to admit or
exclude evidence for an abuse of discretion. State v. Grell, 212 Ariz. 516, 528
¶ 55, 135 P.3d 696, 708 (2006). The trial court has broad discretion in
determining the admissibility of expert opinion evidence. Mohave Elec. Co-
op., Inc. v. Byers, 189 Ariz. 292, 301, 942 P.2d 451, 460 (App. 1997).
¶25 Here, Hope’s proposed expert had a legal career in “complex
commercial and maritime litigation, as well as transactions,” and his
“professional roots are in Admiralty and maritime law.” Bynane’s affidavit
noted that he “handled” one legal malpractice cause resulting from an
underlying orthopedic medical malpractice claim that was settled. His
affidavit also stated that he “reviewed several potential cases involving
claims of legal and medical malpractice.”
¶26 Bynane’s experience as a maritime lawyer, the one legal
malpractice case that settled, and his review of other potential cases is
insufficient to qualify him as a legal malpractice expert. Moreover, although
Bynane noted that he familiarized himself with “the standard of care of
lawyers, and local Rules of Civil Procedure, in Arizona,” his study was
insufficient to demonstrate that he has the required knowledge, skill,
experience, training, or education necessary to qualify him as an expert
regarding the standard of care of attorneys in Arizona handling a dental
malpractice suit. Consequently, we do not find that the trial court abused
its discretion by precluding Bynane from testifying as an expert.
6. Motions for Leave to Amend Responses, to Post Security for Costs,
and to Quash Service of Process
¶27 Hope argues that the trial court erred in granting Loeb and
CVL’s motion for leave to amend responses, RCDM’s motion for her to post
security for costs, and Gove’s motion to quash service of process. All three
issues are moot because resolving them would not affect the outcome of
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this appeal. See Arpaio v. Maricopa Cnty. Bd. of Supervisors, 225 Ariz. 358, 361
¶ 7, 238 P.3d 626, 629 (App. 2010) (providing that a case “becomes moot
when an event occurs which would cause the outcome of the appeal to have
no practical effect on the parties”). Consequently, and because they are not
matters of public importance or those capable of repetition yet evading
review, we will not exercise our discretion to review those issues. See Prutch
v. Town of Quartzsite, 231 Ariz. 431, 435 ¶ 10, 296 P.3d 94, 98 (App. 2013)
(providing that the court of appeals will decline to address moot issues as
a policy of judicial restraint, unless the matters are “of public importance or
those capable of repetition yet evading review”).
CONCLUSION
¶28 For the foregoing reasons, we affirm.
:ama
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