Wallschlaeger v. the Hogle Firm ( 2023 )


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  •                       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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    DAWN WALLSCHLAEGER, Plaintiff/Appellant,
    v.
    THE HOGLE FIRM, PLC, et al., Defendants/Appellees.
    No. 1 CA-CV 22-0511
    FILED 4-18-2023
    Appeal from the Superior Court in Maricopa County
    No. CV2021-010314
    The Honorable Sally Schneider Duncan, Judge, Retired
    AFFIRMED
    COUNSEL
    Law Offices of Stewart F. Gross, PLLC, Phoenix
    By Stewart F. Gross
    Counsel for Plaintiff/Appellant
    Bueler Jones, LLP, Chandler
    By Gordon S. Bueler
    Counsel for Defendants/Appellees
    WALLSCHLAEGER v. THE HOGLE FIRM, et al.
    Decision of the Court
    MEMORANDUM DECISION
    Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
    Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.
    K I L E Y, Judge:
    ¶1            Dawn Wallschlaeger appeals from the dismissal of her
    professional negligence claim against Michael J. Ward and the Law Offices
    of Michael J. Ward, PLC (collectively, “Ward”) arising out of Ward’s
    representation of her in a prior suit (the “Underlying Case”) against the
    Mesa Public School District (the “District”). Because Wallschlaeger cannot,
    as a matter of law, establish that Ward’s actions caused or contributed to
    the unsuccessful outcome of the Underlying Case, we hold that the superior
    court correctly dismissed her professional negligence claim.
    FACTS AND PROCEDURAL HISTORY
    ¶2            The allegations in the operative complaint, accepted as true
    for purposes of this appeal, see Blankenbaker v. Marks, 
    231 Ariz. 575
    , 577, ¶ 6
    (App. 2013), establish that in September 2018, Wallschlaeger fell and was
    injured while on the premises of one of the District’s schools. Shortly
    thereafter, Wallschlaeger retained the Hogle Firm, PLC (“Hogle”) to
    represent her in a personal injury action against the District. Hogle
    prepared a notice of claim and served it on a District employee, Karen
    Turner, on March 4, 2019. When Turner notified Hogle that she was not
    authorized to accept service on the District’s behalf, Hogle took no action
    to cure the defect by serving the appropriate District official.
    ¶3           Two months later, Hogle filed the Underlying Case. In its
    answer, the District denied liability and asserted, as an affirmative defense,
    that Wallschlaeger “did not comply with Arizona’s Notice of Claim
    statute.”
    ¶4            Several months later, in December 2019 or January 2020,
    Ward associated with Hogle as co-counsel for Wallschlaeger. At
    approximately the same time, the superior court administration issued an
    order that the Underlying Case would be dismissed without further notice
    on or after February 24, 2020 unless one of five events occurred, one of
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    WALLSCHLAEGER v. THE HOGLE FIRM, et al.
    Decision of the Court
    which was the parties’ filing of a Joint Report and Proposed Scheduling
    Order.
    ¶5           The Underlying Case was administratively dismissed after
    the February 24, 2020 deadline passed with none of the five events having
    occurred. A few days later, Ward sent an email to the District’s counsel
    admitting responsibility for the failure to file the parties’ Joint Report and
    Proposed Scheduling Order by the deadline.
    ¶6           Ward and Hogle filed a motion to reinstate the Underlying
    Case. The superior court denied the motion, holding that, while “a credible
    argument could be made that at the outset [Wallschlaeger] had a factually
    meritorious case,” her failure to comply with A.R.S. § 12-821.01 rendered
    the Underlying Case “meritless.”
    ¶7             Wallschlaeger then brought this action for professional
    negligence against Hogle and Ward. Ward moved to dismiss on the
    grounds that Wallschlaeger “cannot establish that Ward caused her any
    damages” because the Underlying Case “was fatally compromised months
    before Ward was ever involved.” Ward explained that the superior court
    denied the motion to reinstate the Underlying Case due to Hogle’s failure
    to serve the notice of claim on the District in the manner prescribed in A.R.S.
    § 12-821.01, a failure that predated Ward’s involvement in the case.
    ¶8           In response, Wallschlaeger asserted that the Underlying Case
    was dismissed due to Ward’s failure to file timely the Joint Report and
    Proposed Scheduling Order. Hogle’s prior noncompliance with A.R.S. § 12-
    821.01 was irrelevant, she asserted, because, “[b]y all objective
    appearances,” the District “was going to waive the [noncompliance]
    defense” anyway.
    ¶9            The superior court granted Ward’s motion to dismiss and
    entered final judgment pursuant to Arizona Rule of Civil Procedure
    (“Rule”) 54(b). Wallschlaeger now appeals. We have jurisdiction under
    A.R.S. § 12-2101(A)(1).
    DISCUSSION
    ¶10           Dismissal under Rule 12(b)(6) is only appropriate if, as a
    matter of law, the plaintiff “would not be entitled to relief under any
    interpretation of the facts susceptible to proof.” Coleman v. City of Mesa, 
    230 Ariz. 352
    , 356, ¶ 8 (2012).
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    WALLSCHLAEGER v. THE HOGLE FIRM, et al.
    Decision of the Court
    ¶11           To establish a claim for professional negligence against an
    attorney, the plaintiff must prove
    (1) the existence of an attorney-client relationship which
    imposes a duty on the attorney to exercise that degree of
    skill, care, and knowledge commonly exercised by
    members of the profession, (2) breach of that duty, (3) that
    such negligence was a proximate cause of resulting injury,
    and (4) the fact and extent of the injury.
    Phillips v. Clancy, 
    152 Ariz. 415
    , 418 (App. 1986). Causation is thus an
    essential element of a legal malpractice claim. See 
    id.
    ¶12            “A defendant’s acts are the proximate cause of a plaintiff’s
    injury only if they are a substantial factor in bringing about the harm.”
    Grafitti-Valenzuela ex rel. Grafitti v. City of Phoenix, 
    216 Ariz. 454
    , 460, ¶ 21
    (App. 2007). To establish that an attorney’s negligence in handling litigation
    was a proximate cause of injury, the plaintiff must prove that he or she
    would have prevailed in the underlying suit “but for the attorney’s
    negligence.” Phillips, 152 Ariz. at 418. Hence, causation is necessarily
    lacking if the plaintiff had already sustained the complained-of injury
    before the defendant attorney committed a negligent act. See Salica v. Tucson
    Heart Hosp.—Carondelet, L.L.C., 
    224 Ariz. 414
    , 418, ¶ 13 (App. 2010) (“A
    ‘proximate cause’ is defined as that which, in a natural and continuous
    sequence, unbroken by any efficient intervening cause, produces an injury,
    and without which the injury would not have occurred.”) (cleaned up); see
    also Restatement (Second) of Torts § 432(1) (1965) (stating negligence “is not
    a substantial factor in bringing about harm to another if the harm would
    have been sustained even if the actor had not been negligent”).
    ¶13            Under A.R.S. § 12-821.01, “no action may be maintained when
    a plaintiff has failed to file a timely, sufficient notice of claim, including all
    elements required by law, with a person authorized . . . to accept service for the
    defendant agency.” State Comp. Fund v. Superior Ct., 
    190 Ariz. 371
    , 376 (App.
    1997) (emphasis added). Hogle’s failure to comply with A.R.S. § 12-821.01
    thus left Wallschlaeger without a valid claim against the District. See Falcon
    ex rel. Sandoval v. Maricopa County, 
    213 Ariz. 525
    , 530-31, ¶¶ 30, 35 (2006)
    (affirming summary judgment in favor of defendant county because
    plaintiffs “did not properly serve” notice of claim on person authorized to
    accept service). Because Wallschlaeger’s claim was already barred by A.R.S.
    § 12-821.01 before Ward undertook representation of her, she cannot
    establish that the Underlying Case would have been successful “but for”
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    WALLSCHLAEGER v. THE HOGLE FIRM, et al.
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    Ward’s subsequent failure to prevent the administrative dismissal of that
    case.
    ¶14            Wallschlaeger does not dispute that Hogle failed to properly
    serve a notice of claim on the District, nor does she deny that Ward joined
    the case too late to cure the defective service. She insists, however, that a
    “deficient notice of claim is not the death knell to a [p]laintiff’s case.” Noting
    that a noncompliance defense may be waived under certain circumstances,
    Wallschlaeger argues that the superior court erred by ignoring “the very
    real possibility” that the District would have waived its noncompliance
    defense in the Underlying Case. She explains that, up until the
    administrative dismissal of the Underlying Case, the District hadn’t filed a
    motion to dismiss for noncompliance with A.R.S. § 12-821.01 or indicated
    that such a motion was forthcoming. Further, she notes that her expert
    witness opined that “[h]ad the lawsuit not been dismissed for the failure to
    timely file the Joint Report and Scheduling Order . . . the [l]awsuit likely
    would have proceeded in the normal course.” Wallschlaeger contends that
    the superior court “exceed[ed] [its] authority” by determining that she
    “could not prove causation” as a matter of law. Instead, she concludes, a
    jury should have been permitted to determine whether the District would
    have waived its noncompliance defense, and, if so, whether Ward’s failure
    to prevent the administrative dismissal of the Underlying Case was a
    proximate cause of the Underlying Case’s unsuccessful outcome.
    ¶15           Causation cannot be left “to the jury’s speculation,” Salica, 224
    Ariz. at 419, ¶ 16, and nothing but speculation supports Wallschlaeger’s
    assertion that the District might have waived its noncompliance defense
    had the Underlying Case not been administratively dismissed. Clearly, the
    District did not overlook the defense. It asserted the defense in its answer
    in the Underlying Case. Moreover, in the draft Joint Report that the parties’
    attorneys prepared in February 2020, counsel for the District added a
    statement that the District “affirmatively asserts that Plaintiff failed to
    timely comply with the notice of claim statute.”
    ¶16           Wallschlaeger contends that, although the District asserted
    the noncompliance defense in its answer in the Underlying Case, it could
    still have “waive[d] the defense by subsequent conduct.”
    ¶17           A noncompliance defense may be waived if “the defendant
    has taken substantial action to litigate the merits of the claim.” City of
    Phoenix v. Fields, 
    219 Ariz. 568
    , 575, ¶ 30 (2009) (cleaned up). In Fields, for
    example, the court found that the city waived its noncompliance defense by
    engaging in discovery and motion practice unrelated to the notice of claim
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    WALLSCHLAEGER v. THE HOGLE FIRM, et al.
    Decision of the Court
    issue for four years before finally asserting the noncompliance defense in a
    motion for summary judgment. Id. at ¶ 31. Similarly, in Jones v. Cochise
    County, 
    218 Ariz. 372
     (App. 2008), the court found that the county waived
    its noncompliance defense by failing to assert the defense in its answer and
    by “actively litigat[ing] the case” on its merits, “including [by] engaging in
    discovery and participating in depositions.” Id. at 378, 381, ¶¶ 21, 29.
    ¶18            Here, however, the record does not indicate that the District
    engaged in any discovery or motion practice on the merits of
    Wallschlaeger’s claim. On the contrary, the record indicates that, prior to
    the administrative dismissal of the Underlying Case, the District engaged
    in no litigation activity other than filing its answer (in which it asserted the
    noncompliance defense) and participating in the preparation of the parties’
    Joint Report and Proposed Scheduling Order (in which, again, the District
    asserted its noncompliance defense). The District cannot be said to have
    actively litigated the Underlying Case so as to waive its noncompliance
    defense.
    ¶19            The mere possibility that, had the Underlying Case not been
    dismissed, the District might have subsequently waived its noncompliance
    defense by engaging in litigation on the merits of Wallschlaeger’s claim is
    too speculative to establish that her claim was viable at the time of the
    administrative dismissal. See Grafitti-Valenzuela, 216 Ariz. at 460, ¶ 21 (“The
    mere possibility of causation is not enough.”); see also Cecala v. Newman, 
    532 F. Supp. 2d 1118
    , 1137 (D. Ariz. 2007) (“Determining what ‘could have’ or
    ‘might have’ been decided in the underlying action is speculative and . . .
    not sufficient for sustaining causation[.]”) (cleaned up).
    ¶20           Even if the Underlying Case had not been dismissed and the
    District proceeded to waive its case-dispositive affirmative defense, any
    recovery Wallschlaeger received in the Underlying Case would have been
    a windfall. See Slovensky v. Friedman, 
    49 Cal. Rptr. 3d 60
    , 63, 67 (Cal. Ct. App.
    2006) (affirming summary judgment in favor of defendant attorneys where
    “the statute of limitations had run on” Slovensky’s claim “before she
    consulted defendants,” and so she could not establish she was harmed by
    the purportedly insufficient settlement because “she was not legally
    entitled to recover anything at all”). Because “the issue in [a] malpractice
    case is what the outcome should have been if the issue had been properly
    presented,” Cecala, 
    532 F. Supp. 2d at 1136
    , Wallschlaeger’s loss of a chance
    to recover a windfall in the Underlying Case does not state a valid claim for
    legal malpractice, see Slovensky, 
    49 Cal. Rptr. 3d at 67
     (“Because plaintiff’s
    claim was time-barred on the day she filed it, . . . the settlement [her
    attorneys] obtained for her was a windfall” and her attorneys’ “alleged
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    WALLSCHLAEGER v. THE HOGLE FIRM, et al.
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    malpractice did not damage her.”); see also Sobieski v. Am. Standard Ins. Co.
    of Wis., 
    240 Ariz. 531
    , 536, ¶ 17 (App. 2016) (“A damage award . . . must be
    based on more than mere speculation or conjecture.”) (cleaned up).
    ¶21            Arizona courts treat the notice of claim statute as “analogous
    to a statute of limitations.” Pritchard v. State, 
    163 Ariz. 427
    , 433 (1990). The
    analogy is apt here; in considering Ward’s liability for Wallschlaeger’s lack
    of success in the Underlying Case, we find instructive case law addressing
    an attorney’s liability for professional negligence in handling a claim barred
    by a limitations statute.
    ¶22           A limitations defense, like a noncompliance defense, is an
    affirmative defense that may be waived if not timely asserted. See Osuna v.
    Wal-Mart Stores, Inc., 
    214 Ariz. 286
    , 290, ¶ 11 n.4 (App. 2007) (“The statute
    of limitations . . . is not jurisdictional. Thus, if a party fails to raise it as an
    affirmative defense, it is waived.”).
    ¶23            Numerous courts have nonetheless held as a matter of law
    that an attorney cannot be liable for malpractice for failing to file suit on a
    time-barred claim if the attorney was not retained until after expiration of
    the limitations period. Bartlett v. Hugo & Pollack, LLP, No.
    503CV0384NAMGJD, 
    2005 WL 1458245
    , at *3 (N.D.N.Y. June 16, 2005)
    (mem. decision) (“It is a well-established principle of law that an attorney
    who fails to file a claim as to which the statute of limitations had expired
    before the client hired the attorney is not liable for legal malpractice.”); see
    also Guy v. Brown, 
    67 So. 3d 704
    , 707 (La. Ct. App. 2011) (affirming dismissal
    of legal malpractice claim against attorney who was not retained until after
    limitations period had expired because “[t]he defendants cannot be held
    liable for claims that prescribed [i.e., became time-barred] prior to their
    representation of the plaintiffs”); Lefebvre v. James, 
    697 So. 2d 918
    , 920 (Fla.
    Dist. Ct. App. 1997) (holding that trial court erred in denying defendant
    attorney’s motion for directed verdict in legal malpractice case that was
    based on attorney’s failure to seek leave to amend complaint to add new
    cause of action, where new cause of action “would have been barred by the
    statute of limitations” anyway).
    ¶24            We are aware of no case holding that an attorney who was not
    retained until after the limitations period had run could still be liable for
    subsequent professional negligence on the theory that, had the attorney
    filed the time-barred claim, the defendant might have waived its limitations
    defense. On the contrary, courts that have addressed this issue have found
    causation lacking as a matter of law if the plaintiff’s claim was already time-
    barred before the attorney was retained. See McCluskey v. Womack, 470
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    WALLSCHLAEGER v. THE HOGLE FIRM, et al.
    Decision of the Court
    N.W.2d 443, 447 (Mich. Ct. App. 1991) (affirming dismissal of malpractice
    claim brought by plaintiffs who “did not retain defendant [attorney] until
    after the limitation period applicable to their underlying claim had
    expired,” reasoning that “regardless of what specific acts or omissions were
    alleged . . . [plaintiffs’] legal malpractice claim must fail, because they
    cannot prove their alleged damages were caused by defendant.”).
    ¶25            Just as the mere possibility a limitations defense could be
    waived is an insufficient basis on which to impose liability on an attorney
    for failing to assert successfully a time-barred claim, the mere possibility
    that the District might have waived its noncompliance defense is an
    insufficient basis on which to impose liability on Ward. See Cecala, 
    532 F. Supp. 2d at 1137
     (stating that in legal malpractice suits, the appropriate
    arbiter must “determine what the result should have been, not what it could
    have been”) (cleaned up).
    ¶26           Wallschlaeger argues that dismissing her claim against Ward
    due to Hogle’s prior case-dispositive error would be tantamount to finding
    Ward “immune from any punishment for negligent conduct.” According to
    Wallschlaeger, allowing “incoming attorneys [to] negligently handle a
    case” without consequence “just because their predecessor counsel made
    mistakes” is “bad public policy.”
    ¶27             Professionals who assume responsibility for a case after it has
    been mishandled are, of course, accountable for their own actionable
    negligence. See Barmat v. John & Jane Doe Partners A-D, 
    165 Ariz. 205
    , 211
    (App. 1990) (“Regardless of the conduct of [former attorney and law firm],”
    successor counsel’s actions were “the superseding proximate cause of”
    harm to plaintiff); see also Holland v. Thacher, 
    245 Cal. Rptr. 247
    , 250 (Cal. Ct.
    App. 1988) (reasoning that a “successor attorney’s responsibility for the
    [plaintiff] client’s injury” may reduce the exposure of the former attorney
    in a malpractice case “through application of comparative fault
    principles”). To be actionable, however, the professional’s negligence must
    have caused or substantially contributed to the plaintiff’s damages. Phillips,
    152 Ariz. at 418. A negligent act by an attorney after a case-dispositive error
    by prior counsel cannot be said to have caused or contributed to the
    plaintiff’s loss. See McCluskey, 470 N.W.2d at 447; see also Lifshitz v. Brady,
    
    748 N.Y.S.2d 605
    , 606 (N.Y. App. Div. 2002) (holding that attorney could not
    be liable for malpractice when “he was not retained by the plaintiff until
    after expiration of the statute of limitations” on the underlying claim).
    Therefore, Ward cannot be the cause of Wallschlaeger’s injuries in the
    Underlying Case, and Wallschlaeger’s claim against Ward is not actionable.
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    WALLSCHLAEGER v. THE HOGLE FIRM, et al.
    Decision of the Court
    CONCLUSION
    ¶28         For the foregoing reasons, we affirm the superior court’s
    judgment dismissing Wallschlaeger’s professional negligence claim against
    Ward.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    9