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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBBIN HERREN, Plaintiff/Appellant,

v.

M. CRIS ARMENTA, et al., Defendants/Appellees.

No. 1 CA-CV 18-0381

Appeal from the Superior Court in Maricopa County

No. CV2015-010101

The Honorable Rosa Mroz, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office PC, Phoenix

By David L. Abney

Counsel for Plaintiff/Appellant

Manning & Kass, Ellrod Ramirez Trester LLP, Phoenix

By Anthony S. Vitagliano, Robert B. Zelms, Karly K. White

Counsel for Defendant/Appellee M. Cris Armenta

Broening Oberg Woods & Wilson PC, Phoenix

By Richard E. Chambliss, Sarah L. Barnes

Counsel for Defendants/Appellees Michelle M. Holden and Kelley Moss & 

Holden, PLLC

FILED 1-14-2020
HERREN v. ARMENTA, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Diane M. Johnsen joined.

C A T T A N I, Judge:

¶1 Robin Herren appeals from the judgment entered against her 

in favor of M. Cris Armenta, Michelle Holden, and the law firm Kelley, 

Moss, & Holden, PLLC (collectively, “Appellees”) on Herren’s claim for 

legal malpractice arising from Appellees’ representation of Herren in 

litigation resulting from a contract dispute. For reasons that follow, we 

affirm, holding that the superior court correctly determined that Herren 

failed to prove the causation element of a malpractice claim—that but for 

Appellees’ negligence, Herren would have succeeded in the underlying 

case.

FACTS AND PROCEDURAL BACKGROUND

I. Herren’s Litigation Against Tonto Supply, Inc.

¶2 The case in which Herren alleges Appellees committed legal 

malpractice involved Herren’s dispute with Tonto Supply, Inc. over a 

gravel-mining contract. In October 2003, Herren and another individual 

(who is no longer involved in this case) purchased from Santa Fe Railroad 

Company a quitclaim deed conveying Santa Fe’s “right, title, and interest, 

if any,” to the sand and gravel located within 100 feet of the surface on a 40-

acre parcel of land in Mohave County (the “Property”).

¶3 In 2008, Herren contracted with Tonto Supply to develop a 

gravel-mining operation on the Property, but the agreement soon devolved

into a dispute. Herren eventually sent Tonto Supply a notice of material 

breach and hired Armenta, a California-licensed attorney, who sent Tonto 

Supply a letter terminating the contract.

¶4 Tonto Supply then filed a multi-claim lawsuit against Herren,

and Herren hired Arizona-licensed Holden and her firm to assist with the 

lawsuit. After Appellees filed an answer and counterclaims on Herren’s 

behalf, Tonto Supply filed five motions for partial summary judgment on 

various claims and counterclaims and sent Herren a request for admission

of 25 factual matters. Appellees did not respond to the request for 
HERREN v. ARMENTA, et al.

Decision of the Court

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admissions and failed to timely respond to the partial summary judgment

motions. Appellees were late responding to four of the motions, even after 

obtaining an extension following the initial deadline, and Appellees 

neglected to respond at all to one of the motions.

¶5 The superior court deemed the requested fact submissions to 

be admitted and granted Tonto Supply’s motions for partial summary 

judgment, citing among other rationales the fact admissions and the failure 

to comply with the procedural requirements of the summary judgment 

rule. See Ariz. R. Civ. P. 56(c).

¶6 Herren appealed the resulting judgment, and another panel 

of this court affirmed. Tonto Supply, Inc., v. Herren, No. 1-CA-CV 11-0495, 

2012 WL 6645691 (Ariz. App. Dec. 20, 2012). The court rejected Herren’s

argument that the judgment against her was in effect an improper 

discovery sanction based on her deemed admissions. See id. at *3, ¶ 18. 

Although the court noted the admissions and Herren’s discovery 

violations, the court did not rely solely on those factors or on Appellees’

failure to comply with the procedural requirements of Rule 56. Id. at *3–4, 

¶¶ 19, 22. Instead, the court concluded that summary judgment was proper

on the merits because, even without considering the deemed admissions, 

Herren’s responses failed to present admissible evidence supporting her 

opposition to Tonto Supply’s claims. See id. at *4–5, ¶¶ 23–25. The court 

held that, because Tonto Supply had submitted “deposition transcripts and 

other exhibits that provided independent grounds showing that no genuine 

dispute of material fact existed for trial,” Tonto Supply was entitled to 

judgment as a matter of law. Id. at *5, ¶ 25.

II. Subsequent Legal Malpractice Claim.

¶7 Herren filed the instant legal malpractice lawsuit, asserting 

that Appellees mishandled the Tonto Supply litigation. Herren sought, 

among other damages, an award of lost profits she asserted she would have 

received under her contract with Tonto Supply.

¶8 After the court granted partial summary judgment in favor of 

Appellees on Herren’s claim for lost profits, Appellees filed a motion for 

summary judgment on the case as a whole, arguing that Herren had failed 

to provide required expert testimony to establish the causation element of 

her legal malpractice claims. After considering the parties’ briefing on

causation, as well as Herren’s submission of an initial expert affidavit and 

a supplemental affidavit, the court granted summary judgment in favor of 

Appellees. The court found that Herren had failed to present evidence to 
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establish that, but for Appellees’ alleged negligence, she could have 

avoided or would have been successful in the Tonto Supply litigation. The 

court concluded that Herren’s initial expert affidavit was conclusory and 

thus insufficient to establish causation, and that the supplemental affidavit

was untimely. The court further found that even if the supplemental 

affidavit had been timely submitted, it would not have established a basis 

for relief because, although it offered additional detail of how Appellees 

were negligent, it still lacked any reasoned analysis of causation.

¶9 Herren timely appealed from the resulting judgment, and we 

have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶10 Herren challenges the superior court’s final summary 

judgment ruling on causation. Summary judgment is proper when no 

genuine issues of material fact exist and those undisputed facts establish 

that the moving party is entitled to judgment as a matter of law. Ariz. R. 

Civ. P. 56(a); Orme Sch. v. Reeves, 166 Ariz. 301, 309–10 (1990). Even an issue 

of fact (like causation) that is generally reserved for the jury is amenable to 

summary judgment “if no reasonable juror could conclude that the . . .

damages were proximately caused by the defendant’s conduct.” Gipson v. 

Kasey, 214 Ariz. 141, 143, ¶ 9 n.1 (2007). We review de novo the superior 

court’s ruling granting summary judgment, considering the facts and all 

reasonable inferences in the light most favorable to the party opposing 

summary judgment. Rasor v. Nw. Hosp., LLC, 243 Ariz. 160, 163, ¶ 11 (2017); 

Cramer v. Starr, 240 Ariz. 4, 7, ¶ 8 (2016).

¶11 As in any negligence case, a plaintiff asserting legal 

malpractice must prove (1) duty, (2) breach, (3) causation, i.e., “that the 

[attorney’s] negligence was the actual and proximate cause of injury,” and 

(4) damages. Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 12 (2004). For alleged 

negligence during litigation, the plaintiff must prove a “case within a case” 

to establish causation: but for the attorney’s negligence, the plaintiff/client 

would have succeeded in the underlying lawsuit. Id.; Elliott v. Videan, 164 

Ariz. 113, 119–20 (App. 1989).

¶12 Because Herren’s claims sought damages arising from the 

unsuccessful outcome in the Tonto Supply litigation, she was required to 

provide an expert opinion affidavit detailing how Appellees’ negligence 

damaged her, i.e., show that but for the alleged negligence, she would have

been successful in the Tonto Supply litigation. See A.R.S. § 12-2602(B)(4); 

Elliott, 164 Ariz. at 119–20.
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¶13 An expert affidavit in this context must detail the “manner in 

which the [attorney’s] acts, errors or omissions caused or contributed to the 

damages or other relief sought” by the plaintiff. See A.R.S. § 12-2602(B)(4). 

“But affidavits that only set forth ultimate facts or conclusions of law can 

neither support nor defeat a motion for summary judgment.” Florez v. 

Sargeant, 185 Ariz. 521, 526–27 (1996) (collecting cases).

¶14 Herren submitted a preliminary affidavit from an expert to 

attempt to establish causation. Although the preliminary affidavit offered

some detail as to how Appellees’ performance in the Tonto Supply 

litigation was sub-standard, it offered only a conclusory statement as to 

causation:

In my opinion, Plaintiff Herren was damaged as a result of 

the Defendants’ negligence. The careless manner in which 

her case was handled by her attorneys caused or contributed 

to the final judgment entered against her. She certainly lost 

any chance she had to present her factual and legal positions 

in the most persuasive fashion.

But “[n]egligence is not actionable in the abstract,” Barrett v. Harris, 207 

Ariz. 374, 382, ¶ 28 (App. 2004) (citation omitted), and the proffered 

affidavit failed to point out how Appellees’ negligence “caused or 

contributed” to the unsuccessful outcome in the Tonto Supply litigation. 

See A.R.S. § 12-2602(B)(4). It did not describe any facts or identify any legal 

positions that could have led to a different result in the underlying case, 

and it provided no explanation of what would have occurred (and why)

had the underlying lawsuit been litigated properly. See Florez, 185 Ariz. at 

526; Molever v. Roush, 152 Ariz. 367, 374 (App. 1986).

¶15 Nor did the supplemental affidavit cure the problem. First, 

the superior court could properly reject the supplemental affidavit as 

untimely because it was filed one month after the discovery deadline,

without any showing of good cause, and after Appellees had already 

submitted their dispositive motions. See Ariz. R. Civ. P. 26.1(a)(6), 37(c)(1). 

Second, and more importantly, as the superior court noted, the 

supplemental affidavit was insufficient because it still did not explain how, 

but for Appellees’ negligence, Herren would have achieved a more 

successful outcome to her dispute with Tonto Supply. The supplemental 

affidavit offered additional examples and detail of Appellees’ deficient 

performance. And it referenced “causation” more times than the 

preliminary affidavit. But it did not provide meaningful information 

describing how Herren could have prevailed but for Appellees’ failures.
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¶16 The supplemental affidavit stated, for example, that 

“Herren’s chances of prevailing on any theory in the underlying case were 

certainly diminished, if not completely extinguished, by the inadequate 

representation,” without explaining what theory would have led to Herren 

prevailing. The supplemental affidavit similarly offered an opinion that

“[b]ut for” Appellees’ substandard conduct in “instigating and handling”

the Tonto Supply litigation, “Herren would have had a better chance of 

success in her defense of that lawsuit” and “would have been able to mount 

a successful defense.” But again, the affidavit failed to describe what 

meritorious defense could have been offered by competent counsel.

¶17 As an alternative to relying on Appellees’ deficient 

performance in the course of the Tonto Supply litigation, the supplemental 

affidavit posited that Appellees caused Herren harm because they should 

have advised her to avoid the litigation entirely, or at least to consider 

settling or abandoning the case at an early stage. But this causation theory 

relies on the premise that Herren would in fact have abandoned the 

litigation or settled with Tonto Supply if so advised, and Herren did not 

present any evidence to that effect. Nor did the affidavit explain how a 

competent attorney could have persuaded her to drop the case, particularly 

given that Herren continues to assert she would have won the case against 

Tonto Supply with competent representation.

¶18 In sum, neither the initial expert affidavit nor the 

supplemental affidavit proffered either (1) a theory under which Herren 

could have prevailed in the underlying litigation or (2) facts showing that 

Herren would have dropped the litigation if she had been competently 

advised by Appellees. Accordingly, the superior court did not err by 

concluding Herren had failed to demonstrate a genuine issue of fact as to 

causation and by entering summary judgment in favor of Appellees.

1

1 Herren also challenges the superior court’s partial summary 

judgment ruling in favor of Appellees on lost profits. That ruling was based 

on the court’s conclusion that Herren never owned the sand and gravel 

rights on which those damages were based: because Santa Fe had conveyed 

any sand and gravel rights it owned to a third party years before its 

transaction with Herren, Santa Fe retained no rights that could be conveyed 

to Herren by the quitclaim deed in 2003.

Herren asserts that although Santa Fe previously conveyed of “all of 

its right, title and interest in and to all of the . . . minerals whatsoever” in 
HERREN v. ARMENTA, et al.

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CONCLUSION

¶19 For the foregoing reasons, we affirm.

1953, Santa Fe implicitly retained a “profit à prendre,” i.e., the “right or 

privilege to go on another’s land and take away something of value from 

its soil.” See Black’s Law Dictionary (11th ed. 2019). Although skeptical of 

Herren’s assertion that the 1953 conveyance conveyed something less than 

all of Santa Fe’s remaining rights to sand and gravel, we need not and do 

not address Herren’s profit à prendre argument because the summary 

judgment ruling on causation is dispositive as to the entire case.