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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JON PICUS, Plaintiff/Appellant,

v.

KUSHNER CARLSON PC, Defendant/Appellee.

No. 1 CA-CV 17-0053

Appeal from the Superior Court in Maricopa County

No. CV 2016-001261

The Honorable Jo Lynn Gentry, Judge

REVERSED AND REMANDED

COUNSEL

Law Offices of Kyle A. Kinney PLLC, Scottsdale

By Kyle A. Kinney

Counsel for Plaintiff/Appellant

The Entrekin Law Firm, Phoenix

By B. Lance Entrekin

Counsel for Defendant/Appellee

FILED 12-5-2017
PICUS v. KUSHNER CARLSON

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which 

Presiding Judge Michael J. Brown and Judge Patricia A. Orozco1 joined.

C A M P B E L L, Judge:

¶1 Jon Picus (“Picus”) appeals the superior court’s dismissal of 

his complaint for lack of personal jurisdiction over an out-of-state law firm 

defendant. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

¶2 According to the facts alleged in the complaint2, Picus is a 

resident of Arizona. Picus first met Elizabeth Frazier (“Frazier”), a 

California resident, in February or March 2015. Picus and Frazier 

discovered they had similar business ideas for a website concerning the sale

and maintenance of medical equipment, and agreed to start a company 

together. They founded Trilogy Imaging Partners, LLC (“Trilogy”) as a 

member-managed Arizona limited liability company with its principal

place of business in Maricopa County. Picus and Frazier agreed each would 

have a 50-percent membership/management interest in Trilogy. 

¶3 With Picus’s approval, Frazier engaged the law firm of 

Kushner Carlson, PC (“KCPC”)—a California professional corporation—to 

draft Trilogy’s operating agreement in April 2015. Frazier informed Picus 

that KCPC had represented her in a previous personal matter, but neither 

Frazier nor KCPC disclosed the full extent of the past representation or 

relationship. KCPC drafted Trilogy’s operating agreement, which specified 

it “shall be governed by the laws of the State of Arizona” and that venue 

 

1 The Honorable Patricia A. Orozco, retired Judge of the Arizona 

Court of Appeals, Division One, has been authorized to sit in this matter 

pursuant to Article VI, Section 3 of the Arizona Constitution.

2 A plaintiff must allege facts in the complaint supporting personal 

jurisdiction; if the plaintiff makes a prima facie showing of jurisdiction, the 

defendant has the burden of rebuttal, although any contradictions must be 

resolved in favor of the plaintiff. In re. Cons. Zicam Prod. Liab. Cases, 212 Ariz. 

85, 89-90, ¶ 8 (App. 2006).
PICUS v. KUSHNER CARLSON

Decision of the Court

3

for any action arising out of a dispute from the agreement “shall be in the 

County of Maricopa, State of Arizona.” 

¶4 In August 2015, Frazier arranged for KCPC to prepare a 

retainer agreement between KCPC and Trilogy. The agreement states that 

it is “made by and between Kushner Carlson . . . and Trilogy Imaging 

Partners, LLC” as “Client” to provide “[g]eneral corporate representation.” 

It provides that “Client agrees to pay for all costs and expenses paid or 

owed by Client.” The agreement further provides that jurisdiction and 

venue of any non-fee related dispute between KCPC and Trilogy shall be in 

Orange County, California. The retainer agreement was only signed by 

Frazier, who did so “on behalf of Trilogy Imaging Partners, LLC.” KCPC 

never offered Picus a conflict waiver addressing any past or present 

representation of Frazier, nor did it inform him that no KCPC attorney was 

licensed to practice law in Arizona. 

¶5 Picus and Frazier’s business relationship began to deteriorate. 

Picus alleges that, beginning shortly after Trilogy’s formation, Frazier 

started mismanaging company funds and his own efforts generated most 

of Trilogy’s revenue. 

¶6 In November 2015, Frazier demanded sole management over 

Trilogy. Shortly thereafter, a KCPC attorney provided legal advice, based 

on Arizona law, about restructuring the company. Frazier wanted to 

procure day-to-day management authority of Trilogy, and while Picus was 

open to granting Frazier the type of authority typically given to a chief 

operating officer, he was not agreeable to relinquishing his own 

management interest. The KCPC attorney advised that this management 

arrangement could be accomplished only by changing the structure of the 

partnership from member-managed to manager-managed, which would 

have put Frazier in complete control. Frazier instructed KCPC to prepare a 

proposed amended operating agreement stripping Picus of his 

management authority and changing the jurisdiction and venue in the 

event of a dispute from Arizona to Orange County, California. Picus 

refused to sign the proposed amended operating agreement.

¶7 Picus and Frazier’s relationship continued to deteriorate. In 

January 2016, Frazier instructed KCPC to prepare a buyout offer to Picus 

on her behalf, but Picus rejected the offer. In February 2016, KCPC sent a 

letter to Picus demanding he sell his membership interest to Frazier or face 

litigation. In this letter, KCPC represented itself as “general corporate 

counsel for Trilogy Imaging Partners, LLC.” 
PICUS v. KUSHNER CARLSON

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¶8 In February 2016, Picus filed a complaint in Arizona against 

both Frazier and KCPC. The complaint alleged claims of breach of contract, 

breach of fiduciary duty, and breach of covenant of good faith and fair 

dealing against Frazier, and claims of aiding and abetting, breach of 

fiduciary duty, and malpractice against KCPC. Pursuant to a settlement 

agreement, Frazier was dismissed from the case. KCPC filed a motion to 

dismiss Picus’s claims in August 2016 for lack of personal jurisdiction. The 

superior court found that Picus could not make a showing of the necessary 

connection between KCPC and Arizona to establish personal jurisdiction, 

and granted KCPC’s motion to dismiss Picus’s claims without prejudice.

DISCUSSION

¶9 Arizona courts may exercise personal jurisdiction to the 

greatest extent allowed by the United States Constitution. Ariz. R. Civ. P. 

4.2(a); Planning Grp. of Scottsdale, LLC v. Lake Mathews Mineral Properties, 

Ltd., 226 Ariz. 262, 265, ¶ 12 (2011). Under the Due Process Clause of the 

Fourteenth Amendment, personal jurisdiction may be either general or 

specific, Planning Grp., 262 Ariz. at 265, ¶ 13, but always requires a factintensive inquiry to determine whether its exercise comports with 

traditional notions of “fair play and substantial justice,” Williams v. Lakeview 

Co., 199 Ariz. 1, 3-4, ¶ 8 (2000) (citations omitted). A state may exercise 

general jurisdiction over its own citizens and “over non-resident 

corporations whose activities in the state are systematic and continuous.” 

Planning Grp., 226 Ariz. at 265, ¶ 13 (citations omitted). A state may exercise 

specific jurisdiction “over a defendant who has sufficient contact with the 

state to make the exercise of jurisdiction reasonable and just with respect to 

that claim.” Id. (citation omitted). Picus argues that Arizona has specific 

personal jurisdiction over KCPC. 

¶10 Specific jurisdiction over an out-of-state defendant is 

appropriate when that defendant has “minimum contacts” with the forum 

state. World-Wide Volkswagen Corp. v. Woodsen, 444 U.S. 286, 291 (1980).

Minimum contacts exist when (1) the defendant has purposefully availed 

itself of the privilege of conducting business in Arizona, (2) the claim results 

or arises out of the defendant’s activities in Arizona, and (3) it is reasonable 

for the forum state to exercise jurisdiction over the defendant. Austin v. 

CrystalTech Web Hosting, 211 Ariz. 569, 574, ¶ 18 (App. 2005); see also Beverage 

v. Pullman & Comley, LLC, 232 Ariz. 414, 417 ¶ 9 (App. 2013), aff’d as modified, 

234 Ariz. 1 (2014).

¶11 We view the facts alleged in the complaint in the light most 

favorable to the plaintiff, but review de novo the superior court’s dismissal 
PICUS v. KUSHNER CARLSON

Decision of the Court

5

for lack of personal jurisdiction. Rollin v. William V. Frankel & Co., Inc., 196 

Ariz. 350, 352, ¶ 5 (App. 2000) (citation omitted).

I. Purposeful Availment

¶12 Through its interpretation of federal case law, the Arizona 

Supreme Court has articulated how to evaluate the first prong of the 

specific-jurisdiction analysis, purposeful availment: “Considering all of the 

contacts between the defendants and the forum state, did those defendants 

engage in purposeful conduct for which they could reasonably expect to be 

haled into that state’s courts with respect to that conduct?” Planning Grp., 

226 Ariz. at 268, ¶ 25. The requirement of purposeful availment “ensures 

that a defendant will not be haled into a jurisdiction solely as a result of 

random, fortuitous, or attenuated contacts, . . . or of the unilateral activity 

of another party or a third person.” Batton v. Tenn. Farmers Mut. Ins. Co., 153 

Ariz. 268, 271 (1987) (citations omitted).

¶13 In Planning Group, a California limited partnership sought 

investment capital for a new mining operation from an Arizona limited 

liability company. 226 Ariz. at 264, ¶ 2. In soliciting the Arizona LLC’s 

investment, the California LP sent it numerous letters, email, faxes, and 

reports, and participated in several telephone calls with its representatives 

located in Arizona. Id. at 268-69, ¶ 28. Although the California LP had no 

physical presence in Arizona, the supreme court held that these actions 

constituted purposeful direction into Arizona’s specific jurisdiction. Id. at 

268-69, ¶¶ 28-31.

¶14 By contrast, the supreme court also found that a second 

company involved in the negotiations between the California LP and the 

Arizona LLC, had not purposefully directed its dealings into Arizona. Id. at 

271, ¶ 40. The second company had prepared a due diligence report 

detailing the mining project. Id. at 264, 271, ¶¶ 4, 40. Even though the second 

company was a stakeholder in the project and would profit from the 

Arizona LLC’s investment, id. at 264-65, ¶ 5, the court noted that it is “not 

enough that a defendant know that he is dealing with an Arizona resident 

then located in another state; the requisite activity must instead be 

purposefully directed at the forum.” Id. at 271, ¶ 41. Merely preparing and 

circulating the report with no knowledge that it would reach Arizona was 

insufficient for Arizona to exercise specific jurisdiction over the second 

company. Id. at 271, ¶¶ 40-41.

¶15 This court has applied the minimum-contacts principles

articulated in Planning Group to an out-of-state law firm in Beverage. 232 
PICUS v. KUSHNER CARLSON

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Ariz. 414. In Beverage, we held Arizona had personal jurisdiction over a 

Connecticut law firm that issued an opinion letter to an Arizona client. Id.

at 416, ¶ 4. The law firm was organized and located in Connecticut and had 

neither an office nor any attorneys licensed to practice in Arizona. Id. at 416, 

¶ 2. The law firm had the client sign a representation letter formalizing the 

attorney-client relationship, then prepared a tax opinion letter concerning 

the legality of a tax-shelter transaction the client had completed. Id. at 416, 

¶¶ 4-5. The law firm accepted a telephone call from the client’s Arizona 

agent, sent promotional materials about the firm to the client’s Arizona 

agent, and affirmatively agreed to represent the client. Id. at 417, ¶ 11. In 

the course of that representation, the law firm analyzed the legality of the 

tax-shelter transaction, and then drafted an opinion letter to the client in 

Arizona knowing the client would rely on it in filing his taxes. Id. This court 

held the client had offered sufficient evidence that the law firm had 

engaged in “purposeful conduct for which [it] reasonably could expect to 

be haled into an Arizona court.” Id. at 417, ¶ 12.

¶16 Much like the law firm in Beverage, we find that KCPC 

purposefully directed its activities into Arizona. KCPC knew that Trilogy 

was an Arizona LLC, having drafted the company’s original operating 

agreement. KCPC entered into an attorney-client relationship with Trilogy

by signing a retainer agreement to provide “general corporate 

representation” for and to be paid by Trilogy. While retained to provide 

this “general corporate representation,” KCPC sent a demand letter to 

Picus, a managing member of Trilogy, in Arizona. The letter demanded 

Picus accept the buyout agreement—which KCPC also prepared—and still 

represented KCPC as “general corporate counsel” for Trilogy. 

¶17 These contacts were not merely random, fortuitous, 

attenuated, or the result of unilateral activity of another party, supra ¶ 12. 

Even if KCPC performed all its legal research and writing in California, and 

none of its attorneys ever set foot in Arizona, it provided advice on 

restructuring the company based on Arizona law. KCPC drafted the 

Arizona LLC’s operating agreement, signed a retainer agreement to advise 

the Arizona company, and prepared a buyout agreement giving 

management authority to one member over the other. In doing so, it

repeatedly held itself out as acting on behalf of Trilogy, an Arizona LLC. 

Even if, as KCPC posits, it was truly acting on behalf of Frazier, KCPC 

would have been acting in conflict with its retainer agreement with Trilogy

and did not endeavor to make that clear to Picus.

¶18 At this preliminary stage in the proceedings, we view the facts 

in the light most favorable to Picus. A. Uberti and C. v. Leonardo, 181 Ariz. 
PICUS v. KUSHNER CARLSON

Decision of the Court

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565, 566 (1995). Considering the aggregate of KCPC’s contacts with 

Arizona, we therefore find that KCPC engaged in purposeful conduct for 

which it could reasonably expect to be haled into Arizona’s courts.

II. Defendant’s Activities and Reasonableness

¶19 Specific jurisdiction also requires the plaintiff’s claim to arise 

out of the defendant’s activities in Arizona. Austin, 211 Ariz. at 574, ¶ 18.

Picus’s complaint seeks damages arising from KCPC’s corporate 

representation of Trilogy, alleging the representation favored Frazier over 

the best interests of Trilogy itself and that KCPC failed to disclose any 

conflict of interest. KCPC’s activities in Arizona—i.e., undertaking general 

representation of an Arizona LLC and demanding that a managing member 

sell his interest while purporting to act in the capacity of corporate 

counsel—are at the root of Picus’s claims of aiding and abetting, breach of 

fiduciary duty, and malpractice.

¶20 Finally, exercise of jurisdiction over an out-of-state defendant 

must be reasonable. Id. Although the determination of reasonableness 

depends upon the evaluation of many factors, generally the existence of 

sufficient contacts between the defendant and forum state giving rise to the 

suit will justify the exercise of jurisdiction. Planning Grp., 226 Ariz. at 270, 

¶ 37. A defendant that has purposefully directed its activities toward the 

forum state “must present a compelling case that the presence of some other 

considerations would render jurisdiction unreasonable.” Burger King Corp. 

v. Rudzewicz, 471 U.S. 462, 477 (1985). Here, the exercise of specific 

jurisdiction over KCPC is not unreasonable, and KCPC offers no argument 

or evidence to the contrary.

CONCLUSION

¶21 For the foregoing reasons, we reverse the decision of the 

superior court and remand for proceedings consistent with this decision.