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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MARVIN BRODY, et al., Plaintiffs/Appellants,

v.

POLSINELLI, P.C., Defendant/Appellee.

No. 1 CA-CV 18-0325

Appeal from the Superior Court in Maricopa County

No. CV2015-009296

The Honorable Karen A. Mullins, Judge

AFFIRMED

COUNSEL

Dow Law Office, Phoenix

By David W. Dow

Co-counsel for Plaintiffs/Appellants

Marvin Brody Attorney at Law, Woodbine, Maryland

By Marvin Brody

Co-counsel for Plaintiffs/Appellants

Lewis Roca Rothgerber Christie LLC, Phoenix

By Dale A. Danneman, Jon D. Weiss

Counsel for Defendant/Appellee

FILED 3-26-2019
BRODY, et al. v. POLSINELLI

Decision of the Court

2

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.

C R U Z, Judge:

¶1 Marvin and Nancy Brody appeal the denial of their Request 

for Rule 56(d) Relief and the entry of two partial summary judgments 

dismissing their legal malpractice claim against Polsinelli, P.C. 

(“Polsinelli”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Brody filed this lawsuit alleging that Polsinelli, a law firm, 

mishandled litigation in bankruptcy court relating to Brody’s Chapter 11 

reorganization plan and mishandled litigation in superior court relating to 

property owned by Brody Family Investments Limited Partnership.

I. Bankruptcy Matter

¶3 Marvin Brody retained Polsinelli to file a Chapter 11 petition 

in the Bankruptcy Court for the District of Arizona. Brody filed for 

bankruptcy to prevent the foreclosure of a multimillion-dollar mansion he 

was renovating, funded by a loan from Geared Equity (“Geared”). During 

the bankruptcy proceedings, Brody continued to market the mansion and 

eventually found a buyer. Brody then asked the bankruptcy court to 

approve his bankruptcy reorganization plan, which called for Brody to pay 

Geared the contract interest, as opposed to the higher interest rate triggered 

by the default. This reorganization plan was based on a Ninth Circuit 

opinion, which held that cure of a default in a bankruptcy reorganization 

plan relieved the debtor from paying default interest. In re Entz-White 

Lumber & Supply, Inc., 850 F.2d 1338, 1341-42 (9th Cir. 1988). Application of

Entz-White and approval of the proposed plan would have reduced Brody’s 

interest obligation by approximately $200,000.

¶4 The bankruptcy court rejected Brody’s reorganization plan

and Brody instructed Polsinelli to appeal. On appeal, the district court 

found that Entz-White applied, reversed the bankruptcy court and held

Brody was not responsible for default interest. Both parties sought 

attorneys’ fees in bankruptcy court. The parties settled soon thereafter; 
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Brody paid Geared $150,000 for its attorneys’ fees, while $200,000 being 

held in escrow for payment of default interest and the balance of all fee 

deposits was released back to Brody.

II. Superior Court Matter

¶5 Brody had a business relationship with Scott Jung and his 

business entities (collectively “Jung”); those entities jointly purchased, 

renovated and sold luxury homes. In 2009, Jung purchased a property in 

Scottsdale (the “Clinton Property”). Brody’s daughter, Heather Brody, 

occupied the Clinton Property during this time. In 2013, as part of a 

separate lawsuit filed on behalf of a Brody business entity against Jung, a 

lis pendens was recorded on the Clinton Property; the lawsuit was 

voluntarily dismissed.

¶6 In April 2014, Jung faced foreclosure of the Clinton Property 

and initiated eviction proceedings against Heather Brody. In May 2014, 

Polsinelli filed a lawsuit on behalf of Brody Family Investments Limited 

Partnership (“BFILP”) against Jung, alleging BFILP held an equitable 

interest in the Clinton Property. BFILP also sought and obtained a 

temporary restraining order (“TRO”) enjoining Jung from selling the 

Clinton Property without the superior court’s permission. Later that 

month, the justice court handling eviction proceedings ordered Heather 

Brody to vacate the Clinton Property by the end of the month and she 

complied. On July 8, 2014, the lis pendens from the first lawsuit was 

released. On July 16, 2014, Jung sold the Clinton Property without the 

court’s permission, violating the TRO. Appellants alleged that at the time 

they filed the lawsuit against Jung, Appellants asked Polsinelli to file a new 

lis pendens; however, Polsinelli did not file a second lien before Jung sold 

the Clinton Property.

III. Malpractice Lawsuit

¶7 Brody brought a legal malpractice action against Polsinelli, 

alleging Polsinelli was liable for negligence, breach of fiduciary duty, and 

negligent supervision. Included in those allegations was the contention 

that at the time they authorized Polsinelli to file the lawsuit against Jung 

they also directed that Polsinelli file a new lis pendens against the subject 

property, and that Polsinelli’s failure to do so was a departure from the 

applicable standard of care, and harmful to Brody’s economic interests. In 

that regard, Brody certified in the complaint that expert testimony was 

necessary to prove the licensed professional’s standard of care or liability 

for the claim. See Ariz. Rev. Stat. (“A.R.S.”) § 12-2602(A). In October of 
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2015, Plaintiffs identified their expert witness, David Vandeventer, and 

timely provided his Preliminary Expert Affidavit.

¶8 In September of 2017, after the close of discovery, Polsinelli 

moved for partial summary judgment in the bankruptcy matter and partial 

summary judgment in the superior court matter, arguing, in part, that 

Brody could not prove his claims because there was, as a matter of law,

insufficient expert testimony regarding the element of causation. In 

response, Brody filed the expert’s “Supplemental Affidavit.” After the 

motions for summary judgment were fully briefed, Brody filed a “Request 

for Rule 56(d) Relief” seeking leave to utilize the newly-filed expert’s 

Supplemental Affidavit. The superior court denied the Arizona Rule of 

Civil Procedure (“Rule”) 56(d) request as both untimely and lacking merit.

¶9 The superior court granted both motions for partial summary 

judgment. After Brody’s motion for reconsideration was denied, the court 

entered final judgment dismissing Brody’s claims with prejudice. Brody 

timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶10 Brody raises three issues on appeal. He argues that: (1) the 

superior court abused its discretion by denying his Request for Rule 56(d)

Relief; (2) the superior court erred by granting summary judgment in the 

bankruptcy matter; and (3) the superior court erred by granting summary 

judgment in the superior court matter. For the following reasons, we 

affirm.

I. Request for Rule 56(d) Relief

¶11 Brody argues the superior court abused its discretion by 

denying his request for relief under Rule 56(d). We disagree.

¶12 We review the superior court’s orders regarding expert 

testimony and its denial of relief pursuant to Rule 56(d) for an abuse of 

discretion. St. George v. Plimpton, 241 Ariz. 163 (App. 2016) (citations 

omitted); Miller v. Kelly, 212 Ariz. 283, 285, ¶ 4 (App. 2006) (“discovery 

issues are left to the discretion of trial courts.”).

¶13 To obtain relief in this setting under Rule 56(d), the moving 

party must present an affidavit informing the court of: (1) the subject

evidence was unavailable or otherwise beyond the party’s control; (2) the 

location of the evidence; (3) what the party believes the evidence will reveal; 

(4) the methods to be used to obtain it; and (5) an estimate of the amount of 
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time the additional discovery will require. Lewis v. Oliver, 178 Ariz. 330, 338 

(App. 1993).

¶14 Pursuant to Rule 56(d), a party may seek relief to stay or 

supplement summary judgment proceedings to conduct additional 

discovery or to permit untimely disclosed opinions. A court may defer 

considering a summary judgment motion and “allow time to obtain 

affidavits or to take discovery before a response to the motion is required.” 

Ariz. R. Civ. P. 56(d)(5)(A). The major objective of the rule is to ensure that

a diligent party is given a reasonable opportunity to prepare his case.

Hunter Contracting Co. v. Superior Court, 190 Ariz. 318, 322 (App. 1997)

(citation and quotation omitted). Moreover, the rule enables the trial court 

to assure that each party has had an opportunity to ascertain the true facts. 

Bobo v. John W. Lattimore, Contractor, 12 Ariz. App. 137, 141 (1970). Brody’s 

motion did not, however, meet Rule 56(d) requirements.

¶15 Brody’s Rule 56(d) request was untimely because it was filed 

over a week after the motions for partial summary judgment were fully 

briefed. Additionally, Brody’s request was not supported by a good faith 

consultation certificate in compliance with Rule 56(d)(1)(B) and Rule 7.1(h). 

The request was also not supported by an “affidavit establishing specific 

and adequate grounds for the request.” Ariz. R. Civ. P. 56(d)(1)(A).

¶16 In the request, Brody argued Polsinelli challenged their 

expert’s opinions for the first time in its motions for partial summary 

judgment, and therefore Brody should be allowed to present new expert 

opinions. However, Brody failed to show that the Supplemental Affidavit 

constituted newly discovered material or that Brody could not have with 

reasonable diligence timely discovered and disclosed these opinions. See

Phil W. Morris Co. v. Schwartz, 138 Ariz. 90, 94 (App. 1983). Moreover, Brody 

did not seek additional discovery before responding to Polsinelli’s motions. 

Consequently, because his request was untimely and did not on its face 

comply with Rule 56, the superior court did not err by denying Brody’s 

discovery motion.

¶17 Brody’s reliance on Rasor v. Northwest Hospital, LLC, 243 Ariz. 

160 (2017) is misplaced. In Rasor, the court held that, under the facts of that 

case, the plaintiff can file a Rule 56(d) request for additional time to secure 

a new expert if their expert’s qualifications are challenged. Id. at 165, ¶ 25. 

Here, Polsinelli’s summary judgment motions were based on Brody’s 

failure to timely disclose expert opinions on causation; the subject motions 

did not challenge the expert’s qualifications. Moreover, relying on Rasor

does not satisfy Brody’s burden to show compliance with the requirements 
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of Rule 56(d). For these reasons, the superior court did not err in denying 

the Rule 56(d) relief.

II. Summary Judgment

¶18 We review a ruling granting summary judgment de novo.

Parkway Bank & Trust Co. v. Zivkovic, 232 Ariz. 286, 289, ¶ 10 (App. 2013).

The motion should be granted “if the facts produced in support of the claim 

or defense have so little probative value, given the quantum of evidence 

required, that reasonable people could not agree with the conclusion 

advanced by the proponent of the claim or defense.” Orme Sch. v. Reeves,

166 Ariz. 301, 309 (1990). We independently determine whether there are 

any genuine issues of material fact and if the superior court properly 

applied the law. Parkway, 232 Ariz. at 289, ¶ 10. Moreover, we can affirm 

summary judgment on any basis in the record, even if not relied on by the 

superior court. Mutschler v. City of Phoenix, 212 Ariz. 160, 162, ¶ 8 (App. 

2006).

A. Bankruptcy Matter 

¶19 Brody argues that the superior court erred in granting 

Polsinelli’s motion for partial summary judgment in the bankruptcy matter. 

We disagree. Because the superior court correctly denied Appellants’ Rule 

56(d) request, we only consider the Preliminary Expert Affidavit.

¶20 Because the crux of Brody’s complaint is a claim for legal 

malpractice, to prevail, he must prove (1) the existence of an attorney-client 

relationship that imposes a duty on the attorney to exercise that degree of 

skill, care, and knowledge commonly exercised by members of the 

profession; (2) the breach of a duty; (3) the defendant’s negligence was the 

actual and proximate cause of the injury; and (4) the nature and extent of 

damages. See Glaze v. Larsen, 207 Ariz. 26, 29, ¶12 (2004) (citing Phillips v. 

Clancy, 152 Ariz. 415, 418 (App. 1986)). Each of Brody’s claims of legal 

malpractice, including negligence, breach of fiduciary duty and negligent 

supervision, require admissible evidence of a breach of the standard of care 

proximately resulting in damages. Glaze, 207 Ariz. at 29, ¶ 15.

1. Breach of Duty

¶21 Expert testimony is generally required “to establish the 

standard of care by which the professional actions of an attorney are 

measured and to determine whether the attorney deviated from the proper 

standard.” Baird v. Pace, 156 Ariz. 418, 420 (App. 1987). Where, however, 

the attorney’s negligence “is so grossly apparent that a lay person would 
BRODY, et al. v. POLSINELLI

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have no difficulty recognizing it,” expert testimony is not required. Asphalt 

Eng’rs, Inc. v. Galusha, 160 Ariz. 134, 135-36 (App. 1989).

¶22 Brody alleged numerous instances in which Polsinelli 

purportedly failed to meet the standard of care in the bankruptcy court 

matter, specifically by not making an “equitable argument” regarding the 

application of Entz-White to the default interest issue, failing to disclose 

risks of continued litigation, not advocating strongly enough against the 

bankruptcy court’s order instructing Brody to put money in an escrow 

account for possible subsequent attorneys’ fees, and allegedly providing 

misleading fee estimates.

¶23 Polsinelli’s alleged negligence is not apparent in the context 

of the underlying action. It would not be “grossly apparent” to a jury 

without expert testimony how and why Polsinelli should have prepared 

and argued certain motions, how precedent applied to bankruptcy issues, 

and how Polsinelli should have communicated with Brody regarding risks 

and calculations of adverse attorneys’ fees awards considered in the context 

of an outstanding settlement offer. Asphalt Eng’rs, 160 Ariz. at 136. Expert 

testimony was necessary to establish the standard of care and whether 

Polsinelli failed to meet that standard. Further, the Preliminary Expert 

Affidavit failed to identify the standard of care that Brody contends 

Polsinelli breached.

¶24 All of the expert’s opinions are contained in his Preliminary 

Expert Affidavit. At the expert’s deposition, when asked to identify 

Polsinelli’s purported representation errors, the expert testified that he 

“wasn’t hired to . . . second-guess the tactical decisions.” Regarding 

litigation strategy, the expert testified that while he would have taken a 

different approach, “this is not saying that [the Poslinelli lawyer] violated 

the standard by doing something else.” Rather than explain specifically the 

“licensed professional’s acts, errors or omissions that the expert considers 

to be a violation of the applicable standard of care,” A.R.S. § 12-2602(B)(3), 

the expert testified, “I don’t know” what Polsinelli failed to do in order to 

meet the standard of care. Brody has failed to offer any evidence regarding

the appropriate standard of care. Accordingly, reasonable people could not 

agree with the conclusion that Polsinelli deviated from the applicable 

standard of care. Therefore, there is no triable issue of material fact and the 

superior court did not err in granting the motion for summary judgment.
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2. Causation

¶25 The expert’s causation opinion is also deficient pursuant to 

A.R.S. § 12-2602. Brody was required to present some evidence 

demonstrating that “but for the attorney’s negligence, he would have been 

successful in the prosecution or defense of the original suit.” Glaze, 207 

Ariz. at 29, ¶ 12 (internal quotation and citation omitted). This is commonly 

called a “case within the case.” Frey v. Stoneman, 150 Ariz. 106, 111 (1986).

Absent specific evidence establishing causation, expert testimony is 

required “to substantiate the link between the claimed breach and the 

alleged injury.” Mann v. GTCR Golder Rauner, L.L.C., 351 B.R. 685, 703 (D. 

Ariz. 2006) (citations omitted); see A.R.S. § 12-2602(B)(4). The rationale 

behind this requirement “stems from the basic principle that a plaintiff has 

the burden of proving his or her injuries were caused by defendant’s 

conduct.” Benkendorf v. Adv. Cardiac Specialists Chartered, 228 Ariz. 528, 530, 

¶ 9 (App. 2012) (discussing expert medical testimony establishing 

causation). Although causation is generally a question of fact for the jury 

to resolve, see Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9 (2007), the court may 

resolve the issue if the evidence is insufficient to allow a jury to reasonably 

infer that “the negligent conduct on the part of the defendant was a 

proximate cause of plaintiff’s injuries.” Ritchie v. Krasner, 221 Ariz. 288, 298, 

¶ 23 (App. 2009); see Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 358 (1985)

(“The question of proximate cause is usually for the jury and it is only when 

reasonable persons could not differ that the court may direct a verdict on 

the issue.”).

¶26 Here, Brody’s Preliminary Expert Affidavit contained no 

opinions about how Polsinelli’s “acts, errors or omissions caused or 

contributed” to Brody’s alleged damages. A.R.S. § 12-2602(B)(4). 

Moreover, the expert stated at his deposition, “I have an opinion [about 

causation], but . . . it’s not an educated opinion, so I’m going to keep it to 

myself.” Further, the expert explained that he only “[s]ort of” testified 

about causation, because ultimately he believed a judge “wouldn’t let an 

expert opine” about causation.

¶27 Without “specific evidence establishing causation,” expert 

testimony is necessary to prove causation in a legal malpractice action.

Mann, 351 B.R. at 705. The effect of Polsinelli’s acts on the subsequent 

litigation, appeal to the district court or the award of attorneys’ fees is not 

“grossly apparent” and thus not likely to be understood by a jury without 

expert testimony. See Asphalt Eng’rs, 160 Ariz. at 136; see also In re 1996 

Nissan Sentra, 201 Ariz. 114, 117, ¶ 6 (App. 2001) (unsworn assertions in a 
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memorandum are not facts to be considered when deciding a motion for 

summary judgment).

¶28 Brody relies on inadmissible evidence to show Polsinelli 

caused his injuries; specifically, Brody cites email communications which 

allegedly show that, had Polsinelli provided sufficient information, Brody

would have earlier settled the lawsuit with Geared. Polsinelli argues that 

those emails are not in the record. Regardless, emails are hearsay and 

therefore are not considered in deciding motions for summary judgment. 

Cullison v. City of Peoria, 120 Ariz. 165, 168 (1978) (hearsay is not competent 

evidence that creates a triable issue of fact to withstand summary 

judgment). Because the expert provided no admissible opinions on 

causation, the Preliminary Expert Affidavit is insufficient under A.R.S. § 12-

2602 as a matter of law and does not serve to raise a triable issue. 

Accordingly, the superior court did not err.

B. Superior Court Matter

¶29 Brody argues that the superior court further erred in granting 

Polsinelli’s motion for partial summary judgment in the superior court 

matter. We disagree.

¶30 On May 9, 2014, Polsinelli filed a lawsuit in superior court 

against Jung on behalf of BFILP and contemporaneously filed a TRO 

application to enjoin Jung from selling the Clinton Property. Brody alleges 

that Polsinelli is liable for legal malpractice because Polsinelli did not timely 

record a lis pendens, which Brody further contends would have prevented 

Jung from selling the Clinton Property in violation of the TRO.

1. Standing

¶31 Polsinelli argues that Brody does not have standing to bring 

this action because BFILP claimed ownership interest in the Clinton 

Property, not Brody. To have standing, a plaintiff must have suffered “an 

injury in fact, economic or otherwise, caused by the complained-of conduct, 

and resulting in a distinct and palpable injury giving the plaintiff a personal 

stake in the controversy’s outcome.” Karbal v. Ariz. Dep’t of Revenue, 215 

Ariz. 114, 116, ¶ 7 (App. 2007) (citation omitted). Rule 17 requires that “[a]n 

action must be prosecuted in the name of the real party in interest.”

¶32 Brody is not the real party in interest and thus has no standing 

to appeal. Polsinelli filed a lawsuit against Jung on behalf of BFILP, not 

Brody. Moreover, it is undisputed that Appellants, in their individual 

capacities, never owned the Clinton Property. The record reflects Brody
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conceded below that Appellants never claimed any personal ownership 

interest in the Clinton Property. Brody further conceded below that Brody 

“never claimed that he or his wife was personally injured by the sale of the 

Clinton Property and that the sole claimed injury was to Brody Family 

Investments, LP.”

¶33 Appellants contend that Brody signed a fee agreement with 

Polsinelli on May 13, 2014 and therefore, “BFI is the Plaintiff in the lawsuit 

against Jung and his various entities, . . . but it is not the client.” The fee

agreement is not in the record. See GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 

165 Ariz. 1, 4 (App. 1990) (on appeal, materials not in the record before the 

superior court will not be considered). Brody cites his deposition 

testimony, in which he affirms that the complaint was filed at his 

“direct[ion] . . . as the general partner” of the partnership. Even if Brody 

signed the client agreement as a BFILP partner, that alone does not make 

him the real party in interest. Section 29-1013 states, “[p]roperty acquired 

by a partnership is property of the partnership and not of the partners 

individually.” Any injury that resulted from the sale of the Clinton 

Property in violation of the TRO was suffered by BFILP. Accordingly, 

Brody’s argument is not supported by specific facts sufficient to raise a 

triable issue, and therefore the superior court did not err.

2. Preliminary Expert Affidavit 

¶34 The Preliminary Expert Affidavit also provides insufficient 

expert testimony on the standard of care in the superior court matter. In a 

legal malpractice action, unless the attorney’s negligence is “so grossly 

apparent that a lay person would have no difficulty recognizing it,” expert 

testimony is required. Asphalt Eng’rs, 160 Ariz. at 135-36. Expert testimony 

is required “to establish the standard of care by which the professional 

actions of an attorney are measured and to determine whether the attorney 

deviated from the proper standard.” Baird, 156 Ariz. at 420. Here, while 

the expert’s disclosed opinion was that it was below the standard of care 

for Polsinelli “not to follow Plaintiffs instructions,” such disclosed opinion 

does not inform the trier of fact as to what a reasonably prudent lawyer 

would have done under the circumstances. Brody’s expert testimony is 

insufficient. Accordingly, the superior court did not err in granting the 

motion for partial summary judgment in the superior court matter.
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CONCLUSION

¶35 For the foregoing reasons, we affirm.1

 

1 Mr. Brody filed a Notice of Appearance the day before oral argument 

and argued before the court. Mr. Brody is a retired member of the Arizona 

State Bar. Pursuant to Rule 32(c)(5) of the Arizona Rules of the Supreme 

Court, a lawyer on retired status cannot practice law in any jurisdiction, 

except to provide volunteer pro bono services under the supervision of a 

qualified legal services organization. Accordingly, although Mr. Brody

may enter an appearance on his own behalf, Mr. Brody may not appear as 

counsel on behalf of Mrs. Brody or any other party. Therefore, to the extent 

Mr. Brody argued on behalf of Mrs. Brody or any others, Mr. Brody’s Notice 

was improper and his argument possibly violated Arizona Rules of the 

Supreme Court 31 and 32.