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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MISSY ATKINS, et al., Plaintiffs/Appellants,

v.

SNELL & WILMER LLP, Defendants/Appellees.

No. 1 CA-CV 17-0519

Appeal from the Superior Court in Maricopa County

Nos. CV2011-052578; CV2011-052858; CV2014-052003 (Consolidated)

The Honorable Roger E. Brodman, Judge

AFFIRMED

APPEARANCES

Missy Atkins, Barry M. Atkins, West Palm Beach, Florida 

Plaintiffs/Appellants

The Marhoffer Law Firm, PLLC, Scottsdale

By David Marhoffer

Counsel for Plaintiff/Appellant Maverick

Fennemore Craig, P.C., Phoenix

By Jessica Post, Amy Abdo, Timothy J. Berg

Counsel for Defendants/Appellees

FILED 10-16-2018
ATKINS, et al. v. SNELL & WILMER, et al.

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge James P. Beene delivered the decision of the Court, in

which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined.

B E E N E, Judge:

¶1 Barry and Missy Atkins (the “Atkinses”) and Maverick 8610, 

LLC, (“Maverick”) appeal the superior court’s judgment awarding 

damages and sanctions in favor of Snell & Wilmer, LLP, Donald W. Bivens 

and Particia Lee Refo, Robert M. Kort and Myndi M. Kort (collectively 

“Snell”). For the following reasons, we affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 In April 2011, Missy Atkins (“Missy”) filed a complaint 

against Snell, alleging professional negligence, breach of fiduciary duty, 

fraud, and requested punitive damages. In May 2011, Barry M. Atkins 

(“Barry”) filed a separate complaint against Snell, alleging the same causes 

of action for the same events. Missy amended her complaint to add 

Maverick as a plaintiff in May 2011. Snell sued the Atkinses and Maverick 

for breach of contract for unpaid legal fees and costs in April 2012. In 

January 2014, Barry filed another complaint stemming from the same 

factual allegations, but added claims for constructive fraud, fraudulent 

concealment, breach of the covenant of good faith and fair dealing, while 

 

1 Snell argues in its opening brief the Atkinses and Maverick failed to: 

1) include citations to the record or legal authorities; 2) provide any legal 

argument regarding certain issues; 3) identify issues for which they raised 

legal arguments; and 4) argue certain issues beyond incorporating an 

argument by reference to their filings in the superior court. The lack of 

reference to legal authority and the record could be considered 

abandonment and waiver of a claim. See ARCAP 13(a)(7)(A); State v. Carver, 

160 Ariz. 167, 175 (1989). Issues the Atkinses or Maverick failed to address 

according to these authorities are waived. In our discretion, we may, 

however, decide a waived issue on its merits based on our own review of 

the record. See Adams v. Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App. 

1984) (recognizing that courts prefer to decide each case upon its merits 

rather than dismissing on procedural grounds).
ATKINS, et al. v. SNELL & WILMER, et al.

Decision of the Court

3

restating the other causes of action. The cases were consolidated in March 

2015.2

¶3 In their complaints, the Atkinses alleged Snell negligently 

represented them and Maverick during a lawsuit filed in May 2007 by 

Randall K. Zeller, who asserted claims for breach of contract, 

fraud/conversion, and fraudulent transfer (the “Zeller litigation”). Barry 

settled the Zeller litigation upon Snell’s analysis and advice in May 2009. 

Barry attended the settlement conference on behalf of himself, Missy, and 

Maverick, but Missy signed the settlement agreement in her own right; both 

Atkinses signed for Maverick as its members.

¶4 In the Zeller litigation, Zeller was collecting on loans he 

extended to the Atkinses and Maverick. Through his first loan, Zeller lent 

Barry $220,000 to continue litigating Barry’s unrelated lawsuit against 

various corporate and individual defendants in Florida (the “Topp

litigation”), a loan for which Barry executed three documents—a 

promissory note, a security agreement, and a “Participation Agreement.”

The promissory note required Barry to repay the $220,000 to Zeller with 

interest at a fixed rate of 10% per annum and 18% upon default, which the 

Atkinses repaid with 10% interest. Through the Participation Agreement,

however, Barry also agreed to pay Zeller 10% of any net recovery received 

in the Topp litigation, a share the Atkinses subsequently refused to pay

Zeller. While awaiting resolution of the Topp litigation, Zeller extended 

three additional loans for the Atkinses’ living expenses—for $50,000 (in 

April 2005), $30,000 (in August 2005), and $10,000 (in January 2006). Lastly,

Zeller lent the Atkinses $100,000 to deposit on their $2.7 million house in 

Carefree, Arizona, which Maverick bought in July 2006.

¶5 On June 14, 2006, both Barry and Missy executed a $15 million 

settlement agreement in the Topp litigation. The Atkinses netted $6,569,114, 

which they immediately deposited in an M&I Bank account held solely by 

 

2 Throughout the litigation, we have resolved two appeals the 

Atkinses and Maverick filed: 1) we ruled, inter alia, the superior court erred 

by dismissing the legal malpractice claim on a motion to dismiss, see Atkins 

v. Snell & Wilmer, L.L.P. (“Atkins I”), 1 CA-CV 12-0018, 2012 WL 6720355, at 

*6, ¶ 27 (Ariz. App. Dec. 27, 2012) (mem. decision); and 2) we ruled the 

superior court’s denial of a Rule 60(c)(4) motion and its award of sanctions 

were proper. See Atkins v. Snell & Wilmer LLP (“Atkins II”), 1 CA-CV 

16-0733, 2018 WL 710243, at *3, ¶¶ 13, 16 (Ariz. App. Feb. 6, 2018) (mem. 

decision).
ATKINS, et al. v. SNELL & WILMER, et al.

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Missy. Missy then distributed the funds to accounts held by Maverick and 

Adventure Ventures, two entities owned and operated exclusively by the 

Atkinses and formed when the Atkinses received the Topp settlement. 

Maverick, formed in July 2006, for the purpose of purchasing the $2.7 

million house in Carefree, Arizona, was funded solely from the Topp

litigation settlement. Moreover, the Atkinses used accounts established for 

Maverick and Adventure Ventures to pay for personal expenses because

Barry did not have a personal bank account between 1998 and 2010.

¶6 At the core of the Atkinses’ professional malpractice lawsuit 

against Snell is their postnuptial agreement (“PNA”) executed in February

1998 in connection with their pending divorce proceedings. In March 1998, 

a Florida court entered an order titled “Agreed Order Validating PostNuptial Agreement” (“Agreed Order”), domesticated in Arizona in May 

2015. The Atkinses never divorced and the matter was dismissed without 

prejudice in June 1999. The PNA states in section 11 that “attached to this 

Post Nuptial Agreement is an Agreed Order to be entered . . . at the time of 

their dissolution of marriage . . . .” In August 2015, our superior court found 

section 11 ambiguous in relation to the parties’ intent to effectuate the PNA 

without first obtaining a decree of dissolution, a genuine issue of material 

fact to be resolved by the jury.

¶7 In December 2015, the superior court granted Snell’s motion 

for summary judgment on the Atkinses’ and Maverick’s claim for punitive 

damages. In June 2016, the superior court granted Snell’s multiple motions

for summary judgment on the Atkinses’ and Maverick’s claims for breach 

of fiduciary duty, fraud, constructive fraud, and breach of the implied 

covenant of good faith and fair dealing.

¶8 Between October 4 and 26, 2016, the Atkinses’ and Maverick’s

remaining claim of legal malpractice and Snell’s claim for breach of contract 

were tried to a jury. On October 20, 2016, Snell moved for a directed verdict 

on Maverick’s claim, which was granted. On October 25, 2016, before the 

case was submitted to the jury, the Atkinses made 12 oral motions for 

directed verdict, all of which the superior court denied. The jury 

unanimously found in favor of Snell on all counts.

¶9 On April 25, 2017, the superior court entered a judgment in 

favor of Snell and assessed $581,483.70 in Arizona Rule of Civil Procedure 

(“Rule”) 68(g) sanctions against the Atkinses and Maverick. On May 26, 

2017, the Atkinses filed an amended Rule 59 motion for a new trial, joined 

by Maverick, which the court denied. The Atkinses and Maverick timely

appealed. We have jurisdiction pursuant to Article 6, Section 9, of the 
ATKINS, et al. v. SNELL & WILMER, et al.

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5

Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) sections 

12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶10 The Atkinses argue the superior court erred by: 1) denying 

their motions for directed verdicts; 2) denying their Rule 59 motion for a 

new trial; 3) giving three jury instructions, which incorrectly stated the law 

and caused them prejudice; 4) improperly granting motions for summary 

judgment on their remaining claims; and 5) awarding sanctions against 

them. Maverick additionally argues the superior court erred by granting a 

directed verdict to Snell on Maverick’s professional malpractice claim

because it sufficiently alleged damages independent of Barry and Missy.

¶11 In our review, we defer to a superior court’s factual findings

supported by substantial evidence, “but we review any issues of law de 

novo.” Sw. Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, 442, ¶ 12 

(App. 2001). “[W]e view the evidence, and all reasonable inferences arising 

therefrom, in the light most favorable to sustaining the judgment.” Alliance 

Marana v. Groseclose, 191 Ariz. 287, 288 (App. 1997).

I. The Atkinses’ Appeal

A. This court lacks jurisdiction to review issues raised in the 

Atkinses’ motions for a directed verdict but not raised in 

their Rule 59 motion for a new trial.

¶12 The Atkinses argue the superior court erred by denying the 

12 motions for directed verdicts because the PNA was valid, enforceable, 

and improperly collaterally attacked by Snell.

¶13 A Rule 50(a) motion allows a party to request that a perceived 

insufficiency of proof be cured by the reopening of a party’s case before the 

case is submitted to the jury, Marquette Venture Partners II, L.P. v. Leonesio, 

227 Ariz. 179, 182, ¶ 10 (App. 2011), when “a party has been fully heard on 

an issue and there is no legally sufficient evidentiary basis for a reasonable 

jury to find for that party on that issue,” Rule 50(a)(1); Desert Mountain 

Props. Ltd. P’ship v. Liberty Mut. Fire Ins. Co., 225 Ariz. 194, 199-200, ¶ 12 

(App. 2010), aff’d, 226 Ariz. 419, ¶ 2 (2011). The Rule 50(a) motion is a time 

saving device. Leonesio, 227 Ariz. at 182, ¶ 10. Once the jury delivers a 

verdict, however, the Rule 50(a) motion must be renewed by a Rule 50(b) 

motion because “a Rule 50(a) motion is insufficient to satisfy the 

jurisdictional requirement of § 12-2102(C),” which a Rule 50(b) motion 

satisfies. Leonesio, 227 Ariz. at 182-83, ¶¶ 9, 13; see also A.R.S. § 12-2102(C)
ATKINS, et al. v. SNELL & WILMER, et al.

Decision of the Court

6

(after a jury trial, a motion for a new trial must be made before the supreme 

court shall “consider the sufficiency of the evidence to sustain the verdict 

or judgment”).

¶14 After Snell presented its case to the jury, the Atkinses’ 

attorney raised 12 oral motions for a directed verdict pursuant to Rule 50(a), 

which were all denied. On October 26, 2016, the jury rendered its verdicts. 

On April 25, 2017, the superior court entered judgment for Snell. The

Atkinses filed a timely Rule 59 motion for a new trial, but they failed to 

request that the court “direct the entry of judgment as a matter of law”

pursuant to Rule 50(b) as part of the Rule 59 motion, or in a separate filing, 

on all or some of the issues submitted for the directed verdicts. See Rule 

50(b).

¶15 Because the Atkinses failed to renew their Rule 50(a) motions

in a Rule 50(b) motion and our post-verdict review would involve 

assessment of the sufficiency of the evidence, we lack jurisdiction to review 

issues not raised in their Rule 59 motion. See Gibson v. Boyle, 139 Ariz. 512, 

518 (App. 1983) (“A directed verdict may only be granted where there is no 

evidence introduced which would justify a reasonable person in returning a 

verdict for the opposing party.”) (emphasis added) (citation omitted).

B. The superior court did not abuse its discretion when it

denied the Atkinses’ Rule 59 motion for a new trial.

¶16 The Atkinses argue the superior court erroneously denied 

their Rule 59 motion because 1) the court failed to abide by the Full Faith 

and Credit Clause of the United States Constitution, U.S. Const. art. IV, § 1,

regarding their PNA and allowed irrelevant and prejudicial evidence 

regarding the PNA to be introduced at trial; and 2) three jury instructions—

usury, postnuptial, and defamation—were “contrary to the rule of law.”

1. Substantial evidence supported the jury finding that 

the Atkinses failed to inform Snell about the PNA.

¶17 The superior court may grant a new trial when “the verdict, 

decision, findings of fact, or judgment is not supported by the evidence or 

is contrary to law.” Rule 59(a)(1)(H). We review the denial of a Rule 59 

motion based on the verdict being against the weight of evidence for an 

abuse of discretion. Dawson v. Withycombe, 216 Ariz. 84, 95, ¶ 25 (App. 

2007). We view the evidence in the light most favorable to sustaining the 

jury verdict and will affirm if substantial evidence supports it. Warrington 

v. Tempe Elementary Sch. Dist. No. 3, 197 Ariz. 68, 69, ¶ 4 (App. 1999). “The 

credibility of a witness’ testimony and the weight it should be given are 
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issues particularly within the province of the jury.” In re Estate of Reinen v. 

N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 287, ¶ 12 (2000) (citation omitted).

¶18 At trial, the jury expressly found that the Atkinses had not 

informed Snell about the PNA before the May 2009 Zeller litigation

settlement conference. In reaching its conclusion, the jury made credibility 

determinations: it evaluated the direct testimony of both Barry and Missy 

Atkins against the direct testimony of Snell’s attorneys Robert M. Kort and 

Donald W. Bivens.

¶19 At trial, Barry testified that he informed Snell about the PNA 

and about his understanding that the PNA protected Missy from being 

sued for his debts. Missy testified she told Kort about the PNA and 

assumed he had a copy. To the contrary, Kort testified the Atkinses never 

told him about the PNA and did not provide a copy to Snell, although all 

relevant documents were requested in the Snell engagement letter

formalizing Snell’s representation of the Atkinses and Maverick in the Zeller

litigation. Bivens testified that the Atkinses never told him about the PNA 

and that he understood, from their actions, that the Atkinses lived in a 

community property arrangement. See In re Estate of Reinen, 198 Ariz. at

287, ¶ 12.

¶20 The jury received other evidence that contradicted the 

Atkinses’ testimony. In 2006, the Atkinses hired Hymson law firm to 

prepare estate planning documents for them. The Atkinses did not inform 

Hymson about the PNA at any time during the drafting process, although 

Hymson’s intake form specifically asked them to bring any pre- or postnuptial agreements. The resulting document, the Atkins Family Trust 

executed in 2006, identified no separate property and identified as 

community property both Maverick and Adventure Ventures, the entities 

holding the $6.5 million Topp settlement. The Atkinses, acting as the sole 

members of Maverick and Adventure Ventures, assigned their 100% 

interests in these entities to the Trust.

¶21 Additionally, the jury received evidence the Atkinses had not 

provided a copy of the PNA to other former attorneys: 1) Don Hayden, who 

represented Barry in the Topp litigation; 2) Ken Johnson, who also 

represented Barry in the Topp litigation; 3) Blaine Hibberd, who represented 

the Atkinses in negotiating the reduction of a judgment for monies owed to 

American Express; and 4) Gordon Dudley, who represented the Atkinses

in a lawsuit prior to the Zeller litigation.
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¶22 Further, the Atkinses’ expert on an attorney’s standard of 

care, Robert Garrett, did not testify that the Arizona attorney standard of 

care includes a duty to search for undisclosed documents by a client, such 

as the PNA or the Florida judgment, or that constructive notice creates a 

duty to investigate clients’ public filings in other states. Through counsel, 

Missy conceded that she was not alleging a breach of the standard of care 

arising out of a duty to investigate.

¶23 Because the jury determined credibility and substantial 

evidence supported the jury finding that the Atkinses failed to inform Snell 

about the PNA, we affirm the superior court’s denial of the motion for new 

trial on this issue. See Warrington, 197 Ariz. at 69, ¶ 4.

¶24 Moreover, in their Rule 59 motion and appellate briefs, the 

Atkinses raised multiple arguments pertaining to the enforceability of the 

PNA. Because the jury determined that the Atkinses failed to disclose the 

PNA to Snell during the firm’s representation of the Atkinses in the Zeller

litigation, their enforceability arguments are irrelevant. Therefore, we do 

not review the superior court’s rulings regarding the admissibility or 

validity of the PNA made before and during trial because any such error 

would be harmless. Gibson, 139 Ariz. at 518.

2. None of the jury instructions given misled the jury.

¶25 In their Rule 59 motion, the Atkinses further challenged three

of the jury instructions given: 1) the usury instruction, 2) the “Postnuptial 

Agreement” and “Separate Property” instruction, and 3) the defamation 

instruction—contending all three were “directly contrary to the rule of law 

and were harmful to [them,] requiring a new trial.”

¶26 Although we review a superior court’s denial of a motion for 

new trial based on giving a jury instruction for an abuse of discretion, “we 

review de novo whether jury instructions accurately state the law.” Stafford 

v. Burns, 241 Ariz. 474, 478, ¶ 10 (App. 2017) (citation omitted). “A jury 

instruction need not be a model instruction, as long as it does not mislead 

the jury when the instructions are read together and in light of each other.” 

Life Inv’rs Ins. Co. of Am. v. Horizon Res. Bethany, Ltd., 182 Ariz. 529, 532 (App. 

1995). A jury instruction will warrant reversal only if it was “both harmful 

to the complaining party and directly contrary to the rule of law.” Powers 

v. Taser Int’l, Inc., 217 Ariz. 398, 400, ¶ 12 (App. 2007), as corrected (Jan. 4, 

2008).
ATKINS, et al. v. SNELL & WILMER, et al.

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a. The usury instruction accurately stated Florida 

law on corrupt intent.

¶27 The Atkinses argue the usury instruction should not have 

included five of the seven stated factors in determining corrupt intent to 

receive more than the legally permissible interest, contrary to applicable 

Florida law. We disagree.

¶28 The “corrupt intent” part of the superior court’s “usury 

instruction” defined corrupt intent as “requir[ing] a corrupt purpose in the 

lender’s mind to get more than [the] legal rate of interest for the money 

lent.” The instruction further listed seven factors, which it directed “the 

jury may consider in determining corrupt intent” (emphasis added), 

stressing that “[t]he determination of corrupt intent is to be made based 

upon the circumstances surrounding the entire transaction.” See Kraft v. 

Mason, 668 So. 2d 679, 684 (Fla. Dist. Ct. App. 1996) (quoting Jersey PalmGross, Inc. v. Paper, 658 So. 2d 531, 534 (Fla. 1995)). In Florida, the factors 

that can be considered in determining corrupt intent include: the lender’s 

knowledge, the total amount the lender would receive, the sophistication 

of the parties, who dictated the terms of the note, whether there was duress, 

whether repayment was contingent on an uncertain event, and the 

bargaining position of the parties. See Kraft, 668 So. 2d at 684; Valliappan v. 

Cruz, 917 So. 2d 257, 260 (Fla. Dist. Ct. App. 2005) (considering 

sophistication of the parties, repayment’s dependency upon a contingency, 

who wrote the terms of the loan); Jersey Palm-Gross, Inc. v. Paper, 639 So. 2d 

664, 668 (Fla. Dist. Ct. App. 1994) (considering sophistication of the parties, 

the lender’s knowledge of the amount of interest to be received and intent 

to receive the amount charged, borrower’s financial distress and urgent 

need for the loan, who dictates terms of the loan, ignorance of the usury 

laws); Ross v. Whitman, 181 So. 2d 701, 703 (Fla. Dist. Ct. App. 1966) (stating 

ignorance of the usury laws or reliance upon legal advice does not preclude 

a finding of corrupt intent).

¶29 The Atkinses argue the superior court failed to include their 

proposed instruction on contingencies. This is incorrect. One of the seven 

factors of corrupt intent to be considered by the jury included an instruction 

on contingencies and incorporated the substantial risk measure as 

proposed by the Atkinses, which is an accurate expression of Florida law. 

See Kraft, 668 So. 2d at 684 (Fla. Dist. Ct. App. 1996) (“A loan agreement is 

not usurious when payment depends upon a contingency.”); Diversified 

Enters., Inc. v. West, 141 So. 2d 27, 30 (Fla. Dist. Ct. App. 1962) (“When the 

principal sum lent or any part of it is placed in hazard, the lender may 

lawfully require, in return for the risk, as large a sum as may be reasonable, 
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provided it is done in good faith. The risk, however, must be substantial, 

for a mere colorable hazard will not preclude excessive interest charges 

from being usurious.”).

¶30 Accordingly, the superior court’s corrupt intent instruction 

did not prejudice the Atkinses as it appropriately stated Florida law, see

Powers, 217 Ariz. at 400, ¶ 12, and, read in conjunction with the additional

permissive and the totality of the circumstances language, the instruction

gave the jury considerable discretion in finding all or some of the factors

listed, see Life Inv’rs Ins. Co. of Am., 182 Ariz. at 532; Stafford, 241 Ariz. at 478, 

¶ 10.

¶31 The Atkinses further argued the jury was improperly 

instructed on determining statutorily defined remedies for a Florida usury 

loan. Any potential error would have been harmless because the jury found 

that Zeller did not have a corrupt intent and the instruction conditioned 

review of remedies upon finding corrupt intent by clear and convincing 

evidence. See Gibson, 139 Ariz. at 518. Additionally, the Atkinses argue the 

jury should have been instructed on novation because Snell argued Zeller 

changed the terms of the loan when he forewent enforcement of the 

promissory note in December 2005. Because the Atkinses do not support 

their argument by citations to the record, they waived it for our review. See

ARCAP 13(a)(7)(A); State v. Carver, 160 Ariz. 167, 175 (1989). Still, the

superior court’s decision to exclude a novation instruction was within its 

discretion because Snell argued, contrary to the Atkinses’ position, Zeller 

understood the loan would be repaid only if Barry won at the Topp

litigation. See Pima County v. Gonzalez, 193 Ariz. 18, 20, ¶ 7 (App. 1998) 

(stating the superior court cannot instruct the jury on a theory that is not 

supported by the facts).

b. Any potential error by instructing the jury on 

the PNA and property characterization was 

harmless.

¶32 The Atkinses argue the jury should not have been instructed 

on the characterization of property as separate or community because it is 

a question of law for the court. The Atkinses further argue the court failed 

to instruct the jury about the status of their postnuptial agreement as a final 

judgment that cannot be abandoned, and it erred by failing to give an 

instruction defining constructive notice.

¶33 As explained in ¶¶ 17-24, supra, substantial evidence 

supported the jury’s finding that the Atkinses did not inform Snell about 
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the PNA. Any error in instructing the jury on characterization of the marital 

property in relation to the PNA, its validity, or abandonment, would have 

been harmless, causing no prejudice to the Atkinses. See Gibson, 139 Ariz. 

at 518.

¶34 Because the Atkinses’ expert testimony on the attorneys’

standard of care did not include a duty to search for an undisclosed 

document or a duty to investigate their clients’ public filings in other states, 

the court did not abuse its discretion by declining to instruct the jury on 

constructive notice. See Stafford, 241 Ariz. at 478, ¶ 10; Gonzalez, 193 Ariz. at

20, ¶ 7 (stating we must reverse the jury verdict “when the court instructs 

the jury on a theory that is not supported by the facts”).

c. The Atkinses failed to preserve appellate 

review of the defamation instruction.

¶35 The Atkinses contend the court erred by instructing the jury 

that Arizona, rather than Florida, law on defamation applied in this case.

¶36 To preserve an objection to jury instructions on appeal, a 

party must specifically object to the superior court’s ruling “before the jury 

retires to consider its verdict” by stating distinctly “what is being objected 

to and the grounds for the objection.” S. Dev. Co. v. Pima Capital Mgmt. Co., 

201 Ariz. 10, 19, ¶ 20 (App. 2001) (quotations omitted); see also Rule

51(b)(3)(C), (c). Subsequently, a party must move for a new trial on the 

issue to preserve it for appellate review because a review of the superior 

court’s refusal to instruct the jury on a theory of the case requires a 

sufficiency of the evidence determination. See A.R.S. § 12-2102(C); Rule

59(a)(1)(F) (stating grounds for a new trial include an error in giving or 

refusing jury instructions); Lewis v. S. Pac. Co., 105 Ariz. 582, 583 (1970).

¶37 The Atkinses argue the court’s conclusion that Arizona law 

on defamation applies was a purely legal issue. See State Farm Fire & Cas. 

Ins. Co. v. Grabowski, 214 Ariz. 188, 192, ¶ 12 (App. 2007) (party challenging 

legality of jury instruction, rather than whether evidence supported the 

instruction, need not move for new trial to preserve issue for appellate 

review). In Arizona, the “courts apply the principles of the Restatement

(Second) of Conflict of Laws (1971) to determine the controlling law for 

multistate torts.” Bates v. Superior Court, 156 Ariz. 46, 48 (1988) (footnote 

omitted). “In an action for defamation, the local law of the state where the 

publication occurs determines the rights and liabilities of the parties . . .

unless . . . some other state has a more significant relationship under the 

principles stated in § 6 to the occurrence and the parties, in which event the 
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local law of the other state will be applied.” Restatement (Second) of 

Conflict of Laws (“Restatement”) § 149 (1971) (emphasis added). To 

determine which law controls, the court must apply the Restatement’s

choice of law principles to the facts of the case. Bates, 156 Ariz. at 49.

¶38 Because the superior court had to have engaged in a

qualitative evidentiary inquiry into the parties’ relevant contacts, as guided 

by section 145 of the Restatement, its conclusion that Arizona law governs 

is not a purely legal conclusion. See Grabowski, 214 Ariz. at 192, ¶ 12; see also 

Bates, 156 Ariz. at 48-49 (listing relevant factors to consider in determining 

contacts). Therefore, the Atkinses had to have filed a motion for a new trial 

to preserve the issue for our review. See A.R.S. § 12-2102(C); Lewis, 105 Ariz. 

at 583. Although the Atkinses’ attorneys objected to the defamation 

instruction before the jury deliberated, the Atkinses failed to include this 

issue in their Rule 59 motion for a new trial. We conclude, thus, that the 

Atkinses waived this issue for our review. See Lewis, 105 Ariz. at 583.

¶39 In summary, none of the challenged jury instructions misled 

the jury on the applicable law. See Keg Restaurants Ariz., Inc. v. Jones, 240 

Ariz. 64, 78, ¶ 50 (App. 2016); see also Gonzalez, 193 Ariz. at 20, ¶ 7 (stating 

an instruction is correct when, “considering the instructions as a whole, the 

jury was properly guided in arriving at a correct decision”). The superior

court did not abuse its discretion in denying the Atkinses’ Rule 59 motion. 

See Stafford, 241 Ariz. at 478, ¶ 10.

C. Motions for summary judgment were properly granted.

¶40 The Atkinses contend many of their claims were improperly 

dismissed by summary judgment because evidence supported the claims.

The dismissed claims included: 1) breach of fiduciary duty, 2) constructive 

fraud, 3) fraudulent concealment, 4) breach of the good faith and fair 

dealing covenant implied in their contract with Snell, and 5) punitive 

damages.

¶41 Entry of summary judgment is proper “if the moving party 

shows that there is no genuine dispute as to any material fact and the 

moving party is entitled to judgment as a matter of law.” Rule 56(a). We 

determine de novo whether any genuine issue of material fact exists and 

whether the superior court erred in applying the law; we will uphold the 

court’s ruling if correct for any reason. Logerquist v. Danforth, 188 Ariz. 16, 

18 (App. 1996). We construe the evidence and reasonable inferences in the 

light most favorable to the non-moving party. Wells Fargo Bank v. Ariz. 

Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. Fund, 201 Ariz. 
ATKINS, et al. v. SNELL & WILMER, et al.

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474, 482, ¶ 13 (2002). “[O]ur review of the superior court’s decision is 

limited to the record before the court when it considered the motion for 

summary judgment.” Desert Mountain, 225 Ariz. at 215, ¶ 94.

1. The breach of fiduciary duty claim

¶42 The Atkinses assert Snell breached its fiduciary duty to them

and disputed material facts remain regarding Snell: 1) giving incomplete, 

false, and misleading legal advice; 2) subordinating their interests to Snell’s

and Zeller’s interests; 3) failing to disclose to them that Snell determined 

that Zeller should receive the benefit of his bargain; and 4) exposing Missy 

to liability in the Zeller litigation, although “she was not a party to any Zeller 

agreement.”

¶43 An attorney’s bad advice, without more, is not a breach of 

fiduciary duty. See Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 

26 (App. 1996); see also, e.g., Crist v. Loyacono, 65 So. 3d 837, 842, ¶ 15 (Miss. 

2011) (“The law recognizes a clear distinction between allegations of legal 

malpractice based on negligence (sometimes called a breach of the standard 

of care) and those based on breach of fiduciary duty (sometimes called a 

breach of the standard of conduct).”); Smith v. Mehaffy, 30 P.3d 727, 733 (Co.

App. 2000) (same). “[T]he essential elements of legal malpractice based on 

breach of fiduciary duty include the following: (1) an attorney-client 

relationship; (2) breach of the attorney’s fiduciary duty to the client; (3) 

causation, both actual and proximate; and (4) damages suffered by the 

client.“ Cecala v. Newman, 532 F.Supp. 2d 1118, 1135 (D. Ariz. 2007)

(citations omitted).

¶44 To breach a fiduciary duty, an attorney must put his or her 

own interests or the interests of another before the interests of a client. See 

Weil, Gotshal & Manges, LLP, v. Fashion Boutique of Short Hills, Inc., 780 

N.Y.S.2d 593, 595-96 (A.D. 2004); see also Trousdale v. Henry, 261 S.W.3d 221, 

227 (Tex. App. 2008) (stating a breach of fiduciary duty claim “requires 

allegations of self-dealing, deception, or misrepresentations that go beyond 

the mere negligence allegations in a malpractice action”) (emphasis added).

¶45 The Atkinses fail to cite to evidence in the record regarding 

the relationship between Snell and Zeller that would cause Snell to seek to 

benefit Zeller. Accordingly, this claim is waived. See ARCAP 13(a)(7)(A) 

(requiring appellant’s brief to contain arguments with “citations of legal 

authorities and appropriate references to the portions of the record on 

which the appellant relies”); Carver, 160 Ariz. at 175 (“Failure to argue a 

claim usually constitutes abandonment and waiver of that claim.”); Schabel 
ATKINS, et al. v. SNELL & WILMER, et al.

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v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167 (App. 1996) (“Issues 

not clearly raised and argued in a party’s appellate brief are waived.”).

Further, the Atkinses’ allegation that Snell put its own interests of 

generating fees before the Atkinses’ interests is contrary to Snell

encouraging the Atkinses to settle the Zeller litigation, and ultimately 

reaching a settlement in the Atkinses’ favor. Snell brought about other

favorable outcomes in the Zeller litigation: Snell successfully defended

against Zeller’s motion for summary judgment and won a dismissal of two 

counts in the Zeller litigation. Moreover, arguing that “disputed facts 

remain regarding whether the legal advice [Snell] gave [the Atkinses and 

Maverick] was proper” is not a proper basis for a fiduciary duty claim, but 

rather for a legal malpractice claim. See Standard Chartered PLC, 190 Ariz. at 

26.

¶46 Similarly, the Atkinses do not explain how Snell breached its 

fiduciary duty to Missy on her separate claim, which is based on the PNA. 

If the PNA was not valid, both Barry and Missy share the same interest as 

co-owners of the community property. If the PNA was valid, any loss 

incurred by Missy was to be indemnified by Barry under the PNA. Further, 

the Atkinses failed to argue, or demonstrate with evidence in the record, 

any reason for Snell to favor Barry over Missy. The jury also found that 

Snell did not provide negligent legal services to Missy based on any conflict 

of interest, separate property and/or the PNA.

¶47 Although the Atkinses incorporate by reference “numerous 

additional allegations of breaches of fiduciary duty,” they provide no legal 

arguments regarding those allegations, waiving them on appeal. See

ARCAP 13(a)(7)(A); Carver, 160 Ariz. at 175; Schabel, 186 Ariz. at 167.

2. The constructive fraud, fraudulent concealment, and 

good faith and fair dealing covenant claims

¶48 The Atkinses argue Snell misrepresented to Barry various 

legal theories and made incorrect interpretations of Arizona and Florida 

laws related to the Zeller litigation. They maintain that sufficient evidence 

exists which supports their claim that these misrepresentations constitute a

basis for constructive fraud, fraudulent concealment, and good faith/fair 

dealing claims.

¶49 “The essence or gravamen of the cause of action controls this 

determination, not the form in which the cause is pleaded.” Dunlap v. City 

of Phoenix, 169 Ariz. 63, 68 (App. 1990); see also Kimleco Petroleum, Inc. v. 
ATKINS, et al. v. SNELL & WILMER, et al.

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Morrison & Shelton, 91 S.W.3d 921, 924 (Tex. App. 2002) (A case arising out 

of an attorney’s alleged bad legal advice or improper representation should 

not “be split out into separate claims for negligence, breach of contract, or 

fraud . . . .”).

¶50 Because Snell did not breach its fiduciary duty to the 

Atkinses, see ¶¶ 42-47, supra, the Atkinses’ constructive fraud claim also 

fails. See Lasley v. Helms, 179 Ariz. 589, 591-92 (App. 1994) (stating a

constructive fraud claim can arise only from breach of duties stemming 

from a fiduciary or confidential relationship). Because the Atkinses 

complain about inadequate legal advice, their claim does not sound in 

fraud.

¶51 The Atkinses also point to no evidence regarding Snell’s 

concealment showing “that they had not researched Florida law before 

rendering advice” and that “Zeller’s law suit was likely dismissible in 

Arizona.” See Local No. 395, 201 Ariz. at 496 n.22 (“Liability for fraudulent

concealment . . . lies against a party to a transaction who by concealment or 

other action intentionally prevents the other from acquiring material 

information.”) (citation and quotations omitted). To the contrary, the 

record demonstrates that Snell openly discussed the now questioned legal 

advice with the Atkinses.

¶52 Additionally, the Atkinses do not argue, or cite to any 

evidence, that Snell made a specific contractual promise beyond a general 

representation in the Zeller litigation or what such a promise might have 

been. See Collins v. Miller & Miller, Ltd., 189 Ariz. 387, 395 (App. 1996) (An 

action for breach of a general contract to provide legal services can sound 

in contract “[o]nly if there is a specific promise contained in the 

contract . . . and then only to the extent the claim is premised on the 

nonperformance of that promise;” otherwise, “a professional malpractice 

action does not ‘arise’ from contract, but rather from tort.”) (quoting Barmat 

v. John &Jane Doe Partners A-D, 155 Ariz. 519, 524 (1987)).

¶53 Although Missy stated a separate claim for fraud, the

Atkinses do not specifically argue this issue in their legal briefs on appeal.

Therefore, this issue is waived on appeal. See ARCAP 13(a)(7)(A); Carver, 

160 Ariz. at 175.

3. Punitive damages claim

¶54 The Atkinses argue the superior court erred by granting 

Snell’s motion for summary judgment on punitive damages because the 

Atkinses “cited over 54 facts supporting an award of punitive damages,”
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demonstrating Snell’s conscious choice to subordinate their legal rights and 

best interests to those of Zeller. As an initial matter, the Atkinses contend 

the superior court is bound by our decision on their motion to dismiss. See

Atkins I, 2012 WL 6720355, at *8, ¶ 36 (“Atkins pled sufficient facts to 

support his claim for punitive damages.”). We stress, however, that the 

superior court reviews a Rule 12(b)(6) motion under a different standard of 

review: all facts plead are assumed to be true. See, e.g., Cullen v. AutoOwners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008) (in reviewing the complaint’s 

dismissal, we “assume the truth of the well-pled factual allegations and 

indulge all reasonable inferences therefrom”). On a Rule 56 motion, 

however, the court reviews the facts in a light most favorable to the nonmoving party and considers whether the parties presented a “genuine 

dispute as to any material fact.” See Rule 56(a); Orme Sch. v. Reeves, 166 Ariz. 

301, 310 (1990).

¶55 Because punitive damages are “only to be awarded in the 

most egregious of cases, where there is reprehensible conduct combined 

with an evil mind over and above that required for commission of a tort,” 

the Atkinses must show by clear and convincing evidence “an ‘evil mind’

and aggravated and outrageous conduct.” Linthicum v. Nationwide Life Ins. 

Co., 150 Ariz. 326, 331-32 (1986). Such conduct is to involve “some element 

of outrage similar to that usually found in crime.” Rawlings v. Apodaca, 151 

Ariz. 149, 162 (1986).

¶56 There is no evidence in the record of a relationship between 

Snell and Zeller that would cause Snell to seek to benefit Zeller. It further 

includes no evidence showing the “evil mind” requirement for punitive 

damages. In a 2013 deposition, Kort testified that Snell’s analysis regarding 

fairness and equity was rooted in its concern for the strength and likelihood 

of success for the Atkinses. In response to a question about his discussion 

with Barry of the “pros and cons of a jury trial versus a bench trial,” Kort 

stated he repeatedly disclosed his opinion to Barry and further explained:

[T]he fact is that Mr. Zeller provided repeated loans to Mr. 

and Mrs. Atkins for a variety of reasons including buying 

their house. And they did not repay several of those loans.

And at least this loan $220,000 allowed essentially them to 

keep the law firm of their choice and go exact a very beneficial 

settlement, six and a half million dollars or so, that Barry and 

Missy netted. To try to argue because of this Florida statute 

they weren’t obligated to repay Mr. Zeller under the contract 

that Barry prepared, that’s a tough argument . . . to make to 

any trier of fact, whether it be a judge or a jury.
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¶57 Bivens testified similarly that, during a telephone call with 

Mr. Hayden, Barry, and Kort, they realized the advantage the Florida usury 

statute provided as leverage in the pleadings and negotiations. Bivens also 

agreed about the difficulty of arguing, whether to a judge or a jury, that 

Zeller’s $220,000 loan, which resulted in Barry receiving $6.5 million 

dollars, did not need to be repaid. As the superior court recognized, “[t]his 

is a negligence case about strategy; not about punitive damages.”

¶58 The superior court properly granted Snell’s motions for 

summary judgment.

D. The superior court acted within its discretion when it 

awarded sanctions and fees to Snell.

¶59 The Atkinses argue that their requests for the superior court 

to accord the PNA full faith and credit were proper because the PNA was 

entitled to this treatment as a matter of law and awarding attorneys’ fees 

and costs “related to this issue” was error. Maverick made no separate 

argument regarding this claim. We review the superior court’s rulings on 

sanctions for abuse of discretion. Cal X-Tra v. W.V.S.V. Holdings, L.L.C., 229 

Ariz. 377, 410, ¶ 113 (App. 2012).

¶60 The superior court granted Snell the sanctions it requested 

against the Atkinses for their efforts to prevent discovery and motion 

practice related to the PNA. The court also held Maverick jointly and

severally liable with the Atkinses for Snell’s reasonable fees incurred in 

responding to any motions relating to the enforceability of the PNA signed 

by Maverick’s attorney.

¶61 Because the Atkinses did not present any argument regarding 

discovery, they waived challenging any resulting award on appeal. See City 

of Phoenix v. Fields, 219 Ariz. 568, 573, ¶ 23 (2009) (citation omitted) 

(“Generally, we do not address arguments raised in the trial court but not 

in the court of appeals.”). Because Maverick did not challenge the issue of 

sanctions on appeal, it also waived the issue. See Schabel, 186 Ariz. at 167.

¶62 The Atkinses argue the sanctions based on the PNA were 

awarded in error. We disagree. In August 2015, the superior court found 

two material issues of fact requiring a jury determination, even though the 

PNA had been reduced to a judgment. First, the Atkinses were not 

divorced at that time and it was unclear whether they intended the 

judgment to become effective without first obtaining a decree of dissolution 

of their marriage. Second, even if the PNA, reduced to a judgment, went 

into effect, it was ambiguous whether the Atkinses abandoned it, making 
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the PNA unenforceable. The court also correctly noted that the subsequent 

domestication would not necessarily turn an unenforceable judgment into 

an enforceable one.

¶63 Considering the Atkinses filed numerous motions subsequent 

to the superior court’s August 2015 ruling, we conclude the superior court 

did not abuse its discretion in granting sanctions. See Cal X-Tra, 229 Ariz. 

at 410, ¶ 113.

II. The Appeal Filed by Maverick

¶64 Maverick argues the superior court erred by granting a 

directed verdict to Snell on Maverick’s claim for legal malpractice because: 

1) Maverick provided sufficient expert testimony that Snell “gave Maverick 

negligent advice”; and 2) Maverick sufficiently alleged damages 

independent of Barry and Missy to prevail on its claim.

¶65 “[A] plaintiff asserting legal malpractice must prove the 

existence of a duty, breach of duty, that the defendant’s negligence was the 

actual and proximate cause of injury, and the ‘nature and extent’ of 

damages.” Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 12 (2004). Actual injury or 

damages must be “ascertainable, and not speculative or contingent.” Id. at 

¶ 13; Tullar v. Walter L. Henderson, P.C., 168 Ariz. 577, 579 (App. 1991)

(concluding “ascertainable and nonspeculative damages” are required

before a cause of action for professional negligence accrues). A directed 

verdict is properly granted when a party fails to establish damages as an 

essential element of its claim. See Mammas v. Oro Valley Townhouses, Inc., 

131 Ariz. 121, 124 (App. 1981).

¶66 At trial, Mitchell Carter, an expert witness on damages, 

testified only to damages sustained by Barry; he did not opine on damages 

separately suffered by Maverick. Maverick’s attorney did not ask Carter 

any questions. Maverick also presented no evidence it paid Zeller, or Snell, 

although it argues it suffered damages due to its consent to the settlement 

agreement executed in the Zeller litigation, “culminat[ing] in the loss of its 

house.” The IRS, however, held a senior lien on the house worth in excess 

of $1.5 million for non-payment of federal income tax assessed in 2006. 

Further, Barry and Missy Atkins signed the settlement agreement 

individually and on behalf of Maverick as its members. Substantial 

evidence supported finding that Maverick was the “alter ego” of Barry and 

Missy because the financial expert witness, David Perry, testified to 

substantial commingling of assets, no separate business activity by 
ATKINS, et al. v. SNELL & WILMER, et al.

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Maverick, no arm’s length transactions, Maverick’s paying of the Atkinses’ 

personal expenses, and lack of corporate formalities.

¶67 The superior court, thus, properly granted a directed verdict 

in favor of Snell because Maverick failed to establish damages separate 

from the Atkinses.3

¶68 Any evidentiary rulings unrelated to damages are mooted by 

Maverick’s inability to prove the damages element of its claim. See Arpaio 

v. Maricopa Cty. Bd. of Supervisors, 225 Ariz. 358, 361, ¶ 7 (App. 2010)

(citation omitted) (“A case becomes moot when an event occurs which 

would cause the outcome of the appeal to have no practical effect on the 

parties.”).

¶69 Because it is not necessary to our ruling, we decline to reach 

Maverick’s other arguments. See State v. Hardwick, 183 Ariz. 649, 657 (App. 

1995) (declining to reach the remaining issues once the court found grounds 

for resolution,); State v. Boteo-Flores, 230 Ariz. 551, 553, ¶ 7 (App. 2012) 

(stating an appellate court will uphold the superior court’s ruling if correct 

for any reason).

III. An Appellate Challenge to Snell’s Counterclaim was Waived

¶70 In their opening brief, Maverick made no legal argument as 

to Snell’s counterclaim, and the Atkinses merely stated: “The jury’s verdict 

on the counterclaim should be reversed because Defendants would not be 

entitled to compensation for breaching their fiduciary duties to Appellants 

by rendering deficient, incomplete, false and misleading legal advice 

causing damages to Appellants.” This statement lacks reference to legal 

authority and the record. See ARCAP 13(a)(7)(A). The issue is, therefore, 

waived. See Carver, 160 Ariz. at 175; Schabel, 186 Ariz. at 167.

IV. Attorneys’ Fees and Costs on Appeal

¶71 Snell and Maverick request we grant an award of their 

reasonable attorneys’ fees and costs incurred on appeal under A.R.S. 

§ 12-349. Snell additionally raises Rule 11 and A.R.S. § 12-341 as a ground 

 

3 On appeal, Maverick does not offer any separate argument that it

should be granted a new trial, although it joined the Atkinses’ Rule 59 

motion. Because the Atkinses do not argue Maverick suffered damages 

distinct from the Atkinses as a basis for a new trial, Maverick waived any 

such argument on appeal. See ARCAP 13(a)(7)(A); Carver, 160 Ariz. at 175; 

Schabel, 186 Ariz. at 167.
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for awarding its attorneys’ fees against Maverick. Maverick, however, did 

not raise issues sounding in contract. In the exercise of our discretion, we 

decline to award either party their attorneys’ fees on appeal. We award 

Snell its costs on appeal upon compliance with ARCAP 21.

CONCLUSION

¶72 For the reasons stated above, we affirm the superior court’s 

judgment in favor of Snell.