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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BENJAMIN AGUILERA, et al., Plaintiffs/Appellants,

v.

JOEL E. SANNES, et al., Defendants/Appellees.

No. 1 CA-CV 19-0029

Appeal from the Superior Court in Maricopa County

No. CV2016-016126

The Honorable Christopher A. Coury, Judge

AFFIRMED

COUNSEL

Wilenchik & Bartness, P.C., Phoenix

By Dennis I. Wilenchik, Christopher A. Meyers

Counsel for Plaintiffs/Appellants

Jones, Skelton & Hochuli, P.L.C., Phoenix

By Charles M. Callahan, Robert R. Berk, Lori L. Voepel, Alejandro D. 

Barrientos

Counsel for Defendants/Appellees

FILED 1-21-2020
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.

W I N T H R O P, Judge:

¶1 Benjamin Aguilera, an Arizona attorney and defendant in a 

civil lawsuit, hired Joel E. Sannes to represent him. Sannes represented 

Aguilera through several years of litigation, until Aguilera’s current 

counsel replaced Sannes. Aguilera later settled the case against him, then 

filed a legal malpractice lawsuit against Sannes, claiming Sannes had fallen 

below the standard of care in his representation of Aguilera, primarily

because he failed to tender Aguilera’s defense to Aguilera’s former law 

firm, Greenberg Traurig, L.L.P. (“Greenberg”) or Greenberg’s malpractice 

insurance carrier, Lloyd’s of London (“Lloyd’s”), after Aguilera had asked 

Sannes to do so. Aguilera alleged Sannes’ negligence caused Aguilera to 

incur litigation costs he otherwise would not have incurred. Sannes moved 

for summary judgment, and the superior court granted the motion after 

concluding Aguilera could not show that either Lloyd’s or Greenberg 

would have financially contributed to Aguilera’s defense or settlement, and 

therefore could not establish that, even if the alleged malpractice occurred,

it had caused Aguilera damage.

1 Aguilera appealed, and for the following 

reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 This court issued two decisions in the underlying lawsuit 

against Aguilera, and those decisions chronicle many of the facts helpful to 

understanding what led to the current lawsuit. See Chonczynski v. RY Dev. 

Co. (Chonczynski I), 1 CA-CV 08-0296, 2009 WL 1138080 (Ariz. App. Apr. 28, 

2009) (mem. decision); Chonczynski v. Aguilera (Chonczynski II), 1 CA-CV 13-

0728, 2014 WL 6790738 (Ariz. App. Dec. 2, 2014) (mem. decision) (review 

1 “[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) (emphasis added) (citation omitted).
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

3

denied May 26, 2015). For context, we provide a brief overview of that 

litigation.

 I. The Underlying Litigation

A. Chonczynski I

¶3 In 1997, Gisela and Edmund Chonczynski (“the 

Chonczynskis”) entered an agreement with RY Development Company 

(“RY”) to purchase a lot in the Del Mar real estate development in Puerto 

Peñasco (aka Rocky Point), Sonora, Mexico. See Chonczynski I, 1 CA-CV 08-

0296, at *1, ¶¶ 2-3; Chonczynski II, 1 CA-CV 13-0728, at *1, ¶ 2. Phoenix 

Holdings II, L.L.C. (“PH II”), an entity controlled by Brent Hickey and 

Robert Burns, had entered an agreement in 1996 to oversee the marketing 

and sales of the Del Mar community to American buyers, and the 

Chonczynskis presented a check for final payment to Hickey at the offices 

of PH II in Phoenix in July 1997. See Chonczynski I, 1 CA-CV 08-0296, at *1, 

¶ 4 & n.1. The Chonczynskis constructed a beach house on the property, 

which they later lost in 2005 as part of a lawsuit/foreclosure action in 

Mexico stemming from a dispute that began in 2001 involving RY and a 

Mexican labor union. See id. at *1-2, ¶¶ 6-9; Chonczynski II, 1 CA-CV 13-

0728, at *1, ¶¶ 2-6.

¶4 Aguilera became involved in 2004 when PH II retained him 

to assist with matters related to Del Mar and the pending RY/labor union 

dispute. See Chonczynski II, 1 CA-CV 13-0728, at *1, ¶ 4. Aguilera began 

representing PH II, and consequently, RY’s interests in Del Mar. Id. The 

labor union had obtained a lien on several undeveloped properties in Del 

Mar, and Aguilera negotiated with and allegedly bribed union officials to 

substitute the Chonczynskis’ property for those other properties as the 

subject of the lien. Id. at ¶ 5. In February 2005, the labor union sold the 

Chonczynskis’ lot and house at a private auction to Aguilera, the sole 

bidder, who transferred it to Inmobiliaria Tomka, S.A. de C.V. 

(“Inmobiliaria”), a Mexican corporation. Chonczynski I, 1 CA-CV 08-0296,

at *2, ¶ 10; Chonczynski II, 1 CA-CV 13-0728, at *1, ¶¶ 5-6. Aguilera was the 

president of and held a controlling interest in Inmobiliaria, which then held 

title to the property, ostensibly for the benefit of RY and/or PH II.

2 See 

2 Also, through another company he and his wife controlled, 

Diamante 907, L.L.C., Aguilera entered a profit-sharing agreement in 2005 

with PH II tied to Del Mar and other property in Mexico.
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

4

Chonczynski I, 1 CA-CV 08-0296, at *2, ¶ 10; Chonczynski II, 1 CA-CV 13-0728, 

at *1, ¶ 6.

¶5 In 2007, the Chonczynskis sued Aguilera, Inmobiliaria, RY, 

and Gary Yahnke, RY’s managing partner, alleging contract and tort claims 

arising out of conduct related to the various transactions associated with 

the real estate development. See Chonczynski I, 1 CA-CV 08-0296, at *2, ¶ 12. 

The tort claims included statutory and common law fraud claims. Id. In 

part, the complaint alleged Aguilera and Inmobiliaria “actively and 

intentionally aided, abetted and co-conspired with the other Defendants to 

deprive the [Chonczynskis] of their money and property.”

¶6 At the time he was named and served with an amended 

complaint in June 2007, Aguilera was a shareholder at Greenberg.

Although Aguilera was sued, the firm was not,

3 and Aguilera was only a 

few days away from formally leaving Greenberg (he had given his twoweeks’ notice approximately ten days earlier) and forming his own law 

firm, Aguilera Lindsey, L.L.P. (“Aguilera Lindsey”).4 Before leaving, 

Aguilera did not inform anyone at Greenberg of the Chonczynskis’ lawsuit. 

Instead, Aguilera personally hired Sannes to represent him. When Aguilera 

hired Sannes, Aguilera had not yet procured professional liability insurance

for his new law firm. However, Aguilera’s defense was initially paid for by 

PH II, which along with Hickey and Burns, claimed an ownership interest 

in RY.

¶7 On behalf of Aguilera and other defendants, Sannes 

immediately moved to dismiss the complaint. Id. at *2, ¶ 13. The superior

court dismissed all claims on statute-of-limitations grounds. Id. at ¶ 14. In 

April 2009, however, this court reversed the dismissal with regard to the 

Chonczynskis’ tort and unjust enrichment claims and remanded the case to 

the superior court. Id. at *11, ¶ 67; Chonczynski II, 1 CA-CV 13-0728, at *2, 

¶ 8.

3 The Chonczynskis’ complaint(s) did not mention Greenberg or 

Aguilera’s employment with Greenberg and did not allege professional 

negligence on Aguilera’s part. In their Second Amended Complaint, the 

Chonczynskis alleged Aguilera was “an advisor to Yahnke and RY,” “an 

officer and director of Inmobiliaria,” and “in the direct or indirect employ 

of RY and [PH II].”

4 Aguilera later returned to employment with Greenberg in 2017.
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

5

B. Chonczynski II

¶8 In March 2010, the superior court dismissed all claims against 

Inmobiliaria and all claims against Aguilera, except aiding and abetting 

fraud and unjust enrichment. Chonczynski II, 1 CA-CV 13-0728, at *2, ¶ 8.

PH II eventually stopped funding Aguilera’s defense, although Sannes 

continued representing Aguilera. Meanwhile, in a January 2010 e-mail to 

Aguilera, Sannes had “wondered why we have not submitted this case to 

your [current] malpractice carrier,” but noted “[i]t might not be covered as 

a third-party lawsuit against you, as opposed to a client’s lawsuit against 

you or your firm.” Neither Sannes nor Aguilera tendered the defense to 

Aguilera’s insurance carrier, however, and Sannes eventually concluded 

the Aguilera Lindsey policy would not cover Aguilera in connection with 

the Chonczynskis’ lawsuit.

¶9 By June 2012, Aguilera had broached with Sannes the subject 

of tendering Aguilera’s defense to Greenberg or Greenberg’s malpractice 

insurance carrier, Lloyd’s. Aguilera indicated he would contact Greenberg 

regarding the insurance issue. In May 2013, however, Aguilera requested

that Sannes tender the defense to Greenberg, but Sannes declined and 

suggested that Aguilera do so.

¶10 In June 2013, RY and Yahnke settled the Chonczynskis’ claims 

against them, leaving Aguilera as the only remaining defendant. Id. at ¶ 9.

Aguilera immediately moved for summary judgment on the basis that the 

RY/Yahnke settlement extinguished all remaining claims against him. Id.

at ¶ 10. The superior court agreed, granted summary judgment in favor of 

Aguilera, id., and awarded Aguilera attorneys’ fees. Id. at *7, ¶ 30.

¶11 The Chonczynskis again appealed, arguing their settlement 

with the parties they alleged had defrauded them (RY and Yahnke), did not 

bar their claim against Aguilera for aiding and abetting that fraud. Id. at *1, 

¶ 1. Concluding that Aguilera was not absolved of liability by virtue of the 

release of RY and Yahnke, this court in December 2014 again reversed, 

explaining that “the superior court did not make any factual finding that 

RY and Yahnke did not commit the fraud upon which Aguilera’s alleged 

aiding and abetting liability [was] premised.” Id. at *3, ¶¶ 13-14. We noted 

“the Chonczynskis alleged Aguilera manipulated the auction and obtained 

control of Inmobiliaria [] to obfuscate RY’s fraud and to extinguish any 

claim to the property the Chonczynskis might be able to assert,” id. at *2, 

¶ 7, and “Aguilera’s alleged liability d[id] not arise solely from the 

wrongful conduct of RY/Yahnke, but from alleged substantial assistance 

he provided to RY/Yahnke in connection with their alleged fraud,” id. at 
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

6

*3, ¶ 16. As a result, the Chonczynskis’ settlement with the other 

defendants “did not, as a matter of law, prevent them from going forward 

with their aiding and abetting claim against Aguilera.” Id. at * 5, ¶ 20; see 

also id. at *7, ¶ 31.

¶12 Sannes continued to represent Aguilera until November 

2015,5 when Aguilera’s current counsel, Wilenchik & Bartness, P.C., 

substituted in as counsel.6 In July 2016, Aguilera and the Chonczynskis 

entered a settlement, with Aguilera agreeing to pay $62,500 to the 

Chonczynskis, who agreed to withdraw their lawsuit and a previously filed 

bar complaint against Aguilera.

7 By this point in time, Aguilera had 

incurred $328,000 in legal expenses incurred in defending the Chonczynski 

litigation.

 II. This Litigation

A. Aguilera’s Lawsuit Against Sannes

¶13 Approximately three months later, in October 2016, Aguilera 

sued Sannes, alleging Sannes had fallen below the applicable standard of 

care and committed attorney malpractice, primarily because he failed to 

tender Aguilera’s defense to Greenberg or its carrier, Lloyd’s, after Aguilera 

5 According to Aguilera, a conflict of interest arose when Sannes 

moved to a new law firm.

6 Aguilera’s new counsel also did not tender Aguilera’s defense to 

either Greenberg or Lloyd’s.

7 Neither the terms of the settlement nor the Chonczynskis’ letter to 

the State Bar of Arizona unequivocally stated that Aguilera had not 

committed fraud. Instead, the settlement agreement provided that “no 

Party is admitting or acknowledging any wrongdoing whatsoever,” and 

the Chonczynskis’ letter simply stated, “We have resolved the matter.” 

Less than one month after the parties entered their settlement, bar counsel 

summarily dismissed the charges against Aguilera. We note the bar 

complaint was dismissed prior to Aguilera’s deposition in this malpractice 

action, where he was questioned at length about the nature of his 

involvement with PH II, RY, and Del Mar, and the actions he took relative 

to the Chonczynskis’ property.
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

7

asked Sannes to do so, thereby causing Aguilera to incur litigation costs he 

otherwise would not have incurred.8

B. Sannes’ Motion for Summary Judgment

¶14 After discovery closed, Sannes moved for summary 

judgment, arguing in pertinent part that, even assuming arguendo he had 

fallen below the standard of care with respect to the tender of defense issue, 

Aguilera had no evidence of, and could not prove, causation. Specifically, 

Sannes argued that, in order to establish liability, Aguilera needed to prove 

that if his defense had been tendered, Greenberg or Lloyd’s would have 

accepted and paid for Aguilera’s defense, and Aguilera had produced no 

such evidence, only speculation.

¶15 With regard to Lloyd’s, Sannes argued the insurance policy 

Aguilera claimed would have paid his defense costs (“the Greenberg 

Policy”) contained a $7.5 million retention (akin to a deductible) for each 

claim. Because Aguilera claimed only $328,000 in damages, Sannes 

explained, the Greenberg Policy on which Aguilera relied would not have 

covered these costs even if Sannes had tendered Aguilera’s defense to 

Lloyd’s because Aguilera’s alleged damages were significantly short of the 

Greenberg Policy’s retention. In other words, Sannes argued Aguilera 

could not prove that, but for Sannes’ alleged failure to tender the claim to 

Lloyd’s, Aguilera would not have sustained monetary damages.

¶16 With regard to Greenberg, Sannes argued Greenberg had no 

legal obligation to assume any costs for Aguilera’s defense as a former 

shareholder, because Aguilera had produced no evidence showing 

Greenberg would have done so. Sannes maintained that Aguilera’s 

allegation, claiming Greenberg would have voluntarily indemnified him,

was especially suspect considering the allegations against Aguilera were 

for his own fraudulent conduct.9 Moreover, Sannes argued that Greenberg 

would not have defended or indemnified Aguilera because Aguilera had 

8 Aguilera’s complaint against Sannes alleged professional 

negligence, breach of fiduciary duty, and breach of contract. On appeal, 

however, Aguilera does not challenge the dismissal of the breach of contract 

claim.

9 Indeed, the Greenberg Policy specifically excludes coverage for any 

alleged fraudulent acts. More importantly, the Chonczynskis never alleged 

that Aguilera’s fraudulent acts were performed during the course and 

scope of his employment with Greenberg, or for the benefit of Greenberg.
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

8

secretly entered a separate profit-sharing agreement with a current client, 

PH II—an agreement that Aguilera admitted he never disclosed to 

Greenberg—which Sannes asserted violated Arizona Rule of Professional 

Conduct 1.8(a), a rule prohibiting an attorney from entering into a business 

transaction with a client absent certain conditions. See Ariz. R. Sup. Ct. 42, 

ER 1.8(a).10

¶17 In response, Aguilera did not argue the language in the 

Greenberg Policy was vague or ambiguous. Instead, he produced his own 

declaration that he claimed “contradict[ed]” Sannes’ interpretation of the 

policy’s retention language, some exhibits, and an expert witness affidavit 

from attorney Robert S. Porter. Porter opined that, had Sannes tendered the 

defense of the claims against Aguilera to Greenberg and Lloyd’s, one or 

both would have paid for Aguilera’s defense. Porter based his opinion on 

“the certificates of insurance with Lloyd’s of London for Greenberg Traurig 

for the years 2006, 2007 and 2008, a review of lawsuits brought in Maricopa 

County Superior Court against Greenberg Traurig and its lawyers in the 

past and [his] general knowledge and experience.”

¶18 In reply, Sannes argued in part that Porter’s affidavit 

indicated he did not base his opinion on an actual review of the Greenberg 

Policy or Greenberg’s internal employment policies; instead, Porter had 

simply indicated he reviewed the certificates of insurance, which lacked the 

retention language contained in the Greenberg Policy.

11

C. The Superior Court’s Ruling

¶19 In October 2018, the superior court heard oral argument on 

Sannes’ motion for summary judgment. After taking the matter under 

advisement, the court granted the motion. The court found no issue of 

material fact as to whether Sannes’ failure to tender the defense to Lloyd’s

caused damages to Aguilera because the Greenberg Policy had a $7.5 

10 There is also a specific provision in the Greenberg Policy excluding 

coverage for liability arising out of a lawyer’s business dealings and/or 

status as an officer or director of another entity. As previously noted, the 

operative complaints alleged that, at all relevant times, Aguilera was an 

officer and director of Inmobiliaria, and was acting on behalf of PH II 

and/or RY.

11 The certificates of insurance identified the amount of the deductible, 

but not the specific terms delineating how the deductible/retention applied 

to a lawsuit.
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

9

million retention, while the amount in controversy was only $328,000.

12 

The court also found no genuine issue of material fact whether Sannes’ 

failure to tender the defense to Greenberg damaged Aguilera because the 

record was devoid of any evidence that Greenberg would have accepted 

the tender and paid for Aguilera’s claim and/or defense.

¶20 The court also noted the only purported evidence Aguilera 

produced in support of his claim that Greenberg would have indemnified 

him was the Porter affidavit,

13 which “do[es] not meet the standard of 

‘competent evidence’ as a matter of law because [Porter’s] opinions are not 

admissible as expert testimony pursuant to Rule 702,” Ariz. R. Evid.14 The 

court explained Porter’s declaration lacked any indication that (1) Porter’s 

opinions were based on sufficient facts or data, (2) Porter’s opinions were 

12 Although not raised at any time by the parties, we note that the 

proper comparison to the $7.5 million retention—at least as it relates to 

insurance coverage—is not necessarily Aguilera’s claimed $328,000 in 

defense costs/damages, but the potential liability exposure faced by 

Greenberg (and Aguilera as a covered employee/insured of Greenberg) in 

the Chonczynskis’ lawsuit. However, as previously noted, the 

Chonczynskis’ complaint made no allegations against Greenberg and did 

not allege that Aguilera was at any point acting as an authorized agent of, 

or in the course and scope of his usual and customary employment with, 

Greenberg. In fact, the Chonczynskis’ complaints did not mention 

Greenberg at all. When a policy refers to “the insured” (instead of “any 

insured”), as Greenberg’s policy does, case law generally interprets this as 

applying only to the specific insured who is seeking coverage, not other coinsureds. See Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, 95, ¶ 62 (App. 

1998). Here, even considering the Chonczynskis’ punitive damage claim of 

$1.5 million, the court correctly noted the exposure faced by Aguilera was, 

realistically, significantly less than $7.5 million.

13 The court also cited Aguilera’s “Controverting and Additional 

Statement of Facts,” which incorporated by reference Aguilera’s 

declaration.

14 A qualified expert witness may testify in the form of an opinion or 

otherwise pursuant to Arizona Rule of Evidence 702 “if: (a) the expert’s 

scientific, technical, or other specialized knowledge will help the trier of fact 

to understand the evidence or to determine a fact in issue; (b) the testimony 

is based on sufficient facts or data; (c) the testimony is the product of reliable 

principles and methods; and (d) the expert has reliably applied the 

principles and methods to the facts of the case.”
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

10

the product of reliable principles or methods, and (3) Porter reliably applied 

the principles and methods to the facts of the case. See Ariz. R. Evid. 702(b)-

(d).

¶21 The superior court summarily denied Aguilera’s motion for 

reconsideration, and later entered a judgment in favor of Sannes pursuant 

to Rule 54(c), Ariz. R. Civ. P. We have jurisdiction over Aguilera’s timely 

appeal. See Ariz. Rev. Stat. (“A.R.S.”) § 12-2101(A)(1).

ANALYSIS

¶22 Aguilera argues the superior court erred in granting 

summary judgment in favor of Sannes. We disagree.

I. Standard of Review and Applicable Law

¶23 The superior court should grant summary judgment when 

“there is no genuine dispute as to any material fact and the moving party is 

entitled to judgment as a matter of law.” Ariz. R. Civ. P. (“Rule”) 56(a). If, 

however, there are material facts upon which reasonable people could 

reach different conclusions, summary judgment is not appropriate. Gulf 

Ins. Co. v. Grisham, 126 Ariz. 123, 124 (1980). In deciding a motion for 

summary judgment, courts make no distinction between direct and 

circumstantial evidence. Mobilisa, Inc. v. Doe, 217 Ariz. 103, 113, ¶ 34 (App. 

2007). When a party makes a properly supported motion for summary 

judgment, the opposing party may not rely on mere allegations, conclusory 

statements, or denials of its own pleading. Ariz. R. Civ. P. 56(e); State ex rel. 

Corbin v. Challenge, Inc., 151 Ariz. 20, 26 (App. 1986).

¶24 We review de novo the grant of summary judgment, viewing 

the facts and all reasonable inferences therefrom in the light most favorable 

to the party against whom judgment was entered. Felipe v. Theme Tech Corp., 

235 Ariz. 520, 528, ¶ 31 (App. 2014) (citation omitted). “Summary judgment 

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.’” Aranki v. RKP Invs., Inc., 194 Ariz. 206, 

208, ¶ 6 (App. 1999) (quoting Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990)).

We will affirm if the superior court’s ruling is correct for any reason. 

Melendez v. Hallmark Ins. Co., 232 Ariz. 327, 330, ¶ 9 (App. 2013) (citation 

omitted).

¶25 Interpretation of an insurance contract is a question of law we 

review de novo. Liristis v. Am. Family Mut. Ins. Co., 204 Ariz. 140, 143, ¶ 13 
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

11

(App. 2002). An insured generally bears the burden of establishing

coverage under an insuring clause. Keggi v. Northbrook Prop. & Cas. Ins. Co., 

199 Ariz. 43, 46, ¶ 13 (App. 2000). “In interpreting an insurance contract, 

we look first to the policy language.” Lennar Corp. v. Auto-Owners Ins. Co., 

214 Ariz. 255, 263, ¶ 23 (App. 2007) (citation omitted). “Absent a specific 

definition, terms in an insurance policy are construed ‘according to their 

plain and ordinary meaning,’ and the policy’s ‘language should be 

examined from the viewpoint of one not trained in the law or in the 

insurance business.’” Equity Income Partners, LP v. Chicago Title Ins. Co., 241 

Ariz. 334, 338, ¶ 13 (2017) (citation omitted). In determining the ordinary 

meaning of words, we may rely on dictionaries. See id. at ¶ 14.

II. The Merits

A. Application of the Summary Judgment Standard

¶26 Aguilera argues the superior court misapplied the standard 

for summary judgment by placing the burden on him to prove his prima 

facie case and provide evidence establishing causation.

¶27 In moving for summary judgment, however, a defendant 

need not submit evidence negating a plaintiff’s case; instead, he can 

“merely point out by specific reference to the relevant discovery that no 

evidence exist[s] to support an essential element of the claim.” Orme Sch., 

166 Ariz. at 310 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 328 (1986)). In 

other words, Sannes could merely point to the absence of evidence 

supporting the essential element of causation underlying Aguilera’s claim, 

see id., which is effectively what Sannes did in his motion.

¶28 Further, we find unavailing Aguilera’s reliance on 

Hydroculture, Inc. v. Coopers & Lybrand, 174 Ariz. 277 (App. 1992), in which 

this court stated that “[a] plaintiff responding to a motion for summary 

judgment need not present its prima facie case unless the motion 

adequately challenges its ability to do so.” Id. at 283. Sannes’ motion 

adequately challenged Aguilera’s ability to present his prima facie case by 

specifically referencing the language of the Greenberg Policy and the 

applicable certificate of liability insurance, which collectively established 

Aguilera had to sustain $7.5 million in damages, including reasonable costs, 

charges, and expenses, before Lloyd’s indemnification coverage applied 

and by noting Aguilera failed to produce any evidence negating the 

applicability of the retention clause. Sannes further challenged the 

causation element by noting Aguilera had failed to produce evidence that 
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

12

a demand/tender to Greenberg—timely or otherwise—would have 

resulted in Greenberg voluntarily paying for Aguilera’s defense.

B. Failure to Tender to Lloyd’s Under the Greenberg Policy

¶29 As to Aguilera’s allegation that Sannes failed to tender 

Aguilera’s defense to Lloyd’s, the superior court did not err in concluding 

Aguilera failed to sustain his burden of proving that if the tender had been 

made, Lloyd’s would have defended and indemnified Aguilera against the 

Chonczynskis’ claim for aiding and abetting fraud. First, as previously 

noted, there are specific provisions in the Greenberg Policy excluding any 

coverage for Aguilera’s alleged conduct. Second, even assuming a question 

exists as to coverage for fraudulent conduct, under the policy, Greenberg

and/or Aguilera had a $7.5 million retention/deductible for each covered 

claim. The Greenberg Policy further stated as part of its conditions 

regarding any alleged obligation on the part of Lloyd’s:

2. RETENTION[15]

In respect of any CLAIMS covered hereunder, this Policy is 

only to pay the excess of the RETENTION stated in Item (a) 

of THE SCHEDULE in respect of each and every such 

CLAIM, including reasonable costs, charges and expenses.[16]

Although the actual “RETENTION stated in Item (a) of THE SCHEDULE” 

was redacted in the copy of the policy Greenberg produced, the certificate 

of insurance that applied when the Chonczynskis’ lawsuit was filed stated 

the Greenberg Policy contained a $7.5 million “deductible” applicable to 

each claim, indicating the retention was $7.5 million. Accordingly, a plain 

reading of the Greenberg Policy’s terms is that Greenberg and/or Aguilera 

would have been responsible for all defense costs and indemnity payments 

15 “Retention” may be defined as “the portion of the insurance on a 

particular risk not reinsured or ceded by the originating insurer.” Retention 

Definition, The Merriam-Webster.com Dictionary, Merriam-Webster Inc.,

https://www.merriam-webster.com/dictionary/retention (last visited 

Dec. 11, 2019); cf. Black’s Law Dictionary 1365 (7th ed. 1999) (defining “selfinsured retention” as “[t]he amount of an otherwise-covered loss that is not 

covered by an insurance policy and that usu[ally] must be paid before the 

insurer will pay benefits”).

16 The policy also provided that “’CLAIMS EXPENSES’ WILL BE 

APPLIED AGAINST THE RETENTION.”
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

13

up to the amount of the retention before Lloyd’s obligation would arise.17 

Thus, the superior court did not err in concluding that “the undisputed 

evidence demonstrates that, until the cost of defense reached $7.5 million, 

Lloyd’s would not financially contribute to the defense or settlement.”

C. Aguilera’s Vagueness and Ambiguity Argument & Declaration

¶30 Aguilera argues the Greenberg Policy is vague and 

ambiguous, and the superior court erred both in not requiring that Sannes 

produce extrinsic evidence as to the policy’s meaning18 and in concluding 

the retention language in the policy constituted the equivalent of a 

deductible that would not trigger a duty to defend or indemnify. Putting 

aside the fact that the subject policy clearly excluded coverage for 

Aguilera’s alleged conduct, our review of the record indicates Aguilera 

waived this vagueness argument by failing to raise it in his response to 

Sannes’ motion for summary judgment or at oral argument before the 

superior court. See State ex rel. Brnovich v. Miller, 245 Ariz. 323, 324, ¶ 5 

(App. 2018) (“Matters not presented to the trial court cannot for the first 

time be raised on appeal.” (quoting Brown Wholesale Elec. Co. v. Safeco Ins. 

Co. of Am., 135 Ariz. 154, 158 (App. 1982))). Moreover, even assuming 

arguendo the argument was not waived, we disagree the 

retention/deductible language qualifies as vague or ambiguous. The plain 

and ordinary meaning of the language in the Greenberg Policy establishes 

that Aguilera needed to incur $7.5 million in defense costs/damages before 

Lloyd’s indemnity obligation would be triggered.

¶31 Aguilera argues his personal declaration and accompanying 

exhibits—showing that Lloyd’s had agreed to represent him subject to a 

reservation of rights in a separate but related lawsuit—created an issue of 

material fact as to whether Lloyd’s would have defended and indemnified

him in the Chonczynski case. But that argument in part incorrectly 

presupposes he made and preserved the vagueness-and-ambiguity 

argument - he did not. The argument is also wrong because Aguilera’s 

declaration sheds no light on how the Greenberg Policy operated and does 

17 Greenberg’s certificates of liability insurance were authenticated by 

Mary E. Bruno, Greenberg’s “Assistant General Counsel,” and Aguilera 

does not challenge their authenticity.

18 “Once a contract is determined to be ambiguous, extrinsic evidence 

may be resorted to for the purpose of ascertaining its real meaning.” 

Associated Students of Univ. of Ariz. v. Ariz. Bd. of Regents, 120 Ariz. 100, 104

(App. 1978) (citation omitted).
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

14

not create an issue of material fact about whether the retention applied to 

him.19

¶32 Aguilera claims his experience with the Aguilera Policy 

reveals “a duty to defend existed” under the Greenberg Policy. But while 

the Aguilera Policy expressly contained a “duty to defend” provision,20 the 

Greenberg Policy, which was a policy “to indemnify,” did not. Further, the 

reservation of rights letter in the related litigation shows that despite being 

represented under a reservation of rights, Aguilera was never relieved of 

the deductible obligation.

21 Thus, his declaration and accompanying 

exhibits do not show he would have been relieved from the $7.5 million 

retention contained in the Greenberg Policy even if he had been defended 

under a reservation of rights in the Chonczynskis’ lawsuit.

¶33 Finally, Aguilera’s declaration also sheds no light on whether 

Greenberg would have voluntarily paid for his legal defense. That 

Greenberg was a named defendant in the 2009 lawsuit filed by Yahnke and 

RY does not raise an issue of material fact about whether Greenberg would 

have voluntarily paid for Aguilera’s legal fees in the Chonczynskis’ lawsuit.

First, Aguilera provided no documentation evidencing who paid for the 

19 Aguilera provided extrinsic evidence attempting to show how 

Lloyd’s treated retentions in determining its obligations. In responding to 

Sannes’ summary judgment motion, Aguilera attached a reservation of 

rights letter Lloyd’s issued in response to Aguilera tendering his defense 

under his subsequently-obtained Aguilera Lindsay policy (“the Aguilera 

Policy”) for a separate lawsuit filed against Aguilera (and Greenberg) by 

Yahnke and RY in 2009. The Aguilera Policy was an entirely different 

claims-made policy than the Greenberg Policy, although Lloyd’s was the 

insurance carrier under both policies.

20 The Aguilera Policy stated, “The Underwriters shall have the right 

and duty to defend, subject to the Limit of Liability, any Claim against the 

Insured seeking Damages which are payable under the terms of this 

insurance, even if any of the allegations of the Claim are groundless, false 

or fraudulent.”

21 In the reservation of rights letter, Lloyd’s confirmed the “Deductible

of $10,000” in the Aguilera Policy had to first be paid by Aguilera before 

Lloyd’s defense and indemnity obligations were triggered.
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

15

litigation costs in the 2009 lawsuit.22 And second, unlike the 2009 lawsuit, 

Greenberg was not a named defendant in the Chonczynskis’ lawsuit, where 

Aguilera was sued in his individual capacity and for his own alleged 

fraudulent conduct. Thus, Greenberg’s interests in each lawsuit were 

substantially different. As a result, Aguilera’s declaration did not raise an 

issue of material fact on the causation issue in this case because the 

circumstances, controlling policies, and interests of Greenberg in the 2009 

lawsuit were different from those in the Chonczynskis’ lawsuit.

D. The Porter Affidavit

¶34 Aguilera argues the superior court erred in refusing to give 

weight to the Porter affidavit,

23 and in concluding the affidavit failed to 

raise an issue of material fact as required by Rule 56(e), Ariz. R. Civ. P., and 

failed to “meet the standard of ‘competent evidence’ as a matter of law” as 

required by Rule 702, Ariz. R. Evid. In support of his argument, Aguilera 

notes that Sannes did not depose Porter or file an expert declaration 

disputing Porter’s affidavit, Porter never testified in court, and no Daubert24

hearing was held.

¶35 “When the party moving for summary judgment makes a 

prima facie showing that no genuine issue of material fact exists, the burden 

shifts to the opposing party to produce sufficient competent evidence to 

show that an issue exists.” Kelly v. NationsBanc Mortg. Corp., 199 Ariz. 284, 

287, ¶ 14 (App. 2000) (citation omitted); accord Ulibarri v. Gerstenberger, 178 

Ariz. 151, 156 (App. 1993) (“Once the defendant has established a prima facie

case entitling him to summary judgment, the plaintiff has the burden of 

showing available, competent evidence that would justify a trial.” (citation 

omitted)).

22 The claims-made Greenberg Policy applicable to the Chonczynskis’ 

suit expired in 2008, and Aguilera did not produce the Lloyd’s policy that 

applied to Greenberg in the 2009 lawsuit.

23 The superior court did not ignore Porter’s affidavit, as Aguilera 

suggests; instead, the court clearly considered it.

24 See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93

(1993) (concluding that the trial judge should preliminarily assess proffered 

expert testimony to determine “whether the reasoning or methodology 

underlying the testimony is scientifically valid and . . . whether that 

reasoning or methodology properly can be applied to the facts in issue”).
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

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¶36 Expert affidavits offered in opposition to summary judgment 

must “set forth specific facts showing a genuine issue for trial.” Ariz. R. 

Civ. P. 56(e). “[A]ffidavits 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 (1996) (citations omitted). And they 

must “set forth ‘specific facts’ to support an opinion.” Id. (citations 

omitted). Thus, merely submitting an expert affidavit, absent more, is 

generally insufficient to defeat summary judgment. See id. Further, an 

expert affidavit relying on sheer speculation is insufficient to defeat 

summary judgment. Modular Mining Sys., Inc. v. Jigsaw Techs., Inc., 221 Ariz. 

515, 520, ¶ 19 (App. 2009); see also Ulibarri, 178 Ariz. at 161 (“If a party fails 

to lay adequate foundation for an expert’s affidavit in response to a motion 

for summary judgment, that testimony is not considered.” (citations 

omitted)).

¶37 Here, Sannes’ summary judgment motion demonstrated that,

even assuming coverage, under the terms of the Greenberg Policy’s 

retention clause, Aguilera had to incur $7.5 million in costs or damages 

before Lloyd’s obligations under the policy were triggered. Aguilera’s total 

exposure, and ultimately his claimed cost of defense, was significantly less. 

Sannes also noted that Aguilera’s assertion that Greenberg—which was not 

a party to, or in any way implicated in, the Chonczynskis’ lawsuit—would 

have voluntarily paid the retention on Aguilera’s behalf was, at best, 

speculative and completely unsupported by the record. As such, Aguilera 

could not establish that, but for Sannes’ failure to tender the claim, Aguilera 

would not have incurred defense costs either covered by the firm’s policy 

or for which Greenberg would be vicariously liable and thus inclined to 

provide Aguilera a defense. In response, Aguilera provided only his 

personal declaration, which raised no question of material fact, and the 

Porter affidavit.25

25 Sannes argues Porter’s affidavit makes it clear he did not review the 

Greenberg Policy on which Aguilera relied for coverage, and instead only 

reviewed the certificates of insurance. In his opening brief, Aguilera argues 

for the first time that, when Porter stated he had reviewed the certificates 

of insurance, he “obviously was referring to the [Greenberg] Policy itself.” 

Sannes responds that “[n]othing in the record supports this novel and 

waived theory, which is aimed at creating an issue of material fact where 

none exists.” In his reply brief, Aguilera’s counsel represents for the first 

time that he has personal knowledge Porter examined the Greenberg 

Policy. Although not necessary to our decision, we conclude Aguilera has 
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

17

¶38 We agree with the superior court that Porter’s affidavit failed 

to raise an issue of material fact as required by Rule 56(e), Ariz. R. Civ. P. 

As the superior court correctly noted, “[T]he record is devoid of any 

evidence from anyone at [Greenberg] indicating that [Greenberg] would 

have paid for the claim and/or defense of [Aguilera].” We again note that 

the Chonczynskis alleged “Aguilera actively and intentionally aided, 

abetted and co-conspired with the other Defendants in breaching applicable 

laws and statutes and breaching the sales contract with the intent to deprive 

the [Chonczynskis] of their money and property and used Inmobiliaria [] 

as a vehicle to do same.” The allegations against Aguilera in the 

Chonczynskis’ Second Amended Complaint set forth a cause of action for 

aiding and abetting fraud, an intentional tort, and did not allege Aguilera 

fell below the standard of care as a lawyer, or that in committing any

alleged tort that he was acting in the course and scope of his employment 

with Greenberg. The Chonczynskis’ complaints, even generously 

construed, do not allege professional negligence on the part of Aguilera, 

which is the type of risk Lloyd’s agreed to cover, or for which Greenberg 

could be held vicariously liable. Thus, neither Lloyd’s nor Greenberg 

would have any practical incentive or, more importantly, any legal 

responsibility to provide a defense or indemnify Aguilera for his alleged 

criminal or fraudulent acts. Moreover, immediately after being served with 

the Chonczynskis’ lawsuit, Aguilera severed his relationship with 

Greenberg, and left that employment without notifying anyone at 

Greenberg of the existence of the lawsuit or its allegations.

¶39 In short, Aguilera did not provide specific evidence nullifying 

the retention clause, nor did he offer affidavits from any Greenberg 

employees suggesting Greenberg would have paid for his defense had 

Sannes tendered the claim to Greenberg directly. Aguilera also did not 

present any evidence establishing Greenberg had an internal policy of 

doing so.

¶40 Similarly, Porter’s affidavit on its face lacked a factual basis 

for raising a question of material fact. As the superior court recognized, the 

affidavit failed to identify anyone from Greenberg whom Porter had 

consulted before reaching his conclusions; failed to show Porter had any 

knowledge of how Greenberg handled situations when a tort claim arising 

out of one of its lawyer’s criminal, fraudulent, or intentionally tortious 

conduct was tendered for defense; and lacked reference to any review of 

Aguilera’s employment arrangement with Greenberg, or of any internal 

waived this argument and proffer of “evidence.” See Dillig v. Fisher, 142 

Ariz. 47, 51 (App. 1984).
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

18

agreements between Aguilera and Greenberg that may have delineated 

rights and financial responsibilities vis-à-vis Greenberg and Aguilera. And 

although Porter’s affidavit stated he had reviewed past lawsuits brought in 

Maricopa County Superior Court against Greenberg and its attorneys, the 

affidavit revealed nothing about the number, allegations, or other pertinent 

circumstances of those lawsuits, or what documents Porter might have 

reviewed. Accordingly, Porter’s affidavit failed to set forth specific facts to 

support his opinion and was insufficient as a matter of law to defeat 

summary judgment. See Florez, 185 Ariz. at 526; Modular Mining Sys., 221 

Ariz. at 520, ¶ 19; Ulibarri, 178 Ariz. at 161. The superior court did not err 

in concluding the Porter affidavit failed to raise an issue of material fact as 

to whether any tender of defense or indemnity would have been accepted 

by Lloyd’s or Greenberg.26

E. Aguilera’s “Entitlement” to Indemnification from Greenberg

¶41 Aguilera next argues he was entitled to indemnity from 

Greenberg due to his employment contract and principles of agency law.

¶42 “When there is an express indemnity contract, the extent of 

the duty to indemnify must be determined from the contract[.]” INA Ins. 

Co. of N. Am. v. Valley Forge Ins. Co., 150 Ariz. 248, 252 (App. 1986) (citations 

omitted). Here, Aguilera never produced a contract establishing, or even 

suggesting, Greenberg had an obligation to defend him against the 

Chonczynskis’ accusations of wrongful conduct.27 Consequently, his claim 

alleging that Greenberg would have indemnified him for his legal defense 

is necessarily based on principles of implied contractual indemnity. See id.

“A right of implied contractual indemnity may arise when an agent, 

26 Because the superior court correctly found Porter’s affidavit failed to 

create an issue of material fact due to his failure to set forth specific facts in 

support of his opinion, we need not, and do not, review the court’s finding 

that Porter’s opinions were otherwise improper under Arizona Rule of 

Evidence 702. See Hydroculture, 174 Ariz. at 281 (stating that this court “will 

uphold a grant of summary judgment on any valid legal basis”).

27 Under traditional tort and agency law, where the actions of the 

employee have created a legal liability for the employer under a respondeat 

superior theory, any duty of indemnification would instead be on the 

servant whose conduct during the course and scope of employment gave 

rise to the vicarious liability on the part of the employer. See Spettigue v. 

Mahoney, 8 Ariz. App. 281, 284 (1968) (stating that “a negligent servant 

ordinarily has the duty of indemnifying his employer”).
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

19

through no wrongdoing of his own, incurs liability for an act performed on 

behalf of a principal[.]” Id. (citation omitted). “An indemnitee must be 

proven to be free of negligence in order to receive indemnity either under a 

general indemnity agreement or under implied indemnity.” Id. at 255 

(citation omitted). Aguilera bears the burden of proving he is entitled to 

indemnity under implied-indemnity principles. Id. at 255. But, notably 

absent from Aguilera’s self-serving declaration is any claim that his actions 

vis-à-vis the Chonczynskis, PH II, et al. were performed at the direction of 

or on behalf of Greenberg.

¶43 In moving for summary judgment, Sannes maintained 

Aguilera’s claim was speculative because Greenberg had no legal 

obligation to defend or indemnify Aguilera for his own alleged wrongful 

conduct. Aguilera responds in his opening brief that “[a]llegations in a 

complaint do not amount to evidence, liability, or defeat indemnification.”

¶44 We agree the existence of the right to indemnity cannot be 

controlled simply by unproven allegations made by a third party. Id. at 253. 

At the same time, however, the allegations of aiding and abetting fraud in 

the Chonczynskis’ complaint neither foreclosed, nor entitled, Aguilera to 

indemnification from Greenberg because “whether allegations of a 

complaint control the right to indemnity is really an issue of when the right 

to indemnity accrues.” Id. A contractual right of indemnity accrues “upon 

the happening of one or both of two events.” Id. Indemnification against 

liability accrues after “liability for a cause of action is established.” Id.

(citations omitted). Indemnification against loss or damages, on the other 

hand, accrues after “the indemnitee has actually paid the obligation for 

which he was found liable.” Id. (citations omitted). Therefore, “it is an 

indemnitee’s actual wrongdoing or lack of it, rather than allegations of 

wrongdoing, which determine the indemnitee’s rights.” Id. (quoting Ins. 

Co. of N. Am. v. King, 340 So. 2d 1175, 1176 (Fla. Dist. Ct. App. 1976)).

¶45 During the time Sannes represented Aguilera, however, there 

were no factual determinations as to whether Aguilera engaged in the 

alleged fraudulent conduct; accordingly, Greenberg could not have been 

obligated to indemnify him. See id. Thus, any potential right to 

indemnification had not yet accrued.

¶46 Moreover, if Aguilera believed he was entitled to 

indemnification from Greenberg, he could have pursued that claim after he 
AGUILERA, et al. v. SANNES, et al.

Decision of the Court

20

settled with the Chonczynskis.28 See Hauskins v. McGillicuddy, 175 Ariz. 42, 

51 (App. 1992) (concluding that a cause of action for indemnity accrued 

when the parties’ settlement agreement was entered into judgment). But 

because there had been no factual determination about Aguilera’s 

wrongdoing, the superior court did not err by failing to conclude Aguilera 

was entitled to indemnification from Greenberg when a lawsuit was filed 

against him.

¶47 Because on the record presented Greenberg was not obligated 

to indemnify Aguilera for his litigation expenses, Aguilera needed to 

produce some evidence suggesting Greenberg would have voluntarily 

done so. Aguilera, however, produced no documentation suggesting 

Greenberg had an internal policy of voluntarily paying the legal fees of 

attorneys it employed who were sued for fraudulent conduct, or otherwise 

would have paid for his legal fees had Sannes tendered the defense to 

Greenberg. Aguilera also did not depose Greenberg’s general counsel or 

any managing partner to inquire about how Greenberg handled similar 

situations. Because Aguilera produced no evidence creating an issue of 

material fact, the superior court did not err in granting summary judgment. 

See Ariz. R. Civ. P. 56.

CONCLUSION

¶48 We affirm the superior court’s summary judgment in favor of 

Sannes. We award Sannes his taxable costs on appeal, contingent upon 

compliance with Rule 21, ARCAP.

28 Aguilera did not seek indemnification from Greenberg after settling 

with the Chonczynskis, claiming it would be “an exercise in futility.”