NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENT IAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

ANTHONY DE PETRIS, an individual

, and PATRICIA PALMER, an

individual

, Plaintiff

s /Appellant s ,

v.

CLIFFORD B. ALTFELD; JOHN F. BATTAILE; ALTF ELD, BATTAILE &

GOLDMAN, P.C.

, Defendant s /Appellee s

.

No. 1 CA

- CV 13

- 0740

Appeal from the Superior Court in Maricopa County

No. CV 2010

- 054583 The Honorable Alfred M. Fenzel

, Judge

AFFIRMED

COUNSEL

The Nathanson Law Firm, Scottsdale By Philip J. Nathanson, Alon Stein Counsel for Plaintiff

s /Appellant s

Broening, Oberg, Woods & Wilson, PC

, Phoenix By Donald Wilson, Jr., Jathan P. McLaughlin C ounsel for Defendant s

/Appellee sDE PETRIS et al. v. ALTFELD et al.
Decision of the Court

2 MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.

P O R T L E Y
, Judge:

¶1 Anthony De Petris and Patricia Palmer appeal the summary judgment dismissing their legal malpractice case against their for mer lawyers Clifford B. Altfeld, John F. Battaile

, and the firm of Altfeld, Battaile & Goldman, P.C. (“law firm”). Because we find that the superior court did not err in granting summary judgment, we affirm.

BACKGROUND

¶2 The operative facts are undisputed. De Petris and Palmer, amongst others, invested in two limited partnerships established to acquire real property for investment purposes. 1 Years later they subsequently became concerned that the general partner of the limited partner ships

, Thomas D’Ambrosino, had transferred property from the limited partnerships into other entities he controlled and , as a result, they hired a law firm i n 2004 to sue D’Ambrosino and others. Altfeld and Battaile subsequently filed a complaint and an a pplication for temporary restraining order and preliminary injunction in Pinal County against College Properties, D’Ambrosino, Black Mountain Estates, Montage, Inc., and others

.
¶3 Some ten months later, the limited partnership defendants in th at lawsuit soug ht bankruptcy protection by fil ing Chapter 11 bankruptcy petitions that were consolidated

. As a result of the automatic stay, the litigation in Pinal County was stayed until the lawyers had it removed to the Bankruptcy C ourt as an adversary proceeding

.
¶4 The lawyer for the Bankruptcy Trustee, recognizing the ground work the lawyers had done in the state court litigation

, moved to appoint the lawyers and the ir law firm as special counsel to the Trustee to

1 De Petris purchased fourteen units for approximately $1014 per unit in 1985 and complete d his investment payments by 1997. He also paid for his share of the accounting fees, taxes and related costs.DE PETRIS et al. v. ALTFELD et al.
Decision of the Court

3 prosecute th at litigation in Bankruptcy Court. The motion was granted in June 2006 subject to the law firm severing their legal relationship with their clients. The lawyers then sent De Petris and Palmer a letter informing them of the order , with a copy of the order, and advis ing the m that they need ed

to hire new counsel to handle the ir interests in the Bankruptcy Court. De
Petris an d Palmer retained n ew counsel

.
¶5 The Bankruptcy Court subsequently approved the sale of the real property. Four months later, De Petris and Palmer, along with others

, attended a settlement conference ; the discussion continued and eventually led to a written settlement and compreh ensive release

. Although they objected to the terms of the proposed settlement , the proposal included sufficient funds to allow De Petris an d Palmer to recover their investment and some interest

. Despite their objection and opting out of the agreement

, t he settlement was approved by the Bankruptcy Court

. 2 Although the funds were later disbursed, t he c ourt retained the settlement funds for De Petris and Palmer

.
¶6 De Petris and Palmer unsuccessfully appealed the approv ed settlement to the United States Bankruptcy Appellate Panel of the Ninth
Circuit

. See In re Coll

. Properties, Ltd

., No. BAP AZ

- 07

- 1075

- PAAK

, at *5

. The Trustee, as a result, was allowed to lev y surcharges against their share of the settlement funds for unnecessarily increasing the cost of litigation, which depleted nearly all of the ir $128,680.20 in retained funds

. See In re Coll. Properties Ltd. P ’ ship

, No. 02

- 0 5

- 10095PHXCGC, 2007 WL 3407010, at *1, 2

- 4 (Bankr. D. Ariz. Nov. 13, 2007).

¶7 De Petris and Palme r then filed this legal malpractice action against the ir former lawyers and the ir law firm alleging the lawyers had abandoned them to become special counsel to t he Bankruptcy Trustee. As relevant, they alleged that :

As a direct and proximate result of one or more of the aforesaid negligent acts or omissions of the defendant attorneys and the defendant law firm, plaintiffs sustained compensatory and

2 The approved settlement provided that $850,000 would be distributed to the limited partners . The settlement, as a result, represented “a return of equity . . ., along with some interest payments” which was very rare for investing in a high ly speculative venture. In re Coll

. Properties, Ltd

., No. BAP
AZ

- 07

- 1075

- PAAK, 2007 WL 7540957 at *1, 3

- 4, 8 (B.A.P. 9th Cir. Aug. 14, 2007)

.DE PETRIS et al. v. ALTFELD et al.
Decision of the Court

4 consequential damages, including, but not limited to, the loss of their real estate investment, an adverse settlement in the Bankruptcy Court . . ., and attorney fees that were incurred as a result of defendants ’ abandonment.

¶8 After discovery, the lawyers and law firm successfully moved for sum ma ry judgment arguing that De Petris and Palmer had failed to demonstrate a genuine issue of material fact on the issues of causation and damages. De Petris and Palmer unsuccessfully moved for relief pursuant
to Ari zona Rule of C ivil Procedure 59

, and then filed this appeal.

DISCUSSION

I

¶9 De Petris and Palmer contend that the superior court erred by granting the lawyers and law firm summary judgment. They argue that they presented sufficient evidence to support their contention th at when the ir lawyers switched sides, they were abandoned , which , as a result, contributed to their damages.

¶10 We review the summary judgment ruling de novo

. Best Choice Fund, LLC v. Low & Childers, P.C. , 228 Ariz. 502, 506, ¶ 10, 269 P.3d 678, 682 (App. 20 11 )

. Summary judgment is appropriate 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. 56( a )

. We view the facts in the light most favorable to the non

- moving pa rties. See Orme Sch. v. Reeves

, 166 Ariz. 301, 309

- 10, 802 P.2d 1000, 1008

- 09 (1990).

¶11 A plaintiff in a legal malpractice action must establish t he four elements of negligence: “(1) the existence of an attorney

- client relationship which imposes a duty on the attorney to exercise that degree of skill, care, and knowledge commonly exercised by members of the profession, (2) a breach of that duty,” (3) the breach proximately caused injury, and (4) damages. Toy v. Katz , 192 Ariz. 73, 85, 961 P.2d 1021, 1033 ( App. 1997); Phillips v. Clancy , 152 Ariz. 415, 418, 733 P.2d 300, 303 (App. 1986)

. C ausation, a lthough generally a fact question, requires proof of negligence in the case

- within

- a

- case; that is, the pa rty alleging legal malpractice must
prove “ that but for the attorney ’ s negligence, he would have bee n successful in the prosecution

. . . of the original suit. ” Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 12, 83 P.3d 26, 29 (2004) ( internal quotation marks and citations omitted ); see also Cecala v. Newman , 532 F. Supp. 2d 1118, 1136

- 37DE PETRIS et al. v. ALTFELD et al.
Decision of the Court

5 (D. Ariz. 2007). Moreover, any damages must be demonstrated, Amfac Distribution Corp. v. Miller , 138 Ariz. 152, 153, 673 P.2d 792, 793 (1983) , and must be ascertainable, not speculative. See Kiley v. Jennings, Strouss & Salmon

, 187 Ariz. 136, 139, 927 P.2d 796, 799 (App. 1996) (noting that ascertainable, not speculative or contingent, damages are required before a claim for legal malpractice accrues).

¶12 A plaintiff responding to a motion for summary judgment in a legal malpractice case must present competent evidence that the lawyer was negligent and that but for the lawyer’s negligence the underlying case could have been successfully prosecuted. See Glaze , 207 Ariz. at 29, ¶ 12, 83 P.3d at 29; Ariz. R. Civ. P. 56(a). Typically, i n addition to demonstrating how the lawyer negligently handled the underlying case, a plaint iff would also have to demonstrate he would have been successful but for the lawyer’s negligence.

¶13 Here, after the lawyers filed their motion for summary judgment, De Petris and Palmer responded by point ing to De Petris ’ deposition testimony , as well as their expert ’s affidavit , to demonstrate there was a genuine issue of material fact about causation and damages. De Petris testified that the lawyers caused them dam ages by “switching sides and representing the Trustee,” 3 which , in turn, “prevented Plaintiffs from obtaining relief because they were forced to sw itch lawyers at the last minute” 4 which resulted in “a loss in value of the property of at least $175,000.” De Petris also testified “that the [ lawyers ] caused over $825,000 in damage by instigating the bankruptcy settlement that damaged [Plaintiffs].” Their legal expert, by affidavit, simply o pined that : “ [t] he [ lawyers ’ ] failure to comply with the standards o f care and conduct caused [ De Petris ’ ] damages.” As a result De Petris and Palmer claim there is evidence in the record demonstrating a genuine issue of material fact concerning causation and damages.

¶14 We disagree that they presented “ sufficient evidence demonstrating the existence of a genuine factual dispute as to a material fact.” N at’l Bank of Arizona v. Thruston, 218 Ariz. 112, 119, ¶ 26, 180 P .3d 977, 984 (App. 2008)

. De Petris and Palmer needed to produce “ specific facts showing a genuine issue for trial.” Ariz. R. Civ. P. 56(e)(4) (emphasis added). Their assertions
, un supported by facts in the record

, are

3 De Petris testified that he had “no legitimate c omplaint [about his lawy ers] prior to the abandonment.”

4 De Petris and Palmer assert th at th e lawyer they retained was not experienced or capable of h andling the bankruptcy matter.DE PETRIS et al. v. ALTFELD et al.
Decision of the Court

6 insufficient to defeat a motion for summary judgment

. Florez v. Sargeant, 185 Ariz. 521, 526, 917 P.2d 250, 255 (1996) ; Margaret H. v. Ariz. Dep ’ t of Econ. Sec., 214 Ariz. 101, 104, ¶ 10, 148 P.3d 1174, 1177 (App. 2006) (stating that a party’s conclusory affidavit is usually insufficient to defeat a motion for summary judgment) ; Ariz. R. Civ. P. 56(e)(1) (“ An affidavit used to support or oppose a motion shall . . . set out facts that would be admissible in evidence . . . .”) (emphasis added).

¶15 The deposition testimony and expert’s affidavit do not establish th at “but for” the lawyers switching sides to be sp ecial counsel,
De Petris and Palmer would have been more successful in the Bankruptcy Court proceedings. They did not present any evidence by a lawyer specializing in the Bankruptcy Court , or other evidence, that would support
De Petris’ depo sition claim that the lawyers: (1) could have prevented the sale of the property by the Bankruptcy Court ; (2) c ould have recovered more in the Bankruptcy Court , whether by trial or settlement ; or (3) c ould have convinced the Bankruptcy Court to allow them to separately sell the real property units that were the subject of their investment. See Phillips

, 152 Ariz. at 418, 733 P.2d at 303

.
¶16 Moreover, a lthough De Petris testified that he lost $175,000 once the real property was sold, 5 and $825,000 as a result o f the approved settlement, there is no evidence that the lawyers , by switching sides, were responsible for those loses

. 6 Additionally, the expert’s affidavit does not explain how the lawyers becoming special counsel caused or contributed to the alleged damages. See Ariz. Rev. Stat. (“ A .R.S. ”) § 12

- 2602 (B) (4) (requiring a preliminary expert opinion affidavit to contain information regarding “[t]he manner in which the licensed professional’s acts, errors or omissions caused or contributed to the d amages or other relief sought by

5 De Petris testified that the $175,000 represented the difference betwee n what he thought the 140 acres of property was worth and the Bankruptcy Court’s approved sale of the property for $5,825,000. There is no evidence that the approved sales price was belo w market rates or was otherwise unreasonable.

6 The $850,000 represent s t he portion of the settlement that went to D’Ambrosino and Montage

. See In re Coll

. Properties, Ltd

., No. BAP AZ

- 07

- 1075

- PAAK , at * 3. Although De Petris believes those two parties were the alleged architects of the collapse of the project

, the Bankruptcy Court recognized that it was due to the lawyers’ efforts th at th e real property was brought into the bankruptcy estate and resulted in a recovery to all the limited partners. See In re Coll. Properties Ltd. P ’ ship , No. 02

- 05

- 10095 PHXCGC, 2007 WL 1559899, at * 3 (Bankr. D. Ariz. May 29, 2007)

.DE PETRIS et al. v. ALTFELD et al.
Decision of the Court

7 the claimant”). The evidence , as a result

, is conclusory and speculative

, and does not raise a genuine issue of material fact that “but for” the lawyers “switching sides ” De Petris and Palmer would not have been damaged.

¶17 De Petris and Palmer wanted to protect their investment and recover any appropriate damages as they pursued the general partner from Pinal County to the Bankruptcy Court. They, however, failed to demonstrate their lawyers caused them damage by becoming sp ecial counsel to the Bankruptcy Trustee without notice, discussion or approval

. As a result, they have failed to establish a genuine issue of material fact regarding two essential elements to their legal malpractice claim. See Phillips , 152 Ariz. at 418, 733 P.2d at 303; Florez

, 185 Ariz. at 526, 917 P.2d at
255

. Consequently, the lawyers and law firm were entitled t o judgment as a matter of law, and the superior court properly grante d summary judgment in their favor

.

II

¶18 Citing A rizona Rules of Civil Appellate Procedure 21 and 25

, and A.R.S. § 12

- 341

, the lawyers request their attorneys’ fees and costs incurred on appeal. We do not find that De Petris or Palmer frivolously
exercis ed the right to appeal the judgment or that it was done solely for the purpose of delay. See ARCAP 25

. As a result, the lawyers and the law firm are not entitle d to fees on appeal. They , however, are the prevailing party on appeal and are entitled to recover their costs on appeal upon compli ance with ARCAP 21.

CONCLUSION

¶19 The judgment is affirmed.