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

ANTHONY DE PETRIS, an individual, and PATRICIA PALMER, an 

individual, Plaintiffs/Appellants,

v.

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

GOLDMAN, P.C., Defendants/Appellees.

No. 1 CA-CV 13-0740

Appeal from the Superior Court in Maricopa County

No. CV2010-054583

The Honorable Alfred M. Fenzel, Judge

AFFIRMED

COUNSEL

The Nathanson Law Firm, Scottsdale

By Philip J. Nathanson, Alon Stein

Counsel for Plaintiffs/Appellants

Broening, Oberg, Woods & Wilson, PC, Phoenix

By Donald Wilson, Jr., Jathan P. McLaughlin

Counsel for Defendants/Appellees
DE 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 former 

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 partnerships, 

Thomas D’Ambrosino, had transferred property from the limited 

partnerships into other entities he controlled and, as a result, they hired a

law firm in 2004 to sue D’Ambrosino and others. Altfeld and Battaile 

subsequently filed a complaint and an application 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 

that lawsuit sought bankruptcy protection by filing 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 Court 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 their law firm as special counsel to the Trustee to 

 

1 De Petris purchased fourteen units for approximately $1014 per unit in 

1985 and completed 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.

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3

prosecute that 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 advising them that they needed

to hire new counsel to handle their interests in the Bankruptcy Court. De

Petris and Palmer retained new 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 comprehensive release. Although they 

objected to the terms of the proposed settlement, the proposal included 

sufficient funds to allow De Petris and Palmer to recover their investment

and some interest. Despite their objection and opting out of the agreement, 

the settlement was approved by the Bankruptcy Court.

2 Although the 

funds were later disbursed, the court retained the settlement funds for De

Petris and Palmer.

¶6 De Petris and Palmer unsuccessfully appealed the approved 

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 levy surcharges against their share 

of the settlement funds for unnecessarily increasing the cost of litigation, 

which depleted nearly all of their $128,680.20 in retained funds. See In re 

Coll. Properties Ltd. P’ship, No. 02-05-10095PHXCGC, 2007 WL 3407010, at 

*1, 2-4 (Bankr. D. Ariz. Nov. 13, 2007).

¶7 De Petris and Palmer then filed this legal malpractice action 

against their former lawyers and their law firm alleging the lawyers had 

abandoned them to become special counsel to the 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 highly 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.

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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 summary 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 Arizona Rule of Civil 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 that when 

their 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. 2011). 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 parties. 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 the 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). 

Causation, although generally a fact question, requires proof of negligence 

in the case-within-a-case; that is, the party alleging legal malpractice must 

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

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, 1136-37 
DE PETRIS et al. v. ALTFELD et al.

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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, in addition to demonstrating 

how the lawyer negligently handled the underlying case, a plaintiff 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 pointing 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 damages by “switching sides 

and representing the Trustee,”3 which, in turn, “prevented Plaintiffs from 

obtaining relief because they were forced to switch 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 opined that: “[t]he 

[lawyers’] failure to comply with the standards of 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.” Nat’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, unsupported by facts in the record, are 

 

3 De Petris testified that he had “no legitimate complaint [about his lawyers] 

prior to the abandonment.”

4 De Petris and Palmer assert that the lawyer they retained was not 

experienced or capable of handling the bankruptcy matter. 
DE PETRIS et al. v. ALTFELD et al.

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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 that “but for” the lawyers switching sides to be special 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’ deposition claim that the lawyers: (1) could have prevented the 

sale of the property by the Bankruptcy Court; (2) could have recovered 

more in the Bankruptcy Court, whether by trial or settlement; or (3) could 

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, although De Petris testified that he lost $175,000 

once the real property was sold,5 and $825,000 as a result of 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 damages or other relief sought by 

 

5 De Petris testified that the $175,000 represented the difference between 

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 below market rates or was otherwise 

unreasonable.

6 The $850,000 represents the 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 that the 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.

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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 special 

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 to judgment as 

a matter of law, and the superior court properly granted summary 

judgment in their favor. 

II

¶18 Citing Arizona 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 

exercised 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 entitled to fees on appeal. They, however, are the prevailing party 

on appeal and are entitled to recover their costs on appeal upon compliance 

with ARCAP 21. 

CONCLUSION

¶19 The judgment is affirmed.