Opinion
No. 1 CA-CV 13-0724
02-26-2015
JESSE OLAFSON, Plaintiff/Appellant, v. BRIAN STRONG and THE LAW FIRM OF ROWLEY, CHAPMAN, BARNEY & BUNTROCK, LTD, jointly and severally, Defendants/Appellees.
COUNSEL Daniel R. Raynak, Attorney at Law, Phoenix By Daniel R. Raynak Counsel for Plaintiff/Appellant Manning & Kass, Ellrod, Ramirez, Trester, LLP, Scottsdale By Robert B. Zelms, Debora L. Verdier, Anthony S. Vitagliano Counsel for Defendants/Appellees
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2012-011604
The Honorable Katherine M. Cooper, Judge
AFFIRMED
COUNSEL Daniel R. Raynak, Attorney at Law, Phoenix
By Daniel R. Raynak
Counsel for Plaintiff/Appellant
Manning & Kass, Ellrod, Ramirez, Trester, LLP, Scottsdale
By Robert B. Zelms, Debora L. Verdier, Anthony S. Vitagliano
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Donn Kessler joined. CATTANI, Judge:
¶1 Jesse Olafson appeals from the superior court's order granting summary judgment in favor of Brian Strong and The Law Firm of Rowley, Chapman, Barney & Buntrock, Ltd. on Olafson's claims of legal malpractice and breach of contract. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to Olafson. See Hill-Shafer P'ship v. Chilson Family Trust, 165 Ariz. 469, 472, 799 P.2d 810, 813 (1990) ("In reviewing summary judgment, we view the evidence in a light most favorable to the party opposing it.").
¶2 Olafson received a confrontation call from A.B.'s mother alleging that he had engaged in improper sexual conduct with A.B. when she was eight years old; Olafson denied the allegations at that time. Although Olafson had not been arrested or charged with a crime, police officers scheduled an interview with him, and he retained Strong (an attorney with The Law Firm of Rowley, Chapman, Barney & Buntrock, Ltd.) to represent him.
¶3 During his initial meeting with Strong, Olafson denied the sexual conduct allegations. Olafson asked Strong to accompany him to the police interview, and he indicated that he intended to dispute the allegations.
¶4 At Strong's suggestion, Olafson agreed to take a polygraph test. The test results indicated Olafson was deceptive in denying the allegations, and a second polygraph test yielded similar results. Thereafter, Olafson admitted to Strong numerous instances of sexual acts involving A.B. and two other children. Strong advised Olafson that he faced at least 35 years in prison should he be found guilty of the criminal conduct, and they discussed the options of Olafson either remaining silent during the police interview, or confessing fully. Strong explained each option's attendant benefits and risks.
Strong stated that he advised Olafson that the only clients he has had who denied accusations of improper sexual conduct and were not charged were those who passed a polygraph test.
Strong stated in his deposition that Olafson wanted to deny the allegations at the interview, but Strong advised him that lying to the police would subsequently have negative repercussions.
¶5 At the police interview, Olafson ultimately confessed to numerous sex crimes involving three victims. He was arrested, and the State subsequently indicted him on 23 counts of sexual crimes, including 2 counts of attempted sexual conduct with a minor, 4 counts of sexual conduct with a minor, and 4 counts of molestation of a child.
¶6 During ensuing plea negotiations, Strong first obtained an offer for Olafson that would result in 35 years in prison and a subsequent offer that would require between 20 to 27 years in prison. Olafson terminated his agreement with Strong and retained new counsel, who ultimately helped Olafson secure a final plea offer stipulating a prison term of 13 to 20 years. After pleading guilty to five felony counts, the court sentenced Olafson to 20 years' incarceration followed by lifetime probation. Olafson is currently serving his prison term.
¶7 The superior court appointed counsel for Olafson to pursue post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure. Counsel did not find any colorable claims for relief, and Olafson proceeded in propria persona. Although Olafson was granted two extensions to file a petition for post-conviction relief, he never did so.
¶8 Olafson instead filed this legal malpractice action against Strong and Strong's law firm. The basis of the malpractice claim was Strong's alleged negligence in advising Olafson to confess to the police without first having a plea agreement in place. Olafson also asserted a breach of contract claim, alleging that, notwithstanding a provision in his retainer agreement with Strong that there would be no promises about the outcome of the criminal case, Strong promised Olafson that his confession to the police would result in one year of incarceration in county jail followed by lifetime probation. Strong successfully moved for summary judgment on all claims, and Olafson appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") §§ 12-120.21(A)(1) and -2101(A)(1).
Absent material revisions after the relevant dates, we cite a statute's current version.
DISCUSSION
¶9 To succeed on summary judgment, the moving party must establish that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(a); accord Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 114-15, ¶ 12, 180 P.3d 977, 979-80 (App. 2008). The movant must "point out by specific reference to the relevant discovery that no evidence existed to support an essential element of the claim." Orme Sch. v. Reeves, 166 Ariz. 301, 310, 802 P.2d 1000, 1009 (1990). The burden then shifts to the non-moving party to produce sufficient evidence of a genuine issue of material fact as to one or more essential elements of the claim or defense. Id.; Ariz. R. Civ. P. 56(c)(3).
¶10 We review a grant of summary judgment de novo. Emmett McLoughlin Realty, Inc. v. Pima Cnty., 212 Ariz. 351, 353, ¶ 2, 132 P.3d 290, 292 (App. 2006). Applying the same standard as the trial court, we review the record to determine whether there was a reasonable basis for the court's ruling, and we will affirm an award of summary judgment if it is correct for any reason. Sears Roebuck & Co. v. Walker, 127 Ariz. 432, 437, 621 P.2d 938, 943 (App. 1980); Chi. Ins. Co. v. Manterola, 191 Ariz. 344, 346, ¶ 7, 955 P.2d 982, 984 (App. 1998). I. Legal Malpractice Claim.
¶11 Olafson argues that a factual question regarding Strong's adherence to the applicable standard of care precluded summary judgment. Specifically, Olafson points to his proffered affidavit from a local lawyer in which the lawyer asserted that Strong's advice to Olafson to confess at the police interview was "clearly negligent" and constituted legal misconduct. The affiant also opined that "[w]ithout the confession, [Olafson] had a very good chance of prevailing at a trial."
Olafson only challenges the court's summary dismissal of his legal malpractice and breach of contract claims, and he has thus abandoned any challenge to the dismissal of his remaining claims. See Robert Schalkenbach Found. v. Lincoln Found., Inc., 208 Ariz. 176, 180, ¶ 17, 91 P.3d 1019, 1023 (App. 2004), as amended (July 9, 2004) ("Generally, we will consider an issue not raised in an appellant's opening brief as abandoned or conceded.").
¶12 Olafson's legal malpractice claim fails because such claims arising from criminal proceedings are only viable if the criminal proceedings are ultimately resolved in the claimant's favor. In Glaze v. Larsen, after noting the basic elements essential to all negligence claims, i.e., existence of a duty, breach of that duty, actual and proximate cause of injury, and the nature and extent of damages, the Arizona Supreme Court held that "a cause of action for legal malpractice that occurs during the course of criminal litigation does not accrue until proceedings in the criminal matter have been terminated favorably to the criminal defendant." 207 Ariz. 26, 29, 35, ¶¶ 12, 35, 83 P.3d 26, 29, 35 (2004). The court noted that a malpractice suit is in essence a collateral attack on a criminal conviction, and that "most jurisdictions addressing the issue" have concluded that "a convicted defendant seeking damages for malpractice causing a conviction must have had that conviction set aside" prior to recovering damages in a malpractice action. Id. at 32, ¶ 24, 83 P.3d at 32 (quoting Restatement (Third) of the Law Governing Lawyers § 53 cmt. d). Thus, although not specifically at issue in Glaze, the decision makes clear that the assertion of a cause of action in this context requires a favorable termination of the underlying criminal proceedings, whether through appellate or post-conviction proceedings. Id.
The overwhelming majority of states follow the Restatement in requiring that a defendant must have his conviction set aside prior to filing suit for legal malpractice. See e.g. Simon v. Joseph, 59 V.I. 611, 2013 WL 4854776, at *7 (2013) (collecting cases). Only one state (Ohio) has declined to differentiate between malpractice claims arising out of civil and criminal proceedings, and several jurisdictions have in fact imposed an additional requirement—proof of actual innocence. Id.; see also Glaze, 207 Ariz. at 32, ¶ 25, 83 P.3d at 32 (collecting cases).
The defendant in Glaze obtained post-conviction relief based on ineffective assistance of counsel, and the superior court subsequently dismissed the charges. 207 Ariz. at 28, 83 P.3d at 28.
¶13 Here, Olafson's post-conviction proceedings under Rule 32 did not terminate in his favor. Although Olafson was granted two extensions to file a Rule 32 petition, he never did so. See Ariz. R. Crim. P. 32.4(c)(2). Thus, he failed to satisfy a required element of his claim. See Glaze, 207 Ariz. at 32, ¶ 25, 83 P.3d at 32.
¶14 Olafson argues that the rule in Glaze is inapplicable because the alleged malpractice here occurred prior to the initiation of criminal proceedings. But the Glaze court referred specifically to claims of malpractice "in the course of criminal representation." Id. at 32, ¶ 24, 83 P.3d at 32 (emphasis added). Here, Olafson hired Strong after being asked to come to the police station for an interview relating to allegations of sexual crimes against children. Thus, there is no question that the alleged legal malpractice claim related to conduct in the course of criminal representation.
¶15 We conclude that under the circumstances presented here, Olafson was required to establish that the criminal matter terminated in his favor. Because he has not obtained relief through a claim of ineffective assistance of counsel or any other type of claim for relief in post-conviction proceedings, he is now precluded from obtaining relief on a legal malpractice claim. Accordingly, the superior court properly granted defendants' motion for summary judgment on that claim. See Hydroculture, Inc. v. Coopers & Lybrand, 174 Ariz. 277, 283, 848 P.2d 856, 862 (App. 1992) ("[D]efendant can obtain summary judgment when the plaintiff is unprepared to establish a prima facie case."); Ariz. R. Civ. P. 56(a). II. Breach of Contract Claim.
We also note that the causation evidence Olafson presented—an affidavit opinion that "[w]ithout the confession, he had a very good chance of prevailing at a trial"—was "speculative or contingent," and thus would have been insufficient to establish "ascertainable" damages. See Glaze, 207 Ariz. at 29, ¶ 13, 83 P.3d at 29.
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¶16 Olafson argues that Strong promised him that his confession to police would result in a one-year term of incarceration, and that this false promise violated a provision in the retainer agreement providing that Strong would make no promises regarding the outcome of the criminal case. This argument is unavailing, however, because the factual predicate is incorrect. The retainer agreement does not state that Strong would make no promises to Olafson after Strong's representation commenced. Rather, the applicable provision states: "It is expressly understood and agreed that no guarantees or promises have been made about the outcome of your case." Thus, any alleged promise during the course of representation did not breach the retainer agreement.
¶17 Moreover, to the extent Olafson's argument can be construed to relate to Strong's failure to deliver on a subsequent promise, Strong was not given a full opportunity to perform. Olafson acknowledges that plea negotiations were ongoing when he terminated Strong's representation, thus depriving Strong of whatever possibility he had to procure a plea agreement that satisfied Olafson and would be accepted by the court. Accordingly, Olafson's breach of contract claim fails, and the superior court properly granted defendants' motion for summary judgment.
CONCLUSION
¶18 The summary judgment is affirmed.