Goltsman v. Almquist & Gilbert
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ISAAK GOLTSMAN, an individual, Plaintiff/Appellant, v. ALMQUIST & GILBERT, P.C., an Arizona professional Corporation; WALTER HARLEN GILBERT; ROBERT D. ALMQUIST, Defendants/Appellees. DIVISION ONE FILED: 02/25/10 1 CA-CV 09-0287 PHILIP G. URRY,CLERK BY: JT DEPARTMENT D ) ) ) ) ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court of Maricopa County Cause No. CV 2008-016750 The Honorable L. Grant, Judge AFFIRMED Isaak Goltsman In Propria Persona Phoenix Lewis Brisbois Bisgaard & Smith, LLP By James K. Kloss and Jodi L. Skeel Attorneys for Appellees Phoenix T H O M P S O N, Judge ¶1 dismissal Isaak Goltsman (plaintiff) appeals the trial court's of his complaint and award of attorneys' fees to Almquist & Gilbert, P.C., Walter Harlen Gilbert, and Robert D. Almquist (defendants). ¶2 For the following reasons, we affirm. Atomic Submarine, L.L.C. (Atomic), through plaintiff, as guarantor, signed a lease agreement with Sunnyslope Village Center (SVC). The lease had an exclusive provision that provided that no other sandwich shop could lease in the shopping center during the term of Atomic's lease. SVC later retained Almquist to file a forcible entry and detainer (FED) action against Atomic for failure to timely pay rent. That lawsuit was settled, and Atomic agreed to waive the exclusive provision of the lease agreement. Around the time of the settlement, Atomic's attorney asked Almquist if SVC was negotiating with other sandwich shops. not. Another sandwich shop later leased space from SVC. ¶3 and Almquist allegedly stated that SVC was Atomic then sued SVC for negligent misrepresentation breach dealing, of the among misrepresentations implied other by covenant claims, Almquist. of good because Goltsman faith of was and the fair alleged added as a plaintiff, although the trial court determined that he did not have standing and could not enter that lawsuit as a plaintiff. Gilbert and Almquist were counsel for SVC. The complaint was dismissed. ¶4 The new owner of the shopping center, Sunnyslope Village Investment (SVI) sued plaintiff for non-payment of rent. 2 Almquist represented SVI. SVI obtained a against Atomic and plaintiff, as guarantor. default judgment Plaintiff appealed, and the judgment was affirmed. ¶5 Plaintiff then filed this lawsuit, which alleges that plaintiff discovered dismissed. that Defendants the FED assert that action was not such may "legally" have been an oversight but that the FED action was abandoned and ultimately dismissed by court order due to the settlement. Plaintiff also alleges that an amendment to the lease agreement, which was part of the settlement with SVC, was not filed with the court or signed by the judge. raised and Defendants argued ruled moved that Defendants allege that these issues were upon to (1) in the first dismiss the complaint plaintiff's complaint lawsuit in and this was barred appeal. case and by res judicata because it was identical to a previous lawsuit, (2) plaintiff's complaint was barred by the statute of limitations, and (3) plaintiff could not sustain a cause of action against defendants because they had no duty to Atomic or plaintiff. The trial court granted the motion to dismiss and awarded attorneys' fees and costs to defendants. ¶6 not Plaintiff appealed. Plaintiff first argues on appeal that his claim was barred plaintiff, by he the statute discovered the of limitations. "violations of November 2007 and filed his complaint in 2008. 3 According his rights" to in It appears from the complaint that the underlying events giving rise to this lawsuit, which were the subject of a prior lawsuit, occurred in 2002 and 2003. Plaintiff alleges that he did not discover that the FED case filed in 2002 was not "legally dismissed" until 2007. Under Arizona Revised Statutes (A.R.S.) § 12-542 (2009), there is a two-year statute of limitations for actions based on personal injury. From the face of the complaint, it is difficult to determine if it is based on the allegation that the FED case was not "legally dismissed" or based upon the alleged misrepresentations made by Almquist regarding the exclusive provision of the lease, which led to the prior lawsuit by Atomic against SVC. Either way, plaintiff "should have" been aware of these by events dismissed.1 2003, when the FED action was settled and See Long v. Buckley, 129 Ariz. 141, 142, 629 P.2d 557, 558 (App. 1981) (citation omitted) (cause of action accrues when plaintiff knows or should have known of defendant's conduct, and statute of limitations begins to run at that time). 1 The answering brief has a section regarding alleged claims of fraud being barred by the statute of limitations. This claim does not appear to be raised in the opening brief in terms of the statute of limitations. Rather, plaintiff asserts that defendants conspired with their clients in the previous lawsuit to plan and conduct fraud by using "fraudulently submitted evidences [sic]" in his argument regarding his assertion that defendants owed him a duty when representing SVC in another lawsuit. Therefore, we do not address this argument in terms of the statute of limitations. 4 ¶7 Plaintiff next asserts that defendants, as counsel for the other party to a previous lawsuit against plaintiff, owed him a duty "for intentional torts." According to plaintiff, the previous lawsuit filed against him by defendants (as counsel) "was not based "improper" on judgment the proper holding evidence plaintiff for paying rent and" other charges. and resulted" "wrongfully in an accountable We agree with defendants that they had no duty to plaintiff, who was not their client, while representing SVC in the other lawsuits. See Capitol Indem. Corp. v. Fleming, 203 Ariz. 589, 591, ¶ 6, 58 P.3d 965, 967 (App. 2002) (citation omitted) (case law does not recognize a duty by an attorney to a non-client who is not "at least derivatively" an intended beneficiary of the attorney-client relationship). ¶8 Finally, plaintiff asserts that the trial court erred in granting attorneys' fees and costs to defendants because they previously against him filed in a "groundless another lawsuit. and illegitimate" Such is not complaint grounds for reversing the trial court's grant of attorneys' fees and costs to defendants in this lawsuit.2 2 The answering brief addresses the trial court's ruling regarding res judicata. However, because plaintiff does not raise that issue on appeal, and because we affirm on other grounds, we decline to address it. 5 ¶9 For the foregoing reasons, we affirm. attorneys' (2009), fees 12-342 and costs (2009), and on appeal 12-349 under (2009) Defendants seek A.R.S. and §§ 12-341 ARCAP 21(c). Defendants assert that this lawsuit was not filed in good faith. We agree and award defendants their reasonable attorneys' fees and costs upon compliance with ARCAP 21. ___/s/________________ JON W. THOMPSON, Judge CONCURRING: ______/s/_________________________ PATRICIA A. OROZCO, Presiding Judge ______/s/_________________________ DIANE M. JOHNSEN, Judge 6
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