ATKINS v. SNELL & WILMER, et al.

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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 BARRY ATKINS, a married man dealing with his sole and separate property, ) ) ) ) Plaintiff/Appellant, ) ) v. ) ) SNELL & WILMER, L.L.P., an ) Arizona limited liability ) partnership; DONALD W. BIVENS and ) PATRICIA LEE REFO, husband and ) wife; ROBERT M. KORT and MYNDI M. ) KORT, husband and wife, ) ) Defendants/Appellees. ) ) 1 CA-CV 12-0018 DIVISION ONE FILED: 12/27/2012 RUTH A. WILLINGHAM, CLERK BY: mjt DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2011-052858 The Honorable Linda H. Miles REVERSED IN PART, AFFIRMED IN PART Barry M. Atkins In Propria Persona Carefree Fennemore Craig, P.C. By Timothy J. Burke Theresa Dwyer-Federhar Amy Abdo Jessica Post Attorneys for Defendants/Appellees Phoenix G O U L D, Judge 1 ¶1 Barry Atkins ( Atkins ) appeals the dismissal of his claims against Snell & Wilmer, LLP; Donald Bivens and Patricia Refo, husband and wife; and Robert and Myndi Kort, husband and wife (collectively Defendants ) for legal malpractice, breach of fiduciary duty, fraud, and punitive damages. Atkins also challenges the denial of his motions for sanctions, for a change of judge, and to amend his complaint. below, we affirm in part and For the reasons stated reverse in part the court s judgment. FACTUAL AND PROCEDURAL BACKGROUND ¶2 In 2005, Randall Zeller ( Zeller ) agreed to loan Atkins $220,000 in order to fund an ongoing lawsuit Atkins was pursuing in Florida. The arrangement between Atkins and Zeller included a promissory note and security agreement stating, in relevant part, that Atkins would repay the $220,000 at ten percent interest (eighteen percent in the event of a default). Atkins and Zeller also entered into a Participation Agreement, under which Atkins agreed to pay Zeller ten percent of any net recovery in the Florida lawsuit. Zeller also loaned Atkins an additional $140,000 in personal loans. ¶3 the Atkins received a multi-million dollar settlement in Florida lawsuit. Atkins repaid the $220,000 interest and $100,000 of the $140,000 personal loans. 2 loan plus However, Atkins decided not to pay Zeller ten percent of the recovery pursuant to the Participation Agreement because Atkins believed the Participation Agreement constituted an unenforceable loan under Florida usury law. where Atkins percent of Agreement, was the as Zeller then sued Atkins in Arizona, residing, claiming he settlement proceeds under well as the was outstanding entitled the $40,000 to ten Participation personal loan balance. ¶4 Atkins Zeller lawsuit. hired Snell & Wilmer to defend him in the Snell & Wilmer filed successful motions to resolve all claims against Atkins except Zeller s claim based on the breach of the Participation Agreement. ¶5 Zeller eventually filed a motion for summary judgment regarding Atkins alleged breach of the Participation Agreement. Snell & Wilmer successfully opposed the motion, which was denied by the court. In denying the motion, the Zeller court concluded there was a question of fact for the jury regarding Zeller s alleged corrupt intent for purposes of applying Florida usury laws. ¶6 parties Following this ruling, the Zeller court ordered the to attend a settlement conference, conference memorandum case. settlement conference. Defendants providing sent their Atkins Prior a evaluation to the settlement of Atkins Defendants also sent Atkins an email analyzing Atkins 3 best case, included trial. worst the case necessary scenarios attorneys at trial. fees to This take analysis the case to Under Defendants best case scenario, even if Atkins prevailed in the case, his recovery was limited to the $35,750 in interest Defendants he had advised already Atkins paid that to it Zeller. would cost In an addition, additional $100,000 to $150,000 in attorneys fees to take the case through trial, and that Atkins fees were not recoverable from Zeller even if he prevailed at trial. ¶7 Based on Defendants analysis, Zeller and agreed to pay Zeller $300,000 monthly installments. Atkins settled distributed with in six The settlement provided for a stipulated judgment of $635,000 in the event Atkins defaulted. After three payments, Atkins defaulted, and Zeller recorded the stipulated judgment. At that time, Atkins had paid Defendants $120,000 in legal fees. ¶8 asserting Atkins claims brought for this legal action malpractice, against breach Defendants of fiduciary duty, fraud, and punitive damages. Atkins claims are premised on two core factual allegations. First, Atkins alleges that based on Florida usury law, Zeller s lawsuit should have been dismissed pursuant summary judgment. to a motion to dismiss or a motion for Defendants failure to file such a motion 4 constituted, in Atkins view, legal malpractice, fraud, and a breach of fiduciary duty. ¶9 The alleged in second, Atkins or alternative complaint, is basis that when for he liability settled the Zeller Lawsuit and entered into the Settlement Agreement he did so based solely upon intentionally incomplete, defective, deficient, and intentionally improper legal direction, counsel and advice provided by Defendants. to and during the settlement Atkins alleges that prior conference, Defendants provided negligent legal advice by failing to properly advise him as to his liability, remedies, defenses and potential recovery under Florida law. Atkins further alleges that if Defendants had exercised proper care and skill in representing him, he would not have settled the Zeller lawsuit. ¶10 Defendants Arizona Rules of filed Civil a motion Procedure to dismiss Rules pursuant 12(b)(6), 8, and to 9. Atkins responded that his complaint, when read as a whole, set forth sufficient allegations in withstand a motion to dismiss. support of his claims to Atkins also argued that if the court found the allegations in his complaint were insufficient, he should be allowed to amend his complaint. ¶11 Atkins claiming that misstated the also filed Defendants law in a motion and their their motion 5 for Rule attorneys to dismiss. 11 sanctions, intentionally After oral argument, the trial court denied the motion for sanctions and granted the motion to dismiss, both without comment. Atkins filed a motion to amend his complaint after this order, but prior to the entry of a final judgment.1 ¶12 Atkins also filed a separate motion for change judge, alleging the trial judge was biased against him. of The motion for change of judge was transferred to another judge, who denied the motion, finding that the trial judge demonstrated no bias or prejudice. ¶13 On December 19, 2011, the trial court signed a final judgment granting the motion to dismiss and denying the motion for sanctions. judgment. Atkins filed a timely notice of appeal from that This court has jurisdiction over the appeal from the December 19, 2011 judgment pursuant to Arizona Revised Statutes ( A.R.S. ) section 12-2101(A)(1) (Supp. 2011). DISCUSSION I. MOTION TO DISMISS ¶14 The notice pleading standard in Arizona Rule of Civil Procedure 8 ( Rule 8 ) governs the sufficiency of claims for relief. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 418, ¶ 1, 189 P.3d 344, 345 (2008). The purpose of the standard is to give the opponent fair notice of the nature and basis of the 1 Because we reverse the trial court s decision granting Defendants motion to dismiss, we do not address the trial court s denial of Atkins motion to amend his complaint. 6 claim and indicate generally the type of litigation involved. Cullen, 218 Ariz. at citation omitted). 419, ¶ 6, 189 P.3d at 346 (internal Dismissal of a complaint for failure to state a claim is appropriate if as a matter of law . . . the plaintiff would not be entitled interpretation of the facts. to relief under any Bunker's Glass Co. v. Pilkington PLC, 202 Ariz. 481, 484-85, 47 P.3d 1119, 1122-23 (App. 2002) (citations omitted), aff'd, 206 Ariz. 9, 75 P.3d 99 (2003). We review a trial court s decision to dismiss a complaint de novo. Coleman v. City of Mesa, 230 Ariz. 352, 356-57, ¶¶ 7-8, 284 P.3d 863, 866-67 (2012). ¶15 In determining if a complaint states a claim on which relief can be granted, courts must assume the truth of all wellpled factual allegations and indulge all reasonable inferences from those facts. 346. [C]ourts Cullen, 218 Ariz. at 419, ¶ 7, 189 P.3d at look only to the pleading itself when adjudicating a motion to dismiss. Id. If matters outside the pleading are considered, the motion must be treated as one for summary judgment. Ariz. R. Civ. P. 12(b). A complaint s exhibits, or public records regarding matters referenced in a complaint, are not outside the pleading, and courts may consider such documents without converting a motion to dismiss into a summary judgment motion. 7 See Strategic Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 63-64, ¶¶ 10, 13, 226 P.3d 1046, 1049-50 (App. 2010). A. Legal Malpractice Claim ¶16 Atkins malpractice contends claim the the because court erred complaint facts showing he was entitled to relief. in set dismissing forth his sufficient See Mobilisa, Inc. v. Doe, 217 Ariz. 103, 111, ¶ 23, 170 P.3d 712, 720 (App. 2007)( a complaint need merely set forth a short and plain statement showing the plaintiff is entitled to relief in order to survive a motion to dismiss ). breach, and damages, In addition to allegations of duty, [i]n a legal malpractice action, the plaintiff must prove that but for the attorney s negligence, he would have been successful in the prosecution or defense of the original suit. Phillips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300, 303 (App. 1986). Success by the defendant in the underlying case is not limited to a finding of no liability, but may also be a reduction in liability. See Hyatt Regency Phoenix Hotel Co. v. Winston & Strawn, 184 Ariz. 120, 131-32, 907 P.2d 506, 517-18 (App. 1995)(finding that jury could have reasonably concluded could that, have but for significantly attorney s legal malpractice, reduced his liability trial court properly in client underlying litigation). ¶17 We conclude the dismissed the allegation in Atkins complaint that he should have won on 8 summary judgment or other motion practice. As the Zeller court noted in denying Zeller s motion for summary judgment, [O]n this record, a reasonable juror could conclude after considering all of the circumstances that the intent of the lender [Zeller] was to avoid the application of Florida s usury laws. The Zeller court determined, based on Florida law, that whether the Participation Agreement constituted question of fact for the jury. a usurious loan was a For the reasons discussed below, we conclude this was a correct analysis of Florida law. ¶18 In order to prove usury under Florida law, one of the elements that must be proved to a jury is that the lender possessed a corrupt intent to take more than the legal rate for the use of the money loaned. (Fla. Dist. Ct. App. 1996). Kraft v. Mason, 668 So.2d 679, 683 The determination of intent, or corrupt purpose, is a question of fact for the jury that is to be gathered from the circumstances surrounding the entire transaction[] alone[.] and Kraft, not from mathematical 668 So.2d at 683-84 (quoting calculations Jersey Palm- Gross, Inc. v. Paper, 658 So.2d 531, 534 (Fla. 1995)). Thus, the fact that Zeller admitted he knew the amount of interest exceeded the lawful rate did not entitle Atkins to judgment as a matter of law. ¶19 Id. Additionally, the Zeller court found that whether the existence of a contingency precluded application of the Florida 9 usury law was one of many factors the trier of fact had to take into consideration in determining the usurious nature of the Participation Agreement. See In re Transcapital Fin. Corp., 433 B.R. 900, 907-910 (2010). Florida law states that a financing agreement will not be deemed to be usurious when repayment is made subject to the occurrence of a contingency. Transcapital, id., and Kraft, 668 So.2d. similar litigation financing agreements. held that where the repayment is 679, Id. at 907. both involved Both Florida courts subject to an express contingency, the occurrence of which is uncertain, the risk is deemed to transaction be sufficiently from the substantial operation Transcapital, 433 B.R. at 910. 684. of the to remove usury the laws. See also Kraft, 668 So.2d at Florida courts have held that usury laws do not apply where only the payment of the return was expressly subject to a contingency. Transcapital, id. (citing Kraft, id. and Valliappan v. Cruz, 917 So.2d 257, 260 (Fla. Dist. Ct. App. 2005)). ¶20 The Participation Agreement made payment of ten percent of the lawsuit proceeds contingent on Atkins prevailing in the underlying litigation financed by Zeller. The Zeller court created correctly concluded that this question of fact under Florida usury law. contingency Atkins unsuccessfully attempted to distinguish these cases on their facts. 10 a ¶21 Although Transcapital is a federal bankruptcy case, its holding is premised on Florida case law. 08. 433 B.R. at 907- The purpose of the loan in Transcapital was to provide funds to allow the borrower to continue litigation. Id. at 903. The lender provided $125,000 in return for the right to receive four times that amount ($500,000) to be paid only from any proceeds recovered in the litigation, plus an additional one percent of the [litigation] proceeds. and return were contingent upon the Id. at 904. [borrower] The loan ultimately prevailing in the [litigation] and realizing proceeds from which [the lender] could be paid. million dollar settlement, Id. the After receiving a multi- lender sought amounts due under the financing agreement. to recover the Id. at 906. The borrower objected on the grounds that the agreement constituted a criminally usurious loan. Id. Applying Florida law, the bankruptcy court held that a loan or financing agreement will not be deemed usurious when repayment is made subject to the occurrence of a contingency. Id. at 907 (citing inter alia, Kraft, 668 So.2d at 684; Valliappan, 917 So.2d at 260). ¶22 Kraft litigation. also involved 668 So.2d at 681. a loan to finance on-going Kraft is more on-point because, like the Zeller loan, the $100,000 loan principal was guaranteed and subject to interest payments and only the recovery of a percentage of any proceeds from the lawsuit was contingent upon 11 the outcome of the lawsuit. Id. After a partial settlement, the lender was repaid $85,000 of principal. Id. The borrower stopped making interest payments and refused to distribute any other funds after he had settled the lawsuit million dollars, claiming the loan was usurious. for over five Id. at 681-82. The court held the loan was not usurious because the additional payment depended upon a contingency. Id. at 684 (citing Bailey v. Harrington, 462 So.2d 861 (Fla. Dist. Ct. App. 1985); Schwab v. Quitoni, 362 So.2d 297 (Fla. Dist. Ct. App. 1978)). The court the concluded the agreement was not usurious because lender may not have collected anything beyond the loan principal if the lawsuit had been unsuccessful. rendered the agreement non-usurious. ¶23 Id. Such a contingency Id. Given this case law, we conclude that Atkins could not establish that he would have prevailed in the Zeller lawsuit on summary judgment based on any usury defense. Thus, the Zeller court properly set the matter for a jury trial. Atkins could not predict the outcome of a jury trial to the degree necessary to prove proximate cause and damages. Therefore, causation and damages in the malpractice action were purely speculative. ¶24 However, we conclude the trial court erred when it dismissed Atkins allegation that he would not have settled the Zeller lawsuit if Defendants had exercised proper care and skill in representing him. To survive a motion to dismiss, 12 Atkins reduced Atkins need but only for alleges allege that Defendants that his liability negligent Defendants would legal advised him have advice. his been Here, best case scenario was a return of the interest paid on the Participation Agreement, and that even if he prevailed at trial, he could not recover his attorneys fees. ¶25 If in fact Defendants provided such advice, a triable issue exists as to whether it was correct. Under Florida law, the remedy for civil usury, which involves a loan of $500,000 or less and an interest rate of greater than 18% but less than 25%, is an award of 687.04(remedy); defined). double Fla. the interest Stat. § paid. Fla. Stat. 687.03(1)(2012)(civil § usury When a debt has an interest rate of greater than 25%, it is criminally usurious, and the remedy is cancellation of the debt and a return of the amounts paid by the borrower to the lender. Fla. Stat. § 687.071; Velletri v. Dixon, 44 So.3d 187, 189 (Fla. Dist. Ct. App. 2010). In addition, pursuant to Fla. Stat. § 687.147, a borrower who is injured by a criminally usurious loan shall be entitled to an award of reasonable attorneys fees. ¶26 Thus, under Florida usury law, Atkins alleges that contrary to Defendants advice, his best case scenario was not a recovery of the interest he paid to Zeller ($35,750) with no basis for recovery of his attorneys fees. 13 Rather, the best case scenario included a potential recovery of the full amount he paid Zeller under the Participation Agreement ($220,000), as well as recovery of all or a portion of his attorneys fees ($100,000-$150,000). competent, relevant accurate Florida Atkins legal law, he alleges that advice from would not had he Defendants have received about agreed to the the settlement, e.g., that ultimately lead to the $650,000 judgment being entered against him. ¶27 We conclude that Atkins complaint sufficiently stated a claim for legal malpractice regarding the settlement, and the judgment dismissing Atkins complaint on this ground should be reversed. Whether Defendants provided Atkins with negligent legal advice regarding his possible remedies under Florida law is a question of fact that cannot be resolved in the context of a motion to dismiss. ¶28 Finally, Defendants assert that we should affirm the dismissal of Atkins legal malpractice claim because he failed to certify whether he needed expert testimony standard of care as required by Arizona law. 2602(A). to prove the A.R.S. § 12- However, before dismissal is appropriate under this statute, a plaintiff must be provided the opportunity to cure the expert deficiency. See A.R.S. § 12-2602(E)(when trial court determines affidavit is required, it must set a date and terms for compliance ); see also Warner v. Southwest Desert Images, 14 LLC, 218 Ariz. 121, 129, ¶ 19, 180 P.3d 986, 994 (App. 2008) (finding trial court abused its discretion in dismissing plaintiff s claims based on plaintiff s failure to submit timely expert affidavit to prove licensed professional s standard of care without giving plaintiff opportunity to cure). B. Breach of Fiduciary Duty ¶29 duty. Atkins also alleged a claim for breach of fiduciary Under the majority view, the essential elements of legal malpractice based on breach of fiduciary duty include the following: (1) an attorney-client relationship; (2) breach of the attorney's fiduciary duty to the client; (3) causation, both actual and proximate; and (4) damages suffered by the client. Cecala v. Newman, 532 F. Supp. 2d 1118, 1135 (D. Ariz. 2007) (citations omitted). ¶30 We affirm the trial court s dismissal of Atkins breach of fiduciary duty claim to the extent it is based on Defendants failure to obtain a dismissal of the Zeller lawsuit. As noted above, triable issues of fact exist on the issue of causation that prevented Defendants from obtaining a dismissal by motion. ¶31 See supra, pgs. 10-11. However, with respect to Atkins claim regarding the settlement agreement in the Zeller case, Atkins complaint sufficiently alleges all of the requisite elements for a breach 15 of fiduciary duty claim.2 The complaint alleges that Defendants, in their capacity as legal counsel for Atkins, charged Atkins over $146,000 for negligent legal advice prior to entering the settlement agreement which caused Atkins to suffer financial loss and damages. Thus, in regards to Defendants advice pertaining to the Zeller settlement agreement, we conclude the trial court erred in entering its judgment dismissing Atkins claim for breach of fiduciary duty. C. Fraud ¶32 Defendants contend that Atkins complaint fails to meet the heightened pleading requirements for fraud because the complaint concludes that such representations were false without detail or explanation and fails to identify the who, what, where, statements. when, and how of the alleged fraudulent In response, Atkins argues his complaint satisfied the heightened pleading requirements set forth in Rule 9(b) for fraud. ¶33 Rule 9(b) requires that all averments of fraud shall be stated with particularity. To state a claim for fraud the complaint must allege that the defendant made a false, material representation that he knew was false or was ignorant of its truth, with the intention that the hearer of the representation 2 Atkins also re-alleged ¶¶ 1-XCII in support of his breach of fiduciary duty claim. 16 act on it in a manner reasonably contemplated, that the hearer was ignorant of the representation s falsity, rightfully relied on the truth of the representation, and sustained consequent and proximate damage. Haisch v. Allstate Ins. Co., 197 Ariz. 606, 610, ¶ 14, 5 P.3d 940, 944 (App. 2000). The purpose of the particularity requirement in Rule 9(b) is to eliminate surprise and allow for full and meaningful discovery prior to trial. Spudnuts, Inc v. Lane, 131 Ariz. 424, 426, 641 P.2d 912, 914 (App. 1982). ¶34 Once again, with respect to Atkins claim that Defendants failed to obtain a dismissal of the case by a motion to dismiss and/or a motion for summary judgment, we affirm the trial court s judgment dismissing this claim. usury law, Atkins complaint allegations to prove causation. ¶35 to lacks Based on Florida sufficient, well-plead See supra, pgs. 10-11. However, with respect to Defendants advice pertaining the Zeller settlement agreement, alleged a cognizable claim. we conclude Atkins has In his claim for fraud, Atkins listed documents and motions, as well as several conversations and meetings, where Defendants purportedly made false representations to Atkins, the Zeller Court and the Mediator about the Participation Agreement and the relevant Florida usury law. The complaint also contains several specific allegations concerning the purported misrepresentations 17 Defendants made about Florida law. Read as a whole, these allegations sufficiently placed Defendants on notice as to the nature and scope of Atkins dismissing fraud Atkins claim. claim for Therefore, fraud based the on judgment the Zeller settlement agreement is reversed. D. Punitive Damages ¶36 With respect to Atkins allegation concerning the Zeller settlement agreement, Atkins has alleged sufficient facts to support his claims for legal malpractice, breach of fiduciary duty, and fraud, Atkins pled sufficient facts to support his claim for punitive damages. Punitive damages are only appropriate in the most egregious of cases, where [a plaintiff proves by clear and convincing evidence that the defendant engaged in] reprehensible conduct and acted with an evil mind. Warner v. Southwest Desert Images, LLC, 218 Ariz. 121, 130, ¶ 24, 180 P.3d 986, 995 (App. 2008). Here, if Atkins prevails on his claim against Defendants, he may be able to prove sufficient facts establishing Defendants acted with an evil mind. result, we reverse the judgment damages claim. 18 dismissing Atkins As a punitive II. MOTION FOR RULE 11 SANCTIONS ¶37 Atkins sought sanctions under Rule 11(a)3 alleging Defendants motion to dismiss was a deliberate effort to mislead the court, harass Atkins, and unjustly deny relief to Atkins. The trial court denied the motion without comment. On appeal, Atkins Defendants argues sanctions were warranted because misstated Florida law to the trial court. ¶38 An appellate court reviews de novo a decision to deny a motion for sanctions. 199 Ariz. 547, 555, City of Casa Grande v. Ariz. Water Co., ¶ 27, 20 P.3d 590, 598 (App. 2001). Sanctions are appropriate when an attorney files a pleading with no reasonable basis or for the purpose of harassment, coercion, extortion, or delay. Boone v. Superior Court, 145 Ariz. 235, 241-42, 700 P.2d 1335, 1341-42 (1985). standard of reasonableness in We apply an objective considering such conduct. Standage v. Jaburg & Wilk, P.C., 177 Ariz. 221, 230, 866 P.2d 889, 898 (App. 1993). 3 Pursuant to Rule 11(a), an attorneys signature on a pleading certifies: that to the best of the signer s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. 19 ¶39 We conclude that sanctions against Defendants were not warranted. Defendants had a reasonable basis for filing their motion, and there is no evidence showing Defendants filed the motion with the intent to harass, coerce, extort, or delay. We affirm the denial of Atkins motion for sanctions. III. MOTION FOR CHANGE OF JUDGE ¶40 While a party may only seek appellate review for the denial of a peremptory notice of change of judge by special action, challenges for cause may be reviewed on appeal. Taliaferro v. Taliaferro, 186 Ariz. 221, 223, 921 P.2d 21, 23 (1996). An appellate court reviews a trial court s denial of a motion for change of judge for an abuse of discretion. Anderson v. Contes, 212 Ariz. 122, 228, 128 P.3d 239, 241 (App. 2006). Moreover, a presumption exists that a trial judge is free of bias and prejudice. State v. Ramsey, 211 Ariz. 529, 541, ¶ 38, 124 P.3d 756, 768 (App. 2006). ¶41 it Here, Atkins argues the trial court was biased because granted Defendants motion to motion to amend his complaint. the rulings erroneous. of the trial dismiss and denied Atkins Atkins challenge is based on court, which Atkins believes were However, to show bias Atkins must point to facts other than the trial judge s decisions in the case, and adverse rulings do not demonstrate bias or prejudice. 115 Ariz. 299, 303, 564 P.2d 20 1266, 1270 Smith v. Smith, (App. 1977). Accordingly, we conclude the trial court did not abuse its discretion in denying Atkins motion for change of judge. COSTS AND FEES ON APPEAL ¶42 cites Atkins requests an award of his costs on appeal. no authority or facts in Accordingly, we deny his request. support of this He request. See Ezell v. Quon, 224 Ariz. 532, 539, ¶ 31, 233 P.3d 645, 652 (App. 2010)(holding that a request for attorneys fees on appeal must include the legal basis for the request). ¶43 Defendants request an award of attorneys fees pursuant to Arizona Rule of Civil Appellate Procedure 25 as a sanction for this appeal on the grounds that it is frivolous. Because we find merit in Atkins appeal, we deny Defendants request. 21 CONCLUSION ¶44 We reverse the dismissal of Atkins claims against Defendants to the extent they are based on the alleged negligent advice Defendants provided to Atkins regarding settlement of the Zeller lawsuit. We affirm the dismissal of Atkins claims against Defendants to the extent they are based on Defendants failure to obtain a dismissal of the Zeller lawsuit pursuant to a motion to dismiss or a motion for summary judgment. We also affirm the denial of Atkins motion for sanctions and motion for change of judge. Finally, we deny both parties request for an award of attorneys fees on appeal. /S/_____________________________ ANDREW W. GOULD, Judge CONCURRING: /S/__________________________ MICHAEL J. BROWN, Presiding Judge /S/__________________________ DONN KESSLER, Judge 22

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