A recent decision in Division One of the Court of Appeals held plaintiff must prove she would have prevailed in the underlying claim as an essential element of a legal malpractice claim.[i] In Bellemare v. Lemon Law Group Partners, the Court of Appeals set aside the verdict in favor of plaintiff Carol Bellemare and held a plaintiff must prove the case within the case. In other words, she must be able to prove, but for the attorney’s negligence, she would have been successful in the underlying case. To meet this burden in the legal malpractice case, plaintiff must present facts sufficient to prove all the elements of the underlying case.
In Bellemare, plaintiff retained Lemon Law Group Partners (“LLGP”) in connection with problems she was having with a vehicle she purchased new. Plaintiff and LLGP entered into a contract for legal services. In its engagement agreement, LLGP promised generally to “diligently advocate” for plaintiff’s interests. LLGP made no specific promises in the engagement agreement regarding making filings or providing advice on specific aspects of her claim.
LLGP sent a letter to the manufacturer, who then made a settlement offer. Plaintiff rejected the offer. LLGP prepared an arbitration packet and sent it to plaintiff to sign, which she promptly signed and returned to LLGP. However, LLGP never filed the arbitration paperwork. Plaintiff became dissatisfied with the representation, and LLGP sent a letter confirming termination of the attorney-client relationship. In this letter, LLGP inadvertently misinformed plaintiff regarding the proper statute of limitations for a lemon law case.
Plaintiff sued LLGP for legal malpractice alleging breach of contract and negligence. The matter proceeded to a jury trial. At the close of plaintiff’s case in chief, LLGP moved for judgment as a matter of law. The trial court denied the motion. The jury ultimately returned a verdict in favor of plaintiff, awarding damages in the amount of $80,000 plus legal fees. The jury also assigned 10% fault against Bellemare. The court entered judgment on the verdict and denied LLGP’s renewed motion for judgment as a matter of law and alternative motion for new trial. LLGP appealed.
As a preliminary matter, the Court of Appeals noted even where there is a written engagement agreement between an attorney and a client, a party cannot bring a legal malpractice case based on a breach of contract claim where the contract is generally for professional services. Rather, the contract can only be brought as a breach of contract case where the contract provides for a specific promise. Then, the party may only bring a breach of contract claim for nonperformance of that specific promise. Here, the Court of Appeals noted the engagement agreement made no specific promises and only included a general promise to “advocate diligently.” This distinction is important, as in Arizona, attorneys’ fees are only recoverable on claims arising from a breach of contract, but not from claims arising from legal malpractice.[ii]
Turning next to the negligence claim, the Court noted, as with all negligence claims, a plaintiff in a legal malpractice claim has the burden of proving all elements of negligence.[iii] Specifically, plaintiff must prove that but for the attorney’s negligence, she would have been successful in the underlying matter. Before denying LLGP’s original motion for judgment as a matter of law, in which LLGP argued plaintiff failed to prove she would have prevailed on the lemon law claim, the trial court remarked, “Okay. But we’re not trying the Lemon Law case.”[iv] Later, the Court denied LLGP’s request for a lemon law jury instruction on the theory “it would confuse the jury, because this is not a Lemon Law case.”[v]
The Court of Appeals held the trial court’s refusal to instruct the jury on the elements of the lemon law deprived the attorney of a fair trial. Even though the trial court instructed the jury generally on the law of negligence, it did not provide the jury with guidance on plaintiff’s burden of proving causation—she would have prevailed on the underlying lemon law case but for the attorney’s negligence. The Court of Appeals vacated the judgment and remanded the case for a new trial.
The Bellemare decision reiterates the importance of defending the attorney on two claims—the underlying claim and the legal malpractice claim. This may require additional discovery and retention of expert witnesses to rebut plaintiff’s claim she would have prevailed on the underlying claim and the amount of damages a jury would have awarded.
[i] Bellemare v. Lemon Law Group Partners, PLC, No 1 CA-CV 19-0810.
[ii] Envtl. Liners, Inc. v. Ryley, Carlock & Applewhite, 187 Ariz. 379, 930 P.2d 456 (Ct. App. 1996)(“ When it is gravamen of legal malpractice claim that lawyer has violated implied duty to provide reasonably competent and ethical services, claim sounds in tort, not in contract, and does not support award of attorney fees under statute. A.R.S. § 12–341.01.”)
[iii] Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 12 (2004).
[iv] Bellemare v. Lemon Law Grp., No. 1 CA-CV 19-0810, 2021 WL 343396, at *3.
[v] Id. at *3.