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Ballard v. Deconcini McDonald Yetwin & Lacy, P.C.

Court of Appeals of Arizona, Second Division, Department A

October 9, 2013

GLEN BALLARD and MELODY BALLARD, husband and wife; BRUCE BESSETTE and MARGARET BESSETTE, husband and wife; TIMOTHY BROWN and ANNETTE BROWN, husband and wife; TWO-TEN, LLC, an Arizona limited liability company; ANGEL GOMEZ and DIANA GOMEZ, husband and wife; GLEN LYON, a single person; MICHAEL MAGRAS and WENDY MAGRAS, husband and wife; JOHN MIKELS and JUDY MIKELS, husband and wife; WOLFRAM SCHUH and ORTRUD SCHUH, husband and wife; KENNETH SPAULDING and PATRICIA SPAULDING, husband and wife; CARL TAYLOR and MADONNA TAYLOR, husband and wife; LAWRENCE J. JOYCE, a single person; ZEIGH OWENSBY and CARLENE DANIS, husband and wife; CHARLES P. DELCOUR and JANET O. DELCOUR, husband and wife; and FRANK WAGNER and LISA WAGNER, husband and wife, Plaintiffs/Appellants,

Not for Publication Rule 28, Rules of Civil Appellate Procedure

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. C20097601 Honorable Charles V. Harrington, Judge.

Christian Dichter & Sluga, P.C. By Stephen M. Dichter and Jeffrey O. Hutchins Phoenix Attorneys for Plaintiffs/Appellants.

Jones, Skelton & Hochuli, P.L.C. By J. Gary Linder and Eileen Dennis GilBride Phoenix Attorneys for Defendant/Appellee.


JOSEPH W. HOWARD, Chief Judge.

¶1 Appellants, current and former property owners in the Ruby Star Airpark (collectively "the Ballards"), appeal from the trial court's grant of summary judgment in favor of DeConcini McDonald Yetwin & Lacy, P.C. ("DeConcini") on their legal malpractice claims. On appeal, the Ballards argue the court erred in granting summary judgment against them because DeConcini owed them a duty of care as non-clients and made negligent misrepresentations. Because the trial court did not err, we affirm.

Factual and Procedural Background

¶2"We view the facts and the inferences to be drawn from those facts in the light most favorable to the party against whom [summary] judgment was entered." Mousa v. Saba, 222 Ariz. 581, 15, 218 P.3d 1038, 1042 (App. 2009). Dennis Nolen purchased the property now known as Ruby Star Airpark ("Ruby Star") in November 1996 with the intention of developing the land into forty-acre parcels. He retained DeConcini to assist him in creating a development company and property owners' association for Ruby Star.

¶3 In early 2000, Nolen applied for, and received, an unsubdivided lands public report. This report authorizes the sale or lease of "unsubdivided lands, " which, pursuant to A.R.S. §§ 32-2101(60) and 32-2195.03(A), requires the parcels to be between thirty-six and 160 acres. Around that same time, Nolen asked DeConcini to "dress up" the Ruby Star Conditions, Covenants and Restrictions (CC&Rs) that he and his wife had written and recorded. Nolen's version did not refer to Ruby Star as a "subdivision." DeConcini modified the CC&Rs and added the term "subdivision." DeConcini informed Nolen that its version was "only a draft" and "not yet suitable for recording." It also advised Nolen he could not sell any parcel that was less than forty acres, or participate in any plan to divide the lots into less than forty acres. Shortly thereafter, Nolen revoked his version of the CC&Rs and recorded DeConcini's CC&Rs.

¶4Beginning in 2003, Nolen began illegally subdividing Ruby Star into parcels smaller than thirty-six acres through a series of straw-man transactions. These straw buyers eventually sold individual lots to the Ballards under the guise of a legal subdivision. Nolen did not tell DeConcini he was doing so. In October 2006, Pima County Development Services informed the Ballards that Ruby Star was not a legal subdivision.

¶5The Ballards sued Nolen and several others involved in the transactions in October 2009. In July 2010, the Ballards added DeConcini as a defendant and alleged legal malpractice and negligent misrepresentation. DeConcini twice moved for summary judgment, claiming that they owed no duty to the Ballards as non-clients and, additionally, that the Ballards' claims were barred by the statute of limitations. The trial court granted both motions. We have jurisdiction over the Ballards' appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

Standard of Review

¶6On appeal from summary judgment, we determine de novo whether the trial court correctly applied the law and whether there are any genuine disputes as to any material fact. See Dayka & Hackett, LLC v. Del Monte Fresh Produce N.A., Inc., 228 Ariz. 533, ¶ 6, 269 P.3d 709, 711-12 (App. 2012). The trial court should grant summary judgment when "the moving party shows that 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). Where no evidence exists to support an essential ...

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