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Rader v. Greenberg Traurig, LLP

Court of Appeals of Arizona, First Division

June 23, 2015

ROBERT and KATALIN RADER, as individuals and as trustees for the Rader Family Trust dated September 6, 2002; DELBERT and HEATHER LEWIS, as individuals and as trustees for the Delbert R. Lewis Jr. Family Trust U/T/A dated December 31, 1997; JANE BARTELME, as an individual; KAREN E. LAMB, as an individual and a trustee for the Karen E. Lamb Living Trust dated February 26,2007; MARK LOBERG, as an individual; DAVID STANTON, as an individual and a trustee for the David Brian Stanton Revocable Trust dated August 25, 2004; LOUIS and THELMA VAZQUEZ, as individuals; WALTER J. CLARKE, as an individual; DONALD FRUCHTMAN, as an individual; TOM and NANCY LUTZ, as individuals; SUSAN THARP and MICHAEL NORMAN, as individuals and as trustees for the Norman Tharp Family Trust #3 dated July 19, 2002; JAN STERLING, as an individual and a trustee for the Jan M. Sterling Living Trust dated January 4, 1995; DAVID and HANNA FURST, as individuals and as trustees for the DHF Corporation Retirement Trust and the Furst Family Trust, Plaintiffs/Appellants,
v.
GREENBERG TRAURIG, LLP, a New York limited liability partnership, Defendant/Appellee

Appeal from the Superior Court in Maricopa County. No. CV2012-013308. The Honorable Arthur T. Anderson, Judge.

For Plaintiffs/Appellants: Brett M. Weaver, Frank J. Johnson, Johnson & Weaver, LLP, San Diego.

For Plaintiffs/Appellants: Jonathan A. Dessaules, Dessaules Law Group, Phoenix.

For Defendant/Appellee: Kevin M. Downey, Kenneth C. Smurzynski, Colette T. Connor, Williams & Connolly LLP, Washington DC.

For Defendant/Appellee: Martin R. Galbut, Michaile J. Berg, Galbut & Galbut, P.C., Phoenix.

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in which Judge Patricia A. Orozco and Judge Michael J. Brown joined.

OPINION

Page 466

THUMMA, Judge:

[¶1] Appellants challenge the superior court's dismissal of their claims against Greenberg Traurig, LLP as time-barred, asking this court to adopt cross-jurisdictional tolling. Because Appellants have not shown the superior court erred in granting Appellees' motion to dismiss, the dismissal is affirmed.

FACTS[1] AND PROCEDURAL HISTORY

[¶2] Mortgages Ltd., a now-bankrupt Arizona real estate investment company, solicited investors using private offering memoranda. In 2006, Mortgages Ltd. retained the law firm Greenberg Traurig to review and draft offering memoranda. Appellants claim they relied on these offering memoranda to invest in securities offered by Mortgages Ltd. between March 2006 and June 2008.

[¶3] Scott M. Coles managed Mortgages Ltd. from 1997 until his suicide on June 2, 2008. Appellants allege that, " [b]y 2005, Mortgages Ltd. stood at the brink of bankruptcy" and, after issuance of an audit report for 2007, " Mortgages Ltd. was forced into bankruptcy" on June 20, 2008. On April 30, 2009, Appellants filed an action against the estate of Scott Coles in Maricopa County Superior Court. In December 2009, most Appellants entered into a written agreement with Greenberg Traurig tolling the application of " any statutes of limitations and/or any statutes of repose" against Greenberg Traurig from December 15, 2009 to December 15, 2010. This tolling agreement was not extended.

[¶4] On May 11, 2010, Mortgages Ltd. investors filed a putative class action against Greenberg Traurig and others in the United States District Court for the District of Arizona, captioned Facciola v. Greenberg Traurig LLP, No. 10-CV-1025 (the Facciola Action). In March 2012, the putative class in the Facciola Action was certified and Appellants were class members. After discovery and motion practice, the court in the Facciola Action preliminarily approved a settlement reached with Greenberg Traurig. Appellants later filed a notice of intent to opt out of that settlement. On August 31, 2012, the same day the court in the Facciola Action " confirmed that [Appellants] had properly excluded themselves from" the class and the settlement with Greenberg Traurig, Appellants filed this action.

[¶5] Appellants' complaint in this action asserted five claims against Greenberg Traurig: (1) primary statutory liability under Arizona Revised Statutes (A.R.S.) section 44-2003(A) (2015); [2] (2) aiding and abetting " common law securities fraud; " (3) aiding and abetting breach of fiduciary duty; (4) intentional misrepresentation and (5) negligent misrepresentation and nondisclosure.

Page 467

Greenberg Traurig moved to dismiss, arguing Appellants' claims: (1) generally were subject to a two-year limitations period (with the intentional misrepresentation claim subject to a three-year limitations period); (2) accrued on Mortgage Ltd.'s June 20, 2008 bankruptcy; and (3) were time-barred, given this case was not filed until August 31, 2012. Appellants argued the limitations period was " tolled during the entire time that they were members of the Facciola " Action (from May 11, 2010 until August 31, 2012), making their claims timely. After briefing and oral argument, the superior ...


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