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

MEMORANDUM DECISION

Not for Publication Rule 28, Rules of Civil Appellate Procedure

HOWARD, Chief Judge.

¶1 In this legal malpractice action, appellant Emilio Mendoza appeals from the trial court's grant of summary judgment against him, and its order denying his motion to vacate, in favor of appellees Bruce Burke and his professional corporation. He claims he raised genuine issues of material fact with his deposition testimony and the affidavit of his expert that should have precluded summary judgment. Because the 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). In May 2005, Mendoza was involved in a car collision. He retained Bruce Burke and Robert Hoyt to represent him in a personal injury case against the truck driver who hit him. During that representation, Mendoza inquired about pursuing a medical malpractice claim against one of the doctors who treated him following the collision. After looking briefly into the matter, but without consulting a medical expert, Burke and Hoyt advised Mendoza that pursuing a medical malpractice claim would not be advisable. They did not act on the matter further. Before the case reached trial, Mendoza, represented by Burke, attended a mediation conference, which resulted in a $400,000 settlement agreement in December 2007. This action for legal malpractice followed.

¶3 Burke moved for summary judgment below, arguing that the material facts were undisputed and that Mendoza had failed to establish a prima facie claim of negligence. The trial court granted the motion in all respects, finding that absent a medical expert to testify on his behalf, Mendoza failed to establish a claim of legal malpractice for failure to pursue a medical malpractice claim. The court also found no viable claim for legal malpractice based on procuring an inadequate settlement because "[t]he only persuasive evidence . . . shows [Mendoza] entered the settlement agreement freely and consensually." Mendoza appeals.

Discussion

¶4 On appeal, Mendoza claims the trial court erred in entering summary judgment because genuine issues of material fact exist about whether Burke was negligent in his representation during the mediation and whether Burke negligently failed to pursue a medical malpractice claim. Summary judgment is proper when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c)(1), Ariz. Sup. Ct. Order No. R-11-0034 (Aug. 30, 2012).1 Summary judgment also is proper "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1009 (1990). We review de novo whether there are any genuine issues of material fact and whether the trial court applied the law properly. Brookover v. Roberts Enters., Inc., 215 Ariz. 52, ¶ 8, 156 P.3d 1157, 1160 (App. 2007).

Negligent Settlement

¶5 Mendoza first argues genuine issues of material fact exist about whether Burke committed legal malpractice by failing to procure an adequate settlement on his personal injury claim. To establish a claim for legal malpractice, the plaintiff must establish (1) that an attorney-client relationship existed, (2) the attorney breached his duty arising out of that relationship, (3) the breach of that duty was the proximate cause of a resulting injury, and (4) the damages arising from the injury. Phillips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300, 303 (App. 1986). The parties do not dispute Burke had a duty but instead dispute whether that duty was performed. In this case, Mendoza must show that Burke breached the applicable standard of care, and that, but for that breach, Mendoza would have obtained a more favorable settlement in the underlying action. See Grubb v. Do It Best Corp., 230 Ariz. 1, ¶¶ 15-16, 279 P.3d 626, 630 (App. 2012) (duty requires defendant to conform to standard of care); Hyatt Regency Phx. Hotel Co. v. Winston & Strawn, 184 Ariz. 120, 131, 907 P.2d 506, 517 (App. 1995) (plaintiff must show but for attorney negligence, prosecution or defense of action would have been successful); Viner v. Sweet, 70 P.3d 1046, 1052 (Cal. 2003) (plaintiff must show but for attorney negligence he would have obtained more favorable settlement). Expert testimony usually is necessary to show legal malpractice. Baird v. Pace, 156 Ariz. 418, 420, 752 P.2d 507, 509 (App. 1987).

¶6 To show breach, Mendoza points to his own testimony regarding the settlement negotiations and an expert affidavit from an Illinois attorney.2 That expert opines that Burke and Hoyt, who allegedly had evaluated the case between $2,250,000 and $2,750,000, committed malpractice "by going forward" with a $400,000 settlement for Mendoza from a non-binding mediation that their client told them he did not want to accept. But Mendoza has produced no evidence that Burke and Hoyt had valued his case between $2,250,000 and $2,750,000. Before the mediation, Burke and Hoyt consulted a third attorney for an outside valuation opinion. According to Burke's notes from that consultation, the outside attorney estimated the case to be likely worth around $500,000 with $750,000 as a limit on the high end and $50,000 to $100,000 as the possible low end of the range. His notes also indicate that "over $1 million, that's not a settlement that's a win."

¶7 Although Burke and Hoyt did make an opening demand at the mediation of $2,500,000, that was an opening position at mediation based on the only settlement authority they had at the time, not an evaluation of the case's actual value. And Mendoza admitted his attorneys told him he was not going to get $2,000,000. All evidence in the record suggests Burke had valued the case in an amount consistent with the settlement obtained, or from Mendoza's own account, no valuation at all. Furthermore, Mendoza conceded he went forward with the settlement because he felt coerced by the mediator and his wife, not his lawyers, and because he wanted a break to go to lunch.

¶8 The expert also opined that Burke and Hoyt had deviated from the standard of care by misrepresenting to Mendoza that he had to accept the settlement from the non-binding mediation and that it was too late to go to trial. But Mendoza admitted that he signed the preliminary settlement agreement at the mediation. And the settlement agreement itself reflects the date of the mediation. Mendoza maintained that, after he had signed the preliminary agreement at the mediation, he attempted to reject the $400,000 settlement, but Burke and Hoyt informed him he was bound by the signed preliminary agreement. That agreement bound Mendoza after he signed it at the mediation. See Ariz. R. Civ. P. 80(d); Canyon Contracting Co. v. Tohono O'Odham Housing Authority, 172 Ariz. 389, 391, 837 P.2d 750, 752 (App. 1992). Therefore, again, the facts adduced do not support the expert's opinion that Burke and Hoyt engaged in misrepresentation when they told Mendoza he had to abide by the agreement.

¶9 Moreover, Mendoza's deposition testimony is so plainly incredible that it cannot create a genuine issue of material fact because no reasonable jury could believe it. See Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008. Mendoza testified at his deposition that Burke and Hoyt essentially did nothing at the mediation and remained completely silent except to show him a piece of paper with the other side's current offer, which he said eventually reached $2,000,000. He claimed his attorneys either declined or ignored that offer and remained silent while the offer incrementally declined to $400,000, and he was then "coerced into signing" a settlement agreement. This coercion amounted to the mediator saying that $400,000 was the final offer and that if Mendoza signed the agreement everyone could go to lunch. Mendoza also testified he knew that if he did not settle, the case would go to trial.

¶10 Mendoza continued to change his account of Burke and Hoyt's conduct at the mediation, saying alternatively that the attorneys said nothing in response to the offers from the other side and remained completely silent, or that they were actively rejecting offers until they informed Mendoza that $400,000 was the last offer. He conceded Burke and Hoyt never told him that his case was worth a certain amount or that he should expect a certain amount from trial or as a settlement. Moreover, he admitted the mediator "always came back with more money," an admission at odds with his account of offers that increased to $2,000,000 and then decreased all the way to $400,000.

¶11 Nor does the record support Mendoza's account of the mediation by explaining what motive Burke and Hoyt could have had in arguing against their own financial interest. Mendoza's deposition testimony attempts to explain that Burke and Hoyt somehow simultaneously remained silent the entire mediation except to show him the current offers, which Mendoza affirmatively rejected himself, but also rejected the offers themselves until they arrived at a $400,000 offer from the defendants which they accepted—according to Mendoza either affirmatively or silently, by telling Mendoza it was the last offer.

¶12 In short, Mendoza's own testimony is of so little probative value that reasonable people could not agree it supports his claims. See Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008. And because his own testimony undermines the expert affidavit he relies on, that evidence is equally ineffective in demonstrating Burke breached his duty of care to Mendoza in his representation at the mediation. See Phillips, 152 Ariz. at 418, 733 P.2d at 303. Because Mendoza failed to demonstrate a genuine issue of material fact about whether Burke breached his duty to Mendoza, the trial court did not err in granting summary judgment on this claim.

Failing to Pursue Medical Malpractice Claim

¶13 Mendoza next claims the trial court erred in granting summary judgment, asserting he had produced disputed facts about Burke's failure to investigate a medical malpractice claim also and because the court based its decision on the lack of a medical expert. But a medical expert is not required in all cases. To show legal malpractice for this claim, as above, Mendoza must show (1) a duty, (2) a breach of that duty resulting in legal injury, (3) that the breach was the proximate cause of the injury, and (4) damages. See Phillips, 152 Ariz. at 418, 733 P.2d at 303. Showing causation requires the plaintiff to prove that, but for the lawyer's negligence, he would have been successful in the underlying action, a showing commonly referred to as the "`case within the case.'" Id., quoting Frey v. Stoneman, 150 Ariz. 106, 111, 722 P.2d 274, 279 (1986). Therefore, to prevail on his claim, Mendoza would be required to demonstrate not only that Burke breached the standard of care, and that if he had not, Mendoza would have been successful in pursuing a medical malpractice claim.

¶14 Medical malpractice is established by showing that a breach of the applicable standard of care occurred and that the breach caused the plaintiff's injuries. See Seisinger v. Siebel, 220 Ariz. 85, ¶ 32, 203 P.3d 483, 492 (2009); see also A.R.S. § 12-563. "Ordinarily, expert medical testimony is required to establish proximate cause and make out a prima facie case of medical malpractice unless a causal relationship is readily apparent to the trier of fact." Gregg v. Nat'l Med. Health Care Servs., Inc., 145 Ariz. 51, 54, 699 P.2d 925, 928 (App. 1985); see also Peacock v. Samaritan Health Serv., 159 Ariz. 123, 126, 765 P.2d 525, 528 (App. 1988) (exception to general rule requiring expert medical testimony when "`negligence is so grossly apparent that a layman would have no difficulty in recognizing it'"), quoting Riedisser v. Nelson, 111 Ariz. 542, 544, 534 P.2d 1052, 1054 (1975).

¶15 Rule 26.1(a)(6), Ariz. R. Civ. P., provides that the parties must timely disclose the identity of each expert witness as well as "the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, [and] the qualifications of the witness." Additionally, the plaintiff must timely disclose a preliminary affidavit from a medical expert that contains, inter alia, the expert's opinion as to the "manner in which the health care professional's acts, errors or omissions caused or contributed to the damages or other relief sought by the claimant." A.R.S. § 12-2603(B)(4).

¶16 Under some circumstances, a trial court may properly grant summary judgment and dismiss an action when the plaintiff fails to disclose the necessary expert opinion. See Gorney v. Meaney, 214 Ariz. 226, ¶ 20, 150 P.3d 799, 805 (App. 2007) (summary judgment proper when plaintiff fails to provide expert opinion affidavit necessary to show prima facie case of malpractice); Morrell v. St. Luke's Med. Ctr., 27 Ariz.App. 486, 489, 556 P.2d 334, 337 (1976) (trial court properly grants summary judgment when plaintiff fails to produce competent medical evidence to substantiate malpractice claim).

¶17 Mendoza failed to identify an expert medical witness to support his claim that he would have been successful with his medical malpractice claim. He argues that medical experts are not necessary in every case, but fails to describe his injuries or what is so "readily apparent" about the causal relationship between his injuries and the medical care he received that an exception to the general rule is warranted. See Gregg, 145 Ariz. at 54, 699 P.2d at 928. No medical records were introduced that the trial court could have considered to discern a readily apparent causal connection between his medical care and injuries. Mendoza could not describe his surgeries with any level of complexity, and when asked what specifically went wrong with the surgery that would have formed the basis of the malpractice claim, Mendoza responded "I'm not a doctor." Accordingly, Mendoza failed to establish he had a prima facie claim of medical malpractice, and so failed to establish a related, prima facie claim of legal malpractice against Burke; the trial court did not err in granting summary judgment in Burke's favor.

Conclusion

¶18 For the foregoing reasons, we affirm the trial court's grant of summary judgment.

PETER J. ECKERSTROM, Presiding Judge and J. WILLIAM BRAMMER, JR., Judge,* concurring.