Opinion
No. 1 CA-CV 13-0258
03-27-2014
LUIS and CRYSTAL PARRA, Plaintiffs/Appellants, v. LIPPMAN GRIFFETH & ASSOCIATES, P.C.; DAVID W. LIPPMAN, ESQ., Defendants/Appellees.
Tidmore Law Offices LLP, Phoenix By Mick Levin Counsel for Plaintiffs/Appellants Fulton Friedman & Gullace LLP, Phoenix By Cynthia L. Fulton Counsel for Defendants/Appellees
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CV2010-001886
The Honorable Douglas L. Rayes, Judge
AFFIRMED
COUNSEL
Tidmore Law Offices LLP, Phoenix
By Mick Levin
Counsel for Plaintiffs/Appellants
Fulton Friedman & Gullace LLP, Phoenix
By Cynthia L. Fulton
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined. OROZCO, Judge:
¶1 Plaintiffs/Appellants Luis and Crystal Parra appeal the trial court's summary judgment for Defendants/Appellees David Lippman and Lippman Griffeth & Associates (collectively Lippman) on the Parras' claims for negligence and abuse of process. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On July 30, 2007, Luis Parra (Parra) was involved in a motor vehicle collision with Christopher Dormani (Dormani). At the time of the collision, Dormani was insured by Progressive Advanced Insurance (Progressive), and Parra was insured by Lincoln General Insurance Company (Lincoln General), which used Legacy Insurance Services, Inc. (Legacy) as a third-party claims administrator. Both insurers claimed their respective insureds were not at fault for the accident.
¶3 Despite receiving information that Parra was insured, Progressive concluded that Parra was uninsured and hired Lippman to pursue a claim directly against Parra for the amounts Progressive paid to repair Dormani's vehicle. Progressive obtained a default judgment against Parra in the West McDowell Justice Court in the amount of $6,043.41.
¶4 More than one year after Progressive obtained the default judgment, pursuant to Arizona Revised Statutes (A.R.S.) section 28-4071.A (2013), Lippman reported that Parra had not maintained financial responsibility as required by A.R.S. § 28-4135.A (2013) to the Arizona Department of Transportation, Motor Vehicle Division (MVD) and made a formal request that the MVD suspend Parra's driver's license. The MVD notified Parra that his Arizona driver's license and vehicle registration were suspended. Parra's counsel then informed Lippman that Parra had been insured on the date of the collision and asked Lippman to contact the MVD to reinstate Parra's driver's license. Lippman did not contact the MVD for several months.
We cite to the current version of the applicable statutes when no material revisions have since occurred.
Lippman made this formal request pursuant to A.R.S. § 28-4071.A (2013) ("If a person fails to satisfy a judgment within sixty days, on written request of the judgment creditor or the judgment creditor's legal representative, the clerk of the court, or the judge of a court that has no clerk, in which the judgment is rendered shall forward a certified copy of the judgment to the director immediately after the expiration of the sixty days.").
¶5 Parra filed this action against Lippman for negligence and abuse of process. The trial court granted summary judgment for Lippman, ruling Parra's negligence claim failed as a matter of law because Lippman did not owe Parra a duty of care, and the abuse of process claim failed because no reasonable jury could find that Lippman acted with an ulterior purpose.
Parra also asserted claims against Legacy, Lincoln General, and Progressive. The trial court granted Progressive's motion to dismiss, and Parra voluntarily dismissed his claims against Legacy and Lincoln General with prejudice. Those claims are not at issue in this appeal.
¶6 Parra timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21.A.1 (2003) and -2101.A.1 (Supp. 2013).
Parra appealed the court's original judgment for Lippman, which was not a final judgment because it did not dispose of all claims against all parties and did not contain Rule 54(b) language. After we dismissed that appeal, Parra dismissed his remaining claims against Legacy and Lincoln General with prejudice and filed a timely notice of appeal from the Lippman judgment.
DISCUSSION
¶7 Parra argues the trial court erred by granting summary judgment for Lippman on both the negligence and abuse of process claims. We disagree.
¶8 A court shall grant summary judgment when the moving party shows "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); see also Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990). We view the evidence in the light most favorable to Parra, as the non-moving party. See Unique Equip. Co., Inc. v. TRW Vehicle Safety Sys., Inc., 197 Ariz. 50, 52, ¶ 5, 3 P.3d 970, 972 (App. 1999). Furthermore, we review de novo whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Id. I. Negligence
¶9 "To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages." Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). The trial court determined Parra's negligence claim failed as a matter of law because Lippman did not owe Parra a duty of care. Parra argues the Arizona Rules of Professional Conduct and A.R.S. § 13-2704 (2010) imposed a duty of care on Lippman that required him to conform to a certain standard of conduct in his dealings with Parra. "The existence of a duty is a question of law that we review de novo." Delci v. Gutierrez Trucking Co., 229 Ariz. 333, 335, ¶ 8, 275 P.3d 632, 634 (App. 2012).
¶10 A duty is "an obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm." Gipson, 214 Ariz. at 143, ¶ 10, 150 P.3d at 230 (internal quotation marks and citations omitted). A duty of care may arise from a special relationship between the parties, whether formed in contract, family relations, or conduct undertaken by the defendant. Id. at 145, ¶ 18, 150 P.3d at 232. It may also be based on categorical relationships recognized by the common law, such as landowner-invitee. Id. at ¶ 19. Public policy, as found in state statutory laws and the common law, may also be used to determine the existence of a duty. See id. at 146 n.4, ¶ 24, 150 P.3d at 233 n.4.
¶11 In this case, Parra and Lippman did not have a pre-existing relationship that would create a duty of care and none of the categorical relationships that give rise to duty of care are implicated. See id. at 145, ¶¶ 18-19, 150 P.3d at 232. Nevertheless, Parra contends that Arizona's public policy, as set forth in the Arizona Rules of Professional Conduct and A.R.S. § 13-2704, imposed a duty of care on Lippman that required him to conform to a certain standard of conduct in his dealings.
¶12 First, Parra argues that various ethical rules establish a duty that Lippman, in his capacity as an attorney, owed to him in their dealings. The relevant ethical rules are:
• Arizona Rule of the Supreme Court 42, Ethical Rules (E.R.) 3.3, which states, a lawyer "shall not knowingly . . . make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer." Ariz. R. Prof. Conduct 42, E.R. 3.3.
• E.R. 4.1, which states that a lawyer "shall not knowingly . . . make a false statement of a material fact or law to a third person" in the course of representing a client. Id. at E.R. 4.1(a).
• E.R. 4.4, which states that in representing a client, "a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden any other person . . . ." Id. at E.R. 4.4(a).
This rule also applies to a lawyer's conduct before an administrative agency. Ariz. R. Prof. Conduct 42, E.R. 3.9.
¶13 Second, Parra argues that Arizona criminal statute, A.R.S. § 13-2704, which defines the misdemeanor crime of unsworn falsification, establishes a duty in tort. A.R.S. § 13-2704 provides:
A. A person commits unsworn falsification by knowingly:A.R.S. § 13-2704.
1. Making any statement that he believes to be false, in regard to a material issue, to a public servant in connection with an application for any benefit, privilege or license.
2. Making any statement that he believes to be false in regard to a material issue to a public servant in connection with any official proceeding as defined in § 13-2801.
¶14 We have previously rejected the idea that an attorney owes a duty to an opposing party. See Lewis v. Swenson, 126 Ariz. 561, 566, 617 P.2d 69, 74 (App. 1980) (holding that any duty owed by adverse counsel with respect to the conduct of litigation is "owed to the court, and not to the adverse party."). "[M]erely compelling another to avail himself of his legal remedy by undertaking or carrying on litigation is not such conduct as constitutes a tort." Id. (internal citation omitted).
¶15 The Arizona Rules of Professional Conduct govern members of the legal profession and "provide a framework for the ethical practice of law." Arizona Rules of the Supreme Court, Ariz. R. Prof. Conduct 42, Preamble, ¶ 16 (Scope). There is no indication that by adopting these professional standards the Arizona Supreme Court intended to impose a duty of care on attorneys for the benefits of an opposing party. See id.
¶16 Further, although the existence of a statute criminalizing conduct may support the recognition of a duty, not all criminal statutes create duties in tort. Gipson, 214 Ariz. at 146, ¶ 25, 150 P.3d at 233. "A criminal statute will establish a tort duty only if the statute is designed to protect the class of persons, in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation." Id. (internal quotation marks omitted) (internal alterations omitted). The plain language of A.R.S. § 13-2704 does not indicate that it was intended to create a duty that would support a private cause of action against all persons who make an unsworn falsification. We, therefore, decline to recognize a duty of care predicated upon that statute.
¶17 The trial court correctly found that Lippman did not owe a duty to Parra and was therefore entitled to summary judgment on Parra's negligence claim. II. Abuse of Process
¶18 Parra argues the trial court erred by granting summary judgment for Lippman on Parra's abuse of process claim because there exists a question of fact regarding whether Lippman acted with an "ulterior purpose" by reporting to the MVD that Parra did not have motor vehicle insurance.
¶19 An abuse of process claim has two elements: "(1) a willful act in the use of judicial process; (2) for an ulterior purpose not proper in the regular conduct of the proceedings." Crackel v. Allstate Ins. Co., 208 Ariz. 252, 257, ¶ 11, 92 P.3d 882, 887 (App. 2004) (citation omitted). An ulterior purpose may be proven by "showing that the process has been used primarily to accomplish a purpose for which the process was not designed." Id. (internal quotation marks and citation omitted).
In the context of a claim for abuse of process, Arizona interprets the word "process" as "encompassing the entire range of procedures incident to the litigation process." Crackel, 208 Ariz. at 257, ¶ 11, 92 P.3d at 887 (internal quotation marks and citation omitted).
¶20 A motor vehicle operated on a highway in this state must be covered by, as relevant, an automobile liability insurance policy, and the vehicle operator must keep evidence of that coverage within the vehicle. A.R.S. §§ 28-4135.A.1, -4135.B (2013). If a judgment debtor (here, Parra) fails to satisfy a judgment within sixty days, Arizona statutes authorize the judgment creditor or his legal representative (here, Lippman) to notify the clerk of the court of the failure and to request the clerk to provide the MVD with a certified copy of the judgment. See id. § 28-4071.A (2013). Upon receipt, the MVD must immediately suspend the judgment debtor's driver's license and registration, unless the judgment debtor produces: (1) "an affidavit stating that at the time of the accident on which the judgment was rendered the affiant was insured"; (2) an original or certified copy of the applicable insurance policy; and (3) any other documents required by the MVD to show that the damage for which the judgment was rendered was covered by the insurance policy. Id. § 28-4072 (2013).
¶21 Parra asserts Lippman abused the MVD's process for suspension of Parra's driver's license in order to force Parra to satisfy Progressive's default judgment. In particular, he claims Lippman had previously received ample evidence that Parra was insured by Lincoln General, but did not attempt to confirm that coverage and instead asked the MVD to suspend Parra's driver's license.
Parra conceded in the trial court that no cause of action arose out of Lippman's initiation of the subrogation action in the West McDowell Justice Court.
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¶22 As an initial matter, even if Lippman did invoke the MVD suspension process in order to coerce Parra to satisfy Progressive's default judgment against him, we do not agree that this was an improper purpose. Indeed, the MVD process under A.R.S. § 28-4072 is designed to penalize individuals who do not accept financial responsibility for damages caused by their motor vehicle, and we see nothing inherently wrong with Lippman availing himself of this procedure on behalf of his client. See Crackel, 208 Ariz. at 259, ¶ 19, 92 P.3d at 889 ("[T]o demonstrate a defendant's primary motive was improper, a claimant must establish that the defendant used a court process in a fashion inconsistent with legitimate litigation goals.").
¶23 Parra suggests Lippman's actions were nonetheless improper because he knew or should have known that Parra was insured. The record shows Parra claimed at the time of the collision that he was insured by Legacy; on August 14, 2007, Progressive sent a subrogation demand to Legacy; on August 20, 2007, Legacy wrote to Dormani and denied liability for the collision; and on February 5, 2008, Legacy sent a subrogation demand to Progressive. However, none of these communications were addressed to Lippman, and there was no evidence that he received copies of the letters. Lippman denied that he had received evidence that Parra had valid insurance at the time of the collision and averred that because no insurer defended Parra in the subrogation action or otherwise attempted to resolve Progressive's claim or satisfy the judgment, he concluded that Parra did not have insurance coverage for the collision.
¶24 There is evidence that after Lippman obtained the default judgment in the subrogation action, he contacted the MVD and received information that Parra was insured by Lincoln General. According to Lippman, Progressive had previously informed him that Lincoln General would not provide any information concerning Parra's purported coverage, leading Progressive and Lippman to conclude that Lincoln General was not Parra's insurer. While Lippman may have been less than diligent in his investigation of Parra's insurance coverage, such evidence will not support an abuse of process claim. See Crackel, 208 Ariz. at 259, ¶ 19, 92 P.3d at 889.
¶25 The trial court correctly ruled that Parra failed to raise a material question of fact regarding whether Lippman acted with an "ulterior motive" when he contacted the MVD concerning Parra's driver's license. Lippman was therefore entitled to summary judgment on Parra's abuse of process claim.
CONCLUSION
¶26 For the foregoing reasons, we affirm.