                                                                      FILED BY CLERK
                             IN THE COURT OF APPEALS                      OCT 18 2007
                                 STATE OF ARIZONA
                                                                          COURT OF APPEALS
                                   DIVISION TWO                             DIVISION TWO




MARIA A. KEONJIAN, a single person,           )
                                              )
                       Plaintiff/Appellant,   )         2 CA-CV 2007-0047
                                              )         DEPARTMENT B
                  v.                          )
                                              )         OPINION
TIMOTHY A. OLCOTT, an Arizona                 )
professional corporation; TIMOTHY A.          )
OLCOTT, a single person,                      )
                                              )
                  Defendants/Appellees.       )
                                              )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                 Cause No. C-20055248

                           Honorable Deborah Bernini, Judge

                                       AFFIRMED


Munger Chadwick, P.L.C.
 By Mark E. Chadwick                                                              Tucson
                                                        Attorneys for Plaintiff/Appellant

Smith Law Group
 By Christopher J. Smith and E. Hardy Smith                                   Tucson
                                                   Attorneys for Defendants/Appellees


V Á S Q U E Z, Judge.
¶1            In this legal malpractice action, appellant Maria A. Keonjian appeals from the

trial court’s grant of summary judgment in favor of appellee Timothy A. Olcott. Keonjian

argues the trial court erred in ruling (1) that her claim was barred by the two-year statute of

limitations for tort actions, and (2) that she had no claim for breach of contract and was

therefore not entitled to the longer limitations period applicable to contract actions. For the

following reasons, we affirm.

                           Facts and Procedural Background

¶2            Although the pertinent facts of this case are largely undisputed, we view them

in the light most favorable to the party opposing the summary judgment motion below. Hill-

Shafer P’ship v. Chilson Family Trust, 165 Ariz. 469, 472, 799 P.2d 810, 813 (1990). In

August 2000, Keonjian and her daughter, Asya Almonte, signed a contract for the

construction of a house on real property located in Green Valley, Arizona. The contract

provided that the construction costs would be divided between them, with Keonjian paying

seventy-five percent and Almonte paying twenty-five percent. In December 2000, Olcott,

who had been Keonjian’s family lawyer since 1994, agreed to provide legal services in

connection with this project. At Keonjian’s request, Olcott drafted a deed dividing

ownership of the property according to each party’s contributions to the construction costs.

However, Almonte objected to the first draft of the deed, which gave a seventy-five percent

interest in the property to Keonjian and a twenty-five percent interest to Almonte and her

husband. Olcott prepared a second draft, which created a seventy-five percent joint tenancy

held by Keonjian and Almonte and a twenty-five percent joint tenancy held by Almonte and


                                              2
her husband. Although Olcott advised Keonjian that there were no material differences

between the two drafts, the second draft effectively gave Almonte and her husband a 62.5

percent interest in the property and Keonjian a 37.5 percent interest. Based on Olcott’s

advice, Keonjian executed this second deed.

¶3            In February 2001, in the course of securing a loan to fund her capital

contribution to the project, Almonte asked Keonjian to sign a gift letter. The letter stated

that Keonjian had made a gift, valued at “over $300,000,” of an undivided 3/4 interest in the

property, to herself and Almonte as joint tenants with right of survivorship. Olcott advised

Keonjian to sign the gift letter, telling her it was an “internal” letter that could only be used

for loan purposes.

¶4            In July 2002, Keonjian learned that the deed she had executed had effectively

given Almonte a 62.5 percent interest in the property. Almonte refused to sign a revised

deed, and Keonjian sued Almonte and her husband seeking to “remedy all of the problems

created by the execution of the deed and the gift letter.” In October 2003, the parties

entered into a settlement agreement, which they amended the following month.

¶5            Keonjian filed the current action against Olcott on September 16, 2005. In

her complaint, Keonjian alleged that Olcott breached his fiduciary duty with respect to both

the preparation of the deed and his advice to Keonjian regarding the gift letter and breached

his contract to perform legal services. In his answer, Olcott asserted Keonjian’s claims were

barred by the statute of limitations. On November 8, 2006, both parties filed motions for

summary judgment based on the statute of limitations.


                                               3
¶6            The trial court granted summary judgment in favor of Olcott, finding that

Keonjian’s claims arose from tort, not contract, and had accrued no later than July 2002,

when Keonjian sued Almonte. This timely appeal followed.

                                   Standard of Review

¶7            We review a trial court’s grant of summary judgment de novo, remaining

“mindful that ‘the statute of limitations defense is not favored.’” CDT, Inc. v. Addison,

Roberts & Ludwig, C.P.A., P.C., 198 Ariz. 173, ¶ 5, 7 P.3d 979, 981 (App. 2000), quoting

Logerquist v. Danforth, 188 Ariz. 16, 22, 932 P.2d 281, 287 (App. 1996). Summary

judgment is appropriate if there is “no genuine issue as to any material fact and . . . the

moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P. 56(c).

                                        Discussion

¶8            Keonjian argues the trial court erred on two substantive grounds in granting

summary judgment in favor of Olcott. First, she contends that her malpractice claims based

on negligence and breach of fiduciary duty did not accrue until the settlement of the lawsuit

with Almonte on October 1, 2003, and are thus not barred by the two-year limitations

period. Second, she argues she has a valid breach of contract claim against Olcott on which

she is entitled to the longer limitations period applicable to contract actions.

¶9            In Arizona, legal malpractice claims are generally governed by the statute of

limitations for tort claims in A.R.S. § 12-542, which provides that such claims must be

brought “within two years after the cause of action accrues.” See Kiley v. Jennings, Strouss

& Salmon, 187 Ariz. 136, 139, 927 P.2d 796, 799 (App. 1996). Arizona applies the


                                              4
discovery rule to determine when a cause of action for legal malpractice accrues.

Commercial Union Ins. Co. v. Lewis & Roca, 183 Ariz. 250, 254, 902 P.2d 1354, 1358

(App. 1995). “[T]he discovery rule applies not only to the discovery of negligence, but also

to discovery of causation and damage.” Id. at 253, 902 P.2d at 1357. Thus, for legal

malpractice claims, the limitations period starts to run when the client has suffered harm and

knows or should have known that the harm was a direct result of the attorney’s negligence.

Id.

¶10           Keonjian cites Commercial Union for the proposition that the statute of

limitations does not begin to run until the harm is “impossible to remedy or retract.”

Drawing on this proposition, she argues her cause of action against Olcott did not accrue

until her claims against Almonte were exhausted, because until then the damages caused by

Olcott could be remedied by recovering damages against Almonte. Keonjian misinterprets

Commercial Union. The recovery of damages on her separate claim against Almonte has

no bearing on the issue of when her cause of action accrued against Olcott.

¶11           In Commercial Union, attorneys at a law firm had erroneously overlooked a

relevant case in advising a client about an insurance coverage issue. Id. at 252, 902 P.2d at

1356. However, a different attorney representing the client in subsequent litigation advised

that the case was distinguishable. Id. at 253, 902 P.2d at 1357. Until the court in that

litigation ruled against the client and found the overlooked case controlling, the client had

not suffered damages even though the negligence had occurred some years before. Id. at

256-57, 902 P.2d at 1360-61. As the court noted in Commercial Union, until that ruling,


                                              5
“[t]he coverage issue was an open question.” Id. at 257, 902 P.2d at 1361. Thus, it was in

this context that Commercial Union used “irremedia[b]l[e] or . . . irrevocable” to describe

the “actual and appreciable” harm a plaintiff must sustain before a cause of action for

professional negligence can accrue. Id. at 254, 902 P.2d at 1358 (citations omitted).

¶12           In the other two cases relied upon by Keonjian, Glaze v. Larsen, 207 Ariz. 26,

83 P.3d 26 (2004), and Amfac Distribution Corp. v. Miller, 138 Ariz. 152, 673 P.2d 792

(1983), the issue was when a cause of action accrues for legal malpractice that occurred in

the course of litigation. Glaze, 207 Ariz. 26, ¶ 14, 83 P.3d at 29; Amfac, 138 Ariz. at 153,

673 P.2d at 793. In such cases, “‘the injury or damaging effect’” of the negligence “‘is not

ascertainable until the appellate process is completed or is waived by a failure to appeal.’”

Id. ¶ 15, quoting Amfac, 138 Ariz. at 154, 673 P.2d at 794. These cases are distinguishable

from the present case, because Olcott’s alleged malpractice did not occur during the course

of litigation and any harm or damage to Keonjian was immediate and ascertainable. Here,

unlike Amfac and Glaze, there was no prospect that the “[a]pparent damage may vanish with

successful prosecution of an appeal and ultimate vindication of the attorney’s conduct by

an appellate court.” Amfac Distrib. Corp. v. Miller, 138 Ariz. 155, 156, 673 P.2d 795, 796

(App. 1983), supplemented by Amfac, 138 Ariz. 152, 673 P.2d 792.

¶13           In the majority of malpractice cases, “the damage or injury occurs

contemporaneously with the malpractice.” Commercial Union, 183 Ariz. at 256, 902 P.2d

at 1360. Keonjian’s is just such a case. Any harm arising from the drafting of the deed

occurred at the moment she executed it, because it diminished her interest in the property


                                             6
to less than the undivided seventy-five percent she had intended. And any harm she suffered

from advice relating to the gift letter arose when she signed it, depriving herself of any right

to reimbursement for “over $300,000,” which the letter characterized as a gift. Thus, if the

facts are as Keonjian alleges, the harm was irremediable or irrevocable at those two points

in time because “a future appeal or other court proceedings” would not have enabled her to

“avoid[]” such harm. Glaze, 207 Ariz. 26, n.1, 83 P.3d at 30 n.1. This is the case

“notwithstanding that [her] damages may not have been fully ascertainable at that time.”

Id.

¶14           The “controlling issue” is when Keonjian “became aware or should have been

aware of the cause of [her] harm.” Commercial Union, 183 Ariz. at 256, 902 P.2d at 1360.

Keonjian was aware she had been harmed certainly no later than July 2002, when she sued

Almonte and her husband. Keonjian’s complaint in that action sought damages specifically

for alleged misrepresentation with regard to both the deed and the gift letter. But Keonjian

contends “the ‘who’ part of the inquiry was not known on July 2002 because the damages

were asserted against the Almontes on that date.”

¶15           We need not speculate about whether Keonjian knew or should have known

that Olcott was a cause of her harm in July 2002, because her actual knowledge was evident

at her deposition on February 20, 2003:

              My lawyer is supposed to tell me: Stop, it’s not what you want
              to be done. But I thought he knew better. He’s a lawyer. Who
              am I to know what I am signing? I am not—I am a layman.

                      ....


                                               7
                     I was paying for the lawyer’s bills and everything and he
              hasn’t done the things right. . . . I don’t think he’s very
              competent by now.

And she stated in this further exchange:

              Q.     Ms. Keonjian, are you aware, if you didn’t think the
                     lawyer did his job, you have the right to sue the lawyer
                     for malpractice?

              A.     Yes, I probably will. You have no idea how many
                     people are complaining about him.

¶16           These statements show Keonjian was aware that any harm she sustained was

a direct result of Olcott’s alleged negligence. And regardless of whether they demonstrate

Keonjian’s knowledge at the time she sued Almonte in July 2002, they certainly establish

her knowledge at her deposition on February 20, 2003—over two and one-half years before

she sued Olcott. The trial court, therefore, did not abuse its discretion in finding Keonjian’s

cause of action had accrued over two years before she had filed her negligence action against

Olcott. That action, filed on September 16, 2005, was thus barred by the two-year statute

of limitations, § 12-542, and summary judgment was appropriate.

¶17           We next consider Keonjian’s argument that she has a claim against Olcott in

contract that is not barred by the two-year limitations period for tort claims. But, as we have

already noted, claims for professional malpractice are generally tort claims. See Glaze, 207

Ariz. 26, ¶ 9, 83 P.3d at 28; Kiley, 187 Ariz. at 139, 927 P.2d at 799. “Only if there is a

specific promise contained in the contract can the action sound in contract, and then only

to the extent the claim is premised on the nonperformance of that promise.” Collins v.



                                              8
Miller & Miller, Ltd., 189 Ariz. 387, 395, 943 P.2d 747, 755 (App. 1996).1 The key word

is “nonperformance,” and the distinction to be drawn is that between nonfeasance and

malfeasance. The fact that an attorney may have carried out a task “in a negligent manner,

in violation of the duty imposed on him by law to represent his client in accordance with the

applicable standard of care, does not change the gravamen of the action from tort to

contract.” Id.

¶18           Keonjian argues the facts of this case are similar to Towns v. Frey, 149 Ariz.

599, 721 P.2d 147 (App. 1986). In that case, the court permitted a malpractice claim based

on breach of contract where a lawyer had failed to negotiate a settlement or file a lawsuit

within the applicable statute of limitations, pursuant to an oral agreement. Id. at 601, 721

P.2d at 149. Here, there is no evidence of similar nonperformance by Olcott. On the

contrary, Olcott prepared a deed and gave legal advice concerning the gift letter. Keonjian

attempts in her opening brief to create an issue of nonperformance by too narrowly

circumscribing Olcott’s duties: “to draft a deed that reflected her wishes and capital

contributions and . . . to advise her as to the significance and potential effect of the Gift

Letter.” However, the fact that Olcott did perform is not disputed; regardless of how

Keonjian attempts to frame it, the essence of her claim is that Olcott performed negligently,



       1
        We note the court in Collins also declined to hold that “a failure to follow a client’s
instructions, issued subsequent to and separate from a creation of the retainer contract,
constitutes a breach of that contract.” 189 Ariz. at 395-96, 943 P.2d at 755-56. Viewing
the facts in the light most favorable to the party opposing the motion below, however, we
assume that each of the services in question in this case was governed by a separate oral
contract, as Keonjian contends, rather than by a retainer agreement, as argued by Olcott.

                                              9
not that he failed to perform at all.     Thus, the underlying facts do not entail the

nonperformance of a specific promise necessary to a breach of contract claim. See id. at

601, 721 P.2d at 149.2 We therefore conclude the trial court did not err in finding that

Keonjian has no claim for breach of contract.

                                       Disposition

¶19           For the reasons stated above, we affirm the summary judgment.




                                             ____________________________________
                                             GARYE L. VÁSQUEZ, Judge

CONCURRING:



____________________________________
PETER J. ECKERSTROM, Presiding Judge



____________________________________
PHILIP G. ESPINOSA, Judge




       2
         In malpractice cases based on written agreements, we have similarly required
nonperformance of an express undertaking, not merely negligent performance, for a cause
of action to lie in contract. Beane v. Tucson Med. Ctr., 13 Ariz. App. 436, 438, 477 P.2d
555, 557 (1970). Other jurisdictions make a similar distinction. See Benard v. Walkup, 77
Cal. Rptr. 544, 603-04 (1969) (finding failure to file lawsuit within statute of limitations
period a breach of contract); Hill v. Williams, 813 A.2d 130, 660-62 (2003) (finding refusal
to file motions and schedule hearings a breach of contract); see also Long v. Buckley, 129
Ariz. 141, 146, 629 P.2d 557, 562 (App. 1981) (finding statute of limitations for breach of
written contract did not apply where breach not related to express terms of contract).

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