                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


        MARK S. HANDRAHAN, a single man, Plaintiff/Appellant,

                                         v.

   HAROLD D. BURR, JR. and JANE DOE BURR, husband and wife;
 HAROLD D. BURR, JR., P.C., an Arizona professional corporation dba
   BURR & ASSOCIATES, P.C.; WILLIAM H. DOYLE and JANE DOE
    DOYLE, husband and wife; THE DOYLE FIRM, P.C., an Arizona
professional corporation; SCOTT M. GOLDEN and JANE DOE GOLDEN,
                 husband and wife, Defendants/Appellees.

                              No. 1 CA-CV 14-0519
                                FILED 1-19-2016


            Appeal from the Superior Court in Maricopa County
                           No. CV2012-092700
               The Honorable Mark F. Aceto, Retired Judge

                                   AFFIRMED


                                    COUNSEL

Evans Dukarich LLP, Tempe
By Steven L. Evans, Gary Dukarich
Counsel for Plaintiff/Appellant

Manning & Kass, Ellrod, Ramirez, Trester, L.L.P., Phoenix
By Robert B. Zelms, Debora L. Verdier
Counsel for Defendants/Appellees Burr
                        HANDRAHAN v. BURR et al.
                           Decision of the Court

The Hassett Law Firm, P.L.C., Phoenix
By Myles P. Hassett, Julie K. Moen, Jamie A. Glasser
Counsel for Defendants/Appellees Doyle

Dickinson Wright, PLLC, Phoenix
By Charles H. Oldham
Counsel for Defendants/Appellees Golden



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined.


P O R T L E Y, Judge:

¶1             Mark S. Handrahan appeals the summary judgment
dismissing his legal malpractice claims against his former lawyers Harold
D. Burr, Jr. and Burr & Associates, P.C. (collectively “Burr”), William H.
Doyle and The Doyle Firm, P.C. (collectively “Doyle”), and Scott M. Golden
(collectively “the Defendants”). For the following reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY

¶2            Handrahan was stabbed by Jose Orlando Brown-Vasquez
(“Vasquez”) in 2006. While Vasquez was being prosecuted for the
aggravated assault, Handrahan, in a separate proceeding, was sentenced to
three years in prison for failing to register as a sex offender. In 2008,
Vasquez was convicted and sentenced for the stabbing, and the sentencing
order directed the Arizona Department of Corrections (“ADOC”) not to
place Vasquez in Florence with Handrahan. Despite the order, Vasquez
was sent to the Florence facility, albeit to a different unit. Shortly thereafter,
William Duncan, an inmate, viciously attacked Handrahan.

¶3            Burr agreed to represent Handrahan in a lawsuit against
ADOC for failing to protect him. He served a notice of claim on ADOC, its
director, and the Office of the Attorney General1 (though Handrahan later


1The Office of the Attorney General is the statutory agent for service on
the State of Arizona. See Ariz. R. Civ. P. 4.1(h)(1).

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                         HANDRAHAN v. BURR et al.
                            Decision of the Court

alleged the notice was defective because it did not list the State of Arizona
as a party). Burr subsequently prepared and filed a complaint against
ADOC and its director (even though both were immune from civil liability
under Arizona Revised Statutes (“A.R.S.”) section 31-201.01(F)),2 but did
not name the State of Arizona as a defendant. Burr withdrew before serving
the complaint.

¶4           Doyle, who had initially refused to take the case, later agreed
to represent Handrahan. Golden agreed to help, and filed a notice of
appearance. The complaint was served, and the lawsuit was subsequently
dismissed after ADOC and its director successfully invoked their statutory
immunity. Handrahan did not appeal the ruling.

¶5           Handrahan then filed this legal malpractice lawsuit against
the Defendants. He subsequently filed a motion for partial summary
judgment arguing Burr was liable for filing a defective notice of claim. Burr
responded, and filed a cross-motion for partial summary judgment on the
same issue. The court granted Burr’s cross-motion after finding that
Handrahan had failed to establish that the complaint had been dismissed
because of any defect in the notice of claim.

¶6           Doyle subsequently filed a motion for summary judgment,
joined by Golden and Burr, arguing that even if the complaint was
defective, Handrahan had failed to prove that ADOC was negligent, or that
Duncan’s attack was connected to Vasquez’s incarceration in Florence. The
court agreed, finding that Handrahan had not demonstrated that he could
have succeeded in the underlying case.            After his motion for
reconsideration was denied and judgment was entered, Handrahan filed
this appeal. We have jurisdiction under A.R.S. § 12-2101(A)(1).

                                 DISCUSSION

¶7             Handrahan raises four issues on appeal. He argues that: (1)
the trial court erred by granting summary judgment because it
misunderstood the difference between circumstantial and speculative
evidence; (2) the court should apply the “Ohio-Montana Approach” to the
causation element of his legal malpractice claim; (3) even if the court refuses
to modify Arizona’s legal malpractice causation standard, (a) the
Defendants should be estopped from asserting that Handrahan’s
underlying case was not just and appropriate, or (b) the burden should be
shifted to the Defendants to require them to disprove causation; and (4) the


2   We cite to the current version of the statute, unless otherwise noted.
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                        HANDRAHAN v. BURR et al.
                           Decision of the Court

court abused its discretion by denying Handrahan’s Rule 56(f) motion to
perform additional discovery so he could defeat summary judgment.

I.     Summary Judgment

¶8          Handrahan claims the court abused its discretion by granting
the Defendants’ motion for summary judgment. We disagree.

¶9             Summary judgment should be granted “if there are no
genuine issues of material fact and the moving party is entitled to judgment
as a matter of law.” Grand v. Nacchio, 214 Ariz. 9, 18, ¶ 26, 147 P.3d 763, 772
(App. 2006) (citations omitted). We review a grant of summary judgment
de novo, Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 316, ¶ 8, 965 P.2d 47,
50 (App. 1998), and view the evidence and reasonable inferences in the light
most favorable to the non-moving party, Federico v. Maric, 224 Ariz. 34, 36,
¶ 7, 226 P.3d 403, 405 (App. 2010) (citations omitted). We will affirm the
trial court’s grant of summary judgment if it was correct for any reason. Id.
(citation omitted).

¶10          To assert a legal malpractice claim, a plaintiff must
demonstrate:

       (1) the existence of an attorney-client relationship which
       imposes a duty on the attorney to exercise that degree of skill,
       care, and knowledge commonly exercised by members of the
       profession, (2) a breach of that duty, (3) that such negligence
       was a proximate cause of resulting injury, and (4) the fact and
       extent of the injury.

Toy v. Katz, 192 Ariz. 73, 85, 961 P.2d 1021, 1033 (App. 1997) (citation
omitted). Causation, which is generally a fact question, see id., requires
proof of negligence in the case-within-a-case; that is, “but for the attorney’s
negligence, he would have been successful in the prosecution or defense of
the original suit.” Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 12, 83 P.3d 26, 29 (2004)
(quoting Phillips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300, 303 (App. 1986);
see also Matter of Strobel, 149 Ariz. 213, 216, 717 P.2d 892, 895 (1986).

       A. No Genuine Issue as to Causation in the Case-Within-a-Case

¶11             Here, and despite Handrahan’s contention that the timing
between     Vasquez’s arrival and Duncan’s assault was circumstantial
evidence     of ADOC’s negligence, he failed to present any admissible
evidence    that he would have proven his case-within-a-case. Handrahan
failed to   present any admissible evidence that Vasquez’s arrival at the
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                       HANDRAHAN v. BURR et al.
                          Decision of the Court

Florence facility and Duncan’s subsequent attack were connected. There
was no evidence that Vasquez knew Duncan. There was no evidence that
Vasquez was housed with Duncan. There was no evidence that Vasquez
communicated with Duncan or with anyone else at the facility about
Handrahan. There was no evidence that Duncan told Handrahan that he
was beating him up because he knew Vasquez, or that Vasquez had
suggested or ordered it. And, there was no admissible evidence that ADOC
negligently segregated Vasquez from Handrahan, or that it failed to protect
him from a known danger.3

       B. Ohio-Montana Approach

¶12          Relying on opinions from Ohio and Montana, Handrahan
suggests that we adopt what he labels the “Ohio-Montana Approach” to
legal malpractice actions. He argues that under those opinions, the
causation requirement should be replaced with proof that the potential
settlement value of the underlying lawsuit was diminished. We disagree.

¶13           First, we are bound to follow the law as articulated by our
supreme court and are not permitted to “overrule, modify, or disregard”
supreme court decisions. State v. Sullivan, 205 Ariz. 285, 288, ¶ 15, 69 P.3d
1006, 1009 (App. 2003) (quoting City of Phoenix v. Leroy’s Liquors, Inc., 177
Ariz. 375, 378, 868 P.2d 958, 961 (App. 1993)); State v. Sang Le, 221 Ariz. 580,

3 We assume without deciding that ADOC should have followed the
superior court’s order not to place Vasquez in Florence. We note, however
that the director of ADOC has, by statute, sole decision-making power in
deciding where to house prisoners. See A.R.S. § 41-1602(A); A.R.S. § 41-
1604(A)(1), (2) (giving ADOC director sole authority to establish programs
for custody and control of adult offenders committed to ADOC); Casey v.
Lewis, 837 F. Supp. 1009, 1019 (D. Ariz. 1993) (citing Meachum v. Fano, 427
U.S. 215, 224 (1976)) (“The Constitution does not require that the state have
more than one prison for convicted felons, nor does it guarantee that the
convicted prisoner will be placed in any particular prison.”); Griffith Energy,
L.L.C. v. Ariz. Dep’t of Revenue, 210 Ariz. 132, 135, ¶ 12, 108 P.3d 282, 285
(App. 2005) (stating a trial court “cannot require an agency to exercise its
legislatively conferred discretion in any particular manner”) (citing Ariz.
State Highway Comm’n v. Superior Court of Maricopa Cty., 81 Ariz. 74, 77, 299
P.2d 783, 785 (1956)); Op. Ariz. Att’y Gen. I89-021 (1989) (“Director of the
Department of Corrections has been granted the exclusive statutory
authority and responsibility for the administration of the state
prison[s] . . .”).

                                       5
                        HANDRAHAN v. BURR et al.
                           Decision of the Court

581, ¶ 4, 212 P.3d 918, 919 (App. 2009) (citation omitted). As a result, and
until our supreme court modifies the well-established legal malpractice
common law, Handrahan was required to present some evidence
demonstrating that “but for the attorney’s negligence, he would have been
successful in the prosecution . . . of the original suit.” Glaze, 207 Ariz. at 29,
¶ 12, 83 P.3d at 29 (citation omitted).

¶14            Moreover, in the Ohio and Montana decisions cited by
Handrahan, both supreme courts found that the plaintiffs had presented
sufficient evidence of the case-within-a-case to withstand summary
judgment. See Vahila v. Hall, 674 N.E.2d 1164, 1166 (Ohio 1997) (syllabus),4
Labair v. Carey, 291 P.3d 1160, 1167-68, ¶¶ 29-30 (Mont. 2012). Here,
however, there was no admissible evidence to withstand summary
judgment showing that “but for [his] attorney’s negligence, [he] would
have been able to present sufficient evidence to withstand summary
judgment for the [State] and reach the jury with [his] case.” Labair, 291 P.3d
at 1169, ¶ 38. Consequently, given the record, even if we applied the Vahila
and Labair analytic framework, Handrahan could not avoid summary
judgment.5

II.    Equitable Estoppel and Burden Shifting

¶15           Handrahan also contends that the Defendants should be
estopped from asserting that his claim against ADOC lacked value, or
should otherwise be required to disprove causation. He recognizes,
however, that neither approach is recognized in our legal malpractice
jurisprudence. Moreover, he has waived his argument that the Defendants
have to disprove causation by failing to raise it to the trial court. See
Schoenfelder v. Ariz. Bank, 165 Ariz. 79, 88, 796 P.2d 881, 890 (1990) (“[W]e



4 The syllabus in Ohio is part of the appellate decision, written by the
authoring judge, and approved by a majority of the court. Supreme Court
of Ohio, Writing Manual: A Guide to Citations, Style, and Judicial Opinion
Writing § 19.2(B) 131 (2d ed. 2013).
5 Handrahan also requests that we reverse the partial summary judgment

granted to Burr. Although he did not substantively address nor argue the
notice of claim partial summary judgment in the opening brief, if we
assume, without deciding, that the notice of claim was faulty, Handrahan
would not be entitled to a new trial. The underlying lawsuit against ADOC
was not dismissed because of any alleged defect in the notice of claim.
Consequently, even if the issue had not been waived on appeal, there is no
basis for reversing the judgment on that basis.
                                        6
                       HANDRAHAN v. BURR et al.
                          Decision of the Court

will not review an issue on appeal that was not argued . . . in the trial
court.”) (citation omitted).

¶16           He also argues the Defendants should be estopped from
denying the vitality of his underlying case by the doctrine of issue
preclusion, also known as collateral estoppel. See Airfreight Express Ltd. v.
Evergreen Air Ctr., Inc., 215 Ariz. 103, 107 n.3, ¶ 11, 158 P.3d 232, 236 n.3
(App. 2007). Issue preclusion, however, only applies when (1) the issue has
actually been litigated in a previous proceeding, (2) the parties had a full
and fair opportunity and motive to litigate the issue, (3) a valid and final
decision on the merits was entered, (4) resolution of the issue was essential
to the decision, and (5) there is a common identity of the parties. Garcia v.
Gen. Motors Corp., 195 Ariz. 510, 514, ¶ 9, 990 P.2d 1069, 1073 (App. 1999).

¶17            The equitable remedy is inapplicable here. There was no
prior litigation between the parties to this malpractice lawsuit that resolved
any issue, much less any ruling that Handrahan’s claim had some value.
Consequently, he is not entitled to rely on the doctrine in lieu of presenting
admissible evidence.

III.   Denial of Motion for Additional Discovery

¶18          Finally, Handrahan argues the court abused its discretion by
denying his motion for additional discovery under Arizona Rule of Civil
Procedure (“Rule”) 56(f). We disagree.

¶19            A party opposing summary judgment may seek additional
discovery before responding to the motion for summary judgment. Ariz.
R. Civ. P. 56(f). The party must file a motion with a supporting affidavit
specifying “(1) the particular evidence beyond the party’s control; (2) the
location of the evidence; (3) what the party believes the evidence will reveal;
(4) the methods to be used to obtain it; and (5) an estimate of the amount of
time the additional discovery will require.” Lewis v. Oliver, 178 Ariz. 330,
338, 873 P.2d 668, 676 (App. 1993) (citation omitted). We review a ruling on
a Rule 56(f) motion for an abuse of discretion. Id. (citation omitted).

¶20           Handrahan did not file his Rule 56(f) motion until after
summary judgment had been granted. Although he had filed a Rule 56(f)
motion in response to the Defendants’ earlier unsuccessful motions, he did
not seek discovery before responding to the motion and the ruling, which
he now challenges. Consequently, because his request was untimely and
did not include the required affidavit, the trial court did not abuse its
discretion by denying Handrahan’s post-ruling discovery motion.


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              HANDRAHAN v. BURR et al.
                 Decision of the Court

                     CONCLUSION

¶21   For the foregoing reasons, we affirm the judgment.




                       :ama




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