                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                  TROY HABERL, et al., Plaintiffs/Appellants,

                                         v.

          MICHAEL L. MCALLISTER, et al., Defendants/Appellees.

                              No. 1 CA-CV 18-0407
                                FILED 12-3-2019


            Appeal from the Superior Court in Maricopa County
                          Nos. CV 2015-001741
                               CV 2015-002465
                               (Consolidated)
                 The Honorable Daniel G. Martin, Judge

                       VACATED AND REMANDED


                                    COUNSEL

Burch & Cracchiolo PA, Phoenix
By Daryl Manhart, Jake D. Curtis
Counsel for Plaintiff/Appellant

The Hassett Law Firm PLC, Phoenix
By Myles P. Hassett, Jamie A. Glasser,
David R. Seidman
Counsel for Defendant/Appellee McAllister
                   HABERL, et al. v. MCALLISTER, et al.
                        Decision of the Court

Meagher & Greer PLLP, Scottsdale
By Kurt M. Zitzer, Spencer T. Proffitt
Counsel for Defendant/Appellee Chapman

Ahwatukee Legal Office PC, Phoenix
By David L. Abney
Counsel for Amicus Curiae, Arizona Association for Justice/Arizona Trial
Lawyers Association


                       MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.


C A M P B E L L, Judge:

¶1            Troy and Renee Haberl (“the Haberls”) appeal from the
superior court’s entry of summary judgment dismissing their legal
malpractice claim against Michael McAllister, et al. (“the Lawyers”). The
court found that there was no duty owed in the underlying negligence case,
and therefore the legal malpractice claim failed as a matter of law. We
disagree. “The existence of a duty of care is a distinct issue from whether
the standard of care has been met in a particular case.” Gipson v. Kasey, 214
Ariz. 141, 143, ¶ 10 (2007). Because we find, as a matter of law, the existence
of a duty of care in the underlying case, we vacate the entry of summary
judgment and remand for proceedings consistent with this decision.

                              BACKGROUND

¶2            In 2001, the Haberls incorporated Haberl Enterprises, Inc.
(“HEI”), a trucking company with a fleet of ten tractor trucks. Soon
thereafter, HEI entered an Independent Contractor Lease Agreement (“the
lease agreement”) with the Schuster Company (“Schuster”), an Iowa
trucking company. Pursuant to the lease agreement, HEI agreed to haul
cargo for Schuster under Schuster’s Department of Transportation (“DOT”)
number, but it retained responsibility for maintenance and repairs of its
tractor trucks and was required to maintain its fleet in compliance with the




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governing Federal Motor Carrier Safety Administration regulations (“the
regulations”).1

¶3            Although Schuster expressly disclaimed responsibility for the
maintenance and repair of HEI’s tractor trucks in the lease agreement, it
separately offered maintenance and repair services to HEI through its
wholly-owned, on-site subsidiary, Le Mars Truck & Trailer (“LMTT”), and
HEI enrolled in LMTT’s “maintenance program.” While the maintenance
agreement between HEI and LMTT was never reduced to a written
contract, the parties verbally agreed that HEI’s maintenance and repair
costs would be deducted directly from its Schuster payments.

¶4            Because HEI was Schuster’s largest independent contractor, it
received certain accommodations. Most notably, Schuster permitted HEI to
store its runout tires (tires that had some wear but could be reused) in an
upstairs bay area located in the LMTT facility. Neither HEI nor LMTT kept
an inventory of HEI’s “tire pile,” but LMTT’s mechanics generally marked
the tires as “Hab Ent,” and when HEI’s trucks needed replacement tires,
LMTT’s mechanics installed runout tires from the tire pile, if suitable.

¶5            On August 24, 2010, HEI purchased a new tire from Tire Den,
Inc. to replace Unit No. 9052’s left rear inside tire. When Unit No. 9052
returned to the LMTT facility on September 1, 2010, Mr. Haberl submitted
a work order requesting that a LMTT mechanic remove the new tire and
replace it with a “good runout” from the HEI tire pile.

¶6             In November 2010, Mr. Haberl drove Unit No. 9052 from Iowa
to Arizona. When he reached Fountain Hills, Mr. Haberl noticed smoke
from beneath the vehicle. Once he safely pulled over, he inspected the truck
to determine the source of the smoke. As he looked underneath, the left
rear inside tire exploded. Given his proximity, Mr. Haberl sustained
significant injuries.

¶7             The Haberls retained the Lawyers to investigate the cause of
the tire malfunction and seek damages for Mr. Haberl’s injuries. In
December 2011, the Haberls filed an amended complaint against Tire Den,
Inc. and Northwest Tire Factory, LLC (“the defendants”), alleging they had
installed an eight-year-old tire on Unit No. 9052 on August 24, 2010, having
falsely represented that the tire was in “new” condition. Approximately
two and one-half years later, however, the Lawyers learned that the tire at


1      The lease agreement also provided that any disputes arising under
the contract would be governed by Iowa law.
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issue was in fact a runout tire selected from HEI’s tire pile and installed on
Unit No. 9052 after Mr. Haberl submitted a work order requesting
replacement. Having discovered that the complaint against the defendants
was without any legal basis, the Lawyers moved to withdraw their
representation, which the superior court granted, and the case was
subsequently dismissed.

¶8             On the heels of that dismissal, the Haberls filed a legal
malpractice claim against the Lawyers. They alleged the Lawyers failed to
diligently pursue the Haberls’ case and had they done so they would have
discovered the error before the applicable statute of limitations period
expired. Specifically, the Haberls asserted the Lawyers should have
realized that LMTT had cognizable liability exposure for failing to
independently evaluate the integrity (particularly the age) of the subject tire
before installing it on Unit No. 9052. After nearly three years of discovery
and protracted motion practice, the parties on summary judgment argued
whether, as a matter of law, the Haberls could demonstrate the existence of
a legal duty on the part of LMTT in the underlying case. The Lawyers
asserted that LMTT owed no duty to the Haberls to ascertain the age of the
runout tire and, therefore, the Haberls’ legal malpractice claim failed as a
matter of law. Alternatively, the Lawyers argued that even if LMTT owed
such a duty, HEI was predominately at fault and, under controlling Iowa
law, could not prevail on that basis either.

¶9            After taking the matter under advisement, the superior court
entered a detailed ruling granting the Lawyers’ motion for summary
judgment. As a preliminary matter, the court found that Arizona and Iowa
law are in accord on the issue of duty, and therefore it was unnecessary to
resolve any choice of law dispute. Indeed, the court found that “under both
Arizona and Iowa” law LMTT owed no duty to HEI “to assess and/or warn
about the age of a tire owned by HEI and which HEI directed LMTT to
install.” Having found that the Haberls failed to establish the existence of a
duty in the underlying case, the court concluded that their legal malpractice
claim failed as a matter of law. The Haberls timely appealed.

                               DISCUSSION

¶10           The Haberls contend that LMTT owed a legal duty to perform
maintenance on HEI’s tractor trucks, specifically tire installation, in a non-
negligent manner. Contrary to the superior court’s ruling, the Haberls also
maintain that LMTT had an obligation to ascertain the age of the runout tire
before installing it, but they argue that obligation relates only to the
applicable standard of care, not the existence or absence of a duty.

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¶11           In reviewing a grant of summary judgment, we view the facts
and the reasonable inferences to be drawn from those facts in the light most
favorable to the non-moving party. Normandin v. Encanto Adventures, LLC,
246 Ariz. 458, 460, ¶ 9 (2019). “We determine de novo whether any genuine
issues of material fact exist and whether the [superior] court correctly
applied the law.” Diaz v. Phoenix Lubrication Service, Inc., 224 Ariz. 335, 338
¶ 10 (App. 2010); see also Ariz. R. Civ. P. 56(a) (“The court shall grant
summary judgment if the moving party shows that there is no genuine
dispute as to any material fact and the moving party is entitled to judgment
as a matter of law.”).

¶12            For both their underlying negligence claim and their legal
malpractice claim, the Haberls must prove the existence of a duty, breach
of duty, actual and proximate causation, and damages. Glaze v. Larsen, 207
Ariz. 26, 29, ¶ 12 (2004). Therefore, to prevail against the Lawyers, the
Haberls must show that, but for their attorneys’ negligence, they “would
have been successful in the prosecution” of a claim or suit against LMTT.
Phillips v. Clancy, 152 Ariz. 415, 418 (App. 1986).

¶13           Given the procedural posture of this case, the narrow issue
before us is whether LMTT had a duty of care to inspect the replacement
runout tire, evaluate its safety, and warn of any apparent danger. “The
existence of a duty of care is a distinct issue from whether the standard of
care has been met in a particular case.” Gipson v. Kasey, 214 Ariz. 141, 143,
¶ 10 (2007). While 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,” “the standard
of care―that is, whether there has been a breach of duty―is an issue of fact
that turns on the specifics of the individual case.” Id. (internal quotations
omitted).

¶14            “Duties of care may arise from special relationships based on
contract, family relations, or conduct undertaken by the defendant.” Id. at
145, ¶ 18. A duty exists when “the relationship of the parties was such that
the defendant was under an obligation to use some care to avoid or prevent
injury to the plaintiff.” Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356 (1985).
“Whether the defendant owes the plaintiff a duty of care is a threshold
issue; absent some duty, an action for negligence cannot be maintained.”
Gipson, 214 Ariz. at 144, ¶ 11; Quiroz v. ALCOA, Inc., 243 Ariz. 560, 578, ¶ 85
(2018). Absent a duty, “defendants may not be held accountable for
damages they carelessly cause, no matter how unreasonable their conduct.”
Gipson, 214 Ariz. at 143–44, ¶ 11. The existence of a duty is a question of law
that we review de novo. Quiroz, 243 Ariz. at 564, ¶ 7.

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¶15            The parties do not dispute that LMTT’s service agreement
with HEI was an oral understanding rather than a written contract.
Likewise, the parties agree that HEI neither provided LMTT instructions
regarding the storage of its runout tires nor requested that LMTT’s
mechanics specifically check the age of the runout tires before reinstalling
them. Although two LMTT employees testified that Mr. Haberl had the
opportunity to select which runout tires the mechanics installed, the
testimony of another LMTT employee contradicted this claim, and Mr.
Haberl consistently and unequivocally denied any control over the
selection of runout replacements. Mr. Haberl testified that he deferred to
and relied on the expertise of LMTT’s certified mechanics to determine
which tires to retain and which to discard. He stated that he lacked the
knowledge and training necessary to properly install and maintain
commercial tires. Mr. Haberl also denied that the runout tire came from his
tire pile, explaining he did not buy or use that tire brand (Goodyear). Mrs.
Haberl, however, acknowledged that HEI sometimes purchased Goodyear
tires, albeit “very infrequently,” and the record reflects that LMTT had
installed another Goodyear tire on Unit No. 9052 in August 2010. Finally,
the parties do not dispute that an LMTT mechanic inspected the runout tire
before he installed it to ensure that it complied with the DOT regulations
and that those regulations do not restrict the use of tires based on age.

¶16            In granting the Lawyers’ motion for summary judgment, the
superior court found Diaz both controlling and determinative. In Diaz, the
plaintiff took his parents’ car to a Jiffy Lube for an oil change. 224 Ariz. at
337, ¶ 2. While the service he purchased included a check of the vehicle’s
tire pressure, the plaintiff did not avail himself of Jiffy Lube’s separate and
optional tire rotation and inspection service and did not ask the technician
to perform work on the tires or otherwise inspect their condition. Id. A few
weeks after that oil change service, the plaintiff sustained serious injuries
from a motor vehicle accident. Id. at ¶ 3. Asserting the accident was caused,
at least in part, by the worn condition of the tread on the vehicle’s rear tires,
the plaintiff filed a lawsuit against Jiffy Lube, alleging the Jiffy Lube
technician who changed the car’s oil should have notified him of the tire
wear. Id. at ¶¶ 3, 6–7. The superior court found that Jiffy Lube owed no legal
duty to the plaintiff and this court affirmed on appeal, reasoning the “scope
of Jiffy Lube’s contractual undertaking” did not encompass tire inspection
and “an expansion of Jiffy Lube’s duty beyond the contractually agreed
upon services” was not warranted. Id. at 339, ¶¶ 16–17, 19 (“[T]he
relationship between Jiffy Lube and Plaintiffs did not create a duty of care
beyond Jiffy Lube’s actual undertaking.”).



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¶17            On this record, we conclude the facts in Diaz are
distinguishable, and its rationale supports, rather than negates, the
existence of a duty in this case. Unlike the defendant in Diaz, LMTT’s
undertaking was quite broad―the maintenance and repair of HEI’s entire
fleet of tractor trucks. More importantly, LMTT, admittedly, undertook the
specific task of inspecting HEI’s tires, ensuring there were no visible defects
and sufficient tread depth before installation. While Diaz involved a single,
limited maintenance service, in this case, LMTT provided comprehensive
maintenance and repair services for HEI on an ongoing basis, including tire
installation and storage of tires and had done so for years by the time it
installed the runout tire at issue. Given these facts, LMTT’s contractual
undertaking encompassed tire inspection and it therefore owed a duty of
care to ensure that it installed a safe tire in a non-negligent manner.

¶18            Although the Lawyers contend that LMTT’s maintenance
inspection satisfied industry standards, noting the regulations do not
restrict the age of tires, this argument relates to the applicable standard of
care and whether LMTT committed a breach, not the existence of a duty.
Stated differently, because LMTT inspected HEI’s tires, it owed a duty of
care to perform that task in a non-negligent manner. Any issue regarding
the precise manner of inspection required pertains to the appropriate
standard of care, not duty. To the extent the Lawyers argue otherwise, the
lease agreement defined HEI’s maintenance obligations to Schuster; it did
not limit the scope of LMTT’s maintenance obligations to HEI. As our
supreme court has made clear, the existence of a duty of care “is a distinct
issue” from the applicable standard of care. Gipson, 214 Ariz. at 143, ¶ 10.
While the existence of a duty is a question of law for the court, issues
regarding the standard of care and breach fall within the purview of a
factfinder. Id.

¶19          Because LMTT owed a duty of care to HEI as a matter of law
on the underlying case, the Lawyers failed to show at this stage of the
proceedings that they are entitled to judgment as a matter of law on the
Haberls’ legal malpractice claim. Accordingly, the entry of summary
judgment in the Lawyers’ favor was improper.2


2      As a secondary matter, we vacate the findings of fact set forth in the
superior court’s minute entry ruling granting the Lawyers’ motion for
summary judgment. Although these factual findings were not set forth in
the court’s final judgment, they were implicitly incorporated therein. We
decline the Lawyers’ invitations to conduct a comparative fault analysis in


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                                CONCLUSION

¶20           For the foregoing reasons, we vacate the entry of summary
judgment in favor of the Lawyers and remand for proceedings consistent
with this decision. As the successful parties on appeal, we award the
Haberls their costs, conditioned upon compliance with ARCAP 21.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




the underlying case and assess causation in the legal malpractice case.
Instead, we leave to the superior court to consider, in the first instance, these
arguments.
                                          8
