Bellemare v. Lemon Law

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CAROL BELLEMARE, Plaintiff/Appellee,

v.

LEMON LAW GROUP PARTNERS PLC, Defendant/Appellant.

No. 1 CA-CV 19-0810
FILED 2-2-2021

Appeal from the Superior Court in Maricopa County
No. CV2016-003406
The Honorable Teresa A. Sanders, Judge

VACATED AND REMANDED

COUNSEL

Sonoran Advocate Law PLC, Scottsdale
By Joseph Toboni
Counsel for Plaintiff/Appellee

Wilenchik & Bartness PC, Phoenix
By Dennis I. Wilenchik, John D. Wilenchik, Ross P. Meyer
Counsel for Defendant/Appellant
 BELLEMARE v. LEMON LAW
Decision of the Court

MEMORANDUM DECISION

Chief Judge Peter B. Swann delivered the decision of the court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.

S W A N N, Chief Judge:

¶1 Carol Bellemare obtained a jury verdict in her malpractice
action against Lemon Law Group Partners PLC (“LLGP”). We vacate the
judgment entered on the verdict because the superior court erred by
denying LLGP’s motion for a new trial. Simply stated, the superior court
did not require, and Bellemare failed to provide, sufficient evidence to
demonstrate that a reasonable fact-finder would have decided in her favor
in the matter in which LLGP represented her. Further, the court failed to
instruct the jury regarding Bellemare’s burden to prove that she would
have prevailed in the underlying matter.

FACTS AND PROCEDURAL HISTORY

¶2 Starting in March 2014, LLGP represented Bellemare in
connection with problems she experienced with a vehicle she purchased
new in California (but titled in Arizona) in August 2012 for $73,566. LLGP
sent a demand letter to the vehicle manufacturer and received a settlement
offer that Bellemare rejected. Bellemare then provided LLGP with
information to pursue arbitration. LLGP prepared an arbitration packet
and sent it to Bellemare for her signature in early July; Bellemare promptly
signed it and LLGP confirmed receipt of her signature. But LLGP did not
file the arbitration paperwork, and Bellemare became dissatisfied with the
representation. In September 2014, LLGP sent Bellemare a letter confirming
the termination of the attorney-client relationship.

¶3 In January 2016, Bellemare sued LLGP for legal malpractice,
asserting negligence and breach of contract related to the representation.
Bellemare alleged that LLGP had failed to file for arbitration or otherwise
take action to preserve her claims under Arizona’s “lemon law,” A.R.S.
§§ 44-1261 to -1267. According to Bellemare, her claims expired under
Arizona’s lemon law two years after the purchase date—i.e., in August
2014, when LLGP still represented her. In the September 2014 termination
letter, LLGP identified no specific limitation periods in the

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“California/Arizona” matter but generally advised Bellemare: “[F]iling
arbitration or close out are the remaining options. . . . If you wish to pursue
this matter further you must be aware of the relevant deadline, or ‘statute
of limitations.’” Bellemare testified that at the time she received the letter,
she believed she had lost the opportunity to pursue the matter because
LLGP had repeatedly told her that Arizona’s lemon law governed her case,
had told her that the statute of limitations under the Arizona lemon law
was “two years,” and had never told her anything about California’s
limitations period. In January 2015, however, Bellemare called the vehicle
manufacturer’s customer service line and was offered a
“restate[d] . . . goodwill” settlement offer of $8,000. She accepted that offer,
signed a general release of claims, and traded in the vehicle the next year
for $35,000.

¶4 The matter proceeded to a jury trial in August 2019. At the
close of Bellemare’s case in chief, LLGP moved for judgment as a matter of
law. The superior court denied the motion. The jury ultimately returned a
verdict finding in favor of Bellemare, calculating her damages as “$80,000
+ Legal Fees” and assigning Bellemare 10% relative fault. The court entered
judgment on the verdict and denied LLGP’s renewed motion for judgment
as a matter of law and alternative motion for new trial. LLGP appeals.

DISCUSSION

¶5 LLGP contends that it was entitled to judgment as a matter of
law under Ariz. R. Civ. P. (“Rule”) 50 because the jury had no legally
sufficient basis on which to find for Bellemare on either her contract or her
negligence claim. The record reveals, however, that LLGP did not properly
preserve its arguments under Rule 50 on either claim. First, LLGP did not
challenge the sufficiency of the contract claim until its renewed motion for
judgment as a matter of law. The scope of a renewed Rule 50(b) motion for
judgment as a matter of law based on a failure of proof is confined to the
scope of the original Rule 50(a) motion. Standard Chartered PLC v. Price
Waterhouse, 190 Ariz. 6, 27–28 (App. 1996). Second, though LLGP
challenged the sufficiency of the negligence claim in both the original and
the renewed motion, it did so on wholly different evidentiary grounds in
each instance. LLGP thereby renewed nothing at all. We therefore cannot
reverse and remand for entry of judgment for LLGP.

¶6 We hold, however, that the court erred by denying LLGP’s
motion for a new trial under Rule 59. The court may grant a new trial if the
jury’s verdict is not supported by the evidence or is contrary to law, or if
any irregularity in the proceedings or abuse of discretion prevents a fair

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trial. Rule 59(a)(1)(H), (A). We will reverse the court’s denial of a motion
based on insufficiency of the evidence only if the ruling reflects a manifest
abuse of discretion, viewing the evidence in the light most favorable to
upholding the verdict. Styles v. Ceranski, 185 Ariz. 448, 450 (App. 1996). But
“‘it is not only our right, but our duty, to set aside a verdict’ if there is no
evidence in the record to justify it.” Id. (citation omitted).

¶7 As an initial matter, we note that the jury’s verdict is legally
inconsistent with a finding of liability on the breach-of-contract malpractice
claim. The verdict apportioned fault to Bellemare. Arizona does not permit
comparative fault in breach of contract actions.1 Fid. & Deposit Co. of Md. v.
Bondwriter Sw., 228 Ariz. 84, 88, ¶¶ 21–22 (App. 2011). But even if the jury
intended to signal a finding of contract liability, LLGP would be entitled to
relief. Legal malpractice does not sound in contract “absent some special
contractual agreement or undertaking.” Collins v. Miller & Miller, Ltd., 189
Ariz. 387, 395 (App. 1996) (citation omitted). “[E]ven when there is an
express contract between the professional and the client, an action for
breach of that contract cannot be maintained if the contract merely requires
generally that the professional render services.” Id. Rather, “[o]nly if there
is a specific promise 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.” Id. In its engagement agreement, LLGP promised generally to
“diligently advocate” Bellemare’s interests, provide her reasonable access
to her attorneys, permit her to decide on settlement, keep her informed
regarding the assigned attorneys and court proceedings, and provide her
copies of documents.

¶8 LLGP made no specific promises in the engagement
agreement regarding making filings or providing advice on specific aspects
of her claims. Cf. Asphalt Eng’rs, Inc. v. Galusha, 160 Ariz. 134, 136 (App.
1989) (holding that the jury could find breach of contract when attorney
failed to fulfill promise to file liens and institute foreclosure lawsuits if
necessary); Towns v. Frey, 149 Ariz. 599, 600–01 (App. 1986) (holding that
legal malpractice claim sounded in contract when attorney agreed to file
lawsuit and achieve satisfactory results). Bellemare contends that LLGP

1 The record reveals that though the jury was instructed on breach of
contract, it was provided with only two forms of verdict: one for a decision
in favor of LLGP, and one for a decision in favor of Bellemare with a
determination of relative fault. The verdict forms therefore arguably
precluded the jury from expressing a verdict on the contract claim. But
Bellemare does not challenge the verdict forms.

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nonetheless specifically contracted to file the arbitration paperwork
because an LLGP employee stated in an email that she would submit the
arbitration paperwork after Bellemare signed it. The employee’s statement
was not, however, an additional promise supported by consideration. See,
e.g., Johnson v. Earnhardt’s Gilbert Dodge, Inc., 212 Ariz. 381, 384, ¶ 10 (2006)
(“A contract is ‘a bargain in which there is a manifestation of mutual assent
to the exchange and a consideration.’” (citation omitted)). We further note
that the employee did not identify any date by which she would act. By
articulating these defects in the contract claim, we do not imply that LLGP
lacked a duty to perform certain tasks in a timely manner or advise
Bellemare competently.

¶9 We next turn to the negligence claim. “As with all negligence
claims, a plaintiff asserting legal malpractice [by reason of negligence] must
prove the existence of a duty, breach of duty, that the defendant’s
negligence was the actual and proximate cause of the injury, and the ‘nature
and extent’ of damages.” Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 12 (2004).
Contrary to Bellemare’s position at oral argument on appeal, the plaintiff
always bears the burden to establish every element of the claim, regardless
of how (or whether) the defendant chooses to defend. See id. (expressly
noting that the “plaintiff . . . must prove” the elements of legal malpractice);
see also, e.g., Wells Fargo v. Allen, 231 Ariz. 209, 213, ¶ 16 (App. 2012)
(explaining, in contract cases, that “the mere absence of a genuine dispute
of material fact does not automatically entitle a plaintiff [who bears the
burden of proof] to [summary] judgment—the plaintiff must also
demonstrate that the evidence entitles it to judgment as a matter of law”).
Typically, expert testimony is used to establish the defendant’s standard of
care and deviation therefrom. Baird v. Pace, 156 Ariz. 418, 420 (App. 1987).
Expert testimony is not required, however, “where the negligence is so
grossly apparent that a lay person would have no difficulty recognizing it.”
Asphalt Eng’rs, 160 Ariz. at 135–36. We conclude that an attorney’s failure
to preserve a client’s claim within the limitations period may constitute
grossly apparent negligence, as may an attorney’s erroneous representation
to the client of the limitations period. We therefore reject LLGP’s contention
that Bellemare’s failure to present expert testimony was necessarily fatal to
her ability to carry her burden of proof.

¶10 But though we hold in principle that an attorney’s failure to
act before the expiration of a limitations period may constitute negligence,
Bellemare failed to prove her theory that the Arizona lemon law’s
limitations period expired during LLGP’s representation. A.R.S. § 44-
1265(B) provides three possible limitations periods: “A consumer shall
begin an action under this article within six months following the earlier of

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expiration of the express warranty term or two years or twenty-four
thousand miles following the date of original delivery of the motor vehicle
to the consumer, whichever is earlier.” The parties presented no relevant
evidence regarding the warranty term or the vehicle’s mileage.2 The only
conclusion supported by the evidence is that the limitations period did not
expire until two years and six months after Bellemare purchased the
vehicle—several months after LLGP and Bellemare’s relationship
terminated. Accordingly, Bellemare’s only colorable theory arguably
supported by the record was not that LLGP let the limitations period pass,
but that LLGP misinformed her that the limitations period was “two years”
and thereby caused her to fail to pursue her claims and to release them for
a low settlement styled as a “goodwill” offer.3

¶11 Bellemare had to establish that “but for the attorney’s
negligence [in misinforming her], [s]he would have been successful in the
prosecution” of the lemon law action, Glaze, 207 Ariz. at 29, ¶ 12, assuming
that the action was decided by a reasonable judge or jury, Hyatt Regency
Phx. Hotel Corp. v. Winston & Strawn, 184 Ariz. 120, 131 (App. 1995). The
record reveals that the superior court misapplied that rule. Before denying
LLGP’s original motion for judgment as a matter of law, in which LLGP

2 The only evidence presented regarding mileage was that the vehicle
had been driven twenty-nine miles when Bellemare purchased it, that in a
July 2014 position statement LLGP stated that the vehicle was out of service
while still having less than twenty-four thousand miles, and that the vehicle
had accumulated approximately fifty-one thousand miles by the July 2016
trade-in.

3 We note that LLGP’s description in the termination letter of
Bellemare’s “remaining options,” combined with her later acceptance of a
settlement offer from the manufacturer, may undercut the reasonableness
of her belief that her claims had expired. But we do not assess her
credibility. See Estate v. Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283,
287, ¶ 12 (2000) (“The credibility of a witness’ testimony and the weight it
should be given are issues particularly within the province of the jury.”)
(citation omitted). And though Bellemare’s acceptance of the settlement
affected her damages, it did not, as LLGP suggests, necessarily preclude her
claim. See Hayenga v. Gilbert, 236 Ariz. 539, 542, ¶ 13 (App. 2015)
(“Litigation malpractice claims accrue when the appellate process in the
underlying litigation is completed by the issuance of a mandate, when the
parties to the underlying litigation enter into a binding settlement
agreement, or when the right to appeal is otherwise waived.” (internal
citation omitted)).

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argued that Bellemare had failed to prove that she would have prevailed
on the lemon law claim, the court remarked: “Okay. But we’re not trying
the Lemon Law case.” And later, the court denied LLGP’s request for a
lemon law jury instruction on the theory that “it would confuse the jury,
because this is not a Lemon Law case.”

¶12 To meet her burden regarding the underlying lemon law case,
Bellemare had to prove several elements. First, she had to prove that a
reasonable fact-finder would have concluded that her vehicle suffered a
“defect or condition which substantially impair[ed its] use and value . . . to
[her].” A.R.S. § 44-1263(A). Next, she had to prove that a reasonable fact-
finder would have concluded that an authorized dealer made “a reasonable
number of attempts” to “repair[ ] or correct[ ]” the defect or condition, with
a reasonable number of attempts presumed if the vehicle was “out of
service by reason of repair for a cumulative total of thirty or more calendar
days during the shorter of the express warranty term or the two year period
[after original delivery] or twenty-four thousand miles, whichever is
earlier.” A.R.S. §§ 44-1263(A), -1264(A)(2). Finally, she had to prove that a
reasonable fact-finder would have concluded that the repairs were “unable
to conform the motor vehicle to any applicable express warranty.” A.R.S.
§ 44-1263(A).

¶13 Bellemare did not provide the jury any evidence regarding
the vehicle’s problems or repairs beyond her own testimony. She testified
that she first noticed oil leaking from the vehicle in December 2013, and she
took the vehicle to an authorized dealer in early 2014. After keeping the
vehicle “like for a week,” the dealer claimed to have fixed the problem. But
a week later, Bellemare noticed more leaking and brought it back to the
dealer. The dealer “realized there was like some transmission that was like
a different color” and, after keeping the vehicle for “11 days or so,”
ostensibly fixed it again. But soon thereafter the vehicle leaked again, so
Bellemare again took it to the dealer. This time, “they realized that
everything was cracked, and they couldn’t fix the problem and then the
radiator, and the head gasket, and the engine, and everything needed to be
replaced.” On this third visit, the vehicle was out of service for what
Bellemare believed was a twenty-two-day period, ending in March. She
thereafter continued to have issues with the vehicle “always” making “little
noises,” and “hesitating” or “giv[ing her] like a kickback” when she
accelerated on the freeway; accordingly, she only drove the vehicle locally
because she “was worried for [her] safety.”

¶14 Bellemare’s testimony was sufficient to establish that the
vehicle suffered from a significant problem that persisted for several

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months, and that an authorized dealer made a reasonable number of
attempts to fix the problem. Her testimony was not, however, sufficient to
permit a reasonable fact-finder to conclude that the repairs proved
unsuccessful. Her observations of the vehicle’s post-repair performance
were insufficient, under either an objective or a subjective standard, to
establish that the repairs proved unsuccessful. She offered no evidence
that, after the conclusion of reasonable repair attempts, the vehicle
continued to leak fluid or that it otherwise demonstrated continuing
problems related to the past leaks or the replaced parts. She testified that
she never personally serviced the vehicle or diagnosed any problems, and
she confirmed her deposition testimony that she did not know whether she
could have won the lemon law case. Because Bellemare failed to provide
evidence sufficient to enable a reasonable judge or jury to find in her favor
on the lemon law claim—and, moreover, because the superior court
discouraged presentation of the necessary evidence—LLGP was entitled to
a new trial.

¶15 Relatedly, the court’s refusal to instruct the jury on the lemon
law prevented a fair trial. Though the jury was instructed generally that
Bellemare had to prove LLGP’s “negligence was a cause of her injuries”
because “it help[ed] produce the injury, and . . . the injury would not have
happened without the negligence,” the jury was not provided with the
proper standard for determining causation. The absence of such an
instruction likewise entitled LLGP to a new trial. See Kauffmann v. Schroeder, 116 Ariz. 104, 106 (1977) (“It is the duty of the court to instruct the jury on
all phases of the law applicable to the facts developed at trial.”); Willett v.
Ciszek-Olson, 170 Ariz. 230, 231 (App. 1991) (holding that plaintiff was
entitled to a new trial when evidence was sufficient to support giving her
requested instructions). We need not address the balance of the issues
raised by LLGP on appeal.

CONCLUSION

¶16 We vacate the judgment and we remand for a new trial. We
award no attorney’s fees on appeal. LLGP is entitled to recover its costs
upon compliance with ARCAP 21.

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