Shamamian v. Davis Miles

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARTEMIS SHAMAMIAN, individually and as Trustee
of THE ADRINA SHAMAMIAN LIVING TRUST; and THE ADRINA
SHAMAMIAN LIVING TRUST, Plaintiffs/Appellants,

v.

ROBERT A. PASIONEK; PASIONEK & KRULISKY, an Arizona general
partnership; DAVIS MILES MCGUIRE GARDNER PLLC, an Arizona
professional limited liability company; PAUL A. KRULISKY;
CHARLES E. DAVIS; GREGORY L. MILES; DOUGLAS GARDNER;
and PERNELL W. McGUIRE, et al, Defendants/Appellees.1

No. 1 CA-CV 24-0190
FILED 07-17-2025

Appeal from the Superior Court in Maricopa County
No. CV2021-052853
The Honorable Christopher A. Coury, Judge

AFFIRMED

COUNSEL

Law Office of Craig Stephan, Scottsdale
By Craig Stephan
Counsel for Plaintiffs/Appellants

1 The caption has been amended to reflect the correct parties on appeal
and shall be used for all future filings in this case.
Meagher & Geer, P.L.L.P., Scottsdale
By Thomas Crouch, Kurt Zitzer, Jeffrey Pyburn, Spencer Proffitt
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge D. Steven Williams and Judge Daniel J. Kiley joined.

B R O W N, Judge:

¶1 The Adrina Shamamian Living Trust (“The Trust”) and
Artemis Shamamian (collectively, “Plaintiffs”) appeal the superior court’s
grant of summary judgment to Davis Miles McGuire Gardner PLLC (“the
Firm”), and Charles E. Davis, Gregory Miles, Pernell W. McGuire, and
Douglas Gardner (collectively, “the Managers”). Plaintiffs also challenge
the court’s denial of their motion for new trial. For the following reasons,
we affirm.

BACKGROUND

¶2 In February 2015, Shamamian contacted Robert A. Pasionek,
an attorney licensed to practice law in Michigan, to handle legal matters
related to cybercrimes, bank fraud, hacking, and possible identity theft. At
the time, Pasionek and attorney Paul Krulisky had an of-counsel
relationship with the Firm—an Arizona professional limited liability
company. The of-counsel agreement stated that Pasionek was an
independent contractor, and not an agent or employee of the Firm. The
Firm’s website noted Pasionek’s of-counsel relationship, indicated his law
practice included securities, internet law, and commercial transactions, and
stated he was admitted to practice in the state of Michigan as well as the
United States District Court in the District of Michigan. Pasionek was not
licensed to practice law in Arizona.

¶3 Pasionek began providing legal services to Plaintiffs in 2015.
On March 30, 2015, Pasionek sent Shamamian an engagement letter on the
Firm’s letterhead. The letter stated, “Thank you for choosing [the Firm] as
your legal counsel.” The letter requested $5,000 as an advance deposit to
be deposited into the Firm’s trust account but listed Pasionek’s personal
bank account information. Neither the $5,000 retainer nor any subsequent

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payments Shamamian made for legal services were deposited in any
account belonging to the Firm.

¶4 In June 2015, the Firm terminated its of-counsel relationship
with Pasionek. That month, Pasionek billed Shamamian for legal services
using an invoice from “Pasionek & Krulisky, PC an affiliated entity to [the
Firm],” for work performed from February 9, 2015, through June 12, 2015.
Beginning in November 2015, invoices to Shamamian came solely from
Pasionek & Krulisky, PC, without any reference to the Firm. Those invoices
reflected legal services performed after June 16, 2015.

¶5 In August 2015, Shamamian communicated to others about
her legal matters and identified Pasionek as her attorney. In one of her draft
letters, she concluded by saying “please direct any response to my attorney,
Mr. Robert Pasionek, c/o [the Firm].” When Pasionek reviewed the draft
at Shamamian’s request, he revised the concluding line to read, “[p]lease
direct your response to Mr. Robert A. Pasionek, c/o Gonzales Saggio Harlan.”
(Emphasis added.) Shamamian sent this edited version of the letter. In a
letter she wrote in November 2016, Shamamian communicated with
another individual about her legal matters and again identified Pasionek as
her attorney, asking the recipient to “[p]lease send these documents to my
attorney, Robert Pasionek c/o Pasionek & Krulisky, PC.” (Emphasis added.)

¶6 In April 2021, Shamamian fired Pasionek as her attorney.
Throughout their business relationship, Shamamian always paid Pasionek
through his personal bank account as listed in the initial engagement letter.

¶7 On August 6, 2021, Plaintiffs sued Pasionek, Krulisky,
Pasionek & Krulisky, PC, the Firm, and the Managers. Shamamian alleged
she paid Pasionek more than $400,000 in legal fees between 2015 and 2019
for incompetent, unnecessary, or unperformed legal work undertaken by
Pasionek that involved the unauthorized practice of law in Arizona.
Shamamian alleged the Firm and the Managers were liable for consumer
fraud, breach of fiduciary duty, constructive fraud, malpractice, common
law fraud, fraudulent concealment, and unjust enrichment. Shamamian
essentially claimed that Pasionek was the Firm’s agent, that the Firm and
the Managers “held out” Pasionek as a Firm attorney licensed to practice
law in Arizona, and that the Managers negligently vetted and supervised
him.

¶8 The Firm and the Managers moved for summary judgment,
asserting Plaintiffs’ claims were untimely and the Firm could not be
vicariously liable for Pasionek because he was not the Firm’s agent. After

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further briefing and oral argument, the superior court granted the motion,
finding that because Plaintiffs conceded the Firm received no benefit, their
claim for unjust enrichment failed as a matter of law. Addressing the tort
claims, the court found that at a minimum, the Firm had an agency
relationship (based on apparent authority) with Pasionek but any assertion
that Pasionek was the Firm’s actual agent “necessarily concluded following
his [t]ermination.” The court then determined there was no genuine issue
of material fact that, in the exercise of reasonable diligence, Plaintiffs should
have known well before August 2018—when the longest limitations period
for Plaintiffs’ claims expired—that Pasionek was no longer “of counsel”
with the Firm. The court then rejected Plaintiffs’ reliance on the discovery
rule and the fraudulent concealment rule, finding that all of Plaintiffs’ tort
claims “are time-barred.”

¶9 The court entered partial final judgment under Arizona Rule
of Civil Procedure 54(b). Plaintiffs moved for a new trial against the Firm
on all claims (except unjust enrichment) and against McGuire on the claim
for negligent vetting and supervision. The court denied the motion for new
trial and Plaintiffs timely appealed. We have jurisdiction under A.R.S.
§ 12-2101(A)(1) and (A)(5)(a).

DISCUSSION

¶10 Shamamian challenges the superior court’s determination
that the applicable statutes of limitation barred her tort claims against the
Firm as well as the negligent vetting and supervision claim against
McGuire.2 We review de novo a grant of summary judgment to determine
if the court properly applied the law and whether any genuine issues of
material facts exist. Ariz. R. Civ. P. 56(a); Orme Sch. v. Reeves, 166 Ariz. 301,
310 (1990). We view the record in the light most favorable to the nonmoving
party, Dinsmoor v. City of Phoenix, 251 Ariz. 370, 373, ¶ 13 (2021), and we will
affirm for any reason supported by the record, KB Home Tucson, Inc. v.
Charter Oak Fire Ins. Co., 236 Ariz. 326, 329, ¶ 14 (App. 2014).

¶11 Generally, a cause of action accrues and the statute of
limitations “begins to run when the act upon which the legal action is based
took place, even though the plaintiff may be unaware of the facts
underlying his or her claim.” Gust, Rosenfeld & Henderson v. Prudential Ins.
Co. of Am., 182 Ariz. 586, 588 (1995). If a defendant establishes as an

2 Shamamian does not challenge the dismissal of her claims against
the other three managers (Charles E. Davis, Gregory Miles, Douglas
Gardner).

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affirmative defense that the statute of limitations applies, the plaintiff then
bears the burden of proving the statute of limitations was tolled. See
Troutman v. Valley Nat’l Bank of Ariz., 170 Ariz. 513, 517 (App. 1992).

¶12 Shamamian bases her claims against the Firm and the
Managers on two key allegations: (1) the Firm “held out” Pasionek as an
attorney licensed to practice law in Arizona and (2) the Firm terminated
Pasionek in 2015 but failed to notify Shamamian. The alleged holding out
and termination occurred no later than June 2015. Given that the longest
applicable limitations period for Plaintiffs’ claims is three years, any claim
brought in 2021 based upon the alleged acts is time-barred unless the claims
were tolled.3 Shamamian argues the statute of limitations on her claims
should be tolled based on the discovery rule and the fraudulent
concealment rule.

A. Discovery Rule

¶13 Under the discovery rule, a claim “does not accrue until the
plaintiff knows or with reasonable diligence should know the facts underlying the
cause.” Doe v. Roe, 191 Ariz. 313, 322, ¶ 29 (1998) (citation omitted)
(emphasis added). The statute of limitations for a claim under this rule is
tolled until a plaintiff “possesses a minimum knowledge sufficient to
recognize that a wrong occurred and caused injury.” Elm Ret. Ctr., LP v.
Callaway, 226 Ariz. 287, 290, ¶ 11 (App. 2010) (citation omitted). This rule
applies when the injury or the act causing the injury, or both, are difficult
for a plaintiff to detect. Gust, Rosenfeld & Henderson, 182 Ariz. at 589.
Moreover, plaintiffs cannot hide behind their ignorance if a reasonable
investigation would have alerted them to their claim. Elm Ret. Ctr., 226
Ariz. at 290, ¶ 12. Plaintiffs have “a duty to investigate with due diligence
to discover the necessary facts” that would support their claim. Doe, 191
Ariz. at 324.

¶14 Shamamian argues that Pasionek was an apparent agent of
the Firm, making the Firm liable for Pasionek’s tortious actions. An
apparent agency relationship exists when “conduct of a principal [] allows
a third party reasonably to conclude that an agent is authorized to make

3 The relevant limitations period for Plaintiffs’ claims are: (1) one year
for consumer fraud, A.R.S. § 12-541(5); (2) two years for breach of fiduciary
duty, negligent malpractice, and negligent vetting and supervision, A.R.S.
§ 12-542; and (3) three years for constructive fraud, common-law fraud, and
fraudulent concealment, A.R.S. § 12-543(3).

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certain representations or act in a particular way.” Miller v. Mason-McDuffie
Co. of So. Cal., 153 Ariz. 585, 589 (1987). Such conduct will make the
principal liable for the agent’s actions “even if the agent was acting for his
own purposes.” Id. The superior court determined that, initially, Pasionek
was an apparent agent of the Firm. We agree with the court on this point,
as there was evidence from which a reasonable person could conclude
Pasionek had authority to act on the Firm’s behalf, given that the Firm
allowed him to use its conference rooms and email address and included
him on its website. But that relationship ended with Pasionek’s separation
from the Firm in June 2015. Thus, for the discovery rule, the question is
when Shamamian knew or should have known that Pasionek was no longer
acting under the Firm’s authority. See Satamian v. Great Divide Ins. Co., 257
Ariz. 163, 170, ¶ 13 (2024) (“To be sure, it is not enough that a plaintiff
comprehends a ‘what’; there must also be reason to connect the ‘what’ to a
particular ‘who’ in such a way that a reasonable person would be on notice
to investigate whether the injury might result from fault.”) (citations
omitted).

¶15 Regarding Shamamian’s claim that the Firm “held out”
Pasionek as an attorney licensed to practice in Arizona, we disagree. The
Firm’s website did not list Pasionek as an Arizona-licensed attorney;
instead, it listed his Michigan court admissions. The engagement letter
Pasionek sent to Shamamian does not identify Pasionek as an attorney
licensed to practice law in Arizona. And because attorney licensing
information is readily available on the State Bar of Arizona‘s website, it
would have been simple for a reasonable person to discern that Pasionek
was not licensed to practice law in Arizona.

¶16 Though the Firm terminated its relationship with Pasionek in
June 2015, nothing in the record indicates that Shamamian knew or should
have known that Pasionek was no longer associated with the Firm at that
time. Shamamian’s engagement letter with Pasionek was on Firm
letterhead and began with, “[t]hank you for choosing [the Firm] as your
legal counsel.” At some point, Shamamian met with Pasionek in a
conference room in the Firm’s offices. And in June 2015, Pasionek sent an
invoice to Shamamian indicating that Pasionek and Krulisky were affiliated
with the Firm.

¶17 Subsequent communications, however, between Pasionek
and Shamamian should have alerted Shamamian to the fact that Pasionek
was no longer associated with the Firm. According to Shamamian, shortly
after signing the engagement letter, Pasionek discouraged her from
contacting the Firm, and instructed her to contact Pasionek only through

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his cell phone and personal email. Pasionek’s edits to Shamamian’s 2015
draft letter show that he instructed her to remove a reference to the Firm,
and Shamamian did so before sending the letter. And the letter she sent the
following year likewise has no reference to the Firm. Lastly, subsequent
invoices beginning in November 2015 removed any mention of the Firm
and instead identified her counsel as “Pasionek & Krulisky, PC ” until 2016
and “Pasionek & Krulisky” through 2019.

¶18 Shamamian contends these occurrences did not alert her to
the possibility that Pasionek was no longer engaged with the Firm, because
the engagement letter never changed. She likewise believed her direct
contact with Pasionek only indicated she had a “certain exclusivity” with
Pasionek as an attorney of the Firm and claimed she did not know who or
what Gonzales Saggio Harlan was. But actual knowledge is not the sole
consideration for determining whether a claim is tolled by the discovery
rule. Rather, the question is whether Shamamian knew or should have
known, with reasonable investigation, that Pasionek was no longer an agent
of the Firm. Doe, 191 Ariz. at 322, ¶ 29. There is no genuine dispute that
the communications between Shamamian and Pasionek, in which he
distanced himself from the Firm, at the least put Shamamian on notice that
she needed to investigate the status of Pasionek’s relationship with the
Firm.

¶19 Shamamian also argues the Firm breached its fiduciary duties
by failing to disclose that Pasionek was not licensed in Arizona, see Ariz. R.
Sup. Ct. 42 (Arizona Rules of Professional Responsibility), E.R. 5.5, and that
Pasionek’s failure to disclose that he was not licensed in Arizona ought to
be imputed on the Firm because Pasionek was an apparent agent of the
Firm. But as the superior court recognized, rules of professional conduct
do not, on their own, establish legal duties nor liability. See Ariz. R. Sup.
Ct. 42, Preamble, Scope ¶ 20 (noting that ethical rules “are not designed to
be a basis for civil liability” and their purpose “can be subverted when they
are invoked by opposing parties as procedural weapons”). Although
Pasionek initially had an apparent agency relationship with the Firm, as we
have explained, Shamamian should have known well before the time had
expired for filing her lawsuit that the relationship no longer existed.

B. Fraudulent Concealment

¶20 Aside from the standard discovery rule, Shamamian argues
the fraudulent concealment rule tolls the statute of limitations for her
claims, relying on Walk v. Ring, 202 Ariz. 310, 319, ¶ 34 (2002). The principle
that “[f]raud practiced to conceal a cause of action will prevent the running

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of the statute of limitations” is well-rooted in Arizona law. Id. (quoting
Acton v. Morrison, 62 Ariz. 139, 144 (1945)). In such cases, when a defendant
has hidden the facts necessary for a plaintiff to discover that a claim exists,
the rule relieves the plaintiff “of the duty of diligent investigation” and will
toll the statute of limitations “until such concealment is discovered, or
reasonably should have been discovered.” Walk, 202 Ariz. at 319, ¶ 35
(quotations omitted).

¶21 In Walk, our supreme court found there were genuine factual
issues as to whether a doctor had fraudulently concealed negligence
because he “did not disclose all he knew” about an injury his work had
caused a patient. Walk, 202 Ariz. at 319, ¶ 37. In that case, the defendant
had performed dental work on a patient who experienced complications
following the procedure. Id. The defendant then referred his patient to
another doctor, and that doctor expressed concerns that the defendant’s
work had caused the plaintiff’s injury. Id. The defendant, however, did not
disclose this to the patient; to the contrary, he told the plaintiff he had done
nothing wrong. Id. Because the defendant had a fiduciary relationship with
the patient and withheld information he possessed regarding the cause of
the patient’s injury, the court held there were questions of material fact as
to whether the doctor’s conduct amounted to fraudulent concealment
sufficient to toll the statute of limitations.

¶22 Here, nothing in the record indicates that the Firm concealed
information regarding Pasionek’s licensing. The Firm’s website explicitly
displayed the jurisdictions where Pasionek was licensed, and Shamamian
has pointed to no evidence indicating that the Firm made any
representations that Pasionek could practice law in Arizona. See id. There
is no indication that the Firm misled Shamamian or “fail[ed] to disclose true
facts.” Anson v. Am. Motors Corp., 155 Ariz. 420, 427–28 (App. 1987).

¶23 We are also not persuaded that the fraudulent concealment
rule supports Shamamian’s tolling argument. According to Shamamian,
because the Firm had a fiduciary relationship with her, the Firm’s failure to
notify her about Pasionek’s termination constituted fraudulent
concealment. As our court explained in Walk v. Ring, “if fraudulent
concealment is established, the patient is relieved of the duty of diligent
investigation required by the discovery rule and the statute of limitations is
tolled “until such concealment is discovered, or reasonably should have been
discovered.” Walk, 202 Ariz. at 319, ¶ 35 (citation modified) (emphasis
added). In such cases, a plaintiff’s duty to investigate arises once they
“discover[] or [are] put upon reasonable notice” of the concealment. Id.
(citation omitted). Even assuming the Firm’s failure to notify Shamamian

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about Pasionek’s termination constituted a concealment under the rule, no
genuine dispute exists that Shamamian reasonably could have discovered
that the Firm did not disclose Pasionek’s termination. As we have
discussed, supra ¶ 17, several communications between Pasionek and
Shamamian would have at least given her reasonable notice that Pasionek
was no longer associated with the Firm, and that the Firm did not tell her
about Pasionek’s separation. Thus, the superior court did not err in
concluding Shamamian’s claims are time-barred.4

CONCLUSION

¶24 We affirm the superior court’s ruling. We award taxable costs
to the Firm and the Managers upon compliance with Arizona Rule of Civil
Appellate Procedure 21.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

4 Plaintiffs make a separate argument challenging the dismissal of the
negligent vetting and supervision claim against McGuire. The superior
court dismissed the claim in part against McGuire because Plaintiffs
presented no evidence showing that Pasionek was an agent of McGuire as
opposed to the Firm. Because we resolve this appeal on statute of
limitations grounds, we do not address whether the court erred in
dismissing the negligent vetting and supervision claim against McGuire.

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