MIKALACKI v. MIHALOVICH

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 GORDANA MIKALACKI, Plaintiff/Appellant, v. JENNIFER MIHALOVICH, et al., Defendants/Appellees. No. 1 CA-CV 26-0178 FILED 11-06-2026 Appeal from the Superior Court in Maricopa County No. CV2023-018446 The Honorable Scott A. Blaney, Judge AFFIRMED COUNSEL Mick Levin, P.L.C., Phoenix By Mick Levin Counsel for Plaintiff/Appellant Broening Oberg Woods & Wilson, P.C., Phoenix By Kelley M. Jancaitis, J. Gregory Cahill Counsel for Defendants/Appellees  MIKALACKI v. MIHALOVICH et al. Decision of the Court MEMORANDUM DECISION Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge Brian Y. Furuya and Judge D. Andrew Gaona joined. P E R K I N S, Judge: ¶1 Gordana Mikalacki appeals the superior court’s denial of her motion for new trial and its grant of summary judgment in favor of Jennifer Mihalovich and Stewart Law Group (“Appellees”). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On March 9, 2021, the superior court issued a divorce decree dissolving Mikalacki’s marriage to her ex-husband. In the decree, the court erroneously stated that the outstanding community debt balance of a personal loan from Mikalacki’s father (the “creditor”) was $100,000 when it was actually $200,000. ¶3 Jennifer Mihalovich, who served as Mikalacki’s attorney during the divorce, failed to timely move to alter or amend the divorce decree. The superior court granted the untimely motion, but we reversed. Matter of Mikalacki v. Rubezic, 1 CA-CV 21-0483-FC, 2022 WL 10219850, at *11 ¶ 64 (Ariz. App. Oct. 18, 2022). ¶4 Mikalacki sued Mihalovich and her firm, Stewart Law Group, for legal malpractice. Appellees moved for summary judgment, arguing that Mikalacki had failed to establish damages tied to Mihalovich’s mistake. The superior court granted summary judgment, agreeing that “this error did not alter the actual amount of the debt actually owed to [Mikalacki’s] father.” The court then concluded that Mikalacki failed to establish damages attributable to Mihalovich. Mikalacki moved for a new trial, but the superior court denied the motion. ¶5 Mikalacki timely appealed and we have jurisdiction. A.R.S. § 12-120.21(A)(1), §§ 12-2101(A)(1), (A)(5)(a). 2  MIKALACKI v. MIHALOVICH et al. Decision of the Court DISCUSSION ¶6 “We review the denial of a motion for new trial for an abuse of discretion, but we review de novo a trial court’s ruling on a motion for summary judgment.” Gambrell v. IDS Prop. Cas. Ins. Co., 238 Ariz. 165, 166 ¶ 4 (App. 2015). Mikalacki argues the superior court erred in finding she was not damaged and by requiring her to prove ex-husband could not pay his half of the loan. Both arguments fail. I. The Court did not Err in Granting Summary Judgment and Denying Appellant’s Motion for New Trial. ¶7 Mikalacki argues the superior court erred in ruling that she had not suffered damages as a result of her attorney’s error. ¶8 A plaintiff asserting a legal malpractice claim must prove the fact and extent of the injury. Phillips v. Clancy, 152 Ariz. 415, 418 (App. 1986). She must, therefore, show that she has: “(1) sustained appreciable, non- speculative harm or damage as a result of such malpractice and (2) knows, or in the exercise of reasonable diligence should know, that the harm or damage was a direct result of the attorney’s negligence.” Com. Union Ins. Co. v. Lewis & Roca, 183 Ariz. 250, 252–53 (App. 1995) (emphasis added) (cleaned up). ¶9 Mikalacki identified multiple theories to show she was damaged by Mihalovich’s conduct. Each fails for the same reason: Mikalacki has not proven the alleged damages directly resulted from Mihalovich’s error. ¶10 She first claims that, but for Mihalovich’s error, the entire debt would have been paid off with proceeds from the sale of the marital home. Because of this, Mikalacki argues she is damaged by having to seek reimbursement from her allegedly insolvent ex-husband in a separate, likely unsuccessful action. This argument is speculative because it depends on (1) Mikalacki seeking reimbursement, (2) her ex-husband refusing, and (3) Mikalacki pursuing legal action that may or may not succeed. Coury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 521 (1968) (“Damages that are speculative, remote or uncertain may not form the basis of a judgment.”). Any damages suffered by Mikalacki after this possible series of events are not causally tied to Mihalovich’s past error, but rather to ex-husband’s future actions. Lewis & Roca, 183 Ariz. at 252–53. ¶11 Mikalacki next argues that her attorney’s failure to timely amend the decree resulted in her having to pay more than 50% of the 3  MIKALACKI v. MIHALOVICH et al. Decision of the Court outstanding debt obligation. But Mikalacki was always jointly liable for the entire $200,000 community debt obligation. Mihalovich’s untimely filing, leaving the court’s error intact, did not change Mikalacki’s liability. ¶12 Mikalacki also contends that claim preclusion prevents her from seeking contribution of any amount paid in excess of $100,000 because, whether correct or not, the trial court determined the amount owed, who owed it, and how it must be paid. See Peterson v. Newton, 232 Ariz. 593, 595 ¶ 5 (App. 2013) (explaining claim preclusion). She argues bringing a contribution action would be (1) an impermissible collateral attack on the divorce decree, and (2) limited to recovering only 50% of the misstated $100,000, rather than 50% of the full $200,000 she was jointly liable for. ¶13 But a decree’s allocation of community debts “only determines the obligations of the spouses with respect to one another; the spouses’ creditors are not bound by the allocation.” Fleming v. Tanner, 248 Ariz. 63, 70 ¶ 23 (App. 2019). Though the superior court misstated the remaining debt balance, it did not change the amount Mikalacki may seek in contribution because the creditor is not bound by the court’s error. Id. Put another way, the superior court did not by way of a divorce decree alter the actual amount of the total debt owed to a third-party creditor. And it did not alter either Mikalacki’s or ex-husband’s actual joint and several obligation on the debt itself. ¶14 The decree apportioned the obligors’ liability to each other— and it did so equally (i.e., 50%/50%). A fair read of the decree, then, is that the court allocated the debt to the parties equally, notwithstanding the numerical error. But even if we read the decree to have left unallocated $100,000 of debt, claim preclusion does not apply. Dressler v. Morrison, 212 Ariz. 279, 282–83 ¶¶ 14–17 (2006). When we confront unaddressed community property, we presume that the debts are divided equally. See Fleming, 248 Ariz. 70 ¶ 23. In sum, whether viewed as allocated debt with a numerical error or unallocated debt, post-decree, both parties owed 50% of the total debt. And Mikalacki is free to pursue a contribution action against ex-husband. ¶15 Mihalovich’s untimely filing did not cause Mikalacki to owe the full debt as a matter of joint and several liability. Because Mihalovich’s error did not directly result in damages to Mikalacki, we affirm the superior court’s grant of summary judgment. 4  MIKALACKI v. MIHALOVICH et al. Decision of the Court II. The Superior Court did not Impose an Improper Burden on Appellant to Prove Ex-Husband’s Insolvency. ¶16 In its ruling, the superior court noted that “[t]here is no competent evidence before the Court that Plaintiff’s ex-husband is incapable of paying his share due to chronic insolvency, disability, or death.” Mikalacki claims the court thus required her to prove she was incapable of mitigating her damages by providing evidence that ex- husband is unable to pay his share. See Fairway Builders, Inc. v. Malouf Towers Rental Co., Inc., 124 Ariz. 242, 255 (App. 1979). ¶17 The more natural reading of its statement is that the superior court was observing the evidence in the record. The statement does not explicitly add a requirement for Mikalacki to prove she first brought a contribution action to mitigate damages and establish ex-husband’s insolvency as a prerequisite to her malpractice claim. And we will not assume the court implicitly did so. Rather, the superior court was merely using the factual record before it to underscore that the basis for its grant of summary judgment was the absence of causally related damages attributable to Mihalovich’s negligence. See Simms v. Arizona Racing Commission, 262 Ariz. 170, ¶ 33 (2026) (we do not disturb factual findings on appeal). The superior court’s statement does not amount to reversible error. CONCLUSION ¶18 We affirm and award reasonable costs to Appellees upon compliance with ARCAP 21. A.R.S. § 12-341. MATTHEW J. MARTIN • Clerk of the Court FILED: JR 5