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March 20, 2026 Get Citation Alerts Download PDF Add Note

BELSANTI v. KUTAK ROCK

Court of Appeals of Arizona

• Citations: None known
• Docket Number: 1 CA-CV 25-0154

• Precedential Status: Non-Precedential

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (27K)

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Combined Opinion

                        by Michael S. Catlett

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

REGINA HELENE BELSANTI, Plaintiff/Appellant,

v.

KUTAK ROCK, LLP, et al., Defendants/Appellees.

No. 1 CA-CV 25-0154
FILED 03-20-2026

Appeal from the Superior Court in Maricopa County
No. CV2023-006738
The Honorable Jennifer C. Ryan-Touhill, Judge

VACATED AND REMANDED

COUNSEL

Hovore Law PLLC, Scottsdale
By F. Thomas Hovore, Anne L. Thompson
Co-Counsel for Plaintiff/Appellant

Robert G. Schaffer PLC, Scottsdale
By Robert G. Schaffer
Co-Counsel for Plaintiff/Appellant

Stinson LLP, Phoenix
By Jeffrey J. Goulder, James Camoriano, Michael Vincent
Counsel for Defendants/Appellees
BELSANTI v. KUTAK ROCK, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge D. Steven Williams and Judge Andrew M. Jacobs joined.

C A T L E T T, Judge:

¶1 Regina Belsanti (“Belsanti”) appeals the superior court’s grant
of summary judgment in favor of Kutak Rock, LLP (“Kutak”) and one of its
former attorneys, Michael Sillyman (“Sillyman”) (collectively,
“Defendants”). The court concluded her claims are barred under the
applicable statute of limitations, basing that decision partially on privileged
communications the court ordered her to disclose.

¶2 Belsanti’s legal malpractice and breach of fiduciary duty
claims are based on advice—allegedly negligent—she claims Sillyman gave
her in 2007 regarding a premarital agreement (“PMA”) she then entered
with her then-fiancé, now-ex-husband Gary McCracken (“McCracken”).

¶3 Because the court erred in granting discovery about Belsanti’s
privileged communications with her prior divorce counsel, and because her
claims did not accrue outside the limitations period, we vacate the
judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶4 We review a decision granting summary judgment for
Defendants, so we describe the facts in the light most favorable to Belsanti,
the non-moving party. See Gipson v. Kasey, 214 Ariz. 141, 142 ¶ 2 (2007).

¶5 Before marrying McCracken in March 2007, Belsanti retained
Kutak and Sillyman, who advised her on the terms of the PMA, including
how it would impact her marital community’s interest in McCraken’s
dermatology practice. During the marriage, McCracken grew that practice
from one office to nine—he then sold the practice in 2018 for millions of
dollars. Those who purchased the practice required Belsanti to sign a
spousal disclaimer of all ownership interest in the practice.

¶6 McCracken filed for divorce in May 2021. Belsanti retained
Dickinson Wright (“Dickinson”) to represent her in the divorce
proceedings. During those proceedings, Belsanti contested the PMA’s

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validity. The superior court at first found the PMA unenforceable. But after
McCracken moved for reconsideration, the court granted partial summary
judgment for McCracken, concluding the PMA was enforceable. A little
over a year later, Belsanti and McCracken settled their disputes, and the
court entered a consent decree of dissolution. The decree categorized the
entire medical practice as McCracken’s separate property.

¶7 On May 2, 2023, Belsanti brought this legal malpractice and
breach of fiduciary duty action against Defendants. She alleged Sillyman
negligently advised her that the PMA’s community property waiver
applied only to the practice as it existed at the time the PMA was signed,
and that she was not giving up any community interest in any expansion of
the practice beyond the assets addressed in the PMA. Belsanti claimed
damages “in excess of $15,000,000.”

¶8 Belsanti alleged that only during the divorce proceedings did
she become aware of the implications of the PMA—that it rendered all of
McCracken’s practice and the proceeds of its sale his separate property.
Defendants, on the other hand, contended Belsanti knew of the PMA’s
effects prior to May 2, 2021—outside the two-year limitations period.

¶9 Seeking evidence that Belsanti’s claim accrued earlier than
May 2, 2021, Defendants sought privileged communications between
Belsanti and Dickinson. Defendants argued these communications
contained “critical information concerning the date on which Plaintiff knew
or should have known of the facts giving rise to her present claims
. . . which bears directly on Defendants’ statute-of-limitations defense.”
They argued Belsanti “has put the timing of her knowledge of Dr.
McCracken’s PMA interpretation at issue” and thus “waived the privilege
on that topic.”

¶10 Belsanti objected to disclosure, arguing she did not
affirmatively place the privilege at issue by filing a complaint. She argued
Defendants were the ones putting her privileged communications at issue.

¶11 The court allowed Defendants to subpoena documents from
Dickinson, including “[a]ll advice to and communication with Plaintiff
regarding the validity, effect, or interpretation of the premarital
agreement.” The court reasoned that “because Plaintiff has argued that her
interpretation of the law controls, she cannot, contemporaneously, argue
that Defendants are precluded from obtaining evidence that may support
their contrary interpretation.”

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Decision of the Court

¶12 Defendants then moved for summary judgment, arguing
Belsanti’s claims were time barred because they accrued more than two
years before she filed them. Defendants argued Belsanti’s claims accrued
upon signing the PMA or upon marriage because that is when she suffered
damages. Alternatively, they argued Belsanti “knew or should have known
of the facts underlying her [claims] before May 2, 2021[.]” Defendants
alleged Belsanti’s financial advisor informed her of the possible
implications of the PMA. They also maintained that communications
between Belsanti and Dickinson demonstrated she “understood or should
have understood before May 2, 2021 that the PMA negatively affected her
rights to the medical practice sales proceeds.”

¶13 Belsanti opposed summary judgment, arguing her claims
were timely as a matter of law. But she argued that even if the court
disagreed with that argument, there were genuine issues of material fact
precluding summary judgment. As to the advice from her financial
advisor, Belsanti argued his declaration was hearsay, it lacked facts
showing she was put on notice, and it created fact questions because she
testified that she did not recall discussing the PMA with him before the
divorce. She also reiterated her objection to the Defendants’ use of her
privileged communications with Dickinson.

¶14 The court granted summary judgment for Defendants,
finding Belsanti’s claim accrued in 2007, contemporaneous with Sillyman’s
allegedly negligent representation. Alternatively, the court found multiple
events outside the statute of limitations period put Belsanti on “notice of
facts rising to alleged malpractice[.]” These included when “[t]he couple
moved assets into trust during their marriage (well before the divorce) and
in doing so affirmed the PMA,” when the couple “met with their financial
advisor in October 2020, and discussed the existence of the PMA and the
possible effect to Plaintiff[,]” and when Belsanti had privileged discussions
with Dickinson before May 2021. The court also concluded there were other
instances when Belsanti “could have sought legal advice to ascertain how
the PMA impacted [her] rights.” These included when McCracken opened
each subsequent dermatology office, when Belsanti attended a meeting
with a trust attorney, and when McCracken sold his practice and Belsanti
signed a disclaimer.

¶15 Belsanti timely appealed. We have jurisdiction. A.R.S. § 12-
2101(A)(1).

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DISCUSSION

¶16 Belsanti argues the superior court erred by ordering
production of privileged communications between her and Dickinson, that
her malpractice claims did not accrue until after the divorce proceedings
began, and that the superior court improperly resolved factual disputes and
made credibility findings at the summary judgment stage.

I. Privilege

¶17 Belsanti argues the superior court erred in ordering
production of privileged communications between her and Dickinson. We
agree.

¶18 We review de novo whether the attorney-client privilege
exists and whether a party has waived that privilege. State ex rel. Adel v.
Adleman, 252 Ariz. 356, 360 ¶ 10 (2022). The attorney-client privilege is
codified in Arizona. See A.R.S. § 12-2234(A). And it has bedrock
importance. See McGlothlin v. Astrowsky, 255 Ariz. 449, 456 ¶¶ 17–19 (App.
2023) (detailing the largely unchanged nature of the privilege over the past
several hundred years and its policy justifications); see also Hickman v.
Taylor, 329 U.S. 495, 512 (1947) (noting “the general policy against invading
the privacy of an attorney’s course of preparation is so well recognized and
. . . essential to an orderly working of our system of legal procedure”).

¶19 The first question we address is whether Belsanti “has
satisfied ‘the burden of making a prima facie showing that the privilege
applies to a specific communication.’” McGlothlin, 255 Ariz. at 457 ¶ 22
(quoting Clements v. Bernini, 249 Ariz. 434, 439–40 ¶ 8 (2020)). The parties
and the superior court seemed to agree that an attorney-client relationship
existed between Belsanti and Dickinson and that the communications
Defendants sought contained confidential legal advice. Because the issue
was not developed in the joint statement of discovery dispute or related
motions, and because the parties and the court focused only on waiver, we
assume the communications are privileged. That leaves only the question
whether Belsanti impliedly waived the attorney-client privilege. See
McGlothlin, 255 Ariz. at 460 ¶ 37.

¶20 A party seeking privileged communications must “prov[e]
waiver or demonstrat[e] a good faith basis for an exception.” Adleman, 252
Ariz. at 362 ¶ 21. Mere relevance and materiality do not suffice. State Farm
Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, 58 ¶ 15 (2000) (“[T]here is more than
relevance and materiality needed to find waiver, for communications with
counsel are almost always very relevant and material.”).

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Decision of the Court

¶21 Arizona has adopted the Hearn test, which applies three
criteria for finding implied waiver of the attorney-client privilege. See id. at
56–57 ¶¶ 10–11; Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975). The
three criteria are as follows:

(1) assertion of the privilege was a result of some affirmative
act, such as filing suit, . . . by the asserting party; (2) through
this affirmative act, the asserting party put the protected
information at issue by making it relevant to the case; and (3)
application of the privilege would have denied the opposing
party access to information vital to his defense.

Lee, 199 Ariz. at 56 ¶ 10.

¶22 Applying the three Hearn criteria, Belsanti did not impliedly
waive the attorney-client privilege. See id.; Hearn, 68 F.R.D. at 581. First,
Belsanti has not asserted the privilege through an affirmative act. To waive
the privilege, a litigant “must affirmatively ‘interject the issue of advice of
counsel into the litigation.’” Empire W. Title Agency, L.L.C. v. Talamante ex
rel. Cnty. of Maricopa, 234 Ariz. 497, 499 ¶ 10 (2014) (quoting Lee, 199 Ariz. at
62 ¶ 28) (cleaned up). Filing an action alone is not enough. Id.

¶23 In McGlothlin, after finding the plaintiff did not affirmatively
interject advice of counsel—he merely accused the defendant of
malpractice—we concluded he had not waived the privilege. 255 Ariz. at
461 ¶ 41, 463 ¶ 47. Instead, it was the defendant who raised issues
implicating plaintiff’s privileged communications to avoid or reduce
liability. Id. at 462 ¶ 43. But the defendant could not “use her defenses—
even if [plaintiff’s] claim is a ‘catalyst’ for those defenses—as a reason to set
[plaintiff’s] attorney-client privilege aside.” Id. (quoting Robert W. Baird &
Co. v. Whitten, 244 Ariz. 121, 126 ¶ 12 (App. 2017)).

¶24 In contrast, both Hearn and Lee involved defendants who
asserted defenses relying on their subjective knowledge based on legal
advice they received. Put another way, they used privilege as a “sword and
shield” by defending based on legal advice and then seeking to shield that
same legal advice from discovery.

¶25 Belsanti did not affirmatively put privileged communications
at issue by “merely filing an action” for legal malpractice. See Empire W.
Title Agency, 234 Ariz. at 499 ¶ 10. Her complaint alleges facts related to
Sillyman’s 2007 representation, and how that representation caused her
harm. Her claims do not “necessarily include[ ] the information received
from [her later divorce] counsel.” See Lee, 199 Ariz. at 62 ¶ 28. Her

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Decision of the Court

complaint did not rely on any advice she received from Dickinson or any
facts, theories, or legal interpretation related to communications with
Dickinson. It is Defendants who interjected the issue of Belsanti’s
communications with Dickinson. But Defendants cannot use their own
affirmative defenses (like the statute of limitations) to pierce Belsanti’s
attorney-client privilege. See McGlothlin, 255 Ariz. at 462 ¶ 43.

¶26 Defendants argue Belsanti “affirmatively injected the
limitations issue into the case in several ways.” In so doing, Defendants
conflate Belsanti putting at issue “the timing of her knowledge of the PMA’s
terms” with affirmatively interjecting advice of counsel. Defendants do not
argue—as is required for waiver—that Belsanti interjected advice of
counsel or a subjective interpretation of law. Belsanti did not argue, for
example, that her claims were timely because Dickinson did not advise her
to sue sooner. See id. at 462-63 ¶ 46. And because she did not make any
similar argument, Belsanti did not waive the attorney-client privilege.

¶27 For its part, the superior court concluded Belsanti waived the
privilege when she “argued her interpretation of the law controls,” while
also arguing “that Defendants are precluded from obtaining evidence that
may support their contrary interpretation.” But Belsanti never interjected
Dickinson’s advice. She did not rely on its advice to bolster her claims. She
did not use privileged communications between her and Dickinson as a
sword against Defendants. She merely used the privilege as a shield to
protect herself from having to produce confidential legal advice based on
issues Defendants raised through a statute of limitations defense.

¶28 Defendants also have not satisfied Hearn’s second and third
criteria. See Lee, 199 Ariz. at 56 ¶ 10; Hearn, 68 F.R.D. at 581. Belsanti did
not put privileged information at issue by making it relevant to the case.
The superior court thought that because Belsanti “has made issue of
Defendant Sillyman’s legal advice, and because Defendant Sillyman seeks
to defend himself (and the law firm) through, in part, a statute of limitations
defense, [Belsanti’s] discussions with [Dickinson] are relevant and not
privileged.” This misapplies implied waiver. Putting Sillyman’s legal
advice at issue is not the same as putting Dickinson’s legal advice at issue—
the latter was required to waive the privilege. Again, it was Defendants
who made Belsanti’s privileged communications relevant by advancing a
statute of limitations defense and hoping privileged communications
support it.

¶29 Applying the privilege also will not deny Defendants access
to information vital to their defense. True, applying the privilege may

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Decision of the Court

deprive them of documents helpful to their defense, but that is the nature
of the privilege. See Robert W. Baird & Co., 244 Ariz. at 128 ¶ 22. Defendants
have alternative avenues they can pursue (and have pursued) to prove
Belsanti’s claims accrued outside the statute of limitations, such as seeking
discovery about non-privileged material. In fact, Defendants argue they
were entitled to summary judgment even without the privileged
documents from Dickinson.

¶30 Because Belsanti did not impliedly waive the attorney-client
privilege with Dickinson, the court erred by allowing Defendants to use
those communications to support summary judgment. On remand, unless
and until Belsanti affirmatively interjects advice from Dickinson into this
litigation, her communications with that law firm cannot be used as
evidence.

II. Accrual

¶31 Belsanti argues her claims did not accrue until her divorce
was final, or alternatively, that disputed facts material to accrual precluded
summary judgment. We review de novo the entry of summary judgment,
viewing the evidence and reasonable inferences in the light most favorable
to the non-moving party (Belsanti). Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12
(2003). Summary judgment is appropriate when “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.” Ariz. R. Civ. P. 56(a).

A. Accrual Standard

¶32 The statute of limitations for legal malpractice and breach of
fiduciary duty is “two years after the cause of action accrues.” A.R.S. § 12-
542; Keonjian v. Olcott, 216 Ariz. 563, 565 ¶ 9 (App. 2007). “But the[ ] statutes
of limitation do not purport to define when a cause of action ‘accrues.’”
Glaze v. Larsen, 207 Ariz. 26, 29 ¶ 9 (2004). “Rather . . . that analysis has been
left to judicial decision.” Id.

¶33 A legal malpractice claim accrues when a claimant “discovers
the negligence and sustains ascertainable harm as a result of that
negligence.” Com. Union Ins. Co. v. Lewis and Roca, 183 Ariz. 250, 256 (App.
1995). This is known as the discovery rule. See id. at 254; Keonjian, 216 Ariz.
at 565 ¶ 9.

¶34 When malpractice occurs during litigation, the statute of
limitations does not accrue “until the appellate process is completed or is
waived by a failure to appeal.” Amfac Distrib. Corp. v. Miller, 138 Ariz. 152,

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Decision of the Court

154 (1983). This is because “[w]hile the underlying civil case is still pending
on appeal, the possibility always exists that the malpractice plaintiff will
eventually prevail in the civil litigation,” thereby avoiding harm from the
malpractice. Glaze, 207 Ariz. at 30 ¶ 15.

¶35 When malpractice occurs outside litigation (e.g., while
drafting a legal instrument), the statute of limitations does not run until a
plaintiff has suffered harm and knows or should have known that the harm
was a direct result of the attorney’s negligence. Com. Union, 183 Ariz. at
252–53. In other words, the discovery rule applies to all elements of a legal
malpractice claim—negligence, causation, and damages. Id. at 253.

¶36 Usually in the non-litigation context, “the damage or injury
occurs contemporaneously with the malpractice.” Id. at 256. This is true
when immediate harm is “irremediable or irrevocable[.]” Keonjian, 216
Ariz. at 566 ¶ 13. Occasionally, however, the harm is not irremediable or
irrevocable because “a future appeal or other court proceedings” might
enable the client to “avoid[]” harm. Glaze, 207 Ariz. at 30 ¶ 15 n.1. In that
situation, “the harm or damage resulting from the attorney’s negligence [is]
speculative and uncertain when the malpractice occur[s],” so the
malpractice claim does “not accrue until later.” Com. Union, 183 Ariz. at 255.

¶37 For the statute of limitations to run, mere harm is insufficient.
The client must also appreciate that harm has occurred and who caused it.
Id. at 256. So when an attorney’s advice constitutes “actionable negligence,
that is, malpractice in which the negligent act cause[s] immediate,
appreciable damage,” the statute of limitations begins to run. Id. On the
other hand, when “no appreciable, non-speculative harm or injury
immediately flow[s] from the negligent advice,” the statute does not run
until appreciable, non-speculative harm or injury occurs. Id. Put
differently, cognizable “’injury’ is not the mere undetected existence of
either a problem created by negligent legal advice or the continuance of the
problem.” Id. And “[t]he threat of future harm from [malpractice is] not
sufficient to commence the limitations period.” Id.

B. Application

¶38 To be timely, Belsanti’s causes of action had to accrue on or
after May 2, 2021—two years before she filed her complaint. See A.R.S. § 12-
542; Keonjian, 216 Ariz. at 565 ¶ 9. If her claims accrued as a matter of law
before that date, the statute of limitations bars her suit and summary
judgment was appropriate. See Keonjian, 216 Ariz. at 566 ¶ 16. We conclude
Belsanti’s claims did not accrue before May 2, 2021.

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Decision of the Court

¶39 Belsanti’s claims arise in a non-litigation context—advice
about the PMA. The superior court concluded Belsanti’s claims accrued in
2007, “when she received legal advice from [ ] Sillyman regarding the
PMA.” We think otherwise. There is no evidence Belsanti knew or should
have known that Defendants rendered deficient legal advice in 2007. There
is also no evidence that the PMA caused Belsanti any irremediable or
irrevocable harm in 2007 or that she knew it had done so. At most,
Defendants’ alleged malpractice created a problem for Belsanti, which
would not ripen into harm until future events unfolded.

¶40 When did those future events unfold? The controlling issue
is when Belsanti became aware or should have become aware that she
suffered irrevocable harm as a result of Defendants’ alleged malpractice.
See id. We conclude that occurred, at the earliest, during the divorce
proceedings between McCracken and Belsanti.

¶41 Belsanti claims Defendants gave erroneous legal advice about
the PMA in 2007. She alleges Defendants advised her regarding the PMA’s
community property waiver, particularly with respect to how it would
operate in the event of a sale of McCracken’s expanded medical practice
and a subsequent divorce. She contends Defendants advised that
everything during marriage would be community property, despite the
PMA saying that McCracken’s then-existing medical practice would remain
his separate property. For example, Belsanti executed a declaration stating
that “[a]t no time during the meeting, or after, did Sillyman advise me that,
pursuant to the terms of the PMA, upon dissolution of the marriage,
[McCracken] would be entitled to nearly all of the assets acquired during
the marriage.” (Emphasis added).

¶42 So Belsanti’s claims center on advice about what would
happen to property in the event of dissolution. That advice, therefore, was
not implicated until Belsanti or McCracken petitioned to dissolve their
marriage. McCracken first served Belsanti with a petition to dissolve their
marriage on May 19, 2021. Because that date falls after the May 2, 2021,
cutoff for accrual, Belsanti’s claims are timely unless the divorce
proceedings are irrelevant to accrual. We conclude they are relevant.
Before McCracken petitioned for divorce, Belsanti could not know she
would ever suffer harm as a direct result of Defendants’ advice about how
property would be treated under the PMA upon dissolution of the marriage.

¶43 But even after McCracken petitioned for divorce, Belsanti
could not have known that Defendants’ advice was the actual cause of any
harm because McCracken did not immediately move to enforce the PMA.

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Decision of the Court

That occurred in August 2021, when McCracken moved for summary
judgment. Only after McCracken did so and took the position that under
the PMA all assets traceable to his medical practice were his sole and
separate property could Belsanti have some idea that Defendants’ advice
might have caused her harm.

¶44 Even then, any harm from Defendants’ advice was not yet
irremediable or irrevocable because future court proceedings could have
enabled Belsanti to avoid harm. See Glaze, 207 Ariz. at 30 ¶ 15 n.1; Com.
Union, 183 Ariz. at 255-56; CDT, Inc. v. Addison, Roberts & Ludwig, C.P.A.,
P.C., 198 Ariz. 178 -79 ¶¶ 20-21 (App. 2000). Specifically, Belsanti challenged
the enforceability of the PMA, and had she succeeded, it would have
alleviated any harm from Defendants’ advice. At first, the superior court
agreed with Belsanti and concluded the PMA was unenforceable. But
Belsanti’s victory was short-lived. McCracken moved for reconsideration,
which the court granted on June 3, 2022.

¶45 After the court concluded the PMA was enforceable, Belsanti
still had one more avenue for avoiding harm—she could argue that the
court should interpret the PMA consistent with her understanding. In her
response to McCracken’s motion for partial summary judgment on the
PMA’s enforceability, Belsanti reserved her argument about how the PMA
should be interpreted. Instead of continuing to fight, however, Belsanti
entered into a settlement agreement with McCracken, under which
McCracken’s interest in the medical practice would be his sole and separate
property. The parties notified the court of the settlement on July 31, 2023,
and the court entered a consent decree of dissolution on September 20, 2023.

¶46 Because the divorce proceedings were relevant to accrual,
Belsanti’s claims could not have accrued any earlier than May 19, 2021,
when McCracken served her with divorce papers. And because May 19,
2021, occurred within two years of Belsanti filing her claims in this lawsuit,
those claims were timely.

¶47 The superior court concluded Keonjian governs here, and
Defendants urge the same on appeal. But this case is not like Keonjian.
There, the plaintiff suffered harm immediately upon signing a negligently
drafted property deed and gift letter. Keonjian, 216 Ariz. at 566 ¶ 13. The
deed immediately deprived her of property rights and the letter
immediately deprived her of any right to reimbursement over $300,000. Id.
Moreover, her harm was “irremediable or irrevocable . . . because ‘a future
appeal or other court proceedings’ would not have enabled her to [remedy
the harm].” Id. (quoting Glaze, 207 Ariz. at 30 ¶ 15 n.1). Finally, the plaintiff

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admitted in a deposition that occurred more than two years before bringing
her malpractice action that she knew her lawyer was to blame for her harm.
Id. at ¶ 15 (“My lawyer is supposed to tell me: Stop, it’s not what you want
to be done. But I thought he knew better. He’s a lawyer.”).

¶48 Defendants also point to several other events that occurred
before Belsanti’s divorce proceedings and argue those events triggered
accrual. We disagree they did so.

¶49 First, Defendants point to privileged communications and
deposition testimony about privileged information as evidence Belsanti
had actual knowledge of the PMA’s consequences before May 2021. As
explained, the superior court should not have found implied waiver of the
attorney-client privilege and allowed Defendants to use privileged
information as evidence. Supra ¶¶ 17–30. So we will not consider any
privileged information in deciding whether Belsanti’s claims were timely.

¶50 Second, Defendants maintain that, shortly before the divorce
proceedings, Belsanti’s wealth manager put her on actual notice that the
PMA could negatively affect her rights. Defendants submitted a
declaration from this wealth manager. In it, he explains that in April 2021,
Belsanti presented him with a list of assets and asked, “what her rights
would be in those assets upon [] divorce.” He says he told Belsanti “that
she may have no interest in the assets listed, depending on the provisions of the
PMA.” That a wealth manager told Belsanti that she “may” not have an
interest in certain assets “depending on the provisions of the PMA” is
insufficient to show that Belsanti should have known that Defendants had
directly caused her irremediable and irrevocable harm with their advice
about the PMA. See Com. Union, 183 Ariz. at 252–53; Glaze, 207 Ariz. at 30
¶ 15 n.1.

¶51 Third, Defendants rely on a declaration Belsanti executed
during the divorce proceedings describing a meeting she and McCracken
had with a trust attorney in 2017. The declaration is not in the superior
court record, but Defendants ask us to take judicial notice of it. We will not
do so. See Scottsdale Mem’l Health Sys. v. Clark, 157 Ariz. 461, 468 (1988)
(“Arizona courts may not take ‘judicial notice’ of the truth of an evidentiary
record in another action tried in the same court.”). In any event, it is
difficult to see how it helps Defendants’ position that Belsanti claimed in
the declaration that she and McCracken were told that a trust they formed
“acted to abolish [the PMA] as to the assets placed in the trust” and that it
was unnecessary to modify the PMA because the trust “would supersede
any prior agreement and the [PMA] would be of no effect.”

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¶52 Fourth, Defendants point to McCracken’s 2018 sale of the
dermatology practice and the accompanying spousal disclaimer Belsanti
signed. In that disclaimer, Belsanti acknowledged that McCracken had a
membership interest in a company called Center For Dermatology, PLLC
and that his membership interest “has at all times in the past been, is now
and will in the future remain [his] sole and separate property[.]” She also
acknowledged that the membership interest “may be increased in the
future through a capital contribution of sole and separate property” and
that she had no right to the membership interest or “to any profits, gains,
[or] income . . . now or hereafter received[.]” And she disclaimed any
community property interest only “in any compensation received by my
spouse from the [c]ompany for personal services rendered[.]”

¶53 The spousal disclaimer cannot bear the weight Defendants
place on it. That Belsanti acknowledged both that McCracken had a sole
and separate ownership interest in the company and that she had no right
to current or future profits or any community property interest in
McCracken’s compensation does not reveal what impact the PMA would
have in future divorce proceedings. For example, even with Belsanti
disclaiming any formal ownership interest in certain sole and separate
property, in later divorce proceedings, the marital community could
ordinarily claim an equitable apportionment of any increase in the value of
that property. See Cockrill v. Cockrill, 124 Ariz. 50, 52 (1979); Honnas v.
Honnas, 133 Ariz. 39, 40 (1982). Whether the PMA would prevent the
community from doing so remained unknown until McCracken sought to
dissolve the marriage and enforce the PMA.

¶54 Lastly, Defendants argue Belsanti was generally on notice to
investigate how the PMA treated each additional dermatology office
McCracken opened during the marriage. The superior court wrote that
“[n]othing prevented [Belsanti] from seeking to modify the PMA and/or
clarify whether the additional offices would be separate or community
property once [she] and Dr. McCracken began expanding the medical
practice.” But the pertinent question is not whether Belsanti could have
taken additional steps to minimize harm from the PMA. The relevant
question is this: when should Belsanti have known that Defendants’ advice
about how the PMA would impact future divorce proceedings had directly
caused her irremediable and irrevocable harm? Com. Union, 183 Ariz. at
252–53; Glaze, 207 Ariz. at 30 ¶ 15 n.1. As explained, that occurred no earlier
than when McCracken petitioned for dissolution and began enforcing the
PMA in a manner inconsistent with Defendants’ alleged advice.

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BELSANTI v. KUTAK ROCK, et al.
Decision of the Court

¶55 Because Belsanti filed her claims within two years of them
accruing, those claims were timely.

III. Estoppel

¶56 We agree with the superior court that summary judgment for
Defendants was not required because “the family court found that
[Belsanti] failed to show she had inadequate representation at the time she
entered the PMA[.]” The court was correct that a “cursory finding
regarding competency” does not “equate[ ] to lack of malpractice.”

IV. Waiver

¶57 Defendants argue that by affirming in the 2018 disclaimer that
“she would not claim property rights in the medical practice in the
future[,]” Belsanti “cannot maintain an action for damages arising out of
the value of that property interest.” Defendants conflate property rights in
a medical practice with both (1) equitable rights a marital community may
have in the increased value of sole and separate assets and (2) the right to
seek tort damages for unrelated negligence.

¶58 We therefore disagree with the superior court that the 2018
disclaimer “forfeited any potential damages due to Defendant Sillyman’s
alleged negligence and, regardless of the outcome of the divorce, the
(negligence) damages no longer existed.” Nothing in the disclaimer related
to waiver of tort claims against Defendants, nor were they parties (or third-
party beneficiaries) to the 2018 disclaimer. And while the 2018 disclaimer
may be relevant to Belsanti’s malpractice claims, we disagree that it “shows
that [Belsanti] understood and agreed to the terms of the PMA, which then
means Defendant Sillyman was not negligent[.]” By signing the 2018
disclaimer, Belsanti did not waive any right to sue Defendants for
professional malpractice and breach of fiduciary duty arising out of
negligent advice about how the PMA would impact the marital community
in future dissolution proceedings.

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BELSANTI v. KUTAK ROCK, et al.
Decision of the Court

CONCLUSION

¶59 We vacate the judgment and remand for proceedings
consistent with this decision.

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

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