Mark M. Deatherage


Mark M. Deatherage

Mark has been representing business and individual clients in commercial litigation for 28 years.  He has experience and expertise in a wide variety of commercial cases, and enjoys rolling up his sleeves and learning the details of his clients’ businesses so he can better represent them. Mark believes that the primary purpose of litigation should be to strategically position the client to leverage a highly favorable settlement. When a case can’t settle, he brings extensive trial experience to bear, having successfully tried cases before judges and juries throughout Arizona and in other states. Mark views handling a lawsuit as a partnership with the client, working together to develop and present the case in a cost-effective and persuasive manner.

Representative Experience

Mark has worked with a great diversity of clients on a vast array of commercial litigation matters, some examples of which are summarized below:

When a cardiology practice group in Phoenix believed that a hospital chain had severely underpaid for the fair market value of the services it had provided at two hospital cath labs, Mark and his partner Bob Boatman brought suit and tried the case to an arbitration panel, against a top litigation partner from a Boston-based national law firm. Our client believed it was owed an additional $11 million over two years, while the hospital chain contended it only owed somewhere between zero and $1.7 million and offered nothing in settlement.  Working with an expert health care services valuation firm, Mark and Bob’s work at the arbitration trial and in extensive post-hearing briefing resulted in an award of nearly $15 million, which included not only $9.4 million in damages but an additional $6 million for prejudgment interest, costs, and attorneys’ fees – all of which the hospital chain ultimately paid in full.

In an intra-family dispute over the ownership of several million dollars worth of properties and a partnership interest related to a group of medical practices, Mark and his colleague Tim Overton obtained judgments awarding virtually all of the properties and the partnership interest to our client, plus an award of more than $900,000 in damages and attorneys’ fees. The bulk of the successful award was the result of a four-week trial to both a jury and the court, and in part the result of a successful summary judgment proceeding regarding the disputed partnership interest.

After a national retail chain sold its event ticket sales subsidiary to a start-up business, it tried to remedy a subsequent default of the buyer by withholding nearly $1 million of ticket revenues it had collected on behalf of the Arizona Diamondbacks and the Phoenix Suns Arena Partnership.  Mark brought suit on behalf of those two professional sports organizations, tried the case to a Phoenix judge, and obtained a judgment for the full amount that had been withheld plus prejudgment interest and attorneys’ fees.  Represented by a team of lawyers from several of its national firm offices, the defendant challenged the judgment in the Arizona appellate courts, in the buyer’s California bankruptcy case, in the Ninth Circuit, and to the United States Supreme Court.  After successfully defending the judgment against all of those challenges, the retail chain ended up paying our clients nearly double the actual amount they had withheld in the first place.

Mark handled a quiet title action in Colorado over a disputed 49% share of uranium mineral rights worth about $10 million.  As the result of the result of a discovery and legal research plan that led to a comprehensive and complex summary judgment motion, the client was able to leverage a mediated settlement that enabled him to retain full title to the 49% interest in exchange for a nominal payment of $50,000 and a small future royalty interest.

Handling a pro bono case for the Phoenix-based Volunteer Lawyers Program, Mark and a former partner took on the challenge of representing a pair of Latino brothers who had been defrauded out of their home of 17 years in a classic foreclosure rescue scam.  When one of the defendants filed for bankruptcy and the other refused to take responsibility, Mark and his partner tried the case for two weeks to a jury.  The primary purpose was achieved when they procured a ruling that returned the house to their clients, and the meeting where they surprised their clients with the keys to the house was the highlight of the case.  The jury’s award of nearly $750,000 in actual, treble, and punitive damages was icing on the cake.

Mark procured a $437,500 award and recovery for an entrepreneur client in a two-day arbitration for breach of fiduciary duty and punitive damages against a co-shareholder representative in disputes arising out of a prior corporate merger agreement and an underlying lawsuit and settlement that had occurred before the client brought the case to Gallagher & Kennedy.

Through substantial maneuvering on substantive and procedural grounds, Mark positioned a long-time real estate development client of the firm to settle a $4 million + post-foreclosure deficiency lawsuit that had been brought against him and his co-guarantors for $130,000.

When our Minnesota-based client in the business of updating cabling and hardware technology in retail stores was sued by a subcontractor for $125,000 in work it claimed it had performed, Mark persuaded the judge in a three-day trial to award less than $3,000.  And, because Mark and his client had earlier made a written settlement offer for more than the amount awarded, they took advantage of the amended attorneys’ fee statute, persuaded the court that the client was actually the successful party, and obtained an award of $70,000 in attorneys’ fees against the plaintiff.

When our client’s teaching award endowment to the business college of a major university had been mismanaged and underfunded over the course of several years, Mark and the client worked with the university’s new foundation management to fully restore the awards, not only for the future but even retroactively.  The client’s partnership with the university is now back on an extremely positive track and the student-voted awards program is highly popular with the professors and their business students.

A rural electric coop turned to Mark and his partner Mike Grant after a southeast Arizona municipality used a poorly-worded 60-year old contract to cherry-pick a $500,000 per year electric service retail contract from the coop.  In a case that turned on highly-contested definitions of the word “upon,” Mark and Mike obtained a permanent injunction that restored the service contract to the coop, and worked with the client to leverage the injunction ruling into a more favorable and stable contract with the municipality on a going-forward basis so that future litigation could be avoided.

Mark and his partner Kevin O’Malley represented the State of Arizona in defending its award of a $500 million health insurance contract to a new carrier, against a bid protest challenge brought by the incumbent carrier.  Following a multi-week administrative law trial and extensive briefing on a variety of procurement law issues, the State’s award of the contract was upheld and the bid protest was denied.

Defending a golf tee-time company against wrongful termination and stock ownership claims filed by its former president, Mark developed the case to the point where the client was able to negotiate a highly favorable resolution in a settlement conference with a federal magistrate.  The settlement enabled the client to completely severe ties with the former president and move forward unencumbered by the stock position he had held or any other interference from him.

Mark pursued a surveyor negligence case on behalf of a client who had purchased 56 acres of land in central Arizona and then discovered the existence of substantial development-impairing underground utilities that had not been disclosed on the surveys.  Following extensive litigation and discovery, and on the eve of trial, the case was settled for essentially 100% of the defendant’s available insurance policy limits.

In a case for a professional sports team owner arising out of one of his Arizona real estate ventures, Mark obtained a half-million dollar settlement from a lease guarantor who had attempted to leverage deficiencies in the execution of the guarantee and other defenses.

Bar & Court Admissions

  • Arizona, 1985
  • U.S. Court of Appeals, Ninth Circuit, 1985
  • U.S. Supreme Court, 2006

Associations & Memberships

  • State Bar of Arizona, Member
  • National Institute of Trial Advocacy, Deposition Skills Program
  • PGA, Southwest Section, Board Member
  • Phoenix Boys Choir, Board of Trustees

Honors & Awards

  • AV Preeminent Peer Review Rating, Martindale-Hubbell
  • Best Lawyers in America®, Commercial Litigation, 2011-2021; Litigation - Real Estate, 2017-2021
  • Southwest Super Lawyers®, Commercial Litigation, 2011-2014
  • Arizona's Finest Lawyers, 2011
  • "Lawyer of the Month," Volunteer Lawyers Program

Published Works

  • Ins and Outs of Foreclosure, State Bar of Arizona, Chapters on Arizona Deficiency Laws and on Guarantors’ Liabilities
  • Arizona's Deficiency Laws, (Co-Author), Arizona Attorney 23, 1992
  • Problem Loans in Arizona, 1988 (Co-Author), Advanced Real Estate Law in Arizona, 1991
  • Articles, Kansas Law Review
  • Copyright Protection for Architectural Works

Speaking Engagements

  • Top IP Mistakes Companies Make, 2014 Arizona Bar Convention
  • Ins and Outs of Foreclosure, State Bar of Arizona
  • Problem Loans in Arizona
  • Trustee’s Sale Update
  • Advanced Real Estate Law in Arizona
  • Fundamentals of Foreclosure, Collection and Lease Enforcement Law
  • The Use of Appraisers in Litigation
  • Arizona Professionalism Course
  • National Institute of Trial Advocacy, Deposition Skills Program, 2005-Present