District Court, Salt Lake Department The Honorable Ryan M.
Harris No. 150902953
A. Kirkham, Attorney for Appellant
A. Call and Robert T. Denny, Attorneys for Appellees Judge
Gregory K. Orme authored this Opinion, in which Judges Jill
M. Pohlman and Diana Hagen concurred.
Appellant Janae Kirkham appeals the district court's
grant of summary judgment in favor of Appellees Bryant J.
McConkie, David W. Read, and Strong & Hanni PC
(collectively, Law Firm). We affirm.
Kirkham retained Law Firm to represent her from 2007 to 2012
in post-divorce proceedings. In 2011, Kirkham's ex-
husband filed a petition to modify child support, seeking,
among other things, a tax exemption for the parties' only
remaining minor child. Law Firm did not file a counterpetition in
response. Subsequent disagreements emerged between Kirkham
and Law Firm over the tax exemption issue, prompting Law Firm
to withdraw as counsel. Kirkham continued pro se, and at the
conclusion of a trial, the district court granted her
ex-husband's petition. See Widdison v. Widdison,
2014 UT App 233, ¶ 2, 336 P.3d 1106.
Kirkham brought suit against Law Firm for legal malpractice,
breach of fiduciary duty, and breach of contract for failing
to file a counterpetition for increased child support. Both
sides in the malpractice action were provided a schedule of
due dates, requiring the disclosure of expert witnesses by
March 25, 2016. See generally Utah R. Civ. P.
26(a)(4)(A) (requiring disclosure of any witness "who is
retained or specially employed to provide expert
testimony"). Law Firm timely disclosed that it intended
to use an expert witness to testify that Law Firm did not
breach any standard of care or fiduciary duty or cause any
damages to Kirkham for failure to file a counterpetition.
Kirkham did not disclose any expert witnesses.
After the expert witness deadline passed, Law Firm moved for
summary judgment, arguing that Kirkham's claims should be
dismissed for failure to present expert testimony as evidence
that Law Firm breached the standard of care. The district
court granted summary judgment in favor of Law Firm,
determining that Kirkham failed to satisfy her burden of
proof by not designating an expert witness to prove the
essential elements of her legal malpractice claims. Kirkham
AND STANDARDS OF REVIEW
Kirkham contends that the district court improperly awarded
summary judgment to Law Firm. "Summary judgment is
appropriate only where there are no genuine issues of
material fact and the moving party is entitled to judgment as
a matter of law." Salt Lake City Corp. v. Big Ditch
Irrigation Co., 2011 UT 33, ¶ 18, 258 P.3d 539.
Accord Utah R. Civ. P. 56(a). "We review a
district court's grant of summary judgment for
correctness and afford no deference to the court's legal
conclusions." Big Ditch Irrigation Co., 2011 UT
33, ¶ 18. We also review for correctness the district
court's determination that an expert witness was required
for Kirkham to make her prima facie case. Clifford P.D.
Redekop Family LLC v. Utah County Real Estate LLC, 2016
UT App 121, ¶ 10, 378 P.3d 109.
Kirkham argues that the district court erred in granting
summary judgment to Law Firm on account of her failure to
designate an expert witness. She asserts that a
counterpetition is considered a compulsory counterclaim under
rule 13 of the Utah Rules of Civil Procedure and that the
jury could have easily understood through "a proper jury
instruction" that Law Firm's failure to follow rule
13 and file a counterpetition breached the attorney standard
Generally, "[i]f a defendant can show that the plaintiff
has no legally sufficient evidentiary basis for its claims at
trial, the defendant may establish the lack of a genuine
issue of material fact and an entitlement to judgment as a
matter of law." Salo v. Tyler,2018 UT 7,
¶ 31. Because Law Firm made the requisite initial
showing, Kirkham needed to present sufficient evidence on
each element of her negligence and breach of fiduciary duty
claims to survive summary judgment-including the attorney
standard of care. See Kilpatrick v. Wiley, Rein &
Fielding,909 P.2d 1283, 1290 (Utah Ct. App. 1996)
(breach of fiduciary duty elements); Harline v.
Barker,854 P.2d 595, 598 (Utah Ct. App. 1993)
(negligence elements). The district court ...