Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kirkham v. McConkie

Court of Appeals of Utah

June 1, 2018

Janae Kirkham, Appellant,
v.
Bryant J. McConkie, David W. Read, and Strong & Hanni PC, Appellees.

          Third District Court, Salt Lake Department The Honorable Ryan M. Harris No. 150902953

          Larry A. Kirkham, Attorney for Appellant

          Keith 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.

          OPINION

          ORME, JUDGE

         ¶1 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.

         BACKGROUND

         ¶2 Kirkham retained Law Firm to represent her from 2007 to 2012 in post-divorce proceedings.[1] 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.[2] 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.

         ¶3 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.

         ¶4 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 appeals.

         ISSUE AND STANDARDS OF REVIEW

         ¶5 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.

         ANALYSIS

         ¶6 Kirkham argues that the district court erred in granting summary judgment to Law Firm on account of her failure to designate an expert witness.[3] 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 of care.

         ¶7 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.