District Court, St. George Department The Honorable G.
Michael Westfall No. 150500584
Russell S. Walker, David R. Williams, and Anthony M. Grover,
Attorneys for Appellants
Michael F. Skolnick and Sarah C. Vaughn, Attorneys for
David N. Mortensen authored this Opinion, in which Judges
Kate A. Toomey and Jill M. Pohlman concurred.
Some people say time heals all wounds; in the law, time
often forecloses recovery. Monty and Kelly Moshier lost their
chance to collect all $874, 805.68 owed to them in a
bankruptcy proceeding when their attorney, Darwin C. Fisher,
failed to file a nondischargeability complaint by the
statutory deadline, December 29, 2010. Despite learning of
Fisher's malpractice by no later than March 2012, the
Moshiers waited until October 2015 to file a malpractice
lawsuit against him. The district court granted Fisher's
motion for summary judgment on the Moshiers' malpractice
claim on statute of limitations grounds. The Moshiers appeal
that decision. We affirm.
The Moshiers obtained a judgment against Allen and Laura
Cottam for fraud, misrepresentation, and punitive damages in
relation to the sale of a house. Thereafter, around September
23, 2010, the Cottams filed for bankruptcy. At about the same
time, the Moshiers retained Fisher to represent them in the
Cottam bankruptcy case. Fisher did not file the Moshiers'
nondischargeability claim until November 2011. The parties do
not dispute that the deadline for filing such a claim was
December 29, 2010. The bankruptcy court dismissed the
Moshiers' nondischargeability claim as untimely.
Fisher informed the Moshiers in March 2012 that he missed the
filing deadline for their nondischargeability complaint and
that the complaint had been dismissed. Fisher also told the
Moshiers that he had filed a claim with his malpractice
insurance on the Moshiers' behalf and suggested that they
retain new counsel. The Moshiers assert that they were under
the impression that they did not need to initiate any legal
action against Fisher because he had filed an insurance
claim. They also assert that they believed they would still
receive full payment of their judgment against the Cottams
through their proof of claim in the bankruptcy
proceeding because they thought their claim was fully
secured. The Moshiers' claim was eventually treated as
only partially secured, and they collected just $197, 660.36
of their $874, 805.68 judgment.
In the latter part of 2013, the Moshiers learned they would
not receive the full amount of their claim. The Moshiers
retained new counsel on June 17, 2014, to pursue a
malpractice claim against Fisher, but they did not file a
lawsuit against him until October 6, 2015.
Fisher filed a motion styled as a motion to dismiss or, in
the alternative, for summary judgment, which the district
court granted. The Moshiers appeal.
AND STANDARDS OF REVIEW
The Moshiers contend that the district court erred in
granting Fisher's motion for summary judgment because (1)
a six-year, rather than a four-year, statute of limitations
applies; (2) the statute of limitations did not begin to run
until it was clear that they would not receive the full
amount of their claim; and (3) the discovery rule applies,
which would delay triggering the statute of limitations.
Summary judgment is appropriate if "there is no genuine
dispute as to any material fact and the moving party is
entitled to judgment as a matter of law." Utah R. Civ.
P. 56(a). "This court reviews a [district] court's
legal conclusions and ultimate grant or denial of summary
judgment for correctness, and views the facts and all
reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party." Forsberg v. Bovis
Lend Lease, Inc., 2008 UT App 146, ¶ 7, 184 P.3d