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Moshier v. Fisher

Court of Appeals of Utah

June 7, 2018

Monty Moshier and Kelly Moshier, Appellants,
v.
Darwin C. Fisher, Appellee.

          Fifth 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 Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Kate A. Toomey and Jill M. Pohlman concurred.

          MORTENSEN, JUDGE.

         ¶1 Some people say time heals all wounds;[1] 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.

         BACKGROUND

         ¶2 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.

         ¶3 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[2] 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.

         ¶4 In the latter part of 2013, the Moshiers learned they would not receive the full amount of their claim.[3] 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.

         ¶5 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.

         ISSUES AND STANDARDS OF REVIEW

         ¶6 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, ΒΆ 7, 184 P.3d ...


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