United States District Court, D. Utah, Central Division
DENTAL2U, LLC, an Ohio limited liability company, and PAUL GRANZIER, an individual, Plaintiffs,
LORIN C. BARKER, an individual; KENNETH W. BIRRELL, an individual; and KIRTON MCCONKIE, P.C., a Utah professional corporation, Defendants.
CAMPBELL U.S. District Court Judge
and its principal, Paul Granzier, Plaintiffs,  are in the
business of providing mobile dental care to residents of
nursing homes. In 2012, Dental2U retained the law firm of
Kirton McConkie and two of its attorneys. What specific
legal work Dental2U asked Kirton to do is disputed. Dental2U
later sued Kirton for legal malpractice, asserting claims of
negligence and breach of fiduciary duty. Kirton has moved for
summary judgment on all claims.
reasons set forth below, the court grants in part with
prejudice and denies in part without prejudice Kirton's
motion for summary judgment against Dental2U and grants
Kirton's motion for summary judgment on Mr.
must grant summary judgment when the moving party
“shows that there is no genuine dispute as to any
material fact” and that party “is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Summary judgment should not be granted “if the dispute
about a material fact is ‘genuine,' that is, when
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Birch
v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir.
2015). A factual dispute is genuine when “there is
sufficient evidence on each side so that a rational trier of
fact could resolve the issue either way.” Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998). The court must draw all reasonable inferences from the
record in favor of the nonmovant. Id.
I. Kirton's Motion for Summary Judgment for Failure
to Designate an Expert
contends that because Dental2U has failed to designate
experts to testify about the standard of care that Kirton
allegedly breached or about what harm Dental2U suffered as a
result of Kirton's alleged breaches, Dental2U cannot
establish the necessary elements of its claims and Kirton is
entitled to summary judgment.
Dental2U responds that its “claims against [Kirton]
rise and fall on the simple question of whether defendants
agreed to do certain legal research that defendants admit
they did not do.” (Pls.' Mem. in Opp'n to
Defs' Mot. for Summ. J. Re: Failure to Designate Experts
at 2, ECF No. 80.)
maintains that the question of causation is similarly simple
and does not require expert testimony. Because Kirton did not
do the research it had agreed to do, “the Louisiana
department of insurance shut down plaintiffs' business in
Louisiana . . . .” (Id. at 3.) Dental2U
concludes its response: “And, in cases such as this
one, where it is clear it is not beyond the understanding of
a lay person to understand that having to cease doing, and
therefore losing their, [sic] business in Louisiana was
proximately caused by defendants' malpractice, expert
testimony on the issue of proximate cause is not
required.” (Id. at 17.)
has represented in its response that its claim of breach of
the standard of care focuses only on Kirton's alleged
failure to do the research it promised to do and that the
only harm Dental2U claims was caused by Kirton was the loss
of Dental2U's business in the state of Louisiana (as
opposed to loss of business in other parts of the United
States). Because the court finds that expert witness
testimony is not necessary to decide those two issues, the
court denies Kirton's motion, without prejudice, as to
those narrow aspects of Denta2U's case. But summary
judgment is granted to Kirton on all other claims or issues,
that is, negligence and breach of fiduciary duty not related
to the alleged failure to do the agreed-upon research.
party may file a motion for summary judgment on the question
of failure of proof on or before July 23, 2018. Oppositions
and replies will be due as set forth in Local Rule 7-1 of the
Rules of Practice for the United States District Court for
the District of Utah.
Kirton's Motion for Summary Judgment on Paul
Granzier, in his personal capacity, alleges legal malpractice
against Kirton. Kirton argues that the court should grant
summary judgment on Paul Granzier's claims for negligence
and breach of fiduciary duty because only ...