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Kirkham v. Widdison

Court of Appeals of Utah

June 6, 2019

Janae A. Kirkham, Appellant,
Jamie Widdison, HRB Tax Group, Grace Hansen, Bonny Widdison, and Alpine Gardens Inc., Appellees.

          Third District Court, Salt Lake Department The Honorable Andrew H. Stone No. 150902366

          Janae A. Kirkham, Appellant Pro Se

          Suzanne Marelius, Attorney for Appellees Jamie Widdison and Bonny Widdison

          Sean N. Egan, Anthony J. Durone, and Timothy West, Attorneys for Appellees HRB Tax Group and Grace Hansen

          Jonathan O. Hafen and Jeffery A. Balls, Attorneys for Appellee Alpine Gardens Inc.

          Judge David N. Mortensen authored this Opinion, in which Judge Diana Hagen concurred. Judge Michele M. Christiansen Forster concurred, except that as to section VI, she concurred only in the result.


          MORTENSEN, Judge

         ¶1 Appellant Janae A. Kirkham appeals-for the fourth time[1]-issues arising from claims that she alleges occurred during the litigation of a petition to modify in a separate divorce proceeding. Kirkham argues that the trial court erred by (1) granting a rule 12(b)(6) motion to dismiss four of her claims, (2) granting a rule 12(c) judgment on the pleadings dismissing one of her claims, (3) dismissing her remaining claims on summary judgment, (4) granting a motion to disqualify her attorney, (5) granting a protective order under rule 37 of the Utah Rules of Civil Procedure, and (6) awarding attorney fees and costs pursuant to Utah Code section 78B-5-825. We affirm.


         ¶2 In 2011, Jamie Widdison sought a modification of his and Kirkham's divorce decree, which would, among other things, allow him to retroactively claim a tax exemption for the parties' minor child-whom Kirkham had previously claimed. During those proceedings, Kirkham produced copies of her tax returns for the years 2009, 2010, and 2011 (Tax Returns). According to Kirkham's second amended complaint (Complaint), Widdison and his wife Bonnie Widdison (collectively, Widdisons) received the Tax Returns from their attorney and used Alpine Gardens Inc.'s fax machine to send those copies to HRB Tax Group and its employee, Grace Hansen (collectively, HRB). HRB used the Tax Returns to prepare pro forma returns (Pro Forma Returns)[2] demonstrating the potential impact to Kirkham's tax liability without the child exemption. The Pro Forma Returns were offered as exhibits in hearings before a commissioner and the trial court.

         ¶3 Based on the Pro Forma Returns, the commissioner determined that the parties' collective tax liability would be lowered by allowing Widdison to claim the child exemption. Widdison proposed that if Kirkham filed the Pro Forma Returns, he would pay Kirkham the difference in any tax that would be assessed to her as a result. The commissioner, however, certified the issue to the trial court when Kirkham would not agree. The commissioner noted that Kirkham "had no explanation for her position, particularly where it would cost her nothing."

         ¶4 The trial court agreed with the commissioner that Widdison would realize a greater tax benefit from the exemption than Kirkham. On October 10, 2012, the trial court entered a written order authorizing Widdison to claim the child exemption for tax years 2009 through 2012. The court also ordered Kirkham to sign and file the Pro Forma Returns as well as IRS Form 8332, which authorized Widdison to claim the child exemption for those years (Amended Returns). Finally, the court ordered Widdison to reimburse Kirkham any difference in taxes owed by Kirkham as a result of filing the Amended Returns. Kirkham timely appealed the trial court's order.[3]

         ¶5 While the modification appeal was pending, Kirkham refused to sign and file the Amended Returns.[4] On December 11, 2012, the commissioner held an order to show cause hearing and again ordered Kirkham to sign and file the Amended Returns. Kirkham, again, refused. On January 10, 2013, the commissioner ordered the clerk of the court to sign IRS Form 8332 on behalf of Kirkham[5]-effectively authorizing the Widdisons to file their amended returns with the child exemption.

         ¶6 On January 18, 2013, Kirkham's Amended Returns were filed and received by the IRS. Kirkham alleged in her Complaint that the "amended tax returns for the years 2009, 2010 and 2011 in [Kirkham's] name were filed by [the Widdisons] and HRB." However, Kirkham conceded two points. First, after HRB argued that it "did not and cannot file amended returns even if they are final" because "[a]mended returns cannot be filed electronically," Kirkham conceded that "[HRB] didn't file the amended returns." Second, when the court later asked Kirkham, "Who filed the returns?" Kirkham replied, "Widdison did." As discussed below, infra ¶ 13, Kirkham was ultimately unable to produce any evidence that Widdison, or any other defendant, filed the returns.

         ¶7 In October 2014, this court vacated the modification order and remanded with instructions to make additional findings on whether shifting the child exemption was justified. See Widdison v. Widdison, 2014 UT App 233, ¶ 21, 336 P.3d 1106. But prior to the remand trial, "the parties fully resolved all claims arising from their 2009, 2010 and 2011 tax returns," and therefore the court did not address that issue. On remand, the trial court reinstated the original modification order and found that the "allocation of tax dependent exemptions [was] consistent with Utah law . . . [and] the ruling was an equitable, fair and reasonable way to distribute the tax benefit in this case." The trial court found Kirkham in contempt of the 2012 modification order for refusing to sign and file the Amended Returns and for obstructing Widdison's ability to comply with the order by "frustrating [his] efforts to compensate her." The court also found that due to Kirkham's contempt, Widdison "had to file his amended tax returns on his own with an 8332 form in the absence of [Kirkham's] amended return being filed. This led to [Kirkham's] tax return for 2012 being seized. . . . [And] this [was] due to [Kirkham's] own lack of cooperation." Finally, the court awarded Widdison costs and attorney fees arising from Kirkham's contempt.[6]

         ¶8 Kirkham filed this lawsuit against the Widdisons, HRB, and Alpine (collectively, Appellees), alleging that Appellees' role in preparing the Pro Forma Returns and filing the Amended Returns gave rise to various claims. Specifically, Kirkham raised claims for tortious conversion against all Appellees (Claim 1); civil conspiracy against all Appellees (Claim 2); invasion of privacy against all Appellees (Claim 3); violation of the Utah Consumer Sales Practices Act (UCSPA) against HRB (Claim 4); violations of the UCSPA-Unconscionability against HRB (Claim 5); intentional infliction of emotional distress (IIED) against all Appellees (Claim 6); and breach of fiduciary duty against HRB and Widdison (Claim 7).

         ¶9 During discovery, HRB moved to have Kirkham's attorney disqualified.[7] HRB argued that Kirkham's attorney had obtained employment with HRB without disclosing that he represented Kirkham, who intended to sue HRB. Further, HRB argued that Kirkham's attorney had taken at least one confidential document from HRB during his employment, which he intended to use in the suit against HRB. The trial court granted HRB's motion to disqualify, finding that (1) the "likelihood of public suspicion or obloquy outweighs the social interest in allowing [Kirkham's attorney] to continue to represent [her]"; (2) because Kirkham "has filed this action as a Tier 3 action and seeks extensive punitive damages," "it is likely that [she] will be able to obtain substitute counsel"; and (3) "the ongoing harm to public confidence and to [HRB] in allowing [Kirkham's attorney] to continue to represent [Kirkham] outweighs the minimal harm to [her] in having to obtain substitute counsel."

         ¶10 HRB also moved the trial court to enter a protective order governing discovery. Kirkham objected, but rather than offering any alternative language to the proposed protective order, she requested that the court not enter the order at all. The trial court rejected Kirkham's objection, finding that "the order has procedure in it for designating documents as well as objecting to designations" and that "the order as prepared is an ordinary and customary protective order in commercial cases."

         ¶11 Next, the Widdisons moved pursuant to rule 12(b)(6) to dismiss Claims 1, 2, 3, 6, and 7-or in other words, Kirkham's entire Complaint as against them. Simultaneously, HRB moved pursuant to rule 12(b)(6) to dismiss Claims 1, 3, 6, and 7. The trial court granted both motions, excepting Claim 2 against the Widdisons. In a seven page memorandum decision, the trial court made the following conclusions with respect to each dismissed claim:

• Claim 1 (Tortious Conversion)-that "intangible property such as knowledge of Kirkham's tax status is not property that can be converted"-and "[e]ven if such an intangible interest were subject to conversion . . . Kirkham was never deprived of its use."
• Claim 3 (Invasion of Privacy)-that "Kirkham's counsel made clear that this claim is brought based on misappropriation of name or likeness" and "[s]he alleges no 'intrinsic value' of her name" as required by Utah law. And Kirkham's argument that "every name has intrinsic value . . . is simply legally incorrect." (Cleaned up.)
• Claim 6 (IIED)-that the Widdisons' conduct and HRB's conduct, as alleged, does not, as a matter of law, constitute such extreme conduct to state a claim for IIED. Further, Kirkham's allegations show that she views "the modification proceeding as one long pattern of [IIED]"-and under Utah law, "[a]n allegation of improper filing of a lawsuit or the use of legal process against an individual is not redressable by a cause of action for [IIED]." (Citing Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶ 66, 70 P.3d 17.)
• Claim 7 (Breach of Fiduciary Duty)-that Widdison "is not a fiduciary for Kirkham . . . by virtue of his status as a law enforcement officer."[8] And similarly, HRB, "by contracting with [Widdison] and or his attorney, did not become fiduciaries to Kirkham."

         ¶12 HRB then moved the trial court, pursuant to rule 12(c), to dismiss Claims 2 (Civil Conspiracy), 4 (Violation of UCSPA), and 5 (Violation of UCSPA-Unconscionability). At the hearing for this motion, HRB argued that it "did not and cannot file amended returns even if they are final," because "[a]mended returns cannot be filed electronically." Kirkham then conceded, "[HRB] didn't file the amended returns." The court granted the motion, finding that HRB did not violate "26 U.S.C. § 7216 or any other IRS regulation or tax law in preparing the [Pro Forma Returns]," nor did it violate "U.C.A. §§ 76-6-1102 or 76-6-1105 or . . . the [UCSPA]."[9] And thus, "[t]here was not an unlawful overt act committed by [HRB] upon which liability under a civil conspiracy theory could rest, nor has [Kirkham] pleaded any such act." Further, the court found that Kirkham failed to establish that HRB proximately caused her alleged damages, because she had been ordered to file the Amended Returns in the modification proceeding and refused to do so.

         ¶13 Finally, Alpine and the Widdisons moved under rule 12(c) to dismiss Kirkham's remaining claims: Claim 2 (Civil Conspiracy) against the Widdisons and all claims against Alpine.[10] The trial court converted the rule 12(c) motion to one for summary judgment, "giving [Kirkham] the opportunity to support her claims with deposition testimony, affidavits or other evidence." Ultimately, the trial court granted the motion in favor of the Widdisons, finding (1) "the Declaration of [Kirkham] . . . is merely a restatement of the allegations in the Complaint, and is not supported by personal knowledge on her part"; (2) "there is no evidence that [Alpine or the Widdisons] or any other defendant ever filed a tax return on behalf of [Kirkham] or conspired with others to do so"; and (3) "there is no evidence that a tax return was ever filed on behalf of [Kirkham] by anyone other than [Kirkham]."

         ¶14 After all Kirkham's claims were dismissed, HRB moved for attorney fees under Utah Code section 78B-5-825. The court concluded that Kirkham's claims against HRB lacked merit and were brought in bad faith and therefore, awarded HRB $61, 464 in attorney fees.

         ¶15 Kirkham appeals.


         ¶16 Kirkham raises six issues on appeal. First, whether the trial court erroneously granted HRB's and the Widdisons' rule 12(b)(6) motions to dismiss on Claims 1, 3, 6, and 7. "We review a [trial] court's decision to grant a rule 12(b)(6) motion to dismiss a complaint for correctness, giving no deference to the [trial] court's ruling." Van Leeuwen v. Bank of Am. NA, 2016 UT App 212, ¶ 6, 387 P.3d 521 (cleaned up).

         ¶17 Second, whether the trial court erroneously granted HRB's rule 12(c) motion for judgment on the pleadings on Claims 2, 4, and 5. The same standard of review applies for a rule 12(c) motion as for one under rule 12(b)(6), and therefore we review the grant of a motion for judgment on the pleadings for correctness, giving no deference to the trial court's ruling. Tuttle v. Olds, 2007 UT App 10, ¶ 6, 155 P.3d 893.

         ¶18 Third, whether the trial court erroneously dismissed Claim 2 against the Widdisons, pursuant to rule 12(c). The record shows, however, that this rule 12(c) motion was converted into a rule 56 motion for summary judgment when matters and evidence outside the pleadings were presented to the trial court. Thus, "we review the [trial] court's summary judgment ruling for correctness and view all facts and reasonable inferences in ...

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