Kirkham v. McConkie
Kirkham v. McConkie
Opinion
¶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
*446
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
,
¶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.
,
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
,
¶8 While expert testimony is not necessary in all cases, it is required "where the average person has little understanding of the duties owed by particular trades or professions," including "duties owed by practicing attorneys to their clients, especially in cases involving complex and involved allegations of malpractice."
Preston & Chambers, PC v. Koller
,
¶9 The district court noted that "claims for child support may be asserted 'at any time' " by a parent or raised sua sponte by the district court.
See
Utah Code Ann. § 78B-12-210(9)(a) (LexisNexis 2012) (stating that a petition may be raised at any time by a parent "if there has been a substantial change in circumstances");
Doyle v. Doyle
,
¶10 We agree that the average juror would not know whether an attorney with ordinary skill and capacity would have filed a counterpetition under the same circumstances of this case.
See
Watkiss & Saperstein v. Williams
,
¶11 Consequently, in order to prevail, Kirkham needed to retain a family law expert to testify to the standard of care, breach, and causation elements of her claims. Given that she did not present expert testimony in support of her case, and in refutation of the opinions offered by Law Firm's expert, the district court correctly determined that Law Firm was entitled to judgment as a matter of law.
CONCLUSION
¶12 Because Kirkham failed to carry her burden of proof by retaining an expert witness to testify on her behalf to the necessary elements of her legal malpractice claims, we conclude that the district court correctly *448 granted summary judgment to Law Firm. That judgment is affirmed.
"When reviewing summary judgment, we recite the facts in a light most favorable to the nonmoving party,"
Kilpatrick v. Wiley, Rein & Fielding
,
This is Kirkham's second appeal before this court. In her first appeal,
Widdison v. Widdison
,
Kirkham also argues that Law Firm breached its contract with her by failing to bring a counterpetition to increase child support. But Kirkham offered no evidence that filing a counterpetition was a term of the contract; instead, she testified that the only term of the contract was that Law Firm agreed to represent her in the divorce case. Accordingly, we conclude that the district court properly dismissed her breach of contract claim.
Utah Code Ann. § 78B-12-101 to -403 (LexisNexis 2012).
Reference
- Full Case Name
- Janae KIRKHAM, Appellant, v. Bryant J. MCCONKIE, David W. Read, and Strong & Hanni PC, Appellees.
- Cited By
- 8 cases
- Status
- Published