Campbell, Maack & Sessions v. Debry

• Decision Date: 13 December 2001
• Docket Number: No. 990810-CA.,990810-CA.
• Citation: 2001 UT App 397,38 P.3d 984
• Court: Utah Court of Appeals
• Parties: CAMPBELL, MAACK & SESSIONS, a Utah professional corporation, Plaintiff, Appellee, and Counter-defendant, v. Janice L. DEBRY, Defendant, Appellant, and Counter-claimant.

38 P.3d 984

2001 UT App 397

CAMPBELL, MAACK & SESSIONS, a Utah professional corporation, Plaintiff, Appellee, and Counter-defendant, v. Janice L. DEBRY, Defendant, Appellant, and Counter-claimant.

No. 990810-CA.

Court of Appeals of Utah.

December 13, 2001.

Jeffrey C. Howe, Salt Lake City, for Appellant.

Richard D. Burbidge, Stephen B. Mitchell, and Jason D. Boren, Burbidge & Mitchell, Salt Lake City, for Appellee.

Before JACKSON, Associate P.J., and DAVIS and THORNE, Jr., JJ.

OPINION

THORNE, Jr., Judge:

¶ 1 Appellant Janice Debry appeals from the trial court's order denying her motion for an extension of time, pursuant to rule 56(f) of the Utah Rules of Civil Procedure, and granting Campbell Maack & Sessions's (CMS) Motion for Summary Judgment on all claims. We affirm.

BACKGROUND

¶ 2 In January 1994, following four years of marriage, Debry retained CMS to represent her in a divorce action. While Debry and CMS executed no written contract concerning the price of CMS's services, Debry orally agreed to pay CMS in accordance with its regular hourly rate, which Debry understood to be $185.00 per hour, plus expenses.

¶ 3 In August 1996, the trial court entered the final divorce decree, awarding Debry $5,000.00 per month in alimony and marital assets valued at $652,847.00. The trial court also ordered the marital home sold and the resulting proceeds equally distributed. For their services, CMS's charged Debry a total of $118,394.31, which Debry asserted to both the trial court and to a previous panel of this court was reasonable.

¶ 4 In September 1996, CMS filed suit for breach of contract seeking to enforce its agreement with Debry. Debry responded to the complaint first with a pro se answer, then with a verified counterclaim asserting that CMS had committed legal malpractice during the course of her divorce proceedings. Debry later amended her counterclaim, replacing her verified pleading with an unverified pleading. The trial court subsequently ordered the parties to complete all discovery by May 28, 1999, and also ordered that all dispositive motions be submitted by that date. On May 28, 1999, CMS filed a motion for summary judgment seeking dismissal of Debry's counterclaim, as well as judgment in favor of its breach of contract claim. Debry responded with a motion for additional time, pursuant to Rule 56(f), but filed neither a response to CMS's summary judgment motion nor an affidavit setting out the existence of genuine issues of material fact.

¶ 5 On August 12, 1999, the trial court denied Debry's motion for an extension of time and granted CMS summary judgment on all claims. Debry now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Debry first argues that the trial court erroneously denied her motion for an extension of time to respond to CMS's summary judgment motion. "[W]e review a trial court's decision to grant or deny a rule 56(f) motion under the abuse of discretion standard. `Under this standard, we will not reverse unless the decision exceeds the limits of reasonability.'" Crossland Sav. v. Hatch, 877 P.2d 1241, 1243 (Utah 1994) (citation omitted).

¶ 7 Debry next argues that the trial court's order granting CMS summary judgment dismissing her counterclaim for legal malpractice was improper. "Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT 54, ¶ 9, 28 P.3d 669.

¶ 8 Debry further argues that the trial court erred in granting CMS summary judgment on its breach of contract claim. "On appeal from a grant of summary judgment, this court applies the same standard as that applied by the trial court. Accordingly, this court reviews the trial court's decision for correctness." Brighton Corp. v. Ward, 2001 UT App 236, ¶ 13, 31 P.3d 594 (internal quotations and citations omitted).

ANALYSIS

¶ 9 Debry argues that the trial court abused its discretion in denying her motion for an extension of time. "Rule 56(f) provides that a party opposing summary judgment may file an affidavit stating reasons why [s]he is presently unable to submit evidentiary affidavits in opposition to the moving party's supporting affidavits." Reeves v. Geigy Pharm., Inc., 764 P.2d 636, 639 (Utah Ct.App.1988). To qualify for relief under Rule 56(f),

"the opposing party must show to the best of his [or her] ability what facts are within the movant's exclusive knowledge or control; what steps have been taken to obtain the desired information pursuant to discovery procedures under the Rules; and that [s]he is desirous of taking advantage of these discovery procedures."

Callioux v. Progressive Ins. Co., 745 P.2d 838, 840-41 (Utah Ct.App.1987) (quoting 2 James Wm. Moore ET AL., Moore's Federal Practice ¶ 56.24 (2d ed.1987)). Moreover, the trial court will examine (1) whether the party submitting the motion is merely attempting to gain "additional discovery time to uncover purely speculative facts after substantial discovery has already been conducted," and (2) "whether the other party has appropriately responded to discovery requests." Reeves, 764 P.2d at 639. Finally, the trial court will examine whether the affidavit supporting a Rule 56(f) motion adequately "explain[s] how the continuance will aid [her] opposition to summary judgment." Callioux, 745 P.2d at 841.

¶ 10 Here, Debry submitted her motion and supporting affidavit, stating that "until Mrs. Debry's expert ... has reviewed all pertinent information on this motion, she cannot express an opinion regarding the reasonableness of plaintiff's attorneys' fees or the quality of the work performed by plaintiff."¹ We have reviewed the record and, for the following reasons, we conclude that the trial court correctly determined Debry's Rule 56(f) motion was without merit.²

¶ 11 First, the affidavit submitted in support of Debry's motion failed to explain why she was unable to submit evidentiary affidavits in opposition to CMS's motion for summary judgment. See Reeves, 764 P.2d at 639.

¶ 12 Second, the evidence shows that Debry's expert possessed sufficient information to form an opinion on the reasonability of CMS's fees and submit an affidavit stating that opinion in opposition to CMS's motion. Debry does not dispute that she first received copies of CMS's itemized billing statements during her divorce proceeding, nor does she dispute receiving this same information again as a result of her discovery requests during this litigation. Moreover, there is evidence that CMS timely delivered copies of the specific reports in question to Debry's trial counsel. Thus, not only has Debry failed to show that the information was "`within [CMS]'s exclusive knowledge or control,'" see Callioux, 745 P.2d at 840 (citation omitted) (emphasis added), the evidence clearly supports the trial court's ruling that her expert had sufficient information either in her possession or available to her to form an opinion in regard to CMS's summary judgment motion.³

¶ 13 Third, Debry had nearly three years to conduct discovery, which, under these circumstances, was more than adequate to uncover any available evidence that would support her malpractice claim. See Crossland Sav.,877 P.2d at 1243 (holding "the trial court need not grant rule 56(f) motions that are dilatory or lacking in merit").

¶ 14 Finally, the plain language of Debry's motion failed to "explain how the continuance [would have] aid[ed her] opposition to summary judgment." Id. at 841. Accordingly, the trial court's decision did not exceed its permissible range of discretion.

¶ 15 Debry next asserts that the trial court erred in granting CMS's summary judgment motion and dismissing her counterclaim. Debry argues (1) summary judgment was precluded because genuine issues of material fact exist; (2) the trial court improperly shifted the burden of proof; and (3) the trial court improperly found that Debry had not been damaged by CMS's representation.

¶ 16 Debry's principal argument is that genuine issues of material fact exist that should have precluded the trial court's grant of summary judgment. "Summary judgment is appropriate when the record indicates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Christensen v. Swenson, 874 P.2d 125, 127 (Utah 1994). However, "when a party ... fails to file any responsive affidavits or other evidentiary materials allowed by Rule 56(e), the trial court may properly conclude that there are no genuine issues of fact unless the face of the movant's affidavit affirmatively discloses the existence of such an issue." Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1044 (Utah 1983) (footnote omitted).

¶ 17 Here, in the face of CMS's motion for summary judgment, Debry failed to submit either an affidavit or any other acceptable evidentiary materials to rebut the motion.⁴ Accordingly, the trial court properly assumed that no genuine issues of material fact existed and correctly proceeded to determine whether CMS was entitled to summary judgment as a matter of law.

¶ 18 Debry next argues that, after viewing CMS's summary judgment motion and supporting materials, the trial court erroneously shifted the burden of proof to her, and subsequently erred in determining that she had suffered no damages as a result of CMS's representation. Under Rule 56(e), once the proponent of summary judgment establishes a prima facie case, the burden shifts to the opponent to provide some evidence in opposition to the motion and in support of the essential elements of her claim. See Utah R. Civ. P. 56(e); cf. Thayne v. Beneficial Utah, Inc., 874 P.2d 120, 124 (Utah 1994) (stating that "the plaintiff[] has the ultimate burden of proving all the elements of his cause of action"). Moreover, for Debry to prevail on her claim of legal malpractice, she must prove, "(i) an...