Dunn v. McKay, Burton, McMurray and Thurman

• Decision Date: 15 September 1978
• Docket Number: No. 15208,15208
• Citation: 584 P.2d 894
• Court: Utah Supreme Court
• Parties: Shirley A. DUNN, Plaintiff and Appellant, v. McKAY, BURTON, McMURRAY & THURMAN, a Partnership, Daniel England, and Salt Lake County Legal Services, a corporation, Defendants and Respondents.

Page 894

584 P.2d 894

Shirley A. DUNN, Plaintiff and Appellant, v. McKAY, BURTON, McMURRAY & THURMAN, a Partnership, Daniel England, and Salt Lake County Legal Services, a corporation, Defendants and Respondents.

No. 15208.

Supreme Court of Utah.

Sept. 15, 1978.

Samuel King of King & Schumacher, Salt Lake City, for plaintiff and appellant.

H. Wayne Wadsworth of Watkiss & Campbell, Stephen B. Nebeker, Kipp & Christian of J. Dennis Frederick, Salt Lake City, for defendants and respondents.

CROCKETT, Justice:

Plaintiff, Shirley A. Dunn brought this action for malpractice against defendants, Daniel England and the law firm of McKay, Burton, McMurray & Thurman (hereinafter McKay); and Salt Lake County Legal Services, for their alleged negligent representation of her in a divorce action. After the presentation of the plaintiff's evidence, the trial court granted the motion of the defendants for a directed verdict. Plaintiff appeals.

The plaintiff makes no complaint about the granting of the divorce, for which purpose her husband initiated an action in Florida, and she engaged defendant England and commenced one in Utah. Her complaint is that the defendant England mailed the complaint and summons personally, instead of having the clerk mail it as provided in Rule 4, U.R.C.P., ¹ thereby delaying the Utah divorce proceedings. The damages plaintiff seeks are for the alleged loss of custody of the children and cost of legal counsel in Florida.

In September 1974, plaintiff, her husband, John Dunn, and their two children, Katherine and Samantha, moved from Florida to Salt Lake City where she had obtained a position as director of a vocational school. Her husband had been unemployed during 1974 as the result of injuries he had sustained in an industrial accident. In October of 1974 Mr. Dunn returned to Florida and filed for a divorce in December of that year.

The plaintiff then contacted Mr. England, who was then associated with the McKay firm and paid him a $75 retainer fee. Mr. England contacted counsel in Florida and, through his cooperation, Mr. Dunn's action was dismissed on the ground that he did not then have the six month residence requirement in Florida.

Mr. England then filed a complaint in Utah seeking a divorce and custody of the children for the plaintiff. After an unsuccessful attempt to have John Dunn served personally in Florida, he proceeded pursuant to Rule 4(f)(2) of U.R.C.P. ² and obtained an order for service by mail. But instead of having the clerk mail the summons and complaint, he mailed it himself on February 6, 1975.

In February 1975, Mr. England left the McKay firm and became associated with another. With the consent of the McKay firm, he took plaintiff's file. When plaintiff contacted him in March 1975 he informed her that under the policy of the new law firm he could not proceed with her case until she paid him an additional $200; which she did not do.

In April 1975, plaintiff was operated on for the removal of blood clots on her spine. In her deposition, the plaintiff testified that while she was hospitalized, her employer, who had been taking care of the two daughters told her that he could no longer care for them. He suggested that inasmuch as the plaintiff had no relatives in Salt Lake, the possibility of placing them in a foster home should be considered. Plaintiff said that, though she did not want the girls to go to Florida, that was better than placing them in a foster home and was therefore her only rational alternative. After the girls arrived in Florida, the plaintiff's husband was awarded custody in a divorce proceeding he initiated there. ³

In seeking the solution to the problem here presented it is appropriate to inquire as to what the plaintiff's position would have been if the summons referred to had been mailed in accordance with the rule, as compared to her present position. The only reasonable conclusion to be drawn, even from the plaintiff's own deposition, is that she agreed to send her children to their father in Florida. Furthermore, they were sent there by the earliest date she could have obtained a default divorce. ⁴ (This is said in full sympathy for her in the unfortunate circumstances which impelled that decision, for which she is neither to be blamed, nor censured.) Nevertheless, the critical and undeniable fact is that it was plaintiff's own conduct which removed the children from the jurisdiction of the Utah court and permitted the Florida court to deal with their custody. ⁵ Jurisdiction of our Utah courts to make an award in favor of the plaintiff would have to depend either upon in personam jurisdiction over the defendant, or upon presence of the children here. ⁶ No pretense is made as to the former and therefore there could not be any judgment against the defendant for support money.

It is not questioned that there is an implied covenant in an attorney's relationship to his client that he will represent the client's interest with competence and diligence. Under the granting of the defendants' motion for a directed verdict it is to be assumed (without necessarily being so found, because it is immaterial to our decision herein) that Mr. England was negligent in not following the rule above referred to, and also that the other named defendants of the law firm would be responsible for Mr. England's conduct. ⁷ Proceeding on those assumptions, the problem of more critical import, and which we see as controlling in this case, is whether the trial court was correct in ruling that the plaintiff's evidence failed to establish a cause of action because it showed no damage to the plaintiff proximately resulting from Mr. England's conduct. ⁸

A finding of such damages cannot properly be based on speculation or conjecture. ⁹ They can be awarded only if there is a basis in the evidence upon which reasonable minds acting fairly thereon could believe with reasonable certainty that the plaintiff suffered injury and damage and also that it was proximately caused by the negligence of the defendant. ¹⁰

In further analyzing the problem, other aspects of the total situation are to be taken into account. These girls were not what we usually regard as "children of tender years." The youngest, Samantha was born June 25, 1965 (now 13) and the oldest, Katherine, was born May 1, 1963 (now 15). They were thus both then of sufficient age that their choice of the parent they desired to reside with would be an important factor to consider. Under the circumstances shown, including the plaintiff's illness, the attitude of the girls, and of the defendant as explained below, it would be a matter of conjecture as to what judgment might have resulted as to the custody of these girls.

The attitude of the father about their custody is made plain in his communications to the plaintiff and in his deposition. He explained that "I told them (the two daughters) that I could not force either of them to be where they don't want to be, and I still feel that way. I don't think anyone should have to be where they don't want to be." He reiterated several times that the girls could go back to their mother whenever they desired. Corroborative of this is the fact that the younger Samantha, did return and now lives with her mother, under the condition that the defendant will send such support as he desires. Therefore, as to her, this is the same as the best arrangement plaintiff could have obtained under a Utah decree. As to the older, Katherine, she wanted to stay with her father, where she now is, but she is and has been at liberty to come to her mother whenever she desires.

In view of the facts above recited: that the plaintiff could not have obtained in personam jurisdiction over her husband, nor any judgment for alimony or support money from him, and the practical situation as it existed and now exists with respect to custody of the girls, it is our judgment that the trial court was correct in its view that there is no foundation in the evidence upon which reasonable minds acting fairly thereon could find that defendant England's personal mailing of the summons and complaint, instead of having the clerk do it, was a proximate cause of any damage to the plaintiff. For the same reasons: that it was plaintiff's own doings which placed the children within the jurisdiction of the Florida court, plus the fact that her husband had started an action in Florida before the plaintiff commenced hers in Utah, so it appears that there was going to be dual litigation anyway, we do not see how plaintiff's incurring lawyer's fees in Florida can justly be charged to the defendants' conduct.

In consequence of what has been said herein, the trial court was justified in granting the defendants' motion for a directed verdict.

Affirmed, the parties to bear their own costs.

ELLETT, C. J., and HALL, J., concur.

MAUGHAN, Justice (dissenting):

For the following reasons, I dissent.

It is necessary to reiterate the facts in order to compensate for omissions in the majority opinion, and to perceive the events on a sequential basis.

Plaintiff initiated an action for legal malpractice against defendants for their allegedly negligent representation of her in a divorce action.

The matter was tried before a jury; however, after plaintiff had presented her case, defendants moved for a directed verdict. Defendants successfully urged that conceding the issue of negligence for the purpose of the motion, plaintiff had failed to establish the elements of proximate cause and damages. The trial court granted the motion and entered judgment for defendants. Plaintiff appeals. The judgment in favor of Legal Services should be affirmed. The judgment in favor of England and McKay should be reversed, and the cause remanded for trial in accordance with this dissent.

In September 1974, plaintiff, her husband, and their two minor daughters, Katherine and Samantha, moved to Utah from Florida. Plaintiff came to Utah because she had...