Hiltz v. Robert W. Horn, P.C.

• Decision Date: 23 January 1996
• Docket Number: No. 95-110,95-110
• Parties: Richard A. HILTZ, Appellant (Plaintiff), v. ROBERT W. HORN, P.C. and Robert W. Horn, individually, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 566

910 P.2d 566

Richard A. HILTZ, Appellant (Plaintiff), v. ROBERT W. HORN, P.C. and Robert W. Horn, individually, Appellees (Defendants).

No. 95-110.

Supreme Court of Wyoming.

Jan. 23, 1996.

Georg Jensen of Law Offices of Georg Jensen, Cheyenne, for Appellant.

Richard E. Day of Williams, Porter, Day & Neville, P.C., Casper, for Appellees.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

MACY, Justice.

Appellant Richard Hiltz appeals from the summary judgment which was entered in favor of Appellees Robert W. Horn, P.C. and Robert Horn, individually. The district judge found that Hiltz's claims were barred by the statute of limitations, that no genuine issue as to any material fact existed, and that the appellees were entitled to have a judgment as a matter of law.

We affirm.

ISSUES

Hiltz presents the following issues for our review:

1. Did the district court err in concluding that Wyoming has declined to adopt the continuing representation doctrine for legal malpractice actions?

2. Did the district court err in concluding that, as a matter of law, the plaintiff knew or had reason to know that he had a cause of action against the defendant for malpractice when there exists a clear dispute as to the material facts which would make up such knowledge?

3. Did the district court err in concluding that, as a matter of law, the plaintiff knew or had reason to know that he had a cause of action against the defendant for malpractice when there exists [a] dispute as to whether the defendant concealed or failed to disclose material facts which would have given rise to any such knowledge on behalf of the plaintiff?

FACTS

This case began as a legal malpractice action which was filed on November 29, 1993, against the appellees. The action arose out of Horn's legal representation of Hiltz on a 1983 post-divorce matter.

Hiltz and his ex-wife divorced in 1982. The divorce decree required Hiltz to pay child support for the couple's two children in the amount of $250 per month per child with annual increases of $25 per month per child. Late in August of 1983, Hiltz contacted Horn about a petition for an order to show cause which Hiltz's ex-wife had served upon him and which alleged that he was in arrears on his child support obligations. Hiltz sought Horn's assistance in this matter as well as in having the amount of his child support payments reduced. On September 2, 1983, Hiltz and Horn entered into an attorney-client relationship by executing a contract for legal services.

During the course of this representation, Horn communicated orally and in writing with the ex-wife's attorney. After some negotiating, Hiltz and his ex-wife orally agreed The proposed agreement would have decreased the amount of the child support payments to $200 per month per child, and the annual increase in support payments of $25 per month per child would have been terminated. Although it is not clear as to what discussions took place between Hiltz and Horn with regard to this agreement, Hiltz ultimately returned the agreement to Horn along with the following handwritten notation: "Bob, I circled the section I do not agree with, please take care of this and let me know how it comes out. Thanks. Rich Hiltz." The referenced section provided:

to decrease the amount of the child support payments and to have the ex-wife's attorney reduce this oral agreement to writing. An agreement was prepared, signed by the ex-wife, and transmitted to Horn. Horn forwarded the agreement to Hiltz, requesting that Hiltz sign the agreement, have it notarized, and return it to Horn as soon as possible.

3. If Defendant violates the terms of this Agreement to Modify Decree of Divorce, all original terms concerning child support ordered by the Court in that Decree of Divorce granted to Plaintiff on the 23rd day of July, 1982, shall be reinstated, effective on the date of violation.

On December 13, 1983, Horn wrote to the ex-wife's attorney, advising him that Hiltz had very strong objections to paragraph three of the agreement and, as a result, had refused to sign the agreement unless the paragraph was deleted. The letter showed that a copy was sent to Hiltz. Nothing in the record indicates that any further communication occurred between Horn and the ex-wife's attorney with regard to this matter following the December 13th letter. Although Hiltz was aware that the agreement to modify the divorce decree had not been finalized, he nonetheless began paying the reduced child support amount.

The next time Horn apparently communicated with Hiltz was on December 29, 1983, when in a telephone conversation they discussed a divorce which Hiltz wanted to get from his third wife. The only evidence of any further contact between Hiltz and Horn prior to December of 1990 was a telephone record which indicated that a five-minute telephone call had been made to Horn's office on April 28, 1984. Neither party could recall what the subject matter of that conversation was.

While nothing in the record indicates that Hiltz communicated with Horn about this matter subsequent to December 13, 1983, until December of 1990, evidence was presented which revealed that Hiltz had directly communicated with his ex-wife's attorney during this period. In letters dated April 16, May 2, June 13, and July 12, 1984, his ex-wife's attorney advised Hiltz that he had failed to comply with the terms of the divorce decree by not carrying medical insurance for the children. Rather than notifying Horn, Hiltz dealt with his ex-wife's attorney himself. The ex-wife's attorney again wrote to Hiltz on September 24, 1984, with regard to his failure to abide by the divorce decree as he was behind in his child support payments.

Hiltz also communicated with his ex-wife on numerous occasions during this same period on the subject of child support payments. His ex-wife was of the opinion that Hiltz was not paying the proper amount of child support.

The State of Utah commenced an action in December of 1990 for the recovery of child support which was in arrears (a URESA action) against Hiltz, who was a Utah resident at that time. Between December of 1990 and April of 1991, the State of Utah served numerous documents upon Hiltz, advising him that his child support payments under the original divorce decree were delinquent.

Having received initial notices from the State of Utah, Hiltz contacted both the State of Utah and his ex-wife about the URESA action. Hiltz contacted Horn as well. Hiltz and Horn entered into a new attorney-client relationship by executing a new contract for legal services on February 14, 1991.

Horn filed a petition in the district court on Hiltz's behalf, seeking a modification of the original divorce decree to reflect the agreement previously reached by the parties as represented in the proposed 1983 agreement to modify the divorce decree. The Hiltz thereafter brought a legal malpractice action against the appellees. The appellees moved for a summary judgment on the grounds that no genuine issues as to any material fact existed and that they were entitled to have a judgment as a matter of law. Particularly, the appellees argued that the statute of limitations barred Hiltz's claims. The district court granted the appellees' motion for a summary judgment, and Hiltz makes this appeal from that order.

judge found that Hiltz had rejected the proposed agreement and that the terms of the original divorce decree were still in effect. The district judge awarded the ex-wife a judgment in the amount of the child support arrearage, calculating the amount under the original divorce decree. The State of Utah ultimately dismissed the URESA action.

DISCUSSION

A. Standard of Review

Summary judgment is appropriate when no genuine issue as to any material fact exists and when the prevailing party is entitled to have a judgment as a matter of law. Kahrs v. Board of Trustees for Platte County School District No. 1, 901 P.2d 404, 406 (Wyo.1995); see also W.R.C.P. 56(c). A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which has been asserted by the parties. Adkins v. Lawson, 892 P.2d 128, 130 (Wyo.1995). We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. Jack v. Enterprise Rent-A-Car Co. of Los Angeles, 899 P.2d 891, 893 (Wyo.1995). We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. Adkins, 892 P.2d at 130. We do not accord any deference to the district court's decisions on issues of law. Kahrs, 901 P.2d at 406.

The party moving for summary judgment bears the initial burden of establishing a prima facie case for a summary judgment. If the movant carries this burden, the party opposing the summary judgment must come forward with specific facts to demonstrate that a genuine issue of material fact does exist.

Thunder Hawk By and Through Jensen v. Union Pacific Railroad Company, 844 P.2d 1045, 1047 (Wyo.1992). General allegations and conclusory statements are not sufficient. Board of County Commissioners of County of Laramie v. Laramie County School District Number One, 884 P.2d 946, 956 (Wyo.1994). Ordinarily, entering a summary judgment on the issue of when a statute of limitations commences to run would be inappropriate. Palmer v. Borg-Warner Corporation, 818 P.2d 632, 634 (Alaska 1990). However, if uncontroverted facts exist which specify when a reasonable person should have been placed on inquiry notice, we can resolve the question as a matter of law. Id.; see also Bredthauer v. Christian, Spring, Seilbach and Associates, 824 P.2d 560, 562 (Wyo.1992); Mills v. Garlow, 768 P.2d 554, 556 (Wyo.1989).

B...