Iacono v. Hicken
| Decision Date | 03 November 2011 |
| Docket Number | No. 20091040–CA.,20091040–CA. |
| Citation | 265 P.3d 116,2011 UT App 377,694 Utah Adv. Rep. 14 |
| Parties | Julie IACONO, individually; Julie Iacono, as trustee for the Carl R. and Ellen Gay Gordon Family trust; and Julie Iacono, as the executor/personal representative of the last will and testament of Carl R. Gordon, Plaintiffs and Appellant, v. Bret B. HICKEN, an individual; and Keith W. Weaver, an individual, Defendants and Appellee. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Jared L. Bramwell and Steven M. Kelly, Draper, for Appellant.
Peter Stirba and Julia D. Kyte, Salt Lake City, for Appellee.
Before Judges DAVIS, ORME, and VOROS.
¶ 1 Julie Iacono appeals the district court's determination that Bret B. Hicken did not commit attorney malpractice, despite breaching the requisite duty of care while representing Iacono in another matter, because his breach was not the actual or proximate cause of the damages Iacono suffered. We affirm.
¶ 2 Iacono's father (Father) and mother (Mother) created a family trust (the trust), naming themselves as the trustees and beneficiaries and leaving the residuary estate to their four children in equal shares. The original trust terms provided that the trust was revocable but became irrevocable upon the death of either Father or Mother.1 Mother died on May 16, 1998, and several months later, Father appointed Iacono as his new co-trustee. Around September 2000, Father obtained the services of an attorney, Keith W. Weaver, to amend the trust so that Father's home in Ogden, Utah, would pass to Iacono alone, rather than passing to all of his four children through the residuary estate. This specific devise was apparently in recognition of Iacono's diligence in caring for Father, especially during the final years of his life, which were marked by illness. Shortly after Father's death in November 2001, Iacono's siblings (Siblings) challenged the validity of the trust amendment and brought several claims against Iacono as trustee.2 Iacono retained the services of Hicken to represent her in this trust dispute against Siblings (the Trust Case).
¶ 3 The district court granted summary judgment in favor of Siblings, ruling that Siblings were entitled to a judgment as a matter of law regarding the validity of the trust amendment. In its memorandum decision, the district court concluded that
Utah case law does not specify whether irrevocable means that the trust may not be amended or altered.... In addition, the drafter of the trust, [an attorney], believed the Family Trust could not be amended or changed. The Court is persuaded that the provision in the Family Trust making the Family Trust irrevocable upon the death of either of the Grantors means that the Family Trust could not be modified or amended. Accordingly, the Court concludes that the Trust Amendment is invalid and unenforceable.
Iacono settled the remaining trustee claims out of court “to minimize damages,” and as a result, “Iacono received nothing from her parents' estate.” 3
¶ 4 Iacono then brought a legal malpractice action (the Malpractice Case) against Hicken, arguing that Hicken's representation of Iacono in the Trust Case was negligent.4 Iacono asserted claims of professional negligence, breach of fiduciary duty, breach of contract, and breach of the implied covenant of good faith and fair dealing. Specifically, Iacono argued that Hicken failed to assert any defenses against summary judgment, failed to conduct discovery of his own, and failed to timely respond and object to Siblings' discovery requests.
¶ 5 Iacono presented testimony from two witnesses at the Malpractice Case bench trial. First, an attorney practicing primarily in trusts and estates since 1977 testified as an expert, stating that the trust “had notable ambiguities, which caused confusion in determining whether the Trust was totally irrevocable or whether it could be amended.” (Internal quotation marks omitted.) He additionally testified that Hicken's representation fell below the requisite standard of care and gave examples of arguments and Utah cases that Hicken could and should have used in defending against summary judgment. The expert identified three cases as especially helpful: West v. West (In re Estate of West), 948 P.2d 351 (Utah 1997); Kline ex rel. Kline v. Utah Department of Health, 776 P.2d 57 (Utah Ct.App.1989); and Clayton v. Behle, 565 P.2d 1132 (Utah 1977). Because the law in Utah at the time of the Trust Case was unclear as to the validity of the trust amendment—a factor all parties in the Malpractice Case agreed on—the expert believed Hicken's failure to address these three cases was a crucial error that deprived Iacono of “a good shot at prevailing.” As to West, the expert opined that had the district court in the Trust Case read West alone, Iacono might have defeated summary judgment. The expert also testified that although the attorney who drafted the original trust believed the trust could not be amended, that same attorney actually assisted Father in amending the trustee succession provision of the trust and, therefore, little weight ought to be given to the original drafter's opinions. Siblings' Trust Case attorney was Iacono's second witness and testified in the capacity of a lay witness, not as an expert. He testified that he “felt sorry for [Iacono] and felt that she was not receiving enough help from Hicken.” The help Hicken did provide, he testified, was substandard because Hicken's filings contained many spelling and formatting errors, his Answer failed to include any affirmative defenses, and he failed to object to any of the “ton[s]” of discovery requests filed.5
¶ 6 The district court ruled that Hicken did breach the duty of care owed to Iacono but that the breach did not cause Iacono's damages. In reaching this decision, the court reviewed and analyzed the three cases relied on by Iacono's expert witness and stated that “it is impossible to predict what [the Trust Case judge] or any other objective trial court or even the Utah Supreme Court would or should have ruled in the [Trust] case, in light of the holdings in Clayton, Kline, and West.” Therefore, the district court concluded, “[C]ontrary to [the expert's] opinion, [the court] does not believe that [Iacono] ‘could’ have prevailed or even had a ‘good shot’ at prevailing.” The district court further explained that an expert witness's testimony is based on opinion, not fact, and that Iacono's expert's testimony was “totally unhelpful.”
¶ 7 The district court's ruling considered only Iacono's negligence cause of action because it determined that the other causes of action were not “actively pursued and argued by the plaintiff and defended and argued by the defendants at trial.” The district court also noted that punitive damages are not a cause of action in Utah, despite Iacono's framing of the matter as such, and that Iacono did not argue for punitive damages during closing arguments despite several direct questions from the court during closing arguments about damages.
¶ 8 Following the court's ruling, Iacono submitted a Motion to Amend Judgment or, in the Alternative Motion For a New Trial (Iacono's Motion for a New Trial), which the district court denied. Iacono now appeals, arguing that (1) the district court erred in determining that Iacono waived all but her negligence claim; (2) the district court's consideration of nonrecord evidence—the three cases referenced by the expert witness—constituted reversible error; (3) the district court erred in discounting the expert witness's testimony; (4) the district court's determination that there was no causal link between Hicken's breach and Iacono's damages was an abuse of discretion and its findings were clearly erroneous because the court based its ruling on insufficient record evidence and an erroneous view of the law; and (5) the district court erred in determining that the trust was not amendable as a matter of law.
¶ 9 Iacono's arguments on appeal present questions of fact and law. The district court's determination that Iacono waived certain claims, its ruling that the trust was not amendable as a matter of law, and its consideration of the three cases referenced by the expert witness are legal questions, which we review for correctness. See generally State v. Pena, 869 P.2d 932, 935 (Utah 1994) ().
¶ 10 The district court's determinations that the expert witness's testimony was “unhelpful” and that causation was not established in light of the unsettled law regarding the Trust Case issues are factual determinations that “shall not be set aside unless clearly erroneous,” Utah R. Civ. P. 52(a). See Harline v. Barker, 912 P.2d 433, 439 (Utah 1996) (). “The trial court's factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” Cummings v. Cummings, 821 P.2d 472, 476 (Utah Ct.App.1991) (internal quotation marks omitted). When challenging the district court's findings, Iacono must “marshal the evidence in support of the findings and then demonstrate that despite this evidence, the trial court's findings are so lacking in support as to be against the clear weight of the evidence.” See Chen v. Stewart, 2004 UT 82, ¶ 19, 100 P.3d 1177 (internal quotation marks omitted).6
¶ 11 Iacono argues that the district court erred in dismissing her request for punitive damages and dismissing her claims of legal...
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