Kranendonk v. Gregory & Swapp, PLLC

• Court: Utah Court of Appeals
• Writing for the Court: VOROS
• Citation: Kranendonk v. Gregory & Swapp, PLLC, 320 P.3d 689, 754 Utah Adv. Rep. 26 (Utah App. 2014)
• Decision Date: 13 February 2014
• Docket Number: No. 20120660–CA.,20120660–CA.
• Parties: Jodi KRANENDONK, Plaintiff, Appellant, and Cross-appellee v. GREGORY & SWAPP, PLLC and Erik Highberg, Defendants, Appellees, and Cross-appellants.

320 P.3d 689

754 Utah Adv. Rep. 26

Jodi KRANENDONK, Plaintiff, Appellant, and Cross-appellee

v.GREGORY & SWAPP, PLLC and Erik Highberg, Defendants, Appellees, and Cross-appellants.

No. 20120660–CA.

Court of Appeals of Utah.

Feb. 13, 2014.

Shaun L. Peck, Brandon J. Baxter, and Matthew David Lorz, for Appellant and Cross-appellee.

Gregory J. Sanders, Salt Lake City, and Patrick C. Burt, for Appellees and Cross-appellants.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judge STEPHEN L. ROTH and Senior Judge PAMELA T. GREENWOOD concurred. ¹

VOROS, Judge:

¶ 1 This legal malpractice claim involves a case within a case. Jodi Kranendonk was injured in an Oregon traffic accident. She retained Gregory & Swapp, PLLC and Erik Highberg (the Attorneys) to bring a negligence action against two truck drivers (the Truckers). The Attorneys twice failed to perfect service of process on the Truckers; as a result, Kranendonk's Oregon negligence case was ultimately dismissed. Kranendonk sued the Attorneys in Utah for malpractice and fraud. The Attorneys admit that they mishandled the Oregon case but maintain that because that case lacked merit, no damages resulted.

¶ 2 On summary judgment, the district court ruled that Kranendonk failed to raise a genuine issue of material fact as to liability but succeeded in raising a genuine issue of material fact as to damages. We reverse the first ruling and affirm the second.

BACKGROUND ²

¶ 3 Kranendonk is a resident of Utah. In June 2006 she was injured in a multi-vehicle accident in Clackamas County, Oregon. Heavy traffic brought her car and others to a complete stop. Two trucks, driven by the Truckers, struck the stopped traffic. Kranendonk was injured.

¶ 4 Kranendonk retained Gregory & Swapp, PLLC, a Utah law firm, to sue the Truckers. Gregory & Swapp assigned the case to Erik Highberg, a lawyer licensed in Oregon. In 2007 the Attorneys filed a complaint in Clackamas County, Oregon, on behalfof Kranendonk.³ But because they failed to perfect service within sixty days, the complaint was dismissed. A year later the Attorneys filed a second complaint but again failed to perfect service within sixty days. Consequently, that complaint was also dismissed. Under the applicable Oregon statute of limitations, the second dismissal was fatal to Kranendonk's Oregon claim. The following year the Attorneys filed a third complaint, this time in Klickitat County, Washington, seeking to take advantage of that state's longer statute of limitations. The Washington court dismissed the complaint on res judicata grounds. At that point the Attorneys disclosed to Kranendonk that because they had not timely served the Truckers, her negligence claim was time-barred. Kranendonk fired the Attorneys and retained her current counsel.

¶ 5 Relying on the Oregon savings statute, Kranendonk's current counsel filed yet another complaint in Oregon, which they later amended. The Truckers filed answers to the amended complaint. Those answers admitted that “the motor vehicle accident was caused by the joint fault” of the Truckers. The Truckers also apparently stipulated to an allocation of their fault. Their answers also asserted a statute of limitations defense. The case proceeded to trial, where the jury accepted the statute of limitations defense and thus rendered no verdict on the merits. Kranendonk's complaint was consequently dismissed.

¶ 6 Kranendonk then filed this legal malpractice action against the Attorneys. The Attorneys admitted “professional negligence” but moved for summary judgment on the grounds that Kranendonk (1) had not made a prima facie case that “there was a viable claim which was lost” as a result of the malpractice and (2) had not presented evidence of what a Clackamas County jury “would award even if they found full liability.”

¶ 7 The district court granted summary judgment in part. With respect to liability, the court ruled that Kranendonk had not raised a genuine issue of material fact. The court noted that Kranendonk had “relie[d] on two sources of evidence to establish fault or liability of [the Truckers]”: Kranendonk's own deposition and the Truckers' answers. The court ruled that Kranendonk's deposition did not independently raise a genuine issue as to liability and that the answers were inadmissible hearsay. Accordingly, it ruled that Kranendonk had not made a prima facie case that her underlying negligence case would have been successful but for the Attorneys' malpractice. Kranendonk challenges this ruling on appeal.

¶ 8 With respect to damages, the court ruled that Kranendonk had raised a genuine issue of material fact. The court ruled that Kranendonk was not required to show what a Clackamas County jury might award. Accordingly, the district court ruled that Kranendonk had presented evidence sufficient to meet her burden and thus create a genuine issue of material fact as to damages in the underlying case. The Attorneys challenge this ruling on cross-appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 9 Kranendonk contends that she presented sufficient evidence to raise a genuine issue of material fact as to liability in the Oregon negligence case. “An appellate court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks omitted).

¶ 10 The Attorneys contend that Kranendonk should have been required to present evidence of the damages a jury in Clackamas County would award. “Whether the district court applied the correct rule for measuring damages is a question of law that we review for correctness.” Mahana v. Onyx Acceptance Corp., 2004 UT 59, ¶ 25, 96 P.3d 893.

ANALYSIS

¶ 11 A court may grant summary judgment only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c); see also Gardner v. Board of County Comm'rs, 2008 UT 6, ¶ 17, 178 P.3d 893. “ ‘Conversely, if there is any dispute as to any issue, material to the settlement of the controversy, the summary judgment should not be granted.’ ” Hone v. Advanced Shoring & Underpinning, Inc., 2012 UT App 327, ¶ 6, 291 P.3d 832 (quoting Holbrook Co. v. Adams, 542 P.2d 191, 193 (Utah 1975)).

I. Liability in the Oregon Case

¶ 12 “In a legal malpractice action, a plaintiff must plead and prove (i) an attorney–client relationship; (ii) a duty of the attorney to the client arising from their relationship; (iii) a breach of that duty; (iv) a causal connection between the breach of duty and the resulting injury to the client; and (v) actual damages.” Harline v. Barker, 912 P.2d 433, 439 (Utah 1996). To prove proximate cause, the plaintiff “must show that absent the attorney's negligence, the underlying suit would have been successful.” Id.

¶ 13 Here, the Attorneys argue that Kranendonk offered no evidence that, absent their negligent conduct, the underlying suit would have been successful—specifically, that she could have shown that the Truckers were at fault and caused her injuries. The district court agreed and granted summary judgment on this ground. Kranendonk contends that the district court erred in determining that she had “failed to provide competent evidence to establish liability” in the Oregon case. She argues that she offered two forms of evidence, each sufficient to create a genuine issue of material fact: her deposition testimony and the Truckers' answers.

A. Kranendonk's Deposition

¶ 14 Kranendonk contends that her deposition testimony was sufficient to defeat the Attorneys' motion for summary judgment. The district court ruled that the deposition “only establishes that [she] was in an accident but fails to establish fault or liability” in the Oregon case. The Attorneys maintain that the district court's ruling was correct because, “[o]utside of [this] unreliable testimony, there were no designated eyewitnesses, police officers, accident reconstruction experts or anybody to explain what happened in the Oregon accident.”

¶ 15 “[A] district court should grant summary judgment only when, viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Suarez v. Grand County, 2012 UT 72, ¶ 18, 296 P.3d 688 (citation and internal quotation marks omitted). And while a plaintiff facing summary judgment “is entitled to all favorable inferences, [she] is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture.” Ladd v. Bowers Trucking, Inc., 2011 UT App 355, ¶ 7, 264 P.3d 752 (citation and internal quotation marks omitted). A reasonable inference exists when “there is at least a foundation in the evidence upon which the ultimate conclusion is based,” while “in the case of speculation, there is no underlying evidence to support the conclusion.” Harding v. Atlas Title Ins. Agency, Inc., 2012 UT App 236, ¶ 7, 285 P.3d 1260. Thus, “it only takes one sworn statement under oath to dispute the averments on the other side of the controversy and create an issue of fact.” Draper City v. Estate of Bernardo, 888 P.2d 1097, 1101 (Utah 1995) (citation and internal quotation marks omitted); accord Anderson Dev. Co. v. Tobias, 2005 UT 36, ¶ 32, 116 P.3d 323;Wolf Mountain Resorts, LC v. ASC Utah, Inc., 2011 UT App 425, ¶ 12, 268 P.3d 872.

¶ 16 Kranendonk's deposition is a sworn statement. In it, she describes driving on a sunny day over dry pavement. The vehicles ahead of her stopped due to heavy rush-hour traffic and she brought her own vehicle to a complete stop. She was belted...