Robinson v. Jones Waldo Holbrook & McDonough, PC

• Decision Date: 19 February 2016
• Docket Number: No. 20140213–CA.,20140213–CA.
• Court: Utah Court of Appeals
• Parties: Michael S. ROBINSON, Appellant, v. JONES WALDO HOLBROOK & McDONOUGH, PC; Stephen C. Clark ; and Melissa M. Bean, Appellees.

369 P.3d 119

Michael S. ROBINSON, Appellant,

v.JONES WALDO HOLBROOK & McDONOUGH, PC; Stephen C. Clark ; and Melissa M. Bean, Appellees.

No. 20140213–CA.

Court of Appeals of Utah.

Feb. 19, 2016.

Michael S. Robinson, Pro Se.

Keith A. Call, Rodney R. Parker, Salt Lake City, and Robert W. Lin, for Appellees.

Judge MICHELE M. CHRISTIANSEN authored this Opinion, in which Judges GREGORY K. ORME and STEPHEN L. ROTH concurred.

Opinion

CHRISTIANSEN

, Judge:

¶ 1 Michael S. Robinson appeals from the denial of his motion for a continuance and the grant of summary judgment in favor of Jones Waldo Holbrook & McDonough, PC; Stephen C. Clark; and Melissa M. Bean (collectively, Defendants). We affirm.

BACKGROUND

¶ 2 In February 2007, Robinson retained Defendants to represent him in a divorce action involving extensive marital property, including a commercial complex located in St. George, Utah, named Phoenix Plaza. On November 2, 2007, Robinson and his then-wife agreed to a division of their interests (the Stipulation). As part of the Stipulation, Robinson agreed to file an application to refinance Phoenix Plaza, which he never did. See generally Robinson v. Robinson, 2010 UT App 96, 232 P.3d 1081

(affirming the denial of Robinson's motion to set aside the Stipulation); Robinson v. Robinson, 2016 UT App 32, 368 P.3d 147, (affirming, among other things, a judgment of contempt for Robinson's failure to comply with the divorce decree entered into pursuant to the Stipulation); Robinson v. Robinson, 2016 UT App 33, 368 P.3d 105, (affirming, among other things, a motion to dismiss and a motion for summary judgment, both predicated on Robinson's failure to adequately plead fraud-based claims relating to the Stipulation).

¶ 3 On October 31, 2011, Robinson brought this suit against Defendants, alleging that they had committed legal malpractice in their representation of Robinson during the divorce proceedings. Robinson alleged that Defendants should have advised him to include language in the Stipulation governing what would happen if Robinson was unable to refinance Phoenix Plaza. Although initially unrepresented in his malpractice case, Robinson later retained counsel. Defendants and Robinson, through his counsel, entered into a scheduling order on January 2, 2013, governing discovery due dates. As relevant here, the scheduling order required Robinson to designate any experts by July 26, 2013. The order also required the parties to complete expert discovery by October 30, 2013, and to file all dispositive motions by November 15, 2013.

¶ 4 The parties complied with those due dates until April 8, 2013, when Robinson's counsel withdrew. After Defendants served a notice to appear or appoint counsel pursuant to rule 74(c) of the Utah Rules of Civil Procedure

, Robinson sought new representation. According to Robinson, because he did not want to "shop" the case, and because he was seeking representation on a contingency-fee basis, this process was lengthy. Defendants filed a motion for summary judgment on July 29, 2013, and Robinson retained new counsel on Monday, August 12, 2013. Robinson's new counsel did not begin working on the case until Thursday, August 15, 2013, quickly discovering that a response to the motion for summary judgment was due that very day.¹

¶ 5 On Friday, August 16, 2013, Robinson's new counsel emailed Defendants' counsel twice. In the first email, counsel stated, "I will be filing a request for extension of time to respond to your motion today[.] If you would like to discuss this matter today, please feel free to contact me[.]" In the second email, counsel stated, "It may be that I will ask for more time ... given the several hundred pages you have filed and my still nascent familiarity with the facts. But it is too soon to do more than briefly speculate on that supposition. Please advise." Defendants' counsel did not respond to these emails.

¶ 6 Also on August 16, 2013, Robinson's new counsel filed with the court a motion for extension of time to respond to summary judgment, pursuant to rule 56(f) of the Utah Rules of Civil Procedure

.² Rule 56(f) provided that a district court may order a continuance to "permit affidavits to be obtained or depositions to be taken or discovery to be had" when "it appear [s] from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." Robinson argued that, due to his lack of representation, he had been "unable to finish discovery nor conduct absolutely necessary depositions." He therefore requested "that discovery be reopened and the discovery schedule be amended to allow him a few months to finish discovery and conduct depositions now that he has finally been able to obtain representation."

¶ 7 On August 30, 2013, Defendants filed an opposition to Robinson's rule 56(f)

motion, arguing that the motion did not describe "what additional evidence is needed, what [Robinson's] opposition theory may be, what additional discovery is needed, or how long it may take." Robinson then filed a supplemental memorandum on September 9, 2013, explaining that he wanted to depose defendants Melissa M. Bean and Stephen C. Clark, and that he had "retained an expert, Orson West Esq., and assume[d] that Defendants would like to depose him as well." Robinson's new counsel also clarified that he was requesting two months of additional discovery time.

¶ 8 On February 12, 2014, the district court issued a ruling denying Robinson's rule 56(f)

motion. The district court noted that Robinson had not designated his expert witnesses by July 26, 2013, and that Robinson's original counsel had withdrawn in April 2013. The court therefore concluded that Robinson "had over three months to retain new counsel and either comply with the discovery plan and scheduling order or to seek to amend the plan." It also noted that Defendants had not filed their motion for summary judgment until "[t]hree months and 21 days after [Robinson's] counsel withdrew and three days after the deadline to designate expert witnesses elapsed." The court ruled that Robinson "did not present a sufficient basis to excuse his lack of diligence in completing discovery."

¶ 9 The court's order also granted Defendants' motion for summary judgment. The court explained that, based in part on the rule 56(f)

ruling, Robinson had not "filed any affidavits or other evidence which raise an issue of disputed material fact to survive a motion for summary judgment." The court noted:

Without an expert witness, [Robinson] cannot demonstrate that [Defendants'] representation of him in his divorce action fell below the applicable standard of care. Additionally, the affidavits, emails, and other evidence presented by [Defendants] in support of their motion demonstrate that [Robinson] cannot show that any alleged breach by [Defendants] caused any loss to him. [Robinson] entered into a stipulation to resolve his divorce after long negotiations between him and his ex-wife personally. He accepted and used the accounting figures given him by his ex-wife after consultation with his accountant. He clearly wanted to retain ownership of the Phoenix Plaza and accepted the stipulation arrived at on Friday November 2, 2007[.]

....

Defendants' emails to [Robinson] continually reminded him of his obligation [under the Stipulation] to refinance the Plaza within 15 days but also show that he continually put off that obligation hoping to get a better interest rate.... Based upon his failure to even attempt to comply with the stipulation, this Court and other courts have ruled against him in other cases. [Robinson] cannot show that any actions by [Defendants] have caused the financial losses he is facing. As other courts have held, his failure to even attempt to comply with the stipulation [has] been the cause of his losses.

Robinson appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 10 Robinson challenges the district court's denial of his rule 56(f)

motion. We review the denial of a rule 56(f) motion for an abuse of discretion. Energy Mgmt. Servs., LLC v. Shaw, 2005 UT App 90, ¶ 8, 110 P.3d 158.

¶ 11 Robinson also challenges the district court's grant of Defendants' motion for summary judgment. We review a district court's legal conclusions and ultimate grant or denial of summary judgment for correctness, after viewing 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

.

ANALYSIS

I. The District Court Did Not Abuse Its Discretion by Denying Robinson's Rule 56(f)

Motion.

¶ 12 Robinson contends the district court abused its discretion by denying his rule 56(f)

motion. Robinson notes, "Rule 56(f) motions opposing a summary judgment motion on the ground that discovery has not been completed should be granted liberally unless they are deemed dilatory or lacking in merit." Energy Mgmt. Servs., LLC v. Shaw, 2005 UT App 90, ¶ 10, 110 P.3d 158 (citation and internal quotation marks omitted). He further notes that "[o]n occasion, justice and fairness will require that a court allow a party to designate witnesses, conduct discovery, or otherwise perform tasks covered by a scheduling order after the court-imposed deadline for doing so has expired." Welsh v. Hospital Corp. of Utah, 2010 UT App 171, ¶ 10, 235 P.3d 791 (citation and internal quotation marks omitted).

¶ 13 Robinson argues that "[a]pplying these principles to this case shows that the lower court clearly abused its discretion in not granting Robinson the reasonable and modest extra time he sought." But the cases cited by Robinson do not clearly support his position.

¶ 14 In Shaw, this court held that the district court had committed error by failing to rule on a rule 56(f)

motion at all.

Shaw, 2005 UT App 90, ¶¶ 8, 15, 110 P.3d 158

. In contrast, here, the district court did rule on Robinson's rule 56(f) motion. Accordingly, Shaw sheds little to no light on the...