Walter v. Stewart

• Decision Date: 27 March 2003
• Docket Number: No. 20010866-CA.,20010866-CA.
• Parties: Beth WALTER, Plaintiff and Appellant, v. Alan STEWART, Defendant and Appellee.
• Court: Utah Court of Appeals

67 P.3d 1042

2003 UT App 86

Beth WALTER, Plaintiff and Appellant, v. Alan STEWART, Defendant and Appellee.

No. 20010866-CA.

Court of Appeals of Utah.

March 27, 2003.

Kathleen M. McConkie, Wingo & Rinehart, Bountiful, for Appellant.

Todd R. Mecham, Randall L. Skeen, Cook Skeen & Robinson LLC, and Darwin Overson, Overson Flores & Simms LLC, Salt Lake City, for Appellee.

Before BILLINGS, Associate Presiding Judge, BENCH and GREENWOOD, JJ.

OPINION

BENCH, Judge:

¶ 1 This case arises out of an attorney-client relationship, which turned sexually intimate, between one-time client Beth Walter and her former attorney Alan Stewart. Following her discovery that Stewart was married, Walter filed claims against Stewart for breach of fiduciary duty, fraud, intentional infliction of emotional distress, reckless misconduct, breach of contract, and battery. Upon Stewart's motion, the trial court entered summary judgment against Walter on all of her claims. Walter now appeals. We reverse in part, affirm in part, and remand.

BACKGROUND

¶ 2 "`[I]n reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.' Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993). We state the facts accordingly." Collins v. Sandy City Bd. of Adjustment, 2002 UT 77,¶ 2, 52 P.3d 1267.

¶ 3 In June of 1998, Walter retained Stewart as her attorney in a divorce action. Through that representation, Stewart learned that Walter was in a "fragile emotional state and [had] personal self esteem issues," including a "doubt[ ][in] her ability to have a successful relationship." Walter decided to relocate to Maryland. In the first part of April of 1999, Walter phoned Stewart several times, anxious that her divorce be finalized so she could move.

¶ 4 During his representation of Walter, Stewart became "very flirtatious, often commenting regarding [Walter's] personal appearance and grooming." In April of 1999, Stewart began to call Walter daily and, on April 15, took her on a lunch date. Following the lunch date Stewart asked Walter, "[I]f you move to Maryland, how are we supposed to have a relationship?" Walter then "decided to postpone the move ... to see where [Stewart's] `relationship' with [her] would head."

¶ 5 Through the first part of May, Stewart continued to tell Walter "that he was waiting to hear from [her] husband's lawyer to finalize the divorce." On May 12, after personally contacting her ex-husband and the trial court, Walter learned that her divorce had actually been finalized on April 26.

¶ 6 The divorce decree required Walter to pay her ex-husband an amount of money. On May 13, Walter asked Stewart about paying the judgment. Stewart told her "to hold off on payment to see if her ex-husband would pursue collection and further advised [her that] if her ex-husband tried to collect on the amount due, she could make arrangements to pay before a judgment was levied against her." Walter took Stewart's advice and did not make the payment. Also upon finalization of her divorce, Walter desired to resume the use of her maiden name and asked Stewart "why her name change was not reflected in the divorce decree." He told her that she could take the decree to the Department of Social Security to have her name changed, which she did.

¶ 7 Stewart and Walter continued to see each other on a personal basis, and on June 5, 1999, Stewart kissed Walter, tried to undress her, and said that he wanted to "make love." Upon Walter's questioning, Stewart told her that he was a divorced father of four children. The two did not engage in sexual relations that day but did become sexually intimate on July 22, 1999. "On that night as [they] discussed sleeping together, [Walter told Stewart] that she would only do so if they were going to have an exclusive-monogamous relationship, a condition with which [Stewart] readily concurred and agreed to."

¶ 8 During their personal relationship, Stewart took Walter on numerous dates in public as well as on business trips. He never wore a wedding ring. He displayed on his desk an engraved clock that Walter gave him, and wore clothing she gave him. The two also spoke of getting married.

¶ 9 In August of 1999, Walter received an order to show cause for her failure to pay her ex-husband what she owed him under the divorce decree. Walter contacted Stewart, and he said that he would take care of the matter and declined her offer to pay for his services. He then made payment arrangements with the attorney for Walter's ex-husband, and the show-cause hearing was canceled. "For his services rendered and as a token of appreciation, [Walter] bought [Stewart] a [$100] fountain pen."

¶ 10 In October of 1999, Walter considered breaking off her relationship with Stewart. However, when she expressed those feelings to him, he "told [her] that he loved her, that he wouldn't accept [her] breaking up with him and that he would `stalk [her] and wait for [her] in the parking garage at work.'" They continued to see each other, exchanged Christmas gifts, and spent much of New Years Day 2000 together. Although their dates became less frequent in 2000, Stewart continued to express a commitment to their relationship.

¶ 11 In September of 2000, while pursuing an unrelated international adoption, Walter was told by the Immigration and Naturalization Service that she had illegally resumed use of her maiden name since a name change was not included in her divorce decree. Walter contacted Stewart, who told her that she would need to petition the court to amend the divorce decree. Because Walter's ex-husband would not cooperate in the action, she "retained [Stewart's] services once more to petition the court for a name change and paid him the sum of $350.00." ¶ 12 The hearing on Walter's name change was held on November 2, 2000. "Following the hearing, [Stewart] escorted [Walter] to her car. When they got to the car [he] grabbed [her] around [the] waist and asked her to have sex with him." "Because of the on again-off again nature of [Stewart's] relationship with [her] during the latter half of 2000, [Walter] became curious regarding [his] marital status." In a phone conversation on November 12, Stewart told Walter that he and his wife were back together and that he had not been divorced, but only separated. After their phone conversation, Stewart went to Walter's home and told her that "he reconciled with his wife to be with his children, that he was under discipline by his church for a previous affair, and that he had been living with his mother." Stewart nevertheless expressed a desire to keep in contact.

¶ 13 Over the next four days, Stewart called Walter "approximately four times a day," and, on November 16, took her out to lunch. On the evening of November 16, Walter called Stewart's wife and learned that Stewart had been married for twenty years, had never separated from his wife, had not been disciplined by his church for a previous affair, and that he had not lived with his mother at any time during his affair with Walter. Shortly after Walter's conversation with Stewart's wife, Stewart called Walter and told her that she had ruined his life and then hung up. The two have not spoken since.

¶ 14 Walter filed a complaint against Stewart. Her complaint includes claims for breach of fiduciary duty, fraud, intentional infliction of emotional distress, reckless misconduct, breach of contract, and battery. Stewart moved for summary judgment on all of Walter's claims. The trial court granted Stewart's motion in its entirety, stating simply that Walter's battery claims were barred by the statute of limitations and that Walter "failed to support by Affidavit facts sufficient to support" her other claims. She now appeals.

STANDARD OF REVIEW

¶ 15 "Whether the trial court properly granted summary judgment is a question of law that we review for correctness, according no deference to the trial court's legal conclusions." Bakowski v. Mountain States Steel, Inc., 2002 UT 62,¶ 14, 52 P.3d 1179.¹

ANALYSIS

I. Breach of Fiduciary Duty

¶ 16 "[A]ctions [for breach of fiduciary duty] are grounded on the fundamental principle that attorneys must be completely loyal to their clients and must never use their position of trust to take advantage of client confidences for themselves or for other parties." Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1290 (Utah Ct.App.1996). "In all relationships with clients, attorneys are required to exercise impeccable honesty, fair dealing, and fidelity." Id. (emphasis added). Indeed, due to their "professional responsibility and the confidence and trust" that their clients "legitimately repose" in them, attorneys "must adhere to a high standard of honesty, integrity[,] and good faith in dealing with" their clients. Id. (quotations and citation omitted). Attorneys are "not permitted to take advantage of [their] position or superior knowledge to impose upon [clients]; nor to conceal facts or law, nor in any way deceive [clients] without being held responsible therefor." Id. (emphasis added) (quotations and citation omitted).

¶ 17 "The essential elements of legal malpractice based on breach of fiduciary duty include the following: (1) an attorney-client relationship; (2) breach of the attorney's fiduciary duty to the client; (3) causation, both actual and proximate; and (4) damages suffered by the client." Id.

¶ 18 It is undisputed that an attorney-client relationship existed between Stewart and Walter through at least April of 1999. In May, Walter sought advice from Stewart regarding a sum of money she owed her ex-husband under the divorce decree. Stewart "advised [Walter] to hold off on payment to see if her ex-husband would pursue collection and further advised [Walter that] if her ex-husband tried to collect on the amount due, she could make arrangements to pay before a judgment was levied against her." This...