Kirkham v. McConkie

2018 UT App 100
THE UTAH COURT OF APPEALS
JANAE K IRKHAM ,
Appellant,
v.
BRYANT J. M CC ONKIE, DAVID W. R EAD, AND S TRONG & HANNI PC,
Appellees.
Opinion
No. 20160908-CA
Filed June 1, 2018
Third District Court, Salt Lake Department
The Honorable Ryan M. Harris
No. 150902953
Larry A. Kirkham, Attorney for Appellant
Keith A. Call and Robert T. Denny, Attorneys
for Appellees
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA H AGEN concurred.
ORME, Judge:
Appellant Janae Kirkham appeals the district court’s grant	¶1
of summary judgment in favor of Appellees Bryant J. McConkie,
David W. Read, and Strong & Hanni PC (collectively, Law Firm).
We affirm.
BACKGROUND
Kirkham retained Law Firm to represent her from 2007 to	¶2
2012 	in 	post-divorce 	proceedings.1 	In 	2011, 	Kirkham’s 	ex-
1. “When reviewing summary judgment, we recite the facts in a
light most favorable to the nonmoving party,” Kilpatrick v. Wiley,
(continued…)

Kirkham v. McConkie
20160908-CA 	2 	2018 UT App 100
husband filed a petition to modify child support, seeking, among
other things, a tax exemption for the parties’ only remaining
minor 	child.2 	Law 	Firm 	did 	not 	file 	a 	counterpetition 	in
response. Subsequent disagreements emerged between Kirkham
and Law Firm over the tax exemption issue, prompting Law
Firm to withdraw as counsel. Kirkham continued pro se, and at
the conclusion of a trial, the district court granted her ex-
husband’s petition. See Widdison v. Widdison, 2014 UT App 233,
¶ 2, 336 P.3d 1106.
Kirkham 	brought 	suit 	against 	Law 	Firm 	for 	legal	¶3
malpractice, breach of fiduciary duty, and breach of contract for
failing to file a counterpetition for increased child support. Both
sides in the malpractice action were provided a schedule of due
dates, requiring the disclosure of expert witnesses by March 25,
2016. 	See 	generally 	Utah 	R. 	Civ. 	P. 	26(a)(4)(A) 	(requiring
disclosure of any witness “who is retained or specially employed
to provide expert testimony”). Law Firm timely disclosed that it
intended to use an expert witness to testify that Law Firm did
not breach any standard of care or fiduciary duty or cause any
damages 	to 	Kirkham 	for 	failure 	to 	file 	a 	counterpetition.
Kirkham did not disclose any expert witnesses.
(…continued)
Rein & Fielding, 909 P.2d 1283, 1286 (Utah Ct. App. 1996), which
in this case is Kirkham.
2. This is Kirkham’s second appeal before this court. In her first
appeal, Widdison v. Widdison, 2014 UT App 233, 336 P.3d 1106,
we vacated the district court’s modification order granting her
ex-husband 	the 	tax 	exemption 	for 	their 	minor 	child 	and
remanded the case for additional findings. Id. ¶ 21. Kirkham
subsequently 	challenged 	those 	findings 	in 	another 	appeal
pending 	in 	this 	court, 	Widdison 	v. 	Kirkham, 	Case 	No.
20160961-CA.

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20160908-CA 	3 	2018 UT App 100
After 	the 	expert 	witness 	deadline 	passed, 	Law 	Firm	¶4
moved for summary judgment, arguing that Kirkham’s claims
should be dismissed for failure to present expert testimony as
evidence that Law Firm breached the standard of care. The
district court granted summary judgment in favor of Law Firm,
determining that Kirkham failed to satisfy her burden of proof
by not designating an expert witness to prove the essential
elements of her legal malpractice claims. Kirkham appeals.
ISSUE AND STANDARDS OF REVIEW
Kirkham 	contends 	that 	the 	district 	court 	improperly	¶5
awarded summary judgment to Law Firm. “Summary judgment
is appropriate only where there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of
law.” Salt Lake City Corp. v. Big Ditch Irrigation Co., 2011 UT 33,
¶ 18, 258 P.3d 539. Accord Utah R. Civ. P. 56(a). “We review a
district court’s grant of summary judgment for correctness and
afford no deference to the court’s legal conclusions.” Big Ditch
Irrigation Co., 2011 UT 33, ¶ 18. We also review for correctness
the district court’s determination that an expert witness was
required for Kirkham to make her prima facie case. Clifford P.D.
Redekop Family LLC v. Utah County Real Estate LLC, 2016 UT App
121, ¶ 10, 378 P.3d 109.
ANALYSIS
Kirkham argues that the district court erred in granting	¶6
summary judgment to Law Firm on account of her failure to
designate an expert witness.3 She asserts that a counterpetition is
3. Kirkham also argues that Law Firm breached its contract with
her 	by 	failing 	to 	bring 	a 	counterpetition 	to 	increase 	child
support. 	But 	Kirkham 	offered 	no 	evidence 	that 	filing 	a
counterpetition was a term of the contract; instead, she testified
that the only term of the contract was that Law Firm agreed to
represent her in the divorce case. Accordingly, we conclude that
(continued…)

Kirkham v. McConkie
20160908-CA 	4 	2018 UT App 100
considered a compulsory counterclaim under rule 13 of the Utah
Rules of Civil Procedure and that the jury could have easily
understood through “a proper jury instruction” that Law Firm’s
failure to follow rule 13 and file a counterpetition breached the
attorney standard of care.
Generally, “[i]f a defendant can show that the plaintiff has	¶7
no legally sufficient evidentiary basis for its claims at trial, the
defendant may establish the lack of a genuine issue of material
fact and an entitlement to judgment as a matter of law.” Salo v.
Tyler, 2018 UT 7, ¶ 31. Because Law Firm made the requisite
initial showing, Kirkham needed to present sufficient evidence
on each element of her negligence and breach of fiduciary duty
claims to survive summary judgment—including the attorney
standard of care. See Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d
1283, 	1290 	(Utah 	Ct. 	App. 	1996) 	(breach 	of 	fiduciary 	duty
elements); Harline v. Barker, 854 P.2d 595, 598 (Utah Ct. App.
1993) (negligence elements). The district court determined that,
by failing “to present expert testimony to prove the applicable
standards of conduct, breach and causation,” Kirkham did not
satisfy her evidentiary burden.
While expert testimony is not necessary in all cases, it is	¶8
required “where the average person has little understanding of
the duties owed by particular trades or professions,” including
“duties owed by practicing attorneys to their clients, especially
in 	cases 	involving 	complex 	and 	involved 	allegations 	of
malpractice.” Preston & Chambers, PC v. Koller, 943 P.2d 260, 263
(Utah Ct. App. 1997) (quotation simplified). Expert testimony is
unnecessary only in cases where “the defendant’s conduct is
within the common knowledge and experience of the layman.”
Id. at 263‒64 (quotation simplified). “The test for determining
whether testimony must be provided by an expert is whether the
(…continued)
the district court properly dismissed her breach of contract
claim.

Kirkham v. McConkie
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testimony requires that the witness have scientific, technical, or
other 	specialized 	knowledge; 	in 	other 	words, 	whether 	an
average 	bystander 	would 	be 	able 	to 	provide 	the 	same
testimony.” Clifford P.D. Redekop Family LLC v. Utah County Real
Estate LLC, 2016 UT App 121, ¶ 19, 378 P.3d 109 (quotation
simplified).
The district court noted that “claims for child support	¶9
may be asserted ‘at any time’” by a parent or raised sua sponte
by the district court. See Utah Code Ann. § 78B-12-210(9)(a)
(LexisNexis 2012) (stating that a petition may be raised at any
time by a parent “if there has been a substantial change in
circumstances”); Doyle v. Doyle, 2009 UT App 306, ¶¶ 20‒21, 221
P.3d 888 (holding that district courts have discretion to modify
child support obligations despite a party’s failure to petition for
such a change), aff’d, 2011 UT 42, 258 P.3d 553. Accordingly, the
district court determined that “whether a claim for child support
is a compulsory counterclaim under rule 13” that must have
been filed to satisfy the applicable standard of care would not be
“so obvious” to the average person, including those sitting on
the jury in this case. And Law Firm designated an experienced
family law attorney to testify that “the standard of conduct in
[the] 	community 	did 	not 	require 	[Law 	Firm] 	to 	file 	a
counterclaim to increase child support in the underlying divorce
case.”
We agree that the average juror would not know whether	¶10
an attorney with ordinary skill and capacity would have filed a
counterpetition under the same circumstances of this case. See
Watkiss & Saperstein v. Williams, 931 P.2d 840, 846 (Utah 1996)
(defining the attorney standard of care as the “duty to use such
skill, prudence, and diligence as lawyers of ordinary skill and
capacity commonly possess and exercise in the performance of
the tasks which they undertake”) (quotation simplified). Without
the 	help 	of 	an 	expert, 	jurors 	would 	be 	hard 	pressed 	to
understand how the Utah Rules of Civil Procedure and the Utah

Kirkham v. McConkie
20160908-CA 	6 	2018 UT App 100
Child Support Act4 operate together and whether an attorney
would have been expected to file a counterpetition, consistent
with the standards of professional conduct in the community.
Indeed, these issues require a level of expertise in the field of
family law, and an expert was therefore necessary to aid the jury
in identifying the attorney standard of care for filing petitions to
modify child support and determining whether Law Firm had
breached that standard in this case.
Consequently, in order to prevail, Kirkham needed to	¶11
retain a family law expert to testify to the standard of care,
breach, and causation elements of her claims. Given that she did
not present expert testimony in support of her case, and in
refutation of the opinions offered by Law Firm’s expert, the
district court correctly determined that Law Firm was entitled to
judgment as a matter of law.
CONCLUSION
Because Kirkham failed to carry her burden of proof by	¶12
retaining 	an 	expert witness to 	testify 	on 	her 	behalf 	to the
necessary elements of her legal malpractice claims, we conclude
that the district court correctly granted summary judgment to
Law Firm. That judgment is affirmed.
4. Utah Code Ann. § 78B-12-101 to -403 (LexisNexis 2012).