Rusk v. Harstad

2017 UT App 27

THE UTAH COURT OF APPEALS

ZACHARY R.E. RUSK,
Appellant,
v.
KASS HARSTAD AND STRINDBERG & SCHOLNICK LLC,
Appellees.

Per Curiam Decision
No. 20161014-CA
Filed February 9, 2017

Third District Court, Salt Lake Department
The Honorable James D. Gardner
No. 160905193

Zachary R.E. Rusk, Appellant Pro Se
Stuart H. Schultz, Attorney for Appellees

Before JUDGES STEPHEN L. ROTH, KATE A. TOOMEY, and DAVID N.
MORTENSEN.

PER CURIAM:

¶1 Zachary R.E. Rusk appeals the order granting summary
judgment on his legal malpractice complaint. This case is before
the court on a sua sponte motion for summary disposition. We
affirm.

¶2 The district court ruled that “based upon the undisputed
facts, the record does not support a finding that an attorney-
client relationship existed between” Rusk and Defendants Kass
Harstad or Strindberg & Scholnick LLC (the law firm). The
district court stated that Harstad and the law firm presented
undisputed evidence of communications indicating that the law
firm would not represent Rusk, which also showed that Rusk
understood that the law firm did not represent him. The district
court also stated, “No reasonable trier of fact could conclude that
Rusk v. Harstad

[Rusk] had a reasonable belief that he was being represented by
Defendants.” Because Rusk failed to meet his burden in
opposition to the motion for summary judgment, the district
court concluded that Rusk’s legal malpractice claim failed as a
matter of law.

¶3 “The [district] court shall grant summary judgment if the
moving party shows that there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a
matter of law.” Utah R. Civ. P. 56(a). In reviewing the district
court’s determination that there is no genuine issue of material
fact, this court “view[s] the facts and all reasonable inferences in
a light most favorable to the party opposing the motion.”
Neiderhauser Builders & Dev. Corp. v. Campbell, 824 P.2d 1193, 1196
(Utah Ct. App. 1992). “We review the trial court’s conclusions of
law for correctness, including its conclusion that there are no
material fact issues.” Id. (citation omitted).

¶4 The elements of a legal malpractice case are “(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.” Roderick v. Ricks, 2002 UT 84,
¶ 29, 54 P.3d 1119 (citation and internal quotation marks
omitted). Therefore, “in a legal malpractice action, the threshold
question is whether an attorney-client relationship was
established.” Breuer-Harrison, Inc. v. Combe, 799 P.2d 716, 727
(Utah Ct. App. 1990). “Once this relationship is proven,” the
client has the burden to show the additional elements of the legal
malpractice claim. See id.

¶5 Harstad and the law firm filed a motion for summary
judgment listing the facts they claimed were undisputed,
supporting the motion with Harstad’s sworn statement, which
included attached communications between Rusk and Harstad.
Rusk did not file an opposition memorandum that complied
with rule 56(a)(2), which would require a verbatim recitation of

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Rusk v. Harstad

each of the facts in the summary judgment motion that Rusk
disputed supported by citation to materials in the record. Utah
R. Civ. P. 56(a)(2). Instead, Rusk submitted additional emails
dating from before his consultation with Harstad. Those emails
confirmed Rusk’s understanding that he would be required to
pay $200 for a consultation, after which the law firm would
determine whether it would agree to represent him. In those
emails, Rusk asked that Harstad not review documents he had
provided unless the law firm decided to take his case. These
email communications showed that Rusk knew that the law firm
had not agreed to represent him and that he was paying only for
a preliminary consultation. Accordingly, Rusk’s memorandum
in opposition to summary judgment did not demonstrate any
genuine dispute of material fact.

¶6 The undisputed facts show that after the consultation,
Rusk emailed Harstad on June 15, 2015, stating that he
understood the law firm had not yet reviewed his case, but he
believed that he and the law firm should “part ways right now.”
Harstad acknowledged Rusk’s email and said she would send a
letter that morning indicating that the law firm would not be
representing Rusk. Harstad sent Rusk a letter dated June 15,
2015, which stated, in part: “We are writing to confirm that we
will not be taking any further action regarding this matter on
your behalf.”

¶7 Rusk later filed a pro se complaint against his former
employer in federal court. On August 25, 2015, Rusk emailed
Harstad to express his belief that perhaps she was helping his
former employer in his lawsuit. In the email exchange that
followed, Harstad reiterated that the law firm did not represent
Rusk and also stated that neither she nor the law firm
represented, assisted, or communicated with his former
employer about his legal dispute and would not do so in the
future. In another email, Harstad explained why the law firm
would not represent him. Rusk responded, “Understood.” In a

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Rusk v. Harstad

final email, Harstad again stated that the law firm would not
represent Rusk in his case against his former employer, nor
would it represent, communicate with, or assist his former
employer. Based upon these undisputed facts, the district court
found that there was no genuine issue of material fact about the
threshold question of whether an attorney-client relationship
existed.

¶8 In response to this court’s motion for summary
disposition, Rusk apparently claims that an implied attorney-
client relationship existed because he paid a fee for a
consultation and because Harstad made statements he
characterizes as legal advice.1 In the summary judgment motion
filed in the district court, Harstad and the law firm addressed a
potential claim that an implied attorney-client relationship
existed. “*T]he proper determination of whether an implied
attorney-client relationship exists hinges on whether [Rusk] had
a reasonable belief that *he+ was represented.” Kilpatrick v. Wiley,
Rein & Fielding, 2001 UT 107, ¶ 40, 37 P.3d 1130. For a person to
reasonably believe that an attorney represents him or her, “(1)
the person must subjectively believe the attorney represents him
or her and (2) this subjective belief must be reasonable under the
circumstances.” Roderick, 2002 UT 84, ¶ 40. The communications
between Rusk and Harstad clearly stated that the law firm
would not represent Rusk. Rusk later filed a pro se complaint
against his former employer and sought appointment of pro
bono counsel in that federal case. The undisputed facts
demonstrate that there was no basis for a reasonable belief that

1. Rusk claims that Harstad agreed to pursue the “EEOC
process” on his behalf and had a duty to do so. However, this
email discussion of possible courses of action pre-dated the
emails and letter dated June 15, 2015, which clearly
communicated that the law firm would not represent Rusk in the
matter regarding his former employer.

20161014-CA 4 2017 UT App 27
Rusk v. Harstad

an attorney-client relationship existed between Rusk and
Harstad or the law firm. Accordingly, the district court did not
err in concluding that “*n+o reasonable trier of fact could
conclude that Rusk had a reasonable belief that he was being
represented by” Harstad or the law firm.

¶9 For the first time on appeal, Rusk claims that the law firm
should be equitably estopped from denying that an attorney-
client relationship existed. This claim was not presented to the
district court, and it also lacks support in law or fact.

¶10 Based upon the undisputed facts, the district court did not
err in determining that there was no express or implied attorney-
client relationship. Accordingly, we affirm.

20161014-CA 5 2017 UT App 27