Breton v. Clyde, Snow & Sessions

2013 UT App 65
_________________________________________________________

THE UTAH COURT OF APPEALS

NEIL BRETON,

Plaintiff and Appellant,

v.

CLYDE SNOW & SESSIONS AND HAL SWENSON,

Defendants and Appellees.

Memorandum Decision
No. 20110996‐CA
Filed March 14, 2013

Third District, Salt Lake Department
The Honorable Anthony B. Quinn
No. 090919546

Jeffrey R. Oritt, Attorney for Appellant
Max D. Wheeler, Keith A. Call, and Melinda K. Bowen,
Attorneys for Appellees

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR.
and STEPHEN L. ROTH concurred.

CHRISTIANSEN, Judge:

¶1 This is a legal malpractice action sounding in negligence and
breach of contract arising from a law firm’s representation of a
cotrustee. We affirm the district court’s grant of summary judg‐
ment in favor of the law firm.

¶2 Neil Breton, a cotrustee of his father’s trust, which is known
as the Testamentary Grandchildren’s Trust (the Trust), sought
Breton v. Clyde Snow & Sessions

counsel from the law firm Clyde Snow & Sessions and attorney Hal
Swenson (collectively, Clyde Snow) regarding longstanding “intra‐
family disputes” with some of the beneficiaries of the Trust as well
as with one cotrustee.1 The beneficiaries of the Trust are Breton’s
fifteen nieces and nephews, three of whom are referred to as “the
Slater Brothers.” Breton retained Clyde Snow to assist him in
making gifts from his personal funds to each of the beneficiaries
and ultimately to “resolv[e] any outstanding issues and resolv[e]
any potential claims of [the] beneficiaries against the cotrustees of
the Trust.” Upon consulting with Clyde Snow, Breton detailed the
“lengthy history of bad feelings” and litigation between Breton and
the Slater Brothers and their parents. Breton emphasized to Clyde
Snow that he wanted them to create a plan that would be “all or
nothing,” meaning “either all beneficiaries would get payments
and all would release the cotrustees, or none would get payments.”
Around December 2004, Clyde Snow drafted and mailed a release
for each beneficiary to sign. In the release, each beneficiary would
acknowledge “that the proposed payment of $24,000 from Neil
Breton w[ould] be in full payment and satisfaction of [his or her]
interest in the . . . Trust” and release Breton and his cotrustees
“from any and all liability in connection with [his or her] interest
in the . . . Trust.”

¶3 Twelve of the fifteen beneficiaries signed the release. The
three Slater Brothers did not sign but indicated that they would.
Around February 2005, Breton knew that only twelve of the
beneficiaries had signed the release, and he “never got any advice
from [Clyde Snow] not to distribute any money until [he] had
everybody’s signatures.” That month, Breton and three of his
cotrustees distributed $24,000 to each of the twelve beneficiaries
who had signed the release. In September 2005, instead of signing

1
“When reviewing summary judgment, we recite the facts
in a light most favorable to the nonmoving party,” in this case,
Breton. See Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1286
(Utah Ct. App. 1996).

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Breton v. Clyde Snow & Sessions

the release, each of the Slater Brothers demanded $66,666.66 for
their signatures, and in June 2007, the Slater Brothers filed a lawsuit
in California against the trustees. The California lawsuit settled in
January 2009.

¶4 Breton filed the current action in November 2009, alleging,
among other things, that Clyde Snow breached its legal services
contract and committed legal malpractice, specifically, in failing to
give legal advice and concerning its drafting of the release. Breton’s
complaint alleges that Clyde Snow’s ineffective legal work created
a situation wherein the Slater Brothers acquired an economic
incentive to initiate litigation against Breton because the brothers
became the sole beneficiaries of the Trust once the twelve other
beneficiaries had signed the release.

¶5 In response to Breton’s allegations, Clyde Snow filed a
motion for summary judgment, arguing that the undisputed facts
did not support Breton’s economic‐incentive‐causation theory.
Clyde Snow argued that the Slater Brothers wished to sue Breton,
in the context of a long history of family conflict, because Breton
breached his fiduciary duty as trustee and not because of any
economic incentive. Clyde Snow also argued that Breton and his
cotrustees made the decision to pay each of the twelve beneficiaries
$24,000, even though they knew the Slater Brothers had not signed
the release and retained their right to sue.

¶6 After oral arguments, the district court orally granted Clyde
Snow’s motion for summary judgment based solely on the court’s
determination that there was an intervening cause because Breton
broke the chain of causation when he decided to pay the twelve
beneficiaries without first obtaining a release from all fifteen
beneficiaries. Breton did not deny that, at the time he distributed
the money to the twelve beneficiaries, he was aware that the Slater
Brothers had not signed the release. According to his deposition
testimony, Breton knew that the Slater Brothers “would be free to
sue me” if they did not sign the release. The district court con‐
cluded,

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Breton v. Clyde Snow & Sessions

[H]ow can there be causation if . . . Breton already
knew what he wanted to be advised by his
lawyer . . . . [I]t really comes down to what was
caused by the failure to specifically advise . . . Breton
that if you don’t get all 15 to sign you’re still at risk,
and you distribute to the 12 you’re still at risk for
being sued by the other three. And I think that it’s so
clear in anybody’s mind that [Breton] was still at risk
to be sued by the . . . three [Slater Brothers] that the
failure to tell him that was not the cause of what
happened.

Although the court explicitly ruled that reasonable inferences
drawn from the facts would preclude summary judgment as to
Clyde Snow’s other arguments, it dismissed the case with prejudice
because it ruled that the intervening cause was determinative.

¶7 On appeal, Breton argues that the district court erred when
it granted summary judgment in Clyde Snow’s favor because
whether Breton’s payment to twelve of the fifteen beneficiaries was
an intervening cause that broke the chain of causation raises a
genuine issue of material fact. Breton contends, as he did below,
that Clyde Snow indisputably failed to create “an all or nothing”
solution by drafting the release so that unless all fifteen of the
beneficiaries signed it, the release would not become effective.
Breton urges us to conclude that he raised a genuine issue of
material fact not only as to whether Clyde Snow ineffectively
drafted the release, but also as to whether Clyde Snow ineffectively
failed to advise Breton not to pay the twelve beneficiaries before
obtaining a release from all of the fifteen beneficiaries. Breton
emphasizes that Hal Swenson testified that he did not think it was
critical to have advised Breton to wait for all of the beneficiaries to
sign the release before distributing the money. By ineffectively
drafting the release and failing to give him appropriate advice,

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Breton v. Clyde Snow & Sessions

Breton argues, Clyde Snow provided the Slater Brothers with an
economic incentive to sue him.2

¶8 We “affirm [a] grant[] of summary judgment only when no
genuine issues of material fact exist and when the moving party is
entitled to ‘judgment as a matter of law.’” Kilpatrick v. Wiley, Rein
& Fielding, 909 P.2d 1283, 1289 (Utah Ct. App. 1996) (quoting Utah
R. Civ. P. 56(c)). “We . . . review the . . . court’s grant of summary
judgment for correctness” and “‘view the facts, including all
inferences arising from those facts, in a light most favorable to the
party opposing the motion and will allow the summary judgment
to stand only if the movant is entitled to judgment as a matter of
law on the undisputed facts.’” Id. (quoting Republic Grp., Inc. v.
Won‐Door Corp., 883 P.2d 285, 288–89 (Utah Ct. App. 1994)). We
may also affirm the district court’s entry of summary judgment on
alternate grounds apparent in the record. Commercial Real Estate
Inv., LC v. Comcast of Utah II, Inc., 2012 UT 49, ¶ 14, 285 P.3d 1193.

¶9 Causation is the only disputed element of this legal
malpractice action that we must address in this appeal. “‘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

2
As a side note, Breton contends that the district court
misapprehended one aspect of his argument by believing that he
was asserting that Clyde Snow should have advised him that
any of the beneficiaries who did not sign the release retained the
right to sue him and the other trustees, when instead he actually
argued that Clyde Snow should have advised him not to
distribute money until he had received all of the releases. We
believe that the district court clearly understood Breton’s
argument when it concluded that there was no difference
between the two ways of looking at the issue: “[Breton] knew,
regardless of whether he paid the money or not, until he had all
15 signed he could still be sued by whoever did [not] sign and
that’s the ultimate cause . . . .”

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Breton v. Clyde Snow & Sessions

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.’” Crestwood Cove Apartments Bus.
Trust v. Turner, 2007 UT 48, ¶ 30, 164 P.3d 1247 (quoting Harline v.
Barker, 912 P.2d 433, 439 (Utah 1996)). “To prevail in legal
malpractice actions, clients must establish actual cause—that but
for the attorney’s wrong their loss would not have occurred—and
proximate cause—that a reasonable likelihood exists that they
would have ultimately benefited.” Kilpatrick, 909 P.2d at 1291.
“Proximate cause is that cause which, in natural and continuous
sequence[ ] (unbroken by an efficient intervening cause), produces
the injury and without which the result would not have occurred.
It is the efficient cause—the one that necessarily sets in operation
the factors that accomplish the injury.” Harline, 912 P.2d at 439
(alteration in original) (citations and internal quotation marks
omitted). We are also tasked with determining whether an
intervening cause broke the chain of causation in this case. “An
intervening cause is an independent event, not reasonably
foreseeable, that completely breaks the connection between fault
and damages.” Kilpatrick, 909 P.2d at 1293 (citing Steffensen v.
Smith’s Mgmt. Corp., 820 P.2d 482, 487–88 (Utah Ct. App. 1991),
aff’d, 862 P.2d 1342 (Utah 1993)).

¶10 “Causation is a highly fact‐sensitive element of any cause of
action” and “generally . . . cannot be resolved as a matter of law.”
Id. at 1292 (citation and internal quotation marks omitted).
Moreover, “Utah courts have always recognized the fact‐intensive
nature of intervening cause inquiries.” Id. at 1293. However,
“proximate cause issues can be decided as a matter of law . . . when
the facts are so clear that reasonable persons could not disagree
about the underlying facts or about the application of a legal
standard to the facts.” Harline, 912 P.2d at 439. And although
intervening cause inquiries are typically fact‐intensive, they too can
be decided as a matter of law. See, e.g., Christensen & Jensen, PC v.
Barrett & Daines, 2008 UT 64, ¶ 32, 194 P.3d 931 (determining
causation on summary judgment where the facts were
undisputed); Dee v. Johnson, 2012 UT App 237, ¶¶ 6–9, 286 P.3d 22

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Breton v. Clyde Snow & Sessions

(holding that summary judgment was proper where the only
reasonable conclusion that could be drawn from the undisputed
facts was that the defendant’s “negligent driving was [not] the
cause which, in a natural and continuous sequence, unbroken by
any new cause, produced the injury, and without which the injury
would not have occurred” (citation and internal quotation marks
omitted)); Bansasine v. Bodell, 927 P.2d 675, 677 (Utah Ct. App. 1996)
(affirming district court’s summary judgment where a reasonable
jury could not have found that the defendant caused the harm
because he could not have foreseen the intervening cause of harm).

¶11 Because there were no genuine issues of material fact and
Clyde Snow was entitled to summary judgment as a matter of law,
we determine that the court did not err in granting summary
judgment in Clyde Snow’s favor. Significantly, Breton has not
articulated below or on appeal any legal support for his theory that
the Slater Brothers gained an economic incentive to sue him
because they became entitled to a 100% interest in the corpus of the
Trust after the other beneficiaries had been released. Clyde Snow
cites the Restatement to support its argument that, in fact, once the
other beneficiaries had been released, the Slater Brothers did not
have a legal right to a 100% interest in the corpus of the Trust as
damages, to the exclusion of the releasing beneficiaries. See
Restatement (Third) of Trusts § 97 cmt. c(1) (2012) (“[T]he consent
to or ratification of a breach of trust, or the granting of a release, by
one or more of the beneficiaries does not preclude other
beneficiaries of the trust from holding the trustee liable for the
breach, insofar as their interests are affected.”). Without deciding
whether this rule of law applies to this case, we conclude that
Breton has not advanced a persuasive legal argument to support
his position that Clyde Snow’s ineffectively‐drafted release and
lack of proper advice caused the Slater Brothers to sue him by
giving them an economic incentive.3 Clyde Snow could not have

3
As indicated, see supra ¶ 9, we need not decide whether
Clyde Snow actually breached the contract or its duty of care
(continued...)

20110996‐CA 7 2013 UT App 65
Breton v. Clyde Snow & Sessions

reasonably anticipated that the Slater Brothers might come to a
questionable legal conclusion, i.e., that as the only remaining non‐
releasing beneficiaries, they automatically became the beneficiaries
of 100% of the corpus of the trust and therefore gained an economic
incentive to sue Breton.

¶12 A logical fallacy known as post hoc ergo propter hoc (which
translates to “after this and therefore because of this”) underlies
Breton’s arguments below and on appeal. See Sunward Corp. v. Dun
& Bradstreet, Inc., 811 F.2d 511, 521–22 (10th Cir. 1987) (rejecting
plaintiff’s defamation claim because its inferences were
“impermissible speculation” and a logical fallacy because they
“assum[ed] a causal connection between two events merely
because one follows the other” (citation and internal quotation
marks omitted)). Breton argues that the Slater Brothers sued him
after Clyde Snow ineffectively drafted the release and failed to
properly advise him not to pay the beneficiaries because the
ineffective release and advice gave the Slater Brothers an economic
incentive to sue Breton. In other words, after Clyde Snow was
negligent, the Slater Brothers sued Breton; therefore, the Slater
Brothers sued Breton because Clyde Snow was negligent. We
decline to adopt this circular reasoning.

¶13 Assuming Clyde Snow had drafted the release exactly as
Breton wanted it, which is to say, containing a provision that
without all fifteen signatures the release would not have become
effective, then the result would be that if any fewer than all fifteen
of the beneficiaries signed the release, all fifteen beneficiaries
would have remained free to sue Breton. Thus, assuming Clyde
Snow ineffectively drafted the release, Breton is not worse off by
having three, rather than fifteen, beneficiaries free to sue him.
Ultimately, we see no difference in the alleged harm Breton

3
(...continued)
because only causation was at issue in Clyde Snow’s motion for
summary judgment.

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Breton v. Clyde Snow & Sessions

suffered in that there does not seem to be legal significance in the
potential for Breton to be sued by three beneficiaries versus fifteen.

¶14 In addition, as the district court ruled, even if Breton had
been satisfied with the release that Clyde Snow prepared, Clyde
Snow “could not possibly have forced the Slater Brothers to sign
[that] release[].” It is wholly speculative that the Slater Brothers, or
for that matter, any of the other beneficiaries, would have signed
a satisfactorily‐drafted release.

¶15 Finally, we agree with the district court that Breton broke
the chain of causation when he decided to pay the twelve
beneficiaries without first obtaining a release from all fifteen of
those beneficiaries. Breton acknowledged that he retained Clyde
Snow to devise a plan to release him and his cotrustees from
potential claims. Breton knew that if he did not obtain a release
from all of the beneficiaries and especially the Slater Brothers given
the antagonistic family history, he was at risk of being sued by
whomever did not sign the release. Breton therefore knew that
distributing monies to the beneficiaries who had signed the release
before obtaining the signatures of all fifteen of the beneficiaries
would leave the door open for the Slater Brothers to sue him. A
reasonable jury simply could not disagree about the underlying
undisputed fact that Breton knew of this possibility. Thus, Breton’s
action in paying the twelve beneficiaries without obtaining the
Slater Brothers’ releases was an intervening cause breaking any
chain of causation, and the district court properly concluded that
Breton caused his own harm.

¶16 For all of the above reasons, we affirm the district court’s
grant of summary judgment in favor of Clyde Snow.

20110996‐CA 9 2013 UT App 65