Newton v. Stoneridge Apartments

2018 UT App 64

THE UTAH COURT OF APPEALS

CHELSIE GWEN NEWTON, JERRICKO ROBERT NEWTON, RONALD
PRESTON ISAACSON, AND SUZIE GWEN NEWTON,
Appellants,
v.
STONERIDGE APARTMENTS, CHRIS EDWARD WALL, TARA COHAN
WALL, WALL BROTHERS REAL ESTATE LIMITED PARTNERSHIP, AND
WALL BROTHERS INC.,
Appellees.

Opinion
No. 20150957-CA
Filed April 12, 2018

Fourth District Court, Spanish Fork Department
The Honorable M. James Brady
No. 120300155

D. David Lambert, Leslie W. Slaugh, and Andrew B.
Berry Jr., Attorneys for Appellants
Daniel S. McConkie and Ryan Beckstrom, Attorneys
for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGE GREGORY K. ORME concurred. JUDGE MICHELE M.
CHRISTIANSEN concurred in the result.

MORTENSEN, Judge:

¶1 The district court disqualified a law firm from
representing the appellants in this case, finding that a substantial
relationship existed between this and an earlier case. Prior to the
law firm’s participation and removal in the present case, it
represented, in the earlier case, Tyler Lloyd Peterson—a key
witness in this case. Because that finding was erroneous, we
Newton v. Stoneridge Apartments

vacate the district court’s order and remand this case for further
proceedings.

BACKGROUND

¶2 Peterson was a tenant of Stoneridge Apartments. 1 In
exchange for reduced rent, Peterson performed various
managerial duties such as collecting rent, handing out furnace
filters, and cleaning the exterior of the building. In 2011,
Peterson pled guilty to sexually assaulting 2 a member of the
Newton family; 3 the Newtons were tenants of Stoneridge at the
time. In 2012, the Newtons filed the present action against
Peterson and Stoneridge as a result of the assault, alleging that
Stoneridge should be held liable for the intentional tortious
actions of Peterson.

¶3 While originally represented by a different attorney, the
Newtons eventually retained D. David Lambert (Lambert) of the
law firm Howard, Lewis & Petersen PC (the Firm), who entered
his appearance as counsel for the Newtons in September 2014.
Another attorney at the Firm (Attorney) had previously
represented Peterson in a 2002 custody and support case.
Roughly two and a half months after Lambert appeared in the
case, Peterson moved to disqualify Lambert and the Firm due to
Attorney’s previous representation.

1. Stoneridge Apartments is an appellee in this case, as are the
owners of Stoneridge Apartments and their related business
entities. We refer to the appellees collectively as Stoneridge.

2. Peterson pled guilty in the resulting criminal case against him.

3. All of the appellants are members of the Newton family. We
refer to them collectively as the Newtons.

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¶4 Attorney filed a declaration stating that he had not
received any information about Peterson in the 2002 case that
could possibly be of use in the instant case. Lambert also filed a
declaration, stating that he had not received any information
from Attorney or from any files held by the Firm regarding the
2002 case that was relevant to the instant case. Both attorneys
stated that screening measures had been implemented to ensure
that Lambert would not learn any confidential information
Attorney might have received. Nevertheless, the district court
granted Peterson’s motion to disqualify both the Firm and
Lambert. The district court explained that the Firm had
“acquired personal, private information regarding [Peterson]
which is protected by Rules 1.6 and 1.9(c) [of the Utah Rules of
Professional Conduct], [and] which is material to the present
case.” The court also noted that the Firm “has not demonstrated
that [Peterson] waived the disqualification of [the Firm] in this
case.”

¶5 Shortly after the disqualification of the Firm, the Newtons
stipulated to the dismissal of Peterson from the case with
prejudice. And four months after his dismissal, the Newtons
filed a motion “to determine issues regarding disqualification
now that . . . Peterson has been dismissed with prejudice.” 4 They
argued that Stoneridge had not moved for disqualification and
lacked standing to do so, and that the disqualification only
prevented the Firm from representing a party opposed to
Peterson. Consequently, the Newtons asked the district court to
partially vacate the order of disqualification.

4. The Newtons brought this motion citing only rule 7 of the
Utah Rules of Civil Procedure. That rule sets forth the general
process and requirements for making motions. See Utah R. Civ.
P. 7(b). For ease of reference and for purposes of our analysis, we
refer to the Newtons’ motion as the Motion to Determine. See
infra Part III.

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¶6 The district court declined to vacate its previous order. It
noted that the advisory ethics opinion on which the Newtons
had relied concluded “that the cross-examination of a former
client by an attorney does not create a per se disqualifying
conflict of interest, but advises that the evaluation of the conflict
must go further to include the specific facts and circumstances of
the case.” The district court then explained that the order of
disqualification had not been “conditional, provisional, or
limited to whether or not . . . Peterson is a party in the present
action . . . [the interests of the Newtons] are adverse to . . .
Peterson’s interests even though he is not a party in the present
case.”

¶7 The Newtons timely requested leave to take an
interlocutory appeal from the district court’s decision not to
vacate its order of disqualification. We granted the request.

ISSUES AND STANDARD OF REVIEW

¶8 The Newtons first contend that Stoneridge had no
standing to bring a motion to disqualify Lambert or the Firm.
The Newtons next contend that the district court erred in
determining that the 2002 custody and support case was
substantially related to the instant case. The Newtons also
contend that the district court failed to properly reconsider its
determination that disqualification was required after Peterson
was dismissed from the case. Finally, the Newtons contend that
the district court abused its discretion by failing to “weigh the
beneficial and harmful effects of disqualification.” “The proper
standard of review for decisions relating to disqualification is
abuse of discretion. However, to the extent [an appellate court]
has a special interest in administering the law governing
attorney ethical rules, a trial court’s discretion is limited.” Snow,
Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 18, 299 P.3d
1058 (cleaned up).

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ANALYSIS

¶9 We disagree with the Newtons that traditional standing
requirements demand reversal of the district court’s order. But
we agree that the district court improperly applied our
disqualification rules to the case at hand.

I. Standing

¶10 The Newtons first contend that the district court abused
its discretion by “disqualifying [the Newtons’] counsel for the
benefit of a party that had never moved for disqualification and
which had never been a prior client of the firm.” They argue that
Stoneridge did not have standing to file such a motion, pursuant
to Rule 1.9 of the Utah Rules of Professional Conduct, which
provides that a duty to a former client is owed when there is an
attorney-client relationship upon which the prior representation
was based. Here, the Newtons allege that Stoneridge lacked
standing because the only attorney-client relationship that was
formed between Lambert or the Firm was with Peterson—not
Stoneridge.

¶11 In typical motion practice, a party can only oppose a
motion if that party has a dog in the fight. See e.g., Packer v.
National Service Indus., Inc., 909 P.2d 1277, 1278 (Utah Ct. App.
1996) (determining that a codefendant in a multiparty litigation
could not oppose a summary judgment motion between other
parties where no cross-claim had been brought). This principle
does not pertain to issues of disqualification because such
determinations do not flow from the pleadings or the parties but
instead find their genesis in the inherent power of the court to
regulate the practice of law. See Featherstone v. Schaerrer, 2001 UT
86, ¶ 17, 34 P.3d 194 (stating that the trial court’s decision to
employ its inherent power to control the conduct of attorneys
“operates independently of how the court learns of a potential
ethical or other violation”). But rule 1.9 simply states that a

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lawyer shall not represent certain clients or do certain things in
specified circumstances. See Utah R. Prof’l Conduct 1.9.

¶12 There is no indication in the language of rule 1.9 that
standing is required to file a motion to disqualify; even though
the rule 1.9 issues were brought to the district court’s attention
by motion, the district court took on the task of enforcement
itself, which is proper. Trial courts wield the power to correct
violations on their own initiative or in response to a motion from
a party. See Featherstone, 2001 UT 86, ¶ 17, 34 P.3d 194. Because
the issue presented is one of potential disqualification, we agree
that Stoneridge could properly assist the trial court in employing
its inherent power regardless of whether Stoneridge’s interests
were implicated.

II. Disqualification

¶13 While we disagree with the Newtons’ contentions
regarding Stoneridge’s lack of standing, we agree that the
district court erred in ultimately concluding that the Firm should
be disqualified. To begin, we clarify that the district court made
its order under subsection (b) of rule 1.9 of the Utah Rules of
Professional Conduct, which discusses duties to former clients.
Then, reaching the merits of the Newtons’ challenges, we
conclude that the district court abused its discretion by
erroneously finding that a substantial relationship existed
between this and the earlier case. That revelation requires
reversal of the district court’s order.

A. The District Court’s Order Applying Rule 1.9

¶14 We begin by discussing the district court’s framework for
our analysis. In its brief, Stoneridge repeatedly refers to
subsections (a) and (c) of rule 1.9 to argue that the district court’s
disqualification order should stand. Of particular note is
Stoneridge’s conclusion that despite Peterson’s dismissal from
the case, under subsection (c), “Lambert is still forbidden from

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us[ing] information relating to the representation [of Peterson] to
the disadvantage of [Peterson], or, more broadly, from even
representing a client—such as [the Newtons]—whose interests
are materially adverse to his former client’s interests.” (Quoting
Utah R. Prof’l Conduct 1.9(c)(1).) But the district court actually
disqualified the Firm and Lambert under subsection (b).

¶15 Subsection (b) of rule 1.9 mandates:

(b) A lawyer shall not knowingly represent a
person in the same or a substantially related matter
in which a firm with which the lawyer formerly
was associated had previously represented a client

(b)(1) whose interests are materially adverse to
that person; and

(b)(2) about whom the lawyer had acquired
information protected by Rules 1.6 and 1.9(c) that
is material to the matter; unless the former client
gives informed consent, confirmed in writing.

Utah R. Prof’l Conduct 1.9(b). The district court ordered the
disqualification of the Firm for four reasons, which track the
language of subsection (b) almost exactly:

1. A member of [the Firm] has formerly
represented [Peterson] in a substantially related
matter.

2. The interests of [the Firm’s] current client
are materially adverse to the interests of [Peterson].

3. [The Firm] acquired personal, private
information regarding [Peterson] which is
protected by Rules 1.6 and 1.9(c), an[d] which is
material to the present case.

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4. [The Firm] has not demonstrated that
[Peterson] waived the disqualification of [the Firm]
in this case.

¶16 Subsection (b)’s mere reference to subsection (c) cannot
convert the district court’s disqualification under subsection (b)
to a disqualification under subsection (c). Thus, we are tasked
with determining whether the district court properly ordered
disqualification under subsection (b). It did not.

B. The District Court’s Substantial-Relationship Finding

¶17 In its order, the district court determined that the Firm
had “formerly represented [Peterson] in a substantially related
matter.” This determination is a factual finding. 5 See Roderick v.
Ricks, 2002 UT 84, ¶¶ 52–55, 54 P.3d 1119 (upholding the district
court’s findings that the earlier instances of an attorney’s
representation were “not substantially factually related to the
matter involving” the present case on appeal). We typically
expect challenges to factual findings to include marshaling of the
evidence supporting the findings, though this is no longer a
“hard-and-fast” requirement. See State v. Nielsen, 2014 UT 10,
¶¶ 40–41, 326 P.3d 645. But even when marshaling was a

5. The Newtons seem to believe—and Stoneridge does not take
issue with the belief—that the determination of substantial
relationship is a conclusion of law that should be reviewed for
an abuse of discretion. However, in Roderick v. Ricks, 2002 UT 84,
54 P.3d 1119, the Utah Supreme Court, in deciding a challenge to
a rule 1.9(a) disqualification, referred to a substantial-
relationship determination as a “factual finding,” which it
reviewed for clear error. See id. ¶¶ 53, 55. We therefore read the
Newtons’ challenge on this point as a challenge to the district
court’s factual findings, the merits of which are reviewed for
clear error.

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requirement for a successful challenge to a finding of fact, there
was an understood exception: “If there simply is no supportive
evidence, counsel need only say so and the challenge will be
well-taken—counsel is not expected to marshal the nonexistent.”
Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733.

¶18 This is essentially what we have in this case. In
challenging the district court’s substantial-relationship finding,
the Newtons assert, “There is no factual overlap between the
custody case and the current tort case.” And given the district
court’s failure to provide any support for its finding, the
Newtons’ challenge is well taken for two reasons. See Woodward
v. Fazzio, 823 P.2d 474, 477 (Utah Ct. App. 1991) (explaining that
a “marshaling effort was largely ineffectual by reason of the
conclusory nature of the trial court’s findings of fact”); id. at 478
(concluding that affirmance was “impossible” in large part
because the trial court’s findings provided “an inadequate
account of the actual facts supporting the court’s ultimate
decision”; most of the findings were “conclusory, and reflect an
intention to merge the trial court’s ultimate factual
determinations with the requirements of the [relevant legal
test]”).

¶19 First, the district court provided no explanation for its
ultimate finding that the two matters are substantially related. It
merely stated the conclusory fact that they are. But a review of
the record before us—which was also before the district court—
shows that there is insufficient evidentiary support for a finding
of substantial relationship. The record provides little information
regarding any possible factual link between the two cases.
Instead, the district court seems to have rested its finding on the
sole fact that Peterson was involved in both the prior and the
current case. But the mere existence of a common party or player
is not enough for disqualification under rule 1.9 of the Utah
Rules of Professional Conduct; if it were, the rule would be
much shorter and would make no mention of substantially

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related matters, materially adverse interests, or acquisition of
protected information.

¶20 Here, we know only that in 2002, the Firm represented
Peterson in a domestic matter. The case involved custody and
support issues, and the matter was resolved by agreement of the
parties in May of that year. The present case, for which the Firm
entered an appearance in 2014, rests on allegations that Peterson
committed a sexual assault in August 2011, more than nine years
after the domestic matter concluded, against a victim wholly
unrelated to the prior matter. As our supreme court concluded
in Cheves v. Williams, 1999 UT 86, 993 P.2d 191, such “general
statements concerning the prior representation [are] insufficient
to support [an attorney’s] disqualification.” 6 Id. ¶ 60. We see
nothing more than general statements in the record. Therefore,
the district court’s finding of a substantial relationship, along
with its disqualification of the Firm—without more—is
unsupported.

¶21 Second, given the facts available in the record, there
appears to be no factual nexus—much less a substantial one—
between the Newtons’ claims and the earlier representation. See
Houghton v. Department of Health, 962 P.2d 58, 62–63 (Utah 1998),
overruled on other grounds by Arkansas Dep’t of Health & Human
Services v. Ahlborn, 547 U.S. 268 (2006). 7

6. Further, our supreme court has also recognized that the
misuse of “disqualification motions based on very slight
appearances of impropriety” for “tactical advantage in
litigation” will not be tolerated. Margulies ex rel. Margulies v.
Upchurch, 696 P.2d 1195, 1204 (Utah 1985).

7. Houghton interpreted an earlier version of rule 1.9. See
Houghton v. Department of Health, 962 P.2d 58, 61 (Utah 1998),
overruled on other grounds by Arkansas Dep’t of Health & Human
(continued…)

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¶22 In Houghton, our supreme court explained:

In construing Utah’s Rule 1.9(a), 8 the federal courts
and the Utah Court of Appeals have referred to the

(…continued)
Services v. Ahlborn, 547 U.S. 268 (2006). That version of the rule—
interpreted not only by Houghton but also at issue in much of our
other rule 1.9 jurisprudence—disqualified attorneys when
matters were “substantially factually related.” See Utah R. Prof’l
Conduct 1.9(a) (2005). In 2005, the Supreme Court amended rule
1.9 and removed the word “factually.” Compare id. (Supp. 2005),
with id. R. 1.9(b) (2017). Since that time, neither this court nor our
supreme court has had occasion to consider in any detail what
effect the amendment should have on our analysis. However, we
believe the amendment makes little difference here. Comment 2
to the current rule explains, “The scope of a ‘matter’ for purposes
of this Rule depends on the facts of a particular situation or
transaction.” Id. R. 1.9 cmt. 2 (2017) (emphasis added). Likewise,
comment 3 addresses when matters are substantially related and
suggests, in part, that “knowledge of specific facts gained in a
prior representation that are relevant to the matter in question”
likely precludes subsequent representation. Id. R. 1.9 cmt. 3
(emphasis added). Furthermore, federal cases interpreting the
current version of our rule have continued to “evaluate
‘substantiality by focusing on the factual nexus between the prior
and current representation rather than a narrower identity of
legal issues.’” Becker v. Ute Indian Tribe of the Uintah & Ouray
Reservation, No. 2:13-CV-00123, 2013 WL 4046315, at *2 (D. Utah
Aug. 7, 2013) (emphasis added) (quoting SLC Ltd. V v. Bradford
Group West, Inc., 999 F.2d 464, 467 (10th Cir. 1993)). Thus, we rely
on Houghton in conducting the present inquiry.

8. Houghton references subsections (a) and (b) of the earlier
version of rule 1.9. See 962 P.2d at 61. In that earlier version,
(continued…)

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necessity for a distinct, factual link between the
former and present representations. In SLC Ltd. V
v. Bradford Group West, Inc., 999 F.2d 464, 467 (10th
Cir. 1993), the United States Court of Appeals for
the Tenth Circuit stated that Utah’s requirement
“focus[es] on the factual nexus between the prior
and current representations rather than a narrower
identity of legal issues.”

Houghton, 962 P.2d at 62. The court went on to explain that in the
case before it, there was “no common factual nexus.” Id.
(emphasis omitted).

¶23 Like the court in Houghton, we conclude that “[t]he
adjudication of” the claims against Stoneridge “[do] not involve
any factual information arising out of [the Firm’s] prior
representation[].” See id. “Because the particular facts involved in
the prior representation[] are not in issue here nor are they in
any way even relevant in the present lawsuit,” there is no
support for a finding that the two cases are substantially related.
See id. at 62–63; see also Joint Sugar House, LLC v. I4 Solutions, No.
2:16-cv-00151, 2016 WL 2344220, at *3 (D. Utah May 3, 2016)
(finding no substantial relationship between a prior
representation in which attorneys helped draft portions of a

(…continued)
subsection (b) mandated that attorneys not “[u]se information
relating to the representation to the disadvantage of the former
client except . . . when the information has become generally
known.” See id. (quoting Utah R. Prof’l Conduct 1.9(a) (1998)).
Thus, what was once subsection (b) matches the current
language of subsection (c)(1). See Utah R. Prof’l Conduct 1.9(c)(1)
(2017). And what is now subsection (b) was included in what the
Houghton court cites as subsection (a). Compare id. R. 1.9(a) (1998),
with id. R. 1.9(b) (2017).

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contract and a subsequent representation where that same
contract was at issue but the claims asserted dealt with copyright
infringement, not breach of the contract).

¶24 In other words, we agree with the Newtons that “even if
it were assumed that in the 2002 custody case [the Firm] had to
deal with . . . Peterson’s character, misconduct, abusive behavior,
or criminal history,” there is no distinct factual link between that
representation and the present case, which turns on what
Stoneridge knew or should have known when it entrusted
Peterson with access to the Newtons’ apartment. “Although
there may be some factual overlap between the prior and current
representation, it is not the type of overlap that can be regarded
as changing sides in the matter or as creating a risk that
confidential factual information would materially advance any
party’s position in this current litigation.” See Ironshore Specialty
Ins. v. Callister Nebeker & McCullough, No. 2:15-cv-677-RJS-BCW,
2016 WL 2858800, at *2 (D. Utah May 16, 2016). Ultimately, this
case is not about Peterson’s domestic past; it is about his criminal
behavior a decade later. We therefore conclude that the district
court clearly erred when it found the two matters were
substantially related. 9

III. Motion to Determine

¶25 We also conclude that the district court erred when it
refused to alter its ruling—which rested on the existence of an
attorney-client relationship—after the client was removed from
the picture. It declined to amend that ruling because “[n]othing
in the court’s order of disqualification indicated it was

9. We are not blind to the fact that information Peterson may
have provided Attorney might still be off limits at trial under
rule 1.9(c), but that was not the basis for the district court’s
ruling.

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conditional, provisional, or limited to whether or not . . .
Peterson is a party in the present action.” We acknowledge that
the original disqualification order contained no such condition,
provision, or limitation; however, when exercising its discretion
in deciding the motion, the district court could not rely upon a
faulty legal premise. Kilpatrick v. Bullough Abatement, Inc., 2008
UT 82, ¶ 23, 199 P.3d 957 (stating that an abuse of discretion may
be demonstrated by showing a district court relied on an
erroneous conclusion). And in this case, it was erroneous to
conclude that the absence of Peterson as a party was immaterial.
Peterson’s party or non-party status is critical to a proper
application of rule 1.9(b).

¶26 Again, rule 1.9(b) requires disqualification only if
Peterson’s interests are “materially adverse to” the Newtons’
interests. See Utah R. Prof’l Conduct 1.9(b)(1). Part of the
Newtons’ appeal rests on the following assertion: “If, as the trial
court has ruled, there were grounds to disqualify [Lambert]
when [Peterson] was a party to this case, those grounds no
longer applied to disqualify [Lambert] once [Peterson] was no
longer a party and had been dismissed with prejudice.” We
agree.

¶27 Subsection (b)(1) speaks in the present tense, considering
whether a former client’s “interests are materially adverse to” a
current client’s interests. See id. (emphasis added). One’s
interests as a defendant in a lawsuit are necessarily different
from one’s interests as only a witness in that same suit, meaning
Peterson’s interests changed when his status changed from
defendant to witness. Once that change of interests occurred, it
was incumbent upon the district court to re-evaluate whether
Peterson’s interests were still materially adverse to the
Newtons’. The court’s conclusory assertion, in denying the
Motion to Determine, that “[i]nterests of the Newtons are
adverse to [Peterson’s] interests even though he is not a party in
the present case,” is inadequate. It fails to account for the

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changed status of Peterson from a party to a non-party and
instead rests on its earlier finding of materially adverse interests.
Continued reliance on its earlier order, even when the
circumstances supporting that order had changed, constitutes an
abuse of discretion. We thus reverse the district court’s refusal to
alter its order disqualifying the Firm. 10

CONCLUSION

¶28 The district court clearly erred in finding that there was a
substantial relationship between the present case and Peterson’s
2002 case and, thus, in disqualifying the Firm based on that
erroneous finding. Furthermore, it abused its discretion by
relying on an erroneous legal premise in declining to alter or
vacate the disqualification order. We therefore reverse and
remand this case to the district court.

10. In light of our resolution of this issue, there is no need to
address the district court’s failure to weigh the effects of
disqualification. Because the Firm should not have been
disqualified, there is nothing to weigh.

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