Fowler v. Mark McDougal & Associates
357 P.3d 5
Utah Ct. App.2015Background
- Fowler divorced in 1996; decree set child support and alimony such that alimony would be adjusted if child support changed so total equaled $900/month.
- Utah law (amended effective May 1, 1995) limits alimony duration to no longer than the length of the marriage unless extenuating circumstances are found.
- Husband moved in Oct 2012 to terminate alimony under the statute; the commissioner and district court held alimony terminated by operation of law at end of July 2012.
- Fowler sued her former attorney Schow (and his firm) for legal malpractice, alleging he failed to recognize the statutory time limitation on alimony; she also asserted defamation and intentional infliction of emotional distress based on his case-related statements.
- District court granted summary judgment for Schow: (1) the judicial-proceeding privilege barred the defamation and IIED claims; (2) Fowler’s earlier sworn statement in the divorce proceedings admitting Schow knew of the statutory limit precluded her malpractice theory and contradicted her later affidavit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Schow committed malpractice by not recognizing statutory alimony duration limit | Schow failed to know or advise her of the statutory time limitation, causing harm | Records in the divorce case (Fowler’s Objection) show Schow informed her; no breach | Summary judgment for Schow — Fowler’s prior sworn statement barred contradictory claim |
| Whether defamation/IIED claims based on Schow’s statements in litigation are actionable | Statements harmed Fowler’s reputation and caused distress | Judicial-proceeding privilege protects statements made in course of litigation on its subject matter | Privilege applies; defamation and IIED dismissed |
| Whether Fowler’s post-divorce affidavit can create a genuine factual dispute against her prior sworn statement | Later affidavit asserts Schow didn’t know the limitation | Prior sworn objection in divorce case certified she was told; a party cannot contradict prior clear sworn statements without explanation | Court held prior statement controls; affidavit insufficient to create dispute |
| Whether employer firm (Mark McDougal & Associates) is vicariously liable for Schow | Firm could be vicariously liable for malpractice | Vicarious liability depends on employee liability | Because Schow prevailed, vicarious liability claim necessarily resolved for defendants |
Key Cases Cited
- DeBry v. Godbe, 992 P.2d 979 (Utah 1999) (elements of the judicial-proceeding privilege)
- Jacob v. Bezzant, 212 P.3d 535 (Utah 2009) (prima facie defamation requires showing statements were not privileged)
- Price v. Armour, 949 P.2d 1251 (Utah 1997) (privilege applies to all claims arising from allegedly defamatory litigation statements)
- Christensen & Jensen, PC v. Barrett & Daines, 194 P.3d 931 (Utah 2008) (elements for legal malpractice claims and need to show client benefit absent alleged misconduct)
- Webster v. Sill, 675 P.2d 1170 (Utah 1983) (a party may not create a factual issue by affidavit that contradicts prior sworn statements without explanation)
- Brinton v. IHC Hosps., Inc., 973 P.2d 956 (Utah 1998) (affidavits cannot contradict prior clear and unequivocal sworn statements without adequate reason)