427 P.3d 444
Utah Ct. App.2018Background
- Janae Kirkham retained Strong & Hanni PC (and attorneys McConkie and Read) for post-divorce family-law matters from 2007–2012; a dispute arose when her ex-husband petitioned to modify child support and claim a tax exemption for the minor child.
- Law Firm did not file a counterpetition; it later withdrew and Kirkham proceeded pro se; the trial court ultimately granted the ex-husband’s petition.
- Kirkham sued the Law Firm for legal malpractice, breach of fiduciary duty, and breach of contract for failing to file a counterpetition to increase child support.
- In the malpractice case, the parties’ schedule required expert disclosures by March 25, 2016; Law Firm timely identified a family-law expert; Kirkham identified no expert.
- Law Firm moved for summary judgment arguing Kirkham lacked expert proof of the attorney standard of care, breach, and causation; the district court granted summary judgment, and Kirkham appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expert testimony was required to prove attorney standard of care, breach, and causation in malpractice claim | Kirkham: failure to file a counterpetition was a clear breach understandable by a jury; Rule 13 (compulsory counterclaim) and proper jury instruction would make expert unnecessary | Law Firm: malpractice allegations implicate specialized family-law standards; an expert is needed to establish what a reasonably competent attorney would have done and causation | Court held expert testimony was required because jurors lack the specialized family-law knowledge to assess whether filing a counterpetition was required and breached the standard of care; summary judgment affirmed |
| Whether Kirkham’s breach-of-contract claim (failure to file counterpetition) survived summary judgment | Kirkham: filing counterpetition was term of engagement | Law Firm: no contractual term requiring filing; representation did not guarantee specific filings | Court held Kirkham produced no evidence that filing a counterpetition was a contractual term; breach-of-contract claim properly dismissed |
Key Cases Cited
- Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283 (Utah Ct. App. 1996) (summary-judgment burden and elements for malpractice/fiduciary claims)
- Preston & Chambers, PC v. Koller, 943 P.2d 260 (Utah Ct. App. 1997) (expert testimony required when laypersons lack understanding of professional duties)
- Watkiss & Saperstein v. Williams, 931 P.2d 840 (Utah 1996) (definition of attorney standard of care)
- Harline v. Barker, 854 P.2d 595 (Utah Ct. App. 1993) (elements of negligence claims)
- Clifford P.D. Redekop Family LLC v. Utah County Real Estate LLC, 378 P.3d 109 (Utah Ct. App. 2016) (test for when expert testimony is required)
- Widdison v. Widdison, 336 P.3d 1106 (Utah Ct. App. 2014) (prior appeal related to the underlying family-law proceedings)