Crestwood Cove Apartments v. Turner

1 Utah Code Ann. § 78-36-3 (2002) (amended 2007). 	The 2007
amendment to the unlawful detainer statute has no bearing on the
outcome of this case.
2 Id. § 78-36-10 (1996).
2007 UT 48
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Crestwood Cove Apartments 	No. 20050896
Business Trust dba Cottonwood
Creek Apartments and Shangri-La
UBO,
Plaintiffs and Appellants,
v.
Shawn Turner and Larsen, Kirkham 	F I L E D
& Turner,
Defendants and Appellees. 	June 22, 2007
---
Third District, Salt Lake
The Honorable Robin W. Reese
No. 020911135
Attorneys: 	D. Kendall Perkins, Sandy, for plaintiffs
Michael F. Skolnick, J. Kevin Murphy, Salt Lake City,
for defendants
---
PARRISH, Justice:
¶1 	This appeal arises from a claim that Shawn Turner and
his law firm, Larsen, Kirkham & Turner (collectively, “Turner”),
committed malpractice when representing Shangri-La, U.B.O., in a
redemption lawsuit. 	Shangri-La and its successor, Crestwood Cove
Apartments Business Trust (collectively, “Shangri-La”), allege
that Turner committed malpractice by failing to timely contest
the application of Utah’s unlawful detainer statute 1 and its
treble damage provisions 2 and by failing to raise Utah Rule of

3 For purposes of this action, we cite the 1995 version of
rule 69. 	Current provisions governing redemption are found in
Utah Rule of Civil Procedure 69C.
No. 20050896 	2
Civil Procedure 69(j) 3 as the appropriate measure of damages.
The district court granted Turner’s motion for summary judgment,
reasoning that Turner did not commit malpractice and that, in any
event, Shangri-La had forfeited its right to pursue Turner for
malpractice when it settled the underlying redemption lawsuit
before it could be decided on appeal. 	Shangri-La appeals the
district court’s decision. 	We affirm the dismissal entered by
the district court on different grounds.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 	In March 1995, Shangri-La, the owner of an apartment
complex (the “apartments” or the “property”), sued its former
apartment managers for fraud. 	The court dismissed Shangri-La’s
claim and awarded the former managers court costs and attorney
fees in the amount of $4,767. 	Shangri-La failed to pay the
judgment. 	As a result, the former managers caused the property
to be sold at a sheriff’s sale to Kasey Enterprises (“Kasey”) in
August of 1996 for the purpose of satisfying their judgment.
Kasey purchased the property, valued at $4,000,000, for a mere
$8,000. 	Kasey subsequently sold it to UAW Properties (“UAW”) and
DLM Investments (“DLM”) for $11,197.
¶3 	Although Shangri-La made no attempt to redeem the
property within the six-month statutory redemption period, it
remained in possession and continued to collect and receive rent
from its tenants. 	On April 16, 1997, UAW and DLM served Shangri-
La with notice to quit the property. 	Two days later, Shangri-La
filed an action to quiet title to the property, asking the court
to invalidate the sheriff’s sale or, in the alternative, to
extend the time to redeem the property from that sale. 	UAW and
DLM counterclaimed for unlawful detainer and conversion. 	Several
months later, Shangri-La retained Turner to represent it in
connection with the lawsuit.
¶4 	In May 1998, the trial court issued a memorandum
decision in which it ruled that the sheriff’s sale was valid.
Nevertheless, it equitably extended the redemption period after
finding that Kasey’s purchase of a $4,000,000 property for a mere
$8,000 shocked the conscience. 	The trial court also determined
that UAW and DLM were entitled to the return of their purchase
price, attorney fees, and taxes paid on the property, as well as
$304,333 for rents that Shangri-La had collected after the
sheriff’s sale.

3 	No. 20050896
¶5 	The trial court asked for supplementary briefing on the
issue of whether UAW and DLM were entitled to treble damages for
the rents under Utah Code section 76-36-10, the statutory
provision specifying damages for unlawful detainer. 	Turner filed
a supplementary brief in which he argued that the treble damages
provision of the unlawful detainer statute was not applicable.
Nevertheless, the trial court ruled that the treble damages
provision applied, trebling the amount in rent due UAW and DLM to
$912,999. 	That amount, plus UAW and DLM’s purchase price,
attorney fees, and property taxes brought Shangri-La’s total
redemption price to nearly $1,000,000.
¶6 	Turner filed a motion for a new trial or an amended
judgment in which he again argued that the unlawful detainer
statute did not apply to UAW and DLM’s claims against Shangri-La.
In his reply to UAW and DLM’s memorandum in opposition to the
motion, Turner also noted that Utah Rule of Civil Procedure
69(j)(3) “governs the amount that must be paid in order to redeem
a property” and that Utah Rule of Civil Procedure 69(j)(7)
governs “the treatment of rents during the period of redemption.”
Despite these assertions, the district court denied the motion,
indicating that “the arguments made by [Shangri-La] in this case
are in substance the same arguments that have previously been
made.”
¶7 	In November 1998, Shangri-La hired new legal counsel
and appealed the trial court’s ruling. 	By the end of March 2000,
the appeal and cross-appeal were fully briefed. 	During this
time, UAW and DLM took possession of the property and allegedly
began to mismanage it, resulting in the property’s devaluation
and a decrease in rental income. 	In order to stop the diminution
of the property value and retake possession, Shangri-La decided
to enter into a settlement agreement with UAW and DLM. 	Under the
terms of this settlement agreement, Shangri-La agreed to the
dismissal of its appeal with prejudice.
¶8 	Shangri-La subsequently filed this malpractice action
against Turner, contending that Turner had “failed to interpose
such legal defenses and theories on behalf of [Shangri-La] as
would adequately protect [Shangri-La’s] interest in” the
apartment complex. 	Turner moved for summary judgment. 	The
district court granted his motion, reasoning that Turner had not
committed malpractice because the judge in the underlying case
had Turner’s supplemental brief before him when he issued his
final decision. 	The district court also ruled that Shangri-La
had “forfeited [its] right to pursue any malpractice action

4 Swan Creek Vill. Homeowners Ass’n v. Warne, 2006 UT 22,
¶ 16, 134 P.3d 1122.
5 Id.
6 Ardnt v. First Interstate Bank of Utah N.A., 1999 UT 91,
¶ 17, 991 P.2d 584 (indicating that on matters of first
(continued...)
No. 20050896 	4
against” Turner by settling the underlying action instead of
pursuing the appeal.
¶9 	Shangri-La appeals the district court’s grant of
summary judgment in favor of Turner. 	We have jurisdiction
pursuant to Utah Code section 78-2-2(3)(j) (2002).
STANDARD OF REVIEW
¶10 	We review the district court’s decision to grant
summary judgment for correctness, affording the trial court no
deference. 4 	In reviewing the grant of summary judgment, “we
recognize that summary judgment is appropriate only when there is
no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” 5
ANALYSIS
¶11 	We begin by reviewing the district court’s conclusion
that Shangri-La abandoned its malpractice claim against Turner
when it settled the redemption lawsuit, thereby preventing the
court of appeals from correcting what both parties now concede to
be judicial error by the trial judge in that lawsuit. 	Although
we hold that the settlement did not constitute abandonment of
Shangri-La’s malpractice claim, we nevertheless affirm the
summary judgment entered by the district court on alternative
grounds. 	Specifically, we hold that judicial error, rather than
Turner’s alleged malpractice, proximately caused Shangri-La’s
injury.
I. 	SHANGRI-LA DID NOT ABANDON ITS CLAIM THROUGH SETTLEMENT
¶12 	Shangri-La challenges the district court’s holding that
it abandoned its malpractice action against Turner when it
settled the underlying redemption lawsuit (the “abandonment
doctrine”). 	Shangri-La’s challenge to the abandonment doctrine
presents an issue of first impression in Utah. 	We accordingly
begin by considering the cases from other jurisdictions on which
the district court relied. 6 	We conclude that these cases cannot

6 (...continued)
impression this court considers it appropriate to look to “case
law from other jurisdictions for guidance”).
7 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice
§ 21.16 (2006 ed.).
8 590 So. 2d 1051 (Fla. Dist. Ct. App. 1991).
9 Id. at 1052.
10 Id.
11 Id.
12 Id. at 1053.
5 	No. 20050896
be read to support as broad an application of the abandonment
doctrine as the district court suggested and, in fact, were
effectively decided on causation principles. 	We therefore
decline to adopt the abandonment doctrine.
A. 	The Abandonment Doctrine
¶13 	Broadly stated, the abandonment doctrine provides that
a client forfeits any legal malpractice claims arising from an
attorney’s alleged mishandling of litigation when the client
settles the underlying litigation before final judicial review
“[i]f the compromise prevented the judicial resolution of issues
that would have established that the attorney was not negligent
or a cause of the client’s loss.” 7
¶14 	The Florida Court of Appeals articulated the
abandonment doctrine in the seminal case of Pennsylvania
Insurance Guaranty Ass’n v. Sikes.8 	Sikes arose from an
attorney’s failure to deny certain allegations in an underlying
civil case. 	Although the attorney had later moved to amend his
answer, the trial judge denied his motion. 9 	The attorney
recommended that his client appeal the decision, but the client
decided to settle the case. 10 	The client then sued the attorney
for malpractice. 11 	The court of appeals affirmed the trial
court’s grant of summary judgment, holding that “on the facts of
this case, . . . the settlement of the underlying personal injury
case, while the appeal was pending, constituted an abandonment of
any claim that [the client’s] loss resulted from legal
malpractice rather than judicial error.” 12

13 632 So. 2d 76 (Fla. Dist. Ct. App. 1993).
14 Id. at 78.
15 694 N.E.2d 1376, 1377 (Ohio Ct. App. 1997).
16 Id. at 1379.
17 Rodriguez v. Fredericks, 623 N.Y.S.2d 241, 242 (App. Div.
1995); see also Chem. Bank of N.J. Nat’l Ass’n v. Bailey, 687
A.2d 316, 321 (N.J. Super. Ct. App. Div. 1997) (“[T]he settlement
eliminated [the attorney’s] opportunity to prove that her legal
malpractice was not a proximate cause of any loss eventually
sustained by [the client].”).
No. 20050896 	6
¶15 	Subsequently, in Segall v. Segall,13 the Florida Court
of Appeals rearticulated its apparent commitment to the
abandonment doctrine, citing Sikes and stating that “[w]here a
party’s loss results from judicial error occasioned by the
attorney’s curable, nonprejudicial mistake in the conduct of the
litigation, and the error would most likely have been corrected
on appeal, the cause of action for legal malpractice is abandoned
if a final appellate decision is not obtained.” 14
¶16 	Other state appellate courts have also adopted the
abandonment doctrine in some form. 	For example, in the Ohio case
of E.B.P., Inc. v. Cozza & Steuer,15 a client decided to settle a
case in lieu of pursuing an appeal and then sued its law firm for
malpractice. 	The court ruled that the client had abandoned its
claim, noting that “[a] settlement entered into as a result of an
attorney’s exercise of reasonable judgment in handling a case
bars [a] malpractice claim against the attorney.” 16 	Similarly, a
New York Supreme Court has indicated that where “plaintiffs, by
their own conduct in voluntarily settling prior to the appeal,
precluded defendant from pursuing the very means by which he
could have vindicated his representation . . . [,] [t]hey should
not . . . be permitted to seek damages from counsel in order to
recoup a portion of the settlement.” 17
¶17 	Taken in isolation, these statements appear to support
the broad formulation of the abandonment doctrine that the
district court adopted when it held that Shangri-La had
“forfeited [its] right to pursue any malpractice action against
defendants in this case” by settling the underlying redemption
lawsuit. 	We are not convinced, however, that the cases on which
the district court relied support such a broad, unforgiving rule.
Instead, when read closely and examined in the context of
subsequent precedent, it appears that these cases were decided on

18 Pa. Ins. Guar. Ass’n v. Sikes, 590 So. 2d 1051, 1052-53
(Fla. Dist. Ct. App. 1991).
19 Id. at 1052.
20 See id.
21 Segall v. Segall, 632 So. 2d 76, 78 (Fla. Dist. Ct. App.
1993).
22 Id.
23 Id.
24 See id.
7 	No. 20050896
traditional principles of proximate cause, rather than on a
wholesale application of the abandonment doctrine.
¶18 	For example, in Sikes, the attorney’s negligence was
simply not the proximate cause of the client’s damages. 	Because
any possible negligence would have been “curable except for a
judicial error,” it apparently was judicial error rather than
attorney negligence that caused the client’s losses. 18 	As the
Sikes court specifically stated, “A reversal of a trial court’s
order that denies an attorney the opportunity to cure a
nonprejudicial defect and enters a judgment for the opposing side
because of the alleged defect, determines, essentially, that
there was judicial error rather than legal malpractice.” 19 	Thus,
even though the court affirmed the summary judgment on
abandonment doctrine grounds, its underlying conclusion was that
the attorney had not caused the client’s loss. 20
¶19 	Similarly, in Segall, although the court relied in part
on the abandonment theory, it also implied that summary judgment
was appropriate because the plaintiffs were unable to show that
it was attorney malpractice, rather than judicial error, that
caused their losses in the underlying litigation. 21 	They
consequently could not establish redressable harm. 22 	The
Segall court also emphasized that it was “unable to establish a
bright-line rule that complete appellate review of the underlying
litigation is a condition precedent to every legal malpractice
action.” 23 	Instead, it recognized that courts must look to the
underlying facts of each case. 24
¶20 	Although it articulated some tenets of the abandonment
doctrine, the court in E.B.P., Inc. similarly refused to “suggest
[that] a settlement of the underlying action always operates as a

25 E.B.P., Inc. v. Cozza & Steuer, 694 N.E.2d 1376, 1379
(Ohio Ct. App. 1997); see also Rodriguez v. Fredericks, 623
N.Y.S.2d 241, 242 (App. Div. 1995) (indicating the court’s belief
that counsel had pursued a “thoughtful strategy” and had not
likely caused the plaintiff’s damages).
26 E.B.P., Inc., 694 N.E.2d at 1379.
27 Id. at 1378-79.
28 See, e.g., Parker v. Graham & James, 715 So. 2d 1047,
1048 (Fla. Dist. Ct. App. 1998) (refusing to apply the
abandonment theory because “[i]n this case, unlike Sikes and
Segall, the settlement did not thwart any review process which
could have cured the malpractice”); Lenahan v. Forkey, 702 So. 2d
610, 611-12 (Fla. Dist. Ct. App. 1997) (indicating that “[t]he
circumstances in which a client’s subsequent actions constitute
an abandonment of a legal malpractice claim, as a matter of law,
are very narrow” and that “as a matter of law, the circumstances
of this case do not constitute abandonment”); Fusco v. Fauci, 749
N.Y.S.2d 715, 715 (App. Div. 2002) (“Settlement of an action will
not preclude an award of damages for legal malpractice where the
plaintiff is able to demonstrate that the settlement was caused
by the malpractice.”); Jones Lang Wootton USA v. LeBoeuf, Lamb,
Greene & MacRae, 674 N.Y.S.2d 280, 285 (App. Div. 1998)
(indicating that because there were material issues of fact
concerning the attorney’s alleged negligence, the plaintiff’s
settlement of the underlying action did “not present an
intervening cause so as to bar a malpractice action”); Lattimore
v. Bergman, 637 N.Y.S.2d 777, 777 (App. Div. 1996) (refusing to
apply the abandonment doctrine because the plaintiffs
(continued...)
No. 20050896 	8
waiver of a client’s malpractice claim against his attorney.” 25
Instead, E.B.P., Inc. was decided primarily on principles of
causation. 	The court indicated that because the trial court
erred in not granting a motion, “the losses sustained by [the
client] [were] not attributable to any error by [the law
firm].” 26 	As such, it concluded that the client “failed to
establish that it suffered damages proximately caused by [the law
firm’s] representation,” and summary judgment was appropriate. 27
¶21 	Subsequent precedent from these jurisdictions supports
our conclusion that the abandonment doctrine is not applied as
broadly as Turner suggests. 	This precedent reveals that these
jurisdictions have increasingly attempted to limit application of
the abandonment theory and instead rely on traditional causation
principles. 28 	For instance, in the Florida case of Eastman v.

28 (...continued)
“demonstrated that there are issues of fact as to their former
attorney’s negligence”).
29 744 So. 2d 499, 503 (Fla. Dist. Ct. App. 1999).
30 Id. at 502.
31 Id.
9 	No. 20050896
Flor-Ohio, Ltd.,29 the court expressly limited the scope of the
abandonment doctrine, stating that “only under narrow
circumstances should a cause of action for legal malpractice be
deemed abandoned based upon the voluntary dismissal of the appeal
taken from a related adverse judgment.” 	The court hypothesized
that the only reason the Sikes court felt comfortable using the
abandonment doctrine was that it recognized there had been “an
error made by the trial court which would have been corrected had
the appeal not been dismissed.” 30 	As such, “counsel had not been
negligent” and had not caused the client’s loss. 31
¶22 	In effect, these subsequent cases support the
conclusion that the abandonment doctrine is applicable only in
those cases where causation cannot be established. 	Although
these jurisdictions have been unwilling to completely discard the
abandonment doctrine label, these limitations have significantly
narrowed its possible uses to instances where the alleged
attorney malpractice was not the proximate cause of the client’s
loss.
B. 	We Need Not Adopt the Abandonment Doctrine to Dispose
of Cases that Could Be Decided on Causation Principles
¶23 	Because other jurisdictions have relied on the
abandonment doctrine only in those cases that could also have
been decided on traditional causation principles, we see no need
to adopt the abandonment doctrine at this time. 	Instead, we
conclude that it is more appropriate to examine whether the
individual facts of each case support a finding of proximate
cause. 	This decision is supported by both existing Utah law and
policy considerations.
¶24 	First, there is no reason to adopt the abandonment
doctrine theory because the existing framework for legal
malpractice actions in Utah adequately protects attorneys’
rights, even when there has been a settlement. 	One of the
primary concerns that spurred the establishment of the
abandonment doctrine was the fear that attorneys would not be

32 See, e.g., Segall v. Segall, 632 So. 2d 76, 78 (Fla.
Dist. Ct. App. 1993) (indicating that the abandonment theory
should apply in cases where “redressable harm caused by errors in
the course of litigation can only be determined upon completion
of the appellate process”); Chem. Bank of N.J. Nat’l Ass’n v.
Bailey, 687 A.2d 316, 321 (N.J. 1997) (indicating concern over
the fact that “the settlement eliminated [the attorney’s]
opportunity to prove that her legal malpractice was not a
proximate cause of any loss eventually sustained by [her
client]”); Rodriguez v. Fredericks, 623 N.Y.S.2d 241, 242 (App.
Div. 1995) (“[V]oluntarily settling prior to the appeal precluded
[the attorney] from pursuing the very means by which he could
have vindicated his representation.”).
33 Harline v. Barker, 912 P.2d 433, 439 (Utah 1996); see
also Mallen & Smith, supra note 7, § 33.8.
34 912 P.2d at 439-40 (citation and some internal quotation
marks omitted).
No. 20050896 	10
able to defend against negligence claims arising from their
handling of a litigation matter if the underlying matter were
settled before an unfavorable decision could be challenged on
appeal. 32 	But in Utah, it generally does not matter whether an
underlying matter is settled before appeal because courts and
juries retain the ability to review the underlying matter and
determine what should have happened. 	In other words, they can
still determine whether it was attorney malpractice or judicial
error that caused the plaintiff’s damages. 33
¶25 	We explained the process in Harline v. Barker, where we
stated:
To prove proximate cause in legal malpractice
cases . . . the plaintiff must show that
absent the attorney’s negligence, the
underlying suit would have been successful.
Thus, the proximate cause issue is ordinarily
handled by means of a “suit within a suit” or
“trial within a trial.” 	The objective is to
establish what the result [of the underlying
litigation] should have been (an objective
standard), not what a particular judge or
jury would have decided (a subjective
standard). 34
This “trial within a trial” method allows an attorney to
establish that judicial error, rather than attorney malpractice,

35 43 P.3d 345 (Nev. 2002).
36 Id. at 349-50 (alterations in original) (quoting Eastman
v. Flor-Ohio, Ltd., 744 So. 2d 499, 504 (Fla. Dist. Ct. App.
1999)).
37 See, e.g., Eastman, 744 So. 2d at 504 (listing various
policy reasons that weigh against applying a broad abandonment
rule); Parker v. Graham & James, 715 So. 2d 1047, 1048 (Fla.
Dist. Ct. App. 1998) (indicating that settling the claim “would
only have served to mitigate [plaintiffs’] damages”). 	See
generally 66 Am. Jur. 2d Release § 2 (2005) (stating that the law
favors settlement).
11 	No. 20050896
caused an unfavorable result in an underlying case. 	Because
issues of causation can be determined through this method even in
those cases where the underlying suit is settled, there is no
reason to adopt the abandonment doctrine.
¶26 	Policy considerations also support deciding cases under
traditional causation principles, rather than under the
abandonment doctrine. 	In Hewitt v. Allen,35 the Nevada Supreme
Court concluded that there are
“serious policy reasons which militate
against liberalizing the abandonment theory
beyond the narrow parameters set forth in
Sikes. 	Perhaps the least compelling reason
is the negative effect such a ruling would
have on the work load of the appellate
courts. 	If we were to issue a ruling that
appeals are required in all cases in order to
preserve the client’s right to subsequently
pursue a claim for legal malpractice,
mertiess [sic] appeals would be prosecuted by
litigants solely for the purpose of
preserving their right to later assert a
malpractice claim. 	Of course, such a ruling
would also discourage parties from settling
pending appeals and would be inconsistent
with the party’s legal duty to mitigate their
damages.” 36
¶27 	Other courts have likewise recognized that adopting
broad formulations of the abandonment doctrine could thwart
potential settlements and discourage damage mitigation. 37 	We too

38 See Jankele v. Texas Co., 54 P.2d 425, 428 (Utah 1936)
(stating that harmed parties must act reasonably to minimize
damages).
No. 20050896 	12
are cognizant of these concerns 38 and find that such policy
considerations counsel against adopting the abandonment doctrine.
¶28 	For these reasons, we conclude that the district court
erred in holding that Shangri-La forfeited its right to pursue
its malpractice action when it settled the redemption lawsuit
before the appeal could be completed. 	Moreover, because Shangri-
La’s settlement of the underlying lawsuit did not affect the
ability of the malpractice court to determine issues of causation
(e.g., what the result should have been and what the underlying
trial court should have done), adopting the doctrine was simply
unnecessary. 	In so doing, we emphasize that we are not
foreclosing the possibility of ever applying the abandonment
doctrine. 	Rather, we simply conclude that it was unnecessary to
apply the doctrine in this case, which can be summarily resolved
on traditional causation principles.
II. 	SUMMARY JUDGMENT WAS PROPER BECAUSE JUDICIAL ERROR,
NOT TURNER’S ACTIONS, CAUSED SHANGRI-LA’S LOSS
¶29 	Having determined that Shangri-La did not forfeit its
right to pursue a malpractice claim by settling the underlying
redemption lawsuit, we consider whether Turner was nonetheless
entitled to summary judgment on Shangri-La’s malpractice claim.
We begin by reviewing the requisite elements of a claim for legal
malpractice, focusing our attention on the causation element. 	We
then examine Shangri-La’s claims that Turner was negligent in
(1) failing to timely raise arguments against the application of
the unlawful detainer statute, and (2) failing to advance Utah
Rule of Civil Procedure 69(j) as the correct measure of damages.
For the reasons detailed below, we find, as a matter of law, that
Turner’s actions did not proximately cause Shangri-La’s damages
in either respect. 	We therefore affirm the district court’s
grant of summary judgment.
A. 	Causation
¶30 	“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 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

39 Harline v. Barker, 912 P.2d 433, 439 (Utah 1996).
40 Id. (internal quotation marks and alterations omitted).
41 Restatement (Third) of the Law Governing Lawyers § 53
(2000).
42 Harline, 912 P.2d at 439.
43 Mallen & Smith, supra note 7, § 33.12.
44 Harline, 912 P.2d at 439.
45 See, e.g., Pa. Ins. Guar. Ass’n v. Sikes, 590 So. 2d
(continued...)
13 	No. 20050896
damages.” 39 	To resolve this appeal, we need only examine the
element of causation.
¶31 	“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.” 40 	In
order to prove proximate cause, a plaintiff must show that “the
lawyer’s breach of a duty of care . . . was a legal cause of
injury,” 41 and “that absent the attorney’s negligence, the
underlying suit would have been successful.” 42 	Normally, “[t]he
rule is that the issue of proximate causation–-whether the
attorney’s negligence caused damage–-raises an issue of fact” 43
and therefore cannot be decided on summary judgment.
¶32 	There is, however, an exception to this rule.
“[P]roximate cause issues can be decided as a matter of law when
a determination of the facts falls on either of two opposite ends
of a factual continuum[:] . . . (i) 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,
and (ii) when the proximate cause of an injury is left to
speculation so that the claim fails as a matter of law.” 44
¶33 	Accordingly, summary judgment is appropriate where
there is no doubt that judicial error, rather than attorney
malpractice, caused a client’s losses. 	As previously discussed,
some jurisdictions, often through the guise of an abandonment
doctrine, have concluded that a plaintiff cannot establish a
claim for legal malpractice where judicial error was the
proximate cause of the adverse result. 45 	We agree. 	Where an

45 (...continued)
1051, 1052 (Fla. Dist. Ct. App. 1991) (“A reversal of a trial
court’s order that denies an attorney the opportunity to cure a
nonprejudicial defect and enters a judgment for the opposing side
because of the alleged defect, determines, essentially, that
there was judicial error rather than legal malpractice.”); Cedeno
v. Gumbiner, 806 N.E.2d 1188, 1194 (Ill. App. Ct. 2004) (finding
that where the court’s “misapplication of the law served as an
intervening cause, it cannot be said that plaintiff’s damages
proximately resulted from” the attorney’s actions, and summary
judgment was therefore appropriate); Hewitt v. Allen, 43 P.3d
345, 348 (Nev. 2002) (concluding that “[i]n cases where no appeal
from an adverse ruling was filed, the defendants in the legal
malpractice action are able to assert, as an affirmative defense,
that the proximate cause of damages was not the attorney’s
negligence but judicial error that could have been corrected on
appeal”).
46 See Rodriguez v. Fredericks, 623 N.Y.S.2d 241, 242 (App.
Div. 1995) (“Plaintiffs’ remaining claims also amount to no more
than retrospective complaints about the outcome of defendant’s
strategic choices and tactics, without demonstrating that those
exercises of judgment were so unreasonable at the inception as to
have manifested professional incompetence.”).
47 See Cedeno, 806 N.E.2d at 1194 (indicating that attorney
“defendants cannot be held accountable for the court’s acceptance
of a legally unsound basis for granting summary judgment against
[their client]”). 	See generally Mallen & Smith, supra note 7,
§ 18.1 (“Subjecting attorneys to liability simply because a judge
disagrees can be unfair.”).
No. 20050896 	14
attorney has raised and preserved all relevant legal
considerations in an appropriate procedural manner and a court
nevertheless commits judicial error, the attorney’s actions
cannot be considered the proximate cause of the client’s loss.
Although a client may believe that an attorney has not litigated
a case in the most effective manner possible, 46 such beliefs are
irrelevant where the attorney has presented the necessary
arguments and the judge, albeit in error, rejects them. 	Were it
otherwise, an attorney would be subject to liability every time a
judge erroneously ruled against the attorney’s client. 47 	In
effect, an attorney would become a guarantor of correct judicial
decisionmaking–-a result we cannot accept.
¶34 	In articulating this rule, we are not holding that
judicial error always forecloses a plaintiff from bringing a
malpractice suit. 	Where there are factual disputes surrounding

48 Mallen & Smith, supra note 7, § 33.12.
49 See, e.g., Eastman v. Flor-Ohio, Ltd., 744 So. 2d 499,
503-05 (Fla. Dist. Ct. App. 1999) (examining the underlying case
to determine whether judicial error had been committed, which
would allow the case to be disposed of on summary judgment); Pa.
Ins. Guar. Ass’n v. Sikes, 590 So. 2d 1051, 1052 (Fla. Dist. Ct.
App. 1991) (affirming a grant of summary judgment because the
opposing party abandoned its claim and the attorney did not cause
the client’s damages since there was judicial error); Cedeno, 806
N.E.2d at 1194 (indicating that judicial error, not the
attorney’s malpractice, was the proximate cause of the
plaintiff’s damages; therefore, summary judgment was
appropriate).
50 Utah Code Ann. § 78-36-3(1) (2002).
15 	No. 20050896
causation, determining “whether the attorney’s conduct was a
substantial factor in the result or whether there should have
been a better result had the attorney done otherwise” will remain
a question for the trier of fact. 48 	But when an attorney has
raised the appropriate arguments and the court nevertheless
commits judicial error, a plaintiff’s suit can be appropriately
dismissed on summary judgment. 49
¶35 	In this case, Shangri-La claims that Turner’s
negligence caused the adverse ruling entered against it in the
underlying redemption lawsuit. 	Specifically, Shangri-La alleges
that Turner was negligent by (1) failing to object to the
application of the unlawful detainer statute in a timely manner,
and (2) failing to advance rule 69(j)(3) and (7) of the Utah
Rules of Civil Procedure as the appropriate measure of damages.
We address each claim in turn.
B. 	Unlawful Detainer Statute
¶36 	Upon reviewing the relevant statutory language, we
conclude that it was error for the trial court to apply the
unlawful detainer statute to the redemption lawsuit and award
treble damages under that statute. 	The express language of the
unlawful detainer statute applies only to tenants “for a term
less than life,” 50 and Shangri-La was never a tenant. 	Despite
this obvious judicial error, Shangri-La nevertheless contends
that Turner’s malpractice was the cause of the adverse judgment.
Specifically, Shangri-La argues that Turner was negligent in
failing to contest the application of the unlawful detainer
statute until supplementary briefing on the issue of treble
damages. 	Shangri-La reasons that this failure “allowed the trial

51 Utah R. Civ. P. 69(j)(7) (1995) (repealed 2004).
No. 20050896 	16
court to proceed too far down the wrong road” and that had Turner
raised the argument earlier, the court would not have erred.
¶37 	The record simply does not support Shangri-La’s claim.
It is true that, at one point during the trial of the underlying
case, when answering a question about rents, Turner implied that
the unlawful detainer statute might apply. 	But Turner cured any
possible mistake when he specifically argued against application
of the unlawful detainer statute in his supplementary brief.
Further, nothing in the record suggests that the trial judge
refused to consider Turner’s objection to the application of the
unlawful detainer statute because Turner did not raise it until
supplementary briefing. 	In short, it is undisputed that Turner
raised the operative arguments in his supplementary briefing and
that the trial judge considered the supplementary briefing before
issuing his final ruling in the underlying case. 	Accordingly, it
was judicial error that necessitated Shangri-La’s appeal–-
judicial error that cannot be attributed to Turner’s actions and
that presumably would have been corrected on appeal had the
underlying redemption action not been settled.
C. 	Rule 69(j)(3) and (7)
¶38 	Shangri-La also argues that Turner’s malpractice caused
it to incur an excessively high redemption fee. 	Specifically,
Shangri-La points to Turner’s failure to present to the trial
court applicable language from Utah Rule of Civil Procedure
69(j), particularly subparagraphs (3) and (7). 	Subparagraph (3)
of rule 69(j) governs the time for redemption and the amount to
be paid. 	Subparagraph (7) indicates that a purchaser is entitled
to receive rents until the time of redemption but that “the
amounts of such rents and profits shall be a credit upon the
redemption money to be paid.” 51 	There is no dispute that these
subsections, rather than the unlawful detainer statute, were the
appropriate measure of damages in the underlying case. 	But after
reviewing the record, we disagree with Shangri-La’s allegation
that Turner failed to present rule 69(j) to the trial court.
¶39 	Although Turner failed to raise rule 69(j) prior to the
trial court issuing its initial decision, Turner did present the
rule when he moved for a new trial or to have the judgment
amended. 	In his reply to Shangri-La’s memorandum in opposition
to this motion, Turner argued that because the court awarded
equitable redemption, it should also have applied rule 69(j),
which governs redemption. 	Turner then proceeded to quote

52 Id. 59(a), (a)(7).
53 See Doty v. Town of Cedar Hills, 656 P.2d 993, 995 (Utah
1982) (indicating that “orders granting or denying motions for a
new trial will not be reversed by this Court unless there has
been a manifest abuse of discretion” (internal quotation marks
omitted)).
54 Thurston v. Box Elder County, 892 P.2d 1034, 1039 (Utah
1995); see also Doty, 656 P.2d at 996 (“[I]t was an abuse of
discretion to deny the defendant’s Motion to Amend Judgment or
for a New Trial which claimed error in law.”).
55 For the reasons indicated above, we are convinced that
Turner preserved both the unlawful detainer and rule 69 issues
and therefore could have properly raised both of these issues on
appeal. 	But ultimately Turner’s preservation of rule 69 is
irrelevant because Turner absolutely preserved the argument that
(continued...)
17 	No. 20050896
relevant language from rule 69(j)(3) and (7) and apply those
subsections to the facts of the underlying case.
¶40 	Turner, therefore, clearly presented the rule 69 issue
to the trial court. 	Once the trial court was presented with
these arguments, it had the ability to amend its judgment under
Utah Rule of Civil Procedure 59, which allows for “a new trial
[to] be granted” or if the action was tried without a jury, for a
judge to “amend findings of fact and conclusions of law or make
new findings and conclusions” when there has been an “[e]rror in
law.” 52 	Although a trial court has broad discretion to decide
whether to grant relief under this rule, 53 a trial court must
grant the motion if the “prior decision was clearly erroneous and
would work a manifest injustice.” 54
¶41 	In ruling on Turner’s motion for a new trial, the trial
judge never indicated that he was refusing to consider the rule
69 issue because it had not been raised earlier. 	Instead, the
trial judge apparently rejected the motion after an evaluation of
the merits of the case, stating that he was “of the opinion that
the arguments made by plaintiffs in this case [were] in substance
the same arguments that [had] previously been made.” 	Having
considered the merits of the motion--including objections to the
application of the unlawful detainer statute and assertions that
rule 69 should have been applied instead--the trial court clearly
erred, and therefore abused its discretion, when it refused to
amend the judgment. 	Had the appeal proceeded, the appellate
court should have reversed the trial court’s decision. 55 	Thus,

55 (...continued)
the unlawful detainer statute was not the applicable measure of
damages. 	Because the unlawful detainer statute was clearly the
wrong measure of damages, another measure of damages had to
apply. 	Rule 69 was the appropriate measure, and the appellate
court would have had to apply it regardless of whether Turner had
raised or preserved it in the trial court.
No. 20050896 	18
it was judicial error, not Turner’s timeliness in presenting rule
69, that proximately caused Shangri-La’s injury.
¶42 	We conclude that there are no genuine issues of
material fact regarding whether Turner caused Shangri-La’s
damages through his allegedly untimely presentation of the
unlawful detainer statute and rule 69. 	Because the undisputed
facts establish that the proximate cause of Shangri-La’s injury
was judicial error, we affirm the district court’s grant of
summary judgment in favor of Turner.
CONCLUSION
¶43 	This case can be decided on causation principles. 	We
accordingly decline to adopt a categorical rule foreclosing
malpractice suits arising from cases where a party settles
instead of pursuing an appeal. 	In this case, Turner did not
proximately cause Shangri-La to incur an excessively high
redemption fee; rather, the excessively high fee was the result
of judicial error. 	We therefore affirm the district court’s
entry of summary judgment in favor of Turner.
---
¶44 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.