Fowler v. Mark McDougal & Associates

2015 UT App 194

THE UTAH COURT OF APPEALS

BONNIE R. FOWLER,
Appellant,
v.
MARK MCDOUGAL & ASSOCIATES AND DON R. SCHOW
Appellees.

Per Curiam Decision
No. 20150394-CA
Filed August 6, 2015

Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 130907844

Bonnie R. Fowler, Appellant Pro Se
Don R. Schow, Appellee Pro Se

Before JUDGES STEPHEN L. ROTH, JOHN A. PEARCE, and
KATE A. TOOMEY.

PER CURIAM:

¶1 Appellant Bonnie R. Fowler appeals the grant of
summary judgment on her complaint for legal malpractice and
related claims. This case is before the court on a sua sponte
motion for summary judgment. We affirm.

¶2 In 1996, Fowler obtained a Decree of Divorce requiring
her husband (Husband) to pay child support and alimony. The
Decree stated, “In the event that *Husband’s+ child support
obligation is changed in the future, the amount of alimony will
automatically be adjusted so that the alimony and child support
Fowler v. McDougal

obligation added together equal $900.00.”1 In October 2012,
Husband moved to terminate alimony based upon Utah Code
section 30-3-5(8)(h), which is now section 30-3-5(8)(j). See Utah
Code Ann. § 30-3-5(8)(j) (Michie Supp. 1995) (current version
Utah Code Ann. § 30-3-5(8)(j) (LexisNexis 2013). That section
provides, “Alimony may not be ordered for a duration longer
than the number of years that the marriage existed unless, at any
time prior to the termination of alimony, the court finds
extenuating circumstances that justify the payment of alimony
for a longer period of time.” Id. The effective date of the
amended statutory language was May 1, 1995; the divorce
complaint was filed in September 1995; and the decree was
entered in April 1996. Accordingly, the commissioner ruled that
as of the end of July 2012, Husband’s alimony payments had
continued for a period equal to the duration of the marriage and
that his obligation to pay alimony terminated by operation of
law. In November 2012, Fowler filed a written objection to the
ruling, stating that Husband had agreed to pay her $900 per
month unless and until she remarried. She also stated, “My
attorney, Don Scow [sic], referred to alimony being limited, but
because of the negotiated arrangement and offer from Mr.
Fowler, I insisted that the limitation was irrelevant.” The district
court ruled that alimony terminated by operation of law at the
end of July 2012.

¶3 In November 2013, Fowler filed the complaint in this case
asserting legal malpractice and related claims against her former
attorney, Don R. Schow, and the law firm that employed him as
an associate, Mark McDougal & Associates.2 Fowler alleged that

1. The parties’ children are now adults who are no longer
entitled to child support.

2. Fowler also named as defendants three other attorneys and
the firm Brent Wamsley & Associates, all of whom were
dismissed from the case because she could not establish she ever
(continued…)

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Fowler v. McDougal

Schow committed malpractice by failing to recognize the
statutory limitation on the duration of alimony. She also asserted
claims alleging defamation and intentional infliction of
emotional distress, all of which were based on Schow’s case-
related statements in response to her malpractice claims against
him. Fowler and Schow filed cross-motions for summary
judgment.3

¶4 The district court first determined that Schow’s allegedly
defamatory statements “were made . . . in the course of the
present proceeding and referred directly to [her] malpractice
claims.” The Utah Supreme Court explained in DeBry v. Godbe,
1999 UT 111, 992 P.2d 979, that for the judicial proceeding
privilege to apply, the statements must be “(1) made during or in
the course of a judicial proceeding; (2) have some reference to
the subject matter of the proceeding; and (3) be made by
someone acting in the capacity of judge, juror, witness, litigant,
or counsel.” Id. ¶ 11 (citation and internal quotation marks
omitted)). Accordingly, the district court determined that the
judicial proceeding privilege applied and Fowler could not
establish a prima facie case for defamation based on those
statements. See Jacob v. Bezzant, 2009 UT 37, ¶ 21, 212 P.3d 535
(stating that a prima facie case for defamation must, among
other factors, demonstrate that “the statements were not subject

(…continued)
had an attorney-client relationship with those defendants. The
district court did not initially dismiss Mark McDougal
& Associates, reasoning that the firm could be vicariously liable
for legal malpractice as Schow’s employer. The disposition of the
legal malpractice claim disposed of any vicarious liability claim.

3. Contrary to Fowler’s assertions before this court, the district
court also expressly denied her motion to strike and sustained
Schow’s objection to it in a footnote in the summary judgment
decision.

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Fowler v. McDougal

to privilege” (citation and internal quotation marks omitted)).
Insofar as the intentional infliction of emotional distress claims
were based upon the allegedly defamatory statements, the
district court determined that the judicial proceeding privilege
also barred the claim. See Price v. Armour, 949 P.2d 1251, 1258
(Utah 1997) (“It is essential that the privilege apply to all claims
arising from the same allegedly defamatory statements . . . .”).
The district court therefore did not err in granting summary
judgment on the defamation and intentional infliction of
emotional distress claims.

¶5 “In a legal malpractice action based on negligence, a
plaintiff must 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
damages.” Christensen & Jensen, PC v. Barrett & Daines, 2008 UT
64, ¶ 22, 194 P.3d 931 (citation and internal quotation marks
omitted). The elements for a legal malpractice claim based upon
a breach of fiduciary duty are “(1) an attorney-client
relationship; (2) breach of the attorney’s fiduciary duty to the
client; (3) causation, both actual and proximate; and (4) damages
suffered by the client.” Id. ¶ 23 (citation and internal quotation
marks omitted). The elements of the two foregoing theories of
legal malpractice are “substantially the same,” id. ¶ 23, while a
legal malpractice claim alleging a breach of contract is governed
by “*r+ules of contract, not rules of legal malpractice,” id. ¶ 24
(alteration in original) (citation and internal quotation marks
omitted). However, each theory requires a demonstration that,
absent the conduct complained of, there would be a benefit t o
the client. Id. ¶ 26.

¶6 Fowler claimed that Schow committed malpractice by
failing to recognize that Utah law limited alimony to a period
equal to the length of the marriage. Schow moved for summary
judgment arguing, in part, that documents filed in the divorce
action demonstrated that he had informed Fowler of the

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Fowler v. McDougal

limitation. Specifically, Schow argued that the Objection to the
Commissioner’s Ruling that Fowler herself had filed in the
divorce action demonstrated that he had informed Fowler of the
limitation. In granting summary judgment, the district court
reasoned that,

by including in the Objection to the
Commissioner’s Ruling, filed in the prior case, a
statement that Schow informed her that alimony is
limited, Plaintiff certified this factual contention as
having evidentiary support.[4] Plaintiff now seeks
to create a genuine issue of material fact by
contradicting this prior sworn statement by stating
in her affidavit filed in support of the Motion for
Summary Judgment that Schow did not know
about the limitation of alimony award provision in
the Utah Code. However, “when a party takes a
clear position in a [statement], he may not
thereafter raise an issue of fact by his own affidavit
which contradicts his [statement], unless he can
provide an explanation of the discrepancy.”
Webster v. Sill, 675 P.2d 1170, 1172--73 (Utah 1983).
Indeed, “*a+n affidavit, as a matter of law, cannot
contradict [a] prior sworn statement . . . which was
clear and unequivocal, [unless] the affidavit []
state*s+ an adequate reason for the contradiction.”
Brinton v. IHC Hosps., Inc., 973 P.2d 956, 973 (Utah
1998).

4. See Utah R. Civ. P. 11(b)(3) (“By presenting a pleading, written
motion, or other paper to the court . . . an attorney or
unrepresented party is certifying that to the best of the person’s
knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances . . . the allegations and other
factual contentions have evidentiary support.”).

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Fowler v. McDougal

¶7 Because her legal malpractice claim was dependent upon
an allegation that Schow did not know of the statutory time
limitation on alimony when he drafted the complaint and
divorce decree, her earlier statements before the divorce court
directly contradicted the allegations made in her malpractice
claim. Although Fowler claimed the earlier statements were
taken out of context, we agree with the district court that there is
“no contextual support for an alternate reading of *Fowler’s+
statement.” Fowler conceded in the divorce case that Schow
knew of the statutory alimony limitation and her subsequent
contradictory statements did not create a genuine issue of
material fact pertaining to the legal malpractice claim and
factually-related claims. Furthermore, insofar as Fowler made
additional claims of intentional infliction of emotional distress
based upon the alleged malpractice, those claims were
necessarily disposed of by the failure of the malpractice claim.

¶8 Accordingly, we affirm the summary judgment in favor of
Don R. Schow, which necessarily resolves the vicarious liability
claims against Mark McDougal & Associates.

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