Rogers v. Mitchell

Rogers v. Mitchell

IN THE UTAH COURT OF APPEALS

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Edward Rogers, individually and as to his assigned interest in Utah Outdoor Advertising; Terry Reid, individually and as to his assigned interest in Utah Outdoor Advertising; Utah Outdoor Advertising dba Utah Sign, Inc.; and Lynn D. Kitchen, individually, and Beth K. Kitchen, individually, aka Full Service Development Company,

Plaintiffs and Appellants,

v.

Stephen B. Mitchell and Burbidge and Mitchell,

Defendants and Appellees.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20010743-CA
 

F I L E D

(February 21, 2003)
 

2003 UT App 45

 

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Third District, Salt Lake Department

The Honorable Leon A. Dever

The Honorable William B. Bohling

Attorneys: Harold A. Hintze, Fish Haven, Idaho, for Appellants

Michael F. Skolnick and Kirk Gibbs, Salt Lake City, for Appellees

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Before Judges Billings, Orme, and Thorne.

ORME, Judge:

The applicable standard of care in a negligence case can be established as a legal matter either by legislative enactment or controlling judicial decision. See Restatement (Second) of Torts

§ 285 (1965). Appellants point to no such statute or decision. The alternative is to establish the standard of care factually. To do so in a legal malpractice action, expert testimony is generally required. See Preston & Chambers v. Koller, 943 P.2d 260, 263-64 & n.3 (Utah Ct. App. 1997).

In this case, Appellees submitted expert testimony from attorney Gordon Roberts addressing the standard of care and opining that it was not breached by Appellees. However, Appellants--then represented by other counsel--elected not to rebut Mr. Roberts's affidavit with expert testimony of their own. Nor did Appellants provide any "standard-of-the-industry" evidence or show "that the subject matter of the malpractice claims is within the common knowledge of lay people." Id. at 264 n.3. In the context of this factually complex case, we surely cannot agree with Appellants' suggestion that Appellees' conduct was so blatantly negligent that Appellees' actions should have been determined by the trial court to constitute negligence as a matter of law, without any need to consider expert testimony. Accordingly, the trial court correctly denied Appellants' motion for partial summary judgment.

Given the record before the trial court on summary judgment, we see no basis on which the court could properly deny Appellees' cross-motion for summary judgment concerning malpractice.(1) On the contrary, given the uncontroverted affidavit of Gordon Roberts, in denying Appellants' motion the court should simultaneously have granted Appellees' motion. On this basis, we affirm the judgment ultimately entered in favor of Appellees.(2) See, e.g., Buehner Block Co. v. UWC Assocs., 752 P.2d 892, 895 (Utah 1988) (noting appellate courts "may affirm trial court
decisions on any proper ground(s), despite the trial court's having assigned another reason for its ruling").

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Gregory K. Orme, Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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William A. Thorne Jr., Judge

1. As later pointed out by Judge Bohling, Judge Dever's denial of Appellees' cross-motion was implicit only; he did not specifically rule on it, turning instead to consider Appellees' motion for partial summary judgment directed at lost profits as recoverable damages for the alleged malpractice. Judge Dever granted that motion, which ultimately provided the basis for the entry of the final judgment entered by Judge Bohling in this case.

2. In so ruling, we do not mean to suggest there is some flaw in the trial court's determination that, in any event, the claimed lost profits were not recoverable by Appellants as damages, an alternative basis for concluding that their claim against Appellees was unavailing. Our disposition of the appeal on liability grounds simply makes it unnecessary to undertake any analysis concerning damages.