Hansen v. Thurber

Hansen v. Thurber

IN THE UTAH COURT OF APPEALS

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Monte C. Hansen, Linda K. Hansen, and Monte T. Hansen,

Plaintiffs, Appellants, and Cross-appellees,

v.

Anthony M. Thurber,

Defendant, Appellee, and Cross-appellant,

and

David A. McPhie,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030100-CA
 

F I L E D
(April 29, 2004)
 

2004 UT App 139

 

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Third District, Salt Lake Department

The Honorable Leslie A. Lewis

The Honorable Leon A. Dever

Attorneys: Jeffrey R. Oritt, Salt Lake City, for Appellants and Cross-appellees

Anthony M. Thurber, West Valley City, Appellee and Cross-appellant Pro Se

R. Brent Stephens and Heather S. White, Salt Lake City, for Appellee David A. McPhie

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Before Judges Billings, Davis, and Orme.

DAVIS, Judge:

Monte C. Hansen, Linda K. Hansen, and Monte T. Hansen (collectively, Hansens) appeal the trial court's denial of their motion to consolidate and the trial court's grant of summary judgment in favor of David A. McPhie. Anthony M. Thurber cross-appeals the trial court's grant of summary judgment in favor of the Hansens. We affirm.

The Hansens argue that the trial court erred by denying their motion to consolidate their separate legal malpractice actions against Thurber and Arthur Lee Bishop III into one action.(1) In their memorandum filed in opposition to Thurber's motion, the Hansens admit that their action against Bishop is complete.(2) As such, even if we were to agree with the Hansens' argument and grant them their requested relief by reversing the trial court's denial of their motion to consolidate, it would have no effect. Accordingly, this argument fails.(3)

The Hansens also argue that the trial court erred by granting summary judgment in favor of McPhie. "Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. On appeal, we review the district court's ruling on summary judgment for correctness." Jackson v. Mateus, 2003 UT 18,¶6, 70 P.3d 78 (citations omitted). The Hansens assert that the trial court erred by granting summary judgment in favor of McPhie because there was a genuine issue of material fact about whether McPhie adequately advised the Hansens about the merit of their appeal to the Tenth Circuit Court of Appeals. The record contains a memorandum written by McPhie which summarizes an October 1994 meeting he had with the Hansens. In this memorandum, McPhie noted, inter alia, that during the October 1994 meeting he "explained to the Hansens that[,] in [his] view[,] the negatives outweighed the positives when it came to appealing"; he "made a list of the negatives and the positives, and [he] went over the list with them"; and he "told the Hansens that in [his] opinion, based on [his] estimation of their resources financially, emotionally[,] and otherwise that it would be unwise to appeal, and that [he] would not do it[,] and that it was [his] advi[c]e that they not do it." In her deposition testimony, Linda K. Hansen admitted that this memorandum was a "substantially accurate" reflection of the substance of the Hansens' October 1994 meeting with McPhie. In light of these undisputed facts, we conclude that the trial court did not err by granting summary judgment in favor of McPhie.(4)

Thurber argues that the trial court erred by granting summary judgment against him and in favor of the Hansens. Although Thurber alleges that the trial court failed to consider his opposing submissions in its decision to grant summary judgment in favor of the Hansens, he never demonstrates how the content of these opposing submissions creates a "genuine issue of material fact" or shows that the Hansens are not "entitled to judgment as a matter of law." Id. Therefore, he has not demonstrated how the trial court's grant of summary judgment in favor of the Hansens was in error.

Affirmed.

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James Z. Davis, Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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Gregory K. Orme, Judge

1. After the Hansens raised this issue in their opening brief, Thurber filed a motion with this court suggesting that it was moot, pursuant to rule 37 of the Utah Rules of Appellate Procedure, and requesting damages, pursuant to rules 33 and 40 of the Utah Rules of Appellate Procedure. In an order dated September 11, 2003, we deferred ruling on Thurber's motion pending full consideration of this appeal. Although the Hansens raise this issue in their opening brief, both parties agree in their subsequent briefs that this issue has been adequately briefed in the memoranda submitted in connection with Thurber's motion. Accordingly, we refer to the parties' arguments contained in such memoranda.

2. The Hansens' action against Bishop was dismissed by a trial court order entered in October 2002. In their memorandum in opposition to Thurber's motion, the Hansens admit that they "did not appeal the dismissal of any of their claims against Mr. Bishop" because "there did not appear to . . . be any viable appealable issues."

3. After fully considering this issue, we deny Thurber's aforementioned motion.

4. Because we have determined that the undisputed facts show that McPhie adequately advised the Hansens about the merit of their appeal during the October 1994 meeting, we need not consider their argument that McPhie did not repeat the same advice when he communicated the settlement counteroffer to them. In addition, we conclude that the Hansens' final argument concerning their petition for writ of certiorari to the United States Supreme Court fails because, as the Hansens admit in their reply brief, they did not include this claim in their complaint against McPhie.