State of Utah v. Nelson

----ooOoo----

Lillian E. Nelson,
Plaintiff and Appellant,

v.

Sherri F. Palmer dba Palmer & Associates, and Sherri Palmer & Associates,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990461-CA

F I L E D
(May 25, 2000)

2000 UT App 150
-----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
Lynn P. Heward, Salt Lake City, for Appellant
Matthew L. Lalli and Michael R. Johnson, Salt Lake City, for Appellees

-----

Before Judges Greenwood, Davis, and Orme.

GREENWOOD, Presiding Judge:

Nelson appeals from the trial court's grant of summary judgment dismissing her attorney malpractice complaint against Palmer. We reverse.
 

Summary judgment is appropriate only when, viewing the facts in the light most favorable to the nonmoving party, no disputed issues of material fact exist and the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(c); Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, 2000 UT 18, ¶4, 387 Utah Adv. Rep. 21. We review the trial court's legal conclusions for correctness. See Burton, 2000 UT 18 at ¶4. "On appeal '[w]e determine only whether the trial court erred in applying the governing law and whether the trial court correctly held that there were no disputed issues of material fact.'" Lopez v. Union Pacific R. Co., 932 P.2d 601, 603 (Utah 1997) (citation omitted).
 

Nelson challenges the trial court's determination that there was no issue of material fact concerning causation, arguing she set forth sufficient evidence to indicate that the Resolution Trust Corporation (the RTC) would have entered into a contract with her if Palmer had accepted the RTC's counteroffer on her behalf. Nelson contends that the affidavits submitted by Stark and Gallian show that there would have been a contract absent Palmer's negligence. Palmer argues that, under federal regulations, the RTC could not have entered into a contract with Nelson, thus, the affidavits do not create a genuine issue of fact and her negligence was not the proximate cause of Nelson's damages.
 

Proximate cause is a question of fact that does not easily "'lend [itself] to a determination on summary judgment.'" Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1292 (Utah Ct. App.), cert. denied, 919 P.2d 1208 (Utah 1996) (citation omitted). Proximate cause can be resolved as a matter of law by the trial judge only if "'there could be no reasonable difference of opinion' on a determination of the facts" or "when the facts are so tenuous, vague, or insufficiently established that determining causation becomes 'completely speculative.'" Harline v. Barker, 912 P.2d 433, 439 (Utah 1996) (citations omitted). Though causation cannot be purely speculative, it is common to use expert testimony to address causation. See Butterfield v. Okubo, 831 P.2d 97, 102-04 (Utah 1992). "'"[I]t only takes one sworn statement under oath to dispute the averments on the other side of the controversy and create an issue of fact."'" Kilpatrick, 909 P.2d at 1292 (citations and emphasis omitted).
 

Nelson's version of the facts is supported by documents that indicate that the RTC had the ability to enter into a contract with her. Additionally, Stark's affidavit states that the RTC would have entered into a contract with Nelson if Palmer had communicated her acceptance. Contrary to Palmer's assertions, Stark's affidavit is admissible on this issue because it is based on specific facts that support his conclusions. See Butterfield, 831 P.2d at 104. Further, according to Gallian's affidavit, there was no sale or financing arrangement between Nelson and Gallian, which the federal regulations allegedly prohibited, at the time the RTC made the counteroffer. Therefore, the RTC's subsequent rejection of Gallian's offer is not dispositive of whether it would have formed a contract with Nelson. Finally, Nelson has offered evidence to suggest that the federal regulations did not necessarily prevent the RTC from entering into a contract with Nelson by framing the deal as a settlement rather than a sale. Phrased differently, the affidavits suggest the RTC would have contracted with Nelson under the terms contained in the counteroffer, notwithstanding the regulations cited by Palmer.
 

It is not appropriate to resolve disputed facts on summary judgment. See Lopez, 932 P.2d at 603, 605; Kilpatrick, 909 P.2d at 1292. Here, the trial court did so in several ways, including making a determination regarding whether the RTC was trying to settle the debt or sell the note. Our review of the correspondence between the RTC and Nelson, as well as other documentation, suggests it is difficult to determine the practical difference between negotiations for a settlement or a sale of the note and indicates that disputed facts exist on this issue.
 

Therefore, we conclude that disputed issues of material fact preclude summary judgment.(1) Accordingly, we reverse.
 
 
 
 
 

______________________________

Pamela T. Greenwood,

Presiding Judge
 

-----

WE CONCUR:
 
 
 
 
 

______________________________

James Z. Davis, Judge
 
 
 
 
 

______________________________

Gregory K. Orme, Judge

1. We need not address the trial court's denial of Nelson's motion for a new trial due to our resolution of the summary judgment issue.