State of Utah v. NelsonAnnotate this Case
Lillian E. Nelson,
Plaintiff and Appellant,
Sherri F. Palmer dba Palmer & Associates, and Sherri Palmer &
Defendants and Appellees.
(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
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,
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.