Musselman v. Keele ( 2024 )

2024 UT App 143THE UTAH COURT OF APPEALS
DAVID MUSSELMAN,
Appellant,
v.
KAMRON KEELE,
Appellee.
Opinion
No. 20220893-CA
Filed October 10, 2024
Third District Court, West Jordan Department
The Honorable Matthew Bates
No. 200905061
Julie J. Nelson, Attorney for Appellant
Kamron Keele, Appellee Pro Se
JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.
OLIVER, Judge:
¶1 The district court granted Kamron Keele’s unopposed
motion for partial summary judgment on his claims of tortious
interference and fraudulent misrepresentation against David
Musselman and entered judgment for Keele in the amount of
$166,041.11 after a bench trial on damages. We reverse the
judgment without deciding the issues on the merits because, on
appeal, Musselman presented a plausible basis for reversal and
Keele failed to address any of the issues on the merits, instead
choosing only to argue (incorrectly) that this court lacked
jurisdiction.
Musselman v. Keele
BACKGROUND
¶2 In March 2018, in preparation for a move to Chicago,
Kamron Keele, a Utah licensed attorney, began the required
preliminary application for admission to the Illinois Bar. While
not required to sit for the Illinois Bar’s examination, Keele was
required to fill out an application and pass the Illinois Bar’s
character and fitness review. In July 2018, after Keele’s
preliminary application was approved but before he submitted
his formal application, Keele and his family moved from Salt Lake
City to Chicago, where he continued working for his Utah clients.
Within six months of moving to Chicago, Keele had wound down
his Utah practice and began to apply for law firm positions in
Chicago. At the time, Keele believed he would be licensed in
Illinois by the beginning of 2019.
The Divorce Case
¶3 While in Chicago, Keele began representing a client
(Husband) in a Utah divorce action. In January 2019, Keele filed
Husband’s petition for divorce from Wife in Utah’s Third District
Court. While she was initially able to hire an attorney, Wife soon
found she could not afford to pay her attorney, so she let him go.
After that, due to Wife’s lack of counsel, Keele communicated
with her directly, including by email. In his communications with
Wife, Keele frequently used harsh and judgmental language
including:
• “[P]erhaps you are starting a new manic
episode as evidenced by your latest actions.”
• “Why you would do that to your child is
beyond outrageous.”
• “Because of your baffling inability to even
comprehend what is at issue in this case and
because you have stolen custody of [your
20220893-CA 2 2024 UT App 143Musselman v. Keele
child] and refuse to date to allow [Husband]
parent time, among other stunning behavior
and written legal positions and admissions
you have taken over the last two weeks since
I’ve been involved, [Husband] and I both
believe mediation in light of your current
delusions would be pointless.”
¶4 Due to her inability to pay for an attorney, Wife researched
alternatives to litigation, including mediation, and she came
across David Musselman, a mediator who specializes in divorce
cases. Musselman is not a licensed attorney. At Wife’s request,
Musselman contacted Husband to see if he would be interested in
mediation, but he declined. After learning that Husband was
unwilling to mediate, Wife became very emotional and “pleaded
with [Musselman] to help” her with the divorce. Musselman
provided Wife with some basic forms for divorce litigation and
helped her draft an answer and respond to Keele’s emails.
Musselman did not charge Wife for his assistance.
¶5 Husband discovered Musselman’s involvement when he
read Wife’s emails with Musselman, which Husband was able to
do by accessing those emails on a family computer that Wife had
failed to log out of before moving out of the marital home.
Husband forwarded these emails to Keele, who contacted
Musselman about his communications with Wife and told
Musselman to cease “advising [Wife].” That same day—February
5, 2019—Wife filed a complaint with the Utah Bar against Keele.
Keele reported the bar complaint to the Illinois Bar, as he was
required to do, which then placed Keele’s Illinois application on
hold pending resolution of the Utah Bar complaint. After
requesting and receiving Keele’s response to Wife’s allegations,
the Utah Bar notified Keele on July 29, 2019, that it was declining
to move forward with the complaint because “there [was] not
enough evidence to prove by a preponderance that Mr. Keele’s
behavior . . . rises to a violation of the Rules of Professional
20220893-CA 3 2024 UT App 143Musselman v. Keele
Conduct.” Keele notified the Illinois Bar of the dismissal in
August 2019, and the Illinois Bar ultimately approved his
application in March 2020. In total, Keele’s Illinois Bar application
was on hold for approximately six months from February 2019 to
August 2019.
Keele’s Illinois Employment
¶6 Between December 2018 and December 2019, before he
was licensed in Illinois, Keele applied to over eighty law firms and
companies but did not obtain a job offer from any of them. Keele
testified that in every interview he had to inform prospective
employers that his application to the Illinois Bar was on hold
because he was waiting for the Utah Bar complaint to clear up,
and he believed that this disclosure and his lack of licensure were
the reasons he was not hired. However, Keele also failed to get a
job at any of the firms and companies he applied to from
December 2018 to February 2019 and from August 2019 to
December 2019, both before and after the Utah Bar complaint was
pending.
¶7 Ultimately, in December 2019, Keele was hired by a sole
practitioner at a salary of $100,000, but he was terminated only a
few months later in March 2020. His termination letter cited three
reasons for his termination: (1) he prioritized “non-Firm clients
over personal clients from Utah,” causing him to make “excessive
mistakes”; (2) he took “unexcused absences with insufficient
notice and insufficient make-up time during tax season for Utah
practice,” which resulted in “work not being completed in a
timely and accurate fashion”; and (3) he was unable “to obtain an
Illinois license in a reasonable amount of time.”
The Lawsuit Against Musselman
¶8 In August 2020, Keele filed a lawsuit against Musselman in
Utah’s Third District Court, alleging tortious interference,
20220893-CA 4 2024 UT App 143Musselman v. Keele
unauthorized practice of law, fraudulent misrepresentation, and
negligent misrepresentation. He sought damages of $450,000 in
lost income. On November 29, 2020, before Musselman served his
initial disclosures, Keele filed a motion for summary judgment “as
to all of the elements but damages of [Keele’s]’s claims of tortious
interference and fraudulent misrepresentation.” The district court
denied Keele’s motion after concluding that material facts—
including whether Musselman had advised Wife to file a bar
complaint—were in dispute.
¶9 In January 2022, the parties filed the following stipulation
with the district court:
1. [P]rior to [Wife] filing a bar complaint against
[Keele] on February 5, 2019, [Musselman] told
[Wife] that, in his opinion, [Keele] was unethical to
her as opposing counsel in her divorce case.
2. [Musselman] told [Wife] prior to February 5, 2019
that she should file a bar complaint against [Keele]
for the same.
Keele then filed a renewed motion for summary judgment.
Musselman failed to respond to the renewed motion. The district
court entered partial summary judgment in Keele’s favor on the
tortious interference and misrepresentation claims, but reserved
for trial “the fact of damages and the specific dollar amount.”
¶10 Musselman timely filed a rule 60(b) motion for relief from
the district court’s grant of partial summary judgment. See Utah
R. Civ. P. 60(b). In his motion, Musselman claimed his failure to
respond to the motion for partial summary judgment was due to
excusable neglect because his attorney had an issue receiving
emails, and he asserted he had meritorious defenses to Keele’s
claims. The district court denied Musselman’s rule 60(b) motion,
ruling that there was no evidence presented to substantiate the
alleged email issue and that even if Musselman did present this
20220893-CA 5 2024 UT App 143Musselman v. Keele
evidence, computer glitches do not constitute excusable neglect.
The district court also concluded that Musselman did not
demonstrate a meritorious defense. Musselman filed a petition for
interlocutory appeal of the denial of the rule 60(b) motion, which
this court denied.
¶11 On September 12, 2022, the district court held a bench trial
on damages. After hearing testimony from Keele and receiving
exhibits, including Keele’s tax returns and a salary survey from
Chicago Lawyer magazine, the district court awarded Keele
damages for the period from February 2019 to April 2020, totaling
$166,041.11.
ISSUE AND STANDARD OF REVIEW
¶12 Musselman argues the district court erroneously granted
Keele partial summary judgment on his tortious interference and
fraudulent misrepresentation claims. 1 We review a district court’s
“grant of summary judgment for correctness,” giving “no
deference to the district court’s legal conclusions.” Heslop v. Bear
River Mutual Ins. Co., 2017 UT 5, ¶ 15, 390 P.3d 314.
ANALYSIS
I. Jurisdiction
¶13 Before we can examine Musselman’s substantive
arguments, we must first address Keele’s assertion that this court
lacks jurisdiction to review the district court’s grant of partial
summary judgment and denial of Musselman’s rule 60(b) motion
1. Musselman also challenges the district court’s award of
damages to Keele in the amount of $166,041.11. But because we
reverse the grant of partial summary judgment, we need not reach
the issue of damages.
20220893-CA 6 2024 UT App 143Musselman v. Keele
because Musselman failed to timely appeal these orders. It is well
settled that “an appellate court does not have jurisdiction to
consider an appeal unless the appeal is taken from a final order or
judgment that ends the controversy between the litigants.” Copper
Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018 UT 56,
¶ 10, 428 P.3d 1133 (cleaned up). According to Keele, both orders
were final appealable orders and because Musselman failed to
appeal them within thirty days of entry of each order, this court
lacks jurisdiction over the appeal. 2 We disagree.
¶14 A “partial summary judgment is not generally a final
judgment and hence it is not appealable” because it does not
“dispose of the case as to all the parties, and finally dispose of the
subject-matter of the litigation on the merits of the case.” Alvey
Dev. Corp. v. Mackelprang, 2002 UT App 220, ¶ 18, 51 P.3d 45(cleaned up); accord South Shores Concession, Inc. v. State, 600 P.2d
550, 553 (Utah 1979) (holding that “a partial summary judgment
is not generally a final judgment” (cleaned up)). Here, the order
granting partial summary judgment did not dispose of the case.
The order specifically reserved for trial “the fact of damages and
the specific dollar amount of damages.” Indeed, a bench trial was
held on this remaining issue of damages, so it is clear that the
grant of partial summary judgment was not a final order. See
Harrington v. Browne, 2005 UT App 57U, para. 2 (per curiam)
(concluding that a partial summary judgment order that reserves
“particular issues for trial” is not a final appealable order). And
because this court denied Musselman’s petition for interlocutory
appeal of the partial summary judgment order, Musselman
necessarily had to wait until the district court entered final
judgment after the trial on damages before he could appeal the
2. We note that in this appeal Musselman did not challenge the
denial of his rule 60(b) motion. Therefore, we do not address
Keele’s jurisdictional argument with respect to that motion.
20220893-CA 7 2024 UT App 143Musselman v. Keele
order. 3 See Zions First Nat’l Bank, NA v. Rocky Mountain Irrigation
Inc., 931 P.2d 142, 144 (Utah 1997) (holding that a notice of appeal
from the final judgment includes “any intermediate order
involving the merits or necessarily affecting the judgment”).
Musselman’s appeal from the eventual final judgment was timely,
and we therefore have jurisdiction to hear his appeal.
II. The District Court’s Grant of Partial Summary Judgment
¶15 “In many situations, a district court has discretion to grant
a motion merely because the nonmovant fails to oppose it.” Turley
v. Childs, 2022 UT App 85, ¶ 25, 515 P.3d 942. However, motions
for summary judgment do not fall into this category. “Summary
judgment may not be entered against the nonmoving party
merely by virtue of a failure to oppose, but instead a district court
must still determine whether the moving party’s pleadings,
discovery, and affidavits demonstrate its entitlement to judgment
as a matter of law.” Tronson v. Eagar, 2019 UT App 212, ¶ 17, 457
P.3d 407 (cleaned up); see also Utah R. Civ. P. 56(e)(3) (The district
court may only “grant summary judgment if the motion and
supporting materials—including the facts considered
undisputed—show that the moving party is entitled to it.”).
¶16 When a party fails to dispute a material fact in a motion for
summary judgment by failing to respond to the motion, the facts
are “deemed admitted for the purposes of the motion.” Utah R.
Civ. P. 56(a)(4). However, the court “must still view all reasonable
inferences drawn from those admitted facts in the light most
favorable to the non-moving party.” Turley, 2022 UT App 85, ¶ 26
(cleaned up). “And where the moving party would bear the
burden of proof at trial, the movant must establish each element
3. Musselman’s notice of appeal expressly included both the final
judgment and the partial summary judgment order.
20220893-CA 8 2024 UT App 143Musselman v. Keele
of his claim in order to show that he is entitled to judgment as a
matter of law.” Id. ¶ 27 (cleaned up).
¶17 A district court’s assessment of an unopposed summary
judgment motion is “not intended to be particularly searching.”
Id. ¶ 28. If, after review, “it appears to the court that the movant
has connected the relevant dots—that is, that the moving papers
recite supported facts which, taken as true, appear to entitle the
movant to relief under applicable law—then the motion should be
granted.” Id. But if “it is not apparent to the [district] court that
the movant is entitled to judgment as a matter of law, the motion
should be denied, despite its unopposed status.” Id. Here, the
district court granted Keele’s motion, concluding that Keele had
“met his burden of proving all of the elements but the fact of
damages.”
¶18 Musselman argues the district court erred in its grant of
partial summary judgment because material facts were still in
dispute and because Keele did not meet his burden of proving the
elements of his tortious interference and fraudulent
misrepresentation claims. Typically, we would address this
argument in the manner laid out in Turley and assess the district
court’s decision “for correctness.” Id. ¶ 30. However, the situation
is different here because on appeal Keele has entirely failed to
respond or present any opposing argument on these issues in his
responsive brief. See Mitchell v. Arco Indus. Sales, 2023 UT App 70,
¶ 21, 533 P.3d 394, cert. denied, 537 P.3d 1016 (Utah 2023).
¶19 Instead of engaging with the merits of Musselman’s
appellate arguments regarding the district court’s decision to
grant partial summary judgment, Keele focuses his responsive
brief exclusively on his arguments that this court lacks jurisdiction
because Musselman’s appeal was untimely and that damages
were correctly determined. Musselman’s arguments on the merits
of the grant of partial summary judgment were left completely
unrebutted by Keele. And while an appellee and his counsel (of
20220893-CA 9 2024 UT App 143Musselman v. Keele
which Keele is both in this case) certainly have the choice to forgo
addressing arguments raised by appellants, they do so at their
own peril. Because if the sole opposing argument presented turns
out to be incorrect (as Keele’s jurisdictional argument did here),
the appellant’s arguments stand unrebutted and we then review
them with a “lower standard than the typical burden of
persuasion on appeal.” AL-IN Partners, LLC v. LifeVantage Corp.,
2021 UT 42, ¶ 19, 496 P.3d 76.
¶20 Indeed, our supreme court has held that a “court may rule
in favor of an appellant for purposes of that case if the appellee
inadequately briefs an argument and the appellant provides a
plausible basis for reversal.” Utah Dep’t of Transp. v. Coalt, Inc.,
2020 UT 58, ¶ 45, 472 P.3d 942. Because Keele failed to address
Musselman’s arguments on the merits, we therefore determine
only whether Musselman has presented a plausible basis for
reversal of the court’s grant of partial summary judgment on the
tortious interference and fraudulent misrepresentation claims. 4
A. Tortious Interference
¶21 “To recover damages for tortious interference a plaintiff
must prove (1) that the defendant intentionally interfered with the
plaintiff’s existing or potential economic relations, (2) for an
improper purpose or by improper means, (3) causing injury to the
plaintiff.” Eldridge v. Johndrow, 2015 UT 21, ¶ 13, 345 P.3d 553(cleaned up). Because Musselman argues Keele did not provide
undisputed evidence to support any of these elements, we
address each in turn.
4. Our decision rendered under this standard “is a non-merits
decision that is not intended to have any precedential value.”
Mitchell v. Arco Indus. Sales, 2023 UT App 70, ¶ 22 n.2, 533 P.3d 394(cleaned up), cert. denied, 537 P.3d 1016 (Utah 2023).
20220893-CA 10 2024 UT App 143Musselman v. Keele
1. Intentional Interference
¶22 A plaintiff must prove the defendant “intentionally
interfered with the plaintiff’s existing or potential economic
relations” to recover for a tortious interference claim. Id. ¶ 66
(cleaned up). “Intent and motive are not synonymous; in the tort
context, ‘intent’ means a desire to bring about certain
consequences, not a person’s reasons for that desire.” Id. In the
complaint, Keele alleged that “Musselman intentionally advised
Wife that [Keele]’s actions were unethical and that a bar complaint
against him was in order; with the expectancy of causing [Keele]
to have to defend himself in the hopes that [Keele] would be
distracted from fully representing his client against her.”
¶23 Musselman argues that intending to have Wife file a bar
complaint against Keele is not the same as intending to tortiously
interfere with Keele’s potential economic relations. Musselman
further argues that Keele presented no evidence that Musselman
knew of Keele’s move to Chicago or of his interviews with law
firms, and Musselman stated in his answer that he had “no
knowledge of [Keele]’s employment, living, or family situation.”
Thus, Musselman presents a plausible argument that Keele did
not prove—or even allege—that Musselman intentionally
interfered with Keele’s potential economic relations with
Chicago-area law firms.
2. Improper Means
¶24 In addition to proving that Musselman intentionally
interfered with Keele’s potential economic relationships, Keele
must also show that Musselman used improper means to do so.
See C.R. England v. Swift Transp. Co., 2019 UT 8, ¶ 41, 437 P.3d 343.
“Improper means is satisfied where the means used to interfere
with a party’s economic relations are contrary to law, such as
violations of statutes, regulations, or recognized common-law
rules or if they violate an established standard of a trade or
20220893-CA 11 2024 UT App 143Musselman v. Keele
profession.” Id. ¶ 3 (cleaned up). For a violation of a trade or
profession’s established standards to be an improper means, “the
standard or rule” violated “must be an objective one accepted
throughout the relevant industry.” Id. Establishing this industry
standard can be accomplished with “expert testimony regarding
industry-wide customs or practices, uniform codes, [or] industry-
specific regulations.” Id. ¶ 48.
¶25 In his motion, Keele asserted that Musselman had been
practicing law without a license in violation of Utah law. Keele
argued Musselman unlawfully practiced law by “giving [Wife]
legal litigation advice that [Keele] had violated the Court’s ethical
rules and that she should file a bar complaint against him.” “The
practice of law . . . involve[s] the rendering of services that require
the knowledge and application of legal principles to serve the
interests of another . . . [and] consists of performing services in the
courts of justice[,] . . . counseling, advising, and assisting others in
connection with their legal rights, duties, and liabilities.” Board of
Comm’rs of the Utah State Bar v. Peterson, 937 P.2d 1263, 1268 (Utah
1997) (cleaned up). Musselman argues that informing Wife that
Keele’s behavior potentially warranted a bar complaint does not
involve “knowledge and application of legal principles,” see id.(cleaned up), particularly because he was merely expressing his
opinion. And, he argues, non-lawyers can express an opinion
about whether an attorney has potentially violated ethical rules.
For support, Musselman points out that non-attorneys are on the
committee tasked with hearing “cases against lawyers . . . for
violations of the Rules of Professional Conduct” in Utah. See Ethics
& Discipline Committee, Utah State Bar, https://www.utahbar.org/
ethics-discipline-committee/ [https://perma.cc/3XLF-LGWM]
(stating that the committee “consists of lawyers and members of
the public”).
¶26 Keele also asserted in his motion that Musselman used
improper means because he violated professional standards. The
only professional standards that Keele mentions in his motion are
20220893-CA 12 2024 UT App 143Musselman v. Keele
the “standards of the profession of an attorney,” which
Musselman argues would not apply to him as he is not an
attorney and therefore not subject to these standards. Musselman
also argues that Keele failed to establish what objective standards
Musselman violated, either through expert testimony or
otherwise. See C.R. England, 2019 UT 8, ¶ 48. Musselman has
therefore plausibly demonstrated that Keele did not prove that
Musselman used “improper means” when he told Wife to file a
bar complaint.
3. Causation
¶27 A plaintiff must prove causation to recover damages for
tortious interference. See Eldridge v. Johndrow, 2015 UT 21, ¶ 13, 345
P.3d 553. To prove causation, the plaintiff must present evidence
of a causal link between the alleged tortious interference and the
harm. See Francis v. National DME, 2015 UT App 119, ¶ 48, 350 P.3d
615. Accordingly, Musselman argues, Keele needed to prove that
it was Wife’s bar complaint that prevented him from receiving a
job at any of the firms or companies that he interviewed with. 5 But
Keele provided no evidence that, without the bar complaint
against him, he would have been offered a job. He testified that
interviewers told him that he needed to be admitted to practice
law in Illinois, but he offered no testimony or documents from any
interviewer or firm to support that his lack of an Illinois license
was the reason he was not offered a job. Further, many of the firms
Keele listed regularly hire unlicensed law students for the entry-
level associate positions that Keele stated he was willing to accept.
And, Musselman points out, Keele was eventually able to obtain
5. Musselman disputes on appeal whether Wife filed the bar
complaint because he told her to do so, but that factual dispute
was not before the district court when it ruled on the motion for
partial summary judgment, so we do not consider it here. See
Turley v. Childs, 2022 UT App 85, ¶ 31, 515 P.3d 942.
20220893-CA 13 2024 UT App 143Musselman v. Keele
employment in Chicago without an Illinois license. 6 Therefore,
Musselman has plausibly shown that Keele failed to demonstrate
the required causal relationship between Musselman’s conduct
and Keele’s inability to obtain employment.
¶28 In sum, Musselman has presented a plausible basis for
reversal of the grant of summary judgment on each of the
elements of Keele’s tortious interference claim.
B. Fraudulent Misrepresentation
¶29 To recover damages for fraudulent misrepresentation the
plaintiff must establish as follows:
(1) that a representation was made (2) concerning a
presently existing material fact (3) which was false
and (4) which the representor either (a) knew to be
false or (b) made recklessly, knowing that there was
insufficient knowledge upon which to base such a
representation, (5) for the purpose of inducing the
other party to act upon it and (6) that the other party,
acting reasonably and in ignorance of its falsity, (7)
did in fact rely upon it (8) and was thereby induced
to act (9) to that party’s injury and damage.
Cardon v. Jean Brown Rsch., 2014 UT App 35, ¶ 6, 327 P.3d 22(emphasis added) (cleaned up). Musselman argues that Keele is
not the proper party to bring this claim of fraudulent
misrepresentation because Keele does not allege Musselman
made any fraudulent representations to him; instead, the alleged
misrepresentations in this case were made to Wife, a third party.
6. Keele was terminated from that employment within a few
months. Keele asserts that he was terminated for not having an
Illinois bar license. Although that was listed as one of the reasons
in his termination letter, it was the third reason, behind his poor
performance and absenteeism. See supra ¶ 7.
20220893-CA 14 2024 UT App 143Musselman v. Keele
But Keele must demonstrate that he, himself, relied on the
fraudulent misrepresentation and that this reliance induced him
to act to his own injury. Id.; see also State v. Apotex Corp., 2012 UT
36, ¶ 58, 282 P.3d 66. Keele instead asserts Musselman recklessly
made a false representation concerning a present, material fact to
Wife to induce Wife to act on it and file a bar complaint, which
she did. However, Musselman argues that Wife is the party that
the alleged fraudulent misrepresentation was made to, not Keele,
demonstrating that Keele is not the correct party to bring this
claim. Thus, Musselman has plausibly demonstrated that Keele
failed to prove the required elements of his fraudulent
misrepresentation claim.
¶30 For the preceding reasons, we conclude that Musselman
has met his lowered burden of demonstrating a plausible basis to
reverse the grant of partial summary judgment on both of Keele’s
substantive claims.
CONCLUSION
¶31 This court has jurisdiction over Musselman’s appeal. Keele
failed to address Musselman’s arguments for reversal of the grant
of partial summary judgment and, applying the resulting lower
standard of review, Musselman has demonstrated a plausible
basis for reversal. Accordingly, we reverse the grant of partial
summary judgment and remand the matter for further
proceedings.
20220893-CA 15 2024 UT App 143