Robinson v. Jones Waldo Holbrook & McDonough, PC

2016 UT App 34THE UTAH COURT OF APPEALS
MICHAEL S. ROBINSON,
Appellant,
v.
JONES WALDO HOLBROOK & MCDONOUGH, PC;
STEPHEN C. CLARK; AND MELISSA M. BEAN,
Appellees.
Opinion
No. 20140213-CA
Filed February 19, 2016
Third District Court, West Jordan Department
The Honorable Charlene Barlow
No. 110415662
Michael S. Robinson, Appellant Pro Se
Keith A. Call, Rodney R. Parker, and Robert W. Lin,
Attorneys for Appellees
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and STEPHEN L. ROTH
concurred.
CHRISTIANSEN, Judge:
¶1 Michael S. Robinson appeals from the denial of his motion
for a continuance and the grant of summary judgment in favor
of Jones Waldo Holbrook & McDonough, PC; Stephen C. Clark;
and Melissa M. Bean (collectively, Defendants). We affirm.
BACKGROUND
¶2 In February 2007, Robinson retained Defendants to
represent him in a divorce action involving extensive marital
property, including a commercial complex located in St. George,
Robinson v. Jones Waldo
Utah, named Phoenix Plaza. On November 2, 2007, Robinson
and his then-wife agreed to a division of their interests (the
Stipulation). As part of the Stipulation, Robinson agreed to file
an application to refinance Phoenix Plaza, which he never did.
See generally Robinson v. Robinson, 2010 UT App 96, 232 P.3d 1081(affirming the denial of Robinson’s motion to set aside the
Stipulation); Robinson v. Robinson, 2016 UT App 32, (affirming,
among other things, a judgment of contempt for Robinson’s
failure to comply with the divorce decree entered into pursuant
to the Stipulation); Robinson v. Robinson, 2016 UT App 33,
(affirming, among other things, a motion to dismiss and a
motion for summary judgment, both predicated on Robinson’s
failure to adequately plead fraud-based claims relating to the
Stipulation).
¶3 On October 31, 2011, Robinson brought this suit against
Defendants, alleging that they had committed legal malpractice
in their representation of Robinson during the divorce
proceedings. Robinson alleged that Defendants should have
advised him to include language in the Stipulation governing
what would happen if Robinson was unable to refinance
Phoenix Plaza. Although initially unrepresented in his
malpractice case, Robinson later retained counsel. Defendants
and Robinson, through his counsel, entered into a scheduling
order on January 2, 2013, governing discovery due dates. As
relevant here, the scheduling order required Robinson to
designate any experts by July 26, 2013. The order also required
the parties to complete expert discovery by October 30, 2013, and
to file all dispositive motions by November 15, 2013.
¶4 The parties complied with those due dates until April 8,
2013, when Robinson’s counsel withdrew. After Defendants
served a notice to appear or appoint counsel pursuant to rule
74(c) of the Utah Rules of Civil Procedure, Robinson sought new
representation. According to Robinson, because he did not want
to ‚shop‛ the case, and because he was seeking representation
20140213-CA 2 2016 UT App 34Robinson v. Jones Waldo
on a contingency-fee basis, this process was lengthy. Defendants
filed a motion for summary judgment on July 29, 2013, and
Robinson retained new counsel on Monday, August 12, 2013.
Robinson’s new counsel did not begin working on the case until
Thursday, August 15, 2013, quickly discovering that a response
to the motion for summary judgment was due that very day.1
¶5 On Friday, August 16, 2013, Robinson’s new counsel
emailed Defendants’ counsel twice. In the first email, counsel
stated, ‚I will be filing a request for extension of time to respond
to your motion today[.] If you would like to discuss this matter
today, please feel free to contact me[.]‛ In the second email,
counsel stated, ‚It may be that I will ask for more time . . . given
the several hundred pages you have filed and my still nascent
familiarity with the facts. But it is too soon to do more than
briefly speculate on that supposition. Please advise.‛
Defendants’ counsel did not respond to these emails.
¶6 Also on August 16, 2013, Robinson’s new counsel filed
with the court a motion for extension of time to respond to
summary judgment, pursuant to rule 56(f) of the Utah Rules of
Civil Procedure.2 Rule 56(f) provided that a district court may
order a continuance to ‚permit affidavits to be obtained or
depositions to be taken or discovery to be had‛ when ‚it
appear[s] from the affidavits of a party opposing the motion that
the party cannot for reasons stated present by affidavit facts
essential to justify the party’s opposition.‛ Robinson argued that,
due to his lack of representation, he had been ‚unable to finish
1. Robinson averred that he had been unaware that a motion for
summary judgment had been filed until his counsel discovered
the pending motion in the docket on August 12, 2013.
2. This rule was renumbered as rule 56(d) of the Utah Rules of
Civil Procedure, which became effective November 11, 2015. See
2015 Utah Court Order 0017.
20140213-CA 3 2016 UT App 34Robinson v. Jones Waldo
discovery nor conduct absolutely necessary depositions.‛ He
therefore requested ‚that discovery be reopened and the
discovery schedule be amended to allow him a few months to
finish discovery and conduct depositions now that he has finally
been able to obtain representation.‛
¶7 On August 30, 2013, Defendants filed an opposition to
Robinson’s rule 56(f) motion, arguing that the motion did not
describe ‚what additional evidence is needed, what *Robinson’s+
opposition theory may be, what additional discovery is needed,
or how long it may take.‛ Robinson then filed a supplemental
memorandum on September 9, 2013, explaining that he wanted
to depose defendants Melissa M. Bean and Stephen C. Clark, and
that he had ‚retained an expert, Orson West Esq., and assume*d+
that Defendants would like to depose him as well.‛ Robinson’s
new counsel also clarified that he was requesting two months of
additional discovery time.
¶8 On February 12, 2014, the district court issued a ruling
denying Robinson’s rule 56(f) motion. The district court noted
that Robinson had not designated his expert witnesses by July
26, 2013, and that Robinson’s original counsel had withdrawn in
April 2013. The court therefore concluded that Robinson ‚had
over three months to retain new counsel and either comply with
the discovery plan and scheduling order or to seek to amend the
plan.‛ It also noted that Defendants had not filed their motion
for summary judgment until ‚*t+hree months and 21 days after
*Robinson’s+ counsel withdrew and three days after the deadline
to designate expert witnesses elapsed.‛ The court ruled that
Robinson ‚did not present a sufficient basis to excuse his lack of
diligence in completing discovery.‛
¶9 The court’s order also granted Defendants’ motion for
summary judgment. The court explained that, based in part on
the rule 56(f) ruling, Robinson had not ‚filed any affidavits or
20140213-CA 4 2016 UT App 34Robinson v. Jones Waldo
other evidence which raise an issue of disputed material fact to
survive a motion for summary judgment.‛ The court noted:
Without an expert witness, [Robinson] cannot
demonstrate that *Defendants’+ representation of
him in his divorce action fell below the applicable
standard of care. Additionally, the affidavits,
emails, and other evidence presented by
[Defendants] in support of their motion
demonstrate that [Robinson] cannot show that any
alleged breach by [Defendants] caused any loss to
him. [Robinson] entered into a stipulation to
resolve his divorce after long negotiations between
him and his ex-wife personally. He accepted and
used the accounting figures given him by his ex-
wife after consultation with his accountant. He
clearly wanted to retain ownership of the Phoenix
Plaza and accepted the stipulation arrived at on
Friday November 2, 2007[.]
....
Defendants’ emails to [Robinson] continually
reminded him of his obligation [under the
Stipulation] to refinance the Plaza within 15 days
but also show that he continually put off that
obligation hoping to get a better interest rate . . . .
Based upon his failure to even attempt to comply
with the stipulation, this Court and other courts
have ruled against him in other cases. [Robinson]
cannot show that any actions by [Defendants] have
caused the financial losses he is facing. As other
courts have held, his failure to even attempt to
comply with the stipulation [has] been the cause of
his losses.
Robinson appeals.
20140213-CA 5 2016 UT App 34Robinson v. Jones Waldo
ISSUES AND STANDARDS OF REVIEW
¶10 Robinson challenges the district court’s denial of his rule
56(f) motion. We review the denial of a rule 56(f) motion for an
abuse of discretion. Energy Mgmt. Servs., LLC v. Shaw, 2005 UT
App 90, ¶ 8, 110 P.3d 158.
¶11 Robinson also challenges the district court’s grant of
Defendants’ motion for summary judgment. We review a district
court’s legal conclusions and ultimate grant or denial of
summary judgment for correctness, after viewing the facts and
all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party. Orvis v. Johnson, 2008 UT 2,
¶ 6, 177 P.3d 600.
ANALYSIS
I. The District Court Did Not Abuse Its Discretion by Denying
Robinson’s Rule 56(f) Motion.
¶12 Robinson contends the district court abused its discretion
by denying his rule 56(f) motion. Robinson notes, ‚Rule 56(f)
motions opposing a summary judgment motion on the ground
that discovery has not been completed should be granted
liberally unless they are deemed dilatory or lacking in merit.‛
Energy Mgmt. Servs., LLC v. Shaw, 2005 UT App 90, ¶ 10, 110 P.3d
158 (citation and internal quotation marks omitted). He further
notes that ‚*o+n occasion, justice and fairness will require that a
court allow a party to designate witnesses, conduct discovery, or
otherwise perform tasks covered by a scheduling order after the
court-imposed deadline for doing so has expired.‛ Welsh v.
Hospital Corp. of Utah, 2010 UT App 171, ¶ 10, 235 P.3d 791(citation and internal quotation marks omitted).
¶13 Robinson argues that ‚*a+pplying these principles to this
case shows that the lower court clearly abused its discretion in
20140213-CA 6 2016 UT App 34Robinson v. Jones Waldo
not granting Robinson the reasonable and modest extra time he
sought.‛ But the cases cited by Robinson do not clearly support
his position.
¶14 In Shaw, this court held that the district court had
committed error by failing to rule on a rule 56(f) motion at all.
Shaw, 2005 UT App 90, ¶¶ 8, 15. In contrast, here, the district
court did rule on Robinson’s rule 56(f) motion. Accordingly,
Shaw sheds little to no light on the question of whether the
district court here abused the discretion afforded to it in
deciding whether to grant Robinson’s rule 56(f) motion.
¶15 Welsh concerned the district court’s discretion to deny a
motion seeking an extension to a deadline for expert witness
designation and expert report submission. Welsh, 2010 UT App
171, ¶ 1. In that case, the district court denied the motion, which
had been submitted shortly before the relevant deadline by the
plaintiffs’ newly retained counsel. Id. ¶¶ 4, 8. The court also
barred the use of late-filed expert discovery materials at trial as a
sanction for missing the deadline. Id. ¶ 8. This court held that the
district court had abused its discretion in excluding the
plaintiffs’ experts from trial. Id. ¶ 19. In doing so, this court
considered a number of factors, including (1) that the plaintiffs’
counsel had only entered an appearance days before the expert
witness deadline, (2) that the plaintiffs’ motion seeking an
extension was filed before that deadline, (3) that the defendant
had previously been uncooperative in discovery, (4) that the
defendant had also previously requested extensions to the
discovery order, (5) that the plaintiffs had not sought to extend
the deadlines for the completion of expert discovery or the
certification of trial readiness, (6) that the plaintiffs had
submitted their expert designations and expert reports before
the district court actually denied their motion to extend the
deadline such that granting the motion would not have caused
any additional delay, (7) that the defendant did not claim that
granting the motion would result in prejudice, and (8) that the
20140213-CA 7 2016 UT App 34Robinson v. Jones Waldo
court clerk had notified the plaintiffs that their motion had been
granted three weeks before the district court denied it. See id.¶¶ 13–19.
¶16 The case before us is, admittedly, similar at first blush.
Robinson’s counsel did not enter an appearance until shortly
before the deadline to respond to Defendants’ motion for
summary judgment. And Robinson did not seek to extend the
deadlines for the completion of expert discovery. But the
similarities end there. Here, Robinson did not move to extend
the July 26, 2013 deadline for the designation of expert witnesses
before the deadline passed.3 In fact, it does not appear that
Robinson filed any motion seeking to amend the scheduling
order. Instead, Robinson moved to extend the deadline for his
response to the summary judgment motion (which itself was
based on Robinson’s failure to comply with the scheduling
order). In contrast to the Welsh plaintiffs, Robinson did not allege
that Defendants’ actions had been partly responsible for his
3. Robinson asserts that ‚*w+hen his counsel withdrew, *he+
immediately sought accommodation from Defendants’ counsel
to set back the scheduled dates.‛ Robinson does not point to any
evidence to support this claim, nor do his affidavits shed light on
it. In any event, Robinson admits that ‚he failed to file a request
for extension with the court, in part, because he did not know
how long it would take to obtain new counsel.‛ While we grant
pro se litigants every consideration that may reasonably be
indulged, a party who represents himself will be held to the
same standard of knowledge and practice as any qualified
member of the bar. Allen v. Friel, 2008 UT 56, ¶ 11, 194 P.3d 903.
The reasonable considerations we afford to pro se litigants do
not include attempting to redress the ongoing consequences of
the party’s decision to function in a capacity for which he is not
trained. See id.; see also Jacob v. Cross, 2012 UT App 190, ¶ 4, 283
P.3d 539 (per curiam).
20140213-CA 8 2016 UT App 34Robinson v. Jones Waldo
delay; rather, he admitted that the delay had been caused by his
original counsel’s withdrawal. Neither did he argue that
Defendants had previously sought extensions. And although
Robinson did designate an expert, it does not appear that he
provided a report from that expert at any point, let alone before
the district court ruled on his rule 56(f) motion. Finally, there is
no indication that Robinson relied on erroneous information
from the district court about the status of his motion.
¶17 Moreover, in Welsh, the district court’s decision was
partly a sanction under rule 37 of the Utah Rules of Civil
Procedure, after the court found that the plaintiffs’ ‚failure to
comply with the discovery order was willful.‛ Welsh v. Hospital
Corp. of Utah, 2010 UT App 171, ¶ 8, 235 P.3d 791. But here, it
does not appear that the denial of Robinson’s rule 56(f) motion
was a rule 37 sanction. Robinson does not address whether the
discretion afforded a district court in imposing rule 37 sanctions
is similar to the discretion afforded a district court in ruling on a
rule 56(f) motion seeking to extend a deadline.
¶18 The Utah Supreme Court has stated that appellate courts
‚will not reverse the district court’s decision to grant or deny a
rule 56(f) motion for discovery unless it exceeds the limits of
reasonability.‛ Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT
55, ¶ 20, 192 P.3d 858 (citation and internal quotation marks
omitted). There is no bright line test to ascertain whether a court
has crossed that limit. Id. ¶ 21. Some of the relevant factors are
consideration of (1) the rule 56(f) affidavit ‚to determine whether
the discovery sought will uncover disputed material facts‛ or ‚if
the party requesting discovery is simply on a fishing
expedition,‛ (2) ‚whether the party opposing the summary
judgment motion has had adequate time to conduct discovery
and has been conscientious in pursuing such discovery,‛ and (3)
‚the diligence of the party moving for summary judgment in
responding to the discovery requests provided by the party
20140213-CA 9 2016 UT App 34Robinson v. Jones Waldo
opposing summary judgment.‛4 Id. (internal quotation marks
omitted).
¶19 ‚Parties . . . cannot justify further discovery without
providing a viable theory as to the nature of the facts they wish
to obtain.‛ Grynberg v. Questar Pipeline Co., 2003 UT 8, ¶ 57, 70
P.3d 1 (citation and internal quotation marks omitted). A district
court may refuse further discovery where the plaintiff ‚fail*s+ to
explain in his affidavit how additional discovery would aid his
opposition to summary judgment.‛ Riddle v. Celebrity Cruises,
Inc., 2004 UT App 487, ¶ 17, 105 P.3d 970 (ellipsis, citation, and
internal quotation marks omitted).
¶20 Here, Robinson’s rule 56(f) affidavits and supporting
memoranda did not explain what facts would likely be
uncovered by further discovery. Rather, the documents asserted
that Robinson ‚produced documentary evidence of the missteps
of Bean, and wishes to depose her on the subject‛ and that
Robinson ‚anticipate*d+ her responses will give me the
information to better oppose a summary judgment motion.‛
Similarly, the affidavits asserted that ‚*t+he deposition of Clark is
also needed to see if he is satisfied with the way Bean followed
his advice.‛ And with regard to Robinson’s expert, the
memoranda simply stated that Robinson ‚has also secured an
expert . . . and believes that Defendants will likely want to
depose him.‛
¶21 Furthermore, the affidavits did not address ‚whether the
party opposing the summary judgment motion has had
adequate time to conduct discovery and has been conscientious
in pursuing such discovery.‛ Overstock.com, 2008 UT 55, ¶ 21.
Robinson filed the case on October 31, 2011, and retained
4. Robinson does not claim that Defendants caused the delays
necessitating his rule 56(f) motion.
20140213-CA 10 2016 UT App 34Robinson v. Jones Waldo
counsel in February 2012. The discovery scheduling order was
entered on January 2, 2013. Robinson was represented by
counsel until April 8, 2013, but unrepresented from that date
until August 12, 2013.5 Robinson’s affidavits did not explain why
the time leading up to April 8, 2013, was inadequate to conduct
discovery, nor did the affidavits establish that Robinson or his
previous counsel were conscientious in the pursuit of the
discovery during that time.
¶22 It is true that a district court’s discretion, although
expansive, is not unlimited. Welsh v. Hospital Corp. of Utah, 2010
UT App 171, ¶ 19, 235 P.3d 791. But we cannot agree with
Robinson that the court here ‚clearly abused its discretion‛ on
the basis of the tenuous similarities he sees between his case and
Welsh and Shaw.6 Nor does it appear that the district court’s
denial of Robinson’s rule 56(f) motion exceeded the limits of
reasonability. See Overstock.com, 2008 UT 55, ¶¶ 20–21. We
conclude that Robinson has not shown an abuse of discretion in
the district court’s denial of his motion.
5. Robinson is once again unrepresented in this matter and
pursues this appeal pro se.
6. Robinson also relies on an unpublished federal case from the
First Circuit Court of Appeals, Abrami v. Town of Amherst, which
he suggests addresses ‚‘excusable neglect’ in the context of a
Rule 60(b) motion to set aside a summary judgment.‛ Robinson
does not provide a copy of that case, nor is it available on the
First Circuit’s website or via Westlaw. In any event, Robinson
does not even attempt to explain why the federal circuit court’s
view of excusable neglect under Federal Rule of Civil Procedure
60(b) should inform our review of a Utah state court’s
consideration of rule 56(f) of the Utah Rules of Civil Procedure.
20140213-CA 11 2016 UT App 34Robinson v. Jones Waldo
II. The District Court Did Not Err by Granting Defendants’
Motion for Summary Judgment.
¶23 Robinson also contends that the district court erred in
granting summary judgment to Defendants. He argues that he
alleged ‚all the elements of a malpractice claim‛ and that
summary judgment was therefore inappropriate.
¶24 ‚A court may grant summary judgment only ‘if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’‛
Kranendonk v. Gregory & Swapp, PLLC, 2014 UT App 36, ¶ 11, 320
P.3d 689 (quoting Utah R. Civ. P. 56(c)). ‚In a legal malpractice
action, a plaintiff must plead and prove (i) an attorney–client
relationship; (ii) a duty of the attorney to the client arising from
their relationship; (iii) a breach of that duty; (iv) a causal
connection between the breach of duty and the resulting injury
to the client; and (v) actual damages.‛ Id. ¶ 12 (quoting Harline v.
Barker, 912 P.2d 433, 439 (Utah 1996)).
¶25 Here, after Defendants filed their motion for summary
judgment, Robinson failed to timely respond to it.7 The district
court then granted the summary judgment motion, concluding
that Robinson had not properly filed any affidavits or other
evidence that raised an issue of disputed material fact. The court
7. Robinson asserts that ‚courts must examine the entire record
submitted to determine whether there are any issues of fact.‛
However, an ‚assertion that a trial court has an independent
duty to ferret out opposing facts in prior pleadings in the record
when a party fails to respond to a summary judgment motion is
contrary to the rules.‛ In re Estate of Kuhn, 2008 UT App 400U,
para. 8 (per curiam).
20140213-CA 12 2016 UT App 34Robinson v. Jones Waldo
concluded that absent an expert witness, Robinson could not
demonstrate that Defendants’ legal representation fell below the
applicable standard of care. And the court ruled that the
evidence presented by Defendants demonstrated that Robinson
could not show that any alleged breach by Defendants caused
any loss to him.
¶26 Robinson argues that ‚*i+t is not always necessary for an
expert witness to opine about the standard of care.‛ This is true.
See, e.g., Nixdorf v. Hicken, 612 P.2d 348, 352 (Utah 1980) (holding
that no expert was required to establish the standard of care
appropriate to the loss of a surgical instrument inside a patient
during surgery). But it does not follow that an expert witness is
never necessary to opine about the standard of care. Rather, no
expert is required to testify as to the contours of the standard of
care so long as the standard of care is ‚within the common
knowledge and experience of [a layperson].‛ See id. Here, the
appropriate standard of care was not clear cut. The underlying
divorce case involved premarital real property holdings,
sophisticated parties, marital property valued in millions of
dollars, and a complex web of business transactions including
leaseholds, building management expenses, out-of-state real
property holdings, and like-kind exchanges under section 1031
of the United States Internal Revenue Code. We cannot fault the
district court’s determination that an expert was necessary to
explain the standard of care required of an attorney representing
one of the divorcing parties in this complicated and contentious
situation. Nor can we see error in the district court’s resulting
conclusion that ‚*w+ithout an expert witness, *Robinson+ cannot
demonstrate that *Defendants’+ representation of him in his
divorce action fell below the applicable standard of care.‛
¶27 Robinson also challenges the district court’s conclusion
that Robinson could not show that any alleged breach by
Defendants caused any loss to him. He argues that, if
Defendants had advised him to include language in the
20140213-CA 13 2016 UT App 34Robinson v. Jones Waldo
Stipulation governing what was to happen in the event he was
unable to refinance Phoenix Plaza, he would have done so and
therefore would not have suffered the consequences of failing to
comply with the Stipulation’s requirement that he refinance
Phoenix Plaza. However, Robinson did not file an application for
a refinance within the required fifteen days after the date of the
Stipulation, nor did he do so at any time thereafter. The absence
of language addressing an unforeseen inability to refinance
could not have harmed Robinson when he put forward no
evidence that he was actually unable to refinance. Indeed,
Defendants submitted evidence suggesting that Robinson did
not file the application for refinance despite Defendants’ urging
him to do so, because he was awaiting a better interest rate or
hoping to avoid what he viewed as a futile refinance application.
In any event, it was not the district court’s role to construct a
potential argument for Robinson based upon the record facts
after he failed to timely respond to the summary judgment
motion.
¶28 Moreover, Robinson’s challenges to the summary
judgment ruling are unpreserved. Although a pro se litigant
should be accorded every consideration that may reasonably be
indulged, we will ultimately hold him to the same standard of
knowledge and practice as any qualified member of the bar.
Allen v. Friel, 2008 UT 56, ¶ 11, 194 P.3d 903; see also Golden
Meadows Props., LC v. Strand, 2010 UT App 257, ¶ 3 & n.2, 241
P.3d 375 (according the pro se litigant several indulgences such
as overlooking the fact that the briefs ‚lack*ed+ focus and
coherence and [were] littered with unsupported factual
allegations‛). ‚The preservation requirement is based on the
premise that, in the interest of orderly procedure, the trial court
ought to be given an opportunity to address a claimed error and,
if appropriate, correct it.‛ Wohnoutka v. Kelley, 2014 UT App 154,
¶ 3, 330 P.3d 762 (citation and internal quotation marks omitted).
‚Consequently, issues that are not raised at trial are usually
deemed waived.‛ Id. (brackets, citation, and internal quotation
20140213-CA 14 2016 UT App 34Robinson v. Jones Waldo
marks omitted). Due in part to his failure to timely respond to
the motion for summary judgment, Robinson did not present to
the district court the arguments he now raises on appeal.
Because Robinson did not present his claims of error to the
district court in such a way that the court could rule on them,
they are not preserved. Because the challenges are unpreserved,
we deem them waived. Id.CONCLUSION
¶29 We affirm both the district court’s denial of Robinson’s
rule 56(f) motion and the district court’s grant of Defendants’
motion for summary judgment.
20140213-CA 15 2016 UT App 34