Opinion
Case No. 20010743-CA.
FILED February 21, 2003. (Not For Official Publication)
Third District, Salt Lake Department, The Honorable Leon A. Dever, The Honorable William B. Bohling.
Attorneys: Harold A. Hintze, Fish Haven, Idaho, for Appellants.
Michael F. Skolnick and Kirk Gibbs, Salt Lake City, for Appellees.
Before Judges Billings, Orme, and Thorne.
MEMORANDUM DECISION
The applicable standard of care in a negligence case can be established as a legal matter either by legislative enactment or controlling judicial decision. See Restatement (Second) of Torts § 285 (1965). Appellants point to no such statute or decision. The alternative is to establish the standard of care factually. To do so in a legal malpractice action, expert testimony is generally required. See Preston Chambers v. Koller, 943 P.2d 260, 263-64 n. 3 (Utah Ct.App. 1997).
In this case, Appellees submitted expert testimony from attorney Gordon Roberts addressing the standard of care and opining that it was not breached by Appellees. However, Appellants — then represented by other counsel — elected not to rebut Mr. Roberts's affidavit with expert testimony of their own. Nor did Appellants provide any "standard-of-the-industry" evidence or show "that the subject matter of the malpractice claims is within the common knowledge of lay people."Id. at 264 n. 3. In the context of this factually complex case, we surely cannot agree with Appellants' suggestion that Appellees' conduct was so blatantly negligent that Appellees' actions should have been determined by the trial court to constitute negligence as a matter of law, without any need to consider expert testimony. Accordingly, the trial court correctly denied Appellants' motion for partial summary judgment.
Given the record before the trial court on summary judgment, we see no basis on which the court could properly deny Appellees' cross-motion for summary judgment concerning malpractice. On the contrary, given the uncontroverted affidavit of Gordon Roberts, in denying Appellants' motion the court should simultaneously have granted Appellees' motion. On this basis, we affirm the judgment ultimately entered in favor of Appellees. See, e.g., Buehner Block Co. v. UWC Assocs., 752 P.2d 892, 895 (Utah 1988) (noting appellate courts "may affirm trial court decisions on any proper ground(s), despite the trial court's having assigned another reason for its ruling").
As later pointed out by Judge Bohling, Judge Dever's denial of Appellees' cross-motion was implicit only; he did not specifically rule on it, turning instead to consider Appellees' motion for partial summary judgment directed at lost profits as recoverable damages for the alleged malpractice. Judge Dever granted that motion, which ultimately provided the basis for the entry of the final judgment entered by Judge Bohling in this case.
In so ruling, we do not mean to suggest there is some flaw in the trial court's determination that, in any event, the claimed lost profits were not recoverable by Appellants as damages, an alternative basis for concluding that their claim against Appellees was unavailing. Our disposition of the appeal on liability grounds simply makes it unnecessary to undertake any analysis concerning damages.
WE CONCUR: Judith M. Billings, Associate Presiding Judge, and William A. Thorne Jr., Judge.