Crestwood Cove Apartments Business Trust dba Cottonwood Creek Aparemtns and Shangri-Law UBO

1 This appeal arises from a claim that Shawn Turner and
his law firm, Larsen, Kirkham & Turner (collectively, "Turner"),
committed malpractice when representing Shangri-La, U.B.O., in a
redemption lawsuit. Shangri-La and its successor, Crestwood Cove
Apartments Business Trust (collectively, "Shangri-La"), allege
that Turner committed malpractice by failing to timely contest
the application of Utah's unlawful detainer statute1 and its
treble damage provisions2 and by failing to raise Utah Rule of Civil Procedure 69(j)3 as the appropriate measure of damages.
The district court granted Turner's motion for summary judgment,
reasoning that Turner did not commit malpractice and that, in any
event, Shangri-La had forfeited its right to pursue Turner for
malpractice when it settled the underlying redemption lawsuit
before it could be decided on appeal. Shangri-La appeals the
district court's decision. We affirm the dismissal entered by
the district court on different grounds.

FACTUAL AND PROCEDURAL BACKGROUND

2 In March 1995, Shangri-La, the owner of an apartment
complex (the "apartments" or the "property"), sued its former
apartment managers for fraud. The court dismissed Shangri-La's
claim and awarded the former managers court costs and attorney
fees in the amount of $4,767. Shangri-La failed to pay the
judgment. As a result, the former managers caused the property
to be sold at a sheriff's sale to Kasey Enterprises ("Kasey") in
August of 1996 for the purpose of satisfying their judgment.
Kasey purchased the property, valued at $4,000,000, for a mere
$8,000. Kasey subsequently sold it to UAW Properties ("UAW") and
DLM Investments ("DLM") for $11,197.

3 Although Shangri-La made no attempt to redeem the
property within the six-month statutory redemption period, it
remained in possession and continued to collect and receive rent
from its tenants. On April 16, 1997, UAW and DLM served Shangri-
La with notice to quit the property. Two days later, Shangri-La
filed an action to quiet title to the property, asking the court
to invalidate the sheriff's sale or, in the alternative, to
extend the time to redeem the property from that sale. UAW and
DLM counterclaimed for unlawful detainer and conversion. Several
months later, Shangri-La retained Turner to represent it in
connection with the lawsuit.

4 In May 1998, the trial court issued a memorandum
decision in which it ruled that the sheriff's sale was valid.
Nevertheless, it equitably extended the redemption period after
finding that Kasey's purchase of a $4,000,000 property for a mere
$8,000 shocked the conscience. The trial court also determined
that UAW and DLM were entitled to the return of their purchase
price, attorney fees, and taxes paid on the property, as well as
$304,333 for rents that Shangri-La had collected after the
sheriff's sale.

5 The trial court asked for supplementary briefing on the
issue of whether UAW and DLM were entitled to treble damages for
the rents under Utah Code section 76-36-10, the statutory
provision specifying damages for unlawful detainer. Turner filed
a supplementary brief in which he argued that the treble damages
provision of the unlawful detainer statute was not applicable.
Nevertheless, the trial court ruled that the treble damages
provision applied, trebling the amount in rent due UAW and DLM to
$912,999. That amount, plus UAW and DLM's purchase price,
attorney fees, and property taxes brought Shangri-La's total
redemption price to nearly $1,000,000.

6 Turner filed a motion for a new trial or an amended
judgment in which he again argued that the unlawful detainer
statute did not apply to UAW and DLM's claims against Shangri-La.
In his reply to UAW and DLM's memorandum in opposition to the
motion, Turner also noted that Utah Rule of Civil Procedure
69(j)(3) "governs the amount that must be paid in order to redeem
a property" and that Utah Rule of Civil Procedure 69(j)(7)
governs "the treatment of rents during the period of redemption."
Despite these assertions, the district court denied the motion,
indicating that "the arguments made by [Shangri-La] in this case
are in substance the same arguments that have previously been
made."

7 In November 1998, Shangri-La hired new legal counsel
and appealed the trial court's ruling. By the end of March 2000,
the appeal and cross-appeal were fully briefed. During this
time, UAW and DLM took possession of the property and allegedly
began to mismanage it, resulting in the property's devaluation
and a decrease in rental income. In order to stop the diminution
of the property value and retake possession, Shangri-La decided
to enter into a settlement agreement with UAW and DLM. Under the
terms of this settlement agreement, Shangri-La agreed to the
dismissal of its appeal with prejudice.

8 Shangri-La subsequently filed this malpractice action
against Turner, contending that Turner had "failed to interpose
such legal defenses and theories on behalf of [Shangri-La] as
would adequately protect [Shangri-La's] interest in" the
apartment complex. Turner moved for summary judgment. The
district court granted his motion, reasoning that Turner had not
committed malpractice because the judge in the underlying case
had Turner's supplemental brief before him when he issued his
final decision. The district court also ruled that Shangri-La
had "forfeited [its] right to pursue any malpractice action
against" Turner by settling the underlying action instead of
pursuing the appeal.

9 Shangri-La appeals the district court's grant of
summary judgment in favor of Turner. We have jurisdiction
pursuant to Utah Code section 78-2-2(3)(j) (2002).

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13 Broadly stated, the abandonment doctrine provides that
a client forfeits any legal malpractice claims arising from an
attorney's alleged mishandling of litigation when the client
settles the underlying litigation before final judicial review
"[i]f the compromise prevented the judicial resolution of issues
that would have established that the attorney was not negligent
or a cause of the client's loss."

14 The Florida Court of Appeals articulated the
abandonment doctrine in the seminal case of Pennsylvania
Insurance Guaranty Ass'n v. Sikes.8 Sikes arose from an
attorney's failure to deny certain allegations in an underlying
civil case. Although the attorney had later moved to amend his
answer, the trial judge denied his motion.9 The attorney
recommended that his client appeal the decision, but the client
decided to settle the case.10 The client then sued the attorney
for malpractice.11 The court of appeals affirmed the trial
court's grant of summary judgment, holding that "on the facts of
this case, . . . the settlement of the underlying personal injury
case, while the appeal was pending, constituted an abandonment of
any claim that [the client's] loss resulted from legal
malpractice rather than judicial error."12

15 Subsequently, in Segall v. Segall,13 the Florida Court
of Appeals rearticulated its apparent commitment to the
abandonment doctrine, citing Sikes and stating that "[w]here a
party's loss results from judicial error occasioned by the attorney's curable, nonprejudicial mistake in the conduct of the
litigation, and the error would most likely have been corrected
on appeal, the cause of action for legal malpractice is abandoned
if a final appellate decision is not obtained."14

16 Other state appellate courts have also adopted the
abandonment doctrine in some form. For example, in the Ohio case
of E.B.P., Inc. v. Cozza & Steuer,15 a client decided to settle a
case in lieu of pursuing an appeal and then sued its law firm for
malpractice. The court ruled that the client had abandoned its
claim, noting that "[a] settlement entered into as a result of an
attorney's exercise of reasonable judgment in handling a case
bars [a] malpractice claim against the attorney."16 Similarly, a
New York Supreme Court has indicated that where "plaintiffs, by
their own conduct in voluntarily settling prior to the appeal,
precluded defendant from pursuing the very means by which he
could have vindicated his representation . . . [,] [t]hey should
not . . . be permitted to seek damages from counsel in order to
recoup a portion of the settlement."17

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