2023 UT App 29

THE UTAH COURT OF APPEALS

KYLIE NIELSEN,

Appellant,

v.

L. MILES LEBARON AND LEBARON AND JENSEN PC,

Appellees.

Opinion

No. 20210357-CA

Filed March 23, 2023

Second District Court, Farmington Department

The Honorable Rita Cornish

No. 200700783

Bruce M. Pritchett Jr., Attorney for Appellant

Gary T. Wight and Blake A. Hallock, Attorneys

for Appellees

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this

Opinion, in which JUDGE RYAN D. TENNEY and SENIOR JUDGE 

KATE APPLEBY concurred.1

CHRISTIANSEN FORSTER, Judge:

¶1 Kylie Nielsen appeals the district court’s dismissal of her 

complaint asserting legal malpractice against her attorney, L. 

Miles LeBaron, and his law firm, LeBaron & Jensen, PC 

(collectively, LeBaron). Based on a safe harbor provision in the 

Utah Uniform Probate Code, see Utah Code § 75-5-423, the district 

court determined that Kylie could not establish that LeBaron 

owed her a duty to safeguard funds she received from a 

settlement and dismissed the case. Because Kylie pleaded certain 

1. Senior Judge Kate Appleby sat by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
Nielsen v. Lebaron

20210357-CA 2 2023 UT App 29

facts that may entitle her to relief, we reverse the district court’s 

dismissal and remand for further proceedings.

BACKGROUND

¶2 In May 2014, Kylie, a minor child, tripped during a school 

safety demonstration, severely injuring her ankle.

2 Her parents, 

Andrew and Camille Nielsen (Mr. and Ms. Nielsen, respectively), 

retained LeBaron to bring a personal injury action against the 

school district on Kylie’s behalf. The parties eventually agreed to 

settle the case for $100,000.

¶3 As a result of the agreement, the district court issued an 

order approving the settlement (the Order). The Order provides,

in part,

The balance of $61,246,85 [after deducting costs, 

fees, and medical expenses] shall be placed into a 

restricted Minor Child Trust Account, which is 

insured by either the NCUA or FDIC with 

ownership of the account to revert to [Kylie]

without restriction on her 18th birthday. Prior to 

that time, NO MONEY MAY BE WITHDRAWN 

FROM THE ACCOUNT WITHOUT THIS COURT’S 

APPROVAL AND ORDER and the account must be 

marked as such.

[Mr.] Nielsen and [Ms.] Nielsen are hereby 

appointed as co-conservators of the Estate of the 

2. The demonstration was about the effects of alcohol 

consumption. Following her teacher’s instructions, Kylie moved

around the classroom while wearing vision-impairing goggles. 

Kylie tripped over a desk, injuring her ankle. Kylie’s injuries 

resulted in multiple fractures resulting in two ankle surgeries, 

continued pain and suffering, and a diminished quality of life.
Nielsen v. Lebaron

20210357-CA 3 2023 UT App 29

minor child for the purpose of executing the 

Releases and administering the funds recovered in 

this matter.

¶4 Several months later, LeBaron sent a check for $61,246.85 

made out to “Andrew or Camille Nielsen” in their capacity as coconservators. Sometime after LeBaron dispersed these settlement

funds, Mr. Nielsen absconded with them.

3

¶5 In September 2020, Kylie filed suit against LeBaron,

asserting a claim of legal malpractice.4 Kylie alleged that LeBaron, 

as Kylie’s attorney, breached its fiduciary duty to safeguard her 

funds by failing to “deposit[] [the funds] into a Minor Child Trust 

Account” in compliance with the Order. Kylie asserted that this 

conduct fell “outside the ordinary standard of professional 

competence.”5

¶6 In response to Kylie’s complaint, LeBaron filed a motion 

under rule 12(b)(6) of the Utah Rules of Civil Procedure to dismiss 

for failure to state a claim upon which relief can be granted,

3. Mr. Nielsen has since been charged with Unlawful Dealing of 

Property by Fiduciary. See generally Utah Code § 76-6-513(3).

4. Kylie’s legal malpractice claim rests on two theories: fiduciary 

duty and ordinary negligence. Because “the elements required to 

prove both theories . . . are substantially the same,” Christensen 

& Jensen, PC v. Barrett & Daines, 2008 UT 64, ¶ 23, 194 P.3d 931, we 

refer—for simplicity—only to Kylie’s overarching legal 

malpractice claim.

5. Kylie also asserted LeBaron breached its fiduciary duty to her

“by providing a check which either [Mr.] Nielsen or [Ms.] Nielsen 

could individually cash[] rather than requiring both [Mr.] Nielsen 

and [Ms.] Nielsen . . . [to cash the check together].” But Kylie does 

not raise this issue on appeal, so we do not address it.
Nielsen v. Lebaron

20210357-CA 4 2023 UT App 29

contending that Kylie could not establish either the duty element 

or the causation element of a legal malpractice claim. Specifically, 

LeBaron asserted “the Utah Uniform Probate Code insulates 

[LeBaron] from liability by eliminating any duty to ensure a 

conservator properly expends funds in his or her care.” Citing 

section 75-5-423 of the Utah Code—which states, “A person is not 

bound to see to the proper application of estate assets paid or 

delivered to a conservator”—LeBaron alleged “the Utah Code 

plainly puts the responsibility of proper estate administration on 

the minor’s conservators, not attorneys.”6 See Utah Code § 75-5-

423.

¶7 LeBaron also alleged that “even assuming there was a duty 

beyond merely issuing the check to [Kylie’s] conservators,” 

Kylie’s claim should be dismissed because “it is clear that 

[LeBaron] did not cause [Kylie’s] injuries.” Specifically, LeBaron 

alleged that “the unforeseeable, intervening criminal conduct of 

Mr. Nielsen completely severed the causal chain between 

[LeBaron’s] delivery of the Settlement Proceeds and [Kylie’s]

injury.”

¶8 Kylie opposed LeBaron’s 12(b)(6) motion, asserting that 

her initial complaint pleaded “sufficient facts to establish the 

6. LeBaron also cited, as a source of immunity, section 75-5-102 of 

the Utah Uniform Probate Code. See Utah Code § 75-5-102(6) 

(“Any person who pays or delivers in accordance with provisions 

of this section is not responsible for the proper application 

thereof.”). But as the district court correctly determined, section 

75-5-102 is inapplicable for two sound reasons: first because the 

payment in question ($61,246.85) well exceeds the $15,000

statutory limit, see id. § 75-5-102(1), and second because section 75-

5-102, by its own terms, does not apply if the person delivering 

funds “has actual knowledge that a conservator has been 

appointed,” id. § 75-5-102(2)—knowledge of which LeBaron has 

at most conceded and at least cannot deny.
Nielsen v. Lebaron

20210357-CA 5 2023 UT App 29

elements of legal malpractice.” On the issue of duty, Kylie 

asserted LeBaron was bound by “the broad duties owed by an 

attorney to his minor client,” as well as by those duties the Order 

imposed, and that the Utah Uniform Probate Code did not 

absolve LeBaron of these duties.

¶9 On the issue of causation, Kylie alleged, “[Mr.] Nielsen’s 

criminal conduct does not sever the causal connection between 

[LeBaron’s] actions and [Kylie’s] damages,” because Mr. Nielsen’s

conduct was “foreseeable.” Specifically, Kylie asserted, “If the 

court did not reasonably foresee the possibility of one or both of 

[Kylie’s] parents—as her conservators—absconding with the 

settlement proceeds, the court would not have included [the 

withdrawal restriction] requiring a court order to remove funds.”

¶10 The district court granted LeBaron’s motion to dismiss. 

Relying on section 75-5-423 of the Utah Uniform Probate Code, 

the court concluded LeBaron “did not owe [Kylie] a duty to 

ensure the conservators properly applied the settlement funds,”

reasoning that “once estate assets are paid or delivered to a 

conservator by a third party, that third party has no continuing 

duty to ensure the estate assets are properly applied.” From there, 

the court concluded Kylie could not establish the element of duty 

generally and dismissed the case with prejudice. It did not reach 

the causation issue.

ISSUE AND STANDARD OF REVIEW

¶11 On appeal, Kylie contends that the district court erred in 

dismissing her legal malpractice claim. “We review the grant of a 

motion to dismiss for correctness, granting no deference to the 

decision of the district court.” Hudgens v. Prosper, Inc., 2010 UT 68, 

¶ 14, 243 P.3d 1275. “A motion to dismiss should be granted only 

if, assuming the truth of the allegations in the complaint and 

drawing all reasonable inferences therefrom in the light most 

favorable to the plaintiff, it is clear that the plaintiff is not entitled 
Nielsen v. Lebaron

20210357-CA 6 2023 UT App 29

to relief.” Id. (quotation simplified). “We will affirm the dismissal 

of a complaint only where it clearly appears that the plaintiff

would not be entitled to relief under the facts alleged or under any 

state of facts they could prove to support their claim.” Id.

(quotation simplified).

ANALYSIS

¶12 To succeed in a legal malpractice action, a plaintiff must 

prove five elements: first, an attorney-client relationship existed; 

second, the attorney owed a duty to the client; third, the attorney 

breached this duty; fourth, this breach caused injury to the client; 

and fifth, actual damages exist. Christensen & Jensen, PC v. Barrett 

& Daines, 2008 UT 64, ¶¶ 22–23, 194 P.3d 931. An attorney-client 

relationship exists between Kylie and LeBaron; this much is 

undisputed. The court did not reach the issues of breach, 

causation, or damages because it determined that LeBaron owed 

Kylie no duty. Kylie argues on appeal that the court erred in its 

duty determination. LeBaron defends the court’s ruling and 

argues, alternatively, that if the court erred in its duty analysis, 

then we should affirm on the alternative ground that Kylie failed 

to state a claim with respect to causation.

I. Duty

¶13 Kylie challenges the district court’s conclusion that

LeBaron did not owe her a duty in disbursing the settlement

proceeds. Kylie identifies several potential sources of LeBaron’s 

duty—the common law, the Order, and rule 1.15 of the Rules of 

Professional Conduct.

7 Because we agree that the common law 

7. LeBaron alleges Kylie has not preserved her argument that rule 

1.15 supports her assertion that an attorney has a duty to 

safeguard client funds. Although our analysis is independent of 

rule 1.15, we note at least two reasons why there is no 

(continued...)
Nielsen v. Lebaron

20210357-CA 7 2023 UT App 29

imposes a duty of reasonable diligence with respect to the 

management of client funds, we need not decide whether the 

Order or the Rules of Professional Conduct likewise imposed a 

duty on LeBaron.

8

preservation issue here. First, although it is true that Kylie did not 

cite rule 1.15 in her complaint or motion opposing dismissal, she

twice referenced rule 1.15 before the district court during the 

motion hearing, and the court considered and orally ruled on it. 

See Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 

P.3d 968 (“[O]nce trial counsel has raised an issue before the trial 

court, and the trial court has considered the issue, the issue is 

preserved for appeal.”). Second, even if Kylie had not cited rule 

1.15 during the motion hearing, we would still consider her rule 

1.15 argument preserved. “[P]reservation occurs on an issue-byissue or claim-by-claim basis,” State v. Flora, 2020 UT 2, ¶ 17, 459 

P.3d 975, meaning that new arguments—such as “citing new 

authority or cases”—”when brought under a properly preserved 

issue or theory, do not require an exception to preservation,” State 

v. Johnson, 2017 UT 76, ¶ 14 n.2, 416 P.3d 443. And Kylie preserved 

the general issue of whether her attorney had a duty to safeguard 

her funds, as this was precisely the issue on which the district 

court dismissed the case. Thus, Kylie did not need to explicitly

raise rule 1.15 to address it on appeal. The district court noted as 

much during the motion hearing. After LeBaron objected to a lack 

of briefing on rule 1.15, the court explained that “the content of 

[the rule 1.15] argument has always been in [Kylie’s] brief.” 

(Emphasis added.)

8. LeBaron asserts the common law source of an attorney’s 

fiduciary duty is an unpreserved issue. Although Kylie did not 

assert below the common law as a source of duty, she preserved 

the general duty issue, so there is no preservation issue here. See 

supra note 7.
Nielsen v. Lebaron

20210357-CA 8 2023 UT App 29

¶14 Whether a duty exists is “a matter of law” determined “on

a categorical basis for a given class of tort claims.” Mower v. Baird, 

2018 UT 29, ¶ 16, 422 P.3d 837 (quotation simplified). Because 

duty “should be articulated in relatively clear . . . bright-line rules 

of law applicable to a general class of cases,” B.R. ex rel. Jeffs v. 

West, 2012 UT 11, ¶ 23, 275 P.3d 228 (quotation simplified), “casespecific analyses are unwarranted at the duty stage of the 

negligence inquiry,” Davis v. Wal-Mart Stores Inc., 2022 UT App 

87, ¶¶ 18–19, 514 P.3d 1209. Duty “relates to the general 

relationship between the alleged tortfeasor and the victim and the 

general foreseeability of harm” rather than “the specifics of the 

alleged tortious conduct such as the specific mechanism of the 

harm.” Id. ¶ 18 (quotation simplified). When “the existence of the 

duty in question has already been established,” the duty inquiry 

ends; there is no need for the court to reach a case-specific, factdependent conclusion regarding the existence of a duty. Id. ¶ 15.

It is only at “the next steps of the negligence analysis—breach and 

proximate cause”—that “case-specific” factors may be analyzed, 

and at that stage, such matters are typically “questions for the fact 

finder.” Id. ¶ 19 (quotation simplified).

¶15 For example, in Davis v. Wal-Mart Stores Inc., 2022 UT App 

87, 514 P.3d 1209, the district court granted defendant Wal-Mart’s 

motion for summary judgment on the ground that it “owed no 

duty” to the plaintiff, a customer injured while shopping at a WalMart. Id. ¶ 1. To reach this conclusion, the court focused on facts 

such as “whether it would be foreseeable that Davis would move 

within inches of Wal-Mart’s employee, stoop below the 

employee’s field of vision, and do so without alerting the 

employee to her presence or waiting for the employee to finish

returning merchandise to the top shelf.” Id. ¶ 17 (quotation 

simplified). This court concluded that such a “case-specific” 

analysis was “unwarranted at the duty stage of the negligence 

inquiry.” Id. ¶ 18. It explained that “[b]ecause [the plaintiff] was 

Wal-Mart’s invitee, it’s settled that Wal-Mart owed [her] a duty of 

care” as a matter of law because “a business . . . owe[s] a duty of 
Nielsen v. Lebaron

20210357-CA 9 2023 UT App 29

reasonable care to its invitees.” Id. ¶¶ 12, 15. The facts on which 

the court relied to conduct its duty analysis pertained to 

“questions of breach, not duty,” and while Wal-Mart theoretically 

could have argued that the “accident was so unforeseeable that 

no reasonable mind could conclude that Wal-Mart had breached 

the duty of reasonable care . . . , the district court’s analysis turned 

on duty, not breach,” and its conclusion that Wal-Mart owed no 

duty was therefore incorrect. See id. ¶ 28.

¶16 The district court in this case made the same error that the 

district court made in Davis—namely, considering specific facts

that were more appropriate to a breach analysis when it 

erroneously concluded that LeBaron owed Kylie no duty. Rather 

than consider an attorney’s categorical duties to a client, the court 

assessed whether LeBaron had a narrower duty “to ensure the 

conservators properly applied the settlement funds.”9It 

concluded that LeBaron owed no such duty by relying on section 

75-5-423 of Utah’s Uniform Probate Code, which limits the 

liability of certain third parties for the actions of a conservator.10

9. Not only was this conclusion based on the wrong legal 

standard, but it appears to have overlooked Kylie’s actual 

argument. Kylie did not assert that LeBaron had a duty to 

somehow prevent her parents from using her funds 

inappropriately once it transferred those funds; rather, she asserts 

that LeBaron’s duty precluded it from transferring the funds to 

her parents in the first place.

10. Section 75-5-423 provides,

A person who in good faith either assists a 

conservator or deals with him for value in any 

transaction, other than those requiring a court order 

as provided in Section 75-5-408, is protected as if the 

conservator properly exercised the power. The fact 

(continued...)
Nielsen v. Lebaron

20210357-CA 10 2023 UT App 29

¶17 But when it comes to the attorney-client relationship, an 

attorney owes a general “duty to act with reasonable diligence”

toward their client, Brown v. Glover, 2000 UT 89, ¶ 37, 16 P.3d 540, 

employing “such skill, prudence, and diligence as lawyers of 

ordinary skill and capacity commonly possess and exercise in the 

performance of the tasks which they undertake,” Watkiss 

& Saperstein v. Williams, 931 P.2d 840, 846 (Utah 1996) (quotation 

simplified); see also Harline v. Barker, 854 P.2d 595, 599 n.3 (Utah 

Ct. App. 1993) (“The duty of [an attorney] [is] to represent [a 

client] with ‘competence and diligence.’”). Appropriately 

safeguarding client property falls within an attorney’s general 

duty of reasonable diligence. See In re Discipline of Bates, 2017 UT 

11, ¶ 47, 391 P.3d 1039 (“[T]he duty to protect client property is 

significant. . . . Clients trust their attorney to safeguard the 

property they leave in their attorney’s possession.”). Thus, if Kylie 

can present facts demonstrating that a lawyer of “ordinary skill 

and capacity” would not have transferred the funds directly to the 

Nielsens, she could successfully prove a claim for legal 

malpractice or negligence.

¶18 Although section 75-5-423 might support the conclusion

that LeBaron did not breach its duty to Kylie, it could not entirely 

negate LeBaron’s broad common law duty of reasonable 

diligence. Indeed, LeBaron’s duty exists as a matter of law, and 

any facts that could negate this bright-line duty must be 

considered at the breach stage of the analysis. See Jeffs, 2012 UT 11, 

that a person knowingly deals with a conservator 

does not alone require the person to inquire into the 

existence of a power or the propriety of its exercise, 

except that restrictions on powers of conservators 

which are endorsed on letters as provided in Section 

75-5-426 are effective as to third persons. A person 

is not bound to see to the proper application of 

estate assets paid or delivered to a conservator.

Utah Code § 75-5-423.
Nielsen v. Lebaron

20210357-CA 11 2023 UT App 29

¶ 24. Even assuming the district court correctly found LeBaron 

was not specifically required, either by court order or otherwise,11

to deposit Kylie’s settlement funds directly into a trust account—

a case-specific determination to be made by the finder of fact at 

the breach stage of the analysis—it does not follow that LeBaron 

owed no legal duty to Kylie. Whether LeBaron’s delivery of the 

11. We note also that while Kylie is correct that attorneys have a 

professional duty to obey “all lawful orders of the court,” see, e.g., 

Gilbert v. Utah State Bar, 2016 UT 32, ¶ 35, 379 P.3d 1247 (“[A]n

attorney has a professional obligation to comply with a court

order . . . .”), her assertion that the Order creates a fiduciary duty 

in the first instance is not obvious. As a source of duty, the Order 

is ambiguous. Although it directs that the balance of Kylie’s 

settlement funds “shall be placed into a restricted Minor Child 

Trust Account,” it does not indicate who would be responsible for 

completing that transaction. Kylie concedes as much, and the 

district court found the Order “placed no separate duty on 

[LeBaron] to deposit the funds in a minor child trust account.” 

Kylie contends the district court’s interpretation was improper, 

asserting (in tension with her earlier argument) that, because “the 

funds were already in LeBaron’s trust account, . . . [the Order] was 

sufficiently clear that LeBaron should have deposited the funds in 

a protected account.” Kylie further asserts that “LeBaron 

conceded by its actions that it could have protected its client 

funds,” insofar as LeBaron held Kylie’s funds “in the firm’s trust 

account” for four months before releasing them to the 

conservators. But we find both arguments unpersuasive. We fail 

to see how the location of the funds resolves the Order’s 

ambiguity. Moreover, that LeBaron could have protected client 

funds does not illuminate whether LeBaron had a duty to do so. 

And more to the point, LeBaron’s concession of a duty—or its 

denial, for that matter—has no bearing on whether a categorical 

duty exists. Our common law is clear that it does. We thus decline 

to resolve the Order’s ambiguity or to analyze the district court’s 

finding, because the common law provides a valid source of duty.
Nielsen v. Lebaron

20210357-CA 12 2023 UT App 29

settlement funds directly to the Nielsens was a breach of its 

general duty of reasonable diligence is a determination that 

requires further factual development.12

II. Causation

¶19 Alternatively, LeBaron asks this court to “affirm the district 

court’s order of dismissal because [Kylie] cannot establish . . . the 

. . . causation element[] of her malpractice claims.” LeBaron asserts 

that Kylie “cannot show that [LeBaron’s] actions were the 

proximate cause of her damages” because Mr. Nielsen was an 

“unforeseeable, intervening cause” that “broke the chain of 

causation.” Although the district court did not “reach the 

question” of causation, LeBaron asks this court to affirm the 

district court’s decision to dismiss on this alternative ground. See

generally Buehner Block Co. v. UWC Assocs., 752 P.2d 892, 895 (Utah 

1988) (“[W]e may affirm trial court decisions on any proper 

ground(s), despite the trial court’s having assigned another 

reason for its ruling.”).

¶20 Our decision to affirm the district court on an alternative

ground, even one that “presents a question purely of law,” is

discretionary. Croft v. Morgan County, 2021 UT 46, ¶ 43, 496 P.3d 

83. “In some circumstances, we may benefit from the district

court’s analysis of the alternate grounds in the first instance.” Id.

12. During oral argument before this court, counsel for LeBaron 

argued that it is customary for an attorney to deliver settlement 

funds directly to conservators rather than to deposit them into

specific accounts. This seems to us to be a factual question 

regarding breach that is not properly decided at the motion to 

dismiss stage. Again, at this stage, the court must “accept the 

factual allegations in the complaint as true and consider them and 

all reasonable inferences to be drawn from them in a light most 

favorable to the plaintiff.” St. Benedict’s Dev. Co. v. St. Benedict’s 

Hosp., 811 P.2d 194, 196 (Utah 1991).
Nielsen v. Lebaron

20210357-CA 13 2023 UT App 29

Such is the case here, where there is a “vacuum of factual 

development,” see id. ¶ 48, on the foreseeability question.

¶21 This vacuum is especially concerning in the context of 

causation, which is a “highly fact-sensitive element of any cause 

of action” and one that may be resolved as a matter of law only 

“when the facts are so clear that reasonable persons could not 

disagree.” Breton v. Clyde Snow & Sessions, 2013 UT App 65, ¶ 10, 

299 P.3d 13 (quotation simplified). In short, rarely can proximate 

cause be resolved without a finder of fact making that 

determination, see Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 

486 (Utah Ct. App. 1991), aff’d, 862 P.2d 1342 (Utah 1993), and we 

see no reason why this case should be the outlier.

¶22 Indeed, based on the record before us, we do not believe

causation could be resolved without a fact finder. LeBaron 

contends that the court’s entrusting Mr. Nielsen as conservator in 

the first place suggests it was unforeseeable that Mr. Nielsen 

would abscond with the funds, while Kylie contends that the 

Order would not have included a withdrawal restriction had the 

court not foreseen a conservator absconding with the funds. Both 

positions seem reasonable to us. Accordingly, it does not seem to 

us that the facts are “so clear” that reasonable minds could not 

disagree, see Breton, 2013 UT App 65, ¶ 10 (quotation simplified), 

and so we decline to affirm the district court’s dismissal on this 

alternative theory.

CONCLUSION

¶23 Because an attorney-client relationship existed between 

Kylie and LeBaron, LeBaron owed Kylie a duty of reasonable 

diligence. Thus, the district court erred in dismissing Kylie’s 

complaint on the ground that LeBaron owed Kylie no duty. We 

therefore reverse the district court’s dismissal and remand for 

further proceedings.