This opinion is subject to revision before final

publication in the Pacific Reporter

2018 UT 36

IN THE

SUPREME COURT OF THE STATE OF UTAH

GREGORY & SWAPP, PLLC,

and ERIK HIGHBERG,

Appellants and Cross-Appellees,

v.

JODI KRANENDONK,

Appellee and Cross-Appellant.

No. 20160377

Filed July 26, 2018

On Direct Appeal

Third District, Salt Lake

The Honorable Royal I. Hansen

No. 100923050

Attorneys:

Gregory J. Sanders, Clemens A. Landau, Patrick C. Burt, 

Michael D. Zimmerman, Troy L. Booher, Salt Lake City, 

for appellants and cross-appellees

Shaun L. Peck, John D. Luthy, Brandon J. Baxter, 

Matthew David Lorz, Logan, for appellee and cross-appellant

CHIEF JUSTICE DURRANT authored the opinion of the Court, 

in which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE PEARCE,

JUSTICE PETERSEN, and JUDGE MORTENSEN joined.

Having recused himself, JUSTICE HIMONAS did not participate 

herein; COURT OF APPEALS JUDGE DAVID N. MORTENSEN sat.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 Erik Highberg, a personal injury attorney for Gregory & 

Swapp, PLLC, failed to bring a claim against two truck drivers who 

severely injured Mr. Highberg’s client, Jodi Kranendonk, before the 
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

2

statute of limitations ran on Ms. Kranendonk’s claim. Mr. Highberg 

then failed to disclose to Ms. Kranendonk for ten months the fact 

that he missed the statute of limitations. During that time, he sought 

other legal avenues to correct his mistake. Ms. Kranendonk 

ultimately sued Mr. Highberg and Gregory & Swapp (collectively, 

the Swapp Defendants) for legal malpractice, breach of contract, 

breach of fiduciary duty, and negligent hiring, training, and 

supervision.

¶2 At trial, Mr. Highberg testified that he withheld information 

from Ms. Kranendonk because he wanted to protect her from stress 

and worry. In response to this testimony, she sought to admit two 

statements in which he had written that she was becoming “a pain 

[in] the ass” and was “a moron.” The district court refused, under 

rule 403 of the Utah Rules of Evidence, to admit these statements and 

the trial went forward.

¶3 The four claims ultimately went to a jury, which found in 

favor of Ms. Kranendonk on each. The jury first awarded her 

$750,000, the amount the jurors believed she would have received if 

Mr. Highberg had timely brought her personal injury claim against 

the truck drivers. The jury also awarded her $2.75 million for 

non-economic damages, i.e., emotional distress she sustained as the 

result of Mr. Highberg’s malpractice in this case. This second award 

did not relate in any way to the emotional distress she sustained 

from the original personal injury. The jury did not award punitive 

damages.

¶4 After the jury’s decision, Ms. Kranendonk moved for 

attorney fees and litigation expenses on the ground that the Swapp 

Defendants had breached their fiduciary duties. The district court 

awarded her $1,166,666.67 in attorney fees—the amount she owed 

under her contingency fee agreement—but did not award her 

litigation expenses.

¶5 After trial, the Swapp Defendants moved for judgment 

notwithstanding the verdict on the jury’s second award of $2.75 

million, arguing that non-economic damages unrelated to the 

original personal injury claim should not be awarded in this 

instance. The district court denied their motion. 

¶6 The Swapp Defendants challenge this decision on appeal. 

Specifically, they argue that this case does not qualify as one of the 

“rare” cases where non-economic damages can be recovered for 

breach of contract, because emotional distress was not a foreseeable 

result of a breach in this case and was not explicitly contemplated by 

the parties when they formed their agreement. They also argue that 
Cite as: 2018 UT 36

Opinion of the Court 

3

the non-economic damage award cannot be supported under a 

breach of fiduciary claim, because there is insufficient evidence to 

establish an actionable breach of fiduciary duty. We agree with both 

arguments and so vacate the jury’s $2.75 million award for 

non-economic damages.

¶7 We also vacate the court’s attorney fees award because

Ms. Kranendonk’s breach of fiduciary duty claim failed and this was 

the only claim that could support this award. And, for the same 

reason, we hold that the district court correctly denied her litigation 

expenses.

¶8 Lastly, Ms. Kranendonk challenges the district court’s 

decision to exclude Mr. Highberg’s two written statements—

statements she argues are necessary to support her prayer for 

punitive damages. But because she fails on her breach of fiduciary 

claim, punitive damages cannot be awarded in this case. Any 

decision we could render on this issue therefore would be 

meaningless and so we hold that this issue is moot. 

Background

¶9 On June 19, 2006, Jodi Kranendonk suffered severe injuries 

when two semi-trucks collided with her car outside of Portland, 

Oregon. She retained Gregory & Swapp, PLLC dba Craig Swapp & 

Associates and Erik Highberg to bring a negligence action against 

the truckers. Mr. Highberg filed a complaint in Oregon, but failed to 

properly serve the truckers within sixty days, as required under 

Oregon law. A year later, in June 2008, he filed the complaint a 

second time and again failed to timely serve the truckers. But this 

time his failure was fatal—the statute of limitations had run on the 

claim. Ms. Kranendonk’s negligence claims against the truckers were 

subsequently dismissed with prejudice.

¶10 After realizing that Ms. Kranendonk’s claim was 

time-barred, and in an attempt to fix his error in missing the 

limitation deadline, Mr. Highberg moved in an Oregon state court 

for an extension of time to serve the truckers, which was denied in 

November 2008. He filed an appeal of his denial in February 2009, 

which failed. During this ten-month period, Mr. Highberg failed to 

disclose to Ms. Kranendonk, despite having multiple conversations 

with her about her case, that her claim was now time-barred. Finally, 

in May or June of 2009, he revealed to her that he had failed to bring 

a valid action within the applicable statute of limitations and that she 

could no longer bring a successful personal injury claim against the 

truckers.
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

4

¶11 Ms. Kranendonk was “devastated” at the news. As 

Mr. Highberg was aware, she was a “very anxious person” and the 

news was catastrophic to her. She retained a new law firm that filed 

legal malpractice claims against the Swapp Defendants on her 

behalf. Her complaint alleged claims of legal malpractice, breach of 

contract, breach of fiduciary duty, fraudulent non-disclosure, and 

negligent hiring, training, and supervision.1 Ms. Kranendonk also 

sought punitive damages. The case went to trial in 2015. 

¶12 At a pre-trial hearing, Ms. Kranendonk unsuccessfully 

attempted to bring in two statements Mr. Highberg had written 

describing his interaction with her. The first indicated that he felt she 

was becoming “a pain [in] the ass,” and the second showed that he 

believed she was “a moron.” The district court kept out these 

statements under rule 403 of the Utah Rules of Evidence. At trial, 

Mr. Highberg testified that he did not disclose to Ms. Kranendonk 

the fact that the statute of limitations had run on her claim, because 

he cared for her and did not want to cause her more stress. In 

response to this testimony, Ms. Kranendonk moved to introduce the 

two statements to show that Mr. Highberg’s actions were not 

motivated by his solicitude for her well-being, but rather that he 

harbored ill will toward her. The district court rejected this motion, 

stating that the two statements were “not directly on point” and 

“hardly suggest that he was acting against her interest intentionally” 

or “that he didn’t care about her.”

¶13 When the trial concluded, the district court provided the 

jury with instructions regarding each of the five claims brought by 

Ms. Kranendonk. Importantly, the court instructed the jury that the 

conduct required to establish her legal malpractice claim was not the 

same as the conduct required to establish her breach of fiduciary 

duty claim. The court defined legal malpractice as failing “to use the 

same degree of care, skill, judgment and diligence used by 

reasonably careful attorneys under similar circumstances.” But the 

court instructed the jury that it need not determine whether the 

Swapp Defendants committed legal malpractice because it “ha[d] 

found the [Swapp Defendants] negligently performed legal 

services.” Accordingly, the jury was only asked to determine 

_____________________________________________________________

1 Ms. Kranendonk also alleged a fraud claim but later withdrew

this claim at trial.
Cite as: 2018 UT 36

Opinion of the Court 

5

whether the Swapp Defendants’ legal malpractice “was a cause of 

harm to [Ms.] Kranendonk.”

¶14 The jury was asked, however, to determine whether the 

Swapp Defendants had breached their fiduciary duties in this case. 

The court then set forth the conduct that would constitute a breach 

of fiduciary duty. It explained that in order for Ms. Kranendonk to 

prevail on this claim she must show that the Swapp Defendants 

“conceal[ed] important facts or law from [her]; . . . deceiv[ed] 

[her]; . . . plac[ed] their own interests ahead of the interests of [her] 

by failing to inform [her] of a conflict of interest created by the 

[Swapp Defendants’] acts or omissions;” or “fail[ed] to advise [her] 

to seek competent counsel after a conflict of interest arose between 

the [Swapp Defendants] and [her].” The court also stated that 

Ms. Kranendonk must prove that “[t]he acts or omissions of the 

[Swapp Defendants] were a cause of [her] injury.”

¶15 The jury rendered a verdict in favor of Ms. Kranendonk on 

legal malpractice, breach of contract, breach of fiduciary duty, and 

negligent hiring, training, and supervision grounds, and awarded 

her $750,000 to compensate for the injuries she suffered in the 

underlying accident. These damages included $80,000 in economic 

damages and $670,000 in non-economic damages related to the 

accident. The jury also awarded her an additional $2.75 million for 

non-economic damages she sustained as a result of the Swapp 

Defendants’ malpractice. The jury did not award punitive damages. 

¶16 The Swapp Defendants thereafter filed a motion for 

judgment notwithstanding the verdict (JNOV) under rule 50(b) of 

the Utah Rules of Civil Procedure. They sought to negate 

Ms. Kranendonk’s entitlement to the $2.75 million jury award of 

non-economic damages under all four legal theories—legal 

malpractice, breach of contract, breach of fiduciary duty, and 

negligent hiring, training, and supervision. In Ms. Kranendonk’s 

response to the motion, she conceded that non-economic damages 

unrelated to the underlying case were not available under her legal 

malpractice and negligent hiring, training, and supervision claims, 

but she argued that they were available under her breach of contract 

and breach of fiduciary duty claims. The district court agreed and 

denied the Swapp Defendants’ motion, upholding the $2.75 million 

jury award under these two claims.

¶17 After the court upheld the jury’s verdict in post-trial 

proceedings, Ms. Kranendonk moved for attorney fees and the 

district court awarded her $1,166,666.67—the contingency fee 

amount she agreed to pay when she hired the new law firm to 
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

6

represent her in her legal malpractice suit. The district court also 

awarded her $17,977.82 in costs, but did not award the additional 

$177,911.64 she had sought in litigation expenses.

¶18 The Swapp Defendants timely appealed the district court’s 

decision to uphold the $2.75 million jury award for non-economic 

damages unrelated to the personal injury case and the court’s award 

of attorney fees. The Swapp Defendants do not challenge the 

$750,000 jury award for damages related to the personal injury case. 

Ms. Kranendonk cross-appeals the district court’s decision to 

exclude Mr. Highberg’s two statements demonstrating his ill will 

toward her and the court’s decision not to award litigation expenses. 

We have jurisdiction to hear this case pursuant to Utah Code section

78A-3-102(3)(j).

Standard of Review

¶19 The Swapp Defendants raise two issues on appeal: first, 

whether the district court erred in denying their JNOV motion to set 

aside the $2.75 million jury award of non-economic damages arising 

from their malpractice; and second, whether the court erred in 

awarding Ms. Kranendonk attorney fees in the amount of the full

contingency fee. “[A] district court may grant a JNOV motion only if 

there is no ‘basis in the evidence, including reasonable inferences 

which could be drawn therefrom, to support the jury’s 

determination.’”2 But “[w]e review rulings on JNOV motions for 

correctness.”3 Likewise, “[w]hether attorney fees are recoverable in 

an action is a question of law, which we review for correctness.”4

¶20 Ms. Kranendonk raises two additional issues for review: 

whether the district court erred in refusing to award litigation 

expenses and whether the court erred in excluding Mr. Highberg’s 

two statements under rule 403 of the Utah Rules of Evidence. 

Whether a court may award litigation expenses is a question of law 

and so is reviewed for correctness.5 But “we review [the amount of 

_____________________________________________________________

2 ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2013 UT 24, ¶ 18, 

309 P.3d 201 (citation omitted).

3 Id.

4 Fericks v. Lucy Ann Soffe Tr., 2004 UT 85, ¶ 22, 100 P.3d 1200 

(citation omitted).

5 Campbell v. State Farm Mut. Auto. Ins. Co., 2001 UT 89, ¶ 127, 65 

P.3d 1134, rev’d on other grounds, 538 U.S. 408 (2003).
Cite as: 2018 UT 36

Opinion of the Court 

7

an award of litigation expenses] under an abuse of discretion 

standard.”6 Also, “[w]e review a trial court’s decision to admit or 

exclude evidence under Rule 403 of the Utah Rules of Evidence 

under an abuse of discretion standard, and will not overturn a lower 

court’s determination of admissibility unless it is beyond the limits 

of reasonability.”7

Analysis

¶21 On appeal, the Swapp Defendants first argue that the 

district court erred in refusing to vacate the $2.75 million jury award 

for non-economic damages unrelated to the personal injury case. 

Specifically, they argue that Utah law precludes recovery of damages 

beyond the amount the plaintiff would have recovered in the 

underlying case—i.e., “the case within the case.” They assert that 

such damages are precluded whether the plaintiff brings a 

malpractice suit under the theory of legal malpractice, breach of 

contract, or breach of fiduciary duty.

¶22 We have observed on many occasions that “a malpractice 

action . . . necessarily presents a ‘case within a case.’”8 In other 

words, a case involving a malpractice action necessarily depends 

upon an attorney’s conduct in a separate, underlying case and 

whether, absent such conduct, “the underlying suit would have been 

successful.”9 While we typically have looked to the underlying case 

when addressing the evidence necessary to establish proximate 

cause in legal malpractice cases,10 we have never considered whether 

_____________________________________________________________

6 Id. ¶ 128.

7 Goebel v. Salt Lake City S. R.R. Co., 2004 UT 80, ¶ 35 n.1, 104 P.3d 

1185 (citation omitted).

8 Glencore, Ltd. v. Ince, 972 P.2d 376, 380 (Utah 1998) (citation 

omitted); see also Harline v. Barker, 912 P.2d 433, 439 (Utah 1996)

(holding that a legal malpractice case is based in part on a “suit 

within a suit” or “trial-within-a-trial” (citation omitted)).

9 Harline, 912 P.2d at 439.

10 See Christensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, 

¶ 26, 194 P.3d 931 (“[I]n order to meet the standard for causation for 

a breach of fiduciary duty in a legal malpractice action, ‘clients must 

show that if the attorney had adhered to the ordinary standards of 

professional conduct[,] the client would have benefitted.’” (citation 

omitted)); Glencore, 972 P.2d at 380 (stating that when determining 

(Continued)
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

8

damages are available beyond those damages awardable in the 

underlying case. This case therefore presents an issue of first 

impression.

¶23 The court of appeals has, however, recently addressed this 

issue. In a prior appeal in this same case, the court of appeals held 

that damages in a malpractice suit should generally be limited to 

those damages recoverable in the underlying case.11 Specifically, it 

asserted that “[t]he measure of damages is generally held to be the 

value of the plaintiff’s lost claim, that is, the actual amount the 

plaintiff would have recovered had she been successful in the 

underlying case.”12 The court relied on other jurisdictions for this 

assertion.13

¶24 As a general matter, the court of appeals is correct. In most 

legal malpractice cases, whether brought under negligence, breach of 

contract, or breach of fiduciary duty theories, “a plaintiff’s 

damages . . . are limited to the actual amount the plaintiff would 

have recovered had he been successful in the underlying case.”14 But 

 

proximate cause in malpractice, “[t]he objective is to establish what 

the result [of the underlying litigation] should have been” (second 

alteration in original) (emphasis omitted) (citation omitted)); Harline, 

912 P.2d at 439 (“To prove proximate cause in legal malpractice cases

. . . the plaintiff must show that absent the attorney’s negligence, the 

underlying suit would have been successful.”).

11 See Kranendonk v. Gregory & Swapp, PLLC, 2014 UT App 36, ¶ 28, 

320 P.3d 689.

12 Id.

13 Id. (citing Eastman v. Messner, 721 N.E.2d 1154, 1158 (Ill. 1999) 

(“[A] plaintiff’s damages in a malpractice suit are limited to the 

actual amount the plaintiff would have recovered had he been 

successful in the underlying case.”)); Schultheis v. Franke, 658 N.E.2d 

932, 939–40 (Ind. Ct. App. 1995) (“The law in this state, like the law 

in most jurisdictions, generally provides that the measure of 

damages in a legal malpractice case is the value of the plaintiff’s lost 

claim.”); Campagnola v. Mulholland, Minion & Roe, 555 N.E.2d 611, 613 

(N.Y. 1990) (stating that the measure of damages in a legal 

malpractice suit is “the value of the claim lost”); 3 Ronald E. Mallen 

& Jeffrey M. Smith, LEGAL MALPRACTICE § 21.1, at 3 (2013 ed.)).

14 Eastman, 721 N.E.2d at 1158.
Cite as: 2018 UT 36

Opinion of the Court 

9

there may be exceptions to this rule depending on which legal theory 

is asserted. 

¶25 We have long held that “[a]n action for legal malpractice 

may be framed conceptually as either a tort or a breach of 

contract.”15 So, when bringing a legal malpractice suit, 

“[c]lients . . . may sue for damages based on breach of contract, 

breach of fiduciary duty, or negligence.”16 Usually, the elements 

required to prove negligence and breach of fiduciary duty in the 

legal malpractice context are “substantially the same,”17 so a 

plaintiff’s choice to classify its malpractice claim under one of the 

two theories does not cause “any difference in result.”18 This is so 

because “[m]ost rules applicable to negligence actions also apply to 

actions for breach of fiduciary duty.”19 But an action for breach of 

contract is “very different” from these other two legal malpractice 

theories.20 The “[r]ules of contract, not rules of legal malpractice, 

govern an action” brought under a breach of contract theory.21 In 

that vein, damages that may be awarded under these theories may 

also differ.

_____________________________________________________________

15 Christensen & Jensen, 2008 UT 64, ¶ 21 (quoting Dunn v. McKay, 

Burton, McMurray & Thurman, 584 P.2d 894, 904 (Utah 1978) 

(Maughan, J., dissenting)).

16 Id. (citation omitted).

17 Id. ¶ 23; see also id. ¶¶ 22–23 (“In a legal malpractice action 

based on negligence, a plaintiff must 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.’ . . . [T]he elements required for a legal 

malpractice claim based on a breach of fiduciary duty [are]: ‘(1) an 

attorney-client relationship; (2) breach of the attorney’s fiduciary 

duty to the client; (3) causation, both actual and proximate; and 

(4) damages suffered by the client.’” (citations omitted)).

18 Id. ¶ 23 n.7 (citation omitted).

19 Id. (citation omitted). 

20 Id. ¶ 24.

21 Id. (alteration in original) (citation omitted).
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

10

¶26 Below, the district court held that non-economic damages 

may be awarded beyond damages based on the case within the case 

when the plaintiff establishes legal malpractice under a breach of 

contract or breach of fiduciary duty theory.22 The Swapp Defendants 

challenge the court’s conclusion on these two grounds. Accordingly, 

we address whether an award of non-economic damages unrelated 

to the underlying case is appropriate under these two legal theories.

I. Breach of Contract

¶27 The Swapp Defendants first argue that the $2.75 million jury 

award for non-economic damages cannot be supported under a 

breach of contract theory in this case. Because Ms. Kranendonk 

cannot point to specific language or obligations in her contract with 

Mr. Highberg that show that emotional damages were contemplated 

by them at the time they formed the contract, we hold that the 

district court erred in affirming the $2.75 million jury award under 

this theory.

¶28 Normally “there is no recovery of damages for mental 

anguish stemming from a breach of contract.”23 This is so because 

“an award of damages in a breach of contract case attempts to ‘place 

the aggrieved party in the same economic position the party would 

have been in if the contract was not breached.’”24 In the legal 

malpractice context, this means that typically the only emotional 

damages recoverable under a breach of contract theory are those 

_____________________________________________________________

22 The court did not, however, address whether a negligence 

theory of malpractice could support damages beyond 

case-within-a-case damages and the parties do not argue this theory 

on appeal. The district court reasoned that because “the jury verdict 

on Plaintiff’s claims for breach of fiduciary duty and breach of 

contract provides an adequate basis for the award of noneconomic 

damages,” the court “need not address the Defendants’ arguments 

regarding Plaintiff’s claims for professional negligence and negligent 

training.” 

23 Cabaness v. Thomas, 2010 UT 23, ¶ 72, 232 P.3d 486 (citation 

omitted).

24 Christensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, ¶ 26, 

194 P.3d 931 (citation omitted).
Cite as: 2018 UT 36

Opinion of the Court 

11

stemming from the injury in the underlying case. But we have noted 

that an exception to this rule may exist in “unusual circumstances.”25

¶29 In Cabaness v. Thomas, we held that “a non-breaching party 

may recover general and/or consequential damages related to 

emotional distress or mental anguish arising from a breach of 

contract when such damages were both a foreseeable result of the 

breach of contract and explicitly within the contemplation of the 

parties at the time the contract was entered into.”26 These 

requirements guarantee that “the applicability of such damages ‘will 

always hinge upon the nature and language of the contract and the 

reasonable expectations of the parties.’”27 Accordingly, we held that 

the exception is implicated only when the plaintiff can point to 

“specific language” and “obligations” in the contract that show that 

emotional damages were in contemplation of the parties at the time 

the parties formed the contract.28 But this seldom happens.

¶30 Emotional damages for a breach of contract are awardable 

only in “rare cases” because “such damages are rarely a foreseeable 

result of breach.”29 While “[s]ome type of mental anguish, anxiety, or 

distress is apt to result from the breach of any contract which causes 

pecuniary loss,” it is well established that these damages are not “the 

‘natural and probable’ result of the breach” and “are deemed to be 

too remote to have been in the contemplation of the parties at the 

time the contract was entered into to be considered as an element of 

compensatory damages.”30 Something in the contract, therefore, 

must show that the parties contemplated granting relief for more 

_____________________________________________________________

25 Cabaness, 2010 UT 23, ¶ 72.

26 Id. ¶ 75.

27 Id. (quoting Beck v. Farmers Ins. Exch., 701 P.2d 795, 802 (Utah 

1985)).

28 Id. ¶ 76. While we stated in Cabaness that we focus on the 

“reasonable expectations of the parties,” id. ¶ 75, our focus has 

always been on the contract language. So while we do consider the 

expectations of the parties when determining damages in the breach 

of contract context, we consider only those expectations that are 

apparent from the language of the contract.

29 Id. ¶¶ 74–75.

30 Id. ¶ 74 (alteration in original) (citations omitted).
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

12

than the typical mental anguish and discouragement that results 

from a breach of contract.

¶31 Cabaness illustrates this point. In Cabaness, we reversed a 

district court’s grant of summary judgment against an employee 

seeking emotional damages for a breach of contract by his employer. 

There, we reviewed the employment contract, which stated that the 

employer would “not tolerate verbal or physical conduct by any 

employee which harasses, disrupts, or interferes with another’s work 

performance or which creates an intimidating, offensive, or hostile 

work environment.”31 We noted the significance of this provision, 

stating that it appeared to be “specifically directed toward matters of 

mental concern and solicitude.”32 We explained that given “the 

unusual nature of the contractual obligations and the specific 

language of the contractual provisions,” it was “possibil[e] that 

emotional damages were within the contemplation of the parties at 

the time the contract was entered.”33 We therefore concluded that 

questions of fact remained regarding whether “emotional damages 

were within the contemplation of the parties at the time the contract 

was formed,” and accordingly remanded the case to the district 

court to make such a determination.34 Cabaness therefore stands for 

the proposition that non-economic damages are supported under a 

breach of contract theory only where the specific language and 

nature of the contract demonstrates that such damages were 

contemplated.35

_____________________________________________________________

31 Id. ¶ 76.

32 Id.

33 Id.

34 Id.

35 It could be argued that the result we reached on the facts of 

Cabaness does not square with the standard we articulated in that 

case, which is that there must be an explicit provision in the contract 

contemplating emotional distress damages. The provision at issue in 

Cabaness did not expressly state that a breach of the employment 

contract could produce emotional damages. See Cabaness, 2010 UT 23, 

¶ 76. It merely stated that the employer would not tolerate 

harassment or other conduct that would create a hostile work 

environment. See id. We held that this provision created a genuine 

issue of material fact as to whether the parties contemplated 

(Continued)
Cite as: 2018 UT 36

Opinion of the Court 

13

¶32 But here the district court misapplied Cabaness and the 

“rare” exception we articulated there. The court held that there was 

competent evidence supporting the finding that Ms. Kranendonk’s 

emotional distress damages were foreseeable and explicitly 

contemplated by the parties. But the court failed to review the 

contract at issue. Instead, it improperly relied on testimony and 

extrinsic evidence to determine that emotional distress damages 

were contemplated. Specifically, it relied on testimony that 

Mr. Highberg knew Ms. Kranendonk was a “very anxious person,” 

language from the Swapp Defendants’ website asserting that they 

will “eliminate[] the stress and uncertainty of dealing with [an] 

accident,” and Craig Swapp’s testimony, in which he acknowledged 

that “one of the Defendants’ jobs is to minimize [] stress, to take care 

of the problems, to take care of the difficulties of the case, to manage 

the case and get everything done so the client doesn’t have to stress 

about that.” This was error. As Cabaness mandates, the district court 

should have analyzed whether the nature and language of the 

contract plainly show that non-economic damages were explicitly 

contemplated by the parties at the time the contract was formed. 

Had it done so, the court would have concluded that nothing in the 

contract suggests non-economic damages were contemplated here.

¶33 First, nothing in the “nature” of the contract signals that 

emotional distress damages were a foreseeable result of a breach. 

The Restatement (Second) of Contracts states that “[r]ecovery for 

emotional disturbance will be excluded unless . . . the breach is of

such a kind that serious emotional disturbance was a particularly 

likely result.”36 Most courts that have found emotional distress 

damages are a foreseeable result of a breach in legal malpractice 

cases have done so because the character or purpose of the contract 

involved some “peculiarly personal subject matter[]”37—like 

 

emotional distress damages at the time they formed the contract. Id.

We did not hold that the provision illustrated that the parties 

expressly contemplated emotional distress damages. To the extent 

that Cabaness is inconsistent with our holding today, we disavow its 

holding to conform to this opinion.

36 RESTATEMENT (SECOND) OF CONTRACTS § 353 (1981) (emphasis 

added).

37 Miranda v. Said, 836 N.W.2d 8, 24 (Iowa 2013) (citation omitted).
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

14

wrongful conviction,38 custody of a child,39 or mental health 

determinations.40 As the Eleventh Circuit has explained:

[I]n the ordinary commercial contract, damages are not 

recoverable for disappointment, even amounting to 

alleged anguish, because of breach. Such damages are 

. . . too remote. But these are contracts entered into for 

the accomplishment of a commercial purpose. 

Pecuniary interests are paramount . . . . [I]t has long 

been settled that recovery therefor was not 

contemplated by the parties as the natural and 

probable result of the breach. Yet not all contracts are 

purely commercial in their nature. Some involve rights 

we cherish, dignities we respect, emotions recognized 

by all as both sacred and personal. In such cases the 

award of damages for mental distress and suffering 

[are] commonplace . . . .

41

_____________________________________________________________

38 See D. Dusty Rhoades & Laura W. Morgan, Recovery for 

Emotional Distress Damages in Attorney Malpractice Actions, 45 S.C. L.

REV. 837, 845 (1994) (“When an attorney’s negligence causes a client’s 

loss of liberty, courts have been willing to step away from the 

general rule barring damages for emotional distress.”).

39 See Person v. Behnke, 611 N.E.2d 1350, 1353 (Ill. App. Ct. 1993) 

(“We hold that a valid claim exists for noneconomic damages 

resulting from a plaintiff’s loss of custody and visitation of his 

children which allegedly resulted from an attorney’s negligence.”); 

McEvoy v. Helikson, 562 P.2d 540, 544 (Or. 1977) (holding plaintiff 

could obtain emotional distress damages when attorney negligence 

surrounding divorce and child custody proceedings resulted in 

plaintiff’s ex-wife fleeing to Switzerland with their child), superseded

on other grounds by Or. R. Civ. P. 18, as recognized in Moore v. Willis, 

767 P.2d 62, 64 (Or. 1988).

40 Wagenmann v. Adams, 829 F.2d 196, 221–22 (1st Cir. 1987) 

(holding emotional distress damages are available when attorney 

negligence results in the client being “forcibly deprived of his liberty 

and dispatched to a mental hospital”).

41 Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1200 (11th 

Cir. 2007) (second, third, fourth, and sixth alterations in original) 

(quoting Stewart v. Rudner, 84 N.W.2d 816, 823 (Mich. 1957)).
Cite as: 2018 UT 36

Opinion of the Court 

15

We agree with these courts. We therefore look to the nature of the 

contractual obligations in assessing whether emotional distress 

damages may be awardable under breach of contract claims. 

Specifically, we look to whether the subject matter of the contract 

involves peculiarly personal interests, as opposed to rights 

stemming from monetary interests. When the primary nature of the 

contractual obligations involves peculiarly personal interests, as 

opposed to pecuniary interests, emotional distress damages 

stemming from a breach of that contract may be warranted. But that 

is not the case here.

¶34 Here, the nature of the contract formed by the Swapp 

Defendants did not involve peculiarly personal interests. 

Ms. Kranendonk hired Mr. Highberg to bring a personal injury suit 

to recoup pecuniary damages for her injuries. So the purpose of 

Mr. Highberg’s contractual obligation was solely to obtain monetary 

compensation—not to protect personal interests. Although an 

argument can be made that Ms. Kranendonk also contracted, as she 

suggests, for peace of mind, the peace of mind a plaintiff seeks in a 

personal injury case is generally still tied to monetary interests—e.g., 

having sufficient funds to pay medical expenses and other bills while 

recovering from a physical injury. Because pecuniary interests were 

paramount in this case, we cannot say that the mental anguish 

Ms. Kranendonk suffered as a result of the breach was explicitly 

contemplated by the parties.

¶35 Additionally, the specific language of the contract does not 

show that emotional distress damages were explicitly contemplated 

by the parties. The contract between the Swapp Defendants and 

Ms. Kranendonk is void of any language related to mental or 

emotional harm. Instead, the contract here simply stated that the 

Swapp Defendants “will utilize its best efforts to obtain a settlement 

or judgment for [Ms. Kranendonk] through negotiation or other legal 

action.” Ms. Kranendonk argues that this “best effort” provision 

includes making sure the client has peace of mind. But this provision 

specifically provides that the Swapp Defendants will use their best 

efforts to secure a monetary “settlement or judgment.” So even the 

“best efforts” provision is not ambiguous in its focus on a pecuniary, 

and not a personal, interest. And, in fact, every section of the 

contract deals solely with pecuniary interests.42 The language of the 

_____________________________________________________________

42 The first section of the contract states that the “Purpose of 

Employment” is for the Swapp Defendants to “represent you with 

(Continued)
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

16

contract therefore does not show that emotional damages were 

explicitly contemplated.43

 

respect to your claim for damages” and to “utilize its best efforts to 

obtain a settlement or judgment.” The second section deals with the 

attorney fee structure, setting forth the percentage the Swapp 

Defendants will be paid of the monetary settlement or judgment 

they obtain. The third section of the contract outlines who will pay 

for costs in the litigation. And the last section states that the Swapp 

Defendants “make no warranties or representations regarding the 

amount of recovery, if any, or the successful outcome of your claim.”

These provisions clearly show the contract was made primarily for 

pecuniary purposes.

Ms. Kranendonk argues, however, that this contract resembles 

contracts beneficiaries make with insurance companies—contracts 

we have held can warrant “damages for mental anguish” because “it 

is axiomatic that insurance frequently is purchased not only to 

provide funds in case of loss, but to provide peace of mind for the 

insured or his beneficiaries.” Beck, 701 P.2d at 802. As stated above, 

an argument can be made that clients retain attorneys in personal 

injury cases not only to obtain monetary compensation, but also to 

provide peace of mind, and therefore mental anguish is fairly 

contemplated in the contract. But the Beck court went on to say that 

“[t]he foreseeability of any such damages will always hinge upon the 

nature and language of the contract and the reasonable expectations 

of the parties” and that “damages will not be available for the mere 

disappointment, frustration, or anxiety normally experienced in the 

process of filing an insurance claim and negotiating a settlement 

with the insurer.” Id. at 802 & n.6. As discussed above, the nature 

and language of the contract here do not support emotional distress 

damages in this case.

43 Ms. Kranendonk argues that the Swapp Defendants’ website 

ensures that it will reduce the stress a client has in his or her 

personal injury claim—an argument the district court also relied on 

in its determination to uphold the jury award of non-economic 

damages. But Ms. Kranendonk and the district court are mistaken. 

The website is not part of the four corners of the document we 

review. “When interpreting a contract, [we] first look[] to the 

contract’s four corners to determine the parties’ intentions, which are 

controlling.” Strohm v. ClearOne Commc’ns, Inc., 2013 UT 21, ¶ 34, 308 

P.3d 424 (citation omitted). And, when “the language within the four 

corners of the contract is unambiguous[,] . . . [we] determine[] the 

(Continued)
Cite as: 2018 UT 36

Opinion of the Court 

17

¶36 Because the nature and language of the contract in this case 

do not show that emotional distress damages were explicitly 

contemplated by the parties, the district court erred in upholding the 

$2.75 million jury award for non-economic damages under a breach 

of contract theory.

II. Breach of Fiduciary Duty

¶37 In addition to breach of contract, the district court denied 

the Swapp Defendants’ JNOV motion on the $2.75 million jury 

award under a separate legal theory—breach of fiduciary duty.44 The 

Swapp Defendants argue that this was also error. Specifically, they 

contend that Mr. Highberg’s breach did not rise to a level of willful 

or outrageous conduct—a standard they believe a plaintiff must 

meet in order to obtain an award of emotional distress damages 

under a breach of fiduciary duty theory. Additionally, they argue 

that even if emotional distress damages are recoverable under a 

breach of fiduciary duty theory in this case, the $2.75 million jury 

award should be vacated because it was not sufficiently supported 

by the evidence. We agree with their second argument. There is no 

evidentiary basis on which the jury could have awarded 

non-economic damages for Ms. Kranendonk’s breach of fiduciary 

duty claim. Accordingly, we do not reach the important question of 

when, if ever, a plaintiff may recover emotional distress damages for 

a breach of fiduciary duty in the attorney malpractice context. 

¶38 In order to win on a breach of fiduciary duty claim in the 

legal malpractice context, a plaintiff must show (1) the existence of 

“an attorney-client relationship; (2) breach of the attorney’s fiduciary 

duty to the client; (3) causation, both actual and proximate; and 

 

parties’ intentions from the plain meaning of the contractual 

language as a matter of law.” Fairbourn Commercial Inc. v. Am. Hous. 

Partners, Inc., 2004 UT 54, ¶ 10, 94 P.3d 292 (second alteration in 

original) (citation omitted). Here, the contract is unambiguous and

so we do not consider the website as evidence of the parties’ 

intentions in signing the agreement. 

44 The district court did not engage with this theory on the merits. 

It simply stated that it chose not to review, under the law of the case 

doctrine, its prior decision that the jury “could properly award 

Plaintiff noneconomic damages based on a finding of liability with 

regard to any of Plaintiff’s malpractice claims, ” including breach of 

fiduciary duty.
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

18

(4) damages suffered by the client.”45 While each of these elements is 

necessary to establish a claim, we have identified the causation 

element as a particularly “crucial and distinct element to any 

malpractice claim.”46 As such, we have held that “an abundance of 

evidence as to breach of duty cannot make up for a deficiency of 

evidence as to causation.”47

¶39 The Swapp Defendants moved for JNOV below in part on 

causation grounds, which the district court denied. They argue this 

was error. In order for the Swapp Defendants “[t]o successfully 

attack a district court’s refusal to grant a motion for JNOV based on 

insufficient evidence, [they] ‘must marshal all the evidence 

supporting the verdict and then demonstrate that, even viewing the 

evidence in the light most favorable to that verdict, the evidence is 

not sufficient to support it.’”48 “[W]e will not overturn a verdict on a 

challenge to the sufficiency of evidence ‘[s]o long as some evidence 

and reasonable inferences support the jury’s findings.’”49 While this 

is a “very difficult burden” to meet,50 we hold that the Swapp 

Defendants have met it.

¶40 The Swapp Defendants have demonstrated that no 

competent evidence exists to support the jury’s determination of 

causation or damages. After reviewing all the evidence supporting 

the jury award of non-economic damages, we conclude that it is clear 

Ms. Kranendonk failed to provide any evidence that Mr. Highberg’s 

breach of the fiduciary duty (i.e., his intentional concealment of the 

fact that he had lost her claim) caused the mental anguish she 

experienced. Rather, the evidence provided at trial shows only that 

she suffered emotional distress due to Mr. Highberg’s legal 

malpractice (i.e., his negligence in losing her claim)—conduct that 

_____________________________________________________________

45 Christensen & Jensen, P.C. v. Barrett & Daines, 2008 UT 64, ¶ 23, 

194 P.3d 931 (citation omitted).

46 USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 113, 372 P.3d 629.

47 Id.

48 Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 28, 254 P.3d 161 

(citation omitted).

49 Brewer v. Denver & Rio Grande W. R.R., 2001 UT 77, ¶ 36, 31 P.3d 

557 (second alteration in original) (citation omitted).

50 Grossen v. DeWitt, 1999 UT App 167, ¶ 7, 982 P.2d 581 (citation 

omitted).
Cite as: 2018 UT 36

Opinion of the Court 

19

both parties concede cannot support non-economic damages in this 

case.

51

¶41 For example, Mr. Kranendonk testified at trial that 

Ms. Kranendonk was “devastated,” “hysterical,” and “crying,” but 

this testimony was in response to her counsel’s question regarding 

her reaction “when she got the news that her case was dead.”

Mr. Kranendonk said nothing about Ms. Kranendonk’s reaction 

when she learned about Mr. Highberg’s intentional concealment and 

dishonesty—the actions necessary to support her breach of fiduciary 

duty claim. Similarly, Ms. Kranendonk testified herself that she “was 

devastated,” but did so only in response to counsel’s question 

regarding “[h]ow [she] fe[lt] when [she] heard that [her] case was 

dead?” And she again testified that she was devastated “[o]nce 

[Mr. Highberg] told us that the ball had been dropped.” She never 

testified about her reaction to learning that Mr. Highberg had 

intentionally concealed his legal malpractice from her for ten 

months, or whether his intentional actions caused her harm. 

¶42 We have held that “[i]f the client’s injury would have 

occurred regardless of the attorney’s action, then there is no 

causation.”52 Here, nothing at trial suggests that Ms. Kranendonk’s 

mental distress would not have occurred if Mr. Highberg had not 

concealed his malpractice from her. Instead, the evidence suggests

that Ms. Kranendonk’s mental distress would still have occurred 

because Mr. Highberg lost her personal injury claim.

¶43 Additionally, none of the testimony from the Swapp 

Defendants shows that Ms. Kranendonk’s emotional damage 

occurred as a result of Mr. Highberg’s concealment and dishonesty 

in this case. At trial, Mr. Highberg testified that “[i]t could be 

emotionally catastrophic” to his clients if he didn’t do his job well.

Mr. Swapp likewise acknowledged that an attorney’s malpractice 

“can create a lot of mental distress” for a client, and that determining 

how to get the case resolved after the malpractice “can be very 

stressful for a client.” But testimony that an attorney’s malpractice 

_____________________________________________________________

51 Ms. Kranendonk conceded in her rule 50(c) response below that 

non-economic damages were not available under her legal 

malpractice and negligent hiring, training, and supervision claims. 

She likewise has conceded in her briefing before us that these claims 

cannot support an award of non-economic damages.

52 USA Power, 2016 UT 20, ¶ 115.
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

20

could cause emotional damages is not enough to support a finding 

that Mr. Highberg’s concealment and dishonesty did cause emotional 

damages. “To prove damages, [a] plaintiff must prove . . . the fact of 

damages.”53 This means that the plaintiff must provide evidence that 

“do[es] more than merely give rise to speculation that damages in 

fact occurred; it must give rise to a reasonable probability that the 

plaintiff suffered damage as result of a breach.”54 The testimony of 

the Swapp Defendants leaves us wondering whether any mental 

anguish from Mr. Highberg’s concealment in fact occurred. And the 

testimony that Ms. Kranendonk was “devastated” when she learned 

that her “case was dead” does not help.

¶44 While Ms. Kranendonk provided sufficient evidence to 

show that Mr. Highberg had a fiduciary duty to her, and that he 

breached that duty, this evidence is insufficient to support an 

actionable claim for breach of fiduciary duty. “[A]n abundance of 

evidence as to breach of duty cannot make up for a deficiency of 

evidence as to causation.”55 Nor can it make up for a deficiency of 

evidence as to damages. Ms. Kranendonk needed to also provide 

evidence that Mr. Highberg’s breach of his fiduciary duty caused 

Ms. Kranendonk mental anguish. This she failed to do.

¶45 So we hold that the jury had no evidence upon which to 

base its verdict that Ms. Kranendonk suffered emotional distress 

damages as a result of Mr. Highberg’s intentional concealment and, 

therefore, the district court erred in dismissing the Swapp 

Defendants’ motion for JNOV under a breach of fiduciary duty 

theory. And because the $2.75 million jury award for non-economic 

damages is not supported under either a breach of contract or breach 

of fiduciary claim in this case, we vacate it.

III. Attorney Fees and Litigation Expenses

¶46 The Swapp Defendants finally argue that the district court 

erred in awarding Ms. Kranendonk $1,166,666.67 in attorney fees. 

Specifically, they contend that the court “misread the scope” of the 

_____________________________________________________________

53 Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 

330, 336 (Utah 1985).

54 Id.; see also State v. Ogden, 2018 UT 8, ¶ 52, 416 P.3d 1132 (“[A]n 

award of damages based only on speculation cannot be upheld . . . .”

(citation omitted)).

55 USA Power, 2016 UT 20, ¶ 113.
Cite as: 2018 UT 36

Opinion of the Court 

21

fiduciary duty exception to the American rule for attorney fees as set 

forth in Campbell v. State Farm Mutual Automobile Insurance Co.

56 On 

cross-appeal, Ms. Kranendonk also claims that the district court 

erred in declining to award $177,911.64 in litigation expenses under 

Campbell. But because we find there is insufficient evidence to 

support Ms. Kranendonk’s breach of fiduciary claim, we hold that 

the district court erred in awarding attorney fees. And, for the same 

reason, we hold that it correctly denied litigation expenses in this 

case.

¶47 “In general, Utah follows the traditional American rule that 

attorney fees cannot be recovered by a prevailing party unless a 

statute or contract authorizes such an award.”57 But there are 

exceptions to this rule. In Campbell, we noted “that breach of a 

fiduciary obligation is a well-established exception to the American 

rule precluding attorney fees in tort cases generally.”58 We therefore 

held that not only may a party recover attorney fees under a 

first-party bad faith claim against an insurer—a claim sounding in 

contract—but they may also do so under a third-party bad faith

claim against an insurer—a claim sounding in tort.59 We also 

concluded that, “[f]or the same reasons . . . regarding attorney fees, 

. . . litigation expenses are recoverable in this limited type of 

action.”60

¶48 Relying on our holding in Campbell, the district court 

awarded Ms. Kranendonk attorney fees under her breach of 

fiduciary claim, but refused to award her all of her litigation 

_____________________________________________________________

56 2001 UT 89, ¶ 122, 65 P.3d 1134, rev’d on other grounds, 538 U.S. 

408 (2003).

57 Utahns for Better Dental Health–Davis, Inc. v. Davis Cty. 

Clerk, 2007 UT 97, ¶ 5, 175 P.3d 1036 (citation omitted); see also Neff v. 

Neff, 2011 UT 6, ¶ 77, 247 P.3d 380 (“The general rule for attorney 

fees in tort cases is that the parties are each responsible for their own 

fees. Under this rule, commonly referred to as the ‘American Rule,’ 

the prevailing party may generally only recover fees if a statutory or 

contractual provision entitles that party to such an award.”) (internal 

footnote omitted)).

58 2001 UT 89, ¶ 122.

59 Id. ¶¶ 120–22.

60 Id. ¶ 127.
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

22

expenses. The Swapp Defendants take issue with the attorney fees 

award. They contend that our statement in Campbell was never 

meant to operate as an endorsement of attorney fee awards in all 

breach of fiduciary duty cases. Instead, they argue that Campbell 

permitted an award of attorney fees in rare circumstances where the 

breach is “particularly egregious”—a fact not present in most legal 

malpractice cases. While the Swapp Defendants raise an important 

question, we decline to answer it because Ms. Kranendonk failed to 

establish that a breach of fiduciary duty occurred in this case. And 

because no breach of fiduciary duty exists in this case, no ground 

remains on which the district court could have properly awarded 

attorney fees.61 Accordingly, we vacate the court’s award of 

$1,166,666.67 in attorney fees.

¶49 We likewise refuse, under the same reasoning, to overturn 

the district court’s denial of litigation expenses. Below, the district 

court declined to award litigation expenses and chose to “award 

instead only those costs properly taxable” under rule 54 of the Utah 

Rules of Civil Procedure to Ms. Kranendonk—an amount it set at 

$17,977.82. On cross-appeal, Ms. Kranendonk argues that the district 

court erred in failing to award her $177,911.64 in litigation expenses 

and granting only “costs.” She contends that, under Campbell, all 

litigation expenses are recoverable in a legal malpractice action 

brought under a breach of fiduciary duty claim.62 But because 

Ms. Kranendonk’s breach of fiduciary duty claim cannot be 

established in this case, there is no basis to support her recovery of

_____________________________________________________________

61 Like the district court, Ms. Kranendonk relies exclusively on the 

breach of fiduciary duty exception under Campbell for support of her 

award of attorney fees in this case. She did not argue, nor did the 

district court find, that the court’s award of attorney fees was 

supported by contract or statute, or that a different exception to the 

American rule applies. 

62 In Campbell, State Farm argued that, “like attorney fees, 

litigation expenses may not be awarded as damages in a tort action.” 

2001 UT 89, ¶ 127. The court rejected this argument, holding that 

“[f]or the same reasons detailed in the previous section regarding 

attorney fees, we conclude that litigation expenses are recoverable in 

this limited type of action.” Id. The court went on to reason that 

“litigation expenses incurred by plaintiffs [were] . . . foreseeable to 

State Farm” and therefore were warranted in this case. Id.

(alterations in original).
Cite as: 2018 UT 36

Opinion of the Court 

23

litigation expenses. We therefore affirm the district court’s denial of 

litigation expenses.

63

IV. Exclusion of Mr. Highberg’s Statements

¶50 Lastly, on cross-appeal, Ms. Kranendonk contends that the 

district court improperly excluded Mr. Highberg’s statements that he 

believed Ms. Kranendonk was “a moron” and a “pain [in] the ass”—

evidence she claims supports her prayer for punitive damages.

Specifically, she argues that the district court failed to conduct a 

proper rule 403 analysis when it chose to exclude these statements. 

Alternatively, she asserts that the court abused its discretion in its 

rule 403 determination by failing to admit the only rebuttal evidence 

Ms. Kranendonk had “about what motivated [Mr. Highberg] to 

breach his fiduciary duties.” But because there is insufficient 

evidence to establish an actionable breach of fiduciary duty claim—

the only claim that arguably contemplates willful and malicious 

conduct—no cognizable cause of action exists that would support a 

punitive damage award. Accordingly, this issue is moot.

¶51 “In Utah, punitive damages are available only upon clear 

and convincing proof of ‘willful and malicious or intentionally 

fraudulent conduct, or conduct that manifests a knowing and

reckless indifference toward, and disregard of, the rights of 

others.’”64 This means that “simple negligence will not support 

_____________________________________________________________

63 Although the parties dispute the trial court’s denial of litigation 

expenses, neither party has challenged the court’s award of “costs” 

under rule 54 of the Utah Rules of Civil Procedure. See UTAH R. CIV.

P. 54(d)(1) (“Unless a statute, these rules, or a court order provides 

otherwise, costs should be allowed to the prevailing party.”); Armed 

Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 42, 70 P.3d 35 (“[T]here is a 

distinction to be understood between the legitimate and taxable

‘costs’ and other ‘expenses’ of litigation which may be ever so 

necessary, but are not properly taxable as costs.” (citation omitted)). 

Accordingly, we do not disturb this award.

64 Smith v. Fairfax Realty, Inc., 2003 UT 41, ¶ 27, 82 P.3d 1064 

(citation omitted); see also UTAH CODE § 78B-8-201(1)(a) (“[P]unitive 

damages may be awarded only if compensatory or general damages 

are awarded and it is established by clear and convincing evidence 

that the acts or omissions of the tortfeasor are the result of willful 

and malicious or intentionally fraudulent conduct, or conduct that 

(Continued)
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

24

punitive damages,” but “negligence manifesting a knowing and 

reckless indifference toward the rights of others will.”65

Additionally, “punitive damages cannot be awarded for a breach of 

contract,” unless “the breach of contract amounts to an independent 

tort.”66

¶52 Here, the jury awarded damages on four causes of actions—

legal malpractice, breach of contract, breach of fiduciary duty, and 

negligent hiring, training, and supervision. But only 

Ms. Kranendonk’s breach of fiduciary duty action could conceivably 

support a punitive damage award in this case. This is so because her 

other claims are predicated upon simple negligence and traditional 

breach of contract theories—theories that cannot support punitive 

damage awards. First, Ms. Kranendonk’s legal malpractice claim 

rested on simple negligence—that the Swapp Defendants failed “to 

use the same degree of care, skill, judgment and diligence used by 

reasonably careful attorneys under similar circumstances.” Her 

negligent hiring, training, and supervision claim likewise was based 

on simple negligence—that the Swapp Defendants were negligent in 

failing to recruit, train, and supervise sufficient attorneys and staff 

“so that they would be able to provide professional and competent 

legal services.” And lastly, her breach of contract claim, like all 

breach of contract claims, was based on contract principles and so

did not amount to an independent tort.67 These three claims 

therefore could not support a punitive damage award as a matter of 

law.

 

manifests a knowing and reckless indifference toward, and a 

disregard of, the rights of others.”).

65 Smith, 2003 UT 41, ¶ 27 (citation omitted).

66 Norman v. Arnold, 2002 UT 81, ¶ 35, 57 P.3d 997 (citation

omitted).

67 While an argument can be made that the Swapp defendants’

breach of contract amounted to an independent tort—a breach of 

fiduciary duty—Ms. Kranendonk specifically couched these actions

as separate, distinct claims. And the jury made its determination 

under this framework. So we cannot say that the Swapp Defendants’

breach of contract amounted to a breach of fiduciary duty. That 

action was separately pled. 
Cite as: 2018 UT 36

Opinion of the Court 

25

¶53 Ms. Kranendonk’s breach of fiduciary duty claim, however, 

conceivably could support a punitive damage request.68 And since 

this claim was the only claim upon which the jury could possibly 

have awarded punitive damages, the fate of Ms. Kranendonk’s 

argument on cross-appeal necessarily depends on the success of that 

claim.69 But, as stated above, Ms. Kranendonk’s breach of fiduciary 

duty claim fails because the jury had insufficient evidence to 

conclude that an actionable breach occurred in this case. This means 

that there is no cognizable claim upon which her prayer for punitive 

damages may be based.70 So Ms. Kranendonk’s cross-appeal is moot 

because, regardless of our decision, she cannot receive the punitive 

damages she seeks.

¶54 An issue “may be mooted on appeal if ‘the relief requested’ 

is rendered ‘impossible or of no legal effect.’”71 This is so because 

without the possibility of relief, “anything we might say about the 

issue[] would be purely advisory.”72 Regardless of our decision on 

the admissibility of Mr. Highberg’s two statements, 

Ms. Kranendonk’s prayer for punitive damages cannot be granted 

because no cognizable claim exists to support such an award. 

Anything we might say on the matter would therefore be purely 

advisory. Accordingly, the issue is moot.

_____________________________________________________________

68 See Norman, 2002 UT 81, ¶ 35 (“In Utah, a claim for breach of 

fiduciary duty is an independent tort . . . and can serve as the basis 

for punitive damages.”).

69 While Ms. Kranendonk also pled, and the jury heard, a claim of 

fraudulent non-disclosure—a claim that conceivably could support a 

punitive damage award—the jury did not find that she had 

established by clear and convincing evidence that the Swapp 

Defendants fraudulently failed to disclose important facts to her, and 

she has not challenged that finding on appeal. So her breach of 

fiduciary duty claim is the only claim on which she could seek 

punitive damages in this case.

70 See Norman, 2002 UT 81, ¶ 8 n.2 (stating that punitive damages 

“must be requested in conjunction with a cognizable cause of 

action”).

71 Transp. All. Bank v. Int’l Confections Co., 2017 UT 55, 

¶ 15, --- P.3d --- (citation omitted).

72 Id. (citation omitted).
GREGORY & SWAPP v. KRANENDONK

Opinion of the Court

26

Conclusion

¶55 The Swapp Defendants claim that, under either a breach of 

contract or breach of fiduciary duty theory, the district court erred in 

upholding the $2.75 million jury award for emotional distress 

damages unrelated to the underlying case. We agree. 

Ms. Kranendonk’s breach of contract claim cannot support these 

damages, because such emotional distress was not explicitly 

contemplated by the parties. The jury award also cannot be 

supported under her breach of fiduciary duty claim, because the jury 

had no evidence that the Swapp Defendants’ concealment and 

dishonesty caused Ms. Kranendonk harm. We accordingly reverse 

the district court’s decision denying the Swapp Defendants’ JNOV 

motion and vacate the $2.75 million jury award.

¶56 We also vacate the district court’s award of $1.666,667.67 in 

attorney fees because Ms. Kranendonk’s breach of fiduciary duty 

claim—the only claim that could support this award—failed. And 

we hold that her claim on cross-appeal for litigation expenses also 

fails for the same reason.

¶57 Finally, we decline to reach Ms. Kranendonk’s challenge of 

the district court’s decision to exclude Mr. Highberg’s two 

statements. Ms. Kranendonk seeks the admission of these statements 

in order to support her prayer for punitive damages. But because her 

breach of fiduciary duty claim fails, punitive damages cannot be 

awarded in this case regardless of our decision on this issue. So the 

issue is moot.