Hatch v. Davis

102 P.3d 774

2004 UT App 378

Julian Dean HATCH, Plaintiff and Appellant, v. Larry DAVIS, Defendant and Appellee.

No. 20020778-CA.

Court of Appeals of Utah.

October 28, 2004.

Rehearing Denied December 28, 2004.

Budge W. Call, Bond & Call LC, Salt Lake City, for Appellant.

James C. Bradshaw and Ann Marie Taliaferro, Brown Bradshaw Anderson & Moffat, Salt Lake City, for Appellee.

Before Judges GREENWOOD, JACKSON, and THORNE, Jr.

OPINION

GREENWOOD, Judge:

¶1 Plaintiff Julian Hatch appeals from a jury verdict in favor of Defendant Larry Davis and from various judgments and orders of the trial court. Specifically, Plaintiff argues that the trial court erred by (1) failing to dismiss Defendant's claims for malicious prosecution, abuse of prosecution, and intentional infliction of emotional distress; (2) prohibiting Plaintiff from disposing of his assets after the trial; and (3) issuing orders in supplemental proceedings based on a partial judgment. We reverse in part, and reverse and remand in part.

BACKGROUND

¶ 2 On September 26, 1996, Plaintiff filed a complaint against Defendant in federal court for an alleged assault and battery that had occurred during a town council meeting in Boulder, Utah, in 1996. The federal court ultimately dismissed the assault and battery claim for lack of jurisdiction. On March 10, 1998, Plaintiff refiled his assault and battery claim in state court. Defendant filed an answer and counterclaim for abuse of process and malicious prosecution.¹

¶3 Several months later, Plaintiff filed a motion to dismiss the counterclaim. Defendant then filed an amended counterclaim in which he added claims for intentional infliction of emotional distress² and attorney fees. In response, Plaintiff filed a motion to dismiss the amended counterclaim.³ The trial court denied Plaintiff's motion to dismiss.

¶ 4 A year and a half later, after extensive discovery, Plaintiff filed a motion for summary judgment in which he argued that the trial court should dismiss Defendant's claims for malicious prosecution, abuse of process, and intentional infliction of emotional distress. The trial court also denied this motion.

¶ 5 Subsequently, Plaintiff filed a motion in limine in which he sought to exclude Defendant's expert testimony, any correspondence or dealings by Plaintiff with Defendant's wife made outside Defendant's presence, and any letters written by Plaintiff to government officials. The trial court denied the motion but required that Defendant make his expert available for a deposition.

¶ 6 The following day, Plaintiff filed a notice of deposition in which he indicated that he would be deposing Defendant's expert on March 21, 2002. This deposition never took place for reasons that are unclear from the record. However, rather than further attempting to depose Defendant's expert, Plaintiff filed a second motion to exclude her testimony.

¶ 7 In April 2002, the case was tried before a jury. During the trial, it emerged that beginning in approximately 1990, and lasting until approximately 1993, Plaintiff wrote a series of letters to Defendant's supervisors and other government officials, complaining that Defendant had failed to properly carry out his duties as manager of the Anasazi State Park. These letters were apparently prompted by an unresolved dispute between Plaintiff and Defendant over a Native American burial display, which Plaintiff wanted removed from the park.

¶ 8 In addition to writing letters, Plaintiff personally complained about Defendant to Defendant's supervisors. Defendant testified that the most recent of these complaints occurred in 1999, immediately before Defendant's retirement. However, there was no evidence that Defendant's job was jeopardized as a result of Plaintiff's complaints.

¶ 9 Defendant also testified that in 1992, he and Plaintiff exchanged heated words about the Native American burial site. Defendant claimed that this exchange ended with Plaintiff threatening him outside the Boulder post office. Defendant further testified that Plaintiff has harassed not only him, but also his wife, Judy Davis.⁴ However, there is no evidence that any of the alleged harassment of Judy Davis occurred in Defendant's presence. Defendant claimed that this conduct, in addition to other conduct, including the lawsuits filed against him by Plaintiff, resulted in his experiencing emotional distress. According to Defendant's expert, this distress ultimately caused Defendant to suffer an extreme clinical disorder, the physical manifestations of which included loss of appetite, headaches, and upset stomach.

¶ 10 At the close of Defendant's presentation of evidence, Plaintiff moved to dismiss the abuse of process and malicious prosecution claims on the basis that probable cause existed to support Plaintiff's assault and battery claim. Plaintiff also moved to dismiss Defendant's intentional infliction of emotional distress claim on the basis that Defendant had failed to establish that Plaintiff's conduct was outrageous or Defendant's distress severe. The trial court denied these motions. However, prior to submitting the case to the jury, the trial court dismissed the malicious prosecution claim because the prior proceeding had not been terminated in Defendant's favor. In addition, the trial court agreed to a stipulation by the parties that Defendant's damages for his abuse of process claim would be limited to the costs of defending against Plaintiff's assault and battery claim.

¶ 11 After deliberations, the jury found no cause of action on Plaintiff's assault and battery claim, and awarded Defendant $75,000 for his abuse of process claim, and $87,000 for his intentional infliction of emotional distress claim. Two days later, Defendant faxed a motion to the trial court asking the court, pursuant to rule 69(q) of the Utah Rules of Civil Procedure, to prohibit Plaintiff from disposing of any real or personal property. After an off-the-record telephonic conference between the trial court and counsel for both parties, the trial court granted Defendant's motion and issued an order prohibiting Plaintiff from encumbering any real or personal property with a value greater than $500, without obtaining prior written approval from the court. Shortly thereafter, the trial court issued a partial judgment in the amount of $87,000 for Defendant's intentional infliction of emotional distress claim.

¶ 12 Subsequently, Plaintiff filed a Motion to Vacate the Order Precluding Plaintiff's Transfer or Encumbrance of Property. This motion was followed by a Motion to Set Aside the Verdict on Intentional Infliction of Emotional Distress, and a Motion for New Trial; or in the Alternative a Remittitur on the Amount of Damages. The trial court denied these motions.

¶ 13 The trial court issued a Writ of Garnishment, attaching funds in one of Plaintiff's bank accounts. Two months later, the trial court, in a Motion and Order in Supplemental Proceedings, also ordered Plaintiff not to sell, loan, give away, or otherwise dispose of his non exempt property.

¶ 14 After briefing and argument by both sides, the trial court determined that Defendant incurred $43,542.93 in attorney fees defending the assault and battery claim. Accordingly, a final judgment was entered that same day awarding Defendant a total of $130,542.93 for both his abuse of process and intentional infliction of emotional distress claims. Plaintiff timely appealed.

ISSUES AND STANDARD OF REVIEW

¶ 15 Plaintiff first argues that the trial court erred in failing to dismiss Defendant's malicious prosecution and abuse of process claims. "On appeal from a motion to dismiss, we review the facts as they are alleged in the complaint. We accept the factual allegations in the complaint as true and consider all reasonable inferences to be drawn from those facts in a light most favorable to the plaintiff." Ramsey v. Hancock, 2003 UT App 319,¶ 1 n. 1, 79 P.3d 423 (quotations and citations omitted).

¶ 16 Plaintiff also argues that Defendant's claim for intentional infliction of emotional distress should have been dismissed as a matter of law because there was insufficient evidence to support the jury finding that his conduct was extreme and outrageous. "To support an insufficiency of the evidence claim on appeal, `the one challenging the verdict must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.'" Child v. Gonda, 972 P.2d 425, 433 (Utah 1998) (quoting McCorvey v. State Dep't of Transp., 868 P.2d 41, 44 (Utah 1993)). "So long as some evidence and reasonable inferences support the jury's findings, we will not disturb them." Id. at 433.

¶ 17 Next, Plaintiff argues that Defendant's claim for intentional infliction of emotional distress is barred by Utah's applicable statute of limitations. "The trial court's application of a statute of limitations presents a question of law which we review for correctness." Estes v. Tibbs, 1999 UT 52,¶ 4, 979 P.2d 823.

¶ 18 Plaintiff also argues that a person claiming intentional infliction of emotional distress based on outrageous conduct directed toward another cannot recover unless that person was present at the time of the outrageous conduct. Therefore, because Defendant was not present when Plaintiff allegedly harassed Defendant's wife, Plaintiff maintains the trial court erred by failing to dismiss Defendant's claim. A trial court's interpretation of the law is reviewed for correctness. See Ledfors v. Emery County Sch. Dist., 849 P.2d 1162, 1162-63 (Utah 1993).

¶ 19 Finally, Plaintiff argues that he has a First Amendment right to petition and criticize the government and, therefore, the trial court erred by failing to dismiss Defendant's intentional infliction of emotional distress claim. Interpretation of the federal constitution is a question of law that is reviewed for correctness. See State v. Harmon, 910 P.2d...