Ward v. McGarry

511 P.3d 1213

Sara Marie WARD, Appellant,

v.Meredith Dwight MCGARRY, Appellee.

No. 20200724-CA

Court of Appeals of Utah.

Filed May 12, 2022

Rehearing Denied July 6, 2022

Troy L. Booher, Beth E. Kennedy, Salt Lake City, Taylor Webb, and Kyle Adams, Attorneys for Appellant

Christopher M. Von Maack and Kennedy D. Nate, Salt Lake City, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

Opinion

Christiansen Forster, Judge:

¶1 Sara Marie Ward appeals the district court's grant of Meredith Dwight McGarry's motion to dismiss her breach of contract, promissory estoppel, and tort claims against him. We affirm.

BACKGROUND

¶2 The parties were involved in a romantic relationship for approximately two-and-a-half years. During that time, the parties had one child together. While they were romantically involved, Ward sent nude photos of herself to McGarry.

¶3 After they ended their relationship, the parties became involved in a custody dispute over their child. See generally Ward v. McGarry , 2021 UT App 51, 491 P.3d 970. Ward sent McGarry a text requesting that he delete the nude photos of her and promised that if he did, she would not use those photos in their custody dispute. McGarry agreed.

¶4 Several years after they separated, Ward received a call from McGarry's ex-wife, who informed her that she and her son had seen the photos of Ward. According to the ex-wife, McGarry "had given his phone to his son to play with and the child brought the phone home and showed the photos to his mother." The ex-wife sent Ward one of the photos as proof.

¶5 In response to this disclosure, Ward filed a complaint against McGarry, alleging causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress, breach of contract, equitable estoppel, punitive damages, negligent misrepresentation, and fraud.¹ McGarry filed a motion to dismiss, asserting (1) that "Ward's tort claims are barred by operation of the economic loss rule"; (2) that her "breach of contract claim fails for want of damages"; (3) that she could not assert her "equitable estoppel claim ... as an independent cause of action"; and (4) that she could not bring a "punitive damages claim ... as an independent cause of action."

¶6 The district court agreed with McGarry and dismissed Ward's complaint. Ward now appeals.

ISSUE AND STANDARD OF REVIEW

¶7 Ward argues that the district court erred in dismissing her breach of contract, promissory estoppel, tort, and punitive damages claims. "The decision to grant a motion to dismiss presents a question of law that we review for correctness." Davencourt at Pilgrims Landing Homeowners Ass'n v. Davencourt at Pilgrims Landing, LC , 2009 UT 65, ¶ 12, 221 P.3d 234 (quotation simplified).

ANALYSIS

I. Breach of Contract

¶8 Ward first asserts that the district court erred by "dismissing the breach of contract claim on the ground that the contract did not contemplate emotional distress damages."

¶9 "Normally there is no recovery of damages for mental anguish stemming from a breach of contract." Gregory & Swapp, PLLC v. Kranendonk , 2018 UT 36, ¶ 28, 424 P.3d 897 (quotation simplified). However, our supreme court has recognized an exception to this rule when "emotional distress or mental anguish arising from a breach of contract ... 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." Cabaness v. Thomas , 2010 UT 23, ¶ 75, 232 P.3d 486.² To invoke this exception, a plaintiff must point to "specific language" and "obligations" in the contract that show that at the time the parties formed the contract, they contemplated that emotional distress damages might flow from a breach of the contract. See Kranendonk , 2018 UT 36, ¶ 29, 424 P.3d 897. In other words, they must show that "the parties contemplated granting relief for more than the typical mental anguish and discouragement that results from a breach of contract." Id. ¶ 30.

¶10 The district court concluded that the first element needed to prove the availability of emotional damages—foreseeability—was met in this case due to the agreement's "personal nature." See id. ¶ 33 (explaining that "emotional distress damages are a foreseeable result of a breach" of contract when "the contract involved some peculiarly personal subject matter" (quotation simplified)). However, it determined that Ward could not establish the second element—that emotional damages were explicitly within the contemplation of the parties—because there was no "specific language" in the parties’ contract contemplating emotional damages for any breach. We agree.

¶11 The language of the employment contract at issue in Cabaness 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." 2010 UT 23, ¶ 76, 232 P.3d 486 (quotation simplified). The Cabaness court held that because this language was "specifically directed toward matters of mental concern and solicitude," whether the language demonstrated "that emotional damages were within the contemplation of the parties at the time the contract was entered" was a question of fact that could not be resolved on summary judgment. Id. ; see also Kranendonk , 2018 UT 36, ¶ 31 n.35, 424 P.3d 897 (reiterating that the language at issue in Cabaness merely created a question of fact as to what the parties contemplated and was not sufficient to illustrate that "the parties expressly contemplated emotional distress damages"). In Kranendonk , on the other hand, the language of a contract for legal services included a promise that the plaintiff's attorney would use "best efforts to obtain a settlement or judgment for [her] through negotiation or other legal action." 2018 UT 36, ¶ 35, 424 P.3d 897 (quotation simplified). The court declined to read into that language a commitment to "mak[e] sure the client has peace of mind" and concluded that the contract dealt with solely pecuniary interests. Id.

¶12 The exact language of the text messages between the parties in this case is not in the record. However, Ward alleged that she "requested ... that [McGarry] delete all intimate photos" in exchange for Ward not using the photos in their custody dispute. McGarry agreed.³ While this contract was of a more personal nature than the one at issue in Kranendonk —as demonstrated by the district court's acknowledgement that Ward and McGarry's contract involved personal interests—"the specific language of the contract does not show that emotional distress damages were explicitly contemplated by the parties." See id. And unlike the contract in Cabaness , which included language prohibiting harassing, intimidating, and offensive behavior—actions "specifically directed toward matters of mental concern and solicitude," see 2010 UT 23, ¶ 76, 232 P.3d 486 —the language of the contract here states only that McGarry agreed to delete the nude photos in exchange for Ward's agreement not to use the photos in their custody dispute.⁴ Without "any language related to mental or emotional harm," see Kranendonk , 2018 UT 36, ¶ 35, 424 P.3d 897, this is not enough to create even a factual issue regarding what the language contemplated.

¶13 Ward asserts that because "the subject matter of the contract—nude photos—involves peculiarly personal interests, as opposed to rights stemming from monetary interests[,] ... any breach would necessarily result in emotional distress and mental anguish." However, this argument goes to the foreseeability of the emotional distress damages, not the question of whether the specific language of the parties’ agreement contemplated emotional damages. Ward also asserts that we should construe the contract as contemplating emotional damages because "[t]here was no financial component to the agreement" and "[t]he primary damages that could and would arise from ... [a breach] were noneconomic." But this argument goes to the nature of the contract, not its language . And Kranendonk makes clear that we must consider both the "nature and language of the contract" and that our "focus ... on the contract language" must "consider only those expectations that are apparent from the language of the contract." Id. ¶ 29 & n.28 (quotation simplified) (emphasis added). In other words, even though we are sympathetic to Ward's argument that McGarry's failure to delete the nude photos would likely lead to her emotional distress and that emotional distress is the most likely type of damage that the parties could have reasonably expected for a breach of this contract, our supreme court has determined that emotional damages for breach of a contract will be awarded only when those damages were explicitly contemplated by the parties based on the contract's language. And here, because Ward cannot point to specific language or obligations in her contract with McGarry that show that emotional damages were contemplated by them at the time they formed the contract, Ward is precluded from recovering emotional damages as compensation for McGarry's breach.

II. Promissory Estoppel

¶14 Ward next challenges the district court's conclusion that promissory estoppel is not available "where a legal remedy such as breach of contract is available." Ward asserts that the court's determination that she could not recover damages on her breach of contract claim meant that a legal remedy for breach of contract was not available and that promissory estoppel could therefore apply. But just because Ward could not demonstrate that she had suffered damages recoverable under the contract does not mean that no remedy for breach of contract was available. "Even if a contract does not provide an express remedy ... it does not follow that a party has no legal...