Hatch v. Davis

• Decision Date: 11 August 2006
• Docket Number: No. 20050078.,20050078.
• Citation: 147 P.3d 383,2006 UT 44
• Parties: Julian Dean HATCH, Plaintiff and Respondent, v. Larry DAVIS, Defendant and Petitioner.
• Court: Utah Supreme Court

Page 383

147 P.3d 383

2006 UT 44

Julian Dean HATCH, Plaintiff and Respondent, v. Larry DAVIS, Defendant and Petitioner.

No. 20050078.

Supreme Court of Utah.

August 11, 2006.

Rehearing Denied September 20, 2006.

Budge W. Call, Salt Lake City, for respondent.

James C. Bradshaw, Ann Marie Taliaferro, Salt Lake City, for petitioner.

On Certiorari to the Utah Court of Appeals

NEHRING, Justice:

¶ 1 This case brings to this court a long-standing feud between two Boulder, Utah residents, Julian Dean Hatch and Larry Davis.

¶ 2 Mr. Davis served as manager of the Anasazi State Park for over thirty years until his retirement in 2001. In 1988, Mr. Hatch moved to Boulder and sought employment at the park. Mr. Hatch was not offered a job. This rejection apparently triggered a ten-year campaign in which Mr. Hatch sought the removal of Mr. Davis from his park management position and Mrs. Hatch from her position as post-mistress of the town of Boulder.

¶ 3 The acrimony between the men ultimately spilled over into court when Mr. Hatch sued Mr. Davis for damages stemming from an alleged assault outside the town post office. Mr. Davis denied the allegation and counterclaimed. Mr. Davis claimed that Mr. Hatch's conduct amounted to abuse of process, malicious prosecution, and intentional infliction of emotional distress. A jury rejected Mr. Hatch's assault claims. Although the trial court dismissed Mr. Davis's malicious prosecution claim, the jury found for Mr. Davis on each of his surviving causes of action. Based on the jury verdict, the trial court entered judgment in favor of Mr. Davis for $130,542.93. Mr. Hatch appealed.

¶ 4 The court of appeals held that, even though the trial court dismissed Mr. Davis's malicious prosecution claim before it could be sent to the jury, the trial court erred by failing to dismiss the claim earlier, before trial. In a footnote, the court of appeals commented that, even though the malicious prosecution claim did not go to the jury, the trial court's failure to dismiss it before the trial commenced "may have allowed introduction of evidence and argument by counsel that tainted the jury's consideration of the issues submitted to it." Hatch v. Davis, 2004 UT App 378, ¶ 20 n. 6, 102 P.3d 774.

ANALYSIS

I. THE COURT OF APPEALS' RULING ON THE CLAIM OF MALICIOUS PROSECUTION UNDERMINES THE ENTIRE VERDICT

¶ 5 The court of appeals reversed outright the award based on abuse of process and remanded Mr. Davis's claim for intentional infliction of emotional distress for a new trial. We granted certiorari to consider three questions: (1) whether Mr. Hatch waived any entitlement to a jury instruction on his statute of limitations defense to Mr. Davis's claim of intentional infliction of emotional distress by failing to offer a legally correct instruction on that issue, (2) whether Mr. Davis was entitled to the benefit of an exception to the "presence" rule for intentional infliction of emotional distress, and (3) whether Mr. Davis sufficiently alleged that Mr. Hatch had committed a "wilful act" as part of his claim for abuse of process.

¶ 6 We postpone our analysis of these questions to consider the implications of the court of appeals' dismissal of Mr. Davis's malicious prosecution claim. Neither party sought certiorari review of any issue relating to this cause of action. The manner in which the court of appeals dispatched the malicious prosecution claim leaves us with a sense of uncertainty about how to interpret the court's decision on the claims we have agreed to review.

¶ 7 It is unclear to us whether the court of appeals intended that its reversal of the trial court on this issue mandated a new trial on Mr. Davis's remaining claims. Because we can discern no other reason for the court of appeals to have taken up the question of when Mr. Hatch's motion to dismiss should have been granted, we conclude that the court contemplated this portion of its holding to undermine the legitimacy of the entire verdict.

II. CERTIORARI WAS IMPROVIDENTLY GRANTED ON THE STATUTE OF LIMITATIONS ISSUE

¶ 8 Against this backdrop, we turn our attention to the first issue on certiorari; the matter of Mr. Hatch's statute of limitations defense to Mr. Davis's claim of intentional infliction of emotional distress. Mr. Hatch took issue with two trial court rulings relating to the statute of limitations. First, he claimed that the trial court improperly denied his motion for summary judgment on the statute of limitations issue. Second, he also contended that the trial court erred when it refused to permit his statute of limitations defense to go to the jury. This is the only statute of limitations issue that concerns us, but it injects an odd wrinkle into our analysis.

¶ 9 We granted certiorari to answer this question: Did Mr. Hatch waive his right to a jury instruction when he failed to submit for consideration a legally correct instruction? One might read the court of appeals' opinion, perhaps even re-read it, and still wonder where this question came from. The answer is not immediately evident. We will therefore endeavor to chart the route that led to the issue of waiver.

¶ 10 Mr. Hatch moved for summary judgment on his statute of limitations defense. The trial court denied the motion.¹ Before the case was submitted to the jury, Mr. Hatch presented a statute of limitations instruction to the trial court. The trial court refused to give the instruction because it believed that there was insufficient evidence to send the statute of limitations issue to the jury. In the words of the court, "there is really no legitimate statute of limitations issue."

¶ 11 The trial court did not, therefore, reject Mr. Hatch's proposed statute of limitations instruction because it failed to properly state the law, but rather because it concluded that Mr. Hatch had failed to mount a sufficient statute of limitations case to merit sending it to the jury. The trial court's decision not to instruct the jury on the statute of limitations was not a ruling on the sufficiency of the contents of Mr. Hatch's proposed instruction but is more accurately characterized as the grant of a directed verdict against Mr. Hatch on his statute of limitations defense.

¶ 12 The court of appeals appears to have interpreted the events concerning the statute of limitations this way. Its discussion of the statute of limitations never touched on the content of Mr. Hatch's proposed instruction. Instead, the court of appeals examined the record² and concluded that it contained facts sufficient to send the statute of limitations issue to the jury. It was on this basis and not on the adequacy of Mr. Hatch's proposed instruction that the court of appeals reversed the trial court.³

¶ 13 Before this court, Mr. Davis has presented the contest over the statute of limitations as a traditional jury instruction skirmish. He claims that Mr. Hatch never properly objected to the trial court's refusal to give his proposed instruction and that he cannot therefore raise his complaint for the first time on appeal. Mr. Davis attempts to bring novelty to what he perceives, incorrectly in our view, as a generic fight over jury instructions by framing the question as: Did Mr. Hatch waive any entitlement he may have had to a jury instruction on the statute of limitations because he failed to offer a legally accurate instruction?

¶ 14 This question would have appeal to us as an issue of first impression if it arose in a setting where a party objected to the content of an erroneous instruction, where the objection was based on an incorrect statement of law contained in that party's competing instruction. This case presents a much different scenario. As we have noted, the trial court's rejection of Mr. Hatch's statute of limitations instruction was incidental to its grant of a de facto motion for directed verdict. The legal sufficiency of Mr. Hatch's proposed instruction had little, if anything, to do with either the trial court's ruling or the court of appeals' review of that decision.

¶ 15 We accordingly conclude that we acted improvidently when we granted certiorari to consider the question of whether Mr. Hatch waived his entitlement to a legally correct instruction and decline to consider it.

III. UTAH RECOGNIZES THAT EXCEPTIONS TO THE "PRESENCE" RULE OF THE TORT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS MAY EXIST

¶ 16 We next take up the question of whether the evidence presented at trial entitled Mr. Davis to the benefit of an exception to the "presence" requirement for intentional infliction of emotional distress. Generally, a person cannot recover intentional infliction of emotional distress damages based on outrageous conduct visited upon a family member without being present when the conduct took place. Restatement (Second) of Torts § 46(2) (1965). There are exceptions to this general rule. Mr. Davis insists that those exceptions apply to the facts surrounding Mr. Hatch's conduct directed at Mr. Davis's wife outside of Mr. Davis's presence.

¶ 17 The court of appeals held that Mr. Davis was not eligible for the exception to the "presence" rule and ordered that on remand no evidence of Mr. Hatch's conduct toward Mrs. Davis could be admitted to establish intentional infliction of emotional distress. Our ability to analyze the merits of Mr. Davis's claim to a "presence" rule exception is stymied, however, because we do not have the benefit of a record from which to glean with sufficient confidence the evidence that might bear on this issue.

¶ 18 The incomplete state of the record leaves us once again perplexed over apparent inconsistencies within the court of appeals' treatment of this issue. Just as we encountered conceptual difficulty harmonizing the court of appeals' decision to reject Mr. Hatch's sufficiency of evidence challenge because he failed to comply with the requirements of Utah Rule of Appellate Procedure 11(e)(2) with the court's willingness to...