Moss v. Parr Waddoups Brown Gee & Loveless, 20100595.

• Decision Date: 06 July 2012
• Docket Number: No. 20100595.,20100595.
• Citation: 712 Utah Adv. Rep. 41,285 P.3d 1157,2012 UT 42
• Parties: Susan I. MOSS and Jamal S. Yanaki, Plaintiffs and Appellants, v. PARR WADDOUPS BROWN GEE & LOVELESS, Clark Waddoups, Jonathan O. Hafen, Justin P. Matkin, and John Does I–XX, Defendants and Appellees.
• Court: Utah Supreme Court

285 P.3d 1157

712 Utah Adv. Rep. 41

2012 UT 42

Susan I. MOSS and Jamal S. Yanaki, Plaintiffs and Appellants,

v.PARR WADDOUPS BROWN GEE & LOVELESS, Clark Waddoups, Jonathan O. Hafen, Justin P. Matkin, and John Does I–XX, Defendants and Appellees.

No. 20100595.

Supreme Court of Utah.

July 6, 2012.

David W. Scofield, Thomas W. Peters, Salt Lake City, for appellants.

Alan L. Sullivan, James D. Gardner, Salt Lake City, for appellees.

Justice DURHAM authored the opinion of the Court, in which Associate Chief Justice NEHRING, Judge CONNORS, Judge DIREDA, and Judge EYRE joined.

On Certiorari to the Utah Court of Appeals

DURHAM, Justice:

INTRODUCTION

¶ 1 The plaintiffs in this case brought suit against a law firm and its attorneys for their role in executing civil discovery orders. The orders authorized entry into plaintiffs' home to seize electronic files from plaintiffs' computer and other electronic devices. The plaintiffs raised several causes of action against the law firm and its attorneys, largely based on the theory that the execution of the civil discovery orders constituted an illegal warrantless search.

¶ 2 The district court granted the defendants' motion for judgment on the pleadings, and the court of appeals affirmed. On certiorari review, we affirm on alternate grounds. We first hold that res judicata does not bar plaintiffs' claims. On an issue of first impression, we further hold that the judicial proceedings privilege extends to attorneys' conduct in representing their clients. As applied to this case, the privilege bars all of plaintiffs' claims. We therefore affirm the court of appeals' dismissal of plaintiffs' claims.

BACKGROUND

¶ 3 “Because we are reviewing a grant of a motion for judgment on the pleadings, this court accepts the factual allegations in the complaint as true; we then consider such allegations and all reasonable inferences drawn therefrom in a light most favorable to the plaintiff[s].” Francis v. State, 2010 UT 62, ¶ 3 n. 3, 248 P.3d 44 (internal quotation marks omitted).

¶ 4 Jamal S. Yanaki worked for Iomed, Inc. until January 17, 2002. On April 9, Iomed filed a complaint in the Third District Court alleging, among other things, that Yanaki had misappropriated trade secrets and breached his noncompete agreement. The complaint sought to enjoin Yanaki from disclosing trade secrets, contacting Iomed's clients, or otherwise engaging in competition with Iomed.

¶ 5 The day after filing suit, Iomed filed an Ex Parte Motion for Order to Conduct Immediate Discovery to Prevent the Destruction or Alteration of Evidence. Attorneys from Parr Waddoups Brown Gee & Loveless (Parr Brown) prepared the motion. On April 12, the district court granted the motion and issued an Order Allowing Immediate Discoveryto Prevent the Destruction or Alteration of Evidence (Order). First, the Order instructed Yanaki “to preserve and maintain without alteration all documents, including electronic media, in his possession or control relating to Iomed or any proposed product that is similar in concept to products offered by Iomed or being developed by Iomed.” Second, the Order directed the Salt Lake County Sheriff's Office to execute the Order at Yanaki's home and to (1) “take custody of each of the ... electronic storage media ... in the possession, custody or control of” Yanaki, (2) “supervise the copying of information from the [electronic storage media] by the computer expert provided by Iomed and to return such copy to Yanaki,” (3) “file the original [electronic files] under seal with the Court until they can be reviewed for privilege by Yanaki's counsel and analyzed by computer experts for content and evidence of deleted files,” and (4) “recover any Iomed confidential files in Yanaki's possession, custody or control ... and to file those documents under seal with the Court.” Finally, the Order described the process by which Yanaki could determine whether he had “objections that such files contain privileged, confidential or other information that would not be discoverable in this action.” Upon completion of Yanaki's review, the Order provided that “Iomed, its counsel, and its experts ... [would] have access to the [electronic files] to evaluate whether they provide evidence relevant to this matter and use in the prosecution of this matter.”

¶ 6 At approximately 8 a.m. on April 15, a Parr Brown attorney and a sheriff's deputy arrived at Yanaki's home to execute the Order. Yanaki was in Colorado, but Susan I. Moss, Yanaki's fiancée, was home and answered the door. The sheriff's deputy handed Moss copies of the summons, complaint, and Order. Upon reviewing the Order and seeing that it was directed to Yanaki, Moss advised the Parr Brown attorney and the sheriff's deputy that Yanaki was not home and that “she would not allow them in her home without Yanaki being present.”

¶ 7 When Moss initially refused to allow the attorney and deputy to enter the home, the sheriff's deputy responded, “We can kick in this door.” The Parr Brown attorney then “advised Moss that he was going to get a further legal process” and departed while the sheriff's deputy remained at the home. The attorney procured, ex parte, a Supplemental Order in Aid of Enforcement (Supplemental Order). The Supplemental Order “directed and authorized” the Salt Lake County Sheriff's Office to enter Yanaki's home and “use reasonable force, if necessary and appropriate under the circumstances, to execute the Order, including entering through unlocked doors, conducting a search of the premises, and detaining any person who resists enforcement of the Order.”

¶ 8 The Parr Brown attorney returned to the home and served the Supplemental Order on Moss, who then “stepped aside” as the attorney, deputy, and others entered the home to commence execution of the Order. A second sheriff's deputy then arrived at the home to detain Moss if she attempted to interfere with execution of the Order. “The property of Yanaki and Moss was then taken, without the consent of either,” to be reviewed pursuant to the Order.

¶ 9 In Iomed's suit against him, Yanaki did not challenge the validity or constitutionality of the Order and Supplemental Order. That suit later settled in 2005. Instead, in August 2003, Yanaki and Moss initiated this lawsuit against individual Parr Brown attorneys and, on a theory of respondeat superior, Parr Brown (collectively, Defendants).¹ In their first amended complaint, Yanaki and Moss raised seven claims based on the Defendants' involvement in Iomed's suit against Yanaki: (1) breach of settlement agreement,² (2) abuse of process, (3) invasion of privacy, (4) intentional infliction of emotional distress, (5) trespass to land and chattels, (6) conversion, and (7) civil conspiracy. Yanaki and Moss alleged that the Defendants conspired to commit each of the torts identified in claims two through six.

¶ 10 The complaint's factual background primarily alleged that the Defendants conducted a search known to be illegal under both the U.S. and Utah Constitutions. The complaint therefore focused on explaining why the Order was not a lawful search warrant, and how the Supplemental Order further exceeded constitutional limits.

¶ 11 In support of their allegations of abuse of process, Yanaki and Moss alleged that the Defendants “sought a legal process for illegal purposes and with ulterior motivations.” Specifically, they alleged that “Iomed desired to misuse a legal process to cause an illegal raid ... as a form of message to its employees that they would be better off signing new agreements than leaving and risking their own homes being raided.”

¶ 12 The district court granted the Defendants' motion for judgment on the pleadings. The district court first reasoned that the Defendants “did everything that they could reasonably have been expected to do” in seeking to protect their client's concern with the risk of misappropriated trade secrets. The court concluded that the Order “was reasonable and necessary to preserve evidence,” stating that “[t]here are very few instances when this kind of discovery would be justified and this [was] one of them.” Further, the court noted that the Parr Brown attorney present when executing the Order “only did what the order authorized him to do.”

¶ 13 Because Yanaki had settled Iomed's suit against him, the court presumed that the Order was valid. The court further concluded that Yanaki “should have objected to the supposed illegality” of the Order in the course of Iomed's suit against him. The court noted that Moss “was not a party in [Iomed's suit against Yanaki] but she could have intervened in it.” The court therefore concluded that both Yanaki and Moss were collaterally estopped from pursuing any claim that the Order was illegal.

¶ 14 Finally, the district court concluded that the Defendants were acting within the scope of the judicial proceedings privilege. The court quoted Beezley v. Hansen for the proposition that the privilege “is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.” 4 Utah 2d 64, 286 P.2d 1057, 1058 (1955) (internal quotation marks omitted).

¶ 15 The court of appeals affirmed the district court's dismissal on alternate grounds. Moss v. Parr Waddoups Brown Gee & Loveless, 2010 UT App 170, ¶¶ 13–14, 237 P.3d 899. The court of appeals noted that “each of [p]laintiffs' tort claims depends upon a determination that the discovery orders were illegal,” id. ¶ 9, and that each of the plaintiffs' tort claims “represents a collateral challenge to the discovery orders,” id. ¶ 10. But the court of appeals noted that “[a]ny claimed error regarding the discovery orders at issue in this case could have been challenged or dealt with in the proceeding in which they were sought and obtained.” Id. Even though Moss was not a party to Iomed's suit against Yanaki, the court of appeals held that she was “similarly...