Puttuck v. Gendron

• Decision Date: 17 October 2008
• Docket Number: No. 20070731-CA.,20070731-CA.
• Citation: 2008 UT App 362,199 P.3d 971
• Parties: Paul PUTTUCK, an individual; and Paul Puttuck dba Breakthrough Construction, Plaintiffs and Appellants, v. Peter GENDRON; William Gendron; and Does 1 through 5, inclusive, Defendants and Appellees.
• Court: Utah Court of Appeals

199 P.3d 971

2008 UT App 362

Paul PUTTUCK, an individual; and Paul Puttuck dba Breakthrough Construction, Plaintiffs and Appellants, v. Peter GENDRON; William Gendron; and Does 1 through 5, inclusive, Defendants and Appellees.

No. 20070731-CA.

Court of Appeals of Utah.

October 17, 2008.

John F. Fay, Sandy, for Appellants.

Harold G. Christensen and Heather S. White, Salt Lake City, for Appellees.

Before THORNE, Associated P.J., BENCH, and McHUGH, JJ.

OPINION

BENCH, Judge:

¶ 1 Plaintiffs Paul Puttuck and Paul Puttuck dba Breakthrough Construction appeal from the trial court's dismissal of their claims against Defendants Peter and William Gendron for wrongful use of civil proceedings, abuse of process, civil perjury, obstruction of justice, and civil conspiracy. Although the trial court improperly considered evidence from another trial in its ruling, Plaintiffs' complaint fails to state any claim for which relief could be granted and was properly dismissed. Also, the trial court did not abuse its discretion by refusing to grant Plaintiffs leave to amend their complaint because they did not file a proper request. We therefore affirm.

BACKGROUND

¶ 2 At some point prior to 1999, Plaintiffs entered into a contract to construct a home in Deer Valley for the Gendrons. In February 1999, Plaintiffs sued the Gendrons and others for breach of contract and related claims. In response, the Gendrons asserted a $500,000 counterclaim against Plaintiffs. In his February 2000 deposition in that case, Peter Gendron testified that from March 1998 through February 2000, Plaintiffs' substandard work and negligence had cost the Gendrons $500,000 in mismanagement overruns, construction delays, and repairs. William Gendron was present at that deposition. Eventually, that lawsuit settled.

¶ 3 The Gendrons subsequently hired another construction company, Charis Construction, to work on the home. In 2002, Charis Construction and its principal, John Hale, brought suit against the Gendrons and others alleging, among other claims, breach of contract (the Charis Construction litigation). The Gendrons responded by asserting a counterclaim against Charis Construction and Hale. In November 2003, the Gendrons were deposed as part of this lawsuit. Peter Gendron testified that the Gendrons had incurred damages of $500,000 because of Charis Construction's substandard and negligent work. These damages were allegedly incurred during a time period running from January 1999 to August 2000—a period that overlapped the period associated with the Gendrons' counterclaim against Plaintiffs in the first suit. Peter Gendron gave the same testimony at trial. William Gendron was aware of Peter Gendron's deposition and trial testimony. A jury eventually awarded both Charis Construction and the Gendrons damages for the claims and counterclaim.

¶ 4 Following the jury trial in the Charis Construction litigation, Plaintiffs brought this suit against the Gendrons, asserting five claims: (1) wrongful use of civil proceedings, (2) abuse of process, (3) civil perjury, (4) obstruction of justice, and (5) civil conspiracy. The gist of these claims is that the Gendrons' counterclaim against Plaintiffs in the first lawsuit was knowingly false and that Peter Gendron gave false testimony in his deposition during that first lawsuit. Plaintiffs allege that Peter Gendron lied when he stated that the $500,000 in mismanagement costs forming the basis of the counterclaim were attributable to Plaintiffs rather than Hale and Charis Construction. Plaintiffs aver that William Gendron knew that Peter Gendron's testimony was false but did not discredit or disavow it, despite having opportunities to do so. Plaintiffs also claim that the Gendrons made the false counterclaim and submitted false testimony for the purpose of intimidating them, injuring their business reputation, and preventing proper prosecution of their claims. Plaintiffs allegedly suffered damages in the form of attorney fees expended to defend against the false counterclaim.

¶ 5 Rather than answering Plaintiffs' complaint, the Gendrons filed a motion to dismiss pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure. In that motion, the Gendrons argued that Plaintiffs' claims for perjury and obstruction of justice failed because Utah does not recognize a private right of action for such claims and that Plaintiffs failed to state a claim for wrongful use of civil proceedings, abuse of process, or conspiracy. Additionally, the Gendrons argued that Plaintiffs' claims were barred by the four-year statute of limitations contained in Utah Code section 78-12-25(3) because these causes of action accrued on the date of Peter Gendron's first deposition, which was more than four years before Plaintiffs brought suit in March 2007.

¶ 6 In response to the Gendrons' motion, Plaintiffs filed a memorandum in opposition. At the end of this opposing memorandum, Plaintiffs stated, "PLAINTIFFS REQUEST TO AMEND COMPLAINT if the Court finds the need for more information regarding the claims asserted." Plaintiffs did not file a formal motion for leave to amend, nor did they submit a proposed amended complaint or otherwise indicate to the trial court what changes in their pleadings they would make.

¶ 7 In its ruling on the Gendrons' motion to dismiss, the trial court stated that Plaintiffs' claims had no merit and failed "on many levels." The trial court held that Plaintiffs' claim for wrongful use of civil proceedings failed because the first litigation between the Gendrons and Plaintiffs resulted in a settlement, which did not constitute a "favorable termination" as is required to state a claim for that tort. The trial court dismissed Plaintiffs' claim for abuse of process because it was merely an attempt to relitigate the underlying building dispute and was therefore barred by collateral estoppel, and because the counterclaim against Charis Construction was not for the same costs and mismanagement associated with the counterclaim against Plaintiffs. The trial court dismissed Plaintiffs' civil perjury claim because Utah law does not recognize that cause of action. The court dismissed the claim for obstruction of justice because another jury had determined that the Gendrons' counterclaim against Hale and Charis Construction had merit and because the facts alleged did not demonstrate a possible cause of action. Additionally, the trial court held that the civil conspiracy claim failed because Plaintiffs had not alleged any meeting of the minds between the Gendrons and because knowledge of the falsity of another's testimony and failure to correct the testimony does not create a conspiracy. As a final part of its ruling, the court held that all of Plaintiffs' claims were barred by the statute of limitations.

ISSUES AND STANDARDS OF REVIEW

¶ 8 "Because the propriety of a 12(b)(6) dismissal is a question of law, we give the trial court's ruling no deference and review it under a correctness standard." St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991). "When determining whether the court properly granted a motion to dismiss, we accept the factual allegations in the complaint to be true and consider them and all reasonable inferences drawn therefrom in a light most favorable to the plaintiff." Hunsaker v. State, 870 P.2d 893, 897-98 (Utah 1993). On the other hand, "'[t]he standard of review of a denial to amend pleadings is abuse of discretion.'" Sulzen v. Williams, 1999 UT App 76, ¶ 12, 977 P.2d 497 (quoting Kasco Servs. Corp. v. Benson, 831 P.2d 86, 92 (Utah 1992)).

ANALYSIS

I. 12(b)(6) Dismissal

A. Wrongful Use of Civil Proceedings

¶ 9 Plaintiffs contend that the trial court erred in dismissing their claim for wrongful use of civil proceedings because their first litigation with the Gendrons ended in a settlement purportedly in Plaintiffs' favor. In order to state a claim for wrongful use of civil proceedings, it must be alleged that a party

"t[ook] an active part in the initiation, continuation, or procurement of civil proceedings against another ... [and] (a) he [or she] act[ed] without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings [we]re based, and (b) ... the proceedings have terminated in favor of the person against whom they [we]re brought."

Gilbert v. Ince, 1999 UT 65, ¶ 19, 981 P.2d 841 (third alteration in original) (quoting Restatement (Second) of Torts § 674 (1977)).¹ More specifically, a party bringing a claim for wrongful use of civil proceedings must show that "the underlying action resolved on the merits in his or her favor." Hatch v. Davis, 2004 UT App 378, ¶ 29, 102 P.3d 774 (emphasis added), aff'd in part and remanded in part, 2006 UT 44, 147 P.3d 383. Resolution on the merits in one party's favor can occur "by (1) the favorable adjudication of the claim by a competent tribunal, or (2) the withdrawal of the proceedings by the person bringing them, or (3) the dismissal of the proceedings because of his failure to prosecute them." Restatement (Second) Torts § 674 cmt. j (1977). "Whether a withdrawal or abandonment constitutes a final termination of the case in favor of the person against whom the proceedings are brought ... depends upon the circumstances under which the proceedings are withdrawn." Id. If a proceeding is withdrawn pursuant to an agreement of compromise, it does not qualify as a favorable termination for purposes of the tort of wrongful use of civil proceedings. See id. ("In determining the effect of withdrawal [of a civil proceeding] the same considerations are decisive as when criminal charges are withdrawn...."); Restatement (Second) of Torts § 660 (1977) ("A termination of criminal proceedings in favor of the accused other than by acquittal is not a sufficient termination to meet the requirements of a cause of action for malicious prosecution if ... the charge is withdrawn...