Bronson v. Jones

----ooOoo----

Tammy Bronson,
Plaintiff and Appellant,

v.

Lisa Ann Jones,

Defendant and Appellee.
MEMORANDUM DECISION

(Not For Official Publication)

Case No. 990997-CA

F I L E D
October 19, 2000 2000 UT App 284 -----

Third District, Salt Lake Department
The Honorable Timothy R. Hanson

Attorneys:
Bel-Ami de Montreux, Salt Lake City, for Appellant
James H. Woodall, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Davis.

BILLINGS, Judge:

Plaintiff-appellant Tammy Bronson appeals the trial court's grant of summary judgment against her and in favor of defendant-respondent Jones and its denial of Bronson's motion to amend her complaint. We affirm.

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(c). We review a grant of summary judgment for correctness. See Carter v. Milford Valley Mem'l Hosp., 2000 UT App 21,¶12, 996 P.2d 1076.

To establish alienation of affection, Bronson "must prove by clear and convincing evidence that it was the conduct of [Jones] that constituted a controlling cause of the injury to [Bronson's] consortium interests and that [Jones's] conduct was not just incidental to other causative factors that destroyed or damaged the marriage or conjugal relationship." Norton v. McFarlane, 818 P.2d 8, 15 (Utah 1991). As explained by the Restatement (Second) of Torts: In order for liability to arise for alienation of affections there must be active and affirmative conduct. Inaction is not enough to subject a defendant to the liability. There must be some act on the part of the defendant intended to induce or accomplish the results . . . . It is only when there is such active participation, initiative, or encouragement on the part of the defendant that he or she has in fact played a substantial part in inducing or causing one spouse's loss of the other spouse's affections, that liability arises. Restatement (Second) of Torts § 683 cmt. g (1977) (emphasis added).

The trial court interpreted Norton to require Bronson to identify the existence of efforts to alienate by Jones, aimed directly at Mr. Bronson, which were the controlling cause of the Bronsons' marital discord. It was undisputed that, while Jones had contacted Mrs. Bronson, Jones had not contacted Mr. Bronson in four years, except for one telephone call in 1998. Thus, the court determined that Jones did not actively pursue Mr. Bronson such that Mrs. Bronson could prove by clear and convincing evidence that Jones's conduct toward Mr. Bronson was the controlling cause of the marital discord.

Bronson argues that her affidavit, as well as the affidavits of her sisters-in-law Amy and Tina Bronson, raised material issues of fact with regard to Jones's conduct. However, while these affidavits do address Jones's alleged conduct toward Mrs. Bronson, they do not identify any alienation efforts aimed directly at Mr. Bronson. Thus, the trial court was correct in granting summary judgment in favor of Jones.

Bronson also argues the trial court abused its discretion in denying her motion to amend her complaint to plead invasion of privacy. Under the Utah Rules of Civil Procedure, once responsive pleadings have been filed, "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Utah R. Civ. P. 15(a). "The standard of review of a denial to amend pleadings is abuse of discretion." Kasco Serv. Corp. v. Benson, 831 P.2d 86, 91 (Utah 1992).

This court has held that "Utah courts should consider the following factors in determining whether to allow amendment: (1) the timeliness of the motion; (2) the justification for delay; and (3) any resulting prejudice to the responding party." Atcitty v. Board of Educ., 967 P.2d 1261, 1264 (Utah Ct. App. 1998) (citing Swift Stop, Inc. v. Wight, 845 P.2d 250, 253 (Utah Ct. App. 1992)).

We conclude that the trial court did not abuse its discretion in denying Bronson's motion to amend. First, Bronson attempted to set forth new issues in her amended complaint. Second, Bronson filed her motion after Jones had filed her summary judgment motion. Third, we conclude that Bronson was aware of the "new issues" raised in the amended complaint long before her motion was filed, and that there was no justifiable reason for the delay. We therefore affirm the trial court's denial of Bronson's motion to amend her complaint.
 
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
James Z. Davis, Judge