Alderink v. Barden

Alderink v. Barden

IN THE UTAH COURT OF APPEALS
 

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Mallory A. Alderink,

Plaintiff and Appellant,

v.

R. Christopher Barden,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040581-CA
 

F I L E D
(September 23, 2004)
 

2004 UT App 330

 

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Fourth District, Provo Department

The Honorable James R. Taylor

Attorneys: Ron D. Wilkinson, Orem, for Appellant

James S. Jardine and Gregory S. Roberts, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Orme.

PER CURIAM:

    Mallory A. Alderink appeals the order of the trial court granting R. Christopher Barden's motion to dismiss. This case is before the court on its own motion for summary disposition on the basis that the grounds for appeal are so insubstantial as not to merit further proceedings or consideration by the appellate court. See Utah R. App. P. 10.

    Alderink's Complaint alleges various claims based upon the filing of an affidavit drafted by an individual retained as an expert witness in a divorce proceeding. The Complaint was dismissed by the trial court, on the basis that the affidavit was protected by the judicial proceeding privilege.

    "[F]alse and defamatory statements are not actionable if they are protected by a legal privilege," such as the judicial proceeding privilege. Debry v. Godbe, 1999 UT 111,¶10, 992 P.2d 979. This privilege extends "not only to defamation claims but to all claims arising from the same statements." Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9,¶67, 70 P.3d 17 (dismissing claim for intentional infliction of emotional distress) (quotations and citations omitted). To establish the judicial proceeding privilege, the statements must be: "(1) made during or in the course of a judicial proceeding; (2) have some reference to the subject matter of the proceeding; and (3) be made by someone acting in the capacity of judge, juror, witness, litigant or counsel." Krouse v. Bower, 2001 UT 28,¶8, 20 P.3d 895.

    Alderink's Complaint establishes that each element of the judicial proceeding privilege is present here. The Complaint alleges that Barden, a person retained "to serve as an expert witness" in the divorce case by Alderink's ex-husband, "drafted, signed and submitted to the court a lengthy document which [Barden] purported to be an affidavit which outlined his psychological evaluation and diagnosis of Ms. Alderink." Thus, the first and third elements of the privilege are satisfied. See id. Alderink's Complaint also establishes that the second element is satisfied, because the affidavit clearly refers to the divorce proceeding.

    Therefore, each element of the three-part test is satisfied, and the affidavit submitted by Barden is protected by the judicial proceeding privilege. Accordingly, the trial court's order granting Barden's motion to dismiss is affirmed.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge