Christensen v. Drossos

Christensen v. Drossos

IN THE UTAH COURT OF APPEALS
 

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Dean Christensen,

Plaintiff and Appellant,

v.

Jim C. Drossos,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040310-CA
 

F I L E D
(April 14, 2005)
 

2005 UT App 170

 

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Third District, Salt Lake Department

The Honorable Frank G. Noel

Attorneys: Terry R. Spencer, Sandy, for Appellant

Michael Martin, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Orme.

GREENWOOD, Judge:

    Plaintiff Dean Christensen appeals the trial court's dismissal of his claims for defamation and intentional infliction of emotional distress against Defendant Jim C. Drossos on the grounds that his claims are barred by the applicable statutes of limitations and on their merits.(1) We affirm.

    "Under rule 12 of the Utah Rules of Civil Procedure, a motion to dismiss is proper only where it clearly appears that the plaintiff or plaintiffs would not be entitled to relief under the facts alleged or under any state of facts they could prove to support their claim." Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9,¶30, 70 P.3d 17 (quotations and citations omitted). "Because the propriety of a motion to dismiss is a question of law, we review for correctness, giving no deference to the decision of the trial court." Krouse v. Bower, 2001 UT 28,¶2, 20 P.3d 895.(2)

    Plaintiff argues that dismissal was improper because his claims were timely filed. We disagree. "Under Utah law, the statute of limitations begins to run when the cause of action accrues." Retherford v. AT&T Communications of the Mt. States, Inc., 844 P.2d 949, 975 (Utah 1992); see also Utah Code Ann. § 78-12-1 (2002). "A tort cause of action accrues when all of its elements come into being and the claim is actionable." Retherford, 844 P.2d at 975.

    Pursuant to Utah Code section 78-12-29(4), "an action may be brought within one year . . . for libel . . . [or] slander." Utah Code Ann. § 78-12-29(4) (2002). "[I]n libel cases, the one-year period of section 78-12-29(4) does not run until the libel is known or is reasonably discoverable by the plaintiff." Allen v. Ortez, 802 P.2d 1307, 1314 (Utah 1990). According to Plaintiff's complaint, filed on October 1, 2002, his defamation claim stems solely from an allegedly fraudulent proof of claim Defendant filed on March 18, 1998, as a creditor in Plaintiff's bankruptcy. As the debtor in the bankruptcy action, Plaintiff had access to the proof of claim when it was filed. Thus, Plaintiff's defamation claim is barred by section 78-12-29(4), as it was filed more than three years too late.

    Plaintiff's claim for intentional infliction of emotional distress is also untimely. Utah Code section 78-12-25(3) permits an action for intentional infliction of emotional distress to be brought within four years of actionability. See Utah Code Ann. § 78-12-25(3) (2002) ("An action may be brought within four years . . . for relief not otherwise provided by law."); see also Retherford, 844 P.2d at 975 (applying section 78-12-25(3) to determine the statute of limitations for the plaintiff's intentional infliction of emotional distress claim).

    In Retherford, the Utah Supreme Court noted that "[b]ecause of the nature of [an intentional infliction of emotional distress] cause of action, it can be difficult to determine when all its elements--intentional, outrageous conduct proximately causing extreme distress--have come into being. Of particular difficulty is the element of injury--extreme emotional distress." 844 P.2d at 975. However, the difficulty in determining when the emotional distress occurred is generally limited to situations "where a defendant subjects a plaintiff not to a single outrageous act, but to a pattern or practice of acts." Id. Here, as with Plaintiff's defamation claim, both the allegedly outrageous conduct and the emotional distress arise from a single act--Defendant's filing of a proof of claim on March 18, 1998. As such, Plaintiff needed to file his intentional infliction of emotional distress claim by March 18, 2002, rather than October 1, 2002. Accordingly, Plaintiff's intentional infliction of emotional distress claim is barred by Utah Code section 78-12-25(3). See Utah Code Ann. § 78-12-25(3).(3)

    In sum, the trial court's dismissal of Plaintiff's claims for defamation and intentional infliction of emotional distress is affirmed because Plaintiff's claims were not timely filed.(4)

______________________________

Pamela T. Greenwood, Judge

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WE CONCUR:

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge

1. Defendant suggests that we lack jurisdiction over this case because it occurred in a federal bankruptcy proceeding. However, other than bald citations to the Bankruptcy Code, Defendant cites no authority supporting this proposition, thereby impermissibly "shift[ing] the burden of research and argument to [this] court." State v. Thomas, 961 P.2d 299, 305 (Utah 1998). Therefore, we decline to address this issue because it is inadequately briefed.

2. Plaintiff briefly argues that the motion to dismiss should have been treated as a motion for summary judgment, under rule 12(b) of the Utah Rules of Civil Procedure, because Plaintiff included matters outside the pleadings with his reply to Defendant's motion to dismiss. See Utah R. Civ. P. 12(b). However, because there is nothing in the trial court's order that suggests that it considered anything but the pleadings in granting Defendant's motion to dismiss, we conclude that the trial court properly considered this matter under rule 12(b). See id.

3. Plaintiff also argues that the statutes of limitations for both of his claims were tolled by the automatic stay provisions of the Bankruptcy Code. See 11 U.S.C.A. § 362(a) (2004). This argument is without merit because the automatic stay only applies to actions "against the debtor." Id. § 362(a)(1); see also Brown v. Armstrong, 949 F.2d 1007, 1009-10 (8th Cir. 1991) (concluding that "the [Bankruptcy] Code's automatic stay does not apply to judicial proceedings . . . that were initiated by the debtor").

4. Because we affirm the trial court's decision to dismiss Plaintiff's claims as untimely, we do not reach the trial court's alternative grounds for dismissal--that Plaintiff's claims fail on their merits. However, we note that, although not mentioned by either party, the judicial proceeding privilege bars both of Plaintiff's claims because Defendant's proof of claim was made during the course of a bankruptcy proceeding, referred to that proceeding, and was made by Defendant in the capacity of litigant or creditor to the bankruptcy action. See Krouse v. Bower, 2001 UT 28,¶8 20 P.3d 895 ("The general rule is that judges, jurors, witnesses, litigants, and counsel involved in a judicial proceeding have an absolute privilege against suits alleging defamation."); Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9,¶67, 70 P.3d 17 (applying the judicial proceeding privilege to a claim for intentional infliction of emotional distress).