Foster v. Saunders

Foster v. Saunders

IN THE UTAH COURT OF APPEALS
 

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Lynn G. Foster,

Plaintiff and Appellant,

v.

Evelyn L. Saunders, Saunders & Saunders, Gary Couillard, and Cathie I. Foster,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040527-CA
 

F I L E D
(June 9, 2005)
 

2005 UT App 264

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Third District, Salt Lake Department, 030902227

The Honorable William B. Bohling

Attorneys: David W. Scofield, Salt Lake City, for Appellant

Amy Sorensen, Matthew Lalli, and Nathan E. Wheatley, Salt Lake City, for Appellees Evelyn L. Saunders and Saunders & Saunders

Gary R. Couillard, Salt Lake City, Appellee Pro Se

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Before Judges Davis, Greenwood, and Thorne.

PER CURIAM:

    Lynn G. Foster appeals the dismissal of his complaint. Three claims were dismissed on a motion pursuant to Utah Rule of Civil Procedure 12(b)(6), and two claims were dismissed on summary judgment.

    When reviewing whether a trial court properly granted a motion to dismiss for failure to state a claim, this court "accept[s] the factual allegations in the complaint as true and consider[s] them, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party." Coroles v. Sabey, 2003 UT App 339,¶2 n.1, 79 P.3d 974. Dismissal under rule 12(b)(6) is warranted "only in cases in which, even if the factual assertions in the complaint were correct, they provide no legal basis for recovery." Mackey v. Cannon, 2000 UT App 36,¶13, 996 P.2d 1081. The trial court's grant of a motion to dismiss is a question of law reviewed for correctness. See id. at ¶9.

    A plaintiff must allege sufficient facts to meet each element of a claim. See id. at ¶13. Additionally, the sufficiency of a complaint "must be determined by the facts pleaded rather than the conclusions stated." Franco v. Church of Jesus Christ of Latter Day Saints, 2001 UT 25,¶26, 21 P.3d 198 (quotations and citation omitted). Appellate courts "have stressed, and continue to hold, that mere conclusory allegations in a pleading, unsupported by a recitation of relevant surrounding facts, are insufficient to preclude" dismissal or summary judgment. Id. at ¶36 (citation omitted).

    Foster asserted the wrongful initiation, use and/or continuation of civil proceedings. He did not assert that the divorce action was wrongful. Rather, he asserted that particular arguments and issues raised in the divorce action were meritless and thus improper.

    The Utah Supreme Court has distinguished "the improper initiation of lawsuits [wrongful use of civil proceedings] versus the misuse of properly procured legal process for other than its intended purpose [abuse of process]." Gilbert v. Ince, 1999 UT 65,¶15, 981 P.2d 841. The wrongful use of civil proceedings "consists in instituting or maintaining civil proceedings for an improper purpose and without a justifiable basis." Id. at ¶19.

One who takes an active part in the initiation, continuation, or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if (a) he [or she] acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and (b) . . . the proceedings have terminated in favor of the person against whom they are brought.

Id. (quoting Restatement (Second) of Torts §674).

    It is clear that the initiation or continuation of "civil proceedings" is required as an element of this cause of action. See id. (noting wrongful use of civil proceedings consists of initiating civil proceedings without probable cause and for an improper purpose); Hatch v. Davis, 2004 UT App 378,¶22 n.8, 102 P.3d 774 (noting wrongful use of civil proceedings occurs when a plaintiff "initiates civil proceedings without a justifiable basis"). Foster has not alleged that any civil proceedings have been wrongfully instituted or maintained against him. The divorce proceeding is the only civil proceeding alleged, and there is no implication that the divorce was improperly initiated or pursued. The arguments put forth within the divorce are not themselves "civil proceedings." Thus, Foster has failed to state a claim for the wrongful initiation, use or continuation of civil proceedings and the trial court properly dismissed the claim.

    Foster also asserted two claims for slander of title, both based on an affidavit filed by Cathie Foster in the divorce action seeking appraisal of various properties in which, as the affidavit asserted, one or the other of the parties had an ownership interest. The trial court determined the statements constituting the alleged slander were privileged under the judicial proceedings privilege.

    Under certain circumstances, affirmative defenses may be raised in a motion to dismiss under 12(b)(6). See Tucker v. State Farm Mut. Auto. Ins., Co., 2002 UT 54,¶8, 53 P.3d 947. Affirmative defenses may be raised by a 12(b)(6) motion where the facts of the complaint raise the defense. See id. Foster's complaint raises the affirmative defense of judicial privilege, which was thus properly asserted by the motion.

    The judicial proceedings privilege is an absolute privilege protecting those involved in litigation against suits arising from statements made related to the litigation. See Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997). "The general rule is that judges, jurors, witnesses, litigants, and counsel in judicial proceedings have an absolute privilege against defamation." Id. "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.

    Foster concedes that the statements were made by a litigant and/or counsel during the course of a judicial proceeding--the divorce. He argues that the affidavit is not privileged, however, because it has no reference to the subject matter of the divorce. The requirement that a statement has some reference to the judicial proceeding is broadly construed. See id. at ¶12. "A statement need not be relevant or pertinent to the judicial proceeding from an evidentiary point of view for the privilege to apply." Id. (quotations and citation omitted). "Statements are relevant for purposes of the privilege if they simply have some relationship to the cause or subject matter involved." Id. (quotations and citations omitted). Furthermore, "doubts are resolved in favor of the statement having reference to the subject matter of the proceeding." Id. The determination of whether a statement has a sufficient reference to the subject matter of the litigation is a question of law. See Allen v. Ortez, 802 P.2d 1307, 1312 n.8 (Utah 1990).

    The affidavit, attached to the complaint and cited therein, is sufficient on its face to establish the privilege. The affidavit is relevant to an evidentiary issue in the action, that of property valuation to determine the distribution of the marital estate. The affidavit states, "in order to fully acquaint the [divorce] Court with the value of the various properties in which the parties have an interest, it is necessary to appraise the properties." It further states, "the foregoing properties should be appraised by a certified commercial real estate appraiser."

    The subject matter of the affidavit is how to provide evidence to the court to determine property value. It is clear that the subject matter of the affidavit refers to the subject matter of the divorce regarding property distribution. Thus, the affidavit alone establishes that it is within the scope of the judicial proceedings privilege. As a result, the trial court properly dismissed the claims for slander of title.

    Foster's other claims, for breach of duty and intentional interference with prospective economic relations, were dismissed on a summary judgment motion. Summary judgment is proper when "no issues of material fact exist and the moving party is entitled to judgment as a matter of law." Brown v. Wanlass, 2001 UT App 30,¶4, 18 P.3d 1137. We review the trial court's grant of a motion for summary judgment for correctness as a matter of law. See id.

    "Once the moving party has presented sufficient evidence to support the claim for judgment as a matter of law, the burden shifts to the non-moving party to provide evidence creating an issue of material fact." Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23,¶40, 70 P.3d 904. "When the moving party has presented evidence sufficient to support a judgment in its favor, and the opposing party fails to submit contrary evidence, a trial court is justified in concluding that no genuine issue of fact is present or would be at trial." Id. (quotations and citation omitted). "An affidavit that merely reflects the affiant's unsubstantiated opinions and conclusions is insufficient to create an issue of fact." Id. at ¶50.

    The motion for summary judgment was supported by affidavits establishing the circumstances of the filing of the tax return. Although Foster has not provided the transcript of the summary judgment hearing, it is apparent from the written record that the material facts regarding the tax return were not specifically controverted, thus making summary judgment appropriate. Although Foster denied some of the facts before the court, he did not submit contrary evidence.

    The uncontroverted facts establish that there was no relationship between Couillard and Foster that would give rise to a duty, and that the inaccuracies on the tax return were mistakes rather than intentional misstatements. With no duty established, Foster's claim for breach of duty fails. Also, because the errors were unintentional, his claim for intentional interference with economic relations fails. See Mumford v. ITT Commercial Fin. Corp., 858 P.2d 1041, 1043 (Utah App. 1993). Accordingly, the trial court properly granted summary judgment on these claims.

    Foster also asserts that the trial court erred in denying his motion for discovery under Utah Rule of Civil Procedure 56(f), which sought discovery regarding the relationship between Cathie Foster and Couillard. However, because the grounds for summary judgment were independent of the asserted reasons for discovery, further discovery would have no bearing, and thus, the trial court did not abuse its discretion in denying the motion.

    Affirmed.

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge