476 P.3d 542
Utah Ct. App.2020Background
- In 2009 a contractor ruptured a water line, damaging Eskamani’s café; the contractor’s insurer, Auto‑Owners, paid partially and the contractor was sued by Eskamani (Flooding Suit).
- Eskamani publicly criticized Auto‑Owners; the contractor offered a Rule 68 settlement in the Flooding Suit conditioning settlement on Eskamani ceasing contact/publication about Auto‑Owners; she rejected it.
- Auto‑Owners sued Eskamani in 2012 for defamation, defamation per se, and tortious interference (Defamation Suit). Eskamani filed a limited summary‑judgment motion challenging only opinion/privilege and related elements; that motion was denied. Later she won summary judgment on Auto‑Owners’ defamation‑per‑se claim; Auto‑Owners did not appeal.
- Eskamani then sued Auto‑Owners (Tort Suit) for wrongful use of civil proceedings and abuse of process; discovery later produced 715 pages on the eve of cutoff tied to Auto‑Owners’ advice‑of‑counsel defense.
- The district court granted summary judgment to Auto‑Owners on both tort claims and denied Eskamani’s discovery‑sanctions motion; Eskamani appealed.
Issues
| Issue | Plaintiff's Argument (Eskamani) | Defendant's Argument (Auto‑Owners) | Held |
|---|---|---|---|
| Whether interlocutory denial of Eskamani’s limited summary‑judgment motion in the Defamation Suit establishes probable cause for the whole suit (wrongful use of civil proceedings) | Denial of her limited motion did not decide all elements and thus cannot establish probable cause as a matter of law | The interim adverse‑judgment rule (as applied in Parrish) makes a defendant’s denial of a defensive summary‑judgment motion conclusive evidence of probable cause | Court rejected applying the interim adverse‑judgment rule here; reversed summary judgment on wrongful‑use claim and remanded |
| Whether filing the Defamation Suit (and related settlement offer and filing) constituted abuse of process (i.e., an independent willful act corroborating improper purpose) | The Rule 68 settlement condition (bar on commenting) and filing the unaccepted offer with the court were independent, improper, corroborating acts | Settlement terms and filing were ordinary litigation tools and not acts independent of legal process | Affirmed dismissal of abuse‑of‑process claim: settlement clause and filing were part of normal process and insufficient to satisfy the willful‑act requirement |
| Whether the district court erred in denying sanctions/excluding evidence for Auto‑Owners’ late production of 715 pages supporting its advice‑of‑counsel defense | Rule 26(d)(4) mandates automatic exclusion of untimely disclosed documents absent harmlessness or good cause; no predicate court order required | District court analyzed under Rule 37 and denied because no prior court order had been violated | Court held exclusion of the 715 pages is governed by Rule 26(d)(4); remanded for Rule 26 analysis and possible exclusion; affirmed denial re: striking the entire defense and barring attorney testimony (those fall under Rule 37) |
Key Cases Cited
- Gilbert v. Ince, 981 P.2d 841 (Utah 1999) (adopts Restatement test for wrongful use of civil proceedings and defines probable cause elements)
- Parrish v. Latham & Watkins, 400 P.3d 1 (Cal. 2017) (articulates interim adverse‑judgment rule for defensive summary‑judgment denials)
- Rusakiewicz v. Lowe, 556 F.3d 1095 (10th Cir. 2009) (settlement offers and ordinary litigation acts are not independent willful acts for abuse‑of‑process)
- Bennett v. Jones, Waldo, Holbrook & McDonough, 70 P.3d 17 (Utah 2003) (abuse‑of‑process requires ulterior purpose plus independent willful act; ulterior motive alone insufficient)
- Hatch v. Davis, 147 P.3d 383 (Utah 2006) (willful‑act/corroboration requirement for abuse‑of‑process claims)
- Anderson Dev. Co. v. Tobias, 116 P.3d 323 (Utah 2005) (abuse‑of‑process is disfavored; outlines tortious interference elements)
- Bodell Constr. Co. v. Robbins, 215 P.3d 933 (Utah 2009) (Rule 26 exclusion of undisclosed evidence is automatic unless harmlessness or good cause shown)
- Keystone Ins. Agency, LLC v. Inside Ins., LLC, 445 P.3d 434 (Utah 2019) (upholding exclusion under Rule 26(d)(4) without need for prior court order)
- Segota v. Young 180 Co., 470 P.3d 479 (Utah Ct. App. 2020) (same: late disclosure exclusion under Rule 26)
- Jacob v. Bezzant, 212 P.3d 535 (Utah 2009) (elements of defamation)
- Westmont Residential LLC v. Buttars, 340 P.3d 183 (Utah Ct. App. 2014) (defamation per se requires falsity and disparaging business‑related conduct)