Salt Lake City v. Maloch
314 P.3d 1049
Utah Ct. App.
2013
Check Treatment

SALT LAKE CITY, Plaintiff and Appellee, v. Timothy Michael MALOCH, Defendant and Appellant.

No. 20120654-CA.

Court of Appeals of Utah.

Oct. 18, 2013.

2013 UT App 249

therefore, go beyond inference and are more a matter of conjecture and speculation. We conclude that there are no facts in dispute that would impact the “rights or liabilities of the parties” and that summary judgment was therefore appropriate.2 See (citation and internal quotation marks omitted).

II. Punitive Damages

¶ 10 McGinn next argues that the district court erred when it granted summary judgment denying McGinn‘s claim for punitive damages. Punitive damages may be awarded only if “it is established by clear and convincing evidence that the acts or omissions of the tortfeasor are the result of willful and malicious or intentionally fraudulent conduct, or conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others.” Utah Code Ann. § 78B-8-201(1)(a) (LexisNexis 2012). “‘Punitive damages are not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence.‘” (quoting Restatement (Second) of Torts § 908 cmt. b (1979)).

¶ 11 We conclude that there are no facts of record that would support a finding that the Cannons’ suit against McGinn went beyond an inadvertent mistake or error of judgment and was instead conduct of a malicious or knowing and reckless nature. Meanwhile, the Cannons have pointed to undisputed facts that show they based their mistaken belief of McGinn‘s connection to the debt on the shared business name—a name that matched up perfectly with McGinn‘s chosen profession—and that it was the only business by that name in Utah. They also provided evidence that their reasons for failing to dismiss the case with prejudice included mistake, miscommunication, and their inability to talk with their client for permission to take such action despite multiple phone calls to American Express that went unreturned.3 While such evidence may have supported a jury verdict of negligence, that is not the legal standard required for punitive damages. We conclude that it was proper for the district court to determine that the facts before it could not reasonably support a genuine issue as to malice, fraud, or knowing recklessness. We agree with the district court‘s assessment that “[McGinn‘s] labeling [the Cannons‘] actions ... as substantial harm, an extreme departure from ordinary care, or reckless disregard does not make it so.”

CONCLUSION

¶ 12 We conclude that it was proper for the district court to grant summary judgment to the Cannons, dismissing McGinn‘s claim of wrongful use of civil proceedings. We also conclude that the district court did not err when it determined that punitive damages were not, in any event, appropriate in this case.

¶ 13 Affirmed.

Richard G. Sorenson, Salt Lake City, for Appellant.

Padma Veeru-Collings and Steven L. Newton, Kaysville, for Appellee.

Judge JAMES Z. DAVIS authored this Memorandum Decision, in which Judge STEPHEN L. ROTH and Senior Judge RUSSELL W. BENCH concurred.1

Memorandum Decision

DAVIS, Judge:

¶ 1 Timothy Michael Maloch appeals from his conviction under Utah Code section 76-10-507, which states, “Every person having upon his person any dangerous weapon with intent to unlawfully assault another is guilty of a class A misdemeanor,” Utah Code Ann. § 76-10-507 (LexisNexis 2012). “Assault” in this context includes “a threat, accompanied by a show of immediate force or violence, to do bodily injury to another.” Id. § 76-5-102(1)(b). Maloch argues that Salt Lake City did not present sufficient evidence during the bench trial to show that he had the intent to commit an assault.2 We affirm.

¶ 2 “When reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court‘s judgment unless it is against the clear weight of the evidence, or if [we] otherwise reach[ ] a definite and firm conviction that a mistake has been made.” (alterations in original) (citation and internal quotation marks omitted). In other words, “we will only reverse if the trial court‘s findings were clearly erroneous.” .

¶ 3 Maloch first argues that the convenience store clerk (Clerk), whom he was convicted of assaulting with a knife, was not a reliable witness. Specifically, Maloch bases his argument on inconsistencies between Clerk‘s preliminary hearing testimony, her trial testimony, and her description to the responding police officers as to what color and type of pants Maloch was wearing, what kind of candy bar he stole, and whether she saw the candy bar sticking out of his pants pocket or just heard the crinkle of the wrapper. These inconsistencies are substantively irrelevant to the crime charged, and “[t]he mere existence of inconsistencies is not a sufficient basis to question credibility determinations,” (mem.). In any event, not only was the trial court apprised of these inconsistencies and the explanations behind them, but it was also in a better position to assess the credibility of the witnesses than is this court, see . Accordingly, we defer to the credibility the court necessarily attributed to Clerk for it to have reached the decision it did.3 See

¶ 4 Next, Maloch contends that his actions did not amount to a “show of immediate force or violence,” see Utah Code Ann. § 76-5-102(1)(b), because he displayed the knife when he was ten to fifteen feet away from Clerk and “retreating from the situation,” and because “[h]e never threatened to use the knife, never made any demands, never made any movement toward [Clerk], and never even pointed the knife at [her] or in her direction.” We disagree. Although Maloch‘s “proximity [to Clerk] has some relevance in determining the immediacy of the threat,” see , the surrounding circumstances support the trial court‘s finding that Maloch intended to threaten Clerk with “bodily injury” “by a show of immediate force or violence,” see Utah Code Ann. § 76-5-102(1)(b), when he removed the knife from his pocket, flipped out its blade, and called Clerk a “fucking bitch” as she followed him out of the store to retrieve the candy bar that she accused him of stealing. Cf. (considering the defendant‘s close proximity to the victim when he threatened the victim with a wrench and the remoteness of the location at which the threat was made as relevant factors in support of the defendant‘s aggravated assault conviction); (mem.) (per curiam) (affirming a conviction of aggravated assault based on evidence that the defendant brandished a knife and told the victims to “‘get out of his face‘“). The trial court‘s findings are not clearly erroneous. See . Accordingly, we affirm.

Notes

1
The Honorable Russell W. Bench, Senior Judge, sat by special assignment as authorized by law. See generally Utah Code Jud. Admin. R. 11-201(6).
2
Both improper purpose and a lack of probable cause are required to support a claim of wrongful use of civil proceedings. See . Because we conclude that summary judgment was proper based on McGinn‘s failure to set forth evidence tending to establish the improper purpose requirement—in the face of the Cannons’ evidence showing they had no improper purpose—we need not reach the parties’ arguments related to probable cause. The City argues that Maloch failed to satisfy his marshaling burden and requests that we affirm on that ground. See generally (explaining an appellant‘s marshaling burden). “There is considerable appeal to this invitation,” however, “[i]n this instance, ... we decline to affirm the trial court on those grounds” and instead “take up the merits of [Maloch‘s] sufficiency claim.” See .
3
As previously noted, American Express has settled with McGinn. The trial court‘s ruling, which is contained exclusively in the transcript of the bench trial, does not include a description of what evidence it relied on to reach its decision.
Read the detailed case summary