*1 dispositive.1 those issues to be Broadbent We do not see this as an “extraordinary grant- certification of the moved for case” that would allow us to reach the ing the town’s motion for immediate occu- merits of the claim. The issue damages, pancy denying and the order Broadbent’s only remaining issue before the trial granted motion to dismiss. The court certi- ruling court after on the condemnation fication. claim, relatively straightforward. is The parties and the courts could have saved Unfortunately, the order was not money by time setting damages 54(b). eligible under rule for certification submitting the entire case for review. This The suit consisted of one cause of town’s appeal improperly was taken. We interest in dismiss. action—to take an Broadbent’s property. Several issues were raised in claim, litigation of that HALL, C.J., connection with HOWE, C.J., Associate
including authority condemn, the town’s ZIMMERMAN,JJ., STEWART and concur. compliance statutorily the town’s man procedures,
dated and the amount of dam
ages to which Broadbent entitled. All disposed
of the issues were not order,
trial court’s all arose from the Thus,
same factual circumstances. the is of, dispose
sues the trial court did as to authority
whether town had to con complied demn and whether it with the SHARP, Drew A. applicable statutory procedures, were not Appellant, “separate eligible claims” were not certification to this court for review under ROSKELLEY, Dr. Maurice K. 54(b). rule Corp. See Kennecott v. Utah Appellee. Defendant and Comm’n, 814 P.2d State Tax 1104-05 (Utah 1991); Vantage Webb v. Income No. 870132. (Utah 1991), Properties, 818 P.2d also Supreme Court of Utah. day. issued this At the time of certifica tion, the town stated that it ready Sept. 12, 1991. proceed damages to trial on the issue of and noted it that would “seem a better use parties’
of the Court and the time to re remaining by allowing
solve this issue”
parties present appellate all issues to the agree.
court at one time. Mackay,
Our decision in disposes of this case. The order Bro- appealed eligible
adbent from was not 54(b). remedy
certification under rule improperly accepted appeals is dismis appeal. Mackay,
sal of the 817 P.2d at Mackay
325-26. We stated in that we “extraordinary appeal cases” treat an
right from unappealable taken order as permissive interlocutory appeal under Appellate
rule 5 of the Rules of Utah Pro cases, accept
cedure. Id. We such how
ever, only very under unusual circum
stances. issue, Koller, opinion (Utah 1991).
1. On this
our recent
see
in Cor-
nish Town v.
5 per or to hour. the $7.50 $10 Toward end 1985, May and Abbie defendant com- relationship. They began menced a social by golf playing together, which was fol- by outing lowed the next week an aat family, mountain cabin owned Abbie’s horseshoes, they played golfed, where went together, walking and kissed. Plaintiff outings was of these and did not aware them, object though he was unaware the parties relationship had kissed. As this months, succeeding into continued defen- engaged dant and Abbie sexual relations on several occasions. began
At time the Abbie her alcoholic treatment, plaintiff to defendant related thought that respon- he her alcoholism was they marital sible for difficulties were ex- however, periencing. deposition, In her Searle, George City, H. Lake for Salt Abbie alcoholism on the blamed the marital plaintiff appellant. and problems; unhappy she had been in the Craig Peterson, City, M. Salt Lake for years for marriage several but had re- appellee. defendant and plain- married mained so she would have raising young tiff’s their two assistance HOWE, Associate Chief Justice: major children. She ascribed as a reason plaintiff his her discontent with fre- Sharp Drew Plaintiff A. commenced this quent unemployment pro- and his failure to against action defendant Maurice K. Rosk- family. vide for his She looked forward to elley to damages recover for the defen- the time when her alcoholism could be alleged dant’s the affections brought under so she could control termi- wife, Sharp, and Abbie marriage. nate Abbie further asserted the criminal conversation with her. trial deposition plaintiff in her she and had that granted summary judgment in favor 1982; early divorce as as that discussed claims, plaintiff defendant on both as after 1983 divorce was discussed often appeals. month; as and that one once a on occasion Plaintiff and Abbie were married In an attorney. she contacted an affi- had parents are the of two minor children. opposition davit defendant’s motion 1984, began February 29-year-old In Abbie summary judgment, plaintiff denied employment part-time physi- on a as a basis any had that he and his wife had serious cian’s assistant defendant’s office. De- marital difficulties before she and defen- fendant, time, years old that about began dant He social married; he his are was also wife that had discussed divorce admitted parents April In of two minor children. five Abbie on four or occasions when was center Abbie entered a treatment upset; that her contact intoxicated combat chronic alcoholism. Defendant vol- attorney with was also at a time of untarily approximately $7,000 paid for her intoxication; she did and that thereafter treatment, paying wages well as her attorney again contact the nor- twenty-eight days she off work. relationship marriage mal resumed. center, Upon release from the she re- her defendant, July plaintiff, early at Abbie’s employment sumed on Sharps’ resi- request, next moved out of the a full-time basis. Within the few month, months, Later that also at Abbie’s gave her two successive dence. request, they marriage counselor. hourly pay in her rate of visited increases $7 “controlling only to cause” of the alienation of explained the visit explained her after- Id. at requirement of affections. comply awith she effect of and that this means that the causal alcoholic treatment care for outweighed up made mind before must have definitely her defendant’s conduct had causes, dis- marriage. of all other to end the combined effect visit *3 plaintiff that including the visit that he was aware the conduct of the closed at Second, having spouse. affair with defen- and the spouse an alienated his wife imposed he still to save their the that in requirement wanted we dant but 1985, 30, plaintiff filed to marriage. July damages proportionate the the On to make divorce, injured the divorce was trier of spouse, and decree of loss of the the fact for 26, Sep- quality December 1986. On the and entered on should consider duration of plaintiff marriage relation, including the instant filed the the extent tember defendant, cause against alleging genuine feelings of love and action to which affec- prior and a spouses affections of action for of tion existed between the to of action criminal conver- of defendant. second cause the intervention the summary Stewart, granted concurring dissenting The trial in a and sation. in favor of on both judgment opinion, defendant observed: action, undisputed ruling that the causes of Nevertheless, tort of alienation the of the presented to court demonstrated facts provide may proper remedy affections controlling the that defendant not for certain conduct that interferes with affec- plaintiffs of his wife’s cause of loss power- marital Sex is a the and that sexual intercourse between tions special in ful force. There are those place defendant not take Abbie and did status, power, of or positions authority the plaintiff had moved out of until after satisfy may illicitly who use sex divorce. family home and had filed for improper passions or otherwise own rulings. appeals, assailing both any ends. There are number of such separately. consider them We shall i.e., relationships, professors and stu-
dents; physicians
patients; psychia-
and
I. ALIENATION OF AFFECTIONS
trists, psychoanalysts,
psychologists
or
clients;
employers
employ-
and
and
and
Jacobsen,
P.2d
In
Nelson
power
positions
Those who
of
ees.
use
1983),
in-
(Utah
made an
this court
authority
purpose
obtaining
of
or
the
law
examination of the common
depth
produce
favors
an alienation
sexual
affections.
of action
alienation of
cause
in an
affections
the one
infe-
of
between
the
the defendant
spurned
invitation of
position
spouse,
rior
his or
abuse
action,
in
to abolish the cause of
that case
power
any legitimate
overreach
despite
objec
several
concluding that
the
cases,
the
may have.
such
conse-
it in
against
have been
tions which
raised
breakup
only the
of
quence
be not
from other states and
decided cases
perhaps
marriages, but
one or
also
two
of
in her dissent
Justice Durham this court
consequences
the future
unforeseeable
case,
served to
the cause of action
from such mar-
lives of
children
protect
relationship,
marital
which was
riages.
many
much
protection
to as
entitled
Nelson,
law
P.2d
1222. See Norton
which the
at
other relational
interests
(Utah 1991),
purpose
be served
ings. opinion to the in Howe’s I concur Justice not the tort
extent that it would abolish and for the reasons alienation of affections II. CONVERSATION CRIMINAL my opinion in in Norton v. stated Macfar my in the reasons set forth Eor lane, disagree I with Jus No. but opinion in concurring dissenting Nor the tort of criminal Howe’s view that tice 18, I 818 P.2d at would Macfarlane, v. ton to be rec should also continue conversation conversation, a criminal retain the tort of action in this ognized viable cause of as a How by Justice Hall. state, view shared Chief the tort of separate apart today ever, Although abolish I majority of the do alienation of affections. Therefore, upon relied Jus agree grounds action in Norton. es the support in summary judg Zimmerman granting order Durham and trial court’s tices votes, point, their on that on this issue is of their view of defendant ment favor mine, majority make a together with affirmed. of criminal conversation abolishing the tort independent tort. separate,
as a vote, Howe
My combined with Justice Hall, sustaining results
and Chief Justice viability the tort of alienation modified,
affections, tort is fully my opinion Nor-
explained more
ton Macfarlane.
DURHAM, (concurring and
dissenting): court’s affirming
I concur in the trial dismissing the criminal conversation
cause of action for the reasons stated 8, 15-17
Norton
(Utah 1991). However, the reasons set ip dissenting opin- my concurring and
forth *5 Norton, analysis I from the
ion in dissent holding part concerning I the tort of
alienation of affections.
ZIMMERMAN, (concurring
dissenting): part II
I concur in the result reached
abolishing criminal conversation the tort of part recogni- I’s continued
but dissent affections,
tion of the tort my
all for the reasons set forth in concur- dissenting opinion in
ring and Norton 1991). (Utah 22-23 dismissing
I would affirm the action below complaint entirety. in its NORTON,
Greg Appellee, Plaintiff and M.D., MACFARLANE, Ralph
J. Appellant.
Defendant
No. 880248.
Supreme Court of Utah.
Sept.