2006 UT 44
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Julian Dean Hatch,
No. 20050078
Plaintiff and Respondent,
v.
F I L E D
Larry Davis,
Defendant and Petitioner.
August 11, 2006
---
Sixth District, Panguitch Dep't
The Honorable K.L. McIff
No. 980600010
Attorneys: Budge W. Call, Salt Lake City, for respondent
James C. Bradshaw, Ann Marie Taliaferro, Salt Lake
City, for petitioner
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1
This case brings to this court a long-standing feud
between two Boulder, Utah residents, Julian Dean Hatch and Larry
Davis.
¶2
Mr. Davis served as manager of the Anasazi State Park
for over thirty years until his retirement in 2001. In 1988,
Mr. Hatch moved to Boulder and sought employment at the park.
Mr. Hatch was not offered a job. This rejection apparently
triggered a ten-year campaign in which Mr. Hatch sought the
removal of Mr. Davis from his park management position and
Mrs. Hatch from her position as post-mistress of the town of
Boulder.
¶3
The acrimony between the men ultimately spilled over
into court when Mr. Hatch sued Mr. Davis for damages stemming
from an alleged assault outside the town post office. Mr. Davis
denied the allegation and counterclaimed. Mr. Davis claimed that
Mr. Hatch's conduct amounted to abuse of process, malicious

---

prosecution, and intentional infliction of emotional distress. A
jury rejected Mr. Hatch's assault claims. Although the trial
court dismissed Mr. Davis's malicious prosecution claim, the jury
found for Mr. Davis on each of his surviving causes of action.
Based on the jury verdict, the trial court entered judgment in
favor of Mr. Davis for $130,542.93. Mr. Hatch appealed.
¶4
The court of appeals held that, even though the trial
court dismissed Mr. Davis's malicious prosecution claim before it
could be sent to the jury, the trial court erred by failing to
dismiss the claim earlier, before trial. In a footnote, the
court of appeals commented that, even though the malicious
prosecution claim did not go to the jury, the trial court's
failure to dismiss it before the trial commenced "may have
allowed introduction of evidence and argument by counsel that
tainted the jury's consideration of the issues submitted to it."
Hatch v. Davis, 2004 UT App 378, ¶ 20 n.6, 102 P.3d 774.
ANALYSIS
I. THE COURT OF APPEALS' RULING ON THE CLAIM OF MALICIOUS
PROSECUTION UNDERMINES THE ENTIRE VERDICT
¶5
The court of appeals reversed outright the award based
on abuse of process and remanded Mr. Davis's claim for
intentional infliction of emotional distress for a new trial. We
granted certiorari to consider three questions: (1) whether
Mr. Hatch waived any entitlement to a jury instruction on his
statute of limitations defense to Mr. Davis's claim of
intentional infliction of emotional distress by failing to offer
a legally correct instruction on that issue, (2) whether
Mr. Davis was entitled to the benefit of an exception to the
"presence" rule for intentional infliction of emotional distress,
and (3) whether Mr. Davis sufficiently alleged that Mr. Hatch had
committed a "wilful act" as part of his claim for abuse of
process.
¶6
We postpone our analysis of these questions to consider
the implications of the court of appeals' dismissal of
Mr. Davis's malicious prosecution claim. Neither party sought
certiorari review of any issue relating to this cause of action.
The manner in which the court of appeals dispatched the malicious
prosecution claim leaves us with a sense of uncertainty about how
to interpret the court's decision on the claims we have agreed to
review.
¶7
It is unclear to us whether the court of appeals
intended that its reversal of the trial court on this issue
mandated a new trial on Mr. Davis's remaining claims. Because we
No. 20050078
2

---

can discern no other reason for the court of appeals to have
taken up the question of when Mr. Hatch's motion to dismiss
should have been granted, we conclude that the court contemplated
this portion of its holding to undermine the legitimacy of the
entire verdict.
II. CERTIORARI WAS IMPROVIDENTLY GRANTED ON THE STATUTE OF
LIMITATIONS ISSUE
¶8
Against this backdrop, we turn our attention to the
first issue on certiorari; the matter of Mr. Hatch's statute of
limitations defense to Mr. Davis's claim of intentional
infliction of emotional distress. Mr. Hatch took issue with two
trial court rulings relating to the statute of limitations.
First, he claimed that the trial court improperly denied his
motion for summary judgment on the statute of limitations issue.
Second, he also contended that the trial court erred when it
refused to permit his statute of limitations defense to go to the
jury. This is the only statute of limitations issue that
concerns us, but it injects an odd wrinkle into our analysis.
¶9
We granted certiorari to answer this question: Did
Mr. Hatch waive his right to a jury instruction when he failed to
submit for consideration a legally correct instruction? One
might read the court of appeals' opinion, perhaps even re-read
it, and still wonder where this question came from. The answer
is not immediately evident. We will therefore endeavor to chart
the route that led to the issue of waiver.
¶10
Mr. Hatch moved for summary judgment on his statute of
limitations defense. The trial court denied the motion.1 Before
the case was submitted to the jury, Mr. Hatch presented a statute
of limitations instruction to the trial court. The trial court
refused to give the instruction because it believed that there
was insufficient evidence to send the statute of limitations
issue to the jury. In the words of the court, "there is really
no legitimate statute of limitations issue."
¶11
The trial court did not, therefore, reject Mr. Hatch's
proposed statute of limitations instruction because it failed to
properly state the law, but rather because it concluded that
Mr. Hatch had failed to mount a sufficient statute of limitations
case to merit sending it to the jury. The trial court's decision
1 The court of appeals erred in its opinion as it was the
plaintiff's rather than the "defendant's motion for summary
judgment" that was denied. Hatch v. Davis, 2004 UT App 378,
¶ 45, 102 P.3d 774.
3
No. 20050078

---

not to instruct the jury on the statute of limitations was not a
ruling on the sufficiency of the contents of Mr. Hatch's proposed
instruction but is more accurately characterized as the grant of
a directed verdict against Mr. Hatch on his statute of
limitations defense.
¶12
The court of appeals appears to have interpreted the
events concerning the statute of limitations this way. Its
discussion of the statute of limitations never touched on the
content of Mr. Hatch's proposed instruction. Instead, the court
of appeals examined the record2 and concluded that it contained
facts sufficient to send the statute of limitations issue to the
jury. It was on this basis and not on the adequacy of
Mr. Hatch's proposed instruction that the court of appeals
reversed the trial court.3
¶13
Before this court, Mr. Davis has presented the contest
over the statute of limitations as a traditional jury instruction
skirmish. He claims that Mr. Hatch never properly objected to
the trial court's refusal to give his proposed instruction and
2 The incomplete record on appeal assembled by Mr. Hatch was
a topic of some interest before the court of appeals and also
before us. We note that, although the court of appeals rejected
Mr. Hatch's challenge to the sufficiency of the evidence
supporting the jury's verdict for Mr. Davis on his intentional
infliction of emotional distress claim, it nevertheless found the
record to be complete enough to find that a factual question was
present concerning the statute of limitations that required
reversal of the trial court's directed verdict against Mr. Hatch.
We leave for another day the issue of to what extent the
obligations imposed by Utah Rule of Appellate Procedure 11(e)(2)
apply to an appeal from a motion for a directed verdict.
3 We are somewhat confused about the source of the facts
relied on by the court of appeals to find that the trial court
erred when it declined to submit the statute of limitations issue
to the jury. The court appears to have been reviewing
Mr. Hatch's challenge to the trial court's denial of his motion
for summary judgment on the statute of limitations issue inasmuch
as it expressly affirmed the trial court's denial of that motion.
Did the court of appeals then restrict the scope of its review to
the record as it existed within the context of the motion for
summary judgment? We are unable to tell from the court's
opinion. Clearly, however, the trial record was the appropriate
record to review for the purpose of determining whether the trial
court properly refused to instruct the jury on the statute of
limitations.
No. 20050078
4

---

that he cannot therefore raise his complaint for the first time
on appeal. Mr. Davis attempts to bring novelty to what he
perceives, incorrectly in our view, as a generic fight over jury
instructions by framing the question as: Did Mr. Hatch waive any
entitlement he may have had to a jury instruction on the statute
of limitations because he failed to offer a legally accurate
instruction?
¶14
This question would have appeal to us as an issue of
first impression if it arose in a setting where a party objected
to the content of an erroneous instruction, where the objection
was based on an incorrect statement of law contained in that
party's competing instruction. This case presents a much
different scenario. As we have noted, the trial court's
rejection of Mr. Hatch's statute of limitations instruction was
incidental to its grant of a de facto motion for directed
verdict. The legal sufficiency of Mr. Hatch's proposed
instruction had little, if anything, to do with either the trial
court's ruling or the court of appeals' review of that decision.
¶15
We accordingly conclude that we acted improvidently
when we granted certiorari to consider the question of whether
Mr. Hatch waived his entitlement to a legally correct instruction
and decline to consider it.
III. UTAH RECOGNIZES THAT EXCEPTIONS TO THE "PRESENCE" RULE OF
THE TORT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS MAY
EXIST
¶16
We next take up the question of whether the evidence
presented at trial entitled Mr. Davis to the benefit of an
exception to the "presence" requirement for intentional
infliction of emotional distress. Generally, a person cannot
recover intentional infliction of emotional distress damages
based on outrageous conduct visited upon a family member without
being present when the conduct took place. Restatement (Second)
of Torts § 46(2) (1965). There are exceptions to this general
rule. Mr. Davis insists that those exceptions apply to the facts
surrounding Mr. Hatch's conduct directed at Mr. Davis's wife
outside of Mr. Davis's presence.
¶17
The court of appeals held that Mr. Davis was not
eligible for the exception to the "presence" rule and ordered
that on remand no evidence of Mr. Hatch's conduct toward
Mrs. Davis could be admitted to establish intentional infliction
of emotional distress. Our ability to analyze the merits of
Mr. Davis's claim to a "presence" rule exception is stymied,
however, because we do not have the benefit of a record from
5
No. 20050078

---

which to glean with sufficient confidence the evidence that might
bear on this issue.
¶18
The incomplete state of the record leaves us once again
perplexed over apparent inconsistencies within the court of
appeals' treatment of this issue. Just as we encountered
conceptual difficulty harmonizing the court of appeals' decision
to reject Mr. Hatch's sufficiency of evidence challenge because
he failed to comply with the requirements of Utah Rule of
Appellate Procedure 11(e)(2) with the court's willingness to
overlook the fragmentary state of the record when it reversed the
trial court's refusal to send Mr. Hatch's statute of limitations
defense to the jury, so we now struggle to justify joining the
court of appeals in forgiving Mr. Hatch's failure to provide a
complete record to aid our review of whether sufficiently
compelling circumstances exist to warrant application of an
exception to the "presence" rule.
¶19
In an effort to chart a course through these logical
crosscurrents, we take a closer look at Utah Rule of Appellate
Procedure 11(e)(2). Rule 11(e)(2) is titled "Transcript required
of all evidence regarding challenged finding or conclusion," and
states:
If the appellant intends to urge on appeal
that a finding or conclusion is unsupported
by or is contrary to the evidence, the
appellant shall include in the record a
transcript of all evidence relevant to such
finding or conclusion. Neither the court nor
the appellee is obligated to correct
appellant's deficiencies in providing the
relevant portions of the transcript.
Utah R. App. P. 11(e)(2).
¶20
The comments to the rule explain the consequences of an
appellant's submission of an incomplete record--"the court is
unable to review the evidence as a whole and must therefore
presume that the verdict was supported by admissible and
competent evidence," and that we "will presume the correctness of
the disposition made by the trial court." See notes to Utah R.
App. P. 11(e)(2) (citing Sampson v. Richins, 770 P.2d 998, 1002
(Utah Ct. App. 1989); State v. Rawlings, 829 P.2d 150 (Utah Ct.
App. 1992)).
¶21
Mr. Hatch admitted at oral argument that he did not
provide a complete record. As one member of this court aptly
noted during oral argument, Mr. Hatch "cherry picked" the
No. 20050078
6

---

testimony he provided to the court of appeals and this court.
Our review of the record confirms that the record is not
complete.
¶22
Rule 11(e)(2) reserves considerable discretion to an
appellate court to selectively apply its authority to dismiss an
appeal in whole or in part. A court's discretionary decision-
making is guided by the nature of the shortcomings in the record
as they relate to the issues to be decided. Thus, a complete
record might be required to fully consider some issues but not
others.
¶23
It is clear that a comprehensive record is necessary to
conduct a sufficiency of the evidence review. We therefore
readily understand why the court of appeals declined to consider
Mr. Hatch's sufficiency of the evidence challenge to the
intentional infliction of emotional distress verdict based on the
partial and selective record provided by Mr. Hatch. There is
simply no available method to determine whether or not Mr. Davis
presented sufficient evidence to demonstrate outrageous conduct
by Mr. Hatch to activate the exception to the "presence" rule.
We believe that a comprehensive record is necessary to reach a
conclusion that we can defend with conviction concerning whether
Mr. Hatch's behavior directed at Mrs. Davis qualifies as an
exception to the "presence" rule.
¶24
Were we to limit our inquiry to the question of whether
Utah recognizes any exceptions to the "presence" rule, no
reference to the record would be necessary because that issue is
a pure question of law. However, the question we accepted for
certiorari review is not a pure question of law. It asked
"[w]hether petitioner [Mr. Davis] demonstrated an exception to
the `presence' rule for intentional infliction of emotional
distress." So framed, the question assumes that we have
recognized an exception to the "presence" rule and asks us to
review whether the court of appeals erred when it concluded that
the facts presented by Mr. Davis in this case concerning
Mr. Hatch's treatment of Mrs. Davis did not fall within that
exception. This is a question of mixed law and fact. It is one
that requires a review of the record--the complete record. The
absence of a record to aid in discovering an answer to this
question is the situation that rule 11(e)(2) was created to
prevent. We therefore conclude that the court of appeals erred
when it excused Mr. Hatch's failure to provide a complete
transcript of the trial proceedings and foreclosed Mr. Davis from
presenting evidence at the new trial of his claim for intentional
infliction of emotional distress concerning Mr. Hatch's conduct
directed at Mrs. Davis.
7
No. 20050078

---

¶25
In most instances, the presumption of correctness of
the verdict would provide finality to an appeal flawed by the
presentation of an inadequate appellate record. That is not the
case here. As a consequence of the court of appeals'
unchallenged holding that the trial court's error in delaying its
dismissal of Mr. Davis's malicious prosecution claim tainted the
entire jury verdict, Mr. Hatch is entitled to a new trial on
Mr. Davis's claim of intentional infliction of emotional
distress, notwithstanding the defective state of his appellate
record.
¶26
The state of the law in Utah relating to the "presence"
rule will then be of some importance. We therefore take this
occasion to comment on it. We agree with the court of appeals
that conduct which occurs outside the presence of a plaintiff may
not contribute to a claim of intentional infliction of emotional
distress except under particularly compelling circumstances.
Hatch v. Davis, 2004 UT App 378, ¶ 52, 102 P.3d 774.
¶27
What sort of circumstances are sufficiently atrocious
to give rise to the presence exception? In considering whether
conduct triggers the exception, a finder of fact may consider
(1) the relationship of the target of the conduct to the
plaintiff, (2) the relationship between the person committing the
conduct and the plaintiff, and (3) the egregiousness of the
conduct. Finally, (4) a plaintiff must establish that the
conduct was undertaken, in whole or in part, with the intention
of inflicting injury to the absent plaintiff.
¶28
It is certain that the exact dimensions of the
exception to the "presence" rule will acquire greater clarity as
the law in Utah evolves. This much should be clear at the
outset: the bar is high. We agree that the Restatement
limitations are justified by a practical need to limit recovery
for emotional distress. The mental distress claim of a woman who
witnessed her husband's murder is more compelling--and perhaps
more genuine--than the same claim from a woman who learns that
her husband was murdered ten years earlier. See Teresa K.
Jensen, 30 Land & Water L. Rev. 231 (1995). The "presence" rule
has gained acceptance as a prudential check on a tort that the
law has rightfully singled out for strict management, "because of
the fear of fictitious or trivial claims, distrust of the proof
offered, and the difficulty of setting up any satisfactory
boundaries to liability." Restatement (Second) of Torts § 46(2)
(1965).
¶29
Still, the exception is an important one. It reflects
the law's recognition that certain conduct not committed in one's
presence can nevertheless be so injurious to an individual,
No. 20050078
8

---

despite the fact that he is not present to witness it, that our
societal values would be offended were we not to provide a remedy
at law. Unusually offensive behavior can and should trigger the
exception. An example of such an egregious case is R.D. v. W.H.,
875 P.2d 26 (Wyo. 1994), where a stepparent provided the means
for suicide to his stepdaughter, and she subsequently did commit
suicide outside of the presence of her husband and small child.
The Wyoming court found that the facts fell within the exception
to the "presence" rule because the plaintiffs were exposed to the
"immediate aftermath of the tragic results of Appellee's
outrageous conduct." Id. at 34. Thus, where the defendant's
actions are sufficiently egregious, he may be liable to a remote
plaintiff for intentional infliction of emotional distress. See
also H.L.O. v. Hossle, 381 N.W.2d 641 (Iowa 1986); Nancy P. v.
D'Amato, 517 N.E.2d 824, 827-28 (Mass. 1988).
¶30
On remand, the facts of this case may well satisfy the
presence exception. Mrs. Davis, so far as we know, had no
relationship with Mr. Hatch outside of her duties as post-
mistress. She was truly a noncombatant in the Davis-Hatch feud.
We leave to the fact finder the task to determine Mr. Hatch's
intent and whether his conduct was sufficiently egregious.
¶31
Like the Wyoming court, "[w]e believe that it is
generally a better practice to limit recovery for intentional
infliction of emotional distress to plaintiffs who were present
when the outrageous conduct occurred." R.D., 875 P.2d at 33. It
is a rare case which presents a factual situation demanding
special consideration regarding the presence requirement.
¶32
In sum, we support the rigorous scrutiny applied to
attempts to expand the reach of intentional infliction of
emotional distress. These limitations, such as the "presence"
rule, are entirely appropriate in view of the difficulties of
proof associated with claims of emotional distress and only the
most egregious cases will carve out even limited exceptions to
them. Yet the door to recovery remains open for the case where
conduct is so egregious that the plaintiff's circumstances cry
out for relief.
IV. ABUSE OF PROCESS REQUIRES AN ULTERIOR PURPOSE IN THE USE OF
PROCESS AND A CORROBORATING ACT
¶33
Finally, we take up the question of whether Mr. Davis
adequately alleged that Mr. Hatch committed a "wilful act" in
furtherance of an abuse of process. The court of appeals
concluded that Mr. Davis's pleading was insufficient, and we
agree.
9
No. 20050078

---

¶34
The misuse of legal process becomes actionable when it
is used "`primarily to accomplish a purpose for which it is not
designed.'" Hatch, 2004 UT App 378, ¶ 33 (quoting Gilbert v.
Ince, 1999 UT 65, ¶ 17, 981 P.2d 841). We have characterized the
"essence" of the tort of abuse of process to be "a perversion of
the process to accomplish some improper purpose." Crease v.
Pleasant Grove City, 30 Utah 2d 451, 455, 519 P.2d 888, 890
(1974).
¶35
In this case, there is no question that Mr. Davis
alleged that Mr. Hatch had instigated lawsuits against him for
the improper purpose of "engag[ing] in a campaign of hate and
terror towards the residents of Boulder, most specifically toward
Larry and Judy Davis," and "us[ing] the legal system in an
attempt to intimidate those with whom he deals."
¶36
While these allegations satisfy the "essence" of the
tort, they are not enough to fully make out a claim. The
elements of abuse of process reach beyond its essence. To state
a claim for abuse of process, a party must allege both "an
ulterior purpose" and "`a wilful act in the use of the process
not proper in the regular conduct of the proceeding.'" Hatch,
2004 UT App 378, ¶ 34 (quoting William Prosser, Law of Torts §
121 at 857 (4th ed. 1971)).
¶37
The focus of the "essence" of abuse of process is on
the tortfeasor's motive. But motive is not enough. The
tortfeasor must also have undertaken a "wilful act." It is easy
to slip into the conceptual trap of simply defining the "wilful
act" as the legal process that the tortfeasor pursues according
to his ulterior motive. Such a definition would, however, render
the "wilful act" requirement superfluous. Under it, a party
would only be required to link a bad motive to an event having
the hallmarks of legal process to state a claim.
¶38
This is what Mr. Davis has done in his pleadings. He
has yoked Mr. Hatch's courthouse misadventures to his ill-
intentioned crusade to intimidate the inhabitants of Boulder.
There is nothing in his allegations that distinguish Mr. Hatch's
conduct from process that is merely accompanied by spite, ill-
will, or any of the other less agreeable human emotions that
frequently attach themselves to court papers.
¶39
To satisfy the "wilful act" requirement, a party must
point to conduct independent of legal process itself that
corroborates the alleged improper purpose. Id. ¶ 35 (citing
Vallance v. Brewbaker, 411 N.W.2d 808, 810 (Mich. Ct. App.
1987)). Use of legal process with a bad motive alone "does not
defeat that right;" a corroborating act of a nature other than
No. 20050078
10

---

legal process is also necessary. Young v. Motor City Apartments
Ltd. Dividend Hous. Ass'n, 350 N.W.2d 790, 796 (Mich. Ct. App.
1984). It is this corroborating act that permits true legal
process to be branded "a perversion of the process." Id. For
example, the plaintiff's abuse of process claim in Early
Detection Center, PC v. New York Life Insurance Co. was dismissed
because the acts "alleged as the irregular acts" were no more
than "the filing of a `groundless' suit." 403 N.W.2d 830, 835
(Mich. Ct. App. 1986). In Templeton Feed & Grain v. Ralston
Purina Co., however, the court affirmed an abuse of process
judgment where the defendant used legal process to seize turkeys
at the height of the Thanksgiving season in order to force
payment of a debt. The payment demands communicated by the
defendant immediately after the seizure of the turkeys served as
the "wilful act." The payment demands were not integral to the
proceeding that resulted in the seizure of the turkeys, but they
collaborated the perverse character of those proceedings. 446
P.2d 152, 155 (Cal. 1968).
¶40
The "wilful act" requirement is consistent with the
notion that an "improper act may not be inferred from the
motive." The "wilful act" element can be understood as an
obligation imposed on the complaining party to allege that the
tortfeasor has confirmed through his conduct his improper
ulterior motive for employing legal process against the
plaintiff. In this respect, the "wilful act" element exists to
be in the service of the "ulterior purpose" core that makes up
the "essence" of abuse of process. It signifies that in the eyes
of the law sufficient grounds exist to believe that the
complaining party may be exposed to injury that may not
reasonably be redressed through the imposition of sanctions or
like measures within the litigation forum itself. Mr. Davis
alleged the existence of no act that met this standard.
Accordingly, we affirm the court of appeals.
CONCLUSION
¶41
We decline to rule on the statute of limitations claim,
since the issue does not present the question of law which was
initially presumed. On Mr. Davis's intentional infliction of
emotional distress claim, we remand for new trial. Finally, we
affirm the court of appeals' dismissal of the defendant's abuse
of process claim.
---
¶42
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring's
opinion.
11
No. 20050078

---