Kirkham v. Widdison , 447 P.3d 89 ( 2019 )

2019 UT App 97THE UTAH COURT OF APPEALS
JANAE A. KIRKHAM,
Appellant,
v.
JAMIE WIDDISON, HRB TAX GROUP, GRACE HANSEN, BONNY
WIDDISON, AND ALPINE GARDENS INC.,
Appellees.
Opinion
No. 20170655-CA
Filed June 6, 2019
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 150902366
Janae A. Kirkham, Appellant Pro Se
Suzanne Marelius, Attorney for Appellees Jamie
Widdison and Bonny Widdison
Sean N. Egan, Anthony J. Durone, and Timothy
West, Attorneys for Appellees HRB Tax Group and
Grace Hansen
Jonathan O. Hafen and Jeffery A. Balls, Attorneys for
Appellee Alpine Gardens Inc.
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGE DIANA HAGEN concurred. JUDGE MICHELE M.
CHRISTIANSEN FORSTER concurred, except that as to section VI,
she concurred only in the result.
MORTENSEN, Judge:
Kirkham v. Widdison
¶1 Appellant Janae A. Kirkham appeals—for the fourth
time 1—issues arising from claims that she alleges occurred
during the litigation of a petition to modify in a separate divorce
proceeding. Kirkham argues that the trial court erred by
(1) granting a rule 12(b)(6) motion to dismiss four of her claims,
(2) granting a rule 12(c) judgment on the pleadings dismissing
one of her claims, (3) dismissing her remaining claims on
summary judgment, (4) granting a motion to disqualify her
attorney, (5) granting a protective order under rule 37 of the
Utah Rules of Civil Procedure, and (6) awarding attorney fees
and costs pursuant to Utah Code section 78B-5-825. We affirm.
BACKGROUND
¶2 In 2011, Jamie Widdison sought a modification of his and
Kirkham’s divorce decree, which would, among other things,
allow him to retroactively claim a tax exemption for the parties’
minor child—whom Kirkham had previously claimed. During
those proceedings, Kirkham produced copies of her tax returns
for the years 2009, 2010, and 2011 (Tax Returns). According to
Kirkham’s second amended complaint (Complaint), Widdison
and his wife Bonnie Widdison (collectively, Widdisons) received
the Tax Returns from their attorney and used Alpine Gardens
Inc.’s fax machine to send those copies to HRB Tax Group and its
employee, Grace Hansen (collectively, HRB). HRB used the Tax
Returns to prepare pro forma returns (Pro Forma Returns) 2
1. See generally Widdison v. Kirkham, 2018 UT App 205, 437 P.3d
555 (appealing the remand trial regarding the 2012 modification
order); Kirkham v. McConkie, 2018 UT App 100, 427 P.3d 444(appealing the dismissal of her legal malpractice claim); Widdison
v. Widdison, 2014 UT App 233, 336 P.3d 1106 (appealing the trial
court’s 2012 modification order).
2. Pro forma is defined as “made or carried out in a perfunctory
manner or as a formality” or “based on financial assumptions or
(continued…)
20170655-CA 2 2019 UT App 97Kirkham v. Widdison
demonstrating the potential impact to Kirkham’s tax liability
without the child exemption. The Pro Forma Returns were
offered as exhibits in hearings before a commissioner and the
trial court.
¶3 Based on the Pro Forma Returns, the commissioner
determined that the parties’ collective tax liability would be
lowered by allowing Widdison to claim the child exemption.
Widdison proposed that if Kirkham filed the Pro Forma Returns,
he would pay Kirkham the difference in any tax that would be
assessed to her as a result. The commissioner, however, certified
the issue to the trial court when Kirkham would not agree. The
commissioner noted that Kirkham “had no explanation for her
position, particularly where it would cost her nothing.”
¶4 The trial court agreed with the commissioner that
Widdison would realize a greater tax benefit from the exemption
than Kirkham. On October 10, 2012, the trial court entered a
written order authorizing Widdison to claim the child exemption
for tax years 2009 through 2012. The court also ordered Kirkham
to sign and file the Pro Forma Returns as well as IRS Form 8332,
which authorized Widdison to claim the child exemption for
those years (Amended Returns). Finally, the court ordered
Widdison to reimburse Kirkham any difference in taxes owed by
Kirkham as a result of filing the Amended Returns. Kirkham
timely appealed the trial court’s order. 3
(…continued)
projections: such as . . . reflecting a transaction (such as a merger)
or other development as if it had been or will be in effect for a
past or future period.” Pro forma, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/pro%20forma [htt
ps://perma.cc/68K9-FQ3U].
3. Kirkham also brought numerous claims against the attorney
who represented her from 2007 to 2012 for conduct related to the
(continued…)
20170655-CA 3 2019 UT App 97Kirkham v. Widdison
¶5 While the modification appeal was pending, Kirkham
refused to sign and file the Amended Returns. 4 On December 11,
2012, the commissioner held an order to show cause hearing and
again ordered Kirkham to sign and file the Amended Returns.
Kirkham, again, refused. On January 10, 2013, the commissioner
ordered the clerk of the court to sign IRS Form 8332 on behalf of
Kirkham 5—effectively authorizing the Widdisons to file their
amended returns with the child exemption.
¶6 On January 18, 2013, Kirkham’s Amended Returns were
filed and received by the IRS. Kirkham alleged in her Complaint
that the “amended tax returns for the years 2009, 2010 and 2011
in [Kirkham’s] name were filed by [the Widdisons] and HRB.”
However, Kirkham conceded two points. First, after HRB argued
that it “did not and cannot file amended returns even if they are
final” because “[a]mended returns cannot be filed
electronically,” Kirkham conceded that “[HRB] didn’t file the
amended returns.” Second, when the court later asked Kirkham,
“Who filed the returns?” Kirkham replied, “Widdison did.” As
discussed below, infra ¶ 13, Kirkham was ultimately unable to
produce any evidence that Widdison, or any other defendant,
filed the returns.
¶7 In October 2014, this court vacated the modification order
and remanded with instructions to make additional findings on
(…continued)
modification proceeding. See McConkie, 2018 UT App 100, ¶ 2.
Kirkham’s claims were dismissed on summary judgment, and
this court affirmed. Id. ¶ 1.
4. The record does not indicate that Kirkham moved to stay the
modification while the appeal was pending.
5. The court clerk was authorized to sign IRS Form 8332 on
behalf of Kirkham under rule 70 of the Utah Rules of Civil
Procedure.
20170655-CA 4 2019 UT App 97Kirkham v. Widdison
whether shifting the child exemption was justified. See Widdison
v. Widdison, 2014 UT App 233, ¶ 21, 336 P.3d 1106. But prior to
the remand trial, “the parties fully resolved all claims arising
from their 2009, 2010 and 2011 tax returns,” and therefore the
court did not address that issue. On remand, the trial court
reinstated the original modification order and found that the
“allocation of tax dependent exemptions [was] consistent with
Utah law . . . [and] the ruling was an equitable, fair and
reasonable way to distribute the tax benefit in this case.” The
trial court found Kirkham in contempt of the 2012 modification
order for refusing to sign and file the Amended Returns and for
obstructing Widdison’s ability to comply with the order by
“frustrating [his] efforts to compensate her.” The court also
found that due to Kirkham’s contempt, Widdison “had to file his
amended tax returns on his own with an 8332 form in the
absence of [Kirkham’s] amended return being filed. This led to
[Kirkham’s] tax return for 2012 being seized. . . . [And] this [was]
due to [Kirkham’s] own lack of cooperation.” Finally, the court
awarded Widdison costs and attorney fees arising from
Kirkham’s contempt. 6
¶8 Kirkham filed this lawsuit against the Widdisons, HRB,
and Alpine (collectively, Appellees), alleging that Appellees’ role
in preparing the Pro Forma Returns and filing the Amended
Returns gave rise to various claims. Specifically, Kirkham raised
claims for tortious conversion against all Appellees (Claim 1);
civil conspiracy against all Appellees (Claim 2); invasion of
privacy against all Appellees (Claim 3); violation of the Utah
Consumer Sales Practices Act (UCSPA) against HRB (Claim 4);
violations of the UCSPA–Unconscionability against HRB (Claim
5); intentional infliction of emotional distress (IIED) against all
6. Kirkham again appealed, and this court affirmed. See
Widdison, 2018 UT App 205, ¶ 18 (affirming the trial court, but
remanding to recalculate attorney fees owed by Kirkham for the
prior appeal and remand trial proceedings).
20170655-CA 5 2019 UT App 97Kirkham v. Widdison
Appellees (Claim 6); and breach of fiduciary duty against HRB
and Widdison (Claim 7).
¶9 During discovery, HRB moved to have Kirkham’s
attorney disqualified. 7 HRB argued that Kirkham’s attorney had
obtained employment with HRB without disclosing that he
represented Kirkham, who intended to sue HRB. Further, HRB
argued that Kirkham’s attorney had taken at least one
confidential document from HRB during his employment, which
he intended to use in the suit against HRB. The trial court
granted HRB’s motion to disqualify, finding that (1) the
“likelihood of public suspicion or obloquy outweighs the social
interest in allowing [Kirkham’s attorney] to continue to
represent [her]”; (2) because Kirkham “has filed this action as a
Tier 3 action and seeks extensive punitive damages,” “it is likely
that [she] will be able to obtain substitute counsel”; and (3) “the
ongoing harm to public confidence and to [HRB] in allowing
[Kirkham’s attorney] to continue to represent [Kirkham]
outweighs the minimal harm to [her] in having to obtain
substitute counsel.”
¶10 HRB also moved the trial court to enter a protective
order governing discovery. Kirkham objected, but rather than
offering any alternative language to the proposed protective
order, she requested that the court not enter the order at all.
The trial court rejected Kirkham’s objection, finding that “the
order has procedure in it for designating documents as well
as objecting to designations” and that “the order as prepared is
an ordinary and customary protective order in commercial
cases.”
¶11 Next, the Widdisons moved pursuant to rule 12(b)(6) to
dismiss Claims 1, 2, 3, 6, and 7—or in other words, Kirkham’s
entire Complaint as against them. Simultaneously, HRB moved
pursuant to rule 12(b)(6) to dismiss Claims 1, 3, 6, and 7. The trial
7. Kirkham’s attorney was her father, Larry A. Kirkham.
20170655-CA 6 2019 UT App 97Kirkham v. Widdison
court granted both motions, excepting Claim 2 against the
Widdisons. In a seven page memorandum decision, the trial
court made the following conclusions with respect to each
dismissed claim:
• Claim 1 (Tortious Conversion)—that
“intangible property such as knowledge of
Kirkham’s tax status is not property that can be
converted”—and “[e]ven if such an intangible
interest were subject to conversion . . . Kirkham
was never deprived of its use.”
• Claim 3 (Invasion of Privacy)—that “Kirkham’s
counsel made clear that this claim is brought
based on misappropriation of name or likeness”
and “[s]he alleges no ‘intrinsic value’ of her
name” as required by Utah law. And Kirkham’s
argument that “every name has intrinsic value .
. . is simply legally incorrect.” (Cleaned up.)
• Claim 6 (IIED)—that the Widdisons’ conduct
and HRB’s conduct, as alleged, does not, as a
matter of law, constitute such extreme conduct
to state a claim for IIED. Further, Kirkham’s
allegations show that she views “the
modification proceeding as one long pattern of
[IIED]”—and under Utah law, “[a]n allegation
of improper filing of a lawsuit or the use of
legal process against an individual is not
redressable by a cause of action for [IIED].”
(Citing Bennett v. Jones, Waldo, Holbrook
& McDonough, 2003 UT 9, ¶ 66, 70 P.3d 17.)
• Claim 7 (Breach of Fiduciary Duty)—that
Widdison “is not a fiduciary for Kirkham . . . by
20170655-CA 7 2019 UT App 97Kirkham v. Widdison
virtue of his status as a law enforcement
officer.” 8 And similarly, HRB, “by contracting
with [Widdison] and or his attorney, did not
become fiduciaries to Kirkham.”
¶12 HRB then moved the trial court, pursuant to rule 12(c), to
dismiss Claims 2 (Civil Conspiracy), 4 (Violation of UCSPA), and
5 (Violation of UCSPA–Unconscionability). At the hearing for
this motion, HRB argued that it “did not and cannot file
amended returns even if they are final,” because “[a]mended
returns cannot be filed electronically.” Kirkham then conceded,
“[HRB] didn’t file the amended returns.” The court granted the
motion, finding that HRB did not violate “26 U.S.C. § 7216 or
any other IRS regulation or tax law in preparing the [Pro Forma
Returns],” nor did it violate “U.C.A. §§ 76-6-1102 or 76-6-1105 or
. . . the [UCSPA].” 9 And thus, “[t]here was not an unlawful overt
act committed by [HRB] upon which liability under a civil
conspiracy theory could rest, nor has [Kirkham] pleaded any
such act.” Further, the court found that Kirkham failed to
establish that HRB proximately caused her alleged damages,
because she had been ordered to file the Amended Returns in
the modification proceeding and refused to do so.
¶13 Finally, Alpine and the Widdisons moved under rule
12(c) to dismiss Kirkham’s remaining claims: Claim 2 (Civil
8. Kirkham makes no mention of the trial court’s treatment of
Claim 7—as against Widdison—in her opening brief, and
therefore we decline to address whether it was properly
dismissed. See Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903(“Issues . . . that were not presented in the opening brief are
considered waived and will not be considered by the appellate
court.” (cleaned up)).
9. Kirkham makes no mention of the trial court’s treatment of
Claims 4 and 5 in her opening brief, and therefore we decline to
address whether they were properly dismissed. See id.
20170655-CA 8 2019 UT App 97Kirkham v. Widdison
Conspiracy) against the Widdisons and all claims against
Alpine. 10 The trial court converted the rule 12(c) motion to one
for summary judgment, “giving [Kirkham] the opportunity to
support her claims with deposition testimony, affidavits or other
evidence.” Ultimately, the trial court granted the motion in favor
of the Widdisons, finding (1) “the Declaration of [Kirkham] . . . is
merely a restatement of the allegations in the Complaint, and is
not supported by personal knowledge on her part”; (2) “there is
no evidence that [Alpine or the Widdisons] or any other
defendant ever filed a tax return on behalf of [Kirkham] or
conspired with others to do so”; and (3) “there is no evidence
that a tax return was ever filed on behalf of [Kirkham] by anyone
other than [Kirkham].”
¶14 After all Kirkham’s claims were dismissed, HRB moved
for attorney fees under Utah Code section 78B-5-825. The court
concluded that Kirkham’s claims against HRB lacked merit and
were brought in bad faith and therefore, awarded HRB $61,464
in attorney fees.
¶15 Kirkham appeals.
10. Because of Alpine’s insignificant role in this case—the
Widdisons used Alpine’s fax machine to send copies of the Tax
Returns to HRB—the trial court disposed of all claims against it
pursuant to this rule 12(c) motion by simply stating that “all
Causes of Action against the Defendant Alpine Gardens, Inc., are
hereby dismissed with prejudice.” And while the trial court
dedicated no analysis to the disposal of claims against Alpine,
Kirkham has dedicated an equal paucity of analysis in her
opening brief. Therefore, we limit our review to claims against
HRB and the Widdisons as the appeal of the dismissal of claims
against Alpine are inadequately briefed. See Angel Inv’rs, LLC v.
Garrity, 2009 UT 40, ¶ 35, 216 P.3d 944 (“We have long held that
we have discretion to not address an inadequately briefed
argument.”).
20170655-CA 9 2019 UT App 97Kirkham v. Widdison
ISSUES AND STANDARDS OF REVIEW
¶16 Kirkham raises six issues on appeal. First, whether the
trial court erroneously granted HRB’s and the Widdisons’ rule
12(b)(6) motions to dismiss on Claims 1, 3, 6, and 7. “We review
a [trial] court’s decision to grant a rule 12(b)(6) motion to dismiss
a complaint for correctness, giving no deference to the [trial]
court’s ruling.” Van Leeuwen v. Bank of Am. NA, 2016 UT App
212, ¶ 6, 387 P.3d 521 (cleaned up).
¶17 Second, whether the trial court erroneously granted
HRB’s rule 12(c) motion for judgment on the pleadings on
Claims 2, 4, and 5. The same standard of review applies for a
rule 12(c) motion as for one under rule 12(b)(6), and therefore we
review the grant of a motion for judgment on the pleadings for
correctness, giving no deference to the trial court’s ruling. Tuttle
v. Olds, 2007 UT App 10, ¶ 6, 155 P.3d 893.
¶18 Third, whether the trial court erroneously dismissed
Claim 2 against the Widdisons, pursuant to rule 12(c). The
record shows, however, that this rule 12(c) motion was
converted into a rule 56 motion for summary judgment when
matters and evidence outside the pleadings were presented to
the trial court. Thus, “we review the [trial] court’s summary
judgment ruling for correctness and view all facts and
reasonable inferences in favor of the nonmoving party.” USA
Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 28, 235 P.3d 749 (cleaned
up).
¶19 Fourth, whether the trial court erroneously granted HRB’s
motion to disqualify Kirkham’s attorney. “The proper standard
of review for decisions relating to disqualification is abuse of
discretion.” Snow, Christensen & Martineau v. Lindberg, 2013 UT
15, ¶ 18, 299 P.3d 1058 (cleaned up).
¶20 Fifth, whether the trial court erroneously granted a
protective order governing discovery. A trial court’s grant of a
20170655-CA 10 2019 UT App 97Kirkham v. Widdison
protective order is reviewed for an abuse of discretion. Spratley v.
State Farm Mutual Auto. Ins. Co., 2003 UT 39, ¶ 8, 78 P.3d 603.
¶21 And sixth, whether the trial court erred by awarding
attorney fees and costs pursuant to Utah Code section 78B-5-825.
“The Utah Code requires a court to award reasonable attorney
fees in a civil action to the prevailing party if the court
determines that the action or defense to the action was without
merit and not brought or asserted in good faith.” Bresee v. Barton,
2016 UT App 220, ¶ 15, 387 P.3d 536 (cleaned up). “The without
merit determination is a question of law, and therefore we
review it for correctness. The bad-faith determination is a
question of fact and is therefore reviewed by this court for clear
error.” Id. (cleaned up).
ANALYSIS
I. Motions to Dismiss
¶22 “The purpose of a rule 12(b)(6) motion is to challenge the
formal sufficiency of the claim for relief, not to establish the facts
or resolve the merits of a case, and accordingly, dismissal is
justified only when the allegations of the complaint clearly
demonstrate that the plaintiff does not have a claim.” Van
Leeuwen v. Bank of Am. NA, 2016 UT App 212, ¶ 6, 387 P.3d 521(cleaned up). Further, “we accept the factual allegations in the
complaint as true” and we make all reasonable inferences in
favor of the non-moving party, Oakwood Village LLC v. Albertsons,
Inc., 2004 UT 101, ¶ 9, 104 P.3d 1226, but we do not accept a
complaint’s legal conclusions as true, Franco v. Church of Jesus
Christ of Latter-day Saints, 2001 UT 25, ¶ 26, 21 P.3d 198 (“The
sufficiency of . . . pleadings must be determined by the facts
pleaded rather than the conclusions stated.” (cleaned up)); see
also America West Bank Members, LC v. State, 2014 UT 49, ¶ 7, 342
P.3d 224 (“When reviewing a dismissal under Rule 12(b)(6), . . .
we accept the plaintiff’s description of facts alleged in the
complaint to be true, but we need not accept extrinsic facts not
20170655-CA 11 2019 UT App 97Kirkham v. Widdison
pleaded nor need we accept legal conclusions in contradiction of
the pleaded facts.” (cleaned up)).
¶23 The trial court dismissed Kirkham’s claims, pursuant to
rule 12(b)(6), for tortious conversion, invasion of privacy,
intentional infliction of emotional distress, and breach of
fiduciary duty against HRB and the Widdisons. We examine
each claim in turn.
A. Claim 1—Tortious Conversion
¶24 “A conversion is an act of willful interference with a
chattel, done without lawful justification by which the person
entitled thereto is deprived of its use and possession.” Bonnie
& Hyde, Inc. v. Lynch, 2013 UT App 153, ¶ 30, 305 P.3d 196(emphasis added) (cleaned up). The trial court concluded that
Kirkham’s conversion claim failed because “Kirkham’s tax status
is not property that can be converted” and “[e]ven if such an
intangible interest were subject to a conversion,” 11 Appellees
“plainly had lawful justification to use Kirkham’s tax
information . . . and did not deprive her of its use in any event.”
The court elaborated, “[t]ax returns and pro forma returns are
commonly exchanged and prepared in such actions. The whole
point of the modification as it related to the underlying tax
exemptions . . . necessarily requires examining at least Kirkham’s
tax liabilities, with and without the exemption.” Lastly, the court
noted that “Kirkham could have sought protection on the use of
such information in the context of discovery in that action, but
did not do so.”
¶25 Kirkham acknowledges that “Utah Appellate Courts have
not explicitly recognized conversion as involving personal
information as a chattel.” Instead, her sole argument on appeal is
11. The court also noted, and we agree, that the precise issue is
not whether the Pro Forma Returns were subject to conversion
but whether the underlying information used in the returns was.
20170655-CA 12 2019 UT App 97Kirkham v. Widdison
that the personal information in her tax returns should be
considered property subject to conversion. In other words,
Kirkham urges us to expand the definition of a chattel to apply
to intangible property. We decline to do so. But even if we did,
Kirkham has failed to demonstrate that Appellees were not
legally justified in using that information or that they deprived
her of the use of that information.
¶26 Appellees were legally justified to use Kirkham’s tax
information for two reasons. First, Kirkham did not seek any
discovery classification or designation—such as “confidential”
or “attorney’s eyes only”—which would have limited its use by
Appellees. Second, Appellees used Kirkham’s tax information
merely to prepare the Pro Forma Returns in order to
demonstrate the impact of claiming, or not claiming, the
exemption at issue—a practice that is commonplace in this type
of litigation.
¶27 Finally, Kirkham has not argued that Appellees deprived
her of the use of her personal information. Even if Appellees’ use
of Kirkham’s information was improper, she was not precluded
from also using that information, and in fact she makes no
argument otherwise. We agree with the trial court that “[i]n a
sense, Kirkham appears to be arguing that she was entitled to
defy the trial court’s order and refuse to file the [A]mended
[R]eturns as ordered, and thus is entitled to sue for damages
resulting from their filing.” Therefore, we conclude that
Kirkham’s claim for tortious conversion was properly dismissed.
B. Claim 3—Invasion of Privacy
¶28 Kirkham’s invasion of privacy claim is based on
misappropriation of her name or likeness. 12 To prevail under this
tort theory, a party must show “(1) appropriation, (2) of
12. Kirkham conceded below that this claim was rooted in
misappropriation of name or likeness.
20170655-CA 13 2019 UT App 97Kirkham v. Widdison
another’s name or likeness that has some intrinsic value, (3) for
the use or benefit of another.” Stien v. Marriott Ownership Resorts,
Inc., 944 P.2d 374, 379 (Utah Ct. App. 1997) (cleaned up). The
trial court concluded that Kirkham’s allegations were not
sufficient to satisfy these elements. The court noted that Kirkham
“alleges no intrinsic value of her name” and that her argument
“that every name has intrinsic value” is “legally incorrect.”
Further, the court concluded that “[a]t the time the returns were
allegedly filed, Kirkham had been ordered to file amended
returns without claiming that exemption. Thus, there was no
intrinsic value in Kirkham’s name that was appropriated by the
supposed filing.” We agree.
¶29 On appeal, Kirkham dedicates a single paragraph to
support her position that the trial court erred in dismissing this
claim. She argues that her tax information is private and
confidential under federal law and that therefore Appellees had
“absolutely no right to amend those tax returns.” Again,
Kirkham’s argument misses the mark. First, Kirkham herself
produced the Tax Returns without any designation limiting their
use. Second, the Widdisons used the Tax Returns merely to
prepare the Pro Forma Returns for the court’s consideration.
Third, even if the Widdisons filed the Amended Returns,
Kirkham has not demonstrated that doing so was a
misappropriation of her name that benefitted the Widdisons. 13
And fourth, Kirkham fails to address the fatal defect in her
complaint: that she has not alleged that her name has an intrinsic
value. For these reasons, the trial court correctly dismissed
Kirkham’s invasion of privacy claim.
13. The Widdisons’ only practical benefit arose from the signing
and filing of IRS Form 8332, which transferred the child
exemption to them from Kirkham. IRS Form 8332, however, was
properly signed by the court clerk under rule 70 of the Utah
Rules of Civil Procedure. Thus, Kirkham cannot—nor has she
attempted to—demonstrate that filing the Amended Returns
benefitted HRB or the Widdisons.
20170655-CA 14 2019 UT App 97Kirkham v. Widdison
C. Claim 6—Intentional Infliction of Emotional Distress
¶30 To state a claim for IIED, a party must allege that the
defendant intentionally engaged in some conduct toward the
plaintiff, “(a) with the purpose of inflicting emotional distress,
or, (b) where any reasonable person would have known that
such would result; and his actions are of such a nature as to be
considered outrageous and intolerable in that they offend
against the generally accepted standards of decency and
morality.” Franco v. Church of Jesus Christ of Latter-day Saints, 2001
UT 25, ¶ 25, 21 P.3d 198 (cleaned up).
¶31 Kirkham’s allegations of IIED show that “she views the
modification proceeding as one long pattern of intentional
infliction of emotional distress.” That is, she alleges that a host of
perceived offenses in the course of the modification proceeding
amount to IIED. These perceived offenses included attempts to
reduce child support, hold her in contempt, and modify the
decree. Other alleged offenses included Appellees’
representations and actions taken in the course of litigation,
dragging the case out, rushing to get to hearings when
Kirkham’s attorney withdrew, rule violations, and discovery
abuses.
¶32 Indeed, on appeal, Kirkham furthers this line of reasoning
by arguing that “[s]he has been forced to deal with the IRS and
continues in her litigation with her ex-husband relating to those
amended tax returns” and “[f]ew if any people and certainly no
reasonable person can disagree that one cannot be allowed to
take and use another person’s tax returns and personal
information.” We deem these arguments unpersuasive for two
reasons. First, as we have already noted, Kirkham did not
designate her tax returns as confidential under a protective order
when she produced them in the modification proceeding.
Therefore, use of those returns to prepare the Pro Forma Returns
was not extreme and outrageous—especially given that the tax
exemption was one of the key issues at play in the modification
proceeding.
20170655-CA 15 2019 UT App 97Kirkham v. Widdison
¶33 Second, Kirkham’s argument on appeal is essentially a
recitation of her argument to the trial court below—that “she
views the modification proceeding as one long pattern of
intentional infliction of emotional distress.” Simply put,
“allegation[s] of improper filing of a lawsuit or the use of legal
process against an individual is not redressable by a cause of
action for [IIED].” Bennett v. Jones, Waldo, Holbrook & McDonough,
2003 UT 9, ¶ 66, 70 P.3d 17. Accordingly, the IIED claim was
properly dismissed.
D. Claim 6—Breach of Fiduciary Duty
¶34 Kirkham contends that HRB owed her a fiduciary duty
because “she was set up in HRB’s system as a client.” We reject
this argument and affirm the trial court on this point because it is
inadequately briefed in two aspects. First, Kirkham does not
provide a citation to the record—nor have we been able to find
one—in support of her position that she was set up in HRB’s
system as a client. See Angel Inv’rs, LLC v. Garrity, 2009 UT 40,
¶ 34, 216 P.3d 944 (declining to address a party’s argument on
appeal for lack of citations to the record). Second, even if she had
cited the record, Kirkham does not provide any legal authority
supporting her allegation that HRB became her fiduciary by
entering her information into their system. See id. ¶ 35. Nor does
she provide any reasoned argument to establish such a
precedent under the facts of this case. In other words, we are not
persuaded by the argument that HRB owed Kirkham a fiduciary
duty when they were retained by the Widdisons to prepare Pro
Forma Returns for the purpose of their litigation against
Kirkham.
II. Motion for Judgment on the Pleadings
¶35 Next, Kirkham contends that the trial court erroneously
granted HRB’s rule 12(c) motion on Claim 2 for civil
20170655-CA 16 2019 UT App 97Kirkham v. Widdison
conspiracy. 14 A claim for civil conspiracy requires “(1) a
combination of two or more persons, (2) an object to be
accomplished, (3) a meeting of the minds on the object or course
of action, (4) one or more unlawful, overt acts, and (5) damages
as a proximate result thereof.” Lawrence v. Intermountain, Inc.,
2010 UT App 313, ¶ 12, 243 P.3d 508 (cleaned up).
¶36 The trial court—without deciding on the first three
elements—concluded that Kirkham could not meet the final
two elements of civil conspiracy. Specifically, the court
concluded that HRB did not commit an unlawful or overt
act, nor was HRB the proximate cause of damages (if any)
that Kirkham sustained. We need not reach the issue of
whether HRB committed an overt unlawful act 15 because
we agree with the trial court that any alleged wrongdoing on
HRB’s behalf was not the proximate cause of the alleged
damages suffered by Kirkham, and this determination is fatal to
her claim.
¶37 Kirkham articulates an argument that damages arising
under this claim include “[h]er 2012 tax refund [being] seized
to pay for the tax liability created by the amended tax returns”
and her “[spending] a considerable amount of time dealing
with the IRS and still litigating with [Widdison].” These
damages, however, were proximately caused by Kirkham’s
conduct, not HRB’s. To be sure, the trial court, on remand from
the modification appeal, found that due to Kirkham’s refusal to
sign and file the Amended Returns, Widdison “had to file his
amended tax returns on his own . . . in the absence of
14. As noted, Claims 4 and 5 were also dismissed on this motion,
but Kirkham has failed to brief those claims, instead focusing
only on Claim 2. See supra ¶ 12 n.9.
15. We note, however, that in light of Kirkham’s concession that
HRB did not actually file her Amended Returns, we agree with
the trial court that no unlawful act was committed by HRB.
20170655-CA 17 2019 UT App 97Kirkham v. Widdison
[Kirkham’s] amended return being filed. This led to [Kirkham’s]
tax [refund] for 2012 being seized.” But the court found
that “this is due to [Kirkham’s] own lack of cooperation.”
If Kirkham would have filed the Amended Returns,
notified Widdison of the new amount that she owed, and
allowed Widdison to pay that amount to the IRS—as she
was ordered to do—her 2012 tax refund would not have
been seized. But due to Kirkham’s contemptuous behavior,
this did not happen. In other words, Kirkham was not entitled
to disregard the modification order or claim damages
arising from doing so. Therefore, this claim was properly
dismissed.
III. Motion for Summary Judgment
¶38 Next, Kirkham contends that the trial court erred by
dismissing Claim 2—for civil conspiracy—against the
Widdisons. Although Kirkham argues on appeal that this claim
was dismissed pursuant to rule 12(c), we note that the trial court
converted the motion to one for summary judgment, “giving
[Kirkham] the opportunity to support her claims with deposition
testimony, affidavits or other evidence.” Thus, we will “affirm
[the trial court’s] grant of summary judgment [if] the record
shows that there is no genuine issue as to any material fact and
that [the Widdisons are] entitled to a judgment as a matter of
law.” See Menzies v. State, 2014 UT 40, ¶ 30, 344 P.3d 581 (cleaned
up).
¶39 As an initial matter, Kirkham does not argue on
appeal that a genuine issue as to a material fact exists or that
she is entitled to judgment as a matter of law—rather, she
argues that we must take her allegations as true under rule 12(c).
We reject this argument because it ignores the conversion of
the rule 12(c) motion to one for summary judgment, where
a party cannot merely rest on its pleadings. Orvis v. Johnson,
2008 UT 2, ¶ 18, 177 P.3d 600 (“[O]n summary judgment . . . , the
nonmoving party . . . may not rest upon the mere allegations
or denials of the pleadings.” (cleaned up)).
20170655-CA 18 2019 UT App 97Kirkham v. Widdison
¶40 On summary judgment, Kirkham did produce a three-
page declaration. However, as the trial court noted, that
declaration “is merely a restatement of the allegations in the
Complaint, and is not supported by personal knowledge on
[Kirkham’s] part”; “there is no evidence that [Alpine or the
Widdisons] or any other defendant ever filed a tax return on
behalf of [Kirkham] or conspired with others to do so”; and
“there is no evidence that a tax return was ever filed on behalf of
[Kirkham] by anyone other than [Kirkham].” Accordingly,
because no genuine issue of material fact was created below, and
because Kirkham has failed to argue that summary judgment
was otherwise erroneously granted, we affirm the trial court on
this issue. 16
IV. Motion to Disqualify
¶41 The trial court granted HRB’s motion to disqualify
Kirkham’s attorney on the grounds of an appearance of
impropriety. In State v. Johnson, 823 P.2d 484 (Utah Ct. App.
1991), this court “articulated a two-pronged test for determining
on appeal whether an attorney should have been disqualified
from a case because of an appearance of impropriety.” Id. at 490.
“First, the court must find that there is at least a reasonable
possibility that some specifically identifiable impropriety
occurred because of the representation.” Id. (cleaned up).
“Second, the court must balance the likelihood of public
suspicion or obloquy against the social interest in allowing the
defendant to continue being represented by the lawyer of his or
her choice.” Id. (cleaned up).
¶42 Kirkham now argues that “[HRB] is not telling the truth.
[And] [a]t the very least [she] should have been afforded an
evidentiary hearing before her attorney was disqualified.” As an
16. Even if we were inclined to take Kirkham’s argument at face
value—that we must take her allegations as true—this claim still
fails for the reasons we articulate in section II.
20170655-CA 19 2019 UT App 97Kirkham v. Widdison
initial matter, these arguments do not address whether the trial
court abused its discretion in its application of the facts of this
case to the two-prong test set forth in Johnson. Further, we note
that Kirkham has not cited any legal authority—nor do we
believe that one exists—that entitles her to an evidentiary
hearing before her attorney can be disqualified. Finally, even if
we were to reach the conclusion that error was committed,
Kirkham has not argued that she suffered any prejudice as a
result. See Utah R. Civ. P. 61 (“The court at every stage of the
proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.”);
Covey v. Covey, 2003 UT App 380, ¶ 21, 80 P.3d 553. In any event,
we determine that the record supports the trial court’s
conclusion that Kirkham’s attorney was properly disqualified
under Johnson.
¶43 The record here demonstrates “a reasonable possibility”
that Kirkham’s attorney committed “some specifically
identifiable impropriety.” Johnson, 823 P.2d at 490 (cleaned up).
Kirkham does not dispute that her attorney gained employment
with HRB without disclosing that he simultaneously represented
Kirkham, who intended to bring this suit. Nor does Kirkham
dispute that her attorney obtained documents during his
employment at HRB that he intended to use in the current
litigation. 17 This conduct potentially violates at least three rules
of professional conduct—all of which could be grounds for
disqualification. See Utah R. Prof’l Conduct 4.4(a) (“In
representing a client, a lawyer shall not use . . . methods of
obtaining evidence that violate the legal rights of [third
parties].”); see also id. R. 8.4(c)–(d) (“It is professional misconduct
for a lawyer to . . . engage in conduct involving dishonesty,
fraud, deceit or misrepresentation [or to] engage in conduct that
is prejudicial to the administration of justice.”). Further, in light
17. Kirkham instead argues that obtaining HRB’s internal
documents was not prejudicial to HRB because that information
was discoverable.
20170655-CA 20 2019 UT App 97Kirkham v. Widdison
of the fact that Kirkham does not dispute that this conduct
occurred, we are hard-pressed to see how there is not at least a
reasonable possibility of impropriety. Thus, we conclude that the
trial court did not abuse its discretion in finding that Kirkham’s
attorney’s conduct satisfied the first prong of Johnson.
¶44 The record also demonstrates that the trial court properly
analyzed the second prong of Johnson—whether “the likelihood
of public suspicion or obloquy” outweighed “the social interest
in allowing the defendant to continue being represented by the
lawyer of his or her choice.” 823 P.2d at 490 (cleaned up). After
considering the parties’ submissions, the trial court concluded
that the “likelihood of public suspicion or obloquy outweighs
the social interest in allowing [Kirkham’s attorney] to continue
to represent [her].” And because Kirkham “has filed this action
as a Tier 3 action and seeks extensive punitive damages,” “it is
likely that [she] will be able to obtain substitute counsel.”
Therefore, “the ongoing harm to public confidence and to [HRB]
in allowing [Kirkham’s attorney] to continue to represent
[Kirkham] outweighs the minimal harm to [Kirkham] in having
to obtain substitute counsel.”
¶45 Kirkham makes no attempt to show that these findings
are clearly erroneous. Counsel’s obtaining employment at a
target defendant’s business would generally be perceived as
underhanded by the public. Moreover, Kirkham does not even
claim that she unsuccessfully tried to retain alternative counsel.
Accordingly, the trial court’s analysis was sound, and it was not
an abuse of discretion to disqualify Kirkham’s attorney.
V. Protective Order
¶46 Kirkham next argues that the trial court erroneously
granted a protective order governing discovery. Generally, a
“trial court has numerous tools it must employ to prevent
unwarranted disclosure of the confidential information,
including the use of sealing and protective orders.” Spratley v.
State Farm Mutual Auto. Ins. Co., 2003 UT 39, ¶ 22, 78 P.3d 60320170655-CA 21 2019 UT App 97Kirkham v. Widdison
(cleaned up). “The liberal use of these tools, and others inherent
in a trial court’s authority to govern the conduct of proceedings,
is a prudent and sufficient safeguard against overbroad
disclosure.” Id.
¶47 Here, HRB moved the trial court to enter a protective
order governing discovery. Kirkham objected, but rather
than offering any alternative language to the proposed
protective order, she requested that the court not enter the
order at all. The trial court rejected Kirkham’s objection, finding
that “the order has procedure in it for designating documents as
well as objecting to designations.” The court confirmed the
existence of these provisions on the record by asking HRB
whether the “order [had a] procedure in it for designating
documents as well as objecting to designations.” HRB replied,
“Yes.”
¶48 Kirkham now contends that the trial court erred
because the protective order precluded her from obtaining
discovery. She fails, however, to provide a single citation to
the record that would support her argument. Indeed, her
arguments on appeal show only that HRB objected to some
of Kirkham’s requests for production on the grounds of
relevance and privilege. For example, she argues that “requests
[that] HRB produce from its records the tax returns and
amended tax returns of [the Widdisons]” was objected to on the
grounds of relevancy and privilege. Whether this objection was
well-taken has nothing to do with whether a protective order
should have been entered. Kirkham does not explain how the
protective order impeded her ability to conduct discovery. Nor
has Kirkham provided any meaningful argument that the trial
court abused its discretion by entering what we view as a
standard, garden-variety protective order. We conclude that the
trial court acted well within its discretion. Moreover, Kirkham
does not identify any prejudice associated with the entry of the
protective order. Accordingly, Kirkham has provided no basis
for reversal.
20170655-CA 22 2019 UT App 97Kirkham v. Widdison
VI. Attorney Fees
¶49 Finally, Kirkham contends that the trial court erred in
granting HRB’s motion for attorney fees under Utah’s bad faith
attorney fees statute, which provides that “[i]n civil actions, the
court shall award reasonable attorney fees to a prevailing party
if the court determines that the action or defense to the action
was without merit and not brought or asserted in good faith.”
Utah Code Ann. § 78B-5-825 (LexisNexis 2018). 18 “To award fees
pursuant to this section, a trial court must determine both that
the losing party’s action or defense was without merit and that it
was brought or asserted in bad faith.” Fadel v. Deseret First Credit
Union, 2017 UT App 165, ¶ 30, 405 P.3d 807 (cleaned up).
A. Without Merit
¶50 Kirkham argues that the trial court erred in concluding
that her claims against HRB were without merit. “To determine
whether a claim is without merit, we look to whether it was
frivolous or of little weight or importance having no basis in law
or fact.” Id. ¶ 32 (cleaned up). In other words, “the bare existence
of a basis in law for a potential claim is not sufficient to make a
claim meritorious. Rather, there must also be a factual basis for a
party’s claims apart from a . . . theoretical basis in law.” Id.(cleaned up).
¶51 Kirkham has not shown that the trial court erred in
concluding that her claims were without merit. Kirkham’s only
meaningful allegation against HRB was that “[t]he amended tax
returns for the years 2009, 2010 and 2011 in [Kirkham’s] name
were filed by . . . HRB.” This allegation, if true, certainly could
have given rise to a meritorious claim. Kirkham, however,
conceded that “[HRB] didn’t file the amended returns,” and she
18. Because the statutory provision in effect at the relevant time
does not differ in any material way from the provision now in
effect, we cite the current version of the Utah Code.
20170655-CA 23 2019 UT App 97Kirkham v. Widdison
instead argued that “Widdison did.” This concession is telling. If
Kirkham knew that HRB had not filed her Amended Returns, we
are left with only the allegation that HRB prepared Pro Forma
Returns to assist in the underlying modification proceeding—an
act that does not rise to the level of tortious or criminal conduct.
Further, even after Kirkham conceded this point, she refused to
drop her remaining claims against HRB. Thus, we conclude that
there was no factual basis for Kirkham’s claims against HRB and
therefore, those claims were frivolous as a matter of law.
B. Bad Faith
¶52 Kirkham contends that the trial court erred in finding that
she did not bring her claims in good faith. She argues that “there
was no evidentiary hearing and indeed no discovery” and “[t]he
amounts of fees and costs awarded clearly indicate the court has
not proceeded judiciously and has sought to limit [Kirkham’s]
access to the courts.” This assertion does not address the
findings that were the legal basis of the trial court’s ruling.
¶53 To satisfy the bad faith element under the statute, a court
“must find that the plaintiff (1) lacked an honest belief in the
propriety of the activities in question; (2) intended to take
unconscionable advantage of others; or (3) had intent to, or
knowledge of the fact that the activities in question will hinder,
delay or defraud others.” Fadel, 2017 UT App 165, ¶ 35 (cleaned
up). “On appeal, a trial court’s finding of bad faith may be
upheld despite a party’s claim that he or she held a subjectively
reasonable or honest belief in the propriety of the claims . . .
raised during the course of a case.” Id. (cleaned up). Thus, we
will affirm a finding of bad faith “when there is sufficient
evidence in the record to support a finding that at least one of
the three factors applies.” Id. (cleaned up).
¶54 Here, we conclude that the trial court’s bad faith finding
was not clearly erroneous for three reasons. First, as discussed
above, Kirkham conceded that HRB did not file the Amended
Returns. When Kirkham alleged that HRB did file the Amended
20170655-CA 24 2019 UT App 97Kirkham v. Widdison
returns, she clearly “lacked an honest belief in the propriety of
the activities in question.” See id. (cleaned up). Second,
Kirkham’s general allegation that she suffered damages as a
result of the Amended Returns being filed is in direct
contradiction to the ruling made in the modification proceeding
ordering Kirkham to sign and file the Amended Returns. See
Warner v. Warner, 2014 UT App 16, ¶¶ 35–37, 319 P.3d 711(affirming a finding of bad faith when a party prepared an order
that was “180 degrees different than what the court ruled”
(cleaned up)). Third, Kirkham, on appeal, has declined to
provide a single meaningful citation to the record 19 or otherwise
provide analysis or legal authority in support of her position.
Instead, Kirkham provides the conclusory statement that “[t]he
amounts of fees and costs awarded clearly indicate the court has
not proceeded judiciously and has sought to limit [her] access to
the courts.” Again, this assertion does not directly confront the
basis of the trial court’s ruling and fee award. Further, HRB
supported their motion below with assertions of bad faith
actions that Kirkham does not mention, let alone rebut. In failing
to directly address the basis of the trial court’s ruling and
additionally failing to confront the record evidence of bad faith,
we conclude that Kirkham has not established a basis for
overcoming the trial court’s bad faith finding—and therefore,
she has failed to meet her burden of persuasion on appeal. See
State v. Nielsen, 2014 UT 10, ¶ 41, 326 P.3d 645.
¶55 Next, we reject Kirkham’s argument that “[t]he amounts
of fees and costs awarded clearly indicate the court has not
proceeded judiciously and has sought to limit [Kirkham’s] access
to the courts.” As we have discussed above, supra ¶¶ 50–54, the
trial court’s award was justified under the bad faith attorney fee
statute. Furthermore, this conclusory statement does not provide
a basis for us to reverse by showing that the “amounts of fees
and costs awarded” were unreasonable or excessive. Turtle
19. Kirkham cites the record only to indicate that a full motion
cycle and ruling on attorney fees was made below.
20170655-CA 25 2019 UT App 97Kirkham v. Widdison
Mgmt., Inc. v. Haggis Mgmt., Inc., 645 P.2d 667, 671 (Utah 1982)
(“The amount to be awarded as attorney[] fees is generally
within the sound discretion of the trial court” and will be
“upheld . . . where the amount does not appear to be
unreasonable.” (cleaned up)). Therefore, besides affirming the
award in general, we decline to disturb the trial court’s finding
of the amount of fees awarded below.
¶56 Finally, HRB seeks an award of attorney fees incurred on
appeal. “Generally, when a party who received attorney fees
below prevails on appeal, the party is also entitled to fees
reasonably incurred on appeal.” Fadel, 2017 UT App 165, ¶ 38
(cleaned up). “This rule applies when the basis for attorney fees
in the trial court is the bad faith statute.” Id. (cleaned up). HRB
has successfully defended the trial court’s dismissal of
Kirkham’s claims, and the trial court awarded attorney fees
pursuant to Utah Code section 78B-5-825. Therefore, we grant
HRB’s request for an award of attorney fees on appeal.
CONCLUSION
¶57 We conclude that all of Kirkham’s claims were properly
dismissed, the trial court did not erroneously disqualify
Kirkham’s attorney, the trial court properly entered a protective
order, and HRB was properly awarded attorney fees. We further
award HRB’s costs and attorney fees on appeal. We remand to
the trial court only to determine HRB’s fees on appeal.
20170655-CA 26 2019 UT App 97