Nassi v. Hatsis , 2023 UT App 9 ( 2023 )

2023 UT App 9THE UTAH COURT OF APPEALS
PHYLLIS NASSI,
Appellant,
v.
MARK HATSIS,
Appellee.
Opinion
No. 20210009-CA
Filed January 20, 2023
Third District Court, Salt Lake Department
The Honorable Su Chon
No. 190905541
Richard D. Burbidge, Beau R. Burbidge, Carolyn J.
LeDuc, and Michael S. Henderson, Attorneys
for Appellant
Rodney R. Parker and Adam M. Pace, Attorneys
for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGE DAVID N. MORTENSEN and JUSTICE JILL M. POHLMAN
concurred. 1
TENNEY, Judge:
¶1 When Valter Nassi purchased a downtown condominium
in 2012, he was told that he could use a particular storage unit in
the basement. Over the next several years, Nassi placed tens of
thousands of dollars’ worth of clothes inside that unit. When
1. Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on this case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
Nassi v. Hatsis
Mark Hatsis moved into a different condominium in this complex
in 2018, however, he was told that this same storage unit was
assigned to him. Upon discovering the clothes inside, he had them
thrown away.
¶2 Nassi later sued Hatsis for conversion, trespass to chattels,
and intentional infliction of emotional distress. In conjunction
with those claims, he also asked for punitive damages. But the
district court subsequently granted summary judgment in
Hatsis’s favor on all of Nassi’s claims. Nassi appealed that
decision, and though Nassi passed away while this appeal was
pending, Phyllis Nassi, his wife, was substituted for him pursuant
to rule 38(a) of the Utah Rules of Appellate Procedure.2
¶3 For the reasons set forth below, we reverse the district
court’s decision to grant summary judgment on the conversion
and trespass to chattels claims, as well as on Nassi’s request for
punitive damages. But we affirm the district court’s decision to
grant summary judgment in Hatsis’s favor on the intentional
infliction of emotional distress claim.
BACKGROUND 3
¶4 Valter Nassi purchased a condominium in 2012, and the
condominium complex had a number of “storage spaces” in the
2. For clarity, we note that any references to “Nassi” in this
opinion refer to Valter Nassi, while any references to Phyllis Nassi
will be more particularly designated.
3. When reviewing a district court’s decision granting summary
judgment, we view the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party. See
Ockey v. Club Jam, 2014 UT App 126, ¶ 9, 328 P.3d 880. We
(continued…)
20210009-CA 2 2023 UT App 9Nassi v. Hatsis
basement that were used by its residents. According to the
covenants, conditions, and restrictions of the complex (the
CC&Rs), the complex has “no obligation to provide any unit
owner with [a] storage area other than [what] has been provided
within each unit.” But the CC&Rs also state that the “Board of
Directors” has “discretion” to “designate storage areas within the
condominium common areas.” And over time, the Board of
Directors’ exercise of this discretion was apparently something
short of formalized or clear. Instead, assignment for the various
storage units was passed down from owner to owner in
something akin to a loose word-of-mouth-based system.
¶5 When Nassi purchased his condominium in 2012, the
previous owner told Nassi that storage units 3 and 6 were his “to
use.” 4 Nassi accordingly began using those storage units, and he
continued to do so for the next several years. Of note, Nassi used
unit 3 to store a large amount of clothing, including Italian suits,
cashmere sweaters, and dress shirts. 5 In addition to their
monetary value, some of these items of clothing had sentimental
accordingly describe the facts in the light most favorable to Nassi,
as he was the nonmoving party.
4. When the previous owner was deposed as part of this case, he
said that he didn’t recall telling Nassi “anything about” unit 3,
and he further noted that “it wouldn’t have been [his] call to do
that anyway.” But because of the procedural posture, we assume
for purposes of this appeal that Nassi was indeed told by the
previous owner that unit 3 was his to use.
5. In his complaint, Nassi alleged that the items he’d put in unit 3
“include[d],” but were “not limited to, personal clothing.” In the
portions of the record provided to us on appeal, however, there’s
only a single passing reference to any item other than clothing.
Regardless, our decision doesn’t turn on a clothing/non-clothing
distinction, so for narrative reasons only, we’ll refer to the unit as
having contained items of clothing.
20210009-CA 3 2023 UT App 9Nassi v. Hatsis
value to him, including items that he’d brought from his native
country and an item that had belonged to his deceased brother.
¶6 During subsequent proceedings in this case, Nassi said that
he occasionally sprayed moth repellant in unit 3. But he also said
that his clothes were in “plastic containers” or boxes and that none
of them had been damaged by moths. And while he said that
unit 3 sometimes smelled like moth repellant as a result of his
spraying, he suggested that the clothes themselves didn’t smell. 6
For her part, his wife later said that she never noticed a smell “of
any kind” in unit 3 when she went into it to retrieve something
for Nassi.
¶7 Nassi secured the items that he had placed in unit 3 by
placing a lock on the door. He later estimated that the total value
of what he had inside was “not less than $40,850.”
6. During Nassi’s deposition, the following exchange occurred:
Q: But would you agree that the clothes, you know,
smelled like moth repellant?
A: Yeah, of course. I don’t know if the smell was
going inside the box. I don’t recall that I smell.
There’s something of an ambiguity in this answer (perhaps due to
a slight language barrier). But while Nassi’s initial response
(“Yeah, of course”) might be understood as an agreement that he
thought the clothes smelled, his two later statements (“I don’t
know if the smell was going inside the box” and “I don’t recall
that I smell”) seem to suggest that he didn’t think the clothes that
were inside the boxes smelled. As noted, since this case involves
review of a summary judgment ruling for which Hatsis was the
moving party, we must view this answer and all reasonable
inferences drawn therefrom in the light most favorable to Nassi.
20210009-CA 4 2023 UT App 9Nassi v. Hatsis
¶8 In October 2018, Mark Hatsis purchased condominium
#201 in this same complex. Hatsis was informed by the previous
owner that unit 3 “corresponded with” his condominium. When
he found the lock on the door, he again verified from the previous
owner that unit 3 was his to use. Hatsis then asked a handyman
to remove the lock for him. Once inside unit 3, Hatsis found the
clothes described above. Hatsis was “annoyed that [the previous
owner] didn’t leave a broom swept space for” him. Hatsis later
said that he inspected the items for “about ten minutes” and saw
no identifying information. Hatsis also said that he thought he
smelled mothballs, which he took as a sign that the items were
“old” and “toxic to touch.” As a result, he allegedly concluded
that the items belonged to a previous or deceased resident.
¶9 Hatsis instructed his housekeeper to “empty” unit 3 “by
the end of the day,” and he further “suggested” that she could
throw the items into a nearby dumpster. His housekeeper
complied with his instruction and threw the items away. In a
subsequent deposition, his housekeeper said that the space
smelled a “little bit” like mold when she cleaned it, but she also
said that she thought that “basement[s] always have some smell.”
¶10 Nassi soon discovered that his lock was gone and that the
items he’d stored inside the unit were gone too. After learning
what had happened, Nassi sued Hatsis for, among other things,
conversion, trespass to chattels, and intentional infliction of
emotional distress, and he also requested punitive damages. 7
¶11 During discovery, Hatsis produced documents from both
the condominium complex and the homeowners association that
purported to establish that Nassi’s condominium had been
assigned storage units 2 and 6, as well as that it was Hatsis’s
condominium (not Nassi’s) that had been assigned storage unit 3.
7. Nassi also brought claims for trespass to property and replevin,
but he later voluntarily dismissed those claims, and they are not
at issue in this appeal.
20210009-CA 5 2023 UT App 9Nassi v. Hatsis
Hatsis also produced a photograph of unit 3’s door, which
showed a note on the door with the words “Gorey 201” written in
black marker—an apparent reference to a prior owner of Hatsis’s
condominium who had the surname Gorey.
¶12 Hatsis later moved for summary judgment on all of Nassi’s
claims. With respect to the conversion and trespass to chattels
claims, Hatsis argued that he was entitled to dispose of the
property that he found inside unit 3 because the unit was assigned
to him. Hatsis further argued that he was not liable on these
claims because he “reasonably believed, based on his personal
inspection of the clothing, that the clothing was valueless, toxic,
and needed to be disposed of” since it had been abandoned.
¶13 With respect to Nassi’s intentional infliction of emotional
distress claim, Hatsis argued that his conduct was not
purposefully directed toward Nassi and that it was not
sufficiently outrageous as required to support such a claim. And
with respect to the request for punitive damages, Hatsis likewise
argued that his conduct was not sufficiently troubling to support
a punitive damages award.
¶14 After receiving Nassi’s response and hearing arguments
from both parties, the district court granted Hatsis’s motion for
summary judgment. In its ruling, the court initially determined
that there was no “dispute of material fact” that Nassi “did not
have a legal right to use” unit 3. The court made this
determination based on the records from the condominium
complex and the homeowners association, as well as the “sign on
the door” that Hatsis had found that had the name of a prior
owner of his unit. 8
8. In the proceedings before the district court, Nassi raised some
question about whether this note was actually on the door at the
time that Hatsis had the lock removed. Despite this, the district
(continued…)
20210009-CA 6 2023 UT App 9Nassi v. Hatsis
¶15 In part based on this determination, the district court then
granted Hatsis’s request for summary judgment on each of
Nassi’s claims. First, with respect to Nassi’s conversion and
trespass to chattels claims, the court held that Hatsis was entitled
to summary judgment because he “reasonably believed that the
clothing had been abandoned and that his apartment had sole use
of” unit 3. The court further opined that Hatsis was entitled to
summary judgment because his “actions may [have been]
reasonable under the circumstances.”
¶16 With respect to Nassi’s intentional infliction of emotional
distress claim, the court held that Hatsis “had no legal obligation
to track down the owner of clothing that smelled musty and
appeared old and abandoned.” In the court’s view, although
Nassi contended that Hatsis’s decision to “dispos[e]” of his
clothing was “very upsetting,” Hatsis was entitled to summary
judgment because his “actions were not extreme, outrageous,
intolerable, or atrocious.”
¶17 Finally, with respect to Nassi’s request for punitive
damages, the court concluded that because the intentional
infliction of emotional distress claim “was dismissed, there are no
grounds for punitive damages.” Seemingly elaborating further,
the court then recited the statutory standard, under which
punitive damages are warranted when it is “established by clear
and convincing evidence that the acts or omission[s] of the
tortfeasor are the result of willful and malicious or intentionally
court accepted Hatsis’s claim that the note was there as part of its
summary judgment ruling.
But summary judgment is warranted only when “there is
no genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a).
To the extent that the court resolved this disputed fact at this stage
in Hatsis’s favor, this was improper. As set forth below, however,
this dispute is immaterial to our ultimate resolution of the issues
raised on appeal.
20210009-CA 7 2023 UT App 9Nassi v. Hatsis
fraudulent conduct, or conduct that manifests a knowing and
reckless indifference toward, and a disregard of, the rights of
others.” (Quoting Utah Code § 78B-8-201(1)(a).) The court then
stated that Nassi was also required to show that Hatsis knew or
should have known that his “conduct would, in a high degree of
probability, result in substantial harm to another,” as well as that
his conduct was “highly unreasonable conduct, or an extreme
departure from ordinary care, in a situation where a high degree
of danger is apparent.” (Quoting Nguyen v. IHC Health Services,
Inc., 2010 UT App 85, ¶ 12, 232 P.3d 529.) Based on these
standards, the court ruled that although “[t]his was an
unfortunate situation,” Nassi “ha[d] no legal grounds for
recovery of punitive damages” because “he show[ed] no right to
use [unit 3]” and because Hatsis “reasonably believed the clothes
were left by a prior tenant of his apartment.”
¶18 Nassi timely appealed the court’s grant of summary
judgment. As noted, Nassi passed away during the pendency of
this appeal, and his wife has been substituted for him pursuant to
rule 38(a) of the Utah Rules of Appellate Procedure.
ISSUE AND STANDARD OF REVIEW
¶19 Nassi challenges the district court’s grant of summary
judgment to Hatsis. “We review the district court’s decision on
summary judgment de novo.” Potter v. South Salt Lake City, 2018
UT 21, ¶ 16, 422 P.3d 803 (emphasis omitted).
ANALYSIS
¶20 “Summary judgment is appropriate ‘if the moving party
shows that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.’”
Jessup v. Five Star Franchising LLC, 2022 UT App 86, ¶ 27, 515 P.3d
466 (quoting Utah R. Civ. P. 56(a)). A genuine dispute of material
fact does not exist if “reasonable jurors, properly instructed,
20210009-CA 8 2023 UT App 9Nassi v. Hatsis
would be able to come to only one conclusion.” Heslop v. Bear River
Mut. Ins. Co., 2017 UT 5, ¶ 20, 390 P.3d 314 (quotation simplified).
But if jurors “might come to different conclusions” after hearing
the facts, then summary judgment is unwarranted. Id. (quotation
simplified). Summary judgment is thus appropriate only when
“no reasonable factfinder could rule in the nonmoving party’s
favor.” Salo v. Tyler, 2018 UT 7, ¶ 30, 417 P.3d 581.
¶21 As explained below, we conclude that reasonable
factfinders could reach different conclusions regarding questions
of fact relevant to Nassi’s conversion and trespass to chattels
claims. But we also conclude that no reasonable factfinder could
find in Nassi’s favor on the intentional infliction of emotional
distress claim, so we affirm as to that claim. We further conclude
that the district court provided no valid legal basis for granting
summary judgment on the request for punitive damages. 9
9. Nassi also argues that the court erred in admitting documents
that purported to establish that unit 3 was assigned to Hatsis (not
Nassi), as well as by then concluding that there was no dispute
that unit 3 was assigned to Hatsis’s condominium.
We need not address these issues, however, because the
question of whether Hatsis was assigned unit 3 ultimately proves
immaterial to our determination that he was not entitled to
summary judgment on the conversion, trespass to chattels, and
punitive damages claims. As explained below, even if it was true
that Hatsis was assigned unit 3, a factfinder could still reasonably
determine that he was not entitled to dispose of the items in the
unit. And these issues also prove immaterial to our determination
that Hatsis was entitled to summary judgment on the intentional
infliction of emotional distress claim. As explained, regardless of
whether he was assigned unit 3, no reasonable factfinder could
determine that the high standard for an intentional infliction of
emotional distress claim has been met here.
20210009-CA 9 2023 UT App 9Nassi v. Hatsis
I. Conversion and Trespass to Chattels
¶22 Nassi first argues that the district court erred in granting
summary judgment on the conversion and trespass to chattels
claims. We agree.
¶23 “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.” Kirkham v. Widdison,
2019 UT App 97, ¶ 24, 447 P.3d 89 (quotation simplified). “A basic
requirement of conversion is that there be a wrongful exercise of
control over personal property in violation of the rights of its
owner.” Steinberg v. Cmty. Housing Services-Capitol Villa, Ltd., 2014
UT App 102, ¶ 11, 326 P.3d 673 (quotation simplified). Similarly,
trespass to chattels is understood to occur when one
“intentionally (a) dispossess[es] another of the chattel, or (b)
us[es] or intermeddl[es] with a chattel in the possession of
another.” Restatement (Second) of Torts § 217 (Am. L. Inst. 1965)
(quotation simplified). 10
10. In distinguishing between the torts of conversion and trespass
to chattels, some authorities understand conversion as
“entail[ing] a more serious deprivation of the owner’s rights such
that an award of the full value of the property is appropriate.” 75
Am. Jur. 2d Trespass § 14 (2022). Some courts have similarly held
that the difference turns on the degree of interference and the
scope of the available damages. See, e.g., Weatherly v. Hospice of
Lake Cumberland, Inc., No. 2018-CA-000248-MR, 2019 WL 1422848,
at *2 (Ky. Ct. App. Mar. 29, 2019); Morrow v. First Interstate Bank of
Or., NA, 847 P.2d 411, 413 (Or. Ct. App. 1993); Jones v. Boswell, 250
S.W.3d 140, 143 (Tex. App. 2008).
Nassi’s property was thrown out and thus lost entirely,
however, and the district court also did not base its summary
judgment ruling on any question relating to the available
damages. For purposes of this appeal, the viability of both claims
(continued…)
20210009-CA 10 2023 UT App 9Nassi v. Hatsis
¶24 Here, there’s no dispute that the property inside unit 3
belonged to Nassi and that Hatsis caused it to be thrown away.
As a result, there’s also no dispute that Hatsis completely
deprived Nassi of his ability to use and possess his own property.
These claims thus turn on whether Hatsis had any “lawful
justification” for doing so, Kirkham, 2019 UT App 97, ¶ 24
(quotation simplified), or, in other words, whether his actions
were “wrongful,” Steinberg, 2014 UT App 102, ¶ 11 (quotation
simplified).
¶25 Our prior cases have not given much substantive meaning
to the “lawful justification” and “wrongful” standards, at least in
a context like the one at issue here. In some cases, for example, the
dispute involved parties who had contracted with each other, so
the analyses of whether the action was justified or wrongful
rightly focused on whether the taking was allowed under the
contract. See, e.g., Bonnie & Hyde, Inc. v. Lynch, 2013 UT App 153,
¶¶ 30–33, 305 P.3d 196; Firkins v. Ruegner, 2009 UT App 167, ¶ 5,
213 P.3d 895. In another, a statute was seemingly applicable to the
situation, thus allowing the analysis to focus on whether the
action was statutorily permitted. See, e.g., Lawrence v.
Intermountain, Inc., 2010 UT App 313, ¶ 16, 243 P.3d 508.
¶26 Nassi and Hatsis had no contract, however, and neither
party has pointed to any statute that provides an answer to
whether Hatsis’s conduct was legally permitted. In arguing that
his conduct was justified, Hatsis instead invokes section 260 of the
thus turns on whether Hatsis had a right to dispose of the
property at all. Because of this, the parties on appeal have
addressed these two claims together, and we’ll follow suit.
Cf. Wint v. Alabama Eye & Tissue Bank, 675 So. 2d 383, 384–85 (Ala.
1996) (explaining that because “the difference between trespass to
chattels and conversion is immaterial when there is a wrongful
taking and carrying away of the property of another,” there was
“no need to treat the trespass to chattels and conversion claims
separately” (quotation simplified)).
20210009-CA 11 2023 UT App 9Nassi v. Hatsis
Restatement (Second) of Torts. There, the Restatement posits that
a person
is privileged to commit an act which would
otherwise be a trespass to a chattel or a conversion
if the act is, or is reasonably believed to be, necessary
to protect the actor’s land or chattels or his
possession of them, and the harm inflicted is not
unreasonable as compared with the harm
threatened.
Restatement (Second) of Torts § 260(1) (Am. L. Inst. 1965).
¶27 Utah’s appellate courts have not formally adopted this
Restatement section, nor have they recognized the existence of its
proposed privilege. We note, however, that other courts have
relied on this section when considering conversion or trespass to
chattels claims in situations analogous to this one—i.e., claims
that turned on what a landowner could lawfully do with items
that were owned by others and that had been left on the
landowner’s property. See, e.g., Sullivan v. Delisa, 923 A.2d 760,
770–71 (Conn. App. Ct. 2007) (applying this provision to a
landowner’s right to remove a bulldozer that had been left on her
property); Crawley v. Price, 692 N.W.2d 44, 50 (Iowa Ct. App. 2004)
(applying this provision to a homeowner’s right to dispose of
“valueless property” that had been left behind by a prior
occupant); Kirschbaum v. McLaurin Parking Co., 656 S.E.2d 683, 687
(N.C. Ct. App. 2008) (applying this provision to a parking lot
owner’s ability to boot a car left in the lot); Sears v. Summit, Inc.,
616 P.2d 765, 769–70 (Wyo. 1980) (applying this provision to a
landowner’s claim that he could forcibly detain privately owned
vehicles that were on his property).
¶28 In what we understand to be a nod to the general common
law, our supreme court has agreed that “Utah follows orthodox
criteria in applying the doctrine of conversion.” Benton v. State
Lands & Forestry, 709 P.2d 362, 365 (Utah 1985) (quotation
20210009-CA 12 2023 UT App 9Nassi v. Hatsis
simplified). While we have no need to formally adopt section 260
of the Restatement, we do agree that the principles expressed in it
provide an accurate expression of when a landowner can lawfully
exercise control over (or even dispose of) another person’s
property that has been left behind on the landowner’s property.
¶29 But even so, we conclude that the district court erred when
it granted Hatsis’s request for summary judgment on the
conversion and trespass to chattels claims. To begin, we note that
this rule largely hinges on what would be “reasonabl[e]” under
the circumstances. Restatement (Second) of Torts § 260(1).
“Ordinarily, . . . questions of reasonableness necessarily pose
questions of fact which should be reserved for jury resolution and,
except in the clearest cases, should not be disposed of by summary
judgment.” Darrington v. Wade, 812 P.2d 452, 459 (Utah Ct. App.
1991). Such questions should be taken from a jury only when
“reasonable minds cannot differ as to the inferences to be drawn
from the undisputed facts.” Penunuri v. Sundance Partners, Ltd.,
2017 UT 54, ¶ 33, 423 P.3d 1150 (quotation simplified).
¶30 Hatsis’s proposed defense turns on (1) whether he
“reasonably believed” that it was necessary to throw away the
items, and (2) whether “the harm inflicted” by doing so was
“unreasonable as compared with the harm threatened” by the
items’ continued presence in unit 3. Restatement (Second) of Torts
§ 260(1). But because both questions turn on reasonableness, both
are questions of fact that must be left for a jury unless this is one
of “the clearest cases.” Darrington, 812 P.2d at 459.
¶31 This is not one of the clearest cases, particularly when the
facts are viewed in the light most favorable to Nassi. Even if it’s
true that this storage unit was assigned to Hatsis, the base facts
that we’re confronted with are that, shortly after purchasing his
condominium, Hatsis discovered a large amount of clothing
inside his assigned storage unit and that he then had the clothing
thrown away. Hatsis’s initial defense is that he was entitled to
throw the clothes away because he believed that they were
20210009-CA 13 2023 UT App 9Nassi v. Hatsis
abandoned. But on this record, a jury could conclude that this
belief was unreasonable. After all, there was a lock on the unit’s
door, thus suggesting that someone intended to protect the items
inside. And when Hatsis had a handyman remove the lock, he
didn’t discover a few stray items of limited value inside the unit.
Rather, he discovered a unit full of expensive clothes, including
many Italian suits, cashmere sweaters, and dress shirts. Indeed,
Nassi later estimated (and because of this procedural posture, we
must assume) that there was “not less than $40,850” worth of
clothes inside. From this, a jury could conclude that it would have
been unreasonable for Hatsis to assume that someone had
abandoned such a costly collection of clothing and that he should
have instead surmised that someone, somewhere, still maintained
an active interest in it.
¶32 Pushing back, Hatsis insists that, despite the items’ value,
he was entitled to believe that they were abandoned because unit
3 smelled like mothballs. But there are contrary facts about this
issue in the record too. In her deposition, Nassi’s wife said that
she never noticed a smell when she entered unit 3 to retrieve
something for Nassi. And Nassi further suggested that he didn’t
think that the clothes themselves smelled of moth repellant.
Viewing the facts in the light most favorable to Nassi, a jury could
therefore disregard this aspect of Hatsis’s assertion.
¶33 Moreover, we again note that the principle expressed in the
Restatement cited by Hatsis turns, in part, on whether the actor
“reasonably believed” that it was “necessary” to perform the act
in question in order to protect the actor’s property, and it further
turns on whether “the harm inflicted” was “unreasonable as
compared with the harm threatened.” Restatement (Second) of
Torts § 260(1). Elaborating further, a comment to this section
asserts that
[s]ince the dispossession of another of a chattel is
ordinarily a more serious invasion of his interest in
the chattel than a mere intermeddling with it, it may
20210009-CA 14 2023 UT App 9Nassi v. Hatsis
well be that the actor is not privileged to dispossess
another of a chattel under circumstances which
would make it reasonable for him to intermeddle
with the chattel.
Id. § 260 cmt. c (emphases added).
¶34 This clarification is significant. Again, Hatsis discovered
these items inside a basement storage unit in a condominium
complex—a place that, by its nature, has many residents (both
past and present) and that also has both building management
and a homeowners association to turn to for inquiry and dispute
resolution. Because of this, a jury could justifiably conclude that
while it may have been reasonable for Hatsis to remove the items
from his storage unit (thereby “intermeddling” with them), it was
not reasonable for him to have them immediately thrown into a
dumpster (thus “dispossessing” the rightful owner of those items)
without first taking some intermediate step—such as putting the
items in the hall or a common area, posting a sign on the door and
leaving it there for some period to see who responded, or making
inquiries with building management or the homeowners
association to see if someone in the building owned the items and
had put them in unit 3 by mistake or in accordance with some
unknown agreement.
¶35 When the district court concluded that summary judgment
was appropriate because Hatsis’s “actions may [have been]
reasonable under the circumstances” (emphasis added), the
district court thus had the standard backwards. Although a jury
could think that Hatsis’s conduct was reasonable, it was also
possible that a jury could think it was not. Again, however,
summary judgment is appropriate on a fact question only “in the
clearest cases,” Darrington, 812 P.2d at 459, such as when
“reasonable minds cannot differ as to the inferences to be drawn
from the undisputed facts,” Penunuri, 2017 UT 54, ¶ 33 (quotation
simplified).
20210009-CA 15 2023 UT App 9Nassi v. Hatsis
¶36 While we express no opinion about the proper or ultimate
outcome of this case, we do conclude that a jury could reasonably
believe that Hatsis exercised “wrongful . . . control” over Nassi’s
property, Steinberg, 2014 UT App 102, ¶ 11 (quotation simplified),
when he threw away the valuable clothes inside the unit without
first taking a less permanent step. We accordingly reverse the
district court’s decision to grant summary judgment in Hatsis’s
favor on the conversion and trespass to chattels claims.
II. Intentional Infliction of Emotional Distress
¶37 Nassi next challenges the district court’s decision to grant
summary judgment to Hatsis on Nassi’s claim for intentional
infliction of emotional distress. On this, we agree with the district
court.
¶38 The tort of intentional infliction of emotional distress
requires proof
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.
Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶ 58, 70
P.3d 17 (emphasis in original, quotation otherwise simplified).
This is a two-part test, and the second step, again, requires that
the conduct be “outrageous and intolerable.” Id. (quotation
simplified).
¶39 Upon receiving a motion like Hatsis’s, “it is for the court to
determine, in the first instance, whether the defendant’s conduct
may reasonably be regarded as so extreme and outrageous as to
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permit recovery.” Sorensen v. Barbuto, 2006 UT App 340, ¶ 21, 143
P.3d 295 (quotation simplified). But our supreme court has
“cautioned” that, “due to the highly subjective and volatile nature
of emotional distress and the variability of its causations, the
courts have historically been wary of dangers in opening the door
to recovery” for intentional infliction of emotional distress.
Bennett, 2003 UT 9, ¶ 59 (quotation simplified).
¶40 When considering this element, we have thus recognized
that “an act is not necessarily outrageous merely because it is
tortious, injurious, or malicious, or because it would give rise to
punitive damages, or because it is illegal.” Nguyen v. IHC Health
Services, Inc., 2010 UT App 85, ¶ 9, 232 P.3d 529 (quotation
simplified). Instead, we have held that the conduct at issue “must
be more than unreasonable, unkind, or unfair,” and it “must
evoke outrage or revulsion.” Id. (quotation simplified). And we
have further held that to prevail on such a claim, the “plaintiff
must be able to prove that the defendant engaged in
extraordinarily vile conduct, conduct that is atrocious, and utterly
intolerable in a civilized community.” Chard v. Chard, 2019 UT
App 209, ¶ 57, 456 P.3d 776 (quotation simplified).
¶41 Line-drawing exercises of this sort are often comparative,
and past Utah cases help illustrate the kinds of conduct that can,
or cannot, satisfy this element. In Sorensen, for example, we held
that an intentional infliction of emotional distress claim could
survive a dismissal motion where a doctor “communicated ex
parte” with an attorney who was representing the other side in a
personal injury suit filed by his former patient, “became a paid
advocate” for his former patient’s “adversary,” and then asserted
medical diagnoses about his former patient during the litigation
that were “[c]ontrary” to his earlier diagnoses. 2006 UT App 340,
¶¶ 2–3, 21–22. And in Jackson v. Brown, our supreme court held
that an intentional infliction of emotional distress claim could
survive a dismissal motion where a man promised to marry a
woman, “proposed, scheduled a ceremony, and acquired a
[marriage] license,” but then “withdrew his promise only hours
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before the time scheduled for the ceremony,” all without ever
revealing to her that he was “already married” “at all times
during his relationship” with her and thus legally incapable of
marrying her at all. 904 P.2d 685, 686, 688 (Utah 1995).
¶42 By contrast, in Camco Construction Inc. v. Utah Baseball
Academy Inc., we held that a plaintiff had no viable claim for
intentional infliction of emotional distress where the conduct at
issue involved the defendant “parking near someone’s house,
visiting a facility where that person works three times, and
threatening to sue.” 2018 UT App 78, ¶ 20, 424 P.3d 1154. We
reasoned that while this conduct may have been “unreasonable,
unkind, or unfair,” it still did “not evoke outrage or revulsion.” Id.And in Chard, we held that a person’s “aggressive actions in
attempting to apply ‘pressure’” on another to “gain control of the
family restaurant business” likewise could not meet the standard,
reasoning that although the conduct at issue was “aggressive and
not particularly reasonable,” those were not the “type of
extraordinarily vile actions that the law views as utterly
intolerable in a civilized community.” 2019 UT App 209, ¶ 59
(quotation simplified).
¶43 In this case, we held above that a jury could conclude that
Hatsis was liable for conversion and trespass to chattels. And as
explained, this was so because a jury could conclude that Hatsis
acted unreasonably by throwing out Nassi’s property despite
having other less destructive options available. But even so, we
don’t believe that a jury could reasonably conclude that this
conduct was so outrageous or intolerable that it could also
support a claim for intentional infliction of emotional distress.
Even if the known facts are viewed in the light most favorable to
Nassi, what happened is that Hatsis threw away items that he
found inside a storage unit that he had just been told was assigned
to him. Was this conduct destructive? Unquestionably yes. Was it
unreasonable and unnecessary under the circumstances?
Possibly, which is why a jury should decide the conversion and
trespass to chattels claims. But was it so outrageous and
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extraordinarily vile that it evokes revulsion? We don’t believe that
this higher bar could be met. We accordingly affirm the district
court’s decision to grant summary judgment to Hatsis on this
claim.
III. Punitive Damages
¶44 Finally, Nassi argues that the district court erred in
granting summary judgment on his request for punitive damages.
On this, we agree with Nassi.
¶45 The district court initially concluded that because the
intentional infliction of emotional distress claim was dismissed,
there were “no grounds for punitive damages.” But although
we’ve held that the court appropriately granted summary
judgment on the intentional infliction of emotional distress claim,
this does not mean that there was no legal basis for awarding
punitive damages. In a number of cases, Utah appellate courts
have held that punitive damages can be based on a valid
conversion claim. See, e.g., Mahana v. Onyx Acceptance Corp., 2004
UT 59, ¶ 47, 96 P.3d 893; Lawrence v. Intermountain, Inc., 2010 UT
App 313, ¶ 21, 243 P.3d 508; Burton Lumber & Hardware Co. v.
Graham, 2008 UT App 207, ¶ 26, 186 P.3d 1012; Lake Philgas Service
v. Valley Bank & Trust Co., 845 P.2d 951, 959–60 (Utah Ct. App.
1993). Above, we reversed the district court’s decision to grant
summary judgment on the conversion claim. As a result, that
claim can provide the basis for an award of punitive damages. To
the extent that the district court held that there were no legal
grounds for punitive damages, the ruling was erroneous and
must be reversed.
¶46 As noted, the court also discussed the punitive damages
standard. In light of its initial and seemingly definitive assertion
that punitive damages could only be linked to the intentional
infliction of emotional distress claim, it’s somewhat unclear
whether the court meant for this to be an elaboration of why it
thought there was no triable claim for intentional infliction of
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emotional distress, or whether it instead meant this as an
explanation for why punitive damages could not also be based on
a conversion claim. In any event, even if we view the court’s
discussion as an explanation for why punitive damages could not
attach to the conversion claim, we conclude that the court erred
there too.
¶47 By statute, punitive damages are available when
compensatory or general damages are awarded and “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 § 78B-8-201(1)(a). After accurately
reciting this standard, the district court then went further, reciting
a passage from Nguyen in which we opined that the “defendant
must either know or should know” that his conduct “would, in a
high degree of probability, result in substantial harm to another,
and the conduct must be highly unreasonable conduct, or an
extreme departure from ordinary care, in a situation where a high
degree of danger is apparent.” 2010 UT App 85, ¶ 12 (quotation
simplified). We note here that Nguyen drew this additional
language from Behrens v. Raleigh Hills Hospital, Inc., 675 P.2d 1179,
1187 (Utah 1983), and that Behrens drew that language from
Danculovich v. Brown, 593 P.2d 187, 191, 193 (Wyo. 1979), a
decision from the Wyoming Supreme Court that interpreted
Wyoming’s own punitive damages standard.
¶48 Before 1989, “punitive damages law in Utah was entirely a
matter of common law.” C.T. ex rel. Taylor v. Johnson, 1999 UT 35,
¶ 32, 977 P.2d 479 (Zimmerman, J., dissenting). Indeed, around
that same time, our supreme court acknowledged that the cases
setting forth the “legal standard for awarding punitive damages
in tort cases appear[ed] to be somewhat in conflict.” Miskin v.
Carter, 761 P.2d 1378, 1379 (Utah 1988). In 1989, however, our
legislature enacted Utah Code § 78-18-1 (which has since been
renumbered as Utah Code § 78B-8-201) “to address for the first
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time in statutory form Utah’s law regarding punitive damages.”
C.T. ex rel. Taylor, 1999 UT 35, ¶ 32 (Zimmerman, J., dissenting).
We see no basis in the current Utah statute for the additional
requirements set forth in Behrens and Nguyen and which were
apparently imposed by the district court here. Again, under our
current statute, a plaintiff must establish “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
§ 78B-8-201(1)(a). To the extent that the district court’s ruling
required Nassi to satisfy some additional standard that goes
beyond this, we conclude that the ruling was improper. We
therefore reverse the ruling for this additional reason.
CONCLUSION
¶49 For the reasons stated above, we reverse the district court’s
decision to grant summary judgment on the conversion and
trespass to chattels claims, as well as its decision to dismiss the
request for punitive damages, but we affirm its decision to grant
summary judgment on the intentional infliction of emotional
distress claim. We accordingly remand for further proceedings
consistent with this opinion.
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