In re the Estate of Bastian (Bastian v. Bastian)

2013 UT App 227_________________________________________________________
THE UTAH COURT OF APPEALS
IN THE MATTER OF THE ESTATE OF DICK E. BASTIAN.
G. RICHARD BASTIAN, CHELSEA A. BASTIAN, AND
JESSICA C. BASTIAN,
Plaintiffs and Appellees,
v.
SUSAN L. BASTIAN AND MARIANN HAMBY,
Defendants and Appellants.
Memorandum Decision
No. 20120686‐CA
Filed September 19, 2013
Fourth District, Provo Department
The Honorable Steven L. Hansen
No. 053400243
Douglas B. Thayer and Andrew V. Wright,
Attorneys for Appellants
Matthew G. Grimmer, Attorney for Appellees
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES J. FREDERIC VOROS JR. and
MICHELE M. CHRISTIANSEN concurred.
ORME, Judge:
¶1 Susan Bastian and her daughter, Mariann Hamby, appeal
from the trial court’s decision to set aside a jury verdict against
Chelsea and Jessica Bastian. We affirm.
¶2 Susan was appointed the personal representative for her
deceased husband’s estate. G. Richard “Gary” Bastian, the
decedent’s son from a previous marriage, intervened in the probate
In re the Estate of Dick E. Bastian
proceedings and filed a wrongful death claim on behalf of himself
and his four children alleging that Appellants had intentionally
poisoned his father, causing his death. The trial court found no
basis for the allegations, granted summary judgment in favor of
Appellants, and dismissed the claim with prejudice. The trial
court’s order on that issue reprimanded both Gary and his attorney
for continuing to advocate a wrongful death claim even after they
knew, or should have known, that it lacked sufficient factual
support. Gary and his attorney were the only ones identified in the
order as being responsible for the claim and the only ones ordered
to pay the appropriate sanction.
¶3 Appellants filed counterclaims against Gary and his four
children for abuse of process, intentional infliction of emotional
distress, and wrongful use of civil proceedings based on the filing
of the wrongful death claim. Prior to trial, a motion in limine was
brought by Gary and his children requesting that the individual
plaintiffs be distinguished from one another at trial. The trial court
denied the motion, determining that the word “Plaintiffs” would
be used to collectively refer to Gary and all of his children, as
opposed to “Plaintiff,” which would be used to refer only to Gary
to the exclusion of his children. The jury returned favorable
verdicts on Appellants’ counterclaims against Plaintiffs.
¶4 A few months later, Plaintiffs filed a motion to set aside the
verdict as to Gary’s four children.1 The trial court heard oral
argument on the issues and set aside the verdict as to all four of
Gary’s children. Appellants then filed a motion for reconsideration
of the trial court’s decision. The trial court again heard oral
1. Plaintiffs simultaneously filed a motion to amend the pleadings
to conform to the evidence. The parties debate whether the motion
was granted or withdrawn, and they argue about preservation of
the issue for appeal. In view of our disposition of the pivotal issue
raised by Appellants, the status of the motion to amend is of no
practical consequence, and we decline to address it further. See
State v. Carter, 776 P.2d 886, 888 (Utah 1989).
20120686‐CA 2 2013 UT App 227In re the Estate of Dick E. Bastian
argument and ultimately denied Appellants’ motion, reaffirming
its prior decision to set aside the jury verdict as to the children.
¶5 Appellants ask this court to reinstate the verdicts against
Gary’s daughters, Jessica and Chelsea.2 While a trial court’s
decision to set aside a verdict often arises in the context of a motion
for a new trial, see, e.g., Duffy v. Union Pac. R.R. Co., 218 P.2d 1080,
1083 (Utah 1950); Andreason v. Aetna Cas. & Sur. Co., 848 P.2d 171,
174 (Utah Ct. App. 1993), in this case the trial court’s intervention
is more akin to entering a judgment notwithstanding the verdict.
Accordingly, we grant the court no deference, reviewing for
correctness. See Neff v. Neff, 2011 UT 6, ¶ 49, 247 P.3d 380.
¶6 Appellants asserted several claims against Plaintiffs,
including Jessica and Chelsea, at trial: (1) wrongful use of civil
proceedings, (2) abuse of process, and (3) intentional infliction of
emotional distress. We will affirm the trial court’s decision to set
aside the verdict in this case only if we conclude that the evidence
“so clearly preponderates in favor” of Jessica and Chelsea “that
reasonable people would not differ on the outcome of the case.” See
Hess v. Canberra Dev. Co., 2011 UT 22, ¶ 28, 254 P.3d 161 (footnote
citation and internal quotation marks omitted). “[We will] review
all of the evidence presented at trial in the light most favorable to
the verdict to determine whether that evidence is sufficient to
support the jury’s verdict.” Id. If the evidence supports the verdict,
then we will reinstate the verdict and reverse the trial court’s
decision to set it aside. See id.¶7 To prevail on their claims of wrongful use of civil
proceedings, the jury instructions required Appellants to show that
the person initiating or continuing the wrongful death claim did
not “reasonably believe[] in the existence of the facts upon which
the claim is based” and did not “correctly or reasonably believe[]
that under those facts the claim may be valid under applicable
2. Appellants do not challenge the trial court’s decision to set aside
the verdict as to the other two Bastian children, who are minors.
20120686‐CA 3 2013 UT App 227In re the Estate of Dick E. Bastian
law.” Appellants argue that two pieces of evidence support the
jury’s verdict that Jessica and Chelsea initiated or continued the
wrongful death claim and that they did so knowing that the claim
was invalid: (1) Jessica and Chelsea met with the attorney their
father had hired to represent them in the probate matters during
his investigation of the wrongful death claim and (2) Jessica and
Chelsea were aware that their father thought something about their
grandfather’s death was suspicious.
¶8 We agree with Jessica and Chelsea that neither of these facts
support the jury’s verdict as to them. The record is devoid of any
evidence that Jessica and Chelsea used the meetings with their
attorney prior to the probate proceedings to encourage or initiate
the filing of the wrongful death claim. And the most that their
knowledge of their father’s concerns can show is an awareness of
a general dispute. Even viewing this evidence in the “light most
favorable to the verdict,” id., it is insufficient.
¶9 Appellants have pointed us to no other evidence in support
of the jury’s verdict on these claims, and our review of the record
reveals only evidence which cuts against the verdict, as both Jessica
and Chelsea testified that they were not even aware of the
wrongful death claim’s existence. For example, when Jessica was
asked if she knew that a claim had been filed against Appellants
alleging they had killed her grandfather, she said she was not
aware of any action and that all she knew was, “[W]e were trying
to figure some things out. And that there was rubbing alcohol in
his system at his time of death. And just really wanting to know
why.” When specifically asked, “Did [your father] ever . . . tell you
that he was [filing the wrongful death claim] in your name?
Making that suit in your name?,” she replied, “No.” She also
testified that their attorney had never explained anything to her
about the lawsuit, her father had never shown her any documents,
and most of what she knew about the probate matters she had
learned that day while sitting in trial.
20120686‐CA 4 2013 UT App 227In re the Estate of Dick E. Bastian
¶10 Chelsea offered similar testimony. When asked what she
knew about the issues being litigated, Chelsea replied that all she
knew was that she was asked to come to court to help sort out
some issues with her grandfather’s will and that she did not “know
details about it.” When asked, “Were you ever told that your father
was accusing [Appellants] of killing your grandpa?,” she replied,
“No.” And no evidence was offered to show that Chelsea was
aware that a wrongful death claim had been filed on her behalf.
Because we determine that the jury’s verdict was “clearly against
the weight of the evidence,” we conclude that the trial court did not
err in setting the verdict aside on these claims. See Crookston v. Fire
Ins. Exch., 817 P.2d 789, 799 n.9 (Utah 1991).
¶11 To prevail on their abuse of process claims, the jury
instructions required Appellants to establish at trial that Jessica and
Chelsea initiated or maintained the claim for “a purpose for which
it was not designed.” Appellants were also required to show that
Jessica and Chelsea furthered that improper purpose through “a
willful act independent of the legal process.” In other words, the
jury must have had before it evidence that Jessica and Chelsea were
involved in an act other than the filing of the wrongful death claim
that was performed with the intent to misuse the legal system. We
agree with Jessica and Chelsea that the evidence does not support
the verdict on these claims. As discussed above, the evidence does
not support the jury’s verdict that they initiated or maintained the
wrongful death claim. We are not aware of any evidence that was
presented at trial of a “willful act independent of the legal process,”
and Appellants have failed to point us to any. The only actions
Jessica and Chelsea seem to have taken are their appearances at
trial and their brief respective meetings with their attorney. We
determine this evidence to be insufficient. Even making every
possible assumption about this evidence supporting the jury’s
verdict, neither of these acts constitutes a “willful act independent
of the legal process,” let alone an act that shows an intent to abuse
the legal system.
20120686‐CA 5 2013 UT App 227In re the Estate of Dick E. Bastian
¶12 Finally, we consider the jury’s favorable verdicts on
Appellants’ claims of intentional infliction of emotional distress.
According to the jury instructions, Appellants were required to
show, among other things, that “an actor intentionally engaged in
some conduct toward the claimant [i.e., the filing of the wrongful
death claim] . . . with the purpose of inflicting emotional distress,
or, where any reasonable person would have known that such
would result.” Having already determined that Jessica and Chelsea
were not involved in the filing of the wrongful death claim, we
never get to the question of whether Jessica and Chelsea filed it
with the intent to inflict severe emotional distress upon Appellants.
¶13 We recognize that in setting aside the verdict against Jessica
and Chelsea, the trial court seems to have contradicted its own
prior ruling on the pretrial motion in limine to treat all Plaintiffs as
being on the same legal footing. But because no evidence was
actually admitted at trial that links any of the children to the filing
of the wrongful death claim, we determine that setting aside the
verdicts, as to the children only, was the correct course of action.
¶14 Affirmed.
20120686‐CA 6 2013 UT App 227