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Garth O. Green Enterprises, Inc. v. Harward

United States District Court, D. Utah, Central Division

March 29, 2017

GARTH O. GREEN ENTERPRISES, INC., a Utah corporation; GARTH O. GREEN, an individual; and MICHAEL GREEN, an individual, Plaintiffs and Counterclaim Defendants,
v.
RANDALL HARWARD, an individual; RICHARD HARWARD, an individual; HARWARD IRRIGATION SYSTEMS, INC., a Utah corporation; GRASS VALLEY HOLDINGS, L.P.; DOES 1-10; and ROE CORPORATIONS 1-X; Defendants, RICHARD N. REESE, an individual; STANDARD PLUMBING SUPPLY COMPANY, INC., a Utah corporation, Defendants and Counterclaimants. RICHARD REESE, an individual and STANDARD PLUMBING SUPPLY COMPANY, INC., a Utah corporation, Cross-Claim Plaintiffs,
v.
HARWARD IRRIGATION SYSTEMS, INC. AND GRASS VALLEY HOLDINGS, L.P., Cross-Claim Defendants. RICHARD REESE, an individual and STANDARD PLUMBING SUPPLY COMPANY, INC., a Utah corporation, Third-Party Plaintiffs,
v.
GW GREEN FAMILY LIMITED PARTNERSHIP, a Utah limited partnership and WENDY GREEN, an individual, Third-Party Defendants.

          Evelyn J. Furse Magistrate Judge.

         MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART [61] MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART [187] MOTION TO SUPPLEMENT; FINDING AS MOOT [66] MOTION TO DISMISS; GRANTING [225] MOTION TO DISMISS; AND GRANTING [217] MOTION TO DISMISS

          David Nuffer United States District Judge.

         Richard Reese and Standard Plumbing Supply Company (collectively “Standard Parties”) have asserted ten counterclaims against Garth O. Green Enterprises, Inc.; Garth O. Green; and Michael Green (collectively “Greens”).[1] Two third-party claims are asserted against GW Green Family Limited Partnership (“GW Green”) and Wendy Green.[2] Two cross-claims are asserted against Harward Irrigation.[3]

         The Greens move to dismiss all ten causes of action against them (“61 Motion”).[4] The Standard Parties oppose the 61 Motion (“61 Opposition”).[5] The Greens filed a reply in support of the 61 Motion (“61 Reply”).[6]

         Additionally, the Greens very recently moved to supplement their 61 Motion (“187 Motion to Supplement”).[7] The Standard Parties oppose the 187 Motion to Supplement (“187 Opposition”).[8] The Greens filed a reply in support of the 187 Motion to Supplement (“187 Reply”).[9]

         In two separate motions, GW Green moves to dismiss the third-party claims asserted against it (“66 Motion”)[10] (“225 Motion”).[11] The Standard Parties oppose each of those motions.[12] GW Green filed replies in support of the motions (“66 Reply”) (“225 Reply”).[13]

         Wendy Green moves to dismiss the third-party claims asserted against her (“217 Motion”).[14] The Standard Parties oppose the 217 Motion.[15] Wendy Green filed a reply in support of the 217 Motion (“217 Reply”).[16]

         For the reasons set forth below, the 61 Motion is GRANTED IN PART AND DENIED IN PART, the 187 Motion to Supplement is GRANTED IN PART AND DENIED IN PART, the 66 Motion is MOOT, the 225 Motion is GRANTED, and the 217 Motion is GRANTED.

         MOTION TO DISMISS STANDARD

         Dismissal of a claim under Rule 12(b)(6) is warranted when the pleading, standing alone, is legally insufficient to state a claim for which relief may be granted.[17] When considering a motion to dismiss for failure to state a claim, the thrust of all well-pleaded facts in the pleading is presumed, but a court need not consider conclusory allegations.[18] Legal conclusions and opinions are not accepted, even if couched as facts.[19]

         Satisfying the basic pleading requirements of the federal rules “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'”[20]“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”[21] “[N]aked assertions devoid of further factual enhancement, ”[22] do not state a claim sufficiently to survive a motion to dismiss.

         FACTUAL ALLEGATIONS[23]

         The Standard Parties allege:

         On January 7, 2013, Randall Harward invited Standard Plumbing to visit the Springville Sprinkler World location to discuss the possibility of Standard Plumbing submitting an offer to purchase the Sprinkler World assets.[24]

         The next day, on January 8, 2013, the Standard Parties travelled to Springville to visit with the Harwards.[25] When they met with the Harwards on January 8, they were told that Harward Irrigation was in financial trouble and needed to sell its Sprinkler World assets.[26] The Harwards told the Standard Parties that the Greens had presented a purchase offer, but that the paperwork provided to Harward Irrigation differed greatly from what Harward Irrigation and the Greens had previously discussed.[27] Accordingly, the Harwards believed that the closing date on any deal between the Harwards and the Greens had passed and the offer had lapsed.[28]

         The Harwards then invited Standard Plumbing to submit an offer to purchase Sprinkler World.[29] The Standard Parties responded that they would first need to meet with their management group.[30] The next day, on January 9, 2013, Standard Plumbing's management group met and decided to submit an offer to purchase the Harward Irrigation assets after reviewing several factors.[31]

         The Standard Parties specifically inquired whether Harward Irrigation had a contract with Southwest, and they were “assured by Randall Harward that there was no contract between Harward Irrigation and Southwest.”[32] After they were “further assured” that “Standard Plumbing was free to make an offer to purchase Sprinkler World[, ]”[33] the Standard Parties presented their offer.[34] Randall Harward stated he liked the offer and contacted his brothers Richard and Calvin Harward so they could come hear the offer.[35] When Richard and Calvin Harward arrived, they stated that they were sure any deal with Southwest was off because Southwest's president, Michael Green, had “stormed out” of a meeting earlier that day and sent a text to Harward Irrigation stating “Good luck. Deals [sic] over.”[36] The Standard Parties again presented the offer to Randall, Richard, and Calvin Harward.[37]

         The offer the Standard Parties presented was accepted by Harward Irrigation on January 9, 2013, and a contract was signed.[38] At no time prior to January 10, 2013 did the Standard Parties see any offer made by the Greens to Harward Irrigation.[39] The Standard Parties have owned and operated Sprinkler World since January 2013.[40] They have made several changes to Sprinkler World.[41]

         Lis pendens notices were filed by Southwest on all five Sprinkler World locations, which has had a negative effect on the Standard Parties.[42] Garth Green told Richard Reese that he “wanted him to hurt a little” and that he (Garth Green) would not release the lis pendens that had been filed.[43]

         The Standard Parties assert the following causes of action against the following parties:[44]

Cause of action

Against

1. Intentional Interference with Economic Relations

The Greens

2. Defamation

The Greens

3. Deceptive Trade Practices

The Greens

4. Declaratory Relief Regarding Validity and Enforceability of the Purchase Agreement

The Greens

5. Declaratory Relief Regarding Invalidity of Lis Pendens

The Greens

6. Civil Conspiracy

The Greens, GW Green, Wendy Green

7. Unjust Enrichment

The Greens, GW Green, Wendy Green

8. Declaratory Judgment of Quiet Title

The Greens

9. Wrongful Lien

The Greens

10. Abuse of Process

The Greens

         61 MOTION DISCUSSION

         The Greens move to dismiss all ten causes of action asserted against them.

         Intentional Interference with Economic Relations

         To establish a claim for intentional interference with economic relations, “[a] plaintiff must [allege] (1) that the defendant intentionally interfered with the plaintiff's existing or potential economic relations; (2) . . . by improper means; (3) causing injury to the plaintiff.”[45] A recent Utah Supreme Court case eliminated an “improper purpose” alternative in the second element.[46]

         The Greens argue that “Standard fails to state how Plaintiffs interfered with its January 9, 2013 agreement with Harward Irrigation.”[47] The Greens also argue that the Standard Parties have failed to allege “improper means.”[48] The Greens argue that the only allegations that could possibly be construed as “improper means” are “‘frivolous litigation' and an unspecified ‘misrepresentation about Standard.'”[49] The Greens further argue that “Standard fails to state harm.”[50] The Standard Parties disagree, and assert that they have properly pled their intentional interference claim.[51] According to the Standard Parties, the allegations are sufficient to support the intentional interference claim.[52] The Standard Parties are correct.

         As explained above, “a formulaic recitation of the elements of a cause of action will not do.”[53] The Standard Parties cannot simply state that the Greens “intentionally interfered” with the Standard Parties' economic relations “by improper means” which caused “injury” to the Standard Parties. But the Standard Parties have not made formulaic recitations with respect to this cause of action. Rather, the Standard Parties have specifically alleged that the factual basis for the intentional interference claim is the January 9, 2013 Standard-Harward agreement.[54] The Greens incorrectly assert that the Standard Parties failed to state how the interference occurred. The factual basis for how the alleged interference occurred may be alleged with the second element when addressing “improper means.” For the first element, the Standard Parties adequately alleged that there was intentional interference with the January 9, 2013 agreement.

         The Standard Parties have also adequately alleged the key second element-“improper means”-by specifically enumerating “frivolous litigation” as grounds for improper means.[55]“Improper means include ‘violence, threats or other intimidation, deceit or misrepresentation, bribery, unfounded litigation, defamation, or disparaging falsehood.'”[56] While the Standard Parties do not provide any further factual allegations in the Answer and Counterclaim specifically regarding the litigation brought by the Greens, judicial notice may be taken of the claims brought by the Greens in this lawsuit.[57] An order has determined that the Greens brought at least one claim frivolously.[58] Thus, in contrast to the Greens' claim for intentional interference which was dismissed because it was based merely on the Standard Parties' lawful competitive conduct, the Standard Parties' claim is based on independently actionable conduct-frivolous litigation. It is unclear what “misrepresentation” or “other improper means” the Standard Parties refer to, [59] but because there is at least one category of independently actionable conduct on which to base the “improper means” allegation, the second element is adequately pled.

         The Standard Parties have also adequately alleged injury. They state that there has been “significant financial, reputational, and other injury to Standard Plumbing, ”[60] and further describe that they have had difficulty finding sub-lessees at some locations because of the Greens' actions.[61] This adequately describes the alleged harm. It is also a reasonable factual inference that as a result of the alleged frivolous litigation, the Standard Parties were required to obtain counsel to defend against the litigation. This can reasonably be construed as a financial injury to Standard Plumbing. Thus, the injury element has been adequately alleged.

         Because all three elements of the intentional interference claim were adequately pled, including the key element of “improper means, ” the Standard Parties' claim against the Greens for intentional interference with economic relations will not be dismissed.

         Defamation

         “To establish a claim for defamation, a plaintiff must demonstrate that ‘(1) the defendant published the statements in print or orally; (2) the statements were false; (3) the statements were not subject to privilege; (4) the statements were published with the requisite degree of fault; and (5) the statements resulted in damages.'”[62]

         The Greens argue that the Standard Parties fail to adequately allege a claim of defamation because the Standard Parties have simply made generalized allegations regarding defamatory statements without specifically identifying the statements.[63] The Greens also argue that the Standard Parties failed to adequately plead the remaining elements of defamation.[64] The Greens are correct.

         The Standard Parties contend that they have adequately pled a claim for defamation by alleging that “[t]he Green Defendants have made false statements about Standard Plumbing, including false statements about the honor, integrity, and business practices of Standard Plumbing.”[65] But the Standard Parties do not identify any factual support for these conclusions.

         The Utah Supreme Court requires a plaintiff alleging defamation to be specific:

[T]he language complained of must be set forth in words or words to that effect and . . . the defendant should not be required to resort to the ofttimes expensive discovery process to drag from a litigant what he really intends to do to his adversary by a vehicle shrouded in mystery.[66]

         Defamation allegations are “insufficient when [they do] not state ‘the nature or substance of the acts allegedly committed by defendants, '”[67] or where they “contained merely broad and general statements . . . but . . . ‘no allegation whatever of the contents, nature or substance' of any such false statements.”[68] In short, “the allegation of the conclusion is not sufficient; the pleading must describe the nature or substance of the . . . words complained of”[69] in “words or words to that effect.”[70] And although “there is no Utah law directly requiring that the complaint also allege with complete specificity when, where, to whom, or by whom, the alleged defamatory statements were made, ”[71] other courts have generally required these elements.[72]

         After thorough review of the Answer and Counterclaims, no factual support for the defamation claim has been found. Accordingly, the Greens are correct that the claim for defamation should be dismissed. It only contains general, conclusory allegations.[73]

         Deceptive Trade Practices

         The Standard Parties have brought their deceptive trade practices claim under Utah Code § 13-11a-3(h), which provides: “Deceptive trade practices occur when, in the course of a person's business, vocation, or occupation, that person: . . . (h) disparages the goods, services, or business of another by false or misleading representation of fact[.]”[74] The Standard Parties' allegations to support their deceptive trade practices claim are that the Greens “are competitors of Standard Plumbing” and that the Greens “have made false statements about Standard Plumbing, including false statements about the honor, integrity, and business practices of Standard Plumbing.”[75] The Standard Parties also allege that “[u]pon information and belief, ” the Greens “have engaged in deceptive trade practices in violation of Utah Code Ann. § 13-11a-3(h) in that the Green Defendants have disparaged Standard Plumbing's business by false or misleading representations of fact.”[76]

         Beyond these conclusory statements, the Standard Parties make no further factual allegations in support of their deceptive trade practices claim. A thorough review of the general allegations in the Standard Parties' Answer and Counterclaims reveals no factual support for these allegations. The Standard Parties allege that the Greens made a false statement about being “completely separate” from GW Green, [77] but this is not a statement “about Standard Plumbing” that would support the Standard Parties' deceptive trade practices claim. There is no allegation about the Greens disparaging Standard Plumbing's goods or services to another party. There is no allegation about the Greens disparaging Standard Plumbing's business in general. And while there is a conclusory allegation that the Greens engaged in “misrepresentation about Standard Plumbing, ” that allegation appears within a different cause of action and, as explained previously, it is not supported by factual allegations anywhere else in the Answer and Counterclaims. Accordingly, the deceptive trade practices claim is not adequately pled and will be dismissed.

         Declaratory Relief

         The federal Declaratory Judgment Act provides that if there is an “actual controversy within its jurisdiction, ” a court “may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.”[78] The “actual controversy” referred to in the Act “refers to the type of ‘Cases' and ‘Controversies' that are justiciable under Article III of the United States Constitution.”[79] “It is not the role of federal courts to resolve abstract issues of law. Rather, they are to review disputes arising out of specific facts when the resolution of the dispute will have practical consequences to the conduct of the parties.”[80] Thus, “[t]he controversy must be definite and concrete . . . .”[81]

         The Standard Parties assert three causes of action for declaratory relief: (1) the fourth cause of action regarding the validity and enforceability of the January 9, 2013 Purchase Agreement between Standard Plumbing and Harward Irrigation; (2) the fifth cause of action regarding the validity of the lis pendens notices; and (3) the eighth cause of action regarding quiet title. Those three causes of action will be analyzed using the principles enumerated in the immediately preceding paragraph.

         Validity of the Agreement Between Standard Plumbing and Harward Irrigation

         The Greens argue that the Standard Parties have not adequately pled their claim for declaratory judgment that the January 9, 2013 agreement between Standard Plumbing and Harward Irrigation is valid and enforceable.[82] The Greens argue that in their Amended Complaint they “have already challenged the validity and enforceability of the agreement between Standard Plumbing and Harward Irrigation.”[83] Therefore, the Greens argue, “Standard's claim is unnecessary and redundant.”[84]

         The Standard Parties disagree, and argue that they have stated a valid claim for declaratory relief.[85] The Standard Parties incorrectly argue that resolving the Standard Parties' fourth cause of action would terminate the controversy between the parties.[86] The argument conflates the alleged agreement between Harward and the Greens with the alleged agreement between Harward and Standard Plumbing.[87]

         The Greens likewise incorrectly argue that the challenge raised in their Amended Complaint resolves the matter. The Greens claims in the Amended Complaint have been dismissed and are no longer a part of this lawsuit.[88]

         The correct analysis is whether the claim presents an “actual controversy” that is justiciable under Article III of the Constitution.[89] The question is whether there is a “definite and concrete” controversy regarding the validity of the January 9, 2013 Purchase Agreement between Standard Plumbing and Harward Irrigation.[90]

         The Standard Parties allege that “[t]he Green Defendants claim that the January 9, 2013 Purchase Agreement between Standard Plumbing and Harward Irrigation is not valid.”[91] They also allege, contrary to the Greens' alleged position, that “the Purchase Agreement is a valid and enforceable contract between Standard Plumbing and Harward Irrigation.”[92] These opposing statements indicate that there is a “definite and concrete” controversy.

         The allegation that the Purchase Agreement is a valid contract has factual support. The Answer and Counterclaims alleges that the Standard Parties were contacted by Harward Irrigation regarding a possible sale; the Standard Parties were told that any deal between Harward Irrigation and the Greens was off; that Michael Green sent a text stating that the deal was “over;” and that Standard Plumbing then moved forward with making an offer “and a contract was signed by Standard Plumbing and Harward Irrigation on January 9, 2013.”[93] The Answer and Counterclaims further alleges that “Garth Green admitted to Richard Reese that Standard Plumbing has a contract with Harward Irrigation . . . .”[94] Therefore, the allegations in the Answer and Counterclaims support the allegation that there was a valid contract between Standard Plumbing and Harward Irrigation. Also, the Greens allegedly dispute the validity of the contract.[95] Accordingly, the Standard Parties have adequately alleged a claim for declaratory relief of the validity of the January 9, 2013 Purchase Agreement between Standard Plumbing and Harward Irrigation. The fourth cause of action will not be dismissed.

         Declaratory Relief Regarding Invalidity of Lis Pendens

         The Greens argue that the fifth cause of action for declaratory relief fails because “the Court has twice denied motions” regarding invalidity of the lis pendens notices and “[a]ccordingly, there is no justiciable controversy[.]”[96] The Greens are incorrect.

         Prior orders in this action have not fully adjudicated the question of lis pendens validity or the potential liability of any wrongfully-filed lis pendens notice. As explained in a prior order addressing the lis pendens notices:

This memorandum decision and order is not meant to suggest that the Standard Parties have not suffered damages or that the Greens have acted with propriety or are free from liability. The Greens may be facing a significant damages claim for their behavior. Indeed, it may be significant that the Greens purchased the Springville property in a foreclosure sale after recording a notice of lis pendens on the property and indicating an intention to foreclose. It is also significant that the notices of lis pendens appear to have negatively impacted the ability of the Harwards and the Standard Parties to market or sublease the properties. But those actions, and any potential damages flowing therefrom, are not currently at issue. The issues currently before the court are whether the state court's ruling should be reconsidered and whether a bond should be posted to maintain the notices of lis pendens. For the reasons stated above, the answer to each of those questions is “no.”[97]

         The language immediately above shows that the quoted order did not exhaustively analyze the lis pendens notices, but principally considered whether a bond should be posted to maintain the lis pendens notices. Issues arising on consideration of a bond are not the only issues that determine whether a lis pendens notice is filed properly. Whether the Green's claims “[affect] the title to, or the right of possession of, real property”[98] and whether the lis pendens notices were valid has not been specifically resolved.[99] Thus, the fifth cause of action presents a definite and concrete controversy about whether the lis pendens notices were validly filed.

         A full analysis of the lis pendens notices may be conducted when evidence is presented and the statute can be applied to the facts of this case. At this pleading stage, there are sufficient allegations in the Standard Parties' Answer and Counterclaims to find a definite and concrete controversy regarding the validity of the lis pendens notices.[100] The fifth cause of action will not be dismissed.

         Declaratory Judgment of Quiet Title

         The Greens argue that the eighth cause of action fails because there is not a justiciable controversy “as to title in the five properties that Standard is currently leasing.”[101] The Greens argue that this cause of action for quiet title is “redundant of [the Greens'] action, and . . . would fail to produce a judgment that would serve a useful purpose.”[102] The Standard Parties disagree, arguing that they are “entitled to declaratory relief securing its leasehold interest against Plaintiffs' claims regarding those properties.”[103]

         This issue is moot. Recent filings in this case, which may be judicially noticed, [104]indicate that the Greens released the notices of lis pendens on each of the properties.[105] The Standard Parties do not allege that title to the properties is encumbered any other way. Accordingly, there is no case or controversy concerning the title in the properties at issue, and the Standard Parties' eighth cause of action seeking a declaratory judgment of quiet title in the properties will be dismissed.

         Civil Conspiracy

         To plead a claim for civil conspiracy, a plaintiff must allege: “(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.”[106] “If the object of the alleged conspiracy or the means used to attain it is lawful, even if damage results to the plaintiff or the defendant acted with a malicious motive, there can be no civil action for conspiracy.”[107]

         The Standard Parties' cause of action for civil conspiracy alleges that “[t]he Green Defendants, GW Green, and Wendy Green conspired together to have the Green Defendants wrongfully assert lis pendens against the five properties at issue for the wrongful scheme of causing the properties to enter default.”[108] According to the Standard Parties, this was done “so the Green Defendants, GW Green, and/or Wendy Green could cause the defaulted property to be purchased at a value substantially less than market value.”[109] The Standard Parties were allegedly damaged by these actions “in that Standard Plumbing's interest in the Sprinkler World properties has been limited because of the lis pendens . . . .”[110]

         The Greens argue that this cause of action is inadequately pled because there is no unlawful, overt act that has been pled.[111] The Greens argue that the lis pendens issue has been fully adjudicated and the validity of the lis pendens notices has been conclusively established.[112]The Greens are incorrect in this argument. As discussed above, the lis pendens issue has not been fully adjudicated. Certain portions of the lis pendens issue have been analyzed, such as the bond issue and whether the notices contained a sufficiently specific description. But whether, for example, the lis pendens notice in this case was valid has not been considered. If it is established that the lis pendens notices were filed wrongfully, that would constitute an unlawful, overt act.

         Even so, the Greens argue, “the alleged object of the conspiracy was to purchase the properties at a discount, ” a purpose that, the Greens argue, “is not unlawful.”[113] The Greens are correct that purchasing properties at a discount is not an unlawful act. But that is not all that is alleged in the Answer and Counterclaims. The cause of action for civil conspiracy also alleges that the object was to “utilize the lis pendens for the specific intent of precluding any efforts by any party with an interest in the property to refinance, obtain title insurance, sublease, etc. because of the wrongful cloud on the title of the property by virtue of the lis pendens[.]”[114] Thus, the alleged object was not just to purchase the properties at a discount; it was also to bar interest holders from exercising their full rights in the property. This is an unlawful objective.

         The Greens also argue that the civil conspiracy fails because “Standard does not allege sufficient facts to establish these parties ‘had a meeting of the minds.'”[115] The Standard Parties do not refute this in their 61 Opposition. The 61 Opposition does not show the Standard Parties adequately pled facts supporting a “meeting of the minds.” The Answer and Counterclaims includes the conclusory statement that “[t]he Green Defendants, GW Green, and Wendy Green had a meeting of the minds . . ., ”[116] but does not provide further factual support for this allegation. Beyond the conclusory statement that the counterclaim defendants “conspired together[, ]”[117] there is no direct allegation that the Greens, GW Green, and Wendy Green specifically agreed on “an object to be accomplished.”[118] The Answer and Counterclaims states that GW Green purchased the Springville Sprinkler World property through its two principals Garth Green and Wendy Green, but that does not allege a “meeting of the minds on the object or course of action.” The allegation shows that GW Green purchased the property. Even construing the allegations and inferences in the light most favorable to the Standard Parties, there is no factual support for allegation that the actions described in the Answer and Counterclaim were the result of an agreement between the Greens, GW Green, and Wendy Green.

         The elements of civil conspiracy have not been adequately alleged, so the claim for civil conspiracy will be dismissed.

         Unjust Enrichment

         To adequately plead an unjust enrichment claim against the Greens, the Standard Parties must allege that the Greens “accepted and retained benefits conferred by the [Standard Parties] under such circumstances as to make it inequitable for the [Greens] to retain those benefits without compensating the [Standard Parties].”[119]

         The Standard Parties allege that “[t]he Green Defendants, GW Green, and Wendy Green conspired together to assert lis pendens on the five locations at issue in this matter for the specific purpose of encumbering those properties, making it difficult for those properties to be resold and/or subleased.”[120] The Standard Parties also allege that “[t]he lis pendens forced the Springville Sprinkler World into default, after which GW Green . . . purchased the note at less than half its appraised market value, and then proceeded to foreclosure on the property.”[121] The Standard Parties allege that “[t]his benefit was improperly conferred upon the Green Defendants, GW Green, and Wendy Green.”[122] The Standard Parties allege that “[i]t would be inequitable to permit the Green Defendants, GW Green, and Wendy Green to retain the value of this benefit . . . .”[123]

         The Greens argue the unjust enrichment claim fails because “it does not allege any benefit conferred by Standard on [the Greens].”[124] The Standard Parties do not refute this, instead choosing to argue that the lis pendens may ultimately be determined to be invalid. But while the validity of the lis pendens notices is relevant, that does not explain whether the Standard Parties have alleged a valid claim for unjust enrichment. One of the essential allegations the Standard Parties must make to establish their claim for unjust enrichment is that the Greens “accepted and retained benefits conferred by the [Standard Parties] . . . .”[125] The Standard Parties have failed to make this allegation. Furthermore, the Standard Parties are incorrect that they have conferred a benefit to the Greens by being “stripp[ed]” of certain leasehold interest rights when the lis pendens was filed.[126] Thus, the claim for unjust enrichment fails and will be dismissed.

         Wrongful Lien

         The Standard Parties concede that the wrongful lien claim should be dismissed because the parties agree that “a wrongful lis pendens cannot form the basis for a claim for wrongful lien.”[127] Accordingly, the wrongful lien claim will be dismissed.

         Abuse of Process

         “Abuse of process applies to one who uses a legal process against another primarily to accomplish a purpose for which it is not designed.”[128] “Abuse of process has two elements: ‘First, an ulterior purpose; second, an act in the use of the process not proper in the regular prosecution of the proceedings.'”[129] “[A]n abuse of process claim requires that the prior proceedings have terminated in favor of the person against whom they were brought.”[130]

         The Standard Parties allege that “[b]y asserting [their] claims against Standard Plumbing, the Green Defendants had the ulterior purpose of unnecessarily including Standard Plumbing in this matter to distract, harass, and interfere with Standard Plumbing's management of Sprinkler World.”[131] The Standard Parties also allege that the lis pendens notices are evidence of “ulterior purpose of encumbering the properties at issue in hopes of forcing them into default.”[132] The Standard Parties allege that the Greens were successful in their efforts to buy the Springville property at “half of market appraised value”[133] and that this is an illegitimate use of the lis pendens statutes and regulations.[134]

         The Greens argue that these allegations are insufficient to state a claim for abuse of process. According to the Greens, “Utah law does not support an abuse of process claim based on the filing of a lis pendens.”[135] But that is incorrect. The case the Greens cite, Winters v. Schulman, [136] does not support that proposition. Winters did not hold that an abuse of process claim cannot be based on the filing of a lis pendens. Instead, it specifically stated that “[t]he Utah Supreme Court has recognized a civil cause of action for abuse of process where it is shown that a suit was brought without probable cause, for the purpose of harassment or annoyance; and it is usually said to require malice.”[137] Thus, Winters contemplates an abuse of process claim if a lawsuit is brought groundlessly, for the purpose of harassment or annoyance. This logic can be easily transposed to a lis pendens notice filed groundlessly, without probable cause, for the purpose of harassment or annoyance. Winters ultimately held that the abuse of process claim in that case could not stand because the party bringing the abuse of process claim had not been “a successful defendant in a prior proceeding.”[138] Winters held that the lis pendens notice in that case was invalid “because there was no action pending” when the lis pendens was filed and because the underlying action to which the lis pendens notice referred did not seek title to or possession of the real property in question. Neither of those allegations has been made by the Standard Parties.

         The Greens also argue that the Standard Parties fail to allege anything more than “ulterior purpose.”[139] This argument is also incorrect. As the Greens acknowledge, the Standard Parties have alleged ulterior purpose by alleging that the Greens engaged in behavior “to distract, harass, and interfere with Standard Plumbing's management of Sprinkler World.”[140] And the Standard Parties have also alleged “an act in the use of the process not proper in the regular prosecution of the proceedings”[141] by alleging that the Greens wrongfully filed the lis pendens notices. The wrongfulness of the lis pendens notices has not been determined, but it is possible that the lis pendens notices were groundless or that they contained a material misstatement. Garth Green's alleged statement to Richard Reese that he “wanted him to hurt a little” and that he (Garth Green) would not release the lis pendens may be relevant to the abuse of process claim.[142] Thus, both elements of an abuse of process claim have been adequately pled.[143] The abuse of process claim will not be dismissed.

         187 MOTION TO SUPPLEMENT

         Almost a year after the 61 Motion was fully briefed and submitted for decision to the state court, and nine months after it was submitted to this court to be decided, the Greens submitted their 187 Motion to Supplement the 61 Motion. The Greens argue that “since that time, there have been several events which have occurred and rulings that have been made by this Court which unequivocally confirm that the lis pendens . . . were lawful and properly recorded.”[144] The events described by the Greens are court decisions, not new factual development among the parties.[145] The Greens have submitted those court decisions and other officially-recorded documents, such as the releases of lis pendens, as exhibits.[146]

         Federal Rule of Evidence 201 states that a court “must take judicial notice if a party requests it and the court is supplied with necessary information.”[147] Judicial notice is appropriate when a fact is (1) generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”[148]

         Each of the exhibits submitted by the Greens satisfies these requirements. Accordingly, judicial notice is taken of the exhibits. But further supplementation of the 61 Motion is not necessary, particularly since the proposed supplement[149] proposes additional facts that are not relevant on a motion to dismiss;[150] makes many of the same arguments as the 61 Motion- including the argument that the lis pendens notices are conclusively valid-and would further delay resolution in this aging case.

         Therefore, judicial notice is taken of the exhibits, but supplementation will be denied.

         66 ...


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