Camco Construction Inc., KeyBank National Association, Sharron Troszak, and Dale Conder, Appellees,
Utah Baseball Academy Inc., Athletic Performance Institute LLC, and Robert Keyes, Appellants.
District Court, Salt Lake Department The Honorable Anthony B.
Quinn No. 050918901
C. Snuffer Jr. and Daniel B. Garriott, Attorneys for
E. Minnock, Attorney for Appellee Camco Construction Inc.
Stephen Marshall, Steven J. McCardell, and Michael S.
Malmborg, Attorneys for Appellees KeyBank National
Association, Sharron Troszak, and Dale Conder
David N. Mortensen authored this Opinion, in which Judges
Ryan M. Harris and Diana Hagen concurred.
When the bank that funded the construction of an athletic
facility balked at advancing more funds for the project, the
owner of the facility cried foul. Several years of litigation
followed, culminating in a bench trial. This appeal presents
the opportunity for us to review many of the calls made by
the trial court leading up to and following trial. We affirm
in all respects.
KeyBank National Association provided Athletic Performance
Institute LLC (API) financing for a twelve-month construction
project to build an indoor athletic facility, which would
then convert to a twenty-year, $1.9 million loan. API planned
to lease the facility to Utah Baseball Academy Inc. (UBA).
Robert Keyes owned both API and UBA. Keyes and UBA guarantied
the loan to API. Appellants hired Camco Construction Inc. as
the general contractor in the construction of the
While the building was meant to "accommodate multiple
sports, " "a floor elevation problem" resulted
in the facility only being suitable for baseball. This floor
elevation issue was one of many problems that arose with both
the funding and construction of the facility. When API and
Camco could not resolve these disputes, Camco filed a
mechanic's lien and, eventually, a lawsuit against API.
Camco brought KeyBank into the suit "to assert lien
Throughout the construction process, API filed draw requests
with KeyBank, which KeyBank would pay out of the loan. One
particular draw request-Draw Request No. 6-was not
immediately funded because of the mechanic's lien. This
draw request became a source of conflict between API and
KeyBank, and API ultimately asserted claims for damages
Another source of conflict between API and KeyBank arose in
the context of the payment of accrued interest on the loan.
While the loan documents were silent as to how such interest
was to be handled, KeyBank made interest payments starting at
the beginning of the loan period. At some point, KeyBank
stopped making these payments. This gave rise to another
claim for damages.
The proceedings in the trial court were long and complex. API
filed a third party complaint against additional entities-
Sporturf and Evergreen-and the trial court eventually
bifurcated the related claims. The bifurcation led the trial
court, in part, to conclude that the jury waiver included in
KeyBank and API's loan documents should be enforced.
Thus, the trial court heard Appellants' claims against
KeyBank in a bench trial.
However, not all claims were heard at the bench trial, since
the trial court had disposed of several of the claims on
summary judgment. One claim peripheral to this appeal
centered on a $15, 000 payment from Keyes to a KeyBank
employee, Roger Preston. The money came from API's
construction equity account. This payment was problematic for
a number of reasons, and KeyBank ultimately "refunded
the $15, 000, plus interest, and unconditionally tendered
additional interest to API."
Appellants now challenge the results of the trial.
The issues raised on appeal fall into four main categories.
First, Appellants argue that the trial court improperly
granted summary judgment to KeyBank on several of
Appellants' claims. Second, they argue that the trial
court erroneously granted KeyBank's motion to strike
Appellants' jury demand. Third, they argue that several
of the court's trial rulings were unsupported. Fourth,
they argue that the trial court erred in denying their motion
for a mistrial. We address these contentions in turn.
We review a trial court's grant of summary judgment for
correctness. Overstock.com, Inc. v. SmartBargains,
Inc., 2008 UT 55, ¶ 12, 192 P.3d 858.
On summary judgment, the trial court disposed of several of
Appellants' claims. Those claims were for intentional
infliction of emotional distress (IIED), lost profits, and
fraud. We conclude that the trial court properly granted
summary judgment in all three respects.
Intentional Infliction of Emotional Distress
In Utah, a plaintiff is entitled to damages
where 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.
Jackson v. Brown, 904 P.2d 685, 687-88 (Utah 1995)
(citation omitted). The trial court concluded that under
relevant precedent, the IIED claim that Appellants asserted
could not survive as a matter of law, where they
"fail[ed] to allege a distinct and palpable injury that
isn't derivative of the harm to the companies."
(Citing Stone Flood & Fire Restoration, Inc. v.
Safeco Ins. Co. of Am., 2011 UT 83, ¶ 40, 268 P.3d
170.) The court further concluded that "as a matter of
law there is not an allegation of sufficiently outrageous
conduct to give rise to a claim for intentional infliction of
Appellants brought an IIED claim for alleged behavior
connected to KeyBank's failure to pay Draw Request No. 6.
Appellants argue that because there were disputed facts
regarding whether KeyBank "fail[ed] to fund Draw 6 in a
timely manner" and "failed to cooperate with
API's replacement financing, " summary judgment was
inappropriate and the IIED claim should have been decided at
trial. But in granting summary judgment on this issue, the
trial court did not find facts or even conclude that there
were no disputed facts. Instead, its ruling implicitly
determined that any disputed facts were immaterial. In other
words, whether or not KeyBank failed to fund the draw request
or cooperate with replacement financing had no bearing on the
outcome of the case; what mattered is that Appellants
asserted the claim on behalf of two corporate entities and a
private individual, revealing that either the claim was made
on behalf of a corporation or the claim was derivative of
injury to a corporation. Both situations required the trial
court to grant summary judgment.
To begin, Keyes's claim for IIED could not stand inasmuch
as it rested on conduct directed at either API or UBA. In
Stone Flood, our supreme court addressed an
analogous situation. See id. ¶¶ 32-44. The
court considered whether shareholders could pursue a claim
for IIED that stemmed from an injury to a corporation.
See id. ¶ 41. Ultimately, the court concluded
that the shareholders could not "pursue damages for
injuries that are derivative of the corporation's."
Relying on Stone Flood, the trial court determined
that "all of the acts that are alleged . . . should be
dismissed under that decision because they fail to allege a
distinct and palpable injury that isn't derivative of the
harm to the companies." We agree. Appellants claim that
summary judgment was inappropriate because "KeyBank
failed to submit or lost Draw 6 on multiple occasions, "
"lied to Camco about Mr. Keyes not approving payment,
" "failed to cooperate with API's replacement
financing, " and "wrongly raised the payoff
amount" of the loan. But all of these alleged facts
speak to conduct directed at corporations. Under Stone
Flood, a private individual cannot succeed on an IIED
claim for such behavior. See id.
Likewise, neither API nor UBA could recover for the alleged
conduct. Several jurisdictions have expressly held that
corporations cannot suffer emotional distress. This is a logical
tenet: because "a corporation lacks the cognizant
ability to experience emotions, a corporation cannot suffer
emotional distress. Thus, no claim for intentional infliction
of emotional distress lies." FDIC v. Hulsey, 22
F.3d 1472, 1489 (10th Cir. 1994). We are persuaded by this
tenet and therefore conclude that, contrary to
Appellants' assertion, the trial court's ruling on
this issue did not disregard any material disputes of fact.
It is undisputed that both API and UBA are corporate
entities; as such, they are-as a matter of law-incapable of
succeeding on a claim for IIED. Cf. Bross Enters., Inc.
v. Town of Chesterton, No. 2:13 CV 217, 2016 WL 5724358,
at *3 (N.D. Ind. Sept. 29, 2016). ("The parties focus
their argument on whether the conduct . . . is outrageous
enough to establish the tort. In so doing they miss a larger
problem: the only plaintiff in this action is a corporation,
and a corporation cannot suffer mental anguish and so cannot
recover in tort for intentional infliction of emotional
The parties and the trial court also addressed an issue
personally experienced by Keyes, which both the parties and
the court referred to as stalking. Appellants argue they
presented evidence that KeyBank's stalking inflicted
severe emotional distress upon Keyes and his family:
"his family going into hiding because they felt
threatened, serious stress-related health issues, financial
ruin." But this recitation of evidence presented deals
only with the result of KeyBank's behavior; it does not
address the behavior itself. This is problematic, given that
the trial court's grant of summary judgment rested on its
assessment of Key Bank's behavior and its conclusion that
the behavior was "not sufficiently outrageous to justify
a claim for intentional infliction of emotional
distress." In forming this conclusion, the trial court
recounted the behavior at issue:
What we're talking about here is three visits to the API
facility by Mr. Preston, which he may, or may not, have had
business there and may, or may not, have ever seen Mr. Keyes,
and one incident where he may, or may not, have been parked
on the same street as the Keyes family. There isn't any
spin that you could put on that that makes that, in and of
itself, rise to the level of outrageous conduct . . . .
the trial court granted KeyBank's motion for summary
Appellants argue that the trial court should have denied the
motion "because of genuine [disputes] . . . of material
fact." But in so arguing, Appellants do nothing more
than set forth the same facts the trial court relied on in
concluding that the conduct did not rise to the level
necessary for intentional infliction of emotional distress.
What one would expect Appellants to focus on, instead, is how
the trial court's conclusion-that the conduct was not
sufficiently outrageous-was erroneous. But on this point,
Appellants again state only that "there were facts
precluding summary judgment." Even if this were enough
to satisfy Appellants' briefing requirements,
would affirm because the trial court correctly determined
that the conduct, as alleged, was insufficient to rise to an
In Nguyen v. IHC Health Services, Inc., 2010 UT App
85, 232 P.3d 529, we approved of a district court's grant
of summary judgment where the movant had argued "that
even if all of [the plaintiff's] assertions could be
proven, the conduct as described did not establish that
Defendants acted outrageously." Id.
¶¶ 8-9. That is essentially what we have here. The
trial court concluded that, as a matter of law, the conduct
at issue in the present case was not outrageous. The court
was entitled to form such a conclusion. See Prince v.
Bear River Mutual Ins. Co., 2002 UT 68, ¶ 38, 56
P.3d 524 ("If the trial court determines that a
defendant's conduct was not outrageous as a matter of
law, then the plaintiff's claim fails, and a court may
properly grant the defendant summary judgment on an
intentional infliction of emotional distress claim. A court
is to determine whether a defendant's conduct may
reasonably be regarded as so extreme and outrageous as to
permit recovery." (cleaned up)).
For purposes of IIED, outrageous conduct is
conduct that evokes outrage or revulsion; it must be more
than unreasonable, unkind, or unfair. Additionally, conduct
is not outrageous simply because it is tortious, injurious,
or malicious, or because it would give rise to punitive
damages, or because it is illegal.
Id. (cleaned up). The conduct at issue in this
case-parking near someone's house, visiting a facility
where that person works three times, and threatening to
sue-simply is not the sort of behavior for which plaintiffs
can recover under a theory of intentional infliction of
emotional distress. It does not evoke outrage or revulsion.
See id. It is no more than unreasonable, unkind, or
unfair. See id. And because reasonable people
"could [not] differ as to whether the conduct . . . was
so outrageous and extreme that it offended the generally