Ward v. McGarry

               THE UTAH COURT OF APPEALS

                     SARA MARIE WARD,
                         Appellant,
                            v.
                 MEREDITH DWIGHT MCGARRY,
                         Appellee.

                            Opinion
                       No. 20200724-CA
                       Filed May 12, 2022

           Third District Court, Salt Lake Department
                    The Honorable Su Chon
                          No. 200900387

       Troy L. Booher, Beth E. Kennedy, Taylor Webb, and
              Kyle Adams, Attorneys for Appellant
        Christopher M. Von Maack and Kennedy D. Nate,
                    Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
   in which JUDGES GREGORY K. ORME and JILL M. POHLMAN
                        concurred.

CHRISTIANSEN FORSTER, Judge:

¶1      Sara Marie Ward appeals the district court’s grant of
Meredith Dwight McGarry’s motion to dismiss her breach of
contract, promissory estoppel, and tort claims against him. We
affirm.


                        BACKGROUND

¶2    The parties were involved in a romantic relationship for
approximately two-and-a-half years. During that time, the parties
                        Ward v. McGarry


had one child together. While they were romantically involved,
Ward sent nude photos of herself to McGarry.

¶3     After they ended their relationship, the parties became
involved in a custody dispute over their child. See generally Ward
v. McGarry, 

, 

. Ward sent McGarry a
text requesting that he delete the nude photos of her and
promised that if he did, she would not use those photos in their
custody dispute. McGarry agreed.

¶4     Several years after they separated, Ward received a call
from McGarry’s ex-wife, who informed her that she and her son
had seen the photos of Ward. According to the ex-wife, McGarry
“had given his phone to his son to play with and the child brought
the phone home and showed the photos to his mother.” The ex-wife sent Ward one of the photos as proof.

¶5      In response to this disclosure, Ward filed a complaint
against McGarry, alleging causes of action for intentional
infliction of emotional distress, negligent infliction of emotional
distress, breach of contract, equitable estoppel, punitive damages,
negligent misrepresentation, and fraud. 1 McGarry filed a motion
to dismiss, asserting (1) that “Ward’s tort claims are barred by
operation of the economic loss rule”; (2) that her “breach of
contract claim fails for want of damages”; (3) that she could not
assert her “equitable estoppel claim . . . as an independent cause
of action”; and (4) that she could not bring a “punitive damages
claim . . . as an independent cause of action.”

¶6   The district court agreed with McGarry and dismissed
Ward’s complaint. Ward now appeals.




1. The court rejected Ward’s fraud claims on statute of limitations
grounds, and she does not challenge that ruling on appeal.


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                          Ward v. McGarry


              ISSUE AND STANDARD OF REVIEW

¶7     Ward argues that the district court erred in dismissing her
breach of contract, promissory estoppel, tort, and punitive
damages claims. “The decision to grant a motion to dismiss
presents a question of law that we review for correctness.”
Davencourt at Pilgrims Landing Homeowners Ass’n v. Davencourt at
Pilgrims Landing, LC, 

, 

 (quotation
simplified).


                            ANALYSIS

                       I. Breach of Contract

¶8    Ward first asserts that the district court erred by
“dismissing the breach of contract claim on the ground that the
contract did not contemplate emotional distress damages.”

¶9      “Normally there is no recovery of damages for mental
anguish stemming from a breach of contract.” Gregory & Swapp,
PLLC v. Kranendonk, 

, 

 (quotation
simplified). However, our supreme court has recognized an
exception to this rule when “emotional distress or mental anguish
arising from a breach of contract . . . were both a foreseeable result
of the breach of contract and explicitly within the contemplation of
the parties at the time the contract was entered into.” Cabaness v.
Thomas, 

, 

. 2 To invoke this exception,
a plaintiff must point to “specific language” and “obligations” in
the contract that show that at the time the parties formed the


2. Although the Kranendonk court clarified and disavowed
portions of Cabaness, see Gregory & Swapp, PLLC v. Kranendonk,

, ¶¶ 29 n.28, 31 n.35, 

, it also relied on the
analysis in Cabaness, see 

 ¶¶ 29–32. Thus, Cabaness has at least
some continued utility in analyzing claims for emotional distress
damages in contract cases, and we find it useful here.


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                        Ward v. McGarry


contract, they contemplated that emotional distress damages
might flow from a breach of the contract. See Kranendonk, 

. In other words, they must show that “the parties
contemplated granting relief for more than the typical mental
anguish and discouragement that results from a breach of
contract.” Id. ¶ 30.

¶10 The district court concluded that the first element needed
to prove the availability of emotional damages—foreseeability—
was met in this case due to the agreement’s “personal nature.” See
id. ¶ 33 (explaining that “emotional distress damages are a
foreseeable result of a breach” of contract when “the contract
involved some peculiarly personal subject matter” (quotation
simplified)). However, it determined that Ward could not
establish the second element—that emotional damages were
explicitly within the contemplation of the parties—because there
was no “specific language” in the parties’ contract contemplating
emotional damages for any breach. We agree.

¶11 The language of the employment contract at issue in
Cabaness stated that the employer would “not tolerate verbal or
physical conduct by any employee which harasses, disrupts, or
interferes with another’s work performance or which creates an
intimidating, offensive, or hostile work environment.” 

 (quotation simplified). The Cabaness court held that
because this language was “specifically directed toward matters
of mental concern and solicitude,” whether the language
demonstrated “that emotional damages were within the
contemplation of the parties at the time the contract was entered”
was a question of fact that could not be resolved on summary
judgment. Id.; see also Kranendonk, 

, ¶ 31 n.35
(reiterating that the language at issue in Cabaness merely created
a question of fact as to what the parties contemplated and was not
sufficient to illustrate that “the parties expressly contemplated
emotional distress damages”). In Kranendonk, on the other hand,
the language of a contract for legal services included a promise



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                         Ward v. McGarry


that the plaintiff’s attorney would use “best efforts to obtain a
settlement or judgment for [her] through negotiation or other
legal action.” 

 (quotation simplified). The court
declined to read into that language a commitment to “mak[e] sure
the client has peace of mind” and concluded that the contract
dealt with solely pecuniary interests. 

¶12 The exact language of the text messages between the
parties in this case is not in the record. However, Ward alleged
that she “requested . . . that [McGarry] delete all intimate photos”
in exchange for Ward not using the photos in their custody
dispute. McGarry agreed. 3 While this contract was of a more
personal nature than the one at issue in Kranendonk—as
demonstrated by the district court’s acknowledgement that Ward
and McGarry’s contract involved personal interests—“the specific
language of the contract does not show that emotional distress
damages were explicitly contemplated by the parties.” See 

 And
unlike the contract in Cabaness, which included language
prohibiting harassing, intimidating, and offensive behavior—
actions “specifically directed toward matters of mental concern
and solicitude,” see 

, ¶ 76—the language of the contract
here states only that McGarry agreed to delete the nude photos in
exchange for Ward’s agreement not to use the photos in their
custody dispute. 4 Without “any language related to mental or


3. Although the text messages are not in the record, the parties
agree that the allegations in the complaint accurately reflect their
contents.

4. While McGarry’s failure to delete the nude photos could
understandably cause an emotional response in Ward, it is not an
action that is innately targeted at triggering such an emotional
response like harassing, intimidating, and offensive behavior is.
See Intimidate, Merriam-Webster https://www.merriam-webster.c
om/dictionary/intimidate [https://perma.cc/X3Q8-EBRU] (definin
                                                   (continued…)


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                         Ward v. McGarry


emotional harm,” see Kranendonk, 

, this is not
enough to create even a factual issue regarding what the language
contemplated.

¶13 Ward asserts that because “the subject matter of the
contract—nude photos—involves peculiarly personal interests, as
opposed to rights stemming from monetary interests[,] . . . any
breach would necessarily result in emotional distress and mental
anguish.” However, this argument goes to the foreseeability of the
emotional distress damages, not the question of whether the
specific language of the parties’ agreement contemplated
emotional damages. Ward also asserts that we should construe
the contract as contemplating emotional damages because
“[t]here was no financial component to the agreement” and “[t]he
primary damages that could and would arise from . . . [a breach]
were noneconomic.” But this argument goes to the nature of the
contract, not its language. And Kranendonk makes clear that we
must consider both the “nature and language of the contract” and
that our “focus . . . on the contract language” must “consider only
those expectations that are apparent from the language of the
contract.” 

 ¶ 29 & n.28 (quotation simplified) (emphasis added).
In other words, even though we are sympathetic to Ward’s
argument that McGarry’s failure to delete the nude photos would
likely lead to her emotional distress and that emotional distress is
the most likely type of damage that the parties could have
reasonably expected for a breach of this contract, our supreme
court has determined that emotional damages for breach of a
contract will be awarded only when those damages were


g “intimidate” as “to make timid or fearful: frighten”); 

 Harass,
https://www.merriam-webster.com/dictionary/harass [https://pe
rma.cc/PZ96-J6K5] (defining “harass” as “to annoy persistently”;
“to create an unpleasant or hostile situation”); 

 Offensive,
https://www.merriam-webster.com/dictionary/offensive [https://
perma.cc/5ZWP-P7AG] (defining “offensive” as “giving painful
or unpleasant sensations”; “causing displeasure or resentment”).


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                         Ward v. McGarry


explicitly contemplated by the parties based on the contract’s
language. And here, because Ward cannot point to specific
language or obligations in her contract with McGarry that show
that emotional damages were contemplated by them at the time
they formed the contract, Ward is precluded from recovering
emotional damages as compensation for McGarry’s breach.

                     II. Promissory Estoppel

¶14 Ward next challenges the district court’s conclusion that
promissory estoppel is not available “where a legal remedy such
as breach of contract is available.” Ward asserts that the court’s
determination that she could not recover damages on her breach
of contract claim meant that a legal remedy for breach of contract
was not available and that promissory estoppel could therefore
apply. But just because Ward could not demonstrate that she had
suffered damages recoverable under the contract does not mean
that no remedy for breach of contract was available. “Even if a
contract does not provide an express remedy . . . it does not follow
that a party has no legal remedies flowing from a breach of an
express contract [or] . . . that equitable remedies should then
somehow come into play.” Thatcher v. Lang, 

,

 (holding that where it was undisputed that the
contract at issue both governed the subject matter of the litigation
and was enforceable, an unjust enrichment claim was not
available).

¶15 Promissory estoppel “arises in instances where no formal
contract exists.” Youngblood v. Auto-Owners Ins. Co., 

, 

. Where there is “an enforceable contract
governing the rights and obligations of the parties relating to the
conduct at issue,” equitable remedies are not available. See Ashby
v. Ashby, 

, 

; see also Mann v. American
W. Life Ins. Co., 

 (Utah 1978) (“Recovery in quasi
contract is not available where there is an express contract
covering the subject matter of the litigation.”).



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                        Ward v. McGarry


¶16 Quoting AGTC Inc. v. CoBon Energy LLC, 

,

, Ward points out that a “district court should not
dismiss alternative equitable claims if the existence or
applicability of a contract remain in dispute.” Id. ¶ 22 (quotation
simplified). She asserts that the court resolved questions of the
contract’s validity and enforceability against her by determining
that she could not recover damages for emotional harm. But the
validity and enforceability of the contract were not at issue—only
Ward’s ability to prove damages was.

¶17 Ward argues that her promissory estoppel claim was not
properly dismissed because “there was an ongoing dispute as to
the validity of the contract.” However, the record does not
evidence any such dispute. Ward asserted the validity of the
contract by bringing a breach of contract claim against McGarry.
And McGarry’s motion to dismiss never disputed the contract’s
enforceability, instead asserting only that Ward’s claim was
barred by the statute of limitations and that she could not recover
emotional damages for the breach of contract. The court even
acknowledged that “McGarry breached their agreement when he
did not delete the photos.”

¶18 In AGTC, the district court granted partial summary
judgment on a counterclaim plaintiff’s unjust enrichment claim
while its contract claims remained pending. Id. ¶ 8. Later, the
court granted summary judgment to the counterclaim defendant
on the contract claims on the ground that the counterclaim
plaintiff was ineligible to enforce the contract due to Utah’s non-recovery rule. Id. ¶ 9. This court reversed the district court’s
summary judgment ruling on the contract claims, determining
that the non-recovery rule did not apply. Id. ¶ 18. This court then
also reversed the summary judgment ruling on the unjust
enrichment claim, explaining,

      Because the district court made no determination
      regarding whether [the] remaining claims and



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                          Ward v. McGarry


       defenses dealt with the enforceability of the [parties’
       agreement], we are concerned that its ruling left the
       door open to such claims at trial while foreclosing
       [the counterclaim plaintiff’s] ability to pursue an
       equitable remedy if the court were ultimately to
       determine that the [agreement] is unenforceable.

Id. ¶ 23. See generally id. ¶ 23 n.7 (“For example, [the counterclaim
plaintiff] asserted that one of [the counterclaim defendant’s]
defenses could result in the Court deciding there was no meeting
of the minds as to the contract’s essential terms, rendering the
contract unenforceable. If [the counterclaim plaintiff] is correct in
its characterization of [the counterclaim defendant’s] defense, and
if the court ultimately found that there was no meeting of the
minds, then the court’s summary judgment ruling would leave
[the counterclaim plaintiff] without either a legal or an equitable
remedy.” (quotation simplified)).

¶19 Unlike in AGTC, where several potential arguments and
defenses that at least arguably concerned the enforceability of the
contract remained unresolved when the court granted partial
summary judgment on the unjust enrichment claim, neither party
here suggested that the enforceability of the contract was in
dispute. Similarly, Ward did not argue that her claim for
promissory estoppel should not be dismissed on the basis that the
contract was unenforceable. Thus, there was no reason for the
district court to delay its ruling on the basis that the enforceability
of the contract was unresolved.

¶20 The fact that the contract did not provide for the recovery
of emotional damages is not the same as a contract not existing or
being unenforceable, and it does not open the door for Ward to
pursue a quasi-contract claim regarding the same subject matter
covered by the express contract. A quasi-contract claim cannot be
used to “make a better contract for the parties than they have
made for themselves.” See Hillcrest Inv. Co. v. Department of



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                          Ward v. McGarry


Transp., 

, 

 (quotation
simplified).

¶21 Because it was undisputed that an enforceable contract
existed that required McGarry to delete the photos, Ward could
not recover damages not provided for in the contract under a
promissory estoppel theory.

                          III. Tort Claims

¶22 Next, Ward argues that the district court erred in ruling
that the economic loss rule barred her tort claims. “The economic
loss rule is a judicially created doctrine that marks the
fundamental boundary between contract law, which protects
expectancy interests created through agreement between the
parties, and tort law, which protects individuals and their
property from physical harm by imposing a duty of reasonable
care.” KTM Health Care Inc. v. SG Nursing Home LLC, 

, 

 (quotation simplified). Under the economic
loss rule, “[i]f the tort alleges a breach of a duty that the contract
itself imposes . . . the plaintiff can sue only for contract-based
remedies.” Id. ¶ 71. “However, if the tort claim alleges a breach of
a duty that is separate and distinct from any contractual duty
existing between the parties”—an independent duty—“the
plaintiff can proceed with that separate, non-contract claim.” Id.
¶ 72.

¶23 Here, the contract imposed a duty on McGarry to delete the
photos. Thus, any tort claim arising out of that duty would be
barred by the economic loss rule. On appeal, Ward asserts that
McGarry breached an independent duty to not show her nude
photos to others. However, Ward did not preserve this argument
for our review.

¶24 In her argument to the district court, the only independent
duty Ward raised was that McGarry had “a duty to keep any
harmful material away from children” and that he breached that


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                         Ward v. McGarry


duty by not preventing his child from accessing the nude photos.
But this is a duty McGarry allegedly owed to his child, not to
Ward. And Ward never mentioned to the district court the duty
she now advocates on appeal—that McGarry owed her an
independent duty in tort not to show her nude photos to others.5
Because Ward did not present this specific argument to the district
court in a manner that gave the court an opportunity to rule on it,
her independent-duty argument is unpreserved. See Wolferts v.
Wolferts, 

, 

 (“An issue is
preserved for appeal when it has been presented to the district
court in such a way that the court has an opportunity to rule on
that issue. To provide the court with this opportunity, the issue
must be specifically raised by the party asserting error, in a timely
manner, and must be supported by evidence and relevant legal
authority.” (quotation simplified)). And without establishing that
McGarry owed Ward an independent duty apart from his
contractual duties, Ward cannot demonstrate that the district
court erred in applying the economic loss rule to bar her tort
claims.

                      IV. Punitive Damages

¶25 Finally, Ward asserts that the district court erred in
dismissing her claim for punitive damages. The court explained
that “punitive damages is not a proper independent claim and all
of the claims under which punitive damages might be available
to [Ward] are barred by the economic loss rule.”

¶26 Ward does not challenge the court’s determination that a
claim for an award of punitive damages is not a proper
independent claim. Instead, she asserts that her punitive damages
request “was tied to her tort claims” and should be reinstated “if
this court reinstates her tort claims.” Because we conclude that the


5. We assume without deciding that such a duty might exist and
that its breach might give rise to a tort claim.


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                        Ward v. McGarry


court correctly dismissed Ward’s tort claims, we have no basis to
reinstate her punitive damages claim.


                         CONCLUSION

¶27 The district court correctly determined that the parties’
contract did not support a claim for emotional damages, that a
promissory estoppel claim was not available, that the economic
loss rule barred Ward’s tort claims, and that without a viable tort
claim, Ward could not pursue a claim for punitive damages.
Accordingly, we affirm the district court’s dismissal of Ward’s
complaint.




 20200724-CA                    12