Reynolds v. MacFarlane

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 57
_________________________________________________________
THE UTAH COURT OF APPEALS
JOHN REYNOLDS,
Plaintiff and Appellant,
v.
BRET MACFARLANE,
Defendant and Appellee.
Memorandum Decision
No. 20121000-CA
Filed March 13, 2014
Second District Court, Farmington Department
The Honorable Glen R. Dawson
No. 100700425
Randall Lee Marshall, Attorney for Appellant
Craig T. Jacobsen, Attorney for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and
STEPHEN L. ROTH concurred.1
BENCH, Senior Judge:
¶1 John Reynolds appeals from the trial court’s dismissal of his
intentional tort claims against Bret MacFarlane. We affirm in part,
reverse in part, and remand to the trial court.
¶2 On August 5, 2009, MacFarlane walked into the break room
at his workplace where his coworker, Reynolds, was standing in

Reynolds v. MacFarlane
2. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite the
facts consistent with that standard.” Alvey Dev. Corp. v.
Mackelprang, 2002 UT App 220, ¶ 2, 51 P.3d 45 (citation and internal
quotation marks omitted).
20121000-CA 2 2014 UT App 57
front of the microwave oven. Reynolds was holding a ten dollar2
bill somewhat loosely in his hand. Reynolds was unaware of
MacFarlane’s presence. MacFarlane approached Reynolds from
behind and, without touching Reynolds, quickly snatched the ten
dollar bill. Reynolds immediately spun around and faced
MacFarlane. MacFarlane then stated, “That was too easy,” and
returned the ten dollar bill to Reynolds. As MacFarlane began to
walk away, Reynolds struck MacFarlane, splitting his lip.
MacFarlane asked why he hit him. Reynolds replied, “You pissed
me off.” Shortly after this incident, the two interacted with a larger
group of employees outside, and the employees joked around and
completed their break. The two men were together at an offsite
employee lunch some days later, and on multiple occasions after
the incident Reynolds sought out and voluntarily spoke with
MacFarlane in MacFarlane’s work area.
¶3 Nevertheless, the incident was reported to the parties’
supervisor. During the ensuing investigation, Reynolds reported to
the supervisor that the incident was “nothing” and that any contact
between the parties was accidental. Reynolds was ultimately
punished with a one-day suspension without pay for striking
another employee. Thereafter, Reynolds received medical
treatment for anxiety, which Reynolds explained to his physician
had resulted from difficulties at work.
¶4 Nearly one year later, Reynolds filed a complaint against
MacFarlane, alleging assault and intentional infliction of emotional
distress. At a bench trial, the parties stipulated to the dismissal of
Reynolds’s claim for intentional infliction of emotional distress, but
Reynolds moved to amend his complaint to include a claim for

Reynolds v. MacFarlane
20121000-CA 3 2014 UT App 57
battery. The court granted Reynolds’s motion. After hearing the
evidence, the trial court found MacFarlane “to be more credible in
that [his] testimony was more consistent and was corroborated by
multiple parties.” Accordingly, the court based its findings of fact
largely on MacFarlane’s testimony. The trial court concluded that
Reynolds had not met his burden of proof to show that MacFarlane
had committed an assault or a battery against him and then
dismissed the case with prejudice. Reynolds appeals.
I. Assault
¶5 Reynolds challenges the trial court’s conclusion that he
failed to prove assault. As an appellate court, we give great
deference to the trial court’s role as a fact finder and will review its
findings of fact only for clear error. Henshaw v. Henshaw, 2012 UT
App 56, ¶ 10, 271 P.3d 837. We review the trial court’s legal
conclusions for correctness. In re Adoption of Baby B., 2012 UT 35,
¶ 41, 308 P.3d 382.
¶6 To the extent that Reynolds challenges the trial court’s
findings of fact, he merely reargues the evidence in favor of his
position and does not adequately marshal the evidence supporting
the trial court’s findings as required by our rules of appellate
procedure. See Utah R. App. P. 24(a)(9) (“A party challenging a fact
finding must first marshal all record evidence that supports the
challenged finding.”). Because of this failure to marshal, we accept
the facts as articulated by the trial court. See Allen v. Ciokewicz, 2012
UT App 162, ¶¶ 29–30, 280 P.3d 425.
¶7 Under Utah law, “[a]n assault is an act ‘(a) . . . intending to
cause a harmful or offensive contact with the person of the
other . . . or an imminent apprehension of such a contact’ by which
‘(b) . . . the other is . . . put in such imminent apprehension.’” Tiede
v. State, 915 P.2d 500, 503 n.3 (Utah 1996) (omissions in original)
(quoting Restatement (Second) of Torts § 21 (1965)). The trial court
concluded that Reynolds could not prevail on his assault claim for
three reasons. First, the trial court determined that Reynolds failed

Reynolds v. MacFarlane
20121000-CA 4 2014 UT App 57
to establish that he was in imminent apprehension of harmful or
offensive contact because he was not aware of MacFarlane’s
presence until after he spun around to find out who had taken his
ten dollar bill. Second, the trial court ruled that even though
MacFarlane intended to take the ten dollar bill, MacFarlane did not
intend to cause imminent apprehension of harmful contact in
Reynolds by doing so. Third, the trial court ruled that Reynolds
suffered no injury or damages as a result of MacFarlane’s actions.
Reynolds challenges each of these conclusions. We need address
only Reynolds’s first challenge because it is dispositive to our
conclusion that the trial court correctly determined that Reynolds
failed to prove that an assault occurred.
¶8 Reynolds concedes that a plaintiff complaining of assault
“must be aware of the defendant’s act.” See W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 10, at 44 (5th ed. 1984)
(“Since the interest involved is the mental one of apprehension of
contact, it should follow that the plaintiff must be aware of the
threat of contact, and that it is not an assault to aim a gun at one
who is unaware of it.”). In Reynolds’s view, this requirement is
satisfied in this case because he “was keenly aware of what
happened to him” “the moment the money was snatched from his
hand.”
¶9 However, a plaintiff complaining of assault cannot be in
apprehension of harmful or offensive contact unless he is aware of
such contact before the threat of the contact is accomplished or has
dissipated. “The plaintiff’s subjective recognition or apprehension
that [he] is about to be touched in an impermissible way is at the
core of [an] assault claim.” 1 Dan B. Dobbs et al., The Law of Torts
§ 38, at 97 (2d ed. 2011). As section 22 of the Restatement explains,
“An attempt to inflict a harmful or offensive contact or to cause an
apprehension of such contact does not make the actor liable for an
assault if the other does not become aware of the attempt before it
is terminated.” Restatement (Second) of Torts § 22 (1965); see also id.
§ 22 cmt. a (“[T]he defendant is not liable if his efforts to inflict the
bodily contact have been abandoned or frustrated before the other

Reynolds v. MacFarlane
20121000-CA 5 2014 UT App 57
is aware of them, since in such case the other is not put in the
required apprehension.”). Reynolds has directed us to no authority
to the contrary.
¶10 As a result, we conclude that the trial court correctly ruled
that Reynolds was not in imminent apprehension of harmful or
offensive contact because he was not aware of MacFarlane’s
presence until after MacFarlane took the ten dollar bill from
Reynolds’s hand. In other words, Reynolds could not have been in
apprehension of a physical contact without having been aware of
MacFarlane’s impending action to grab the ten dollar bill before
MacFarlane completed the act of taking the bill. Accordingly,
Reynolds did not prove that MacFarlane committed an assault
against him, and the trial court correctly dismissed his assault
claim.
II. Battery
¶11 Reynolds also challenges the trial court’s determination that
he failed to establish the elements of a battery. We review the trial
court’s legal conclusions for correctness. See In re Adoption of Baby
B., 2012 UT 35, ¶ 41, 308 P.3d 382.
¶12 Utah has adopted the Restatement (Second) of Torts to
define the elements of the intentional tort of battery. Wagner v.
State, 2005 UT 54, ¶ 16, 122 P.3d 599. Consequently, an actor is
liable for battery if “‘(a) he acts intending to cause a harmful or
offensive contact with the person of the other . . . or an imminent
apprehension of such a contact, and (b) a harmful contact with the
person of the other directly or indirectly results.’” Id. (quoting
Restatement (Second) of Torts § 13 (1965)).
¶13 In this case, the trial court found that MacFarlane did not
touch Reynolds when he grabbed the ten dollar bill from
Reynolds’s hand. Because “MacFarlane never touched or came into
contact with Reynolds,” the trial court concluded that Reynolds did
not meet his burden of proof to show that a harmful contact

Reynolds v. MacFarlane
3. The trial court explained,
Reynolds cited case law from other jurisdictions
holding that the intentional snatching of an object
from one’s hand could constitute an offensive
invasion of one’s person, so as to constitute an actual,
physical contact. However, the Court concludes that
Utah has not so extended the definition of battery to
include such actions as actual contact. If the law in
Utah were to be so extended, the Court’s findings
would give rise to a battery by MacFarlane.
20121000-CA 6 2014 UT App 57
resulted from MacFarlane’s action. Reynolds asserts that the trial3
court’s conclusion is erroneous because MacFarlane’s grabbing of
an object—the ten dollar bill—from his hand was sufficient contact
with his person to constitute a battery.
¶14 For the intentional tort of battery, harmful or offensive
contact “includes all physical contacts that the individual either
expressly communicates are unwanted, or those contacts to which
no reasonable person would consent.” Id. ¶ 51. But “it is not
necessary that the plaintiff’s actual body be disturbed.”
Restatement (Second) of Torts § 18 cmt. c (1965). Rather,
“[p]rotection of the interest in freedom from intentional and
unpermitted contacts with the plaintiff’s person extends to any part
of the body, or to anything which is attached to it and practically
identified with it.” W. Page Keeton et al., Prosser and Keeton on the
Law of Torts § 9, at 39 (5th ed. 1984) (footnote omitted). “Thus, if all
other requisites of a battery against the plaintiff are satisfied,
contact with the plaintiff’s clothing, or with a cane, a paper, or any
other object held in the plaintiff’s hand, will be sufficient” to
support a battery claim because the “interest in the integrity of [a]
person includes all those things which are in contact or connected
with the person.” Id. § 9, at 39–40 (footnotes omitted); see also
Morgan v. Loyacomo, 1 So. 2d 510, 511 (Miss. 1941) (“[T]o constitute
assault and battery, it is not necessary to touch the plaintiff’s body
or even his clothing; knocking or snatching anything from [the]

Reynolds v. MacFarlane
20121000-CA 7 2014 UT App 57
plaintiff’s hand or touching anything connected with his person,
when done in a rude or insolent manner, is sufficient.”); Picard v.
Barry Pontiac–Buick, Inc., 654 A.2d 690, 694 (R.I. 1995)
(“[D]efendant’s offensive contact with an object attached to or
identified with plaintiff’s body was sufficient to constitute a
battery.”); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629
(Tex. 1967) (“The intentional snatching of an object from one’s hand
is as clearly an offensive invasion of his person as would be an
actual contact with the body.”). But see Workman v. United Fixtures
Co., 116 F. Supp. 2d 885, 896–97 (W.D. Mich. 2000) (concluding that
even if the defendant removed a paper from the plaintiff’s hand,
“nothing in the record suggests that [the defendant’s] alleged
actions amounted to an offensive contact battery”). We consider the
above authorities as persuasive and not inconsistent with our
supreme court’s battery analysis.
¶15 In this case, MacFarlane’s act of taking the ten dollar bill
held loosely in Reynolds’s hand was sufficient contact to constitute
the contact element of battery, see Wagner, 2005 UT 54, ¶ 16,
notwithstanding the fact that MacFarlane did not touch Reynolds’s
body. When held in his hand, the ten dollar bill was connected to
Reynolds such that when MacFarlane snatched the bill from
Reynolds, MacFarlane’s act resulted in offensive contact with
Reynolds’s person. The intent element of battery was also met in
this case because the trial court found that MacFarlane intended to
take the bill from Reynolds’s hand when he acted. See id. ¶ 29
(“[T]he only intent required to commit a battery is the intent to
make a contact, not an intent to harm, injure, or offend through
that contact.”). Accordingly, we conclude that the trial court erred
in dismissing Reynolds’s battery claim because the court’s factual
findings establish both elements of the claim.
¶16 The trial court determined that Reynolds suffered no
damages as a result of the August 5, 2009 incident. The Utah
Supreme Court has explained that “[a] harmful or offensive contact
is simply one to which the recipient of the contact has not
consented either directly or by implication.” Id. ¶ 51. “[H]armful or

Reynolds v. MacFarlane
20121000-CA 8 2014 UT App 57
offensive contact is not limited to that which is medically injurious or
perpetrated with the intent to cause some form of psychological or
physical injury.” Id. (emphasis added). Instead, harmful or
offensive contact “includes all physical contacts that the individual
either expressly communicates are unwanted, or those contacts to
which no reasonable person would consent.” Id. Moreover,
“[c]ommon law battery does not require that the nonconsensual
contact be injurious. Rather, proof of an unauthorized invasion of
the plaintiff’s person, even if harmless, entitles him to at least nominal
damages.” Lounsbury v. Capel, 836 P.2d 188, 192–93 (Utah Ct. App.
1992) (emphasis added); see also id. at 196 (“[A plaintiff] need not
prove injury to sustain his battery claim; if he proves no more than
the ‘offense’ of the nonconsensual touching, he is entitled to
nominal damages.”); Keeton et al. § 9, at 41 (“[T]he defendant is
liable not only for contacts which do actual physical harm, but also
for those relatively trivial ones which are merely offensive and
insulting.”). “Damages for pain, suffering, ‘psychological problems’
and the like, however, may . . . be recovered only to the extent that
[the plaintiff] proves they were a proximate result” of the
nonconsensual touching. Lounsbury, 836 P.2d at 196.
¶17 Here, the trial court found that “no injury resulted to
Reynolds as a direct and proximate cause of MacFarlane’s actions.”
Thus, the trial court ruled that Reynolds’s claimed damages—the
one-day suspension and his medical issues following the break-
room incident with MacFarlane—were not proximately caused by
MacFarlane’s act. Reynolds has not effectively challenged this
ruling on appeal. However, because we have concluded that
MacFarlane committed a battery, Reynolds is entitled to nominal
damages. See id. at 192–93 (“[U]nauthorized invasion of the
plaintiff’s person, even if harmless, entitles him to at least nominal
damages.”). Accordingly, we remand to the trial court for an award
of nominal damages to Reynolds for battery.

Reynolds v. MacFarlane
20121000-CA 9 2014 UT App 57
III. Attorney Fees
¶18 MacFarlane requests an award of attorney fees incurred on
appeal, pursuant to rule 33 of the Utah Rules of Appellate
Procedure. MacFarlane argues that Reynolds’s appeal in this
matter is frivolous and asserts that he is therefore entitled to
attorney fees.
¶19 “[I]f the court determines that a[n] . . . appeal taken under
these rules is either frivolous or for delay, it shall award just
damages, which may include . . . reasonable attorney fees, to the
prevailing party.” Utah R. App. P. 33(a). A frivolous appeal “is one
that is not grounded in fact, not warranted by existing law, or not
based on a good faith argument to extend, modify, or reverse
existing law.” Id. R. 33(b). Because we reverse the trial court’s
ruling on one of the issues raised, Reynolds’s appeal is clearly not
frivolous. We therefore decline to award MacFarlane the attorney
fees that he has incurred on appeal.
¶20 In sum, the trial court correctly concluded that Reynolds did
not establish the elements of assault, because Reynolds was not
aware of MacFarlane’s imminent contact. We affirm the dismissal
of Reynolds’s assault claim, reverse the dismissal of Reynolds’s
battery claim, and remand to the trial court for judgment in favor
of Reynolds on his battery claim and for an award of nominal
damages.