Mountain West Surgical Center v. Hospital Corporation of Utah

2007 UT 92
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Mountain West Surgical Center, No. 20060243
L.L.C., and Mountain West Medical
Properties, L.L.C.,
Plaintiffs, Appellants,
and Cross-Appellees,
v.
Hospital Corporation of Utah
dba Lakeview Hospital, F I L E D
Defendant, Appellee,
and Cross-Appellant. November 27, 2007
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Second District, Layton Dep’t
The Honorable Thomas L. Kay
No. 040600019
Attorneys: Craig D. Adamson, Craig A. Hoggan, Debra G. Giffiths
Handley, Salt Lake City, for plaintiffs
Andrew H. Stone, Marci Rechtenbach, Ryan M. Harris,
Salt Lake City, for defendant
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DURRANT, Justice:
INTRODUCTION
¶1 Mountain West Surgical Center and Mountainwest Medical
Properties (collectively “Mountainwest”) appeal the district
court’s decision granting summary judgment to Hospital
Corporation of Utah (“HCU”) on Mountainwest’s claims of tortious
interference with economic relations and abuse of process. The
district court granted summary judgment in favor of HCU, in part
because Mountainwest failed to provide evidence of causation on
either claim. We affirm the district court’s grant of summary
judgment in favor of HCU on that basis.

1 Krantz v. Holt, 819 P.2d 352, 353 (Utah 1991).
No. 20060243 2
BACKGROUND
¶2 Because this matter was decided on summary judgment, we
recite the facts and inferences in the light most favorable to
the nonmoving party.1 In 1973, Davis County officials and
Hospital Corporation of America (“HCA”) entered into an agreement
to develop, finance, construct, and operate a new hospital in
Bountiful, Utah. As part of the agreement, Davis County agreed
to cease operation of an older and smaller hospital, South Davis
Community Hospital (“SDCH”), adjacent to the planned new
facility. HCA created an affiliate business entity, HCU, to own
and operate the new facility, which became Lakeview Hospital.
¶3 In 1989, to straighten borders between the adjoining
properties, HCU conveyed certain property to SDCH by deeds that
contained restrictive covenants prohibiting the operation of
certain types of medical facilities. In 1999, SDCH began
developing a joint venture with Mountainwest to use the SDCH
property to establish a medical complex directly adjacent to
Lakeview Hospital.
¶4 HCU took steps to block the construction of the new
facility, including opposing the project at planning and zoning
meetings and, eventually, filing a lawsuit (the “first lawsuit”)
against SDCH, claiming breach of contract and violation of the
restrictive covenants on the property. HCU also recorded a
notice of lis pendens on the SDCH property.
¶5 In the first lawsuit, the district court granted
summary judgment against HCU on its contract claims but
determined that genuine issues of material fact remained for
trial with respect to the restrictive covenants. The court also
held that the lis pendens was a “wrongful lien.” The parties
settled this remaining claim, and the new medical facility was
built at a different location after some delay.
¶6 In 2004, Mountainwest filed the action now before us,
accusing HCU of tortious interference with prospective economic
relations and abuse of process. Mountainwest claimed that by
filing the first lawsuit and the lis pendens, HCU caused the
proposed medical facility to be built in a different location,
resulting in increased costs and long delays.
¶7 The parties’ counsel agreed to a discovery schedule and
agreed to be ready for trial by March 2006. Yet Mountainwest
failed to conduct any discovery or respond to discovery requests

2 Utah R. Civ. P. 56.
3 Peterson v. Coca-Cola USA, 2002 UT 42, ¶ 20, 48 P.3d 941
(holding that “[a]llegations or denials in the pleadings are not
a sufficient basis for opposing summary judgment”) (quoting Hall
v. Fitzgerald, 671 P.2d 224, 227-28 (1983)).
3 No. 20060243
until after all deadlines had passed. In response, HCU filed a
motion to compel followed by a motion for summary judgment. In
its motion for summary judgment, HCU alleged that Mountainwest
had failed to come forward with any evidence to support its
claims. HCU also argued that the lawsuit and lis pendens were
absolutely privileged under the judicial proceeding privilege.
¶8 Mountainwest filed an opposition to HCU’s motion for
summary judgment, an opposition to the motion to compel, and its
own motion for partial summary judgment. In support,
Mountainwest submitted an affidavit of its employee Richard
Vincent. Vincent stated that the filing of the first lawsuit and
the lis pendens effectively stopped the project and that,
subsequently, the lender withdrew its financing. HCU filed a
motion to strike the affidavit as both untimely and lacking in
foundation as Vincent did not purport to have personal knowledge
of the lender’s motivation in withdrawing financing.
¶9 The district court granted summary judgment in favor of
HCU on three alternative grounds. First, the court held that the
lis pendens and the first lawsuit were absolutely privileged by
the judicial proceeding privilege. Second, the court found that
Mountainwest’s evidence was insufficient to raise an issue of
fact as to causation on either claim. Finally, the court cited
Mountainwest’s failure to comply with the discovery schedule as
an additional ground for granting summary judgment. The court
denied HCU’s motion to strike the Vincent affidavit, however.
Mountainwest appeals the grant of summary judgment against it,
and HCU cross-appeals the decision not to strike the Vincent
affidavit.
STANDARD OF REVIEW
¶10 Summary judgment is appropriate only when there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.2 The court must view all facts
and inferences in the light most favorable to the nonmoving
party, but it may not assume facts for which no evidence is
offered.3 We review a trial court’s order granting summary

4 Krantz v. Holt, 819 P.2d 352, 353 (Utah 1991).
5 657 P.2d 293, 304 (Utah 1982).
6 Id.
7 See Hatch v. Davis, 2006 UT 44, ¶ 34, 147 P.3d 383.
8 Mountainwest did not argue that the underlying lawsuit,
independent of the lis pendens, separately caused its injury.
Therefore, we address only Mountainwest’s contention that the
filing of the notice of lis pendens caused its injury.
No. 20060243 4
judgment for correctness.4
ANALYSIS
¶11 We recognized the tort of interference with prospective
economic relations in the case of Leigh Furniture & Carpet Co. v.
Isom.5 In that case, we explained that to establish the tort
“the plaintiff must prove (1) that the defendant intentionally
interfered with the plaintiff's existing or potential economic
relations, (2) for an improper purpose or by improper means, (3)
causing injury to the plaintiff.”6 A claim for abuse of process
requires the plaintiff to show (1) that the defendant used legal
process, (2) to accomplish an improper purpose or purpose for
which that process was not designed, (3) causing the plaintiff’s
harm.7 Both torts require the plaintiff to produce evidence that
the defendant’s action caused injury to the plaintiff.
¶12 Here, Mountainwest contends that the lawsuit and the
notice of lis pendens caused the lenders to withdraw funding for
the project, which caused its damages.8 Yet as the district
court noted, “[Mountainwest] offer[s] no testimony from any
lender or title company that the lis pendens, as such, caused
them to refuse to proceed with the sale of the underlying land.”
Indeed, Mountainwest failed to conduct discovery, and the only
evidence it offered on this point was the affidavit of its
employee Richard Vincent. The affidavit contains only one
assertion bearing on causation: “the notice of lis pendens
effectively stopped the project. SDCH did not deed the property
to Mountainwest Properties and Mountainwest Properties’ lender
withdrew its commitment for construction financing.”
¶13 HCU filed a motion to strike the affidavit as both
untimely and without foundation. The district court declined to
strike the affidavit but, nevertheless, found that the affidavit
presented insufficient evidence to raise an issue of fact as to

9 Utah R. Evid. 602.
10 See State v. Jones, 656 P.2d 1012, 1014 (Utah 1982)
(holding that personal knowledge of a matter is a prerequisite to
testimony and that without personal knowledge, testimony on that
matter is inadmissible hearsay).
5 No. 20060243
causation. Because we, too, conclude that the affidavit is
insufficient even if considered, it is unnecessary for us to
reach the question of whether the court properly declined to
strike it.
¶14 The affidavit provides insufficient evidence of
causation for two reasons. First, Vincent’s statement as to
causation lacks foundation. A witness or affiant must testify
from personal knowledge of the matter.9 Vincent, a Mountainwest
employee, did not purport to have personal knowledge of the
decision-making process of the lender or of the effect (if any)
of the lis pendens. Any testimony by Vincent as to the reason
for the lender’s actions, therefore, would be hearsay or
conjecture.10 Second, even if a proper foundation for Vincent’s
statements is assumed, his assertion is factually insufficient to
establish causation. At most, it shows that the lender withdrew
its commitment after the lis pendens was discovered. Further,
Vincent’s observation that SDCH did not deed the property to
Mountainwest is irrelevant as to the effect of the lis pendens;
as a named party in the first lawsuit, SDCH could not have
learned any information from the lis pendens of which it was not
already aware.
¶15 Accordingly, we affirm the district court’s grant of
summary judgment in favor of HCU as to each of Mountainwest’s
claims because Mountainwest failed to raise an issue of fact as
to causation.
CONCLUSION
¶16 Because we conclude that Mountainwest failed to raise
an issue of fact as to causation for each of the claims it
asserted, it is unnecessary to reach the issues of whether the
other grounds for summary judgment were appropriate. We affirm
the district court’s grant of summary judgment in favor of HCU.
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¶17 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.