the next case on the docket is sloan versus american agencies seventeen for two good morning i think still possibly  issue and in this improper means in the utah law is a required element of interference with contract this is the made very clear in recent years the utah supreme court held  and then as well this court reached that in s c l group b i b m earlier this year applying that whether it's interference with prospective business relations or interference with an existing contract the test is the i think since june two thousand and seventeen and that everybody in the case apparently expects the utah supreme court to decide if it's been pending for over a year presumably it will be any day why should just wait on that or your honor that is certainly something that the court can do candidly there's different schools of thought on that i would submit that right now i believe that in circuit has the law in front of it the president in front of it to go ahead and roll with hell waiting this since then however voices have been added as a couple of decisions by judge parrish who herself was on the utah supreme court of course when they decided old ridge and those also recognize that the improper true that's not how i read it when i look at it i see both interference the perspective relation and i see interference as well when we reach that with contract now mr erickson file what i believe a day or two ago a twenty  letter really more of a reply essentially arguing that it was at will contract not a fixed contract not a fixed term contract and that against even their position is there was contract play there they differ over whether it at will or a fixed contract but i would submit that there absolutely were contracts at play as well as prospective relations and so based on that i would say the law is here for this court rule improper means of acquiring now certainly is in the course discretion  say let's put this on the shelf and wait a few months and see what happens i just don't know how long the utah supreme court would take to decide well so you're asking us to divine what they're going to do and i'm one of the few judges that i remember years ago that we did go ahead and proceed with an opinion and said that this is what the supreme court of that state was going to do and lo and behold three years later they did just the opposite so both  because if that's going to be dispositive it just seems to me like that we're wasting time your time when that becomes the main issue and depending on which way they come out one of you is a winner and you're the ones a loser so why do we go in and waged our judicial economy on speculating and that's where we start with we're speculating as to what means is required they would say improper means were nevertheless found on a different plane here and so therefore we should still affirm even if improper means which was required that's incorrect the law is very clear on jury instruction what you're i simply don't know addressing what the standard should be i'm just saying that if the standard if the utah supreme court comes down in a month and says ok improper memphis required i think position of that point would be will be still met it they would say because improper means was found on the prospective business fallaciously and i just want to explain briefly why that's not so the standard is really clear that if there's any possibility that the jury instruction were made a difference has  reversed that is very very well established here and here i would actually point out that there was different conduct at play turning actually to the decision of the district court here they pointed in their ruling in the none of that would be improper means and so i think there's absolutely a possibility here at least that require reversal i would actually say more so there's no basis even sustain at all and simply render that there was no sufficient issue is a consequence for damages that were awarded the attorneys fees they were awarded under a very sizable amount of one point five million dollars attorney's fees they were awarded and if the court reverses based on improper means instruction those also drop to award attorney fees simply put they've essentially said we have four joint tortfeasor is here they all did something together we sued all of them and now we want to turn these fees you know person a nderstanding it and my concern about preservation and then if you can search that me straight the district court as i understand it specifically instructed the jury that you are to ditch sherman if you find a liability that one of the species of the remedy that you can award his attorney fees that was a good that was incurred in this other litigation and that if you determine that then he was going to determine he didn't say all this but then he was going to determine after the fact much like any other application for an eternity of the amount and so the jury that was in the box is is instructed they are there was a jury with joint tortfeasor liability but that in the end the ground for a ground for a at injection of the jury instruction and it seems to me that i'm concerned that you needed to object to the jury instruction on this ground why is that incorrect well your honor this was a moving target here it really was a month or so before trial discloser damages their damages claims to us and they listed the breach of contract claim as being the source of the third party litigation exception consequence for damages attorney's fees so we made our jury instruction and objections based off of that we were targeting he way you can't base operate a contract during the trial it was before trial after we'd filed be so so when the jury instruction conference or the judge asked for instruction instructions at that point you knew precisely what a the end was on the jury instruction at all to be specifically object to this particular basis or aspect of it at that moment we did not but also at that point the question to the jury was one of foreseeability and so the legal issue is an issue we never had opportunity even to brief properly before the trial this is that we were moved for summary judgment on if we'd had that before us make that argument let me follow up on just the question so if you're saying that you did it explanation for objection that the jury didn't actually answer the question that the judge is relying on to set the him out did you then make the that argument in your rule fifty babe motion to the district court that you're making to us now in other words judge you're setting the amount on something that the jury actually never found because you didn't ask them the question that you thought you asked them he i understand your question your honor i'm trying to i want to have a little bit of time l you a better way i think is it was such a convoluted question do you ever make the argument of the district court in any fashion that you're making to us now oh absolutely we have saluted trial there was a whole cycle of briefing on the consequence for damages they please the court michael eriksen behalf of a police american agencies i'd like to jump right to the heart of the questions that you began with with mr seale got on that is the question that's now before the utah supreme court and just for clarification judge bacharach oral argument was held in october and so now the decision is pending from oral argument the reason why this court can decide the jury verdict now is because of the issue that mr sagrada raised and that is that even if it even if there were an issue with the jury instruction the jury already found improper means in relationship to the interference with business relations claim in fact there's some irony to the appellants position in saying that these claims are the same and that they both require improper means interference the contract inference of business relations essentially just interference in general and then saying that the jury's decision of interference or purpose of finding improper means with the interference of business relations claim now doesn't apply to these claims that are from the appellant's point of view so closely tied together but there was one theory on the improper know the theories of improper means actually were different and that's an excellent point judge bacharach and i think that both both of us agree this is in the briefing both of us agree that those while agreements as being improper means only to mr reynolds and mr mitchell and the jury decided individually it for mr sloan mr mitchell and mr reynolds that imply that there was an interference with business relations which requires them to find for each one of them an improper means and we agree that there are two ways in which the jury could have found improper means for interference with business relations it was either unfounded litigation or deceit or both it was in there are also a cause of action for conspiracy with interfere with business relations there was and there was a finding by the jury of a conspiracy also so that the jury hypothetically could have thought found that mr sloan was liable by conspirator conspiring with those two individuals to  for the conspiracy would be the interference and they would be tortious the interfering with one another but i think that the way that would have been the way that would have worked out if the jury had under under that theory i think the jury would have said no mr sloan did not  was not involved in an interference of the business relations because he did not himself interfere with the riley has or use the threats about the riaa was in that that wasn't a ground for improper means and then they would have found him nonetheless  liable for part of the conspiracy so i think the only way that the jury checks the box on mr sloan having the crime of the elements of the interference of business relations tort is for the jury to have found either unfounded litigation or deceit and we've agreed on that in the briefs and i think the clearest way to see the the relationship between the interference with contract claim the interference of business relationship claim is the focus on the similarities between the claims mr salgado would like to focus on the differences and you highlighted that while there were salaries or there were there were shares offered but there are some obvious differences between a stallion in a manner but they're both horses and that's what we really need to focus on here and here's what the parties did not dispute this that the purpose of the lawsuit of the unfounded litigation that the jury found that it was to obtain a divorce from the contractual relationship between american agencies in air s these are mr sloan's exact words found on appellan disagreed about the justification of these motives at trial mr sloan and his and the other defendant said well this was our state of mind was that we've gotten advice of counsel that's found an  there is this dispute of whether or not it was an attack or that i was advice of counsel that that was the motivation for them to have filed a lawsuit but what was agreed upon was that the purpose of for mr sloan's own words the purpose of it was to end the relationship in the contractual relationship between american agencies and a r s and so it was a fundamental predicate that was similar to both the business relations and the interference of contract claim and had separate injuries the  contract interrupted american agencies ability to well to how the right of first refusal to obtain a r s and then as a in other fall out from that it interrupted the business relationships that  the heart of both of those claims was the was the reality that the the purpose of the lawsuit was to interrupt so this unfounded litigation that the jury found was to interrupt and end the relationship between american agencies and i r s similarly with deceit what was the deceit about the deceit was about the sale of a r s the circumvention of the right of first refusal and so if the jury found that deceit was employed to interfere with the business relationships it was a derivative of finding that deceit had been used in the sale of a r s the jury could not have found otherwise these these issues were inextricably linked and that's the language that we that  identified in the gifford and bill resorts case as that and that case you had a a common law negligence claim and you had a you had a statutory claim under the under a ski protection act and reached the statutory issue because they've been structured not to there is no error because the statute had defined that if someone the allegation was that they were not been assigned to go into out of boundary ski area and so if they had not but they didn't need to put up the sign for the scary because there was inherent dangers at the heart of both the common law claim and the statutory claim was an issue the same finding by the jury that there had been an inherent danger  risk to scheme and therefore even though the jury didn't reach the issue of the statutory claim a court this court found that it was not a reversible error because the jury would have had to have found the same at the same made the same finding the issues are inextricably linked the same is true here with the interference with contract and difference with business relations crimes i'd like to focus on the preservation issues for the remaining claims because they can be they can be easily and simply decided on that ground that like to pick up the the first of the first argument to the jury instructions on the third party litigation exception was that the the the parties contract and this is the parties between american agencies in error as there was no consequential damages provision and so the first argument was that this is the language that is quoted in the brief in their pirate this was a legal in possibility but the argument of why was a legal and possibility was the suggestion that a no consequential damages provision barred american agencies from recovering against mr sloan but of course there was no privity between american agencies and mr sloan and so consequential damages provision between american agencies and our us didn't apply toward seeking  seeking fees or consequential damages against a mr sloan so that theory was abandoned then at the jury conference that was repeated and you can you can see this by simply reading the citations that that mr seagal provides in the reply brief at the jury  the jury conference a few additional arguments were provided one dealt with a negligence a suggestion that in the the case law that the third party litigation would apply to torts has only been negligent torts we made very clear that was it was a  lower standard of of culpability in negligence it clearly would be a political to a higher standard of culpability for intentional torte secondly there is some suggestion that while they were trying to double dip they were getting contract damages  this was a tort like damage to explain the consequential damages of course ari a contract like damages those are the theories that were before the court before it was submitted to the jury after the verdict the first the next variation of the argument was separate litigation now this is important it was not the joint tortfeasor argument that's being made now it was simply separate litigation it didn't appear in the rule fifty a motion or in the rule fifty motion but it did a and the sponsors to the the the motion for attorney fees and the only argument was it was a simple argument and said third party litigation means a third party that can't be involved in the same lawsuit and we made the argument to the district court judge kimball agreed with that that doesn't make sense that that would encourage most of multiplicity of lawsuits by suggesting that simply because the for instance if you have a a an interference with contract that causes you to have a litigation with a breach of contract you'd have to bring them in separate claims separate lawsuits in order to be able to get your fees from from the port side of having to pursue somebody else for breach of contract judge kimmel said that agreed in that so that doesn't really make sense now for the first time on appeal the phrase joint twenty years appears if you search for that in the rule fifty a motion rule fifty motion even the response to the motion for attorney fees you won't find the phrase joint tort now admittedly that argument does have some merit to it when it's very discreetly applied and when you look at the joint tortfeasor of just the particular tort of interference of the contract but the cases that have held that have looked at it from a tort where the joint tort r were involved in the in the same tort but there wasn't fall out litigation and that's not the case here because here you had tortfeasor that were inducing the the reach of the contract and then you had a separate party a arrests that was then involved in litigation with us then you had another party say jacks that was involved with litigation over those torts in the district court said that there were differences between the claims and so you have a situation where you have a mole you have some claims that are dependent on the other actions and then you have some claims that do we would agree for instance the that had this issue been raised at the district court had been raised down below we would be agreed at looking at the case law and said well specifically you can you could try to carve out the interference the fees that were just involved with the interference with contract and say that among those joint tort users those fees can be recovered but we still have to recover fees for the breach of contract that was caused with a arrest we still want to be able to recover the fees that was required with the litigation with sage x and had that happen at the district court there could have been some allocation a few years made but it didn't and it and it simply can't be raised now on appeal and even more so doesn't ask for this court to to make a thin narrow ruling in just carving out some of these fees that would be a political to this new joint tortfeasor argument but he asked for reversal on on everything and that certainly can't be the case  so with with with with that background it seems very clear that the third party litigation arguments are being made or raise for the first time on appeal and were not properly preserved now this briefly on some of the other  of the only argument made in the rule fifty a motion was and i quote a is presented no evidence that any defendant intentionally interfered with any potential economic relations by any improper means or that any such claims interference caused an injury to a there was never any attempt here to identify whether or not it was a criticism of the intentionality element whether was the economic relations element the improper means element or causation it was simply a we like that denial of all the elements if we hypothetically  conclude that it was preserved how could a jury reasonably make any determination of whether the litigation was unfounded the district court says ok understandably i'm not going to tell you about the fact that i denied the motion to dismiss i'm not going to tell you what the the defenses were i'm not going to tell you anything the plaintiff lost so you determine whether or not the litigation had been unfounded i mean how does the jury your honor an excellent question there are two ways that the jury or two key facts of the jury was aware of as you point out there where the litigation was unsuccessful so they knew that the litigation was unsuccessful litigation here's the other key fact that they knew and admittedly this isn't fleshed out as as much in the briefs that probably should be but you can find it in appellant appendix an example of it in twelve  six and that was that there was an argument before both sides over the purpose and the motivations of the lawsuit and the appellant mr sloan specifically wanted to introduce evidence of this because they wanted to they wanted to try to attack the punitive damages the willfulness and so there was a lot of evidence that was submitted on state of mind over and over again the defendants argued that they were doing it on advice of counsel and so their motivations the purpose of the lawsuit was on advice of counsel now on the other hand the jury heard plenty of evidence that mr sloan had been had been wanting to get into the debt collection business and that what stood in his way was a contract both found that that there was an intent there in interfering with the contract in order to obtain that for himself now this is very important is brought up in the reply brief that we haven't had an opportunity to respond to mr salgado in the reply brief suggest that this what i've just pieced together this improper purpose combined with unsuccessful litigation would be is not properly improper means under the utah supreme court's holding in eldritch but if you look at the very end of that cision the very end of eldridge there's a discussion about what motivation is how motivation is still relevant now that they've now that the utah supreme court has done away with improper purpose what they said is look we've done away with improper purpose by itself if your court is just for business relations quite if you're towards just that you competed and you wanted their customers and you had an ill motive in want to get the customers that's not enough there has to be action to it there has to be a means to it and the example that they specifically called out was abuse of process and they said in under utah law there's a claim for abuse of process and what you have to prove an abuse of process is the use of legal means as you have to be successful the use of legal means for appt for essentially an illegitimate purpose and they said that combined you have a means you have the use of the legal means combined with improper purpose that that isn't that isn't improper means yeah i did not mean to cut you off but i think you ethically answered my question thank you very much thank you very much before the closing arguments and i've been sitting there looking at potentially at the list of what was the improper means we saw none of that we've correctly moved there is no evidence here improper means an improper perspective relations after we had the closing argument given i saw mr rice do his best to say well here's the improper means for interference relations i didn't know that going in i didn't know what it was there was no fifty a after that in the fifty b motion what we