2023 UT App 9

THE UTAH COURT OF APPEALS

PHYLLIS NASSI,

Appellant,

v.

MARK HATSIS,

Appellee.

Opinion

No. 20210009-CA

Filed January 20, 2023

Third District Court, Salt Lake Department

The Honorable Su Chon

No. 190905541

Richard D. Burbidge, Beau R. Burbidge, Carolyn J. 

LeDuc, and Michael S. Henderson, Attorneys

for Appellant

Rodney R. Parker and Adam M. Pace, Attorneys

for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which 

JUDGE DAVID N. MORTENSEN and JUSTICE JILL M. POHLMAN

concurred.

1

TENNEY, Judge:

¶1 When Valter Nassi purchased a downtown condominium 

in 2012, he was told that he could use a particular storage unit in 

the basement. Over the next several years, Nassi placed tens of 

thousands of dollars’ worth of clothes inside that unit. When 

1. Justice Jill M. Pohlman began her work on this case as a member 

of the Utah Court of Appeals. She became a member of the Utah 

Supreme Court thereafter and completed her work on this case 

sitting by special assignment as authorized by law. See generally

Utah R. Jud. Admin. 3-108(4).
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Mark Hatsis moved into a different condominium in this complex 

in 2018, however, he was told that this same storage unit was 

assigned to him. Upon discovering the clothes inside, he had them 

thrown away.

¶2 Nassi later sued Hatsis for conversion, trespass to chattels,

and intentional infliction of emotional distress. In conjunction 

with those claims, he also asked for punitive damages. But the 

district court subsequently granted summary judgment in 

Hatsis’s favor on all of Nassi’s claims. Nassi appealed that 

decision, and though Nassi passed away while this appeal was 

pending, Phyllis Nassi, his wife, was substituted for him pursuant 

to rule 38(a) of the Utah Rules of Appellate Procedure.2

¶3 For the reasons set forth below, we reverse the district 

court’s decision to grant summary judgment on the conversion

and trespass to chattels claims, as well as on Nassi’s request for 

punitive damages. But we affirm the district court’s decision to 

grant summary judgment in Hatsis’s favor on the intentional 

infliction of emotional distress claim.

BACKGROUND3

¶4 Valter Nassi purchased a condominium in 2012, and the

condominium complex had a number of “storage spaces” in the 

2. For clarity, we note that any references to “Nassi” in this 

opinion refer to Valter Nassi, while any references to Phyllis Nassi

will be more particularly designated.

3. When reviewing a district court’s decision granting summary 

judgment, we view the facts and all reasonable inferences drawn 

therefrom in the light most favorable to the nonmoving party. See 

Ockey v. Club Jam, 2014 UT App 126, ¶ 9, 328 P.3d 880. We 

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basement that were used by its residents. According to the 

covenants, conditions, and restrictions of the complex (the 

CC&Rs), the complex has “no obligation to provide any unit 

owner with [a] storage area other than [what] has been provided 

within each unit.” But the CC&Rs also state that the “Board of 

Directors” has “discretion” to “designate storage areas within the 

condominium common areas.” And over time, the Board of 

Directors’ exercise of this discretion was apparently something 

short of formalized or clear. Instead, assignment for the various

storage units was passed down from owner to owner in 

something akin to a loose word-of-mouth-based system.

¶5 When Nassi purchased his condominium in 2012, the 

previous owner told Nassi that storage units 3 and 6 were his “to 

use.”4 Nassi accordingly began using those storage units, and he 

continued to do so for the next several years. Of note, Nassi used 

unit 3 to store a large amount of clothing, including Italian suits, 

cashmere sweaters, and dress shirts.5 In addition to their 

monetary value, some of these items of clothing had sentimental 

accordingly describe the facts in the light most favorable to Nassi, 

as he was the nonmoving party.

4. When the previous owner was deposed as part of this case, he 

said that he didn’t recall telling Nassi “anything about” unit 3, 

and he further noted that “it wouldn’t have been [his] call to do 

that anyway.” But because of the procedural posture, we assume 

for purposes of this appeal that Nassi was indeed told by the 

previous owner that unit 3 was his to use.

5. In his complaint, Nassi alleged that the items he’d put in unit 3 

“include[d],” but were “not limited to, personal clothing.” In the 

portions of the record provided to us on appeal, however, there’s 

only a single passing reference to any item other than clothing.

Regardless, our decision doesn’t turn on a clothing/non-clothing 

distinction, so for narrative reasons only, we’ll refer to the unit as 

having contained items of clothing.
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value to him, including items that he’d brought from his native 

country and an item that had belonged to his deceased brother.

¶6 During subsequent proceedings in this case, Nassi said that 

he occasionally sprayed moth repellant in unit 3. But he also said 

that his clothes were in “plastic containers” or boxes and that none 

of them had been damaged by moths. And while he said that 

unit 3 sometimes smelled like moth repellant as a result of his 

spraying, he suggested that the clothes themselves didn’t smell.6

For her part, his wife later said that she never noticed a smell “of 

any kind” in unit 3 when she went into it to retrieve something 

for Nassi.

¶7 Nassi secured the items that he had placed in unit 3 by 

placing a lock on the door. He later estimated that the total value 

of what he had inside was “not less than $40,850.”

6. During Nassi’s deposition, the following exchange occurred:

Q: But would you agree that the clothes, you know, 

smelled like moth repellant?

A: Yeah, of course. I don’t know if the smell was 

going inside the box. I don’t recall that I smell.

There’s something of an ambiguity in this answer (perhaps due to 

a slight language barrier). But while Nassi’s initial response 

(“Yeah, of course”) might be understood as an agreement that he 

thought the clothes smelled, his two later statements (“I don’t 

know if the smell was going inside the box” and “I don’t recall 

that I smell”) seem to suggest that he didn’t think the clothes that 

were inside the boxes smelled. As noted, since this case involves 

review of a summary judgment ruling for which Hatsis was the 

moving party, we must view this answer and all reasonable 

inferences drawn therefrom in the light most favorable to Nassi.
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¶8 In October 2018, Mark Hatsis purchased condominium 

#201 in this same complex. Hatsis was informed by the previous 

owner that unit 3 “corresponded with” his condominium. When 

he found the lock on the door, he again verified from the previous 

owner that unit 3 was his to use. Hatsis then asked a handyman 

to remove the lock for him. Once inside unit 3, Hatsis found the 

clothes described above. Hatsis was “annoyed that [the previous 

owner] didn’t leave a broom swept space for” him. Hatsis later 

said that he inspected the items for “about ten minutes” and saw 

no identifying information. Hatsis also said that he thought he 

smelled mothballs, which he took as a sign that the items were 

“old” and “toxic to touch.” As a result, he allegedly concluded 

that the items belonged to a previous or deceased resident.

¶9 Hatsis instructed his housekeeper to “empty” unit 3 “by 

the end of the day,” and he further “suggested” that she could 

throw the items into a nearby dumpster. His housekeeper 

complied with his instruction and threw the items away. In a 

subsequent deposition, his housekeeper said that the space 

smelled a “little bit” like mold when she cleaned it, but she also 

said that she thought that “basement[s] always have some smell.”

¶10 Nassi soon discovered that his lock was gone and that the 

items he’d stored inside the unit were gone too. After learning 

what had happened, Nassi sued Hatsis for, among other things, 

conversion, trespass to chattels, and intentional infliction of 

emotional distress, and he also requested punitive damages.7

¶11 During discovery, Hatsis produced documents from both 

the condominium complex and the homeowners association that 

purported to establish that Nassi’s condominium had been 

assigned storage units 2 and 6, as well as that it was Hatsis’s 

condominium (not Nassi’s) that had been assigned storage unit 3.

7. Nassi also brought claims for trespass to property and replevin, 

but he later voluntarily dismissed those claims, and they are not 

at issue in this appeal.
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Hatsis also produced a photograph of unit 3’s door, which

showed a note on the door with the words “Gorey 201” written in 

black marker—an apparent reference to a prior owner of Hatsis’s 

condominium who had the surname Gorey.

¶12 Hatsis later moved for summary judgment on all of Nassi’s 

claims. With respect to the conversion and trespass to chattels 

claims, Hatsis argued that he was entitled to dispose of the 

property that he found inside unit 3 because the unit was assigned 

to him. Hatsis further argued that he was not liable on these 

claims because he “reasonably believed, based on his personal 

inspection of the clothing, that the clothing was valueless, toxic, 

and needed to be disposed of” since it had been abandoned.

¶13 With respect to Nassi’s intentional infliction of emotional 

distress claim, Hatsis argued that his conduct was not 

purposefully directed toward Nassi and that it was not 

sufficiently outrageous as required to support such a claim. And 

with respect to the request for punitive damages, Hatsis likewise 

argued that his conduct was not sufficiently troubling to support 

a punitive damages award.

¶14 After receiving Nassi’s response and hearing arguments 

from both parties, the district court granted Hatsis’s motion for 

summary judgment. In its ruling, the court initially determined 

that there was no “dispute of material fact” that Nassi “did not 

have a legal right to use” unit 3. The court made this 

determination based on the records from the condominium 

complex and the homeowners association, as well as the “sign on 

the door” that Hatsis had found that had the name of a prior 

owner of his unit.8

8. In the proceedings before the district court, Nassi raised some 

question about whether this note was actually on the door at the 

time that Hatsis had the lock removed. Despite this, the district 

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¶15 In part based on this determination, the district court then 

granted Hatsis’s request for summary judgment on each of 

Nassi’s claims. First, with respect to Nassi’s conversion and 

trespass to chattels claims, the court held that Hatsis was entitled 

to summary judgment because he “reasonably believed that the 

clothing had been abandoned and that his apartment had sole use 

of” unit 3. The court further opined that Hatsis was entitled to 

summary judgment because his “actions may [have been]

reasonable under the circumstances.”

¶16 With respect to Nassi’s intentional infliction of emotional 

distress claim, the court held that Hatsis “had no legal obligation 

to track down the owner of clothing that smelled musty and 

appeared old and abandoned.” In the court’s view, although 

Nassi contended that Hatsis’s decision to “dispos[e]” of his 

clothing was “very upsetting,” Hatsis was entitled to summary 

judgment because his “actions were not extreme, outrageous, 

intolerable, or atrocious.”

¶17 Finally, with respect to Nassi’s request for punitive 

damages, the court concluded that because the intentional 

infliction of emotional distress claim “was dismissed, there are no 

grounds for punitive damages.” Seemingly elaborating further, 

the court then recited the statutory standard, under which 

punitive damages are warranted when it is “established by clear 

and convincing evidence that the acts or omission[s] of the 

tortfeasor are the result of willful and malicious or intentionally 

court accepted Hatsis’s claim that the note was there as part of its 

summary judgment ruling.

But summary judgment is warranted only when “there is 

no genuine dispute as to any material fact and the moving party 

is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a).

To the extent that the court resolved this disputed fact at this stage 

in Hatsis’s favor, this was improper. As set forth below, however, 

this dispute is immaterial to our ultimate resolution of the issues 

raised on appeal.
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fraudulent conduct, or conduct that manifests a knowing and 

reckless indifference toward, and a disregard of, the rights of 

others.” (Quoting Utah Code § 78B-8-201(1)(a).) The court then 

stated that Nassi was also required to show that Hatsis knew or 

should have known that his “conduct would, in a high degree of 

probability, result in substantial harm to another,” as well as that 

his conduct was “highly unreasonable conduct, or an extreme 

departure from ordinary care, in a situation where a high degree 

of danger is apparent.” (Quoting Nguyen v. IHC Health Services,

Inc., 2010 UT App 85, ¶ 12, 232 P.3d 529.) Based on these 

standards, the court ruled that although “[t]his was an 

unfortunate situation,” Nassi “ha[d] no legal grounds for 

recovery of punitive damages” because “he show[ed] no right to 

use [unit 3]” and because Hatsis “reasonably believed the clothes 

were left by a prior tenant of his apartment.”

¶18 Nassi timely appealed the court’s grant of summary 

judgment. As noted, Nassi passed away during the pendency of 

this appeal, and his wife has been substituted for him pursuant to 

rule 38(a) of the Utah Rules of Appellate Procedure.

ISSUE AND STANDARD OF REVIEW

¶19 Nassi challenges the district court’s grant of summary 

judgment to Hatsis. “We review the district court’s decision on 

summary judgment de novo.” Potter v. South Salt Lake City, 2018 

UT 21, ¶ 16, 422 P.3d 803 (emphasis omitted).

ANALYSIS

¶20 “Summary judgment is appropriate ‘if the moving party 

shows that there is no genuine dispute as to any material fact and 

the moving party is entitled to judgment as a matter of law.’” 

Jessup v. Five Star Franchising LLC, 2022 UT App 86, ¶ 27, 515 P.3d 

466 (quoting Utah R. Civ. P. 56(a)). A genuine dispute of material 

fact does not exist if “reasonable jurors, properly instructed, 
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20210009-CA 9 2023 UT App 9

would be able to come to only one conclusion.” Heslop v. Bear River 

Mut. Ins. Co., 2017 UT 5, ¶ 20, 390 P.3d 314 (quotation simplified). 

But if jurors “might come to different conclusions” after hearing 

the facts, then summary judgment is unwarranted. Id. (quotation 

simplified). Summary judgment is thus appropriate only when 

“no reasonable factfinder could rule in the nonmoving party’s 

favor.” Salo v. Tyler, 2018 UT 7, ¶ 30, 417 P.3d 581.

¶21 As explained below, we conclude that reasonable 

factfinders could reach different conclusions regarding questions 

of fact relevant to Nassi’s conversion and trespass to chattels 

claims. But we also conclude that no reasonable factfinder could 

find in Nassi’s favor on the intentional infliction of emotional 

distress claim, so we affirm as to that claim. We further conclude 

that the district court provided no valid legal basis for granting 

summary judgment on the request for punitive damages.9

9. Nassi also argues that the court erred in admitting documents 

that purported to establish that unit 3 was assigned to Hatsis (not 

Nassi), as well as by then concluding that there was no dispute 

that unit 3 was assigned to Hatsis’s condominium.

We need not address these issues, however, because the 

question of whether Hatsis was assigned unit 3 ultimately proves 

immaterial to our determination that he was not entitled to 

summary judgment on the conversion, trespass to chattels, and 

punitive damages claims. As explained below, even if it was true 

that Hatsis was assigned unit 3, a factfinder could still reasonably 

determine that he was not entitled to dispose of the items in the 

unit. And these issues also prove immaterial to our determination 

that Hatsis was entitled to summary judgment on the intentional 

infliction of emotional distress claim. As explained, regardless of 

whether he was assigned unit 3, no reasonable factfinder could 

determine that the high standard for an intentional infliction of 

emotional distress claim has been met here.
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I. Conversion and Trespass to Chattels

¶22 Nassi first argues that the district court erred in granting 

summary judgment on the conversion and trespass to chattels 

claims. We agree.

¶23 “Conversion is an act of willful interference with a chattel, 

done without lawful justification by which the person entitled 

thereto is deprived of its use and possession.” Kirkham v. Widdison,

2019 UT App 97, ¶ 24, 447 P.3d 89 (quotation simplified). “A basic 

requirement of conversion is that there be a wrongful exercise of 

control over personal property in violation of the rights of its 

owner.” Steinberg v. Cmty. Housing Services-Capitol Villa, Ltd., 2014 

UT App 102, ¶ 11, 326 P.3d 673 (quotation simplified). Similarly, 

trespass to chattels is understood to occur when one 

“intentionally (a) dispossess[es] another of the chattel, or (b) 

us[es] or intermeddl[es] with a chattel in the possession of 

another.” Restatement (Second) of Torts § 217 (Am. L. Inst. 1965)

(quotation simplified).10

10. In distinguishing between the torts of conversion and trespass 

to chattels, some authorities understand conversion as 

“entail[ing] a more serious deprivation of the owner’s rights such 

that an award of the full value of the property is appropriate.” 75 

Am. Jur. 2d Trespass § 14 (2022). Some courts have similarly held 

that the difference turns on the degree of interference and the 

scope of the available damages. See, e.g., Weatherly v. Hospice of 

Lake Cumberland, Inc., No. 2018-CA-000248-MR, 2019 WL 1422848, 

at *2 (Ky. Ct. App. Mar. 29, 2019); Morrow v. First Interstate Bank of 

Or., NA, 847 P.2d 411, 413 (Or. Ct. App. 1993); Jones v. Boswell, 250 

S.W.3d 140, 143 (Tex. App. 2008).

Nassi’s property was thrown out and thus lost entirely, 

however, and the district court also did not base its summary 

judgment ruling on any question relating to the available 

damages. For purposes of this appeal, the viability of both claims 

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¶24 Here, there’s no dispute that the property inside unit 3 

belonged to Nassi and that Hatsis caused it to be thrown away. 

As a result, there’s also no dispute that Hatsis completely 

deprived Nassi of his ability to use and possess his own property. 

These claims thus turn on whether Hatsis had any “lawful 

justification” for doing so, Kirkham, 2019 UT App 97, ¶ 24

(quotation simplified), or, in other words, whether his actions 

were “wrongful,” Steinberg, 2014 UT App 102, ¶ 11 (quotation 

simplified).

¶25 Our prior cases have not given much substantive meaning 

to the “lawful justification” and “wrongful” standards, at least in 

a context like the one at issue here. In some cases, for example, the 

dispute involved parties who had contracted with each other, so 

the analyses of whether the action was justified or wrongful 

rightly focused on whether the taking was allowed under the 

contract. See, e.g., Bonnie & Hyde, Inc. v. Lynch, 2013 UT App 153, 

¶¶ 30–33, 305 P.3d 196; Firkins v. Ruegner, 2009 UT App 167, ¶ 5, 

213 P.3d 895. In another, a statute was seemingly applicable to the 

situation, thus allowing the analysis to focus on whether the 

action was statutorily permitted. See, e.g., Lawrence v. 

Intermountain, Inc., 2010 UT App 313, ¶ 16, 243 P.3d 508.

¶26 Nassi and Hatsis had no contract, however, and neither 

party has pointed to any statute that provides an answer to 

whether Hatsis’s conduct was legally permitted. In arguing that 

his conduct was justified, Hatsis instead invokes section 260 of the 

thus turns on whether Hatsis had a right to dispose of the 

property at all. Because of this, the parties on appeal have 

addressed these two claims together, and we’ll follow suit.

Cf. Wint v. Alabama Eye & Tissue Bank, 675 So. 2d 383, 384–85 (Ala. 

1996) (explaining that because “the difference between trespass to 

chattels and conversion is immaterial when there is a wrongful 

taking and carrying away of the property of another,” there was 

“no need to treat the trespass to chattels and conversion claims 

separately” (quotation simplified)).
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Restatement (Second) of Torts. There, the Restatement posits that 

a person

is privileged to commit an act which would 

otherwise be a trespass to a chattel or a conversion 

if the act is, or is reasonably believed to be, necessary 

to protect the actor’s land or chattels or his 

possession of them, and the harm inflicted is not 

unreasonable as compared with the harm 

threatened.

Restatement (Second) of Torts § 260(1) (Am. L. Inst. 1965).

¶27 Utah’s appellate courts have not formally adopted this 

Restatement section, nor have they recognized the existence of its 

proposed privilege. We note, however, that other courts have 

relied on this section when considering conversion or trespass to 

chattels claims in situations analogous to this one—i.e., claims 

that turned on what a landowner could lawfully do with items 

that were owned by others and that had been left on the 

landowner’s property. See, e.g., Sullivan v. Delisa, 923 A.2d 760, 

770–71 (Conn. App. Ct. 2007) (applying this provision to a 

landowner’s right to remove a bulldozer that had been left on her 

property); Crawley v. Price, 692 N.W.2d 44, 50 (Iowa Ct. App. 2004) 

(applying this provision to a homeowner’s right to dispose of 

“valueless property” that had been left behind by a prior 

occupant); Kirschbaum v. McLaurin Parking Co., 656 S.E.2d 683, 687 

(N.C. Ct. App. 2008) (applying this provision to a parking lot

owner’s ability to boot a car left in the lot); Sears v. Summit, Inc., 

616 P.2d 765, 769–70 (Wyo. 1980) (applying this provision to a 

landowner’s claim that he could forcibly detain privately owned 

vehicles that were on his property).

¶28 In what we understand to be a nod to the general common 

law, our supreme court has agreed that “Utah follows orthodox 

criteria in applying the doctrine of conversion.” Benton v. State

Lands & Forestry, 709 P.2d 362, 365 (Utah 1985) (quotation 
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simplified). While we have no need to formally adopt section 260 

of the Restatement, we do agree that the principles expressed in it 

provide an accurate expression of when a landowner can lawfully 

exercise control over (or even dispose of) another person’s

property that has been left behind on the landowner’s property.

¶29 But even so, we conclude that the district court erred when 

it granted Hatsis’s request for summary judgment on the 

conversion and trespass to chattels claims. To begin, we note that 

this rule largely hinges on what would be “reasonabl[e]” under 

the circumstances. Restatement (Second) of Torts § 260(1). 

“Ordinarily, . . . questions of reasonableness necessarily pose 

questions of fact which should be reserved for jury resolution and, 

except in the clearest cases, should not be disposed of by summary 

judgment.” Darrington v. Wade, 812 P.2d 452, 459 (Utah Ct. App. 

1991). Such questions should be taken from a jury only when 

“reasonable minds cannot differ as to the inferences to be drawn 

from the undisputed facts.” Penunuri v. Sundance Partners, Ltd., 

2017 UT 54, ¶ 33, 423 P.3d 1150 (quotation simplified).

¶30 Hatsis’s proposed defense turns on (1) whether he 

“reasonably believed” that it was necessary to throw away the 

items, and (2) whether “the harm inflicted” by doing so was 

“unreasonable as compared with the harm threatened” by the 

items’ continued presence in unit 3. Restatement (Second) of Torts 

§ 260(1). But because both questions turn on reasonableness, both 

are questions of fact that must be left for a jury unless this is one 

of “the clearest cases.” Darrington, 812 P.2d at 459.

¶31 This is not one of the clearest cases, particularly when the 

facts are viewed in the light most favorable to Nassi. Even if it’s 

true that this storage unit was assigned to Hatsis, the base facts 

that we’re confronted with are that, shortly after purchasing his 

condominium, Hatsis discovered a large amount of clothing 

inside his assigned storage unit and that he then had the clothing

thrown away. Hatsis’s initial defense is that he was entitled to 

throw the clothes away because he believed that they were 
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abandoned. But on this record, a jury could conclude that this 

belief was unreasonable. After all, there was a lock on the unit’s 

door, thus suggesting that someone intended to protect the items 

inside. And when Hatsis had a handyman remove the lock, he 

didn’t discover a few stray items of limited value inside the unit. 

Rather, he discovered a unit full of expensive clothes, including 

many Italian suits, cashmere sweaters, and dress shirts. Indeed, 

Nassi later estimated (and because of this procedural posture, we 

must assume) that there was “not less than $40,850” worth of 

clothes inside. From this, a jury could conclude that it would have 

been unreasonable for Hatsis to assume that someone had 

abandoned such a costly collection of clothing and that he should 

have instead surmised that someone, somewhere, still maintained 

an active interest in it.

¶32 Pushing back, Hatsis insists that, despite the items’ value,

he was entitled to believe that they were abandoned because unit 

3 smelled like mothballs. But there are contrary facts about this 

issue in the record too. In her deposition, Nassi’s wife said that 

she never noticed a smell when she entered unit 3 to retrieve 

something for Nassi. And Nassi further suggested that he didn’t 

think that the clothes themselves smelled of moth repellant.

Viewing the facts in the light most favorable to Nassi, a jury could 

therefore disregard this aspect of Hatsis’s assertion.

¶33 Moreover, we again note that the principle expressed in the 

Restatement cited by Hatsis turns, in part, on whether the actor 

“reasonably believed” that it was “necessary” to perform the act 

in question in order to protect the actor’s property, and it further 

turns on whether “the harm inflicted” was “unreasonable as 

compared with the harm threatened.” Restatement (Second) of 

Torts § 260(1). Elaborating further, a comment to this section 

asserts that

[s]ince the dispossession of another of a chattel is 

ordinarily a more serious invasion of his interest in 

the chattel than a mere intermeddling with it, it may 
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well be that the actor is not privileged to dispossess

another of a chattel under circumstances which 

would make it reasonable for him to intermeddle 

with the chattel.

Id. § 260 cmt. c (emphases added).

¶34 This clarification is significant. Again, Hatsis discovered 

these items inside a basement storage unit in a condominium 

complex—a place that, by its nature, has many residents (both 

past and present) and that also has both building management 

and a homeowners association to turn to for inquiry and dispute 

resolution. Because of this, a jury could justifiably conclude that 

while it may have been reasonable for Hatsis to remove the items 

from his storage unit (thereby “intermeddling” with them), it was 

not reasonable for him to have them immediately thrown into a 

dumpster (thus “dispossessing” the rightful owner of those items) 

without first taking some intermediate step—such as putting the 

items in the hall or a common area, posting a sign on the door and 

leaving it there for some period to see who responded, or making 

inquiries with building management or the homeowners 

association to see if someone in the building owned the items and 

had put them in unit 3 by mistake or in accordance with some 

unknown agreement.

¶35 When the district court concluded that summary judgment 

was appropriate because Hatsis’s “actions may [have been] 

reasonable under the circumstances” (emphasis added), the 

district court thus had the standard backwards. Although a jury 

could think that Hatsis’s conduct was reasonable, it was also 

possible that a jury could think it was not. Again, however, 

summary judgment is appropriate on a fact question only “in the 

clearest cases,” Darrington, 812 P.2d at 459, such as when

“reasonable minds cannot differ as to the inferences to be drawn 

from the undisputed facts,” Penunuri, 2017 UT 54, ¶ 33 (quotation 

simplified).
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¶36 While we express no opinion about the proper or ultimate 

outcome of this case, we do conclude that a jury could reasonably 

believe that Hatsis exercised “wrongful . . . control” over Nassi’s 

property, Steinberg, 2014 UT App 102, ¶ 11 (quotation simplified), 

when he threw away the valuable clothes inside the unit without 

first taking a less permanent step. We accordingly reverse the 

district court’s decision to grant summary judgment in Hatsis’s 

favor on the conversion and trespass to chattels claims.

II. Intentional Infliction of Emotional Distress

¶37 Nassi next challenges the district court’s decision to grant 

summary judgment to Hatsis on Nassi’s claim for intentional 

infliction of emotional distress. On this, we agree with the district 

court.

¶38 The tort of intentional infliction of emotional distress 

requires proof

that 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.

Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶ 58, 70 

P.3d 17 (emphasis in original, quotation otherwise simplified). 

This is a two-part test, and the second step, again, requires that 

the conduct be “outrageous and intolerable.” Id. (quotation 

simplified).

¶39 Upon receiving a motion like Hatsis’s, “it is for the court to 

determine, in the first instance, whether the defendant’s conduct 

may reasonably be regarded as so extreme and outrageous as to 
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permit recovery.” Sorensen v. Barbuto, 2006 UT App 340, ¶ 21, 143 

P.3d 295 (quotation simplified). But our supreme court has 

“cautioned” that, “due to the highly subjective and volatile nature 

of emotional distress and the variability of its causations, the 

courts have historically been wary of dangers in opening the door 

to recovery” for intentional infliction of emotional distress.

Bennett, 2003 UT 9, ¶ 59 (quotation simplified).

¶40 When considering this element, we have thus recognized 

that “an act is not necessarily outrageous merely because it is 

tortious, injurious, or malicious, or because it would give rise to 

punitive damages, or because it is illegal.” Nguyen v. IHC Health 

Services, Inc., 2010 UT App 85, ¶ 9, 232 P.3d 529 (quotation 

simplified). Instead, we have held that the conduct at issue “must 

be more than unreasonable, unkind, or unfair,” and it “must 

evoke outrage or revulsion.” Id. (quotation simplified). And we

have further held that to prevail on such a claim, the “plaintiff 

must be able to prove that the defendant engaged in 

extraordinarily vile conduct, conduct that is atrocious, and utterly 

intolerable in a civilized community.” Chard v. Chard, 2019 UT 

App 209, ¶ 57, 456 P.3d 776 (quotation simplified).

¶41 Line-drawing exercises of this sort are often comparative, 

and past Utah cases help illustrate the kinds of conduct that can, 

or cannot, satisfy this element. In Sorensen, for example, we held 

that an intentional infliction of emotional distress claim could 

survive a dismissal motion where a doctor “communicated ex 

parte” with an attorney who was representing the other side in a 

personal injury suit filed by his former patient, “became a paid 

advocate” for his former patient’s “adversary,” and then asserted

medical diagnoses about his former patient during the litigation 

that were “[c]ontrary” to his earlier diagnoses. 2006 UT App 340, 

¶¶ 2–3, 21–22. And in Jackson v. Brown, our supreme court held 

that an intentional infliction of emotional distress claim could 

survive a dismissal motion where a man promised to marry a 

woman, “proposed, scheduled a ceremony, and acquired a 

[marriage] license,” but then “withdrew his promise only hours 
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20210009-CA 18 2023 UT App 9

before the time scheduled for the ceremony,” all without ever 

revealing to her that he was “already married” “at all times 

during his relationship” with her and thus legally incapable of 

marrying her at all. 904 P.2d 685, 686, 688 (Utah 1995).

¶42 By contrast, in Camco Construction Inc. v. Utah Baseball 

Academy Inc., we held that a plaintiff had no viable claim for 

intentional infliction of emotional distress where the conduct at 

issue involved the defendant “parking near someone’s house, 

visiting a facility where that person works three times, and 

threatening to sue.” 2018 UT App 78, ¶ 20, 424 P.3d 1154. We 

reasoned that while this conduct may have been “unreasonable, 

unkind, or unfair,” it still did “not evoke outrage or revulsion.” Id.

And in Chard, we held that a person’s “aggressive actions in 

attempting to apply ‘pressure’” on another to “gain control of the 

family restaurant business” likewise could not meet the standard, 

reasoning that although the conduct at issue was “aggressive and 

not particularly reasonable,” those were not the “type of 

extraordinarily vile actions that the law views as utterly 

intolerable in a civilized community.” 2019 UT App 209, ¶ 59

(quotation simplified).

¶43 In this case, we held above that a jury could conclude that 

Hatsis was liable for conversion and trespass to chattels. And as 

explained, this was so because a jury could conclude that Hatsis 

acted unreasonably by throwing out Nassi’s property despite 

having other less destructive options available. But even so, we 

don’t believe that a jury could reasonably conclude that this 

conduct was so outrageous or intolerable that it could also 

support a claim for intentional infliction of emotional distress.

Even if the known facts are viewed in the light most favorable to

Nassi, what happened is that Hatsis threw away items that he 

found inside a storage unit that he had just been told was assigned 

to him. Was this conduct destructive? Unquestionably yes. Was it 

unreasonable and unnecessary under the circumstances? 

Possibly, which is why a jury should decide the conversion and 

trespass to chattels claims. But was it so outrageous and 
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20210009-CA 19 2023 UT App 9

extraordinarily vile that it evokes revulsion? We don’t believe that 

this higher bar could be met. We accordingly affirm the district 

court’s decision to grant summary judgment to Hatsis on this 

claim.

III. Punitive Damages

¶44 Finally, Nassi argues that the district court erred in 

granting summary judgment on his request for punitive damages. 

On this, we agree with Nassi.

¶45 The district court initially concluded that because the 

intentional infliction of emotional distress claim was dismissed, 

there were “no grounds for punitive damages.” But although 

we’ve held that the court appropriately granted summary 

judgment on the intentional infliction of emotional distress claim, 

this does not mean that there was no legal basis for awarding 

punitive damages. In a number of cases, Utah appellate courts 

have held that punitive damages can be based on a valid 

conversion claim. See, e.g., Mahana v. Onyx Acceptance Corp., 2004 

UT 59, ¶ 47, 96 P.3d 893; Lawrence v. Intermountain, Inc., 2010 UT 

App 313, ¶ 21, 243 P.3d 508; Burton Lumber & Hardware Co. v. 

Graham, 2008 UT App 207, ¶ 26, 186 P.3d 1012; Lake Philgas Service

v. Valley Bank & Trust Co., 845 P.2d 951, 959–60 (Utah Ct. App. 

1993). Above, we reversed the district court’s decision to grant 

summary judgment on the conversion claim. As a result, that 

claim can provide the basis for an award of punitive damages. To 

the extent that the district court held that there were no legal 

grounds for punitive damages, the ruling was erroneous and 

must be reversed.

¶46 As noted, the court also discussed the punitive damages 

standard. In light of its initial and seemingly definitive assertion 

that punitive damages could only be linked to the intentional 

infliction of emotional distress claim, it’s somewhat unclear 

whether the court meant for this to be an elaboration of why it 

thought there was no triable claim for intentional infliction of 
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20210009-CA 20 2023 UT App 9

emotional distress, or whether it instead meant this as an 

explanation for why punitive damages could not also be based on 

a conversion claim. In any event, even if we view the court’s 

discussion as an explanation for why punitive damages could not 

attach to the conversion claim, we conclude that the court erred 

there too.

¶47 By statute, punitive damages are available when 

compensatory or general damages are awarded and “it is 

established by clear and convincing evidence that the acts or 

omissions of the tortfeasor are the result of willful and malicious 

or intentionally fraudulent conduct, or conduct that manifests a 

knowing and reckless indifference toward, and a disregard of, the 

rights of others.” Utah Code § 78B-8-201(1)(a). After accurately 

reciting this standard, the district court then went further, reciting

a passage from Nguyen in which we opined that the “defendant 

must either know or should know” that his conduct “would, in a 

high degree of probability, result in substantial harm to another, 

and the conduct must be highly unreasonable conduct, or an 

extreme departure from ordinary care, in a situation where a high 

degree of danger is apparent.” 2010 UT App 85, ¶ 12 (quotation 

simplified). We note here that Nguyen drew this additional 

language from Behrens v. Raleigh Hills Hospital, Inc., 675 P.2d 1179, 

1187 (Utah 1983), and that Behrens drew that language from 

Danculovich v. Brown, 593 P.2d 187, 191, 193 (Wyo. 1979), a 

decision from the Wyoming Supreme Court that interpreted

Wyoming’s own punitive damages standard.

¶48 Before 1989, “punitive damages law in Utah was entirely a 

matter of common law.” C.T. ex rel. Taylor v. Johnson, 1999 UT 35, 

¶ 32, 977 P.2d 479 (Zimmerman, J., dissenting). Indeed, around 

that same time, our supreme court acknowledged that the cases 

setting forth the “legal standard for awarding punitive damages 

in tort cases appear[ed] to be somewhat in conflict.” Miskin v. 

Carter, 761 P.2d 1378, 1379 (Utah 1988). In 1989, however, our 

legislature enacted Utah Code § 78-18-1 (which has since been 

renumbered as Utah Code § 78B-8-201) “to address for the first 
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20210009-CA 21 2023 UT App 9

time in statutory form Utah’s law regarding punitive damages.”

C.T. ex rel. Taylor, 1999 UT 35, ¶ 32 (Zimmerman, J., dissenting).

We see no basis in the current Utah statute for the additional 

requirements set forth in Behrens and Nguyen and which were 

apparently imposed by the district court here. Again, under our 

current statute, a plaintiff must establish “by clear and convincing 

evidence that the acts or omissions of the tortfeasor are the result 

of willful and malicious or intentionally fraudulent conduct, or 

conduct that manifests a knowing and reckless indifference 

toward, and a disregard of, the rights of others.” Utah Code 

§ 78B-8-201(1)(a). To the extent that the district court’s ruling 

required Nassi to satisfy some additional standard that goes 

beyond this, we conclude that the ruling was improper. We 

therefore reverse the ruling for this additional reason.

CONCLUSION

¶49 For the reasons stated above, we reverse the district court’s 

decision to grant summary judgment on the conversion and 

trespass to chattels claims, as well as its decision to dismiss the 

request for punitive damages, but we affirm its decision to grant 

summary judgment on the intentional infliction of emotional 

distress claim. We accordingly remand for further proceedings 

consistent with this opinion.