Utah Case Law


AGLER v. SCHEIDLE, 2006 UT App 495 Brigham Agler and Jayme
Olson, Plaintiffs and Appellants, v. Kevin Scheidle and
Meshwerks, Inc., Defendants and Appellees. Case No.
20060332-CA. Utah Court of Appeals. Filed December 14,

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from the Third District, Salt Lake
Department, 050909770. The Honorable Tyrone E. Medley.

J. Bryan Quesenberry, Stephen Quesenberry, and D. Scott
Davis, Provo, for Appellants.

Jerome Romero, Salt Lake City, for Appellees.

Before Judges DAVIS, McHUGH, and ORME.


DAVIS, Judge:

Plaintiffs Brigham Agler and Jayme Olson appeal the trial
court’s grant of Defendants Kevin Scheidle and Meshwerks
Inc.’s motion for summary judgment. See Utah R. Civ. P.
56(c). Plaintiffs also appeal the trial court’s denial of
their motion brought under rule 56(f) of the Utah Rules of
Civil Procedure. See id. 56(f). We affirm.

Plaintiffs first contend that genuine issues of material
fact exist regarding their malicious prosecution claim. We
will affirm a grant of summary judgment only “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.” Id. 56(c). “Because the determination of
whether summary judgment is appropriate presents a question
of law, [appellate courts] accord no deference to the trial
court’s decision and instead review it for correctness.”
DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835, 841 (Utah

A malicious prosecution claim has four elements: “(1) A
criminal proceeding instituted or continued by the
defendant against the plaintiff; (2) termination of the
proceeding in favor of the accused; (3) absence of probable
cause for the proceeding; [and] (4) ‘malice,’ or a primary
purpose other than that of bringing an offender to
justice.” Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950,
959 (Utah Ct.App. 1989) (alteration in original)
(quotations and citation omitted). Only the probable cause
and malice elements are disputed here.

A defendant in a malicious prosecution claim “has probable
cause only when a reasonable man in his position would
believe, and the defendant does in fact believe, that he
has sufficient information as to both the facts and the
applicable law to justify him in initiating the criminal
proceedings without further investigation or verification.”
Hodges v. Gibson Prods. Co., 811 P.2d 151, 158 (Utah 1991)
(quotations and citation omitted). The undisputed facts
establish that immediately prior to their departure from
Meshwerks, Plaintiffs copied software”tools” and digitized
3D models from Meshwerks’s computers without the knowledge
or consent of Defendants. The record also supports
Defendants’ belief that these items were proprietary.[fn1]
Indeed, in their opposition to Defendants’ motion for
summary judgment, Plaintiffs admit that Meshwerks believed
that its digitized 3D models were proprietary. A reasonable
person in Defendants’ position would believe, and the
record supports Defendants’ belief, that these undisputed
facts constituted a theft worthy of initiating criminal
proceedings without the need for further investigation. See
id. The undisputed facts show that Defendants had probable

Plaintiffs list numerous facts in support of their claim
that disputed facts preclude summary judgment. However, the
facts cited by Plaintiffs are either immaterial or
irrelevant to the determination of probable cause. Summary
judgment is precluded not “simply whenever some fact
remains in dispute, but only when a material fact is
genuinely controverted.” Heglar Ranch, Inc. v. Stillman,
619 P.2d 1390, 1391 (Utah 1980). The fact that Plaintiffs
may have taken work home in the past is immaterial to
whether Plaintiffs committed theft by taking 3D models and
software tools from Meshwerks at the close of their
employment. Similarly, the notions that Plaintiffs did not
believe that the 3D models and software tools were
proprietary or that Defendants gave them implied consent to
take the items, even if true, have no bearing on whether
Defendants reasonably believed that Plaintiffs had stolen
from Meshwerks. Finally, Defendant Scheidle’s alleged
copying of files from his previous job is irrelevant here.

“‘[T]he mere existence of genuine issues of fact . . . does
not preclude the entry of summary judgment if those issues
are immaterial to resolution of the case.'” Burns v.
Cannondale Bicycle Co., 876 P.2d 415, 419 (Utah Ct.App.
1994) (omission in original) (quoting Horgan v. Indus.
Design Corp., 657 P.2d 751,752 (Utah 1982)). All of the
disputed facts cited by Plaintiffs are immaterial.
Therefore, we determine “that there is no genuine issue as
to any material fact” regarding Plaintiffs’ failure to meet
the probable cause element of their malicious prosecution
claim. Utah R. Civ. P. 56(c).

Next, Plaintiffs assert that factual issues remain
regarding whether Defendants acted maliciously when they
initiated criminal proceedings. The malice element means
that Defendants initiated criminal proceedings for “a
primary purpose other than that of bringing an offender to
justice.” Amica Mut. Ins. Co., 768 P.2d at 959. “[I]n
proving malice in a civil action it is not necessary to
prove actual spite, ill will or grudge, but it is only
necessary to prove wrongful or improper motive.” Johnson v.
Mount Ogden Enters., 23 Utah 2d 169, 460 P.2d 333, 335
(1969). However, the record is void of any evidence beyond
Plaintiffs’ speculation that Defendants initiated criminal
proceedings in order to retaliate against Plaintiffs for
leaving Meshwerks. Rather, the undisputed facts establish
that Defendants acted for the legitimate purpose of
protecting company property. Thus, the undisputed facts
show the absence of malice, which precludes Plaintiffs from
succeeding on their malicious prosecution claim. The trial
court’s grant of summary judgment was proper. See Utah R.
Civ. P. 56(c).

Plaintiffs also argue that issues of material fact remain
with regard to their abuse of process claim. “[T]o
establish a claim for abuse of process, a claimant must
demonstrate ‘[f]irst, an ulterior purpose; [and] second, an
act in the use of the process not proper in the regular
prosecution of the proceedings.'” Anderson Dev. Co. v.
Tobias, 2005 UT 36, § 65, 116 P.3d 323 (second and
third alterations in original) (quotations and citation
omitted). Respecting the ulterior purpose element,
Plaintiffs again allege that disputed material facts remain
regarding whether Defendants used the civil lawsuit to
retaliate against them for leaving Meshwerks. Again, this
inference is not supported by the facts, which indicate
that Defendants brought the civil suit to enjoin Plaintiffs
from using Meshwerks’s software tools and 3D models.
Respecting the abuse of process element, Plaintiffs again
cite the immaterial fact that they had been allowed to take
work home with them prior to leaving the company as
evidence of improper process. However, the record reveals
no abusive tactics or other improper use of process by
Defendants during the civil case. Thus, “there is no genuine
issue as to any material fact” regarding the abuse of
process claim and Defendants are “entitled to a judgment as
a matter of law.” Utah R. Civ. P. 56(c). We affirm the
trial court’s grant of Defendants’ motion for summary

Finally, Plaintiffs contend that the trial court erred by
denying their motion to continue discovery under rule 56(f)
of the Utah Rules of Civil Procedure.[fn2] See id. 56(f).
“[W]e review a trial court’s decision to grant or deny a
rule 56(f) motion under the abuse of discretion standard.
Under this standard, we will not reverse unless the
decision exceeds the limits of reasonability.” Crossland
Sav. v. Hatch, 877 P.2d 1241, 1243 (Utah 1994) (quotations
and citations omitted). “[R]ule 56(f) motions . . . should
be granted liberally unless they are deemed dilatory or
lacking in merit.” Salt Lake County v. Western Dairymen
Coop., Inc., 2002 UT 39, § 24, 48 P.3d 910. While
“the courts in this state have never established a ‘bright
line’ rule for determining when a party has had sufficient
time to initiate discovery[,]” our courts have held that
four months is enough time to complete discovery.
Crossland, 877 P.2d at 1244.

Here, the parties agreed to a discovery deadline of January
31, 2006, at a case management conference held on August
29, 2005. Plaintiffs filed their rule 56(f) motion on
December 14, 2005, and the hearing on the motion took place
in March 2006. Thus, nearly four months elapsed without
Plaintiffs even attempting to depose Scheidle or conduct
other necessary discovery, and Plaintiffs had over six
weeks to conduct discovery after the motion was filed.
Further, Plaintiffs do not allege that Defendants denied
them a reasonable opportunity to conduct Scheidle’s
deposition. Cf. Strand v. Associated Students of the Univ.
of Utah, 561 P.2d 191, 194 (Utah 1997) (ruling that rule
56(f) motion was not dilatory because moving party had been
denied a “reasonable opportunity” to depose necessary
witnesses and conduct needed discovery). As such,
Plaintiffs’ rule 56(f) motion was dilatory and it was well
within the trial court’s discretion to deny the motion.

I CONCUR: Carolyn B. McHugh, Judge.

I CONCUR IN THE RESULT: Gregory K. Orme, Judge.

[fn1] The sworn affidavit of Defendant Kevin Scheidle in
support of Defendants’ motion for summary judgment states
that “Meshwerks considers their digitized 3D models to be
proprietary, and it maintains an inventory of these data
files for promotional purposes as well as for licencing to
its customers.” Similarly, the affidavit states that
“Meshwerks considered the tools to be proprietary,” and that
Scheidle had the phrase “Property of Meshwerks, Inc.”
embedded into the software tools.

[fn2] Because the record does not contain a transcript of
the hearing on Plaintiffs’ rule 56(f) motion, see Utah R.
Civ. P. 56(f), we review this issue based on the pleadings
and other relevant parts of the record.