Judd Bagley Admits to Adultery

Max S. Collier 833 South 300 West Orem, Utah 84085 [email protected]

Plaintiff

IN THE DISTRICT COURT OF UTAH 4TH JUDICIAL DISTRICT UTAH COUN1Y

125 NORTI-I 100 WEST, PROVO, UTAH 84601

FJLF.0 IU 41H DlSiHICT cou;n

STf..TE OF UTAH u1A;1 couu1i~f J 7~P . 7C I 3 A ~ )Q . ' ) . - O' t.

MAX S. COLLIER Pl.Afl\lTIFF

COMPLAINT AND DEMAND FOR JURY TRIAL

v.

JUDSON MONTGOMERY BAGLEY DEFENDANf

COMES NOW, Plaintiff, Max S. Collier ''Plaintifr', complaining of Judson Montgomery

Bagley "Defendant", and for cause of action would respectfully show unto the Court the

following:

I. PARTIES

1. Plaintiff is a resident of Utah

3. Defendant Judson Montgomery Bagley is a Utah resident who, upon information

and belief, is a Utah County resident. Defendant may be served with process at his home,

4698 North Shady View Lane, Lehi, Utah 84043.

COMPLAINT Page 1 of9

II. JURISDICTION AND VENUE

4. The Court has jurisdiction over this action pursuant to Utah Code and by virtue of

the relief sought herein. The amount in controversy exceeds the minimum jurisdictional

requirements of this Court.

5. The venue is proper in this Court because all or a substantial amount of the acts

that give rise to the causes of action alleged herein occurred within Utah County.

Ill. NATURE OF SUIT

6. This is an action for damages arising from intentional infliction, negligent infliction of

emotional distress, and alienation of affections.

IV. FACTS COMMON TO ALL COUNTS

7. Max Collier ("Collier") and Michelle-Marie Collier ("Michelle") were married on

January 3, 1995. Collier and his wife have four beautiful children ranging in ages 18 to 5

years old, one child that registers on the autism spectrum. Collier and his wife lived together

happily until November 26, 2013, when Collier discovered and Michelle admitted that she

had been having an extramarital affair with Judson Montgomery Bagley ("Defendant").

8. Collier first noticed an obvious change in his wife's behavior in the Spring of 2012.

Michelle was fund raising for their daughter's high school (Karl G Maeser Prep Academy).

One of the school's sponsors that year was Defendant. The school held a Gala toward the

end of the 2012 school year. Michelle had started spending more and more time away from

home, saying there was a lot of prep work involved for the Gala. Unknown at the time to

COMPLAINT Page2 of9

Collier, Michelle was spending that "prep time" in the company of Defendant. At the school

Gala, Michelle acted very odd. She was in charge of the seating arrangements. She put

Collier on the other side of the room, while she arranged to have Defendant sit at the same

table next to her. Defendant attended the Gala without his wife. Michelle and Defendant

sat very close and talked throughout the dinner, close enough to be whispering in Michelle's

ear. Collier felt it was quite inappropriate for two married people to conduct themselves in

such a manner. The behavior the two exhibited was odd and did not feel right to Collier.

However, Collier trusted his wife and dismissed the odd behavior as some type of

coincidence and dismissed it as merely inappropriate flirting. Michelle when approached by

Collier convinced him that he was overreacting. She stated Defendant was happily married

and that neither she nor the Defendant would violate covenants that they had made in the

Church of Jesus Christ of Latter-Day Saint temple. Collier continued his loving, trusting

relationship with Michelle throughout the remainder of 2012.

9. Collier and Michelle had financial struggles during their marriage but Collier

and Michelle continued to maintain a loving marriage. From February 2012 until October

2012, Collier worked 2 jobs (14 hours a day) to support the family. Because of Collier's

work schedule he was not at home as much as he would have liked. Upon information and

belief, Michelle and Defendant used the times that Collier was hard at work to set up sexual

liaisons.

10. The start of 2013 Collier started to notice changes in his wife Michelle.

Michelle started to complain she was so stressed from staying home with difficult kids that

she needed time away from the house. Michelle would complain on average of 1-2 times a


week about being stressed and needing to go out alone. Collier trusted Michelle and had no

inclination her outings were to meet Defendant for sexual liaisons. Michelle would stay out

for a minimum of 2 hours on her outings with some lasting as long as 7 hours.

11. On September 7, 2013, while Collier was with his 3 minor sons at Trafalga in

Lehi, Utah and his adult daughter was away with friends, Michelle texted Collier at 2:31 pm

stating "You can come in. I'm still on the phone though." Collier then received a text

immediately after at 2:32 pm from Michelle stating "Sorry that was for Margo. (Margo is the

Relief Society President for Collier and Michelle's LDS ward.) She was dropping off a paper

for me." At that time Collier trusted Michelle and never suspected that she was involved in

an extramarital affair with Defendant. However, after an examination of Collier's phone

records, Michelle texted Defendant on September 7, 2013, at 2:34 pm. Michelle never texted

Margo on September 7, 2013. Upon information and belief the text message stated it was

fine for Defendant to enter to home to have a sexual liaison.

12. On September 15, 2013, Michelle left the house around 5:00 pm and did not

return until after midnight. On September 21, 2013, Michelle disappeared alone at 3:00 pm

and did not return until 9:00 pm.

13. On October 4, 2013, Michelle told Collier that she was going to a

conference/workshop for parents of children with special needs in Seattle, Washington.

Michelle lied and said she was going to stay with an acquaintance Ginger Kenney in Seattle,

Washington. Michelle claimed there was a special stipend for families that could not afford

the expense of making trip to Seattle, Washington. Ms. Kenney will testify that Michelle

never stayed with her in Seattle. i\dditionally she claimed that there were donated frequent


flyer miles to get to the conference/workshop. Upon information and belief Michelle did

not go to the conference/workshop. Instead she traveled with Defendant to Seattle for a

romantic getaway.

14. Collier took Michelle to the airport on the morning of Wednesday November

6, 2013, so that she could allegedly attend the conference. Phone records show that as soon

as she entered the Salt Lake International Airport she texted Defendant to tell him that she

was at the airport and waiting for him. Defendant responded to Michelle with a text. Upon

information and belief the text message was to let Michelle know that Defendant was on his

way to meet her so they could leave together. Upon information and belief the flight

manifest with show that Defendant and Michelle were on the plane together to Seattle.

15. Upon information and belief, Defendant and Michelle also took two overnight

trips to Ogden, Utah in Spring 2013 and August 2013.

16. On November 19, 2013, Michelle left the house just after 7:00 pm telling

Collier that she was stressed and needed to get out of the house. Michelle did not

communicate with Collier for nearly 2 hours (7:56 to 9:40 pm). Michelle arrived back home

after 10:30 pm. When Michelle came home Collier could tell that she was nervous because

she was rambling and giving lots of details about her outing. Michelle explained she spent

her night shopping at Target and Victoria's Secret for a new black bra. Collier became

concerned Michelle was lying about where she had been that night and inquired into more

details about her outing. Michelle explained the bra was purchased at University Mall just

after 9:00 pm. She further stated she had "points" from Victoria's Secret and the cost of the

bra was just over $5.00.


17. On November 25, 2013, Collier found the receipt from Victoria's Secret. The

bra was purchased at The Shops at Riverwoods at 7:50 pm. The receipt showed that no

points were used and $60.00 cash was given for the purchase. Collier confronted Michelle

about the receipt and asked for an explanation. Michelle refused to give an explanation.

18. On November 26, 2013, Collier checked Michelle's mobile phone records

only to find that Michelle had exchanged texts and picture texts with Defendant 30 to 50

times a day with much of the communication taking place during the normal business work

hours. The phone records revealed that Michelle and Defendant talked and texted daily for

18 months. Collier called Defendant to inquire about the frequent phone conversations and

text messages exchanged with Michelle. Defendant denied an affair and stated he was very

happily married. He claimed that Michelle was simply a dear friend and they texted late at

night because of severe insomnia. Michelle has never been diagnosed or treated for

insomnia. Collier then confronted Michelle about the affair with Defendant. Michelle

confessed to the affair with Defendant just after 10:30 pm on November 26, 2013. Collier's

18 year old daughter, Whitley Collier, heard and witnessed the confession. In Michelle's

confession she admitted to having sex with Defendant at local hotels, his home in Lehi, and

Collier's home in Orem.

19. Collier again confronted Defendant via text message concerning the affair

with his wife. Collier inquired from Defendant concerning the details of the affair. Collier

stated "Where's your wife right now? Does she know about this?" Defendant responded

"She will soon enough." Defendant then stated "If I were you I'd be angry too."

COMPLAINT Page6 of9

20. Defendant knew that Collier and Michelle were married and in a loving

relationship. Defendant intentionally and/ or negligently inflicted emotional on Collier by

engaging in an affair with Michelle, Collier's wife.

21. Due to Defendant's conduct Collier has and continues to suffer severe

emotional distress for which Defendant is liable. Additionally, Collier has and will continue

to incur legal fees for the divorce filing and has been alienated from his children.

V. CAUSES OF ACTION

COUNT 1- INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

22. Plaintiffs incorporate the above paragraphs as if fully set forth herein.

21. Defendant intentionally engaged in an affair with Collier's wife Michelle thus

engaging in conduce chat is and was outrageous and intolerable in chat it offends the

generally accepted standards of decency and morality.

22. Defendant engaged in the affair with the purpose of inflicting emotional

distress or where any reasonable person would have known chat such would result; and

23. Collier had and continues to suffer severe emotional distress resulting from

Defendant's conduct.

COUNT 2- NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

24. Plaintiff incorporates the above paragraphs as if fully set forth herein.


25. Defendant should have realized that his conduct of having an affair with

Collier's wife involved an unreasonable risk of causing emotional distress to Collier.

26. Defendant knew that Collier was happily married and should have realized

that the emotional distress might result in illness or bodily harm.

27. Collier has suffered severe emotional distress due to the conduct of

Defendant.

COUNT 3-ALIENATION OF AFFECTIONS


29. Collier and Michelle were happily married and a genuine love and affection

existed between them.

30. The love and affection that existed was alienated and destroyed by

Defendant's actions.

31. Defendant's wrongful and malicious acts of produced and brought about the

loss and alienation of such love and affection.

VI. JURY DEMAND

32. Plaintiff has demanded a jury trial and has tendered the appropriate fee.

VII. REQUESTED RELIEF

33. For these reasons, Plaintiff respectfully requests that the Court issue citation for

Defendant to appear and answer, and that Plaintiff be awarded a judgment against

Defendant for the following:


a. Actual damages in the amount of $1,000,000.00;

b. Exemplary damages;

c. Attorneys' fees;

d. Prejudgment and post judgment interest;

e. Court costs;

f. Plaintiffs pray for general relief; and

g. All other relief to which Plaintiffs are entitled.

COMPLAINT

Respectfully submitted,

Max S. Collier 833 S. 300W. Orem, Utah 84058 Tel: (801) 592-8527

Plaintiff Pro Se

Page 9 of9

Russell D. Gray UT Bar No. 10617 Law Office of Russell D. Gray, PC 4190 S. Highland Dr., Suite 230 Salt Lake City UT 84124 (801) 305-4851 Attorney for Defendant

In the Fourth Judicial District Court Utah County, State of Utah

125 North 100 West, Provo UT 84601

Answer Max S. Collier,

Case No. 130401899 Plaintiff,

vs. Judge Laycock

Judson Montgomery Bagley,

Defendant.

Comes now Defendant, by and through counsel, and responds to

Plaintiff's complaint as follows:

1. Plaintiff admits the allegations in paragraph 1.

2. There is no paragraph 2 in plaintiff's Complaint.




6. Defendant denies that Plaintiff suffered any damages, and

denies all other factual allegations in paragraph 6.

7. Defendant lacks knowledge sufficient to admit or deny the

allegations in paragraph 7, and therefore denies.

8. Defendant admits that he was at the fundraiser described in

paragraph 8. With regard to the remaining factual allegations in this

paragraph, Defendant lacks knowledge sufficient to admit or deny and

therefore denies.

Law Office of Russell D. Gray, PC 4190 S. Highland Dr., Suite 230 Salt Lake City UT 84124

Answer

Page 1 of 5









13. Defendant admits that he traveled to Seattle with Michelle

Collier, and denies all remaining factual allegations contained in

this paragraph.

14. Defendant admits that he traveled to Seattle with Michelle

Collier, and denies all remaining factual allegations contained in

this paragraph.

15. Defendant admits the allegations in paragraph 15.





18. Defendant admits that he and Michelle Collier exchanged text

messages and other messages. Defendant admits that Plaintiff contacted

him. With regard to the remaining factual allegations in this

paragraph, Defendant lacks knowledge sufficient to admit or deny, and

therefore denies.



Answer

Page 2 of 5

20. Defendant denies the allegations in paragraph 20.


22. Defendant re-incorporates his admissions and denials

contained in paragraphs 1 through 21 of his Answer.













33. Defendant denies that the requested relief is appropriate or

that judgment should be granted against the Defendant. Affirmative Defense No. 1: Plaintiff has failed to state a claim

for which relief can be granted.

Affirmative Defense No. 2: Any fault for the demise of

Plaintiff's marriage should be allocated to the Plaintiff.

Affirmative Defense No. 3: Plaintiff's damages or injuries, if any, were solely caused by third parties, over which the Defendant has

no right of control, or the Plaintiff himself.


Answer

Page 3 of 5

Affirmative Defense No. 4: Plaintiff's claims are barred to the

extent he has failed to mitigate his damages.

Affirmative Defense No. 5: Plaintiff's claims against the

Defendant should be barred or reduced due to the presence of any

independent, intervening, or superseding causes.

WHEREFORE, Defendant prays that the Complaint be dismissed, that

the Plaintiff take nothing, that Defendant be awarded his costs and

attorney fees expended as a result of this action, and that the court

grant Defendant all further and necessary relief it deems just and proper.


Dated this 2 day of January, 2014 Law Office of Russell D. Gray, PC

By /s/ Russell D. Gray Russell D. Gray UT Bar No. 10617

Attorney for Defendant

Answer

Page 4 of 5

CERTIFICATE OF SERVICE

This is to certify that on the 2 day of January, 2014, the undersigned, Russell D. Gray, caused a true and correct copy of the foregoing Answer to be delivered and served via first-class mail to:

Max S. Collier 833 South 300 West Orem UT 84085


Isl Russell D. Gray Russell D. Gray

Answer

Page 5 of 5

Matthew R. McCarley (Lead Counsel) Texas Bar No. 24041426 mccarlevrll;fnlawfim1.

b. Plaintiff respectfully requests that he be awarded costs and reasonable

attorneys' fees incurred in connection with the discovery in question

II. BASIS FOR RELIEF SOUGHT

2. Defendant has inadequately responded to interrogatory requests and made

improper objections to the discovery requests as set forth below, all of which should be

overruled.

Interrogatory No. 7: Please identify any and all trips (travel) or meetings you took or held with Michelle-Marie Begay Collier, including but not limited to the: (a) method of transportation; (b) hotel accommodations; (c) identification of carrier i.e. name of airlines; and (d) dates of meetings or travel.

Answer: Defendant and Michelle went on three trips: Ogden, Utah, May 3-4, 2013 Ogden, Utah, August 22-24, 2013 Seattle, Washington, November 6-7, 2013 Defendant does not currently have sufficient information in his possession or control to answer the remaining questions in this Interrogatory, but will supplement his response if such information becomes available.

3. The Plaintiff seeks identification of the mode of transportation, names of hotels or

accommodations, and names of carriers i.e. name of airline carrier used while traveling and

meeting with Plaintiff's wife. Clearly, Mr. Bagley is avoiding producing the information sought

in Interrogatory No. 7. The information is relevant to this causes of action alleged in Plaintiff

Complaint and should be produced.

Interrogatory No. 8: Please identify or describe any criminal charge filed against in which you have pied guilty or nolo contendere.

Answer: Objection on the grounds of relevance. This interrogatory seeks information which is not relevant to any claim or defense by either party.

PLAINTIFF'S STATEMENT OF DISCOVERY ISSUES PAGE20F4

4. Defendant's objections should be struck as improper objections and Defendant

should be compelled to respond. Plaintiff seeks information concerning crimes of moral

turpitude committed by Mr. Bagley. Crimes of moral turpitude are relevant because they go to

the credibility of a witness or party and Mr. Bagley should be compelled to answer Interrogatory

No. 8.

Interrogatory No. 9: Please identify how many times you have had intimate contact, including but not limited to kissing and sexual intercourse, with Michelle-Marie Begay Collier.

Answer: Objection on the grounds of relevance. This Interrogatory seeks information which is not relevant to any claim or defense of either party. ;Objection on the grounds of over-broad or unduly burdensome. This Interrogatory seeks information which goes far beyond what is reasonable or appropriate given the allegations in this case. For example, it makes no sense to claim that " hugging" is .. intimate contact" or to force a party to list each and every hug with another adult. Notwithstanding these objections, Defendant does not know the answer to this question. However, Defendant doe know that Michelle was extremely unhappy in her marriage to the Plaintiff, long before she and Defendant met. Michelle often told the Defendant that she wished to escape her marriage. Michelle also spoke often of verbal, emotional, and physical abuse perpetrated against her by the Plaintiff.

5. Plaintiff has alleged that Defendant' s inappropriate sexual relationship with

Plaintiff's wife is the cause of the emotional distress and alienation of affections. Plaintiff's

request is relevant and Defendant's objection should be struck.

6. Defendant's failure to properly respond to discovery constitutes violations of the

rules of discovery- including, without limit, Utah Rules of Civil Procedure 32, and violations and

abuse of the discovery process, sanctionable under Utah Rules of Civil Procedure 37 and other

applicable law.

Ill. RULE 26 (b)(2) STATEMENT

7. The aforementioned discovery sought is reasonable because Plaintiff is seeking

$1 ,000,000.00 in damages from Defendant. The case at bar is not complex; however, Defendant

has willful attempted to hide information from Plaintiff and provide answers to discovery

PLAINTIFF'S STATEMENT OF DISCOVERY ISSUES PAGE3 OF4

requests that are designed to evade answering fully. As previously mentioned, the discovery

sought is vital to Plaintiff case especially for the causes of action of intentional and negligent

infliction of emotional distress. Mr. Bagley is the only party that has in his possession the

information sought.

IV. CERTIFICATE OF CONFERENCE

8. Plaintiff by and through his attorneys of record wrote a letter to counsel for the

Defendant on April 14, 2014, and again on May I, 2014, specifically requesting the information

sought. On June 26, 2014, Counsel for the Plaintiff again requested that Defendant supplement

his discovery responses. On the same date Counsel for Defendant notified counsel for the

Plaintiff that he did not believe that the responses need supplementing.

Respectfully submitted,

Isl Matthew R. McCarley Matthew R. Mccarley (Lead Counsel) Texas Bar No. 24041426 [email protected]

FEARS NACHAWATI, PLLC 4925 Greenville A venue, Suite 715 Dallas, Texas 75206 Tel. (214) 890-0711 Fax (214) 890-0712

Carlyle :K. Bryson (Local Counsel) State Bar No. 00473 833 South 300 West Orem, Utah 84085 Tel. (801) 226-6299

ATTORNEYS FOR THE PLAINTIFF MAX S. COL.LIER

PLAINTIFF'S STATEMENT OF DISCOVERY ISSUES PAGE40F4

Charles L. Perschon (#11149) ([email protected])Callie B. Rogers (#13160) ([email protected]) PRINCE, YEATES & GELDZAHLERA Professional Corporation15 West South Temple, Suite 1700Salt Lake City, UT 84101Telephone: (801) 524-1000

Attorneys for Defendant Judson Bagley

IN THE FOURTH JUDICIAL DISTRICT COURT OF UTAH COUNTYSTATE OF UTAH

MAX S. COLLIER,

Plaintiff,

vs.

JUDSON MONTGOMERY BAGLEY,

Defendant.

MEMORANDUM IN OPPOSITION TO MOTION TO COMPEL DISCOVERY RESPONSES AND STATEMENT OF

DISCOVERY ISSUES

Civil No. 130401899

Judge Claudia Laycock

Defendant Judson Bagley (Bagley), by and through his undersigned counsel,

files this memorandum in opposition to the Motion to Compel Discovery Responses and

Statement of Discovery Issues (together, the Discovery Motion) filed by Plaintiff Max

Collier (Collier).

INTRODUCTION

The Utah Rules of Civil Procedure allow discovery for any matter, not privileged,

which is relevant to the claim or defense of any party. Utah R. Civ. P. 26(b)(1). The

discovery at issue in the Discovery Motion is not relevant to the claims of the Plaintiff.

Instead, the Discovery Motion, like the entirety of this action, attempts to needlessly

increase costs of litigation for Bagley by delving into personal matters that should not be

before the Court.

ARGUMENT

Plaintiff has brought claims for intentional and negligent infliction of emotional

distress and for alienation of affections. To succeed on a claim for intentional infliction of

emotional distress, a plaintiff must establish 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. Cabaness v.

Thomas, 2010 UT 23, 232 P.3d 486, 499. To succeed on a claim for negligent infliction

of emotional distress, a plaintiff must establish that (1) the defendant unintentionally

caused emotional distress to the plaintiff; (2) the defendant should have realized that his

conduct involved an unreasonable risk of causing the distress, otherwise than by

knowledge of the harm or peril of a third person; (3) the defendant, from facts known to

him, should have realized that the distress, if it were caused, might result in illness or

bodily harm; and (4) the emotional distress resulted in illness or bodily harm to the

plaintiff. Candelaria v. CB Richard Ellis, 2014 UT App 1, 319 P.3d 708, 710-11

(quoting Anderson Dev. Co. v. Tobias, 2005 UT 36 57, 116 P.3d 323.) A claim for

alienation of affections requires a plaintiff to show that a defendant wilfully and

2

intentionally alienated the affections of the spouse of another person, resulting in the loss

of the comfort, society and consortium of the spouse. Wilson v. Oldroyd, 1 Utah 2d 362,

367, 267 P.2d 759, 763 (1954) (superseded by statute on other grounds).

Bagley has already responded to the interrogatory requests at issue in the

Discovery Motion. For example, in response to Interrogatory No. 7, he has already

identified three trips with Michelle Collier (Michelle), including dates and locations.

Collier seeks further identification of the mode of transportation, names of hotels or

accommodations, and names of carriers i.e. name of airline carrier used. Bagley does

not recall or have information to identify the names of the hotels or accommodations, and

Collier has already demonstrated that he has information regarding the Delta flight to

Seattle (the only flight at issue, as the other trips were to Ogden, Utah). Importantly

however, this information is not relevant, and Collier has not even attempted to show

how the specific hotels and types of transportation relate to any of the elements of

intentional or negligent infliction of emotional distress or alienation of affections.

Interrogatory No. 8 requests information about any criminal charges filed against Bagley.

Such a request similarly has no relevance to the causes of action at issue. Finally, in

Interrogatory No. 9, Collier asks Bagley to identify how many times you have had

intimate contact, including but not limited to kissing and sexual intercourse, with

Michelle-Marie Begay Collier. Bagley has objected to this interrogatory, but also

answered that notwithstanding his objections, Defendant does not know the answer to

3

this question. Bagley does not know the answer, and consequently, cannot provide any

additional responsive information.

CONCLUSION

As stated above, the information requested by Collier has no relevance to the

causes of action he has asserted. For the reasons stated above, Bagley respectfully

requests that the Court deny the Motion to Compel Discovery Responses.

DATED this 9th day of July, 2014.

PRINCE, YEATES & GELDZAHLERA Professional Corporation

By: /s/ Callie B. RogersCharles L. PerschonCallie B. RogersAttorneys for Defendant

4


I hereby certify that on the 9th day of July, 2014, the foregoing

MEMORANDUM IN OPPOSITION TO MOTION TO COMPEL DISCOVERY

RESPONSES AND STATEMENT OF DISCOVERY ISSUES was electronically filed

and served through the Courts ECF system.

I further certify that I have caused to be mailed by U.S. Postal Service the

foregoing document to the following non-ECF registered participants:

Matthew R. McCarleyFears Nachawati, PLLC4925 Greenville Avenue, Suite 715Dallas, Texas 75206

Carlyle K. Bryson833 South 300 WestOrem, Utah 84085

Attorneys for Plaintiff

/s/ Callie B. Rogers

g:\cb\bagley, judd\response.discovery.docx

5

Matthew R. McCarley Texas Bar No. 24041426 [email protected]

FEARS NACHAWATI, PLLC 4925 Greenville Avenue, Suite 715 Dallas, Texas 7 5206 Tel. (214) 890-0711 Fax (214) 890-0712

Carlyle K. Bryson (Local Counsel) State Bar No. 00473 833 South 300 West Orem, Utah 84085 Tel. (801) 226-6299

Attorneys for the Plaintiff

IN TIIE DISTRICT COURT OF UTAH 4TH JUDICIAL DISTRICT UTAH COUNTY

125NORTH100 WEST, PROVO, UTAH 84601

MAx S. COLLIER PLAINTIFF

v.

JUDSON MONTGOMERY BAGLEY DEFENDANT

FIRST AMENDED COMPLAINT AND DEMANDFORJURYTRIAL

CASE NUMBER: 130401899

JUDGE LAYCOCK

COMES NOW, Plaintiff, Max S. Collier "Plaintiff', and files this his First Amended

Complaint complaining of Judson Montgomery Bagley ''Defendant'', and for cause of action

would respectfully show unto the Court the following:

FIRST AMENDED COMPLAINT Page 1 of11

I.PARTIES

1. Plaintiff is a resident of Utah.

2. Defendant Judson Montgomery Bagley is a Utah resident who, upon information

and belief, is a Utah County resident. Defendant may be served with process at his home,

4698 North Shady View Lane, Lehi, Utah 84043.

II. JURISDICTION AND VENUE

3. The Court has jurisdiction over this action pursuant to Utah Code and by virtue of

the relief sought herein. The amount in controversy exceeds the minimum jurisdictional

requirements of this Court.

4. The venue is proper in this Court because all or a substantial amount of the acts

that give rise to the causes of action alleged herein occurred within Utah County.

III. NATURE OF SUIT

5. This is an action for damages arising from intentional infliction, negligent infliction of

emotional distress, alienation of affections and malicious prosecution.

IV. FACTS COMMON TO ALL COUNTS

6. Max Collier C'Collier'') and Michelle-Marie Collier ("Michelle") were married on

January 3, 1995. Collier and his wife have four beautiful children ranging in ages 18 to 5

years old, one child that registers on the autism spectrum. Collier and his wife lived together

happily until November 26, 2013, when Collier discovered and Michelle admitted that she

had been having an extramarital affair with Judson Montgomery Bagley ("Defendant'').

7. Collier first noticed an obvious change in his wife's behavior in the Spring of 2012.

Michelle was fund raising for their daughter's high school (Karl G Maeser Prep Academy).


One of the school's sponsors that year was Defendant. The school held a Gala toward the

end of the 2012 school year. Michelle had started spending more and more time away from

home, saying there was a lot of prep work involved for the Gala. Unknown at the time to

Collier, Michelle was spending that "prep time" in the company of Defendant. At the school

Gala, Michelle acted very odd. She was in charge of the seating arrangements. She put

Collier on the other side of the room, while she arranged to have Defendant sit at the same

table next to her. Defendant attended the Gala without his wife. Michelle and Defendant

sat very close and talked throughout the dinner, close enough to be whispering in Michelle's

ear. Collier felt it was quite inappropriate for two married people to conduct themselves in

such a manner. The behavior the two exhibited was odd and did not feel right to Collier.

However, Collier trusted his wife and dismissed the odd behavior as some type of

coincidence and dismissed it as merely inappropriate flirting. Michelle, when approached by

Collier, convinced him that he was overreacting. She stated Defendant was happily married

and that neither she nor the Defendant would violate covenants that they had made in the

Church of Jesus Christ of Latter-Day Saint temple. Collier continued his loving, trusting

relationship with Michelle throughout the remainder of 2012.

8. Collier and Michelle had financial struggles during their marriage but Collier and

Michelle continued to maintain a loving marriage. From February 2012 until October 2012,

Collier worked 2 jobs (14 hours a day) to support the family. Because of Collier's work

schedule he was not at home as much as he would have liked. Upon information and belief,

Michelle and Defendant used the times that Collier was hard at work to set up sexual

liaisons.


9. The start of 2013 Collier started to notice changes in his wife Michelle. Michelle

started to complain she was so stressed from staying home with difficult kids that she

needed time away from the house. Michelle would complain on average of 1-2 times a week

about being stressed and needing to go out alone. Collier trusted Michelle and had no

inclination her outings were to meet Defendant for sexual liaisons. Michelle would stay out

for a minimum of 2 hours on her outings with some lasting as long as 7 hours.

10. On September 7, 2013, while Collier was with his 3 minor sons at Trafalga in

Lehi, Utah and his adult daughter was away with friends, Michelle texted Collier at 2:31 pm

stating "You can come in. I'm still on the phone though." Collier then received a text

immediately after at 2:32 pm from Michelle stating "Sorry that was for Margo. (Margo is the

Relief Society President for Collier and Michelle's IDS ward.) She was dropping off a paper

for me." At that time Collier trusted Michelle and never suspected that she was involved in

an extramarital affair with Defendant. However, after an examination of Collier's phone

records, Michelle texted Defendant on September 7, 2013, at 2:34 pm. Michelle never texted

Margo on September 7, 2013. Upon information and belief, the text message stated it was

fine for Defendant to enter to home to have a sexual liaison.

11. On September 15, 2013, Michelle left the house around 5:00 pm and did not

return until after midnight. On September 21, 2013, Michelle disappeared alone at 3:00 pm

and did not return until 9:00 pm.

12. On October 4, 2013, Michelle told Collier that she was gomg to a

conference/workshop for parents of children with special needs in Seattle, Washington.

Michelle lied and said she was going to stay with an acquaintance Ginger Kenney in Seattle,


Washington. Michelle claimed there was a special stipend for families that could not afford

the expense of making trip to Seattle, Washington. Ms. Kenney will testify that Michelle

never stayed with her in Seattle. Additionally she claimed that there were donated frequent

flyer miles to get to the conference/workshop. Upon information and belief, Michelle did

not go to the conference/workshop. Instead she traveled with Defendant to Seattle for a

romantic getaway.

13. Collier took Michelle to the airport on the morning of Wednesday November

6, 2013, so that she could allegedly attend the conference. Phone records show that as soon

as she entered the Salt Lake International Airport she texted Defendant to tell him that she

was at the airport and waiting for him. Defendant responded to Michelle with a text. Upon

information and belief the text message was to let Michelle know that Defendant was on his

way to meet her so they could leave together. Upon information and belief the flight

manifest will show that Defendant and Michelle were on the plane together to Seattle.

14. Upon information and belief, Defendant and Michelle also took two overnight

trips to Ogden, Utah in Spring 2013 and August 2013.

15. On November 19, 2013, Michelle left the house just after 7:00 pm telling

Collier that she was stressed and needed to get out of the house. Michelle did not

communicate with Collier for nearly 2 hours (7:56 to 9:40 pm). Michelle arrived back home

after 10:30 pm. When Michelle came home Collier could tell that she was nervous because

she was rambling and giving lots of details about her outing. Michelle explained she spent

her night shopping at Target and Victoria's Secret for a new black bra. Collier became

concerned Michelle was lying about where she had been that night and inquired into more

FIRST AMENDED COMPLAINT Page S of11

details about her outing. Michelle explained the bra was purchased at University Mall just

after 9:00 pm. She further stated she had "points" from Victoria's Secret and the cost of the

bra was just over $5.00.

16. On November 25, 2013, Collier found the receipt from Victoria's Secret. The

bra was purchased at The Shops at Riverwoods at 7:50 pm. The receipt showed that no

points were used and $60.00 cash was given for the purchase. Collier confronted Michelle

about the receipt and asked for an explanation. Michelle refused to give an explanation.

17. On November 26, 2013, Collier checked Michelle's mobile phone records

only to find that Michelle had exchanged texts and picture texts with Defendant 30 to 50

times a day with much of the communication taking place during the normal business work

hours. The phone records revealed that Michelle and Defendant talked and texted daily for

18 months. Collier called Defendant to inquire about the frequent phone conversations and

text messages exchanged with Michelle. Defendant denied an affair and stated he was very

happily married. He claimed that Michelle was simply a dear friend and they texted late at

night because of severe insomnia. Michelle has never been diagnosed or treated for

insomnia. Collier then confronted Michelle about the affair with Defendant. Michelle

confessed to the affair with Defendant just after 10:30 pm on November 26, 2013. Collier's

18 year old daughter, Whitley Collier, heard and witnessed the confession. In Michelle's

confession she admitted to having sex with Defendant at local hotels, his home in Lehi, and

Collier's home in Orem.

18. Collier again confronted Defendant via text message concerning the affair

with his wife. Collier inquired from Defendant concerning the details of the affair. Collier


stated ''Where's your wife right now? Does she know about this?" Defendant responded

"She will soon enough." Defendant then stated "Ifl were you I'd be angry too."

19. Defendant knew that Collier and Michelle were married and in a loving

relationship. Defendant intentionally and/ or negligently inflicted emotional on Collier by

engaging in an affair with Michelle, Collier's wife.

20. On November 27, 2013, Defendant filed a false complaint with the Orem City

Police Department claiming that Plaintiff had threatened him and his family. Defendant had

in his possession the text messages from Plaintiff making it clear that Plaintiff had no

intention of harming Defendant or his family yet Defendant failed to tum over the

exculpatory evidence to the Orem Police. On March 17, 2014, Orem City Attorney Bob

Church notified Plaintiff that the City would be dismissing Defendant's charges for

harassment against Plaintiff.

21. Due to Defendant's conduct Collier has and continues to suffer severe

emotional distress for which Defendant is liable. Additionally, Collier has and will continue

to incur legal fees for the divorce filing and has been alienated from his children.

V. CAUSES OF ACTION

COUNT 1- INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS



23. Defendant intentionally engaged in an affair with Collier's wife Michelle thus

engaging in conduct that is and was outrageous and intolerable in that it offends the

generally accepted standards of decency and morality.

24. Defendant engaged in the affair with the purpose of inflicting emotional

distress where any reasonable person would have known that such would result; and

25. Collier had and continues to suffer severe emotional distress resulting from

Defendant's conduct

COUNT 2- NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS


27. Defendant should have realized that his conduct of having an affair with

Collier's wife involved an unreasonable risk of causing emotional distress to Collier.

28. Defendant knew that Collier was happily married and should have realized

that the emotional distress rrught result in illness or bodily harm.

29. Collier has suffered severe emotional distress due to the conduct of

Defendant.

COUNT 3-ALIENATION OF AFFECTIONS

30. Plaintiff incorporates the above paragraphs as is fully set forth herein.

31. Collier and Michelle were happily married and genuine love and affection

existed between them.

32. The love and affection that existed was alienated and destroyed by


Defendant's actions.

33. Defendant's wrongful and malicious acts produced and brought about the loss

and alienation of such love and affection.

COUNT 4-MALICIOUS PROSECUTION

34. Plaintiff incorporates the above paragraphs as is fully set forth below.

35. Defendant reported to the Orem Police Department on November 27, 2013,

that Collier threatened him and his family. Defendant knew at the time of reporting the

alleged harassment that Collier had no intention of harming him or his family.

36. Defendant did not have probable cause or reasonable grounds to support his

claim that Collier was a threat to him or his family. Defendant clarified with Collier prior to

his reporting to the Orem Police via text message that Collier had no intention of harming

him or his family, yet Defendant failed to mention or to tum the text messages over to the

Orem Police.

37. Defendant's purpose in falsely claiming that Collier threatened or harassed

him was to preoccupy Collier with criminal charges so as to distract him from Defendant's

extramarital affair with Collier's wife.

38. On March 17, 2014, Orem City Prosecutors notified Collier that they were

dismissing the charges brought by Defendant for harassment.

39. Collier has and continues to suffer emotional distress and has incurred

attorneys' fees in the defense of Defendants' bad faith false claims.

VI. JURY DEMAND

40. Plaintiff has demanded a jury trial and has tendered the appropriate fee.


VII. REQUESTED RELIEF

41. For these reasons, Plaintiff respectfully requests that the Court issue citation for

Defendant to appear and answer, and that Plaintiff be awarded a judgment against

Defendant for the following:

a. Actual damages in the amount of $1,000,000.00;

b. Exemplary damages;

c. Attorneys' fees;

d. Prejudgment and post judgment interest;

e. Court costs;

f. Plaintiff prays for general relief; and

g. All other relief to which Plaintiffs are entitled.

FIRST AMENDED COMPLAINT

Respectfully Submitted,

Isl Matthew R. Mccarley Matthew R. McCarley Texas Bar No. 24041426 [email protected]

FEARS NACHAWATI, PLLC 4925 Greenville Avenue, Suite 715 Dallas, Texas 75206 Tel. (214) 890-0711 Fax (214) 890-0712

Carlyle K. Bryson (Local Counsel) State Bar No. 00473 833 South 300 West Orem, Utah 84085 Tel. (801) 226-6299

ATTORNEYFORPLAINTIFF MAx S. COLI.IER

Page 10 of11


I certify that on July 18, 2014, a true and correct copy of the foregoing was sent in accordance with the Utah Rules of Civil Procedure to in the manner as set forth below.

VIA FACSIMILE AND FIRST CLASS MAIL Mr. Charles L. Perschon Ms. Callie B. Rogers Prince, Yeates & Geldzahler, P.C. 15 West Temple, Suite 1700 Salt Lake City, Utah 84101 Facsimile: (801) 524-1098

Attorneys for the Defendant

FIRST AMENDED COMPLAINT

Isl Matthew R. McCarley Matthew R. McCarley

Page 11 of11

Charles L. Perschon (#11149) ([email protected]) Callie B. Rogers (#13160) ([email protected])PRINCE, YEATES & GELDZAHLER A Professional Corporation 15 West South Temple, Suite 1700 Salt Lake City, Utah 84101 Telephone: (801) 524-1000 Facsimile: (801) 524-1098

Attorneys for Defendant Judson Bagley

IN THE FOURTH JUDICIAL DISTRICT COURT UTAH COUNTY, STATE OF UTAH

MAX S. COLLIER,

Plaintiff, vs.


Defendant.

DECLARATION OF JUDSON BAGLEY IN SUPPORT OF MOTION

FOR SUMMARY JUDGMENT

Civil No. 130401899


STATE OF UTAH ) :ss SALT LAKE COUNTY )

I, Judson Bagley, do hereby depose, testify, and swear as follows:

1. I am over 18 years of age, I am competent to testify concerning all matters

contained in this Declaration, and I have personal knowledge of every fact stated in this

Declaration. If called as a witness, I could and would testify concerning every matter set

forth below based upon my personal knowledge.

2. I submit this Declaration in support of my Motion for Summary Judgment.

23. I met Michelle Collier (Michelle) in April 2012.

4. Michelle and I began a consensual relationship in April or May 2012.

5. Based on Michelles behavior and appearance and comments, I believed

that Plaintiff Max Collier (Collier) sometimes physically and emotionally abused

Michelle during the course of their marriage.

6. I understood and believed Michelle to be unhappy in her marriage to

Collier, and I understood and believed that the marriage had been tumultuous for many

years.

7. Based on conversations with Michelle, I knew that Collier and Michelle

had separated and lived apart during at least one period during their marriage prior to

when I met Michelle, most recently during the fall of 2012.

8. Michelle gave me a copy of an email Collier sent to her mother on March 1,

2012 (Email), before I met Michelle. A true and correct copy of the e-mail I received

from Michelle is attached hereto as Exhibit A.

9. In the Email, Collier admits that he told Michelle numerous times during

their marriage that he wanted a divorce. (Ex. A.)

10. In the Email, Collier admits that Michelle told him that she gave up on their

marriage in December 2010. (Ex. A.)

11. In the Email, Collier states that he believed that Michelle was ready to

move on and be done with him in March 2012. (Ex. A.)

312. In the Email, Collier states that he has suffered from depression for many

years. (Ex. A.)

13. I did not intend to harm Collier by engaging in a relationship with Michelle.

14. My relationship with Michelle has ended.

In accordance with Utah Code Ann. 78B-5-705, I declare under criminal penalty

of the State of Utah that the foregoing is true and correct.

DATED this 18th day of July 2014.

/s/ Judson Bagley* (*Signature page attached as Exhibit B)

4Certificate of Service

I hereby certify that on the 18th day of July 2014, the foregoing DECLARATION OF JUDSON BAGLEY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, was electronically filed.

I further certify that I have caused to be mailed by U.S. Postal Service the foregoing document to the following non-ECF registered participants:

Matthew R. McCarley Fears Nachawati, PLLC 4925 Greenville Avenue, Suite 715 Dallas, Texas 75206

Carlyle K. Bryson 833 South 300 West Orem, Utah 84085


/s/ Charles L. Perschon

Exhibit A

Hotmail Print Message

update From: Max Collier ([email protected]) Sent: Thu 3/01/12 10:01 AM To Marie Begay ([email protected])

Hi Marie,

Puge 1 of2

Just wanted to update you guys on some things. I was able to visit w/ Michelle very late last night. It really does feel as if she's ready to move on & be done with me. But I also better understand where she is coming from. And also how incredibly heartbroken she is. I want you & HaNey to know that I've had my struggles through this marriage. That I am far from perfect. I've battled depression tor as long as I can remember. Having the kind of mother I had, with so many issues, I've had such a hard time emotionally. I've had such low self esteem. And I have extreme difficulty letting people get close to me -because of trust issues. I have this built-in defense mechanism to push people away. To hurt them before they r.;in hurt me. I have a true fear of abandonment. I often say hurtful things that l don't truly mean. What has happened as a result is that I've told Michelle numerous time~ that I wanted a divorce. J know how horrible that is & how wrong it is to treat someone that way. I'm so ashamed & so sorry for hurting the one I love the very most. I know that deep down, Michelle still cares. When we visited last night, she laid in bed w/ tears streaming down her cheeks. I asked her when she gave up on me & 'us' as a couple. What she shared broke my heart. I don't have words to describe how truly sorry I am. I would give anything to be able to take it back. She tearfully said, "December of 2010." I knew exactly what she was talking about. We got into a really bad right over the holidays that year. I was hurt, frustrated & angry. I got so upset that I said I wanted a divorce (again). As it turned out, I made that awful remark on the 12th anniversary of our temple sealing in Dallas. I honestly had no idea. It's no excuse. But I really didn't know. I'm really good at remembering her B-Day (8/4/73), and ou1 wedding anniversary (1/3/95). I dropped the ball on that one to say the least. And it appears I've probably done irreparable damage. She shared that she's felt alone since that day (and understandably so).

When we were separated back in Oct., the guy I st

Hotmail Print Message Page 2 of2

I've always wondered if things would be different if we didn't go through all of the emotional & financial strain of autism w/ little Porter. And with all of the months of unemployment & more financial stress. It's been tough. We've been through so much. There's so much I wish I could change. I'm so sorry for all the hurt I've caused. l believe there's always hope. And that miracles happen everyday. I'm trying my best to make things better, lo lighten her burden. I'm helping out as much as I can. I'm tired everyday, but I keep going. I love your daughter, Marie. 1 want to make this right. I want to be happy & grow old together. I want to be with her & my children forever. Please keep us in your thoughts & prayers. Thank you guys both so much for your love & support. f appreciate it more than y'all know. Thanks & God bless.

-Max

httn://~n l 44w.snt 144.mail.Iive.com/mail/PrintMcssages.aspx?cpids=363d5ca5-63c0-l le 1-a... 3/1/20l2

Exhibit B

In accordance with Utah Code Ann. 78B-5 705, I declare under criminal penalty

of the State of Utah that the foregoing is true and correct.

DATED this ltday of July 2014.

Ju

I

Charles L. Perschon (#11149) ([email protected]) Callie B. Rogers (#13160) ([email protected]) PRINCE, YEA TES & GELDZAHLER A Professional Corporation 15 West South Temple, Suite 1700 Salt Lake City, Utah 84101 Telephone: (801) 524-1000 Facsimile: (801) 524-1098

Attorneys [Or Defendant Judson Bagley


MAX S. COLLIER,

Plaintiff, vs.

MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT

JUDSON MONTGOMERY BAGLEY, Civil No. 130401899

Defendant. Judge Claudia Laycock

Introduction

This case airs the "dirty laundry" of an unfortunate personal and family matter.

But the judicial system is not the proper venue for retribution after spouses have been

unfaithful, particularly when Plaintiffs marriage was already troubled.

In blaming Defendant for the demise of Plaintiffs marriage, Plaintiff ignores his

many threats of divorce throughout his marriage, his own decision to file for divorce, and

his wife's unhappiness during their marriage as a result of Plaintiffs actions. He similarly

failed to recall an e-mail he sent to his mother-in-law admitting his role in what he

viewed as a failing marriage even before his wife met Defendant.

This is not a case ofa third party interfering in an otherwise happy, fulfilled

marriage. Rather, both parties made a choice to engage in a relationship. Plaintiffs

claims are baseless-accusing defendant of intentional and negligent infliction of

emotional distress and alienation of affections-without facts or evidence to support the

allegations.

Statement of Undisputed Facts

I. Bagley met Michelle Collier ("Michelle") in April 2012. (Bagley Dec. if 3.)

2. Michelle and Bagley began a consensual relationship in April or May 2012.

(Bagley Dec. if 4.)

3. Based on Michelle's behavior and appearance and comments, Bagley

believed that Plaintiff Max Collier ("Collier") sometimes physically and emotionally

abused Michelle during the course of their marriage. (Bagley Dec. if 5.)

4. Bagley further understood and believed Michelle to be unhappy in her

marriage to Collier, and Bagley understood and believed that the marriage had been

tumultuous for many years. (Bagley Dec. if 6.)

5. Bagley knew that Collier and Michelle had separated and lived apart during

at least one period during their marriage prior to when Bagley met Michelle, including

2

during the fall of2012. (Pla.'s Resp. Def.'s First Set ofReq. for Adm. dated March 13,

2014 ("Admissions") at 3; Bagley Dec. iJ 7.)

6. Collier asserted his Fifth Amendment privilege in response to the following

request for admission:

Please admit that there was at least one incident between the Plaintiff and Michelle which could fall under the label of"domestic violence," as defined in UCA 77-36-1(4), during the time period between January I, 2004 and December 31, 2013.

(Admissions at 3.)

7. Collier asserted his Fifth Amendment privilege in response to the following

request for admission:

Please admit that, in October 2011, the Plaintiff placed his hands on Michelle's neck and pushed her against a wall.

(Admissions at 3.)

8. Collier asserted his Fifth Amendment privilege and withheld responsive

information to the following interrogatory:

Please list the date (or approximate date) of any incident which could fall under the label of"domestic violence," as defined in the UCA 77-36-1(4), during the time period between January I, 2004 and December 31, 2013, and give a brief description of each incident.

(Pla.'s Resp. Def.'s First Set ofTnterr. dated March 13, 2014 ("Responses") at 4.)

9. Plaintiff has not denied that he wrote the email attached to the Bagley

Declaration at Exhibit A, which reveals that Plaintiff said numerous times during his

marriage that he wanted a divorce from his wife. (Admissions at 5; Bagley Dec. iii! 8-9.)

3

10. Collier and Michelle discussed divorce at least as early as 2005. (Responses

at 4.)

11. Prior to March 2012, Collier told Michelle numerous times that he wanted a

divorce. (Bagley Dec. '1] 9.)

12. Michelle told Collier that she gave up on the marriage in December 2010.

(Bagley Dec. '1] 10.)

13. Collier believed that Michelle was "ready to move on" and "be done" with

him in March 2012. (Bagley Dec. 'I] 11.)

14. Collier filed for divorce from Michelle on December 2, 2013 in Fourth

District Court. (See Civil No. 134402891.)

15. Collier has suffered from depression for many years. (Bagley Dec. 'I] 12;

Admissions at 4.)

16. Collier sought therapy for depression prior to when he learned of the

relationship between Michelle and Bagley on November 26, 2013. (Admissions at 4.)

17. Bagley did not intend to harm Collier by engaging in a relationship with

Michelle. (Bagley Dec. '1] 13.)

18. Bagley no longer has a relationship with Michelle. (Bagley Dec. '1] 14.)

(This space intentionally left blank.)

4

Argument

I. Collier cannot establish claims for intentional or negligent infliction of emotional distress.

A. Collier cannot succeed on his claim for intentional infliction of emotional distress.

To succeed on a claim for intentional infliction of emotional distress, a plaintiff

must establish 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." Cabaness v. Thomas, 2010 UT 23, 232

P.3d 486, 499. "To be considered outrageous, the conduct must evoke outrage or

revulsion; it must be more than unreasonable, unkind, or unfair. Conduct 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." Allen v. Anger, 2011 UT

App 19, 248 P.3d 100 I, I 005; see also Perkins v. Dean, 570 So. 2d 1217, 1219 (Ala.

1990) (stating that "[w ]hi le it may be said that society frowns upon extra-marital

relationships, to claim that the conduct and actions in this case rise to the level of outrage

[similar to the tort of intentional infliction of emotional distress] would be an attempt to

transform the tort of outrage into a 'panacea for all oflife's ills."').

5

Here, Bagley did not intentionally engage in any conduct directed towards

Plaintiff with the purpose of inflicting emotional distress. Based on Michelle's conduct,

appearance, and comments, Bagley believed that Collier did not value his marriage to

Michelle and that the marriage had been troubled for many years-facts proven by

Plaintiff himself and his wife as they threatened divorce as early as 2010.

Moreover, Plaintiff invoked his Fifth Amendment right to silence when asked to

admit he engaged in domestic violence against his wife before she and Bagley began a

relationship. Plaintiff's refusal to answer compels the Court to draw an adverse inference

from Plaintiffs assertion of his Fitlh Amendment right in a civil case. Chen v. Stewart,

123 P.3d 416, 426 n.4 (Utah 2005) (recognizing the Utah Supreme Court's approval of a

district court drawing an adverse inference from a party's assertion of his or her Fifth

Amendment right in a civil case); Gerard v. Young, 432 P.2d 343, 346-47 (Utah 1967)

(same); Pyles v. Johnson, 136 F.3d 986, 997 (5th Cir. 1998) (same). This adverse

inference, together with Plaintiff's and his wife's numerous threats to divorce, establish

that their marriage was not functioning properly when Bagley and Michelle began their

relationship. Therefore, Plaintiff cannot dispute that Bagley's conduct could not have

caused the dire emotional distress required to succeed on this claim.

Bagley's participation in a consensual relationship with Michelle, while unwise

and regrettable, does not rise lo the "outrageous and intolerable" standard required by

Utah law for a claim of intentional infliction of emotional distress.

6

B. Collier cannot succeed on his claim for negligent infliction of emotional distress.

To succeed on a claim for negligent infliction of emotional distress, a plaintiff

must establish that "(I) the defendant unintentionally caused emotional distress to the

plaint; (2) the defendant 'should have realized that his conduct involved an unreasonable

risk of causing the distress, otherwise than by knowledge of the harm or peril of a third

person'; (3) the defendant, 'from facts known to him, should have realized that the

distress, ifit were caused, might result in illness or bodily harm'; and (4) the emotional

distress resulted in illness or bodily harm to the plaintiff." Candelaria v. CB Richard

Ellis, 2014 UT App 1, 319 P.3d 708, 710-11 (quoting Anderson Dev. Co. v. Tobias, 2005

UT 36 iJ 57, 116 P.3d 323.)

Collier has not alleged, nor can he show, that he has experienced illness or bodily

harm because of the emotional distress resulting from the relationship between Michelle

and Bagley. He has admitted that he suffers from depression and that he suffered from

depression for many years prior to learning of the relationship between Michelle and

Bagley. He has admitted that the parties discussed divorce prior to Michelle meeting

Bagley, and he threatened to divorce Michelle numerous times prior to her meeting

Bagley.

Even if Collier had shown that he suffered emotional distress because of the

relationship between Michelle and Bagley-which he has not shown-he cannot show

that Bagley should have realized that he would suffer emotional distress resulting in

7

illness or bodily harm. Based on the facts known to him through his conversations with

Michelle, Bagley reasonably believed that Collier did not value his marriage to Michelle.

Consequently, he had no reasonable belief that Collier would suffer legally actionable

emotional distress.

II. Collier cannot succeed on his claim for alienation of affection.

In Utah, a claim for alienation of affections requires a plaintiff to show that a

defendant wilfully and intentionally alienated the affections of the spouse of another

person, resulting in the loss of the comfort, society and consortium of the spouse. Wilson

v. Oldroyd, I Utah 2d 362, 367, 267 P.2d 759, 763 (1954) (superseded by statute on other

grounds). To justify punitive damages, malice must be shown. Id. The Utah Supreme

Court has further clarified these factors, requiring the acts of the defendant to have

constituted the "controlling cause" of the alienation of affections, and explaining that this

"means that the causal effect of the defendant's conduct must have outweighed the

combined effect of all other causes, including the conduct of the plaintiff spouse and the

alienated spouse." Nelson v. Jacobsen, 669 P.2d 1207, 1219 (Utah 1983); see also Norton

v. Macfarlane, 818 P.2d 8, 15 (Utah 1991) (holding that "a plaintiff must prove by clear

and convincing evidence that it was the conduct of defendant that constituted a

controlling cause of the injury to a spouse's consortium interest and that his or her

conduct was not just incidental to other causative factors that destroyed or damaged the

marriage or conjugal relationship").

8

Here, Collier cannot show that the relationship between Bagley and Michelle

outweighed the combined effect of all other causes. Collier and Michelle had separated

and lived apart at least once before she met Bagley. Michelle told Bagley-and Collier

asserted his Fifth Amendment privilege rather than refuting-that he had committed acts

of domestic violence against Michelle during their marriage, which can be adversely

inferred against him. Chen v. Stewart, 123 P.3d 416, 426 n.4 (Utah 2005); Gerard v.

Young, 432 P.2d 343, 343, 346-47 (Utah 1967); Pyles v. Johnson, 136 F.3d 986, 997 (5th

Cir. 1998) (same).

Any alienation of affections that existed between Collier and Michelle existed

long before Bagley met Michelle. Perhaps most tellingly, Collier himself filed for divorce

from Michelle, as he had threatened to do numerous times before she even met Bagley.

Bagley and Michelle have ended their relationship, and Collier had a choice to repair his

marriage rather than to file for divorce. He did not do so.

While most states have abolished or restricted the common-law cause of action for

alienation of affections, Utah has not done so, and upon consideration of this issue, the

Utah Supreme Court affirmed its interests in protecting the marital relationship. See

Nelson v. Jacobsen, 669 P.2d 1207, 1215. This case does not present a situation in which

the parties had a happy marital relationship to preserve. Here, Plaintiff threatened to

divorce his wife numerous times during the marriage, asserted his Fifth Amendment

privilege rather than denying domestic abuse, and admitted that he and his wife separated

9

for a period of time prior to the events giving rise to his Complaint. He does not claim

that his wife entered into a relationship with Bagley unwillingly. In fact, the Complaint

includes very few allegations of actions by Bagley, instead describing actions by

Plaintiffs soon-to-be ex-wife, Michelle, indicating that Michelle willingly entered into a

relationship with Bagley.

In Nielsen v. Spencer, 2008 UT App 375, 196 P.3d 616, 624-25, the Utah Court of

Appeals upheld a jury verdict finding wrongful use of civil proceedings after a husband

brought a claim for alienation of affections without a reasonable belief that he and his

wife were happily married and that a genuine love and affection existed between them

prior to an extramarital affair. Id. There, the court stated that in light of the evidence, a

reasonable jury could "well have found" that the husband knew the other party did not

cause his marital troubles and that "his alienation of affections claim was therefore

without merit." Id. The cause of action for alienation of affections in this case is similarly

without merit.

Conclusion

Bagley does not assert that he behaved admirably in participating in a relationship

with Michelle Collier. However, his actions do not rise to the level of the causes of action

alleged in the Complaint, and Plaintiff cannot meet his burden to show each of the

requisite elements. Bagley respectfully requests that the Court grant his motion for

summary judgment on all causes of actions and dismiss the case.

10

DA TED this 18th day of July 2014.

PRINCE, YEA TES & GELDZAHLER A Professional Corporation

By /s/ Charles L. Perschon Charles L. Perschon Callie B. Rogers Attorneys for Defendant Judson Bagley

11

Certificate of Service

I hereby certify that on the 18th day of July, 2014, the foregoing MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT was electronically filed.

I further certify that I have caused to be mailed by U.S. Postal Service the foregoing document to the following non-ECF registered participants:

Matthew R. Mccarley Fears Nachawati, PLLC 4925 Greenville Avenue, Suite 715 Dallas, Texas 75206

Carlyle K. Bryson 833 South 300 West Orem, Utah 84085


Isl Charles L. Perschon

12

Charles L. Perschon (Utah State Bar No. 11149) [email protected]

PRINCE, YEATES & GELDZAHLER A Professional Corporation 15 West South Temple, Suite 1700 Salt Lake City, Utah 84101 Telephone: (801) 524-1000 Facsimile: (801) 524-1098

Attorney for Defendant Judson Montgomery Bagley


MAX S. COLLIER,

Plaintiff,

vs.


Defendant.

RULE 41(a)(2) STIPULATED MOTION TO DISMISS

Civil No. 130401899


The parties in the above-referenced action, by and through their respective counsel,

respectfully submit this Rule 41 (a)(2) Stipulated Motion to Dismiss. The parties move the Court

to dismiss this case with prejudice, with each party to bear its own fees and costs. A proposed

order is filed herewith.

(This space intentionally left blank. Signature page to follow.)

DATED this 3rd day of September 2014.

DATED this 3rd day of September 2014.

2

PRINCE, YEATES & GELDZAHLER A PROFESSIONAL CORPORATION

By: Isl Charles L. Perschon Attorney for Defendant Judson Montgomery Bagley

FEARS NACHA WATI

By: Isl Matthew McCarley* Attorney for Plaintiff Max S. Collier

(*Electronically signed with permission.)


I hereby certify that on the 3n1 day of September 2014, the foregoing RULE 41(a)(2) STIPULATED MOTION TO DISMISS was electronically filed and served through the Court's ECF system.

I further certify that I have mailed by U.S. Postal Service the foregoing document to non-ECF registered participants as noted below.

[none]


3

Charles L. Perschon (Utah State Bar No. 11149) [email protected]

PRINCE, YEATES & GELDZAHLER A Professional Corporation 15 West South Temple, Suite 1700 Salt Lake City, Utah 84101 Telephone: (801) 524-1000 Facsimile: (801) 524-1098

Attorney for Defendant Judson Montgomery Bagley

IN THE FOURIB JUDICIAL DISTRICT COURT UTAH COUNTY, STATE OF UTAH

MAX S. COLLIER,

Plaintiff,

vs.

ruDSON MONTGOMERY BAGLEY,

Defendant.

ORDER GRANTING RULE 41(a)(2) STIPULATED MOTION TO DISMISS

Civil No. 130401899


The Court, having reviewed the parties' Rule 41 (a)(2) Stipulated Motion to Dismiss,

being familiar with this case. and for good cause appearing, does hereby

DECLARE, DECREE, and ORDER

that the stipulated motion is granted. The case is dismissed with prejudice, and each party will bear its own fees and costs.

END OF ORDER

Approved as to form:

Isl Matthew Mccarley Attorney for Plaintiff Max S. Collier (*Electronically signed with permission.)

2


I hereby certify that on the 3rd day of September 2014, the foregoing ORDER GRANTING RULE 41(a)(2) STIPULATED MOTION TO DIS:MISS was electronically filed and served through the Court's ECF system.

I further certify that I have mailed by U.S. Postal Service the foregoing document to non-ECF registered participants as noted below.

[none]


3

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The Order of Court is stated below:Dated: September 03, 2014 At the direction of:

10:29:02 AM CLAUDIA LAYCOCKDistrict Court Judge

by/s/ RAELENE CHRISTENSEN

District Court Clerk

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