Judge v. Saltz , 2016 UT 7 ( 2016 )


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  •                  This opinion is subject to revision before
                       publication in the Pacific Reporter
    
                                   
    2016 UT 7
    
                                     IN THE
          SUPREME COURT OF THE STATE OF UTAH
                               CONILYN JUDGE,
                                 Respondent,
                                        v.
          SALTZ PLASTIC SURGERY, P.C. and RENATO SALTZ, M.D.,
                              Petitioners.
    
                               No. 20140654
                              February 4, 2016
    
                        Third District, Salt Lake
                       The Honorable L. A. Dever
                            No. 090900609
    
               On Certiorari to the Utah Court of Appeals
    
                                  Attorneys:
    Roger H. Hoole, Gregory N. Hoole, Salt Lake City, for respondent
         Robert G. Wright, Mark L. McCarty, Brandon B. Hobbs,
           Zachary E. Peterson, Salt Lake City, for petitioners
    
      JUSTICE HIMONAS authored the opinion of the Court, in which
     CHIEF JUSTICE DURRANT and ASSOCIATE CHIEF JUSTICE LEE joined.
        JUSTICE DURHAM filed an opinion concurring in the result.
         JUSTICE JOHN A. PEARCE became a member of the Court
        on December 17, 2015, after oral argument in this matter,
                   and accordingly did not participate.
    
    
    
       JUSTICE HIMONAS, opinion of the Court:
                            INTRODUCTION
       ¶ 1 After partially redacted versions of her nude pre- and
    post-operative photographs were aired on the evening news,
    Conilyn Judge filed a lawsuit against Saltz Plastic Surgery, P.C.,
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    and Renato Saltz , M.D., (collectively, Saltz) and against Fox
    News. The claims against Fox News were dismissed pursuant to a
    settlement agreement. Ms. Judge alleged five causes of action
    against Saltz: “(1) public[ation] of private facts, (2) false light,
    (3) intrusion upon seclusion, (4) breach of fiduciary duty, and
    (5) negligent employment and supervision.” Saltz moved for and
    was granted summary judgment on all five claims. The Utah
    Court of Appeals subsequently reversed the grant of summary
    judgment for each of the five causes of action. We granted review
    as to the following two issues regarding the claim for publication
    of private facts: (1) whether we should adopt the requirement in
    section 652D(b) of the Restatement (Second) of Torts that plaintiffs
    must show that “the matter publicized . . . is not of legitimate
    concern to the public” and (2) whether the court of appeals erred
    in concluding, based on that provision, that disputed issues of fact
    precluded summary judgment on this claim. We also granted
    review as to whether the court of appeals erred in holding that
    disputed issues of material fact concerning the scope and meaning
    of a consent form signed by Ms. Judge precluded summary
    judgment on the claim for intrusion on seclusion.
       ¶ 2 For reasons explained below, we adopt the
    Restatement’s legitimate public concern element for claims for
    publication of private facts, and we affirm the court of appeals’
    reversal of the grant of summary judgment on the claims for
    publication of private facts and intrusion on seclusion.
                            BACKGROUND
       ¶ 3 In October 2006, Dr. Saltz performed an abdominoplasty
    and a breast augmentation on Ms. Judge. 1 Prior to surgery,
    Ms. Judge signed two consent forms entitled “Consent for
    Surgery/Procedure or Treatment.” One form included the
    
    
       1 Because this case reached the court of appeals “[o]n appeal
    from a district court’s summary judgment ruling, [the court of
    appeals] view[ed] the facts and all reasonable inferences drawn
    therefrom in the light most favorable to the nonmoving party.”
    Judge v. Saltz Plastic Surgery, PC, 
    2014 UT App 144
    , ¶ 13, 
    330 P.3d 126
     (internal quotation marks omitted). We likewise view the facts
    in the light most favorable to the nonmoving party. See infra ¶ 11.
    
    
    
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    following language (the other used “functionally identical”
    language): “I consent to be photographed or televised before,
    during, and after the operation(s) or procedure(s) to be
    performed, including appropriate portions of my body, for
    medical, scientific or educational purposes, provided my identity
    is not revealed by the pictures.” Judge v. Saltz Plastic Surgery, PC,
    
    2014 UT App 144
    , ¶ 2 & n.1, 
    330 P.3d 126
    .
        ¶ 4 In 2007, Fox News decided to produce a two-part news
    story about “the risks and benefits of plastic surgery, and how to
    select a reputable and qualified plastic surgeon.” For this story, a
    Fox News reporter interviewed a woman who experienced
    serious medical complications following plastic surgery. In order
    to counterbalance the negative example, the reporter contacted
    Saltz’s office to ask “whether Dr. Saltz had a patient with a
    positive surgical outcome who would be willing to be interviewed
    for the news story” about plastic surgery and how to choose a
    plastic surgeon. Saltz invited Ms. Judge to be interviewed for the
    story. Because of her interest in women’s health issues and her
    desire to help “women make a more informed decision about how
    to choose a plastic surgeon and . . . be aware of why [they] might
    want to have plastic surgery and that it’s okay,” Ms. Judge agreed
    to participate in the news story. Ms. Judge “felt that [it] would be
    an educational piece for the public.”
       ¶ 5 Ms. Judge was interviewed by the Fox News reporter on
    January 11, 2008, at Saltz’s office. During the interview, Ms. Judge
    openly discussed her plastic surgery, stating that she was “really
    pleased” and describing the results. The interview included
    Dr. Saltz conducting a m ock medical examination of Ms. Judge,
    which was filmed for use as background footage. Ms. Judge wore
    a paper examination gown for the duration of the mock
    examination. She expressed concern “about the camera angles that
    might be used and wanted to ensure that the filming was
    appropriate and tasteful, showing no cleavage or thigh.” After the
    mock examination, Ms. Judge posed for post-operative
    photographs showing the results of her surgery.2
    
    
       2The facts indicate only that the photographs were taken on
    the same day as the interview, after the mock examination.
    Whether the post-operative photographs were understood to be
                                                             (cont.)
    
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        ¶ 6 While Ms. Judge was changing back into her street
    clothes after the mock examination, the reporter asked Saltz’s
    office manager for “before and after” pictures of Ms. Judge and
    other patients. According to Saltz, once Ms. Judge came out of the
    examination room, Saltz’s office manager asked Ms. Judge, in the
    presence of the reporter and Dr. Saltz, for consent to release the
    clinical photographs for the news story, and Ms. Judge gave
    consent for the release. However, the reporter denied this account
    even though her denial subjected her employer, Fox News, to
    liability. And Ms. Judge avers that she did not consent to the
    release of the photographs to the news media. Later that day,
    Saltz’s office manager emailed Ms. Judge’s unredacted nude pre-
    and post-operative photographs to the reporter, identifying them
    by writing, in one email, “Here are Coni’s before pictures” and, in
    another email, “[H]ere are Coni’s after pictures.” 3 Saltz “placed no
    restrictions on Fox News’ use of [Ms. Judge’s] clinical
    photographs in the email with which they were sent or
    otherwise.”
       ¶ 7 Fox News selected two of Ms. Judge’s photographs for
    use in the news story and redacted them by placing black bars
    across Ms. Judge’s bust and pelvis. Judge, 
    2014 UT App 144
    , ¶ 6.
    The “photographs were taken from the neck down and did not
    show [Ms. Judge’s] face,” but showed her body “from neck to
    upper thigh.” Id. ¶ 5. Fox News then used the redacted
    photographs in the January 31, 2008 news story about plastic
    surgery, identifying them by stating, “[T]his is Coni before; this is
    Coni after.” Id. ¶ 6.
       ¶ 8 Once Ms. Judge discovered that her clinical photographs
    had been used in the story, she contacted Fox News and Saltz to
    ask what was going on, and the Fox News reporter told Ms. Judge
    that she got the photographs from Saltz. The broadcast, which
    was titled “Nip, Tuck and Nightmare,” had already been aired on
    
    for the interview or whether they were an additional set of post-
    operative photographs taken as part of Ms. Judge’s medical
    treatment is not indicated by the available facts.
       3  The facts do not indicate whether the post-operative
    photographs provided to the Fox News reporter were those taken
    on the day of the interview.
    
    
    
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    the evening news and had also been posted on the Fox News
    website. Ms. Judge demanded that the photographs be taken off
    the website immediately. Fox News removed the photographs, re-
    edited the story, and kept the re-edited version of the story (which
    did not include Ms. Judge’s photographs) on the website.
        ¶ 9 On January 12, 2009, Ms. Judge filed a lawsuit against
    Fox News and Saltz. The claims against Fox News were dismissed
    pursuant to a settlement agreement. Ms. Judge alleged five causes
    of action against Saltz: “(1) public[ation] of private facts, (2) false
    light, (3) intrusion upon seclusion, (4) breach of fiduciary duty,
    and (5) negligent employment and supervision.” Saltz moved for
    and was granted summary judgment on all five claims. The court
    of appeals subsequently reversed the grant of summary judgment
    for each of the five causes of action. Saltz filed a petition for writ
    of certiorari on July 23, 2014, and we granted review as to the
    following issues regarding the claims for publication of private
    facts and intrusion on seclusion:
          1. Whether this Court should adopt the Restatement
             (Second) of Torts § 652D(b), which requires that
             “the matter publicized . . . not [be] of legitimate
             concern to the public,” and whether the court of
             appeals erred in defining and applying that
             provision to conclude that disputed issues of fact
             precluded summary judgment on Respondent’s
             claim of publication of private facts.
          2. Whether the court of appeals erred in reversing
             summary judgment dismissing a claim for
             intrusion on seclusion by holding there were
             disputed issues of material fact concerning the
             scope and meaning of a consent form signed by
             Respondent.
       ¶ 10 We adopt the Restatement’s legitimate public concern
    element for claims for publication of private facts and affirm the
    court of appeals’ reversal of the grant of summary judgment for
    publication of private facts and intrusion on seclusion.
                        STANDARD OF REVIEW
       ¶ 11 “On a writ of certiorari, we review the decision of the
    court of appeals, not that of the district court, and apply the same
    standard[s] of review used by the court of appeals. We conduct
    
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    that review for correctness, ceding no deference to the court of
    appeals.” Watkins v. Ford, 
    2013 UT 31
    , ¶ 18, 
    304 P.3d 841
    (alteration in original) (internal quotation marks omitted). Because
    this case is on appeal from a summary judgment ruling, the court
    of appeals “view[ed] the facts and all reasonable inferences drawn
    therefrom in the light most favorable to the nonmoving party and
    review[ed] the court’s legal conclusions and ultimate grant or
    denial of summary judgment for correctness.” Judge v. Saltz Plastic
    Surgery, PC, 
    2014 UT App 144
    , ¶ 13, 
    330 P.3d 126
     (internal
    quotation marks omitted). Thus, we review the decision of the
    court of appeals for correctness.
                                 ANALYSIS
        ¶ 12 Saltz contends that the court of appeals correctly
    “concluded that a plaintiff alleging . . . public disclosure of private
    facts must demonstrate that the public has no legitimate interest
    in the private fact,” but argues that the court of appeals erred in
    defining and applying that provision to conclude that disputed
    issues of fact precluded summary judgment on the claim for
    publication of private facts. Saltz also contends that the court of
    appeals erred in reversing summary judgment dismissing the
    claim for intrusion on seclusion by holding that there were
    disputed issues of material fact concerning the scope and meaning
    of the consent forms signed by Ms. Judge.
       ¶ 13 We first consider and adopt the requirement in section
    652D(b) of the Restatement (Second) of Torts that for claims for
    publication of private facts, it must be shown that “the matter
    publicized . . . is not of legitimate concern to the public.” Next, we
    determine that the court of appeals correctly defined and applied
    that provision to conclude that disputed issues of fact precluded
    summary judgment on the claim for publication of private facts.
    Finally, we determine that the court of appeals correctly reversed
    summary judgment on the claim for intrusion on seclusion based
    on disputed issues of material fact concerning the scope and
    meaning of the consent forms.
    
    
    
    
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       I. FOR CLAIMS FOR PUBLICATION OF PRIVATE FACTS,
           PLAINTIFFS MUST SHOW THAT “THE MATTER
              PUBLICIZED . . . IS NOT OF LEGITIMATE
                   CONCERN TO THE PUBLIC”
        ¶ 14 This is the first case in which we address the issue of
    whether to adopt the requirement in section 652D(b) of the
    Restatement (Second) of Torts that “the matter publicized . . . is
    not of legitimate concern to the public” as a fourth element for
    claims for publication of private facts. We set forth three elements
    for such claims in Shattuck-Owen v. Snowbird Corp.:
           (1) the disclosure of the private facts must be a
           public disclosure and not a private one; (2) the facts
           disclosed to the public must be private facts, and
           not public ones; [and] (3) the matter made public
           must be one that would be highly offensive and
           objectionable to a reasonable person of ordinary
           sensibilities.
    
    2000 UT 94
    , ¶ 11, 
    16 P.3d 555
     (citation omitted). In Shattuck-Owen,
    we also noted that “the Restatement (Second) of Torts § 652D
    (1977) contains another element, requiring that the matter made
    public not be of legitimate concern to the public” but, in light of
    our holding in that case, declined to decide whether to adopt that
    element. Id. ¶ 11 n.1 (internal quotation marks omitted). Today,
    we adopt this element as a fourth element for claims for
    publication of private facts. 4
       ¶ 15 In adopting this fourth element, we consider it
    appropriate to provide some guidance regarding its application.
    We do not, however, fully develop the contours of the element
    because this is the first case before us and we anticipate that the
    
       4
         Absent this fourth element, the test for claims for publication
    of private facts would be too broad, posing a risk to the freedom
    of speech and freedom of the press guaranteed by the First
    Amendment. The requirement that the matter made public not be
    of legitimate concern to the public imposes a reasonable constraint
    on claims for publication of private facts that is appropriate in
    light of the constitutional restrictions on the common law right of
    privacy.
    
    
    
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    contours will be developed over time in our case law. The
    Restatement’s comment regarding “legitimate public concern”
    notes that “[t]he common law has long recognized that the public
    has a proper interest in learning about many matters.”
    RESTATEMENT (SECOND) OF TORTS § 652D cmt. d (1977). In order to
    determine whether a matter is of legitimate public concern, courts
    evaluate its newsworthiness, taking into consideration the
    customs and conventions of the community. Id. at cmt. h. This
    inquiry may present a jury question, but the determination may
    also sometimes be made as a matter of law.
       ¶ 16 Legitimate public interest has been defined as
    “newsworthiness.” Shulman v. Grp. W Prods., Inc., 
    955 P.2d 469
    ,
    478 (Cal. 1998). “News,” for purposes of this inquiry, is a concept
    that has essentially been defined by traditional publishers and
    broadcasters, “in accordance with the mores of the community,”
    and includes publications about such topics as
          homicide and other crimes, arrests, police raids,
          suicides, marriages and divorces, accidents, fires,
          catastrophes of nature, a death from the use of
          narcotics, a rare disease, the birth of a child to a
          twelve-year-old girl, the reappearance of one
          supposed to have been murdered years ago, a
          report to the police concerning the escape of a wild
          animal and many other similar matters of genuine,
          even if more or less deplorable, popular appeal.
    RESTATEMENT (SECOND) OF TORTS § 652D cmt. g (1977). The scope
    of matters of legitimate public concern is not, however, “limited
    to ‘news,’ in the sense of reports of current events or activities.”
    Id. at cmt. j. Aside from such reports, newsworthiness also
    extends to “the use of names, likenesses or facts in giving
    information to the public for purposes of education, amusement
    or enlightenment, when the public may reasonably be expected to
    have a legitimate interest in what is published.” Id.
        ¶ 17 But “[t]he extent of the authority to make public private
    facts is not . . . unlimited” either. Id. at cmt. h. In determining
    whether there is legitimate public concern, one must take into
    account whether there is a logical nexus between the information
    and a matter of legitimate public interest, the degree of
    intrusiveness, and the community’s customs and conventions. In
    Shulman, for example, the Supreme Court of California found that
    
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    the information included in a broadcast was of legitimate public
    concern “where the facts disclosed about a private person
    involuntarily caught up in events of public interest bear a logical
    relationship to the newsworthy subject of the broadcast and are
    not intrusive in great disproportion to their relevance.” Shulman,
    955 P.2d at 478; see also Campbell v. Seabury Press, 
    614 F.2d 395
    , 397
    (5th Cir. 1980) (“The privacy of [individuals who either have not
    sought or have attempted to avoid publicity] is protected,
    however, by requiring that a logical nexus exist between the
    complaining individual and the matter of legitimate public
    interest.”); Winstead v. Sweeney, 
    517 N.W.2d 874
    , 877 (Mich. Ct.
    App. 1994) (“In Campbell, . . . there was a logical nexus between
    the facts published about the plaintiff and the matter of public
    interest.”). 5 Furthermore, “account must be taken of the customs
    and conventions of the community,” which also requires
    consideration of community mores. RESTATEMENT (SECOND) OF
    TORTS § 652D cmt. h (1977). Information is not considered to be of
    legitimate public concern “when the publicity ceases to be the
    giving of information to which the public is entitled, and becomes
    a morbid and sensational prying into private lives for its own
    sake, with which a reasonable member of the public, with decent
    
       5  A logical nexus between information published and the
    matter of legitimate public interest is required not only in cases
    involving involuntary public figures but also in cases involving
    voluntary public figures. Voluntary public figures are those who
    have voluntarily placed themselves in the public eye.
    RESTATEMENT (SECOND) OF TORTS § 652D cmt. e (1977). While the
    legitimate public interest may extend further in cases involving
    voluntary public figures, it is not unlimited. See id. at cmt. h
    (“Some reasonable proportion is also to be maintained between
    the event or activity that makes the individual a public figure and
    the private facts to which publicity is given. Revelations that may
    properly be made concerning a murderer or the President of the
    United States would not be privileged if they were to be made
    concerning one who is merely injured in an automobile
    accident.”). In determining the limits of legitimate public interest,
    “account must be taken of the customs and conventions of the
    community.” Id. Ultimately, such customs and conventions, and
    “community mores,” determine what is newsworthy. Id.
    
    
    
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    standards, would say that he had no concern.” Id.; see also Robert
    C. Ozer, P.C. v. Borquez, 
    940 P.2d 371
    , 378 (Colo. 1997); Green v.
    Chicago Tribune Co., 
    675 N.E.2d 249
    , 256 (Ill. App. Ct. 1996);
    Winstead, 517 N.W.2d at 877.
        ¶ 18 In certain cases, it is appropriate for courts to decide as a
    matter of law whether a given matter is of legitimate concern to
    the public. “If the court can determine, as a matter of law, whether
    the facts are within the realm of the public interest,” the court may
    decide the issue on summary judgment. Winstead, 517 N.W.2d at
    878. Summary judgment is appropriate in clear cases, where
    reasonable minds could not differ, such as Toffoloni v. LFP
    Publishing Group, LLC, where Ms. Benoit, a model and
    “professional woman wrestler,” was murdered by her husband, a
    well-known professional wrestler. 
    572 F.3d 1201
    , 1204 (11th Cir.
    2009). In that case, there was “no dispute that Ms. Benoit’s death
    was a legitimate matter of public interest and concern.” Id. at 1205
    (internal quotation marks omitted). However, when an article
    about Ms. Benoit’s life, career, and death published in a 2008 issue
    of Hustler magazine gratuitously included nude photographs of
    Ms. Benoit taken twenty years earlier, the court correctly held that
    there was no legitimate public interest in the published nude
    photographs because they “were in no conceivable way related to
    the ‘incident of public concern’ or current ‘drama’ [of Ms.]
    Benoit’s death.” Id. at 1204, 1208, 1211. Reasonable minds could
    not differ in that case; therefore, summary judgment was
    appropriate.
       ¶ 19 In cases where reasonable minds could differ about
    whether a matter is of legitimate public concern, however,
    summary judgment is not an option. If the court, “after consulting
    the relevant sections of the Restatement and reviewing the case
    law, . . . concludes that reasonable minds could differ concerning
    the newsworthiness of the information,” then the issue is a jury
    question. Winstead, 517 N.W.2d at 878–79.
       II. DISPUTED ISSUES OF MATERIAL FACT PRECLUDED
              SUMMARY JUDGMENT FOR PUBLICATION
                        OF PRIVATE FACTS
        ¶ 20 In this case, the court of appeals correctly held that
    summary judgment on the claim for publication of private facts
    was inappropriate because of disputed issues of material fact. The
    district court had held that “[t]he public had a legitimate interest
    
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    in [Ms. Judge’s] redacted photographs because [Ms.] Judge
    voluntarily placed these facts before the public . . . by appearing
    on television to inform the public about choosing a good
    [cosmetic] surgeon and by making representations about her
    surgical results.” Judge v. Saltz Plastic Surgery, PC, 
    2014 UT App 144
    , ¶ 32, 
    330 P.3d 126
     (first, fourth, and fifth alteration in
    original) (internal quotation marks omitted). However, the
    dispute as to whether there was legitimate public interest in the
    photographs based on Ms. Judge’s participation in the broadcast
    or whether the inclusion of those photographs was gratuitous or
    overly intrusive made summary judgment inappropriate in this
    case. 6
        ¶ 21 Saltz argues that Ms. Judge’s voluntary participation in
    the interview where she discussed her surgical results gave rise to
    a legitimate public interest in seeing her surgical result. Saltz also
    
       6  In addition to the issues regarding legitimate public interest
    in the context of claims for publication of private facts, the court of
    appeals also addressed the requirement that “a plaintiff . . . prove
    that the private fact has been disclosed publically.” Judge v. Saltz
    Plastic Surgery, PC, 
    2014 UT App 144
    , ¶ 24, 
    330 P.3d 126
    . The court
    of appeals correctly identified the “key question” as “whether the
    communication was made in such a way that it was substantially
    certain the fact would become public.” Id. As the court of appeals
    points out, “[a] factfinder could very reasonably and sensibly
    conclude that giving photographs to a reporter, at the request of
    that reporter, knowing that the reporter was preparing a story on
    the topic, made it ‘substantially certain’ that the photographs
    would be published.” Id. ¶ 25. Add to this the fact that Saltz knew
    the reporter requesting the photographs was interviewing
    Ms. Judge for a story on the topic (in fact, Saltz had invited
    Ms. Judge to participate in the story in the first place, the
    interview took place at Saltz’s office, and in connection with that
    interview Dr. Saltz himself conducted a mock medical
    examination of Ms. Judge, which was filmed for use in the story)
    and the fact that the reporter specifically asked for Ms. Judge’s
    before and after pictures, and it becomes very clear that a
    reasonable factfinder could well conclude that when Saltz sent
    those photographs to the reporter, the photographs were
    substantially certain to be published. See supra ¶¶ 4–6.
    
    
    
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    explains that the photographs were used “to show the good
    outcome Ms. Judge discussed in the story and to contrast the
    photographs of the bad surgical outcome.” Ms. Judge argues that
    her “consent[] to answer questions about her proceedings
    generally d[id] not render every aspect of [her life], let alone her
    confidential medical photographs, subject to public disclosure.”
    She also maintains that “there is nothing otherwise newsworthy
    about [her] particular results” and that the publication of her
    photographs “neither strengthened the impact nor the credibility
    of the presentations nor otherwise enhanced the public’s general
    awareness of the issues and facts concerning plastic surgery.” As
    the court of appeals put it, “reasonable minds could differ on
    whether appearing on television to discuss cosmetic surgery gives
    rise to a legitimate public interest in viewing explicit photographic
    documentation of the results of the interviewee’s surgery.” Judge,
    
    2014 UT App 144
    , ¶ 35. Because reasonable minds could differ as
    to this issue, which is critical to the claim for publication of
    private facts, summary judgment was inappropriate in this case.
              III. DISPUTED ISSUES OF MATERIAL FACT
                  PRECLUDED SUMMARY JUDGMENT
                    FOR INTRUSION ON SECLUSION
        ¶ 22 The court of appeals correctly held that disputed issues
    of material fact concerning the scope and meaning of the pre-
    surgery consent forms signed by Ms. Judge precluded summary
    judgment for intrusion on seclusion. Ms. Judge signed two
    consent forms entitled “Consent for Surgery/Procedure or
    Treatment.” One of the forms included the following language,
    which is at issue in this case: “I consent to be photographed or
    televised before, during, and after the operation(s) or procedure(s)
    to be performed, including appropriate portions of my body, for
    medical, scientific or educational purposes, provided my identity
    is not revealed by the pictures.” Judge v. Saltz Plastic Surgery, PC,
    
    2014 UT App 144
    , ¶ 2, 
    330 P.3d 126
    . The language of the other pre-
    surgery form is “functionally identical.” Id. ¶ 2 n.1. 7 Saltz
    
       7 The second form reads, “I consent to the photographing or
    televising of the operation(s) or procedure(s) to be performed,
    including appropriate portions of my body, for medical, scientific
    or educational purposes, provided my identity is not revealed by
    the pictures.” Judge v. Saltz Plastic Surgery, PC, 
    2014 UT App 144
    ,
                                                                 (cont.)
    
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    contends that this language authorized the use of Ms. Judge’s pre-
    and post-operative photos in the news story about plastic surgery.
    Ms. Judge disagrees.
        ¶ 23 One issue regarding these forms is the existence of a
    Limited Consent Form used by Saltz, which Ms. Judge did not
    sign. This form reads, “By signing below I give Saltz Plastic
    Surgery/Renato Saltz permission to use my pictures for office
    presentations, company website, and book/media publications.”
    If the pre-surgery consent forms already permit the use of clinical
    photographs for medical, scientific, or educational purposes in
    such mediums as book and media publications, the Limited
    Consent Form seems to provide no additional rights for Saltz. In
    fact, Saltz has conceded that if its interpretation of the language in
    the pre-surgery consent forms is correct, then the Limited Consent
    Form would be redundant.
        ¶ 24 Aside from the issue regarding redundancy of forms, the
    parties disagree about the plain meaning of the language in the
    pre-surgery forms. Specifically, the parties dispute whether the
    language of the pre-surgery forms authorizes release of the
    photographs or authorizes interoffice use only, and they also
    dispute the scope and meaning of the phrases “educational
    purposes” and “my identity is not revealed by the pictures.” The
    district court apparently found no ambiguity in the forms, since it
    granted summary judgment on the claim for intrusion on
    seclusion; the court of appeals, however, found ambiguity and
    questions of fact in the pre-surgery consent forms and therefore
    reversed summary judgment on this issue. Id. ¶¶ 37–43.
    “[W]hether a contract is ambiguous is a question of law, which we
    review for correctness.” Watkins v. Ford, 
    2013 UT 31
    , ¶ 19, 
    304 P.3d 841
     (citation omitted). A contract term or provision is ambiguous
    “if it is capable of more than one reasonable interpretation
    because of ‘uncertain meanings of terms, missing terms, or other
    facial deficiencies.’” WebBank v. Am. Gen. Annuity Serv. Corp., 
    2002 UT 88
    , ¶ 20, 
    54 P.3d 1139
     (citation omitted). If there is no
    ambiguity, “the contract may be interpreted as a matter of law.”
    Id. ¶ 19 (citation omitted). If, however, there is ambiguity, “the
    
    
    ¶ 2 n.1, 
    330 P.3d 126
    . “The parties make no distinction between
    the language used in each form.” Id.
    
    
    
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                            Opinion of the Court
    
    intent of the parties becomes a question of fact,” and a “motion for
    summary judgment may not be granted if . . . there is a factual
    issue as to what the parties intended.” Id. ¶ 22 (citations omitted). 8
    As detailed below, we hold that the language of the pre-surgery
    forms is ambiguous regarding whether the forms authorize the
    release of photographs and regarding the scope and meaning of
    the phrases “educational purposes” and “my identity is not
    revealed by the pictures.”
        ¶ 25 Whether the language of the forms authorize release of
    photographs is ambiguous. Saltz maintains that the plain
    language of the forms necessarily authorizes release of
    photographs: “A person cannot be televised without release of the
    images to third parties [and] . . . photographs would serve no
    educational purpose unless they were shown to third parties.”
    Ms. Judge counters by claiming that she “did not consent to the
    release of anything.” She maintains that the plain language of the
    form still has meaning even without implicitly authorizing the
    release of photographs, because the photographs could still be
    used for “various legitimate interoffice uses,” such as to “evaluate
    her surgical results” and “to analyze and improve [Dr. Saltz’s]
    methods, as well as train his staff.” Thus, it is disputed whether
    Ms. Judge’s signature on the forms authorized release of the
    photographs or whether the scope of her consent was more
    limited. Since the language of the forms is “capable of more than
    one reasonable interpretation” regarding whether they authorized
    release of the photographs, the forms are facially ambiguous.
       ¶ 26 The scope and meaning of the term “educational
    purposes” as it appears in the forms are likewise ambiguous. Saltz
    points out that the news story about plastic surgery was “an
    educational piece for the public.” Ms. Judge likewise considered
    the story educational. In fact, she was motivated to participate in
    the story because of her interest in women’s health issues and her
    
       8 Summary judgment, however, is appropriate in cases where
    undisputed extrinsic evidence establishes that no genuine issue of
    fact exists as to the meaning the parties intended for an
    ambiguous provision. See, e.g., Willard Pease Oil & Gas Co. v.
    Pioneer Oil & Gas Co., 
    899 P.2d 766
    , 770 (Utah 1995). Saltz has not
    introduced such undisputed extrinsic evidence in this case.
    
    
    
                                      14
                              JUDGE v. SALTZ
                           Opinion of the Court
    
    desire to help “women make a more informed decision about how
    to choose a plastic surgeon and . . . be aware of why [they] might
    want to have plastic surgery and that it’s okay.” Thus, both
    parties agree that the news story itself was educational. However,
    Ms. Judge disputes the meaning of the term “educational
    purposes” in the pre-surgery consent form, “assert[ing] that she
    never understood ‘educational purposes’ ‘to mean that she was
    consenting to have her nude photographs released to the media to
    be aired on the evening news.’” As the court of appeals pointed
    out, “the relevant inquiry is not whether the underlying news
    story served an educational purpose but whether the release of
    [Ms.] Judge’s photographs to the reporter promoted an
    educational purpose within the meaning of the consent form.” Judge,
    
    2014 UT App 144
    , ¶ 40 (emphasis added). This question has not
    been resolved. Because the parties have “presented contrary,
    tenable interpretations” of the scope and meaning of the term
    “educational purposes,” “the language of the [forms] is
    ambiguous such that the intentions of the parties cannot be
    determined by the plain language of the agreement.” WebBank,
    
    2002 UT 88
    , ¶¶ 19, 27 (citation omitted).
        ¶ 27 Finally, the parties disagree about the correct
    interpretation of the form’s provision that Ms. Judge’s identity
    would “not [be] revealed by the pictures.” Saltz places great
    weight on the phrase “by the pictures,” arguing that the
    photographs “did not show Ms. Judge’s face or reveal her
    identity.” According to Saltz, to interpret the provision as
    “preclud[ing] Dr. Saltz from disclosing Ms. Judge’s name in
    conjunction with her pictures” would “render[] the phrase ‘by the
    pictures’ meaningless.” Thus, Saltz posits that sending the
    photographs to a reporter in two emails that included the phrases
    “Here are Coni’s before pictures” and “[H]ere are Coni’s after
    pictures” did not violate this provision. The district court agreed
    with Saltz, granting summary judgment and finding no violation
    because “[t]here is no notation on any photo that would identify
    [Ms.] Judge.” In reversing the district court’s grant of summary
    judgment on this issue, the court of appeals correctly pointed out
    that there is a question of fact regarding what the form proscribes:
    “[w]hile the language of the consent form may reasonably be
    interpreted to be a prohibition on depicting [Ms.] Judge’s face, it
    could also be read as forbidding Saltz from providing identifying
    information with the photographs.” Judge, 
    2014 UT App 144
    , ¶ 42.
    
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                             Cite as: 
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                           Opinion of the Court
    
    Saltz argues that “it was Ms. Judge’s participation in the news
    story, not the emails with Ms. Judge’s pictures attached[,] that
    revealed her identity.” However, the claim that the emails with
    Ms. Judge’s pictures attached—which specifically stated, “Here
    are Coni’s before pictures” and “[H]ere are Coni’s after
    pictures”—did not reveal Ms. Judge’s identity strains the bounds
    of credulity. Under Saltz’s posited interpretation of this provision,
    since every patient is required to sign such forms before surgery,
    Saltz could identify any and all of its patients by name anytime it
    uses their photographs, including on its company website, as long
    as it does so by providing identifying information with the
    photographs as opposed to the photographs themselves revealing
    its patients’ identities. Saltz’s interpretation of this provision is
    clearly unreasonable, and we reject that interpretation. However,
    we are not in a position to adopt Ms. Judge’s interpretation as
    correct as a matter of law. 9 Therefore, for purposes of this appeal,
    we conclude that this provision is ambiguous.
    
    
       9  The concurrence likewise rejects Saltz’s interpretation of the
    provision that Ms. Judge’s identity would “not [be] revealed by
    the pictures” but goes further to aver that “the only remaining
    reasonable interpretation of the language, once Saltz’s theory has
    been rejected, is that the language ‘revealed by the pictures’
    encompasses the release of photographs accompanied by explicit
    identifying labels.” Infra ¶ 33. In fact, the concurrence is “not
    persuaded that there are any . . . material facts in dispute”
    regarding the “scope and meaning of the pre-surgery consent
    forms,” neither in regard to the “revealed by the pictures”
    language nor in regard to the “educational purposes” language.
    Infra ¶¶ 30, 33. At the same time, the concurrence concedes that
    “Ms. Judge did not request summary judgment below[,] and we
    are not in a position to grant her such relief on appeal.” Infra ¶ 33.
    Despite this concession, the concurrence would effectively grant
    summary judgment in favor of Ms. Judge for the claim for
    intrusion on seclusion. Not only is such a grant not an option for
    purposes of this appeal because Ms. Judge has not requested
    summary judgment, but because no such request was made, Saltz
    did not have the opportunity or incentive to explain why granting
    summary judgment against it would be inappropriate and the
    grant of summary judgment would deny Saltz such an
                                                                   (cont.)
    
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                              JUDGE v. SALTZ
                           Opinion of the Court
    
        ¶ 28 In conclusion, the language of the consent forms is
    ambiguous and disputed issues of fact clearly remain regarding
    the meaning of the pre-surgery consent forms in the context of the
    Limited Consent Form as well as regarding the scope and
    meaning of the phrases “educational purposes” and “my identity
    is not revealed by the pictures,” as used in the forms. Because of
    the existence of such ambiguity, “the intent of the parties [is] a
    question of fact” and “extrinsic evidence must be looked to in
    order to determine the intentions of the parties.” WebBank, 
    2002 UT 88
    , ¶¶ 19, 22 (citations omitted). Therefore, the court of
    appeals correctly held that these disputed issues of material fact
    precluded summary judgment for Ms. Judge’s claim for intrusion
    on seclusion.
                              CONCLUSION
        ¶ 29 We adopt the Restatement’s legitimate public concern
    element for claims for publication of private facts. Furthermore,
    we hold that the court of appeals correctly applied that element to
    the claim for publication of private facts and correctly found that
    there are disputed issues of material fact regarding the legitimate
    public concern element of the claim. Therefore, we affirm the
    court of appeals’ reversal of the grant of summary judgment for
    publication of private facts. We also affirm the court of appeals’
    reversal of the grant of summary judgment for the claim for
    intrusion on seclusion because of the disputed issues of material
    fact regarding the meaning of the consent forms signed by
    Ms. Judge.
    
    
    opportunity.
        Furthermore, such a determination would be beyond the scope
    of the grant of certiorari in this case. We granted certiorari on the
    question “[w]hether the court of appeals erred in reversing
    summary judgment dismissing a claim for intrusion on seclusion
    by holding there were disputed issues of material fact concerning
    the scope and meaning of a consent form signed by Respondent.”
    And we hold that the court of appeals did not err in so doing.
    Infra ¶ 28. The question does not leave room for us to go further
    and grant summary judgment in favor of another interpretation of
    a portion of the consent form, for which summary judgment has
    not even been requested.
    
    
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                            Cite as: 
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                     J. DURHAM, concurring in result
    
       JUSTICE DURHAM, concurring in the result:
       ¶ 30 Because I disagree with the court’s analysis in Part III, I
    write separately to explain my views on the role of appellate
    review of the contract at issue in this case. The majority opinion
    concludes that the court of appeals correctly determined that there
    were “disputed issues of material fact” concerning the scope and
    meaning of the pre-surgery consent forms signed by Ms. Judge. I
    am not persuaded that there are any such material facts in
    dispute; the court of appeals was asked to interpret specific
    contractual language, and I do not believe that Saltz has offered
    any plausible interpretations of that language, let alone any
    extrinsic evidence that could constitute a “fact” capable of being
    disputed, that render it ambiguous. Absent ambiguity, it falls to
    the appellate courts to construe the language. Mind & Motion Utah
    Invs., LLC v. Celtic Bank Corp., 
    2015 UT 94
    , ¶ 24, __ P.3d __. And
    courts decide as a matter of law whether a contractual provision is
    ambiguous. Keith v. Mountain Resorts Dev., L.L.C., 
    2014 UT 32
    ,
    ¶ 17, 
    337 P.3d 213
    .
       ¶ 31 The language in question deals with the use of
    photographs taken of Ms. Judge, as follows:
       CONSENT FOR SURGERY/PROCEDURE OR TREATMENT
          ...
          5. I consent to be photographed or televised before,
          during, and after the operation(s) or procedure(s) to
          be performed, including appropriate portions of my
          body, for medical, scientific or educational purposes,
          provided my identity is not revealed by the pictures.
          6. For purposes of advancing medical education, I
          consent to the admittance of observers to the
          operating room.
        ¶ 32 As the majority opinion points out, Saltz’s view of this
    language renders a second form with identical language used by
    his office, and called a Limited Consent Form—which Ms. Judge
    did not sign—redundant. Furthermore, Saltz’s construction of the
    foregoing language—that it reflects Ms. Judge’s agreement that
    her medical photographs could be released with identifying
    information to the commercial media—is in my view entirely
    inconsistent with the consent form’s plain language. While the
    term “educational,” outside of the context of this particular form,
    
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                               JUDGE v. SALTZ
                      J. DURHAM, concurring in result
    
    might be susceptible to a meaning as broad as Saltz claims here,
    when read in conjunction with the use of the term “medical
    education” in paragraph 6, it seems clear to me that the scope of
    the term must be limited to the context of medical treatment and
    related medical and scientific education. This reading is bolstered
    by the nature of the document itself. The form is labeled a
    “CONSENT FOR SURGERY/PROCEDURE OR TREATMENT.” It
    is entirely focused on Ms. Judge’s medical treatment, including
    use of tissue, risks, fees for services, use of anesthesia, etc. The
    notion that it covers the release of treatment-related documents
    for Saltz’s publicity-related purposes is antithetical to the idea of a
    consent to treatment.
        ¶ 33 I also conclude that this court must construe the plain
    meaning of the language “provided my identity is not revealed by
    the pictures.” Actually, the majority opinion does just that—
    observing that “Saltz’s interpretation of this provision is clearly
    unreasonable, and we reject that interpretation.” Supra ¶ 27.
    Nevertheless the majority appears to gratuitously consider the
    provision to be ambiguous and declines to interpret it. I cannot
    agree—the only remaining reasonable interpretation of the
    language, once Saltz’s theory has been rejected, is that the
    language “revealed by the pictures” encompasses the release of
    photographs accompanied by explicit identifying labels, as
    happened here. Once again, I do not see any disputed evidence in
    this record that would support the notion of ambiguity in the
    language. It is true that Ms. Judge did not request summary
    judgment below and we are not in a position to grant her such
    relief on appeal, but that procedural circumstance does not
    require a remand for consideration of “ambiguities” or factual
    disputes that do not exist in the record. We have been asked to
    construe the language of the consent form, and I see no ambiguity
    requiring extrinsic evidence thereof on remand.
       ¶ 34 But even if one of the disputed consent form provisions
    were ambiguous, this court still must interpret the form as a
    matter of law because the parties have not presented any valid
    extrinsic evidence that would create a dispute of material fact. A
    contractual ambiguity is a prerequisite to the admission of
    extrinsic evidence purporting to resolve the ambiguity. Ivory
    Homes, Ltd. v. Utah State Tax Comm’n, 
    2011 UT 54
    , ¶ 12, 
    266 P.3d 751
    . If, however, the parties do not present extrinsic evidence,
    courts must resolve the ambiguity by using the usual
    
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                             Cite as: 
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                      J. DURHAM, concurring in result
    
    interpretative tools. No doubt in many cases parties do not
    present extrinsic evidence that is relevant to an ambiguous term—
    either because they elect not to or because there is simply no valid
    extrinsic evidence to be had. In such cases, courts are required to
    say what even an ambiguous contractual provision means in
    order to determine the rights and obligations of the parties under
    the agreement.
        ¶ 35 In this case, Saltz argued in the trial court that it was
    entitled to summary judgment because the signed consent form
    authorized it to release Ms. Judge’s pictures to the news media
    with accompanying identifying information. Ms. Judge responded
    by arguing that the consent form did not give Saltz this authority.
    Ms. Judge also produced an affidavit in which she declared that
    she “never understood ‘medical, scientific or educational
    purposes’ to mean that I was consenting to have my nude
    photographs released to the media.” But Ms. Judge’s personal
    understanding of the meaning of the consent form’s terms is not
    valid extrinsic evidence that the district court could consider. Cf.
    Mind & Motion, 
    2015 UT 94
    , ¶ 42 (“[L]atent ambiguities are
    objectively verifiable and ordinarily cannot be proven based on the
    parties’ subjective understanding of contractual terms. Therefore,
    affidavits and other evidence that fails to identify a collateral
    matter are not ‘relevant’ to showing a latent ambiguity.” (footnote
    omitted)).
        ¶ 36 Thus there was no valid extrinsic evidence relevant to
    the interpretation of the consent form for the district court to
    consider during the summary judgment proceeding. For this
    reason, I disagree with the majority’s conclusion that “disputed
    issues of fact clearly remain regarding the meaning of the pre-
    surgery consent forms.” Supra ¶ 28. In the absence of any extrinsic
    evidence, the only question before the district court (and this
    court) is what do the phrases “educational purposes” and
    “provided my identity is not revealed by the pictures” mean
    within the context of the consent form? Regardless of whether
    these phrases are deemed to be ambiguous or not, in the absence
    of valid extrinsic evidence presented by the parties, this is a legal
    question to be resolved by a court. It is not a factual question to be
    resolved by a jury.
        ¶ 37 I therefore agree with the majority’s conclusion that
    Saltz was not entitled to summary judgment on the intrusion on
    
    
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                             JUDGE v. SALTZ
                     J. DURHAM, concurring in result
    
    seclusion claim. But, as noted above, I arrive at this conclusion
    because I have determined as a matter of law that the consent
    form does not mean what Saltz says it means. I see no disputed
    issues of fact to be resolved on remand regarding the proper
    interpretation of the consent form.
    
    
    
    
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