Porter v. EB Golf , 372 P.3d 709 ( 2016 )


Menu:
  •                          
    2016 UT App 82
    THE UTAH COURT OF APPEALS
    ROBERT PORTER,
    Appellant,
    v.
    EB GOLF LLC,
    Appellees.
    Memorandum Decision
    No. 20150215-CA
    Filed April 28, 2016
    Second District Court, Ogden Department
    The Honorable Michael D. DiReda
    No. 130904307
    Craig T. Jacobsen, Attorney for Appellant
    David S. Bridge, Dustin D. Gibb, and Alisha M.
    Giles, Attorneys for Appellee
    JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
    Decision, in which JUDGE GREGORY K. ORME and SENIOR JUDGE
    PAMELA T. GREENWOOD concurred.1
    CHRISTIANSEN, Judge:
    ¶1     Robert Porter appeals the district court’s grant of
    summary judgment to EB Golf LLC (EB Golf). Porter contends
    that the district court inappropriately concluded that, as a matter
    of law, he would not be able to establish damages. We affirm.
    1. Senior Judge Pamela T. Greenwood sat by special assignment
    as authorized by law. See generally Utah R. Jud. Admin. 11-
    201(6).
    Porter v. EB Golf
    BACKGROUND
    ¶2     This dispute has a long history, spanning nearly fifteen
    years. EB Golf owns and operates Eagle Lake Golf Course in
    Roy, Utah. Porter owns land adjacent to the golf course and a
    house on that land. Porter sued EB Golf in July of 2007, alleging
    negligence, nuisance, and trespass for flooding that began in the
    early 2000s. Porter sought damages “equaling the value of his
    home and property,” and explained that the house was “most
    likely unsalvageable.” In April 2012, the district court dismissed
    that lawsuit with prejudice due to Porter’s failure to prosecute it.
    ¶3     Porter filed the present lawsuit on July 19, 2013, alleging
    causes of action identical to those in the previous lawsuit:
    negligence, nuisance, and trespass. Porter asserts that the court
    in the previous lawsuit had limited his claims “to all activities
    and damages that had accrued as of the commencement of that
    lawsuit [on] July 10, 2007.” Porter further asserts that the claims
    in the current lawsuit are for damage caused by recurring
    flooding after July 10, 2007.
    ¶4     On August 27, 2013, EB Golf filed a motion to dismiss,
    arguing that Porter’s claims were barred by res judicata and the
    applicable statute of limitations. Ultimately, the district court
    considered matters outside of the pleadings, treated EB Golf’s
    motion to dismiss as a motion for summary judgment, and
    granted summary judgment to EB Golf. The district court’s
    written order concluded, “Based on the arguments presented in
    [EB Golf’s+ Memoranda, and as a result of Mr. Porter’s claims in
    the [earlier case], the Court holds that Mr. Porter cannot
    establish damages in the present case as a matter of law.
    Moreover, there is no genuine issue of material fact precluding
    summary judgment.”2
    2. The district court’s reasoning is not explained in its brief
    written order of summary judgment. But neither party objected
    (continued…)
    20150215-CA                     2                 
    2016 UT App 82
    Porter v. EB Golf
    ISSUE AND STANDARD OF REVIEW
    ¶5     Porter contends that the district court erred by granting
    summary judgment to EB Golf. We review “a trial court’s legal
    conclusions and ultimate grant or denial of summary judgment
    for correctness, and view[] the facts and all reasonable inferences
    drawn therefrom in the light most favorable to the nonmoving
    party.” Orvis v. Johnson, 
    2008 UT 2
    , ¶ 6, 
    177 P.3d 600
     (citations
    and internal quotation marks omitted).
    ¶6      On appeal, both parties focus on the issues of res judicata
    and the applicable statute of limitations. However, because the
    district court granted summary judgment due to a lack of
    provable damages, our review focuses on that determination.
    But see infra ¶ 9 n.5.
    ANALYSIS
    ¶7     Summary judgment will be granted “if the moving party
    shows that there is no genuine dispute as to any material fact
    and the moving party is entitled to judgment as a matter of law.”
    Utah R. Civ. P. 56(a).3 The moving party has the burden of
    presenting evidence to demonstrate that no genuine issue of
    material fact exists and that judgment as a matter of law is
    proper. 
    Id.
     R. 56(a), (e). However, once the moving party
    challenges an element of the nonmoving party’s case on the basis
    (…continued)
    to the adequacy of that order, and Porter’s counsel approved it
    as to form.
    3. Since the rulings in this case, rule 56 of the Utah Rules of Civil
    Procedure has been amended to adopt the style of the equivalent
    Federal Rule of Civil Procedure 56. Because the amendment did
    not change the substantive Utah law, we cite to the current
    version of the rule. See Utah R. Civ. P. advisory committee notes.
    20150215-CA                      3                 
    2016 UT App 82
    Porter v. EB Golf
    that no genuine issue of material fact exists, the burden then
    shifts to the nonmoving party to present sufficient evidence to
    establish a genuine issue of material fact. 
    Id.
     R. 56(a)(2). “The
    nonmoving party must submit more than just conclusory
    assertions that an issue of material fact exists to establish a
    genuine issue.” Waddoups v. Amalgamated Sugar Co., 
    2002 UT 69
    ,
    ¶ 31, 
    54 P.3d 1054
    . This burden-shifting is complicated when, as
    here, the nonmoving party would have borne the burden at trial
    to prove the challenged element. The Utah Supreme Court has
    explained
    A summary judgment movant, on an issue where
    the nonmoving party will bear the burden of proof
    at trial, may satisfy its burden on summary
    judgment by showing, by reference to “the
    pleadings, depositions, answers to interrogatories,
    and admissions on file, together with the affidavits,
    if any,” that there is no genuine issue of material
    fact. Upon such a showing, whether or not
    supported by additional affirmative factual
    evidence, the burden then shifts to the nonmoving
    party, who may not rest upon the mere allegations
    or denials of the pleadings, but must set forth
    specific facts showing that there is a genuine issue
    for trial.
    Orvis v. Johnson, 
    2008 UT 2
    , ¶ 18, 
    177 P.3d 600
     (citations, internal
    quotation marks, and emphasis omitted).
    ¶8      Here, Porter was the nonmoving party on summary
    judgment and was also the party who would have borne the
    burden at trial to prove damages. Once EB Golf put forth its
    evidence that Porter could not establish he had any new
    damages, Porter was unable to “rest upon the mere allegations
    or denials of the pleadings, [but rather had to] set forth specific
    facts showing that there [was] a genuine issue for trial.” 
    Id.
    (citation and internal quotation marks omitted). Specific facts
    20150215-CA                     4                 
    2016 UT App 82
    Porter v. EB Golf
    must be more than mere conclusory assertions that an issue of
    material fact exists. It follows that, on appeal, Porter must
    identify the specific facts that were before the district court and
    explain how those facts created a genuine issue as to the
    provability of damages.
    ¶9      On appeal, Porter does not address the analysis followed
    by the district court in reaching its conclusion. Nor does he
    provide a transcript of the hearing that decision memorialized. 4
    Rather, Porter provides only the summarily stated written order:
    “Based on the arguments presented in [EB Golf’s+ Memoranda,
    and as a result of Mr. Porter’s claims in the *earlier case+, the
    Court holds that Mr. Porter cannot establish damages in the
    present case as a matter of law.”5 Absent the transcript and a
    focused challenge to the lower court’s analysis, we are unable to
    address the legal correctness of the analysis supporting the
    district court’s conclusion that Porter could not establish
    damages as a matter of law.
    ¶10 It is certainly possible that the court’s analysis mirrored
    that of EB Golf’s memorandum in support of the motion to
    dismiss. But even assuming this to be the case, Porter fails to
    4. The minutes for the summary judgment hearing state only,
    “Court issues findings and states that there is no genuine issue
    of fact in regards to new damages and that there would need to
    be new damage for the cause of action to survive.”
    5. The district court’s written order also stated, “Moreover, there
    is no genuine issue of material fact precluding summary
    judgment.” Porter did not contest the adequacy of the district
    court’s written order. To the extent that this was an alternate
    basis for the court’s summary judgment ruling, “*t+his court will
    not reverse a ruling of the trial court that rests on independent
    alternative grounds where the appellant challenges only one of
    those grounds.” Salt Lake County v. Butler, Crockett & Walsh Dev.
    Corp., 
    2013 UT App 30
    , ¶ 28, 
    297 P.3d 38
    .
    20150215-CA                     5                
    2016 UT App 82
    Porter v. EB Golf
    carry his burden on appeal. Porter analogizes EB Golf’s
    argument in support of dismissal to an unlucky car:
    *Porter’s+ lawsuits might be analogous to a
    situation where a car is in an accident, resulting in
    a lawsuit, but after the lawsuit is filed and while
    still pending, the car is in a subsequent accident.
    Here, [EB Golf] argued that [Porter] admitted, in
    essence, that his “car” was totaled in the first
    accident, but there is much conflicting testimony
    that suggests that at least some damage resulted
    from new tortious conduct, committed after the
    filing of [the first lawsuit].
    ¶11 Porter does not identify or provide citations to the
    testimony or evidence he believes to be in conflict. Rather, he
    refers simply to “[t]he disputed facts of this case” and states that
    he “submitted a lengthy verified statement of disputed facts,
    asserting that his home still had value after the commencement”
    of the first lawsuit. But that statement of disputed facts,
    contained in his opposition to EB Golf’s motion to dismiss,6 did
    not allege any specific or supported facts as to the actual value of
    the house after the dismissal of his first lawsuit or at the time this
    second lawsuit was filed. There was thus no evidence of the
    value of Porter’s house at the relevant time; rather, there was
    only Porter’s conclusory assertion that he believed his house still
    had some value. Similarly, Porter did not allege any specific facts
    demonstrating a decrease in the value of the land. Accordingly,
    Porter has failed to identify the specific facts that he believes
    created a genuine issue of material fact precluding summary
    judgment. See Orvis, 
    2008 UT 2
    , ¶ 18. As a result, we cannot
    6. As noted above, the district court treated EB Golf’s motion to
    dismiss as a motion for summary judgment. Supra ¶ 4; see also
    Utah R. Civ. P. 12(c).
    20150215-CA                      6                 
    2016 UT App 82
    Porter v. EB Golf
    conclude that the district court erred in determining that Porter
    could not establish damages as a matter of law.
    CONCLUSION
    ¶12 Porter has failed to meet his burden of identifying specific
    facts that were before the district court which demonstrated the
    existence of a genuine issue of material fact relating to damages.
    ¶13   Affirmed.
    20150215-CA                     7               
    2016 UT App 82
                                

Document Info

Docket Number: 20150215-CA

Citation Numbers: 2016 UT App 82, 372 P.3d 709

Filed Date: 4/28/2016

Precedential Status: Precedential

Modified Date: 1/12/2023