Rand v. KOA Campgrounds , 338 P.3d 222 ( 2014 )

2014 UT App 246_________________________________________________________
THE UTAH COURT OF APPEALS
LINDA RAND,
Plaintiff and Appellant,
v.
KOA CAMPGROUNDS, VICTORIA ORME, DOUG ROBINSON,
DON BOOTHROYD, MARLENE BOOTHROYD, ELDON HURST, AND
J-J BAKD LC,
Defendants and Appellees.
Memorandum Decision
No. 20130873-CA
Filed October 17, 2014
Third District Court, Salt Lake Department
The Honorable Kate A. Toomey
No. 090908605
Linda Rand, Appellant Pro Se
Joseph E. Minnock and Anna Nelson, Attorneys for
Appellees KOA Campgrounds, Victoria Orme,
Doug Robinson, Don Boothroyd, Marlene
Boothroyd, and J-J Bakd LC
SENIOR JUDGE PAMELA T. GREENWOOD authored this
Memorandum Decision, in which JUDGES STEPHEN L. ROTH and
JOHN A. PEARCE concurred.1
GREENWOOD, Senior Judge:
¶1 Plaintiff Linda Rand appeals the trial court’s order
dismissing her claims against Defendants KOA Campgrounds,
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
Rand v. KOA
Victoria Orme, Doug Robinson, Don Boothroyd, Marlene
Boothroyd, J-J Bakd LC (collectively, KOA), and Eldon Hurst. We
affirm.
¶2 In September 2001, Rand moved into a mobile home park
owned by KOA. Rand’s rent was due on a monthly basis, one
month in advance, and Rand paid rent faithfully for several years.
However, in 2005, Rand did not make her rent payment that was
due April 15. After KOA served Rand with a notice to pay or quit,
payment for the month running April 15 to May 16 was eventually
made on May 24.
¶3 On May 25, 2005, Rand fell down exterior stairs of a
restaurant that Eldon Hurst and his wife operated within the
mobile home park. According to Rand, her fall resulted from Hurst
bumping into her with a garbage can. Hurst, however, testified that
he was not present when Rand fell. Rand sustained injuries from
her fall and was taken to the hospital. Although Rand was
discharged later that day, she returned to the hospital a few days
later and had surgery on her ankle. Rand was transferred to a care
center after her surgery, where she stayed for about eighteen
months.
¶4 On July 14, 2005, while Rand was in the care center, KOA
moved her mobile home to a fenced storage area within the park.
Although Rand at one point requested that KOA continue to store
the mobile home until rent and storage fees issues were resolved,
KOA eventually sent Rand a letter on April 25, 2006, stating that it
considered Rand’s property abandoned and that she needed to pay
the balance due within thirty days. Rand replied that her mobile
home was not abandoned, but she made no further payments on
her past due balance. Rand’s mobile home was towed from KOA’s
storage area to another company’s lot on June 20, 2006. Rand was
informed that she could regain possession of the mobile home by
paying a $110 towing fee, but she failed to take any steps to redeem
her property at the new location. The parties are uncertain as to
what ultimately happened to the mobile home.
20130873-CA 2 2014 UT App 246Rand v. KOA
¶5 Rand subsequently filed this action, asserting four causes of
action: negligence-personal injury, negligent interference with
personal property, conversion, and trespass to chattels, and seeking
punitive damages. After a bench trial, the trial court ultimately
found in favor of Defendants on all theories. Rand appeals,
primarily contesting various fact findings made by the trial court.
“We will reverse a trial court’s findings of fact only when such
findings are clearly erroneous.” Bonnie & Hyde, Inc. v. Lynch, 2013
UT App 153, ¶ 13, 305 P.3d 196.
I. Personal Injury Negligence Claim
¶6 Rand contests the trial court’s decision on her negligence
claim arising from her fall down the restaurant stairs.
Generally, [t]o establish a claim of negligence, the
plaintiff must establish four essential elements: (1)
that the defendant owed the plaintiff a duty, (2) that
the defendant breached that duty, (3) that the breach
of duty was the proximate cause of the plaintiff’s
injury, and (4) that the plaintiff in fact suffered
injuries or damages.
Warenski v. Advanced RV Supply, 2011 UT App 197, ¶ 6, 257 P.3d
1096 (citation and internal quotation marks omitted). The plaintiff
in a negligence action bears the burden of proving each element. Id.¶7 As to Rand’s assertion that Hurst caused her fall by
bumping into her or dropping a garbage can on her, the trial court
determined that Rand’s evidence was insufficient. Specifically, the
trial court found that Hurst’s testimony that he was not present
when Rand fell down the stairs was credible, and therefore
concluded that he did not cause her fall or the resulting injuries.
Rand challenges this finding and legal conclusion by arguing that
her doctors told her that her injuries could have only happened to
a person her size if something very heavy fell on her. She therefore
20130873-CA 3 2014 UT App 246Rand v. KOA
argues that the physical damage she sustained proved that Hurst
knocked her down the stairs.
¶8 However, Rand did not call as witnesses anyone who
treated her or who could provide expert testimony related to her
injuries and their possible causes. Further, many of the injuries that
she testified about were not mentioned in the medical records
submitted by Rand as evidence of her injuries. Because Rand failed
to present evidence supporting her assertion that her injuries
indicate that something was dropped on her, the trial court’s
finding of fact on this matter is not clearly erroneous.
¶9 As to Rand’s contention that the stairs were unsafe,
A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the
land if, but only if, he (a) knows or by the exercise of
reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of
harm to such invitees, and (b) should expect that they
will not discover or realize the danger, or will fail to
protect themselves against it, and (c) fails to exercise
reasonable care to protect them against the danger.
Hale v. Beckstead, 2005 UT 24, ¶ 8, 116 P.3d 263 (emphasis omitted)
(quoting Restatement (Second) of Torts § 343 (1965)). The trial court
found that the stairs did not involve an unreasonable risk of harm
to invitees. After hearing testimony and considering photographs
of the stairs submitted by Rand, the trial court found, “The steps
are not broken, and the carpet is not loose. Handrails on either side
of the door are positioned slightly higher than the handle on the
door leading into the café.” Rand interprets the photographs
differently, but we do not see that the trial court’s interpretation is
clearly erroneous.
¶10 Rand also argues that the lack of building permits,
inspections, and licenses among the submitted evidence show that
20130873-CA 4 2014 UT App 246Rand v. KOA
the premises were not safe. Indeed, Rand asserts that “[a] building
inspection is the only acceptable proof of a safe stairway in a public
building.” However, Rand provides no legal support for this broad
assertion, nor does such an assertion recognize that Rand, not
Defendants, bears the burden of proof. We therefore decline to
disturb the trial court’s findings and resulting legal conclusions as
to negligence.2
II. Conversion
¶11 Rand next contests the trial court’s determination on her
conversion claim.
To prove conversion, a party must establish “an act
of willful interference with property, done without
lawful justification, by which the person entitled to
property is deprived of its use and possession,” and
that the party “is entitled to immediate possession of
the property at the time of the alleged conversion.”
Jones & Trevor Mktg., Inc. v. Lowry, 2010 UT App 113, ¶ 15 n.13, 233
P.3d 538 (quoting Bennett v. Huish, 2007 UT App 19, ¶ 31, 155 P.3d
917), aff’d, 2012 UT 39, 284 P.3d 630. The trial court determined that
conversion was not shown because any interference by KOA with
Rand’s property was lawfully justified.
¶12 The trial court determined that KOA was lawfully justified
in interfering with Rand’s property under two alternative
abandonment provisions of the Utah Code. The trial court found
proof of abandonment was established by the evidence presented
under both section 57-16-13 of the Mobile Home Park Residency
Act and section 78B-6-815 of the Utah Code.
2. In light of our decision affirming the trial court’s dismissal of
Rand’s negligence claims, we need not reach Rand’s arguments
regarding whether a landlord–tenant relationship existed between
KOA and Hurst and which party would be liable for her fall.
20130873-CA 5 2014 UT App 246Rand v. KOA
¶13 The applicable provision in the Mobile Home Park
Residency Act states,
Abandonment of a mobile home space and a mobile
home within a mobile home park is presumed
[when] . . . (1)(a) the resident or occupant of the
mobile home has not notified the park that the
resident or occupant will be absent from the mobile
home space or mobile home, and the resident or
occupant fails to pay rent within 45 days after the
due date; and (b) the mobile home park owner has
no reasonable evidence, other than the presence of
the resident’s or occupant’s personal property, that
the resident or occupant is continuing to occupy the
mobile home space and the mobile home . . . .
Utah Code Ann. § 57-16-13 (LexisNexis 2012).3 Similarly, section
78B-6-815 provides,
”Abandonment” is presumed [when] . . . (1) [t]he
tenant has not notified the owner that he or she will
be absent from the premises, and the tenant fails to
pay rent within 15 days after the due date, and there
is no reasonable evidence other than the presence of
the tenant’s personal property that the tenant is
occupying the premises.
Id. § 78B-6-815.
¶14 The trial court determined that abandonment had occurred
because even if persons affiliated with KOA knew where she was,
Rand “did not notify [them] that she would be absent, neither
indicating her long term plans nor when to expect her return, and
she failed to pay rent within 45 days after the due date.”
3. The applicable statutory provisions have not been substantively
amended, and we therefore cite the current version of the Utah
Code for the reader’s convenience.
20130873-CA 6 2014 UT App 246Rand v. KOA
¶15 Rand challenges the findings underlying the trial court’s
abandonment decision, arguing that her rent was prepaid at the
time her mobile home was moved and that she was in
communication with KOA during her care center stay. We see no
error in the trial court’s findings. Although Rand argues that the
rent payment in May was to pay for her home until June 15, we
cannot say that the trial court, in analyzing KOA’s ledger, clearly
erred in finding that this late payment applied to the prior month
for which payment had not been made. The trial court also
determined that Rand’s last payment, which was in an amount less
than a full month’s rent, would only have extended the paid-for
period by “a few days.”
¶16 Additionally, Rand does not point to any evidence that
would convince us that the trial court’s determination that she had
not paid rent for forty-five days before her home was moved is
clearly erroneous. As to notification, the trial court acknowledged
that although there was some communication between KOA and
Rand while she was staying at the care center, this communication
did not notify KOA as to what Rand’s long term plans were and
when she planned to return or pay her past due account. Rand
points us to nothing in the record to the contrary. Therefore, there
is no clear error in the trial court’s determination on this issue.4
4. Rand also appeals the trial court’s dismissals of her negligent
interference with personal property and trespass to chattels claims.
However, she does not address the reasoning of the trial court on
these matters, that is, that negligent interference with personal
property is not a recognized cause of action in Utah and that
trespass to chattels requires some sort of property damage. We
therefore do not consider her arguments on these claims. See
Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153,
¶ 8, 257 P.3d 441 (concluding that no error was demonstrated
because the appellant failed to address the rationale of the trial
court). Furthermore, because we do not disturb the trial court’s
decision on the first four counts, there is no need to address Rand’s
argument regarding punitive damages.
20130873-CA 7 2014 UT App 246Rand v. KOA
¶17 Affirmed.5
5. Rand makes several other claims of error that we need not reach
because they would have had no impact on the trial court’s
decision. See Utah R. Civ. P. 61 (“The court at every stage of the
proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.”). For
example, Rand argues that a letter included by the defense was
incomplete. However, Rand submitted a copy of the letter in its
entirety and the trial court had the entire letter before it when
making its determination. Also, any errors in the trial transcript
would not have impacted the trial court’s decision, as it heard the
testimony firsthand and did not rely on the transcript for its
decision.
Rand also makes assertions that certain representations
made at trial were untrue. She provides no evidence other than her
own contrary opinion to contest those representations. Thus, we do
not consider these arguments on appeal. See Lunt v. Lance, 2008 UT
App 192, ¶ 19, 186 P.3d 978 (“[W]e may not substitute our
judgment for that of the trial court as trial courts are in a better
position to weigh conflicting evidence and evaluate the credibility
of witness testimony.” (citing Utah R. Civ. P. 52(a))). Likewise, we
do not address claims and issues argued on appeal that were not
raised before the trial court. See 438 Main St. v. Easy Heat, Inc., 2004
UT 72, ¶ 51, 99 P.3d 801 (“[I]n order to preserve an issue for
appeal[,] the issue must be presented to the trial court in such a
way that the trial court has an opportunity to rule on that issue.”
(alterations in original) (citation and internal quotation marks
omitted)). These include Rand’s arguments regarding intentional
infliction of emotional distress and her suggestion that KOA had a
duty to call an ambulance after her fall.
20130873-CA 8 2014 UT App 246