Porter v. EB Golf LLC

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…)

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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.

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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).

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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.

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