Steffensen-WC, LLC v. Volunteers of America of Utah, Inc.

2016 UT App 49

THE UTAH COURT OF APPEALS

STEFFENSEN-WC, LLC,
Appellant,
v.
VOLUNTEERS OF AMERICA OF UTAH, INC.; KATHERINE BRAY;
AND MARK S. MANAZER,
Appellees.

Memorandum Decision
No. 20140855-CA
Filed March 10, 2016

Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 140901780

Brian W. Steffensen, Attorney for Appellant
Matthew N. Evans, Beth J. Ranschau, and Greg M.
Newman, Attorneys for Appellees

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGE GREGORY K. ORME and SENIOR JUDGE
RUSSELL W. BENCH concurred. 1

CHRISTIANSEN, Judge:

¶1 Steffensen-WC, LLC appeals from the district court’s
grant of a motion to dismiss. We affirm.

¶2 Volunteers of America of Utah, Inc. is a nonprofit
organization, Katherine Bray is its president, and Mark S.
Manazer is its chief operating officer. We refer to the
organization, Bray, and Manazer collectively as VOA. We refer

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Steffensen-WC v. Volunteers of America of Utah

to Salt Lake City Corporation, the Salt Lake City Planning
Commission, and the Salt Lake City Planning Director
collectively as SLC.

¶3 Steffensen-WC owns a parcel of land in Salt Lake City.
The building on that land was formerly industrial but has been
converted to apartments. VOA purchased an adjacent parcel of
land, with the intention of constructing a homeless shelter for
young adults. To that end, VOA applied to SLC for the permits
necessary to build and operate the shelter. Thereafter,
Steffensen-WC brought suit against VOA and SLC, noting that
SLC appeared “to be on the verge of approving the conditional
use application” and asserting that “such approval can not meet
the requirements of the applicable . . . ordinances and will create
a substantial private nuisance.” VOA and SLC both filed
motions to dismiss the suit.

¶4 VOA argued in its motion to dismiss that dismissal was
appropriate because the shelter had not yet been approved, let
alone built, and “speculative allegation[s] of what may or may
not occur in the future” could not sustain a claim for private
nuisance. 2 Steffensen-WC responded to the motion by arguing
that the complaint “appropriately invoke[d] the law of
Anticipatory Nuisance” and that VOA had “inexplicably
ignore[d] the fact that [Steffensen-WC] is pursuing an
anticipatory nuisance claim.” VOA filed a reply, asserting that
anticipatory nuisance is not a cause of action recognized by Utah
courts and that even if it were recognized in Utah, Steffensen-
WC “nevertheless failed to plead the necessary elements of such
a claim.” VOA then filed a request to submit its motion to

2. At oral argument before this court, counsel represented that
the permits necessary for VOA to construct and operate the
shelter have since been approved and that the shelter is under
construction.

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Steffensen-WC v. Volunteers of America of Utah

dismiss for decision. Steffensen-WC objected, claiming that the
anticipatory-nuisance arguments in VOA’s reply constituted
“essentially an entirely new motion to dismiss.” Steffensen-WC
also requested an enlargement of time to file a motion to strike
VOA’s reply.

¶5 The district court determined that the anticipatory-
nuisance arguments in VOA’s reply were appropriate rebuttal
material under rule 7 of the Utah Rules of Civil Procedure. The
district court also noted that it was unpersuaded by Steffensen-
WC’s argument that the complaint had “‘invoked the law of
Anticipatory Nuisance’” in light of the fact that Steffensen-WC’s
complaint “expressly invokes the claim of ‘private nuisance’”
and “even lays out the elements of a ‘private nuisance.’” The
district court concluded that the complaint attempted to allege
private nuisance but failed to allege the specific elements
required of a private-nuisance claim. As a result, the district
court denied Steffensen-WC’s objection and motion for an
enlargement of time and granted VOA’s motion to dismiss the
claims against VOA.

¶6 SLC’s motion to dismiss argued that the district court
lacked jurisdiction over the case because the permitting process
was still underway and Steffensen-WC had therefore failed to
exhaust its administrative remedies. The district court agreed;
consequently, the district court granted SLC’s motion to dismiss
the claims against SLC.

¶7 Steffensen-WC appealed the district court’s resolution of
both motions to dismiss. In an order of partial summary
affirmance, this court agreed that Steffensen-WC had not
exhausted the available administrative remedies for its claims
against SLC and affirmed the dismissal of those claims. We now
address the dismissal of Steffensen-WC’s claims against VOA.

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Steffensen-WC v. Volunteers of America of Utah

I. The Court of Appeals Has Jurisdiction Because the
Requirement to Exhaust Administrative Remedies Does Not
Apply to Claims Against VOA.

¶8 We begin by addressing VOA’s contention that the Utah
Court of Appeals lacks jurisdiction to consider this appeal. VOA
argues that we lack jurisdiction because Steffensen-WC failed to
exhaust its administrative remedies pursuant to Utah Code
section 10-9a-801. “‘[B]ecause it is a threshold issue, we address
jurisdictional questions before resolving other claims.’” Fisher v.
Fisher, 2003 UT App 91, ¶ 15, 67 P.3d 1055 (quoting Housing
Auth. v. Snyder, 2002 UT 28, ¶ 11, 44 P.3d 724).

¶9 “No person may challenge in district court a
municipality’s land use decision made under this
chapter . . . until that person has exhausted the person’s
administrative remedies . . . .” Utah Code Ann. § 10-9a-801(1)
(LexisNexis 2012). “Where the legislature has imposed a specific
exhaustion requirement . . . we will enforce it strictly.” Patterson
v. American Fork City, 2003 UT 7, ¶ 17, 67 P.3d 466.

¶10 By referring explicitly to municipalities, the plain
language of section 10-9a-801(1) limits the requirement to
exhaust administrative remedies to land use challenges against
municipalities. Steffensen-WC alleged claims against both SLC
and VOA, of which only the VOA claims are now before us.
VOA is not-for-profit entity, not a municipality. Because the
statute’s effect is limited to land-use challenges against
municipalities, it does not apply to the claims against VOA.

¶11 We conclude that the district court had jurisdiction over
Steffensen-WC’s claims against VOA because there was no
applicable statutory exhaustion requirement. Consequently, we
have jurisdiction to consider appeals taken from the district
court’s resolution of the VOA claims.

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Steffensen-WC v. Volunteers of America of Utah

II. The District Court Did Not Err or Abuse Its Discretion by
Overruling Steffensen-WC’s Objection and Denying Steffensen-
WC’s Motion Because VOA’s Reply Memorandum Constituted
Appropriate Rebuttal to Matters Raised by Steffensen-WC’s
Opposition.

¶12 Steffensen-WC contends that the district court improperly
overruled its objection to VOA’s request to submit the motion to
dismiss for decision and improperly denied Steffensen-WC’s
motion seeking enlargement of time to file a motion to strike
VOA’s reply memorandum. A district court judge enjoys
“‘broad discretion in determining how a [case] shall proceed in
his or her courtroom.’” Pratt v. Nelson, 2005 UT App 541, ¶ 12,
127 P.3d 1256 (alteration in original) (quoting University of Utah
v. Industrial Comm’n, 736 P.2d 630, 633 (Utah 1987)). We therefore
review Steffensen-WC’s claim of error for an abuse of discretion.
See Stoddard v. Smith, 2001 UT 47, ¶ 22, 27 P.3d 546 (applying an
abuse-of-discretion standard to a district court’s denial of a
motion for additional time to file a motion for substitution); Dahl
v. Harrison, 2011 UT App 389, ¶ 11, 265 P.3d 139 (applying an
abuse-of-discretion standard to the district court’s denial of a
motion seeking additional time for discovery).

¶13 VOA filed a motion to dismiss the complaint on the basis
that the complaint failed to state a private-nuisance claim. See
Utah R. Civ. P. 12(b)(6). Steffensen-WC opposed the motion,
arguing that the complaint alleged a claim for anticipatory
nuisance rather than private nuisance. VOA argued in its reply
memorandum that Utah does not recognize anticipatory
nuisance as a cause of action. VOA further argued that, even if
Utah does recognize anticipatory-nuisance claims, Steffensen-
WC’s complaint failed to plead the necessary elements.

¶14 VOA then filed a request to submit the motion to dismiss
for decision, noting that the parties had fully briefed the issue.
Steffensen-WC objected, arguing that VOA’s reply

20140855-CA 5 2016 UT App 49
Steffensen-WC v. Volunteers of America of Utah

memorandum had raised new substantive arguments in
violation of rule 7 of the Utah Rules of Civil Procedure, and
moved for enlargement of time to file a motion to strike the reply
memorandum. See Utah R. Civ. P. 7(e)(1) (requiring that reply
memoranda “be limited to rebuttal of new matters raised in the
memorandum opposing the motion”). The district court found
that the arguments in VOA’s reply memorandum constituted
rebuttal within the scope of rule 7, overruled Steffensen-WC’s
objection, and denied the motion for enlargement of time.

¶15 On appeal, Steffensen-WC argues that the district court’s
finding “was incorrect as a matter of law.” According to
Steffensen-WC, a proper rebuttal could have addressed only the
absence of an anticipatory-nuisance claim or the propriety of the
requested remedy.

¶16 Narrowly defining “rebuttal” as direct contradictions of
an opponent’s arguments is inconsistent with the plain language
of rule 7. Rule 7 limits reply memoranda to “rebuttal of new
matters raised in the memorandum opposing the motion,” Utah
R. Civ. P. 7(e)(1) (emphasis added), and does not limit the scope
of reply memoranda to strict rebuttal of arguments previously
raised by the opposing party. Compare Matter, Black’s Law
Dictionary (10th ed. 2014) (defining a “matter” as “[a] subject
under consideration”), with Argument, id. (defining an
“argument” as “[a] statement that attempts to persuade by
setting forth reasons why something is true or untrue, right or
wrong, better or worse, etc.”).

¶17 As the district court noted, Steffensen-WC was the first
party to assert that the complaint stated a claim for anticipatory
nuisance. Thus, the “matter” of anticipatory nuisance was in fact
raised by Steffensen-WC. VOA’s reply memorandum addressed
that matter by arguing that Utah does not recognize anticipatory
nuisance as a cause of action and by arguing that Steffensen-WC
had not alleged the requisite elements of such a cause of action.

20140855-CA 6 2016 UT App 49
Steffensen-WC v. Volunteers of America of Utah

Because these arguments rebutted a new matter—anticipatory
nuisance—raised by Steffensen-WC in its opposition to the
motion to dismiss, they are appropriate rebuttal under rule 7.

¶18 The plain language of rule 7 supports the district court’s
determination that the arguments raised in VOA’s reply
memorandum were proper rebuttal arguments. Accordingly, the
district court did not abuse its discretion or commit error when it
overruled Steffensen-WC’s objection to the request to submit
and denied Steffensen-WC’s motion for enlargement of time to
file a motion to strike the reply. 3

III. Steffensen-WC’s Complaint Did Not Provide Fair Notice of
an Anticipatory-Nuisance Claim.

¶19 Steffensen-WC next contends that the district court erred
by granting VOA’s rule 12(b)(6) motion to dismiss for failure to
state a claim. See Utah R. Civ. P. 12(b)(6). We review the grant of
a motion to dismiss for correctness, giving no deference to the
district court’s decision. See Hudgens v. Prosper, Inc., 2010 UT 68,
¶ 14, 243 P.3d 1275.

¶20 A district court should grant a motion to dismiss when,
“assuming the truth of the allegations in the complaint and
drawing all reasonable inferences therefrom in the light most
favorable to the plaintiff, it is clear that the plaintiff is not
entitled to relief.” Id. (citation and internal quotation marks
omitted).

¶21 Here, the district court granted VOA’s motion to dismiss
after determining that the nuisance Steffensen-WC alleged

3. Steffensen-WC’s claim in this regard is largely academic given
our agreement with the district court that Steffensen-WC’s
complaint did not contain a claim for anticipatory nuisance. See
infra ¶¶ 26, 30.

20140855-CA 7 2016 UT App 49
Steffensen-WC v. Volunteers of America of Utah

would be caused by VOA’s shelter was speculative in that the
building had not even been built and no nuisance had yet
occurred. The district court also concluded that Steffensen-WC’s
complaint did not allege an anticipatory-nuisance claim.

¶22 On appeal, Steffensen-WC asserts that the “following
paragraphs from the [complaint] contain a short and plain
statement of the claim for anticipatory nuisance.” Steffensen-WC
then recounts twenty-three paragraphs of the complaint,
including the following:

• “Plaintiff in particular has supplied the
Defendants with detailed memoranda, studies
and expert opinions which clearly establish that
the Proposed VOA Homeless Shelter will have
serious detrimental effects which can not be
mitigated and will create a serious and
substantial private nuisance.”

• “Consequently, the Defendants all know and
are aware that the Proposed VOA Homeless
Shelter will create a serious and substantial
private nuisance[.]”

• “[T]he Defendants are all aware and know that
if they participate in . . . the approval,
construction and/or operation of the Proposed
VOA Homeless Shelter, the Steffensen Property
will be seriously and negatively affected by the
private nuisance created thereby.”

• “If [Salt Lake City] and the Planning
Commission are not enjoined, but instead
approve and grant the VOA and the Proposed
VOA Homeless Shelter the conditional use and
building permits for which they have applied,

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said actions will have created and enabled the
private nuisance complained of herein[.]”

• “[VOA] should be enjoined from proceeding
with the Proposed VOA Homeless Shelter
because it will result in a substantial private
nuisance vis a vis the Plaintiff and the Steffensen
Property[.]”

(Emphases added.) After the twenty-three-paragraph excerpt,
Steffensen-WC notes that on review of a rule 12(b)(6) motion to
dismiss, “‘the issue before the court is whether the petitioner has
alleged enough in the complaint to state a cause of action.’”
(Quoting America West Bank Members, LC v. State, 2014 UT 49,
¶ 15, 342 P.3d 224). Steffensen-WC then asserts, in conclusory
fashion, “Based upon this standard, the [complaint] stated a
claim for relief for anticipatory nuisance.”

¶23 Steffensen-WC thus asks us to determine whether the
district court should have interpreted the allegations in the
complaint as a claim for anticipatory nuisance. We do not share
the district court’s belief that private nuisance and anticipatory
nuisance are mutually exclusive concepts. Conceptually, it seems
that a private nuisance or a public nuisance could be an
accomplished fact or an anticipated eventuality. But Steffensen-
WC neglects to state what it believes the requisite elements of an
anticipatory-nuisance claim are and how the allegations in the
complaint satisfied each element. Instead, Steffensen-WC refers
us only to the statutory definition of “nuisance.” See Utah Code
Ann. § 78B-6-1101(1) (LexisNexis 2012) (“A nuisance is anything
which is injurious to health, indecent, offensive to the senses, or
an obstruction to the free use of property, so as to interfere with
the comfortable enjoyment of life or property. A nuisance may
be the subject of an action.”). A general definition of nuisance is

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of little use in determining whether the complaint alleges a
private nuisance or an anticipatory nuisance. 4 Steffensen-WC has
therefore failed to carry its burden of showing error in the
district court’s determination that the complaint did not allege
anticipatory nuisance.

¶24 This conclusion is bolstered by the many indications that
Steffensen-WC focused its complaint on the elements of a
private-nuisance claim without making any effort to satisfy the
pleading requirements for an anticipatory-nuisance claim. A
critical portion of the complaint closely mirrors the language
used in our case law to describe a private nuisance. This court
has previously described the elements of a private-nuisance
claim as follows:

Plaintiffs allege a private nuisance claim based on
an interference with the comfortable enjoyment of
their property. Accordingly, Plaintiffs must
establish the following elements to recover on their
claim: (1) a substantial invasion in the private use
and enjoyment of land; (2) caused by Defendants
or for which Defendants are responsible; and
(3) the invasion is either (a) intentional and
unreasonable, or (b) unintentional and otherwise
actionable.

Whaley v. Park City Mun. Corp., 2008 UT App 234, ¶ 21, 190 P.3d 1
(citations and internal quotation marks omitted).

¶25 In the present case, Steffensen-WC’s complaint
specifically describes the elements of its claim:

4. We note that a leading legal dictionary lists private nuisance
as one of twenty forms of nuisance. See Nuisance, Black’s Law
Dictionary (10th ed. 2014).

20140855-CA 10 2016 UT App 49
Steffensen-WC v. Volunteers of America of Utah

The Proposed VOA Homeless Shelter will interfere
with the Plaintiff’s use and comfortable enjoyment
of the Steffensen Property and thereby will
constitute a serious and substantial private
nuisance because:
a. It will create and constitute a substantial
invasion of the Steffensens’ private use and
enjoyment of the Steffensen Property;
b. Which will be caused by the Defendants
and/or for which the Defendants are
responsible; and
c. The invasion of the Steffensens’ private
use and enjoyment of the Steffensen
Property is intentional and unreasonable, or
unintentional and otherwise actionable.

¶26 We cannot agree with Steffensen-WC’s apparent assertion
on appeal that language so closely mirroring the description of a
private-nuisance claim was intended to present a claim for
anticipatory nuisance merely because it used the future tense.
We conclude Steffensen-WC has failed to show error in the
district court’s determination that the complaint did not allege
anticipatory nuisance.

¶27 Steffensen-WC’s brief on appeal also appears to suggest
that, even if the complaint did not allege a cause of action for
anticipatory nuisance, the district court erred by failing to realize
that the factual allegations contained in the complaint could also
support that cause of action. However, it is the responsibility of a
plaintiff to state his or her legal claim with sufficient specificity
as to give the defendant fair notice of the claim; a plaintiff may
not simply recite facts and then rely on the judge to construct a
legal avenue to relief. See Peak Alarm Co., Inc. v. Salt Lake City
Corp., 2010 UT 22, ¶ 69, 243 P.3d 1221 (explaining that even
under Utah’s “liberal standard of notice pleading,” a “plaintiff
must provide the defendant fair notice of the nature and basis or

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grounds of the claim and a general indication of the type of
litigation involved” (citation and internal quotation marks
omitted)); McCollin v. J.D.F. Props., LLC, 2014 UT App 75, ¶ 12,
324 P.3d 662 (affirming a pretrial summary judgment because
the appellant failed to articulate a cause of action despite being a
month from the scheduled trial, and noting parenthetically that
“despite the liberality of Utah’s notice-pleading requirements,
pleadings must give fair notice of the nature and basis of the
claim asserted” (emphasis, citation, and internal quotation marks
omitted)).

¶28 As noted above, Steffensen-WC’s brief on appeal quotes
twenty-three paragraphs from its complaint and asserts that this
excerpt fairly “stated a claim for relief for anticipatory nuisance.”
However, the excerpt contains the term “private nuisance” no
less than ten times and does not contain the term “anticipatory
nuisance” at all. And Steffensen-WC’s complaint describes the
elements of a private-nuisance claim and explains how the facts
alleged satisfy those elements. For these reasons, we cannot read
the factual allegations of Steffensen-WC’s complaint as giving
VOA or the court fair notice of an anticipatory-nuisance claim.
See Peak Alarm, 2010 UT 22, ¶ 73. Cf. State v. Kennedy, 2015 UT
App 152, ¶ 21, 354 P.3d 775 (explaining, in the context of
preservation, that “[t]he appellant must present the legal basis
for her claim to the trial court, not merely the underlying facts or
a tangentially related claim”); Wohnoutka v. Kelley, 2014 UT App
154, ¶ 8, 330 P.3d 762 (holding that a quasi-estoppel claim was
not preserved where the appellant “[took] the evidence
introduced in support of his preserved but unsuccessful contract
claim and [rewove] the constituent evidentiary threads into a
new legal theory” of quasi-estoppel on appeal).

¶29 The complaint’s occasional use of the future tense is
insufficient, without more, to properly allege a claim of
anticipatory nuisance. Jurisdictions that recognize anticipatory
nuisance as a cause of action define it as “an act, occupation, or

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structure which is not a nuisance per se, but which may become
a nuisance by reason of circumstances, location or
surroundings.” Roach v. Combined Util. Comm’n of City of Easley,
351 S.E.2d 168, 169 (S.C. Ct. App. 1986). Parties alleging
anticipatory nuisance must meet a high burden to show that “a
nuisance will inevitably or necessarily result from the act or thing
which it is sought to enjoin.” Strong v. Winn-Dixie Stores, Inc., 125
S.E.2d 628, 633 (S.C. 1962) (emphases added). Courts have
considered the burden for anticipatory-nuisance claims to be
closely related to the “clear and convincing evidence standard,”
as courts will deny relief “until a nuisance has been committed
where the thing sought to be enjoined may or may not become
such, depending on its use or other circumstances.” Livingston v.
Davis, 50 N.W.2d 592, 599 (Iowa 1951); see also, e.g., Simpson v.
Kollasch, 749 N.W.2d 671, 677 (Iowa 2008) (denying injunctive
relief for an alleged anticipatory nuisance when the petitioners
could not show to a certainty that a nuisance would result from
plans to develop a hog confinement facility); Roach, 351 S.E.2d at
169–70 (denying injunctive relief for an alleged anticipatory
nuisance when the petitioners could not show an inevitable
nuisance from plans to construct a wastewater treatment plant).
“Equity will not interfere where the apprehended nuisance is
doubtful, contingent, conjectural, or merely problematic.” 58
Am. Jur. 2d Nuisances § 297 (2016).

¶30 Even if Utah recognizes anticipatory nuisance as a cause
of action, Steffensen-WC has not persuaded us that its complaint
satisfied the elements of such a cause of action and provided fair
notice of an anticipatory-nuisance claim. 5 Nor did the complaint
allege all of the elements generally required of an anticipatory-

5. Given our resolution of the issues on appeal, we need not and
do not express any opinion on whether Utah has recognized
anticipatory nuisance as a cause of action.

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nuisance claim in jurisdictions that recognize such a cause of
action.

¶31 Affirmed.

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