Osguthorpe v. ASC Utah, Inc.

2010 UT 29
232 P.3d 999
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
D.A. Osguthorpe, in his 	Nos. 20080770
capacity as Trustee of the 	20090042
Dr. D.A. Osguthorpe Trust; 	20090043
and D.A. Osguthorpe Family
Partnership,
Petitioners and Appellants,
v.
Wolf Mountain Resorts, L.C.;
Petitioner and Appellant,
v.
ASC Utah, Inc., in its own stead;
ASC Utah, Inc., as the representative
of a defendant class consisting of
ASC Utah, Inc., skiers, contractors,
all other invitees and successors
trespassing on plaintiffs’ real
property under color of both ASC
Utah, Inc.’s claim of right as a
lessee from Wolf Mountain Resorts,
L.C., and ASC Utah, Inc.’s claim of
right as a lessee directly from 	F I L E D
plaintiffs,
Respondents and Appellees. 	May 7, 2010
---
Third District, Silver Summit
The Honorable Bruce L. Lubeck
No. 070500622
Attorneys: 	David W. Scofield, R. Reed Pruyn Goldstein, Thomas W.
Peters, Salt Lake City, for petitioners D.A.
Osguthorpe and D.A. Osguthorpe Family Partnership
Victoria C. Fitlow, Park City, for petitioner Wolf
Mountain Resorts, L.C.
John R. Lund, Kara L. Pettit, Julianne P. Blanch,
Rodney R. Parker, Michael M. Homer, Brian D.
Bolinder, Jesse C. Trentadue, Salt Lake City, for
respondents

No. 20080770, 20090042, 20090043
2
---
PARRISH, Justice:
INTRODUCTION
¶1 	This case presents questions regarding the purpose and
applicability of Utah’s unlawful detainer statute. 	Appellants
D.A. Osguthorpe and the D.A. Osguthorpe Family Partnership
(collectively the “Osguthorpes”) appeal the district court’s
dismissal of their unlawful detainer claims against American
Skiing Company (“American Skiing”) and Wolf Mountain Resorts
(“Wolf Mountain”). 	Wolf Mountain cross-appeals the district
court’s dismissal of its cross-claims against American Skiing for
indemnification, breach of contract, and breach of implied
covenant of good faith. 	The district court dismissed the
unlawful detainer claims and cross-claims. 	In so doing, it found
that there was a dispute as to whether American Skiing and Wolf
Mountain were tenants in possession of the Osguthorpes’ land in
Summit County, Utah (the “Property”) and concluded that this
uncertainty precluded an unlawful detainer action. 	We affirm the
district court’s dismissal of the unlawful detainer action and
cross-claims because we hold as a matter of law that American
Skiing and Wolf Mountain were not tenants in possession of the
Property as required by Utah’s unlawful detainer statute.
BACKGROUND
¶2 	The controversies between these parties stem from a
series of agreements dictating each party’s right to use the
Property. 	The Osguthorpes are the fee owners of the Property,
where they operate a sheep and cattle ranching operation in the
summer months. 	On August 14, 1996, the Osguthorpes entered into
an agreement (the “Lease Agreement”) with Wolf Mountain allowing
it to utilize the Property for its ski operation in the winter
months. 	The Lease Agreement allowed “the installation,
maintenance and operation of two ski lifts, snow making and
clearing of ski trails and other related facilities, structures
and roads as may be required.” 	The Osguthorpes retained the
right “to improve and use the Property provided that such
improvement or use not interfere with ski lifts and similar
structures and runs.” 	The Lease Agreement refers to the
Osguthorpes as “lessors” and Wolf Mountain as “lessees.”
¶3 	In 1997, Wolf Mountain and American Skiing entered into
a Ground Lease Guaranty (the “Guaranty”) that transferred Wolf

1 Attached as Exhibit “A” to Wolf Mountain’s Answer and
Cross-Complaint is the “Ground Lease Guaranty” pursuant to which
American Skiing assumes all rights and obligations of the
original Lease Agreement between the Osguthorpes and Wolf
Mountain. 	Wolf Mountain asserts that the Guaranty forbids
American Skiing from modifying the terms of the Lease Agreement
with the Osguthorpes without Wolf Mountain’s express written
authorization. 	But nothing in the attached version of the
Guaranty requires such authorization. 	It states:
[T]his Guaranty shall be absolute and
unconditional and shall remain and continue
in full force and effect as to any renewal,
extension, amendment, addition, assignment,
sublease, transfer, or other modification of
the lease, whether or not the undersigned
shall have knowledge or have been notified of
or agreed or consented. . . .
There is no language suggesting that Wolf Mountain’s prior
approval is needed before American Skiing and the Osguthorpes may
modify the terms of the original Lease Agreement. 	In their
briefing before this court, Wolf Mountain and American Skiing
refer to a “section 11 indemnification clause.” 	However, we can
find no such clause in the Guaranty.
2 The execution of the Restatement of Agreement corresponds
to a lawsuit between the Osguthorpes and their former business
partner, Enoch Richard Smith. 	Apparently, the Osguthorpes, who
were obligated to share with Smith the proceeds from any lease of
the Property, had taken the position that no money was owed to
Smith because they had not “leased” the property but rather
granted an “easement.” 	Without making a determination on whether
the Restatement of Agreement constituted a lease or an easement,
the court in Smith v. Osguthorpe held that Smith was entitled to
a share of the proceeds. 2002 UT App 361, ¶¶ 37-38, 58 P.3d 854.
In this appeal, the Osguthorpes now argue this prior holding
precludes us from deciding that the Restatement of Agreement is
anything but a lease. 	We are unpersuaded. 	Because this appeal
(continued...)
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No. 20080770, 20090042,20090043
Mountain’s rights in the Property to American Skiing. 1 	In 2001,
American Skiing renegotiated the terms of the 1996 Lease
Agreement with the Osguthorpes. 	The results of the renegotiation
are reflected in a “Restatement of Agreement” between American
Skiing and the Osguthorpes. 	This Restatement of Agreement
indicates that it supersedes and restates the original Lease
Agreement. 	It describes American Skiing’s interest in the
Property as an “Easement” 2 rather than a “Lease” and gives both

2 (...continued)
does not involve the same parties as the Smith case, there is no
basis for applying the doctrine of res judicata.
No. 20080770, 20090042, 20090043
4
parties rights to use the Property, but limits interference with
the other’s uses. 	The Restatement of Agreement provides:
[American Skiing] acknowledges that under the
documents Osguthorpe and Partnership have
retained the right to use all of the Property
as part of their ranch operation, including,
without limitation, grazing and other
activities in connection with their sheep and
cattle operation, and to otherwise use and
improve the Property, so long as such ranch
operations and other use and improvements do
not damage the towers or other facilities
lawfully constructed on the Property by
[American Skiing] . . . and does not
unreasonably interfere with the use of the
Property by [American Skiing] in the winter
as part of [American Skiing’s] winter skiing
operation. [American Skiing] agrees that the
use of the Property during the spring, summer
and fall months will not interfere with the
ranch operations of Osguthorpe and
Partnership.
It is this Restatement of Agreement that the Osguthorpes attached
to their initial unlawful detainer complaint as evidence of a
lease.
¶4 	The Osguthorpes’ complaint contained three separate
causes of action seeking: 	(1) eviction of Wolf Mountain,
allegedly in unlawful detainer; (2) eviction of American Skiing,
allegedly in unlawful detainer; and (3) eviction of a defendant
class. 	In support of their eviction action against American
Skiing, the Osguthorpes asserted that American Skiing committed
waste by destroying crops on the Property meant to feed the
Osguthorpes’ sheep and by leaving snowmaking equipment on the
Property that allegedly killed at least seven sheep. 	American
Skiing countered with a motion to dismiss pursuant to Utah Rule
of Civil Procedure 12(b)(6), claiming that eviction under the
unlawful detainer statute was not available because it was not a
tenant in possession of the Property.

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No. 20080770, 20090042,20090043
¶5 	The district court entered an order on September 2,
2008, dismissing counts two and three of the Osguthorpes’
complaint stating, “[t]he court does not believe that an action
for unlawful detainer is appropriate where the parties dispute
whether the tenant is in fact a tenant of real property and the
nature of their agreement under which the premises are held.”
The Osguthorpes moved for permission to seek an interlocutory
appeal of that order, which the court granted.
¶6 	Meanwhile, Wolf Mountain answered count one of the
Osguthorpes’ complaint, admitting it was a tenant in unlawful
detainer, and asserting cross-claims against American Skiing for
indemnification, breach of contract, and breach of the covenant
of good faith and fair dealing. 	American Skiing, troubled by the
implications of Wolf Mountain’s admission that Wolf Mountain was
in unlawful detainer of the Property, filed a motion to dismiss
both the eviction action against Wolf Mountain and Wolf
Mountain’s cross-claims. 	In December 2008, the district court
dismissed count one of the Osguthorpes’ complaint, as well as all
of Wolf Mountain’s cross-claims. 	The Osguthorpes and Wolf
Mountain appeal this final order. 	Their appeal has been
consolidated with the Osguthorpes’ previously filed interlocutory
appeal.
¶7 	The Osguthorpes argue that the district court erred in
dismissing their claims. 	Specifically, they argue that the
district court erred in concluding that unlawful detainer actions
could not lie when the parties disputed whether the interest at
issue was a lease interest or an easement. 	The Osguthorpes also
argue that the district court erred when it considered American
Skiing’s motion to dismiss the unlawful detainer action against
Wolf Mountain because American Skiing, having been dismissed from
the action, lacked standing to file the motion. 	Wolf Mountain
argues that the district court erred in dismissing its cross-
claims against American Skiing because it sufficiently pled facts
on which relief could be granted and the district court’s ruling
“eviscerates” its original Lease Agreement with the Osguthorpes.
¶8 	American Skiing counters that the dismissal of the
unlawful detainer action was proper because neither Wolf Mountain
nor American Skiing is a tenant in possession of the Property.
It further argues that the district court was not bound by any
prior judicial determination that the Restatement of Agreement
constituted a lease and American Skiing could properly move to
dismiss the Osguthorpes’ eviction action against Wolf Mountain
because an eviction of Wolf Mountain would constitute an eviction
of American Skiing.

No. 20080770, 20090042, 20090043
6
¶9 	We hold that the district court properly dismissed the
unlawful detainer claims because, as a matter of law, American
Skiing does not qualify as a tenant in possession under the Utah
unlawful detainer statute. 	See Utah Code Ann. § 78B-6-802
(2008). 	We also hold that American Skiing continued to retain
party status in the action even after the entry of the district
court’s interlocutory order dismissing the Osguthorpes’ claims
against it and therefore was entitled to seek dismissal of the
Osguthorpes’ unlawful detainer claim against Wolf Mountain. 	We
have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j)
(2008).
STANDARD OF REVIEW
¶10 	“A district court’s grant of a motion to dismiss based
upon the allegations in the plaintiff’s complaint[] presents a
question of law that we review for correctness.” 	Walker v.
Stowell, 2009 UT 82, ¶ 7, 227 P.3d 242 (internal quotation marks
omitted). 	In reviewing a dismissal under Rule 12(b)(6) of the
Utah Rules of Civil Procedure, we “accept the plaintiff’s
description of facts alleged in the complaint to be true, but we
need not accept extrinsic facts not pleaded nor need we accept
legal conclusions in contradiction of the pleaded facts.” 	Allred
v. Cook, 590 P.2d 318, 319 (Utah 1979). 	Furthermore, “it is well
established that an appellate court may affirm the judgment
appealed from if it is sustainable on any legal ground or theory
apparent on the record,” even if it “differs from that stated by
the trial court.” 	First Equity Fed., Inc. v. Phillips Dev., LC,
2002 UT 56, ¶ 11, 52 P.3d 1137.
¶11 	The Osguthorpes alleged in their complaint that the
Restatement of Agreement with American Skiing constitutes a lease
for purposes of the unlawful detainer statute and that American
Skiing is therefore a tenant in possession of the Property.
Because these are legal conclusions rather than pleaded facts, we
need not accept them as true. 	And although the trial court
dismissed the unlawful detainer claims because it concluded that
the relationship between the parties was unclear, we can uphold
the dismissal of the unlawful detainer claims on the ground that,
as a matter of law, the Restatement of Agreement was not a lease
and American Skiing is not a tenant in possession of the
Property.

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No. 20080770, 20090042,20090043
DISCUSSION
I. 	AMERICAN SKIING PROPERLY FILED A MOTION TO DISMISS THE
EVICTION ACTION AGAINST WOLF MOUNTAIN
¶12 	As discussed, the district court initially granted
American Skiing’s motion to dismiss the Osguthorpes’ unlawful
detainer action against American Skiing. 	Subsequent to the entry
of the district court’s order dismissing that claim, American
Skiing filed a second independent motion to dismiss the
Osguthorpes’ unlawful detainer claim against codefendant Wolf
Mountain. 	The Osguthorpes and Wolf Mountain challenge American
Skiing’s right to have brought the second motion.
¶13 	The parties, as well as the district court,
characterize the Osguthorpes’ challenge to the second motion to
dismiss as an issue of American Skiing’s standing. 	The
Osguthorpes claim American Skiing lacked standing to file the
motion to dismiss because, upon the dismissal of the Osguthorpes’
claims against American Skiing, American Skiing was no longer a
party to the action. 	We disagree with the Osguthorpes’ claim
that American Skiing was no longer a party to the action. 	We
also disagree with their characterization of the issue as one of
standing.
¶14 	“[I]n Utah, . . . standing is a jurisdictional
requirement.” 	Brown v. Div. of Water Rights, 2010 UT 14, ¶ 12,
228 P.3d 747. 	A challenge to a party’s standing “rais[es]
fundamental questions regarding a court’s basic authority over
the dispute.” 	Id. ¶ 13. 	As such, a challenge to standing is
generally directed at a plaintiff and questions whether that
plaintiff meets the jurisdictional requirements to air a
particular grievance in court. 	Where a plaintiff meets the
jurisdictional requirements to bring a cause of action, there is
no need to evaluate whether a defendant has standing to defend
the action. 	Here, there has been no challenge to the court’s
jurisdiction to hear the Osguthorpes’ claims and therefore an
analysis of American Skiing’s standing is unnecessary. 	Rather,
we hold that American Skiing remained a party to the action after
the dismissal of the Osguthorpes’ unlawful detainer claim against
American Skiing, giving it the right to file a motion to dismiss
the Osguthorpes’ remaining claims against Wolf Mountain.
¶15 	A party does not lose its party status in a litigation
action when the district court issues a non final order
dismissing the claims against that party. 	Until the district
court finally disposes of all claims in an action, it remains

No. 20080770, 20090042, 20090043
8
free to revisit its rulings. 	See Hall v. Dep’t of Corr., 2001 UT
34, ¶ 12, 24 P.3d 958 (A party must remain a part of the action
where “‘a trial court is free to reassess its decision at any
point prior to entry of a final order or judgment.’” (quoting Ron
Sheperd Ins., Inc., v. Shields, 882 P.2d 650, 654 (Utah 1997));
see also Powell v. Cannon, 2008 UT 19, ¶ 11, 179 P.3d 799 (“For
an order or judgment to be final, it must dispose of the case as
to all the parties, and finally dispose of the subject-matter of
the litigation on the merits of the case.” (Internal quotation
marks omitted.)). 	Therefore, all parties retain their party
status whenever there are pending claims or cross-claims in an
action.
¶16 	In this case, the district court dismissed the
Osguthorpes’ claims against American Skiing, but did so in a non
final order. 	The district court, therefore, still retained
jurisdiction over American Skiing and was capable of revisiting
its dismissal order at any time prior to the entry of a final
judgment. 	Additionally, American Skiing was a named defendant in
the pending cross-claims that Wolf Mountain had filed in the
action.
¶17 	Although it is clear that American Skiing remained a
party to the action, the Osguthorpes assert that it was not
entitled to file a motion seeking to dismiss a claim in which it
was not named as a defendant. 	We disagree. 	Although the precise
issue appears to be one of first impression in Utah, cases from
other jurisdictions analyzing the similar situation of an
intervenor’s right to file motions once it becomes a party to an
action persuade us to hold that any party to a lawsuit has the
right to defend against any and all claims in the action.
¶18 	Once an intervenor becomes a party to an action, it is
able to file a motion to dismiss all of the plaintiff’s claims
against the named defendant. 	See e.g., Crystal v. Grzywna, 1992
Conn. Super. LEXIS 2782, at *1 (Conn. Super. Ct., Sept. 17, 1992)
(where “[s]imultaneous to filing the motion to intervene,
[defendant-intervenor] filed a motion to dismiss the appeal on
the ground that the court does not have jurisdiction over the
subject matter of the appeal”); In re Sander Johnson, 173 N.W.2d
475, 476 (N.D. 1970) (where “[s]imultaneously with its motion to
intervene, the [intervenor] moved to dismiss the appeal on the
ground that the court lacked jurisdiction”); Lofino Props.,
L.L.C. v. Wal-Mart Stores, Inc., 2004 Ohio App. LEXIS 413, at **3
(Ohio Ct. App. Feb. 3, 2004) (where “the intervening parties
filed a motion to dismiss or in the alternative a motion for
summary judgment”). 	In other words, upon proper intervention, a

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No. 20080770, 20090042,20090043
party has the ability to file any relevant motions regarding the
subject matter of the claims.
¶19 	As discussed, American Skiing remained a party to the
action even after the district court granted its motion to
dismiss. 	As a party, American Skiing was entitled to file any
motions regarding the claims at issue in the lawsuit, including a
motion to dismiss the Osguthorpes’ unlawful detainer claim
against Wolf Mountain. 	Indeed, any decision to the contrary
would contravene all notions of fundamental fairness. 	Because
American Skiing’s rights to the Property are derivative of Wolf
Mountain’s rights, any decision implicating Wolf Mountain’s
rights would necessarily have implications on American Skiing’s
ability to operate its ski resort. 	For example, a judgment
holding that Wolf Mountain had breached its Lease Agreement with
the Osguthorpes and was therefore in unlawful detainer of the
Property could preclude American Skiing from exercising its
rights to operate the ski resort under the principles of res
judicata. 	This would result in American Skiing being forced off
the Property without any recourse. 	In short, fundamental
fairness, in addition to American Skiing’s party status, dictate
the conclusion that American Skiing’s motion to dismiss was
properly before the district court.
II. 	THE DISTRICT COURT PROPERLY DISMISSED THE OSGUTHORPES’
UNLAWFUL DETAINER CLAIMS BECAUSE THE LEASE AGREEMENT AND THE
RESTATEMENT OF AGREEMENT DID NOT TRANSFER POSSESSION OF THE
PROPERTY
¶20 	A trial court may dismiss an action if the complaint
“fail[s] to state a claim upon which relief can be granted.”
Utah R. Civ. P. 12(b)(6). 	But a motion to dismiss should be
granted only when “it appears to a certainty that the plaintiff
would be entitled to no relief under any state of facts which
could be proved in support of the claim.” 	Mack v. Utah Dep’t of
Commerce, 2009 UT 47, ¶ 17, 221 P.3d 194 (internal quotation
marks omitted). 	“‘A rule 12(b)(6) motion to dismiss admits the
facts alleged in the complaint but challenges the plaintiff’s
right to relief based on those facts.’” 	Helf v. Chevron U.S.A.,
Inc., 2009 UT 11, ¶ 14, 203 P.3d 962 (quoting Oakwood Vill.,
L.L.C. v. Albertson, Inc., 2004 UT 101, ¶ 8, 104 P.3d 1226). 	In
this case, the district court correctly granted American Skiing’s
motions to dismiss because the facts pled by the Osguthorpes do
not entitle them to relief under the unlawful detainer statute.
¶21 	To be guilty of unlawful detainer, a party must be a
tenant in possession of real property and must have violated a

No. 20080770, 20090042, 20090043
10
term of the lease, committed waste, remained on the property
beyond the legal term of the lease, or engaged in any such acts
enumerated in Utah Code sections 78B-6-802(1)(a)-(h) (2008). 	In
this case, the Osguthorpes are not entitled to relief because,
under the facts they allege, neither American Skiing nor Wolf
Mountain is a tenant in possession of the Property.
A. 	The Utah Unlawful Detainer Statute Establishes a Summary
Proceeding to Award an Aggrieved Landlord the Lawful Possession
of Property and to Compensate for the Loss of That Possession
¶22 	Utah’s unlawful detainer statute provides landowners
with a “summary remedy to recover possession” of their property
from their tenants who may be in violation of a lease provision.
Buchanan v. Crites, 150 P.2d 100, 108 (Utah 1944). 	The statutory
procedure for an unlawful detainer claim mandates a three-day
window for a tenant, served with notice, to either quit the
premises or “save the lease from forfeiture.” 	See Utah Code Ann.
§ 78B-6-802(2) (2008). 	The statute also provides specific
procedures for the service of that notice, id. § 78B-6-805, which
“must be strictly complied with in order to enforce the
obligations imposed by [the statute].” 	Perkins v. Spencer, 243
P.2d 446, 449 (Utah 1952). 	These provisions evidence a
legislative intent to create a mechanism for quickly and clearly
resolving conflicts over lawful possession of property between
landowners and tenants.
¶23 	“The basis of a suit in unlawful detainer is unlawful
possession.” 	Carstensen v. Hansen, 152 P.2d 954, 955 (Utah
1944). 	We have held that “one of the primary purposes of the
unlawful detainer statute is to provide a speedy resolution on
the issue of possession. . . .” 	See Bichler v. DEI Sys., Inc.,
2009 UT 63, ¶ 29, 220 P.3d 1203. 	Under the statute, “the
plaintiff shall only be required to show . . . that he was
peaceably in the actual possession at the time of the forcible
entry, or was entitled to the possession at the time of the
forcible detainer.” 	Utah Code Ann. § 78B-6-809(1). 	The statute
provides a process to put the appropriate party back in
possession of the disputed property and includes a “severe
remedy” when a tenant is in unlawful possession. 	Sovereen v.
Meadows, 595 P.2d 852, 853 (Utah 1979); see also Utah Code Ann.
§§ 78B-6-801 to -816. 	A landowner may receive treble damages
from a tenant who is in unlawful detainer in violation of a lease
agreement. 	See Utah Code Ann. § 78B-6-811(3). 	This is evidence
of a strong desire by the legislature to create a mechanism
pursuant to which owners can be restored to possession of their
property.

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No. 20080770, 20090042,20090043
¶24 	Because the unlawful detainer statute applies only in
cases where an owner of property is unlawfully deprived of
possession, the touchstone for availability of unlawful detainer
proceedings is the unlawful possession of property. 	The unlawful
detainer statute is not the appropriate vehicle for litigating
disputes over non-possessory interests in property such as
disputes over the scope of a license or an easement agreement.
Thus, we must determine whether the original Lease Agreement or
the Restatement of Agreement transferred a possessory interest in
the Property from the Osguthorpes to either Wolf Mountain or
American Skiing.
B. 	Neither American Skiing Nor Wolf Mountain Are Tenants in
Possession of the Property
¶25 	Neither the original Lease Agreement nor the
Restatement of Agreement transferred possession of the Property.
“A lease ‘conveys an interest in land and transfers possession.’”
Keller v. Southwood N. Med. Pavilion, 959 P.2d 102, 107 (Utah
1998) (quoting 49 Am. Jur. 2d 	Landlord and Tenant § 21 (1995)).
“The uses a possessor in land may make of the space within his
possession are, in general, undefined and are limited only by the
rights of others, while the uses an owner of a nonpossessory
interest may make are definitely limited in their scope.”
Restatement (First) of Property: Easements introductory note
(1944). 	Additionally, one with a possessory interest has the
right and intention “to exclude other members of society in
general from any present occupation of the land.” 	Restatement
(First) of Property § 7 (1936).
¶26 	To determine whether the Osguthorpes conveyed a
possessory interest in the Property, we look to the plain
language of the written instruments. 	See Keller, 959 P.2d at
107. 	“However, a court is not bound by the parties’
characterization of their transaction or by any title they may
have given in writing.” 	Id. 	We conclude that the plain language
of the Lease Agreement and the Restatement of Agreement do not
confer a possessory interest to Wolf Mountain or American Skiing
because those agreements limit American Skiing’s and Wolf
Mountain’s use of the Property and allow the Osguthorpes to
retain their possessory interest.
¶27 	The language of the initial Lease Agreement between
Wolf Mountain and the Osguthorpes limited Wolf Mountain’s use of
the Property to a “commercial recreational area” and did not
allow Wolf Mountain to exclude others from the Property. 	It

3 The Osguthorpes argue that the district court erred in
dismissing their third claim for relief--the eviction of a
defendant class--based on the court’s erroneous finding that
American Skiing was not in unlawful detainer. 	Because we hold
that American Skiing was not in exclusive possession and thus not
in unlawful detainer, we uphold the district court’s dismissal of
count three.
No. 20080770, 20090042, 20090043
12
specified the infrastructure that Wolf Mountain could build,
including ski lifts, snow-making equipment and similar structures
required for a ski area. 	In short, the language of the Lease
Agreement limited Wolf Mountain in its use of the land, which is
characteristic of a nonpossessory interest. 	See Restatement
(First) of Property: Easements introductory note (1944).
¶28 	The Lease Agreement also specified, “[n]otwithstanding
the rights granted to Wolf Mountain herein, D.A. Osguthorpe shall
be permitted to improve and to use the Property provided that
such improvement or use does not interfere with ski lifts and
similar structures and runs of Lessee.” 	Thus, the Osguthorpes
retained the specific right to possess the Property. 	Such an
arrangement is not consistent with conveyance of a possessory
interest to Wolf Mountain.
¶29 	The 2001 Restatement of Agreement between American
Skiing and the Osguthorpes uses similar language limiting
American Skiing’s use of the Property and reserving the
Osguthorpes’ possessory interest. 	It incorporates the original
Lease Agreement language limiting American Skiing’s use of the
Property to “a commercial recreational area.” 	It also specifies
that the Osguthorpes “have retained the right to use all of the
Property as part of their ranch operation . . . and to otherwise
use and improve the Property, so long as such ranch operations
and other use and improvements do not damage the towers or other
facilities lawfully constructed on the Property by [American
Skiing].” 	In granting rights to American Skiing to operate the
ski area, the Osguthorpes specifically retained their rights to
continue to use and possess the Property. 	Because the
Osguthorpes retained possession, they could not have granted
exclusive possession to American Skiing. 	In short, neither Wolf
Mountain nor American Skiing has ever been in exclusive
possession of the Property. 3
¶30 	The Osguthorpes argue they are not bound by the
Restatement of Agreement and can evict Wolf Mountain because
American Skiing did not have the authority to restate the
original Lease Agreement as a subtenant of Wolf Mountain. 	We

4 Such claims are apparently pending in a separate action
between American Skiing and Wolf Mountain.
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No. 20080770, 20090042,20090043
disagree. 	Neither the original Lease Agreement nor the
Restatement of Agreement conveyed the requisite possessory
interest in the Property. 	Because there is no set of facts that
would entitle the Osguthorpes to relief under the unlawful
detainer statute, the district court properly dismissed their
claims.
C. 	Wolf Mountain’s Cross-Claims Fail as a Matter of Law Because
Their Alleged Injury Does Not Materialize if American Skiing Is
Not in Unlawful Detainer
¶31 	Having determined that neither Wolf Mountain nor
American Skiing is subject to an unlawful detainer action because
they lack the requisite possessory interest in the Property, we
also hold that the district court properly dismissed Wolf
Mountain’s cross-claims against American Skiing for
indemnification and breach of the covenant of good faith and fair
dealing.
¶32 	As previously explained, American Skiing and Wolf
Mountain entered into a Ground Lease Guaranty, pursuant to which
Wolf Mountain transferred to American Skiing its rights to use
the Property. 	The Guaranty included provisions to protect Wolf
Mountain in the event that American Skiing breached the terms of
the original Lease Agreement, and against any “renewal,
extension, amendment, addition, assignment, sublease, transfer,
or other modification of the [original] lease.” 	Thus, any
liability on the part of American Skiing under the Guaranty is
contingent upon its actual breach of the original Lease Agreement
or the Restatement of Agreement.
¶33 	Because the unlawful detainer claims against American
Skiing were properly dismissed, Wolf Mountain’s indemnification
claim fails because of its inability to satisfy a condition
precedent. 	Under the express terms of the Guaranty, a breach of
the Lease or Guaranty by American Skiing is a condition precedent
to any indemnification obligation. 	While Wolf Mountain may have
other valid claims against American Skiing that do not arise from
American Skiing’s breach of the Lease Agreement or Guaranty,
those claims are not at issue here. 4

No. 20080770, 20090042, 20090043
14
CONCLUSION
¶34 	The district court properly dismissed all claims
against Wolf Mountain and American Skiing. 	Under the plain
language of the Lease Agreement and Restatement of Agreement,
neither American Skiing nor Wolf Mountain is a tenant in
possession of the Property. 	They are therefore not subject to an
action for unlawful detainer. 	We also affirm the district
court’s dismissal of Wolf Mountain’s cross-claims. 	Because
American Skiing has not been adjudicated to be in unlawful
detainer of the Property, the facts before the court do not show
a breach of the Lease or Guaranty that would give rise to a claim
for indemnification. 	This does not foreclose the possibility
that a breach may have occurred based on facts not alleged in
this case. 	But that is an issue for another day. 	The judgment
of the district court is affirmed.
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¶35 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur in Justice Parrish’s
opinion.
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