Cottam v. IHC Health Services

2024 UT App 19
THE UTAH C OURT OF APPEALS
DANIEL R. C OTTAM ,
Appellant,
v.
IHC HEALTH S ERVICES INC ., S HAWN M ORROW, AND M ARK J. O TT,
Appellees.
Opinion
No. 20210606-CA
Filed February 15, 2024
Third District Court, West Jordan Department
The Honorable Matthew Bates
No. 200906311
Dennis R. James, Jonathan L. Hawkins, and
Janet I. Jenson, Attorneys for Appellant
Alexander Dushku, Justin W. Starr, James T. Burton,
and Michael Eixenberger, Attorneys for Appellees
JUDGE JOHN D. L UTHY authored this Opinion, in which
JUDGES GREGORY K. O RME and
M ICHELE M. C HRISTIANSEN F ORSTER concurred.
LUTHY, Judge:
¶1 	After Daniel R. Cottam, M.D., was denied reappointment
to the medical staff of LDS Hospital (the Hospital), he sued the
Hospital’s corporate owner, IHC Health Services Inc.; one of the
Hospital’s administrators; and a voting member of the Hospital’s
board 	(collectively, 	the 	Hospital 	Defendants). 	The 	Hospital
Defendants filed a motion to dismiss Cottam’s lawsuit, arguing
that his claims were barred by provisions in the Hospital’s bylaws
(the Bylaws), which form a contract between the Hospital and its
doctors. See Don Houston, M.D., Inc. v. Intermountain Health Care,
Inc., 933 P.2d 403, 407 (Utah Ct. App. 1997) (stating that “hospital
bylaws are a contract between the hospital and the physician”

Cottam v. IHC Health Services
20210606-CA 	2 	2024 UT App 19
(cleaned up)). Cottam does not contest that the terms of the
Bylaws grant wholesale immunity from suit to the Hospital
Defendants. The district court granted the Hospital Defendants’
motion, 	ruling 	that 	Cottam 	had 	provided 	no 	substantive
argument for why the Bylaws’ immunity provisions should not
be enforced according to their terms. In his principal brief on
appeal, Cottam again provides no substantive analysis or support
to 	counter 	the 	district 	court’s 	application 	of 	the 	immunity
provisions in the Bylaws. We therefore conclude that Cottam has
inadequately briefed this issue and, thus, failed to carry his
burden of persuasion on appeal. Accordingly, we affirm.
BACKGROUND
¶2 	Cottam is a licensed Utah physician and surgeon. He was
granted medical staff privileges at the Hospital in January 2008.
He was recredentialed without issue in 2009, 2010, and 2012. In
2014, he was recredentialed with stipulations. Then in 2015, the
Hospital’s medical director informed Cottam that the Medical
Executive Committee (the MEC) wanted to meet with him.
Cottam eventually met with a group of physicians who were
officers on the Hospital’s medical staff, and they presented
Cottam with concerns they had regarding his performance at the
Hospital. Following that meeting, Cottam was reappointed “with
a one-year focused professional practice evaluation.” The same
condition was placed on his reappointment in 2016. Then in 2017,
the Hospital reappointed Cottam to its medical staff without
conditions. In May 2018, however, the MEC voted to terminate his
privileges and deny him reappointment to the Hospital’s medical
staff.
¶3 	Cottam 	appealed 	the 	MEC’s 	decision 	to 	a 	hearing
committee (the Hearing Committee). The Hearing Committee
held a hearing that included “15 hours of testimony from nine (9)
witnesses, the presentation of more than ninety (90) exhibits and
lengthy argument by both the [H]ospital’s attorney and Dr.

Cottam v. IHC Health Services
20210606-CA 	3 	2024 UT App 19
Cottam’s attorneys.” The Hearing Committee thereafter issued a
decision upholding the MEC’s denial of Cottam’s reappointment
to the Hospital’s medical staff.
¶4 	The Hearing Committee’s decision was reviewed by the
Board of Trustees of Salt Lake Valley Hospitals of Intermountain
Healthcare, and that body confirmed the Hearing Committee’s
decision. The Hospital Defendants subsequently submitted a
report of the denial of Cottam’s staff privileges to the National
Practitioner Data Bank.
¶5 	Cottam then sued the Hospital Defendants, asserting,
among other things, that “[t]he filing of this untrue, negative and
disparaging 	report 	about 	Dr. 	Cottam 	with 	the 	National
Practitioner Data Bank . . . has and will continue to irreparably
and permanently damage Dr. Cottam’s career, his livelihood, and
his ability to practice medicine anywhere in the nation.” In his
suit, 	Cottam 	alleged 	claims 	for 	breach 	of 	contract, 	tortious
interference with present and prospective business relationships,
defamation per se, breach of the implied covenant of good faith
and fair dealing, and unconstitutional denial of property rights
without due process. He specifically alleged that the Hospital
Defendants “are bound by [the Bylaws]” and that, in the process
of denying his reappointment and in reviewing the MEC’s
decision, the Hospital Defendants “violated many of the Bylaws’
requirements.” 	He 	then 	detailed 	the 	alleged 	breaches. 	As
remedies, 	Cottam 	sought 	compensatory, 	incidental,
consequential, and punitive damages as well as a declaration that
denial of his reappointment was void.
¶6 	The Hospital Defendants responded by filing a motion to
dismiss, arguing that they were contractually immune from suit
under the following provision of the Bylaws:
Each member of the Medical Staff and each person
with clinical privileges and each person applying
for 	the 	Medical 	Staff 	or 	applying 	for 	clinical

Cottam v. IHC Health Services
20210606-CA 	4 	2024 UT App 19
privileges 	in 	the 	Hospital 	or 	requesting
reappointment 	or 	renewal 	of 	membership 	or
privileges . . . agrees to . . . release from liability of
every kind and from any other judicial relief each
person or entity that provides information to the
Hospital and Medical Staff in connection with any
credentials check, background check, admission or
reappointment 	process, 	quality 	or 	other 	peer
review, or other Hospital or Medical Staff function;
[and] [t]o release from liability of every kind and
from 	any 	other 	judicial 	relief, 	Intermountain
Healthcare, 	the 	Hospital[], 	the 	Central 	Region
Board, the Medical Staff, and each person or entity
that participates in good faith in or supports or
administers 	any 	Medical 	Staff 	credentials
verification 	or 	review, 	appointment,
reappointment, peer review, quality improvement,
discipline, or corrective action.
The Hospital Defendants contended that the Bylaws constitute a
binding contract between the Hospital and its medical staff and
that Cottam accepted the terms of the Bylaws by voluntarily
seeking appointment by the Hospital. Accordingly, they asserted,
the Bylaws’ grant of “immunity from all claims for relief against
[the Hospital Defendants] for any actions related to the peer
review process” and release “from all liability related to . . .
reappointment and the resulting peer review process” barred
Cottam “from seeking any legal redress against [the Hospital
Defendants],” meaning that “his claims must be dismissed.”
¶7 	Responding 	to 	Cottam’s 	allegations 	that the 	Hospital
Defendants had breached the Bylaws, the Hospital Defendants
argued that “the Bylaws make clear that technical breaches do not
constitute a breach of the Bylaws,” which instead require only
“substantial, 	good 	faith 	compliance” 	with 	their 	terms. 	The
Hospital Defendants asserted, quoting Utah case law, that the

Cottam v. IHC Health Services
20210606-CA 	5 	2024 UT App 19
Bylaws’ “substantial compliance provision aligns with Utah law,
‘which 	grants 	deference 	to 	hospital 	officials’ 	professional
judgment’ and ‘require[s] that a hospital only “substantially
compl[ies]” with its bylaws.’” (Alterations in original.) (Quoting
Don Houston, M.D., Inc. v. Intermountain Health Care, Inc., 933 P.2d
403, 408 (Utah Ct. App. 1997).) The Hospital Defendants then
argued that their alleged breaches of the Bylaws, “even if taken as
true for purposes of the [m]otion,” did not constitute a “material
breach” “that would negate the immunity and releases conferred
by Dr. Cottam.”
¶8 	Cottam responded by again asserting that the Hospital
Defendants had breached the Bylaws and by calling the alleged
breaches “egregious[].” He also contended that immunity has
limitations. In that regard, he first made an assertion regarding
the federal Health Care Quality Improvement Act (HCQIA), see
42 U.S.C. §§ 11101–11152, contending:
[T]he 	very 	reason 	that 	[the 	Hospital] 	has 	[the
Bylaws] and a credentialing process is that, by
complying with HCQIA, it obtains some degree of
immunity. If any hospital fails to comply with
HCQIA or breaches HCQIA, it loses its immunity.
HCQIA expressly provides that a physician
who is being disciplined by a hospital through its
credentialing 	process 	has 	the 	right 	to 	sue 	the
hospital. Indeed, Intermountain Healthcare itself
established the law on this point when it argued that
a physician had no right to sue it and lost in the
Tenth Circuit.
(Citing Decker v. IHC Hosps., Inc., 982 F.2d 433 (10th Cir. 1992).)
And he concluded:
We ask the [c]ourt, in the name of fairness, to declare
what we all know to be true: There are limits to

Cottam v. IHC Health Services
20210606-CA 	6 	2024 UT App 19
immunity—the 	immunity 	in 	the 	[B]ylaws, 	the
immunity 	in 	state 	statutes, 	the 	immunity 	in
procedural rules, the immunity in federal statutes—
all have limits and those limits are called due
process rights under the 14th Amendment of the
U.S. 	Constitution. 	Those 	limits 	are 	called 	the
implied covenant of good faith and fair dealing.
Those 	limits 	are 	called, 	even 	in 	[the 	Hospital
Defendants’] 	own 	documents, 	substantial
compliance with principles of fairness.
¶9 	The district court heard oral argument on the Hospital
Defendants’ 	motion 	to 	dismiss, 	during 	which 	Cottam 	also
asserted that “any contract that is breached by one party is no
longer enforceable by that party” and that a breach by one party
“releases the other party from any obligations on their part.” The
Hospital Defendants acknowledged that under Utah law “for a
breach of contract claim, in order to get out of the contract, which
will void complying with your obligations under the contract,
there has to be a material breach of the contract by the party that
is seeking enforcement.” On this basis, the Hospital Defendants
appeared to suggest that if Cottam pled a material breach of the
Bylaws, he may “be able to get around” the Bylaws’ immunity
provisions.
¶10 	The court subsequently issued a written decision and
order, in which it indicated that Cottam had not adequately
responded to the Hospital Defendants’ assertion of contractual
immunity and release from liability. Specifically regarding the
impact of HCQIA on contractual immunity, the court explained:
HCQIA provides immunity from damages when a
hospital engages in a professional review action that
complies with the HCQIA standards. HCQIA is
essentially a shield that a hospital can raise in
defense to a lawsuit by a physician who has been

Cottam v. IHC Health Services
20210606-CA 	7 	2024 UT App 19
subject 	to 	adverse 	action 	by 	the 	hospital. 	But
[Cottam] cannot use that shield as a sword. . . .
[The 	Hospital 	Defendants] 	do 	not 	assert
HCQIA 	immunity 	in 	their 	motion 	to 	dismiss.
Instead, they are asserting immunity under the
[B]ylaws and under state law contract principles.
(Citation omitted.) Thus, the court determined, HCQIA was
“irrelevant” to the issue of contractual immunity and release of
liability. Then the court explained:
Because [Cottam] has failed to offer any substantive
rebuttal to [the Hospital Defendants’] assertion of
contractual immunity, the [c]ourt grants the motion
to 	dismiss. 	While 	[Cottam] 	asserted 	in 	his
Complaint 	and 	Amended 	Complaint 	that 	[the
Hospital 	Defendants] 	breached 	the 	[B]ylaws,
potentially 	relieving 	him 	of 	his 	contractual
obligation to release them from liability, he has
failed to cite any relevant case law regarding the
effect of a hospital’s breach of its bylaws on its
contractual immunity and he has failed to analyze
or apply the factual assertions in his Amended
Complaint to that case law.
The [c]ourt is not a repository into which
parties may dump the burden of argument and
research. Nor will the [c]ourt assume an adversarial
position to [the Hospital Defendants] and make
[Cottam’s] arguments for him. [Cottam’s] obligation
in responding to a motion to dismiss is to address
and analyze the arguments that the moving party
raises. 	It 	is 	not 	enough 	for 	[Cottam] 	to 	assert
breaches of the [B]ylaws and then argue a loss of
immunity under an irrelevant federal law.

Cottam v. IHC Health Services
20210606-CA 	8 	2024 UT App 19
(Citation omitted.)
¶11 	As 	an 	alternative 	ground 	for 	granting 	the 	Hospital
Defendants’ motion to dismiss, the court also “agree[d] with [the
Hospital 	Defendants] 	on 	the 	merits,” 	ruling 	that 	while 	the
Hospital Defendants “may not have adhered to every technical
provision of the [B]ylaws, they substantially complied with
them.”
¶12 	Cottam now appeals, arguing that the district court erred
in granting the Hospital Defendants’ motion to dismiss.
ISSUE AND STANDARD OF REVIEW
¶13 	“We 	review 	the 	grant 	of 	a 	motion 	to 	dismiss 	for
correctness, granting no deference to the decision of the district
court.” Nielsen v. LeBaron, 2023 UT App 29, ¶ 11, 527 P.3d 1133
(cleaned up), cert. denied, 534 P.3d 751 (Utah 2023). “A motion to
dismiss should be granted only if, 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. (cleaned up).
ANALYSIS
¶14 	Cottam asserts that the district court improperly granted
the Hospital Defendants’ motion to dismiss. He advances several
arguments in his opening brief supporting this assertion, but
notably missing from them is any explanation or analysis as to
why the district court erred by concluding that the Hospital
Defendants are entitled to contractual immunity. Instead, Cottam
merely repeats, virtually verbatim, the two blocks of text quoted
above from his district court memorandum in opposition to the
motion to dismiss, asserting that HCQIA gives him the right to
sue the Hospital Defendants and asking that we set aside the

Cottam v. IHC Health Services
20210606-CA 	9 	2024 UT App 19
Hospital Defendants’ contractual immunity “in the name of
fairness.”
¶15 	Rule 24 of the Utah Rules of Appellate Procedure requires
that, in a principal brief, a party “must explain, with reasoned
analysis supported by citations to legal authority and the record,
why the party should prevail on appeal.” Utah R. App. P. 24(a)(8);
see 	also 	State 	v. 	Thomas, 	961 	P.2d 	299, 	304–05 	(Utah 	1998).
“[A]ppellants carry the burden to persuade a reviewing court
through reasoned, supported argument that the district court
committed harmful, reversible error—a burden that necessarily
requires the appellant to address the reasoning and basis of the
district court’s ruling and to explain why that court got it wrong.”
Peck v. Peck, 2020 UT App 14, ¶ 20, 459 P.3d 1033 (Pohlman, J.,
concurring in part, dissenting in part). Thus, when an appellant’s
brief “fails to satisfy the minimal requirements of [r]ule 24,” we
need not discuss the merits of the case. Smith v. Smith, 1999 UT
App 370, ¶ 8, 995 P.2d 14, cert. denied, 4 P.3d 1289 (Utah 2000). And
an appellant’s claim is “inadequately briefed when the overall
analysis of the issue is so lacking as to shift the burden of research
and argument to the reviewing court.” Id. (cleaned up). Our
insistence on rule 24 conformity “is not a slavish devotion to form
over substance.” Id. ¶ 9. “Rather, it is explained by our complete
inability, given the deficiencies in briefing, to review the merits of
the trial court’s decision.” Id.
¶16 	Cottam has not satisfied the requirements of rule 24. He
makes no attempt to explain why the district court was wrong in
its 	determination 	that 	HCQIA 	is 	irrelevant 	to 	the 	Hospital
Defendants’ contractual immunity in this case. Instead, he merely
repeats, nearly word for word, the thin argument he made below
related to HCQIA and immunity.1 Cottam’s failure to grapple
1. Cottam makes additional reference to HCQIA in other parts of
his brief. He observes that the Bylaws refer to HCQIA and affirm
(continued…)

Cottam v. IHC Health Services
20210606-CA 	10 	2024 UT App 19
with the district court’s reasoning on this point renders his
briefing inadequate, and we need not discuss the merits of his
undeveloped, repeat assertion. See id. ¶ 8. Nevertheless, we briefly
note that the district court was not obviously wrong. While
HCQIA provides a hospital immunity from damages when the
hospital engages in a professional review action that complies
with HCQIA’s standards, see 42 U.S.C. § 11111, a plaintiff doctor
may not employ the hospital’s potential shield of immunity as a
sword. The Hospital Defendants here have not asserted HCQIA
immunity, and HCQIA is irrelevant to their assertion of the
separate contractual immunity afforded them under the Bylaws.
Stated another way, HCQIA “does not create a private cause of
action,” Hancock v. Blue Cross-Blue Shield of Kan., Inc., 21 F.3d 373,
374 (10th Cir. 1994), much less a private cause of action that
overrides a hospital’s contractual immunity from suit.
¶17 	The additional extent of Cottam’s argument in his principal
brief against enforcement of the Bylaws’ immunity provisions
consists 	solely 	of 	the 	following 	recycled 	text 	from 	his
memorandum below:
that the Hospital’s credentialing and peer review procedures will
comply with HCQIA. On that basis, he cites HCQIA and case law
developed 	under 	it 	to 	(1) 	argue 	against 	application 	of 	an
evidentiary privilege to defeat his claims and (2) identify alleged
breaches by the Hospital Defendants of due process protections
that 	he 	claims 	he 	was 	entitled 	to 	through 	the 	Bylaws’
incorporation of HCQIA standards. Neither of these HCQIA-
based 	arguments 	hits 	the 	mark: 	Because 	the 	district 	court
expressly 	“[did] 	not 	reach” 	the 	issue 	regarding 	evidentiary
privileges, that issue is not properly before us. And because we
resolve this appeal on the basis of the Hospital Defendants’
contractual immunity from suit, we need not determine which
HCQIA 	due 	process 	provisions 	were 	incorporated 	into 	the
Bylaws by reference or whether they were breached.

Cottam v. IHC Health Services
20210606-CA 	11 	2024 UT App 19
We ask the [c]ourt, in the name of fairness, to declare
what we all know to be true: There are limits to
immunity—the 	immunity 	in 	the 	[B]ylaws, 	the
immunity 	in 	state 	statutes, 	the 	immunity 	in
procedural rules, the immunity in federal statutes—
all have limits and those limits are called due
process rights under the 14th Amendment of the
U.S. 	Constitution. 	Those 	limits 	are 	called 	the
implied covenant of good faith and fair dealing.
Those 	limits 	are 	called, 	even 	in 	[the 	Hospital
Defendants’] 	own 	documents, 	substantial
compliance with principles of fairness.
This paragraph does not meet the briefing requirements of rule
24. It contains no reasoned analysis explaining how the due
process protections of the Fourteenth Amendment, which apply
as against government entities, see generally Millet v. Logan City,
2006 UT App 466, ¶ 10, 147 P.3d 971 (recognizing and discussing
“the 	Fourteenth 	Amendment 	requirement 	of 	state 	action”
(cleaned up)), cert. denied, 168 P.3d 819 (Utah 2007), void the
contractual immunity of the private-party defendants in this case.
Nor does Cottam’s brief explain with reasoned analysis or citation
to authority how or why a breach of the implied covenant of good
faith and fair dealing or a lack of “substantial compliance with
principles of fairness” should void the Bylaws’ provisions that
grant the Hospital Defendants immunity from suit.
¶18 	Strikingly, this is not a case where an argument against
application 	of 	the 	Bylaws’ 	immunity 	provisions 	was 	not
preserved. Cottam 	argued 	below that 	“any 	contract that 	is
breached by one party is no longer enforceable by that party” and
that a breach by one party “releases the other party from any
obligations on their part,” an apparent reference to the “first
breach rule.” See generally Cross v. Olsen, 2013 UT App 135, ¶ 25,
303 P.3d 1030 (“Under the first breach rule a party first guilty of a
substantial or material breach of contract cannot complain if the

Cottam v. IHC Health Services
20210606-CA 	12 	2024 UT App 19
other party thereafter refuses to perform.” (cleaned up)). The
Hospital Defendants even acknowledged this rule, cited authority
for it, and appeared to suggest that if Cottam had pled a material
breach of the Bylaws, he might “be able to get around” the
immunity provisions of the Bylaws. The district court, however,
clearly did not agree with Cottam or the Hospital Defendants on
this point.2 Instead, the court observed that Cottam had “failed to
cite any relevant case law regarding the effect of a hospital’s
breach of its bylaws on its contractual immunity” and that he had
“failed to analyze or apply the factual assertions in his Amended
Complaint to that case law.” On this basis, the court concluded
that it was “not enough for [Cottam] to assert breaches of the
[B]ylaws and then argue a loss of immunity under an irrelevant
federal law,” and it granted the Hospital Defendants’ motion to
dismiss on the basis of their contractual immunity from suit.
¶19 	The 	district 	court’s 	hesitance 	to 	adopt 	Cottam’s
undeveloped 	argument 	against 	enforcement 	of 	the 	Hospital
Defendants’ contractual immunity is understandable. In Don
Houston, M.D., Inc. v. Intermountain Health Care, Inc., 933 P.2d 403
(Utah Ct. App. 1997), as here, a doctor sued a hospital after it
suspended his surgical privileges. See id. at 405. The doctor
alleged, “among other things, that [the hospital] had not complied
with 	[its] 	bylaws 	in 	summarily 	suspending 	his 	surgical
privileges.” Id. The district court granted summary judgment in
favor of the hospital on the grounds that the hospital had
substantially complied with its bylaws and that the hospital was
immune from liability under the bylaws. See id. On appeal, the
2. The court was not required to hold the Hospital Defendants to
their apparent legal concession; it was required to reach its own
conclusion 	on 	the 	viability 	of 	the 	Hospital 	Defendants’
contractual immunity from suit. Cf. 1600 Barberry Lane 8 LLC v.
Cottonwood Residential O.P. LP, 2021 UT 15, ¶ 36, 493 P.3d 580
(“Only factual allegations, not opinions or legal conclusions, may
be deemed judicial admissions.”).

Cottam v. IHC Health Services
20210606-CA 	13 	2024 UT App 19
doctor argued that the terms of the immunity provisions of the
bylaws did not encompass his claims and that the hospital was,
therefore, not immune from suit on his claims. See id. at 407. The
Don Houston court first analyzed the language of the bylaws and
concluded that the hospital was “entitled to the immunity from
suit provided for” in them. Id. at 408. Then the court turned to
separately 	address 	whether 	the 	hospital 	had 	substantially
complied with the bylaws. See id. But it expressly did so only “to
demonstrate that [the hospital] prevail[ed] under either theory,”
explaining 	that 	“resolution 	of 	the 	bylaw 	immunity 	issue
technically resolve[d] [the] appeal.” Id. In other words, the court
said that the hospital’s contractual immunity under the bylaws
applied 	regardless 	of 	whether 	the 	hospital 	had 	materially
breached its bylaws. See id.
¶20 	We hasten to add, of course, that in Don Houston the court
was not asked to opine on whether the first breach rule—or any
other doctrine—might operate to void the hospital’s contractual
immunity once it was established. Thus, Don Houston far from
forecloses the possibility that a hospital’s material breach of its
bylaws may void its contractual immunity under those bylaws.
But Don Houston does demonstrate that this issue is an open
question, not one with a self-evidently foregone conclusion as
Cottam appears to believe. Indeed, the Hospital Defendants have
pointed us to at least one appellate opinion holding that the
“absolute immunity” extended to a hospital in its bylaws was not
waived by evidence that it had materially breached the due
process provisions of its bylaws. See Estate of Blume v. Marian
Health Center, 516 F.3d 705, 708–09 (8th Cir. 2008) (cleaned up)
(applying Iowa law). Moreover, prior to application of the first
breach rule, a court would likely need to address whether the
promises of immunity and release of liability, which a physician
makes to a hospital by accepting its bylaws, and the promise of
due process during reappointment and peer review proceedings,
which the hospital makes to the physician through those bylaws,
are mutually dependent. See generally Larson v. Stauffer, 2022 UT

Cottam v. IHC Health Services
20210606-CA 	14 	2024 UT App 19
App 108, ¶ 26, 518 P.3d 175 (“The first breach rule provides that
when one party materially breaches a provision of a contract, the
other party’s subsequent failure to perform a specific obligation is
excused if the promises are mutually dependent.” (emphasis added)
(cleaned up)). Additionally, any application of the first breach
rule 	would 	have 	to 	grapple 	with 	its 	other 	implications.
Specifically, because 	the remedy under that rule is usually
rescission of the contract, see, e.g., Cross, 2013 UT App 135, ¶¶ 25–
27, then arguably if the Hospital Defendants were to lose their
contractual immunity through a material breach of the Bylaws,
Cottam would simultaneously lose his contractual right to due
process, as well as any expectation of reappointment.
¶21 	Given the foregoing legal landscape, Cottam’s oblique and
unsupported references in his principal brief to “the implied
covenant 	of 	good 	faith 	and 	fair 	dealing” 	and 	“substantial
compliance with principles of fairness” are insufficient to meet his
briefing burden under rule 24 on the issue of whether a material
breach of the Bylaws would void the Hospital Defendants’
contractual immunity from suit. See generally Jacob v. Cross, 2012
UT App 190, ¶ 3, 283 P.3d 539 (per curiam) (“[The appellant] fails
to provide any factual or legal basis to support these conclusory
statements. As a result, the issues are inadequately briefed
because he has completely shifted the burden of researching the
record and applicable law to the court.”); Smith v. Smith, 1999 UT
App 370, ¶ 8, 995 P.2d 14 (determining that noncompliance with
rule 24 occurs where “the overall analysis of the issue is so lacking
as to shift the burden of research and argument to the reviewing
court” (cleaned up)), cert. denied, 4 P.3d 1289 (Utah 2000).
¶22 	We acknowledge that in his reply brief Cottam argues,
citing authority, that “[u]nder the first breach rule[,] a party first
guilty of a substantial or material breach of contract . . . can neither
insist on performance by the other party nor maintain an action
against the other party for a subsequent failure to perform”
(second alteration and omission in original) (quoting CCD, L.C. v.

Cottam v. IHC Health Services
20210606-CA 	15 	2024 UT App 19
Millsap, 2005 UT 42, ¶ 29, 116 P.3d 366) and that “once [the
Hospital Defendants] materially breached [the] Bylaws, [they]
lost the protection of the Bylaws and the [immunity] provision(s)
they say are determinative here.” But this comes too late.3
“Generally, issues raised by an appellant in the reply brief that
were not presented in the opening brief are considered waived
and will not be considered by the appellate court.” Brown v.
Glover, 2000 UT 89, ¶ 23, 16 P.3d 540. While this is not true where
“an appellant responds in the reply brief to a new issue raised by
the appellee in its opposing brief,” id. ¶ 24, the issue here cannot
accurately be described as a new issue raised for the first time in
the Hospital Defendants’ brief. Instead, it is the very ground on
which the district court based its dismissal of Cottam’s claims.
Cottam’s failure to meaningfully address this dispositive issue in
his principal brief is a failure to comply with rule 24 through
“reasoned analysis supported by citations to legal authority and
the record, [of] why [Cottam] should prevail on appeal.” Utah R.
App. P. 24(a)(8); see also State v. Johnson, 2017 UT 76, ¶ 71, 416 P.3d
443 (Lee, J., concurring) (“The failure to raise such a challenge in
the [opening] brief amounts to forfeiture. That principle is deeply
embedded in our case law. We routinely decline to consider
claims of error raised for the first time in a reply brief or at oral
argument.” (cleaned up)); Kendall v. Olsen, 2017 UT 38, ¶¶ 11, 13,
424 P.3d 12 (“[The appellant] failed to address the standing issue
at all in his opening brief on appeal. [His] opening brief speaks
exclusively to the merits of [his] claims, which the district court
addressed in the alternative. But there is not a word on standing
in the opening brief on appeal, and that is problematic. . . . [He]
does address standing in his reply brief. But that was too late.”).
¶23 	Because 	Cottam’s 	briefing 	does 	not 	comply 	with 	the
requirements of rule 24, he has not met his burden of persuasion
on appeal. See Bank of Am. v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d
3. It also does not address the background legal landscape on this
issue that we outlined above.

Cottam v. IHC Health Services
20210606-CA 	16 	2024 UT App 19
196 (“An appellant who fails to adequately brief an issue will
almost certainly fail to carry its burden of persuasion on appeal.”
(cleaned 	up)). 	We 	thus 	affirm 	the 	district 	court’s 	order 	of
dismissal on the basis of the Hospital Defendants’ contractual
immunity from suit.4 Where the district court decided to apply the
Hospital Defendants’ contractual immunity on the basis of an
inadequate argument against such application and not based on a
definitive resolution of the underlying legal issue, our affirmance
of that decision based on inadequate briefing likewise leaves the
underlying legal issue unresolved. Whether a hospital’s material
breach of its bylaws voids the hospital’s contractual immunity
from suit granted under those bylaws must be resolved another
day.5
4. Even if Cottam had met his briefing burden and burden of
persuasion on this issue and convinced us that a material breach
of the Bylaws by the Hospital Defendants voids their contractual
immunity from suit, he has offered no argument and cited no
legal authority to demonstrate that the Hospital Defendants’
alleged breaches of the Bylaws (which he outlines in ample detail)
were actually material. This too constitutes a fatal failure to
adequately brief an independent, alternative basis for the district
court’s dismissal of his claims, namely, its determination that,
“[w]hile [the Hospital Defendants] may not have adhered to
every technical provision of the [B]ylaws, they substantially
complied with them.” See generally Brinton v. IHC Hosps., Inc., 973
P.2d 	956, 	965 	(Utah 	1998) 	(“[M]ere 	technical 	violations 	of
procedures or policies in administering peer review will not give
rise to a cause of action.”).
5. Whatever contractual immunity from suit a hospital may have
under its bylaws is distinct from the statutory immunity from
liability granted to hospitals in this same context. See Utah Code
§ 58-13-5(7). This opinion resolves no questions regarding the
contours of that statutory immunity either.

Cottam v. IHC Health Services
20210606-CA 	17 	2024 UT App 19
CONCLUSION
¶24 	Cottam was warned by the district court that he had not
sufficiently addressed the Hospital Defendants’ asserted defense
of contractual immunity and release of liability. Yet Cottam failed
to provide any appropriate argument or authority on this point in
his 	principal 	brief. 	Cottam 	has 	inadequately 	briefed 	this
dispositive issue, and he has not carried his burden of persuasion
on appeal. We affirm the district court’s dismissal of Cottam’s
claims.