Crossgrove v. Stan Checkets Properties, LLC.

2015 UT App 35
_________________________________________________________

THE UTAH COURT OF APPEALS

MARCIA J. CROSSGROVE AND GREGORY P. CROSSGROVE,
Plaintiffs and Appellants,
v.
STAN CHECKETTS PROPERTIES, LLC,
Defendant and Appellee.

Memorandum Decision
No. 20130814-CA
Filed February 20, 2015

First District Court, Logan Department
The Honorable Thomas Willmore
No. 110102427

W. Scott Lythgoe, Attorney for Appellants

Miles P. Jensen, Jeremy S. Raymond, and Seth J.
Tait, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR.
and STEPHEN L. ROTH concurred.

CHRISTIANSEN, Judge:

¶1 Marcia J. Crossgrove was injured when she slipped and fell
in an icy parking lot while retrieving office mail for S&S
Worldwide, Inc., her employer. S&S leased its building and the use
of the adjacent parking lot from Stan Checketts Properties, LLC
(Checketts). Mrs. Crossgrove and her husband filed suit against
Checketts for negligence and loss of consortium, alleging that
Checketts had a duty to maintain the parking lot and had failed to
reasonably do so. Checketts moved for summary judgment,
arguing that it owed no duty to Mrs. Crossgrove, because S&S, not
Checketts, was in possession of the parking lot at the time of the
Crossgrove v. Stan Checketts Properties, LLC

accident. The district court agreed with Checketts and granted its
motion for summary judgment. The Crossgroves appeal.

¶2 A district court may grant summary judgment only when
“there is no genuine issue as to any material fact” and “the moving
party is entitled to a judgment as a matter of law.” Utah R. Civ. P
56(c). “We review the trial court’s summary judgment for
correctness, considering only whether the trial court correctly
applied the law and correctly concluded that no disputed issues of
material fact existed.” Hermansen v. Tasulis, 2002 UT 52, ¶ 10, 48
P.3d 235. In reviewing a grant of summary judgment, “we view the
facts and all reasonable inferences drawn therefrom in the light
most favorable to the non-moving party.” Id. (citation and internal
quotation marks omitted).

¶3 To prevail on a negligence claim, a plaintiff must establish
“(1) that the defendant owed the plaintiff a duty, (2) that the
defendant breached that duty, (3) that the breach of duty was the
proximate cause of the plaintiff’s injury, and (4) that the plaintiff in
fact suffered injuries or damages.” Torrie v. Weber County, 2013 UT
48, ¶ 9, 309 P.3d 216 (citation and internal quotation marks
omitted). The district court must decide as a matter of law whether
a duty exists. Id. If the district court determines that the defendant
owed no duty to the plaintiff, “there can be no negligence as a
matter of law, and summary judgment is appropriate.” Tallman v.
City of Hurricane, 1999 UT 55, ¶ 5, 985 P.2d 892 (citation and
internal quotation marks omitted).

¶4 Here, the district court concluded that Checketts owed no
duty to Mrs. Crossgrove, because S&S was in possession of the
parking lot at the time of the accident and the icy condition that led
to her injuries did not exist at the time Checketts transferred
possession to S&S. “Our supreme court has held that ‘it is the
tenant who is liable for any dangerous condition on the premises
which he creates or permits to come into existence after he has
taken possession.’” Dahlstrom v. Nass, 2005 UT App 433, ¶ 10, 126
P.3d 773 (emphases omitted) (quoting Stephenson v. Warner, 581

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Crossgrove v. Stan Checketts Properties, LLC

P.2d 567, 568–69 (Utah 1978)). S&S entered into a lease agreement
with Checketts on January 1, 2007. The relevant portion of that
lease agreement provides, “[Checketts] leases to [S&S], and [S&S]
leases from [Checketts,] buildings and space located at 350 West
2500 North, Logan, Utah, together with the right to use parking
spaces in the adjacent parking lot.” The lease also provides that
“[S&S] shall provide maintenance and upkeep of parking and
landscape areas adjacent to the Premises and utilized by [S&S].”
Mrs. Crossgrove was injured in the adjacent parking lot on
December 31, 2007. The court determined that S&S had taken
possession of the parking lot when it executed the lease on January
1, 2007, nearly a year before Mrs. Crossgrove’s injury, and that the
dangerous condition did not exist at the time S&S took possession.1

¶5 The Crossgroves argue that the district court’s
determination that S&S was in possession of the parking lot is
erroneous. However, we conclude that this argument is
inadequately briefed, and the Crossgroves have therefore failed to
meet their burden to demonstrate error in the district court’s
ruling.

¶6 An appellant’s brief is inadequate “if it merely contains bald
citations to authority [without] development of that authority and
reasoned analysis based on that authority.” Allen v. Friel, 2008 UT
56, ¶ 9, 194 P.3d 903 (alteration in original) (citation and internal
quotation marks omitted). We will not assume the appellant’s
burden of argument and research where the contentions are
“asserted without the support of legal reasoning or authority.”
Angel Investors, LLC v. Garrity, 2009 UT 40, ¶ 36, 216 P.3d 944. Thus,
an inadequately briefed argument is insufficient to discharge an
appellant’s burden of persuasion on appeal. Giles v. Mineral Res.
Int’l, Inc., 2014 UT App 259, ¶¶ 6, 12, 338 P.3d 825.

1. The district court took judicial notice that “any snow existing on
January 1, 2007, would not still be present a year later.” The
Crossgroves do not challenge this aspect of the district court’s
ruling.

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Crossgrove v. Stan Checketts Properties, LLC

¶7 Because the lease agreement assigns to S&S “the right to use
parking spaces in the adjacent parking lot,” the Crossgroves assert
that “[c]learly, the tenant is not specifically leasing the parking lot,
and as the property owner[,] Checketts retained control of the
parking lot.” Thus, the Crossgroves appear to argue that the lease
agreement’s assignment to S&S of the right to use the parking lot
and the responsibility for maintenance thereof are legally
inadequate to constitute possession by S&S. However, the
Crossgroves cite no legal authority for this proposition and, indeed,
conduct no legal analysis of what constitutes possession for
purposes of allocating duties between landlords and tenants. They
have therefore failed to demonstrate that the district court’s
conclusion is erroneous.

¶8 The Crossgroves cursorily attempt to distinguish this case
from Dahlstrom v. Nass, 2005 UT App 433, 126 P.3d 773, and
Stephenson v. Warner, 581 P.2d 567 (Utah 1978). They argue that in
Dahlstrom and Stephenson, “the landlords had leased and
transferred possession of the entire premises to the tenant,” whereas
here, “possession of the entire property was not transferred to the
tenant.” However, the Crossgroves do not analyze Dahlstrom or
Stephenson to demonstrate that this distinction was relevant to the
holdings of those cases or develop their argument beyond their
bare assertion that Checketts’s retention of some portion of the
property renders the holdings of those cases “not applicable to the
present case.”

¶9 The Crossgroves have failed to adequately brief their
argument that Checketts, not S&S, was in possession of the parking
lot where Mrs. Crossgrove was injured. They have therefore not
met their burden to demonstrate error in the district court’s ruling
that Checketts owed no duty to Mrs. Crossgrove.2

2. Because we conclude that the Crossgroves have failed to
demonstrate error in the district court’s determination that
Checketts owed no duty to Mrs. Crossgrove, we need not address
(continued...)

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Crossgrove v. Stan Checketts Properties, LLC

¶10 The Crossgroves next argue that the icy condition that
caused Mrs. Crossgrove’s fall “was not a temporary, dangerous
condition that arose after the landlord had transferred possession
of the premises to the tenant,” because Checketts “was aware of the
risks to employees and visitors created by ice and snow.” The
Crossgroves base this argument on deposition testimony from
Checketts’s owner acknowledging that ice and snow would
accumulate in the parking lot at times during the winter months.
This court rejected a nearly identical argument in Dahlstrom, where
the plaintiff argued that “melting snow and ice occurred every
winter and had occurred before [the landlord] transferred
possession.” 2005 UT App 433, ¶ 13. We concluded in Dahlstrom
that “seasonal problems with snow and ice” are not permanent
dangerous conditions for purposes of allocating duties between
landlords and tenants. Id. For the same reasons, we reject the
Crossgroves’ argument that seasonal accumulation of ice and snow
renders the presence of ice on the parking lot here a permanent
dangerous condition that arose before S&S took possession of the
parking lot in January 2007.

¶11 Last, the Crossgroves argue that summary judgment was
improper because “[t]he District Court erred when it found that
there was no genuine issue of material fact as to [Checketts’s]
control over the parking lot and maintenance.” Yet “the mere
existence of genuine issues of fact . . . does not preclude the entry
of summary judgment if those issues are immaterial to the
resolution of the case.” Doyle v. Lehi City, 2012 UT App 342, ¶ 19,
291 P.3d 853 (citation and internal quotation marks omitted).

¶12 The Crossgroves exhaustively detail the facts they believe
demonstrate that Checketts “has continued to exercise and
maintain control of [the property], and specifically the parking lot,
even after entering into leases with its tenants.” However, as

2. (...continued)
their challenge to the district court’s alternative ruling that
Checketts delegated to S&S its duty to maintain the parking lot.

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Crossgrove v. Stan Checketts Properties, LLC

discussed above, the district court based its ruling that Checketts
owed no duty to Mrs. Crossgrove on its determination that S&S,
rather than Checketts, was in possession of the parking lot. The
Crossgroves do not explain how Checketts’s purported control over
the parking lot is material to the district court’s determination that
S&S was in possession of the parking lot. Neither do they cite any
legal authority establishing that control is material to the question
of possession. Indeed, the relevant authority speaks exclusively in
terms of possession and makes no mention of control. See
Stephenson, 581 P.2d at 568–69; Dahlstrom, 2005 UT App 433,
¶¶ 9–13. Accordingly, even if we were to agree with the
Crossgroves that the cited facts established a dispute as to whether
Checketts exercised control over the parking lot, the Crossgroves
have not demonstrated that the issue was material to the district
court’s determination that S&S was in possession of the parking lot
and that Checketts therefore owed no duty to Mrs. Crossgrove.

¶13 The Crossgroves have failed to demonstrate that the district
court erred in concluding that S&S was in possession of the parking
lot where Mrs. Crossgrove was injured and that Checketts owed no
duty to Mrs. Crossgrove. We therefore affirm the district court’s
grant of summary judgment to Checketts.3

3. Mr. Crossgrove’s loss-of-consortium claim is derivative of Mrs.
Crossgrove’s negligence claim and cannot be maintained if Mrs.
Crossgrove has no cause of action for negligence. Utah Code Ann.
§ 30-2-11(5) (LexisNexis 2007). Because we affirm the district court’s
grant of summary judgment against Mrs. Crossgrove on her
negligence claim, we necessarily affirm the district court’s grant of
summary judgment against Mr. Crossgrove on his derivative loss-
of-consortium claim.

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