McCollin v. J.D.F. Properties

2014 UT App 75
_________________________________________________________
THE UTAH COURT OF APPEALS
JEFF MCCOLLIN,
Plaintiff and Appellant,
v.
J.D.F. PROPERTIES, LLC; DENISE M. FABRIZIO; AND JEFF FABRIZIO,
Defendants and Appellees.
Memorandum Decision
No. 20120783-CA
Filed April 10, 2014
Eighth District Court, Duchesne Department
The Honorable Lyle R. Anderson
No. 100800176
Terence Haynes, Attorney for Appellant
Don M. Torgerson and Samuel P. Chiara,
Attorneys for Appellees
JUDGE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
concurred.
PEARCE, Judge:
¶1 Jeff McCollin filed suit against J.D.F. Properties, LLC;
Denise M. Fabrizio; and Jeff Fabrizio (collectively, J.D.F.),
claiming in part that they damaged his land by altering the flow
of the river that separates the parties’ properties.1 On appeal,
McCollin contends that the district court erred in granting
summary judgment in favor of J.D.F. We affirm.
1. Other plaintiffs were initially named in the suit but are not
party to this appeal.

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¶2 McCollin and J.D.F. own parcels of land on opposing
banks of the Duchesne River. In 2009, J.D.F. obtained a stream
alteration permit from the State of Utah. According to McCollin,
after J.D.F. commenced work, the flow of the river changed and
washed away several feet of McCollin’s land as well as a mature
tree. McCollin filed suit against J.D.F. on August 19, 2010. The
complaint pleaded four ‚claims for relief‛: ‚Declaratory Action
and for Declaratory Relief,‛ ‚Preliminary and Permanent
Injunctive Relief,‛ ‚Unjust Enrichment,‛ and ‚Damage to Real
Property.‛
¶3 The ‚damage to real property‛ claim is the central issue
on appeal. That claim rested on McCollin’s allegation that
‚Defendants’ actions have damaged Plaintiffs’ real
property . . . *and+ Defendants’ actions will continue to damage
Plaintiffs’ real property as the State of Utah refuses to take any
action to force Defendants to bring their stream alteration into
compliance or offer any assistance to Plaintiffs or even allow
Plaintiffs to take any action to repair the damage caused by the
Defendants’ non-compliance with the Stream Alteration Permit.‛
¶4 McCollin proceeded through various stages of pretrial
litigation without explicitly stating a theory of liability on which
to hang his ‚damage to real property‛ claim.2 J.D.F. did not raise
any objection to this omission until April 30, 2012. On that date,
J.D.F. moved for summary judgment on each of McCollin’s then-
remaining claims. With respect to the ‚damage to real property‛
claim, J.D.F. asserted that this was not a legally cognizable cause
of action because damages are an element of a tort rather than a
tort in and of themselves.
¶5 McCollin’s opposition to J.D.F.’s motion did not articulate
whether he was claiming that the damage to his property had
been caused by negligence, trespass, or some other tort. Nor did
it clarify whether McCollin was asserting that J.D.F. was strictly
2. McCollin is represented by new legal counsel on appeal.

McCollin v. J.D.F. Properties
20120783-CA 3 2014 UT App 75
liable for the harm. Indeed, McCollin’s briefing made no attempt
to tie his claim for damages to any cognizable cause of action.
¶6 At the hearing on the motion for summary judgment,
J.D.F. argued again that McCollin’s ‚damage to real property‛
claim was not a stand-alone cause of action. The district court
asked, ‚*If] they did something they should not have
done, . . . *i+sn’t that a cause of action?‛ J.D.F. responded, ‚I
don’t think so. I think that it could be an intentional tort of some
sort. It could [also] be a negligence of some sort, but if we’re
going to defend against that it would be nice to know which
elements it is that plaintiffs seek to prove.‛ After the court
pressed McCollin on this point, he stated, ‚This is a negligence
claim.‛ McCollin then argued that he had ‚provided *the court
with] ample factual background to show that [he had] been
damaged‛ and that, because a genuine issue of material fact
existed on the issue of damages, summary judgment was
inappropriate.
¶7 The district court ruled at the hearing that McCollin
‚never did get around to actually pleading a cause of action.‛ A
subsequent written order stated, ‚At oral argument, Plaintiffs
contend for the first time that they were actually seeking
damages under a negligence theory. But the Court has carefully
reviewed the Complaint and it mentions nothing of duty,
standard of care, or a failure by Defendants to follow the
standard of care. Accordingly, the Court determines that
Plaintiffs have not pleaded the necessary elements for an
actionable claim for negligence.‛ The district court entered
judgment in favor of J.D.F. on all four claims in McCollin’s
complaint.
¶8 McCollin appeals from that order.3 In an appeal from a
summary judgment order, we consider ‚the facts and all
3. McCollin’s opening brief appears to address only the ‚damage
to real property‛ claim. In response to J.D.F.’s argument that he
(continued . . .)

McCollin v. J.D.F. Properties
20120783-CA 4 2014 UT App 75
reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party‛ and review the district
court’s ‚legal conclusions and ultimate grant or denial of
summary judgment for correctness.‛ Orvis v. Johnson, 2008 UT 2,
¶ 6, 177 P.3d 600 (citation and internal quotation marks omitted).
¶9 J.D.F.’s summary judgment motion focused on the
argument that McCollin’s ‚damage to real property‛ claim was
not a stand-alone cause of action and appeared to be ‚an element
of [McCollin’s+ causes of action for declaratory judgment and
unjust enrichment.‛ J.D.F. reasoned that those causes of action
failed ‚because damages are not available on a declaratory
judgment claim‛ and because McCollin did not claim to have
intentionally conferred a benefit on J.D.F. As a result, J.D.F.
asserted, McCollin’s ‚claim for ‘Damage to Real Property’ must
also be dismissed.‛
¶10 J.D.F.’s motion obligated McCollin to demonstrate that he
possessed a claim that could survive summary judgment. If
McCollin believed his claim sounded in negligence, he needed to
argue that his ‚damage to real property‛ claim was actually a
negligence cause of action, articulate the elements of that cause
of action, and demonstrate with record evidence that genuine
issues of material fact existed on each of those elements.
However, McCollin’s opposition did not even reference the
did not appeal the grant of summary judgment on the other
three claims, McCollin dedicates three paragraphs of his reply
brief to an assertion that his opening brief does in fact challenge
their dismissal. To the extent McCollin has appealed summary
judgment on the other causes of action, those challenges are
inadequately briefed. See Utah R. App. P. 24(a)(9) (stating that
briefs must contain reasoned analysis based on relevant legal
authority); see also State v. Thomas, 961 P.2d 299, 305 (Utah 1998)
(noting that appellate courts are not a depository into which the
appellant may dump the burden of research and argument). We
therefore do not address them.

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elements of a negligence cause of action—duty, breach,
causation, and damages. See Williams v. Melby, 699 P.2d 723, 726
(Utah 1985). Nor did it ‚provide an explanation of the grounds
for any dispute‛ about those elements. See Utah R. Civ. P.
7(c)(3)(B).
¶11 Instead, McCollin’s opposition characterized J.D.F.’s
argument as an attack on the court’s jurisdiction and as an
assertion that ‚there is no action for property damage because
the Stream Alteration Permit was ‘validly’ issued.‛ McCollin
then identified several questions of fact that he claimed
precluded summary judgment: whether J.D.F. complied with the
stream alteration permit, whether the district court had
jurisdiction, and whether the stream alterations caused public
and private property damage. Even if these assertions could
have been used to demonstrate genuine issues of material fact
relating to elements of an identifiable cause of action, these
‚facts‛ were not supported by citations to relevant materials
adduced in discovery as rule 7(c)(3)(B) of the Utah Rules of Civil
Procedure requires.
¶12 McCollin was presented with an argument that, despite
being only a month from trial, he had not yet articulated a cause
of action to support his claim for damages. At that point,
McCollin was required either to demonstrate to the court that he
had in fact done so or to seek to remedy the deficiencies of his
complaint. Because the argument arose on summary judgment,
McCollin needed to explain that genuine issues of material fact
existed as to each element of that cause of action. Moreover,
under rule 7(c), McCollin was required to support those facts
with ‚supporting materials, such as affidavits or discovery
materials.‛ Utah R. Civ. P. 7(c)(3)(B). Where McCollin failed to
do so, we cannot conclude that the district court erred in
granting summary judgment. See Kranendonk v. Gregory & Swapp,
PLLC, 2014 UT App 36, ¶ 15 (explaining that a plaintiff facing
summary judgment is entitled to all favorable inferences but
cannot rely on conjecture); see also Gudmundson v. Del Ozone, 2010
UT 33, ¶ 40, 232 P.3d 1059 (despite the liberality of Utah’s notice-

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pleading requirements, pleadings must ‚give fair notice of the
nature and basis of the claim asserted‛ (emphasis added) (citation
and internal quotation marks omitted)).
¶13 McCollin next contends that ‚[e]ven if . . . the trial court
was correct that the Complaint was not sufficiently clear [or] that
relief cannot be granted under [an] alternate, but unplead[ed]
basis, . . . the record supports McCollin’s argument that the
issues were tried by consent.‛ McCollin argues that J.D.F. had
sufficient notice of the unpleaded negligence cause of action and
thus was not ‚‘denied a fair opportunity to meet the change in
theory of recovery.’‛ (Quoting PLC Landscape Constr. v. Piccadilly
Fish ‘N Chips, Inc., 502 P.2d 562, 563 (Utah 1972)). In essence,
McCollin argues that the court should have determined that the
parties tried his negligence claim by implied consent pursuant to
Utah Rule of Civil Procedure 15(b). We review for correctness a
district court’s determination that rule 15(b) is inapplicable.
Fisher v. Davidhizar, 2011 UT App 270, ¶ 7, 263 P.3d 440.
¶14 ‚When issues not raised by the pleading are tried by
express or implied consent of the parties, they shall be treated in
all respects as if they had been raised in the pleadings.‛ Utah R.
Civ. P. 15(b). ‚Such amendments of the pleadings as may be
necessary to cause them to conform to the evidence and to raise
these issues may be made upon motion of any party at any time,
even after judgment; but failure so to amend does not affect the
result of the trial of these issues.‛ Id.
¶15 McCollin claims that the district court erred in finding
that rule 15(b) requires that claims be ‚tried‛—that is, be
addressed at a trial—before pleadings can be amended to
conform to the evidence. McCollin is correct that the district
court’s reading of the rule was unduly narrow. We have
previously noted ‚that rule 15(b) is applicable to a case . . . where
claims were litigated by motions for summary judgment rather
than at trial.‛ Fisher, 2011 UT App 270, ¶ 10 (citing Ward v.
Intermountain Farmers Ass’n, 907 P.2d 264, 267 n.5 (Utah 1995)).

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¶16 In Fisher, we determined that the plaintiff had ‚clear
notice of *the defendant’s+ specific fraud allegations‛ because the
parties had ‚argued and discussed the fraud claims before the
trial court.‛ Id. ¶¶ 11–12. Indeed, the fraud claims had been
pleaded ‚specifically enough for *the plaintiff+ to address the
claims in its *prior+ summary judgment motions.‛ Id. ¶ 11.
Moreover, the defendant’s summary judgment opposition
memoranda had raised specific facts that ‚would have satisfied
any rule 9 particularity requirement.‛ Id. ¶ 12 n.9. Accordingly,
we held that the trial court erred by finding that the fraud claims
had not been tried by consent pursuant to rule 15(b). Id. ¶ 12.
¶17 The difference between this matter and Fisher is readily
apparent. In Fisher, the plaintiff ‚did not object that *defendant’s+
factual allegations of fraud in his summary judgment motion
had not been properly pleaded.‛ Id. ¶ 9 n.4. Here, J.D.F.’s motion
for summary judgment expressly challenged the ‚damage to real
property‛ claim, asserting that McCollin had failed to tie it to
any recognizable cause of action. In response, McCollin did not
argue that his ‚damage to real property‛ claim was in fact a
negligence cause of action. Indeed, McCollin’s opposition to that
motion never even used the word ‚negligence.‛ On this record,
we cannot conclude that the parties consented to try the issue of
negligence in the summary judgment motions.
¶18 McCollin nonetheless argues that the parties tried by
consent his ‚damage to real property‛ claim as a negligence
cause of action. He notes that, at a prior hearing, J.D.F. posited
that the stream alteration permit was likely not ‚an absolute
defense‛ and that, in J.D.F.’s opinion, the district court would
eventually ‚have to see if there was negligence.‛ This stray
reference was insufficient to raise the issue for purposes of rule
15(b). See Ward, 907 P.2d at 267 n.5 (‚The rule does not permit
amendments to include issues which are only inferentially
suggested by incidental evidence in the record.‛).
¶19 McCollin also argues that the parties tried the issue of
negligence by consent because the district court had previously

McCollin v. J.D.F. Properties
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ruled, as part of a temporary restraining order prepared by
McCollin, that the court would ‚adjudicate at trial whether
Defendants’ alterations caused the water to go somewhere else
and damage Plaintiffs’ property and Defendants’ liability, if
any[,] for the property damage.‛ That ruling does not mention
negligence, nor does it support a conclusion that the parties had
consented to try the matter as a negligence claim.
¶20 We therefore conclude that the parties did not try a
negligence claim by consent.
¶21 McCollin further contends that the district court abused
its discretion by granting a motion to strike a letter from the
United States Army Corps of Engineers. He asserts that the letter
is relevant to the issue of whether J.D.F. complied with the terms
of the stream alteration permit. J.D.F. responds that the district
court ‚properly struck the filing because the documents are
inadmissible hearsay and were not authenticated‛ under the
Utah Rules of Evidence.
¶22 However, the district court struck the letter because it had
been improperly filed and thus never reached the merits of the
hearsay question. McCollin had submitted the letter
independently from, and unattached to, any pleading or
affidavit. Instead, he simply filed the document with the court
under the caption ‚Army Corp of Engineer GRAMA
Documents.‛ When presented with the document at the
summary judgment hearing, the district court asked McCollin’s
counsel, ‚So you just sent it in like ‘for your information I’m
sending you this, your Honor’?‛ After counsel replied that he
had, the district court stated, ‚Okay, I’m striking it
then. . . . [Y]ou don’t just fill the Court file with stuff that might
be useful by sending in files, ‘Your Honor, I’m filing this. I might
want to refer to it later.’‛ The district court then explained, ‚If
you want to use [a document] with regard to a motion for
summary judgment, you file [it] with your response to the
motion for summary judgment.‛ The decision to strike an
improperly filed document was well within the discretion

McCollin v. J.D.F. Properties
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afforded to a district court to manage the cases before it. See
Hartford Leasing Corp. v. State, 888 P.2d 694, 702 (Utah Ct. App.
1994) (holding that a trial court could properly refuse to ‚accept
a supplemental memorandum that was submitted without prior
invitation and outside the bounds of duly promulgated
procedural rules‛).
¶23 Affirmed.