Linda Rand v. KOA Campgrounds

¶1 Plaintiff Linda Rand appeals the trial court's order

dismissing her claims against Defendants KOA Campgrounds,

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by

special assignment as authorized by law. See generally Utah R. Jud.

Admin. 11-201(6).

Rand v. KOA

Victoria Orme, Doug Robinson, Don Boothroyd, Marlene

Boothroyd, J-J Bakd LC (collectively, KOA), and Eldon Hurst. We

affirm.

¶2 In September 2001, Rand moved into a mobile home park

owned by KOA. Rand's rent was due on a monthly basis, one

month in advance, and Rand paid rent faithfully for several years.

However, in 2005, Rand did not make her rent payment that was

due April 15. After KOA served Rand with a notice to pay or quit,

payment for the month running April 15 to May 16 was eventually

made on May 24.

¶3 On May 25, 2005, Rand fell down exterior stairs of a

restaurant that Eldon Hurst and his wife operated within the

mobile home park. According to Rand, her fall resulted from Hurst

bumping into her with a garbage can. Hurst, however, testified that

he was not present when Rand fell. Rand sustained injuries from

her fall and was taken to the hospital. Although Rand was

discharged later that day, she returned to the hospital a few days

later and had surgery on her ankle. Rand was transferred to a care

center after her surgery, where she stayed for about eighteen

months.

¶4 On July 14, 2005, while Rand was in the care center, KOA

moved her mobile home to a fenced storage area within the park.

Although Rand at one point requested that KOA continue to store

the mobile home until rent and storage fees issues were resolved,

KOA eventually sent Rand a letter on April 25, 2006, stating that it

considered Rand's property abandoned and that she needed to pay

the balance due within thirty days. Rand replied that her mobile

home was not abandoned, but she made no further payments on

her past due balance. Rand's mobile home was towed from KOA's

storage area to another company's lot on June 20, 2006. Rand was

informed that she could regain possession of the mobile home by

paying a $110 towing fee, but she failed to take any steps to redeem

her property at the new location. The parties are uncertain as to

what ultimately happened to the mobile home.

20130873-CA 2 2014 UT App 246

Rand v. KOA

¶5 Rand subsequently filed this action, asserting four causes of

action: negligence-personal injury, negligent interference with

personal property, conversion, and trespass to chattels, and seeking

punitive damages. After a bench trial, the trial court ultimately

found in favor of Defendants on all theories. Rand appeals,

primarily contesting various fact findings made by the trial court.

"We will reverse a trial court's findings of fact only when such

findings are clearly erroneous.” Bonnie & Hyde, Inc. v. Lynch, 2013

UT App 153, ¶ 13, 305 P.3d 196.

I. Personal Injury Negligence Claim

¶6 Rand contests the trial court's decision on her negligence

claim arising from her fall down the restaurant stairs.

Generally, [t]o establish a claim of negligence, the

plaintiff must establish four essential elements: (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.

Warenski v. Advanced RV Supply, 2011 UT App 197, ¶ 6, 257 P.3d

1096 (citation and internal quotation marks omitted). The plaintiff

in a negligence action bears the burden of proving each element. Id.

¶7 As to Rand's assertion that Hurst caused her fall by

bumping into her or dropping a garbage can on her, the trial court

determined that Rand's evidence was insufficient. Specifically, the

trial court found that Hurst's testimony that he was not present

when Rand fell down the stairs was credible, and therefore

concluded that he did not cause her fall or the resulting injuries.

Rand challenges this finding and legal conclusion by arguing that

her doctors told her that her injuries could have only happened to

a person her size if something very heavy fell on her. She therefore

20130873-CA 3 2014 UT App 246

Rand v. KOA

argues that the physical damage she sustained proved that Hurst

knocked her down the stairs.

¶8 However, Rand did not call as witnesses anyone who

treated her or who could provide expert testimony related to her

injuries and their possible causes. Further, many of the injuries that

she testified about were not mentioned in the medical records

submitted by Rand as evidence of her injuries. Because Rand failed

to present evidence supporting her assertion that her injuries

indicate that something was dropped on her, the trial court's

finding of fact on this matter is not clearly erroneous.

¶9 As to Rand's contention that the stairs were unsafe,

A possessor of land is subject to liability for physical

harm caused to his invitees by a condition on the

land if, but only if, he (a) knows or by the exercise of

reasonable care would discover the condition, and

should realize that it involves an unreasonable risk of

harm to such invitees, and (b) should expect that they

will not discover or realize the danger, or will fail to

protect themselves against it, and (c) fails to exercise

reasonable care to protect them against the danger.

Hale v. Beckstead, 2005 UT 24, ¶ 8, 116 P.3d 263 (emphasis omitted)

(quoting Restatement (Second) of Torts § 343 (1965)). The trial court

found that the stairs did not involve an unreasonable risk of harm

to invitees. After hearing testimony and considering photographs

of the stairs submitted by Rand, the trial court found, "The steps

are not broken, and the carpet is not loose. Handrails on either side

of the door are positioned slightly higher than the handle on the

door leading into the café.” Rand interprets the photographs

differently, but we do not see that the trial court's interpretation is

clearly erroneous.

¶10 Rand also argues that the lack of building permits,

inspections, and licenses among the submitted evidence show that

20130873-CA 4 2014 UT App 246

Rand v. KOA

the premises were not safe. Indeed, Rand asserts that "[a] building

inspection is the only acceptable proof of a safe stairway in a public

building.” However, Rand provides no legal support for this broad

assertion, nor does such an assertion recognize that Rand, not

Defendants, bears the burden of proof. We therefore decline to

disturb the trial court's findings and resulting legal conclusions as

to negligence.2

II. Conversion

¶11 Rand next contests the trial court's determination on her

conversion claim.

To prove conversion, a party must establish "an act

of willful interference with property, done without

lawful justification, by which the person entitled to

property is deprived of its use and possession,” and

that the party "is entitled to immediate possession of

the property at the time of the alleged conversion.”

Jones & Trevor Mktg., Inc. v. Lowry, 2010 UT App 113, ¶ 15 n.13, 233

P.3d 538 (quoting Bennett v. Huish, 2007 UT App 19, ¶ 31, 155 P.3d

917), aff'd, 2012 UT 39, 284 P.3d 630. The trial court determined that

conversion was not shown because any interference by KOA with

Rand's property was lawfully justified.

¶12 The trial court determined that KOA was lawfully justified

in interfering with Rand's property under two alternative

abandonment provisions of the Utah Code. The trial court found

proof of abandonment was established by the evidence presented

under both section 57-16-13 of the Mobile Home Park Residency

Act and section 78B-6-815 of the Utah Code.

2. In light of our decision affirming the trial court's dismissal of

Rand's negligence claims, we need not reach Rand's arguments

regarding whether a landlord–tenant relationship existed between

KOA and Hurst and which party would be liable for her fall.

20130873-CA 5 2014 UT App 246

Rand v. KOA

¶13 The applicable provision in the Mobile Home Park

Residency Act states,

Abandonment of a mobile home space and a mobile

home within a mobile home park is presumed

[when] . . . (1)(a) the resident or occupant of the

mobile home has not notified the park that the

resident or occupant will be absent from the mobile

home space or mobile home, and the resident or

occupant fails to pay rent within 45 days after the

due date; and (b) the mobile home park owner has

no reasonable evidence, other than the presence of

the resident's or occupant's personal property, that

the resident or occupant is continuing to occupy the

mobile home space and the mobile home . . . .

Utah Code Ann. § 57-16-13 (LexisNexis 2012).3 Similarly, section

78B-6-815 provides,

”Abandonment” is presumed [when] . . . (1) [t]he

tenant has not notified the owner that he or she will

be absent from the premises, and the tenant fails to

pay rent within 15 days after the due date, and there

is no reasonable evidence other than the presence of

the tenant's personal property that the tenant is

occupying the premises.

Id. § 78B-6-815.

¶14 The trial court determined that abandonment had occurred

because even if persons affiliated with KOA knew where she was,

Rand "did not notify [them] that she would be absent, neither

indicating her long term plans nor when to expect her return, and

she failed to pay rent within 45 days after the due date.”

3. The applicable statutory provisions have not been substantively

amended, and we therefore cite the current version of the Utah

Code for the reader's convenience.

20130873-CA 6 2014 UT App 246

Rand v. KOA

¶15 Rand challenges the findings underlying the trial court's

abandonment decision, arguing that her rent was prepaid at the

time her mobile home was moved and that she was in

communication with KOA during her care center stay. We see no

error in the trial court's findings. Although Rand argues that the

rent payment in May was to pay for her home until June 15, we

cannot say that the trial court, in analyzing KOA's ledger, clearly

erred in finding that this late payment applied to the prior month

for which payment had not been made. The trial court also

determined that Rand's last payment, which was in an amount less

than a full month's rent, would only have extended the paid-for

period by "a few days.”

¶16 Additionally, Rand does not point to any evidence that

would convince us that the trial court's determination that she had

not paid rent for forty-five days before her home was moved is

clearly erroneous. As to notification, the trial court acknowledged

that although there was some communication between KOA and

Rand while she was staying at the care center, this communication

did not notify KOA as to what Rand's long term plans were and

when she planned to return or pay her past due account. Rand

points us to nothing in the record to the contrary. Therefore, there

is no clear error in the trial court's determination on this issue.4

4. Rand also appeals the trial court's dismissals of her negligent

interference with personal property and trespass to chattels claims.

However, she does not address the reasoning of the trial court on

these matters, that is, that negligent interference with personal

property is not a recognized cause of action in Utah and that

trespass to chattels requires some sort of property damage. We

therefore do not consider her arguments on these claims. See

Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153,

¶ 8, 257 P.3d 441 (concluding that no error was demonstrated

because the appellant failed to address the rationale of the trial

court). Furthermore, because we do not disturb the trial court's

decision on the first four counts, there is no need to address Rand's

argument regarding punitive damages.

20130873-CA 7 2014 UT App 246

Rand v. KOA

¶17 Affirmed.5¶1 Plaintiff Linda Rand appeals the trial court's order

dismissing her claims against Defendants KOA Campgrounds,

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by

special assignment as authorized by law. See generally Utah R. Jud.

Admin. 11-201(6).

Rand v. KOA

Victoria Orme, Doug Robinson, Don Boothroyd, Marlene

Boothroyd, J-J Bakd LC (collectively, KOA), and Eldon Hurst. We

affirm.

¶2 In September 2001, Rand moved into a mobile home park

owned by KOA. Rand's rent was due on a monthly basis, one

month in advance, and Rand paid rent faithfully for several years.

However, in 2005, Rand did not make her rent payment that was

due April 15. After KOA served Rand with a notice to pay or quit,

payment for the month running April 15 to May 16 was eventually

made on May 24.

¶3 On May 25, 2005, Rand fell down exterior stairs of a

restaurant that Eldon Hurst and his wife operated within the

mobile home park. According to Rand, her fall resulted from Hurst

bumping into her with a garbage can. Hurst, however, testified that

he was not present when Rand fell. Rand sustained injuries from

her fall and was taken to the hospital. Although Rand was

discharged later that day, she returned to the hospital a few days

later and had surgery on her ankle. Rand was transferred to a care

center after her surgery, where she stayed for about eighteen

months.

¶4 On July 14, 2005, while Rand was in the care center, KOA

moved her mobile home to a fenced storage area within the park.

Although Rand at one point requested that KOA continue to store

the mobile home until rent and storage fees issues were resolved,

KOA eventually sent Rand a letter on April 25, 2006, stating that it

considered Rand's property abandoned and that she needed to pay

the balance due within thirty days. Rand replied that her mobile

home was not abandoned, but she made no further payments on

her past due balance. Rand's mobile home was towed from KOA's

storage area to another company's lot on June 20, 2006. Rand was

informed that she could regain possession of the mobile home by

paying a $110 towing fee, but she failed to take any steps to redeem

her property at the new location. The parties are uncertain as to

what ultimately happened to the mobile home.

20130873-CA 2 2014 UT App 246

Rand v. KOA

¶5 Rand subsequently filed this action, asserting four causes of

action: negligence-personal injury, negligent interference with

personal property, conversion, and trespass to chattels, and seeking

punitive damages. After a bench trial, the trial court ultimately

found in favor of Defendants on all theories. Rand appeals,

primarily contesting various fact findings made by the trial court.

"We will reverse a trial court's findings of fact only when such

findings are clearly erroneous.” Bonnie & Hyde, Inc. v. Lynch, 2013

UT App 153, ¶ 13, 305 P.3d 196.

I. Personal Injury Negligence Claim

¶6 Rand contests the trial court's decision on her negligence

claim arising from her fall down the restaurant stairs.

Generally, [t]o establish a claim of negligence, the

plaintiff must establish four essential elements: (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.

Warenski v. Advanced RV Supply, 2011 UT App 197, ¶ 6, 257 P.3d

1096 (citation and internal quotation marks omitted). The plaintiff

in a negligence action bears the burden of proving each element. Id.

¶7 As to Rand's assertion that Hurst caused her fall by

bumping into her or dropping a garbage can on her, the trial court

determined that Rand's evidence was insufficient. Specifically, the

trial court found that Hurst's testimony that he was not present

when Rand fell down the stairs was credible, and therefore

concluded that he did not cause her fall or the resulting injuries.

Rand challenges this finding and legal conclusion by arguing that

her doctors told her that her injuries could have only happened to

a person her size if something very heavy fell on her. She therefore

20130873-CA 3 2014 UT App 246

Rand v. KOA

argues that the physical damage she sustained proved that Hurst

knocked her down the stairs.

¶8 However, Rand did not call as witnesses anyone who

treated her or who could provide expert testimony related to her

injuries and their possible causes. Further, many of the injuries that

she testified about were not mentioned in the medical records

submitted by Rand as evidence of her injuries. Because Rand failed

to present evidence supporting her assertion that her injuries

indicate that something was dropped on her, the trial court's

finding of fact on this matter is not clearly erroneous.

¶9 As to Rand's contention that the stairs were unsafe,

A possessor of land is subject to liability for physical

harm caused to his invitees by a condition on the

land if, but only if, he (a) knows or by the exercise of

reasonable care would discover the condition, and

should realize that it involves an unreasonable risk of

harm to such invitees, and (b) should expect that they

will not discover or realize the danger, or will fail to

protect themselves against it, and (c) fails to exercise

reasonable care to protect them against the danger.

Hale v. Beckstead, 2005 UT 24, ¶ 8, 116 P.3d 263 (emphasis omitted)

(quoting Restatement (Second) of Torts § 343 (1965)). The trial court

found that the stairs did not involve an unreasonable risk of harm

to invitees. After hearing testimony and considering photographs

of the stairs submitted by Rand, the trial court found, "The steps

are not broken, and the carpet is not loose. Handrails on either side

of the door are positioned slightly higher than the handle on the

door leading into the café.” Rand interprets the photographs

differently, but we do not see that the trial court's interpretation is

clearly erroneous.

¶10 Rand also argues that the lack of building permits,

inspections, and licenses among the submitted evidence show that

20130873-CA 4 2014 UT App 246

Rand v. KOA

the premises were not safe. Indeed, Rand asserts that "[a] building

inspection is the only acceptable proof of a safe stairway in a public

building.” However, Rand provides no legal support for this broad

assertion, nor does such an assertion recognize that Rand, not

Defendants, bears the burden of proof. We therefore decline to

disturb the trial court's findings and resulting legal conclusions as

to negligence.2

II. Conversion

¶11 Rand next contests the trial court's determination on her

conversion claim.

To prove conversion, a party must establish "an act

of willful interference with property, done without

lawful justification, by which the person entitled to

property is deprived of its use and possession,” and

that the party "is entitled to immediate possession of

the property at the time of the alleged conversion.”

Jones & Trevor Mktg., Inc. v. Lowry, 2010 UT App 113, ¶ 15 n.13, 233

P.3d 538 (quoting Bennett v. Huish, 2007 UT App 19, ¶ 31, 155 P.3d

917), aff'd, 2012 UT 39, 284 P.3d 630. The trial court determined that

conversion was not shown because any interference by KOA with

Rand's property was lawfully justified.

¶12 The trial court determined that KOA was lawfully justified

in interfering with Rand's property under two alternative

abandonment provisions of the Utah Code. The trial court found

proof of abandonment was established by the evidence presented

under both section 57-16-13 of the Mobile Home Park Residency

Act and section 78B-6-815 of the Utah Code.

2. In light of our decision affirming the trial court's dismissal of

Rand's negligence claims, we need not reach Rand's arguments

regarding whether a landlord–tenant relationship existed between

KOA and Hurst and which party would be liable for her fall.

20130873-CA 5 2014 UT App 246

Rand v. KOA

¶13 The applicable provision in the Mobile Home Park

Residency Act states,

Abandonment of a mobile home space and a mobile

home within a mobile home park is presumed

[when] . . . (1)(a) the resident or occupant of the

mobile home has not notified the park that the

resident or occupant will be absent from the mobile

home space or mobile home, and the resident or

occupant fails to pay rent within 45 days after the

due date; and (b) the mobile home park owner has

no reasonable evidence, other than the presence of

the resident's or occupant's personal property, that

the resident or occupant is continuing to occupy the

mobile home space and the mobile home . . . .

Utah Code Ann. § 57-16-13 (LexisNexis 2012).3 Similarly, section

78B-6-815 provides,

”Abandonment” is presumed [when] . . . (1) [t]he

tenant has not notified the owner that he or she will

be absent from the premises, and the tenant fails to

pay rent within 15 days after the due date, and there

is no reasonable evidence other than the presence of

the tenant's personal property that the tenant is

occupying the premises.

Id. § 78B-6-815.

¶14 The trial court determined that abandonment had occurred

because even if persons affiliated with KOA knew where she was,

Rand "did not notify [them] that she would be absent, neither

indicating her long term plans nor when to expect her return, and

she failed to pay rent within 45 days after the due date.”

3. The applicable statutory provisions have not been substantively

amended, and we therefore cite the current version of the Utah

Code for the reader's convenience.

20130873-CA 6 2014 UT App 246

Rand v. KOA

¶15 Rand challenges the findings underlying the trial court's

abandonment decision, arguing that her rent was prepaid at the

time her mobile home was moved and that she was in

communication with KOA during her care center stay. We see no

error in the trial court's findings. Although Rand argues that the

rent payment in May was to pay for her home until June 15, we

cannot say that the trial court, in analyzing KOA's ledger, clearly

erred in finding that this late payment applied to the prior month

for which payment had not been made. The trial court also

determined that Rand's last payment, which was in an amount less

than a full month's rent, would only have extended the paid-for

period by "a few days.”

¶16 Additionally, Rand does not point to any evidence that

would convince us that the trial court's determination that she had

not paid rent for forty-five days before her home was moved is

clearly erroneous. As to notification, the trial court acknowledged

that although there was some communication between KOA and

Rand while she was staying at the care center, this communication

did not notify KOA as to what Rand's long term plans were and

when she planned to return or pay her past due account. Rand

points us to nothing in the record to the contrary. Therefore, there

is no clear error in the trial court's determination on this issue.4

4. Rand also appeals the trial court's dismissals of her negligent

interference with personal property and trespass to chattels claims.

However, she does not address the reasoning of the trial court on

these matters, that is, that negligent interference with personal

property is not a recognized cause of action in Utah and that

trespass to chattels requires some sort of property damage. We

therefore do not consider her arguments on these claims. See

Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153,

¶ 8, 257 P.3d 441 (concluding that no error was demonstrated

because the appellant failed to address the rationale of the trial

court). Furthermore, because we do not disturb the trial court's

decision on the first four counts, there is no need to address Rand's

argument regarding punitive damages.

20130873-CA 7 2014 UT App 246

Rand v. KOA

¶17 Affirmed.5

5. Rand makes several other claims of error that we need not reach

because they would have had no impact on the trial court's

decision. See Utah R. Civ. P. 61 ("The court at every stage of the

proceeding must disregard any error or defect in the proceeding

which does not affect the substantial rights of the parties.”). For

example, Rand argues that a letter included by the defense was

incomplete. However, Rand submitted a copy of the letter in its

entirety and the trial court had the entire letter before it when

making its determination. Also, any errors in the trial transcript

would not have impacted the trial court's decision, as it heard the

testimony firsthand and did not rely on the transcript for its

decision.

Rand also makes assertions that certain representations

made at trial were untrue. She provides no evidence other than her

own contrary opinion to contest those representations. Thus, we do

not consider these arguments on appeal. See Lunt v. Lance, 2008 UT

App 192, ¶ 19, 186 P.3d 978 ("[W]e may not substitute our

judgment for that of the trial court as trial courts are in a better

position to weigh conflicting evidence and evaluate the credibility

of witness testimony.” (citing Utah R. Civ. P. 52(a))). Likewise, we

do not address claims and issues argued on appeal that were not

raised before the trial court. See 438 Main St. v. Easy Heat, Inc., 2004

UT 72, ¶ 51, 99 P.3d 801 ("[I]n order to preserve an issue for

appeal[,] the issue must be presented to the trial court in such a

way that the trial court has an opportunity to rule on that issue.”

(alterations in original) (citation and internal quotation marks

omitted)). These include Rand's arguments regarding intentional

infliction of emotional distress and her suggestion that KOA had a

duty to call an ambulance after her fall.

20130873-CA 8 2014 UT App 246

5. Rand makes several other claims of error that we need not reach

because they would have had no impact on the trial court's

decision. See Utah R. Civ. P. 61 ("The court at every stage of the

proceeding must disregard any error or defect in the proceeding

which does not affect the substantial rights of the parties.”). For

example, Rand argues that a letter included by the defense was

incomplete. However, Rand submitted a copy of the letter in its

entirety and the trial court had the entire letter before it when

making its determination. Also, any errors in the trial transcript

would not have impacted the trial court's decision, as it heard the

testimony firsthand and did not rely on the transcript for its

decision.

Rand also makes assertions that certain representations

made at trial were untrue. She provides no evidence other than her

own contrary opinion to contest those representations. Thus, we do

not consider these arguments on appeal. See Lunt v. Lance, 2008 UT

App 192, ¶ 19, 186 P.3d 978 ("[W]e may not substitute our

judgment for that of the trial court as trial courts are in a better

position to weigh conflicting evidence and evaluate the credibility

of witness testimony.” (citing Utah R. Civ. P. 52(a))). Likewise, we

do not address claims and issues argued on appeal that were not

raised before the trial court. See 438 Main St. v. Easy Heat, Inc., 2004

UT 72, ¶ 51, 99 P.3d 801 ("[I]n order to preserve an issue for

appeal[,] the issue must be presented to the trial court in such a

way that the trial court has an opportunity to rule on that issue.”

(alterations in original) (citation and internal quotation marks

omitted)). These include Rand's arguments regarding intentional

infliction of emotional distress and her suggestion that KOA had a

duty to call an ambulance after her fall.

20130873-CA 8 2014 UT App 246

Affirmed