source: Caselaw Access Project

author: Justice Himonas, opinion of the Court:

license: Public Domain

text:
    KEYSTONE INSURANCE AGENCY, LLC, Appellant, v. INSIDE INSURANCE, LLC, Shumway Insurance Group, Inc., Jonathan Shumway, Spencer Shumway, and Cabe Atkinson, Appellees.
    No. 20170677
    Supreme Court of Utah.
    Filed May 29, 2019
    Aaron P. Dodd, Provo, for appellants
    Barry N. Johnson, Daniel K. Brough, Salt Lake City, for appellees
    Justice Himonas authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Justice Petersen joined.
    On Direct Appeal
   Justice Himonas, opinion of the Court:

INTRODUCTION

¶1 Keystone Insurance Agency appeals the district court's decision to exclude all evidence of its alleged damages, pursuant to Utah Rule of Civil Procedure 26(d)(4), in its suit against Inside Insurance. Additionally, Keystone appeals the district court's denial of its motion for reconsideration. Lastly, Keystone appeals the district court's dismissal with prejudice of Inside's counterclaim seeking expulsion of Keystone as a member of Inside.

¶2 Because Keystone failed to provide Inside with a viable computation of its claimed damages in compliance with Utah Rule of Civil Procedure 26(a)(1)(C), we affirm the district court's exclusion of Keystone's damages evidence under rule 26(d)(4). We also affirm the district court's denial of Keystone's motion for reconsideration after finding that the facts of this case are readily distinguishable from those of Williams v. Anderson , 2017 UT App 91, 400 P.3d 1071. Lastly, we hold that the district court did not abuse its discretion by dismissing Inside's expulsion counterclaim with prejudice pursuant to Utah Rule of Civil Procedure 41(a)(2) and (c).

BACKGROUND

¶3 On May 23, 2012, Shumway Insurance Group, Inc. (SIG) and Keystone entered into an operating partnership agreement. SIG was owned and controlled by Scott Shumway and Keystone was owned and controlled by Chad Johansson. Pursuant to the agreement, SIG and Keystone became members of Inside, with SIG owning seventy-five percent of Inside and Keystone owning twenty-five percent. Additionally, the agreement provided that Keystone would receive a 90/10 commission split on all new and renewal business written by or brought over by Keystone's principal, Johansson. Keystone would also receive a fifty percent commission from the initial fee for any satellite office brought on by Keystone. Nearly three years later, a disagreement relating to commission splits led to the termination of Johansson as an agent and sales representative of Inside. Keystone, however, remained a member of Inside despite the ousting of its principal from Inside. Following Johansson's departure, Keystone issued a demand letter to Inside, requesting access to review and copy Inside's organizational documents, income tax returns, and financial records. Following Inside's refusal to meet Keystone's demands to be treated as a member of Inside, access Inside's financial records, or be paid under the operating agreement, Keystone filed its complaint in the district court on May 27, 2015.

¶4 In the complaint, Keystone requested that the district court declare Keystone a member of Inside and order SIG to buy out Keystone's membership interest in Inside at its fair market value. Keystone also brought a number of other claims against Inside, alleging breach of contract, gross negligence, and breach of fiduciary duty. Keystone pled that it had sustained damages in an amount not less than $ 300,000. On May 28, 2015, Keystone filed a motion for a temporary restraining order and a preliminary injunction relating to Inside's refusal to make certain documents and materials available to Johansson. The district court did not enter the injunction, but instead ordered that Inside furnish Johansson access to his company laptop or give him a copy of the hard drive so that he could obtain information regarding his customer contacts. On June 19, 2015, Inside provided Johansson a copy of the hard drive. Inside did not furnish Keystone with its financial information.

¶5 On June 22, 2015, the district court issued a Notice of Event Due Dates. It set February 29, 2016, as the deadline for completing fact discovery and July 4, 2016, as the deadline for completing expert discovery. Keystone served its initial disclosures on July 6, 2015. Keystone did not set forth a damages computation in its initial disclosures. In response, Inside sent Keystone a letter on August 3, 2015, requesting that Keystone disclose a computation of its damages pursuant to rule 26(a)(1)(C). Following an amendment to Keystone's disclosures, which still did not include a computation of damages, Inside again requested a computation of damages from Keystone on September 22, 2015. On October 14, 2015, Keystone responded to Inside's request for a computation of damages by explaining that it was working to determine the fair market value of its interest in Inside as of the date of Johansson's termination. Additionally, Keystone said that it was "in the process of obtaining some expert assistance" to assist in this determination. Keystone further explained that it was unable to state what amounts it was owed because Keystone did not have access to the information necessary to calculate the commissions entitled to Johansson. Keystone stated that once it received that information from Inside "either voluntarily ... or through discovery," it would provide its damages computation.

¶6 On January 27, 2016, the parties agreed to extend fact discovery until March 31, 2016. Relevant to the third issue on appeal, on December 4, 2015, Inside asserted several counterclaims and third-party claims against Keystone and Johansson. Inside asserted claims for tortious interference with contractual relations, requested an injunction prohibiting Keystone from interfering with Inside's business, and sought the expulsion of Keystone from Inside. On March 2, 2016, Keystone served its first set of discovery requests, formally requesting production of all of Inside's financial records and QuickBooks records. On March 3, 2016, Inside amended and supplemented its initial disclosures to produce documents relevant to its counterclaims and third-party claims. Among those documents was a 197-page spreadsheet that tracked the commissions related to Inside clients previously associated with Keystone and Johansson from April 20, 2015, to the date of production. Inside further produced a document summarizing the 197-page spreadsheet. This summary document showed that, according to Inside's records, Keystone's total commissions from its new and renewal business between April 23, 2015, and February 19, 2016, was $ 74,796.14, meaning that Keystone's ninety percent commission split was valued at $ 67,316.53.

¶7 The parties ultimately agreed to extend fact discovery to May 26, 2016, and to extend expert disclosures to June 15, 2016. Keystone served a final supplement to its initial disclosures on April 21, 2016, but that supplement still did not include a computation of damages. Keystone did not furnish a computation of damages in any disclosure or discovery response during fact discovery. On June 15, 2016, the final day of expert disclosures, Keystone disclosed Jeremiah Grant as an expert witness. Grant, using two different technical models, valued Keystone's twenty-five percent interest in Inside to be between $ 133,228 and $ 330,718 or between $ 77,728 and $ 192,948, respectively. Grant also estimated that Keystone's unpaid ninety percent commission split from May 2015 through March 2016 was $ 67,177.25 and that Keystone was owed $ 3,561 for unpaid pre-termination commissions and $ 34,908.95 for unpaid overrides.

¶8 On July 15, 2016, Inside, claiming that Keystone had failed to disclose a computation of damages during discovery, filed a motion in limine seeking exclusion of all of Keystone's damages-related evidence pursuant to rule 26(d)(4). On November 15, 2016, the district court granted Inside's motion and excluded all of Keystone's damages-related evidence. The ruling also granted Inside's motion for partial summary judgment as to all of Keystone's claims with the exception of Keystone's request for declaratory relief to confirm its membership in Inside and its statutory rights to records inspections. Keystone then filed a Rule 54(b) Motion to Change Ruling and Order on December 13, 2016, which the district court denied.

¶9 On July 21, 2017, Keystone filed a Motion to Reconsider Ruling and Order Due to New Caselaw. In that motion Keystone contended that the spreadsheet disclosed by Inside constituted notice, to Inside, of the damages Keystone was seeking-at least as to the unpaid commissions Keystone sought as damages. Keystone argued that a recent court of appeals decision, Williams v. Anderson , 2017 UT App 91, 400 P.3d 1071, constituted new authority that required the district court to reverse its earlier ruling excluding Keystone's damages evidence. The district court denied that motion in an order entered August 15, 2017.

¶10 Previously on July 14, 2017, in light of the exclusion of Keystone's evidence of damages, Inside filed a motion to dismiss its own counterclaims, including its claim to expel Keystone as a member of Inside. The district court dismissed those counterclaims with prejudice on August 15, 2017. The parties subsequently stipulated to dismiss Keystone's remaining claims. The district court dismissed those claims on August 22, 2017. This appeal followed.

¶11 We exercise jurisdiction under Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶12 We review a district court's interpretation of our rules of civil procedure, precedent, and common law for correctness. Holmes v. Cannon , 2016 UT 42, ¶ 6, 387 P.3d 971 ; Ellis v. Estate of Ellis , 2007 UT 77, ¶ 6, 169 P.3d 441. We review a district court's decision on sanctions under rule 26(d)(4) and to reconsider an issue prior to any appeal for an abuse of discretion. See, e.g. , IHC Health Servs., Inc. v. D & K Mgmt., Inc. , 2008 UT 73, ¶ 27, 196 P.3d 588. We likewise review a district court's decision to dismiss a counterclaim under rule 41(a)(2) and (c) with or without prejudice for an abuse of discretion. Nu-Med USA, Inc. v 4Life Research, L.C. , 2008 UT 50, ¶ 8, 190 P.3d 1264.

ANALYSIS

¶13 The issues in this case are procedural. Rule 26(a)(1)(C) and rule 26(d)(4) set forth clearly defined directions for the discovery process. It is undisputed that Keystone never presented a computation of damages during the fact discovery period and waited until the close of expert discovery to present, for the first time, its damage estimates and methodologies. The district court thoughtfully and faithfully applied the rules and found this failure by Keystone not to be harmless to Inside or excused for good cause. No new case law contradicts this ruling or alters the paradigm of how district courts should apply the rules of civil procedure.

¶14 Finding no relief from or error in the district court's application of the rules, Keystone challenges Inside's request for dismissal of Inside's counterclaim to expel Keystone. But throughout the litigation Keystone consistently opposed Inside's motion for expulsion and suffered no prejudice in the dismissal of the counterclaim. Keystone remains a member of Inside-the very outcome it sought for the overwhelming majority of this case.

¶15 We find no error or abuse of discretion by the district court on any of the issues on appeal and affirm on all counts.

I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY GRANTING INSIDE'S MOTION TO EXCLUDE

¶16 A plaintiff must include a damages computation in its initial disclosures. UTAH R. CIV. P. 26(a)(1)(C). Rule 26(a)(1) requires the plaintiff to serve on the other parties "without waiting for a discovery request ... a computation of any damages claimed and a copy of all discoverable documents or evidentiary material on which such computation is based." Rule 26 also provides further elaboration on the duties it assigns. Rule 26(d)(3) states clearly that a "party is not excused from making disclosures or responses because the party has not completed investigating the case or because the party challenges the sufficiency of another party's disclosures or responses or because another party has not made disclosures or responses." UTAH R. CIV. P. 26(d)(3). Throughout the entirety of fact discovery Keystone failed to disclose to Inside any computation of the damages it was seeking, despite having a clear duty to do so.

¶17 Regardless of what Keystone knew or did not know about its damages, it was still incumbent on Keystone to disclose what it had and, more crucially, its method and computation for damages. As the district court noted, citing the court of appeals, "[e]ven if a plaintiff cannot complete its computation of damages before future events take place, 'the fact of damages ... and the method for calculating the amount of damages ' must be apparent in initial disclosures." Sleepy Holdings LLC v. Mtn. W. Title , 2016 UT App 62, ¶ 14, 370 P.3d 963 (quoting Stevens-Henager Coll. v. Eagle Gate Coll. , 2011 UT App 37, ¶ 22, 248 P.3d 1025 ) (emphasis added) (alteration in original). Keystone's failure to provide any such computation or method for calculating damages is undisputed by the parties and ultimately led the district court to consider and apply the sanction provided by rule 26(d)(4).

¶18 Rule 26(d)(4) states that "[i]f a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure." UTAH R. CIV. P. 26(d)(4). Unfortunately, Keystone did not disclose its damages or any computation until the end of expert disclosures-nearly one year after filing its initial disclosures. This left Inside to guess at what damages Keystone was seeking and how they were to be calculated. As the district court noted, "[f]or a defendant, disclosing one's case-in-chief hinges to a large extent upon the disclosures provided by the plaintiff ... a defendant must understand the claims brought by the plaintiff in order to prepare a case-in-chief." The need for the plaintiff to first furnish its disclosures, computations, and theory of the case is by design of the Rules. Keystone's neglect is only pardonable if found to be "harmless" or for "good cause." UTAH R. CIV. P. 26(d)(4). But the district court did not abuse its discretion in finding that neither exception applied to Keystone's failure.

¶19 Keystone's failure to offer its theory of damages or any salient computation was found to be not harmless by the district court, which stated that "there is clearly harm when a plaintiff engages in this type of conduct and waits until the twilight hours of fact discovery to engage in any meaningful discovery, indeed, in any discovery at all, and then to provide the calculation in the expert report for the first time." Additionally, the district court exercised care in fleshing out the harm done to Inside during oral argument on Inside's motion to exclude when it asked Inside, "was there truly harm if you were able to get an expert report pulled together for your own counterclaim that ended up being responsive to their expert report, then was there really harm?" Inside responded with several reasons that the court, in its discretion, found persuasive of harm. These included an inability to adequately question Johansson, uncorrected disparities between the parties' valuations, and the uncertainty as to which Tier status-with its accompanying discovery rules and limitations-would even govern the case.

¶20 In short, any ability on the part of Inside to guess at potential damages does not free Keystone from its obligation to disclose a computation of damages. Keystone's failure impaired Inside's ability to understand the nature and quantity of the damages Keystone claimed, as well as the length, anticipated costs, and scope of the litigation being pursued. The general categories provided in Keystone's initial disclosures were not enough for Inside to properly build a defense against the damages claimed. The district court was therefore well within its discretion to find that Keystone failed to meet its burden to establish that its failure was harmless to Inside.

¶21 Additionally, the district court did not abuse its discretion in finding that Keystone also failed to meet its burden to establish good cause for its neglect. Inside repeatedly notified Keystone of its failure to provide a damages computation through written correspondence and multiple requests during the discovery period. Keystone was notified both on August 3, 2015, and again on September 22, 2015, of the deficiency in its initial disclosures. Despite a later extension of fact discovery until March 31, 2016, Keystone did not conduct any discovery until March 2, 2016. Further discovery extensions allowed Keystone time to amend its disclosures with the full cohort of requested financial information made available to it by Inside. Still it did not disclose a computation before the close of fact discovery on May 26, 2016. As the appellees point out, Keystone had the spreadsheet calculating Johansson's commissions nearly three months prior to the end of discovery, it had Johansson's hard drive for over seven months before the end of discovery, and it obtained possession of Inside's QuickBooks accounts just under a month before the end of discovery. The district court was again within its discretion to find no good cause to excuse Keystone's failure to provide a computation of damages.

II. THE DISTRICT COURT DID NOT ERR BY DENYING KEYSTONE'S MOTION TO RECONSIDER

¶22 The district court did not err in denying Keystone's Motion to Reconsider Ruling and Order Due to New Caselaw. Keystone argued in this motion that Inside's own spreadsheet regarding Johansson's commissions gave Inside notice as to Keystone's damages at least with respect to commissions owed, and that a recent court of appeals decision, Williams v. Anderson , 2017 UT App 91, 400 P.3d 1071, necessitated a reversal of the district court's ruling. In Williams the court of appeals found that a plaintiff's disclosure of damages-thirty percent of a company's purchase price-was a sufficient disclosure and satisfactory computation of damages. Id . ¶ 26. While we review the district court's legal conclusions, including its interpretation of Williams , de novo, it is clear that the district court did not err by distinguishing this case from the facts in Williams .

¶23 In Williams , the plaintiff's disclosures stated that he was seeking thirty percent of the purchase price of a recently acquired company. Id. ¶ 3. The defendants in turn disclosed an asset purchase agreement which listed the purchase price as $ 200,000. Id. ¶ 12. Both parties agreed that theirs was a Tier 3 case. Id. ¶ 4. Because the damages disclosure was an unambiguous and known value which "described the precise components [the plaintiff] intended to factor into his damages claim," i.e. , thirty percent of $ 200,000, the court of appeals found the disclosure to be a sufficient computation of damages. Id. ¶ 19. Here, however, the district court reasonably concluded that Keystone's claim for damages was more complex than the one at issue in Williams , and that Keystone's disclosure lacked any computation by simple calculation. Keystone's focus on Inside's possession of a spreadsheet detailing Johansson's commissions misunderstands the burden placed on the plaintiff by rule 26. The spreadsheet contained information regarding Johansson's business dealings. But the sheet was a mere tool that could aid in the calculation of damages-not a dispositive and clear recitation of what damages Keystone was after . Without a clear computation or theory of what Keystone was asking for, it was left to the guesswork of Inside to determine how the spreadsheet might inform Keystone's theory of the case and what damages it was seeking. The district court did not err in determining this to be an insufficient method of computing damages under the Williams framework.

III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN GRANTING INSIDE'S MOTION TO DISMISS

¶24 Finally, Keystone asserts that the district court abused its discretion by granting Inside's motion to dismiss its own counterclaim for expulsion. This is curious, at the very least, seeing as Keystone continuously took the position that it is, and should remain, a member of Inside-which is the real-world consequence of the dismissal of Inside's counterclaim.

¶25 Utah Rule of Civil Procedure 41(a)(2) states that "an action may be dismissed at the plaintiff's request by court order only on terms the court considers proper." This rule applies equally to the dismissal of a counterclaim. Id. 41(c). A Tenth Circuit opinion formally adopted by our court of appeals, and that we also find persuasive, defines what is meant by "proper" for purposes of dismissal: "absent 'legal prejudice' to the defendant, the district court normally should grant such a dismissal." Ohlander v. Larson , 114 F.3d 1531, 1537 (10th Cir. 1997) (adopted in Rohan v. Boseman , 2002 UT App 109, ¶¶ 21-22, 46 P.3d 753 ). In Rohan , the court of appeals articulated several factors meant to guide the court's determination as to whether a party would be legally prejudiced by the dismissal of such an action. Id. ¶ 28. These include "the opposing party's effort and expense in preparing for trial; excessive delay and lack of diligence on the part of the movant; insufficient explanation of the need for a dismissal; and the present stage of the litigation." Id . ¶ 21 (quoting Ohlander , 114 F. 3d at 1537 ) (internal quotation marks omitted). "The Ohlander factors are 'by no means exclusive' and '[a]ny other relevant factors should' also be considered." H&H Network Servs., Inc. v. Unicity Int'l, Inc. , 2014 UT App 73, ¶ 5, 323 P.3d 1025 (alteration in original) (citation omitted) (considering whether claimants were attempting to dismiss a claim merely to bring another suit or to circumvent earlier decisions). Keystone has failed to persuade us that it was legally prejudiced by the dismissal of Inside's counterclaim.

¶26 Throughout the dispute, Keystone, as defendant to the counterclaim, argued against expulsion. It loses no rights by the dismissal of Inside's claim, and the dismissal with prejudice bars Inside from filing another claim to expel Keystone. As the district court noted, there is simply no "controversy that would even be tried." The district court, by dismissing Inside's counterclaim, gave Keystone the very remedy that it had originally sought. The Rohan factors are largely inapplicable in this case. Because Keystone continuously sought an order declaring it to be a member of Inside, Keystone's expenditure of time and money on this issue was inevitable. Even if Inside had not sought expulsion through a counterclaim, Keystone still would have been litigating the issue of whether it was a member of Inside. And, any delay by Inside was primarily the product of Keystone's neglect of its own claims. The district court was well within its discretion in not forcing Inside to litigate a claim it no longer wished to pursue merely so that Keystone could compensate for its failure to manage its own claims. After spending years seeking an order that it is a member of Inside, Keystone now asks the court to: (1) expel it from Inside and (2) liquidate its membership interest so that it can be paid for its expulsion. The district court did not abuse its discretion by declining to do so. Keystone remains a member of Inside and was not prejudiced by the district court's dismissal of Inside's counterclaim.

CONCLUSION

¶27 Although we review the district court's application of the rules of civil procedure and conclusions of law de novo, we grant significant deference to its findings of fact and review for abuse of discretion the import that it assigns to the factual details relevant to discovery. Keystone failed to meet the clearly articulated disclosure requirements of rule 26 and the district court did not abuse its discretion in finding that this failure was neither excused for good cause nor harmless to the defendant Inside. So too did the district court accurately differentiate this case's complexity and Keystone's recalcitrance in providing a computation of its damages from the more straightforward set of facts presented in Williams . Lastly, Keystone has suffered no prejudice and has forfeited no rights by the dismissal of Inside's counterclaim for expulsion. Keystone remains a member of Inside and the district court did not abuse its discretion in dismissing Inside's counterclaim. Affirmed.

      Keystone included only the following paragraph related to damages in its initial disclosures: "1. Defendant claims damages for past and future pecuniary losses resulting from Defendants [sic ] unlawful actions. 2. Attorneys' fees and costs which have been and will be incurred in this matter. 3. Compensatory damages, which have yet to be calculated."

      Inside's letter to Keystone states: "Keystone discloses no computation, but simply three extremely general categories that Keystone evidently believes constitute its damages."

      By April 22, 2016, Inside had responded to Keystone's discovery requests and disclosed all relevant documents and computer files. By May 2, 2016, Keystone had received access to Inside's QuickBooks files.

      Although we attach no decisional authority to advisory committee reports, the commentary on rule 26 is illustrative of the defect in Keystone's actions. The advisory committee notes on rule 26 state:
      "The penalty for failing to make timely disclosures is that the evidence may not be used in the party's case-in-chief. To make the disclosure requirement meaningful, and to discourage sandbagging, parties must know that if they fail to disclose important information that is helpful to their case, they will not be able to use that information at trial. The courts will be expected to enforce them unless the failure is harmless or the party shows good cause for the failure."
      Utah R. Civ. P. 26 advisory committee's note. Again, acknowledging that we are not bound by these commentaries, the district court wisely stated that "sanctions for failure to disclose are required unless that failure is either harmless of justified by good cause."

      Of course, Keystone could always supplement its damages disclosure later on as more information was acquired through discovery.

      The plaintiff's burden is not simultaneous with the defendant's but comes first and early: "a party shall, without waiting for a discovery request , serve on the other parties ... a copy of all documents, data compilations, electronically stored information, and tangible things in the possession or control of the party that the party may offer in its case-in-chief." Utah R. Civ. P. 26(a)(1) (emphasis added).

      Under a plain language reading of rule 26(d)(4), the burden to demonstrate harmlessness or good cause is clearly on the party seeking relief from disclosure requirements, in this case Keystone.

      This problem was summarized by counsel for Inside:
      And when you have a plaintiff that doesn't ever really engage early on with the fact or the number of discovery, which the comments to rule 26 require the plaintiff to do, that harms defendants as well. They're getting dragged through this by the plaintiff's request. And they're entitled to know what this case is about so that they can make decisions regarding how long it's going to last, how much discovery are we going to have to go through, and what are we going to have to do to get to the end here? Because it's not free for them either. And I think that's a pretty acute distinction.

      Additionally, if Keystone truly felt that it could not provide its computation due to Inside's failure to disclose material information, a remedy existed in Utah Rule of Civil Procedure 37(a) which provides that "[a] party or the person from whom discovery is sought may request that the judge enter an order regarding any discovery issue, including: (a)(1)(A) failure to disclose under Rule 26 ... (a)(1)(E) compelling discovery from a party who fails to make full and complete discovery." Keystone filed no such motion and even such a filing of a statement of discovery issues "does not suspend or toll the time to complete standard discovery." Id. 37(a)(9).

      This is different in kind from the straight forward equation used in Williams . For example, Keystone's own expert observed discrepancies between Johansson's hard drive and the QuickBooks information furnished by Inside. Possessing all of a company's financial data does not obligate defendants to divine what matters to a plaintiff.

      As the appellees point out, Black's Law Dictionary states that to demonstrate legal prejudice, the "defendant may show that dismissal will deprive the defendant of a substantive property right or preclude the defendant from raising a defense that will be unavailable or endangered in a second suit." Legal prejudice , Black's Law Dictionary (10th ed. 2014). Keystone has shown neither.

      Because the district court excluded all of Keystone's damages evidence on its own claims, Keystone's only remaining hope of recovering any monetary damages was to be expelled from Inside and to be paid the fair market value of its interest in Inside.


text:
    METROPOLITAN WATER DISTRICT OF SALT LAKE & SANDY, Appellant, v. Zdenek SORF, Appellee.
    No. 20160756
    Supreme Court of Utah.
    Filed June 11, 2019
    Shawn E. Draney, Scott H. Martin, Danica N. Cepernich, Rodney R. Parker, Salt Lake City, for appellant
    Paul M. Belnap, Bradley W. Bowen, Alan R. Houston, Salt Lake City, for appellee
    Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Himonas, Justice Pearce and Justice Petersen joined.
    On Direct Appeal
   Chief Justice Durrant, opinion of the Court:

Introduction

¶1 Article XI, section 8 of the Utah Constitution and Utah Code section 17B-1-103 authorize the creation of quasi-governmental entities known as limited purpose local districts. The Metropolitan Water District of Salt Lake and Sandy (Metro) is one such district, created for the purpose of operating the Salt Lake Aqueduct (SLA). Metro owns land in fee and has various easements along the SLA corridor. One of these easements crosses the backyard of Zdenek Sorf. Metro claims that it has authority to enact regulations over non-Metro district use of SLA corridor lands such as Mr. Sorf's. When Mr. Sorf made improvements to his property in violation of these regulations, Metro sued for injunctive relief, among other claims. Mr. Sorf filed a motion for summary judgment, arguing Metro's claims were not yet ripe. The district court granted his motion. Because we find that the parties' claims are ripe, we reverse and remand.

Background

¶2 Metro owns and operates the SLA. The SLA transports water from the Deer Creek Dam to the Salt Lake Valley. Along the SLA corridor, Metro owns some property in fee and has easements over other portions. Mr. Sorf owns property encumbered by a Metro district easement. This easement was created by deed in 1946 by Elizabeth Colemere, the former property owner. This deed provides Metro an easement 125 feet wide "to construct, reconstruct, operate and maintain a pipeline or pipelines on, over and across" the property.

¶3 Metro also claims that, under Utah Code sections 17B-1-103 and 17B-1-301, it has additional authority to adopt regulations of SLA-related property. With this alleged authority, Metro has created a set of regulations, including provisions controlling non-Metro use of the SLA. These regulations prohibit construction of certain structures, and prohibit property owners from having trees and vines on the land covered by the easement. Metro's regulations require property owners encumbered by Metro's easement to submit an encroachment application to Metro if they want to make any of these restricted improvements on their land.

¶4 Without Metro's approval, Mr. Sorf began making improvements to his property. He removed some trees and landscaping and replaced them with a hot tub and gazebo. He added garden boxes, a water feature, and a shed. All of these improvements fall within the boundaries of Metro's easement. Mr. Sorf also replaced a cinder block wall with a wood fence and installed a gate in the fence to give Metro access. He installed another gate between his backyard and his neighbor's backyard to provide additional access.

¶5 Metro filed suit in October 2010, seeking to enjoin Mr. Sorf's construction and receive a declaration about its authority to remove the improvements. Mr. Sorf defaulted, appealed to this court, and we vacated the denial of his motion to set aside the default judgment. Mr. Sorf later filed an answer and counterclaim in the district court. Metro filed a motion for partial summary judgment, seeking a declaration that it had the regulatory authority it claimed. Mr. Sorf filed a cross-motion for summary judgment, claiming that Metro's claims were not ripe "because whether [Mr. Sorf] has violated [Metro's] easement rights or [Metro's] necessary rules and regulations cannot be determined until such time as [Metro] has an actual need to refurbish or replace the pipeline."

¶6 The district court granted Mr. Sorf's cross-motion. It found that Metro had an easement on Mr. Sorf's property, that there was no evidence that Mr. Sorf's improvements to the property unreasonably interfered with the aqueduct, and that Metro's "assertion of interference with its rights regarding the potential future refurbishment or replacement of the pipe [was] purely speculative." The district court dismissed Metro's claims as not ripe. Specifically, the district court found that "determining whether [Mr. Sorf] has unreasonably interfered with the easement will be entirely speculative until Metro has an actual plan to refurbish or replace the pipe under [Mr. Sorf's] backyard."

¶7 Metro appealed the district court's order. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).

Issues and Standard of Review

¶8 We must determine whether the parties' issues are ripe for resolution. We "review the [district] court's legal determination of ripeness under a correction of error standard."

Analysis

¶9 First, because we find that the parties' claims are ripe, we conclude that the district court erred in granting summary judgment based on ripeness. And because the district court did not conduct the proper analysis of the parties' respective rights to the easement, we remand to the district court for proceedings consistent with this opinion.

¶10 Although the district court's order contains some discussion about the rights of the parties, it ultimately dismissed the parties' claims on ripeness grounds. "A dispute is ripe when a conflict over the application of a legal provision has sharpened into an actual or imminent clash of legal rights and obligations between the parties thereto." On the other hand, "[a]n issue is not ripe for appeal if there exists no more than a difference of opinion regarding the hypothetical application of a provision to a situation in which the parties might, at some future time, find themselves."

¶11 But this is not a hypothetical situation. Mr. Sorf has made improvements to his property. Metro alleges it has the regulatory authority to prevent him from doing so without its approval and to force him to remove the structures from the property. The district court did not actually reach the issue of whether Metro has the regulatory authority it claims. Rather, it assumed that Metro had some power but that its power was limited by what is "necessary" for its operations. The district court then found that it could not determine what was "necessary" because Metro did not yet have a plan for future reconstruction of the SLA. Whether Metro has the regulatory authority it claims is, in part, determinative of whether it is entitled to injunctive relief against Mr. Sorf. If Metro does have this authority, Mr. Sorf has violated valid Metro district regulations, and Metro may seek a remedy. So the question of whether, and to what extent, Metro has the regulatory authority it claims is ripe for adjudication.

¶12 Additionally, even if Metro does not have this regulatory authority, the question of whether Mr. Sorf's additions to the property encroach upon Metro's property rights remains. Metro has an easement that allows it "to construct, reconstruct, operate and maintain a pipeline or pipelines on, over and across" a portion of Mr. Sorf's property. The aqueduct has been constructed, the aqueduct remains operational, and Metro does not suggest that any of Mr. Sorf's repairs have interfered with the actual operation of the aqueduct underground. But the question is not whether Mr. Sorf has "unreasonably interfere[d] with the aqueduct ." Rather, the question is whether Mr. Sorf has unreasonably interfered with Metro's easement , or in other words, Metro's ability to access the aqueduct for maintenance and repairs. This is a different question from whether Metro has access to the property generally. Metro does not claim that Mr. Sorf has denied access to his property. And the parties do not dispute that these structures are, in fact, constructed on Metro's easement. But the question left unanswered by the district court is whether Mr. Sorf's additions to the property have interfered with Metro's present right to access the aqueduct through its easement, for the purposes of ongoing maintenance.

¶13 This is not a speculative inquiry. Although Metro's unspecified plan to reconstruct the aqueduct sometime in the future may be speculative, there is a live dispute regarding whether Mr. Sorf's improvements have unreasonably interfered with Metro's property rights. Metro has established rights based on an express easement. If Mr. Sorf has infringed upon that easement, Metro has a right to remedy that infringement. So the district court on remand must determine what the parties' respective rights and obligations to the property are.

¶14 In sum, the parties are both entitled to a determination of whether these additions are permissible, and if not, a determination of the proper remedy. Although Metro's future plans for modification and maintenance of the aqueduct may be speculative, both Metro and Mr. Sorf have present, existing rights in the property at issue. Mr. Sorf owns the property in fee and Metro has a right to an easement on the property. So an actual clash of legal rights and obligations exists between the parties, and their claims are ripe.

Conclusion

¶15 The district court erred in finding that the parties' claims were not ripe. And by failing to fully address the parties' claims, the court missed a critical piece of the analysis regarding whether Mr. Sorf's use of his land violated either Metro's regulations or the parties' respective easement rights. Because Mr. Sorf and Metro have present and competing interests in the land at issue, and Metro claims Mr. Sorf is currently violating its alleged regulatory authority, the issues presented in this case are ripe. We reverse and remand for additional proceedings.

      Metro. Water Dist. Regulations 16-7(2) & 16-7(5)(a).

      At one point during the construction, Mr. Sorf submitted an encroachment application to Metro, but Metro denied it.

      Metro. Water Dist. of Salt Lake & Sandy v. Sorf , 2013 UT 27, ¶ 26, 304 P.3d 824.

      Boyle v. Nat'l Union Fire Ins. Co. , 866 P.2d 595, 598 (Utah Ct. App. 1993).

      Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Lindberg , 2010 UT 51, ¶ 40, 238 P.3d 1054 (internal quotation marks omitted).

      Id.

      Metro, as an easement holder, "has the right to access to repair and maintain its [aqueduct] as reasonably necessary in accordance with its use since time immemorial." N. Union Canal Co. v. Newell , 550 P.2d 178, 179 (Utah 1976) (citation omitted).

      "[T]he owner of the fee title, because of his general ownership, should have the use and enjoyment of his property to the highest degree possible, not inconsistent with the easement." Id. And "the owner of the easement should likewise have the right to use and enjoy his easement to the fullest extent possible not inconsistent with the rights of the fee owner." Id.


text:
    Julie COBURN, Petitioner, v. WHITAKER CONSTRUCTION CO., Respondent.
    No. 20180668
    Supreme Court of Utah.
    Filed June 18, 2019
    James R. Hasenyager, Ogden, Stony V. Olsen, Moroni, for petitioner
    Paul P. Burghardt, Ryan J. Schriever, North Salt Lake, for respondent
    Justice Himonas authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Justice Petersen joined.
   Justice Himonas, opinion of the Court:

INTRODUCTION

¶1 Sometimes the path we take makes all the difference. In this case, Julie Coburn chose to step over orange construction netting that was strung across a public walking trail. In doing so, her foot got caught in the netting and she fell to the ground, suffering injuries to her arm and shoulder. The district court ruled that the orange netting was an open and obvious danger and therefore Whitaker Construction-the company that strung the orange netting across the trail-owed Ms. Coburn no duty of care with respect to the netting. The court of appeals issued an order without an opinion upholding the district court's ruling. We now affirm.

BACKGROUND

¶2 Whitaker was hired to install a water pipeline in the Kays Creek Parkway, a recreational area in Layton, Utah. The Kays Creek Parkway contains a number of walking trails that are designated for public use, one of which led to the pipeline construction site. Whitaker placed a "Trail Closed Ahead" sign at the trailhead indicating that portions of the trail were closed for construction and strung orange netting across the trail to deter people from accessing the construction site. Despite the warning sign and the orange netting, people consistently ignored the sign and would take down the orange netting, which Whitaker acknowledges it had to replace on a consistent basis.

¶3 On July 8, 2018, Ms. Coburn and her husband went for a walk in the Kays Creek Parkway. Despite seeing the "Trail Closed Ahead" sign at the trailhead, the Coburns assumed the trail was open and continued on. A short distance into the trail, Ms. Coburn encountered two barrels on either side of the trail with orange netting strung between them, but the netting had fallen down and was lying across the paved trail. Ms. Coburn testified that the netting was "maybe a couple of inches" off the ground and that the width of the netting to be stepped over was about "nine inches to a foot," which was "a little bit larger" than Ms. Coburn's walking stride. She also testified that she recognized that the orange netting was a hazard but chose to step over it anyway. She tripped on the netting and fell, sustaining injuries to her arm and shoulder.

¶4 Ms. Coburn filed a negligence action against Whitaker seeking damages for her injuries. Whitaker filed a motion for summary judgment, arguing that it did not owe Ms. Coburn a duty of care under the open and obvious danger rule found in the Restatement (Second) of Torts-which we adopted in Hale v. Beckstead , 2005 UT 24, 116 P.3d 263 -and therefore could not be held liable for her injuries. The district court agreed with Whitaker and granted its motion for summary judgment.

¶5 Ms. Coburn filed an appeal with the court of appeals, arguing that a genuine issue of material fact existed as to whether Whitaker owed her a duty under the Restatement (Second) of Torts and our opinion in Hale . She also argued that the court should abandon the open and obvious danger rule from the Restatement (Second) of Torts and replace it with a different rule from the Restatement (Third) of Torts. The court of appeals, on its own motion and pursuant to Utah Rule of Appellate Procedure 31, issued an order affirming the district court without a written opinion.

¶6 Ms. Coburn filed a writ of certiorari in this court, and we granted the writ as to the following issues:

1. Whether the Court of Appeals erred in deciding the appeal in this case under Rule 31 of the Rules of Appellate Procedure without providing any explanation of the grounds for its decision. The Court requests that the parties address both the merits of that issue and the question of whether [Petitioner's] petition for certiorari adequately raised an argument with respect to that issue.
2. Whether the Court should reconsider its adoption of the open-and-obvious-danger rule of Sections 343 and 343A of the Restatement (Second) of Torts. The Court requests that the parties address both the merits of that issue and the question of whether Petitioner adequately preserved her arguments with respect to that issue.
3. What is the proper disposition of the case if the Court adopts a different rule?
4. If the Court declines to adopt a different rule or to reach the merits of Petitioner's request for the adoption of a different rule, whether, under relevant case law and Sections 343 and 343A of the Restatement (Second) of Torts, the Court of Appeals erred in affirming the district court's grant of summary judgment to Respondent.

¶7 We exercise jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶8 "Because a summary judgment presents questions of law, we accord no particular deference to the court of appeals' ruling and review it for correctness." Marziale v. Spanish Fork City , 2017 UT 51, ¶ 8, 423 P.3d 1145 (citation omitted) (internal quotation marks omitted). "Summary judgment is appropriate when 'there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.' " Id. (quoting UTAH R. CIV. P. 56(a) ).

ANALYSIS

I. MS. COBURN'S PETITION FOR WRIT OF CERTIORARI DID NOT ADEQUATELY PRESERVE THE ISSUE OF WHETHER THE COURT OF APPEALS ERRED IN ISSUING AN ORDER WITHOUT OPINION PURSUANT TO RULE 31

¶9 The first issue on which we granted certiorari is "[w]hether the Court of Appeals erred in deciding the appeal in this case under Rule 31 of the Rules of Appellate Procedure without providing any explanation of the grounds for its decision." We also asked the parties to address "the question of whether [Ms. Coburn's] petition for certiorari adequately raised an argument with respect to that issue."

¶10 We conclude that Ms. Coburn's petition for writ of certiorari did not adequately raise an argument with respect to the rule 31 issue. Ms. Coburn's petition contains only two references to rule 31, neither of which demonstrates an intent to challenge the court of appeals' decision to issue its order pursuant to rule 31. Instead, the references to rule 31 in Ms. Coburn's petition simply recount the fact that the court of appeals issued an order in this case pursuant to rule 31. Nothing in her petition suggests that she takes issue with the court of appeals' invocation of rule 31. Because Ms. Coburn's petition makes no argument with respect to the propriety of the court of appeals' decision to issue an order without written opinion pursuant to rule 31, we decline to address this issue on certiorari.

II. MS. COBURN HAS NOT MET HER BURDEN IN PERSUADING THIS COURT TO ABANDON THE OPEN AND OBVIOUS DANGER RULE SET FORTH IN THE RESTATEMENT (SECOND) OF TORTS

¶11 The second issue on which we granted certiorari is "[w]hether the Court should reconsider its adoption of the open-and-obvious-danger rule of Sections 343 and 343A of the Restatement (Second) of Torts." Relatedly, we also asked what "the proper disposition of the case [is] if the Court adopts a different rule." We conclude that Ms. Coburn has not carried her burden in persuading us to reconsider our decision in Hale v. Beckstead , 2005 UT 24, 116 P.3d 263, adopting the open and obvious danger rule. Accordingly, we need not determine what the proper disposition of this case would be under a different rule.

¶12 In Hale , this court adopted the open and obvious danger rule as embodied in sections 343 and 343A of the Restatement (Second) of Torts. 2005 UT 24, ¶ 17, 116 P.3d 263. As we explained in Hale , the open and obvious danger rule "defines the duty of care a possessor of land owes to invitees." Id. ¶ 23. Specifically, the open and obvious danger rule provides that "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Id. ¶ 9 (quoting Restatement (Second) of Torts § 343A(1) ). If the open and obvious danger rule applies, then the land possessor owes no duty to its invitees with respect to the open and obvious danger and therefore cannot be held liable for any injury caused thereby.

¶13 On certiorari, Ms. Coburn argues that this court should abandon the open and obvious danger rule that we adopted in Hale and replace it with a different rule embodied in section 51 of the Restatement (Third) of Torts.

¶14 Overruling precedents is something that we must not do lightly. See Neese v. Utah Bd. of Pardons & Parole , 2017 UT 89, ¶ 57, 416 P.3d 663. As we observed in Eldridge v. Johndrow , there are two factors that help us determine the weight we should give our past precedents:

(1) the persuasiveness of the authority and reasoning on which the precedent was originally based, and (2) how firmly the precedent has become established in the law since it was handed down. The second factor encompasses a variety of considerations, including the age of the precedent, how well it has worked in practice, its consistency with other legal principles, and the extent to which people's reliance on the precedent would create injustice or hardship if it were overturned.

2015 UT 21, ¶ 22, 345 P.3d 553. "We thus don't overrule our precedents unless they've proven to be unpersuasive and unworkable, create more harm than good, and haven't created reliance interests." Neese , 2017 UT 89, ¶ 57, 416 P.3d 663.

¶15 In her briefing on certiorari, Ms. Coburn makes little effort to explain how Hale and the open and obvious danger rule are unpersuasive and unworkable, create more harm than good, and have not created reliance interests. She argues that the open and obvious danger rule is inconsistent with Utah's comparative fault scheme because, in practice, it can bar some plaintiffs from recovering for their injuries-an argument that was rejected in Hale . 2005 UT 24, ¶¶ 11-31, 116 P.3d 263. But Ms. Coburn does not engage Hale 's reasoning on its merits. Nor does she explain how Hale is unworkable or creates more harm than good. Instead, she simply laments the fact that the open and obvious danger rule can sometimes act as an absolute bar to recovery. Ms. Coburn also argues that the open and obvious danger rule is a "highly fact dependent" inquiry and therefore it is inappropriate for judges to determine whether a danger is open and obvious. But Ms. Coburn's argument sounds more in why summary judgment may be inappropriate in some cases than why Hale should be overturned. Finally, Ms. Coburn argues that we should abandon the rule from the Restatement (Second) because the rule in the Restatement (Third) is different. But she does not explain how or why any change in the Restatement (Third) would affect the continuing viability of Hale . The fact that the Restatement may have changed over time does not necessarily mean that an opinion adopting an earlier-in-time rule needs to be overturned. It is still incumbent upon Ms. Coburn to explain why that change necessitates the overturning of our precedent-an explanation she omits here.

¶16 Because Ms. Coburn has not carried her burden in persuading us that Hale should be overturned, we do not abandon the open and obvious danger rule here. Concomitantly, we need not decide what the outcome of this case would be under a different rule.

III. THE DISTRICT COURT CORRECTLY GRANTED SUMMARY JUDGMENT IN WHITAKER'S FAVOR UNDER THE OPEN AND OBVIOUS DANGER RULE

¶17 Having declined to overturn Hale and its adoption of the open and obvious danger rule, the final question on which we granted certiorari is "whether, under relevant case law and Sections 343 and 343A of the Restatement (Second) of Torts, the Court of Appeals erred in affirming the district court's grant of summary judgment to [Whitaker]." We conclude that the court of appeals did not err in affirming the district court's grant of summary judgment and now affirm.

¶18 As detailed above, see supra ¶¶ 11 -16, the operative law in this case is the open and obvious danger rule from the Restatement (Second) of Torts that we adopted in Hale . The Restatement provides that "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." RESTATEMENT (SECOND) OF TORTS § 343a(1) ( AM. LAW. INST. 1965). Additionally, "[i]n determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated." Id. § 343A(2). The Restatement clarifies that there is "special reason for the possessor to anticipate harm" when the possessor "maintains land upon which the public are invited and entitled to enter as a matter of public right," as Whitaker did in this case. Id. § 343A cmt. g. This is so because defendants like Whitaker "may reasonably expect the public, in the course of the entry and use to which they are entitled, to proceed to encounter some known or obvious dangers which are not unduly extreme, rather than to forego the right." Id. However, even these defendants "may reasonably assume that members of the public will not be harmed by known or obvious dangers which are not extreme, and which any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid." Id. And "[t]his is true particularly where a reasonable alternative way is open to the visitor, known or obvious to him, and safe." Id.

¶19 The district court held that Whitaker was entitled to summary judgment because it owed no duty of care to Ms. Coburn under the open and obvious danger rule. In the district court's view, "Whitaker had no reason to expect (or anticipate) that ... individuals that chose to ignore the signs and the fencing ... would be unable to protect themselves against the possibility of harming themselves when going over or around the fencing." Indeed, the district court found that there was "absolutely no evidence that Whitaker should have expected (or anticipated) that Ms. Coburn, or any other member of the public choosing to cross or go around the fencing[,] would not do so safely."

¶20 The court of appeals affirmed the district court's ruling without issuing any written opinion.

¶21 On certiorari, Ms. Coburn argues that the court of appeals erred in affirming the district court's order because the district court did not properly consider the public nature and governmental ownership of the land on which Ms. Coburn was injured in determining whether the harm Ms. Coburn suffered was foreseeable. In her estimation, the fact that the Kays Creek Parkway is a public trail is enough to satisfy the exception to the open and obvious danger rule when the land possessor "should anticipate the harm despite such knowledge or obviousness" of the danger. We disagree.

¶22 Although Ms. Coburn is correct that the Restatement provides that public land owned by the government creates a heightened level of anticipation of harm for the land possessor, this alone is not enough to satisfy the exception to the open and obvious danger rule. Instead, such land possessors "may reasonably assume that members of the public will not be harmed by known or obvious dangers which are not extreme, and which any reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid," especially when "a reasonable alternative way is open to the visitor, known or obvious to him, and safe." Id. In this case, the district court properly considered whether Whitaker could reasonably assume that members of the public like Ms. Coburn could avoid the danger of the orange netting.

¶23 As the district court noted, Ms. Coburn testified in her deposition that she saw the orange netting on the ground and recognized it as a hazard. But the netting did not present an extreme danger. Ms. Coburn stated that the netting was "maybe a couple of inches" off the ground and that the width of the netting to be stepped over was about "nine inches to a foot." In other words, Ms. Coburn could have avoided the netting by simply raising her foot "a couple of inches" over a distance of about "nine inches to a foot." Tellingly, Ms. Coburn and her husband were able to safely traverse the netting on the way back to their car after Ms. Coburn's fall. The netting, then, seems the archetype of a danger that is not extreme and that a "reasonable person exercising ordinary attention, perception, and intelligence could be expected to avoid." Id.

¶24 Furthermore, Ms. Coburn testified that she could have walked around the netting but chose instead to walk over the netting. In another part of her deposition, she stated that she had seen a footpath or some sort of worn-down trail going around the netting, indicating that other people had been walking around the netting. This is consistent with the deposition testimony of a foreman for Whitaker who was responsible for maintaining the orange netting. The foreman testified that the orange netting was not put in place for the purpose of physically keeping people out. Rather, the orange netting was there to advise people not to continue on the trail, despite the fact that they could walk around the netting if they wanted to.

¶25 In response to the testimony below that there was a safe alternative to crossing over the netting, Ms. Coburn cited the testimony of her husband, who testified that the orange netting extended some twenty to thirty feet beyond the sides of the trail. She also cited to the foreman's testimony, which indicated that the netting was attached to trees that were on either side of the trail. But the fact that the netting may have stretched beyond the width of the trail does not create a genuine issue of material fact as to whether an alternative path existed. To the contrary, the foreman's testimony demonstrates that people could still bypass the netting, even if the netting was tied to trees on the side of the path. And Ms. Coburn herself testified that the footpath or worn-down trail she saw went around the trees . The unrebutted testimony, then, indicates that a path around the trees-and by extension, the netting-existed at the time Ms. Coburn tripped and fell over the netting.

¶26 The testimony presented to the district court leads to two inescapable conclusions. First, the netting was not an extreme danger. Instead, it was a danger that any reasonable person could have avoided by carefully stepping over it. And second, a safe, obvious, and reasonable alternative existed to Ms. Coburn: she could have walked around the trees and avoided crossing over the netting altogether. Accordingly, Whitaker could reasonably rely on the public to avoid the danger presented by the netting through the exercise of ordinary attention, perception, and intelligence-either by going over or around it. Therefore, the district court did not err when it held that "Whitaker had no reason to expect (or anticipate) that those individuals that chose to ignore the signs and the fencing ... would be unable to protect themselves against the possibility of harming themselves when going over or around the fencing." As such, Whitaker did not owe Ms. Coburn a duty to warn or otherwise protect her from the orange netting and the court of appeals' order upholding the district court's ruling is affirmed.

CONCLUSION

¶27 We conclude that Ms. Coburn's petition for writ of certiorari did not adequately present an argument regarding the court of appeals' rule 31 order and therefore decline to address that issue. We also conclude that Ms. Coburn has not met her burden in persuading this court to overturn Hale and abandon the open and obvious danger rule. Finally, we hold that, under the open and obvious danger rule, Whitaker owed Ms. Coburn no duty of care. Affirmed.

      There is some conflicting evidence as to whether the trail was officially open or closed at the time. Because it is irrelevant to our analysis, we need not make this determination.

      Utah Rule of Appellate Procedure 31(a) states: "After the filing of all briefs in an appeal, a party may move for an expedited decision without a written opinion. ... The court may dispose of any qualified case under this rule upon its own motion before or after oral argument."

      We also decline to address two related issues. First, because we decline to address the rule 31 issue, we need not decide whether a party seeking to challenge the court of appeals' sua sponte invocation of rule 31 may have a duty to preserve that objection by first filing a rule 35 petition for rehearing in the court of appeals before filing a petition for writ of certiorari with this court. Second, we decline to address Ms. Coburn's argument that, even though she did not make a rule 31 argument in her petition for writ of certiorari, we should reverse the court of appeals because its invocation of rule 31 constituted plain error. We have never extended the plain error doctrine to cover issues not raised in petitions for writ of certiorari. And Ms. Coburn does not present us with any briefing to suggest that such an extension would be appropriate. Accordingly, we will not so extend the plain error doctrine here.

      To be clear, this is not to say that this court can never revisit Hale or consider adopting the approach of the Restatement (Third). Instead, we simply point out that Ms. Coburn has not carried her burden in asking us to overturn our past precedent.

      Ms. Coburn testified that she probably would have gone around the netting if it had been higher, but chose to go over it because it was not too high and her puppy had just crossed over the netting without issue.

      It is unclear which path was less traveled by because "the passing there had worn them really about the same." Robert Frost , The Road Not Taken , in Mountain Interval 9, 9 (1916).

      This is also echoed in the district court's opinion, which states that the orange netting was strung across the trail "as a visual aid" to keep people out.