2024 UT App 19

THE UTAH COURT OF APPEALS

DANIEL R. COTTAM,

Appellant,

v.

IHC HEALTH SERVICES INC., SHAWN MORROW, AND MARK J. OTT,

Appellees.

Opinion

No. 20210606-CA

Filed February 15, 2024

Third District Court, West Jordan Department

The Honorable Matthew Bates

No. 200906311

Dennis R. James, Jonathan L. Hawkins, and 

Janet I. Jenson, Attorneys for Appellant

Alexander Dushku, Justin W. Starr, James T. Burton, 

and Michael Eixenberger, Attorneys for Appellees

JUDGE JOHN D. LUTHY authored this Opinion, in which 

JUDGES GREGORY K. ORME and 

MICHELE M. CHRISTIANSEN FORSTER concurred.

LUTHY, Judge:

¶1 After Daniel R. Cottam, M.D., was denied reappointment 

to the medical staff of LDS Hospital (the Hospital), he sued the 

Hospital’s corporate owner, IHC Health Services Inc.; one of the

Hospital’s administrators; and a voting member of the Hospital’s 

board (collectively, the Hospital Defendants). The Hospital 

Defendants filed a motion to dismiss Cottam’s lawsuit, arguing 

that his claims were barred by provisions in the Hospital’s bylaws

(the Bylaws), which form a contract between the Hospital and its

doctors. See Don Houston, M.D., Inc. v. Intermountain Health Care, 

Inc., 933 P.2d 403, 407 (Utah Ct. App. 1997) (stating that “hospital 

bylaws are a contract between the hospital and the physician” 
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(cleaned up)). Cottam does not contest that the terms of the

Bylaws grant wholesale immunity from suit to the Hospital

Defendants. The district court granted the Hospital Defendants’ 

motion, ruling that Cottam had provided no substantive 

argument for why the Bylaws’ immunity provisions should not 

be enforced according to their terms. In his principal brief on 

appeal, Cottam again provides no substantive analysis or support 

to counter the district court’s application of the immunity 

provisions in the Bylaws. We therefore conclude that Cottam has 

inadequately briefed this issue and, thus, failed to carry his 

burden of persuasion on appeal. Accordingly, we affirm. 

BACKGROUND

¶2 Cottam is a licensed Utah physician and surgeon. He was 

granted medical staff privileges at the Hospital in January 2008. 

He was recredentialed without issue in 2009, 2010, and 2012. In 

2014, he was recredentialed with stipulations. Then in 2015, the

Hospital’s medical director informed Cottam that the Medical 

Executive Committee (the MEC) wanted to meet with him. 

Cottam eventually met with a group of physicians who were 

officers on the Hospital’s medical staff, and they presented 

Cottam with concerns they had regarding his performance at the 

Hospital. Following that meeting, Cottam was reappointed “with 

a one-year focused professional practice evaluation.” The same 

condition was placed on his reappointment in 2016. Then in 2017, 

the Hospital reappointed Cottam to its medical staff without 

conditions. In May 2018, however, the MEC voted to terminate his 

privileges and deny him reappointment to the Hospital’s medical 

staff.

¶3 Cottam appealed the MEC’s decision to a hearing 

committee (the Hearing Committee). The Hearing Committee 

held a hearing that included “15 hours of testimony from nine (9) 

witnesses, the presentation of more than ninety (90) exhibits and 

lengthy argument by both the [H]ospital’s attorney and Dr. 
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Cottam’s attorneys.” The Hearing Committee thereafter issued a 

decision upholding the MEC’s denial of Cottam’s reappointment 

to the Hospital’s medical staff.

¶4 The Hearing Committee’s decision was reviewed by the 

Board of Trustees of Salt Lake Valley Hospitals of Intermountain 

Healthcare, and that body confirmed the Hearing Committee’s 

decision. The Hospital Defendants subsequently submitted a 

report of the denial of Cottam’s staff privileges to the National 

Practitioner Data Bank.

¶5 Cottam then sued the Hospital Defendants, asserting,

among other things, that “[t]he filing of this untrue, negative and 

disparaging report about Dr. Cottam with the National 

Practitioner Data Bank . . . has and will continue to irreparably 

and permanently damage Dr. Cottam’s career, his livelihood, and 

his ability to practice medicine anywhere in the nation.” In his 

suit, Cottam alleged claims for breach of contract, tortious 

interference with present and prospective business relationships, 

defamation per se, breach of the implied covenant of good faith 

and fair dealing, and unconstitutional denial of property rights 

without due process. He specifically alleged that the Hospital 

Defendants “are bound by [the Bylaws]” and that, in the process 

of denying his reappointment and in reviewing the MEC’s 

decision, the Hospital Defendants “violated many of the Bylaws’ 

requirements.” He then detailed the alleged breaches. As 

remedies, Cottam sought compensatory, incidental, 

consequential, and punitive damages as well as a declaration that 

denial of his reappointment was void.

¶6 The Hospital Defendants responded by filing a motion to 

dismiss, arguing that they were contractually immune from suit

under the following provision of the Bylaws:

Each member of the Medical Staff and each person 

with clinical privileges and each person applying 

for the Medical Staff or applying for clinical 
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20210606-CA 4 2024 UT App 19

privileges in the Hospital or requesting 

reappointment or renewal of membership or 

privileges . . . agrees to . . . release from liability of 

every kind and from any other judicial relief each 

person or entity that provides information to the 

Hospital and Medical Staff in connection with any 

credentials check, background check, admission or 

reappointment process, quality or other peer 

review, or other Hospital or Medical Staff function;

[and] [t]o release from liability of every kind and 

from any other judicial relief, Intermountain 

Healthcare, the Hospital[], the Central Region 

Board, the Medical Staff, and each person or entity 

that participates in good faith in or supports or 

administers any Medical Staff credentials 

verification or review, appointment, 

reappointment, peer review, quality improvement, 

discipline, or corrective action.

The Hospital Defendants contended that the Bylaws constitute a 

binding contract between the Hospital and its medical staff and 

that Cottam accepted the terms of the Bylaws by voluntarily 

seeking appointment by the Hospital. Accordingly, they asserted,

the Bylaws’ grant of “immunity from all claims for relief against 

[the Hospital Defendants] for any actions related to the peer 

review process” and release “from all liability related to . . . 

reappointment and the resulting peer review process” barred 

Cottam “from seeking any legal redress against [the Hospital 

Defendants],” meaning that “his claims must be dismissed.”

¶7 Responding to Cottam’s allegations that the Hospital 

Defendants had breached the Bylaws, the Hospital Defendants 

argued that “the Bylaws make clear that technical breaches do not 

constitute a breach of the Bylaws,” which instead require only 

“substantial, good faith compliance” with their terms. The 

Hospital Defendants asserted, quoting Utah case law, that the 
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20210606-CA 5 2024 UT App 19

Bylaws’ “substantial compliance provision aligns with Utah law, 

‘which grants deference to hospital officials’ professional 

judgment’ and ‘require[s] that a hospital only “substantially 

compl[ies]” with its bylaws.’” (Alterations in original.) (Quoting

Don Houston, M.D., Inc. v. Intermountain Health Care, Inc., 933 P.2d 

403, 408 (Utah Ct. App. 1997).) The Hospital Defendants then 

argued that their alleged breaches of the Bylaws, “even if taken as 

true for purposes of the [m]otion,” did not constitute a “material 

breach” “that would negate the immunity and releases conferred 

by Dr. Cottam.”

¶8 Cottam responded by again asserting that the Hospital 

Defendants had breached the Bylaws and by calling the alleged 

breaches “egregious[].” He also contended that immunity has 

limitations. In that regard, he first made an assertion regarding 

the federal Health Care Quality Improvement Act (HCQIA), see 

42 U.S.C. §§ 11101–11152, contending:

[T]he very reason that [the Hospital] has [the 

Bylaws] and a credentialing process is that, by 

complying with HCQIA, it obtains some degree of 

immunity. If any hospital fails to comply with 

HCQIA or breaches HCQIA, it loses its immunity.

HCQIA expressly provides that a physician 

who is being disciplined by a hospital through its 

credentialing process has the right to sue the 

hospital. Indeed, Intermountain Healthcare itself 

established the law on this point when it argued that 

a physician had no right to sue it and lost in the 

Tenth Circuit.

(Citing Decker v. IHC Hosps., Inc., 982 F.2d 433 (10th Cir. 1992).) 

And he concluded:

We ask the [c]ourt, in the name of fairness, to declare 

what we all know to be true: There are limits to 
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20210606-CA 6 2024 UT App 19

immunity—the immunity in the [B]ylaws, the 

immunity in state statutes, the immunity in 

procedural rules, the immunity in federal statutes—

all have limits and those limits are called due 

process rights under the 14th Amendment of the 

U.S. Constitution. Those limits are called the 

implied covenant of good faith and fair dealing. 

Those limits are called, even in [the Hospital 

Defendants’] own documents, substantial 

compliance with principles of fairness.

¶9 The district court heard oral argument on the Hospital 

Defendants’ motion to dismiss, during which Cottam also 

asserted that “any contract that is breached by one party is no 

longer enforceable by that party” and that a breach by one party

“releases the other party from any obligations on their part.” The 

Hospital Defendants acknowledged that under Utah law “for a 

breach of contract claim, in order to get out of the contract, which 

will void complying with your obligations under the contract, 

there has to be a material breach of the contract by the party that 

is seeking enforcement.” On this basis, the Hospital Defendants

appeared to suggest that if Cottam pled a material breach of the 

Bylaws, he may “be able to get around” the Bylaws’ immunity 

provisions.

¶10 The court subsequently issued a written decision and 

order, in which it indicated that Cottam had not adequately 

responded to the Hospital Defendants’ assertion of contractual 

immunity and release from liability. Specifically regarding the 

impact of HCQIA on contractual immunity, the court explained:

HCQIA provides immunity from damages when a 

hospital engages in a professional review action that 

complies with the HCQIA standards. HCQIA is 

essentially a shield that a hospital can raise in 

defense to a lawsuit by a physician who has been 
Cottam v. IHC Health Services

20210606-CA 7 2024 UT App 19

subject to adverse action by the hospital. But 

[Cottam] cannot use that shield as a sword. . . .

[The Hospital Defendants] do not assert 

HCQIA immunity in their motion to dismiss. 

Instead, they are asserting immunity under the 

[B]ylaws and under state law contract principles.

(Citation omitted.) Thus, the court determined, HCQIA was 

“irrelevant” to the issue of contractual immunity and release of 

liability. Then the court explained:

Because [Cottam] has failed to offer any substantive 

rebuttal to [the Hospital Defendants’] assertion of 

contractual immunity, the [c]ourt grants the motion 

to dismiss. While [Cottam] asserted in his 

Complaint and Amended Complaint that [the 

Hospital Defendants] breached the [B]ylaws, 

potentially relieving him of his contractual 

obligation to release them from liability, he has 

failed to cite any relevant case law regarding the 

effect of a hospital’s breach of its bylaws on its 

contractual immunity and he has failed to analyze 

or apply the factual assertions in his Amended 

Complaint to that case law.

The [c]ourt is not a repository into which 

parties may dump the burden of argument and 

research. Nor will the [c]ourt assume an adversarial 

position to [the Hospital Defendants] and make 

[Cottam’s] arguments for him. [Cottam’s] obligation 

in responding to a motion to dismiss is to address 

and analyze the arguments that the moving party 

raises. It is not enough for [Cottam] to assert 

breaches of the [B]ylaws and then argue a loss of 

immunity under an irrelevant federal law.
Cottam v. IHC Health Services

20210606-CA 8 2024 UT App 19

(Citation omitted.)

¶11 As an alternative ground for granting the Hospital 

Defendants’ motion to dismiss, the court also “agree[d] with [the 

Hospital Defendants] on the merits,” ruling that while the 

Hospital Defendants “may not have adhered to every technical 

provision of the [B]ylaws, they substantially complied with 

them.”

¶12 Cottam now appeals, arguing that the district court erred 

in granting the Hospital Defendants’ motion to dismiss.

ISSUE AND STANDARD OF REVIEW 

¶13 “We review the grant of a motion to dismiss for 

correctness, granting no deference to the decision of the district 

court.” Nielsen v. LeBaron, 2023 UT App 29, ¶ 11, 527 P.3d 1133 

(cleaned up), cert. denied, 534 P.3d 751 (Utah 2023). “A motion to 

dismiss should be granted only if, assuming the truth of the 

allegations in the complaint and drawing all reasonable inferences 

therefrom in the light most favorable to the plaintiff, it is clear that 

the plaintiff is not entitled to relief.” Id. (cleaned up). 

ANALYSIS

¶14 Cottam asserts that the district court improperly granted 

the Hospital Defendants’ motion to dismiss. He advances several 

arguments in his opening brief supporting this assertion, but 

notably missing from them is any explanation or analysis as to 

why the district court erred by concluding that the Hospital 

Defendants are entitled to contractual immunity. Instead, Cottam 

merely repeats, virtually verbatim, the two blocks of text quoted 

above from his district court memorandum in opposition to the 

motion to dismiss, asserting that HCQIA gives him the right to 

sue the Hospital Defendants and asking that we set aside the 
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20210606-CA 9 2024 UT App 19

Hospital Defendants’ contractual immunity “in the name of 

fairness.”

¶15 Rule 24 of the Utah Rules of Appellate Procedure requires 

that, in a principal brief, a party “must explain, with reasoned 

analysis supported by citations to legal authority and the record, 

why the party should prevail on appeal.” Utah R. App. P. 24(a)(8); 

see also State v. Thomas, 961 P.2d 299, 304–05 (Utah 1998). 

“[A]ppellants carry the burden to persuade a reviewing court 

through reasoned, supported argument that the district court 

committed harmful, reversible error—a burden that necessarily 

requires the appellant to address the reasoning and basis of the 

district court’s ruling and to explain why that court got it wrong.” 

Peck v. Peck, 2020 UT App 14, ¶ 20, 459 P.3d 1033 (Pohlman, J., 

concurring in part, dissenting in part). Thus, when an appellant’s 

brief “fails to satisfy the minimal requirements of [r]ule 24,” we 

need not discuss the merits of the case. Smith v. Smith, 1999 UT 

App 370, ¶ 8, 995 P.2d 14, cert. denied, 4 P.3d 1289 (Utah 2000). And 

an appellant’s claim is “inadequately briefed when the overall 

analysis of the issue is so lacking as to shift the burden of research 

and argument to the reviewing court.” Id. (cleaned up). Our 

insistence on rule 24 conformity “is not a slavish devotion to form 

over substance.” Id. ¶ 9. “Rather, it is explained by our complete 

inability, given the deficiencies in briefing, to review the merits of 

the trial court’s decision.” Id.

¶16 Cottam has not satisfied the requirements of rule 24. He

makes no attempt to explain why the district court was wrong in 

its determination that HCQIA is irrelevant to the Hospital 

Defendants’ contractual immunity in this case. Instead, he merely 

repeats, nearly word for word, the thin argument he made below

related to HCQIA and immunity.

1 Cottam’s failure to grapple 

1. Cottam makes additional reference to HCQIA in other parts of 

his brief. He observes that the Bylaws refer to HCQIA and affirm 

(continued...)
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20210606-CA 10 2024 UT App 19

with the district court’s reasoning on this point renders his 

briefing inadequate, and we need not discuss the merits of his

undeveloped,repeat assertion. Seeid. ¶ 8. Nevertheless, we briefly 

note that the district court was not obviously wrong. While 

HCQIA provides a hospital immunity from damages when the 

hospital engages in a professional review action that complies 

with HCQIA’s standards, see 42 U.S.C. § 11111, a plaintiff doctor 

may not employ the hospital’s potential shield of immunity as a 

sword. The Hospital Defendants here have not asserted HCQIA 

immunity, and HCQIA is irrelevant to their assertion of the 

separate contractual immunity afforded them under the Bylaws. 

Stated another way, HCQIA “does not create a private cause of 

action,” Hancock v. Blue Cross-Blue Shield of Kan., Inc., 21 F.3d 373, 

374 (10th Cir. 1994), much less a private cause of action that 

overrides a hospital’s contractual immunity from suit.

¶17 The additional extent of Cottam’s argument in his principal 

brief against enforcement of the Bylaws’ immunity provisions 

consists solely of the following recycled text from his 

memorandum below:

that the Hospital’s credentialing and peer review procedures will 

comply with HCQIA. On that basis, he cites HCQIA and case law 

developed under it to (1) argue against application of an 

evidentiary privilege to defeat his claims and (2) identify alleged 

breaches by the Hospital Defendants of due process protections 

that he claims he was entitled to through the Bylaws’ 

incorporation of HCQIA standards. Neither of these HCQIAbased arguments hits the mark: Because the district court 

expressly “[did] not reach” the issue regarding evidentiary 

privileges, that issue is not properly before us. And because we 

resolve this appeal on the basis of the Hospital Defendants’ 

contractual immunity from suit, we need not determine which 

HCQIA due process provisions were incorporated into the 

Bylaws by reference or whether they were breached.
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20210606-CA 11 2024 UT App 19

We ask the [c]ourt, in the name of fairness, to declare 

what we all know to be true: There are limits to 

immunity—the immunity in the [B]ylaws, the 

immunity in state statutes, the immunity in 

procedural rules, the immunity in federal statutes—

all have limits and those limits are called due 

process rights under the 14th Amendment of the 

U.S. Constitution. Those limits are called the 

implied covenant of good faith and fair dealing. 

Those limits are called, even in [the Hospital 

Defendants’] own documents, substantial 

compliance with principles of fairness.

This paragraph does not meet the briefing requirements of rule 

24. It contains no reasoned analysis explaining how the due 

process protections of the Fourteenth Amendment, which apply 

as against government entities, see generally Millet v. Logan City, 

2006 UT App 466, ¶ 10, 147 P.3d 971 (recognizing and discussing 

“the Fourteenth Amendment requirement of state action”

(cleaned up)), cert. denied, 168 P.3d 819 (Utah 2007), void the 

contractual immunity of the private-party defendants in this case. 

Nor does Cottam’s brief explain with reasoned analysis or citation 

to authority how or why a breach of the implied covenant of good 

faith and fair dealing or a lack of “substantial compliance with 

principles of fairness” should void the Bylaws’ provisions that 

grant the Hospital Defendants immunity from suit.

¶18 Strikingly, this is not a case where an argument against 

application of the Bylaws’ immunity provisions was not 

preserved. Cottam argued below that “any contract that is 

breached by one party is no longer enforceable by that party” and 

that a breach by one party “releases the other party from any 

obligations on their part,” an apparent reference to the “first 

breach rule.” See generally Cross v. Olsen, 2013 UT App 135, ¶ 25, 

303 P.3d 1030 (“Under the first breach rule a party first guilty of a 

substantial or material breach of contract cannot complain if the 
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20210606-CA 12 2024 UT App 19

other party thereafter refuses to perform.” (cleaned up)). The 

Hospital Defendants even acknowledged this rule, cited authority 

for it, and appeared to suggest that if Cottam had pled a material 

breach of the Bylaws, he might “be able to get around” the 

immunity provisions of the Bylaws. The district court, however,

clearly did not agree with Cottam or the Hospital Defendants on 

this point.2 Instead, the court observed that Cottam had “failed to 

cite any relevant case law regarding the effect of a hospital’s 

breach of its bylaws on its contractual immunity” and that he had 

“failed to analyze or apply the factual assertions in his Amended 

Complaint to that case law.” On this basis, the court concluded 

that it was “not enough for [Cottam] to assert breaches of the 

[B]ylaws and then argue a loss of immunity under an irrelevant 

federal law,” and it granted the Hospital Defendants’ motion to 

dismiss on the basis of their contractual immunity from suit.

¶19 The district court’s hesitance to adopt Cottam’s 

undeveloped argument against enforcement of the Hospital 

Defendants’ contractual immunity is understandable. In Don 

Houston, M.D., Inc. v. Intermountain Health Care, Inc., 933 P.2d 403 

(Utah Ct. App. 1997), as here, a doctor sued a hospital after it 

suspended his surgical privileges. See id. at 405. The doctor 

alleged, “among other things, that [the hospital] had not complied 

with [its] bylaws in summarily suspending his surgical 

privileges.” Id. The district court granted summary judgment in 

favor of the hospital on the grounds that the hospital had 

substantially complied with its bylaws and that the hospital was 

immune from liability under the bylaws. See id. On appeal, the 

2. The court was not required to hold the Hospital Defendants to 

their apparent legal concession; it was required to reach its own 

conclusion on the viability of the Hospital Defendants’ 

contractual immunity from suit. Cf. 1600 Barberry Lane 8 LLC v. 

Cottonwood Residential O.P. LP, 2021 UT 15, ¶ 36, 493 P.3d 580 

(“Only factual allegations, not opinions or legal conclusions, may 

be deemed judicial admissions.”).
Cottam v. IHC Health Services

20210606-CA 13 2024 UT App 19

doctor argued that the terms of the immunity provisions of the

bylaws did not encompass his claims and that the hospital was, 

therefore, not immune from suit on his claims. See id. at 407. The 

Don Houston court first analyzed the language of the bylaws and 

concluded that the hospital was “entitled to the immunity from 

suit provided for” in them. Id. at 408. Then the court turned to 

separately address whether the hospital had substantially 

complied with the bylaws. See id. But it expressly did so only “to 

demonstrate that [the hospital] prevail[ed] under either theory,”

explaining that “resolution of the bylaw immunity issue 

technically resolve[d] [the] appeal.” Id. In other words, the court 

said that the hospital’s contractual immunity under the bylaws 

applied regardless of whether the hospital had materially 

breached its bylaws. See id.

¶20 We hasten to add, of course, that in Don Houston the court 

was not asked to opine on whether the first breach rule—or any 

other doctrine—might operate to void the hospital’s contractual 

immunity once it was established. Thus, Don Houston far from 

forecloses the possibility that a hospital’s material breach of its 

bylaws may void its contractual immunity under those bylaws. 

But Don Houston does demonstrate that this issue is an open 

question, not one with a self-evidently foregone conclusion as 

Cottam appears to believe. Indeed, the Hospital Defendants have 

pointed us to at least one appellate opinion holding that the 

“absolute immunity” extended to a hospital in its bylaws was not 

waived by evidence that it had materially breached the due 

process provisions of its bylaws. See Estate of Blume v. Marian 

Health Center, 516 F.3d 705, 708–09 (8th Cir. 2008) (cleaned up) 

(applying Iowa law). Moreover, prior to application of the first 

breach rule, a court would likely need to address whether the 

promises of immunity and release of liability, which a physician 

makes to a hospital by accepting its bylaws, and the promise of 

due process during reappointment and peer review proceedings, 

which the hospital makes to the physician through those bylaws, 

are mutually dependent. See generally Larson v. Stauffer, 2022 UT 
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20210606-CA 14 2024 UT App 19

App 108, ¶ 26, 518 P.3d 175 (“The first breach rule provides that 

when one party materially breaches a provision of a contract, the 

other party’s subsequent failure to perform a specific obligation is 

excused if the promises are mutually dependent.” (emphasis added) 

(cleaned up)). Additionally, any application of the first breach 

rule would have to grapple with its other implications. 

Specifically, because the remedy under that rule is usually 

rescission of the contract, see, e.g., Cross, 2013 UT App 135, ¶¶ 25–

27, then arguably if the Hospital Defendants were to lose their 

contractual immunity through a material breach of the Bylaws, 

Cottam would simultaneously lose his contractual right to due 

process, as well as any expectation of reappointment.

¶21 Given the foregoing legal landscape, Cottam’s oblique and 

unsupported references in his principal brief to “the implied 

covenant of good faith and fair dealing” and “substantial 

compliance with principles of fairness” are insufficient to meet his 

briefing burden under rule 24 on the issue of whether a material 

breach of the Bylaws would void the Hospital Defendants’ 

contractual immunity from suit. See generally Jacob v. Cross, 2012 

UT App 190, ¶ 3, 283 P.3d 539 (per curiam) (“[The appellant] fails 

to provide any factual or legal basis to support these conclusory 

statements. As a result, the issues are inadequately briefed 

because he has completely shifted the burden of researching the 

record and applicable law to the court.”); Smith v. Smith, 1999 UT 

App 370, ¶ 8, 995 P.2d 14 (determining that noncompliance with 

rule 24 occurs where “the overall analysis of the issue is so lacking 

as to shift the burden of research and argument to the reviewing 

court” (cleaned up)), cert. denied, 4 P.3d 1289 (Utah 2000).

¶22 We acknowledge that in his reply brief Cottam argues, 

citing authority, that “[u]nder the first breach rule[,] a party first 

guilty of a substantial or material breach of contract . . . can neither 

insist on performance by the other party nor maintain an action 

against the other party for a subsequent failure to perform”

(second alteration and omission in original) (quoting CCD, L.C. v. 
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20210606-CA 15 2024 UT App 19

Millsap, 2005 UT 42, ¶ 29, 116 P.3d 366) and that “once [the 

Hospital Defendants] materially breached [the] Bylaws, [they] 

lost the protection of the Bylaws and the [immunity] provision(s) 

they say are determinative here.” But this comes too late.3

“Generally, issues raised by an appellant in the reply brief that 

were not presented in the opening brief are considered waived 

and will not be considered by the appellate court.” Brown v. 

Glover, 2000 UT 89, ¶ 23, 16 P.3d 540. While this is not true where 

“an appellant responds in the reply brief to a new issue raised by 

the appellee in its opposing brief,” id. ¶ 24, the issue here cannot 

accurately be described as a new issue raised for the first time in 

the Hospital Defendants’ brief. Instead, it is the very ground on 

which the district court based its dismissal of Cottam’s claims. 

Cottam’s failure to meaningfully address this dispositive issue in 

his principal brief is a failure to comply with rule 24 through 

“reasoned analysis supported by citations to legal authority and 

the record, [of] why [Cottam] should prevail on appeal.” Utah R. 

App. P. 24(a)(8); see also State v. Johnson, 2017 UT 76, ¶ 71, 416 P.3d 

443 (Lee, J., concurring) (“The failure to raise such a challenge in 

the [opening] brief amounts to forfeiture. That principle is deeply 

embedded in our case law. We routinely decline to consider 

claims of error raised for the first time in a reply brief or at oral 

argument.” (cleaned up)); Kendall v. Olsen, 2017 UT 38, ¶¶ 11, 13, 

424 P.3d 12 (“[The appellant] failed to address the standing issue 

at all in his opening brief on appeal. [His] opening brief speaks 

exclusively to the merits of [his] claims, which the district court 

addressed in the alternative. But there is not a word on standing 

in the opening brief on appeal, and that is problematic. . . . [He] 

does address standing in his reply brief. But that was too late.”).

¶23 Because Cottam’s briefing does not comply with the 

requirements of rule 24, he has not met his burden of persuasion 

on appeal. See Bank of Am. v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d 

3. It also does not address the background legal landscape on this 

issue that we outlined above.
Cottam v. IHC Health Services

20210606-CA 16 2024 UT App 19

196 (“An appellant who fails to adequately brief an issue will 

almost certainly fail to carry its burden of persuasion on appeal.” 

(cleaned up)). We thus affirm the district court’s order of 

dismissal on the basis of the Hospital Defendants’ contractual 

immunity from suit.4 Where the district court decided to apply the 

Hospital Defendants’ contractual immunity on the basis of an 

inadequate argument against such application and not based on a 

definitive resolution of the underlying legal issue, our affirmance 

of that decision based on inadequate briefing likewise leaves the

underlying legal issue unresolved. Whether a hospital’s material 

breach of its bylaws voids the hospital’s contractual immunity 

from suit granted under those bylaws must be resolved another 

day.5

4. Even if Cottam had met his briefing burden and burden of 

persuasion on this issue and convinced us that a material breach 

of the Bylaws by the Hospital Defendants voids their contractual 

immunity from suit, he has offered no argument and cited no 

legal authority to demonstrate that the Hospital Defendants’ 

alleged breaches of the Bylaws (which he outlines in ample detail) 

were actually material. This too constitutes a fatal failure to 

adequately brief an independent, alternative basis for the district 

court’s dismissal of his claims, namely, its determination that, 

“[w]hile [the Hospital Defendants] may not have adhered to 

every technical provision of the [B]ylaws, they substantially 

complied with them.” See generally Brinton v. IHC Hosps., Inc., 973 

P.2d 956, 965 (Utah 1998) (“[M]ere technical violations of 

procedures or policies in administering peer review will not give 

rise to a cause of action.”).

5. Whatever contractual immunity from suit a hospital may have 

under its bylaws is distinct from the statutory immunity from 

liability granted to hospitals in this same context. See Utah Code 

§ 58-13-5(7). This opinion resolves no questions regarding the 

contours of that statutory immunity either.
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20210606-CA 17 2024 UT App 19

CONCLUSION

¶24 Cottam was warned by the district court that he had not 

sufficiently addressed the Hospital Defendants’ asserted defense 

of contractual immunity and release of liability. Yet Cottam failed 

to provide any appropriate argument or authority on this point in 

his principal brief. Cottam has inadequately briefed this 

dispositive issue, and he has not carried his burden of persuasion 

on appeal. We affirm the district court’s dismissal of Cottam’s

claims.