Cottonwood Improvement v. Qwest

2013 UT App 24
_________________________________________________________
THE U TAH COURT OF A PPEALS
C OTTONWOOD IMPROVEMENT D ISTRICT,
Plaintiff and Appellee,
v.
QWEST C ORPORATION,
Defendant and Appellant.
Memorandum Decision
No. 20110954‐CA
Filed January 25, 2013
Third District, Salt Lake Department
The Honorable Joseph C. Fratto Jr.
No. 090920404
Joseph E. Minnock, Attorney for Appellant
Jeremy R. Cook and Catherine L. Brabson,
Attorneys for Appellee
J UDGE J. FREDERIC VOROS J R . authored this
Memorandum Decision, in which
J UDGES W ILLIAM A. T HORNE J R . and
C AROLYN B. MCHUGH concurred.
VOROS, Judge:
¶1 	The question on appeal is whether Qwest Corporation
(Qwest) is obligated to reimburse Cottonwood Improvement
District (Cottonwood) $31,022.90 for the cost of removing a cable
owned by Qwest from a sewer line owned by Cottonwood. At trial,
Cottonwood proceeded on three theories: promissory estoppel,
unjust enrichment, and violation of the Damage to Underground

Cottonwood Improvement v. Qwest
20110954‐CA 	2013 UT App 24	2
Utility Facilities Act. See Utah Code Ann. §§ 54‐8a‐2 to ‐13
(LexisNexis 2010). In keeping with the special verdicts returned by
an advisory jury, the trial court granted judgment for Cottonwood
on the first two causes of action but not on the third. Qwest
appeals. We affirm.
¶2 	Qwest first contends that the elements of promissory
estoppel were not established, because even if Qwest had not
promised to reimburse Cottonwood, Cottonwood would still have
excavated and repaired the sewer line. “Claims based on equitable
doctrines ‘are mixed questions of fact and law.’” Richards v. Brown,
2009 UT App 315, ¶ 11, 222 P.3d 69 (quoting U.S. Realty 86 Assocs.
v. Security Inv., Ltd., 2002 UT 14, ¶ 11, 40 P.3d 586), aff’d, 2012 UT
14, 274 P.3d 911. “Accordingly, we defer to a trial court’s factual
findings unless there is clear error but review its legal conclusions
for correctness.” Id. (citing Jeffs v. Stubbs, 970 P.2d 1234, 1244 (Utah
1998)). A finding is clearly erroneous “‘only if the finding is
without adequate evidentiary support or induced by an erroneous
view of the law.’” State v. Walker, 743 P.2d 191, 193 (Utah 1987)
(quoting Wright & Miller, Federal Practice & Procedure § 2585
(1971)). Therefore, we will not disturb a finding unless it is “against
the clear weight of the evidence, or if [we] otherwise reach[] a
definite and firm conviction that a mistake has been made.” Id.
“However, because of the fact‐intensive nature of equitable
doctrines, we grant the trial court broader discretion in applying
the law to the facts.” Richards, 2009 UT App 315, ¶ 11 (citing Jeffs,
970 P.2d at 1245; Department of Human Servs. ex rel. Parker v. Irizarry,
945 P.2d 676, 678 (Utah 1997)).
¶3 	“A party claiming promissory estoppel must establish the
following: (1) a promise reasonably expected to induce reliance; (2)
reasonable reliance inducing action or forbearance on the part of
the promisee or a third person; and (3) detriment to the promisee
or third person.” Weese v. Davis County Comm’n, 834 P.2d 1, 4 n.17
(Utah 1992) (citing Prows v. State, 822 P.2d 764, 768–69 (Utah 1991);
Topik v. Thurber, 739 P.2d 1101, 1103 (Utah 1987)). To prove
detrimental reliance on the defendant’s representation, the plaintiff

Cottonwood Improvement v. Qwest
20110954‐CA 	2013 UT App 24	3
“‘must have done some act which [it] otherwise would not have
done.’” Andreason v. Aetna Casualty & Surety Co., 848 P.2d 171, 175
(Utah Ct. App. 1993) (quoting a jury instruction and finding it
consistent with case law).
¶4 	Here, Qwest challenges the trial court’s finding of detrimen‐
tal reliance. It argues that Cottonwood did not do anything in
reliance on Qwest’s promise that it otherwise would not have done.
Qwest points to the testimony of Cottonwood’s representative,
Gregory Neff, who testified that Cottonwood would have repaired
the pipe even if it had never talked to any representative of Qwest.
He further testified that, if Cottonwood had repaired the line on its
own initiative, the cost would have been essentially the same.
¶5 	We agree with Qwest that some of Neff’s testimony may be
read in that manner. However, Neff also testified that Cottonwood
could have cleared the sewer pipe without excavating and
repairing the pipe as it did after receiving Qwest’s promise. He
testified that Cottonwood had “some equipment that would have
done sort of a rough‐cut job” by going inside of the pipe and
cutting the line from the inside. Although this approach “would
have cleared [the cable] out of there,” Qwest did not want the cable
cut because “that cable is a 200‐pair or something larger possibly,
and . . . that is a difficult thing for them to repair with all those
small phone wires in there.”
¶6 	Neff also testified that he “was nervous about sending
[Cottonwood’s] contractor out there without knowing whether or
not we were going to be able to get paid for it.” He asked Qwest,
“if we send our contractor out . . . and they dig it up and they fix
the sewer line and then they find out that it is, in fact, a Qwest
cable, will Qwest pay for it? And [Qwest’s representative] told me,
yes, they will. So based on that conversation, we scheduled Wolf
Excavating to go out and [do the work].” (Emphasis added.)
¶7 	In view of this testimony, we cannot agree that the court’s
finding is against the clear weight of the evidence, especially

Cottonwood Improvement v. Qwest
20110954‐CA 	2013 UT App 24	4
granting the trial court the “broader discretion” it is allowed in
cases of this type. See Richards v. Brown, 2009 UT App 315, ¶ 11, 222
P.3d 69.
¶8 	Qwest also argues that Cottonwood’s promissory estoppel
claim fails because enforcement of Qwest’s promise of reimburse‐
ment is not necessary to avoid injustice. “A promise which the
promisor should reasonably expect to induce action or forbearance
on the part of the promisee or a third person and which does
induce such action or forbearance is binding if injustice can be
avoided only by enforcement of the promise.” Andreason v. Aetna
Casualty & Surety Co., 848 P.2d 171, 175 (Utah Ct. App. 1993)
(citations and internal quotation marks omitted). No injustice
would result from rejecting Cottonwood’s promissory estoppel
claim, Qwest argues, because “the sole reason the sewer pipe was
penetrated by the Qwest cable was Cottonwood’s refusal to comply
with the Damage to Underground [Utility] Facilities Act.”
¶9 	The jury did not find that Qwest had violated the Damage
to Underground Utility Facilities Act. The jury was not asked to
find that Cottonwood had violated the Act, although on appeal
Qwest points to record testimony that could have supported such
a finding. Qwest did argue this theory to the trial judge, who
evidently concluded that, although Qwest could have refused to
make the promise and insisted on its rights under the Act, Qwest
should be held to the promise it chose to make instead. Qwest cites
no authority for the proposition that promissory estoppel is
inapplicable as a matter of law where the promise sought to be
enforced in effect waives a statutory defense the promisor might
otherwise have asserted. Cf. Fericks v. Lucy Ann Soffe Trust, 2004 UT
85, ¶ 14, 100 P.3d 1200 (describing the promissory estoppel
exception to the Statute of Frauds).
¶10 	We therefore consider the claim of error on appeal as a
challenge to the trial court’s application of law to fact. “However,
because of the fact‐intensive nature of equitable doctrines, we grant
the trial court broader discretion in applying the law to the facts.”

Cottonwood Improvement v. Qwest
1 The trial court alternatively based its judgment on Cotton‐
wood’s unjust enrichment theory. On appeal, Qwest also chal‐
lenges this ground for the court’s damage award. However, our
conclusion that Cottonwood is entitled to judgment on its prom‐
issory estoppel claim moots this claim of error.
20110954‐CA 	2013 UT App 24	5
Richards, 2009 UT App 315, ¶ 11. Here, the trial court might have
accepted Qwest’s argument as a matter of equity. But on the facts
of this case, as presented in the briefs on appeal, and under the
broader discretion appropriately granted to trial courts in cases of
this type, we cannot say that the trial court exceeded its discretion
in ruling as it did.1
¶11 	In sum, we affirm the trial court’s judgment against Qwest
on Cottonwood’s promissory estoppel claim.
¶12 	Affirmed.