ROA General v. Salt Lake City

2022 UT App 141
THE UTAH COURT OF APPEALS
R.O.A. GENERAL INC.,
Appellee,
v.
SALT LAKE CITY CORPORATION,
Appellant.
Opinion
No. 20210029-CA
Filed December 15, 2022
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 190902263
Samantha J. Slark, Attorney for Appellant
Leslie Van Frank and Bradley M. Strassberg,
Attorneys for Appellee
JUSTICE JILL M. POHLMAN authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.1
POHLMAN, Justice:
¶1 This appeal is the latest skirmish in a long-running dispute
over a billboard. Although the billboard has been demolished
since this dispute originally began, R.O.A. General Inc., the
billboard’s owner, brought this inverse condemnation action,
seeking just compensation based on Salt Lake City Corporation’s
(the City) decision to deny its request to relocate the billboard. The
1. Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).

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City moved for summary judgment, arguing that the billboard
does not qualify for compensation under the relevant statute. The
district court denied the City’s motion, determining that the City
could not assert its statutory arguments. The City appeals the
denial of its motion. We agree with the City that the court erred
in its summary judgment decision, but we decline the City’s
invitation to order that judgment be entered in its favor, and we
remand for further proceedings.
BACKGROUND
¶2 In this matter, R.O.A. General is the successor to Outfront
Media LLC fka CBS Outdoor (collectively, CBS).2 In 2014, CBS
owned a billboard located at 726 West South Temple, Salt Lake
City, Utah. The billboard was located on land owned by Corner
Property LC and leased to CBS. After Corner Property decided to
terminate the lease but before CBS had vacated the property, CBS
submitted an application to the City to relocate the billboard
under Utah Code section 72-7-510.5 (the Title 72 application).
Specifically, CBS wanted permission to relocate the billboard to
738 West South Temple and to raise its height from 86 feet to 116
feet. Shortly after submitting that request, CBS demolished its
billboard in accordance with Corner Property’s notice to vacate
the property.
¶3 In a letter dated December 4, 2014, the City denied the Title
72 application. CBS unsuccessfully challenged that decision on
administrative and judicial review. At the time it denied the Title
72 application, the City acknowledged that the billboard had been
demolished, and it stated, “If CBS prefers to modify its application
to either (a) bank the billboard credits . . . or (b) request to relocate
the sign under Utah Code section 10-9a-511(3)(c)(i), please submit
the appropriate modified request.” (Cleaned up.) The City also
reserved the right to “condemn the sign under Utah Code section
2. For simplicity, we will refer to these entities as CBS throughout
this opinion.

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10-9a-513(2).” (Cleaned up.) The City sent a second letter on
December 18, 2014. In that letter, the City again stated, “[I]f CBS
prefers to modify its application to either bank its billboard credits
. . . or request to relocate the sign under Utah Code section 10-9a-
511(3)(c)(i), the City will consider a modified request.” (Cleaned
up.) Neither letter mentioned that the demolition of the billboard
might impact the subsequent application the City invited. In
contemporaneous staff reports, the City acknowledged its
discretion to deny applications to relocate a billboard “as long as
it [is] willing to pay the property owner compensation” under
Utah Code section 10-9a-513(2).
¶4 In September 2015, CBS modified its relocation request (the
Section 511 request) to conform to Utah Code section 10-9a-
511(3)(c)(i). In so doing, CBS stated that it was “accept[ing] the
invitation the City extended to modify the application to request
relocation.” Meanwhile, Corner Property filed a competing
request to relocate a billboard to 726 West South Temple. The City
could not grant both CBS’s and Corner Property’s requests,
however, because the proposed relocations were too close to each
other under the relevant statutory spacing requirements.3 The
City then approved Corner Property’s relocation request but
denied CBS’s Section 511 request.
¶5 CBS appealed the City’s denial of the Section 511 request,
and the case made its way to the Utah Supreme Court. See
Outfront Media, LLC v. Salt Lake City Corp., 2017 UT 74, 416 P.3d
389. CBS advanced three arguments before the supreme court.
First, it argued that “the decision to deny its request was illegal
because Mayor Becker did not obtain the approval of the city
council before making that decision.” Id. ¶ 13. Second, CBS argued
that the “City’s billboard ordinance prohibited the City from
3. “[S]tate law prohibits freeway-oriented billboards from being
located within 500 feet of each other, and the two South Temple
lots [were] within that spacing restriction.” Outfront Media, LLC v.
Salt Lake City Corp., 2017 UT 74, ¶ 8, 416 P.3d 389 (citing Utah Code
Ann. § 72-7-505(3) (LexisNexis Supp. 2017)).

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denying CBS’s request to relocate.” Id. ¶ 14. And third, CBS
argued that “Mayor Becker’s decision to deny CBS’s request and
approve Corner Property’s was arbitrary and capricious because,
in CBS’s view,” the mayor acted “according to an unwritten
policy to reduce the number of billboards in the city.” Id. ¶ 15.
¶6 The supreme court upheld the denial of the Section 511
request, concluding that the City’s decision was not arbitrary,
capricious, or illegal. Id. ¶ 46. In so doing, the court explained
generally that Utah Code section 10-9a-513 gave “the municipality
the option of permitting the relocation, or denying it and paying
just compensation.” Id. ¶ 37; see also id. ¶ 39 (“[T]he Billboard
Relocation Statute expressly permits the City to deny such
requests, so long as it pays just compensation.”). But the court did
not state that the City was obligated to pay CBS compensation
under the circumstances of this particular dispute. See id. ¶¶ 37–
39. Further, in a footnote, the court observed that CBS had torn
down its billboard before filing the Section 511 request and that
by “invit[ing] CBS to ‘modify’ its application to relocate . . . to
conform to [section 10-9a-511],” the City had “treated CBS’s
request to relocate as if it was filed while the billboard was still in
existence.” Id. ¶ 7 n.2. But the court ultimately did “not decide
whether CBS was technically entitled to file such a request after
taking down its billboard.” Id.
¶7 In 2019, CBS filed the present action against the City,
seeking inverse condemnation and arguing that the City’s
denial of its relocation request required the City to provide
just compensation. CBS also sought a declaratory judgment
that “the City is estopped from, or has previously waived,
raising its new position . . . and that the City is required to
compensate [CBS] pursuant to the terms of Utah Code section 10-
9a-513.”
¶8 The City moved for summary judgment on CBS’s claim for
compensation. It asserted that CBS could not meet section
10-9a-513’s requirements and that CBS’s claim for compensation
therefore should be dismissed. In particular, the City argued that

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because CBS demolished its billboard before seeking
relocation under section 10-9a-511, CBS did not have an existing
billboard to relocate and could not meet a precondition to
compensation. The City also claimed that CBS was untimely in
initiating the relocation process under the statutory scheme given
that CBS had focused on appealing the denial of the Title 72
application rather than modifying its request to conform to
section 10-9a-511. The City added that CBS’s relocation request
failed because the requested location was too close to another
potential billboard. The City’s motion did not mention CBS’s
declaratory judgment claim or CBS’s estoppel and waiver
theories.
¶9 CBS opposed summary judgment, asserting that the City’s
proposed grounds for summary judgment were unfounded. But
CBS’s opposition memorandum largely focused on asserting
that the City’s grounds amounted to “a completely different
basis for its denial of [CBS’s] relocation application” and that, in
CBS’s view, the City’s “post-hoc reasons for denial [were]
precluded by . . . judicial estoppel, equitable estoppel, and res
judicata” or had been waived. CBS also claimed that the City had
acknowledged that CBS’s billboard qualified for just
compensation under section 10-9a-513, a claim the City disputed.
The City further disagreed that its arguments were precluded by
any doctrine.
¶10 After hearing oral argument, the district court issued a
written memorandum decision and order in which it denied
the City’s motion for summary judgment, stating it was “not
well taken.” The court set forth certain undisputed facts
and quoted the introduction of the Utah Supreme Court’s
Outfront Media opinion. It understood the “factual background”
of the present case to mean that “there is no dispute that . . . CBS
qualified for compensation,” and it interpreted the
supreme court’s opinion as having determined that the City’s
denial of CBS’s relocation application “required compensation.”
The court also concluded, “None of the reasons now argued by
the City in this Motion was ever provided as a basis for denying

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CBS’s relocation application. Accordingly, the City is estoppe[d]
from relying on new reasons to reject CBS’s relocation application
in an effort to avoid paying just compensation.” It did not
otherwise address the merits of the City’s statutory grounds for
summary judgment.
¶11 The parties later stipulated that the value of the
billboard was $325,000 and jointly moved to vacate trial on
the issue. The City also did not oppose the entry of judgment in
favor of CBS, but it reserved its right to appeal the
court’s memorandum decision and order and the issue of whether
the City is liable to pay just compensation for the denial of the
permit.
¶12 Thereafter, the district court entered a final order and
judgment, stating that CBS “is entitled to just compensation for
[the] City’s denial of a permit to construct a billboard at 738 W
South Temple.” The court thus entered judgment in favor of CBS
for $325,000, which represented the just compensation. The City
now appeals.
ISSUE AND STANDARD OF REVIEW
¶13 On appeal, the City challenges the district court’s decision
on the City’s motion for summary judgment. Summary judgment
is properly granted “if the moving party shows that there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). “We
review a district court’s legal conclusions and ultimate grant or
denial of summary judgment for correctness.” Cochegrus v.
Herriman City, 2020 UT 14, ¶ 14, 462 P.3d 357 (cleaned up). We
“view[] the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party.” ZB, NA v.
Crapo, 2017 UT 12, ¶ 11, 394 P.3d 338 (cleaned up). Likewise, we
will review “a district court’s interpretation of case law . . . for

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correctness.” Northgate Village Dev. LC v. Orem City, 2018 UT App
89, ¶ 14, 427 P.3d 391 (cleaned up).4
ANALYSIS
¶14 The City advances three main arguments on appeal. First,
the City contends that the district court erred in determining that
Outfront Media, LLC v. Salt Lake City Corp., 2017 UT 74, 416 P.3d
389, resolved the question of whether the Section 511 request
qualified for compensation under Utah Code section 10-9a-513. In
reaching its determination, the district court did not expressly
apply a legal doctrine, but the City surmises that the court applied
the doctrine of issue preclusion. On appeal, CBS does not defend
the application of that doctrine in this case, but it instead contends
that the district court’s decision is defensible based on the
application of the doctrine of stare decisis.
¶15 Second, the City contends that the district court erred on
summary judgment in concluding that the City was estopped
from arguing that the Section 511 request does not qualify for
compensation under Utah Code section 10-9a-513. CBS defends
the court’s decision, invoking the doctrines of equitable estoppel,
judicial estoppel, and claim preclusion. Applying these
alternative theories, CBS asserts that the City cannot now argue
4. CBS suggests that estoppel is a mixed question of law and fact
and that we therefore should give deference to the district court’s
conclusion that “the City was estopped from raising new
arguments.” But “[t]he de novo standard of review of summary
judgment applies regardless of the nature (fact-intensive or not)
of the underlying law governing the parties’ rights.” Bahr v. Imus,
2011 UT 19, ¶ 16, 250 P.3d 56. Thus, even when a case involves
fact-intensive claims, an appellate court will “make its own
decision on the correctness of summary judgment, reviewing the
same paper record that was before the trial court to decide
whether there are genuine issues of material fact and whether the
moving party is entitled to judgment as a matter of law.” Id. ¶ 17.

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(1) that CBS did not meet section 10-9a-513’s spacing requirement
given that CBS and Corner Property “requested a permit for the
same location” and (2) that CBS did not meet section 10-9a-513’s
relocation requirement given that CBS did not have an existing
billboard to relocate.
¶16 Third, the City contends that the district court incorrectly
denied its summary judgment motion, asserting that CBS failed
to meet the statutory requirements as a matter of law.
¶17 For the reasons set forth below, we ultimately conclude
that the district court erred in its summary judgment decision.
Specifically, the court erred in concluding that the Utah Supreme
Court’s decision in Outfront Media considered and resolved the
arguments the City raised in this litigation in response to CBS’s
claim for compensation, and the court erred in concluding, as a
matter of law, that the City is estopped from making those
arguments. We therefore vacate the court’s final judgment and
summary judgment order. But we stop short of weighing in on, in
the first instance, the merits of the City’s statutory arguments, and
we remand for further proceedings.
I.
¶18 The City first argues that the district court erred in
concluding that the Utah Supreme Court held in Outfront Media
that “while the City was allowed to deny [CBS’s] relocation
application, such denial required compensation.” According to
the City, the supreme court did not consider or rule on whether a
section 511 request “qualifies for compensation where more than
one billboard owner requests a permit for essentially the same
location and only one permit may issue” or “where the billboard
owner has no billboard to relocate at the time the section 511
request is submitted.” In contrast, CBS contends that the supreme
court “already ruled” that “the City was permitted to deny
[CBS’s] application as it did, ‘so long as it pays just
compensation.’” (Quoting Outfront Media, LLC v. Salt Lake City

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Corp., 2017 UT 74, ¶ 39, 416 P.3d 389.) We agree with the City that
the district court erred in its reading of Outfront Media.
¶19 In concluding that Outfront Media resolved the issue of
CBS’s entitlement to compensation, the district court did not
analyze the issue through any particular doctrinal lens. The City
suggests that the court applied (albeit wrongfully) the doctrine of
issue preclusion. CBS does not defend the application of issue
preclusion in this appeal,5 but it suggests that the doctrine of stare
decisis provides an alternative basis upon which to affirm the
district court’s decision. We conclude that regardless of which
doctrine we apply, the district court erred in concluding that the
supreme court in Outfront Media considered and resolved the
City’s arguments at issue here.
¶20 First, we are persuaded by the City that to the extent the
district court applied the doctrine of issue preclusion to deny the
City’s summary judgment motion, it did so in error. “Issue
preclusion, which is also known as collateral estoppel, prevents
parties or their privies from relitigating facts and issues in the
second suit that were fully litigated in the first suit.” Oman v. Davis
School Dist., 2008 UT 70, ¶ 28, 194 P.3d 956 (cleaned up). For issue
preclusion to apply, the party invoking the doctrine must
establish four elements: (1) “the party against whom issue
preclusion is asserted must have been a party to or in privity with
a party to the prior adjudication”; (2) “the issue decided in the
prior adjudication must be identical to the one presented in the
instant action”; (3) “the issue in the first action must have been
completely, fully, and fairly litigated”; and (4) “the first suit must
have resulted in a final judgment on the merits.” Id. ¶ 29 (cleaned
up).
¶21 We agree with the City that in opposition to the City’s
summary judgment motion, CBS failed to demonstrate that the
doctrine’s second and third elements are met. In particular, CBS
5. CBS argued for application of the issue preclusion doctrine in
the district court, but it has abandoned that argument on appeal.

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did not show that the supreme court decided the “identical”
arguments presented by the City’s summary judgment motion:
(1) whether a denied section 511 request requires compensation
where the request sought to locate a permit in essentially the same
location requested by another and only one permit may issue and
(2) whether a section 511 request requires compensation where
the billboard owner has no billboard to relocate at the time the
request is submitted.
¶22 Admittedly, section 10-9a-513’s interpretation was “[a]t the
heart of” the supreme court’s opinion in Outfront Media, 2017 UT
74, ¶ 4. Further, it is true that in rejecting CBS’s argument that “the
City must approve a relocation request . . . when a denial would
trigger a right to just compensation under [section 10-9a-513],” id.
¶ 37, the supreme court stated that section 10-9a-513 “expressly
permits the City to deny such requests, so long as it pays just
compensation,” id. ¶ 39. But the court did not address whether
CBS’s billboard in fact qualifies for compensation under section
10-9a-513. See id. ¶¶ 13–15, 37–39. Nor did it address whether a
denied section 511 request requires compensation where two
applicants sought to locate billboards in essentially the same
location or where the billboard owner destroyed its billboard
before filing its permit request. See id. Indeed, the court carefully
set forth the three primary issues in its introduction and analysis,
and because those contested issues did not include questions
about whether CBS was entitled to compensation, see id. ¶¶ 3–5,
13–15, we do not view the supreme court as having deliberately
resolved the issue of whether CBS was entitled to compensation
under the particular circumstances of this case.6
6. Similarly, we do not read Outfront Media as having addressed
the significance of the fact that CBS had demolished its billboard.
The supreme court observed that Corner Property argued CBS
“did not have a billboard to relocate” and that Corner Property’s
position “overlook[ed] the fact that the City invited CBS to
‘modify’ its application.” Outfront Media, 2017 UT 74, ¶ 7 n.2. Yet
(continued…)

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¶23 Second, we are also unpersuaded that the doctrine of stare
decisis compels a different result. Stare decisis operates much the
same way as the doctrine of issue preclusion. Under the doctrine
of stare decisis, “the first decision by a court on a particular
question of law governs later decisions” by the same or lower
courts. See State v. Millward, 2014 UT App 174, ¶ 3, 332 P.3d 400
(cleaned up); see also Eldridge v. Johndrow, 2015 UT 21, ¶ 20 n.3, 345
P.3d 553. Although the reach of stare decisis is broader than that
of issue preclusion,7 both doctrines use the resolution of an issue
in one lawsuit to determine the issue in a subsequent suit.
¶24 “For a decision to become precedent and trigger stare
decisis, it must be . . . a deliberate or solemn decision of a court . . .
made after argument of a question of law fairly arising in a case,”
and the decision must be “necessary” to the court’s
determination. State v. Robertson, 2017 UT 27, ¶ 25, 438 P.3d 491
(cleaned up). This standard is not met here. As explained above,
the supreme court did not decide whether a section 511 applicant
is entitled to compensation where two applicants sought to place
billboards in essentially the same location. See supra ¶¶ 21–22.
the supreme court stated that it was “not decid[ing] whether CBS
was technically entitled to file such a request after taking down its
billboard.” Id. We understand this statement as a deliberate
decision not to resolve the issue, so we will not treat Outfront
Media as having resolved this point. See generally Greyhound Lines,
Inc. v. Utah Transit Auth., 2020 UT App 144, ¶ 50, 477 P.3d 472.
7. “Stare decisis has the broadest application of all the relitigation
doctrines, in the sense that it applies not only to the parties in the
particular case and those in privity with them, but also to
strangers to the litigation.” Ute Indian Tribe v. State of Utah, 935 F.
Supp. 1473, 1509 (D. Utah 1996) (cleaned up); see also Salt Lake
Citizens Cong. v. Mountain States Tel. & Tel. Co., 846 P.2d 1245,
1251–52 (Utah 1992) (explaining that stare decisis instructs that
“[a] rule of law . . . that serves as the major premise of an
adjudicatory syllogism, necessarily governs all subsequent cases
properly falling within the scope of the rule” (emphasis added)).

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Similarly, the court did not decide whether a section 511 applicant
is entitled to compensation where the billboard owner destroyed
its billboard before filing its permit request. See supra ¶¶ 21–22.
Because the supreme court did not decide these questions of law,
stare decisis does not apply.
¶25 In sum, we conclude that the district court incorrectly
interpreted Outfront Media as deciding that CBS was entitled to
compensation under the specific circumstances of this case. We
also conclude that the district court erred to the extent it applied
the doctrine of issue preclusion to find that the doctrine barred the
City from making the statutory arguments raised in its summary
judgment motion. Finally, because the supreme court did not
resolve these legal issues in Outfront Media, we reject CBS’s
argument that the doctrine of stare decisis requires that the
district court’s decision on this point be affirmed.
II.
¶26 The City next challenges the district court’s conclusion on
summary judgment that “the City is estoppe[d] from relying on
new reasons to reject CBS’s relocation application in an effort to
avoid paying just compensation.” Acknowledging that this
decision “did not identify any doctrine or provide any discussion
of how the elements of any doctrine are met,” the City explains
that “[its own] best guess is that the district court intended to
apply the doctrine of equitable estoppel.” For its part, CBS argues
that the doctrines of equitable and judicial estoppel apply to bar
the City’s arguments. Alternatively, although the district court
did not rule on this ground, CBS invites us to affirm the district
court’s ruling based on the doctrine of claim preclusion.
¶27 We agree with the parties that the precise basis for the
district court’s decision is unclear. The court concluded that the
City “is estoppe[d] from relying on” the arguments it advanced in
its summary judgment motion, but the court did not identify by
name or analysis which estoppel doctrine it applied. Bearing in
mind that CBS’s opposition to summary judgment raised both

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equitable estoppel and judicial estoppel, we address both
doctrines and conclude that neither doctrine was established as a
matter of law on this summary judgment record. We also address
and ultimately reject CBS’s argument that the doctrine of claim
preclusion provides a basis to affirm the court’s decision.
¶28 Equitable estoppel has three elements: “first, a statement,
admission, act, or failure to act by one party inconsistent with a
claim later asserted; next, reasonable action or inaction by the
other party taken or not taken on the basis of the first party’s
statement, admission, act or failure to act; and, third, injury to the
second party that would result from allowing the first party to
contradict or repudiate such statement, admission, act, or failure
to act.” ZB, NA v. Crapo, 2017 UT 12, ¶ 27, 394 P.3d 338 (cleaned
up). “Estoppel is usually reserved for extreme cases.”8 Id.
¶29 Judicial estoppel’s elements are “(1) the prior and
subsequent litigation involve the same parties or their privies;
(2) the prior and subsequent litigation involve the same subject
matter; (3) the prior position was successfully maintained; and
(4) the party seeking judicial estoppel has relied upon the prior
testimony and changed his position by reason of it.” Orvis v.
Johnson, 2008 UT 2, ¶ 11, 177 P.3d 600 (cleaned up). Thus, judicial
estoppel requires more “than a mere showing of an inconsistent
statement at a prior judicial proceeding.” Id. ¶ 12.
¶30 CBS would bear the burden of proving either version of
estoppel at trial. See Iota, LLC v. Davco Mgmt. Co., 2012 UT App
218, ¶ 30, 284 P.3d 681 (equitable estoppel); Orvis, 2008 UT 2, ¶¶ 9,
8. The parties agree that equitable estoppel may be applied
against a governmental entity, but the City observes that such
cases have involved “very specific written representations” by the
governmental entity. See generally Monarrez v. Utah Dep’t of
Transp., 2016 UT 10, ¶¶ 35–36, 368 P.3d 846 (“The usual rules of
estoppel do not apply against the government . . . .” (cleaned up));
see also South Weber City v. Cobblestone Resort LLC, 2022 UT App 63,
¶ 27, 511 P.3d 1207.

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13 (judicial estoppel). And in the face of the City’s motion for
summary judgment, CBS had to “show that there is a genuine
issue of material fact or a deficiency with the moving party’s legal
theory that would preclude summary judgment.” See Jones
& Trevor Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 29, 284 P.3d 630.
¶31 On this record, CBS did not establish that equitable
estoppel applied as a matter of law.9 CBS asserts that from 2014 to
2016, “there was no question by the City that the demolished
Billboard could—and did—qualify for compensation” under
section 10-9a-513. CBS thus contends that the City cannot now
argue new reasons that CBS’s billboard does not qualify for
compensation. But CBS’s efforts regarding equitable estoppel fell
short of providing evidence in support of all the essential
elements.
¶32 Among other things, to successfully invoke equitable
estoppel, CBS must show its own “reasonable action or inaction
. . . taken or not taken on the basis of [the City’s position]” and its
own injury “that would result from allowing the [City] to
contradict or repudiate” the earlier position. See Crapo, 2017 UT
12, ¶ 27 (cleaned up). CBS suggests that had “the City ever
informed [it] that its application would not be allowed due to
demolition,” it might have taken the opportunity to “bank and
use its billboard credits” instead of “losing the Billboard
altogether with no compensation whatsoever.” CBS also claims
9. CBS did not file a cross motion for summary judgment arguing
that it could establish equitable (or judicial) estoppel as a matter
of law. Yet, by concluding that the City was estopped from
making the arguments presented in its summary judgment
motion, that is effectively what the court concluded. In other
words, rather than conclude that questions of fact on the issue of
estoppel precluded summary judgment in the City’s favor, the
district court affirmatively concluded that the City was estopped.
And CBS defends that ruling on appeal, arguing that the district
court “correctly ruled that the City’s arguments are barred by
estoppel.”

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that if the City had said that “it would not consider a relocation
application for a demolished billboard, [CBS’s] entire strategy
would have changed” and it would not have spent the “time and
money” litigating earlier.
¶33 These allegations may relate to the reliance and harm
elements of estoppel. But these are just allegations: CBS did not
provide record citations to affidavits or other evidence that might
establish that CBS, in fact, would have taken the opportunity to
bank its credits or would have changed litigation strategies.10 See
generally Utah R. Civ. P. 56(c)(1) (“A party asserting that a fact
cannot be genuinely disputed or is genuinely disputed must
support the assertion by . . . citing to particular parts of materials
in the record, including depositions, documents, . . . affidavits or
declarations . . . ; or . . . showing that the materials cited do not
establish the absence or presence of a genuine dispute.”). Thus,
CBS has not adequately supported these broad suggestions, either
before the district court or on appeal, in a way that would
establish estoppel as a matter of law.
¶34 Similarly, CBS’s attempt to establish judicial estoppel fails
for the same lack of proof. As with equitable estoppel, CBS has to
demonstrate, among other things, that it relied on a position the
City successfully took in the prior litigation. See Orvis, 2008 UT 2,
¶ 11 (requiring a showing that “the party seeking judicial estoppel
has relied upon the prior testimony and changed his position by
reason of it” (cleaned up)). But in opposing the City’s summary
judgment motion, CBS did not make that showing. CBS again
complains that the City’s previous position “led each court to
render [certain] rulings,” but CBS points to no evidence that it
10. CBS further suggests that the earlier tribunals relied on the
City’s position just as much and “no one can guess how any of the
former tribunals would have ruled had the City not promised that
compensation was due” to CBS. But this speculation does not
show any reliance on the part of CBS, as “the other party . . . [to]
the first party’s statement, admission, act or failure to act.” See ZB,
NA v. Crapo, 2017 UT 12, ¶ 27, 394 P.3d 338 (cleaned up).

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relied on a position the City took in earlier litigation and “changed
[its] position by reason of it.” See id. (cleaned up). In the absence
of such a showing, it was error for the district court to conclude
that CBS had established judicial estoppel as a matter of law.
¶35 Finally, CBS invites us to affirm the district court’s ruling
on an alternative ground. CBS argues that although the district
court did not deny the City’s summary judgment motion on the
basis of claim preclusion, “it is available here as a basis for
affirmance.” As CBS sees it, claim preclusion applies because the
same parties were involved in the earlier litigation that resulted
in a final judgment and the arguments the City raised in seeking
summary judgment on CBS’s claim for compensation “could and
should have been raised in the prior proceedings.” See Pierucci v.
Pierucci, 2014 UT App 163, ¶ 7, 331 P.3d 7 (“A claim is precluded
if the parties or their privies have been involved in previous
litigation, the claim that is alleged to be barred was presented in
the first suit or could and should have been raised in the first
action, and the first suit resulted in a final judgment on the
merits.” (cleaned up)).
¶36 The City opposes application of claim preclusion here,
contending that the doctrine is “inapplicable.” It argues that the
basic elements of claim preclusion “cannot be met” because the
City “asserts no claims” in this action and “asserted no claims” in
CBS’s prior actions. See Haik v. Salt Lake City Corp., 2017 UT 14,
¶ 12, 393 P.3d 285 (citing Swainston v. Intermountain Health Care,
Inc., 766 P.2d 1059, 1061 (Utah 1988), for the proposition that “to
determine whether a party is barred from relitigating a matter—
such as a defense to a lawsuit—that has ‘no meaning unless it is
pendent to a claim[,]’ courts apply the law of issue preclusion, not
claim preclusion”).
¶37 CBS does not address this question. Moreover, in arguing
that the elements of claim preclusion are present here, CBS simply
asserts that “[t]he issues now raised by the City could and should
have been raised in the prior litigation,” but CBS engages in no
analysis to prove its point. CBS does not cite or engage with the

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transactional test applied by Utah courts to the question of claim
preclusion, see, e.g., Pioneer Home Owners Ass’n v. TaxHawk Inc.,
2019 UT App 213, ¶ 42, 457 P.3d 393, nor does CBS support its
assertion that the City should have raised defenses to a claim for
compensation where CBS did not seek compensation in previous
tribunals. Because CBS has not addressed these issues, we decline
its invitation to affirm the district court’s ruling on this alternative
ground.
¶38 In sum, we conclude that the district court erred in
determining that estoppel prevented the City from raising its
statutory arguments in its motion for summary judgment. CBS
had not established estoppel—equitable or judicial—as a matter
of law. We also decline to affirm the district court’s denial of
summary judgment on alternative grounds.11
III.
¶39 Finally, the City maintains that it is not required to pay just
compensation and asks that we reverse the district court’s denial
of its motion for summary judgment, vacate the judgment entered
against it, and enter judgment in its favor. The City thus urges us
to reach the merits of its statutory arguments presented in support
of its motion for summary judgment on CBS’s claim for
compensation under Utah Code section 10-9a-513. In particular,
the City argues that CBS is not entitled to compensation, first,
because “two companies requested a permit for the same
location” and, second, because CBS did not have an existing
billboard to relocate when it submitted the Section 511 request.
CBS opposes the City’s request that we reach the merits of these
11. In the district court, CBS also asserted that the City’s statutory
arguments were waived. Because the district court decided that
the City was “estoppe[d]” from raising its arguments, the court
did not analyze this issue. Neither party has raised the issue of
whether waiver precluded the City’s summary judgment
arguments, and we therefore express no opinion on it. Should CBS
invite it, the district court may consider that ground on remand.

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arguments, arguing that the district court should be allowed to
address them in the first instance. Because we are “mindful that
we are a court of review, not of first view,” see Cutter v. Wilkinson,
544 U.S. 709, 718 n.7 (2005), and because we would value the
district court’s analysis, we remand for the district court to
consider the merits of the City’s statutory arguments.
CONCLUSION
¶40 We conclude that the district court misinterpreted Outfront
Media and erred in concluding that the City was estopped from
making the statutory arguments presented in its summary
judgment motion. Accordingly, we vacate the court’s judgment
and order denying the City’s summary judgment motion, and we
remand for further proceedings.