Kodiak America v. Summit County

2021 UT App 47
THE UTAH COURT OF APPEALS
K ODIAK A MERICA LLC AND S TEVE L UCZAK,
Appellees,
v.
S UMMIT C OUNTY ,
Appellant.
Opinion
No. 20200217-CA
Filed April 15, 2021
Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 170908225
Margaret H. Olson, Helen E. Strachan, and
Blaine S. Thomas, Attorneys for Appellant
Jonathan O. Hafen, Robert A. McConnell,
Justin P. Matkin, and Laura G. Kennedy,
Attorneys for Appellees
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and JILL M. POHLMAN concurred.
ORME, Judge:
¶1 	Summit County (the County) seeks interlocutory review
of the district court’s grant of partial summary judgment in favor
of 	Kodiak 	America 	LLC 	and 	its 	principal, 	Steve 	Luczak
(collectively, Kodiak). The court determined that res judicata did
not bar Kodiak’s initiation of the current action, because the
County and Kodiak were not in privity in a prior adjudication.
The County argues that the court’s ruling effectively overruled a
determination made by the prior court when it denied Kodiak’s
motion to intervene on the rationale that Kodiak’s and the
County’s “interests were the same.” The County also argues that
Kodiak “circumvent[ed] established procedure” by initiating the

Kodiak America v. Summit County
20200217-CA 	2 	2021 UT App 47
current 	action 	instead 	of 	directly 	appealing 	the 	prior
adjudication. We disagree on both counts and affirm.
BACKGROUND1
¶2 	Kodiak purchased land in an agricultural subdivision that
preserved certain areas “solely for agricultural and open space
purposes.” Soon after the purchase, Kodiak sought a grading
permit from the County to install a motocross track, which
entailed motorcycle trails and jumps over a substantial portion
of the property. The County granted the permit for personal use
in November 2014.
¶3 	After receiving complaints about the motocross track, the
County issued Kodiak a “Stop Work Notice” in December 2015,
followed by a cease and desist letter and a “Final Land Use
Determination” letter in 2016. In the land use determination
letter, the County explained that “Grading Permits regulate the
excavation of soils, but do not constitute land use permits . . . ,
nor can they be utilized to amend a subdivision plat” and
therefore “they cannot be relied upon to change a ‘use’ of
property.” The County stated that “motocross track and use is
prohibited and constitutes a violation of the [subdivision’s] First
Amended Plat.” Accordingly, the County ordered Kodiak “to
CEASE 	and 	DESIST 	all 	further 	use 	and 	operation 	of 	this
motocross 	track 	immediately 	and 	restore/revegetate 	all
associated areas of disturbance.”
1. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (quotation simplified).

Kodiak America v. Summit County
20200217-CA 	3 	2021 UT App 47
¶4 	Kodiak 	appealed 	the 	land 	use 	determination 	to 	the
Summit County Council (the Council). The Council determined
“that the land use determination . . . is correct and shall be
upheld, 	but 	with 	limitations 	and 	conditions 	that 	recognize
equitable 	bars 	to 	enforcement; 	namely, 	zoning 	estoppel.”
Specifically, the Council ruled that the County was estopped
from “requir[ing] Kodiak to remediate or restore the grading
work completed” after the County issued the grading permit
and from “prohibiting private, personal use of a motocross
course.”
¶5 	In 	August 	2016, 	owners 	of 	a 	neighboring 	parcel
(Neighbors) 	petitioned 	the 	Third 	District 	Court 	in 	Summit
County for review of the Council’s decision (the Johnson case).
Neighbors named the County, but not Kodiak, as a respondent
in the case, and the County defended the Council’s decision. In
February 	2017, 	the 	court 	set 	aside 	the 	Council’s 	decision,
concluding “that the County is not estopped from prohibiting
private, 	personal 	use 	of 	a 	motocross 	course” 	on 	Kodiak’s
property.
¶6 	A little over 90 days later, Kodiak moved for leave to
intervene in the Johnson case, seeking relief from the decision.
Both 	the 	County 	and 	Neighbors 	opposed 	the 	motion. 	The
County argued, in relevant part, that Kodiak’s motion was
untimely and that there were “no grounds for Kodiak’s motion
for relief from the order.” The County further stated that if the
court granted Kodiak’s motion to intervene, “the County shall
then oppose Kodiak’s contemporaneously filed motion for relief
from the Court Ruling.”
¶7 	The 	court 	in 	the 	Johnson 	case 	denied 	the 	motion,
concluding, among other things, that it was untimely and that
the 	County 	had 	adequately 	represented 	Kodiak’s 	interests.
Concerning their interests, the court stated that although they
might 	have 	had 	“different 	motives 	for 	litigating,” 	Kodiak’s
“interests were the same as the County—to have the Council’s

Kodiak America v. Summit County
20200217-CA 	4 	2021 UT App 47
zoning estoppel decision upheld.” And, according to the court,
because Kodiak and the County shared the same interests in the
litigation, “a presumption of adequacy” arose, which the court
found Kodiak had not sufficiently rebutted. Kodiak did not
appeal the denial of its motion to intervene.
¶8 	In February 2017—shortly after the court set aside the
Council’s decision on zoning estoppel but before Kodiak moved
to intervene in the Johnson case—the County issued a “Notice of
Violation” (the NOV) to Kodiak. The NOV alleged that Kodiak
had violated the County’s “Final Land Use Determination,” as
effectively reinstated by the court in the Johnson case, and the
NOV further required Kodiak to “[r]estore and revegetate [the]
motocross track area along with all other areas modified and
disturbed for the purpose of grading [the] motocross track area”
and to post a performance bond. The NOV also informed Kodiak
that it could “dispute the issuance of this notice” by requesting a
hearing with the Office of the Administrative Law Judge. Kodiak
availed itself of that opportunity, and an administrative law
judge (the ALJ) ruled that the district court’s decision in the
Johnson case “stands as the final decision as it relates to [the
NOV].”
¶9 	Kodiak then initiated the present action by petitioning for
review of the ALJ’s decision in the Third District Court in Salt
Lake County, which venue the County admitted was proper.2
2. At the time, according to the County, the judge who decided
the Johnson case was still assigned to the Third District Court in
Summit County. Nonetheless, a judge based in Salt Lake County
was assigned to resolve the action now before us. We are
somewhat perplexed as to how a Summit County administrative
decision came to be the subject of a judicial proceeding in Salt
Lake County. But, as noted, the County did not object to this
venue choice, and it did not seek to have the matter transferred
to the Summit County Department of the Third District Court.

Kodiak America v. Summit County
20200217-CA 	5 	2021 UT App 47
Kodiak 	and 	the 	County 	filed 	cross-motions 	for 	partial
summary 	judgment 	on 	the 	issue 	of 	res 	judicata. 	Kodiak
argued that the ALJ had erred in concluding that it was bound
by the court’s decision in the Johnson case because it “was not a
party 	to 	that 	lawsuit, 	and 	therefore, 	res 	judicata 	has 	no
application.” 	The 	County 	argued 	that 	res 	judicata 	applied
because the court in the Johnson case, in ruling on Kodiak’s
untimely 	motion 	to 	intervene, 	had 	already 	essentially
determined that Kodiak and the County were in privity when it
ruled that the County had adequately represented Kodiak’s
interests in the Johnson case.
¶10 	The 	district 	court 	granted 	partial 	summary judgment
in Kodiak’s favor. It noted that “this Court is not being asked
in the pending motions to overturn [the prior court’s] decision
in the Johnson Case; rather these cross-motions raise the issue
of 	whether 	[the] 	decision 	in 	the 	Johnson 	Case 	is 	binding
on Kodiak as a matter of law.” The court then determined
that 	although 	Kodiak’s 	position 	in 	the 	Johnson 	case 	was
“consistent with the original position of the County,” Kodiak
and the County were nevertheless not in privity because of
the 	adverse 	position 	the 	County 	took 	“while 	the 	Johnson
Case 	was 	still 	pending.” 	Specifically, 	in 	opposing 	Kodiak’s
motion 	to 	intervene, 	the 	County 	asserted 	that 	there 	were
“no grounds for Kodiak’s motion for relief from the order”
and 	that 	it 	would 	oppose 	Kodiak’s 	efforts 	to 	seek 	relief
from the order in the event the court permitted Kodiak to
intervene. Based on the foregoing, the court concluded that
“[t]he County’s adverse position makes clear as a matter of law
that there is no privity between Kodiak and the County” and
that res judicata did not apply to Kodiak in the case now before
us.
¶11 	The County petitioned for permission to appeal from this
interlocutory order. See Utah R. App. P. 5(a). We granted the
petition.

Kodiak America v. Summit County
20200217-CA 	6 	2021 UT App 47
ISSUE AND STANDARD OF REVIEW
¶12 	The County challenges the district court’s grant of partial
summary judgment in Kodiak’s favor. “Summary judgment is
appropriate only when there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of
law.” 	Conder 	v. 	Hunt, 	2000 	UT 	App 	105, 	¶ 	8, 	1 	P.3d 	558
(quotation simplified). See Utah R. Civ. P. 56(a). We therefore
“review 	a 	district 	court’s 	grant 	of 	summary 	judgment 	for
correctness 	and 	afford 	no 	deference 	to 	the 	court’s 	legal
conclusions.” Jones v. Farmers Ins. Exch., 2012 UT 52, ¶ 6, 286 P.3d
301 (quotation simplified). Likewise, we review for correctness a
district court’s ruling on whether res judicata bars an action. Van
Leeuwen v. Bank of Am., 2016 UT App 212, ¶ 6, 387 P.3d 521.
ANALYSIS
I. Res Judicata
¶13 	The County first argues that in ruling that it was not in
privity with Kodiak for purposes of res judicata, the district
court effectively “overrule[d]” the Johnson court, which had
already determined for purposes of adequate representation in
the intervention context that Kodiak’s “interests were the same
as the County—to have the Council’s zoning estoppel decision
upheld.”3 See generally Mascaro v. Davis, 741 P.2d 938, 946 (Utah
3. The County also challenges the district court’s res judicata
analysis on the ground that the court characterized the County’s
opposition to Kodiak’s motion to intervene as occurring “while
the Johnson Case was still pending.” The County argues that
Kodiak’s motion—made in excess of 90 days after the court in
the Johnson case issued its final, appealable order—was not, in
fact, made during the pendency of the Johnson case. While this
point would appear to be well-taken based on the briefing,
(continued…)

Kodiak America v. Summit County
20200217-CA 	7 	2021 UT App 47
1987) 	(“[O]ne 	district 	court 	judge 	cannot 	overrule 	another
district court judge of equal authority.”). Accord Utah Code Ann.
§ 78A-2-226(1) (LexisNexis 2018). We disagree with the County.
¶14 	The doctrine of res judicata comprises claim preclusion
and issue preclusion, both of which “serve the important policy
of preventing previously litigated issues from being relitigated.”
Van Leeuwen v. Bank of Am., 2016 UT App 212, ¶ 7, 387 P.3d 521
(quotation simplified). For either branch to apply, the party
against whom the doctrine is invoked must have been a party to
the prior adjudication or in privity with a party that was. See
Oman v. Davis School Dist., 2008 UT 70, ¶ 29, 194 P.3d 956 (issue
preclusion case); Hansen v. Bank of N.Y. Mellon, 2013 UT App 132,
¶ 5, 303 P.3d 1025 (claim preclusion case).
¶15 	Here, despite Kodiak’s use of 	its property being the
subject of Neighbors’ petition for review, it is undisputed that
Kodiak was not a party to the Johnson case. Accordingly, for res
judicata to bar the current case, Kodiak must have been in
privity with the County in the Johnson case. See Conder v. Hunt,
2000 	UT 	App 	105, 	¶ 12, 	1 	P.3d 	558 	(“One 	who 	is 	denied
intervention is not considered a party to the prior action and
(…continued)
Kodiak 	suggested 	for 	the 	first 	time 	at 	oral 	argument 	that
although the ruling had been entered in the Johnson case, no final
judgment had been entered when the intervention motion was
filed. Thus, Kodiak suggests the Johnson case really was still
pending after all. Because we conclude that Kodiak and the
County were not in privity at the time the court in the Johnson
case entered its order setting aside the Council’s decision, see
infra ¶ 23, we need not address whether, in reaching its decision
on privity for purposes of res judicata, it was proper for the
court to consider the adverse position the County took on
Kodiak’s motion to intervene.

Kodiak America v. Summit County
20200217-CA 	8 	2021 UT App 47
cannot be bound by it unless he or she is in privity with a party
to the prior action who has sufficiently similar interests.”).
¶16 	Although similar in some respects, the determinations of
whether parties are in privity for purposes of res judicata, and
whether one party adequately represents the interests of another
for purposes of a motion to intervene, trigger two distinct
inquiries. In the context of res judicata, “the legal definition of a
person in privity with another is a person so identified in interest
with another that he represents the same legal right.” Press Publ’g,
Ltd. v. Matol Botanical Int’l, Ltd., 2001 UT 106, ¶ 20, 37 P.3d 1121
(emphasis added) (quotation otherwise simplified). “Examples
of parties that have been found to be in privity with one
another—and therefore potentially subject to [res judicata] in a
subsequent 	case—are 	officers 	or 	owners 	of 	a 	closely 	held
corporation, partners, co-conspirators, agents, alter egos or other
parties 	with 	similar 	legal 	interests.” 	Bell 	Canyon 	Acres
Homeowners Ass’n v. McLelland, 2019 UT 17, ¶ 13 n.5, 443 P.3d
1212 	(quotation 	simplified). 	Moreover, Utah 	courts have 	“a
consistent policy of resolving doubts in favor of permitting
parties 	to 	have 	their 	day 	in 	court 	on 	the 	merits 	of 	the
controversy.” Ruffinengo v. Miller, 579 P.2d 342, 344 (Utah 1978).
¶17 	On 	the 	other 	hand, 	when 	moving 	to 	intervene, 	a
would-be intervenor must show, among other things, “that its
interest is not ‘adequately represented by existing parties.’”
Supernova Media, Inc. v. Pia Anderson Dorius Reynard & Moss, LLC,
2013 UT 7, ¶ 22, 297 P.3d 599 (quoting Utah R. Civ. P. 24(a)).
“Adequacy of representation generally turns on whether there is
an 	identity 	or 	divergence 	of 	interest 	between 	the 	potential
intervenor and an original party and on whether that interest is
diligently represented.” Id. ¶ 48 (quotation simplified). It does
not require that the existing party and putative intervenor have
the same legal interest or even the same motive for litigating,
merely that they share the same objective in doing so. See Skypark
Airport Ass’n v. Jensen, 2011 UT App 230, ¶ 5, 262 P.3d 432.

Kodiak America v. Summit County
20200217-CA 	9 	2021 UT App 47
¶18 	Moreover, 	in 	contrast 	to 	evaluating 	privity, 	“a
presumption of adequacy” arises in the intervention context
where the litigation interest of a participating party and the
interest of the would-be intervenor are the same. See Beacham v.
Fritzi Realty Corp., 2006 UT App 35, ¶ 9, 131 P.3d 271. This
presumption places a “minimal” burden on putative intervenors,
id. ¶ 8, of rebutting it by presenting “some evidence of diverging
or adverse interests,” such as “that the representative party has
an interest adverse to the applicant, has colluded with the
opposing party, or is otherwise unable to diligently represent the
applicant’s interest,” Supernova Media, 2013 UT 7, ¶ 49 (quotation
simplified). Thus, even when courts resolve doubts against a
finding of privity for res judicata purposes, they presume in the
intervention context that a party will adequately represent the
interests of a putative intervenor where “[i]t appears, at least
superficially,” that their interests are aligned. See Beacham, 2006
UT App 35, ¶ 10. Compare Ruffinengo, 579 P.2d at 344 (stating that
courts have “a consistent policy of resolving doubts [concerning
privity] in favor of permitting parties to have their day in court
on the merits of the controversy”), with Beacham, 2006 UT App
35, ¶ 9 (discussing the presumption of adequate representation a
putative intervenor must rebut).
¶19 	In sum, the core difference between privity and adequate
representation is that privity requires that the parties have a
relationship that entails their having the same legal right or legal
interest, whereas adequate representation requires only that the
parties share 	an 	interest 	in 	the 	same 	outcome 	of 	litigation
regardless of motivation or their respective legal rights. This
distinction 	becomes 	readily 	apparent 	when 	comparing 	the
application of these two concepts.
¶20 	In Bell Canyon, our Supreme Court held, in relevant part,
that all homeowners subject to the same restrictive covenants
were not in privity with a handful of homeowners who brought
suit seeking to enforce those covenants against four violators.
2019 UT 17, ¶¶ 3, 13 & n.5. The Court stated that “[t]he outsiders

Kodiak America v. Summit County
20200217-CA 	10 	2021 UT App 47
cannot be considered privies of any party joined in this action
simply by virtue of also owning property subject to the same
restrictive covenants” because “[t]he individual property rights
held 	by 	the 	outsiders 	are 	separate 	and 	distinct 	from 	the
individual property rights held by the named parties.” Id. ¶ 13
n.5. Accordingly, the court determined, because
the parties cannot be said to have rights so similar
such that the named parties represent the same
legal rights as the outsiders[,] . . . any of the
outsiders’ rights under the restrictive covenants
may only be determined—and therefore their legal
interests may only be affected—in an action in
which they are joined as parties.
Id. (emphasis in original). Similarly, the Court held in Ruffinengo
that a homeowner who sued a neighbor to enforce restrictive
covenants was not in privity with other homeowners who had
previously and unsuccessfully sued the neighbor to enforce
those same covenants. 579 P.2d at 343–44. Thus, when analyzing
privity, the Court looked to the legal rights the plaintiffs asserted
in each lawsuit that were personal to the plaintiffs rather than
basing its decision only on the fact that the plaintiffs in each case
shared an interest in achieving the same outcome against the
same defendant through litigation.
¶21 	Conversely, in Beacham, an employee sued the owner of
the property on which he was injured while unloading a heavy
object during the course of his employment. 2006 UT App 35,
¶ 2. His employer’s workers’ compensation carrier moved to
intervene in the lawsuit to recover from the property owner
sums it had paid to the employee, which motion the district
court 	denied. 	Id. 	¶¶ 3–4. 	This 	court 	affirmed 	the 	denial,
concluding that the insurer had failed to rebut the presumption
of adequate representation that arose after “[i]t appear[ed], at
least 	superficially, 	that 	[the 	insurer’s] 	interest 	is 	generally
aligned 	with 	that 	of 	the 	[employee] 	because 	both 	seek 	to

Kodiak America v. Summit County
20200217-CA 	11 	2021 UT App 47
maximize the compensation paid from [the property owner].” Id.
¶¶ 10, 13. Unlike in the res judicata privity context, it was
irrelevant 	for 	purposes 	of 	adequate 	representation 	in 	the
intervention 	context 	that 	the 	existing 	party 	and 	would-be
intervenor 	were 	asserting 	distinct 	legal 	rights. 	Rather, 	the
relevant inquiry was whether the existing party and would-be
intervenor both aimed to achieve the same outcome through
litigation.
¶22 	In sum, the court’s determination in the Johnson case
regarding whether the County adequately represented Kodiak’s
interests 	so 	as 	to 	preclude 	intervention, 	and 	the 	court’s
determination in this case as to whether the County and Kodiak
were in privity for purposes of res judicata, represent separate
and distinct inquiries. Thus, the district court in the present case
did not “overrule” the prior court when it determined that the
County and Kodiak were not in privity.
¶23 	Further, in deciding whether the court ruled correctly in
concluding that the County and Kodiak were not in privity with
respect to the Johnson case, we conclude, although on slightly
different grounds, that its ruling was correct. Kodiak and the
County clearly were not defending the same legal right in
opposing 	Neighbors’ 	challenge 	to 	the 	Council’s 	decision.
Kodiak’s legal interest in the Johnson case was that of a property
owner wishing to use its land in a certain manner, whereas the
County’s legal interest was limited to defending the Council’s
decision.4 Accordingly, because “the parties cannot be said to
4. This definitely represented a shift on the County’s part. Prior
to 	the 	Council 	deciding 	that 	zoning 	estoppel 	applied, 	the
County’s legal objective was to enjoin Kodiak from violating
both the subdivision’s First Amended Plat and county ordinance
by 	using 	its 	property 	for 	motocross 	purposes. 	This 	shift
underscores the less direct, more transitory legal interest the
(continued…)

Kodiak America v. Summit County
20200217-CA 	12 	2021 UT App 47
have rights so similar such that the [County] represent[s] the
same legal rights” as Kodiak, see Bell Canyon, 2019 UT 17, ¶ 13 n.5
(emphasis in original), the district court did not err in holding
that the County and Kodiak were not in privity and that res
judicata did not bar Kodiak’s effort to have its day in court
through its initiation of the present case.
II. Procedure
¶24 	The 	County 	also 	argues 	that 	Kodiak 	impermissibly
“circumvent[ed] established procedure” by challenging the NOV
in 	the current proceeding 	instead of directly appealing the
court’s final order in the Johnson case.5 But because “[a] decision
not to permit intervention is not necessarily a reflection on the
merits of the would-be intervenor’s claims,” see Conder v. Hunt,
(…continued)
County had as compared to the direct, unchanging interest of the
affected property owner, Kodiak.
5. The County also argues that it was procedurally inappropriate
for Kodiak to challenge the court’s ruling in the Johnson case in a
subsequent 	administrative 	hearing 	and 	to 	later 	petition 	for
review of the ALJ’s decision to the district court in the present
case. The County contends that “because the ALJ is not an
appeal 	authority” 	and 	“[b]ecause 	the 	Council 	had 	already
determined that Kodiak’s use was illegal and [the court in the
Johnson case] had already determined that the County was not
estopped from enforcing that determination, the ALJ’s review
was limited to ordering and enforcing compliance with county
code.” But this argument falls outside the scope of the present
appeal because the County did not raise this issue in its Petition
for Permission to Appeal Interlocutory Order. Accordingly, we
do not address it. See Houghton v. Department of Health, 2005 UT
63, ¶ 16, 125 P.3d 860 (“On interlocutory appeal, we review only
those specific issues presented in the petition.”).

Kodiak America v. Summit County
20200217-CA 	13 	2021 UT App 47
2000 UT App 105, ¶ 11 n.9, 1 P.3d 558, Kodiak’s appeal in the
Johnson case would have been limited to the court’s denial of its
belated motion to intervene and would not have addressed the
underlying issue of zoning estoppel, see id. ¶ 11 (“While the
denial of a motion to intervene is appealable, it does not finally
determine 	the 	merits 	of 	the 	intervenor’s 	claim.”) 	(citation
omitted).
¶25 	The County insists that Kodiak waived its right to appeal
the court’s decision in the Johnson case by failing to timely
intervene. This argument is likewise unavailing because the
County does not cite any authority imposing a duty to intervene.
Indeed, the opposite appears to be true. See Searle Bros. v. Searle,
588 P.2d 689, 692 (Utah 1978) (“The right to intervene as a party
in the prior suit does not bind the party in the subsequent suit
where he failed to so intervene.”).
CONCLUSION
¶26 	In 	evaluating 	res 	judicata, 	the 	district 	court 	did 	not
overrule the prior court’s ruling in the Johnson case when it
correctly determined that the County and Kodiak were not in
privity with respect to the Johnson case. Accordingly, res judicata
is not a bar to Kodiak’s initiation of the present litigation.
¶27 	Affirmed.