UDOT v. Boggess-Draper Company

2025 UT App 58

THE UTAH COURT OF APPEALS

UTAH DEPARTMENT OF TRANSPORTATION,
Appellee,
v.
BOGGESS-DRAPER COMPANY, LLC,
Appellant.

Opinion
No. 20220875-CA
Filed May 1, 2025

Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 090921179

Robert E. Mansfield and Megan E. Garrett,
Attorneys for Appellant
Derek E. Brown, Stanford E. Purser, Barbara H.
Ochoa, and Andrew Kolter, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and JOHN D. LUTHY
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 In 2009, the Utah Department of Transportation (UDOT)
condemned a portion of a parcel of property owned by Boggess-
Draper Company, LLC (Boggess) for a major project that included
building a new freeway interchange and reconstructing a
roadway. The parties were unable to reach an agreement on the
amount of just compensation and severance damages that
Boggess should receive for the condemnation, and the matter
eventually proceeded to a jury trial to determine damages. After
the trial, the jury awarded Boggess over $1.7 million, which
included compensation for the value of the property taken as well
UDOT v. Boggess-Draper Co.

as severance damages. UDOT appealed, arguing the district court
had improperly excluded evidence that Boggess eventually sold
the remainder property and that the property had since been
developed. The Utah Supreme Court agreed with UDOT and
reversed the verdict and remanded the matter for a new trial. See
Utah Dep’t of Transp. v. Boggess-Draper Co., 2020 UT 35, ¶¶ 1–2, 11,
467 P.3d 840.

¶2 Following a trial on remand, the jury awarded Boggess
approximately $330,000 for the value of the condemned property,
but it determined that Boggess was not entitled to severance
damages on the remaining property. Boggess now appeals this
verdict, asserting the district court abused its discretion when
ruling on the admissibility of evidence relating to (1) the post-
valuation sale and development of the remainder property, (2) the
terms of an offer to purchase the property prior to the taking,
(3) the benefits UDOT’s project provided to the remainder
property, and (4) the project’s influence on the property’s value.
Although most of Boggess’s arguments are not well taken, we
agree with Boggess that the court’s decision to admit evidence
about the benefits the project conferred on the property was based
on a misunderstanding of controlling law. Because the admission
of this evidence was harmful to Boggess, we reverse the verdict
and remand the matter for a new trial.

BACKGROUND

¶3 In 2009, Boggess owned an undeveloped parcel of property
(the Property) at the southwest corner of 11400 South and Lone
Peak Parkway in Draper, Utah. At the time, 11400 South was a
two-lane road that did not connect to the I-15 freeway. Lone Peak
Parkway was one of two commercial frontage roads that
connected the closest neighboring interchanges on I-15 (10600
South and 12300 South). The area around the Property had

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already been developed for commercial use and was occupied by
a Walmart and two car dealerships.

¶4 UDOT sought to acquire a portion of the Property along
11400 South to construct a new I-15 interchange and widen and
extend the existing roadway (the project). UDOT prepared an
appraisal to assess the value of the proposed taking, but
negotiations fell apart when the parties could not agree on the
total value of the taking, which was to include both the value of
the taken property and any severance damage to the remaining
property. Thereafter, UDOT filed an eminent domain action to
condemn the desired portion of the Property. As the litigation
progressed, the parties stipulated that the valuation date for the
Property was December 17, 2009.

¶5 The matter eventually proceeded to a jury trial that took
place in 2018. Utah Dep’t of Transp. v. Boggess-Draper Co., 2020 UT
35, ¶ 5, 467 P.3d 840. Prior to trial, Boggess had filed a motion in
limine asking the district court to exclude evidence that Boggess
had sold the remainder of the Property in 2016 and that the land
had since been developed into two car dealerships. Id. ¶¶ 5–6. The
court had granted the motion based on a perceived “categorical
rule prohibiting evidence of any sale or development of property
after the date of its taking.” Id. ¶ 13. At the close of trial, the jury
awarded Boggess over $1.7 million, which included
compensation for the value of the property taken as well as
severance damages. Id. ¶ 9.

¶6 UDOT appealed, asserting, among other things, that the
district court had erred in granting Boggess’s motion in limine
and categorically barring evidence of the post-valuation sale and
development of the Property. Id. ¶ 11. The Utah Supreme Court
agreed with UDOT. Id. ¶ 2. The court held “that a post-valuation-
date sale or other development is potentially relevant evidence, and
not subject to a categorical bar under the code,” id. ¶ 23, and that
the admissibility of such evidence is governed by the Utah Rules

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of Evidence, including rule 403, id. ¶¶ 18, 25. The court
determined that “[a] post-valuation-date sale or development of
property may be relevant to the extent it aids the factfinder in
checking assumptions about the development potential of the
property in question,” id. ¶ 20, but it also recognized that “such
developments may not be conclusive, as where market conditions
have changed markedly from those expected at the time of the
taking,” id. ¶ 24. The court noted, however, that “[c]oncerns about
unexpected changes in market conditions can be raised and tested
in the crucible of the adversary system—through dueling experts
and otherwise,” id. ¶ 25—because these concerns go “to the
weight of the evidence and not its competency or its relevance,” id.
¶ 27 (quotation simplified).

¶7 After determining the district court had erred in excluding
the post-valuation sale and development evidence, the supreme
court then concluded that the error constituted reversible error.
Id. ¶ 31. It reasoned that the exclusion of the evidence had
“hamstrung” UDOT in presenting any evidence to rebut
Boggess’s claim for severance damages, which was “premised on
the idea that UDOT’s taking diminished access to the remaining
property and increased commuter traffic.” Id. ¶¶ 32–33. The court
accordingly reversed the verdict and remanded the matter for a
new trial. Id. ¶ 2.

¶8 Following a multi-day trial on remand, the jury awarded
Boggess approximately $330,000 for the value of the condemned
property, but it determined that Boggess was not entitled to
severance damages. Boggess contends this verdict—which
represents a roughly $1.4 million reduction from the first
verdict—is attributable to four improper evidentiary rulings
rendered by the district court. We briefly summarize each of the
court’s challenged rulings.

¶9 Evidence of the post-valuation sale and development of
the Property. Boggess filed a pretrial motion in limine seeking to

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again exclude evidence of the 2016 sale and development of the
Property. Boggess argued that this evidence was improper under
rule 403 of the Utah Rules of Evidence because any probative
value was substantially outweighed by a danger of unfair
prejudice, confusing the issues, and misleading the jury. The
district court granted the motion in part, concluding that the sales
price of the Property should be excluded, but it denied the motion
insofar as it concerned evidence of the fact of the sale and
subsequent development of the remainder parcel (the post-
valuation evidence), concluding that such evidence was
admissible.

¶10 Evidence of general benefits to the Property. Boggess
filed a second motion in limine to limit UDOT’s expert’s (Expert)
reports and expected testimony regarding the following three
benefits to the Property conferred by the project: (1) direct access
from I-15 bringing more traffic into the area; (2) an increase from
one to three lanes traveling for right-in/right-out traffic; and
(3) curb, gutter, and sidewalk improvements. Relying on
Hempstead v. Salt Lake City, 90 P. 397 (Utah 1907), Boggess argued
that Expert’s testimony about these benefits should be excluded
because these benefits are “general benefits,” rather than “special
benefits,” and general benefits cannot be used to offset severance
damages. The district court denied this motion in its entirety. The
court reasoned that all three benefits identified by Boggess are
special benefits under Hempstead and that Expert was therefore
not prohibited from testifying about how these benefits had
increased the Property’s value.

¶11 Evidence of a 2008 offer to purchase the Property. During
the rebuttal examination of Mr. Boggess (one of the principals of
Boggess), counsel for Boggess attempted to introduce evidence
about the terms of an offer to purchase the Property that was
received in 2008 (the 2008 offer). Because Mr. Boggess had not
been able to recall that information during his earlier cross-
examination, UDOT objected. Following a sidebar discussion, the

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UDOT v. Boggess-Draper Co.

district court sustained the objection. Mr. Boggess was not
permitted to provide any testimony regarding the terms of the
2008 offer.

¶12 Evidence of project influence. Prior to trial, Boggess
submitted to the district court written objections to UDOT’s
proposed jury instructions. Among other things, Boggess took
issue with UDOT’s “Project Influence” instruction, while also
requesting that the court not send the issue of project influence to
the jury and that the court exclude all “evidence regarding project
influence” from trial. The court did not rule on Boggess’s request,
however, and Boggess did not object to any testimony at trial on
the ground that it implicated the project’s purported influence on
the Property’s value.

ISSUES AND STANDARDS OF REVIEW

¶13 Boggess now appeals, raising four issues for our review.
First, Boggess argues the district court abused its discretion by
admitting the post-valuation evidence. “We review a trial court’s
decision to admit or exclude evidence under rule 403 using an
abuse of discretion standard.” Wakefield v. Gutzman, 2024 UT App
76, ¶ 37, 552 P.3d 206 (quotation simplified), cert. denied, 558 P.3d
85 (Utah 2024).

¶14 Second, Boggess argues the district court abused its
discretion by excluding evidence of the terms of the 2008 offer.
“We review the trial court’s determinations regarding the
admissibility of evidence under an abuse of discretion standard.”
Anderson v. Thompson, 2008 UT App 3, ¶ 25, 176 P.3d 464.

¶15 Third, Boggess argues the district court erred in allowing
Expert to testify regarding benefits to the Property. “We review
for correctness any legal questions underlying the admissibility of
evidence, but we review for abuse of discretion any decisions to

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admit or exclude evidence and determinations regarding the
admissibility of expert testimony.” Metropolitan Water Dist. v. Sorf,
2023 UT App 146, ¶ 28, 542 P.3d 87 (quotation simplified), cert.
denied, 550 P.3d 992 (Utah 2024).

¶16 Fourth, Boggess argues the district court abused its
discretion by allowing testimony regarding project influence. To
the extent this issue was preserved, we review the court’s decision
for an abuse of discretion. See Anderson, 2008 UT App 3, ¶ 25.

ANALYSIS

I. The Post-valuation Evidence

¶17 Boggess argues the district court abused its discretion by
admitting the post-valuation evidence of the 2016 sale and
development of the Property. According to Boggess, the court
should have excluded the post-valuation evidence under rule 403
of the Utah Rules of Evidence because its probative value is
substantially outweighed by other factors.

¶18 Under rule 403, “[t]he court may exclude relevant evidence
if its probative value is substantially outweighed by a danger of
. . . unfair prejudice, confusing the issues, [or] misleading the
jury.” Utah R. Evid. 403. “When engaging in this balancing test,
the court indulges a presumption in favor of admissibility.”
Wakefield v. Gutzman, 2024 UT App 76, ¶ 44, 552 P.3d 206
(quotation simplified), cert. denied, 558 P.3d 85 (Utah 2024). To that
end, the court “must look at the evidence in the light most
favorable to its proponent, maximizing its probative value and
minimizing its prejudicial effect.” Woods v. Zeluff, 2007 UT App
84, ¶ 8, 158 P.3d 552 (quotation simplified). The court “is granted
broad discretion when weighing the probative value of evidence
against the reasons for exclusion enumerated in rule 403,” Glacier
Land Co. v. Claudia Klawe & Assocs., LLC, 2006 UT App 516, ¶ 24,

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UDOT v. Boggess-Draper Co.

154 P.3d 852, cert. denied, 168 P.3d 819 (Utah 2007), and we will not
disturb a court’s decision to admit evidence under this rule unless
the decision is “against the logic of the circumstances and so
arbitrary and unreasonable as to shock one’s sense of justice or
resulted from bias, prejudice, or malice,” Northgate Village Dev., LC
v. City of Orem, 2019 UT 59, ¶ 27, 450 P.3d 1117 (quotation
simplified).

¶19 In its first motion in limine, Boggess moved the district
court to exclude the post-valuation evidence based on its lack of
probative value. In particular, Boggess argued the post-valuation
evidence had little, if any, probative value because the “2016 sale
[and development] occurred several years after the valuation date
[and] in very different market conditions.” Relying on the
rationale of the supreme court in the prior appeal and on rule 403,
the court denied Boggess’s motion, concluding that “the
probative value of such evidence [was] not substantially
outweighed by the danger of unfair prejudice.” The court
reasoned that the post-valuation evidence was “relevan[t] as a
check on earlier assumptions” and that Boggess would have the
opportunity to address its concerns about changed market
conditions at trial in “the crucible of the adversary system—
through dueling experts and otherwise,” (quoting Utah Dep’t of
Transp. v. Boggess-Draper Co., 2020 UT 35, ¶ 25, 467 P.3d 840).

¶20 Boggess argues the district court abused its discretion in so
ruling, because the post-valuation evidence “lacks probative
value, creates unfair prejudice, and misleads [and confuses] the
jury.” Boggess’s arguments are unavailing.

¶21 First, the post-valuation evidence has probative value.
“The probative value of evidence is judged by the strength of the
evidence and its ability to make the existence of a consequential
fact either more or less probable and the proponent’s need for the
evidence.” Anderson-Wallace v. Rusk, 2021 UT App 10, ¶ 19, 482
P.3d 822 (quotation simplified), cert. denied, 496 P.3d 716 (Utah

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UDOT v. Boggess-Draper Co.

2021). Here, the fundamental question presented to the jury was
the amount of just compensation owed to Boggess for the taking.
This amount was to include the fair market value of the taken
property and any resulting severance damages to the remaining
property. As was the case in the first trial, Boggess’s theory of
severance damages was that the taking had diminished access to
the Property and increased traffic, thereby harming the Property’s
potential future development. The post-valuation evidence was
probative as to this issue because it allowed UDOT to rebut
Boggess’s theory by “undermin[ing] [Boggess’s] expressed
concerns about a lack of access to the [P]roperty or other barriers
to development.” Boggess-Draper Co., 2020 UT 35, ¶ 21. And given
that UDOT would have again been “hamstrung” in defending
against this claim without the post-valuation evidence, id. ¶ 33,
UDOT’s need for the evidence was high.

¶22 Boggess pushes back on this conclusion, arguing that even
if the post-valuation evidence has some probative value, such
value is greatly diminished because of the “nearly seven year[]”
time lapse between the 2009 valuation date and the 2016 sale and
the “vastly different economic conditions” that existed as of each
date. While Boggess’s underlying concern is not entirely without
merit, Boggess has not grappled with the fact that this very issue
was addressed by our supreme court in the first appeal. There, the
court made clear that “transactions removed in time from the
valuation date may be probative of the market value on that date.”
Id. ¶ 27. The court went on to explain that “the more remote the
time of the sale the less probative value it may have,” but that this
consideration “goes to the weight of the evidence and not its
competency or its relevance.” Id. (quotation simplified). The district
court was well within its discretion to follow our supreme court’s
guidance and conclude that the changed market concerns did not
wholly eliminate the probative value of the post-valuation
evidence, and that the concerns cited by Boggess should be

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reserved for trial where they could be “raised and tested in the
crucible of the adversary system.” Id. ¶ 25.

¶23 Second, the probative value of the post-valuation evidence
is not substantially outweighed by a danger of unfair prejudice.
“Rule 403 does not guard against the danger of prejudice—it
guards against the danger of unfair prejudice.” State v. McCullar,
2014 UT App 215, ¶ 48, 335 P.3d 900 (emphasis added), cert. denied,
343 P.3d 708 (Utah 2015). Evidence is unfairly prejudicial only if it
“creates an undue tendency to suggest decision on an improper
basis.” Anderson-Wallace, 2021 UT App 10, ¶ 23 (quotation
simplified). Boggess asserts the post-valuation evidence satisfies
this standard because UDOT “used the existence of the sale and
development of the Property to convince the jury” that the 2009
market value should be based on events that occurred in 2016. 1
This argument is unavailing for multiple reasons. As an initial
matter, UDOT did not use the post-valuation evidence in the way
Boggess alleges. As discussed, the post-valuation evidence was
introduced to rebut Boggess’s claim that the taking had
undermined the Property’s potential for future development; it
was not used to establish the specific dollar value of the Property
on the valuation date. So viewed, it was reasonable for the court
to conclude that the post-valuation evidence was not unfairly
prejudicial because it merely provided context to the jury
regarding Boggess’s claim.

¶24 Moreover, though the post-valuation evidence was
undoubtably detrimental to Boggess, there is nothing to indicate
that any unfairly prejudicial aspect of the evidence rises to a level
that would warrant exclusion. See Utah R. Evid. 403 (stating that
evidence may be excluded when the “probative value is

1. In a related vein, Boggess complains it was unfairly prejudiced
by photographs introduced by UDOT showing the Property after
it had been “substantially developed.” This argument fails for the
same reasons as Boggess’s general unfair prejudice argument.

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UDOT v. Boggess-Draper Co.

substantially outweighed by a danger of . . . unfair prejudice”
(emphasis added)). “Where evidence is undeniably probative of
the central issue in a case, the danger of unfair prejudice
substantially outweighing the probative value of the evidence is
low.” Anderson-Wallace, 2021 UT App 10, ¶ 24. Admission of the
post-valuation evidence was critical to UDOT’s defense against
Boggess’s theory of damages, and the evidence is not of such a
type as could “cause the jury to base its decision on something
other than the established propositions of the case,” id. ¶ 23
(quotation simplified).

¶25 Third, the probative value of the post-valuation evidence
is not substantially outweighed by a danger of misleading the jury
or confusing the issues. After reviewing Boggess’s motion in
limine, the district court determined that evidence of the 2016
sales price would mislead the jury by “anchor[ing]” the jury to
that number as the amount of “intrinsically just compensation.”
And the court found that, even more importantly, admission of
the 2016 sales price would likely cause confusion by spurring “a
trial within a trial in which both sides vigorously debate an issue
that is largely irrelevant to the main question the jury must
decide.” But the court did not share the same level of concern
regarding the other aspects of the post-valuation evidence. The
court was comfortable that Boggess would be able to “adequately
address all of its concerns” related to the time lapse and the
changed market conditions through expert testimony at trial. See
Boggess-Draper Co., 2020 UT 35, ¶ 25. Given the court’s broad
discretion to make this type of evidentiary ruling, we cannot say
that this determination was an abuse of discretion. See Northgate
Village, 2019 UT 59, ¶ 27.

¶26 For the foregoing reasons, the district court did not abuse
its discretion in admitting the post-valuation evidence.

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UDOT v. Boggess-Draper Co.

II. Evidence of the Terms of the 2008 Offer

¶27 Boggess next argues the district court abused its discretion
by excluding testimony from Mr. Boggess regarding the specific
terms of the 2008 offer to purchase the Property. Boggess asserts
that this evidence was “relevant to the value of the property,” see
generally Utah R. Evid. 401, and that the court therefore abused its
discretion when it “refused to hear the testimony and provided
no grounds for its decision to exclude such testimony.” For its
part, UDOT does not contest the relevance of the 2008 offer and
instead challenges Boggess’s framing of the argument.
Specifically, UDOT contends the court properly excluded the
challenged evidence because Boggess attempted to introduce it
during Mr. Boggess’s rebuttal testimony and it was not proper
rebuttal evidence.

¶28 To begin, we disagree with Boggess’s assertion that the
district court sustained the objection to Mr. Boggess’s testimony
about the terms of the 2008 offer “with no justification.” On the
first day of trial, UDOT cross-examined Mr. Boggess about his
attempts to market and sell the Property prior to the valuation
date. Mr. Boggess testified that in 2008 he had received an offer
on the Property from a developer. When pressed on the specifics
of the offer—namely, “how much” the offer was for—Mr. Boggess
responded, “I don’t remember off hand.” Then, on the fourth day
of trial, Mr. Boggess was called back to the stand for rebuttal
examination. Boggess’s counsel asked Mr. Boggess about the 2008
offer, and the following exchange took place:

[Boggess’s counsel]: When was that offer?

[Mr. Boggess]: It was in 2008.

[Boggess’s counsel]: What was that offer for?

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[UDOT’s counsel]: Objection, your Honor, can we
approach[?]

....

(Discussion at the bench)

....

[Boggess’s counsel]: Your prior ruling was that if we
could lay foundation that the offer was made in 2007
or 2008 that the price was fair game, and he just said
that this offer was made in 2008, so I believe that the
price is fair game. . . .

[The Court]: What are you saying—what are you
saying (inaudible) exactly?

[UDOT’s counsel]: He couldn’t remember.

[The Court]: Yeah, we’re not doing that. We’re not
doing that. Go ahead.

Viewed in context, this exchange clearly illustrates that the court’s
decision to exclude Mr. Boggess’s testimony about the amount of
the 2008 offer was based on the fact that Boggess was attempting
to introduce evidence for the first time during its rebuttal case—
evidence that Mr. Boggess had been unable to recall during his
earlier cross-examination. In other words, the court’s decision to
prevent that testimony from coming in was not based on an
unarticulated determination that the content of Mr. Boggess’s
testimony was not relevant; rather, it was based on the timing and
procedural posture in which the evidence was introduced.

¶29 Having identified the basis for the district court’s decision,
we next examine whether the excluded testimony “was proper
rebuttal” evidence. Astill v. Clark, 956 P.2d 1081, 1086 (Utah Ct.

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App. 1998). “Rebuttal evidence is evidence tending to refute,
modify, explain, or otherwise minimize or nullify the effect of the
opponent’s evidence.” Randle v. Allen, 862 P.2d 1329, 1338 (Utah
1993). “The purpose of rebuttal evidence is not to merely
contradict or corroborate evidence already presented, but to
respond to new points or evidence first introduced by the
opposing party.” Astill, 956 P.2d at 1086. Thus, “[r]ebuttal
evidence should be limited to evidence made necessary by the
opponent’s case-in-reply and evidence required to counter new
facts presented in the defendant’s case-in-chief.” Id. (citation
omitted).

¶30 Mr. Boggess’s excluded rebuttal testimony does not satisfy
this standard. Mr. Boggess’s testimony about the terms of the 2008
offer was not offered to rebut evidence presented by UDOT.
Rather, the testimony was merely an attempt to allow Boggess to
remedy the shortcoming of the testimony offered during its case-
in-chief by presenting new evidence that was potentially favorable
to Boggess’s case. We therefore conclude the court did not abuse
its discretion in excluding the testimony as improper rebuttal
evidence. 2

2. In reaching this conclusion, we are not rendering judgment as
to whether the district court would have exceeded its discretion
had Boggess tried to introduce the terms of the 2008 offer during
its case-in-chief. In other words, our decision does not hinge on
whether the evidence is otherwise admissible under our rules of
evidence. And given that the court allowed the jury to hear the
terms of the 2008 offer in the first trial, it is likely that Boggess
would have been successful in its attempt to introduce the
evidence had the attempt been made during a procedurally
appropriate time.

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III. Evidence Regarding Benefits to the Property

¶31 Boggess argues the district court should have excluded
evidence from Expert regarding general benefits to the Property
arising from the project because evidence of general benefits
cannot be considered when determining severance damages.
Relying on Hempstead v. Salt Lake City, 90 P. 397 (Utah 1907),
Boggess contends the court erred in classifying three general
benefits as special benefits when denying Boggess’s motion in
limine: (1) the direct access from I-15 bringing more traffic into the
area; (2) the increase from one to three lanes traveling for right-
in/right-out traffic; and (3) the curb, gutter, and sidewalk
improvements. We begin by discussing Utah law as it relates to
general and special benefits. We then examine whether the court
erred in classifying these particular benefits at issue as special
benefits.

¶32 In Hempstead, the Utah Supreme Court first recognized the
rule that some benefits arising from a taking may be so general
that they cannot be fairly used to offset damages caused by that
taking. See id. at 401. There, the plaintiff filed a claim against Salt
Lake City for damages to his property caused by improvements
to the street fronting his property. Id. at 398. The jury was
instructed to award the plaintiff damages for “the difference
between the market value of the property . . . as it was
immediately before and after the improvement.” Id. at 400. In
arriving at the after-improvement amount, the jury was told “to
exclude any general benefits derived from the improvement
which were common to the general public,” but to include any
“special ‘or peculiar’ benefits.” Id.

¶33 On appeal the city complained the district court had not
properly informed the jury what benefits could be considered in
awarding the plaintiff damages. Id. In particular, the city asserted
the jury should have been instructed to consider whether the
street improvements had “increas[ed] the travel” on the street

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adjacent to the property or had “establish[ed] or enabl[ed]
improvements in the vicinity” of the property. Id. The supreme
court disagreed. First, the court affirmed that general benefits may
not be used to offset damages to a landowner. See id. The court
held that “the benefits which may be taken into consideration for
the purpose of reducing the damages to be awarded to the
landowner are such as are direct and special as to him and his
land,” and that such benefits must be “something which affects the
land itself directly and proximately.” Id. (emphasis added)
(quotation simplified). The court further explained that a special
benefit must “increase[] the actual or usable value of the land”
and not “increase[] merely the market or salable value alone.” Id.
(quotation simplified). In contrast, general benefits are those
which “aris[e] incidentally out of the improvement and [are]
enjoyed by the public generally.”3 Id. at 401. Because general
benefits are “speculative and remote,” they are “too uncertain to
be the subject of legal offset.” Id.

¶34 Based on the foregoing principles, the supreme court
concluded that the district court had properly refused to instruct
the jury as requested by the city since the instruction “was not
confined to special benefits accruing to the particular property in
question.” Id. The court reasoned that “[i]ncreased value founded
upon merely increased facilities for travel and transportation by
the public in general is not the kind of increased value which may

3. The supreme court acknowledged that in some instances,
“benefits may be special which are in a sense likewise general,”
citing as an example a case where an “improvement made a large
share or all of the property abutting thereon more accessible and
convenient for use.” Hempstead v. Salt Lake City, 90 P. 397, 401
(Utah 1907) (emphasis added). But the court made clear that in
such a case, special benefits would not “cease to be special simply
because they were enjoyed by several or a large number of
property owners in common.” Id.

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be taken into consideration in reducing the damages to be
awarded to the landowner.” Id. at 400 (quotation simplified).
Moreover, this type of increased value “is common to the whole
community in general” and “it has no relation to the use of the land
as land, but it is merely an increased market value founded upon
the extraneous circumstances of increased facilities for public
travel and transportation.” Id. at 401 (emphasis added) (quotation
simplified).

¶35 In sum, only special benefits may be used to offset
severance damages. A special benefit is one that makes a direct,
physical difference to the use of the particular parcel of land. In
other words, the landowner of the property that is taken should
not be deprived of a benefit conferred on landowners generally
through the installation of a public development by having the
value of that general benefit deducted from its award of severance
damages. Further, there is no bright-line rule dictating that an
improvement qualifies as a general benefit—rather than a special
benefit—based merely upon the number of properties that are
benefitted. Instead, the inquiry is whether the improvement made
the actual parcel of land, or any part “abutting thereon,” “more
accessible or convenient for use.” Id.

¶36 With this legal background in mind, we next analyze the
district court’s determination that the benefits identified in
Boggess’s motion in limine—namely, direct interstate access
increasing traffic; increased lanes of travel; and the curb, gutter,
and sidewalk improvements—are special benefits. 4

4. UDOT contends that “Utah law has abandoned the
special/general benefits distinction” and, therefore, that any error
in classifying the benefits does not warrant reversal. In support of
this argument, UDOT notes that the statute governing
compensation in partial takings cases does not distinguish
(continued…)

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UDOT v. Boggess-Draper Co.

¶37 First, direct interstate access increasing traffic is a general
benefit. In reaching the opposite conclusion, the district court
adopted a position directly at odds with our supreme court’s
decision in Hempstead, wherein the court held that a special benefit
must be “something which affects the land itself directly and
proximately.” Id. at 400 (emphasis added) (quotation simplified).
And, applying that reasoning, the supreme court specifically
determined that “merely increased facilities for travel and
transportation by the public in general” do not qualify as a special
benefit because any increase in value from such improvements
“has no relation to the use of the land as land.” Id. at 400–01
(quotation simplified). So too here. Any increase in value derived
from direct interstate access increasing traffic is founded upon
something that “increases merely the market or salable value”
without “affect[ing] the [Boggess] land itself directly.” Id. at 400
(quotation simplified).

¶38 Second, the increase from one to three lanes is a general
benefit. The district court’s analysis of this benefit was largely the
same as its analysis regarding direct interstate access increasing
traffic. Thus, the court’s ruling on this point is likewise infirm for
the reasons identified above. That is, “merely increased facilities
for travel and transportation by the public in general” do not

between “special” and “general” benefits when explaining how to
calculate just compensation. See Utah Code § 78B-6-511(1)(a), (b),
(d). Although UDOT is correct, it does not follow that the lack of
such distinctions in the statute constitutes an abandonment of
Hempstead. For this same reason, UDOT’s contention that our
supreme court’s failure to discuss “special” and “general”
benefits in a recent case where the court interpreted Utah Code
section 78B-6-511 amounted to the court “eliminat[ing] the special
versus general benefits distinction” is unavailing. See Utah Dep’t
of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶¶ 31–33, 275 P.3d
208.

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UDOT v. Boggess-Draper Co.

qualify as a special benefit because any increased value resulting
from such improvements is not “founded upon something which
affects the land itself directly and proximately.” Id. (quotation
simplified).

¶39 Third, the curb, gutter, and sidewalk improvements are a
special benefit. Unlike the first two benefits, the curb, gutter, and
sidewalk improvements “increase[d] the actual or usable value of
the land, as well as the market or salable value thereof.” Id.
(emphasis added) (quotation simplified). The improvements
“affect[ed] the land itself directly and proximately” by making “a
large share or all of the property abutting thereon more accessible
and convenient for use.” Id. at 400–01 (emphasis added)
(quotation simplified). The district court therefore correctly
determined that the curb, gutter, and sidewalk improvements are
a special benefit. 5

5. Boggess contends the curb, gutter, and sidewalk improvements
are a general benefit because “this infrastructure already existed
on portions of the Property prior to the” project, and “benefits that
are of the same kind but vary in degree do not constitute special
benefits.” This argument is unavailing because Boggess misreads
the case upon which it relies for support.
In United States v. 930.65 Acres of Land in Jefferson County,
299 F. Supp. 673 (D. Kan. 1968), an area of land was taken to create
a reservoir. Id. at 675–76. In analyzing the amount of
compensation owed, the court had to consider whether an
increase in the property’s value caused by a view of the reservoir
was a special or general benefit. Id. at 678. The court recognized
that although all tracts of land in the area had a view of the new
reservoir, some of the tracts had “a better view than others.” Id.
Despite these differences “in degree” of the benefit conferred, the
court concluded that the view was a general benefit because it
“was of the same kind” for all the properties. Id. Thus, contrary to
(continued…)

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UDOT v. Boggess-Draper Co.

¶40 Having determined the district court incorrectly classified
the direct interstate access increasing traffic and the increased
travel lanes as special benefits, we next consider whether the
court’s error was harmful. An error is harmful if, “absent the
error, there is a reasonable likelihood of a more favorable outcome
for the appellant, or phrased differently, our confidence in the
verdict is undermined.” State v. Powell, 2007 UT 9, ¶ 21, 154 P.3d
788 (quotation simplified).

¶41 Here, we have no trouble concluding that Boggess was
harmed by the district court’s error. By classifying all the benefits
as special as a matter of law, the court allowed evidence that was
legally incorrect and crippling to Boggess’s ability to recover
severance damages. Expert testified that the project had
“significantly” benefitted the Property because the price per
square foot of the Property in the “before condition” ($8.75) was
less than the price per square foot in the “after condition” ($12.50).
He attributed the nearly four dollar per square foot increase to
“the advantage of the interchange, and the traffic exposure,” and
concluded that the difference between these figures demonstrated
that the Property had received “a special benefit of 2.2 million
dollars” from the project. By defining the interstate access
increasing traffic as a special benefit, Expert improperly inflated

Boggess’s assertion, the court’s distinction between general and
special benefits did not turn on whether the benefit improved
something that existed on the property prior to the taking. Rather,
the relevant inquiry was whether the improvement benefited the
property in a kind of way different from that in which it benefitted
other properties. See id. (“[A] special benefit is to be differentiated
from general benefits where the difference is in kind and not in
degree.”). Boggess’s suggestion to classify the increased
infrastructure as a general benefit because the same type of
infrastructure already existed in some degree on parts of the
Property prior to the project is unpersuasive.

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UDOT v. Boggess-Draper Co.

the Property’s after-condition valuation, which created a sizeable
$2.2 million offset. Without the inclusion of the general benefits,
the offset would have been significantly lower, thereby creating a
reasonable likelihood that Boggess would have been awarded
severance damages. This error is accordingly reversible. See State
v. Hamilton, 827 P.2d 232, 240 (Utah 1992).

IV. Evidence of Project Influence

¶42 Boggess argues the district court abused its discretion by
allowing UDOT to introduce evidence regarding the project’s
influence on the Property’s pre-project value because such
evidence violated the project-influence rule. See Utah Dep’t of
Transp. v. LEJ Invs. LLC, 2018 UT App 213, ¶ 10, 437 P.3d 569
(stating that the project-influence rule requires “any enhancement
or decrease in value attributable to the purpose for which the
property is being condemned [to] be excluded in determining the
fair market value of the property” (quotation simplified)); accord
Redevelopment Agency of Salt Lake City v. Grutter, 734 P.2d 434, 437
(Utah 1986). UDOT contends that we need not reach the merits of
this issue, however, because Boggess failed to preserve it for our
review. We agree with UDOT.

¶43 “An issue is preserved for appeal when it has been
presented to the district court in such a way that the court has an
opportunity to rule on it.” State v. Rogers, 2020 UT App 78, ¶ 20,
467 P.3d 880 (quotation simplified), cert. denied, 470 P.3d 445 (Utah
2020). To afford the district court this opportunity, “a party
asserting error on appeal must have raised the issue before the
district court specifically, in a timely manner, and with support
by evidence and relevant legal authority.” Knowles v. Knowles,
2022 UT App 47, ¶ 27, 509 P.3d 265 (quotation simplified), cert.
denied, 525 P.3d 1258 (Utah 2022). Raising an issue in this manner
“puts the trial judge on notice of the asserted error and allows for
correction at that time in the course of the proceeding.” 438 Main
St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801.

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UDOT v. Boggess-Draper Co.

¶44 In January 2022, nearly eight months before the start of
trial, Boggess submitted to the district court written objections to
UDOT’s proposed jury instructions. These objections included an
objection to UDOT’s “Project Influence” instruction that raised
substantively the same issue as the project-influence issue
Boggess now raises on appeal, and also asked the court to not
send the issue of project influence to the jury and to exclude all
“evidence regarding project influence” from trial. Boggess
contends this objection was sufficient to satisfy its preservation
duty because it “included substantial evidence and legal authority
on the project influence issue,” and the court “had ample time to
rule on the issue” before trial. 6

¶45 But even crediting Boggess’s position on the content and
timing of the objection, this is not sufficient to discharge Boggess’s
preservation duty to “timely” raise the issue to “a level of
consciousness such that the trial judge can consider it.” In re Baby
Girl T., 2012 UT 78, ¶ 34, 298 P.3d 1251 (quotation simplified).
Because Boggess’s requests to exclude evidence of project
influence—which for all practical purposes amounted to a motion
in limine—were labeled as a mere objection to a jury instruction,
the court had no reason to review the specific objection until the
end of trial when all the instructions had to be finalized. And at
that point, it was too late for the court to exclude the challenged
evidence given that it had already been presented during trial.
Moreover, Boggess made no effort to lodge a real-time objection

6. In its opening brief, Boggess provides two additional citations
to the record where it claims the issue of project influence was
preserved. But neither of those citations support Boggess’s
position because they do not address project influence in any
manner. The first citation is to a hearsay objection Boggess lodged
during a witness’s trial testimony. And the second citation is to
Boggess’s motion in limine seeking to exclude evidence from
Expert about general benefits.

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UDOT v. Boggess-Draper Co.

to any project influence testimony during trial on the grounds it
now raises on appeal despite knowing the court had not ruled on
Boggess’s earlier jury instruction objections. Given that the court
was clearly not aware of the issue during trial and therefore did
not have the opportunity to rule on it, we conclude that Boggess
has not preserved the issue and cannot now ask us to review it on
appeal.

CONCLUSION

¶46 The district court’s rulings allowing the post-valuation
evidence and excluding the terms of the 2008 offer were within
the bounds of its discretion, and we therefore affirm them. And
because Boggess failed to preserve the issue of project influence,
we will not consider its argument regarding the admissibility of
such evidence.

¶47 However, the district court misinterpreted the law
regarding special and general benefits. As a result, the court erred
when it denied Boggess’s motion in limine and allowed evidence
regarding general benefits. Because this error was harmful to
Boggess, we reverse the verdict and remand the matter to the
district court for a new trial.

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