3 Dimensional Contractors v. Utah Associated

2024 UT App 35

THE UTAH COURT OF APPEALS

UTAH ASSOCIATED MUNICIPAL POWER SYSTEMS,
Appellee,
v.
3 DIMENSIONAL CONTRACTORS INC.
AND BENZER DEVELOPMENT SOLUTIONS LLC,
Appellants.

Opinion
No. 20210935-CA
Filed March 21, 2024

Fifth District Court, St. George Department
The Honorable Eric A. Ludlow
No. 180500577

Lewis P. Reece and Devon J. Herrmann,
Attorneys for Appellants
James K. Tracy, J. Jacob Gorringe, and Hyrum J.
Bosserman, Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1 During development of a residential subdivision, the city
and the developers each made a critical mistake: the city platted a
public street directly on top of existing structures, including a
support pole, erected by Utah Associated Municipal Power
Systems (UAMPS), and the developers (3 Dimensional
Contractors, Inc. and Benzer Development Solutions, LLC
(collectively, Benzer)) constructed a house partially inside the
boundaries of UAMPS’s easement for support pole guy wires.
After efforts to solve the problems failed, UAMPS and Benzer
sued each other, with Benzer seeking (among other things) an
order requiring UAMPS to remove the support pole from the
Utah Associated Mun. Power Sys. v. 3 Dimensional Contractors

roadway, and UAMPS seeking (among other things) an order
requiring Benzer to remove the house from its easement. In one of
its claims, Benzer invoked a Utah statute that it claimed gave it
the right to realign the easement, at its expense, and thereby
relocate the guy wires away from the encroaching house.

¶2 While the litigation was ongoing, UAMPS voluntarily
removed the support pole from the roadway. But the dispute over
the house remained, and boiled down to whether Benzer had the
statutory right to realign the easement. Eventually, in a series of
rulings, the district court dismissed Benzer’s realignment claim,
concluding that Benzer had the burden of demonstrating the
feasibility of realignment and that Benzer could not meet that
burden because the court excluded its expert witnesses from
testifying. After dismissing Benzer’s realignment claim, the court
entered judgment in UAMPS’s favor on its affirmative claims, and
it ordered Benzer to “remove” from UAMPS’s easement “any
portions of” the house “that currently encroach on” the easement.

¶3 Benzer now appeals, challenging (among other things) the
court’s interpretation of the relevant statute and its decision to
exclude Benzer’s experts. We agree with the court’s interpretation
of the statute, but we agree with Benzer that the court erroneously
excluded Benzer’s experts. We therefore reverse the court’s ruling
on that point, vacate in part the court’s dismissal of Benzer’s
counterclaim, and remand the case for further proceedings.

BACKGROUND

¶4 UAMPS is “a full-service interlocal agency” that was
created to provide “comprehensive wholesale electric energy
services, on a non-profit basis, to community-owned power
systems throughout the Intermountain West.” See UAMPS Smart
Energy, www.uamps.com [https://perma.cc/B9PM-B5SC].
UAMPS is a political subdivision of the state of Utah whose
individual members are all public agencies, mostly cities and

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towns but also water conservancy districts, utility districts, and
other similar entities. See UAMPS Members, UAMPS,
www.uamps.com/members [https://perma.cc/3BWG-B7JW]; see
also Utah Associated Mun. Power Sys. v. Public Service Comm’n of
Utah, 789 P.2d 298, 299 (Utah 1990) (“UAMPS is comprised of
cities, towns, and local public agencies . . . whose aim is to
construct [electric energy] generating and transmission facilities
for their mutual use.”).

¶5 As relevant here, UAMPS has, since 1996, possessed “an
express right-of-way easement in perpetuity over certain real
property in Washington County, Utah” (the Easement). UAMPS
obtained the Easement by condemning the affected property
rights through exercise of its eminent domain authority.
Thereafter, UAMPS installed various electric-energy-related
structures on the Easement, including the structures at issue in
this case. In recent years, Benzer—a real estate development
group—has been engaged in residential development in
Washington County, and the Easement runs through one of
Benzer’s projects known as “Zion’s Gate Estates.”

¶6 Under the terms of the Easement, UAMPS—as the
dominant estate holder—is allowed to construct, operate, and
place within the Easement “electric systems” and
“communication systems” along with equipment “necessary
and/or convenient for such operations.” The Easement generally
allows Benzer—as the servient estate holder—“the right to fully
use the surface of” the Easement as long as Benzer’s use “does not
interfere with” UAMPS’s use, but the Easement contains one
crucial specific limitation on Benzer’s use: Benzer may not “erect[]
buildings and/or structures within” the Easement. Indeed, the
Easement grants UAMPS authority to “clear the [E]asement of all
structure[s], obstructions, and/or other objects” to the extent that
those structures “interfere with or threaten to endanger the
operation or maintenance of” UAMPS’s systems.

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Construction at Zion’s Gate Estates

¶7 In or about 2017, the Zion’s Gate Estates subdivision was
platted by Hurricane City. A mistake was apparently made
during the platting process, because the plat map dedicated a
public street right on top of certain UAMPS structures; as relevant
here, the plat map showed a UAMPS support pole (the Guy Pole)
located right in the middle of a street. Later, UAMPS and
Hurricane City discovered the problem and began discussing
ways to solve it.

¶8 In the meantime, in the summer of 2018 Benzer began
construction of a house on Lot 55 of the Zion’s Gate Estates
development. A portion of Lot 55 is subject to the Easement, and
UAMPS had already placed guy wires 1 there that were used to
support a nearby power pole. These guy wires are obvious and
visible to any observer, and Benzer was fully aware of their
existence prior to beginning any construction on Lot 55. At the
time, documents setting forth the scope of the Easement (the
Easement Documents) were on file with the Washington County
Recorder’s Office, although Benzer apparently did not obtain a
copy of the Easement Documents prior to starting construction.
However, Benzer had received—prior to starting construction—a
title insurance commitment that identified the Easement and
indicated that UAMPS had the right to construct, operate, and
maintain equipment that may run “over, under and across a
portion of” Lot 55.

1. A “guy wire” is “a tensioned cable designed to add
stability to a free-standing structure” and can “be found
supporting radio masts, wind turbines,” and “utility poles.”
Anchor Products Guide to Guy Wires, Anchor Products,
https://www.anchorp.com/anchor-products-guide-to-guy-wires
[https://perma.cc/S2PY-G5NJ].

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¶9 Notwithstanding the visible guy wires and its knowledge
of the existence of the Easement, Benzer elected to proceed with
construction of a house on Lot 55 that encroaches on the
boundaries of the Easement; one exterior wall of the house is
located only inches from the guy wires. This positioning of the
house was apparently strategic on Benzer’s part, because it
allowed for the inclusion of an additional parking stall on the side
of the lot opposite from the guy wires, a factor Benzer thought
would make the lot more desirable for potential buyers.

¶10 Not long after Benzer began construction on Lot 55, an
employee of the Hurricane City power department drove through
Zion’s Gate Estates and noticed that the house being constructed
on Lot 55 was in extremely close proximity to the UAMPS guy
wires. Fearing that this might interfere with the Easement, a
different Hurricane City employee (Employee) called Benzer’s
manager (Manager) to discuss the issue. In response, Benzer
temporarily halted construction on Lot 55. Over the next few
weeks, a series of communications ensued, and in one message,
Employee told Manager that, as he understood the matter,
UAMPS was having difficulty locating an actual copy of the
Easement Documents and therefore UAMPS was not, at that time,
making any attempt to force Benzer to halt construction. But
Employee indicated that UAMPS personnel would be meeting
soon to discuss the issue and decide how UAMPS wished to
proceed. Benzer did not wait to hear what UAMPS had decided
and, without further ado, recommenced construction of the house
on Lot 55, making no adjustments to its positioning.

¶11 In September 2018, UAMPS sent Benzer a demand letter,
telling Benzer that it was indeed encroaching on the Easement and
demanding that Benzer either (a) move the house on Lot 55 or
(b) pay to have the existing power pole and guy wires replaced
“with a standalone pole without a guy wire.” UAMPS estimated
that installing a standalone pole would cost approximately
$105,500, not including labor. Following receipt of the letter,

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Benzer did not agree to either option: it refused to move the house,
and it refused to pay the costs of installing a standalone pole.
Instead, Benzer continued with its development plans and
proceeded to complete construction of the house on Lot 55.

The Litigation

¶12 Some months later, in December 2018, UAMPS initiated
this lawsuit by suing Benzer. 2 Its chief requests were for a judicial
declaration that Benzer was violating the Easement and for an
injunction commanding Benzer to remove or re-situate the house
on Lot 55 so that it would no longer encroach on the Easement.
UAMPS also asserted trespass and nuisance claims against Benzer
and, in connection with those claims, sought as alternative
remedies both an injunction and damages.

¶13 Benzer answered UAMPS’s complaint, and included
several affirmative defenses, including an assertion that it had
“the affirmative right to realign” UAMPS’s “guy wire easement”
pursuant to a Utah statute (the Realignment Statute). See Utah
Code § 10-8-14.5. Later, Benzer amended its answer to include a
counterclaim, which in its first iteration included damages claims
for trespass and civil conspiracy but, as later amended, included
only two non-damages claims against UAMPS. First, Benzer
complained about the Guy Pole being located in the middle of a
platted public street, and it asked for declaratory and injunctive
relief requiring UAMPS to move the Guy Pole. Second, Benzer

2. This lawsuit is not the only suit between these parties regarding
this specific dispute; we are aware of at least two others. See 3
Dimensional Contractors, Inc. v. Utah Ass’n of Mun. Power Sys., No.
4:22-CV-00045, 2023 WL 6318120 (D. Utah Sept. 28, 2023); 3
Dimensional Contractors, Inc. v. Utah Associated Mun. Power Sys.,
No. 200500230 (Utah 5th Dist. Ct.). As we understand it, both of
those other cases have been dismissed and neither one has any
direct bearing on the issues presented in this appeal.

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invoked the Realignment Statute and asked the court to allow it
to “realign the easements to the north and to the west of” the
UAMPS power pole.

¶14 Some months later, UAMPS filed a motion for partial
summary judgment asking the court for an order stating that
Benzer’s construction of the house on Lot 55 was a “per se
unreasonable intrusion” on the Easement. Benzer opposed
UAMPS’s motion and, in addition, filed a cross-motion of its own,
seeking summary judgment in its favor on UAMPS’s trespass
claim and its own realignment counterclaim. After briefing and
oral argument, the district court issued a ruling granting
UAMPS’s motion regarding its own easement-interference claim,
concluding that, as a matter of law, the house built on Lot 55
“violate[s] the express terms of the Easement” and “unreasonably
interferes with UAMPS’s rights to the Easement.” In that same
vein, the court denied Benzer’s request for summary dismissal of
UAMPS’s trespass claim, concluding that the facts “readily
demonstrate” that the house on Lot 55 “constitutes a continuing
and permanent trespass.”

¶15 In the same order, the court also denied Benzer’s motion
for summary judgment on its realignment counterclaim,
concluding that Benzer “failed to provide any evidence (through
affidavit or otherwise) that realignment of the Easement . . . would
not violate engineering or safety requirements.” And in the
absence of such evidence, the court concluded it could not “as a
matter of law” hold that Benzer was “entitled to realignment.”
Because Benzer had been the movant on the summary judgment
motion concerning its realignment counterclaim, the upshot of the
court’s ruling, at this time, was not dismissal of the claim but,
instead, simply a ruling that Benzer was not entitled to judgment
as a matter of law in its favor on that claim.

¶16 Thereafter, while the parties were engaged in the discovery
process, UAMPS voluntarily moved the Guy Pole from the

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middle of the platted roadway. Benzer has no issue with the new
placement of the Guy Pole. However, Benzer maintains on appeal
that this move might only be “temporary,” and it claims that there
is still some risk that UAMPS will decide to “move the pole back
into the road.”

¶17 After the conclusion of fact discovery, UAMPS filed a
motion for summary judgment asking the court to dismiss
Benzer’s entire counterclaim, and both sides timely disclosed
potential expert witnesses. As relevant here, Benzer disclosed that
it would seek to offer expert testimony from a civil engineer
(Engineer) and a land surveyor (Surveyor) in support of its
realignment counterclaim. UAMPS elected to receive written
reports from these experts instead of opting to take their
depositions. A few weeks later, Benzer produced the reports, and
they were not exactly what UAMPS had been expecting.
Engineer’s report took the form of a one-and-a-half-page letter
wherein he opined that the guy wire problem on Lot 55 could be
resolved in one of two ways: (1) by replacing the existing power
pole with a self-supporting pole, an option he thought would cost
about $180,000, or (2) by moving the existing guy wires from their
present location to a different location “in the rear of [L]ot 54,” the
lot next to Lot 55, a move he believed would cost only about
$15,000 and could be done in keeping with “all design and
easement standards,” as shown by UAMPS’s recent voluntary
relocation of the nearby Guy Pole. Engineer’s report did not
contain a specific suggestion as to where on Lot 54 the guy wires
could be moved, but Surveyor’s submission included—in fact, it
contained nothing other than—two drawings, each depicting a
different possible location for the guy wires on Lot 54. While
neither expert’s submission expressly referenced the other’s, they
were disclosed simultaneously, and Engineer’s report mentions
an “Exhibit,” a presumed reference to Surveyor’s drawings.

¶18 UAMPS retained an expert of its own to weigh in on
realignment issues. That expert criticized Engineer and Surveyor

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for not including enough information in their reports, and he
opined that, due to “the lack of information” in Benzer’s experts’
submissions, “it is not possible to analyze” their conclusions
regarding relocation of the guy wires “at anything but a
superficial, theoretical level.” Benzer responded to this criticism
by submitting a “rebuttal” report from Engineer, this time
providing additional information and analysis. At oral argument
before this court, UAMPS acknowledged that Engineer’s rebuttal
report contains all the information the rules require and all the
information necessary to allow an informed response.

¶19 Some weeks after receiving Engineer’s rebuttal report,
UAMPS filed motions asking the court to exclude Engineer and
Surveyor from testifying as experts “at any hearing or trial in this
matter.” UAMPS argued that the original submissions from
Engineer and Surveyor were “woefully deficient” and left
UAMPS with “literally no idea what” the experts planned to
testify about. After briefing and argument, the court made an oral
ruling granting UAMPS’s motions, concluding that Benzer’s
experts’ original reports were “very deficient.” A few days later,
Benzer filed a motion asking the court to reconsider and amend
its order and, instead of excluding Engineer and Surveyor, allow
depositions to be taken of these experts which would “cure any
potential prejudice” that UAMPS might otherwise suffer. Benzer
contended that Engineer and Surveyor were “critical to” its
realignment counterclaim, so much so that the experts’ exclusion
would be “tantamount to dismissing [Benzer’s] defense.” The
court declined Benzer’s invitation to amend its ruling, and it later
issued a written order barring Engineer and Surveyor from
testifying at trial and barring Benzer from otherwise offering their
opinions into evidence.

¶20 After excluding evidence from Benzer’s experts, the court
then granted UAMPS’s earlier-filed motion for summary
judgment in its favor on Benzer’s entire counterclaim. The court
gave several reasons for its decision. First, the court concluded

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that Benzer’s counterclaim had been rendered moot by UAMPS’s
voluntary decision to relocate the Guy Pole. Second, the court
concluded that Benzer’s counterclaim was barred by Utah’s
governmental immunity statutes, which require putative
plaintiffs to give notice of any “claims” they intend to bring
against the government; Benzer had not filed any notice of claim.
And third, the court concluded that Benzer’s claims failed on their
merits in any event, because without testimony from experts,
Benzer could not meet its burdens under the Realignment Statute.

¶21 After the court’s summary judgment ruling, Benzer filed a
motion asking the court to reopen expert discovery and
reconsider its order excluding Benzer’s experts. In connection
with this motion, Benzer argued—for the first time—that the
Realignment Statute did not place any burden on Benzer to
establish that realignment was reasonably possible; instead,
Benzer asserted that the statute “presumes” that Benzer can
realign the Easement and that this “presumption must be rebutted
by UAMPS.” After briefing and argument, the court denied
Benzer’s motion, specifically rejecting Benzer’s position that the
Realignment Statute placed any burden of proof on UAMPS.

¶22 In this same written order, the court also concluded that
final judgment could enter, determining that its earlier order
granting summary judgment to UAMPS on its main claim for
easement interference and awarding declaratory and injunctive
relief “effectively mooted” UAMPS’s trespass and nuisance
claims because UAMPS had made an election of remedies and
had chosen to seek an order compelling Benzer to move the house
(instead of an order compelling Benzer to pay damages). And it
rejected Benzer’s argument that UAMPS had brought those two
claims in bad faith, and on that basis denied Benzer’s request—
brought under Utah’s bad-faith attorney fees statute—for
attorney fees incurred in litigating those claims.

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¶23 The court then entered judgment in UAMPS’s favor,
including a declaration that the house on Lot 55 “constitutes an
unreasonable per se interference with the Easement” and an
injunction commanding Benzer, within sixty days, to “remove
from the Easement . . . any portions of the [house] that currently
encroach on” the Easement. The injunction further provided that,
if Benzer did not remove the house within the time frame
provided, “UAMPS may hire contractors and engineers of its
choosing, at [Benzer’s] cost, to coordinate, assist, and remove all
portions of the [house] that encroach on” the Easement. 3

ISSUES AND STANDARDS OF REVIEW

¶24 Benzer now appeals the court’s judgment, and it raises
several issues for our consideration. First and foremost, Benzer
challenges the dismissal of its counterclaim, especially the part
seeking statutory realignment. Because the court dismissed the
counterclaim on summary judgment, in part on statutory
interpretation grounds, our review of the court’s ruling is for
correctness, affording no deference to that ruling. See USA Power,
LLC v. PacifiCorp, 2010 UT 31, ¶ 28, 235 P.3d 749 (“We review the
district court’s summary judgment ruling for correctness and
view all facts and reasonable inferences in favor of the nonmoving
party.” (quotation simplified)); see also Marion Energy, Inc. v. KFJ
Ranch P’ship, 2011 UT 50, ¶ 12, 267 P.3d 863 (“We review questions
of statutory interpretation for correctness, affording no deference
to the district court’s legal conclusions.” (quotation simplified)).

3. Following entry of judgment, Benzer asked the district court for
a stay of enforcement of the judgment pending appeal. The record
submitted to us contains no indication that any ruling was ever
made on that motion. We assume, for purposes of this appeal, that
the house remains in its original location; certainly, neither party
asserts that this appeal has been mooted by a post-judgment
relocation of the house.

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¶25 However, dismissal of the counterclaim also implicates the
court’s exclusion of Benzer’s expert witnesses, and our review of
the court’s exclusion order requires a more nuanced approach. On
that issue, a district court’s “interpretations of the Utah Rules of
Civil Procedure are questions of law” that we review for
correctness, but we extend “a great deal of deference” to district
courts in matters of discovery; thus, a court’s discovery orders are
reviewed “for abuse of discretion.” RJW Media Inc. v. Heath, 2017
UT App 34, ¶ 18, 392 P.3d 956 (quotation simplified).

¶26 Next, Benzer challenges the court’s ruling that UAMPS had
not brought its trespass and nuisance claims in bad faith, and the
court’s associated determination that Benzer was not entitled to
recover attorney fees, under Utah’s bad-faith attorney fees statute,
incurred in litigating those claims. “We review a [district] court’s
grant of attorney fees under the bad faith statute as a mixed
question of law and fact.” Verdi Energy Group, Inc. v. Nelson, 2014
UT App 101, ¶ 13, 326 P.3d 104 (quotation simplified). Attorney
fees under this statute are available to a prevailing party when it
can show that its opponent’s action was without merit and not
brought in good faith. See Kelly v. Timber Lakes Prop. Owners Ass’n,
2022 UT App 23, ¶ 24, 507 P.3d 357. A court’s determination on
whether an action or claim is “without merit” is reviewed for
correctness, while a finding related to “bad faith” is reviewed
“under the clearly erroneous standard.” Id. (quotation simplified).
In this case, the attorney fees inquiry also implicates the district
court’s ruling that effectively dismissed UAMPS’s trespass claim
due to its election of remedies. To the extent that this issue raises
questions of law related to the dismissal of these two tort claims,
we review the court’s decision for correctness. See Linebaugh v.
Gibson, 2020 UT App 108, ¶ 21, 471 P.3d 835. 4

4. Benzer also challenges the court’s denial of its motion to reopen
discovery, a ruling which we would review for abuse of
(continued…)

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ANALYSIS

I. Benzer’s Counterclaim

¶27 We first address Benzer’s challenge to the district court’s
dismissal of its counterclaim. As noted, the court dismissed this
counterclaim for various reasons. First, it identified several
preliminary issues with the counterclaim that, if applicable,
would require its dismissal before even considering its merits.
Second, the court dismissed the realignment portion of the
counterclaim based, in part, on its interpretation of the
Realignment Statute. And third, it dismissed the realignment
counterclaim on the basis that Benzer could not support it given
the exclusion of its experts. We address these matters in turn.

A. Preliminary Issues

¶28 Initially, we find it necessary to address three preliminary
issues related to the viability of Benzer’s counterclaim. First, we
address the district court’s ruling that the counterclaim is barred
by the Utah Governmental Immunity Act (the UGIA). See Utah
Code §§ 63G-7-101 to -904. Second, we examine UAMPS’s
assertion that the Realignment Statute, by its terms, does not
apply here at all. And finally, we address UAMPS’s assertion that
Benzer’s counterclaim has been rendered moot. In the end, we
conclude that none of these preliminary issues require dismissal
of Benzer’s counterclaim.

discretion, see Stoddard v. Smith, 2001 UT 47, ¶ 22, 27 P.3d 546, and
the court’s denial of its motion to amend an earlier order related
to the exclusion of Benzer’s experts, also reviewed for abuse of
discretion, see Mower v. Simpson, 2017 UT App 23, ¶ 43, 392 P.3d
861, cert. denied, 392 P.3d 861 (Utah 2017). However, our reversal
of the court’s exclusion of Benzer’s experts effectively moots its
challenge to these other two orders, and we therefore need not
further address these issues here.

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1

¶29 The UGIA provides that anyone wishing to assert a “claim
against a governmental entity” is barred from doing so “unless
notice of claim is filed . . . within one year after the claim arises.”
Id. § 63G-7-402. It is undisputed that UAMPS is a “governmental
entity” as that term is used in the UGIA. See id. § 63G-7-102(4)(a)
(stating that a “governmental entity” includes “the state and its
political subdivisions”); id. § 11-13-203(1)(c) (stating that an
“interlocal entity” such as UAMPS is “a political subdivision of
the state”). It is also undisputed that Benzer did not file any notice
of claim within one year after its claim against UAMPS arose. In
light of these facts, the district court concluded that Benzer’s
counterclaim was barred by the UGIA. Benzer takes issue with
this conclusion, and we find merit in Benzer’s position.

¶30 The UGIA’s notice of claim provision is triggered only
when a litigant wishes to assert a “claim” against a governmental
entity. Id. § 63G-7-402. The term “claim” has been assigned a
statutory definition in this context; under that definition, “claim”
is defined as “any asserted demand for or cause of action for
money or damages.” Id. § 63G-7-102(2). Benzer correctly points
out that, in the final and operative iteration of its counterclaim, it
did not seek “money or damages”; instead, it sought only
injunctive and declaratory relief. Under the plain terms of the
UGIA as interpreted by our supreme court, claims for injunctive
and declaratory relief “are not subject to the UGIA because they
are not asserted demands for or causes of action for money or
damages.” See Pinder v. Duchesne County Sheriff, 2020 UT 68, ¶ 64,
478 P.3d 610 (quotation simplified); see also Houghton v.
Department of Health, 2005 UT 63, ¶ 19 n.3, 125 P.3d 860 (stating
that equitable claims in general “are not governed by the notice of
claim provisions of the [UGIA],” and therefore any party
“asserting an equitable claim” against a government agency is
“not bound by the” UGIA’s notice requirements).

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¶31 Accordingly, the fact that Benzer did not file a notice of
claim pursuant to the UGIA prior to filing its counterclaim is not
an appropriate basis for dismissal of its operative counterclaim.
The district court’s determination to the contrary was error.

2

¶32 UAMPS next asserts that Benzer’s realignment
counterclaim was properly dismissed because, in its view, the
Realignment Statute is inapplicable here. UAMPS offers three
reasons for its viewpoint, which we discuss in turn. 5

¶33 “Municipality.” First, UAMPS asserts that the
Realignment Statute can only be invoked against
“municipalities,” and it asserts that it is not a “municipality” as
that term is statutorily defined. We reject this argument.

¶34 UAMPS correctly quotes the Realignment Statute: the
relevant provision of that statute uses the term “municipality,”
and states that “[i]f a municipality acquires a utility easement
through the exercise of its eminent domain power for use under
this section, the owner of the servient estate may,” under certain
circumstances, “realign the easement.” Utah Code § 10-8-14.5(3)
(emphasis added). The term “municipality” is, in this context,
assigned a statutory definition. See id. § 10-1-104(5). Under that
definition, a “municipality” is a “city” of the first, second, third,

5. The district court did not rule on each of UAMPS’s arguments
discussed in this section, presumably because it found other
grounds on which to base its dismissal of Benzer’s counterclaim.
But because UAMPS offers these arguments as alternative
grounds for affirmance, and because these issues are likely to be
raised again on remand, we elect to address them here. See State
v. Low, 2008 UT 58, ¶ 61, 192 P.3d 867 (stating that, when “there
are other issues presented on appeal that will likely arise” on
remand, we may “exercise our discretion to address those issues
for purposes of providing guidance on remand”).

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fourth, or fifth class; a “town”; or “a metro township.” Id. UAMPS
points out that it is an “interlocal entity,” see id. § 11-13-203(1), and
it rests its argument upon the fact that the term “interlocal entity”
is not included in the relevant definition of “municipality.”

¶35 But UAMPS overlooks the fact that, by statute, interlocal
entities enjoy the same powers, and are subject to the same rules
and restrictions, as their individual members. UAMPS was
created pursuant to the Utah Interlocal Cooperation Act (UICA).
See id. §§ 11-13-101 to -608. That statute’s purpose is to allow
multiple public agencies, including cities and towns, to work
together to jointly exercise their governmental powers. See id.
§ 11-13-102. Under UICA, “[a]ny power, privilege, or authority
exercised or capable of exercise by a Utah public agency”—a term
that includes all of UAMPS’s members, be they cities, towns, or
special districts, see id. § 11-13-103(19)—“may be exercised and
enjoyed jointly with any other Utah public agency having the
same power, privilege or authority.” Id. § 11-13-201(1)(a).
Importantly for present purposes, our supreme court has stated—
in a case involving UAMPS and requiring application of the then-
current version of UICA—that “UAMPS has the same powers,
privileges, and authority accorded its individual political
subdivisions.” Utah Associated Mun. Power Sys. v. Public Service
Comm’n of Utah, 789 P.2d 298, 299 (Utah 1990).

¶36 UAMPS’s assertion that it is not bound by the restrictions
of the Realignment Statute therefore misses the mark. Even if it is
not technically a “municipality” as that term is defined in the
Realignment Statute, it is subject to that statute’s restrictions,
because as an interlocal entity it enjoys the same powers and is
subject to the same restrictions as its individual members. See CP
Nat’l Corp. v. Public Service Comm’n, 638 P.2d 519, 521 (Utah 1981)
(stating that “the intent of [UICA] appears to be to allow
municipalities collectively to exercise powers which they already
possess individually”). In this appeal, UAMPS makes no assertion
that its individual members would not be subject to the

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Realignment Statute if, acting alone, they exercised their eminent
domain power to acquire a utility easement. Because it is
apparently uncontested that UAMPS’s individual members
would be subject to the Realignment Statute if they were to act
alone, and because interlocal entities possess the same powers
and are subject to the same restrictions as their individual
members, it follows that UAMPS is subject to the Realignment
Statute whenever it exercises its eminent domain power to acquire
a utility easement.

¶37 Easement vs. Infrastructure. Next, UAMPS asserts that the
Realignment Statute applies only to situations in which a
landowner wishes to relocate the boundaries of the easement
itself, and not to situations in which a landowner wishes to
relocate already-existing infrastructure. According to UAMPS,
“nothing” in the Realignment Statute “suggests that Benzer can
force realignment of permanent electrical infrastructure.” In our
view, however, the distinction UAMPS attempts to draw is one
without a meaningful difference.

¶38 UAMPS acknowledges that, under the Realignment
Statute, a landowner is afforded an opportunity to realign a public
utility easement. Yet realignment of the boundaries of an
easement would, ipso facto, render unlawful any existing
infrastructure located outside the boundaries of the relocated
easement, and would therefore require the realignment of the
infrastructure itself. Stated another way, if the boundaries of the
Easement are realigned so as to no longer encompass the land
upon which the guy wires are located, then the guy wires may no
longer lawfully exist in that location. In light of these realities, a
request to relocate an existing structure located within an
easement is not practically different from a request to relocate the
boundaries of the easement itself.

¶39 Moreover, under UAMPS’s interpretation of the
Realignment Statute, a landowner would never be able to use that

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statute to realign existing utility infrastructure; in that regime, the
Realignment Statute would be available to landowners only pre-
construction, before any utility infrastructure has been built.
Nothing in the language of the Realignment Statute limits its
reach to only pre-construction situations, and we decline
UAMPS’s invitation to read that limitation into the statute.

¶40 Unclean Hands. Finally, UAMPS asserts that Benzer may
not avail itself of its statutory realignment right because it violated
the plain terms of the Easement by building a permanent structure
inside the Easement’s boundaries. UAMPS argues that Benzer’s
actions have given it “unclean hands,” a situation that it claims
has effected a forfeiture of Benzer’s right to invoke the
Realignment Statute.

¶41 But UAMPS cites no authority supporting the proposition
that an equitable doctrine such as unclean hands operates to forfeit
a litigant’s statutory right. Certainly, the doctrine of unclean hands
can, where applicable, operate to deprive the “unclean” party of
its right to invoke equitable doctrines. See Hill v. Estate of Allred,
2009 UT 28, ¶ 21, 216 P.3d 929 (“The clean hands doctrine finds
expression in the maxim that ‘he who seeks equity must do
equity.’” (quotation simplified)). But as we understand it, the
availability of a statutory right turns not on the potential
applicability of equitable doctrines but, instead, on the language
our legislature chose to employ in drafting the statutory scheme
at issue; certainly, UAMPS has not persuaded us that the situation
is otherwise. And nothing in the Realignment Statute indicates
that the statute’s reach is to be shortened in instances where the
party invoking it might be subject to the equitable doctrine of
unclean hands. We therefore reject UAMPS’s assertion that
Benzer’s construction of the house on the Easement—in now-
uncontested violation of the terms of the Easement—operates to
forfeit Benzer’s right to invoke the Realignment Statute.

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¶42 Accordingly, for the foregoing reasons, we find
unpersuasive all of UAMPS’s arguments that the Realignment
Statute is generally inapplicable in this case.

3

¶43 The final preliminary issue we must address is UAMPS’s
contention that Benzer’s counterclaim has been rendered moot.
This assertion depends on two premises: first, that Benzer’s
counterclaim had nothing to do with realignment of the guy wires
on Lot 55 and everything to do with relocation of the Guy Pole;
and second, that UAMPS’s voluntary relocation of the Guy Pole
therefore rendered the entire counterclaim moot. We agree with
UAMPS that its relocation of the Guy Pole rendered that portion of
Benzer’s counterclaim moot. But we agree with Benzer that its
counterclaim, when read liberally, included a claim for
realignment of the guy wires on Lot 55, and that portion of its
counterclaim is by no means moot.

¶44 Both sides agree that Benzer’s counterclaim contained
allegations regarding relocation of the Guy Pole. UAMPS sensibly
asserts that its voluntary relocation of the Guy Pole has afforded
Benzer all of the relief it sought in that regard, and therefore its
claims concerning that issue are moot. See State v. Steed, 2015 UT
76, ¶ 6, 357 P.3d 547 (“An argument is moot if the requested
judicial relief cannot affect the rights of the litigants. In other
words, an appeal is moot if the controversy is eliminated such that
it renders the relief requested impossible or of no legal effect.”
(quotation simplified)). Benzer resists this conclusion, asserting
that UAMPS’s relocation of the Guy Pole might somehow be
“temporary” and that there is at least some chance that it might
move the Guy Pole back to its original location. This argument is
not well-taken. The relief Benzer sought regarding the Guy Pole
was a declaration stating that UAMPS was not permitted to
maintain a pole in a public roadway and an order commanding
UAMPS to remove it. Such relief would be pointless now, where

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UAMPS is no longer attempting to maintain a pole in a public
roadway. We therefore agree with UAMPS that the portion of
Benzer’s counterclaim concerning the Guy Pole has been rendered
moot by subsequent events. The district court did not err by
dismissing that portion of the counterclaim on that basis.

¶45 But we agree with Benzer that its counterclaim was not
limited to allegations regarding the Guy Pole. While not exactly a
model of clarity, the counterclaim contains allegations regarding
Lot 55 and the house, and it contains a specific request for relief
regarding realignment of the “easements to the north and to the
west of the Pole,” which the parties agree is a reference to both the
Guy Pole and the guy wires. And Benzer’s answer to UAMPS’s
complaint—contained in the same document as the
counterclaim—includes an affirmative defense specifically
seeking “realignment of the guy wire easement.” 6

¶46 Under Utah law, pleadings are to be liberally construed; a
pleading is sufficient if it provides “fair notice of the nature and
basis of the claim asserted and a general indication of the type of
litigation involved.” Southern Utah Wilderness All. v. San Juan
County Comm’n, 2021 UT 6, ¶ 40, 484 P.3d 1160 (quotation
simplified); accord Zubiate v. American Family Ins., 2022 UT App
144, ¶ 11, 524 P.3d 148. And there is no doubt that UAMPS had
fair notice that Benzer was seeking realignment of the guy wires,
and not just the Guy Pole; after all, the parties have been zealously
litigating that claim for years. We therefore reject UAMPS’s
assertion that Benzer’s counterclaim did not include allegations
related to the guy wires on Lot 55, as well as its concomitant
assertion that Benzer’s entire counterclaim should be dismissed

6. In addition, the exhibits attached to Benzer’s pleading provided
further information about the nature of its claims. One exhibit
shows a map of the area and illustrates the exact location of the
guy wires, and another contains photographs of the guy wires.

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as moot. Accordingly, the district court erred by dismissing that
portion of Benzer’s counterclaim on mootness grounds.

B. The Realignment Statute: Burden of Proof

¶47 Having concluded that Benzer’s counterclaim, fairly
construed, includes a statutory claim for realignment of the guy
wires, and that this portion of its counterclaim is not subject to
dismissal for any of the general non-merits reasons proffered by
UAMPS, we now turn to the merits of Benzer’s realignment
counterclaim. That inquiry requires us to address the parties’
interpretive dispute about which of them bears the burden of
proof under the Realignment Statute. UAMPS asserts that the
burden of proof lies with the landowner (here, Benzer). The
district court agreed with UAMPS on this point, and so do we.

¶48 The Realignment Statute provides, in relevant part:

If a municipality acquires a utility easement through
the exercise of its eminent domain power for use
under this section, the owner of the servient estate may
realign the easement at the servient estate owner’s
expense unless the alignment cannot be reasonably
changed because of engineering or safety requirements.

Utah Code § 10-8-14.5(3) (emphasis added). We have already
determined, supra ¶¶ 33–36, that this statute applies to UAMPS,
and it is undisputed that UAMPS acquired the Easement through
the exercise of its eminent domain power. Thus, the portion of the
statute at issue in this section of our opinion is the language
emphasized above: in particular, the parties take different
positions as to which of them bears the burden of demonstrating
that “the alignment [of a utility easement] cannot be reasonably
changed because of engineering or safety requirements.”

¶49 With regard to the language at issue, Benzer makes two
arguments. First, it asserts that the statutory language creates a

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“rebuttable presumption” that “the servient estate owner will be
allowed to realign the easement at its own expense if the easement
was obtained using eminent domain.” And second, it asserts that
the statutory language supports the notion that the burden is on
the dominant estate holder (here, UAMPS) “to demonstrate that
its chosen alignment of its easement cannot reasonably be
changed because of engineering or safety concerns.” We find
neither of Benzer’s arguments compelling.

¶50 First, we find no support in the statutory text for any
“rebuttable presumption” in favor of realignment. Certainly, the
Realignment Statute does not use the phrase “rebuttable
presumption,” nor does it even use the word “presumption.”
Benzer, however, focuses on the statute’s use of two words—
“may” and “unless”—and asserts that it has a presumptive right
to realign the easement, which presumption may be rebutted only
in situations where the “alignment cannot be reasonably
changed.” Benzer’s assertions have some force: to be sure, the
Realignment Statute does afford servient estate owners a right to
demand realignment, and it specifies that this right does not
apply in situations where the alignment cannot reasonably be
altered. But Benzer overreads the operative language when it
discerns therein a “rebuttable presumption” in its favor.

¶51 Our legislature knows how to create a rebuttable
presumption when that is its intent; indeed, it has done so on
numerous occasions in other sections of the Utah Municipal Code.
See, e.g., Utah Code § 10-2-422 (providing that, if certain
conditions are met, “[a]n area annexed to a municipality . . . shall
be conclusively presumed to have been validly annexed” (emphasis
added)); id. § 10-8-2(3)(b)(ii) (stating that, when appropriating
money for certain purposes, a “municipal legislative body’s
determination of value received is presumed valid” (emphasis
added)); id. § 10-9a-511(4)(c)–(d) (providing that, in certain
instances, “[a]bandonment” of a property “may be presumed” but
the owner of said property “may rebut the presumption” (emphases

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added)). We consider the legislature’s omission of any such
language here to be meaningful. See Northern Monticello All., LLC
v. San Juan County, 2022 UT 10, ¶ 29, 506 P.3d 593 (finding
meaningful the legislature’s “omission” of certain language and
noting that the “legislature knows how to” include such language
when that is its intent); Zilleruelo v. Commodity Transporters, Inc.,
2022 UT 1, ¶ 19, 506 P.3d 509 (“When looking at the plain
language, we presume that the Legislature used each word
advisedly, and deem all omissions to be purposeful.” (quotation
simplified)); Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶ 21, 428
P.3d 1096 (“We will not infer substantive terms into the text that
are not already there. Rather the interpretation must be based on
the language used, and we have no power to rewrite the statute
to conform to an intention not expressed.” (quotation simplified)).
As we interpret the Realignment Statute, its plain terms do not
permit an interpretation that provides servient estate owners a
“rebuttable presumption” in favor of realignment.

¶52 And that leads us to Benzer’s second argument: its
contention that the Realignment Statute places on the dominant
estate owner the burden of demonstrating that the easement’s
“alignment cannot be reasonably changed.” On this score, we
consider the statutory language potentially ambiguous, because it
does not clearly state, one way or the other, which party is to bear
the burden of proof in realignment situations. But on balance, we
find UAMPS’s arguments more persuasive, and more in keeping
with textual clues present in the statutory language.

¶53 As we see it, the most consequential textual clue is found
in the statute’s language placing all expenses of realignment on
the servient estate owner. See Utah Code § 10-8-14.5(3) (stating
that realignment, if it is to occur, must take place “at the servient
estate owner’s expense”). Among the expenses that a servient
estate owner must expect to pay are, of course, the expenses
associated with actually relocating any equipment or structures.
But the statute expressly mentions “engineering [and] safety

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requirements,” and allows realignment only when it can be
accomplished in accordance with such requirements. Id. As this
case demonstrates, realignment of electric energy infrastructure
can often take place only after potentially expensive consultations
with experts such as engineers and land surveyors. There are no
exceptions to the statutory requirement that the servient estate
owner pay the costs of realignment; indeed, in placing the burden
of shouldering the “expense” of realignment on the servient estate
owner, our legislature expects the servient estate owner to pay not
only the construction costs associated with actually moving the
affected infrastructure but also the costs associated with
demonstrating that the move is in keeping with engineering and
safety requirements. The statute’s expense provision therefore is
strong evidence that the legislature intended the burden of
demonstrating the feasibility of realignment to lie with the
servient estate owner.

¶54 Moreover, we (like the district court) find persuasive
UAMPS’s contention that Benzer’s proposed interpretation—that
the dominant estate owner bears the burden of proving that no
conceivable realignment is feasible—would work impractical (if
not absurd) results. As UAMPS points out, this reading would
require the dominant estate owner “to imagine every potential
realignment scenario and then prove each one unworkable,” a
task that would require it to hire and pay experts “to determine
whether those innumerable potential placements are either unsafe
or violate safety standards.” We find it hard to imagine that this
is what our legislature intended. By contrast, a rule requiring the
party requesting realignment to identify a proposed location for
realignment and to shoulder the costs of demonstrating that the
specific proposed relocation meets engineering and safety
standards is a much simpler approach that strikes us as
harmonious with the applicable statutory text.

¶55 The facts of this case illustrate the unworkability of
Benzer’s proposed interpretation. Here, everyone agrees that

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there is at least one feasible realignment option: replacing the
affected power pole with a standalone pole that does not require
guy wires. But Benzer does not like this option, presumably
because of the cost involved. The question presented here,
therefore, is this one: under the statute, whose responsibility is it
to identify additional relocation options—other than a standalone
pole—that are in keeping with applicable standards? If that
burden lies with UAMPS, it would apparently need to keep
coming up with option after option until it identifies one Benzer
likes; as Benzer sees it, the servient owner has the right to keep
vetoing options proposed by the dominant owner, ad infinitum,
until the dominant owner hits upon one the servient owner likes.
This is an impractical (if not absurd) result. See Marion Energy, Inc.
v. KFJ Ranch P’ship, 2011 UT 50, ¶ 26, 267 P.3d 863 (“Generally,
when interpreting statutes we seek to avoid interpretations which
render some part of a provision nonsensical or absurd. Thus,
when statutory language presents the court with two alternative
readings, we prefer the reading that avoids absurd results.”
(quotation simplified)). In our view, the Realignment Statute
requires the servient owner—the one requesting realignment—to
shoulder the burden of identifying an acceptable realignment
option and of demonstrating that its option meets engineering
and safety requirements.

¶56 For these reasons, then, we conclude that the district court
correctly interpreted the Realignment Statute to place the burden
of proof on Benzer to identify a specific realignment option that
satisfies applicable engineering and safety requirements.

C. The District Court’s Dismissal Order

¶57 The final question we must address, in evaluating the
district court’s dismissal of Benzer’s realignment counterclaim, is
whether the court correctly determined, as a matter of law on
summary judgment, that Benzer could not meet its statutory

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burden. On two independent grounds, we conclude that the court
erred in dismissing Benzer’s realignment counterclaim.

1

¶58 As an initial matter, we discern error in the court’s
wholesale dismissal of Benzer’s counterclaim on the
straightforward basis that all parties agree that the evidence
supports at least one feasible realignment option: replacement of
the affected power pole with a standalone pole that does not
require guy wires. With regard to that option, Benzer has clearly
met any burden of proof it has under the Realignment Statute.

¶59 As already noted, the Realignment Statute applies to
UAMPS here. Moreover, it is undisputed that UAMPS acquired
the Easement through eminent domain. It is also undisputed that
Benzer timely and properly invoked the Realignment Statute,
making a request that UAMPS relocate the guy wires on Lot 55.
And there is one realignment option that both sides agree is
feasible and meets all engineering and safety requirements:
replacing the affected power pole with a standalone pole.

¶60 Thus, the district court should not have commanded
relocation of the house as Benzer’s only option here. At a
minimum, Benzer has a right to realign the Easement if it is
willing to pay the costs of erecting the standalone pole. At least to
that extent, dismissal of Benzer’s counterclaim was improper.

2

¶61 Benzer, however, does not appear to like the standalone
pole option very much; indeed, if Benzer were forced to choose
between tearing down and relocating the house on Lot 55 or
paying for a standalone pole, it is by no means obvious which
choice Benzer would make. But in place of either of those options,
Benzer would very much prefer for the guy wires on Lot 55 to be
relocated over to Lot 54. The question we must now address is

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whether the district court correctly dismissed Benzer’s specific
claim for realignment of the guy wires onto Lot 54.

¶62 The district court dismissed Benzer’s claim in this regard
on its merits, after determining that Benzer could not meet its
burden of demonstrating that relocating the guy wires onto Lot
54 could be done commensurate with engineering and safety
requirements. This ruling, in turn, was a function of the court’s
earlier order excluding Benzer’s expert witnesses from offering
any evidence at trial. Benzer acknowledges that, without expert
testimony, it cannot bear its burden of demonstrating that
relocation of the guy wires onto Lot 54 is feasible. Thus, its
challenge to the court’s dismissal of its specific realignment claim
is dependent on its subsidiary challenge to the court’s order
barring its experts from testifying. For the reasons discussed, we
find merit in Benzer’s challenge to the court’s exclusion order.

¶63 The court based its exclusion of Benzer’s experts in the
language of rule 26 of the Utah Rules of Civil Procedure, which
requires that expert reports “contain a complete statement of all
opinions the expert will offer at trial and the basis and reasons for
them.” Utah R. Civ. P. 26(a)(4)(B). After reviewing the experts’
submissions, the district court ruled that those reports did not
contain a recitation of any actual opinions, nor did they contain
“the basis and reasons for” any opinions. We read the experts’
submissions differently than the district court did.

¶64 In our view, the reports submitted by Engineer and
Surveyor, considered together, contain two clearly stated
opinions. First, Engineer opines that realignment can be achieved
by replacing the existing power pole “with [a] new self-
supporting steel pole,” an option he thought would cost about
$180,000. Second, the reports (taken together) offer the opinion
that the guy wires on Lot 55 can be realigned onto Lot 54, in a way
that “satisf[ies] all design and easement standards,” in one of two
possible alternative configurations as depicted in Surveyor’s

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drawings. According to Engineer, this option would cost about
$15,000. Thus, the district court erred when it concluded that
Benzer’s experts’ reports did not contain any opinions.

¶65 The court also concluded that the experts did not offer “the
basis and reasons for” those opinions. After reviewing the reports
ourselves, we acknowledge that these submissions are far shorter
than expert reports usually are, and that they do not look like the
typical rule 26 reports experts often submit. But the reports do
nevertheless contain at least some “basis and reasons for” the
stated opinions. In particular, Engineer made a note of UAMPS’s
recent relocation of the Guy Pole from the public roadway, and
offered his view that UAMPS had made “a structural criteria
exception for the wires down load case” in order to accomplish
that relocation. He then stated that, if the same “structural criteria
exception” were made in connection with relocating the guy wires
on Lot 55, those wires could be relocated onto Lot 54 “by installing
new [guy wires] and possibl[y] a stub pole in the rear of Lot 54,”
and that this relocation would “satisfy all design and easement
standards.” And while Engineer’s report contains no specific
suggestions regarding exactly where on Lot 54 the guy wires
could be located, Surveyor’s drawings, submitted along with
Engineer’s report, offer two different location options. We
therefore disagree with the district court’s conclusion that
Benzer’s experts included no “basis” or “reasons for” their
opinions. In our view, the experts’ submissions—while by no
means a model of how things should be done under rule 26—do
contain opinions as well as at least some basis for them.

¶66 The rule itself provides a remedy for reports that contain
spare or incomplete information: an expert “may not testify in a
party’s case-in-chief regarding any matter not fairly disclosed in
the report.” Id. Thus, the proper remedy—and the one the court
should have imposed here—is not complete exclusion of the
experts’ testimony but, instead, exclusion only of testimony about
matters “not fairly disclosed” in the reports. The district court’s

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ruling ordering wholesale exclusion of Engineer’s and Surveyor’s
testimony was error.

¶67 Our conclusion that Engineer and Surveyor should have
been allowed to testify about matters that were “fairly disclosed”
in their reports raises two related questions, neither of which were
properly (if at all) considered by the district court. Can Benzer
meet its burden of proof under the Realignment Statute if its
experts are allowed to testify but are limited to testifying only
about things that were “fairly disclosed” in their rather spare
initial reports? And if not, should Benzer be allowed to
rehabilitate Engineer through introduction of the rebuttal
report—submitted some two months after his initial report—on
the basis that the rebuttal report qualifies as a harmlessly
untimely initial report? The district court should consider these
questions on remand, but we offer some limited guidance in this
regard that we hope will be of assistance.

¶68 Recall that the district court dismissed Benzer’s
realignment counterclaim on the basis that Benzer would be
allowed to present no expert testimony. We have determined that
the court’s ruling disallowing all testimony from Engineer and
Surveyor was error; those experts should be allowed, at a
minimum, to offer testimony about the opinions listed in their
reports, as supported by the “basis and reasons for” those
opinions that are “fairly disclosed” in those reports. Now that
Benzer has some expert testimony in its corner rather than none,
the district court should reevaluate whether Benzer’s realignment
counterclaim, as concerns relocation of the guy wires, can survive
summary judgment.

¶69 The answer to this question may be influenced by whether
the court considers Engineer’s rebuttal report. UAMPS correctly
points out that Engineer included a lot of additional information
in his rebuttal report that was not included in his two-page initial
report. Indeed, UAMPS acknowledged, at oral argument before

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this court, that Engineer’s rebuttal report includes all required
information, and that it contains enough detail to allow a fulsome
and meaningful rebuttal from UAMPS’s own expert. We
understand this acknowledgement to mean that, if Engineer’s
rebuttal report is considered by the court, Benzer can survive
summary judgment on its realignment counterclaim regarding
relocation of the guy wires.

¶70 Whether Engineer’s rebuttal report should be considered
turns, in our view, on whether UAMPS sustained harm as a
result of obtaining the information contained in that report in
April instead of February 2020. The new information found in
the rebuttal report was not timely submitted; it certainly should
have been submitted in February, as part of Engineer’s initial
report. In this situation, “where it is undisputed that an expert
witness report has been untimely filed, the proper inquiry is
whether” the party’s failure to timely submit the report was
“harmless” or excused by “good cause.” See R.O.A. Gen., Inc. v.
Chung Ji Dai, 2014 UT App 124, ¶ 11, 327 P.3d 1233 (quotation
simplified), cert. denied, 337 P.3d 295 (Utah 2014); see also Utah R.
Civ. P. 26(d)(4) (stating that, if a party fails to make a required
disclosure in a timely fashion, “that party may not use the
undisclosed witness, document, or material at any hearing or
trial unless the failure is harmless or the party shows good
cause for the failure”). When asked about harm at oral
argument, UAMPS’s counsel stated that UAMPS had been
harmed by not learning Engineer’s information until April,
because the delay caused UAMPS’s expert to become “locked in”
to opinions he rendered in a response report that was
prepared without the benefit of reviewing the information
and conclusions in Engineer’s rebuttal report. But UAMPS’s
counsel acknowledged that all such prejudice could be alleviated
by allowing UAMPS’s expert to prepare a sur-rebuttal report,
paid for by Benzer. While the district court considered other
discovery-related questions, including whether to allow
depositions of Benzer’s experts (it decided not to), it did not

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squarely confront the question of whether Engineer’s rebuttal
report should be considered as a harmlessly untimely initial
report, perhaps with allowance for a Benzer-funded sur-rebuttal
report. Whether to allow Benzer to remedy the situation in this
manner is a question within the district court’s discretion. In light
of this deferential standard of review, the district court should, on
remand, consider the “harmlessness” question in the first
instance. See De La Cruz v. Ekstrom, 2024 UT App 18, ¶ 29 (Harris,
J., concurring).

¶71 Thus, the district court should not have completely
barred Benzer’s experts from testifying at trial. Instead, it should
have simply limited those experts to testimony related to
matters that were “fairly disclosed” in their reports. On remand,
it should determine whether consideration of Engineer’s
rebuttal report would actually harm UAMPS, and if so
whether any such harm can be easily remediated. And after
making these rulings, it should reconsider the merits of Benzer’s
realignment counterclaim, and should specifically consider
whether, given the measure of expert testimony allowed, Benzer
can satisfy the burden of proof imposed upon it under the
Realignment Statute.

¶72 Accordingly, we vacate the district court’s order
dismissing Benzer’s counterclaim for realignment of the guy
wires on Lot 55, and we remand this matter for further
proceedings consistent with this opinion.

II. Trespass and Bad-Faith Attorney Fees

¶73 The other issue on appeal, aside from the court’s dismissal
of Benzer’s counterclaim, is Benzer’s challenge to the court’s
ruling that it was not entitled to recovery of its attorney fees,
under Utah’s bad-faith attorney fees statute, incurred in litigating

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UAMPS’s trespass claim. 7 We perceive no error in the court’s
denial of Benzer’s request for fees under the bad-faith statute.

¶74 Under Utah law, a court has the authority to award
attorney fees to a party who prevails on a meritless claim or
defense that its opponent brought in bad faith. See Utah Code
§ 78B-5-825(1) (stating that “the court shall award reasonable
attorney fees to a prevailing party if the court determines that the
action or defense to the action was without merit and not brought
or asserted in good faith”). Before awarding fees under this
section, a district court—in addition to making a determination
that the party requesting fees is the “prevailing party”—must
make specific findings that a party’s claim is (1) “without merit”
and (2) “not brought or asserted in good faith.” Rocky Ford
Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 76, 469 P.3d
1003 (quotation simplified). These two findings “must be made
independently” from one another. Still Standing Stable, LLC v.
Allen, 2005 UT 46, ¶ 12, 122 P.3d 556. As noted, we review a court’s
“without merit” determination for correctness, but we review its
“bad faith” determination deferentially. See Kelly v. Timber Lakes
Prop. Owners Ass’n, 2022 UT App 23, ¶ 24, 507 P.3d 357.

¶75 In order to demonstrate that an opponent’s claim or
defense is “without merit” for purposes of the bad-faith statute,
the movant must demonstrate more than simply that the claim or
defense is a loser. See McFarland v. McFarland, 2024 UT App 31,
¶ 33 (stating that “a determination that a party lost on the merits
is not equivalent to a determination that the party’s claims were

7. It is unclear from Benzer’s briefing whether Benzer intends this
argument to also apply to UAMPS’s nuisance claim. Benzer’s
unclear briefing on this point leads us to conclude that, to the
extent Benzer intended to include that argument, it has failed on
grounds of inadequate briefing to carry its burden of persuasion
on appeal. We therefore do not further separately discuss the
nuisance claim in connection with this discussion.

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without merit for purposes of the bad-faith statute”); see also In re
Olympus Constr. LC, 2009 UT 29, ¶ 31, 215 P.3d 129 (concluding
that a losing claim was not “without merit,” because the claim—
even though it was not a winner—involved a question of “first
impression” and “had a basis in law and fact”). Indeed, our
supreme court has stated that the term “without merit,” in this
context, “implies bordering on frivolity,” with the term
“frivolous” meaning “of little weight or importance having no
basis in law or fact.” See Cady v. Johnson, 671 P.2d 149, 151 (Utah
1983) (quotation simplified); accord Migliore v. Livingston Fin., LLC,
2015 UT 9, ¶ 31, 347 P.3d 394. In our view, UAMPS’s trespass
claim does not fall into this category.

¶76 Benzer rests its argument on the notion that a trespass
claim—especially one for damages—is always improper as
between the owners of dominant and servient estates. As support
for this proposition, Benzer cites a New York case from 1961 and
an American Law Reports annotation. See Meadow Point Props.,
Inc. v. Nick Mazzaferro & Sons, 219 N.Y.S.2d 908, 910 (Sup. Ct. 1961)
(stating that a trespass action “is inapplicable to an easement”);
Proper Remedy for Interference with Right of Way, 47 A.L.R. 552
(1927) (stating that “[t]respass cannot be maintained for an
interference with a right of way”). Benzer does not cite any Utah
law directly on point; the closest it comes is to provide a citation
to our supreme court’s general pronouncement that “trespass is a
possessory action.” See Walker Drug Co. v. La Sal Oil Co., 972 P.2d
1238, 1243 (Utah 1998) (quotation simplified). On the other side of
the ledger, UAMPS directed the district court to a Georgia case
stating that “a ‘trespass’ upon an easement means use of the
property in violation of the easement terms.” See Richardson v.
Georgia Power Co., 708 S.E.2d 10, 12 (Ga. Ct. App. 2011). And
UAMPS emphasizes that Benzer—despite awareness of the
Easement and the presence of the guy wires—built a house within
the boundaries of the Easement, even though the Easement
Documents clearly prohibit the “erect[ion of] buildings and/or
structures within” the Easement and even though the Easement

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Documents authorize UAMPS to “clear the [E]asement of all
structure[s], obstructions, and/or other objects” to the extent that
those structures “interfere with or threaten to endanger the
operation or maintenance of” UAMPS’s systems. Under these
unique circumstances, UAMPS maintains that it has the right to
file a trespass claim to remedy the clear violation of the terms of
the Easement. It is also noteworthy, in this context, that the first
iteration of Benzer’s counterclaim included a claim for trespass
damages against UAMPS, claiming that UAMPS “invaded
[Benzer’s] easement by installing [the Guy Pole] outside of the
easement and in the middle of a planned road.”

¶77 As should be evident from the far-flung and dated citations
employed by both sides, the question of whether a dominant
estate owner is always, under any circumstance, forbidden from
filing a trespass claim against a servient estate owner is one that
has yet to be definitively answered under Utah law. And we do
not need to answer it today. For present purposes, it suffices to
state that we do not consider UAMPS’s trespass claim, filed under
the unique circumstances of this case, to have been one
“bordering on frivolity,” see Cady, 671 P.2d at 151 (quotation
simplified), especially where, as here, Benzer filed a similar claim
against UAMPS.

¶78 Moreover, we note that UAMPS’s claimed damages
remedy was stated in the alternative, and that UAMPS eventually
opted for injunctive relief and abandoned its claim for trespass
damages. This is consistent with Utah law and our pleading
standards, which “permit litigants to plead inconsistent theories
of recovery in the alternative.” See Helf v. Chevron U.S.A. Inc., 2015
UT 81, ¶ 74, 361 P.3d 63. Indeed, the district court determined that,
under the doctrine of election of remedies, it was appropriate to
dismiss UAMPS’s trespass claim, noting that UAMPS’s success in
seeking a declaratory judgment “effectively mooted” the trespass
claim. UAMPS did not file a cross-appeal to challenge that
decision, and it does not—to our knowledge—claim any right to

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reinstate that claim on remand. The dismissal of UAMPS’s
trespass claim may well result in a determination that Benzer was
the “prevailing party” on that claim, but in our view the fact that
UAMPS brought that claim merely as an alternative to its claim
for declaratory relief weighs in favor of the conclusion that its
claim was not without merit.

¶79 We therefore resolve this issue by resorting to our own de
novo assessment that, on this record, UAMPS’s trespass claim was
not “without merit,” as that term is used in the bad-faith statute.
On that basis, and without having any need to consider the
“prevailing party” or “bad faith” elements in view of that
assessment, we affirm the district court’s denial of Benzer’s
request for an award of attorney fees under the bad-faith statute. 8

CONCLUSION

¶80 The district court did not err in dismissing, on mootness
grounds, that portion of Benzer’s counterclaim having to do with
the relocated Guy Pole. We affirm the court’s conclusion that the
Realignment Statute places the burden of proof on the servient

8. In its brief, Benzer also complains about a number of statements
the district court made in its various rulings, asserting that the
court made improper factual findings in connection with various
summary judgment rulings. As Benzer sees it, the court
improperly “weighed evidence” and “made inferences in favor of
the moving party,” and it asks us to address these alleged errors
in this appeal. We decline this invitation, because Benzer has not
demonstrated that these asserted “findings of fact” have any
bearing on the issues presented in this appeal, and because Benzer
has not explained how any of these issues might matter to the
narrow issues—concerning only Benzer’s claim for realignment of
the guy wires on Lot 55—remaining to be decided on remand.

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estate owner. And we affirm the court’s denial of Benzer’s claim
for attorney fees under the bad-faith statute.

¶81 However, for the reasons set forth herein, the court erred
in dismissing, as a matter of law on summary judgment, Benzer’s
counterclaim for realignment of the guy wires on Lot 55. We
therefore vacate the court’s order dismissing that part of Benzer’s
counterclaim, and we remand this case to the district court for
further proceedings consistent with this opinion.

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