UDOT v. Ivers

2009 UT 56
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Utah Department of Transportation, 	No. 20080287
Plaintiff and Appellee,
v.
James Ivers, Katherine G. Havas,
P and F Food Services (Tenant), 	F I L E D
and Zions Credit Corporation,
Defendants and Appellants. 	August 21, 2009
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Second District, Farmington
The Honorable Michael G. Allphin
No. 020700665
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Brent A. Burnett,
Randy S. Hunter, Asst. Att’ys Gen., for plaintiff
Donald J. Winder, John W. Holt, Lance F. Sorensen,
Salt Lake City, for defendants
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DURHAM, Chief Justice:
INTRODUCTION
¶1 	We review for a second time the Utah Department of
Transportation’s (UDOT) taking of property owned by the
Appellants, James Ivers, Katherine G. Havas, and P&F Food
Services (collectively, Arby’s). 	In Ivers v. Utah Department of
Transportation, 2007 UT 19, 154 P.3d 802, we addressed whether
damages were awardable for Arby’s loss of view where the view-
impairing structure was not built on the condemned property but
was part of the project for which the property was condemned. 	We
held that if the condemned property was essential to the project,
Arby’s would be entitled to severance damages. 	We remanded to
the district court to determine the factual question of whether
Arby’s condemned property was essential to the project and, if
so, directed the district court to award Arby’s appropriate
damages. 	On remand, the district court allowed UDOT to amend its
complaint pursuant to statute to exclude Arby’s right of view.
We reverse and remand.

No. 20080287 	2
BACKGROUND
¶2 	In addressing this case once more, we do not repeat the
entire factual background contained in Ivers v. Utah Department
of Transportation, 2007 UT 19, ¶¶ 2-6, 154 P.3d 802 (Ivers I).
Instead, we recount only those facts relevant to this appeal.
¶3 	In 2002, UDOT filed a complaint to condemn a 0.048-acre
portion of private property belonging to Arby’s. 	The
condemnation helped eliminate the intersection of Shepard Lane
and Highway 89 in Farmington, Utah, in order to elevate the
highway and build a one-way frontage road. 	Although Arby’s
condemned property was used for a portion of the frontage road,
none of the elevated highway was constructed upon it.
¶4 	UDOT paid Arby’s $48,250 for the condemned property,
and the district court entered the Final Order of Condemnation on
March 7, 2005. 	Arby’s, however, also sought severance damages on
the grounds that the loss of visibility of the restaurant from
the highway and the loss of view from Arby’s property diminished
the market value of its remaining land. 	UDOT filed a motion in
limine to exclude evidence of the loss of visibility and view.
The district court granted the motion. 	The parties entered into
a Stipulation for Judgment that “no triable issues remain in this
matter,” the district court entered judgment, and Arby’s appealed
the court’s grant of the motion. 	The court of appeals affirmed.
Arby’s petitioned for a writ of certiorari, which we granted.
¶5 	In Ivers I, we addressed two questions: 	(1) “whether a
landowner has a protectable property interest in the visibility
of his land” and (2) whether severance damages are awardable for
the loss of view where “land was condemned as part of a single
project to build a structure that would impair the view from the
remaining property, but in which that structure was not built on
the severed land.” 	Id. ¶¶ 11, 17. 	We answered the first
question in the negative and affirmed the court of appeals on
that point. 	Id. ¶ 15. 	On the second issue, however, we
reversed, finding that a right of view is a protectable property
interest and adopting the rule that “if the use of the condemned
property is essential to the completion of the project as a
whole, the property owner is entitled to severance damages.” 	Id.
¶¶ 16, 21. 	Because of the remaining factual question of whether
“Arby’s land was, or was not, essential to the project,” we
remanded to the district court for that factual determination and
instructed the district court that if Arby’s condemned land was
essential to the project, the court should award Arby’s
appropriate damages. 	Id. ¶¶ 23-24.

1 Utah Code section 78B-6-512 (2008), formerly section 78-
34-11 (2002), was renumbered in 2008. 	Because there have been
only stylistic changes, we cite to the current version of the
statute throughout this opinion.
3 	No. 20080287
¶6 	On remand, UDOT admitted that Arby’s condemned land was
essential to the project. 	Nonetheless, the district court failed
to determine the amount of appropriate damages and award such
damages to Arby’s pursuant to our remand order. 	Instead, before
any hearing on the amount of damages, UDOT filed a Motion in
Limine to Preclude Testimony that Defendant Owns a Right of View,
arguing, for the first time, that Arby’s had no right of view
entitling it to recover severance damages because Arby’s
predecessors in interest executed deeds in 1961 and 1992 that
relinquished any and all appurtenant rights, including the right
of view, to UDOT. 	The district court denied the motion in limine
as an untimely motion to amend the complaint.
¶7 	Undaunted, UDOT filed a Request to Alter or Amend Order
pursuant to Utah Code section 78B-6-512(2). 1 	UDOT argued, for
the first time, that the statute granted it the right to amend
its taking at any time during the course of the proceedings. 	The
district court agreed and concluded that 	it no longer had
jurisdiction because UDOT no longer claimed to take Arby’s right
of view. 	Thus the district court never awarded Arby’s the
appropriate damages. 	Arby’s appealed. 	We have jurisdiction
pursuant to Utah Code section 78A-3-102(3)(j) (2008).
STANDARD OF REVIEW
¶8 	The mandate of an appellate court binds the district
court and the parties and affords the district court no
discretion whether to comply with that mandate. 	IHC Health
Servs., Inc., v. D & K Mgmt., Inc., 2008 UT 73, ¶ 28, 196 P.3d
588. 	Consequently, because the mandate is a legal determination,
reviewing whether a district court complied with the mandate
presents a question of law, which we review for correctness. 	See
Amax Magnesium Corp. v. Utah State Tax Comm’n, 874 P.2d 840, 842
(Utah 1994); Slattery v. Covey & Co., 909 P.2d 925, 927 (Utah Ct.
App. 1995).
¶9 	The interpretation of a statute also presents a
question of law, which we review for correctness. 	Ivers v. Utah
Dep’t of Transp., 2007 UT 19, ¶ 7, 154 P.3d 802. 	In reviewing
for correctness, we afford no deference to the legal conclusions
of the district court. 	Id.

No. 20080287 	4
ANALYSIS
¶10 	This appeal presents three issues for our
consideration: 	(1) whether the district court violated our
mandate in Ivers I to determine whether Arby’s condemned land was
essential to the project and if so, award appropriate damages;
(2) whether the district court misinterpreted Utah Code section
78B-6-512(2) to allow UDOT to amend its complaint at any time in
order to exclude a property right from the original scope of its
taking; and (3) whether UDOT’s strategy of shifting theories
warrants a change in the date of valuation. 	We hold that the
district court violated the mandate in Ivers I by exceeding the
scope of remand and that it misinterpreted the statute to allow
for amendment following entry of the Final Order of Condemnation
and remand. 	We do not reach the merits of the valuation question
because Arby’s failed to preserve the issue, and no exception
applies. 	We address each issue in turn.
I. 	THE DISTRICT COURT EXCEEDED THE SCOPE OF REMAND
¶11 	Arby’s argues that the district court violated our
mandate in Ivers I when it failed to award appropriate severance
damages for the taking of Arby’s property, which UDOT admitted
was essential to its project, and instead granted UDOT’s so-
called motion in limine to amend its complaint pursuant to Utah
Code section 78B-6-512(2). 	We agree.
¶12 	This court has long recognized that branch of the law
of the case doctrine known as the mandate rule. 	See Street v.
Fourth Jud. Dist. Court, 191 P.2d 153, 158 (Utah 1948). 	The
mandate rule “dictates that pronouncements of an appellate court
on legal issues in a case become the law of the case and must be
followed in subsequent proceedings of that case.” 	Thurston v.
Box Elder County, 892 P.2d 1034, 1037-38 (Utah 1995). 	“The
mandate rule . . . binds both the district court and the parties
to honor the mandate of the appellate court.” 	IHC Health Servs.,
Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 28, 196 P.3d 588.
“[T]he lower court must implement both the letter and the spirit
of the mandate, taking into account the appellate court’s opinion
and the circumstances it embraces.” 	Thurston, 892 P.2d at 1038.
Consequently, “where a judgment or decree is affirmed or reversed
and remanded with directions to enter a particular judgment, the
trial court may not permit amended or supplemental pleadings to
be framed to try rights already settled.” 	Street, 191 P.2d at
158. 	However, “where certain issues are left open by [the
appellate court’s] judgment or decree, the trial court ordinarily
has discretion to permit amended or supplemental pleadings as to
those matters.” 	Id.

5 	No. 20080287
¶13 	The mandate rule is justified. 	Without it,
“considerable inefficiencies would result if parties were free to
relitigate after remand issues decided in an earlier ruling of
this court.” 	Gildea v. Guardian Title Co., 2001 UT 75, ¶ 9, 31
P.3d 543. 	The rule is also “not only reasonable, but necessary,
if litigation is ever to come to an end.” 	Street, 191 P.2d at
158.
¶14 	Turning to the scope of remand in Ivers I, we conclude
that the district court violated our mandate. 	In Ivers I, we
adopted the rule that severance damages are awardable for the
loss of view--even if the view-impairing structure is not built
on the condemned land--if the “condemned property is essential to
the completion of the project as a whole.” 	2007 UT 19, ¶ 21.
Because we could not determine from the record whether Arby’s
condemned land was essential to the project, we “remand[ed] to
the [district] court for that [necessary] factual determination.”
Id. ¶ 23. 	If Arby’s condemned land was “essential” to the
project, we directed the district court to award appropriate
damages. 	Id. ¶¶ 24, 26. 	This was the scope of remand.
¶15 	Following remand and pursuant to a request for
admission by Arby’s, UDOT admitted “that the partial taking of
the Arby’s property . . . was essential to the completion of
[the] . . . construction project.” 	Hence, all that remained was
for the district court to award Arby’s the appropriate severance
damages. 	Instead, the district court was drawn in by UDOT’s
attempt to reframe the foreclosed issue of Arby’s right of view.
UDOT did so through its motion in limine, which sought to exclude
evidence of the right of view because Arby’s did not possess the
right where its predecessors in interest deeded that right to
UDOT in 1961 and 1992. 	Initially, the district court recognized
UDOT’s motion in limine for what it was, an untimely motion to
amend the complaint. 	Yet, persuaded by UDOT’s subsequent
argument regarding Utah Code section 78B-6-512(2), the district
court granted the motion and concluded that no claim for a taking
existed.
¶16 	UDOT argues that despite this court’s remand, it could
amend the pleadings because the question of whether Arby’s
possessed a right of view was an issue not foreclosed by Ivers I,
pointing out that the parties did not raise the issue, this court
did not grant certiorari to consider it, and the district court’s
determination of appropriate damages necessarily includes whether
Arby’s owns a right of view. 	For its argument, UDOT relies on
Madsen v. Washington Mutual Bank FSB, 2008 UT 69, 199 P.3d 898.
We are not convinced.

2 The district court’s entry of final judgment triggered the
branch of the law of the case doctrine that precludes the
district court’s discretion to reconsider a prior final decision
absent the three exceptional circumstances of intervening change
of controlling authority, new evidence, or manifest injustice,
for which relief may be sought under rule 60(b) of the Utah Rules
of Civil Procedure. 	See Utah R. Civ. P. 60(b); IHC Health
Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶¶ 27, 34, 196
P.3d 588. 	UDOT, however, does not argue and we do not address
this more flexible branch because the appeal activated the
mandate rule. 	Thurston v. Box Elder County, 892 P.2d 1034, 1038
(Utah 1995).
No. 20080287 	6
¶17 	In Madsen, we concluded that despite this court’s
ruling on a first appeal, which held that a cause of action
existed under Utah law, federal regulations preempted the cause
of action. 	Id. ¶¶ 6-7, 21-23. 	The appellant argued that the
decision in the first appeal was binding on the court below and
that the issue of federal preemption was foreclosed. 	Id. ¶ 26.
We distinguished that situation from the mandate rule. 	Prior to
the first appeal, the appellee argued in its motion to dismiss or
for summary judgment that the appellant had no claim under the
contract or, alternatively, that federal law preempted the claim.
Id. ¶ 5. 	The district court granted the motion on the grounds
that no contract claim existed. 	Although no party appealed on
the basis of preemption, we could have, in our discretion,
affirmed the judgment on the alternative ground of preemption
since it was “apparent in the record.” 	Id. ¶ 26. 	But our
declining to do so was not a ruling on the merits. 	Id.
Therefore, because the appellee had made the issue apparent in
the record before the first appeal and we had not ruled on the
merits, the issue was not foreclosed. 	Id.
¶18 	This has not occurred here. 	Unlike the appellee in
Madsen, UDOT never contended before remand that Arby’s had no
right of view. 	Rather, after filing the complaint and obtaining
a condemnation resolution for all rights appurtenant to Arby’s
remaining property, UDOT limited its argument to whether Arby’s
could recover severance damages for loss of visibility and view
where damages “are caused by construction beyond the boundaries
of the landowner’s property.” 	Ivers I, 2007 UT 19, ¶ 1. 	The
district court agreed that Arby’s could not. 	The parties then
stipulated that “no triable issues remain in this matter,” the
district court entered final judgment, 2 and Arby’s appealed. 	In
accordance with the stipulation and final judgment, UDOT never
argued on appeal that Arby’s had no right of view.

3 In calculating the appropriate damages, the district court
should not take into consideration whether Arby’s has a right of
view or any other purported motions in limine which attempt to
exclude that right. 	That issue was foreclosed in Arby’s favor by
Ivers I, and we emphasize that foreclosure here.
7 	No. 20080287
¶19 	Moreover, in our determination of whether compensation
for severance damages is due for construction beyond the
condemned property, the existence of Arby’s right of view was
conceded in the argument and made implicit in our decision. 	Had
UDOT contested this right or had Arby’s possessed no right, we
would have refused to review such an unripe or moot issue because
our decision would have amounted to nothing more than an advisory
opinion. 	See State v. Ortiz, 1999 UT 84, ¶ 3, 987 P.2d 39 (“This
court will not issue advisory opinions or examine a controversy
that has not yet ‘sharpened into an actual or imminent clash of
legal rights and obligations between the parties thereto.’”
(quoting State v. Herrera, 895 P.2d 359, 371 (Utah 1995))); State
v. Sims, 881 P.2d 840, 841 (Utah 1994) (“An issue on appeal is
considered moot when the requested judicial relief cannot affect
the rights of the litigants. 	When an issue is moot, judicial
policy dictates against our rendering an advisory opinion.”
(citations and internal quotation marks omitted)).
¶20 	UDOT’s failure to make apparent in the record before
Ivers I the theory that Arby’s had no right of view, its
stipulation prior to final judgment that no triable issues
remained, and the necessary implication of Arby’s right of view
in our ruling in Ivers I prohibit UDOT from reframing the issue
to its advantage after remand. 	Indeed, if UDOT had already owned
the right of view, it should have raised this at the outset of
the case rather than the conclusion. 	By not doing so, it
forfeited the argument and led us to foreclose the issue in Ivers
I. 	Accordingly, because the trial court violated our mandate by
exceeding the scope of remand, we reverse and vacate its order
granting UDOT’s motion in limine and direct the trial court on
remand to award appropriate severance damages to Arby’s. 3
II. 	THE DISTRICT COURT MISINTERPRETED SECTION 78B-6-512(2)
TO ALLOW UDOT TO AMEND ITS COMPLAINT AT ANY TIME
¶21 	In addition to exceeding the scope of remand, the
district court misinterpreted Utah Code section 78B-6-512(2).
The district court criticized UDOT for shifting theories, wasting
judicial resources, and raising section 78B-6-512(2) in an
untimely fashion. 	Nonetheless, UDOT persuaded the district court
that despite remand and the passage of roughly two years from the
entry of the Final Order of Condemnation, section 78B-6-512(2)

No. 20080287 	8
allowed UDOT to amend its complaint to reduce the property
actually taken by no longer taking Arby’s right of view. 	We
disagree.
¶22 	“[O]ur primary goal in interpreting statutes is to give
effect to the legislative intent, as evidenced by the plain
language, in light of the purpose the statute was meant to
achieve.” 	State v. Burns, 2000 UT 56, ¶ 25, 4 P.3d 795. 	“We
need look beyond the plain language only if we find some
ambiguity.” 	Id. 	Also, we seek to avoid an interpretation that
would “render some part of a provision nonsensical or absurd.”
Robinson v. Mount Logan Clinic, LLC, 2008 UT 21, ¶ 9, 182 P.3d
333.
¶23 	Section 78B-6-512 sets the date of the service of
summons as the date from which the right to compensation and
damages accrues for property “actually taken” and for property
“not actually taken, but injuriously affected.” 	Utah Code Ann.
§ 78B-6-512(1) (2008). 	Section 78B-6-512 further provides that a
condemner may mitigate damages or reduce the property actually
taken. 	It states,
The court or the jury shall consider
mitigation or reduction of damages in its
assessment of compensation and damages if,
after the date of the service of summons,
the plaintiff:
(a) mitigates the damages to the
property; or
(b) reduces the amount of property
actually taken.
Id. § 78B-6-512(2).
¶24 	The plain language of the statute does not support
UDOT’s interpretation of a broad grant to amend its pleadings at
any time. 	Rather, the statute permits the reduction of damages
if the condemner reduces the amount of property that it actually
takes. 	While such a reduction could require an amendment of the
takings complaint, the language of the statute limits the time
for amendment before the “property [is] actually taken” because
once property has been taken there can be no reduction. 	This
taking occurs in the initial proceedings and is finalized by
entry of the order of condemnation.

9 	No. 20080287
¶25 	Here, the district court entered the Final Order of
Condemnation in 2005. 	Pursuant to this order UDOT actually took
the condemned property sought for in its complaint, including
Arby’s right of view. 	Before entry of the order, UDOT could have
reduced the amount of property actually taken by not taking that
right. 	UDOT, however, did not do this. 	Rather, having already
taken the property, it waited for roughly two years and then,
under the guise of its motion in limine, attempted to reduce the
property already taken by amending the complaint pursuant to the
statute. 	The statute does not support such amendment at any
time.
¶26 	Nor would amendment at any time comport with the
purpose of the statute. 	The statute, in allowing the condemner
to mitigate or reduce its damages, aids in the determination of
the constitutional right to just compensation. 	See Utah Const.
art. I, § 22. 	Allowing amendment subsequent to the entry of an
order of condemnation creates a fiction that private property
that has actually been taken, has not been taken. 	We do not read
the statute to permit this absurd result.
¶27 	Finally, because we held above that the district court
exceeded the scope of remand, UDOT could not rely on the statute
for the first time following remand. 	Its attempt to amend the
complaint to exclude Arby’s right of view pursuant to the statute
would violate the mandate rule because that right was foreclosed
by our ruling in Ivers I. 	Accordingly, we hold that the district
court misinterpreted Utah Code section 78B-6-512(2) to allow UDOT
to amend its complaint after the entry of the Final Order of
Condemnation and our remand of Ivers I.
III. 	ARBY’S FAILED TO RAISE THE ADJUSTMENT IN VALUATION
¶28 	The final issue is whether because of UDOT’s strategy
of shifting theories the value used for calculating Arby’s
damages should be adjusted to a current date. 	Arby’s argues that
because the district court recognized the delay caused by UDOT’s
inappropriate strategy of raising new arguments only when
previous arguments had failed, the timing for valuation should be
adjusted from the date set by the service of summons in 2002 to a
current date. 	Whatever merit there may be to Arby’s argument,
UDOT correctly points out that Arby’s failed to raise the issue
before the district court, and no exception to the preservation
rule applies.
¶29 	Rule 24(a) of the Utah Rules of Appellate Procedure
requires an appellant to provide “citation to the record showing
that the issue was preserved in the trial court; or . . . a

No. 20080287 	10
statement of grounds for seeking review of an issue not preserved
in the trial court.” 	If an issue is not preserved, this court
will not address its merits “absent plain error or exceptional
circumstances.” 	State v. Rhinehart, 2007 UT 61, ¶ 21, 167 P.3d
1046. 	“Exceptional circumstances . . . is used infrequently and
usually requires ‘rare procedural anomalies.’” 	Hill v. Estate of
Allred, 2009 UT 28, ¶ 25, 216 P.3d 929 (quoting State v. Dunn,
850 P.2d 1201, 1209 n.3 (Utah 1993)).
¶30 	Arby’s concedes that it failed to preserve the issue.
It argues, however, that exceptional circumstances warrant
review. 	Specifically, Arby’s emphasizes that the district court
recognized UDOT’s strategy of shifting theories, that this is a
second appeal, and that upon remand this issue may arise and thus
lead to a third appeal. 	A party’s inappropriate strategy, for
which the opportunity exists to object, and previous or potential
appeals do not rise to the level of the rare procedural anomalies
that constitute exceptional circumstances. 	We therefore do not
reach the issue.
CONCLUSION
¶31 	We hold that the district court violated the mandate
rule by exceeding the scope of our remand in Ivers I. 	We also
hold that the district court misinterpreted Utah Code section
78B-6-512(2) to allow UDOT to amend its complaint following the
entry of the Final Order of Condemnation and the remand of Ivers
I. 	Accordingly, we reverse the district court’s order, and we
again remand the case. 	Because UDOT has admitted that Arby’s
condemned property was essential to the construction project, we
direct the district court to award appropriate damages for Arby’s
loss of view.
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¶32 	Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.