Cafe Rio v. LGO

1 There are six contiguous parcels in the development at
issue. Each parcel owner is a party to the Cross-Easement
Agreement. We limit our discussion to LGO and the Trust because
(continued...)
2009 UT 27
AMENDED OPINION
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Café Rio, Inc., a Utah corporation, No. 20070618
and Michael D. Hughes, as Trustee
of the Vera R. Hughes
Grandchildren’s Trust,
Plaintiffs and Appellees,
v.
Larkin-Gifford-Overton, LLC, F I L E D
a Utah limited liability company,
Defendant and Appellant. May 1, 2009
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Fifth District, St. George
The Honorable James L. Shumate
No. 030500734
Attorneys: Paul D. Veasy, T. Mickell Jimenez Rowe, Aaron D.
Lebenta, Salt Lake City, Aaron D. Randall, St.
George, for plaintiffs
James A. Boevers, M. David Eckersley, Michael N.
Zundel, Salt Lake City, Steven W. Beckstrom, St.
George, for defendant
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 In this case, we must determine the construction and
parking rights of two adjacent landowners Larkin-Gifford-Overton,
LLC (“LGO”), and Michael D. Hughes, Trustee of the Vera R. Hughes
Grandchildren’s Trust (“the Trust”), as established in the
Declaration of New Easements and Covenants (the “Cross-Easement
Agreement” or “Agreement”) executed between the parties.1 LGO

1 (...continued)
they are the only parcel owners who are parties to this dispute.
No. 20070618 2
owns Parcel 5 in a development in St. George; the Trust owns the
adjacent Parcel 4.
¶2 In 2003, LGO filed suit against Café Rio and other
defendants to determine the defendants’ rights to park on LGO’s
Parcel 5. Café Rio is not a party to the Agreement, but is a
tenant of the Hughes Building, which is owned by the Trust and
located on the Trust’s Parcel 4. To resolve the litigation, the
parties entered into a settlement agreement (the “Settlement
Agreement”), and the lawsuit was dismissed without prejudice.
¶3 A few months later, LGO began constructing a building
on its Parcel 5. In response, the Trust and Café Rio brought
suit, claiming that LGO’s construction violated the terms of the
Cross-Easement Agreement. The district court entered both a
preliminary injunction stopping LGO’s construction and a
restoration order requiring LGO to restore the property to its
pre-construction condition.
¶4 The Trust and Café Rio, and LGO, filed cross motions
for summary judgment with respect to the parties’ parking rights
under the Cross-Easement Agreement. The court granted the Trust
and Café Rio’s motion, ruling that LGO “cannot construct a
building on Parcel 5 without regard to the terms of the [Cross-
Easement Agreement].” The court also enjoined LGO “from future
violations of the parking agreements” and ruled that “LGO is
judicially estopped from challenging Café Rio’s [parking] rights
under the Settlement Agreement.” Thus, the court did not reach
the question of whether the allowance of Café Rio restaurant
customer parking on Parcel 5 merely because Café Rio maintained a
district office on Parcel 4 constituted an overburdening of the
easement. It is unclear whether the court reached LGO’s claim
that parking by Café Rio restaurant customers and employees on
Parcel 5 was prohibited under the terms of the Cross-Easement
Agreement. The court then granted attorney fees, costs, and
interest on its costs to the Trust and attorney fees and costs to
Café Rio.
¶5 LGO appeals, claiming that the district court erred in
(1) interpreting the Cross-Easement Agreement as limiting
the location on which LGO could construct a building on
Parcel 5 and granting summary judgment based on that
conclusion;

2 LGO claims several additional errors by the district
court, but because we hold that the district court erred in
interpreting the Cross-Easement Agreement, it is unnecessary to
reach these additional claimed errors.
3 No. 20070618
(2) ruling that LGO is judicially estopped from challenging
Café Rio’s rights to park on Parcel 5; and
(3) granting attorney fees, costs, and interest to the
Trust and attorney fees and costs to Café Rio.2
¶6 We reverse the district court’s decisions and, for the
reasons detailed below, hold that
(1) the Cross-Easement Agreement unambiguously allows LGO
to construct a building without limitation on where
that building may be placed on Parcel 5;
(2) LGO is not judicially estopped from challenging Café
Rio’s rights to park on Parcel 5; and
(3) the district court erred in granting attorney fees,
costs, and interest to the Trust and attorney fees and
costs to Café Rio. Thus, we reverse those awards.
¶7 Based on these holdings, we remand for the district
court to determine whether LGO suffered compensable damages in
connection with the preliminary injunction and the restoration
order, whether parking by Café Rio restaurant customers and
employees on Parcel 5 is prohibited under the terms of the Cross-
Easement Agreement, and whether such parking on Parcel 5
overburdens the easement if it is allowed merely because Café Rio
maintains a district office on Parcel 4. We also note that LGO
is entitled to pursue attorney fees and costs related to the
issue of its right to construct a building on Parcel 5.
BACKGROUND
¶8 LGO owns Parcel 5, one of six contiguous parcels of
real property in a development north of St. George Boulevard in
St. George. The Trust owns the adjacent Parcel 4 and the Hughes
Building on that parcel. Prior to February 2000, LGO had only
one access point for vehicular traffic off of St. George
Boulevard for Parcel 5; that access point was located about one-
half block away. LGO contacted the Trust to inquire about
obtaining an access easement across Parcel 4. As a result of
their negotiations, the owners of all six parcels entered into
the Cross-Easement Agreement.

3 After drafting the Cross-Easement Agreement in February
2000, the Trust and LGO entered into a separate agreement on
April 3, 2000. Under the terms of the April agreement, the Trust
agreed to provide LGO and the public an easement for ingress and
egress across Parcel 4 into the common areas. The Trust and Café
Rio argue that the April agreement is relevant to our analysis.
However, that agreement contains no provision prohibiting the
construction of buildings on Parcel 5 or relating to parking
rights. Hence, resolving this dispute hinges on the
interpretation of the Cross-Easement Agreement alone.
No. 20070618 4
¶9 The Agreement establishes common areas of open space in
the center of the six parcels. These common areas are defined
as, in part, “all of the areas of the Parcels . . . designed for
use as approaches, exits, entrances, and all parking lots, . . .
however expressly excluding all buildings (and any building(s)
constructed on Parcels 5 and 6 in the future).”
¶10 The Agreement also grants each parcel owner the right
to an “unobstructed view of any of the Parcels,” and it provides
a “nonexclusive easement for the parking of motor vehicles . . .
for the customers, invitees and employees of all business and
occupants of the buildings constructed on . . . any of the
Parcels.”3
¶11 Café Rio leases space for its district office in the
Hughes Building, which is owned by the Trust and located on
Parcel 4. Café Rio also owns and operates a Café Rio Mexican
Grill restaurant that is near, but not located on, any of the six
parcels that are subject to the Cross-Easement Agreement.
Nevertheless, Café Rio’s restaurant customers and employees began
parking on LGO’s Parcel 5. In response, in April 2003, LGO
brought suit against Café Rio and other defendants (the “2003
litigation”), claiming that Café Rio’s restaurant customers and
employees had no rights to park on Parcel 5 because the Café Rio
restaurant was not a party to the Cross-Easement Agreement, is
not located on any parcel of the property that is subject to the
Cross-Easement Agreement, and therefore is “not . . . entitled to
benefit from the [parking easement]” that is established in the
Cross-Easement Agreement. LGO further argued that allowing Café
Rio restaurant customers and employees to park on Parcel 5 merely
because Café Rio maintained a district office on Parcel 4
“unreasonabl[y] increase[d] the burden” on the easement. LGO
then asserted claims for trespass, waste, and private nuisance,
and sought a preliminary and permanent injunction.

4 The court’s order was entitled “Order Granting Café Rio’s
and the Trust’s Motion for Summary Judgment Re: Parking.” While
the title of the order suggests that it addresses only the issue
(continued...)
5 No. 20070618
¶12 The parties resolved the litigation by executing the
Settlement Agreement. The court then entered an order of
dismissal without prejudice, approving the Settlement Agreement.
¶13 Under the terms of the Settlement Agreement, the
parties agreed that “[t]he parking of motor vehicles within the
‘designated paved parking spaces’ [on Parcel 5] shall be non-
exclusive between the Parties, or their customers, employees,
and/or invitees (on a first come, first serve basis), as provided
in the [Cross-Easement Agreement].” LGO agreed not to tow any of
Café Rio’s customers’ and employees’ cars that were parked
according to these terms. LGO and Café Rio also, however,
expressly reserved their rights to litigate the terms of the
Cross-Easement Agreement.
¶14 In April 2004, LGO began constructing a two-story,
10,000 square foot building on the parking lot of Parcel 5. The
Trust, Café Rio, and another parcel owner, Flood Street,
initiated suit, claiming that LGO’s building constituted an
“obstruction” that was explicitly prohibited by the Cross-
Easement Agreement and seeking injunctive relief and damages.
¶15 Plaintiffs sought and were granted a preliminary
injunction to stop LGO’s construction of the new building. LGO
answered and brought four counterclaims, seeking declaratory
relief that it could construct a building in any location of its
choice on Parcel 5. LGO also asserted claims that it had raised
in the 2003 litigation, again challenging Café Rio’s restaurant
customers’ and employees’ rights to park on Parcel 5.
¶16 In August 2004, the Trust, Café Rio, and Flood Street
moved the district court to order LGO to restore the common area.
Following a hearing, the court ordered LGO to do so. The court
did not, however, resolve the issue of the parties’ parking
rights.
¶17 The parties then conducted discovery on their
respective parking rights and filed cross-motions for partial
summary judgment. The district court granted summary judgment
for the Trust and Café Rio and denied summary judgment for LGO,
ruling that (1) the Cross-Easement Agreement was “clear and
unambiguous” with regard to the parking and construction rights
of the parties;4 (2) LGO breached the Agreement by interfering

4 (...continued)
of parking, the court determined that the construction of LGO’s
building interfered with the parties’ parking rights, and,
therefore, the court ruled on both the parking and construction
issues in the summary judgment order.
5 The Trust and Café Rio also sought fees and costs under
the April 3 agreement. As noted, the April 3 agreement is
inapplicable to this dispute.
No. 20070618 6
with the Trust’s and Café Rio’s parking rights; (3) LGO was
judicially estopped from challenging Café Rio’s parking rights;
(4) LGO was enjoined from future violations of the [Cross-
Easement] Agreement; and (5) LGO could “not construct a building
on Parcel 5 without regard to the terms of the [Cross-Easement]
Agreement.”
¶18 The Trust and Café Rio sought attorney fees and costs
under the Cross-Easement Agreement.5 The district court awarded
the Trust and Café Rio attorney fees and costs; it also awarded
the Trust 18% interest on its costs and expenses. The court
entered final judgment in June 2007.
¶19 LGO timely appealed, claiming that the district court
erred in
(1) interpreting the Cross-Easement Agreement as limiting
the location on which LGO could construct a building on
Parcel 5 and granting summary judgment based on that
conclusion;
(2) ruling that LGO is judicially estopped from challenging
Café Rio’s rights to park on Parcel 5; and
(3) granting attorney fees, costs, and interest to the
Trust and attorney fees and costs to Café Rio.
¶20 We have jurisdiction pursuant to Utah Code section 78A-
3-102(3)(j) (2008).

6 Home Sav. & Loan v. Aetna Cas. & Sur. Co., 817 P.2d 341,
347 (Utah Ct. App. 1991).
7 See Green River Canal Co. v. Thayn, 2003 UT 50, ¶ 17, 84
P.3d 1134.
8 Id. (ellipses in original) (internal quotation marks
omitted).
7 No. 20070618
STANDARD OF REVIEW
¶21 We review a district court’s interpretation of a
written contract for correctness, granting no deference to the
court below.6
ANALYSIS
I. THE DISTRICT COURT ERRED IN INTERPRETING THE CROSS-EASEMENT
AGREEMENT
¶22 LGO first argues that the district court erred in
interpreting the Cross-Easement Agreement as “prohibiting LGO
from constructing buildings on Parcel 5” and in granting summary
judgment based on that conclusion.
¶23 There are three provisions of the Cross-Easement
Agreement that are relevant to determining whether LGO has the
right to construct a building on its Parcel 5 without limitation
on where that building may be placed: (1) the definition of
“Common Areas,” (2) paragraph 12, “Prohibition of Barriers,” and
(3) paragraph 2, “Composition and Use of Common Areas.”
¶24 The district court interpreted the provisions of the
Cross-Easement Agreement as being “clear and unambiguous” in
limiting the location on which LGO could construct a building on
Parcel 5. The district court was incorrect.
¶25 Under well-accepted rules of contract interpretation,
we look to the language of the contract to determine its meaning
and the intent of the contracting parties.7 We also “consider
each contract provision . . . in relation to all of the others,
with a view toward giving effect to all and ignoring none.”8
Where “the language within the four corners of the contract is
unambiguous, the parties’ intentions are determined from the
plain meaning of the contractual language, and the contract may

9 Id. (internal quotation marks omitted).
10 Deep Creek Ranch, LLC v. Utah State Armory Bd., 2008 UT
3, ¶ 16, 178 P.3d 886.
11 WebBank v. Am. Gen. Annuity Serv. Corp., 2002 UT 88,
¶ 20, 54 P.3d 1139 (internal quotation marks omitted).
12 Swenson v. Erickson, 2000 UT 16, ¶ 16, 998 P.2d 807.
13 The only apparent limitations on where buildings may be
constructed on Parcels 5 and 6 are the applicable zoning
ordinances.
No. 20070618 8
be interpreted as a matter of law.”9 Only if the language of the
contract is ambiguous will we consider extrinsic evidence of the
parties’ intent.10 We have explained that “ambiguity exists in a
contract term or provision if it is capable of more than one
reasonable interpretation because of uncertain meanings of terms,
missing terms, or other facial deficiencies.”11 Additionally,
“[u]nder the well-established rule of construction ejusdem
generis,” we determine the meaning of a general contractual term
based on the specific enumerations that surround that term.12
¶26 The question presented here is whether the Cross-
Easement Agreement unambiguously allows LGO to construct a
building without limitation on where that building may be placed
on Parcel 5. We hold that it does and address each of the
provisions at issue: (1) the definition of “Common Areas,” (2)
paragraph 12, “Prohibition of Barriers,” and (3) paragraph 2,
“Composition and Use of Common Areas.”
¶27 The Agreement defines “Common Areas” as “all of the
areas of the parcels . . . [which are] designed for use as
approaches, exits, entrances, and all parking lots, . . . however
expressly excluding all buildings (and any building(s)
constructed on Parcels 5 and 6 in the future).” (Emphasis
added.) Citing this definition, LGO argues that it “has the
right to construct buildings on its Parcel 5, and there are no
[contractual] limitations on where those buildings may be
placed.”13 LGO is correct.
¶28 The definition of common areas is clear and
unambiguous: it defines precisely what is a common area and
precisely what is not. Future buildings on Parcels 5 and 6 are
not. Under this definition, then, the parties explicitly agreed
that buildings would be constructed on Parcels 5 and 6, and the
parties placed no limitation on the location of those buildings.
By excluding buildings from the definition of common areas, the

9 No. 20070618
parties also implicitly agreed that buildings on Parcels 5 and 6
would not be subject to the restrictions placed on the defined
common areas.
¶29 The Trust and Café Rio contend, however, that the
explicit exclusion of buildings on Parcels 5 and 6 from the
definition of common areas “merely ensures that buildings, unlike
the Common Area parking lot and other defined areas, will not be
available for unrestricted common use. It does not grant LGO
carte blanch to put a building anywhere it wants, without regard
for the other provisions of the Cross-Easement Agreement.” The
Trust and Café Rio cite paragraphs 12 and 2 as support for this
conclusion.
¶30 Paragraph 12, entitled “Prohibition of Barriers,”
prohibits any parcel owner from
construct[ing] or erect[ing] within any of
the Parcels or on the perimeter of any of the
Parcels, any fence, wall, barricade, or
obstruction, whether temporary or permanent
in nature, which materially limits or impairs
the free and unimpeded flow of vehicular or
pedestrian traffic between and among the
Parcels or the ability to have an
unobstructed view of any of the Parcels.
(Emphases added.)
¶31 Citing the emphasized language in paragraph 12, the
Trust and Café Rio claim that “[c]onstruction of a building . . .
in a known and declared easement area is an ‘obstruction.’” They
also argue that the unobstructed view requirement is “perpetual
and unchangeable,” and that LGO’s building would violate
paragraph 12’s prohibition of barriers by obstructing the view of
other parcels.
¶32 When the provisions of the Cross-Easement Agreement are
construed together, it is clear that the parties contemplated the
construction of buildings and specifically indicated, as to each
parcel, where buildings would be allowed and where they would be
prohibited. As to Parcels 5 and 6, the definition of common
areas provides for buildings on those parcels. Paragraph 2,
“Composition and Use of Common Areas,” on the other hand,
explicitly prohibits any “building or other structure [from
being] erected or placed upon any of the Common Areas of Parcels
1 through 4.” Given this level of specificity regarding
buildings, it is plain that the parties did not intend the
general term “obstruction” to include buildings.

14 See, e.g., Fairbourn Commercial, Inc. v. Am. Hous.
Partners, Inc., 2004 UT 54, ¶ 11, 94 P.3d 292.
No. 20070618 10
¶33 Additionally, interpreting “obstruction” to include
buildings would eviscerate LGO’s ability to construct a building
on Parcel 5--a right explicitly bargained and provided for. We
will not interpret a general contractual term such that it
renders an explicit right meaningless.14
¶34 Furthermore, under the principle ejusdem generis, the
general term “obstruction,” as used in paragraph 12, should be
construed according to the specific enumerations of “fence, wall,
[and] barricade,” that precede it. Under this interpretive
framework, the term obstruction refers to those barriers that are
similar to fences, walls, and barricades. A building is not
similar in character or purpose to those barriers.
¶35 The Trust and Café Rio also claim that LGO’s building
would violate paragraph 12’s prohibition on any “obstruction
. . . [that] materially limits or impairs . . . the ability to
have an unobstructed view of any of the Parcels.” The
unobstructed view requirement is, however, limited to defined
“obstructions.” As we have just explained, a building is not an
“obstruction” within the meaning of paragraph 12. Therefore, the
unobstructed view requirement does not apply to LGO’s building,
and this argument fails.
¶36 The Trust and Café Rio next claim that LGO breached
paragraph 2, entitled “Composition and Use of Common Areas.”
Referring to the definition of “Common Areas” that immediately
precedes it, paragraph 2 provides that “none of such Common Areas
shall be changed in any material respect . . . without the prior
written consent of all Owners of the Parcels.” The Trust and
Café Rio contend that because “LGO did not seek permission from
other parcel owners prior to beginning construction” of its
building, LGO breached paragraph 2. This argument has no merit.
¶37 The limitation in paragraph 2 on altering common areas
is necessarily confined to those areas defined as “common.” That
is, owners must obtain the consent of all parcel owners before
materially altering defined common areas. The common areas are
defined to exclude buildings on Parcels 5 and 6. Therefore, LGO
was not required to obtain the consent of all parcel owners
before beginning construction of its building on Parcel 5.
¶38 Because the Cross-Easement Agreement unambiguously
provides that LGO may construct a building on Parcel 5 without
limitation as to the building’s location, we reverse the district
court’s grant of summary judgment to the Trust and Café Rio on

15 Given our holding, it is unnecessary to reach LGO’s claim
that the district court erred in visiting the parcels. The
district court visited the site twice and entered the preliminary
injunction based upon the language of the “agreement [between]
the parties,” as well as its “own observations of the property.”
We strongly caution district court judges to avoid undertaking
their own “off-the-record fact gathering,” which may limit the
opportunity of parties to “cross-examine, to object to the
introduction of the evidence, or to rebut the evidence.” Lillie
v. United States, 953 F.2d 1188, 1191 (10th Cir. 1992).
16 LGO cites paragraph 15 of the Cross-Easement Agreement,
which provides that “[e]ach and all of the easements . . .
contained in this agreement are made for the direct, mutual or
reciprocal benefit of the Owners and occupants of the respective
Parcels” and prohibits the transfer or assignment of the easement
rights to any non-owner or non-parcel occupant. (Emphasis
added.)
11 No. 20070618
this issue and order that summary judgment be entered on behalf
of LGO.15
¶39 It necessarily follows from our holding that the
district court erred in issuing the preliminary injunction and
the restoration order based on its interpretation of the Cross-
Easement Agreement. LGO seeks damages, and we remand for the
district court to determine whether LGO suffered compensable
damages related to the preliminary injunction and the restoration
order, and, if so, the amount of such damages.
II. THE DISTRICT COURT ERRED IN RULING THAT LGO IS JUDICIALLY
ESTOPPED FROM CHALLENGING CAFÉ RIO’S PARKING RIGHTS ON PARCEL 5
¶40 LGO next argues that the district court erred in ruling
that “LGO is judicially estopped from challenging Café Rio’s
[parking] rights under the Settlement Agreement.” Based on its
holding, the court did not reach LGO’s claim that, because the
Café Rio restaurant is not a party to the Cross-Easement
Agreement and “is not located on any Parcel of the Property” that
is subject to the Cross-Easement Agreement, it has no rights to
park on Parcel 5.16 LGO also argues that the easement associated
with “Parcel 5 is overburdened if it is allowed to be used for
the benefit of [the Café Rio restaurant] that is not a
beneficiary of the easement under the Cross-Easement Agreement.”
We hold that LGO is not judicially estopped from challenging Café
Rio’s parking rights, and we remand for the district court to
determine whether parking by Café Rio restaurant customers and
employees on Parcel 5 is prohibited under the terms of the Cross-
Easement Agreement and whether such parking overburdens the

17 Nebeker v. State Tax Comm’n, 2001 UT 74, ¶ 26, 34 P.3d
180 (internal quotation marks omitted).
18 For example, LGO agreed not to tow any of Café Rio’s
customers’ cars, and Café Rio agreed not to park on the drive
strip or dirt pad on Parcel 5.
No. 20070618 12
easement if it is allowed merely because Café Rio maintains a
district office on Parcel 4.
¶41 The Trust and Café Rio claim that because LGO signed
the Settlement Agreement, it is judicially estopped from now
challenging Café Rio’s restaurant customers’ and employees’
parking rights on Parcel 5. Specifically, the Trust and Café Rio
point to the paragraph in the Settlement Agreement providing that
each parcel “shall have appurtenant thereto and be benefitted by
a nonexclusive easement for the parking of motor vehicles . . .
for the customers, invitees and employees of all business and
occupants of the buildings . . . on any of the Parcels.” The
Trust and Café Rio interpret this provision to conclusively
establish the rights of Café Rio’s restaurant customers and
employees to park on Parcel 5. They claim that LGO is judicially
estopped from denying these rights.
¶42 “Under judicial estoppel, a person may not, to the
prejudice of another person, deny any position taken in a prior
judicial proceeding between the same persons or their privies
involving the same subject matter, if such prior position was
successfully maintained.”17
¶43 Judicial estoppel is inapplicable in this case,
however, because pursuant to the language of the Settlement
Agreement, the parties explicitly reserved the right to litigate
the terms of the Cross-Easement Agreement. In the paragraph of
the Settlement Agreement entitled “Reservation of Rights,” Café
Rio and LGO agreed that “no party is waiving any right, claim, or
defense it has, nor making any admission with respect to the
interpretation or meaning of the [Cross-Easement Agreement.]”
Thus, the Settlement Agreement merely stayed the litigation, with
both parties retaining all future rights to litigate. This
conclusion is further reinforced by the fact that the parties
agreed that the case would be dismissed without prejudice, and it
was.
¶44 Regarding the promises made by each party in the
Settlement Agreement, those promises applied only to the time
between the execution of the Settlement Agreement and the
commencement of any future litigation.18 Thus, the promises

19 Paragraph 19 of the Cross-Easement Agreement provides
that “[i]f any action is brought . . . to enforce or interpret
any of the . . . provisions [of the Cross-Easement Agreement],
. . . the party prevailing in such action shall be entitled to
recover from the unsuccessful party reasonable attorney fees
(including those incurred in connection with any appeal).”
13 No. 20070618
cannot be construed as permanently binding, and judicial estoppel
simply does not apply.
¶45 The district court erred in ruling that LGO was
judicially estopped from challenging Café Rio’s rights to park on
Parcel 5. We remand for a determination of whether parking by
Café Rio’s restaurant customers and employees on Parcel 5 is
prohibited under the terms of the Cross-Easement Agreement and
whether such parking overburdens the easement if it is allowed
merely because Café Rio maintains a district office on Parcel 4.
III. THE DISTRICT COURT ERRED IN GRANTING ATTORNEY FEES, COSTS,
AND INTEREST TO THE TRUST AND ATTORNEY FEES AND COSTS TO CAFÉ RIO
¶46 Based on our conclusion that the district court erred
in granting summary judgment to the Trust and Café Rio on the
issue of LGO’s right to construct a building on Parcel 5, and our
conclusion that LGO is not judicially estopped from challenging
Café Rio’s rights to park on Parcel 5, we reverse the grant of
attorney fees, costs, and interest to the Trust, and the grant of
attorney fees and costs to Café Rio. We note that LGO is
entitled to pursue attorney fees and costs related to the issue
of its right to construct a building on Parcel 5.19
CONCLUSION
¶47 We reverse the district court’s grant of summary
judgment to the Trust and Café Rio. First, we hold that the
Cross-Easement Agreement unambiguously allows LGO to construct a
building without limitation on where that building may be placed
on Parcel 5 and order that summary judgment be entered on behalf
of LGO. Second, we hold that LGO is not judicially estopped from
challenging Café Rio’s rights to park on Parcel 5.
¶48 Based on these holdings, we reverse the award of
attorney fees, costs, and interest to the Trust and the award of
attorney fees and costs to Café Rio, and we recognize that LGO is
entitled to pursue attorney fees and costs related to the issue
of its right to construct a building on Parcel 5. Additionally,
we remand for the district court to determine whether LGO
suffered compensable damages related to the preliminary
injunction and the restoration order, whether parking by Café

No. 20070618 14
Rio’s restaurant customers and employees on Parcel 5 is
prohibited under the terms of the Cross-Easement Agreement, and
whether such parking overburdens the easement, if it is allowed
merely because Café Rio maintains a district office on Parcel 4.
---
¶49 Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Judge Himonas concur in Associate Chief Justice Durrant’s
opinion.
¶50 Having disqualified himself, Justice Nehring does not
participate herein; District Judge Deno Himonas sat.