MOUNTAIN WEST TOWING v. WEST JORDAN

2026 UT App 82

THE UTAH COURT OF APPEALS

MOUNTAIN WEST TOWING, ET AL., 1
Appellees and Cross-appellants,
v.
WEST JORDAN CITY, ET AL., 2
Appellants and Cross-appellees.

Opinion
No. 20240498-CA
Filed May 21, 2026

Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 180909099

James C. Phillips, H. Christopher Bartolomucci, and
Joshua J. Prince, Attorneys for Appellants and
Cross-appellees
April Hollingsworth and Katie Panzer,
Attorneys for Appellees and Cross-appellants

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1 Mountain West Towing bought property in West Jordan,
Utah, for use as a commercial towing lot. The company and

1. Additional appellees and cross-appellants include Lisa Butcher,
Advantage Auto & Towing, William Butcher, Quality Auto
& Towing, Penny Butcher, West Bench Towing, Barbara Butcher,
All Mountain Towing, Cory Fox, Ready Set Tow, LeeAnn Doppel,
GW Towing, and Alberto Gaston Wachterdorff.

2. Additional appellants and cross-appellees include Kiel Coomes
and Brock Hudson.
Mountain West Towing v. West Jordan City

several others operated tow lots from the property for
several years until the city ordered them to shut down.
The companies and their owners then sued the city and two of its
employees for damages and injunctive relief. Prior to trial, the
court dismissed the claims against the city’s employees and, for
procedural reasons, excluded evidence of the plaintiffs’
“economic damages.” After trial, a jury awarded the individual
plaintiffs—the owners of the towing companies—nearly $1.3
million in “emotional distress damages,” and the district court
denied the plaintiffs’ requested injunctive relief but granted the
plaintiffs most of their requested attorney fees. Both sides appeal,
raising various challenges. We ultimately conclude that all of the
plaintiffs’ claims either were properly dismissed or should
have been dismissed. We therefore affirm in part and reverse in
part.

BACKGROUND

Mountain West Purchases the Property

¶2 In 2012, Mountain West Towing (Mountain West)
purchased a parcel of land (the Property) in West Jordan.
Before the purchase, Lisa Butcher, Mountain West’s owner,
had inquired with West Jordan City (the City) about using
the Property as a tow yard. 3 A City employee told Lisa that
the Property already had the required conditional use permit
(CUP). All she needed to do, according to the employee, was
resurface the Property’s parking lot with “concrete, asphalt, or
recycled asphalt” and obtain the City engineering department’s

3. “Because many of the individuals in this case share the same
last name, we follow our usual practice of referring to them by
their [given] names, with no disrespect intended by the apparent
informality.” Brown v. Amidan, 2025 UT App 144, ¶ 1 n.1, 579 P.3d
1075 (cleaned up).

20240498-CA 2 2026 UT App 82
Mountain West Towing v. West Jordan City

approval. 4 With this information, Lisa went forward with the
purchase of the Property. She then acquired a land disturbance
permit to place a “new crushed asphalt surface” on the lot, and
she hired contractors to prepare drawings and complete the
resurfacing.

¶3 Lisa then began operating Mountain West from the
Property. Some of her family members also started running
their own towing companies from the Property, including
her husband, Cory Fox; her mother, Barbara; her brother,
William (Bill); and Bill’s wife, Penny. At some point, LeeAnn
Doppel and Gaston Wachterdorff began operating tow
companies of their own from the Property as well. 5 The plaintiff
companies operated from the Property for several years and
generated a significant portion of their revenue by securing spots
on various police departments’ tow rotations, including the
City’s. 6

¶4 The plaintiff companies each submitted an application
(Application) to be on the City’s rotation. In so doing, they
signed the Application, which contained a provision indicating

4. The employee apparently failed to mention that the CUP
allowed for storage of only up to ten vehicles at a time on just
2,000 square feet of the Property. The Property is approximately
67,500 square feet.

5. We refer to Lisa, Cory, Barbara, Bill, Penny, LeeAnn, and
Gaston collectively as the plaintiff owners. We refer to the
companies owned by the plaintiff owners as the plaintiff
companies.

6. A tow rotation is a list of tow companies that police
departments will use on a rotating basis to secure a tow for a
vehicle within their jurisdiction that has been in a crash, has been
abandoned, or is otherwise inoperable. Although the City’s police
department ran the tow rotation, we refer to it as the City’s tow
rotation.

20240498-CA 3 2026 UT App 82
Mountain West Towing v. West Jordan City

they “accept[ed] the conditions of the West Jordan Police Policy
No. 045” (Directive 45) and “accept[ed] responsibility for the
actions of [their] owners, agents, and employees as they relate to
[Directive 45] and d[id] so with the full understanding that
inclusion on the towing rotation [was] voluntary and a
discretionary privilege extended by the West Jordan Chief of
Police, or his designee, and [was] not a legal right.” Directive 45
outlined a procedure under which the City could remove or
suspend companies from the tow rotation. Specifically, it created
a “suspension scale” that, based on the severity of the violation or
infraction, provided for anything from a “10-day warning notice”
to a “3-month suspension or permanent removal from the
rotation.” It provided that “[a] tow company, whose business,
yard, trucks, or employees are not in compliance with the
requirements set forth [therein], may be suspended and/or
removed from the [City’s] approved list of tow service providers.”
Directive 45 also set forth an appellate procedure for companies
to challenge their removal or suspension from the tow rotation.

The City Orders the Plaintiff Companies to Stop Using the Property

¶5 At some point, Bill and LeeAnn began voicing concerns
that other companies on the City’s tow rotation were receiving
preferential treatment at the plaintiff companies’ expense. The
complaints eventually led the City’s tow rotation coordinator
(Coordinator) to send an email to every company on the rotation
indicating that the City would increase enforcement of its policies.
Sometime after that, Coordinator inspected the Property and
determined that some of the vehicles on the lot were parked too
closely together in violation of Directive 45. Coordinator warned
Penny and Bill in November 2016 about the issue and removed
their companies from the rotation two weeks later when the City
determined that they hadn’t addressed the problem.

¶6 Believing that Coordinator was biased against him, Bill
asked the City’s chief of police (the Chief) to reinspect the

20240498-CA 4 2026 UT App 82
Mountain West Towing v. West Jordan City

Property, and he agreed to do so. 7 When he inspected the
Property, however, the Chief discovered issues he believed went
beyond vehicle spacing. He then asked the City’s manager of code
enforcement (Manager) to determine whether there were any
code violations on the Property. Manager investigated and found
that the plaintiff companies had ”operated outside” the applicable
CUP because the plaintiff companies were using far more than
2,000 square feet to operate the tow lots. See supra note 4. After his
investigation, Manager issued a “Notice of Violation,” dated
February 8, 2017, informing Mountain West that it needed to
obtain a CUP “to operate a towing and/or salvage yard” on the
Property and that the plaintiff companies “must cease operation
until [the CUP] is obtained.” On February 14, Manager informed
the plaintiff companies that Mountain West was “in violation of
city ordinance” because it did not have a CUP and that “all
businesses . . . currently operating at [the Property] need[ed] to
immediately cease operations and vacate [the Property] by March
20, 2017.” He removed the plaintiff companies from the City’s tow
rotation without notifying them.

¶7 The City maintains that, while it was investigating the
potential violation of Directive 45, it determined that the Property
was located in a “watershed overlay protection zone” and less
than 250 feet away from a drinking water well. For this reason,
the City claimed that it was concerned about fluids leaking from
wrecked vehicles seeping into the ground and contaminating
drinking water. Lisa and Cory subsequently claimed that the

7. The plaintiffs contend that they disputed at trial whether Bill
asked the Chief to reinspect the Property. However, Coordinator
testified that Bill personally asked the Chief to inspect the
Property, and the plaintiffs point to nothing other than their
counsel’s assertion during the proceedings below that the issue
was disputed to support their contention. Because counsel’s
assertion was not evidence, see, e.g., State ex rel. Div. of Forestry, Fire
& State Lands v. Six Mile Ranch Co., 2006 UT App 104, ¶ 31 n.10,
132 P.3d 687 (“[A]rgument of counsel is not evidence.”), we treat
this fact as definitively established.

20240498-CA 5 2026 UT App 82
Mountain West Towing v. West Jordan City

City’s mayor told them that the police department had a more
sinister reason for its conduct—it “obviously” had a “vendetta”
against the plaintiffs.

¶8 Initially, Lisa tried to work with the City to bring the
Property into compliance. In May 2017, the City approved a new
CUP for the Property, detailing seventeen conditions with which
Mountain West needed to comply to use the Property as a tow lot
again. By the next month, however, Mountain West had “stopped
all efforts to comply” with the new CUP, and the CUP expired in
May 2018.

The Plaintiffs Sue the City, Manager, and Coordinator

¶9 In December 2018, the plaintiffs sued the City, Manager,
and Coordinator. In their amended complaint, the plaintiffs
alleged that the City shut down the Property and removed the
plaintiff companies from the tow rotation based on pretext. The
plaintiffs further alleged that the City’s actions effectively
removed the plaintiff companies from all other police
departments’ tow rotations because they could no longer operate.
These actions, taken together, allegedly caused the plaintiffs
millions of dollars in damages. As relevant on appeal, the
plaintiffs asserted due process and equal protection claims under
42 U.S.C. § 1983 (section 1983) and a zoning estoppel claim under
state law. 8 They sought damages, injunctive relief, and attorney
fees.

Pretrial Matters

¶10 After the close of discovery, the City—pursuant to rule
26(d)(4) of the Utah Rules of Civil Procedure—sought to exclude

8. The plaintiffs also asserted claims for negligence, intentional
interference with economic relations, breach of contract, and
breach of the implied covenant of good faith and fair dealing. The
court dismissed each of these claims prior to trial, and those
claims are not at issue in this appeal.

20240498-CA 6 2026 UT App 82
Mountain West Towing v. West Jordan City

one of the plaintiffs’ witnesses, as well as all evidence of the
plaintiffs’ “economic damages.” The court granted both requests.
The City also moved for summary judgment on the plaintiffs’
section 1983 claims. Concluding that those claims were not “based
on a clearly established statutory or constitutional right,” the
court determined that Coordinator and Manager were entitled to
qualified immunity and granted summary judgment in their
favor on those claims. However, the court found that there were
genuine issues of material fact regarding whether the City had
violated the plaintiffs’ equal protection and due process rights
and therefore denied the motion to the extent it sought dismissal
of those claims against the City.

¶11 The plaintiffs also moved for partial summary judgment,
asking the court to rule, as a matter of law, that they had a
property interest in remaining on the tow rotation. The court
concluded that once the plaintiffs were added to the rotation,
Directive 45 gave them that property interest. The court based its
conclusion on the fact that the policy gave penalized companies a
right to appeal the City’s determination.

Trial and Post-Trial Matters

¶12 The case proceeded to a jury trial. Before the parties began
putting on evidence, the district court raised a threshold question
about whether the plaintiff owners had standing to recover
damages based on injuries allegedly suffered by the plaintiff
companies. The plaintiffs argued that the plaintiff owners had
standing because “their constitutional rights, as individuals, were
violated.” In response, the City argued that the plaintiff owners’
rights were not violated because they had not been removed from
the rotation. The court ultimately determined that the plaintiff
owners had standing to seek emotional distress damages from the
City.

¶13 The witnesses testified to the facts stated above. With the
exception of Gaston, the plaintiff owners also testified that the
City’s actions “harmed them in ways separate and unique from

20240498-CA 7 2026 UT App 82
Mountain West Towing v. West Jordan City

the harm caused to the [plaintiff companies].” Bill testified that,
before the events that gave rise to the litigation, the family would
frequently get together for “Christmas,” “birthdays,” and “all that
stuff.” But after the plaintiff companies were ordered to cease
operations and vacate the Property, Lisa and Cory blamed Bill for
the problems with the City, and Bill likewise blamed Lisa. Cory
testified that the family still tried to spend holidays together but
that, when they did so, “it was like oil and water” and “just didn’t
work.” Bill and Penny similarly testified that prior to the events,
they rarely argued but that their marriage deteriorated after the
plaintiff companies were shut down. For her part, Barbara
testified that the fighting “upset [her] really bad” and that she just
wanted her family “to get along” and be “normal.”

¶14 The plaintiffs also put on evidence that another tow
company on the City’s rotation operated under a CUP requiring
that it have a paved lot “to protect the water table from
contamination by leaking oil and gasoline.” Despite the
requirement, the company had not paved its lot with the required
materials, yet the City did not take any action against that
company.

¶15 After the plaintiffs rested their case, the City moved for a
directed verdict on the section 1983 claims. The court initially
denied the motion. But at a later point in trial, the court revisited
part of its ruling and directed a verdict in favor of the City on the
plaintiffs’ substantive due process claims, concluding that the
City’s actions did not shock the conscience as a matter of law.

¶16 After the case was submitted to the jury, and after
deliberation, the jury determined that the City had violated the
plaintiffs’ rights to procedural due process. It also determined that
the City had violated Lisa’s and Mountain West’s equal protection
rights. The jury awarded a total of nearly $1.3 million in damages
to the plaintiff owners, as well as nominal damages of $1 to each
of the plaintiff companies.

¶17 The court had determined that the zoning estoppel claim
was to be decided by the court and not by the jury, and it asked

20240498-CA 8 2026 UT App 82
Mountain West Towing v. West Jordan City

that the parties brief the matter after the evidence had been
submitted. Following oral argument on the issue, the court ruled
against the plaintiffs based on Lisa’s failure to comply with the
requirements of the land disturbance permit and related drawings
when she had the Property’s parking lot repaved. Specifically, the
court found that evidence from the plaintiffs’ “own engineer
show[ed] that [Lisa] and Mountain West . . . failed to install . . . six
inches of road base prior to installing 3 inches of recycled asphalt
and failed to apply any asphalt sealer or binding agent over the
recycled asphalt.” The court thus denied the plaintiffs’ zoning
estoppel claim because they had not complied with the
“conditions in the very permits they claimed to have relied upon.”

¶18 Finally, after the jury rendered its verdict and the court
decided the zoning estoppel claim, the plaintiffs asked the court
to award them more than $500,000 in attorney fees as prevailing
parties under 42 U.S.C. § 1988. The court awarded the plaintiffs
most of their requested attorney fees. But it reduced the award by
a little over $40,000 based on hours that counsel billed on “two
unsuccessful matters,” including the zoning estoppel claim and
an interlocutory appeal that is not relevant for purposes of the
instant appeal.

¶19 The City appeals, and the plaintiffs cross-appeal.

ISSUES AND STANDARDS OF REVIEW

¶20 In its appeal, the City raises several issues. First, it
challenges the district court’s determination that the plaintiff
owners had standing to recover emotional distress damages. “We
generally review challenges to standing as a mixed question of
fact and law because they involve the application of a legal
standard to a particularized set of facts. We defer to the district
court’s factual determinations but give minimal discretion to
determinations of whether a given set of facts fits the legal
requirements for standing.” Planned Parenthood Ass’n of Utah v.
State, 2024 UT 28, ¶ 42, 554 P.3d 998 (cleaned up).

20240498-CA 9 2026 UT App 82
Mountain West Towing v. West Jordan City

¶21 The City also maintains that the district court should have
dismissed the plaintiffs’ procedural due process and equal
protection claims because (1) the plaintiffs lacked a property
interest in remaining on the City’s tow rotation and (2) the
Property’s location in a “drinking water protection zone” and
close proximity to a drinking water well required the plaintiffs to
establish that another tow company on the rotation had been
allowed to operate in the same type of area. Constitutional issues
present “questions of law that we review for correctness.” Salt
Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 47,
299 P.3d 990 (cleaned up).

¶22 Finally, the City argues that the district court erroneously
awarded the plaintiffs most of their requested attorney fees.
“Whether attorney fees are recoverable in an action is a question
of law, which we review for correctness.” Kenny v. Rich, 2008 UT
App 209, ¶ 23, 186 P.3d 989 (cleaned up). However, we review a
court’s determination that a party is entitled to fees as a
“prevailing party” under 42 U.S.C. § 1988(b) for an abuse of
discretion. See Jacob v. Bezzant, 2009 UT 37, ¶ 32, 212 P.3d 535.

¶23 In their cross-appeal, the plaintiffs challenge several of the
district court’s rulings. 9 First, the plaintiffs argue that the court
erred in denying their zoning estoppel claim. On an equitable
claim, “we defer to a district court’s factual findings unless there
is clear error, but we review its legal conclusions for correctness.”
Berrey v. Brown (In re Estate of Berrey), 2024 UT App 21, ¶ 13, 545
P.3d 314 (cleaned up). “However, because of the fact-intensive
nature of equitable doctrines, we grant the district court broader
discretion in applying the law to the facts.” Id. (cleaned up).

¶24 The plaintiffs also assert that the district court erred in
determining as a matter of law that the City’s actions did not

9. As we explain, see infra note 22, our resolution of the City’s
arguments renders moot all but two of the issues the plaintiffs
raise, so we need not recite the applicable standards of review for
the other issues.

20240498-CA 10 2026 UT App 82
Mountain West Towing v. West Jordan City

shock the conscience as required to establish a substantive due
process claim. As noted, constitutional issues present questions of
law that we review for correctness. Jordan River Restoration
Network, 2012 UT 84, ¶ 47.

ANALYSIS

I. The City’s Appeal

A. Standing

¶25 At the outset of trial, the district court determined that the
plaintiff owners had standing to recover emotional distress
damages based on injuries allegedly suffered by the plaintiff
companies. The City argues that the court’s ruling was erroneous
because those damages are derivative of harm caused to the
plaintiff companies. We agree with the City and therefore vacate
the jury’s award of damages to the plaintiff owners. 10

¶26 “The general rule is that a litigant must assert his own legal
rights and interests, and cannot rest his claim to relief on the legal
rights or interests of third parties.” Shelledy v. Lore, 836 P.2d 786,
789 (Utah 1992) (cleaned up). In the corporate context, this means
that the company itself is the proper party to bring a legal action

10. The plaintiffs argue that the City has “failed to marshal the
evidence and thus cannot challenge any factual finding”
regarding the plaintiff owners’ standing. The plaintiffs’ argument
rests on a faulty premise “[b]ecause the challenge here is not
directed at the [district] court’s factual findings.” Schmith v.
Schmit, 2025 UT App 124, ¶ 9 n.1, 577 P.3d 365. Instead, the City
challenges the court’s legal conclusion that the “facts fit[] the legal
requirements for standing.” Planned Parenthood Ass’n of Utah v.
State, 2024 UT 28, ¶ 42, 554 P.3d 998 (cleaned up). In other words,
the dispute is legal, not factual, so the City does not need to
marshal the evidence on this issue. See Schmith, 2025 UT App 124,
¶ 9 n.1.

20240498-CA 11 2026 UT App 82
Mountain West Towing v. West Jordan City

when it is injured, not “the shareholders who experience loss due
to their pecuniary interest in the business.” Stone Flood & Fire
Restoration, Inc. v. Safeco Ins. Co. of Am., 2011 UT 83, ¶ 34, 268 P.3d
170. While an exception allows shareholders to sue when they
“experience[] a distinct injury that is not derivative of the harm to
the corporation, . . . shareholders have no standing to pursue a
claim of intentional infliction of emotional distress based on the
destruction or degradation of the corporation.” Id. ¶¶ 35–36. The
exception is “narrow” and applies only when “the wrong itself is
a violation of a duty arising from a contract or otherwise” and is
“owed directly to the shareholder.” Stocks v. United States Fid.
& Guar. Co., 2000 UT App 139, ¶ 11, 3 P.3d 722 (cleaned up); see
also Audio Odyssey, Ltd. v. United States, 243 F. Supp. 2d 951, 959
(S.D. Iowa 2003) (“A ‘distinct’ injury is one in which the claimant’s
rights have been violated, not merely one in which the claimant is
indirectly harmed because of one party’s injury to another.”
(cleaned up)), aff’d, 373 F.3d 870 (8th Cir. 2004).

¶27 In Stone Flood, a company’s place of business was
destroyed in a fire. 2011 UT 83, ¶ 3. The company filed a claim
with its insurer, and although the insurer initially suspected
arson, it paid nearly $1.2 million under the policy “within ten
months of the fire.” Id. ¶¶ 4–5. Nonetheless, the company and its
owners sued the insurer, alleging that its untimely payments
caused the plaintiffs’ “financial collapse” and asserting various
claims sounding in contract and fraud. Id. ¶¶ 6, 8. The owners also
asserted a claim for intentional infliction of emotional distress
(IIED). Id. ¶ 8. The district court determined that the owners’
emotional distress was derivative of the damage done to the
company by the insurer’s “alleged failure” to cover the company’s
losses and the company’s “resulting collapse.” Id. ¶ 11. For this
reason, the court concluded that the owners lacked standing to
sue for emotional distress and granted summary judgment in
favor of the insurer on the IIED claim. Id.

¶28 The owners appealed, arguing that they “asserted distinct
and palpable injuries that [were] not derivative of the harm” to
the company in that (1) “they were forced to mortgage their home

20240498-CA 12 2026 UT App 82
Mountain West Towing v. West Jordan City

to obtain operating funds” for the company, (2) “they had to
personally guarantee some of [the company’s] business deals with
suppliers and others,” and (3) the company “suffered a
diminished reputation.” Id. ¶ 41. Applying the principles outlined
above, the Utah Supreme Court rejected these arguments and
affirmed the district court’s ruling, explaining that each asserted
injury was either directly suffered by the company or derivative
of that injury. Id. The court also emphasized that the owners had
not shown that the insurer owed them any “special dut[ies].” Id.
The fact that the owners bore the practical effect of the losses was
irrelevant. Id. ¶ 40.

¶29 Turning to the instant case, the plaintiff owners testified
that the City’s actions caused significant discord in the Butcher
family. Lisa and Cory blamed Bill for the problems with the City,
and Bill blamed Lisa. To the extent the family would try to get
together for the holidays, it was “like oil and water” and “just
didn’t work.” Moreover, the stress of the incident similarly led to
strife in Bill and Penny’s marriage. And Barbara was upset that
her children were fighting; she wanted everyone “to get along”
and be “normal.” The district court concluded that these injuries
were enough to give standing to the plaintiff owners to recover
emotional distress damages.

¶30 The court’s ruling was erroneous. For one thing, the
plaintiffs have identified no contractual or tort duties that would
have run to the plaintiff owners on the facts of this case. 11 See
Stocks, 2000 UT App 139, ¶ 11 (explaining that the “narrow

11. The plaintiffs may have become cognizant of this issue in the
proceedings below when, on the eve of trial, they moved to
amend their complaint to allege that the plaintiff owners were
third-party beneficiaries of a contract between the plaintiff
companies and the City. The court denied the motion, holding
that it would be “unfairly prejudicial to the City” to allow the
plaintiffs to amend the complaint so late in the proceedings. On
appeal, the plaintiffs do not challenge the court’s denial of the
motion to amend.

20240498-CA 13 2026 UT App 82
Mountain West Towing v. West Jordan City

exception” to the bar against individual shareholder suits applies
when “the wrong itself is a violation of a duty arising from a
contract or otherwise, and owed directly to the shareholder”
(cleaned up)); cf. Pepe v. General Motors Acceptance Corp., 604 A.2d
194, 196 (N.J. Super. Ct. App. Div. 1992) (rejecting car dealership
owner plaintiffs’ argument that “their role as guarantors of the
debt of the dealerships establishe[d] a ‘special relationship’
creating duties owing directly to them”). They similarly fail to
identify any authority for the proposition that either the Equal
Protection Clause or the Due Process Clause, standing alone,
creates any duties that a government owes to the shareholders of
a corporation when the corporation and the government are the
parties actually dealing with each other. 12

¶31 Additionally, the plaintiff owners’ asserted injuries were
based entirely upon the destruction or degradation of the plaintiff
companies. The testimony of the plaintiff owners makes clear that
they would not have suffered the injuries but for the City’s actions
taken against the corporate entities. Although the emotional
distress alleged in Stone Flood centered on pecuniary harms
suffered by the plaintiff owners that flowed from the claimed
degradation of their company, see 2011 UT 83, ¶ 41, the plaintiff
owners’ injuries here are no less derivative than those alleged by
the owners in Stone Flood. Pushing back, the plaintiffs argue that
“[w]here, as here, government officials’ actions violate both the
constitutional rights of corporations and the constitutional rights

12. The closest they get to citing any authority on this point is their
invocation of Citizens United v. Federal Election Commission, 558
U.S. 310 (2010), for the proposition that “both individuals and
corporations have constitutional rights.” Citizens United
addressed the constitutionality of a federal statute barring
“corporations and unions from using their general treasury funds
to make independent expenditures for speech defined as an
electioneering communication or for speech expressly advocating
the election or defeat of a candidate.” 558 U.S. at 318–19 (cleaned
up). The case did not address any duties that the government
owes to the shareholders of a corporation with which it deals.

20240498-CA 14 2026 UT App 82
Mountain West Towing v. West Jordan City

of the individual owners, both parties have claims and both
parties have standing.” A Tenth Circuit case demonstrates why
they are mistaken.

¶32 In Guides, Ltd. v. Yarmouth Group Property Management, Inc.,
the plaintiffs—a corporation and its sole shareholder, who was
Black—sued the corporation’s landlord under 42 U.S.C. § 1981,
alleging that the landlord declined to renew the lease based on the
shareholder’s race. 295 F.3d 1065, 1069, 1074 (10th Cir. 2002). At
the conclusion of trial, the jury awarded $1.7 million to the
plaintiff shareholder and $1.15 million to the plaintiff corporation.
Id. at 1071. After trial, the district court vacated the award to the
shareholder, ruling that her claims were derivative. Id. On appeal,
the Tenth Circuit affirmed, explaining that the shareholder’s
“distress arose from the failure of the [landlord] to contract with
or lease to [the corporation] and was a product of the economic
damages which were suffered by the corporation.” Id. at 1072. In
other words, the shareholder “suffered no violation of her
contract rights or right to lease that was in any way different from
the violations claimed by [the corporation].” Id.

¶33 The majority in Guides did not specify the type of emotional
distress that the shareholder suffered. However, the dissent all
but stated that her damages were based on emotional distress that
had little to do with the financial degradation of the corporation.
See id. at 1082 (Jenkins, J., concurring in part and dissenting in
part) (criticizing the majority’s “dismiss[al]” of the shareholder’s
“harm as merely ‘a product of the economic damages which were
suffered by the corporation’” when the “uncontroverted
testimony” showed that the shareholder “became deeply
disturbed” before the corporation “had suffered any actual
economic loss”). In other words, the shareholder plaintiff
appeared to suffer damage independent of the degradation of the
corporation, yet she still lacked standing to recover damages
based on the emotional distress the jury found she suffered. See id.
In light of the explanation offered in the dissent, then, the import
of Guides is quite clear: any emotional distress that the plaintiff
shareholder suffered as a result of the landlord’s apparent racism

20240498-CA 15 2026 UT App 82
Mountain West Towing v. West Jordan City

in refusing to contract with the corporation was derivative of the
damages the plaintiff corporation suffered, regardless of when the
shareholder’s emotional distress arose.

¶34 Guides is directly on point here. 13 The plaintiff companies—
and not the plaintiff owners—applied for, were added to, and

13. At oral argument, counsel for the plaintiffs attempted to
distinguish Guides on the ground that the Tenth Circuit applied 42
U.S.C. §§ 1981 and 1982, which guarantee “the right of all
persons to ‘make and enforce’ contracts” and the right of all
American citizens “to ‘inherit, purchase, lease, sell, hold, and
convey real and personal property,’” respectively. Guides, Ltd. v.
Yarmouth Group Prop. Mgmt., Inc., 295 F.3d 1065, 1072 (10th Cir.
2002) (quoting 42 U.S.C. §§ 1981(a), 1982). Beyond a general
suggestion that the corporate form does not bar a shareholder
plaintiff from asserting a claim based on an asserted
constitutional violation visited upon the corporation, counsel
offered no rationale for limiting Guides to claims asserted
under sections 1981 and 1982 (as opposed to claims asserted
under section 1983), nor did she cite any authority for doing
so. And she likely could not have done so. Although the
plaintiffs’ claims were based on the Due Process and Equal
Protection Clauses of the Fourteenth Amendment, the vehicle
for asserting a claim under eitherprovision comes from
statute. See, e.g., DeVillier v. Texas, 601 U.S. 285, 291 (2024)
(explaining that “[c]onstitutional rights do not typically
come with a built-in cause of action to allow for private
enforcement in courts” and are instead “generally invoked
defensively in cases arising under other sources of law, or
asserted offensively pursuant to an independent cause of
action designed for that purpose,” such as section 1983).
Additionally, counsel’s argument overlooks that sections
1981 and 1982 were enacted in the wake of the Civil War
to enforce the rights enshrined in the Reconstruction
Amendments. See, e.g., Neal v. Delaware, 103 U.S. 370, 386 (1880)
(explaining that precursor to section 1981 was “constitutional
(continued…)

20240498-CA 16 2026 UT App 82
Mountain West Towing v. West Jordan City

were subsequently removed from the City’s tow rotation.
Therefore, any asserted constitutional violations in this case were
suffered by the plaintiff companies, not by the plaintiff owners,
and the concomitant right to sue belonged to the companies. Any
injuries to the plaintiff owners were entirely derivative of the
harm done to the plaintiff companies. Were we to adopt the
plaintiffs’ reasoning to the contrary, shareholders—assuming
they suffered emotional distress based on the corporation’s
financial loss—would always have standing to recover because
“corporations cannot suffer emotional distress.” Camco Constr.
Inc. v. Utah Baseball Academy Inc., 2018 UT App 78, ¶ 16, 424 P.3d
1154. Stated otherwise, the “exception would swallow the rule
against shareholder standing.” Stone Flood, 2011 UT 83, ¶ 36
(cleaned up).

¶35 In short, the plaintiffs ignore that if any person or entity
possessed a property interest in staying on the rotation, it was the
plaintiff companies. The Property was owned by Mountain West,
and the plaintiff companies were on the City’s tow rotation. The
plaintiff owners merely acted on behalf of the plaintiff companies.
See generally, e.g., Stamper v. Johnson, 2010 UT 26, ¶ 19, 232 P.3d 514
(noting elements necessary to establish agency relationship).
Moreover, the plaintiffs overlook the legal effect of using the
corporate form to limit liability—that a corporation’s legal rights

exertion[] of the power to pass appropriate legislation for the
enforcement of the provisions of the Fourteenth Amendment”);
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413 (1968) (“[Section]
1982 bars all racial discrimination, private as well as public, in the
sale or rental of property, and . . . the statute, thus construed, is a
valid exercise of the power of Congress to enforce the Thirteenth
Amendment.”). We therefore see no principled basis for treating
claims brought under sections 1981 and 1982 differently from
those brought under section 1983 in the context of a suit in which
a corporation and its shareholders both assert violations of their
constitutional rights.

20240498-CA 17 2026 UT App 82
Mountain West Towing v. West Jordan City

belong to the corporation, not its shareholders. 14 Were it
otherwise, the corporate form would be both “shield and sword.”
See Alford v. Frontier Enters., Inc., 599 F.2d 483, 484 (1st Cir. 1979).
That simply is not the law. The choice to organize a business as a
corporate entity has many benefits and protections. But those
benefits and protections come at a real-world cost in a case such
as this.

¶36 For these reasons, we conclude that the court erroneously
determined that the plaintiff owners had standing to recover
emotional distress damages based on the alleged harm done to
the plaintiff companies. It necessarily follows that the award of
emotional distress damages to the plaintiff owners must be
vacated.

B. Section 1983 Claims

¶37 Next, the City asserts that the district court should have
dismissed the plaintiffs’ procedural due process and equal
protection claims, which the plaintiffs brought under section 1983.
Before trial, the court determined that the plaintiffs had a property
interest in remaining on the tow rotation under Directive 45. The
court also denied the City’s motion for summary judgment on the
plaintiffs’ equal protection claim, concluding that there were
genuine issues of material fact about whether the plaintiffs had
been treated differently from comparator companies who were

14. It also bears mention that none of the plaintiff owners asserted
a separate claim for intentional infliction of emotional distress—
or any claims of their own, for that matter—in the operative
amended complaint. The claims they did assert were identical to
those asserted by the plaintiff companies and in fact were asserted
collectively with the corporate entities. While this “does not
entirely cinch matters,” it does suggest a “conflation” of the
plaintiff owners’ injuries with those suffered by the plaintiff
companies, which weighs against a determination of standing. See
Stone Flood & Fire Restoration, Inc. v. Safeco Ins. Co. of Am., 2011 UT
83, ¶ 41 n.7, 268 P.3d 170 (cleaned up).

20240498-CA 18 2026 UT App 82
Mountain West Towing v. West Jordan City

similarly situated. For these reasons, the court allowed the jury to
decide the plaintiffs’ procedural due process and equal protection
claims. The City argues that the court should have dismissed both
claims as a matter of law because (1) the plaintiffs lacked a
property interest in remaining on the City’s tow rotation and
(2) the Property’s location in a watershed overlay protection zone
and near a drinking water well required that the comparator in
the equal protection analysis be located in a similar area. We agree
with the City on both counts.

1. Procedural Due Process

¶38 Courts analyze a procedural due process claim using “a
two-part test.” Northern Monticello All., LLC v. San Juan County,
2022 UT 10, ¶ 31, 506 P.3d 593. First, a court asks “whether the
complaining party has been deprived of a protected interest in
property or liberty.” Id. (cleaned up). If it finds a “deprivation of
a protected interest,” the court must then “consider whether the
procedures at issue comply with due process.” Id. (cleaned up).
Prior to trial, the district court relied on the right to appeal
outlined in Directive 45 to rule that the plaintiffs had a property
interest in remaining on the City’s tow rotation once they were
added to it. The City asserts that the plaintiff companies lacked a
property interest as a matter of law and that the court should
therefore have dismissed the plaintiffs’ procedural due process
claims. We agree with the City.

¶39 In Northern Monticello, our supreme court defined a
property interest under the Fourteenth Amendment as a
“legitimate claim[] of entitlement to some benefit.” 2022 UT 10,
¶ 32 (cleaned up). 15 Such an interest can be created “only where

15. The City fails to cite Northern Monticello in either of its briefs.
However, it relies on many of the cases that the Northern
Monticello court cited. And because we have a duty to “get the law
right,” McDonald v. Fidelity & Deposit Co. of Md., 2020 UT 11, ¶ 33,
462 P.3d 343, the City’s failure to specifically cite the case doesn’t
prevent us from applying it here.

20240498-CA 19 2026 UT App 82
Mountain West Towing v. West Jordan City

existing rules and understandings that stem from an independent
source such as state law secure certain benefits and support claims
of entitlement to those benefits.” Id. (cleaned up). Accordingly,
“an entitlement to a benefit arises only when the discretion of the
issuing agency is so narrowly circumscribed as to virtually assure
conferral of the benefit.” Id. ¶ 34 (cleaned up). The most common
way that a state creates a property interest is when it “enact[s] a
statutory scheme that sets significant and substantive limits on
official discretion, such that the benefit in question becomes an
entitlement and not a unilateral expectation.” Id. ¶ 33. For
example, where a state goes “beyond simple procedural
guidelines and instead use[s] language of an unmistakably
mandatory character, requiring that certain procedures ‘shall,’
‘will,’ or ‘must’ be employed, there [is] no escaping the conclusion
that the state has created a protected liberty interest.” Id. (cleaned
up).

¶40 The court was equally clear in explaining what a property
interest is not in the context of a “land use regulation case.” Id.
¶ 34. “Where a local regulator has discretion with regard to the
benefit at issue, there normally is no entitlement to that benefit.”
Id. (cleaned up). Therefore, a property interest cannot arise from
“an abstract need for, or unilateral expectation of, a benefit.” Id.
¶ 32 (cleaned up). Nor can a “benefit” be “a protected entitlement
if government officials may grant or deny it in their discretion.”
Id. ¶ 34 (cleaned up).

¶41 The Northern Monticello court addressed “a curiously
complex set of appeals,” in which an LLC with property adjacent
to a wind farm complained to the county that the owners of the
wind farm had not complied with the conditions of the applicable
CUP. Id. ¶¶ 1, 3–4. The LLC argued that it had a right to
participate in the county’s hearing in which the county considered
whether to revoke the wind farm’s CUP. Id. ¶ 1. After a series of
rulings, both from the county and from the courts, the case
worked its way to the supreme court, which held that the LLC did
not possess a property interest in having the CUP enforced or a
right to participate in the revocation hearing. Id. ¶¶ 1–2, 30–41.

20240498-CA 20 2026 UT App 82
Mountain West Towing v. West Jordan City

¶42 Specifically, the court held that the county ordinance
created little more than a unilateral expectation of a continued
benefit because it gave the county “broad discretion” in how it
enforced a CUP. Id. ¶ 35. Under the plain language of the
ordinance, the county was under no obligation to “revoke or,
alternatively, enforce a permit at any time.” Id. The court likewise
rejected the argument that a right to appeal found in the County
Land Use, Development, and Management Act created a property
interest, explaining that a mere procedural right, standing alone,
cannot create a property interest. Id. ¶¶ 37–38. Finally, the court
acknowledged that “the addition of mitigating conditions on a
CUP, specifically intended to protect certain property owners,
may in some cases provide landowners with something more
than just a unilateral expectation of a benefit.” Id. ¶ 40 (cleaned
up). But the court returned to the discretionary nature of the
applicable laws and explained that it “simply” was not convinced
that the LLC’s “expectation of enforcement of the CUP and
participation in the revocation hearing” created anything more
than a “unilateral expectation” of a benefit. Id. (cleaned up).

¶43 Applying Northern Monticello here, we conclude that the
court erred in holding that Directive 45 gave the plaintiffs a
property interest in remaining on the tow rotation. When they
agreed to the conditions in the Application, the plaintiff
companies specifically agreed that “inclusion on the towing
rotation is voluntary and a discretionary privilege extended by
the West Jordan Chief of Police . . . and is not a legal right.” The
Application’s clear language alone was likely enough to doom the
plaintiffs’ argument. Cf. State v. Tryba, 2000 UT App 230, ¶ 13, 8
P.3d 274 (noting in the statutory interpretation context that where
the “language is plain and unambiguous, we do not look beyond
the language’s plain meaning to divine legislative intent” (cleaned
up)); Triple J Parking Inc. v. SCSB LLC, 2018 UT App 162, ¶ 14 n.4,
436 P.3d 185 (explaining that when the “plain language within the
four corners” of a written contract is unambiguous, a court
“interpret[s] the contract as a matter of law” (cleaned up)).
However, even in the absence of this clear statement, Directive 45
could not have conferred the asserted property interest upon the

20240498-CA 21 2026 UT App 82
Mountain West Towing v. West Jordan City

plaintiff companies in this case because of the discretionary
nature of that policy.

¶44 The plaintiffs correctly note that policies that
“substantively limit official discretion create a legitimate claim of
entitlement and thus, a property right.” 16 See, e.g., Kentucky Dep’t
of Corr. v. Thompson, 490 U.S. 454, 462 (1989) (“A state creates a
protected liberty interest by placing substantive limitations on
official discretion.” (cleaned up)); see also Brown v. Eppler, 725 F.3d
1221, 1227 (10th Cir. 2013) (citing Thompson and collecting cases
stating the same proposition). The plaintiffs’ problem, however,
is that Directive 45 did not actually limit the City’s discretion.
Although it established a “suspension scale” that provided for
anything from a “10-day warning notice” to a “3-month
suspension or permanent removal from the rotation” based on the
severity of the violation or infraction, it did not require the City to
take any action at all. It merely provided that “[a] tow company,
whose business, yard, trucks, or employees are not in compliance
with the requirements set forth [therein], may be suspended
and/or removed from the [City’s] approved list of tow service
providers.” In other words, a violation of Directive 45 may have
resulted in sanction, but it did not necessitate it. This is much like
the discretionary scheme at issue in Northern Monticello and
weighs against a determination that Directive 45 bestowed a
property interest on the plaintiff companies. See 2022 UT 10, ¶ 35

16. Before addressing the merits, the plaintiffs argue, again, that
the City has not carried its burden on appeal to marshal the
evidence in favor of the court’s factual findings on this point. As
the plaintiffs acknowledge, however, “the district court found
that, as a matter of law, once a tow company was accepted on to the
tow rotation, it had a property interest in remaining on the
rotation such that the City owed it due process prior to removing
it.” (Emphasis added.) In other words, the City challenges the
court’s legal conclusion that the plaintiffs had a property interest,
not any of its underlying factual findings. Therefore, the City was
not required to marshal the evidence on this issue. See Schmith v.
Schmit, 2025 UT App 124, ¶ 9 n.1, 577 P.3d 365.

20240498-CA 22 2026 UT App 82
Mountain West Towing v. West Jordan City

(explaining that the local ordinance did not require the planning
commission to “revoke or, alternatively, enforce a permit at any
time”).

¶45 Additionally, Directive 45 contained no language
specifying the criteria for companies to remain on the tow
rotation. See id. ¶ 33 (explaining that a law’s use of unmistakably
mandatory “language . . . requiring that certain procedures ‘shall,’
‘will,’ or ‘must’ be employed” leads to the inescapable
“conclusion that the state has created a protected liberty interest”
(cleaned up)); see also Chavers v. Morrow, 354 F. App’x 938, 941 (5th
Cir. 2009) (per curiam) (declining to find a property interest in a
similar case when there was no mandatory language—statutory
or otherwise—“specifying which tow companies [were]
eligible to be, or remain, on the list” (emphasis added)). This also
weighs against a determination that the policy created a property
interest.

¶46 Finally, the fact that Directive 45 created a right to appeal
does not support a conclusion that the plaintiff companies had a
property interest in remaining on the tow rotation. As the
Northern Monticello court explained, a procedural right does not,
standing alone, create a constitutionally protected property
interest. 2022 UT 10, ¶ 36.

¶47 In sum, Directive 45 cannot carry the weight that the
district court placed on it because (1) the Application plainly
stated that the plaintiff companies had no legal right when they
were added to the tow rotation, (2) Directive 45 did not actually
limit the City’s discretion in how it enforced the policy, and (3) a
mere procedural right, standing alone, cannot create a property
interest. Therefore, the plaintiff companies possessed little
more than a “unilateral expectation” of remaining on the tow
rotation. See id. ¶ 34 (cleaned up). This being the case, the
plaintiffs were not deprived of a property interest for purposes of
the Due Process Clause and, accordingly, the district court should
have dismissed their procedural due process claims as a matter of
law.

20240498-CA 23 2026 UT App 82
Mountain West Towing v. West Jordan City

2. Equal Protection

¶48 “Equal protection of the law requires that similarly
situated persons be treated alike.” Moulding Invs., LLC v. Box Elder
County, 2024 UT App 23, ¶ 23, 545 P.3d 781 (cleaned up). At trial,
Lisa and Mountain West prevailed on their equal protection claim
under a “class-of-one” theory. Establishing such a claim requires
a plaintiff to show (1) that “she has been intentionally treated
differently from others similarly situated” and (2) “that there is no
rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). 17 Here,
the district court left it to the jury to determine (1) whether the
plaintiffs were similarly situated to others on the City’s tow
rotation and (2) whether the City’s stated reason for its actions—
the Property’s location in a watershed overlay protection zone
and close proximity to a drinking water well—was mere pretext
for its actions. The City argues that the court should have resolved
the similarly situated issue against the plaintiffs and dismissed
the claim. We agree with the City. 18

17. When a plaintiff asserting an equal protection claim on a class-
of-one theory cannot show that it was treated differently from
another who was similarly situated, a court need not address the
rational basis issue. See, e.g., Moulding Invs., LLC v. Box Elder
County, 2024 UT App 23, ¶ 26, 545 P.3d 781 (resolving plaintiff’s
equal protection claim on the similarly situated inquiry at the
motion to dismiss stage); see also, e.g., SmileDirectClub, LLC v.
Tippins, 31 F.4th 1110, 1123 (9th Cir. 2022) (not reaching rational
basis issue when the plaintiff could not establish that it was
similarly situated to other comparators).

18. The plaintiffs make several procedural arguments in an
attempt to avoid the merits, none of which are persuasive. First,
they claim that the “comparator evidence required a ‘fact-bound
inquiry’ and the City never argued otherwise, so the issue was
properly submitted to the jury.” In fact, after the plaintiffs rested
(continued…)

20240498-CA 24 2026 UT App 82
Mountain West Towing v. West Jordan City

¶49 A plaintiff asserting an equal protection claim in the land-
use context must “identify comparators that are similarly situated
in all material respects,” a tall task because property, by its very
nature, is “unique.” Moulding Invs., LLC, 2024 UT App 23, ¶ 27
(cleaned up). The City argues that because the plaintiff companies
were the only members of the tow rotation located in a watershed
overlay protection zone and near a drinking water well, the court
should have determined that no equal protection comparators
existed as a matter of law and dismissed the claim as a result. We
agree.

¶50 The procedural posture of this case appears to be unique in
that we are aware of no other Utah appellate case in which a class-
of-one equal protection claim in the land use context has gone to
trial and been resolved by a jury in favor of the plaintiff.

their case, the City moved for a directed verdict, arguing—as a
matter of law—that the plaintiffs had not established that the
plaintiff companies were similarly situated to other comparable
companies. Similarly, in a post-trial motion, the City argued—
again, as a matter of law—that the plaintiffs could not show that
any comparator companies were “similarly situated in every
material respect” to the plaintiff companies. Second, the plaintiffs
state in a footnote, without any accompanying analysis, that the
City did not argue below “that the comparator analysis requires a
‘high bar’ in the ‘land-use context,’ as it now claims,” and that the
issue is therefore unpreserved. Our caselaw does not require a
litigant to cite a specific case or language to preserve an issue.
What is required is that the issue be “specifically raised such that
[it] is sufficiently raised to a level of consciousness before the
[district] court so as to give the [district] court an opportunity to
address the claimed error, and if appropriate, correct it.” State v.
Noor, 2012 UT App 187, ¶ 5, 283 P.3d 543 (cleaned up). The City
did that in the proceedings below. Finally, the plaintiffs suggest—
again—that the City failed to marshal the evidence on appeal. For
reasons we explain, see infra ¶¶ 50–51, the determination in this
case was a legal question, so the City did not need to marshal on
appeal. See Schmith, 2025 UT App 124, ¶ 9 n.1.

20240498-CA 25 2026 UT App 82
Mountain West Towing v. West Jordan City

Recognizing this dearth of authority, both sides point to
nonbinding cases they argue resolve the matter. The City cites a
number of cases in which an appellate court affirmed a grant of
summary judgment in favor of the government on the similarly
situated comparator issue and claims that these cases stand for the
broad proposition that the issue is always a matter of law for the
court to decide. However, an appellate court’s affirmance of a
grant of summary judgment doesn’t mean that summary
judgment in the same context on a different set of facts is always
appropriate. See, e.g., Brandon v. Board of Educ., No. 22-CV-00635,
2025 WL 1360684, at *26 (E.D. Mo. May 8, 2025) (explaining that
the Eighth Circuit’s cases affirming summary judgment on the
similarly situated issue do not bar the question from ever going to
the jury).

¶51 The plaintiffs accurately cite a First Circuit case addressing
a class-of-one claim for the proposition that “the ultimate
determination as to whether parties are similarly situated is a fact-
bound inquiry and, as such, is normally grist for the jury’s mill.”
Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir. 2007). However,
in that same case, the First Circuit noted that not “every case,
regardless of the proof presented, is a jury case,” including the
one that was before it. Id. There is some superficial factual
support for the court’s decision in the proceedings below that
this issue was for the jury to decide. For example, the
plaintiffs presented evidence that the City did not sanction
another tow company on the rotation that apparently failed to
comply with the applicable CUP requiring that its lot be paved to
“protect the water table” from “leaking oil and gasoline.” The
problem is that there is no dispute on appeal that the plaintiff
companies were the only companies on the tow rotation that
operated in a watershed overlay protection zone and in close
proximity to a drinking water well. This is fatal for the plaintiffs’
argument because establishing an equal protection claim in this
context requires “evidence sufficient to establish factual as well as
regulatory similarity” in order “to show that other parties were
similarly situated to them.” Id. at 252; see also Najas Realty, LLC v.
Seekonk Water Dist., 821 F.3d 134, 144 (1st Cir. 2016) (making clear

20240498-CA 26 2026 UT App 82
Mountain West Towing v. West Jordan City

that a land use’s potential environmental effect is material in a
similarly situated inquiry).

¶52 On this point, we think the Eleventh Circuit’s decision in
Strickland v. Alderman, 74 F.3d 260 (11th Cir. 1996), is insightful.
There, the plaintiff owned property that had standing water
issues. Id. at 262. The city warned it would cite him under its
standing water ordinance unless he fixed the problem. Id. When
he failed to do so, the city cited him. Id. The plaintiff then sued the
city, asserting, as relevant here, an equal protection claim under
section 1983 and alleging that other properties with standing
water issues had not been cited under the ordinance. Id. at 263.
The case went to trial, and a jury found in the plaintiff’s favor on
the equal protection claim. Id. On appeal, the Eleventh Circuit
reversed, explaining that the standing water on the plaintiff’s
property would persist for “months,” while the water on the other
owners’ properties tended to “dissipate in a matter of days.” Id. at
264–65. Consequently, the court determined that the disparate
treatment was permissible because none of the other similarly
situated landowners violated the ordinance as “egregiously” as
the plaintiff had. Id. at 265. For this reason, the Eleventh Circuit
held that the district court should have dismissed the claim as a
matter of law. Id.

¶53 Strickland stands for the proposition that an equal
protection plaintiff must establish more than mere superficial
similarity. It was not enough in the proceedings below for the
plaintiffs to put on evidence that another company on the tow
rotation had a CUP requiring that its lot be paved to protect the
water table and failed to comply with that condition. There was
no indication that the other company operated near a source of
West Jordan’s drinking water. And, as the district court
recognized, “it was not unreasonable for [the] City . . . to take
enforcement action to protect public safety, namely the safety of
drinking water.” On these facts, the district court should have

20240498-CA 27 2026 UT App 82
Mountain West Towing v. West Jordan City

ruled as a matter of law that the plaintiff companies lacked a
similarly situated comparator. 19

¶54 For these reasons, the plaintiff companies were not
similarly situated to any of the other companies on the City’s tow
rotation. Consequently, the court should have dismissed the
plaintiffs’ equal protection claims. 20

II. The Plaintiffs’ Cross-appeal

A. Zoning Estoppel

¶55 After trial, the district court denied the plaintiffs’ zoning
estoppel claim based on its conclusion that Mountain West did
not comply with the land disturbance permit requiring it to
repave the lot with asphalt. The plaintiffs argue that the court’s
ruling was erroneous because they offered evidence that (1) Lisa
purchased the proper materials, (2) the recycled asphalt that had
been placed was “twice as deep as required,” and (3) the City
initially approved Mountain West’s permit in 2013. The plaintiffs
also assert that the court erred because it didn’t credit counsel’s

19. This conclusion is buttressed by our caselaw that
acknowledges the difficulty of merely pleading a class-of-one
equal protection claim in the land use context, let alone prevailing
on one. See, e.g., Moulding Invs., LLC, 2024 UT App 23, ¶ 24
(requiring a plaintiff pleading a land use equal protection claim to
“identify comparators that are similarly situated in all material
respects”); Farley v. Utah County, 2019 UT App 45, ¶ 31, 440 P.3d
856 (same).

20. The City also argues that the district court erred in awarding
the plaintiffs most of their requested attorney fees under 42 U.S.C.
§ 1988. Because the plaintiffs were not entitled to any of the relief
they sought, we agree and vacate the fee award. See, e.g., Farrar v.
Hobby, 506 U.S. 103, 111 (1992) (“[T]o qualify as a prevailing party
[under section 1988], a civil rights plaintiff must obtain at least
some relief on the merits of his claim.” (emphasis added)).

20240498-CA 28 2026 UT App 82
Mountain West Towing v. West Jordan City

argument that the contractor “presumably” repaved the lot with
the materials Lisa purchased. We are not persuaded.

¶56 Zoning estoppel applies when (1) a governmental entity
(2) “exercis[es] its zoning powers” (3) “to prohibit a proposed
land use” (4) “when a property owner,” (5) “relying reasonably
and in good faith on some governmental act or omission,” (6) “has
made a substantial change in position or incurred such extensive
obligations or expenses” (7) “that it would be highly inequitable
to deprive the owner of his right to complete his proposed
development.” Checketts v. Providence City, 2018 UT App 48, ¶ 21,
420 P.3d 71 (cleaned up). And the doctrine does not apply unless
(8) “the action upon which the [property owner] claims reliance
[is] of a clear, definite[,] and affirmative nature” and
(9) “exceptional circumstances” are present, like the “intentional
discriminatory application” of the relevant ordinance. Id. (cleaned
up).

¶57 The district court found that Mountain West, as the
Property’s owner, did not pave the Property’s lot in accordance
with the land disturbance permit and the related permit
drawings. Specifically, the court found that Mountain West failed
to “install, or have installed, six inches of road base prior to
installing 3 inches of recycled asphalt” and did not “apply any
asphalt sealer or binding agent over the recycled asphalt.” These
two findings doomed the plaintiffs’ zoning estoppel claim
because they demonstrated the plaintiffs’ “fail[ure] to comply
with the conditions in the very permits they claimed to have relied
upon.”

¶58 We read the district court’s ruling to mean that the
plaintiffs failed to demonstrate reasonable reliance on the City’s
action because Mountain West had not complied with the terms
of the land disturbance permit and permit drawings. The
plaintiffs assert that the court’s findings were flawed because
they presented evidence that “the recycled asphalt on the
[P]roperty [was] twice as deep as required” and that “Lisa
purchased the correct materials . . . in 2013 to surface the lot,”

20240498-CA 29 2026 UT App 82
Mountain West Towing v. West Jordan City

which her contractor “presumably” used. Similarly, the plaintiffs
take issue with the finding that they did not “apply any asphalt
sealer or binding agent over the recycled asphalt.” On this point,
they cite oral argument from the proceedings below where their
counsel refuted the City’s “claim that there . . . was no sealant on
the [P]roperty” and where the City allegedly “conceded this
point.”

¶59 The plaintiffs have not shown that the court’s findings
were clearly erroneous. When a party has an affirmative burden
to establish an element of a claim—as the plaintiffs did on their
zoning estoppel claim, cf. R.O.A. Gen. Inc. v. Salt Lake City Corp.,
2022 UT App 141, ¶ 30, 525 P.3d 100 (noting that a party asserting
equitable or judicial estoppel bears the burden of proof to
establish those defenses)—it is not enough for the party to point
to a place in the record where the court could have made the
requested finding, see, e.g., Phillips Mfg. Co. v. Putnam, 504 P.2d
1376, 1378 (Utah 1973) (“[I]f there is a reasonable basis in the
evidence or from the lack of evidence, from which the court acting
fairly and reasonably thereon could remain unconvinced, [its]
refusal to so find must be sustained.”). But, in asserting that Lisa’s
contractor “presumably” laid the proper materials, including the
road base, this is exactly what the plaintiffs have done. Moreover,
the plaintiffs point to no evidence that the Property’s surface
actually had “road base,” “asphalt sealer,” or a “binding agent.”
With respect to the asphalt sealer and binding agent, it is wholly
insufficient for the plaintiffs to cite counsel’s argument in the
record showing that the City had not affirmatively disproved that
there was no sealant on the surface, which is what the plaintiffs
have done here. This was not evidence. See, e.g., State ex rel. Div. of
Forestry, Fire & State Lands v. Six Mile Ranch Co., 2006 UT App 104,
¶ 31 n.10, 132 P.3d 687 (“[A]rgument of counsel is not evidence.”);
Brown v. City of Fruit Heights, 2023 UT App 39, ¶ 31 n.7, 529 P.3d
361 (same).

¶60 In sum, there was ample support for the district court’s
conclusion that the plaintiffs did not reasonably rely on the City’s
alleged actions in this case because there was evidence that

20240498-CA 30 2026 UT App 82
Mountain West Towing v. West Jordan City

Mountain West failed to comply with the land disturbance permit
and permit drawings when it repaved the Property.
Consequently, the plaintiffs have not shown that the findings
underlying the court’s legal conclusion were clearly erroneous,
and they are not entitled to reversal of the court’s denial of their
zoning claim.

B. Substantive Due Process Claims

¶61 The district court initially determined that the plaintiffs
had established a prima facie substantive due process claim and
denied the City’s motion for a directed verdict on the issue. The
court subsequently reversed itself and dismissed the claim as a
matter of law. The plaintiffs argue that the district court should
have allowed their substantive due process claims to go to the
jury. We disagree.

¶62 The “standard for determining whether there has been a
substantive due process violation is whether the challenged
government action shocks the conscience of the reviewing judge.”
Peak Alarm Co. v. Salt Lake City Corp., 2010 UT 22, ¶ 64, 243 P.3d
1221 (emphasis added) (cleaned up). In other words, the issue is a
question of law for the court to decide. See, e.g., Mason v. Stock, 955
F. Supp. 1293, 1308 (D. Kan. 1997) (“[T]he ‘shock the conscience’
determination is not a jury question.”). To prevail on a substantive
due process claim, “the plaintiff must demonstrate a degree of
outrageousness and a magnitude of potential or actual harm that
is truly conscience shocking.” Peak Alarm Co., 2010 UT 22, ¶ 64
(cleaned up); see also Smith ex rel. Smith v. Half Hollow Hills Central
School Dist., 298 F.3d 168, 173 (2d Cir. 2002) (per curiam) (“The
protections of substantive due process are available only against
egregious conduct which goes beyond merely offending some
fastidious squeamishness or private sentimentalism and can fairly
be viewed as so brutal and offensive to human dignity as to shock
the conscience.” (cleaned up)).

¶63 The First Circuit has explained that a reviewing court
should look at a “continuum of government conduct, the

20240498-CA 31 2026 UT App 82
Mountain West Towing v. West Jordan City

bookends of which present the easier cases.” Maldonado-González
v. Puerto Rico Aqueduct & Sewer Auth., 158 F.4th 27, 35 (1st Cir.
2025) (cleaned up). “On one end of the continuum is negligent
conduct, which is categorically beneath the threshold of
constitutional due process.” Id. (cleaned up). On the other end “is
the sort of official action most likely to rise to the conscience-
shocking level,” namely, “conduct intended to injure in some way
unjustifiable by any government interest.” Id. (cleaned up). In the
middle of the continuum lies “government conduct that is more
than negligence but less than intentional conduct, such as
recklessness or gross negligence.” Id. These are the cases that
represent the “closer calls.” Id. (cleaned up).

¶64 We are aware of no case in which a Utah appellate court
has sustained a plaintiff’s substantive due process claim on the
basis that the challenged conduct shocked the conscience, and the
plaintiffs cite none. 21 This is unsurprising, given that courts will
find that a government actor’s conduct shocks the conscience only
in extreme cases. See, e.g., Rochin v. California, 342 U.S. 165, 166–67
(1952) (concluding that conduct shocked the conscience when
officers had received a tip that the petitioner “was selling
narcotics,” entered the petitioner’s home without a warrant,
forced his bedroom door open, “jumped upon” him when he
placed two capsules in his mouth, tried to “extract the capsules,”
handcuffed and transported him to the hospital when those
efforts failed, and “direct[ed]” a doctor to “pump” his stomach to
induce vomiting); City of Revere v. Massachusetts Gen. Hosp., 463
U.S. 239, 244 (1983) (holding that law enforcement’s “deliberate

21. Of course, plaintiffs have prevailed on substantive due process
challenges in Utah courts. See, e.g., In re adoption of K.T.B., 2020 UT
51, ¶ 31, 472 P.3d 843 (birth mother prevailed on an as-applied
substantive due process challenge to a statute that allowed the
district court to terminate her parental rights when she failed to
“fully and strictly comply” with statute). But that is a different
question from whether a government actor’s conduct shocks the
conscience as required for a plaintiff to prevail on a substantive
due process claim.

20240498-CA 32 2026 UT App 82
Mountain West Towing v. West Jordan City

indifference” to a pretrial detainee’s “serious medical needs”
shocked the conscience); Johnson v. Newburgh Enlarged School Dist.,
239 F.3d 246, 249, 252 (2d Cir. 2001) (affirming denial of a motion
to dismiss a substantive due process claim when the complaint
alleged that the defendant gym teacher grabbed the plaintiff
student by the throat, shouted “I’ll kick the shit out of you,” lifted
him off the ground by his neck, dragged him across the gym floor,
choked him, rammed his forehead against a fuse box, and
punched him in his face).

¶65 Perhaps the difficulty of establishing a substantive due
process violation in this context becomes even clearer when
considering the cases in which a plaintiff hasn’t prevailed on such
a claim. In scenarios “where government officials must act in
haste,” see Maldonado-González, 158 F.4th at 36 (cleaned up), a
plaintiff can prevail only upon a showing that the government
actor intended to cause harm, see, e.g., County of Sacramento v.
Lewis, 523 U.S. 833, 854 (1998) (holding that a third party’s death
resulting from a police officer’s initiation of a high-speed chase
did not shock the conscience in the absence of an “intent to harm
suspects physically or to worsen their legal plight”). In one case,
the Supreme Court even held—albeit over the objection of four
dissenting justices—that it didn’t shock the conscience when a
prison inmate was shot in the leg by a guard and sustained severe
injuries during a prison riot when the “security manager” had
ordered guards to “shoot low” to quell the riot. Whitley v. Albers,
475 U.S. 312, 315–17, 327 (1986). And even where the benefit of
hindsight isn’t at issue, cf. Graham v. Connor, 490 U.S. 386, 396
(1989) (noting in the Fourth Amendment context that the
“‘reasonableness’ of a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight”), a lack of malintent clearly
weighs strongly against a finding that conduct shocks the
conscience, see, e.g., Collins v. City of Harker Heights, 503 U.S. 115,
117–18 (1992) (not conscience shocking when a city employee
“died of asphyxia after entering a manhole to unstop a sewer
line,” even where the city allegedly followed “custom and policy
of not training its employees about the dangers of working in

20240498-CA 33 2026 UT App 82
Mountain West Towing v. West Jordan City

sewer lines and manholes, not providing safety equipment at
jobsites, and not providing safety warnings” and where “a prior
accident had given the city notice of the risks of entering the sewer
lines”); Slaughter v. Mayor of Baltimore, 682 F.3d 317, 319 (4th Cir.
2012) (not conscience shocking when a firefighter recruit died
during a dangerous training exercise when the fire department
did not intend to “caus[e] harm to [the decedent] or any other
recruit” (cleaned up)).

¶66 On appeal, the plaintiffs make a cursory argument that
“there is little that is more conscience shocking than a police
department pursuing a vendetta against its citizens” and
therefore contend that the City violated their substantive
due process rights. Based on the aforementioned principles,
however, we readily conclude that the City’s challenged
conduct did not shock the conscience in this case. The
plaintiffs have not shown conduct on the City’s part that was
so extreme that it would be akin to physically harming any of
the plaintiffs or otherwise ignoring their serious medical needs.
The one thing that the plaintiffs potentially have going for them
is that there is no indication that the City officials had to act in
haste. Indeed, “where actors have an opportunity to reflect and
make reasoned and rational decisions, deliberately indifferent
behavior may suffice to shock the conscience.” Maldonado-
González, 158 F.4th at 36 (cleaned up). Setting aside whether the
City’s conduct was deliberately indifferent, it certainly was not
“so brutal and offensive to human dignity as to shock the
conscience.” Smith, 298 F.3d at 173 (cleaned up). For this reason,
the City’s alleged conduct simply doesn’t rise to the level of
shocking the conscience, “at least not the conscience of these three
. . . judges.” See Livsey v. Salt Lake County, 275 F.3d 952, 958 (10th
Cir. 2001).

20240498-CA 34 2026 UT App 82
Mountain West Towing v. West Jordan City

¶67 Because the City’s conduct did not shock the conscience,
the district court correctly dismissed the plaintiffs’ substantive
due process claim. 22

CONCLUSION

¶68 The district court erroneously concluded that the plaintiff
owners had standing to recover emotional distress damages
based on harm allegedly done to the plaintiff companies.
Moreover, the court should have dismissed the plaintiffs’
procedural due process and equal protection claims. For these
reasons, the court abused its discretion in awarding the plaintiffs
their attorney fees. However, the court properly denied the
plaintiffs’ zoning estoppel and substantive due process claims.
We therefore affirm in part, reverse in part, and remand the
matter for entry of judgment consistent with this opinion.

22. The plaintiffs make several other arguments on appeal,
namely that the district court erred in (1) excluding their economic
damages, (2) excluding one of their witnesses, and (3) dismissing
the section 1983 claims against Coordinator and Manager based
on qualified immunity. Because the district court should have
denied the plaintiffs’ section 1983 claims as a matter of law and
resolved the standing issue in the City’s favor, the plaintiffs’
remaining arguments are moot, and we do not address them.

20240498-CA 35 2026 UT App 82