Brian High Development, LC v. Brian Head Town

2015 UT App 100

THE UTAH COURT OF APPEALS

BRIAN HIGH DEVELOPMENT, LC,
Plaintiff and Appellant,
v.
BRIAN HEAD TOWN,
Defendant and Appellee.

Memorandum Decision
No. 20130298-CA
Filed April 23, 2015

Fifth District Court, Cedar City Department
The Honorable G. Michael Westfall
No. 010500185

William L. Bernard, Attorney for Appellant
Eric Todd Johnson and Briant S. Platt, Attorneys
for Appellee

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES STEPHEN L. ROTH and KATE A. TOOMEY concurred.

DAVIS, Judge:

¶1 Brian High Development, LC (BHD) appeals from the
trial court’s grant of summary judgment in favor of the Town of
Brian Head, Utah (the Town). We affirm.

¶2 BHD raises three arguments on appeal. First, it argues
that the trial court’s entry of summary judgment incorrectly
concluded that BHD’s inverse condemnation cause of action was
precluded as a matter of res judicata by an earlier suit between
the Town and BHD’s predecessor-in-title. Next, BHD argues that
the trial court erred when it granted summary judgment on
BHD’s equal protection claim on the ground that BHD did not
adequately plead the claim. Last, BHD argues that summary
judgment as to its breach of contract claim was not appropriate
Brian High Development v. Brian Head Town

because material facts related to that claim were in dispute. ‚An
appellate court reviews a trial court’s legal conclusions and
ultimate grant or denial of summary judgment for correctness,
and views the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.‛
Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and
internal quotation marks omitted).

I. Res Judicata and Inverse Condemnation

¶3 BHD first argues that its inverse condemnation claim was
not precluded by principles of res judicata.1 Res judicata has two
branches, claim preclusion and issue preclusion, the latter of
which is sometimes referred to as collateral estoppel. Copper State
Thrift & Loan v. Bruno, 735 P.2d 387, 389 (Utah Ct. App. 1987).
Our analysis concerns only the claim preclusion branch of res
judicata.2 ‚[C]laim preclusion[] operates to bar a second claim

1. ‚If private property is taken or damaged for public use absent
formal use of Utah’s eminent domain power, a property owner
may bring an inverse condemnation action under article I,
section 22 [of the Utah Constitution] to recover the value of the
property.‛ Gardner v. Board of County Comm'rs of Wasatch County,
2008 UT 6, ¶ 28, 178 P.3d 893 (citation and internal quotation
marks omitted).

2. The trial court seems to have transposed the headings in its
order, labeling the section of its decision in which it concluded
that issue preclusion did not apply as ‚Claim Preclusion‛ and
vice versa. The court also used the wrong phrase in text at times,
e.g., using the phrase ‚issue preclusion‛ before quoting the rules
pertinent to claim preclusion. Further, although the court clearly
concluded in its analysis that the inverse condemnation claim
was subject to claim preclusion, the court stated in the
conclusion section of its order that it granted summary judgment
(continued…)

20130298-CA 2 2015 UT App 100
Brian High Development v. Brian Head Town

between the same parties or their privies concerning the same
claim or cause of action previously rendered final by judgment
on the merits.‛ State ex rel. Utah State Dep’t of Soc. Servs. v.
Ruscetta, 742 P.2d 114, 116 (Utah Ct. App. 1987).

Whether a claim is precluded from relitigation
depends on a three-part test. First, both cases must
involve the same parties or their privies. Second,
the claim that is alleged to be barred must have
been presented in the first suit or be one that could
and should have been raised in the first action.
Third, the first suit must have resulted in a final
judgment on the merits.

Mack v. Department of Commerce, Div. of Sec., 2009 UT 47, ¶ 29, 221
P.3d 194 (citation and internal quotation marks omitted).
Whether res judicata applies in a particular case ‚presents a
question of law that we review for correctness.‛ See PGM, Inc. v.
Westchester Inv. Partners, Ltd., 2000 UT App 20, ¶ 3, 995 P.2d
1252.

¶4 Here, BHD’s predecessor-in-title, Greyhound Financial
Corporation (Greyhound), instituted litigation against the Town
on November 28, 1989, which resulted in a 1994 summary
judgment order dismissing the suit. In light of that prior
litigation, the trial court in the current case determined that
claim preclusion bars BHD’s inverse condemnation cause of

(…continued)
to the Town on the inverse condemnation claim ‚on the basis of
issue preclusion.‛ Likewise, BHD bases its argument on appeal
on issue-preclusion grounds. We consider the transposing of
these terms to constitute purely typographical errors, and we
accordingly analyze BHD’s argument under the ground relied
upon by the trial court in its analysis, i.e., claim preclusion.

20130298-CA 3 2015 UT App 100
Brian High Development v. Brian Head Town

action. The court ruled that Greyhound raised an inverse
condemnation claim in its 1989 complaint; that Greyhound is
BHD’s privy; that the ‚1994 Order in the Greyhound litigation
. . . rejected Greyhound’s . . . inverse condemnation claims,
which were either premised on the same allegations made in the
instant litigation or should have been‛; and that the 1994 order
was a final judgment on the merits. See Mack, 2009 UT 47, ¶ 29.

¶5 BHD’s argument on appeal centers on its assertions that
Greyhound’s 1989 complaint did not contain an inverse
condemnation claim and that the 1994 district court never
substantively ruled on an inverse condemnation claim in its
order dismissing Greyhound’s complaint. We disagree.

¶6 Although Greyhound’s amended complaint is not in the
record, we can ascertain from the allegations contained in
Greyhound’s original complaint and the language of the 1994
order that Greyhound did, indeed, raise an inverse
condemnation claim. Most convincingly, the 1994 order
specifically addresses, and in more than one finding, ‚Plaintiff’s
claims for inverse condemnation.‛ We cannot fathom why the
court would make such a direct reference to a specific claim if no
such claim was actually raised. Moreover, the court definitively
rejected Greyhound’s inverse condemnation theory in the 1994
order, stating,

There has been no inverse condemnation under
Article 1, Section 22 of the Utah Constitution
because tort-based damage claims are not
compensable thereunder and there has been no
‚taking‛ or ‚damage.‛ Plaintiff’s claims for inverse
condemnation under the Fifth and Fourteenth
Amendments to the United States Constitution fail
upon the same grounds.

20130298-CA 4 2015 UT App 100
Brian High Development v. Brian Head Town

¶7 BHD does not otherwise distinguish its inverse
condemnation claim from the facts alleged by Greyhound or the
rulings contained in the 1994 order. See PGM, Inc., 2000 UT App
20, ¶ 2 n.1 (‚*W+hen the moving party produces documents that
make a facial showing that a particular issue was litigated, the
burden falls to the nonmoving party to show that the record
before the court did not establish that the issue was in fact
litigated.‛). Accordingly, the trial court did not err in dismissing
BHD’s inverse condemnation claim on claim-preclusion
grounds.

II. Equal Protection Claim

¶8 Next, BHD argues that the trial court erred in granting
summary judgment on its equal protection claim on the grounds
that BHD did not adequately plead the claim. BHD bases its
claim on a ‚class-of-one‛ theory.

¶9 ‚Equal protection of the law requires that similarly
situated persons be treated alike.‛ Gardner v. Board of County
Comm'rs of Wasatch County, 2008 UT 6, ¶ 38, 178 P.3d 893 (citing
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). A
person may raise an equal protection claim as a ‚class of one‛ by
presenting ‚evidence that the defendant deliberately sought to
deprive him of the equal protection of the laws for reasons of a
personal nature unrelated to the duties of the defendant’s
position.‛ Patterson v. American Fork City, 2003 UT 7, ¶ 33, 67
P.3d 466 (citations and internal quotation marks omitted). To
sustain a class-of-one theory, a person must allege more than an
‚‘uneven’ enforcement of the law‛; ‚what is required is a
showing of a totally illegitimate animus toward the plaintiff by
the defendant.‛ Id. (citations and additional internal quotation
marks omitted).

¶10 Here, BHD’s third amended complaint alleges only that it
received treatment disparate from similarly situated lot owners
in a nearby subdivision and does not contain any allegation that

20130298-CA 5 2015 UT App 100
Brian High Development v. Brian Head Town

the Town ‚had some irrational motive for treating *BHD+
differently from other similarly situated persons.‛ See id. ¶ 34.
Therefore, because BHD failed to adequately plead a prima facie
case for violation of equal protection under a class-of-one theory,
the trial court properly granted summary judgment in the
Town’s favor on that claim.

III. Breach of Contract Claim

¶11 Last, BHD argues that disputed issues of material fact
preclude summary judgment on its contract claim. ‚*I+t . . . takes
[only] one sworn statement under oath to dispute the averments
on the other side of the controversy and create an issue of fact‛
sufficient to preclude summary judgment. Midland Funding LLC
v. Sotolongo, 2014 UT App 95, ¶ 17, 325 P.3d 871 (first alteration
in original) (citation and internal quotation marks omitted). ‚An
express or implied-in-fact contract results when ‘there is a
manifestation of mutual assent, by words or actions or both,
which reasonably are interpretable as indicating an intention to
make a bargain with certain terms or terms which reasonably
may be made certain.’‛ Heideman v. Washington City, 2007 UT
App 11, ¶ 25, 155 P.3d 900 (quoting Rapp v. Salt Lake City, 527
P.2d 651, 654 (Utah 1974)).

¶12 BHD’s contract claim arises out of work completed by a
contractor that included connecting and repairing water and
sewer lines to a home situated on lots that BHD had sold within
a subdivision. The contractor sued BHD for payment of the
completed work. The parties settled, and as part of the
settlement agreement, the contractor ‚assigned whatever claims
he may have had against the Town to *BHD+.‛ BHD then
asserted a breach of contract claim against the Town, alleging
that ‚the Town had an oral agreement with *the contractor+ to
perform work for the Town.‛ In response to the Town’s
summary judgment motion, BHD provided an affidavit from its
principal, David Smith, in which Smith explained that he was

20130298-CA 6 2015 UT App 100
Brian High Development v. Brian Head Town

‚privy to conversations‛ during which the Town and the
contractor established an oral contract ‚to repair water lines and
replace a fire hydrant.‛ BHD asserts that this affidavit is
sufficient to raise a material question of fact as to whether an
implied or express oral contract existed between the Town and
the contractor.

¶13 The trial court considered BHD’s argument to be
conclusory. As the trial court noted, BHD ‚made no effort to
comply with rule 7’s requirement for controverting facts set forth
in the initial memorandum supporting summary judgment,‛
and its failure to do so was not ‚mere*ly+ technical‛ because
‚despite claiming that ‘there are substantial questions of material
fact,’ *BHD’s+ opposition memorandum fails to identify any.‛ As
a result, the trial court deemed the Town’s statement of
undisputed facts admitted. See Utah R. Civ. P. 7(c)(3)(A) (‚Each
fact set forth in the moving party’s memorandum [supporting its
motion for summary judgment] is deemed admitted for the
purpose of summary judgment unless controverted by the
responding party . . . .‛). The undisputed facts indicate that
BHD, not the Town, ‚contacted‛ the contractor to conduct the
work at issue and that the Town stepped in to inform the
contractor ‚where to hook in to the water main and how to do
it‛ after the parties learned ‚that the water line had been
extensively damaged, and a new water line would be required.‛
In light of these undisputed facts, the trial court ruled, ‚Smith’s
conclusory assertion about the Town allegedly ‘agree*ing+ to
engage *the contractor+’ is insufficient to show that any kind of
contract was intended or resulted from the interactions between
the Town and *the contractor+.‛ (First alteration in original.)

¶14 We agree. Accordingly, the trial court did not err in
granting summary judgment to the Town on BHD’s contract
claims. We affirm the trial court’s ruling in all aspects.

20130298-CA 7 2015 UT App 100