UDOT v. Boggess-Draper

2016 UT App 93
THE UTAH COURT OF APPEALS
U TAH DEPARTMENT OF TRANSPORTATION ,
Appellee,
v.
BOGGESS-DRAPER C OMPANY LLC,
Appellant.
Opinion
No. 20140650-CA
Filed May 5, 2016
Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 090921179
Robert E. Mansfield and Steven J. Joffee, Attorneys
for Appellant
Sean D. Reyes, Brent A. Burnett, and Charles A.
Stormont, Attorneys for Appellee
S ENIOR JUDGE R USSELL W. BENCH authored this Opinion, in which
JUSTICE JOHN A. PEARCE concurred.1 JUDGE M ICHELE M.
C HRISTIANSEN concurred in the result, with opinion.
BENCH, Senior Judge:
¶1 	Boggess-Draper Company LLC appeals the district court’s
grant 	of 	the 	Utah 	Department 	of 	Transportation’s 	(UDOT)
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Justice John A. Pearce began his work on this case as a member
of the Utah Court of Appeals. He became a member of the Utah
Supreme Court thereafter and completed his work on the case
sitting by special assignment as authorized by law. See generally
id. R. 3-108(3).

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20140650-CA 	2 	2016 UT App 93
motion 	in 	limine 	to 	exclude 	Boggess-Draper’s 	evidence
regarding severance damages in a condemnation proceeding.
We reverse the district court’s ruling and remand for further
proceedings.
BACKGROUND
¶2 	Boggess-Draper owns several parcels of real property in
South Jordan, Utah. In 2001, UDOT sought to condemn a portion
of Boggess-Draper’s property to expand the intersection of Lone
Peak Parkway (which runs north to south) and 11400 South
Street 	(which 	runs 	east 	to 	west). 	In 	2005, 	as 	part 	of 	that
condemnation 	proceeding, 	the 	district 	court 	entered 	a 	final
judgment (the 2005 Final Judgment) pursuant to an agreement
between Boggess-Draper and UDOT. The 2005 Final Judgment
states, in relevant part,
To enable [UDOT] to construct and maintain a
public highway as a freeway, as contemplated by
Title 	72, 	Chapter 	6, 	Section 	117, 	Utah 	Code
Annotated, 1998, as amended, the Owners of said
entire 	tract 	of 	property 	hereby 	release 	and
relinquish 	to 	said 	[UDOT] 	any 	and 	all 	rights
appurtenant 	to 	the 	remaining 	property 	of 	said
Owners by reason of the location thereof with
reference 	to 	said 	highway, 	including, 	without
limiting the foregoing, all rights of ingress to or
egress 	from 	said 	Owner’s 	remaining 	property
contiguous to the lands hereby conveyed to or
from said highway between said designated Point
“A” and Point “B.”[2]
2. The property between “Point ‘A’ and Point ‘B’” is a narrow
strip of land on the east side of Lone Peak Parkway, which the
parties refer to as the “sliver parcel.”

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¶3 	Subsequently, in 2010, UDOT filed a condemnation action
against another portion of Boggess-Draper’s property. In its
amended complaint, UDOT stated that it intended to condemn
certain 	portions 	of 	Boggess-Draper’s 	South 	Jordan 	property
adjacent to 11400 South Street on the west side of Lone Peak
Parkway 	(the 	Subject 	Property) 	for 	the 	widening 	and
reconstruction of 11400 South Street. UDOT further stated that it
“is not condemning or acquiring in this action the right of
reasonable access to said larger tract of property, nor any right of
reasonable ingress and egress to said larger tract of property.”
¶4 	In 2012, Boggess-Draper designated an expert witness to
offer 	opinions 	on 	the 	value 	of 	UDOT’s 	taking, 	including
severance damages. The expert concluded that UDOT’s taking
caused a loss of access, view, and exposure to the remainder of
the Subject Property and that it resulted in severance damages.
¶5 	Thereafter, 	in 	2013, 	UDOT 	changed 	tack 	and 	filed 	a
motion in limine to exclude all of Boggess-Draper’s evidence
relating to severance damages at trial because “UDOT [had]
previously 	acquired 	all 	rights 	appurtenant 	to 	[the 	Subject
Property] 	from 	Defendant 	Boggess-Draper.” 	It 	argued 	that
“[h]aving previously acquired those rights, and having already
paid for them, UDOT should not now face severance damage
claims relating to rights that Boggess-Draper does not own.” In
making this argument, UDOT relied on language from the 2005
Final Judgment awarding UDOT “all rights appurtenant to the
remaining property of said Owners by reason of the location
thereof with reference to said highway.” According to UDOT,
Boggess-Draper could not show that it owned a “protectable
property interest that is related in any way to the types of
severance 	damages 	being 	asserted 	by 	its 	expert 	appraiser”
because Boggess-Draper had already conveyed to UDOT all
rights appurtenant to the Subject Property in the 2005 Final
Judgment.
¶6 	Boggess-Draper opposed UDOT’s motion, arguing that in
the 2005 Final Judgment, “Boggess-Draper did not convey to

UDOT v. Boggess-Draper Company
20140650-CA 	4 	2016 UT App 93
UDOT all rights appurtenant to the [Subject] Property.” Boggess-
Draper also asserted that UDOT had “forfeited its argument that
Boggess-Draper previously conveyed all rights appurtenant to
the [Subject Property] by failing to raise the issue at the outset of
this litigation.”
¶7 	On December 23, 2013, the district court held a hearing on
UDOT’s motion and heard arguments regarding the meaning of
the 2005 Final Judgment and the proper interpretation of the
parties’ agreement. During the hearing, Boggess-Draper argued
that there was an ambiguity “as to what the parties intended
with [the] language” “all rights appurtenant to the remaining
property of said Owners by reason of the location thereof with
reference to said highway” because at the time of the 2005 Final
Judgment, 11400 South Street “was not a state highway west of
Lone Peak Parkway. [It] was a city-owned road.” In support of
its 	argument, 	Boggess-Draper 	directed 	the 	district 	court’s
attention to several pieces of extrinsic evidence, including (1) a
declaration from the attorney who negotiated the 2005 Final
Judgment on Boggess-Draper’s behalf regarding the parties’
intent in stipulating to the 2005 Final Judgment, (2) a schematic
drawing and the complaint from the 2001 condemnation action,
and (3) a summary of the approved appraisal amount for the
property taken in the 2001 condemnation action. Boggess-Draper
also argued that it should be allowed to conduct additional
discovery regarding the parties’ intent and that the district court
was “required to look at the parol evidence” “to determine
whether there is or isn’t an ambiguity.”
¶8 	UDOT, on the other hand, argued that when read as a
whole, there was no ambiguity in the 2005 Final Judgment, that
the district court was required to accept additional evidence only
“if the Court finds an ambiguity that requires the intent of the
parties to be explored,” and that “there’s not an ambiguity that
would 	require 	that 	type 	of 	discovery.” 	The 	district 	court
concluded, “I think I have to look at [parol evidence] after I
determine if there’s an ambiguity. I don’t think I look before I

UDOT v. Boggess-Draper Company
20140650-CA 	5 	2016 UT App 93
determine that. . . . If I look at this and determine by viewing it
that it’s not ambiguous, then I don’t have to go there.”
¶9 	On May 15, 2014, the district court entered its order
granting 	UDOT’s 	motion 	in 	limine. 	The 	court 	found 	that
“Boggess-Draper’s 	claims 	for 	severance 	damages 	[were] 	all
based 	on 	claimed 	losses 	of 	rights 	appurtenant 	that 	were
previously 	acquired 	by 	UDOT 	through 	the 	2005 	Final
Judgment.” 	The 	court 	further 	found 	that 	the 	2005 	Final
Judgment was unambiguous because it “clearly provides that
‘any and all rights appurtenant’ of Boggess-Draper’s property
along 11400 South Street were transferred to UDOT.” Because
the court determined that “there is no ambiguity in the 2005
Final Judgment,” it concluded that “it would be improper for the
Court to consider any extrinsic evidence as to its meaning.”
¶10 	As to Boggess-Draper’s forfeiture argument, the district
court concluded “that an evidentiary motion filed more than two
months before trial is timely” and that UDOT’s motion in limine
“was filed in accordance with the Court’s Order during the
October 11, 2013 Scheduling Conference, and is consistent with
the purposes of the Utah Rules of Civil Procedure and Utah
Rules of Evidence.” Consequently, the district court overruled
Boggess-Draper’s objection to the timeliness of UDOT’s motion
in limine and granted UDOT’s motion, ordering that Boggess-
Draper, its witnesses, and its counsel refrain from presenting any
evidence relating to severance damages at trial.
¶11 	In lieu of a trial, the parties filed a stipulation resolving all
remaining issues on June 17, 2014, and on June 24, the district
court 	entered 	its 	final 	judgment 	of 	condemnation 	and
satisfaction of judgment. Boggess-Draper timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶12 	Boggess-Draper first argues that the district court erred in
rejecting its argument that Utah Department of Transportation v.

UDOT v. Boggess-Draper Company
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Ivers (Ivers II), 2009 UT 56, 218 P.3d 583, required UDOT to raise
its argument that Boggess-Draper had already conveyed the
rights appurtenant to the Subject Property “at the outset of the
condemnation action.” “A district court’s interpretation of case
law 	. 	. 	. 	presents 	an 	issue 	of 	law, 	which 	we 	review 	for
correctness.” Torres v. Madsen, 2015 UT App 34, ¶ 8, 344 P.3d 652.
¶13 	Boggess-Draper next argues that the district court erred in
granting UDOT’s motion in limine. When a district court’s
rationale for granting or denying a motion in limine to exclude
evidence is based wholly on a legal conclusion, we will review
the district court’s decision for correctness. Ford v. American
Express Fin. Advisors, Inc., 2004 UT 70, ¶ 33, 98 P.3d 15. Here, the
district court’s decision to grant the motion in limine was based
on its determination that the 2005 Final Judgment was not
ambiguous. “Whether the terms of a contract are ambiguous is a
question of law . . . .” Oliphant v. Estate of Brunetti, 2002 UT App
375, ¶ 14, 64 P.3d 587 (citation and internal quotation marks
omitted). Thus, we review the district court’s ruling on UDOT’s
motion in limine for correctness. Ford, 2004 UT 70, ¶ 33.
ANALYSIS
I. UDOT Did Not Forfeit Its Argument That It Already Owned
the Rights Appurtenant to the Subject Property.
¶14 	Boggess-Draper 	first 	contends 	that 	“the 	district 	court
erred by failing to recognize that UDOT forfeited its argument
that Boggess-Draper had previously conveyed to UDOT all
rights appurtenant to the Subject Property through the 2005
Final Judgment.” Although UDOT filed the motion within the
time 	allowed 	under 	the 	district 	court’s 	scheduling 	order,
Boggess-Draper asserts that it was untimely because UDOT did
not raise the argument “at the outset of this litigation” and
“changed its position only a few months before the trial in this
matter was scheduled to begin.” In support of its forfeiture
argument, 	Boggess-Draper 	relies 	on 	our 	supreme 	court’s

UDOT v. Boggess-Draper Company
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decision in Ivers II. However, Boggess-Draper’s reliance on Ivers
II is misplaced.
¶15 	Ivers II was an appeal following remand from an earlier
appeal. Ivers II, 2009 UT 56, ¶ 1. See generally Ivers v. Utah Dep’t of
Transp. (Ivers I), 2007 UT 19, 154 P.3d 802, overruled by Utah Dep’t
of Transp. v. Admiral Beverage Corp., 2011 UT 62, 275 P.3d 208. In
the initial appeal, Ivers I, the supreme court had been asked to
consider 	whether 	an 	owner 	of 	condemned 	property 	could
recover severance damages for “loss of view where the view-
impairing structure was not built on the condemned property
but 	was 	part 	of 	the 	project 	for 	which 	the 	property 	was
condemned.” Ivers II, 2009 UT 56, ¶ 1. The supreme court
determined that it could and remanded the case for the district
court 	to 	determine 	whether 	the 	“condemned 	property 	was
essential to the project and, if so, . . . to award [the property
owner] appropriate damages.” Id. However, on remand, UDOT
filed a motion in limine to preclude testimony indicating that the
owner of the condemned property owned a right of view, on the
ground that the property owner’s predecessors in interest had
previously 	“relinquished 	any 	and 	all 	appurtenant 	rights,
including the right of view, to UDOT.” Id. ¶ 6. The district court
initially denied the motion as an untimely motion to amend the
complaint but later accepted UDOT’s argument that it had “the
right to amend its taking at any time during the course of the
proceedings” 	and 	declined 	to 	award 	the 	property 	owner
severance damages. Id. ¶¶ 6–7.
¶16 	The property owner appealed, and the supreme court
held 	“that 	the 	district 	court 	violated 	the 	mandate 	rule 	by
exceeding the scope of [its] remand in Ivers I.” Id. ¶ 31. The
supreme court explained,
UDOT’s failure to make apparent in the record
before Ivers I the theory that [the property owner]
had no right of view, its stipulation prior to final
judgment that no triable issues remained, and the
necessary implication of [the property owner’s]

UDOT v. Boggess-Draper Company
20140650-CA 	8 	2016 UT App 93
right of view in our ruling in Ivers I prohibit UDOT
from reframing the issue to its advantage after
remand. Indeed, if UDOT had already owned the
right of view, it should have raised this at the
outset of the case rather than the conclusion. By not
doing so, it forfeited the argument and led us to
foreclose the issue in Ivers I.
Id. ¶ 20; see also id. ¶¶ 16–17 (distinguishing Ivers II from Madsen
v. Washington Mutual Bank FSB, 2008 UT 69, 199 P.3d 898, and
explaining that “because the appellee [in Madsen] had made the
issue apparent in the record before the first appeal and [the
court] 	had 	not 	ruled 	on 	the 	merits, 	the 	issue 	was 	not
foreclosed”); cf. Peak Alarm Co. v. Salt Lake City Corp., 2013 UT 8,
¶ 13, 297 P.3d 592 (noting that in Ivers II, “the district court
erroneously 	exceeded 	the 	scope 	of 	[the 	court’s] 	remand,”
whereas in Peak Alarm, “the district court merely entertained—
and rejected—a successive affirmative defense, treating an issue
on which [the court] had not ruled in [a previous appeal],”
which was not outside the scope of remand).
¶17 	In contrast, when UDOT filed its motion in limine in this
case, the case had not been appealed, nor had the district court
issued a final judgment, and therefore there was no mandate
from an appellate court limiting the scope of the issues that the
district 	court 	could 	consider. 	Consequently, 	Ivers 	II 	has 	no
applicability in the context of this case, and we conclude that the
district 	court 	did 	not 	err 	in 	overruling 	Boggess-Draper’s
objection to the timeliness of UDOT’s motion.3
3. We are not unsympathetic to Boggess-Draper’s frustration that
UDOT changed its position regarding its ownership of rights
appurtenant at the eleventh hour. However, UDOT’s motion in
limine, despite clearly being an afterthought, was timely.

UDOT v. Boggess-Draper Company
20140650-CA 	9 	2016 UT App 93
II. The District Court Erred in Declining to Consider Boggess-
Draper’s Extrinsic Evidence.
¶18 	Boggess-Draper next contends that “the district court
erred in holding that it would be improper to consider relevant
extrinsic 	evidence 	in 	determining 	whether 	the 	2005 	Final
Judgment is ambiguous.” We conclude that Boggess-Draper’s
extrinsic evidence indicated the existence of a latent ambiguity in
the 2005 Final Judgment and therefore hold that the district court
committed reversible error by declining to consider the extrinsic
evidence.
¶19 	The following rules outline Utah’s standards “for the use
of 	extrinsic 	evidence 	in 	reviewing 	contractual 	ambiguities.”
Brodkin v. Tuhaye Golf, LLC, 2015 UT App 165, ¶ 17, 355 P.3d 224.
“First, if a contract contains no ambiguity, the court will not
consider 	extrinsic 	evidence 	and 	will 	enforce 	the 	contract
according to its terms.” Id. ¶ 18 (footnote omitted). “Second, if
the contract contains a facial ambiguity, the court will consider
extrinsic evidence to resolve the ambiguity.” Id. ¶ 19 (footnote
omitted). 	“Third, 	if 	a 	party 	contends 	that 	an 	apparently
unambiguous contract contains a latent ambiguity, the court will
consider extrinsic evidence to determine whether the contract
contains a latent ambiguity,” and “if the court concludes that the
contract contains a latent ambiguity, the court will consider
extrinsic evidence 	to 	resolve 	the 	ambiguity.” 	Id. 	¶¶ 	20, 	22
(footnote omitted).
¶20 	In determining whether it was appropriate to consider
extrinsic evidence in analyzing the 2005 Final Judgment, the
district court stated, “I think I have to look at [parol evidence]
after I determine if there’s an ambiguity. I don’t think I look
before I determine that. . . . If I look at this and determine by
viewing it that it’s not ambiguous, then I don’t have to go there.”
While this may be a correct statement of law to the extent that a
facial ambiguity is alleged, if a latent ambiguity is alleged, the
district court should look to extrinsic evidence in determining
whether the contract is ambiguous. See id. ¶¶ 19–20.

UDOT v. Boggess-Draper Company
20140650-CA 	10 	2016 UT App 93
¶21 	Boggess-Draper 	asserts 	that 	at 	the 	time 	of 	the 	2001
condemnation action, the portion of 11400 South Street on the
west side of Lone Peak Parkway was a city-owned road rather
than a state highway. Accordingly, Boggess-Draper asserts that
the language in the 2005 Final Judgment giving UDOT “rights
appurtenant to the remaining property” of Boggess-Draper “by
reason of the location thereof with reference to said highway”4 is
ambiguous. This argument fails to establish a facial ambiguity
because a public road constitutes a “highway” regardless of
whether it is classified as a “state” highway. See Utah Code Ann.
§ 	72-1-102(7) 	(LexisNexis 	2009) 	(defining 	“highway” 	for
purposes of Utah’s Transportation Code as “any public road,
street, alley, lane, court, place, viaduct, tunnel, culvert, bridge, or
structure laid out or erected for public use, or dedicated or
abandoned to the public, or made public in an action for the
partition of real property, including the entire area within the
right-of-way”). However, the fact that 11400 South Street was
not a state highway does threaten to expose a latent ambiguity in
the 2005 Final Judgment because it indicates that the street was
not owned by UDOT at the time of the 2005 Final Judgment.5
4. The parties do not dispute that the term “highway” refers to
11400 South Street; rather, they disagree only as to whether the
term “highway” refers to the entirety of 11400 South Street.
5. As the concurrence points out, nothing in the 2005 Final
Judgment references a state highway. But our decision does not
rest on the assumption that only land bordering a state highway
could fall under the 2005 Final Judgment. Rather, the fact that
the western portion 	of 11400 South Street was not a state
highway at the time of the 2005 Final Judgment is relevant only
because it indicates that UDOT did not own that portion of the
highway. The rights appurtenant were conveyed “[t]o enable
[UDOT] 	to 	construct 	and 	maintain 	a 	public 	highway 	as 	a
freeway.” But UDOT could not make a freeway out of a highway
it did not own. Thus, if Boggess-Draper can establish that UDOT
(continued…)

UDOT v. Boggess-Draper Company
20140650-CA 	11 	2016 UT App 93
¶22 	“A latent ambiguity ‘arises from a collateral matter when
the document’s terms are applied or executed.’” Watkins v. Henry
Day Ford, 2013 UT 49, ¶ 28, 304 P.3d 841 (quoting Black’s Law
Dictionary 93 (9th ed. 2009)); accord Mind & Motion Utah Invs.,
LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 39, 367 P.3d 994. The fact
that UDOT did not acquire the western portion of 11400 South
Street until after the 2005 Final Judgment is an “objectively
verifiable” 	collateral 	matter 	that 	may 	give 	rise 	to 	a 	latent
ambiguity. See Mind & Motion, 2016 UT 6, ¶¶ 40–42 (emphasis
omitted) 	(discussing 	how 	a 	latent 	ambiguity 	may 	be
established). If UDOT did not own the western portion of 11400
South Street at the time of the 2005 Final Judgment, then the
parties’ intent to grant rights appurtenant with respect to that
portion of the highway is called into question.6 Because “Utah’s
rules of contract interpretation allow courts to consider any
relevant evidence to determine whether a latent ambiguity exists
in 	contract 	terms 	that 	otherwise 	appear 	to 	be 	[facially]
unambiguous,” Watkins, 2013 UT 49, ¶ 28 (alteration in original)
(citation and internal quotation marks omitted), the district court
should have considered Boggess-Draper’s extrinsic evidence to
determine whether the change in ownership of the highway
(…continued)
did not own the western portion of 11400 South Street at the
time of the 2005 Final Judgment because it was not a state
highway, then it can establish a latent ambiguity based on the
parties’ understanding of which property constituted the public
highway in question at the time of the 2005 Final Judgment.
6. The 2005 Final Judgment itself seems to emphasize the point
that the parties’ focus in 2005 was on Boggess-Draper’s property
lying east of Lone Peak Parkway. The 2005 Final Judgment
expressly references “property contiguous to the lands hereby
conveyed to or from said highway between said designated
Point ‘A’ and Point ‘B.’” Both Points A and B lie to the east of
Lone Peak Parkway.

UDOT v. Boggess-Draper Company
20140650-CA 	12 	2016 UT App 93
created a latent ambiguity in the 2005 Final Judgment. Cf. id.
¶¶ 29–30 (holding that extrinsic evidence was admissible to
show that although the name of the vehicle the parties had
contracted to buy had changed between the time of the contract
and the time the vehicle became available, the vehicle was the
same one for which the parties contracted).
CONCLUSION
¶23 	We conclude that UDOT’s motion in limine was timely.
However, we agree with Boggess-Draper that the district court
erred in declining to consider extrinsic evidence to determine
whether the 2005 Final Judgment contained a latent ambiguity.
Accordingly, we reverse the district court’s grant of UDOT’s
motion 	in 	limine 	and 	remand 	for 	additional 	proceedings
consistent with this opinion.
CHRISTIANSEN, Judge (concurring):
¶24 	I agree with the result reached by the majority opinion,
but I write separately because I believe the parties’ written
settlement agreement may contain a different latent ambiguity
than that identified by the majority. The 2005 Final Judgment
describes the land at issue in the 2001 condemnation action as
“[a] parcel of land in fee for the purpose of widening 11400
South Street as part of the construction of a freeway known as
Project No. 15-7.” The pertinent language is at the end of the
2005 Final Judgment, with my emphases added:
To enable [UDOT] to construct and maintain a
public highway as a freeway, as contemplated by Title
72, Chapter 6, Section 117, Utah Code Annotated, 1998,
as amended, the Owners of said entire tract of property
hereby release and relinquish to said [UDOT] any
and all rights appurtenant to the remaining property of
said Owners by reason of the location thereof with

UDOT v. Boggess-Draper Company
20140650-CA 	13 	2016 UT App 93
reference to said highway, including, without limiting
the foregoing, all rights of ingress to or egress from
said Owner’s remaining property contiguous to the
lands hereby conveyed to or from said highway
between said designated Point “A” and Point “B.”
During oral argument before this court and at the hearing on
UDOT’s motion in limine before the district court, Boggess-
Draper argued that the language “by reason of the location
thereof with reference to said highway” is ambiguous and that
the district court should have considered extrinsic evidence to
determine 	whether 	the 	parties 	intended 	their 	agreement 	to
include 	the 	rights 	appurtenant 	to 	all 	of 	Boggess-Draper’s
property abutting 11400 South Street. See supra n.4. According to
Boggess-Draper, this language only refers to 11400 South Street
east of Lone Peak Parkway, because at the time of the 2001
condemnation 	action 	11400 	South 	Street 	“was 	not 	a 	state
highway west of Lone Peak Parkway,” and UDOT did not gain
ownership of 11400 South Street west of Lone Peak Parkway
until the present condemnation action. Boggess-Draper contends
that the only section of its property that bordered on the portion
of 11400 South Street that UDOT owned at the time of the 2001
condemnation action was the “sliver parcel” on the east side of
Lone 	Peak 	Parkway, 	i.e., 	a 	narrow 	strip 	of 	land 	that 	was
specifically called out in the 2005 Final Judgment (“between said
designated Point ‘A’ and Point ‘B’”). Thus, according to Boggess-
Draper, 	the 	2005 	Final 	Judgment 	only 	conveyed 	rights
appurtenant to the sliver parcel and not along the entirety of
Boggess-Draper’s property abutting 11400 South Street.
¶25 	The majority agrees with Boggess-Draper that if UDOT
did not own the western portion of 11400 South Street at the
time of the 2005 Final Judgment, then the parties’ intent to grant
rights appurtenant with respect to that portion can be called into
question. While I agree with the majority that the settlement
agreement does not contain a facial ambiguity, I disagree that
ownership of 11400 South Street is determinative of whether

UDOT v. Boggess-Draper Company
20140650-CA 	14 	2016 UT App 93
there exists a latent ambiguity here. Notably, nothing in the 2005
Final 	Judgment 	references a 	“state 	highway” 	as argued 	by
Boggess-Draper. Rather, the 2005 Final Judgment only references
a “public highway . . . as contemplated by Title 72, Chapter 6,
Section 	117, 	Utah 	Code 	Annotated.” 	That 	statutory 	section
permits UDOT (and other governing bodies) to establish “a
limited-access facility” and to acquire by condemnation the
property rights for a limited-access facility. See Utah Code Ann.
§ 72-6-117(1), (5) (LexisNexis 2009). Section 72-1-102 defines a
“[l]imited-access facility” as “a highway especially designated
for through traffic, and over, from, or to which neither owners
nor occupants of abutting lands nor other persons have any right
or easement, or have only a limited right or easement of access,
light, air, or view.” Id. § 72-1-102(11). “Highway” is defined by
the same statute as “any public road, street, alley, lane, court,
place, viaduct, tunnel, culvert, bridge, or structure laid out or
erected for public use, or dedicated or abandoned to the public,
or made public in an action for the partition of real property,
including 	the 	entire 	area 	within 	the 	right-of-way.”
Id. § 72-1-102(7) (emphasis added).
¶26 	Based on the foregoing, it seems unimportant that 11400
South Street west of Lone Peak Parkway was not a “state
highway” at the time of the 2001 condemnation action for
purposes of analyzing the text of the 2005 Final Judgment to
identify any ambiguity. At the time of the 2001 condemnation
action, the western portion of 11400 South Street was a public
road 	and 	therefore 	constituted 	a 	“highway” 	as 	defined 	by
section 72-1-102.7 See id. The 2005 Final Judgment referred to a
“public highway,” and therefore, the language of the 2005 Final
Judgment apparently applied to the entirety of 11400 South
7. Boggess-Draper acknowledged to the district court that 11400
South Street west of Lone Peak Parkway was a “city-owned
road” in 2001 and that the “[s]outh half was owned by Draper
City [and] the northern half was owned by South Jordan City.”

UDOT v. Boggess-Draper Company
20140650-CA 	15 	2016 UT App 93
Street regardless of whether UDOT owned the western portion
so as to make it a “state highway.” It follows that the 2005 Final
Judgment’s terms appear to apply to all of Boggess-Draper’s
property abutting the highway—11400 South Street—whether or
not those portions of the highway were state highways.8
¶27 	The majority correctly points out that in determining the
meaning of a written agreement, courts should consider relevant
extrinsic evidence if a latent ambiguity is detected. “[A] ‘latent
ambiguity arises from a collateral matter when the document’s
terms are applied or executed,’ not from any facial deficiency in
the contract’s terms.” Mind & Motion Utah Invs., LLC v. Celtic
Bank Corp., 2016 UT 6, ¶ 40, 367 P.3d 994 (quoting Watkins v.
Henry Day Ford, 2013 UT 49, ¶ 28, 304 P.3d 841). When a latent
ambiguity exists in a written agreement, objectively verifiable
extrinsic evidence is admissible to indicate the actual intent of
the parties. Id. In my opinion, it is the two phrases “the Owners
of 	said 	entire 	tract 	of 	property” 	and 	“any 	and 	all 	rights
appurtenant to the remaining property of said Owners by reason
of the location thereof with reference to said highway” in the
2005 Final Judgment, rather than the language highlighted by
the majority, that may give rise to a latent ambiguity in the
document. Specifically, it is undisputed that Boggess-Draper
owned property abutting 11400 South Street at the time of the
2001 condemnation action. It is also undisputed that in 2001,
UDOT 	condemned 	a 	portion 	of 	Boggess-Draper’s 	property
located mostly to the east of Lone Peak Parkway and paid
8. The 2001 condemnation action was part of a larger project to
turn 11400 South Street into a freeway. The fact that UDOT did
not own the western portion of 11400 South Street at the time of
the 2005 Final Judgment does not necessarily mean that UDOT
could not have acquired rights appurtenant to Boggess-Draper’s
land adjacent to the western portion of 11400 South Street in
anticipation of its larger plans to turn 11400 South Street into a
freeway.

UDOT v. Boggess-Draper Company
20140650-CA 	16 	2016 UT App 93
Boggess-Draper for the take. But the term “remaining property”
is undefined and, accordingly, I agree with the majority that the
district 	court 	should 	have 	considered 	extrinsic 	evidence 	to
determine whether a latent ambiguity existed in the 2005 Final
Judgment.