Build, Inc. v. Utah Dep't of Transp. , 428 P.3d 995 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 34
IN THE
SUPREME COURT OF THE STATE OF UTAH
BUILD, INC.,
Appellant,
v.
UTAH DEPARTMENT OF TRANSPORTATION, CLYDE-GENEVA
CONSTRUCTORS, W.W. CLYDE & CO., and GENEVA ROCK PRODUCTS,
INC.,
Appellees.
No. 20151058
Filed July 17, 2018
On Appeal of Interlocutory Order
Third District, Salt Lake
The Honorable Ryan M. Harris
No. 090904101
Attorneys:
Michael D. Zimmerman, Troy L. Booher, Beth E. Kennedy,
Clark B. Fetzer, Salt Lake City, Kim J. Trout, Boise, ID, for appellant
Stanford P. Fitts, Stephen J. Trayner, S. Spencer Brown, Jessica J.
Johnston, Salt Lake City, for appellee Utah Department of
Transportation
Robert F. Babcock, Brian J. Babcock, Cody W. Wilson, Salt Lake City,
for appellees Clyde-Geneva Constructors, W.W. Clyde & Co., and
Geneva Rock Products, Inc.
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUSTICE PETERSEN joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Build, Inc. was hired by the Utah Department of
Transportation (UDOT) to work on three different construction
BUILD v. UDOT
Opinion of the Court
projects. Build encountered problems on all three projects, and it
filed various claims against UDOT and three other contractors on the
project.1 UDOT moved for summary judgment on two sets of
claims—claims for breach of contract on the “Arcadia” project and
claims seeking consequential damages.2 The original judge assigned
to the case, Judge Kennedy, denied both motions.
¶2 After his retirement Judge Kennedy was replaced by Judge
Harris. Judge Harris ultimately dismissed Build’s claims for breach
of contract and consequential damages. And Build challenges both
dismissals on this interlocutory appeal.
¶3 Build challenges the dismissal of the Arcadia claim on two
grounds. It contends (a) that Judge Harris violated a so-called
coordinate judge rule, which in Build’s view limits the discretion of a
successor judge to revisit decisions of a predecessor; and (b) that
Build presented sufficient evidence to defeat UDOT’s motion on its
merits. Build also challenges the dismissal of its claim for
consequential damages. It asserts that Judge Harris erred in
dismissing this claim without full briefing on a motion for summary
judgment and that he incorrectly concluded that Build lacked proof
of its consequential damages.
¶4 We affirm. Judge Harris had the authority to dismiss both
claims, and he committed no reversible error by doing so. In so
holding, we repudiate any language in our precedent that suggests
that a successor judge on a case is bound by nonfinal decisions and
rulings made by his predecessor. We clarify that different judges on
the same case are considered a single judicial officer—and thus that a
successor judge has the same power to review nonfinal decisions
that a predecessor would have had.
I. BACKGROUND
¶5 UDOT hired Build to work as a contractor on three different
construction projects: the Legacy project, the Arcadia project, and the
I-215 project. Only the facts surrounding the Arcadia project are
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1 These parties are Clyde-Geneva Constructors, W.W. Clyde &
Co., and Geneva Rock Products (collectively “Clyde-Geneva”).
2 Though we refer throughout to all the appellees collectively as
“UDOT,” Clyde-Geneva was not a party to the Arcadia project and
joins the appeal only as to the consequential damages claim.
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Opinion of the Court
relevant to this appeal, however, so we discuss only that project
here.
¶6 The Arcadia project involved the replacement of a bridge
and reconstruction of the highway on either side of it. This required
excavation, and the excavated soil was slated to be disposed as “fill”
around the boundaries of the project. After excavation began,
UDOT’s engineer, Rex Harrison, discovered a complication that
prevented this method of soil disposal. So Build disposed of the soil
offsite, incurring $389,000 of additional costs.
¶7 Build requested that UDOT compensate it for this additional
work. UDOT refused. Build then experienced financial problems and
went out of business. It filed suit against UDOT, asserting that
UDOT had breached its contract by asking Build to complete work
that fell outside of the contract and then refusing to compensate
Build for that work. Build also alleged that UDOT’s failure to
appropriately compensate Build for this extra work led to lost capital
and cash flow, lost bonding capacity, and eventually the demise of
its business. Build sought damages for breach of contract. It also
requested consequential damages associated with the loss of its
business.
¶8 The agreement between these parties contains two
provisions dealing with changes to the contract; the viability of
Build’s claim for breach depends on which of the two applies here.
One provision, found in Part 1.6, deals with changes that the
engineer recognizes as falling outside of the contract. It allows
UDOT to make intentional changes to the project if it does so in
writing. Build’s breach of contract claim invoked this provision of
the contract. It asserted that UDOT had recognized that the
additional soil disposal was outside of the contract’s parameters, and
claimed that UDOT had breached Part 1.6 by failing to give notice in
writing and to compensate Build for this change.
¶9 UDOT denied that Part 1.6 applied and claimed instead that
Part 1.5 of the contract controlled. That provision governs if Build
believes there has been a change in the contract that UDOT does not
recognize. In that case, Build must give UDOT notice of the “alleged
change” in writing within five days of the date a change is noted.
¶10 The contract also provides that “[f]ailure to provide the
required notice constitutes a waiver of any and all claims that may
arise as a result of the alleged breach.” It is undisputed that Build
failed to provide the notice required by Part 1.5. And UDOT asserted
that Build had waived its claim to additional compensation by
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Opinion of the Court
failing to provide this notice. It moved for summary judgment on
that basis.
¶11 UDOT also moved for summary judgment on the
consequential damages issue. It argued that Build had “failed to
provide any evidence as to the value of [its] business before and after
UDOT’s alleged conduct.” UDOT acknowledged that Build had
designated an expert (Joan Whitacre). But it noted that Ms. Whitacre
had failed to specify an amount of consequential damages or to
identify a methodology for calculating such damages.
¶12 The summary judgment motion on the breach of contract
claim was submitted to Judge Kennedy for decision. He denied the
motion on all counts. In denying the motion Judge Kennedy ruled
that Build’s claims were “subject to questions of fact, including
whether UDOT breached its contract with [Build], whether UDOT
waived the notice provision and whether [Build’s] claims satisfy the
requirement of the Changed Conditions Clause of the contract
specifications.”
¶13 Judge Kennedy also upheld the viability of Build’s
consequential damages claim. He concluded that Build had
“presented evidence—most notably in the form of Joan Whitacre’s
expert opinion—that supports its consequential damages claim.”
¶14 Judge Kennedy retired soon after issuing his decision
denying UDOT’s motions. He was replaced in this case by Judge
Harris. By that time the dispositive motion deadline had long since
passed. Yet UDOT filed two new motions. The first, styled as a
motion for clarification, related to the Arcadia claim. In that motion,
UDOT claimed that Judge Kennedy should have applied Meadow
Valley Contractors, Inc. v. State Department of Transportation—a
decision addressing contract provisions virtually identical to Parts
1.5 and 1.6 of the contract between Build and UDOT. 2011 UT 35, 266
P.3d 671, abrogated on other grounds by Mounteer Enters., Inc. v.
Homeowners Ass'n for the Colony at White Pine Canyon, 2018 UT 23, __
P.3d __. The Meadow Valley court determined that contractual
language mirroring Part 1.6 applied only where the engineer
“knowingly and deliberately” made changes to the contract. Id. ¶ 31.
And in the absence of a showing of knowledge or deliberate action,
it held that any alteration to the contract would have to be
considered an “alleged change”—triggering the language in the
contract mirroring Part 1.5, with its requirement that the contractor
provide notice of the alleged change or else forfeit its right to
compensation. Id. ¶ 33.
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Opinion of the Court
¶15 Judge Harris agreed with UDOT that Meadow Valley
controlled. He held that Build had failed to provide any evidence
that the change was “knowing and deliberate” on Harrison’s part,
and that Part 1.5 accordingly applied. And because Build had failed
to comply with the notification requirements of that Part, Judge
Harris concluded that Build had waived its claim for additional
compensation. He accordingly entered summary judgment against
Build on the Arcadia claim.
¶16 UDOT’s second motion was styled as a motion in limine.
This motion asked the court to exclude the testimony of Joan
Whitacre and Build’s president Freddie Stromness on the amount of
Build’s consequential damages. In so moving UDOT pointed out that
Build had never provided a calculation of its consequential damages.
And it asserted that Whitacre and Stromness should be prohibited
from testifying as to that amount on that basis.
¶17 At the hearing on the motion Judge Harris noted that a
decision granting UDOT’s motion in limine would “fatally wound”
the business devastation basis of the consequential damages claim.
And he ultimately granted the motion. In so doing he also entered an
order dismissing the consequential damages claim outright,
concluding that the claim “fails for lack of proof” because Whitacre
and Stromness were barred from testifying on the issue.
¶18 Build petitioned for leave to file this interlocutory appeal.
We granted the petition, and review the dismissal of Build’s claims
de novo, affording no deference to the district court’s analysis. We do
so because the district court’s decision amounted to a summary
dismissal of Build’s claims,3 and summary judgment is subject to de
novo review. See Dillon v. S. Mgmt. Corp. Ret. Tr., 2014 UT 14, ¶ 21,
326 P.3d 656.
¶19 We consider Build’s challenges to the dismissal of the
Arcadia claim first, in Part II below. Then we address Build’s
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3 UDOT’s motion for clarification on the Arcadia claim was
effectively a motion to reconsider summary judgment. Infra ¶ 20 n.4.
And that makes Judge Harris’s dismissal of the breach of contract
claim in substance a grant of UDOT’s original summary judgment
motion. The procedural basis for Judge Harris’s dismissal of the
consequential damages claim is less clear. Infra ¶ 43. That said,
because it has the effect of a grant of summary judgment, we treat it
that way for the purposes of our standard of review.
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Opinion of the Court
arguments regarding the consequential damages claim, in Part III.
We affirm on all counts, and in so doing reinforce the authority of a
successor judge (here, Judge Harris) to make any decisions that
could be made by a predecessor (Judge Kennedy).
II. DISMISSAL OF THE ARCADIA CLAIM
¶20 Build challenges the dismissal of the Arcadia claim on two
grounds. First it says that Judge Harris lacked the authority to
reconsider a motion previously denied by Judge Kennedy, citing a
so-called coordinate judge rule in our cases. And second, even
assuming that Judge Harris had the authority to decide the issue,
Build claims that he erred in granting summary judgment.4 We
disagree on both counts and affirm.
A. The “Coordinate Judge Rule”
¶21 A line of our cases refers to a set of limits on the authority of
a successor judge to reconsider decisions of a predecessor. The first
of these cases is Richardson v. Grand Central Corp., 572 P.2d 395 (Utah
1977). In Richardson we stated that “ordinarily one judge of the same
court cannot properly overrule the decision of another judge of that
court.” Id. at 397. We connected this principle to the doctrine of the
“law of the case.”5 Id. And we made reference to an exception to this
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4 Build also makes a third argument. It says that UDOT’s motion
for clarification may properly be viewed as a new motion for
summary judgment. And it asserts that Judge Harris erred in
granting the motion because the dispositive motion deadline had
passed. We reject this argument, however, because we disagree with
its premise. The motion, in substance, was not a new motion but a
motion to reconsider. And although Judge Harris was not required
to rule on such a motion, he had the discretion to do so. A.S. v. R.S.,
2017 UT 77, ¶ 28, 416 P.3d 465 (“[T]rial courts are under no
obligation to consider motions for reconsideration and any decision
to address or not to address the merits of such a motion is highly
discretionary.” (citation omitted) (internal quotation marks
omitted)). His decision on such a motion, moreover, obviates the
need for us to decide whether it would be error for a court to rule on
a new motion after the dispositive motion deadline has passed
without an extension of the deadline.
5 “Under the law of the case doctrine, a court [may] decline to
revisit issues within the same case once the court has ruled on
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Opinion of the Court
general rule—to the notion that “the ruling of one judge as to the
sufficiency or effect of pleadings, does not prevent another division
of the court from considering the same question of law if it is
properly involved on a subsequent motion which presents the case
in a different light.” Id.
¶22 We reinforced the premises of the Richardson case in our
subsequent decision in Sittner v. Big Horn Tar Sands & Oil, Inc., 692
P.2d 735 (Utah 1984). Sittner makes express reference to a set of rules
governing a “coordinate judge.” Id. at 736. It also reiterates the
notion that a successor judge may overrule a previous judge’s
decision where the issues are presented in a “different light”—a
matter that Sittner refers to as one of “several exceptions” to the
general rule. Id.
¶23 The Sittner framework has been invoked in several of our
subsequent cases.6 More recently, in Red Flame, Inc. v. Martinez, we
recognized a new exception to the Sittner rule—an exception
upholding a successor judge’s authority to revisit a previous judge’s
decision where “it appears to the second judge that the first ruling
was clearly erroneous and will infect the subsequent proceedings
with error.” 2000 UT 22, ¶ 5, 996 P.2d 540 (citation omitted).
¶24 Build challenges Judge Harris’s decision under this line of
cases. Build says that Judge Kennedy’s decision denying UDOT’s
motion for summary judgment motion was not “clearly erroneous”
and insists that the matter was not presented to Judge Harris in a
“different light.” And for these reasons Build claims that Judge
Harris was foreclosed from revisiting Judge Kennedy’s earlier
summary judgment decision—notwithstanding his determination
that the Arcadia claim was destined for failure at trial.
them.” McLaughlin v. Schenk, 2013 UT 20, ¶ 22, 299 P.3d 1139
(alteration in original) (citation omitted) (internal quotation marks
omitted).
6 See, e.g., Mascaro v. Davis, 741 P.2d 938, 946–47 (Utah 1987)
(reversing decision by successor judge reconsidering the decision of
a predecessor); State v. Lamper, 779 P.2d 1125, 1129 (Utah 1989)
(finding that a successor judge erred in not revisiting a ruling after a
change in the law); AMS Salt Indus., Inc. v. Magnesium Corp. of Am.,
942 P.2d 315, 319 (Utah 1997) (affirming a successor judge’s reversal
of a prior judge because of the “additional evidence . . . adduced”
(omission in original) (citations omitted)).
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Opinion of the Court
¶25 We concede that the above cases yield a plausible basis for
Build’s position. The cited cases admittedly can be read to establish a
limitation on the authority of a successor judge to revisit decisions of
a predecessor. But that view of these cases is at odds with a different
line of authority in our law—a set of rules and cases that establishes
that “any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties . . . may be changed at any time before the
entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.” UTAH R. CIV. P. 54(b); see also Macris v.
Sculptured Software, Inc., 2001 UT 43, ¶¶ 29–30, 24 P.3d 984 (holding
that “the law of the case doctrine does not prevent a judge from
reconsidering his or her previous nonfinal orders” and extending
this principle to a successor judge, who is not treated as a different
judge, “but rather as the same judicial officer reconsidering a prior
ruling” (citations omitted)); Mid-Am. Pipeline Co. v. Four-Four, Inc.,
2009 UT 43, ¶¶ 11, 14, 216 P.3d 352 (explaining that the law of the
case doctrine preserves a judge’s discretion to revisit a prior ruling
and holding that this rule applies “regardless of whether the judge
has changed or remained the same throughout the proceedings”);
McLaughlin v. Schenk, 2013 UT 20, ¶¶ 22–24, 299 P.3d 1139 (same).
¶26 Our “law of the case” precedent is thus in a state of internal
conflict. On one hand we have purported to limit the authority of a
successor judge to revisit the decisions of a predecessor. But on the
other we have recognized the broad discretion of any judge (even a
successor) to revisit prior rulings. These two lines of authority stand
in inevitable conflict with each other. And the time has accordingly
come for us to reconcile them.
¶27 We do so by adopting a limiting construction of the Sittner
line of cases. On reflection, we view the principles stated in those
cases as hortatory—expressing best-practice considerations for
successor judges, and not limitations to be enforced by a reviewing
court on appeal. Thus, we reinforce the broad discretion of any judge
(whether initially assigned to the case or stepping in as a successor to
another) to revisit any nonfinal decision entered previously. And we
frame the considerations set forth in the Sittner line of cases as mere
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factors that successor judges may wish to take into account in
exercising their broad discretion in this area.7
¶28 We cannot take the Sittner line of cases at face value. To do
so would introduce an operational inefficiency into our system.8 If a
successor judge is convinced that a predecessor made an error in
entering a nonfinal order, it makes no sense to require the successor
judge to reinforce that order at all costs. The successor judge should
retain the discretion to overturn the prior decision—whether or not it
is presented in a “different light,” and whether or not it is “clearly
erroneous.” At least sometimes it will make sense for the successor
judge to step in and correct what he perceives as an error in an
earlier order even when the case is presented in the same light, and
even when the error is less than clear.
¶29 This case is a good example. The successor judge in this case
became convinced that his predecessor had erred in denying
UDOT’s motion for summary judgment. And if he was right in that
assessment (a question we turn to below), it would make no sense to
require him to let the case go to trial. Such a requirement—under a
strict reading of the Sittner line of cases—would direct the successor
judge to subject the parties to a trial that the judge knows to be
pointless (because it would inevitably result in the entry of judgment
as a matter of law9). That makes no sense as a practical matter. And
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7 This formulation is consistent with a premise of our opinion in
Red Flame, Inc. v. Martinez—that “[i]t is not that the second judge
lacks power to revisit an earlier judge’s rulings,” but rather that
“there are circumstances where that power should not be exercised.”
2000 UT 22, ¶ 4, 996 P.2d 540 (citation omitted).
8 See Richardson v. Grand Cent. Corp., 572 P.2d 395, 397 (Utah 1977)
(recognizing that the law of the case doctrine promotes judicial
economy because it aids in “avoid[ing] the delays and the difficulties
involved in repetitious contentions and rulings upon the same
proposition in the same case”).
9 See Salo v. Tyler, 2018 UT 7, ¶ 31, 417 P.3d 581 (“The summary
judgment standard anticipates—and mirrors—the directed verdict
inquiry. If a defendant can show that the plaintiff has no legally
sufficient evidentiary basis for its claims at trial, the defendant may
establish the lack of a genuine issue of material fact and an
entitlement to judgment as a matter of law.”).
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presumably that is why our more recent cases yield to all judges the
authority to revisit prior nonfinal decisions.
¶30 This is not to say that the decision to revisit a prior order
should be made willy-nilly. We still see wisdom in the cautionary
standards set forth in the Sittner line of cases. A successor judge
should tread lightly before jumping to the conclusion that his
perspective on the case is superior. He should measure twice before
cutting down the decision of a predecessor. That is how we take the
standards set forth in our Sittner cases. They articulate principles that
the careful successor judge would be wise to account for. Before
overruling a predecessor the successor judge should ask whether his
perspective of the case is different from—or better than—that of the
judge whose decision he is about to strike down. And he should
pause before concluding that the prior judge’s ruling (and not his
own) is clearly in error.10
¶31 That decision, however, is for the successor judge, not for a
reviewing court on appeal. The successor judge, after all, is the court
whose decision is being reviewed on appeal. He is the “same judicial
officer” as the judge whose decision he overturned. Macris, 2001 UT
43, ¶ 30. The fiction on appeal, in other words, is that there is no such
thing as a predecessor or successor—just the district court.
¶32 We reject Build’s threshold argument on this basis. We
conclude that Judge Harris had the authority to overturn the
decision of Judge Kennedy denying UDOT’s motion for summary
judgment. And we reframe our case law in this field to clarify that
the limitations on successor judges are hortatory considerations for
trial judges, not enforceable standards to be applied on appeal.
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10 Not every prior decision, moreover, is worth a probing second
look. Some nonfinal decisions represent the exercise of classic
judicial discretion. Others will have little effect on further
proceedings in the case. Those sorts of decisions probably should be
left alone, as any attempt to revisit them seems likely to introduce
unnecessary delay and inefficiency in the disposition of the case. But
the decision at issue here is different. It involved the denial of a
dispositive motion for summary judgment. And the perception of
error on that kind of decision could predictably cut the other way on
delay and inefficiency, as noted above. See supra ¶¶ 28–29.
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B. Merits of the Summary Dismissal of the Arcadia Claim
¶33 That leads us to the merits of Judge Harris’s decision on
summary judgment. Build asserts that there was a dispute of
material fact as to whether Build had waived its claim to
compensation for its extra work under the terms of the parties’
contract. And it asks us to reverse on that basis.
¶34 The issue on summary judgment is whether the UDOT
engineer (Harrison) understood that he was ordering extra work. His
understanding and intention control whether Part 1.5 or Part 1.6
applies, which is the dispositive question in this case. If Harrison
believed that he was ordering work that was outside the scope of the
contract, then Part 1.6 of the contract applies. That provision requires
UDOT to make the changes in writing. Because UDOT did not fulfill
this requirement under Part 1.6, it would be liable if this provision
applied. But if Harrison did not believe he was ordering extra work,
Part 1.5 applies. That provision gives Build five days to give written
notice of the “alleged change” to UDOT, or else it “waives[s] . . . any
and all claims that may arise as a result of the alleged change.” Build
did not give the required notice of the “alleged change” to UDOT
within five days. So Build is left without recourse if Part 1.5 controls.
¶35 To escape Part 1.5, Build must show that Harrison
“knowingly and deliberately” made changes to the contract or
“believed” that the change “altered the contract.” Meadow Valley
Contractors, Inc. v. State Dep’t of Transp., 2011 UT 35, ¶ 32, 266 P.3d
671, abrogated on other grounds by Mounteer Enters., Inc. v. Homeowners
Ass'n for the Colony at White Pine Canyon, 2018 UT 23, __ P.3d __. This
standard requires proof that Harrison subjectively believed that he
was seeking a change that altered the contract. Yet Harrison testified
to the contrary. He stated in a declaration submitted in response to
Build’s motion for summary judgment that he “did not consider
Build’s hauling of the extra material from the project site to the
County dump to constitute change involving extra work as there
was no change of contract plans or specification by actions they were
undertaking.”
¶36 This statement, if unrebutted, is enough to sustain UDOT’s
motion for summary judgment. Build seeks to overcome it by
pointing to material in the record that in its view establishes a
genuine issue of material fact about Harrison’s belief. But none of
Build’s points is persuasive.
¶37 Build first cites to language in the contract—to a provision
stating that “fill slopes may be flattened as shown on plans in order
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to waste excess material,” and to another clause indicating how
much excavated material would be disposed of at various locations
within the project site. But these provisions don’t rebut Harrison’s
testimony of his subjective belief. At most they go to the question
whether Harrison’s belief was based on a reasonable interpretation
of the contract. But again the question is not whether his belief was
reasonable; just whether he in fact held that belief. And these pieces
of evidence accordingly give no traction to Build’s case.
¶38 Build next points to testimony from Harrison. It notes that
Harrison stated that “the contractor was allowed to dispose of
excavated material in waste areas” within the project site. In Build’s
view this means that Harrison understood offsite areas to be excluded
by the contract. But we do not read this permissive statement as
exclusive. And we reiterate, as with the contract provisions, that
Build’s evidence does not contradict Harrison’s stated belief that no
extra-contractual work was required.
¶39 Build also cites to Harrison’s statement that he instructed
Build to haul the excess clay offsite based on an exercise of his
“personal engineering judgment.” Here the implication is that
Harrison’s “personal engineering judgment” stands in contrast to the
contractual arrangement. We are not sure that that follows. But even
if we accepted Build’s chain of inferences, we would revert back to
the point that this evidence again does not contradict Harrison’s
stated subjective belief.
¶40 The next arrow in Build’s quiver is a letter from Harrison to
Build stating that a “changed condition is acknowledged as the basis
of [Build’s] claim, in that . . . [excavated material] could no longer be
effectively disposed of within the contract limits.” But there are two
problems with this letter. First is the fact that this statement seems to
be nothing more than an acknowledgment and restatement of
Build’s position. Second, even if this were a concession, it would
reflect UDOT’s and Harrison’s belief in 2008 when the letter was
written. Again this does not contradict Harrison’s statement about
his belief at the time these events occurred in 2006.
¶41 Build’s final move is to cite a change order from UDOT
indicating that part of the project “is constructed on an unstable
historic land slide” and detailing the “corrective action” taken to
“improve its stability per Geotechnical Engineers[’]
recommendations.” Like the letter from Harrison, however, this
change order came long after the fact, in 2007. Even if we read this as
a flat concession by UDOT—which we do not—it doesn’t directly
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contradict Harrison’s direct evidence of his subjective belief at the
time the events occurred. Again, this evidence might be probative as
to the reasonability of Harrison’s belief at the time. But that question
is irrelevant. The issue is whether Harrison “knowingly and
deliberately” made changes to the contract. And the change order
does not go to that issue.
¶42 UDOT has proffered direct evidence of Harrison’s subjective
belief at the time of the “alleged change,” including by Harrison’s
own testimony. Nothing Build provides directly contradicts this
evidence. Much of Build’s evidence goes to the reasonableness of
Harrison’s belief; some of it at best reflects Harrison’s understanding
long after the fact. It would not be reasonable for a jury to infer from
this evidence that Harrison believed he was changing the contract.
We affirm Judge Harris’s dismissal of the breach of contract claim on
this basis.
III. DISMISSAL OF THE CONSEQUENTIAL DAMAGES CLAIM
¶43 Build also appeals the district court’s decision to dismiss its
claim for consequential damages. The court dismissed these claims
as a natural result of its decision granting UDOT’s motion in limine.
The decision on the motion in limine excluded Build’s two witnesses
on consequential damages, Stromness and Whitacre. Without those
witnesses, the district court determined that Build’s consequential
damages claim was baseless. And it dismissed the claim on that
basis.
¶44 Build challenges this decision on two fronts. It first says that
the court erred in dismissing the consequential damages claim
without the benefit of full briefing on a motion for summary
judgment on the matter. Alternatively, Build challenges the district
court’s decision on its merits—asserting that it presented sufficient
evidence in support of its claim beyond the excluded testimony of
Stromness and Whitacre.
¶45 Build’s first point may have merit. It may have been
preferable for the district court to order briefing on the question
whether the decision granting the motion in limine should lead to the
summary dismissal of the consequential damages claim. No
summary judgment motion was pending, after all. And a summary
dismissal of a claim is a more substantial step than a mere decision
to exclude testimony or evidence.
¶46 We need not reach the question whether this amounted to
reversible error, however. The district court retained the discretion to
extend the dispositive motion deadline and to order the parties to
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brief a new motion for summary judgment on the consequential
damages claim.11 And we conclude that any alleged error in the
failure to do so was harmless.
¶47 The record shows quite clearly that Build could not have
proven its consequential damages claim without the testimony of
Stromness and Whitacre. Because Build never disclosed a calculation
method or the amount of consequential damages it was claiming,
moreover, any additional evidence it might have proffered likely
could have been properly excluded under civil rule 26(d)(4). UTAH R.
CIV. P. 26(d)(4) (“If a party fails to disclose or to supplement timely a
disclosure or response to discovery, that party may not use the
undisclosed witness, document or material at any hearing or trial
unless the failure is harmless or the party shows good cause for the
failure.”)); id. 26(a)(1)(C) (“[A] party shall, without waiting for a
discovery request, serve on the other parties . . . a computation of
any damages claimed . . . .”). That renders any arguable error in the
failure to order briefing on a motion for summary judgment
harmless, as such a motion would surely have been granted on this
record.
¶48 Build had a series of opportunities to present evidence in
support of its consequential damages claim. It repeatedly failed to do
so. This series of failures culminated in the decision granting the
motion in limine. And that decision would inevitably have led to the
dismissal of the consequential damages claim even if the propriety of
such dismissal had been fully briefed on a motion for summary
judgment.
¶49 Build’s first chance to proffer evidence to prove its amount
of consequential damages came at the earlier summary judgment
phase. At that stage the record is clear that Build identified only
Whitacre’s and Stromness’s testimony in support of this claim. In
UDOT’s original motion for summary judgment on the
consequential damages claim, UDOT asserted that “Build ha[d]
failed to provide any evidence as to the value of [its] business before
and after UDOT’s alleged conduct.” It also alleged that “Build’s
consequential damage/business devastation claim is based upon the
opinions of Build’s expert, Joan Whitacre.” When so challenged,
_____________________________________________________________
11 See UTAH R. CIV. P. 56(b) (noting that a party may file
a motion for summary judgment at any time no later than 28 days
after the close of all discovery “[u]nless the court orders otherwise”).
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Opinion of the Court
Build did not directly contradict UDOT’s characterization. Instead,
Build referred again to Whitacre’s testimony and adverted vaguely
to generic evidence in the record—such as evidence of “25 years [of]
Build’s financial records.” It thus asserted that it had “placed into the
record . . . relevant admissible information from which the jury may
determine fair market value before and after UDOT’s wrongful
conduct.” Yet Build’s only apparent witness on the matter was
Stromness, and Stromness was excluded by the decision granting the
motion in limine.
¶50 Build had another chance to alert the court to additional
evidence in response to UDOT’s motion in limine. Here UDOT
argued that Build’s consequential damages claim was based on
Whitacre’s testimony. Build responded that UDOT’s characterization
was “incomplete” because its claim was also “based on the facts
considered by Ms. Whitacre[,] . . . evidence of Build’s financial
condition provided in this case[,] . . . and the opinions of Fred
Stromness.” Again, Build did not point to any witnesses outside of
those that the court excluded.
¶51 Build’s last chance to proffer additional evidence was at the
hearing on the motion in limine. There, the following exchange took
place:
The Court: [I]t seems to me you have [not given a basis for the
computation], by preventing Mr. Stromness, who will be your
witness on this; right? You don’t have another.
Mr. Fetzer [counsel for Build]: We have Ms. Whitacre on the
causation and the—the fact and causation of the damages, we
have—
The Court: Okay. And they’re not challenging that, they’re not
challenging Ms. Whitacre being able to get put on the stand
and testify as to causation about business devastation. Who’s
your guy?
Mr. Fetzer: Mr. Stromness.
The Court: For the number. Okay.
Mr. Fetzer: Mr. Stromness.
Here again Build failed to identify a witness outside of Stromness or
Whitacre. Later at that hearing, Judge Harris suggested that he was
considering the option of “kick[ing Build’s] whole claim for a failure
to disclose.” He added, “if you think I’m seeing that inappropriately
or incorrectly, I’d like to hear from you and like to know what else
you think I can do about it.” But Build doubled down on Stromness
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Opinion of the Court
as its witness. If Build had another witness to rely on for this claim, it
did not give so much as a hint to that effect on the record.
¶52 With the above in mind, we find no reversible error in the
district court’s decision to dismiss the consequential damages claim.
Full briefing on the question may have been a best practice. But we
find any arguable error in the decision not to order such briefing to
be harmless. The record clearly shows that Build relied only on
Stromness and Whitacre to support its consequential damages claim
at every step of the litigation. And for that reason we think it
inevitable that the district court would have dismissed the claim
even if it had ordered full briefing on a motion for summary
judgment.
¶53 Build suggests that it conceivably could have identified
alternative theories of consequential damages. It alludes to the
notion of attorney fees as consequential damages in its brief. And it
referred to other possible theories at oral argument—including the
notion that the district court’s failure to order briefing somehow
prevented it from developing a record of the basis for its
consequential damages claim in the district court. But these
arguments likewise fail. The record developed above shows that
Build had ample opportunity to present another theory of
consequential damages. And in any event it seems clear that any
new theory would have been excluded as not having been
previously disclosed under Utah Rule of Civil Procedure 26.
¶54 At the hearing on the motion in limine the district court had
the opportunity to allow Build to supplement its disclosures, re-open
discovery, and push the trial back to allow Build to introduce new
evidence or theories in support of its claim for consequential
damages. But the court declined to do so. In UDOT’s words (at the
hearing), the court “disallow[ed] them from going back to start
over,” forcing them to “live with what they’ve got and have given us
so far.” That decision was understandable—certainly within the
court’s ample discretion. And it led to the inevitable decision to
dismiss the consequential damages claim for lack of supporting
evidence in the record.
¶55 We affirm on this basis. We find no reversible error in the
dismissal of the consequential damages claim because Build never
disclosed an amount of consequential damages or a basis for
calculating it. When the only two witnesses who might have testified
to any such amount were excluded, the claim was left without a leg
to stand on. And no alternative theory could have rescued that claim
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Opinion of the Court
because any such theory also would have been infected by Build’s
failure to disclose.
IV. CONCLUSION
¶56 We affirm the dismissal of Build’s Arcadia claim despite the
limitations stated in our Sittner line of cases. We reframe those
limitations as hortatory factors for successor judges to consider. And
we reinforce the discretion of a successor or coordinate judge to
reconsider a predecessor judge’s nonfinal rulings. We also affirm the
dismissal of both the Arcadia claim and the consequential damages
claim on their merits, deeming any arguable error in the dismissal of
the latter claim harmless.
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