Timber Lakes v. Cowan , 2019 UT App 160 ( 2019 )

2019 UT App 160THE UTAH COURT OF APPEALS
TIMBER LAKES PROPERTY OWNERS ASSOCIATION,
Appellant,
v.
PHILLIP E. COWAN, GAIL M. COWAN, AND
THE COWAN FAMILY TRUST,
Appellees.
Opinion
No. 20180125-CA
Filed September 26, 2019
Fourth District Court, Heber Department
The Honorable Jennifer A. Brown
No. 140500089
David L. Barclay, Lincoln Harris, and Robert S.
Rosing, Attorneys for Appellant
Bruce R. Baird and P. Matthew Muir, Attorneys
for Appellees
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.
ORME, Judge:
¶1 Timber Lakes Property Owners Association (the
Association) initiated suit against Phillip E. Cowan, Gail M.
Cowan, and The Cowan Family Trust (collectively, the Cowans)
seeking injunctive relief requiring the Cowans to remove a
detached garage they constructed on their property. After all
was said and done, the Association won the battle but lost the
war. The district court granted summary judgment in favor of
the Association, determining that the garage violated the
applicable Declaration of Protective Covenants, Conditions,
Restrictions and Management Policies for Timber Lakes Estates
Timber Lakes v. Cowan
(the CC&Rs). But despite concluding that a violation had
occurred, the court declined to grant the permanent injunction
the Association sought. In relevant part, the court determined
that the Association “ha[d] not shown that an award of
monetary damages would be insufficient to remedy the
purported harm” and had therefore failed to establish
irreparable harm—a prerequisite of injunctive relief. We hold
that the district court did not abuse its discretion in so
concluding. With respect to an ancillary issue, we also hold that
Wasatch County did not assign its zoning ordinance
enforcement rights to the Association.
BACKGROUND 1
¶2 The Association is the homeowners association that
governs Timber Lakes Estates (Timber Lakes), located in
Wasatch County. Timber Lakes encompasses eighteen
subdivisions, one of which is Plat 12. Plat 12, in turn, is further
subdivided into lots, including Lot 1275 (the Property). Pursuant
to a recorded agreement entered into by Wasatch County (the
County), the Association, and the developer of Timber Lakes
(the Maintenance Agreement), “[t]he Association possesses a
right of way . . . to provide all maintenance and improvements
for roadways” in Timber Lakes. Within Plat 12 specifically, the
Association possesses a right­of­way to maintain, improve, and
use a 60-foot wide road (the Plat 12 Right­of­Way) that
encroaches 30 feet into the western portion of the Property and
30 feet into the eastern portion of the lots located directly across
1. “The parties do not dispute the factual findings of the district
court [that are relevant to our resolution of this case]. We
therefore recite the facts in accordance with the district court’s
findings.” Ockey v. Lehmer, 2008 UT 37, ¶ 3, 189 P.3d 51. See infra
notes 5 and 7.
20180125-CA 2 2019 UT App 160Timber Lakes v. Cowan
from the Property. To date, the Association has not constructed a
road on the Plat 12 Right­of­Way, and it has no plans to do so. In
its stead, a separate road (the Existing Road) services the
Property and neighboring lots. The Existing Road is not within
the Plat 12 Right­of­Way.
¶3 Since their recordation in 1989, the CC&Rs have governed
Timber Lakes. The Association has the right and duty under the
Maintenance Agreement “to enforce all covenants, conditions,
restrictions and management policies set forth in the [CC&Rs],”
and the County reserved the right “to enter upon the premises of
[Timber Lakes] for inspection and for enforcement of all
applicable laws, ordinances, [CC&Rs] and agreements.” Should
the Association fail to meet its enforcement obligations, the
Maintenance Agreement provides that “the County may . . .
cause suit to be brought against the Association for the purpose
of requiring it to enforce the same or may itself bring and
prosecute a suit in the name of the Association for the purpose of
enforcing the [CC&Rs].”
¶4 The CC&Rs require Timber Lakes property owners to
submit detailed plans and specifications to, and receive written
approval from, the Association before commencing construction
of any structure on their property. The Association has the
authority to disapprove any construction plans that “are not in
accordance with all of the provisions of [the CC&Rs].” The
CC&Rs further require the construction of any improvements to
“comply with all requirements of the federal, state and local
governing authorities,” of which Wasatch County Code
16.09.09(1) (the County Setback Ordinance) is of particular
relevance to the current case. It requires structures to “be a
minimum of sixty (60) feet from the center of [a] road, or
thirty (30) feet from the edge of [a] right­of-way, whichever is
greater.”
20180125-CA 3 2019 UT App 160Timber Lakes v. Cowan
The Construction of the Garage
¶5 The Cowans purchased the Property in 2012 on behalf of
their relatives, Peter and Beverley McDermott, who immediately
took possession. The Cowans did so with assurances that the
McDermotts would purchase the Property within the next three
years. 2 At the time of purchase, the Property contained a house
but no garage. Upon purchase of the Property, the Cowans 3
applied for and received a building permit from the County and
commenced construction of a detached garage immediately
southwest of the house. Contrary to the provisions of the
CC&Rs, they did so without first seeking written approval from
the Association.
¶6 On the day that excavation for the garage began, one of
the Association’s board members notified the Cowans that they
were required to submit plans for the garage to the Association,
2. The Cowans did transfer the Property to the McDermotts
approximately one year after the Association initiated the
current action. However, the district court determined, pursuant
to rule 2(c) of the Utah Rules of Civil Procedure, that “the
Association is entitled to pursue its Amended Complaint against
[the Cowans] to its conclusion despite their transfer of title to
[the Property] to the McDermotts after this action was
commenced, and [the Cowans’] affirmative defense that the
Association failed to name the McDermotts as the real party in
interest fails as a matter of law.” Neither party moved the court
to join the McDermotts to the action, and neither party raises this
issue on appeal.
3. For ease in recounting the facts, we do not distinguish the
actions taken by the McDermotts from those taken by the
Cowans but refer to the Cowans and McDermotts collectively as
the Cowans.
20180125-CA 4 2019 UT App 160Timber Lakes v. Cowan
which they immediately did. The next day, the board member
returned to the Property accompanied by the Association’s
roads manager and informed the Cowans that there was a
potential problem with the garage’s location “due to the
Association’s plans to widen [the Existing Road] in the future.”
Actually, the garage’s western wall was located within three
feet of the eastern edge of the Plat 12 Right­of­Way in violation
of the thirty-foot setback required by the County Setback
Ordinance. 4 As a result of that visit, construction of the garage
ceased.
¶7 Following additional discussions, the Cowans met with
three of the Association’s board members in mid-October 2012 to
discuss the garage. The representatives informed the Cowans
that the Association would permit them to build the garage if
they could obtain a letter from the County approving the
garage’s location. The three board members, according to the
Cowans, also represented that they had the authority to approve
the garage on the Association’s behalf.
¶8 Within a week, the Cowans were successful in obtaining a
letter from the County’s planning department (the County
Letter).5 The County Letter stated that the garage’s location in
4. The record at times speaks of a “widening” of the Existing
Road, suggesting that the Existing Road and the Plat 12
Right­of­Way overlap, with the Plat 12 Right­of­Way being the
wider of the two. Despite this occasional discrepancy in the
record, the parties agree that the Existing Road is entirely
separate from the Plat 12 Right­of­Way.
5. The Association argues that in obtaining the County Letter,
the Cowans submitted a site plan depicting the wrong road.
Instead of showing the garage’s location in relation to the Plat 12
Right­of­Way, the site plan only depicted its relation to the
(continued…)
20180125-CA 5 2019 UT App 160Timber Lakes v. Cowan
(…continued)
Existing Road. The Association further argues that “there is no
evidence in the record that the Association ever received the
[County] Letter” and that the district court therefore erred in
stating in its findings that the letter was presented to the
Association. However, in view of our resolution of the case, this
factual disagreement proves to be unimportant.
The Association first made the argument—that the Cowans
provided the County with an incorrect site plan—in support of
its contention that the Cowans were not innocent parties and
that the district court was therefore precluded from engaging in
a “balance of the equities”—the final inquiry a district court
must engage in when determining whether injunctive relief is
proper. See Johnson v. Hermes Assocs., Ltd., 2005 UT 82, ¶ 32, 128
P.3d 1151 (“Balancing the equities is reserved for the innocent
defendant, who proceeds without knowledge or warning that he
is encroaching upon another’s property rights.”) (quotation
simplified). However, as explained in section II infra, we affirm
the district court’s decision not to grant injunctive relief on the
ground that the Association failed to show that it was
irreparably harmed by the construction of the garage, thereby
rendering review of the court’s balancing of the equities analysis
unnecessary.
And regarding the Association’s second point—that there is
no evidence that the Association ever received the County
Letter—the Association acknowledges that this fact is of limited
importance in the current case. It stated that it raised the issue
only because “the district court chose to comment upon it” in its
findings and requested, should we remand this case for further
proceedings, that we instruct the court to correct this and certain
other factual findings that have ultimately proven immaterial in
light of our resolution of this case. Because we have no cause to
remand, we do not further address this argument.
20180125-CA 6 2019 UT App 160Timber Lakes v. Cowan
relation to the Existing Road “met the requirements of the
[County Setback Ordinance],” as evidenced by the permit the
County had previously issued to the Cowans. But it continued
that “[i]n the future if the road is widened the structure will be
considered legally non-conforming meaning any new addition
would be required to meet current setback requirements.”
Although the letter contemplated a widening of the Existing
Road, it made no mention of the Plat 12 Right­of­Way and the
garage’s violation of the County Setback Ordinance in relation to
it. 6 One of the three board members with whom the Cowans had
met in mid-October subsequently advised them that
construction of the garage could resume. 7
6. The Cowans acknowledged that the garage “is not located . . .
a minimum of thirty (30) fee[t] from the edge of the [Plat 12
Right-of-Way].”
7. In its motion for summary judgment, the Association
presented the facts concerning the Cowans’ interactions with
various members of the Association’s board as “undisputed for
purposes of [its] Motion for Summary Judgment, only, and
reserve[d] the right to admit or deny any of them during the
pendency of this action should [its] motion be denied.”
However, the Association argues that the district court erred in
relying on Peter McDermott’s affidavit when denying injunctive
relief. The content of his communications with the board
members is ultimately unimportant to the resolution of the
present case, especially in light of the district court’s conclusion
that regardless of what transpired between the Cowans and the
board members, “in constructing the Garage, [the Cowans’]
reliance upon the statements and conduct attributed to the Board
Members . . . is not sufficient to relieve them from a finding that
the Garage is in violation of the [CC&Rs].”
20180125-CA 7 2019 UT App 160Timber Lakes v. Cowan
¶9 In early November 2012, the Cowans received a letter
from the Association’s attorney informing them that “[t]he
garage constitute[d] a continuing violation, nuisance and/or
trespass” upon the Plat 12 Right­of­Way. The letter stated that
“[a]lthough road widening or other adjustment within the
right­of-way is not scheduled, there will come a time when such
will occur.” It further notified the Cowans that when such time
came, they “may then need to remove, modify, or relocate the
garage as a result of its continuing violation” or “may then be
responsible for costs to [the Association] for steps necessary to
protect the garage from vehicles or from run-off that would not
have been necessary had [they] complied with the set-back
requirement.” 8 Despite the Cowans’ receipt of the November
letter, construction of the garage was completed, and they did
not receive any further negative communication from the
Association regarding the garage until the Association initiated
the current action almost a year and a half later, in 2014.
Procedural History
¶10 In its suit, the Association sought a permanent injunction
against the Cowans ordering them to either “remove the Garage
from the [Property] at their sole expense” or, in the alternative,
“to relocate the Garage at their sole cost and expense” to a
location on the Property that would be in compliance with the
County Setback Ordinance. The Association did not request
8. The record is unclear as to the timing of this letter in relation
to the board member’s oral representation to the Cowans that
construction of the garage could resume. Regardless of whether
the board member’s communication took place before or after
the November letter, construction of the garage recommenced,
and the Cowans heard no further complaint from the
Association until 2014.
20180125-CA 8 2019 UT App 160Timber Lakes v. Cowan
monetary damages in the alternative. Following a stipulated stay
of proceedings, the Cowans filed their answer and counterclaim.
¶11 At the conclusion of discovery, the Association filed a
motion for summary judgment. The district court granted the
motion, indicating it would dismiss the Cowans’ counterclaims
and rule in favor of the Association on its claims. In granting the
summary judgment motion the court, in relevant part,
concluded that (1) the manner of construction and location of the
garage violated the CC&Rs and the Maintenance Agreement; 9
(2) “neither the Association nor any of said Board Members
have, or did have at any time, the power or authority to
authorize, excuse, or waive said Violations by agreement or
otherwise or to make representations to the contrary”; and
(3) because the Cowans had actual and/or constructive
knowledge of the CC&Rs and the Maintenance Agreement at the
time of purchase and when constructing the garage, they were
not entitled to rely on the contrary statements and conduct of the
Association’s board members.
¶12 But despite granting the Association’s summary judgment
motion on its substantive claims, the district court declined to
award the permanent injunction the Association sought.
Following supplemental briefing and a hearing on the issue, the
court concluded that although the Association had successfully
established the second factor of the permanent injunction
9. Because the district court concluded that the Maintenance
Agreement did not grant the Association authority to enforce
violations of county ordinances in the County’s stead, see section
III infra, and because the “County ha[d] not seen fit to take a
position contrary to that expressed in the [County Letter],” the
court “decline[d] to find a violation of the [County Setback
Ordinance] at [that] time.”
20180125-CA 9 2019 UT App 160Timber Lakes v. Cowan
inquiry, 10 “the remaining prongs are not quite as clear.” The
court first noted that the Association had not presented evidence
of special damages. Referring to the required showing of
irreparable harm, the court next stated that the Association
“ha[s] not shown that an award of monetary damages would be
insufficient to remedy the purported harm.” Finally, the court
determined that “a balancing of the equities does not weigh in
favor of a permanent injunction.” Specifically, although the
Cowans had not fully complied with the provisions of the
CC&Rs and the Maintenance Agreement when constructing the
garage, “they did make efforts to do so.” The court concluded
that the Cowans “did not intentionally flaunt the applicable
requirements,” because “[t]hey engaged with the [Association]
and the County in an attempt to understand what was
required,” but neither entity was “accurate or complete in their
communications” with the Cowans. Additionally, the
Association was not wholly without blame because it bore the
responsibility of assuring compliance with the CC&Rs and the
Maintenance Agreement, and the Association’s board members
“shouldn’t be allowed to act in a manner inconsistent with
governing covenants and restrictions and then bear no
responsibility for the result.” In light of this, the court concluded
that requiring the Cowans to tear down their garage was “a
harsh remedy that [was] not warranted under these facts and
10. “A court may grant a permanent injunction if it determines
that (1) the petitioner establishes standing by demonstrating
special damages, (2) the petitioner has a property right or
protectable interest, (3) legal remedies are inadequate,
(4) irreparable harm would result, (5) court enforcement is
feasible, and (6) petitioner merits the injunction after balancing
the equities.” Johnson v. Hermes Assocs., Ltd., 2005 UT 82, ¶ 13,
128 P.3d 1151.
20180125-CA 10 2019 UT App 160Timber Lakes v. Cowan
circumstances.” The court entered its final judgment
incorporating its rulings.
¶13 The Association appeals.
ISSUES AND STANDARDS OF REVIEW
¶14 The Association raises two primary issues on appeal that
we address on the merits. 11 First, it challenges the district court’s
11. The Association makes two additional arguments, the merits
of which we do not reach. First, it argues that the district court
misapplied rule 56(f)(1) of the Utah Rules of Civil Procedure
because it “essentially” awarded summary judgment in favor of
the Cowans, the nonmoving party, by denying the Association’s
request for a permanent injunction without first giving it “notice
and a reasonable time to respond.” But the Association has not
preserved this argument. To preserve an issue for appeal, a party
must present the issue below “in such a way that the trial court
had the opportunity to rule on it.” State v. Robinson, 2018 UT
App 103, ¶ 38, 427 P.3d 474 (quotation simplified). The
Association contends that the issue was preserved “by virtue of
the district court’s Ruling where [the issue being appealed]
appears for the first time.” The Association appears to be
arguing that it did not have an opportunity to raise the rule
56(f)(1) issue before the district court because the court’s
summary judgment ruling was a final appealable order that
started the running of the 30­day period to file an appeal. See
Utah R. App. P. 4(a). But after the district court orally granted
the Association’s summary judgment motion, it ordered
supplemental briefing on the issue of remedies and held a
hearing. If this did not satisfy rule 56(f)(1), it nonetheless
presented the Association with an opportunity to raise the issue
prior to the entry of final judgment, which the Association did
(continued…)
20180125-CA 11 2019 UT App 160Timber Lakes v. Cowan
denial of injunctive relief despite the court’s conclusion that the
garage’s location violated the CC&Rs. This case is in a somewhat
unusual posture as concerns the standard of review. The
Association argues that we should apply the summary judgment
standard of review (i.e., for correctness) because the court’s
denial of injunctive relief was a determination made in response
to a motion for summary judgment and the supplemental
briefing ordered by the court. But a court’s ultimate decision to
grant or deny injunctive relief—including the determination
whether a plaintiff suffered irreparable harm—is ordinarily
reviewed for an abuse of discretion. See Osguthorpe v. ASC Utah,
Inc., 2015 UT 89, ¶¶ 37–38, 365 P.3d 1201. Although the district
court combined its summary judgment and injunction rulings in
a single order, we view the court’s grant of the Association’s
(…continued)
not do. The argument is therefore unpreserved for appeal. “And
because [the Association] has not argued that an exception to the
preservation rule applies, we have no occasion to address the
merits of this issue on appeal.” See State v. Murphy, 2019 UT App
64, ¶ 14, 441 P.3d 787.
The Association also claims that the district court altered
“certain previously undisputed facts” and added other facts “for
which no evidence was presented by the parties” in its final
order formally granting summary judgment but denying
equitable relief. Although we express similar preservation
concerns, this issue is more readily disposed of on the ground
that none of the facts that the Association challenges are relevant
to our resolution of this appeal, see supra notes 5 and 7, which the
Association acknowledges by requesting that we order the
district court to correct the alleged alterations and additions “if
this case is remanded for further proceedings.” Because we have
no occasion to remand this case, we need not consider this issue
further.
20180125-CA 12 2019 UT App 160Timber Lakes v. Cowan
summary judgment motion and the court’s subsequent denial of
a permanent injunction as two separate rulings. 12
¶15 A grant of summary judgment and the subsequent
determination of appropriate remedies are separate issues that
involve inherently different inquiries. Summary judgment
review is limited to an inquiry into whether a “genuine dispute
as to any material fact” exists and, if so, whether the “moving
party is entitled to judgment as a matter of law.” Utah R. Civ. P.
56(a). Because these are purely legal determinations, we review
them for correctness. See Salt Lake County v. Holliday Water Co.,
2010 UT 45, ¶ 14, 234 P.3d 1105. Conversely, when a party seeks
equitable relief, it invokes the equitable jurisdiction of the court,
see Ockey v. Lehmer, 2008 UT 37, ¶ 44, 189 P.3d 51, the nature of
which is largely within the discretion of the court and, with the
exception of the legal standard applied by the court, is reviewed
accordingly, see Osguthorpe, 2015 UT 89, ¶ 37. Of particular
relevance to the present case, a district court’s determination of
irreparable harm is reviewed for an abuse of discretion. Id.
¶¶ 37–38. Thus, we decline the Association’s invitation to apply
the summary judgment standard of review to the court’s
permanent injunction ruling and instead review that decision for
an abuse of discretion. 13
12. Thus, while the Association acknowledges that it did not
dispute the Cowans’ account of their interactions with the board
members for the limited purpose of summary judgment, it
contends that the district court nonetheless erred in relying on
Peter McDermott’s affidavit when it subsequently denied
injunctive relief. See supra note 7.
13. Even if we were to review the district court’s decision de
novo, the Association would not prevail on appeal because, as
discussed in section II infra, the Association has not presented
(continued…)
20180125-CA 13 2019 UT App 160Timber Lakes v. Cowan
¶16 Second, the Association argues that the district court
erred in determining that the Association lacked the authority
under the Maintenance Agreement to enforce the County
Setback Ordinance as the County’s assignee. “The interpretation
of a contract is [a] legal question, which we . . . review for
correctness.” Mind & Motion Utah Invs., LLC v. Celtic Bank Corp.,
2016 UT 6, ¶ 15, 367 P.3d 994.
ANALYSIS
I. Appellate Jurisdiction
¶17 Before reaching the merits of the parties’ arguments, we
must first address the jurisdictional concern that arose prior to
oral argument. See Hayes v. Intermountain GeoEnvironmental
Services, Inc., 2018 UT App 223, ¶ 2, 437 P.3d 650 (“Because
acquiescence of the parties is insufficient to confer jurisdiction on
the court, the initial inquiry of any court should always be to
determine whether the requested action is within its
jurisdiction.”) (quotation simplified); McClellan v. State, 2012 UT
App 316, ¶ 5, 290 P.3d 326 (“Whether we have subject matter
jurisdiction is a threshold issue, which can be raised at any time
and must be addressed before the merits of other claims.”). Our
concern arose during our review of the transcript of the remedies
hearing during which the district court declined to issue a
permanent injunction. After the court rendered its decision, it
stated that the case up to that point “ha[d] been entirely focused
on” the Association’s request for a permanent injunction. The
(…continued)
any evidence of plans to construct a road on the Plat 12
Right­of­Way but only asserts that it “contemplate[s]” doing so
sometime in the indefinite future which, as a matter of law, is
insufficient to establish irreparable harm.
20180125-CA 14 2019 UT App 160Timber Lakes v. Cowan
court subsequently offered the Association the choice between
(1) “present[ing] evidence [at a subsequent hearing] strictly
focused upon monetary damages that would need to be
awarded in order to alleviate the breach or the actions of the
[Cowans]” or (2) reserving that issue for future resolution and
proceeding with an appeal from its final judgment denying the
requested permanent injunction. The Association elected to
proceed with the appeal.
¶18 It appeared to us that the district court may have intended
to reserve the determination of monetary damages for
consideration following the current appeal. If true, this would
have robbed the court’s order of finality—especially in the
absence of the court’s certification of its order as final pursuant
to rule 54(b) of the Utah Rules of Civil Procedure. See Hayes, 2018
UT App 223, ¶ 2 (“As a general rule, appellate courts obtain
jurisdiction over an appeal only after the district court issues a
final order or judgment that ends the controversy between the
litigants.”) (quotation simplified). See also Bradbury v. Valencia,
2000 UT 50, ¶ 9, 5 P.3d 649 (“A judgment is final when it ends
the controversy between the parties litigant.”) (quotation
simplified); id. ¶ 12 (“[O]rders and judgments that are not final
can be appealed if . . . the trial court expressly certifies them as
final for purposes of appeal under rule 54(b).”). We alerted the
parties to our concern and requested that they be prepared to
address it at oral argument.
¶19 At oral argument, the Association argued that it
understood the district court’s offer to be an “invitation to
amend the pleadings,” if it desired, cf. Utah R. Civ. P. 15(b)(1)
(“A party may move—at any time, even after judgment—to
amend the pleadings to conform them to the evidence and to
raise an unpleaded issue.”), because the Association sought in its
complaint only an order requiring the Cowans to either “remove
the Garage from the [Property] at their sole expense” or “to
relocate the Garage at their sole cost and expense” to a location
20180125-CA 15 2019 UT App 160Timber Lakes v. Cowan
that would be in compliance with the CC&Rs and the County
Setback Ordinance and did not request monetary damages. The
Association explained that it had declined the court’s invitation
to amend its pleadings so it could pursue monetary damages
against the Cowans and instead elected to stand on its complaint
and the court’s order as entered and to proceed with the current
appeal. This is analogous to situations where plaintiffs elect to
“stand on” a dismissed complaint and proceed directly with an
appeal of the dismissal despite having been granted leave to
amend the complaint dismissed without prejudice. See Bonneville
Tower Condo. Mgmt. Comm. v. Thompson Michie Assocs., Inc., 728
P.2d 1017, 1019 & n.1 (Utah 1986) (per curiam); McClellan, 2012
UT App 316, ¶¶ 7–8.
¶20 We do not read the court’s offer to necessarily amount to
an “invitation to amend the pleadings” because such an
amendment may not have been necessary at that juncture by
virtue of rule 54 of the Utah Rules of Civil Procedure, which
directs district courts to “grant the relief to which each party is
entitled, even if the party has not demanded that relief in its
pleadings.” Utah R. Civ. P. 54(c). Nevertheless, with the court
having declined to award equitable relief and the Association
having declined the offered opportunity to pursue monetary
damages, “all claims and the rights and liabilities of all parties”
had been “adjudicate[d],” thereby rendering the court’s
subsequent order a final, appealable order. Id. R. 54(a). Indeed,
the order itself makes this clear: “This constitutes the final ruling
of the Court and no further order is required.”
¶21 Thus, having had our jurisdictional concerns assuaged,
we now address the merits of the Association’s appeal.
II. Injunctive Relief
¶22 “The right to an equitable remedy is an exceptional one,
and absent statutory mandate, equitable relief should be granted
20180125-CA 16 2019 UT App 160Timber Lakes v. Cowan
only when a court determines that damages are inadequate and
that equitable relief will result in more perfect and complete
justice.” Ockey v. Lehmer, 2008 UT 37, ¶ 44, 189 P.3d 51 (quotation
simplified). By seeking only injunctive relief and waiving any
claim for monetary damages at this juncture, the Association
effectively “chose to invoke only the equitable jurisdiction of the
court,” which “jurisdiction is precluded if,” among other things,
“the plaintiff . . . will not suffer substantial irreparable injury.”
Id. (quotation simplified). This principle has been incorporated
into the standard inquiry that district courts undertake when
determining whether a permanent injunction is warranted:
A court may grant a permanent injunction if it
determines that (1) the petitioner establishes
standing by demonstrating special damages, (2) the
petitioner has a property right or protectable
interest, (3) legal remedies are inadequate,
(4) irreparable harm would result, (5) court
enforcement is feasible, and (6) petitioner merits
the injunction after balancing the equities.
Johnson v. Hermes Assocs., Ltd., 2005 UT 82, ¶ 13, 128 P.3d 1151(emphasis added).
¶23 Although the thrust of the Association’s arguments
focuses on the sixth prong—that the district court erred in
engaging in a balancing of the equities—we do not reach that
issue because the Association has not shown that the district
court exceeded its discretion in determining that the Association
had not suffered irreparable harm, thereby precluding equitable
relief altogether. 14
14. The Association has never argued that a showing of
irreparable harm was unnecessary in this case. Neither party
(continued…)
20180125-CA 17 2019 UT App 160Timber Lakes v. Cowan
¶24 Irreparable harm “is generally considered the most
important” of the “ground[s] for injunctive relief.” System
Concepts, Inc. v. Dixon, 669 P.2d 421, 427 (Utah 1983). A party
suffers irreparable harm if it “cannot be adequately compensated
in damages” or sustains “damages [that] cannot be compensable
in money.” Carrier v. Lindquist, 2001 UT 105, ¶ 26, 37 P.3d 1112(quotation simplified). An injury is irreparable “if the damages
are estimable only by conjecture and not by any accurate
standard.” Johnson, 2005 UT 82, ¶ 18 (quotation simplified). In
the present case, the Association’s effort to establish irreparable
harm falls short in two ways.
¶25 First, although the Association contends on appeal that it
“has contemplated, and does contemplate, installation of [a road
along the Plat 12 Right­of­Way],” it does not point us to, nor
does our review of the record reveal, that this was or is more
than a distant possibility. Indeed, the evidence that the
Association presented to the district court suggests how remote
the possibility is. In the letter the Association’s attorney sent the
Cowans informing them that the garage’s location violated the
CC&Rs, the Association indicated, with our emphasis, that
“[a]lthough road widening or other adjustment within the right­of-way
(…continued)
cited Fink v. Miller, 896 P.2d 649 (Utah Ct. App. 1995), which
suggested in a footnote, in commenting on an aspect of the
district court’s analysis undertaken before the district court had
settled on abandonment as the basis for its decision to deny
injunctive relief, that “[p]roperty owners have a protectable
interest in enforcing restrictive covenants through injunctive
relief without a showing of harm.” Id. at 655 n.8. Because both
parties treat a showing of irreparable harm as a prerequisite to
injunctive relief, we address whether such a showing was made
without expressing an opinion on the applicability or correctness
of the dicta in Fink.
20180125-CA 18 2019 UT App 160Timber Lakes v. Cowan
is not scheduled, there will come a time when such will occur.”
And apart from claiming that it contemplates initiating
construction of a road along the Plat 12 Right­of­Way sometime
in the indefinite future, which construction the garage would
inhibit, the Association has not asserted any other form of harm
caused by the garage. At most the Association has demonstrated
a theoretical future harm—not an existing harm that is
irreparable.
¶26 This lack of an actual plan on the part of the Association
to construct a road along the Plat 12 Right­of­Way is significant
because a party seeking a permanent injunction must
demonstrate that “irreparable harm would result” without the
injunction. Id. ¶ 13 (emphasis added). Although “injunctive relief
is an anticipatory remedy purposed to prevent the perpetration
of a threatened wrong or to compel the cessation of a continuing
one,” System Concepts, 669 P.2d at 428 (quotation simplified),
“the threatened injury must be a real and immediate injury, not
an abstract injury or one that is conjectural or hypothetical,”
InnoSys, Inc. v. Mercer, 2015 UT 80, ¶ 79, 364 P.3d 1013 (Durham,
J., dissenting) (quotation simplified). For this reason, “[a] court
will not exercise its power to grant injunctive relief ‘to allay a
mere apprehension of injury at an indefinite future time.’” Id.(quoting 42 Am. Jur. 2d Injunctions § 34 (2010)). And because our
Supreme Court has not carved out an exception to this rule in
the real property context—as opposed to that of
misappropriation of trade secrets, see id. ¶ 34 (majority
opinion)—a mere claim of undefined future plans is insufficient
to establish irreparable injury, thereby precluding issuance of a
permanent injunction. 15
15. At oral argument, the Association argued for the first time
that “future plans constitute current irreparable harm.” In
support of this assertion, the Association cited Carrier v.
(continued…)
20180125-CA 19 2019 UT App 160Timber Lakes v. Cowan
(…continued)
Lindquist, 2001 UT 105, 37 P.3d 1112, in which our Supreme
Court referenced the plaintiffs’ future plans to landscape their
backyard, repair a roof, build a shed, and store a boat in
concluding that they had suffered irreparable harm. Id. ¶ 26. The
plaintiffs had brought suit against the defendants for a wall
defendants had built that blocked plaintiffs’ ready access to a
back alley. Id. ¶¶ 6–7. With the exception of their plans to
landscape the backyard, which the plaintiffs had already
commenced, Carrier is unclear as to whether the plaintiffs’ plans
to repair a roof, build a shed, or store a boat—all of which
required delivery of large objects to the property through the
back alley—were imminent or merely something they possibly
intended to do sometime in the indefinite future. See id. ¶¶ 26,
30. But we note that the plaintiffs were relatively recent
homebuyers at the time the defendants first obstructed the back
alley with a wall, see id. ¶¶ 4, 6–7, and the plaintiffs’ planned
endeavors are typical of new homebuyers intending to renovate
a recent purchase, suggesting the plans may have been for rather
immediate work. Regardless, our Supreme Court mentioned the
plans in the context of the existing and continuous nature of
the harm caused by the defendants’ wall and did not base
its decision solely on the existence of indefinite future plans. See
id. ¶ 26.
The Court discussed the plaintiffs’ plans in response to the
defendants’ argument that the harm was compensable in
monetary damages because the obstruction caused “a loss of
about $600 in property value.” Id. In rejecting this reasoning, the
Court stated that apart from the decrease in property value, the
plaintiffs suffered additional harms that were “of a continuing
nature” and “immeasurable in money damages” because such
“losses would be based on conjecture of how [the] plaintiffs may
use the alley in the future and an estimate of how much money it
(continued…)
20180125-CA 20 2019 UT App 160Timber Lakes v. Cowan
(…continued)
would cost to carry out these conjectured plans without access
through the alley.” Id. Although we understand how such
language, if taken in isolation and out of context, could be
construed to mean that “future plans constitute current
irreparable harm,” as the Association asserts, we read Carrier
differently.
Our Supreme Court did not base its conclusion of irreparable
harm on the fact that the plaintiffs had future plans that may or
may not ever come to fruition. Rather, its focus was on the
existing harm the plaintiffs were suffering and its continuous
nature. The plaintiffs had previously “openly and regularly used
the alley to deliver goods and equipment,” but the wall hindered
such activity and would continue to do so for as long as the
plaintiffs owned the property. Id. ¶ 4. It was the continuing
nature of an existing harm that the Court focused on when it
determined monetary damages could not be reliably calculated.
Although the Court did make mention of the plaintiffs’ future
plans, it did so in the context of the plaintiffs’ prior regular use
of the alley that the wall had stymied. Namely, even if monetary
damages could somehow be determined so as to accurately
compensate the plaintiffs for their prior use of the alley, such
damages certainly could not be reliably calculated so as to
compensate the plaintiffs for any additional future plans the wall
might inconvenience or prevent altogether—especially because
such “losses would be based on conjecture of how [the] plaintiffs
may use the alley in the future and an estimate of how much
money it would cost to carry out these conjectured plans without
access through the alley.” Id. ¶ 26. We therefore do not read
Carrier to mean that the existence of uncertain future plans,
without more, satisfies the irreparable harm requirement. Of
significance, Carrier involved an alley that had long been in use
and was actually blocked by a wall, while our case involves a
(continued…)
20180125-CA 21 2019 UT App 160Timber Lakes v. Cowan
¶27 Second, even if the Association had firm plans to
construct a road along the Plat 12 Right­of­Way, it has not
demonstrated that the district court abused its discretion when it
determined that “the [Association] ha[d] not shown that an
award of monetary damages would be insufficient to remedy the
purported harm” caused by the Cowans’ garage. Specifically, the
court reasoned that “reconfiguring the road (including
acquisition of whatever amount of property from affected
landowners) would allow the [Association] to install the road in
compliance with county regulations and cure any effect from
[the Cowans’] violation.”
¶28 Relying on the principle that a plaintiff’s injuries are
irreparable “if the damages are estimable only by conjecture and
not by any accurate standard,” Johnson, 2005 UT 82, ¶ 18
(quotation simplified), the Association argues that the court
“misconstrue[d] the ‘irreparable harm’ standard” because an
“attempt to estimate [monetary] damages would require
conjecture based upon conjecture.” It argues that such a
determination would involve “conjecture as to how, when, and
where the Plat 12 [Right­of­Way] might be relocated” and
“conjecture as to what damages might flow from such
conjectured use.” We disagree.
¶29 The district court reasoned that the Association could be
monetarily compensated for “the cost of reconfiguring the road
(including acquisition of whatever amount of property from
affected landowners).” As the court suggested at the remedies
hearing, this amount could be calculated through the testimony
of “experts, . . . engineers, [etc.]” Despite the Association’s liberal
use of the word “conjecture,” it has not persuaded us that the
(…continued)
road that could possibly be constructed in the future but does
not now exist in its platted space.
20180125-CA 22 2019 UT App 160Timber Lakes v. Cowan
court abused its discretion in concluding that the use of
engineers, contractors, and other experts to find a satisfactory
alternate to a road built within the Plat 12 Right­of­Way and to
calculate the cost of such an endeavor cannot be estimated by
“any accurate standard.” Id. Of course, the tab for all of that
effort and expense might simply prompt the Cowans to move or
relocate the garage rather than bear that expense, should such a
road ever be built. 16
¶30 For these reasons, we are not persuaded that the district
court abused its discretion in concluding that the Association has
16. The record is silent as to why the Existing Road, long in use,
is not adequate for ingress and egress; why a road along the
Plat 12 Right-of-Way would benefit the Association or its
members; and what factors have prompted the Association to
think in terms of building such a road in the future given that in
the over thirty years since it has had the right to do just that, it
has never been moved to do so. Additionally, locating a portion
of the new road outside the Plat 12 Right­of­Way may be
unnecessary altogether. As the Association’s attorney suggested
in his letter to the Cowans, another possible solution would be
for the Cowans to compensate the Association for the “steps
necessary to protect the garage from vehicles or from run-off,”
should a road within the Plat 12 Right­of­Way ever be
constructed. The Association has not argued how the calculation
of monetary damages for this course of action would prove
unreliable. And should such a solution prove unsatisfactory to
the County, the violation of the zoning ordinance would alone
be sufficient for the County to obtain an injunction in its own
right. See Utah Code Ann. § 17­27a­802(1)(b) (LexisNexis Supp.
2018) (“A county need only establish the violation [of a zoning
ordinance] to obtain [an] injunction.”).
20180125-CA 23 2019 UT App 160Timber Lakes v. Cowan
not suffered irreparable injury at this point in time from the
location of the Cowans’ garage.
III. Authority to Enforce the County Setback Ordinance on the
County’s Behalf
¶31 The Association next challenges the district court’s
conclusion that the Maintenance Agreement entered into by the
Association and the County did not “delegat[e] authority to [the
Association] to enforce a violation of the [County Setback
Ordinance].” The Association argues that the Maintenance
Agreement unambiguously reflects the County’s intent “to
assign the right and impose the obligation of enforcement [of the
County Setback Ordinance] to the Association,” which implicitly
grants the Association the right “to construe the meaning and
application of the Setback Ordinance to Timber Lakes rather
than to a member of the Wasatch County planning department.”
And because “[a] county need only establish the violation [of a
zoning ordinance] to obtain [an] injunction,” Utah Code Ann.
§ 17­27a­802(1)(b) (LexisNexis Supp. 2018), the Association
argues that “[a]s the assignee of the County, the Association
inherited the same right,” thereby alleviating it of the burden of
making the additional showings required of private parties
seeking a permanent injunction, see Johnson v. Hermes Assocs.,
Ltd., 2005 UT 82, ¶ 13, 128 P.3d 1151. See also id. ¶ 18 (stating that
irreparable harm is presumed when a county seeks an injunction
for zoning violations).
¶32 “An assignment is a transfer of property or some other
right from one person (the assignor) to another (the assignee),
which confers a complete and present right in the subject matter
to the assignee.” Kirton McConkie PC v. ASC Utah LLC, 2016 UT
App 200, ¶ 10, 383 P.3d 446 (quotation simplified). In
determining whether an assignor–assignee relationship exists
between the County and the Association, we must look to the
Maintenance Agreement.
20180125-CA 24 2019 UT App 160Timber Lakes v. Cowan
¶33 “Well-accepted rules of contract interpretation require
that we examine the language of a contract to determine
meaning and intent.” Glenn v. Reese, 2009 UT 80, ¶ 10, 225 P.3d
185. “Where the language is unambiguous,” as the Association
contends it is, “the parties’ intentions are determined from the
plain meaning of the contractual language, and the contract may
be interpreted as a matter of law.” Id. (quotation simplified). We
“also consider each contract provision in relation to all of the
others, with a view toward giving effect to all and ignoring
none.” Id. (quotation simplified).
¶34 The Maintenance Agreement provides that “[t]he
Association agrees to enforce all covenants, conditions,
restrictions and management policies set forth in the [CC&Rs].”
And upon the Association’s failure to do so, “the County may
. . . cause suit to be brought against the Association for the
purpose of requiring it to enforce the same or may itself bring
and prosecute a suit in the name of the Association for the
purpose of enforcing the [CC&Rs].”
¶35 The Association argues that because the CC&Rs require
the construction of any improvements to “comply with all
requirements of the federal, state and local governing
authorities,” including the County Setback Ordinance, “[i]t is
incorrect as a matter of law to conclude that the County reserved
its right to enforce the [County] Setback Ordinance in the
Maintenance Agreement in such a way that it deprived the
Association of the right to enforce the [County] Setback
Ordinance.” But the conclusion that the County did not assign
its enforcement rights to the Association does not deprive the
Association of the ability to bring suit against zoning violators. It
could still do so, but it would have to make the additional
showings required of individuals seeking enforcement of zoning
ordinances. See Johnson, 2005 UT 82, ¶ 13. To be sure, it might be
more efficient for the County to bring suit to enforce zoning
20180125-CA 25 2019 UT App 160Timber Lakes v. Cowan
violations if it were so inclined, but the Association is not
automatically foreclosed from doing so without an assignment.
¶36 Furthermore, the Maintenance Agreement specifically
grants the County the right, with our emphasis, to “bring and
prosecute a suit in the name of the Association” to enforce the
CC&Rs, which the County otherwise would not be entitled to
enforce. Although this contractual right—to bring suit “in the
name of the Association”—does not rise to the level of an
assignment, the Maintenance Agreement provides no reciprocal
right to the Association to enforce county ordinances either in
the name of the County or as an assignee of the County. To the
contrary, the Maintenance Agreement provides, with our
emphasis, that “[t]he County shall have the right . . . to enter
upon the premises of [Timber Lakes] for inspection and for
enforcement of all applicable laws [and] ordinances.” But the
agreement is silent as to the Association’s rights and obligations
with respect to “enforcement of all applicable laws [and]
ordinances.”
¶37 Thus, based on the plain language of the Maintenance
Agreement, we cannot agree that the County intended to assign
its right to enforce zoning ordinances to the Association. 17
CONCLUSION
¶38 The district court did not abuse its discretion in
determining that the Association had not suffered irreparable
17. Because we conclude that the Maintenance Agreement does
not create an assignor–assignee relationship between the County
and the Association, we need not address the question of
whether the right to enforce county ordinances is assignable to a
private entity.
20180125-CA 26 2019 UT App 160Timber Lakes v. Cowan
harm as a result of the Cowans’ violation of the CC&Rs, thereby
mandating denial of the injunctive relief the Association sought.
And because the County did not assign its right to enforce
zoning ordinances to the Association, the zoning violation alone
was insufficient to entitle the Association to a permanent
injunction.
¶39 Affirmed.
20180125-CA 27 2019 UT App 160