Greyhound Lines v. UTA , 2020 UT App 144 ( 2020 )

2020 UT App 144THE UTAH COURT OF APPEALS
GREYHOUND LINES, INC.,
Appellant and Cross-appellee,
v.
UTAH TRANSIT AUTHORITY,
Appellee and Cross-appellant.
Opinion
No. 20190523-CA
Filed October 22, 2020
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 140902511
Sarah E. Spencer, Attorney for Appellant and
Cross-appellee
Scott M. Petersen, David N. Kelley, and Sarah C.
Vaughn, Attorneys for Appellee and Cross-appellant
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.
HARRIS, Judge:
¶1 Greyhound Lines, Inc. (Greyhound) and Utah Transit
Authority (UTA) sued each other, each asserting that the other
had breached the terms of a long-term lease agreement (the
Lease Agreement). On cross-motions for summary judgment, the
district court ruled in favor of UTA. Greyhound appeals that
ruling. In a cross-appeal, UTA questions our appellate
jurisdiction and, relatedly, seeks reversal of a subsequent order
in which the district court construed its first summary judgment
order as not fully disposing of UTA’s claim for breach of the
Lease Agreement. Because we affirm the subsequent order, at
least insofar as it determined that the earlier orders did not
Greyhound Lines v. UTA
completely resolve the case, we conclude that we have
jurisdiction to consider Greyhound’s appeal. On the merits of
that appeal, we reverse the district court’s summary judgment
order, and remand for further proceedings.
BACKGROUND
The Lease Agreement
¶2 In 2005, Salt Lake City agreed to lease part of its
downtown transport facility (the Intermodal Hub) to Greyhound
for use as an interstate passenger bus terminal, and in 2007 UTA
assumed all of Salt Lake City’s rights and obligations under the
Lease Agreement. The parties agreed that the term of the Lease
Agreement would be forty years. Under the Lease Agreement,
Greyhound agreed to purchase liability insurance that covered
UTA against third-party claims, and UTA agreed to assume
certain maintenance obligations, including the responsibility for
snow removal at the Intermodal Hub.
¶3 Specifically, under a provision captioned “Third Party
Liability,” Greyhound agreed to “secure and maintain,” “at its
own cost and expense,” a “[c]ommercial general liability
insurance” policy “with [UTA] named as an additional insured,
in the minimum amount of $1,000,000 per occurrence with
a $5,000,000 general aggregate.” The Lease Agreement is
silent with regard to the permissible size of any deductible
associated with the policy. But the agreement does specify
that the policy is to cover “liabilities and claims for damages
for personal injury, bodily injury,” and “property damage
that may arise from [Greyhound’s] use” of the Intermodal
Hub. In a previous case, our supreme court was asked to
interpret this provision, and held that it obligated Greyhound to
purchase a policy that “covered UTA’s negligent acts.” Utah
Transit Auth. v. Greyhound Lines, Inc. (Greyhound I), 2015 UT 53,
¶ 6, 355 P.3d 947.
20190523-CA 2 2020 UT App 144Greyhound Lines v. UTA
¶4 The parties agreed to split responsibility for maintenance
of the Intermodal Hub, with Greyhound generally assuming
day-to-day obligations, including keeping the premises “in a
clean, sanitary and orderly condition and free of dirt, debris,
[and] weeds,” and UTA generally assuming longer-term
obligations, including “repair and replacement work required
. . . by virtue of . . . reasonable wear and tear.” However, snow
removal obligations were clearly assigned to UTA, with the
parties agreeing that UTA “shall be responsible for maintaining
and removing snow from” the premises.
¶5 The parties also agreed to indemnify each other under
various circumstances. Greyhound agreed to indemnify UTA
for, among other things, damage caused to UTA by Greyhound’s
negligence or breach of the Lease Agreement. For its part, UTA
agreed to indemnify Greyhound for damage “arising out of or
by reason of [UTA]’s negligent or willful acts or omissions
relating to any of its undertakings hereunder.”
¶6 In addition, the parties agreed that if, after receiving
written notice, either party refused to comply with its
contractual obligations, the aggrieved party “may at its option
. . . make performance for the other and for such purposes
advance such amount as may be necessary,” and “[a]ny amount
so advanced or expenses incurred . . . shall be immediately due
and payable by the defaulting [p]arty.”
¶7 Finally, the parties agreed that, “[i]n the event either
[p]arty enforces the terms” of the Lease Agreement “by suit or
otherwise, the [p]arty found to be at fault by a court of
competent jurisdiction shall pay the cost and expense incurred
thereby, including reasonable attorney’s fees.”
Greyhound I
¶8 In 2008, a “Greyhound passenger . . . fell from a concrete
pedestrian ramp” at the Intermodal Hub. See Greyhound I, 2015
UT 53, ¶¶ 4, 8. “UTA admitted negligence in not installing a
20190523-CA 3 2020 UT App 144Greyhound Lines v. UTA
handrail on the pedestrian ramp.” Id. ¶ 4. Claiming injury, the
passenger submitted a claim to UTA, which settled the claim by
paying the passenger $50,000. Id. UTA then asked Greyhound to
“reimburse it for the cost of the claim,” and Greyhound refused.
Id. UTA filed suit against Greyhound, alleging that Greyhound
had breached the Lease Agreement by failing to procure an
insurance policy that would have covered the claim. Id. ¶ 3.
Greyhound defended the case by asserting that, because the
Lease Agreement’s insurance provision did not specifically state
that the policy had to cover UTA’s negligent acts, the provision
should be construed strictly so as not to contain any such
requirement. Id. Our supreme court rejected that argument,
declining Greyhound’s invitation to construe the provision
strictly, and holding that Greyhound’s contractual obligation
“included the duty to provide insurance that covered UTA’s
negligent acts.” Id. ¶ 6; see also id. ¶ 37 (stating that “commercial
general liability insurance is usually understood to cover the
insured’s negligence,” and holding that, “[i]n refusing to either
procure insurance or reimburse UTA for the money UTA paid in
the settlement . . . , Greyhound breached the Lease Agreement”).
¶9 In reaching that conclusion, the court also rejected
Greyhound’s argument that the court’s interpretation of the
Lease Agreement would render superfluous UTA’s
indemnification and maintenance obligations. See id. ¶ 40. The
court noted that, when the indemnification provision and the
insurance provision are considered together, “the independent
utility of both provisions becomes apparent.” Id. ¶ 42.
“Typically, the insurance coverage obtained through an
insurance procurement agreement is narrower than a general
indemnification,” because “insurance may carry a deductible or
have a maximum limit,” while the “indemnity provision, by
contrast, does not have limits or deductibles.” Id. ¶¶ 42–43. The
court stated that “[a]ny amount not covered by insurance would
fall under the indemnity provision.” Id. ¶ 43.
¶10 In a separate paragraph, the court addressed
Greyhound’s argument that, “if UTA is insured for its own
20190523-CA 4 2020 UT App 144Greyhound Lines v. UTA
negligence, then it is essentially relieved from the non-negligent
performance of” its contractual maintenance obligations, id. ¶ 46,
including its obligation to remove snow. The court stated that
“[t]his is not the case,” explaining that “[i]f Greyhound provided
insurance and UTA breached a duty detailed in the Lease
Agreement, Greyhound could sue UTA for breach and recover
any damages that resulted,” including “any amount not covered
by insurance, such as insurance deductibles, increases in insurance
premiums, and attorney fees.” Id. (emphasis added).
Greyhound’s Insurance Policy
¶11 In 2010, Greyhound purchased from a third-party
insurance carrier (Insurer) a commercial general liability policy
(Fronting Policy) covering operations at the Intermodal Hub.
Greyhound was the “insured” under the Fronting Policy, and
UTA was an “additional insured.” The Fronting Policy carried
liability limits of $5 million for each occurrence and a $10 million
general aggregate. However, the Fronting Policy also carried a
$5 million deductible.
¶12 This type of policy is referred to as a “fronting policy,”
because the insurance carrier is obligated to pay the claim up
front, even though it has the right to recover the claim amount
back from the insured, in the form of a deductible equivalent to
the policy’s limit. 1 Greyhound asserts—and UTA does not
dispute—that, under the Fronting Policy, it is the responsibility
of the insured—and not any additional named insured—to pay
the deductible. The policy Greyhound obtained thus obligated
Greyhound—and not UTA—to satisfy the deductible. Stated
another way, under the Fronting Policy purchased by
1. A fronting policy, in its “most common form,” is an insurance
policy where “an insurer issues a liability policy to a commercial
insured with a deductible that equals the policy’s liability
limits.” Douglas R. Richmond, Getting a Fix on Fronting Policies,
31 Ins. Litig. Rep. 629, 629 (2009).
20190523-CA 5 2020 UT App 144Greyhound Lines v. UTA
Greyhound, Insurer was responsible to defend and indemnify
UTA against third-party claims, starting at dollar one, even if
those claims were less than the deductible amount, and even if
Insurer had the right to recover from Greyhound any amount it
paid to defend or indemnify UTA.
¶13 The Fronting Policy was in effect for all of 2013, when the
events giving rise to this case transpired.
The Present Case
¶14 In January 2013, a patron slipped and fell on snow-
covered stairs at the Intermodal Hub. At her deposition, the
patron stated that, on the day she fell, there was “a ton of snow”
on the stairs, perhaps “five to seven” inches of it, with “a lot of
ice underneath that [she could] not see,” and it appeared that it
had been “days” since the snow and ice had “been cleared.”
UTA did not dispute these facts during the summary judgment
briefing, and there exists no evidence in the record that UTA
conducted any snow removal operations in the time period prior
to the patron’s fall. Alleging injury, the patron submitted a claim
to Greyhound. Even though, as described above, it had
purchased the Fronting Policy, Greyhound did not submit the
claim to Insurer; instead, Greyhound settled the claim by paying
the patron $1,000 in exchange for a release of liability for both
Greyhound and UTA.
¶15 Greyhound then sued UTA, seeking recovery of the
$1,000 it had paid to the patron as damages for UTA’s breach of
the snow removal and indemnification provisions of the Lease
Agreement, and seeking a declaratory judgment that UTA had
breached the Lease Agreement by, among other things, failing to
remove the snow. UTA counterclaimed, asserting that
Greyhound had breached its insurance obligation under the
terms of the Lease Agreement, as well as the implied covenant of
good faith and fair dealing, by purchasing a policy with a $5
million deductible. In its counterclaim, UTA sought to recover,
as damages resulting from Greyhound’s breach of contract,
20190523-CA 6 2020 UT App 144Greyhound Lines v. UTA
compensation “in an amount to be proven at trial” for the “time,
energy, and money” it spent in “receiving and reviewing claims
submitted that are related to Greyhound’s use of the leased
premises.” Both sides asked for an award of attorney fees.
¶16 After some discovery, both sides filed cross-motions for
summary judgment; each sought complete summary judgment
on all claims and counterclaims filed in the case. After full
briefing, the district court held oral argument, and after taking
the matter under advisement, the court issued a written decision
(First Order) granting UTA’s motion, at least in large part, and
denying Greyhound’s. The court explained that, although “[a]t
first glance, it appears” that the Fronting Policy “complies with”
the Lease Agreement, Greyhound’s “procurement of a . . . policy
with a $5 million deductible effectively exposes [UTA] to liability
for any amount less than $5 million—far short of the coverage of
$1 million per occurrence contemplated in the Lease
Agreement.” In summary, the court determined that, because
Greyhound “has yet to obtain third-party insurance in
accordance with . . . the Lease Agreement, [UTA] is entitled to
judgment as a matter of law that [Greyhound] remains in breach
of the Lease Agreement,” and that Greyhound is “responsible
for insuring [UTA] for the damages claimed” by the injured
patron. On the basis of that ruling, the court also dismissed
Greyhound’s claims for breach of contract and declaratory relief
“with prejudice and on the merits.” The court stated that UTA
was entitled to “judgment as a matter of law” on its
counterclaims for breach of contract and for declaratory relief,
and awarded UTA attorney fees for “having prevailed on” those
claims. The court did not discuss the damages aspect of UTA’s
breach of contract claim, and specifically left open the entirety of
UTA’s claim for breach of the implied covenant of good faith
and fair dealing.
¶17 Greyhound filed an appeal shortly thereafter, which we
later dismissed for lack of appellate jurisdiction, because the
First Order had not fully disposed of all the claims pending
before the court. After the parties realized that the district court
20190523-CA 7 2020 UT App 144Greyhound Lines v. UTA
had not summarily disposed of UTA’s counterclaim for violation
of the implied covenant of good faith and fair dealing, they
stipulated to the dismissal of that counterclaim, and the court
signed an order (Second Order) dismissing it.
¶18 Neither side filed any immediate appeal following entry
of the Second Order. Instead, after several months had elapsed,
and after the first appeal was dismissed, Greyhound filed
another motion for summary judgment, taking the position that
the First Order had not completely disposed of UTA’s
counterclaim for breach of contract, but instead had been in the
nature of a partial summary judgment as to liability. Greyhound
pointed out that, in the First Order, the court stated that UTA
was “entitled to judgment as a matter of law that [Greyhound]
remained in breach of the Lease Agreement” for failing to
purchase adequate insurance, and that Greyhound is
“responsible for insuring [UTA] for the damages claimed” by the
patron, but noted that the court had not considered the question
of whether, and to what extent, UTA was entitled to an award of
damages on its claim for breach of contract. In its motion,
Greyhound asked the court to “enter a final judgment on all
claims asserted” in the case and to specifically determine, as a
matter of law, that UTA was not entitled to damages relating to
Greyhound’s breach of contract.
¶19 In response, UTA asserted that Greyhound’s motion was
filed “years too late,” and that the motion was “entirely
inappropriate because there [was] nothing remaining on which
summary judgment [could] be granted.” According to UTA, the
First Order had completely resolved its counterclaim for breach
of all terms of the contract other than the implied covenant of
good faith and fair dealing, and “the judgment became final . . .
the moment that the [district c]ourt entered” the Second Order
“because each and every cause of action at issue in the lawsuit
(both of Greyhound’s claims and all three of UTA’s
counterclaims) had been dealt with.” UTA asserted that the fact
that the district court “had already awarded fees and costs to
UTA as a consequence of Greyhound’s breach of contract” was
20190523-CA 8 2020 UT App 144Greyhound Lines v. UTA
proof of the First Order’s finality and disposition of UTA’s
counterclaim for breach of contract.
¶20 After full briefing, but without oral argument, the
court issued another order (Third Order), in which it
interpreted its own First Order narrowly, determining that
the First Order had not fully disposed of UTA’s counterclaim
for breach of contract, because in that order “[t]he Court
declined to address” UTA’s claim for consequential damages
arising from this counterclaim, and that the issue of UTA’s
entitlement to such damages “remain[ed] unresolved at this
juncture.” The court then proceeded to address Greyhound’s
motion on the merits, and determined that UTA had failed to
provide evidence of any consequential damages relating to
Greyhound’s breach of contract. Accordingly, the court
entered summary judgment in favor of Greyhound on what it
viewed as the last remaining piece of UTA’s counterclaim for
breach of contract.
ISSUES AND STANDARDS OF REVIEW
¶21 Following entry of the Third Order, Greyhound filed this
appeal, raising two issues for our review. First, Greyhound
challenges the district court’s determination, made on summary
judgment in the First Order, that its purchase of the Fronting
Policy violated the terms of the Lease Agreement’s insurance
procurement provision. Second, Greyhound challenges the
court’s rulings, also on summary judgment in the First Order,
regarding its claims against UTA for declaratory judgment and
breach of contract related to UTA’s snow removal obligations.
Summary judgment is appropriate only when “the moving party
shows that there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.”
Utah R. Civ. P. 56(a). And we “review a district court’s legal
conclusions and ultimate grant or denial of summary judgment
for correctness, viewing the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
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party.” Penunuri v. Sundance Partners, Ltd., 2017 UT 54, ¶ 14, 423
P.3d 1150 (quotation simplified).
¶22 UTA cross-appeals, and asserts that we lack jurisdiction to
reach the merits of Greyhound’s appellate arguments because,
UTA contends, Greyhound’s appeal was not timely filed. UTA
argues that the case was over following entry of the Second
Order, and that the district court’s later determination in the
Third Order—that the First Order had not fully disposed of its
counterclaim for breach of contract—was incorrect. UTA reasons
that any timely appeal by Greyhound would have had to have
been filed within thirty days of entry of the Second Order, and
that Greyhound’s appeal—filed within thirty days of the Third
Order—is therefore untimely. “Whether appellate jurisdiction
exists is a question of law.” Code v. Utah Dep't of Health, 2007 UT
43, ¶ 3, 162 P.3d 1097.
¶23 Finally, as they did at the district court level, both sides
make claims for attorney fees on appeal. “Whether attorney fees
are recoverable is a question of law, which we review for
correctness.” Fisher v. Davidhizar, 2018 UT App 153, ¶ 9, 436 P.3d
123 (quotation simplified); accord Gardiner v. Anderson, 2018 UT
App 167, ¶ 15, 436 P.3d 237. “[E]ntitlement to attorney fees on
appeal is a matter for us to determine in the first instance.”
Tronson v. Eagar, 2019 UT App 212, ¶ 15, 457 P.3d 407.
¶24 Because a challenge to appellate jurisdiction presents “a
threshold issue that we must resolve before we may address the
appellant’s substantive issues,” In re K.F., 2009 UT 4, ¶ 21, 201
P.3d 985, we begin by addressing the jurisdictional questions
raised by UTA’s cross-appeal, see A.S. v. R.S., 2017 UT 77, ¶ 35
n.12, 416 P.3d 465 (stating that “[w]hether a court has
jurisdiction to reach the merits of a particular case because of
procedural defects . . . is a determination” that an appellate court
“should consider at the outset of every case”). After concluding
that we have jurisdiction to address the merits of Greyhound’s
appeal, we proceed to do so, and then conclude by addressing
the parties’ respective requests for attorney fees.
20190523-CA 10 2020 UT App 144Greyhound Lines v. UTA
ANALYSIS
I
¶25 The basis for UTA’s jurisdictional challenge is its
contention that Greyhound’s appeal was not timely filed. “It is
axiomatic in this jurisdiction that failure to timely perfect an
appeal is a jurisdictional failure requiring dismissal.” Workers
Comp. Fund v. Argonaut Ins. Co., 2011 UT 61, ¶ 10, 266 P.3d 792(quotation simplified). Subject to exceptions not pertinent here, a
timely appeal is one that is filed “within 30 days after the date of
entry” of the final judgment in the underlying case. Utah R. App.
P. 4(a). Greyhound filed its notice of appeal within thirty days of
the date of entry of the Third Order, which the district court
determined was the order that finally resolved all of the claims
in the case. If the Third Order was the final judgment in the case,
then Greyhound’s appeal is timely.
¶26 UTA, however, asserts that the Second Order fully and
completely resolved all issues in the case, and that any timely
appeal in this case must have been filed within thirty days of the
date of entry of the Second Order. UTA maintains that the First
Order completely resolved all claims and counterclaims in the
case, other than its second counterclaim for breach of the implied
covenant of good faith and fair dealing, and that the Second
Order then resolved the one unresolved claim. In particular,
UTA asserts that its counterclaim for breach of the terms of the
Lease Agreement other than the implied covenant—its first claim
for relief—was fully resolved by the First Order. UTA posits that
the Third Order was unnecessary, and it challenges the district
court’s determination, in the Third Order, that the First Order
did not completely resolve its breach of contract claim.
¶27 UTA’s argument is not without force. In the First Order,
the district court stated that UTA was “entitled to judgment as a
matter of law with regard to its first (breach of contract) and
third (declaratory judgment) counterclaims,” and stated that
UTA, “having prevailed on its breach of contract claim,” was
20190523-CA 11 2020 UT App 144Greyhound Lines v. UTA
“entitled to an award of attorney fees.” But while it is possible to
interpret this language as completely disposing of UTA’s first
claim for relief, that is not the only reasonable interpretation,
especially when the court’s language is read in conjunction with
UTA’s counterclaim and with other language in the First Order.
¶28 In its counterclaim for breach of contract, UTA asked for
damages to compensate it for the “time, energy, and money” it
expended in “receiving and reviewing claims submitted that are
related to Greyhound’s use of the leased premises.” And
nowhere in the First Order did the district court purport to make
any ruling, one way or the other, on any such claim for damages.
Moreover, in another place in the First Order, the district court
phrased UTA’s entitlement to judgment as a matter of law in
more limited terms, stating that UTA was “entitled to judgment
as a matter of law that [Greyhound] remains in breach of the
Lease Agreement.” Viewed in this way, it is possible to interpret
the First Order as making an order of partial summary
judgment—as to breach and liability only, but not as to
damages—on UTA’s first claim for breach of contract.
¶29 And the district court’s award of attorney fees in
connection with the First Order does not require the First Order
to be interpreted in the manner UTA urges. Without a doubt,
UTA was the prevailing party on the motion, and may well have
been entitled, under the terms of the Lease Agreement, to an
award of attorney fees incurred in litigating the motion. But we
disagree with UTA’s argument, made here on appeal, that the
award of attorney fees made in connection with the First Order
was intended to be an award of consequential damages for
breach of contract. Under Utah law, attorney fees may
sometimes be awarded as a component of a claimant’s
consequential damages, but generally “only in the limited
situation where the defendant’s breach of contract foreseeably
caused the plaintiff to incur attorney fees through litigation with
a third party.” See Collier v. Heinz, 827 P.2d 982, 983 (Utah Ct.
App. 1992). That is not the case here; indeed, the attorney fees
declaration UTA submitted in the wake of the First Order made
20190523-CA 12 2020 UT App 144Greyhound Lines v. UTA
clear that the fees being claimed were fees incurred in litigating
against Greyhound in this case, rather than fees incurred in
litigating against third parties in separate cases.
¶30 In this instance, the district court—which composed and
signed the First Order—was asked to determine its scope and,
after full briefing by the parties, interpreted that order as not
having completely resolved UTA’s counterclaim for breach of
contract. In a situation like this, we afford great deference to a
district court’s interpretation of its own order and review such
an interpretation only for abuse of discretion. See Uintah Basin
Med. Center v. Hardy, 2008 UT 15, ¶ 9, 179 P.3d 786 (“A court’s
interpretation of its own order is reviewed for clear abuse of
discretion and we afford the district court great deference.”
(quotation simplified)). Here, we perceive no abuse of discretion
in the court’s interpretation of its First Order.
¶31 Accordingly, the First Order—as interpreted by the
district court, within its discretion—contained only an order of
partial summary judgment, as to breach and liability but not as
to damages, on UTA’s counterclaim for breach of contract. The
First Order therefore did not completely resolve that claim, and
neither did the Second Order, which spoke only to UTA’s second
counterclaim for breach of the implied covenant of good faith
and fair dealing. As the district court interpreted its own orders,
UTA’s counterclaim for breach of contract was not completely
resolved until the Third Order, and therefore Greyhound’s
notice of appeal—filed within thirty days of the Third Order—
was timely. We have jurisdiction to consider the merits of
Greyhound’s appeal.
II
¶32 On the merits of that appeal, Greyhound asks us to
examine the district court’s summary judgment rulings with
regard to two separate claims: UTA’s counterclaim that
Greyhound breached the insurance procurement provision of
the Lease Agreement, and Greyhound’s affirmative claim that
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UTA breached the snow removal provisions of the Lease
Agreement. Both sides moved for summary judgment in their
respective favor on those claims, and the district court ruled in
favor of UTA on both fronts. Greyhound asks us to reverse the
district court’s entry of summary judgment on these claims in
UTA’s favor, and to remand with instructions for entry of
summary judgment on these claims in its favor. We discuss these
two claims, in turn, starting with UTA’s counterclaim for breach
of the insurance procurement provision.
A
¶33 In its counterclaim for breach of contract, UTA asserted
that Greyhound failed to comply with its obligations under the
Lease Agreement’s insurance procurement provision. It argued
that the Fronting Policy Greyhound purchased did not provide
coverage for UTA, because it carried a $5 million deductible. The
district court agreed, stating that Greyhound’s purchase of a
“policy with a $5 million deductible effectively exposes [UTA] to
liability for any amount less than $5 million—far short of the
coverage of $1 million per occurrence contemplated in the Lease
Agreement.” Greyhound challenges that ruling, asserting that
the court misunderstood the scope and effect of the Fronting
Policy. We agree with Greyhound that the undisputed facts in
the record regarding the Fronting Policy lead to the conclusion
that Greyhound’s purchase of that policy satisfied—rather than
violated—the provision of the Lease Agreement that required
Greyhound to purchase insurance that protected UTA against
third-party negligence claims.
¶34 The question presented is, at root, one of
contractual interpretation. The “overriding principle” of
contractual interpretation “is that the intentions of the parties
are controlling.” Layton City v. Stevenson, 2014 UT 37, ¶ 21, 337
P.3d 242 (quotation simplified). And the best indication of
the parties’ intentions is the language they selected to express
those intentions. See Central Fla. Invs., Inc. v. Parkwest Assocs.,
2002 UT 3, ¶ 12, 40 P.3d 599 (stating that “we first look to the
20190523-CA 14 2020 UT App 144Greyhound Lines v. UTA
plain language within the four corners of the agreement to
determine the intentions of the parties”). In reading and
evaluating a contract’s language, we construe “each contract
provision in relation to all of the others, with a view toward
giving effect to all and ignoring none.” Café Rio, Inc. v. Larkin-
Gifford-Overton, LLC, 2009 UT 27, ¶ 25, 207 P.3d 1235 (quotation
simplified).
¶35 The Lease Agreement provides that Greyhound must
“secure and maintain,” “at its own cost and expense,” a
“[c]ommercial general liability insurance” policy “with [UTA]
named as an additional insured, in the minimum amount of
$1,000,000 per occurrence with a $5,000,000 general aggregate.”
The Lease Agreement also states that the policy Greyhound
obtains must cover “liabilities and claims for damages for
personal injury, bodily injury,” and “property damage that may
arise from [Greyhound’s] use” of the Intermodal Hub. As noted,
our supreme court has held that this language requires
Greyhound to purchase a policy that covers UTA’s negligent
acts. See Greyhound I, 2015 UT 53, ¶ 6, 355 P.3d 947. Although the
Lease Agreement contains specific language regarding the type
of policy that must be purchased, as well as the limits of
coverage, the Lease Agreement does not contain language
discussing the permissible size of any deductible associated with
the policy, and does not contain specific language assigning
responsibility for paying any deductible.
¶36 However, the Lease Agreement does contain language
requiring Greyhound—and not UTA—to cover the “cost[s] and
expense[s]” associated with “secur[ing] and maintain[ing]” the
policy. And in our view, the “costs and expenses” of any
insurance policy include both the policy’s premiums as well as
its deductibles. Certainly, the phrase “costs and expenses” must
include the cost of the policy premium; after all, the premium is
literally the cost paid to the insurer for the policy coverage in
question. But since the size of an insurance policy’s premium
bears an inversely proportional relationship to the size of the
policy’s deductible, see, e.g., Daniels v. State Farm Mutual Auto.
20190523-CA 15 2020 UT App 144Greyhound Lines v. UTA
Ins. Co., 444 P.3d 582, 588 (Wash. 2019) (stating that “an insured
pays a higher premium for a lower deductible”); Benjamin Moore
& Co. v. Aetna Cas. & Surety Co., 843 A.2d 1094, 1108 (N.J. 2004)
(discussing “the relationship between premiums and
deductibles”); see also Michael Skolnick, Considerations in
Purchasing and Using Malpractice Insurance, 18 Utah B.J. 14–15
(Sept.–Oct. 2005) (“Generally speaking, the higher the
deductible, the lower the premium.”), we think the phrase “costs
and expenses” must fairly include the policy’s deductible too,
especially where, as here, the Lease Agreement does not restrict
Greyhound’s ability to select the size of the deductible. Indeed,
Greyhound appears to share this understanding of the phrase
“costs and expenses,” stating in its reply brief that, “[a]s long as
the insurance obtained by Greyhound meets the minimum
liability requirements and Greyhound pays the associated ‘costs
and expenses,’ such as the deductible and premiums, the [Fronting
P]olicy fulfills Greyhound’s insurance procurement obligations
under the Lease [Agreement].” (Emphasis added). In our view,
that is exactly right.
¶37 Indeed, the undisputed facts in the record about
the Fronting Policy’s characteristics conclusively demonstrate
that the Fronting Policy satisfies all of the other particulars of
the Lease Agreement’s requirement that Greyhound purchase
insurance to protect UTA against third-party negligence claims.
The Fronting Policy covers UTA, as an “additional insured,”
against third-party negligence claims. The Fronting Policy has
a limit of $5 million per occurrence and a $10 million
general aggregate, which are higher limits than the Lease
Agreement requires. Although the Fronting Policy carries a $5
million deductible, the Fronting Policy nevertheless provides
valid and helpful coverage to UTA (if not to Greyhound),
because Insurer must defend and indemnify UTA against third-
party claims starting at dollar one, even though it retains the
right to recover the deductible amount back from Greyhound.
And as an “additional insured” rather than the “insured,” UTA
bears no responsibility for reimbursing Insurer for that
deductible.
20190523-CA 16 2020 UT App 144Greyhound Lines v. UTA
¶38 We appreciate UTA’s argument, accepted by the district
court, that the $5 million deductible amount makes it appear as
though the Fronting Policy provides only illusory coverage to
UTA. But in reality, the characteristics of the Fronting Policy do
not support this argument. Despite its illusory appearance, the
Fronting Policy does provide meaningful coverage to UTA, and
satisfies the Lease Agreement’s requirement that Greyhound
“secure and maintain” insurance to protect UTA, at least so long
as the phrase “costs and expenses” is construed to require
Greyhound—and not UTA—to pay the rather large deductible.
If Greyhound were allowed to use the policy-selection discretion
afforded to it under the Lease Agreement to purchase a policy
with a relatively low premium but a $5 million deductible, and
were then nevertheless allowed to pass the costs of that
deductible on to UTA on a per-claim basis, the purchased
coverage would indeed be illusory. The Fronting Policy meets
the contractual requirements only if the phrase “costs and
expenses” is construed to require Greyhound to carry the costs
of the large deductible it selected.
¶39 In this case, Greyhound paid the premium and—by
satisfying the injured patron with a $1,000 payment—effectively
paid the applicable deductible. Accordingly, we conclude that
the district court erred by determining, as a matter of law, that
Greyhound had failed to satisfy its obligation under the Lease
Agreement to provide third-party insurance coverage for UTA.
The court’s entry of summary judgment in favor of UTA on that
point was error; instead, the court should have concluded, on the
record before it, that as a matter of law Greyhound had complied
with the relevant contractual provision.
B
¶40 Greyhound next challenges the district court’s dismissal
of its own affirmative claims for breach of contract and for
declaratory relief, in which it had accused UTA of breaching the
Lease Agreement by failing to remove snow. During the
summary judgment briefing, Greyhound presented evidence (in
20190523-CA 17 2020 UT App 144Greyhound Lines v. UTA
the form of deposition testimony from the patron who
slipped and fell) that UTA had failed to remove snow at
the Intermodal Hub in January 2013. In response, UTA made
no effort to dispute the facts as recited by the injured patron,
and offered only a simple denial—unsupported by any
evidence, in the form of testimony, affidavits, documents, or
otherwise—that it had “failed to provide snow maintenance and
removal as required by the Lease Agreement.” This is
insufficient. See Orvis v. Johnson, 2008 UT 2, ¶ 18, 177 P.3d 600(stating that, once a movant has satisfied its burden “by
showing, by reference to the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,” that no genuine issue of material fact exists,
the nonmoving party “may not rest upon the mere allegations or
denials of the pleadings, but must set forth specific facts
showing that there is a genuine issue for trial” (quotation
simplified)); Waddoups v. Amalgamated Sugar Co., 2002 UT 69,
¶ 31, 54 P.3d 1054 (“The nonmoving party must submit more
than just conclusory assertions that an issue of material fact
exists to establish a genuine issue.”). Instead of attempting to
dispute Greyhound’s facts with evidence, it merely asserted that
the facts recited by the injured patron did “not matter,” due to
Greyhound’s failure to procure insurance that would have
covered the claim. The district court agreed with UTA and, after
concluding that Greyhound had failed to procure the required
insurance, dismissed Greyhound’s claims for breach of contract
and declaratory relief without further comment. Greyhound
now challenges that dismissal, and we find merit in
Greyhound’s position, at least insofar as concerns Greyhound’s
claims for nominal damages and declaratory relief.
1
¶41 The apparent basis for the district court’s entry of
summary judgment in UTA’s favor on Greyhound’s claims
regarding snow removal was its conclusion that Greyhound had
breached the insurance procurement provision. As the district
court saw it, the slip-and-fall accident should have been covered
20190523-CA 18 2020 UT App 144Greyhound Lines v. UTA
by insurance, so it did not matter whether UTA actually
removed the snow. We see the issue differently.
¶42 As an initial matter, we have determined that Greyhound
did not breach its contractual obligation to provide third-party
insurance coverage to UTA. Thus, a decision in favor of UTA on
the snow removal claims cannot rest on a subsidiary conclusion
that Greyhound failed to procure an insurance policy that
protected UTA.
¶43 But more substantively, we agree with Greyhound that
the two sets of claims are not inextricably entwined in any event.
Regardless of whether Greyhound fulfilled its obligations under
the insurance procurement provision, Greyhound’s complaints
about UTA’s snow removal activities must be considered on
their merits. It is possible for UTA to breach its snow removal
obligations even if Greyhound had failed to procure the required
insurance. As discussed more fully below, Greyhound may
under some circumstances be foreclosed from seeking certain
remedies for UTA’s breach of its snow removal obligations, but
as Greyhound points out, the question of whether UTA breached
those obligations may remain relevant, even in the absence of the
availability of certain monetary remedies, to questions like
declaratory relief or attorney fees.
¶44 And on the merits of Greyhound’s claim that UTA
breached its snow removal obligations, UTA offers no
substantive defense. Even for the purposes of Greyhound’s
affirmative motion for summary judgment on its claim for
breach of contract, UTA offered only a general unsupported
denial, and did not attempt to dispute Greyhound’s statement of
facts regarding snow removal, including the patron’s testimony
about the amount and appearance of snow on the stairs at the
time of her fall. Greyhound thus conclusively established, for the
purposes of summary judgment, that UTA had not satisfied its
snow removal obligations. Accordingly, Greyhound was entitled
to summary judgment on its claim for declaratory relief that
UTA had breached the snow removal provisions of the Lease
20190523-CA 19 2020 UT App 144Greyhound Lines v. UTA
Agreement, and was entitled to summary judgment, at least as
to liability, on its breach of contract claim. The district court’s
determination to the contrary was erroneous.
2
¶45 While Greyhound has proven an entitlement to a judicial
declaration that UTA breached the snow removal provisions of
the Lease Agreement, Greyhound’s entitlement to monetary
damages as a result of that breach presents an entirely separate
question. Certainly, neither party disputes that, had Greyhound
hired and paid a third party to remove the snow following
UTA’s failure to do so, Greyhound would—under the terms of
the Lease Agreement—be entitled to an order commanding UTA
to reimburse it for those costs. 2 But Greyhound does not contend
that it incurred any such costs.
¶46 Instead, Greyhound claims that it is entitled to recover the
$1,000 it paid to the patron to settle the claim. UTA resists that
claim: as UTA sees it, that payment represents the insurance
deductible amount that, pursuant to the insurance procurement
provision of the Lease Agreement, is and remains Greyhound’s
responsibility. We find UTA’s argument on this point
persuasive, and conclude that Greyhound is not entitled to an
award of damages for breach of contract that includes the $1,000
paid to the patron.
2. UTA asserts that this reimbursement remedy is the only
remedy open to Greyhound under the Lease Agreement. We
disagree. The Lease Agreement states that the nonbreaching
party “may[,] at its option,” choose to hire a third party to
perform the work the breaching party should have performed
and could, in that instance, pass the costs on to the breaching
party. Thus, while Greyhound could have availed itself of that
option, the Lease Agreement does not establish that such a
remedy was the only one available to Greyhound.
20190523-CA 20 2020 UT App 144Greyhound Lines v. UTA
¶47 When we examine a contract, we must read that contract
in its entirety and attempt to harmonize all of its provisions,
“giving effect to all and ignoring none.” Café Rio, Inc. v. Larkin-
Gifford-Overton, LLC, 2009 UT 27, ¶ 25, 207 P.3d 1235 (quotation
simplified). As applicable here, these principles require us to
read the snow removal provisions in tandem with the insurance
procurement provision. As we have already concluded, the
insurance procurement provision requires Greyhound to pay all
of the “costs and expenses” associated with obtaining insurance
that covers UTA against third-party claims; those “costs and
expenses” include the premium paid for the policy, as well as
the deductible. See supra ¶¶ 33–39. Were we to conclude, under
circumstances where Greyhound purchased a policy with a $5
million deductible, that Greyhound may recover the deductible
amount from UTA as contract damages based on UTA’s breach
of its snow removal obligations, Greyhound would be in breach
of the insurance procurement provision. As explained above, the
only way Greyhound’s purchase of the Fronting Policy satisfies
the insurance procurement provision is if that provision is
interpreted to require Greyhound to pay the deductible as part
of the “costs and expenses” of the policy. Accordingly, the only
way to harmonize the insurance procurement provision with the
snow removal provisions is to interpret them, together, as
imposing upon Greyhound the obligation to pay any deductible
associated with the policy it purchases under the insurance
procurement provision, while still allowing Greyhound to
pursue declaratory relief or other monetary remedies (e.g.,
nominal damages, or reimbursement for costs associated with
hiring a third party to do UTA’s snow removal work).
¶48 Greyhound resists this conclusion by pointing to a
passage in our supreme court’s opinion in Greyhound I, in which
the court explained that, “[i]f Greyhound provided insurance
and UTA breached a duty detailed in the Lease Agreement,
Greyhound could sue UTA for breach and recover any damages
that resulted,” and that “[t]hese damages could include any
amount not covered by insurance, such as insurance deductibles,
increases in insurance premiums, and attorney fees.” Greyhound
20190523-CA 21 2020 UT App 144Greyhound Lines v. UTA
I, 2015 UT 53, ¶ 46. 3 We disagree with Greyhound’s argument,
for two reasons.
¶49 First, our supreme court was clear: “if Greyhound
provide[s]” compliant insurance under the Lease Agreement,
only then may it sue for and “recover any” damages resulting
from UTA’s breach of contract, including—among other
things—insurance deductibles. Id. But as it stands, the only way
that Greyhound’s Fronting Policy satisfies the Lease
Agreement’s insurance procurement provision is if Greyhound
covers the costs and expenses associated with the policy,
including the deductible. The premise of the supreme court’s
3. UTA relies upon Greyhound I for a different purpose, asserting
that Greyhound’s claims are barred, under issue preclusion
principles, by the court’s holding in that case. But we find that
argument unpersuasive. Issue preclusion applies only where,
among other things, “the issue decided in the prior adjudication
was identical to the one presented in the instant action.” See Moss
v. Parr Waddoups Brown Gee & Loveless, 2012 UT 42, ¶ 23, 285 P.3d
1157 (quotation simplified). None of the issues decided in
Greyhound I are “identical to” the issues being decided here. In
Greyhound I, the supreme court addressed three issues: “(1)
whether under Utah law, an agreement to procure insurance for
the benefit of another must be strictly construed; (2) whether the
district court erred when it concluded that [an injured person]’s
claim triggered Greyhound’s duty to procure insurance; and (3)
whether the district court abused its discretion in awarding
UTA’s attorney fees.” 2015 UT 53, ¶ 6, 355 P.3d 947. In this case,
by contrast, we are asked to determine whether Greyhound
breached (or satisfied) the insurance procurement provisions of
the Lease Agreement by purchasing the Fronting Policy, and
whether UTA breached the snow removal provisions of the
Lease Agreement and, if so, what remedies are available to
Greyhound for that breach. Because the issues decided in the
two cases are not identical, issue preclusion does not apply.
20190523-CA 22 2020 UT App 144Greyhound Lines v. UTA
statement—that Greyhound procures compliant insurance—is
satisfied here only if Greyhound pays the deductible.
¶50 Second, the statement in Greyhound I upon which
Greyhound relies is non-binding obiter dicta. “Dicta” is a part of
a judicial opinion which is “not critical to the holding.” See State
v. Daniels, 2002 UT 2, ¶ 35, 40 P.3d 611. 4 As our supreme court
has explained, “not every statement of law in every opinion is
binding,” because “where it is clear that a statement is made
casually and without analysis, where the statement is uttered in
passing without due consideration of the alternatives, or where
it is merely a prelude to another legal issue that commands the
court’s full attention,” a statement constitutes dicta, rather than
binding precedent. State v. Robertson, 2017 UT 27, ¶¶ 25–27, 438
P.3d 491 (quotation simplified). By contrast, binding and
precedential statements of law are those made where “it is clear
that a majority of the court has focused on the legal issue
presented by the case before it and made a deliberate decision to
resolve the issue.” Id. ¶ 27 (quotation simplified). Only when our
supreme court “confronts an issue germane to the eventual
resolution of the case, and resolves it after reasoned
consideration in a published opinion,” does that “ruling
become[] the law.” Id. (quotation simplified).
¶51 “Dicta normally comes in two varieties: obiter dicta and
judicial dicta,” and although “both terms refer to judicial
statements that are unnecessary to the resolution of the case,”
obiter dicta does not bind courts deciding later cases, while
judicial dicta does. Ortega v. Ridgewood Estates LLC, 2016 UT App
131, ¶ 14 n.4, 379 P.3d 18 (quotation simplified); see also Exelon
Corp. v. Department of Revenue, 917 N.E.2d 899, 907 (Ill. 2009)
(cited in Ortega, and stating that obiter dicta “is generally not
4. Both parties recognize the supreme court’s statement as dicta,
with Greyhound specifically acknowledging in its brief that the
“statement was arguably not necessary to the Supreme Court’s
ruling in Greyhound I.”
20190523-CA 23 2020 UT App 144Greyhound Lines v. UTA
binding authority or precedent within the stare decisis rule”).
“Obiter dicta refers to a remark or expression of opinion that a
court uttered as an aside,” and includes statements, such as the
one at issue here, that were “made by a court for use in
argument, illustration, analogy or suggestion.” Ortega, 2016 UT
App 131, ¶ 14 n.4 (quotation simplified); see also Beaver County v.
Home Indem. Co., 52 P.2d 435, 444–45 (Utah 1935) (“Obiter dicta is
that part of an opinion which does not express any final
conclusion on any legal question presented by the case for
determination or any conclusion on any prin[c]iple of law which
it is necessary to determine as basis for a final conclusion on one
or more questions to be decided by the court.”). By contrast,
judicial dicta is characterized by “statement[s] deliberately made
for the guidance of the bench and bar,” or those “expression[s] of
opinion upon a point in a case argued by counsel and
deliberately passed upon by the court.” Ortega, 2016 UT App
131, ¶ 14 n.4 (quotation simplified).
¶52 The court in Greyhound I was presented with an entirely
different question than the one that confronts us here. See supra
note 3. Specifically, the supreme court was not asked to weigh in
on the meaning of the “costs and expenses” language in the
Lease Agreement’s insurance procurement provision, and was
not asked to consider whether purchase of a $5 million fronting
policy with a $5 million deductible could satisfy Greyhound’s
obligations under that provision. Instead, the court was asked to
consider, among other things, whether that provision required
Greyhound to purchase a policy that covered UTA’s negligence.
So while the Greyhound I court mused that certain situations may
exist where Greyhound might be able to recover insurance
deductibles from UTA in the event that UTA breached the Lease
Agreement, the court was not asked to consider whether the
scenario presented here would qualify as one of those situations.
In making the statement, the court was not engaged in an
analysis of the questions presented in this appeal. Moreover, the
statement cited by Greyhound was not made as the court
determined “an issue germane” to the case’s ultimate resolution;
it was not a statement made after “a majority of the court”
20190523-CA 24 2020 UT App 144Greyhound Lines v. UTA
focused on that particular legal issue; and it was not the issue
that commanded “the court’s full attention.” See Robertson, 2017
UT 27, ¶ 27 (quotation simplified). In short, the statement made
was not necessary to the decision, and therefore qualifies as
dicta. And we think the statement is best classified as obiter
dicta, rather than judicial dicta: it was made by way of
“illustration, analogy, or suggestion,” and was not “deliberately
made for the guidance of the bench and bar.” See Ortega, 2016
UT App 131, ¶ 14 n.4 (quotation simplified). Accordingly, we do
not consider that statement binding upon our decision here, and
do not view that statement as foreclosing our conclusion that—
on the facts of this case, where Greyhound purchased a fronting
policy with a $5 million deductible, and where Greyhound’s
payment of the deductible is the linchpin to its compliance with
the insurance procurement provision—Greyhound is obligated
to pay the insurance deductible, and cannot recover the
deductible from UTA as damages for breach of contract.
¶53 But even though it incurred no actual recoverable
damages, Greyhound is in any event entitled to nominal
damages for UTA’s breach of contract. Nominal damages are “a
trivial sum such as one cent or one dollar awarded to a plaintiff
whose legal right has been invaded but who has failed to prove
any compensatory damages.” Foote v. Clark, 962 P.2d 52, 57 (Utah
1998) (quotation simplified). Such damages are “a means of
acknowledging invaded rights without rewarding a successful
party for nonexistent damages,” id. at 58, and “are recoverable
upon a breach of contract if no actual or substantial damages
resulted from the breach or if the amount of damages has not
been proven,” Smith v. Simas, 2014 UT App 78, ¶ 26, 324 P.3d 667(quotation simplified). In this case, Greyhound has proven that
UTA breached the contract and, even though it is not able to
prove that it sustained any actual recoverable damages, it is
nevertheless entitled to nominal damages.
¶54 In sum, then, Greyhound is entitled to entry of summary
judgment in its favor on its claim for a declaratory judgment that
UTA breached the snow removal provisions. Greyhound is
20190523-CA 25 2020 UT App 144Greyhound Lines v. UTA
entitled to summary judgment as to liability (breach) on its claim
for breach of contract related to those same provisions, but on
that claim is entitled to recover, as damages, only nominal
damages, and not any amount that would fairly represent the
deductible payment required under the Fronting Policy.
III
¶55 Finally, Greyhound seeks reversal of the district court’s
award of attorney fees to UTA, and both parties seek an award
of attorney fees on appeal. “In Utah, attorney fees are awardable
only if authorized by statute or by contract.” Federated Cap. Corp.
v. Haner, 2015 UT App 132, ¶ 11, 351 P.3d 816 (quotation
simplified). The Lease Agreement contains an attorney fees
provision stating that, “[i]n the event either [p]arty enforces the
terms” of the Lease Agreement “by suit or otherwise, the [p]arty
found to be at fault by a court of competent jurisdiction shall pay
the cost and expense incurred thereby, including reasonable
attorney’s fees.”
¶56 The district court’s award of attorney fees to UTA was
premised on its determination, here reversed, that UTA was
entitled to certain summary judgment rulings in its favor, and
that UTA had therefore “prevailed” with regard to the cross-
motions for summary judgment that culminated in the First
Order (a ruling we construe as at least implicitly determining
that Greyhound was “at fault” under the attorney fees provision
of the Lease Agreement). Because we reverse the First Order, we
also reverse the district court’s award of attorney fees associated
with that order, and we remand this case to the district court for
a reassessment of both parties’ competing claims, under the
Lease Agreement’s attorney fees provision, to attorney fees
incurred in this litigation, including attorney fees incurred in this
appeal. See Crank v. Utah Judicial Council, 2001 UT 8, ¶ 44 n.18, 20
P.3d 307 (stating that, where “[t]he question of entitlement to
fees at the [district] court level has not yet been determined, . . .
any appropriate award of attorney fees on appeal is dependent
upon that determination and should be assessed by the district
20190523-CA 26 2020 UT App 144Greyhound Lines v. UTA
court on remand”); see also Utah Telecomm. Open Infrastructure
Agency v. Hogan, 2013 UT App 8, ¶ 24, 294 P.3d 645 (stating that
a party “is entitled to attorney fees on appeal only if [the party]
is awarded attorney fees in the [district] court,” remanding so
that the district court could assess the parties’ claims to attorney
fees, and specifying that even a party who is deemed “entitled to
attorney fees” may nevertheless be subject to having that award
adjusted so that the party “does not recover fees attributable to
issues on which [it] did not prevail”).
CONCLUSION
¶57 We have jurisdiction to consider the merits of
Greyhound’s appeal because the district court acted within its
discretion in interpreting the First Order as not completely
resolving UTA’s counterclaim for breach of contract. On the
merits of that appeal, we conclude that the district court erred by
entering summary judgment in favor of UTA on its counterclaim
for breach of contract and on Greyhound’s claims for breach of
contract and declaratory relief. Greyhound is entitled to
judgment, as a matter of law, that it complied with its
obligations under the Lease Agreement to procure insurance
protecting UTA, and that UTA failed to comply with the Lease
Agreement’s snow removal provisions. However, Greyhound is
entitled to only nominal damages and declaratory relief on its
breach of contract claim, and is not entitled to recover the costs
of the insurance deductible from UTA in this case.
¶58 We therefore affirm the district court’s Third Order, at
least insofar as it determined that the earlier orders did not
completely resolve the case, but reverse the court’s First Order,
and remand for further proceedings consistent with this opinion.
20190523-CA 27 2020 UT App 144