CUWCD v. UEU

This opinion is subject to revision before final
publication in the Pacific Reporter
2013 UT 67
IN THE
SUPREME COURT OF THE STATE OF UTAH
CENTRAL UTAH WATER CONSERVANCY DISTRICT,
Plaintiff and Appellant,
v.
UPPER EAST UNION IRRIGATION COMPANY, EAST RIVER BOTTOM
WATER COMPANY, and TIMPANOGOS CANAL COMPANY,
Defendants and Appellees.
No. 20111028
Filed November 15, 2013
Fourth District, Provo Dep’t
The Honorable Lynn W. Davis
No. 070401446
Attorneys:
Edwin C. Barnes, Steven E. Clyde, Katherine E. Judd,
Salt Lake City, for appellant
Thomas W. Seiler, Jamis M. Gardner, Provo, for appellee
Upper East Union Irrigation Company
Robert L. Jeffs, Randall L. Jeffs, Provo, for appellee
East River Bottom Water Company
Robert C. Fillerup, Orem, for appellee
Timpanogos Canal Company
JUSTICE PARRISH authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE DURHAM, and JUSTICE LEE joined.
JUSTICE PARRISH, opinion of the Court:
INTRODUCTION
¶1 This appeal arises from the Central Utah Water Conser-
vancy District’s (CUWCD) January 7, 2003 agreement (Agreement)
to improve irrigation structures belonging to Upper East Union
Irrigation Company (UEU), East River Bottom Water Company
(ERB), and Timpanogos Canal Company (TCC) (collectively, Canal
Companies) in exchange for rights to the increased water flow
arising from the improvements. CUWCD failed to complete its
CUWCD v. UEU et al.
Opinion of the Court
obligations under the Agreement. After negotiations with the Canal
Companies broke down, CUWCD filed a declaratory action to
establish its contractual rights.
¶2 The district court ruled that because CUWCD breached its
obligations under the Agreement, UEU and ERB were entitled to
enforce the bargained-for damages provisions, resulting in the loss
of CUWCD’s prospective water rights. CUWCD appeals, asserting
that the district court erred by: (1) granting summary judgment in
favor of the Canal Companies, (2) failing to recognize that UEU and
ERB received the benefit of their bargain, (3) refusing to reconsider
its summary judgment ruling, (4) rejecting CUWCD’s claims that its
performance was excused under the doctrine of impracticability,
(5) failing to recognize CUWCD’s tender of cash in lieu of perfor-
mance, and (6) refusing to allow CUWCD to amend its pleadings to
add allegedly necessary parties.
¶3 We affirm the judgment of the district court in its entirety.
Specifically, we hold that CUWCD’s breach was material because
UEU and ERB did not receive the benefit of their bargain. And the
breach was not excused by the doctrine of impracticability or
CUWCD’s tender of cash in lieu of performance. Therefore, the
district court appropriately entered summary judgment in favor of
UEU and ERB and was under no obligation to reconsider its ruling.
Finally, the district court did not abuse its discretion when it refused
to allow CUWCD to amend its pleadings to join allegedly necessary
parties.
BACKGROUND
¶4 CUWCD, ERB, UEU, TCC, Brigham Young University
(BYU), and Provo City Corporation (Provo) entered into an Agree-
ment to affect the diversion and conveyance of water from the Provo
River throughout the Provo and Orem areas.1 The Agreement
describes the scope of the project as follows:
PROJECT DESCRIPTION: The project would convert
portions of existing open ditch water delivery systems
of both the ERB and UEU to a piped delivery
system . . . . The proposed project includes the piping
of portions of both the ERB and UEU canal systems,
1
Because BYU and Provo are not parties to this lawsuit, we do
not discuss their respective rights or responsibilities under the
Agreement.
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the rehabilitation of the TCC diversion, and the
replacement or enlargement of an existing 1,500-foot
section of 30” HDPE pipe in the TCC piped system.
The Agreement required that ERB and UEU abandon their existing
diversion in favor of the improved TCC Diversion. CUWCD agreed
to undertake and pay all costs for these improvements. In return,
the Canal Companies agreed to convey to CUWCD the rights to the
water that would be conserved as a result of the improvements and
to convey by quitclaim deed the percentage of water rights CUWCD
already owned in the Canal Companies.
¶5 To insure against CUWCD’s breach, the Agreement
required that CUWCD place quitclaim deeds in escrow, representing
the water rights it would receive upon completion of the agreed-to
improvements. The Agreement states that “[i]n the event CUWCD
defaults in the performance of its obligation to construct the project
as defined in this Agreement . . . [the Canal Companies] may request
the delivery of th[ese] escrowed quitclaim deed[s] as [their] sole
remedy.” The Agreement states that the project will be completed
by April 15, 2004.
¶6 By May 3, 2004, CUWCD had substantially completed the
improvements to the piping portions of the canal systems as
required by the Agreement. But it had not completed, nor even
begun to replace, the TCC Diversion.
¶7 On March 30, 2007, almost three years after the improve-
ments were to have been completed, CUWCD sent a letter to the
Canal Companies “to summarize and confirm our discussions and
negotiations” related to the replacement of the TCC Diversion.
CUWCD stated that it would not be possible to complete the TCC
Diversion work based on “environment[al] and permitting con-
cerns,” and that “[i]n lieu of further work on the diversion structure,
[CUWCD] offers to pay to [the Canal Companies], collectively, the
sum of $75,000.” CUWCD further stated that “this letter will also
serve as a tender of that sum of money together with [CUWCD]’s
prior work and improvements . . . under Utah Code Ann.
[section] 78-27-1 as full performance of [CUWCD]’s obligations
under [the] Agreement.” It concluded by stating that if the Canal
Companies did not expressly reject its offer by April 16, 2007,
CUWCD would consider its purported tender accepted. The Canal
Companies did not respond to CUWCD’s letter.
¶8 On June 11, 2007, the Canal Companies sent written notice
informing CUWCD that it had defaulted on its obligation to replace
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the TCC Diversion. Thirty days after sending the default letter, the
Canal Companies requested delivery of the escrowed quitclaim
deeds under the damage provisions of the Agreement because
CUWCD had not commenced to cure its default. In the interim,
CUWCD filed the complaint in the underlying lawsuit seeking a
judicial determination that the Canal Companies had accepted
CUWCD’s purported tender by failing to timely object. The Canal
Companies individually responded by filing answers, counterclaims,
and cross-claims.
¶9 After the parties had completed discovery, UEU filed a
motion for partial summary judgment, arguing that CUWCD’s offer
of payment in lieu of performance was not a valid tender of
performance and that CUWCD’s obligation to reconstruct the TCC
Diversion was not excused by the doctrine of impracticability. UEU
further alleged that CUWCD’s breach was material because
CUWCD had not substantially completed its contractual obligations.
¶10 TCC also sought partial summary judgment. It concurred
in UEU’s motion for partial summary judgment, arguing that a valid
tender offer requires tender of the amount due or the performance
required under the contract. ERB also sought partial summary
judgment, concurring in UEU’s summary judgment motion and
raising essentially the same arguments made by UEU and TCC.
¶11 CUWCD opposed the motions, arguing that it had
substantially performed all of its obligations under the Agreement
and that, in any case, the parties had waived any objection to
CUWCD’s tender of payment in lieu of performance. CUWCD also
filed a motion for leave to assert the additional affirmative defense
that the Canal Companies had failed to join necessary parties.
Specifically, CUWCD argued that the United States Department of
the Interior (DOI) and the Utah Reclamation Mitigation Conserva-
tion Commission (URMCC) were necessary and indispensable
parties because “federal funds were used to create the saved water
rights” and the saved water rights were to benefit, in part, federal
purposes.
¶12 The district court granted the Canal Companies’ motions
for partial summary judgment, ordered the delivery of the quitclaim
deeds in favor of UEU and ERB, and reserved ruling on the issue of
TCC’s appropriate remedy.
¶13 Because the district court ruled only on the Canal Compa-
nies’ motions for partial summary judgment, CUWCD filed a motion
to stay the proceedings, arguing that the district court’s ruling was
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Opinion of the Court
not a final judgment, that the district court had not addressed
CUWCD’s requested declaratory relief regarding title to the canals,
and that the district court had not considered the District’s entitle-
ment to equitable relief in quantum meruit. “[CUWCD] requested
that the district court stay execution and delay release of the
quitclaim deeds to UEU and ERB to address these open issues,
preserve the status quo, and prevent injustice.” Additionally,
CUWCD filed a motion to reconsider, arguing that the district
court’s decision to release the quitclaim deeds resulted in an
unconscionable forfeiture.
¶14 The district court denied CUWCD’s motion to reconsider
and subsequently entered summary judgment in favor of UEU and
ERB. The court directed that its order be entered as a final judgment
pursuant to rule 54(b) and released the quitclaim deeds to UEU and
ERB. The district court also entered partial summary judgment in
favor of TCC, reserving the issue of appropriate remedies and
staying any further proceedings on that issue pending resolution of
this appeal.
¶15 CUWCD timely appealed and we have jurisdiction under
Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶16 Because CUWCD raises a number of issues, we briefly set
forth the overarching standard of review here. We then discuss the
specific standards of review for each issue within the section
analyzing that issue.
¶17 The bulk of CUWCD’s asserted errors arise in the context
of the district court’s grant of summary judgment in favor of UEU
and ERB. Summary judgment is proper only where “there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” UTAH R. CIV. P. 56(c). “In
considering a grant of summary judgment, we review the [district]
court’s legal decision for correctness, giving no deference, and
review the facts and inferences to be drawn therefrom in the light
most favorable to the nonmoving party.” Peterson v. Coca-Cola USA,
2002 UT 42, ¶ 7, 48 P.3d 941 (internal quotation marks omitted).
¶18 When it granted summary judgment, the district court
relied on the language of the Agreement. Because the parties did not
allege that the Agreement was ambiguous or present extrinsic
evidence regarding its meaning, the district court did not look
beyond the four corners of the document. “Questions of contract
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interpretation not requiring resort to extrinsic evidence are matters
of law, and on such questions we accord the trial court’s interpreta-
tion no presumption of correctness.” Zions First Nat’l Bank, N.A. v.
Nat’l Am. Title Ins. Co., 749 P.2d 651, 653 (Utah 1988).
ANALYSIS
I. UEU AND ERB DID NOT RECEIVE THE
BENEFIT OF THEIR BARGAIN
¶19 CUWCD argues that any breach of the Agreement was not
material because UEU and ERB received the full benefit of their
bargain. The district court disagreed. It reasoned that “all parties
were to benefit from the rehabilitation [of the TCC Diversion],” that
CUWCD had not substantially performed, and that UEU and ERB
therefore had not received the full benefit of their bargain. We
review the district court’s decision for correctness, affording no
deference to its legal determinations. Peterson v. Coca-Cola USA, 2002
UT 42, ¶ 7, 48 P.3d 941.
¶20 All parties to the Agreement recognized that the TCC
Diversion was “in poor condition and in need of repair.” CUWCD
agreed to replace the TCC Diversion. Section 6 of the Agreement
states that “CUWCD . . . shall remove and replace at its sole expense
TCC’s existing diversion structure and replace it with a new radial
gate and other appurtenant facilities.” CUWCD has not even
undertaken that work and has made it clear that it will not do so.
CUWCD admits that it has breached its explicit obligations under
the Agreement, but alleges that its obligation to replace the diversion
runs only to TCC, not to all of the Canal Companies. We now turn
to that issue.
¶21 CUWCD concedes that it owed TCC an obligation to
replace the TCC Diversion. Its concession is supported by the
language of the Agreement, which requires CUWCD to replace the
TCC Diversion “as consideration for TCC’s granting of [a] perma-
nent right and easement to ERB and UEU.” But CUWCD argues that
because the Agreement consists of three contracts merged into a
single document, CUWCD’s consideration to UEU and ERB was
“separate[] and apart from the consideration recited for TCC.” We
disagree. The language of the Agreement simply does not support
CUWCD’s argument. Rather, CUWCD’s obligation to replace the
TCC Diversion was owed to all of the Canal Companies.
¶22 The district court posed the pointed question, “Isn’t the
[TCC] [D]iversion structure absolutely essential and integral to a
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functioning system?” The answer is that “[w]ater pipes, no matter
how soundly constructed, cannot deliver water that is not diverted.”
This self-evident fact is the heart of the matter.
¶23 Prior to entering the Agreement, UEU and ERB jointly
operated an independent diversion on the Provo River to convey
their water into their respective irrigation systems. UEU and ERB
agreed to abandon this independently operated diversion precisely
because CUWCD agreed to replace the TCC Diversion and make it
available to UEU and ERB. The plain language of the Agreement
obligates UEU and ERB to give up their existing diversion structure,
thereby rendering them solely dependent on the contracted-for TCC
Diversion. CUWCD’s obligation to replace the TCC Diversion
therefore constituted an important part of the overall project
outlined by the Agreement.
¶24 UEU and ERB’s agreement to abandon their existing
diversion structure in favor of the anticipated TCC Diversion easily
qualifies as a legal detriment that constitutes valid consideration. See
17 C.J.S. Contracts § 110 (2013) (“The consideration for a promise
may be a legal detriment suffered by the promisee, no matter how
slight or economically trifling, at the request of the promisor . . . .”).
“The term ‘legal detriment,’ as used in testing the sufficiency of
consideration, means giving up something which immediately prior
thereto the promisee was privileged to retain, or doing or refraining
from doing something which he or she was then privileged not to
do, or not to refrain from doing.” Id. Prior to entering into the
Agreement, UEU and ERB operated their own diversion structure
and were privileged to do so. But under the Agreement, they agreed
to abandon their independently operated diversion.
¶25 Because the Agreement required that UEU and ERB
abandon their preexisting right to own and operate an independent
diversion, they suffered a legal detriment that constituted a portion
of the consideration for CUWCD’s obligation to replace the TCC
Diversion. CUWCD therefore owed both UEU and ERB an inde-
pendent duty to replace the TCC Diversion. And CUWCD cannot
now establish substantial performance under the Agreement when
it has not even attempted to begin construction of the bargained-for
diversion.2 As the district court correctly reasoned, the anticipated
2
Had CUWCD’s performance varied as to “mere technical,
inadvertent, or unimportant omissions or defects,” the doctrine of
(continued...)
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Opinion of the Court
TCC Diversion is essential to the proper and continued operation of
UEU and ERB’s irrigation systems.
¶26 We hold that CUWCD’s obligation to replace the TCC
Diversion was owed to all of the Canal Companies, including UEU
and ERB. Because CUWCD refused to fulfill its contractual obliga-
tion, it breached the Agreement. And CUWCD cannot establish
substantial performance because UEU and ERB did not receive the
benefit of their bargain.
II. CUWCD’S REFUSAL TO REPLACE THE TCC DIVERSION
WAS NOT EXCUSED UNDER THE DOCTRINE OF
IMPRACTICABILITY
¶27 CUWCD next argues that the district court erred by
rejecting its claim that the doctrine of impracticability excused its
failure to replace the TCC Diversion. Whether impracticability
affords a party relief from its obligations under a contract is a
question of law that we review for correctness. See Robinson v.
Robinson, 2010 UT App 96, ¶ 6, 232 P.3d 1081 (noting that whether
contract defenses can afford relief is a question of law reviewed for
correctness). We hold that CUWCD’s failure to perform is not
excused by the doctrine of impracticability for several independent
reasons. First, CUWCD cannot establish that the event giving rise to
the claim of impracticability was unforeseen. Second, CUWCD
failed to show that performance was impracticable because it did not
even attempt to obtain the required permits. Finally, even had it
attempted to do so, CUWCD assumed the risk of failing to obtain the
requisite permits.
¶28 The doctrine of impracticability excuses a party’s perfor-
mance “if an unforeseen event occurs after formation of the contract
and without fault of the obligated party, which event makes
performance of the obligation impossible or highly impracticable.”
W. Props. v. S. Utah Aviation, Inc., 776 P.2d 656, 658 (Utah Ct. App.
2
(...continued)
substantial performance may excuse its omissions. 15 WILLISTON ON
CONTRACTS, § 44:52 (4th ed. 2000); see also BLACK’S LAW DICTIONARY
1281 (5th ed. 1979) (noting that a party has substantially performed
when “the only variance from the strict and literal performance
consists of technical or unimportant omissions or defects”). But
CUWCD’s complete failure to replace the TCC Diversion does not
consist of “technical or unimportant omissions or defects.” Its
failure strikes at the very heart of the Agreement.
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1989) (footnotes omitted); see also RESTATEMENT (SECOND) OF
CONTRACTS § 266(1) (1981) (“Where, at the time a contract is made,
a party’s performance under it is impracticable without his fault
because of a fact of which he has no reason to know and the non-
existence of which is a basic assumption on which the contract is
made, no duty to render that performance arises, unless the
language or circumstances indicate the contrary.”). A party is not
excused for impracticability, however, when the event leading to the
impracticability was known to the parties prior to contracting. See
W. Props., 776 P.2d at 658. Additionally, a party may not defend on
grounds of impracticability when that party takes on the risk that a
supervening event will occur and render performance impracticable
or impossible. See RESTATEMENT (SECOND) OF CONTRACTS § 266 cmt.
b (1981).
¶29 CUWCD argues that its obligation to replace the TCC
Diversion should be excused because environmental and permitting
constraints precluded it from completing the new diversion.
Specifically, CUWCD asserts that the Rehabilitation or Replacement
of Diversion Structures on the Lower Provo River project (LPRDS
Project) was begun after the execution of the Agreement and that
“[t]he contemplated design of the TCC Diversion was inconsistent
with the[] state and federal objectives” of the LPRDS Project.
¶30 Though there appears to be a factual dispute as to if and
when the LPRDS Project concluded, there is no dispute that the
LPRDS project was funded pursuant to section 302(c) of the Canal
Utah Project Completion Act, which was passed in 1992. Thus, at
the time they entered the Agreement in 2003, the parties were on
notice that the LPRDS Project may affect the agreed-to improve-
ments, including replacement of the TCC Diversion. Because all of
the parties were aware of the LPRDS Project at the time of contract-
ing, CUWCD cannot meet the requirement of showing that the event
giving rise to the impracticability was not known at the time of
contracting.
¶31 Additionally, there is no dispute that CUWCD has not yet
applied for or otherwise sought to obtain the permits necessary to
undertake the replacement of the TCC Diversion. While CUWCD’s
replacement of the TCC Diversion may be “inconsistent with
evolving LPRDS objectives,” without a good faith attempt to obtain
the necessary permits, CUWCD cannot establish that performance
is impracticable. Thus, even assuming that CUWCD did not know
of the LPRDS project prior to execution of the Agreement, had
CUWCD sought to obtain permits and been denied, it might have a
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colorable claim for impracticability. But here, where CUWCD has
not even attempted to obtain the necessary permits, it cannot
reasonably make such a claim.
¶32 Finally, even had CUWCD applied for and been denied the
required permits, that fact would not excuse its performance because
CUWCD affirmatively assumed the risk that the permitting agencies
may not provide them. Section 7 of the Agreement, entitled
“Permits for Construction,” states that ”CUWCD and/or its
contractor shall obtain all construction permits required by all local
jurisdictions and any Stream Alteration/§ 404 permits required for
the reconstruction of the TCC diversion.” (Emphasis added).
CUWCD thus affirmatively contracted to obtain all necessary
permits and assumed the risk that such permits may be difficult, or
even impossible, to obtain. See Kilgore Pavement Maint., LLC v. W.
Jordan City, 2011 UT App 165, ¶¶ 7–8, 257 P.3d 460 (holding that
where a party agreed that it “shall furnish and assume full responsi-
bility for all materials,” it implicitly assumed the risk that the
materials may have been more expensive or more difficult to obtain
than originally anticipated (emphasis added)). While CUWCD
explicitly undertook the obligation of obtaining the necessary
permits, its performance under the Agreement was not contingent
on its ability to do so. And because CUWCD never even attempted
to obtain the necessary permits, it cannot establish that it would
have been unable to do so. Its protestations to the contrary are mere
conjecture. We thus hold that the doctrine of impracticability does
not excuse its breach.
III. CUWCD’S OFFER OF $75,000 IN LIEU OF PERFORMANCE
WAS NOT A VALID TENDER
¶33 CUWCD next asserts that the district court erred when it
ruled that CUWCD’s offer of payment in lieu of performance did not
constitute a valid tender that excused its failure to perform.
CUWCD argues that its offer of payment in lieu of its promise to
replace the TCC Diversion was a valid tender offer and that the
Canal Companies waived any objection to the tender by failing to
timely object. The district court concluded that CUWCD’s pur-
ported tender was invalid, in part, because it was “inappropriate for
[CUWCD] to tender money instead of its agreed-upon performance
obligations.” We review the district court’s ruling for “correctness,
giving no deference to [its] decision,” Bahr v. Imus, 2011 UT 19, ¶ 16,
250 P.3d 56, and agree that CUWCD could not “tender” substitute
performance for its original contractual obligations.
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¶34 CUWCD relies on PDQ Lube Center, Inc. v. Huber to argue
that its offer of substitute performance constituted a valid tender.
949 P.2d 792 (Utah Ct. App. 1997). The court in PDQ Lube Center
stated that, “[i]n order to be valid, tender of payment on a contract
must be (1) timely, (2) made to the person entitled to payment,
(3) unconditional, (4) an offer to pay the amount of money due, and
(5) coupled with an actual production of the money or its equiva-
lent.” Id. at 800 (internal quotation marks omitted).
¶35 CUWCD’s invocation of PDQ Lube Center is misplaced
because, “[b]y definition, [a valid] tender requires the holding out of
that which is to be delivered or performed before the condition is
satisfied.” 13 CORBIN ON CONTRACTS § 67.5 (Rev. ed. 2003). In other
words, “[t]he tender must be made in accordance with the terms of
the contract, or it is no tender at all.” 17B C.J.S. Contracts § 735 (2013)
(footnotes omitted). For an offer to constitute a tender (valid or
otherwise), “[t]he tenderer must do and offer everything that is
necessary on his or her part to complete the transaction.” Id.
¶36 Before CUWCD can establish that the Canal Companies
waived any objections to CUWCD’s purported tender, “[CUWCD]
must [have made] an unconditional tender of the performance required
by the agreement.” Kelley v. Leucadia Fin. Corp., 846 P.2d 1238, 1243
(Utah 1992) (emphasis added). “In other words, a party must make
a tender of his own agreed performance in order to put the other
party in default.” Id. (internal quotation marks omitted); see also
Collard v. Nagle Constr., Inc., 2002 UT App 306, ¶ 19, 57 P.3d 603
(concluding that a party is entitled to an equitable remedy under the
tender doctrine only if it has “fully tendered, or stood ready to fully
tender, [its] own performance under the contract”).
¶37 Here, CUWCD agreed to “remove and replace at its sole
expense TCC’s existing diversion structure and replace it with a new
radial gate and other appurtenant facilities.” It did not agree to pay
a sum to the Canal Companies so that the Canal Companies could
replace the TCC Diversion themselves. CUWCD did not, therefore,
tender the performance due under the Agreement. Rather, CUWCD
tendered a cash payment as an alternative. In the face of the explicit
requirements of performance under the Agreement, CUWCD’s cash
offer was not a tender at all. Rather, it is more appropriately
characterized as a settlement offer. And there is no authority to
support the novel proposition that a party’s failure to object to a
settlement offer can be deemed an acceptance of that offer.
¶38 In summary, the Canal Companies were not obligated to
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object to CUWCD’s settlement offer. The district court correctly
ruled that CUWCD’s purported tender was ineffectual.
IV. THE DISTRICT COURT DID NOT ERR WHEN IT GRANTED
SUMMARY JUDGMENT IN FAVOR OF UEU AND ERB
¶39 CUWCD argues, in a cursory fashion, that the district court
erred when it certified its summary judgment rulings as final under
rule 54(b). CUWCD’s briefing on this issue is confusing, however,
in that CUWCD’s argument is labeled as a challenge to the propriety
of the grant of summary judgment, but proceeds as a mixture of rule
54(b) and summary judgment analyses.
¶40 Although CUWCD purports to challenge the rule 54(b)
certification, it cites to only one case, Kennecott Corporation v. Utah
State Tax Commission, 814 P.2d 1099 (Utah 1991), in support of that
proposition. In Kennecott, a group of taxpayers brought an action
alleging that a section of the Utah Code was unconstitutional. Id. at
1099–1100. The taxpayers brought three separate constitutional
challenges, and the district court granted partial summary judgment
in favor of the state tax officials as to one of the three. Id. at 1100.
The court then certified its partial summary judgment ruling as a
final judgment pursuant to rule 54(b) and the taxpayers appealed.
Id. We held that such certification was improper if substantial
factual overlap exists between the claims certified as final and the
claims remaining before the district court. Id. at 1104
¶41 CUWCD argues that such a factual overlap exists in this
case. We disagree. In Kennecott, the claims remaining before the
district court involved all of the same parties, covered exactly the
same set of operative facts, and requested the exact same remedy as
the claims certified as final. Id. at 1105. Because of the significant
overlap in terms of parties and issues, we noted that one important
factor in determining whether 54(b) certification is proper is the res
judicata effect of any appellate decision on the claims remaining
before the district court. Id. at 1104. Thus, if the facts underlying a
claim certified as final under rule 54(b) “are sufficiently similar to
constitute res judicata on the remaining issues, 54(b) certification is
generally precluded.” Id. at 1105.
¶42 In nearly every respect, this case is distinguishable from
Kennecott. First, as detailed below, the district court disposed of
UEU and ERB’s claims in their entirety on summary judgment. As
such, they no longer have any claims pending before the district
court. Accordingly, the district court’s 54(b) certification fundamen-
tally altered the makeup of the parties before it. Second, the parties
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in this case seek separate and distinct remedies for CUWCD’s breach
of contract. As noted below, UEU and ERB have gone without a
reconstructed Diversion for nearly a decade. They are entitled to
recovery regardless of the district court’s disposition of TCC’s
damages claim. Finally, as detailed below, resolution of UEU and
ERB’s claims on appeal will have no res judicata effect on TCC’s
remaining claim for damages. Thus, the district court did not err in
granting rule 54(b) certification. We now consider the propriety of
the district court’s grant of summary judgment on UEU’s and ERB’s
claims.
¶43 CUWCD argues that the district court erred in granting
summary judgment in favor of UEU and ERB because (1) CUWCD’s
alleged breach will be resolved when the court resolves the reserved
issues in its action with TCC, (2) the court failed to address all of the
issues raised in CUWCD’s complaint, and (3) the court failed to
address CUWCD’s claim for quantum meruit. “In considering a
grant of summary judgment, we review the [district] court’s legal
decision for correctness.” Peterson v. Coca-Cola USA, 2002 UT 42, ¶ 7,
48 P.3d 941 (internal quotation marks omitted). We disagree with
CUWCD on all counts and conclude that the district court correctly
ruled in favor of UEU and ERB on summary judgment.
A. Resolution of the Reserved Issues with Respect to TCC Does Not
Resolve or Remedy UEU and ERB’s Claims
¶44 CUWCD contends that the district court erred in granting
summary judgment in favor of UEU and ERB because CUWCD’s
claimed default on its obligations to UEU and ERB will somehow be
extinguished when the district court awards a remedy to TCC.
Specifically, CUWCD contends that if the district court orders
specific performance or compensatory damages, that order will
make TCC whole and thus satisfy CUWCD’s obligations to all of the
Canal Companies. We disagree.
¶45 As previously explained, UEU and ERB did not receive the
benefit of their bargain because CUWCD failed to replace the TCC
Diversion. See supra Section I. And CUWCD owed an independent
duty to UEU and ERB to do so. Supra Section I. UEU and ERB are
therefore independently entitled to damages for CUWCD’s breach,
regardless of whether the district court ultimately awards damages
to TCC as well.
¶46 We are similarly unpersuaded by CUWCD’s argument that
UEU and ERB’s claims for damages would be mooted if the district
court were to order specific performance. In the first place, such an
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Opinion of the Court
argument is wholly speculative and inconsistent with CUWCD’s
position that construction of the TCC Diversion is impracticable.3
And in any event, any future construction of the contemplated
Diversion would not remedy the fact that UEU and ERB have gone
without the reconstructed Diversion for almost a decade. Finally, as
a legal matter, UEU and ERB’s claims for damages are separate and
distinct from TCC’s claim for damages. They should not be denied
recovery simply because the district court has yet to award TCC a
remedy.
B. The Explicit Terms of the Agreement Control the Disposition of the
Improved Piping
¶47 CUWCD next argues that the district court erred by
granting summary judgment because its ruling did not address
CUWCD’s requested declaratory relief regarding ownership of the
improved piping that CUWCD installed pursuant to the Agreement.
CUWCD contends that the district court erroneously left title to the
improved piping in CUWCD, “effectively impos[ing] ongoing costs
and an indefinite statutory liability on the District.” In response,
UEU and ERB argue that because CUWCD substantially completed
the piping portion of the project, the Agreement requires that
CUWCD return title to UEU and ERB. We agree.
¶48 To facilitate the improvements to the piping contemplated
under the Agreement, the Agreement specifies how title to the
piping is to be held during construction. Specifically, the Agree-
ment states that “[b]efore CUWCD can expend its funds in the
construction of this pipeline, [UEU and] ERB must convey title to
the canal and its right of way and all appurtenances to CUWCD.”
Similarly, the Agreement specifies the timing for reconveyance. It
states that “[t]itle to the canal, right of way, and all appurtenances
shall be reconveyed from CUWCD to ERB [and UEU] upon substan-
tial completion of the pipeline.” (Emphasis added).
¶49 On appeal, CUWCD argues that it was erroneous for the
district court to award summary judgment without addressing its
3
Specific performance is not typically ordered if damages are
sufficient to protect the injured party’s expectation interest.
RESTATEMENT (SECOND) OF CONTRACTS § 359 (1981). Indeed, there is
a strong preference in the common law against ordering specific
performance. Assuming the district court enters a monetary
judgment against CUWCD in favor of TCC, TCC has no legal
obligation to use the judgement funds to replace the TCC Diversion.
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Opinion of the Court
claims regarding title to the piping. But it was not necessary for the
district court to address these title claims because they were never
in dispute before the district court. CUWCD’s attempts to raise the
title issues on appeal in the first instance are futile inasmuch as the
plain and uncontroverted language of the Agreement gives
CUWCD no legal claim to title of the improved piping. The
Agreement clearly states that upon substantial completion of the
contracted-for improvements to the piping, as opposed to comple-
tion of the project in its entirety, CUWCD is contractually obligated
to reconvey title of the piping to UEU and ERB. CUWCD concedes
that it substantially completed the piping improvements almost nine
years ago. Because CUWCD is contractually obligated to reconvey
the piping under the terms of the Agreement and because the title
issue was never raised in the district court, the district court’s
summary judgment in favor of the Canal Companies was appropri-
ate.
C. CUWCD Is Not Entitled to Recover in Quantum Meruit
¶50 Finally, CUWCD argues that summary judgment in favor
of the Canal Companies was inappropriate because the district court
failed to address CUWCD’s asserted entitlement to recover in
quantum meruit. It further argues that it was not required to
explicitly plead its claim for quantum meruit “because there is no
requirement to plead quantum meruit where a breach of contract
claim is plead [sic]” and its asserted entitlement did not arise until
the district court issued its ruling. UEU and ERB counter that
CUWCD failed to preserve its quantum meruit claim in the district
court and that it is barred from recovering in quantum meruit
because such a claim is awardable only in the absence of an
enforceable written or oral contract.
¶51 We do not generally consider an issue on appeal unless it
has been preserved below. “An issue is preserved for appeal when
it has been presented to the district court in such a way that the
court has an opportunity to rule on it.” Patterson v. Patterson, 2011
UT 68, ¶ 12, 266 P.3d 828 (internal quotation marks omitted). “To
provide the court with this opportunity, the issue must be specifi-
cally raised by the party asserting error, in a timely manner, and
must be supported by evidence and relevant legal authority.” State
ex rel. D.B. v. State, 2012 UT 65, ¶ 17, 289 P.3d 459 (internal quotation
marks omitted).
¶52 Here, CUWCD concedes that it did not initially plead
quantum meruit, but argues that it was “neither necessary nor
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Opinion of the Court
appropriate for [CUWCD] to plead quantum meruit until the
[district] court issued its [r]uling.” Additionally, CUWCD cites to
Parents Against Drunk Drivers v. Graystone Pines Homeowners’
Association for the proposition that “[a]n allegation of breach of
contract is sufficient to support a quantum meruit claim.” 789 P.2d
52, 57 n.8 (Utah Ct. App. 1990).
¶53 We are unpersuaded. In Parents Against Drunk Drivers,
although the plaintiff did not plead a claim of quantum meruit in his
complaint, “he did raise the claim in opposing the motion for partial
summary judgment filed with the trial court.” Id. In so doing, the
plaintiff “presented [the issue] to the district court in such a way
that the court ha[d] an opportunity to rule on it.” Patterson, 2011 UT
68, ¶ 12 (internal quotation marks omitted). In contrast, CUWCD
never raised the issue until after the district court had entered its
ruling.
¶54 Moreover, CUWCD never alleged that the other parties to
the Agreement breached their contractual obligations. See Parents
Against Drunk Drivers, 789 P.2d at 57 n.8. Rather, it was the Canal
Companies that asserted a breach by CUWCD. CUWCD’s reliance
on Parents Against Drunk Drivers is therefore misplaced. Because
CUWCD failed to preserve its quantum meruit argument before the
district court, we decline to consider it now.
V. THE DISTRICT COURT HAD NO OBLIGATION TO
RECONSIDER ITS RULING
¶55 Following the district court’s entry of summary judgment
in favor of the Canal Companies, CUWCD filed a motion to
reconsider, arguing that the district court’s entry of summary
judgment in favor of the Canal Companies was improper because
there were disputed material facts and the ruling resulted in an
unconscionable forfeiture by CUWCD. The district court ruled that
CUWCD’s “motion to reconsider is not cognizable under Utah law,”
and that CUWCD cannot “ask [it] to revisit its previous ruling
because [CUWCD] believes it now has new and better arguments.”
CUWCD argues that the district court abused its discretion in failing
to grant its motion to reconsider. Until the district court issues a
final order or certifies an order for immediate appeal under rule
54(b), the question of whether to grant or deny a motion to recon-
sider a prior ruling is within its sound discretion, and we will not
disturb such a ruling absent an abuse of that discretion. U.P.C., Inc.
v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 57, 990 P.2d 945.
¶56 The district court did not abuse its discretion when it
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Opinion of the Court
denied CUWCD’s motion to reconsider. The district court denied
CUWCD’s motion on the grounds that CUWCD offered no new and
previously unavailable information.4 A district court is not required
to reconsider its previous rulings merely because a party wishes to
present different arguments, based on previously known facts,
following an adverse ruling by the court. We therefore conclude
that the district court did not err when it refused to grant CUWCD’s
motion to reconsider.
VI. THE DISTRICT COURT DID NOT ERR BY REFUSING TO
ALLOW CUWCD TO AMEND ITS COMPLAINT
¶57 Finally, CUWCD asserts that the district court abused its
discretion when it did not allow CUWCD to amend its complaint to
join URMCC and DOI as parties to the lawsuit. “A trial court’s
determination of whether a party should be joined to an action will
not be disturbed absent an abuse of discretion.” Green v. Louder,
2001 UT 62, ¶ 40, 29 P.3d 638. We hold that the district court did not
abuse its discretion because URMCC and DOI were not necessary
parties.
¶58 Rule 19 of the Utah Rules of Civil Procedure establishes a
two-part procedure to determine whether joinder is required. “First,
the court must ascertain whether a party has sufficient interest in the
action to make it a necessary party. Second, if the court . . . deems
the party necessary to the action, and joinder is unfeasible, the court
must then determine whether the party is indispensable.” Mower v.
Simpson, 2012 UT App 149, ¶ 27, 278 P.3d 1076 (internal quotation
marks omitted); see also Landes v. Capital City Bank, 795 P.2d 1127,
1130 (Utah 1990). But a court is required to address indispensability
under rule 19(b) only if it first finds that joinder of the party is
necessary. Johnson v. Higley, 1999 UT App 278, ¶ 29, 989 P.2d 61.
¶59 Rule 19(a) defines a necessary party as one in whose
“absence complete relief cannot be accorded” or one necessary to
prevent those existing parties from “incurring double, multiple, or
otherwise inconsistent obligations.” The motivation for “requiring
4
CUWCD did proffer an additional affidavit from Daryl Devey,
an O&M Manager for CUWCD. This affidavit was offered to correct
certain facts relating to the functioning of the existing TCC Diver-
sion. However, as the district court correctly noted, any new facts
relating to the existing TCC Diversion are irrelevant. The contract
at issue required CUWCD to construct a new Diversion, which it did
not do.
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Opinion of the Court
joinder of necessary parties is to protect the interests of absent
persons as well as those already before the court from multiple
litigation or inconsistent judicial determinations.” Grand Cnty. v.
Rogers, 2002 UT 25, ¶ 28, 44 P.3d 734 (internal quotation marks
omitted).
¶60 In Gedo v. Rose, the court of appeals held that a father was
a necessary party under rule 19 because the “action [sought] to
divest [the non-party] Father of his parental rights.” 2007 UT App
154, ¶ 7, 163 P.3d 659. Because there was potential that a judgment
could lead to an unrepresented party being deprived of his rights,
and joinder of the father would not deprive the court of its underly-
ing jurisdiction, the court determined that joinder was necessary.
Conversely, in Johnson v. Higley, the court held that joinder of joint
owners of property was unnecessary because liability could only be
imputed to the named defendant. 1999 UT App 278, ¶ 30. The court
found that while the plaintiff may have had claims against other
defendants, the plaintiff’s claims in that case “were expressly
limited” to the named defendant’s acts or omissions. Id. ¶ 33.
Therefore the joint property owners “suffered no risk of future
prejudice” because the named defendant “could not later seek
contribution” and the plaintiff “could not impose multiple or
inconsistent obligations through a later suit.” Id.
¶61 Here, CUWCD asserts that the district court abused its
discretion by refusing to allow it to join URMCC and DOI as
necessary parties. It argues that joinder of these parties was
necessary because the project was intended “to benefit, in part,
federal purposes.” Specifically, CUWCD contends that “URMCC
and DOI were the real parties in interest with the District with
regard to the water rights, and the intended uses of the water
represented by those rights, and their joinder was necessary to
prevent multiple litigation and contradictory claims over ownership
of the water rights.”
¶62 Although CUWCD contends that “all parties understood”
that the intended purpose of the project was to benefit these federal
entities, it offered no evidence to substantiate its assertion. And
even assuming that this was the general understanding of all
parties, CUWCD offered no evidence that URMCC or DOI have any
present interests in the water rights, vested future interests in the
water rights, or interest in any unvested water rights. In short, there
is nothing to suggest that failure to join the DOI and URMCC will
lead to the deprivation of their rights. Accordingly, they are not
necessary parties and our analysis of rule 19 need not continue
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Opinion of the Court
further. Id. ¶ 29 (“Only if the party is necessary, but the court finds
joinder unfeasible, must the court address indispensability under
[r]ule 19(b).”).
¶63 Because neither DOI nor URMCC are necessary parties,
the district court did not abuse its discretion when it denied
CUWCD’s motion to amend its complaint.
CONCLUSION
¶64 CUWCD materially breached its obligation to replace the
TCC Diversion. That breach was not excused under the doctrine of
impracticability or by CUWCD’s purported tender. Nor did
CUWCD preserve its quantum meruit claim. The district court
therefore appropriately entered summary judgment in favor of UEU
and ERB and appropriately denied CUWCD’s request to reconsider.
Finally, the district court did not abuse its discretion when it refused
to allow CUWCD to amend its complaint to add additional parties.
We therefore affirm the judgment of the district court in all respects.
19