Highlands at Jordanelle, LLC v. Wasatch County

2015 UT App 173_________________________________________________________
THE UTAH COURT OF APPEALS
HIGHLANDS AT JORDANELLE, LLC,
Plaintiff, Appellee, and Cross-appellant,
v.
WASATCH COUNTY AND WASATCH COUNTY FIRE PROTECTION
SPECIAL SERVICE DISTRICT,
Defendants, Appellants, and Cross-appellees.
MUSTANG DEVELOPMENT, LLC, ET AL.,
Plaintiffs, Appellees, and Cross-appellants,
v.
WASATCH COUNTY FIRE PROTECTION SPECIAL SERVICE DISTRICT,
Defendant, Appellant, and Cross-appellee.
Opinion
No. 20130445-CA
Filed July 9, 2015
Fourth District Court, Heber Department
The Honorable Fred D. Howard
No. 080500390
Barton H. Kunz II, Tyler V. Snow, Joseph A. Gatton
and Scott H. Sweat, Attorneys for Appellant
Wasatch County
Joseph E. Tesch and Stephanie K. Matsumura,
Attorneys for Appellant Wasatch County Fire
Protection Special Service District
Matthew C. Barneck and Chad E. Funk, Attorneys
for Appellees Highlands at Jordanelle, LLC,
Mustang Development, LLC, et al.
Gavin J. Anderson, Kelly W. Wright, and Bradley
C. Johnson, Attorneys for Amicus Curiae Utah
Association of Counties
Highlands at Jordanelle v. Wasatch County
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
JAMES Z. DAVIS and J. FREDERIC VOROS JR. concurred.
ORME, Judge:
¶1 Wasatch County (the County) and the Wasatch County Fire
Protection Special Service District (the Fire District) appeal the trial
court’s determination that, among other things, the County and the
Fire District must refund fire-protection service fees to certain
landowners. Because we determine that at least some of the service
fees were reasonable, we affirm in part, reverse in part, and
remand to the trial court for further proceedings consistent with
this opinion.
BACKGROUND1
¶2 The Jordanelle Reservoir, located in rural Wasatch County,
was completed in 1995. Landowners wanted to take advantage of
their newly created lakefront property but were stymied by dated
zoning regulations that permitted only one farmhouse per 160
acres. In response, the Wasatch County Commission passed a
resolution that allowed developers to seek a higher building
density by applying for a “density determination.” Once the
County made a density determination, it would grant the
1. The trial court’s final determination of the issues raised in this
appeal resulted from a series of motions and a two-day evidentiary
hearing. Where the trial court granted motions for summary
judgment, we will recite the facts relevant to those motions in the
light most favorable to the nonmoving party. See Orvis v. Johnson,
2008 UT 2, ¶ 6, 177 P.3d 600. Where the trial court resolved
disputed issues following the receipt of evidence, we will recite the
facts in the light most favorable to the trial court’s findings. See Bel
Courtyard Invs., Inc. v. Wolfe, 2013 UT App 217, ¶ 2 n.1, 310 P.3d
747.
20130445-CA 2 2015 UT App 173Highlands at Jordanelle v. Wasatch County
landowners the right to build multiple equivalent residential units
(ERUs) on their property. But because the Jordanelle Reservoir was
far from any existing fire stations, the County also determined that
the developers should pay additional fire-protection service fees to
build an adequate fire station in the area.2
¶3 The Wasatch County Commissioners,3 acting as the board of
the Fire District, then passed Resolution 99-3, which authorized the
Fire District to charge a monthly fee of $14.81 per ERU. Once
landowners had their ERU determination, they were required to
pay the monthly fee whether they started construction on the
property or not. For example, Highlands at Jordanelle, LLC, the
original plaintiff in this case, received a density determination of
376 ERUs. It was therefore required to pay $14.81 per ERU, a total
of $5,568.56 per month, from that point forward.
¶4 To pay down the construction bond for the new fire station
in the Jordanelle area, the Fire District charged additional fees,
which it characterized as “lump-sum fees” or “bond buy-in fees.”
The County originally paid for the new fire station and related
equipment, and the Fire District subleased it from the County. In
2002, the Fire District refinanced the sublease through a twenty-
year bond.
¶5 In 2008, Highlands brought suit against the County and the
Fire District, challenging, among other things, the reasonableness
2. Landowners in Wasatch County already paid for “basic fire
protection services” through property taxes, but the Fire District
determined that the then-remote Jordanelle Reservoir area would
require “services in addition to the basic fire protection services” to
adequately address increased building density.
3. Before January 6, 2003, Wasatch County was governed by a
three-member county commission. It currently consists of a seven-
member county council with a manager. See Wasatch County
Council, http://www.wasatch.utah.gov/Council (last visited July 6,
2015).
20130445-CA 3 2015 UT App 173Highlands at Jordanelle v. Wasatch County
of the fire-protection service fees. Other landowners filed similar
lawsuits, and the lawsuits were eventually consolidated.
¶6 Late in 2010, the landowners moved for partial summary
judgment, asking the court to order a refund of the lump-sum fees
and the monthly fees. The trial court entered an order ruling that
the lump-sum fees were never authorized by Resolution 99-3 and
must be refunded to the landowners. It further determined that
while the monthly fees were authorized by Resolution 99-3, the fees
did not bear a “reasonable relationship to the actual costs of
providing the services.” Accordingly, the trial court ordered a
refund of the monthly fees as well.
¶7 In 2011, after the trial court ordered that all of the fees be
refunded but before the fees were actually refunded, the Fire
District used $1,450,000 to pay off the fire station bond completely,
eleven years ahead of schedule. The County then conveyed title to
the fire station to the Fire District.
¶8 Over the next two years, the trial court determined, among
other things, that the County was jointly liable with the Fire District
and that the two entities must refund all the fees in full. It also
determined that several of the landowners had paid both monthly
and lump-sum fees more than four years before filing their lawsuits
and were therefore barred from recovering those amounts by the
applicable statute of limitations.
ISSUES AND STANDARDS OF REVIEW
¶9 On appeal, the County and the Fire District assert that the
trial court erred by granting the landowners’ motion for partial
summary judgment and ordering a refund of the monthly fees.4 We
4. During oral argument before this court, the County and the Fire
District candidly conceded that the lump-sum fees were not
(continued...)
20130445-CA 4 2015 UT App 173Highlands at Jordanelle v. Wasatch County
review a trial court’s legal conclusions and ultimate grant or denial
of summary judgment for correctness. Orvis v. Johnson, 2008 UT 2,
¶ 6, 177 P.3d 600.
¶10 The County asserts that the trial court incorrectly
determined that the County was jointly liable with the Fire District
for the lump-sum fees and the monthly fees. A trial court’s
interpretation of “precedent, statutes, and the common law are
questions of law that we review for correctness.” Ellis v. Estate of
Ellis, 2007 UT 77, ¶ 6, 169 P.3d 441.
¶11 Both the County and the Fire District challenge the trial
court’s grants of summary judgment in favor of the landowners,
the court’s awards of attorney fees and expert-witness fees, and the
addition of prejudgment interest on the lump-sum fee and monthly
fee refunds. As just mentioned, we review a trial court’s legal
conclusions and ultimate grant or denial of summary judgment for
correctness. Orvis, 2008 UT 2, ¶ 6.
¶12 The landowners filed a cross-appeal, arguing that the trial
court erred in concluding that the discovery rule did not toll the
statute of limitations for some of the landowners’ claims. The
applicability of a statute of limitations and the applicability of the
discovery rule raise questions of law that we review for
correctness. Colosimo v. Roman Catholic Bishop of Salt Lake City, 2007
UT 25, ¶ 11, 156 P.3d 806.
¶13 The landowners also appeal the trial court’s determination
that, under rule 15(c) of the Utah Rules of Civil Procedure, one of
the landowners’ refund claims did not relate back to the original
complaint and was therefore untimely. We review a trial court’s
4. (...continued)
authorized by Resolution 99-3 and were therefore indefensible. The
Fire District’s counsel stated, “I knew the lump-sum fees were sort
of trying to make up fees for the bond, . . . but I don’t think I can
defend them here today because they’re not within the resolution.”
20130445-CA 5 2015 UT App 173Highlands at Jordanelle v. Wasatch County
rule 15(c) analysis for correctness.5 Gary Porter Constr. v. Fox Constr.,
Inc., 2004 UT App 354, ¶ 31, 101 P.3d 371.
ANALYSIS
A. Reasonableness of the Monthly and Lump-sum Fees
¶14 The County and the Fire District challenge the trial court’s
determination that the monthly fees were not reasonably related to
the cost of the services provided and that therefore they must be
refunded.
¶15 Utah law permits special service districts, like the Fire
District, to impose “fees or charges for any commodities, services,
or facilities provided by the service district.” Utah Code Ann.
§ 17A-2-1320(1)(a) (Lexis 1999).6 To impose a fee, a district must
5. The parties have all raised additional issues. The Fire District
claims that the four-year statute of limitations was not the
applicable statute; that the monthly fees were, in fact, taxes; that the
landowners’ claims are barred by equitable estoppel; and that the
trial court’s interpretation of Resolution 99-3 should only apply
prospectively. The County and the Fire District both argue that if
fees are refunded, they should be offset by the value of the fire-
protection services the landowners have received. Finally, the
landowners assert that the trial court erred in awarding attorney
fees only against the Fire District and not against the County as
well. The way in which we resolve the principal issues in this case
renders many of these additional issues irrelevant, or at least
limited in their application. Accordingly, we will, as appropriate,
either address them in the context of the principal issues or decline
to address them at all.
6. Utah Code sections 17A-2-1320, 17A-2-1313, and 17A-1-203 have
been either repealed or renumbered. Accordingly, for these
(continued...)
20130445-CA 6 2015 UT App 173Highlands at Jordanelle v. Wasatch County
first give proper notice of the proposed fee, hold a public hearing,
and then pass a resolution authorizing the fee. See id. § 17A-1-
203(1). Even with a valid authorizing resolution, however, the fee
must still be reasonable. “To be a legitimate fee for service, the
amount charged must bear a reasonable relationship to the services
provided, the benefits received, or a need created by those who
must actually pay the fee.” V-1 Oil Co. v. Utah State Tax Comm’n,
942 P.2d 906, 911 (Utah 1996), vacated in part on other grounds, 942
P.2d 906 (Utah 1997). The Utah Supreme Court has also recognized
that the benefits and costs of some municipal services are hard to
quantify:
The nature of the service or benefit provided may
also make it difficult or impossible to distribute the
services or benefits equally to all who pay the fee. For
such a fee to be reasonable, we have directed that it
should be fixed so as to be equitable in light of the
relative benefits conferred as well as the relative
burdens imposed.
Id. at 911–12 (internal citation omitted). Additionally, our Supreme
Court determined that “fixing the amount of a fee is a legislative
act to which we grant great deference.” Id. at 917.
¶16 Considering the difficultly of fairly assessing fire-protection
and related emergency-service fees and the great deference owed
to the Fire District in adopting the legislation in question, we
cannot agree that the monthly fees were unreasonable. The trial
court determined that the monthly fees were unreasonable because
the density determination alone did not authorize construction and
therefore did not immediately create any additional costs. But the
rule of V-1 Oil is that the fee must be related to the cost of
6. (...continued)
sections only, we cite the version of the code that was in effect at
the time the Fire District was created. We otherwise cite the current
version of the annotated code.
20130445-CA 7 2015 UT App 173Highlands at Jordanelle v. Wasatch County
providing the service or to the benefit conferred or to the need
created by those who pay the fee. See id. at 911. The trial court may
be correct that the cost of providing fire-protection services to the
undeveloped land did not immediately increase. But the benefit
conferred on the landowners and the need created by the
landowners did increase following the density determinations.
¶17 The benefit conferred upon the landowners was significant.
Once the landowners received their density determinations, they
had a vested right to increased building density—in the case of
Highlands, increasing its ability to develop the land to 376 ERUs.
The density determination made the landowners’ property
instantly more marketable, more amenable to development, and
much more valuable. The fact that the area was well provisioned
with a nearby fire station paid for with those fees made any
potential development subject to lower fire-insurance premiums.
The landowners also benefitted in ways that are harder to quantify,
such as enjoying increased safety and peace of mind and being able
to market those features to prospective purchasers.
¶18 For these benefits conferred upon the landowners, we think
that a fixed fee of $14.81 per ERU, while necessarily somewhat
arbitrary, is not an obviously unreasonable fee. And we are not
alone. Indeed, the Fire District entered into negotiations with the
original landowners to balance their desire for increased density
with the concurrent need of increased fire-protection services. The
result was Resolution 99-3, authorizing the monthly fee. The fact
that the original landowners agreed to the monthly fee is further
evidence of its reasonableness.
¶19 The fee was also reasonably related to the “need created” by
the landowners’ aspirations to develop the area. See id. The trial
court erred in ignoring the “need created,” which can admittedly
be difficult to quantify, instead focusing only on the cost of
providing fire protection and related services. Unlike costs for
some kinds of municipal services, which can be calculated after the
fact, the need for fire-protection services must be anticipated. It
would be wholly unreasonable for the Fire District to have to wait
20130445-CA 8 2015 UT App 173Highlands at Jordanelle v. Wasatch County
until construction began and a fire broke out before it could charge
any fees for fire-protection services to the area. Instead, the Fire
District necessarily had to anticipate the need created by the
increased density determinations. It had to build a new fire station
and properly staff and equip it. This could not have been done at
the very moment that the increased need was fully realized in the
form of an inferno consuming actual buildings with actual
occupants. Rather, the Fire District wisely treated the inevitability
of fires and other emergencies in the area as a need that required
action before structures were built and occupied, before a fire broke
out, and before emergency services were required. By focusing
solely on the cost of the services provided, the trial court failed to
appreciate the need created by the increased density allowances.
Considering the “great deference” owed to the Fire District in
setting the fee in anticipation of future development, we must
conclude that the fee is reasonable. See V-1 Oil, 942 P.2d at 917.
¶20 The trial court also took exception to the fact that the
monthly fee was not “apportioned among properties” according to
their level of development. But in V-1 Oil, our Supreme Court
explicitly recognized the difficulty in distributing some types of
services or benefits equally among all who pay the required fee. Id.
at 911–12. Fire-protection service fees fall into this category. In the
most narrow sense, the only true consumers of fire-protection
services are those who have a fire. And yet, firefighters do not
usually leave a bill for services rendered after they have
extinguished a fire. Rather, it is standard for communities—often
organized through special service districts—to pay for fire-
protection services as a group and in a prospective manner, not
individually and on an as-needed basis.7 In such a situation, our
7. Fire-protection services are on a qualitatively different footing
from some other municipal services, where the cost–benefit
relationship is more obvious and easier to keep in balance.
Providing metered culinary water or weekly collection of trash in
provided bins come to mind. Citizens who use less water should
(continued...)
20130445-CA 9 2015 UT App 173Highlands at Jordanelle v. Wasatch County
Supreme Court has determined that a service fee can still be
reasonable if it is “fixed so as to be equitable in light of the relative
benefits conferred as well as the relative burdens imposed.” Id. at
912. In this case, the fee is fixed at $14.81 per ERU. And, as we have
previously discussed, this fixed fee is equitable in light of the
benefits conferred upon the landowners and in light of the need
created by the landowners’ increased density determinations, even
though it cannot be said with any confidence that $14.75 would be
too low or that $14.99 would be too high.
¶21 The landowners contend, however, that even if the fixed
amount of the fee is reasonable, it should have been assessed
gradually at each stage of development, i.e., at one rate when
rough grading begins, at another when vertical construction
begins, and at a yet higher rate when an occupancy permit is
issued. This may, in fact, have been a fine way to assess the cost of
the fire-protection services, but that does not mean that the Fire
District’s decision to charge a fixed fee beginning with the density
determination was unreasonable. It was within the discretion of the
Fire District, foreseeing sustained development in a popular
recreation area, to provide essential services in anticipation of
future needs.
¶22 The landowners received a benefit reasonably related to the
monthly fees they paid. The Fire District reasonably assessed its
current needs in light of the expectation of future development.
Finally, the fixed rate of the monthly fee was reasonable
considering the difficulty of apportioning fire-protection costs.
Accordingly, we reverse the trial court’s decision that the County
and the Fire District must refund the monthly fees.
7. (...continued)
pay less. Citizens who require two trash bins instead of the usual
one should pay more. But all citizens benefit from the ready
availability of fire protection whether they ever need the service or
not. To shift the cost of providing that service to the comparative
handful of people who need a house fire extinguished would be
untenable.
20130445-CA 10 2015 UT App 173Highlands at Jordanelle v. Wasatch County
¶23 The lump-sum fees, however, are a different matter.
Resolution 99-3 never authorized such a charge, and both the
County and the Fire District conceded during oral argument that
the lump-sum fees are indefensible. We therefore affirm the trial
court’s ruling that the lump-sum fees are invalid and remand to the
trial court to determine the amount that must now be refunded.
Unless otherwise stated, our analysis from this point forward will
focus on the lump-sum fees—the only fees remaining at issue given
our decision upholding the monthly fees.
B. The County’s Joint Liability
¶24 The trial court determined that the County was jointly liable
with the Fire District for the refund of fees. The County, however,
asserts that the Fire District is a legally separate entity whose
actions cannot be imputed to the County.
¶25 Under Utah law, a special service district is a “quasi-
municipal corporation” and a “political subdivision of the state”
that is “separate and distinct from the county . . . that creates it”
and that “may sue and be sued.” See Utah Code Ann. § 17D-1-
103(1) (LexisNexis Supp. 2014); Tribe v. Salt Lake City Corp., 540 P.2d
499, 503 (Utah 1975). As a special service district, then, the Fire
District is separate and distinct from the County. Therefore, the Fire
District’s collection of unauthorized lump-sum fees cannot be
attributed to the County. The landowners assert, however, that
even if the County and the Fire District are separate entities, the
County’s control over the Fire District creates vicarious liability.
Analogizing to municipal liability for the acts of independent
contractors, the landowners argue that if “the municipality retains
complete supervision and control over the manner of doing the
work in detail or over the employees, it is liable.” See 18 Eugene
McQuillin, The Law of Municipal Corporations § 53:77.47 (3d ed.
2013).
¶26 Indeed, by statute, the County Commission or County
Council, at all relevant times, acted as the governing board of the
20130445-CA 11 2015 UT App 173Highlands at Jordanelle v. Wasatch County
Fire District and in this capacity controlled and had supervisory
authority over all of the Fire District’s activities. See Utah Code
Ann. § 17A-2-1313(2) (Lexis 1999). In this specific case, however,
the Fire District charged a fee that was not authorized by
Resolution 99-3. Furthermore, the County never collected or
otherwise received the fees, except in the case of delinquency, as
required by statute. See id. § 17B-1-902(1)(b) (LexisNexis 2013)
(providing that “the past due fees and charges . . . become a lien on
the customer’s property . . . on a parity with and collectible at the
same time and in the same manner as general county taxes”). In
this case, we do not see the kind of control that would create
vicarious liability between two legally separate and distinct entities,
even though they shared a governing board.8 We therefore reverse
8. We note, however, that if a municipality were to intentionally
interfere with a special service district’s ability to pay a judgment,
it could constitute the kind of control that would create vicarious
liability, notwithstanding the separate and distinct nature of the
two entities. The landowners have pointed out that, after the trial
court ordered a refund of the fees but before the refunds were paid,
the County Council, acting as the governing board of the Fire
District, chose to empty the Fire District’s coffers of nearly $1.5
million to pay off the bond for the fire station eleven years early. In
fact, the Fire District argues that refunding the fees would be a
hardship because the fire-protection fees have already been
expended. Our determination in this case that the County is
separate and distinct from the Fire District and has not exercised
the kind of control that would create vicarious liability does not
imply that a county government may shift funds from a special
service district to the county in an effort to make the special service
district judgment-proof, and thus allow both entities, separate as
they may be, to avoid all liability. The record on appeal does not
convince us that this happened here. However, upon remand, if the
trial court determines that the Fire District is unable to refund the
lump-sum fees because of the early bond payoff, the trial court may
take appropriate measures, including, if necessary, requiring the
(continued...)
20130445-CA 12 2015 UT App 173Highlands at Jordanelle v. Wasatch County
the trial court’s determination that the County should be jointly
liable for the refund of the fees.9
C. Prejudgment Interest
¶27 The County and the Fire District argue that the trial court
erred when it awarded prejudgment interest to the landowners for
the refunded fees, set at 10% per year. In general, prejudgment
interest “may be recovered where the damage is complete, the
amount of the loss is fixed as of a particular time, and the loss is
measurable by facts and figures.” Saleh v. Farmers Ins. Exch., 2006
UT 20, ¶ 28, 133 P.3d 428. Furthermore, “[w]hen a party proves that
its damages were fixed at a particular point in time—even when it
does not establish that proof until trial—that party is entitled to the
benefit of its money from that time. Prejudgment interest remedies
this injury.” AE, Inc. v. Goodyear Tire & Rubber Co., 576 F.3d 1050,
1058 (10th Cir. 2009).
¶28 Because of our earlier conclusion that only the lump-sum
fees should be refunded, the amount of the refunds will be
ascertained by the trial court on remand. This does not mean,
however, that the amount of the refunds are not already complete,
fixed, and measurable. See id. (discussing Utah case law and
concluding that “prejudgment interest may be appropriate even if
the amount of damages are ascertained at trial”).
¶29 The damages resulting from the unauthorized lump-sum fee
payments were complete when the landowners paid the fees. The
amount of damages were “fixed as of a particular time,” i.e., at the
moment of payment. Saleh, 2006 UT 20, ¶ 28. Finally, the lump-sum
8. (...continued)
County to disgorge any savings that may have been realized
through the early bond payoff.
9. Because we conclude that the County is not jointly liable, it
follows that the landowners are not entitled to an award of
attorney fees against the County.
20130445-CA 13 2015 UT App 173Highlands at Jordanelle v. Wasatch County
fees are measurable by simple mathematical calculations. See id.Accordingly, we affirm the trial court’s grant of prejudgment
interest but only as it applies to the lump-sum fees, which the Fire
District is obligated to refund.10
¶30 The County and the Fire District also argue that the 10%
annual interest rate was too high and that the interest should be
calculated from the date of the trial court’s order and not from the
date of the landowners’ payments. Utah Code section 15-1-1 sets a
default interest rate for most contracts at 10% per year. See Utah
Code Ann. § 15-1-1(2) (LexisNexis 2013). The County argues,
however, that the payment of the unauthorized lump-sum fees was
more analogous to an overpayment of taxes and that the rate
should be “two percentage points above the federal short-term
rate,” according to Utah Code section 59-1-402(3)(a). The question,
then, is whether the lump-sum fees were contractual in nature or
more akin to a tax.
¶31 We determine that the lump-sum fees were contractual. We
recognize that service fees, unlike taxes, “must bear a reasonable
relationship to the services provided, the benefits received, or a
need created by those who must actually pay the fee.” V-1 Oil Co.
v. Utah State Tax Comm’n, 942 P.2d 906, 911 (Utah 1996), vacated in
part on reh’g, 942 P.2d 906 (Utah 1997). This is similar to the quid
pro quo aspect of a contract. In its briefing, the Fire District even
frames the issue of the lump-sum fees in terms of contract or quasi-
contract. First, while the Fire District argues that the monthly fees
10. The County and the Fire District argue that the fee refunds
should be offset by the value of the fire-protection services the
landowners have received. But the lump-sum fees were never
authorized and should not be offset by a benefit for which the
landowners have already paid through their monthly fees, which
we have determined are reasonable, and their property taxes. If the
Fire District finds that $14.81 per ERU is insufficient to provide
adequate fire-protection services, Resolution 99-3 permits the Fire
District to raise the fixed monthly rate as necessary. Therefore, the
lump-sum fees should be refunded without any offset.
20130445-CA 14 2015 UT App 173Highlands at Jordanelle v. Wasatch County
were, in fact, taxes masquerading as fees, it specifically declines to
make the same argument regarding the lump-sum fees. Instead, the
Fire District asserts that contract principles or equitable estoppel
should have precluded the landowners’ claims. The Fire District
writes:
As a result of [the landowners’] promises,
statements, and agreements, a bond was issued to
fund the construction of a new fire station, and
provisions were made to staff it with full-time fire
fighters and EMTs, to purchase the necessary
equipment, and to operate and maintain the newly
constructed station. None of these events would have
occurred, but for the consent and agreement of the
developers to provide the revenue for the repayment
of the bond and reimbursement of the operation and
maintenance costs.
According to the Fire District’s description, the landowners paid
the lump-sum fees or “bond buy-in fees” as part of an agreement
that the Fire District would use those funds to build and maintain
a fire station in the Jordanelle Reservoir area. This characterization
of the fees suggests that they are more analogous to contractual
obligations than to taxes. Because the lump-sum fees in this context
were more similar to a contract than to a tax, we conclude that the
trial court was correct to apply the statutory default interest rate
for most contracts, including this one, i.e., 10% per year.
¶32 Additionally, we affirm the trial court’s decision to calculate
the prejudgment interest from the date on which the landowners
paid the lump-sum fees. It is equitable to do so because the
moment of payment was the precise moment at which the
landowners were deprived of their funds through an admittedly
indefensible fee. There is no reason why the Fire District should be
allowed to benefit from its own error. Indeed, the Fire District used
the unauthorized fees to help pay off the fire station bond eleven
years early and thereby greatly reduced the amount of interest it
would have otherwise paid on the bond. The most appropriate
20130445-CA 15 2015 UT App 173Highlands at Jordanelle v. Wasatch County
resolution is to calculate the prejudgment interest from the moment
the lump-sum fees were paid—a task which will be a
straightforward calculation once the dates and amounts of the
unauthorized payments are established.
¶33 We affirm the trial court’s grant of prejudgment interest at
10% per year starting from the day the various landowners paid
their lump-sum fees. We remand to the trial court to calculate the
prejudgment interest as it applies to the lump-sum fee refunds
only.
D. Attorney Fees
¶34 The Fire District asserts that the trial court erred by
awarding attorney fees to Highlands, the original plaintiff in this
case, under the private-attorney-general doctrine.
¶35 Generally speaking, under Utah law a party is entitled to an
award of its attorney fees only if it is authorized by contract or by
statute. Culbertson v. Board of County Comm'rs, 2008 UT App 22, ¶ 9,
177 P.3d 621. However, a court may, by exercising its inherent
equitable powers, award attorney fees to a party that has acted as
a private attorney general for the benefit of the public. See id. To
determine if a plaintiff is acting as a private attorney general, a
court should consider whether (1) the plaintiff has vindicated an
“important public policy,” (2) the plaintiff’s “necessary costs in
doing so transcend the individual plaintiff’s pecuniary interest to
an extent requiring subsidization,” and (3) the circumstances are
exceptional. See id. (citations and internal quotation marks omitted).
¶36 Considering, as we must, only the lump-sum fees, we
determine that Highlands has vindicated an important public
policy. The Fire District acted beyond its statutory authority in
charging an unauthorized fee—not just to Highlands, but to other
developers in the Jordanelle Reservoir area. The Fire District asserts
that no other developer complained about the unauthorized fees
for almost nine years. But if it were not for Highlands originally
bringing its lawsuit, the Fire District may well have continued to
20130445-CA 16 2015 UT App 173Highlands at Jordanelle v. Wasatch County
charge the invalid fee for years to come. Highlands’ efforts have
not only spared all developers in the Jordanelle Reservoir area
from paying an unlawful fee, but they have also helped the Fire
District to comply with the law and act within its statutorily
granted authority. These are important public interests that weigh
heavily in Highlands’ favor.
¶37 We also determine that these are exceptional circumstances.
In Stewart v. Utah Public Service Commission, 885 P.2d 759 (Utah
1994), a public utility was charging its ratepayers an unlawfully
high fee. See id. at 783. Some ratepayers challenged the fee in court,
and they were opposed by both the public utility and the Utah
Public Service Commission. Id. at 762. The Utah Supreme Court
determined that the circumstances there were exceptional enough
to warrant the equitable award of attorney fees under the private-
attorney-general doctrine. Id. at 783 & n.19.
¶38 The exceptional circumstances in this case are similar to the
exceptional circumstances in Stewart. Here, the Fire District
continued to bill the unauthorized lump-sum fees even after the
trial court ordered it to refund the fees to the landowners in
November 2010. In its brief, the Fire District argued that the
landowners should have been precluded from even challenging the
lump-sum fees under a theory of promissory estoppel. It was not
until oral argument before this court that the Fire District
definitively conceded that the lump-sum fees were unauthorized
and indefensible. As a result, Highlands has had to undertake
sustained, determined efforts to vindicate the right to a refund of
the lump-sum fees. We conclude that these circumstances are
exceptional and weigh in favor of awarding attorney fees to
Highlands.
¶39 Remand for further consideration of this issue is, however,
necessary. In general, attorney fees may be granted in cases of
“partial success,” see Stacey Props. v. Wixen, 766 P.2d 1080, 1085
(Utah Ct. App. 1988) (dealing with contractual attorney fees), but
care must be taken to “differentiate between the time spent on the
successful claim and the time spent on unsuccessful claims,” see
20130445-CA 17 2015 UT App 173Highlands at Jordanelle v. Wasatch County
Graco Fishing & Rental Tools, Inc. v. Ironwood Exploration, Inc., 766
P.2d 1074, 1080 (Utah 1988). Care will have to be used in
identifying the attorney fees that are properly allocable to securing
a refund of the lump-sum fees. We have determined that
Highlands and the other developers must pay the legitimate
monthly service fee, so Highlands will have to bear its own
attorney fees insofar as allocable to that and the other issues on
which it was not successful.
¶40 Once the trial court has determined the amount of attorney
fees Highlands incurred in vindicating its right to a refund of the
lump-sum fees, it can undertake the analysis required by the
second Culbertson factor, comparing the fees incurred to the
amount recovered so as to gauge whether “subsidization” is in
order. See 2008 UT App 22, ¶ 9. The trial court should also calculate
the attorney fees reasonably incurred by Highlands on appeal,
insofar as allocable to the lump-sum fee issue on which it
prevailed.11 If the “necessary costs of litigation . . . transcend
[Highlands’] pecuniary interest” to a degree that warrants attorney
11. Generally, when a party who received attorney fees below
pursuant to a contract or a statute prevails on appeal, the party is
also entitled to reasonable attorney fees incurred on appeal. See
Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998). In this case,
however, we are reviewing the equitable award of attorney fees
under the private-attorney-general doctrine. This kind of equitable
relief is an inherent power of the court, see Culbertson v. Board of
County Comm'rs, 2008 UT App 22, ¶ 9, 177 P.3d 621, and can, under
certain circumstances, be awarded on appeal even if not raised
below, see Stewart v. Utah Pub. Serv. Comm'n, 885 P.2d 759, 781, 783
(Utah 1994). Therefore, the question of who has prevailed on the
overall appeal is largely irrelevant to the award of attorney fees in
this case. Instead, the decision to award attorney fees incurred on
appeal under the private-attorney-general doctrine should be
based on the same three factors described in Culbertson, 2008 UT
App 22, ¶ 9, i.e., (1) vindication of an important public policy, (2)
necessary costs of litigation that transcend pecuniary interest, and
(3) exceptional circumstances.
20130445-CA 18 2015 UT App 173Highlands at Jordanelle v. Wasatch County
fees under the private-attorney-general doctrine, the trial court
should award them.12 See Culbertson v. Board of County Comm’rs,
2008 UT App 22, ¶ 9, 177 P.3d 621.
E. The Discovery Rule
¶41 Mountain Resort Land Company, LLC, one of the
landowners, argues in a cross-appeal that the trial court incorrectly
denied its claim for a lump-sum fee refund as untimely.13 Mountain
Resort asserts that the equitable discovery rule should have tolled
the four-year statute of limitations.14
12. We caution, however, that the comparison of the necessary
costs to the pecuniary interest is only for the purpose of
determining whether attorney fees will be granted under the
private-attorney-general doctrine and should not be used as a basis
for setting the amount of attorney fees. In determining the amount
of awardable fees, it is generally a mistake of law to adjust the
amount of otherwise reasonable attorney fees based on the amount
of the recovery. See Dixie State Bank v. Bracken, 764 P.2d 985, 991
(Utah 1988).
13. Pigeonhole Development, LLC, and Mustang Development,
LLC, join Mountain Resort in this cross-appeal. However,
Pigeonhole’s and Mustang’s claims involve only monthly fees.
Because we have already determined that the monthly fees were
valid, we do not address the discovery rule as it applies to their
claims.
14. The Fire District also challenges the trial court’s determination
that a four-year statute of limitations applied. Although its
argument is not entirely clear, the Fire District appears to argue
that either a thirty-day or a six-month statute of limitations should
apply to all of the service fees, including the lump-sum fees,
because the fees were not service charges but “availability fees”
that are “more akin to a generally applicable tax.” We disagree. The
Fire District admits that there is no resolution authorizing the
(continued...)
20130445-CA 19 2015 UT App 173Highlands at Jordanelle v. Wasatch County
¶42 Before determining whether the equitable discovery rule
applies, “the plaintiff must make an initial showing that he did not
know nor should have reasonably known the facts underlying the
cause of action in time to reasonably comply with the limitations
period.” Berneau v. Martino, 2009 UT 87, ¶ 23, 223 P.3d 1128.
Knowledge of the underlying facts may be actual or constructive.
Id. After the initial showing,
[f]or the equitable discovery rule to apply, one of two
situations must exist: (1) “a plaintiff does not become
aware of the cause of action because of the
defendant’s concealment or misleading conduct” or
(2) “the case presents exceptional circumstances and
the application of the general rule would be irrational
or unjust, regardless of any showing that the
defendant has prevented the discovery of the cause
of action.”
Id. (quoting Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 25,
108 P.3d 741).
¶43 In this case, it appears that Mountain Resort has made its
initial showing that it did not reasonably know that the lump-sum
fees were invalid until it learned of Highlands’ lawsuit against the
14. (...continued)
lump-sum fees, but the only possible rationale for the lump-sum
fees would have been pursuant to Resolution 99-3. The whole
purpose of the resolution was to set a “fire protection service
charge.” Resolution 99-3 also cites Utah Code section 17A-2-1320,
titled “Fees or charges,” as its authority to assess the service fees.
We readily conclude that the lump-sum fees were service fees, not
taxes, and that the trial court correctly applied a four-year statute
of limitations. See Ponderosa One Ltd. P'ship v. Salt Lake City
Suburban Sanitary Dist., 738 P.2d 635, 637–38 (Utah 1987) (per
curiam) (determining that a sewer service charge was a service fee,
not a tax or assessment, and therefore subject to a four-year statute
of limitations).
20130445-CA 20 2015 UT App 173Highlands at Jordanelle v. Wasatch County
Fire District and the County. Nothing in the record indicates that
Mountain Resort had actual notice that the fees were invalid until
after Highlands began litigation in 2008. Nor did Resolution 99-3
provide Mountain Resort with constructive knowledge of the
underlying fact, i.e., that there was no authorizing resolution or
legislative act to justify the lump-sum fees. While Resolution 99-3
explicitly authorized monthly fees, it is silent on the validity or
invalidity of the lump-sum fees. From all that appears, however,
Mountain Resort could have reasonably assumed that the lump-
sum fees were authorized by some other resolution.
¶44 The Fire District argues that we should indulge the general
presumption that “all men . . . know the law,” see Board of Educ. v.
Jeppson, 280 P. 1065, 1069 (Utah 1929), and that therefore Mountain
Resort should have known that the fees were invalid. Assuming,
however, that there was a law that would indicate the underlying
fact—that the lump-sum fees lacked statutory support—this
presumption would also apply to the Fire District. Under the same
reasoning, we would presume that the Fire District knew the lump-
sum fees were illegal and charged the landowners anyway. We are
disinclined to indulge a presumption that would cast a
governmental entity’s actions in such a poor light. Indeed, the Fire
District defended itself against such an implication before the trial
court, arguing that “it was not until Highlands challenged the fees
and clearly stated its argument in 2010 that the Fire District was put
on notice that the [lump-sum] fees may not be collectible.”
Therefore, we conclude that Resolution 99-3’s silence on the subject
of lump-sum service fees did not provide constructive notice of the
underlying invalidity of the fees to either the Fire District or
Mountain Resort. Accordingly, we determine that Mountain Resort
has made its initial showing that it did not know, nor should it
have known, that the lump-sum fees lacked statutory support until
it learned of Highlands’ lawsuit.15
15. Public policy concerns further bolster this conclusion. Utah law
has favored policies that encourage landowners to promptly pay
their service charges and taxes. See Edwards v. Powder Mountain
(continued...)
20130445-CA 21 2015 UT App 173Highlands at Jordanelle v. Wasatch County
¶45 We now consider whether the equitable discovery rule is
applicable. Mountain Resort does not appear to claim that the Fire
District intentionally misled it or concealed information from it
regarding the validity of the lump-sum fees. See Berneau, 2009 UT
87, ¶ 23. Therefore, we must determine whether there are
“exceptional circumstances” in which “the application of the
general rule would be irrational or unjust.” See id. (citation and
internal quotation marks omitted). In determining whether
exceptional circumstances exist, we weigh the “hardship the statute
of limitations would impose on the plaintiff in the circumstances of
that case” against “any prejudice to the defendant from difficulties
of proof caused by the passage of time.” Myers v. McDonald, 635
P.2d 84, 87 (Utah 1981).
¶46 We have already determined, in the context of attorney fees,
that these circumstances are exceptional. See supra ¶¶ 37–38. In
weighing whether the “hardship the statute of limitations would
impose on the plaintiff” outweighs “any prejudice to the defendant
from difficulties of proof caused by the passage of time,” Myers, 635
P.2d at 87, we have no doubt that the lump-sum fees are
indefensible and that but for the statute of limitations, Mountain
Resort would be entitled to a refund. Because the statute of
limitations would bar Mountain Resort from an otherwise
uncontested recovery, we conclude that the statute imposes a
substantial hardship. On the other side of the scale, we consider
15. (...continued)
Water & Sewer, 2009 UT App 185, ¶¶ 17–19, 214 P.3d 120(determining that delinquent water and sewer fees must be paid
before the plaintiff has standing to challenge their validity). Cf.
Utah Code Ann. § 59-2-1327 (LexisNexis 2011) (requiring a person
who claims that a property tax is unlawful to first pay the tax
under protest and later challenge the validity of the tax in court).
Indeed, absent actual or constructive notice that a service fee is
invalid, a customer is entitled to assume the validity of the service
fee and pay it in a timely fashion. In this case, Mountain Resort
should not be penalized for doing just that.
20130445-CA 22 2015 UT App 173Highlands at Jordanelle v. Wasatch County
how the passage of time has increased the difficulty of the Fire
District’s defense of the lump-sum fees. We conclude that the
passage of time has not prejudiced the Fire District in the least.
Indeed, it has conceded that the lump-sum fees are indefensible.
No evidence or legal defense was available to the Fire District that
is now unavailable as a result of the passage of time. Considering
the substantial hardship imposed on Mountain Resort and the lack
of prejudice resulting to the Fire District, we conclude that these are
exceptional circumstances that warrant the application of the
discovery rule to moderate the harsh result of applying the statute
of limitations. We reverse the trial court’s decision not to apply the
discovery rule to toll the statute of limitations but only as it applies
to Mountain Resort’s claim for a refund of the lump-sum fees it
paid.16
F. Relation Back of Claims
¶47 Pigeonhole Development, LLC, one of the cross-appellants,
argues that the trial court erred in determining that one of its
claims did not relate back to its original complaint and was, for that
reason, untimely. After Pigeonhole purchased the right to bring
claims on behalf of Prime West Jordanelle, LLC, it filed its first
16. In balancing the equities, we also recognize that the Fire District
rightly deserves the predictability of a clearly applicable statute of
limitations. Unrestricted exemptions from the statute of limitations
under circumstances similar to these may encourage ongoing
litigation in a way that is inequitable toward the Fire District.
Fortunately, this should not be the case here. We note that the trial
court’s decision on November 10, 2010, ordering a refund of the
lump-sum fees, provided constructive notice, if not actual notice,
to all potential claimants. As of November 10, 2014, the four-year
statute of limitations has run for any lump-sum fee payments that
occurred before November 10, 2010, even with the application of
the discovery rule. As a practical matter, the class of plaintiffs that
could benefit from a tolling of the statute of limitations based on
the discovery rule has now closed. The Fire District can now plan,
budget, and fix its fees accordingly.
20130445-CA 23 2015 UT App 173Highlands at Jordanelle v. Wasatch County
complaint against the Fire District and the County on November 8,
2010. More than a year later, on November 22, 2011, Pigeonhole
purchased additional refund claims from PWJ Holdings, LLC,
through PWJ’s bankruptcy trustee. Pigeonhole then attempted to
amend its complaint to include its claims obtained from PWJ.
However, applying rule 15(c) of the Utah Rules of Civil Procedure,
the trial court concluded that “Pigeonhole as successor in interest
to PWJ’s claims does not share an identity of interest with
Pigeonhole as successor in interest to the claims of Prime West.” It
therefore denied the PWJ claims as untimely.
¶48 Rule 15(c) of the Utah Rules of Civil Procedure provides:
Whenever the claim or defense asserted in the
amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to
be set forth in the original pleading, the amendment
relates back to the date of the original pleading.
Utah R. Civ. P. 15(c). Generally, rule 15(c) does not apply to an
amendment that “substitutes or adds new parties for those brought
before the court by the original pleadings” because it “would
amount to the assertion of a new cause of action.” Doxey-Layton Co.
v. Clark, 548 P.2d 902, 906 (Utah 1976). However, under limited
circumstances, a new party may relate its claim back to the original
complaint in the event of a “misnomer case” or if there is a “true
identity of interest” between the new party and the original party.
Wright v. PK Transp., 2014 UT App 93, ¶ 5, 325 P.3d 894 (citation
and internal quotation marks omitted).
¶49 A true identity of interest exists if (1) “‘the amended
pleading alleged only claims that arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in
the original pleading’” and (2) the defendant had received actual
or constructive notice that the new plaintiff “‘would have been a
proper party to the original pleading such that no prejudice would
result’” from preventing the defendant from using a statute-of-
20130445-CA 24 2015 UT App 173Highlands at Jordanelle v. Wasatch County
limitations defense that otherwise would have been available.
Ottens v. McNeil, 2010 UT App 237, ¶ 43, 239 P.3d 308 (quoting Gary
Porter Constr. v. Fox Constr., Inc., 2004 UT App 354, ¶ 40, 101 P.3d
371) (applying the identity-of-interest test to a plaintiff who sought
to add an additional defendant). See Doxey-Layton, 548 P.2d at 906
(explaining that the identity-of-interest exception applies to “both
plaintiff and defendant”).
¶50 On cross-appeal, Pigeonhole contends that its attempt to
amend the complaint to add the PWJ claims did not add a new
party. After purchasing the claims from Prime West and PWJ,
Pigeonhole argues that it became the only entity with a right to
pursue those claims. See Applied Med. Techs., Inc. v. Eames, 2002 UT
18, ¶ 17, 44 P.3d 699 (holding that the sale of a claim “cuts off the
former plaintiff’s right to pursue those claims”). This is true as
concerns an agreement between parties to sell a claim. But as
concerns the parties’ standing in court, we consider plaintiffs who
have purchased their claims to have “step[ped] into the shoes of
the former plaintiff.” See id. Pigeonhole has, in effect, purchased the
right to step into the shoes of Prime West and PWJ. Therefore,
Pigeonhole’s effort to amend its complaint to add the PWJ claims
does attempt to add a new party. Pigeonhole’s PWJ claims are
therefore time barred unless Pigeonhole can show that PWJ has a
true identity of interest with Prime West independent of their
connection via Pigeonhole.
¶51 We now examine whether PWJ’s claims “arose out of the
conduct, transaction, or occurrence set forth or attempted to be set
forth in the original pleading.” See Ottens, 2010 UT App 237, ¶ 43
(citation and internal quotation marks omitted). We conclude that
they did not. The relevant conduct, transaction, or occurrence that
Pigeonhole originally complained about was the Fire District’s
requirement that Prime West pay “Lump Sum Fire Service Fees
over a time period spanning several years.” After this conduct
occurred, PWJ purchased the property from Prime West on June 1,
2007. The Fire District then also required PWJ to pay fees, which it
20130445-CA 25 2015 UT App 173Highlands at Jordanelle v. Wasatch County
did on September 12, 2007.17 As a result, the PWJ claims concern a
separate act of misconduct directed against a separate plaintiff.
¶52 Allegations of “new or different acts of misconduct” amount
to new claims that cannot relate back to the original complaint.
Yearsley v. Jensen, 798 P.2d 1127, 1129 (Utah 1990) (denying a
motion to amend because it alleged “new and different
misconduct”); Behrens v. Raleigh Hills Hosp., Inc., 675 P.2d 1179, 1183
(Utah 1983) (allowing an amended pleading because the
amendment relied on a different legal characterization of the
offense but did not refer to “new or different acts of misconduct”).
Because Pigeonhole’s PWJ claims allege a new act of misconduct,
they fail the first element of the identity-of-interest test. It follows
that Pigeonhole also fails to meet the requirements of rule 15(c) and
that the trial court ruled correctly in denying Pigeonhole’s motion
to amend.
CONCLUSION
¶53 We conclude that the monthly fee of $14.81 per ERU is a
reasonable fee and that the Fire District can charge the fee from the
moment the County grants a density determination. Accordingly,
we reverse the trial court’s decision to the contrary.
¶54 We affirm the trial court’s ruling that the lump-sum fees are
invalid. We remand to the trial court to determine exactly which
fees were lump-sum fees that must now be refunded.
¶55 Because it is legally separate from the Fire District, the
County is not jointly liable to refund the lump-sum fees, attorney
17. It is not clear from the briefing or the record before us whether
the PWJ claims are for the legitimate monthly fees authorized by
Resolution 99-3 or for the invalid lump-sum fees. In the interest of
conclusively resolving all issues, we will continue with our analysis
on the assumption that at least some of the PWJ claims involve
lump-sum fees.
20130445-CA 26 2015 UT App 173Highlands at Jordanelle v. Wasatch County
fees, or any other judgment or obligation for which the Fire District
is liable in connection with this case. We reverse the trial court’s
determination that the County was jointly liable.
¶56 We affirm the trial court’s grant of prejudgment interest at
10% per year starting from the moment each landowner paid a
lump-sum fee. We remand to the trial court to calculate the
prejudgment interest as it applies to the lump-sum fee refund only.
¶57 We mostly affirm the trial court’s determination to award
Highlands its attorney fees. We remand, however, for the trial
court to determine which of Highlands’ attorney fees, below and
on appeal, are allocable to the lump-sum fee issue and to reassess
the amount of those costs versus the amount recovered for the
purposes of applying the private-attorney-general doctrine.
¶58 We reverse the trial court’s decision not to apply the
discovery rule to toll the statute of limitations, but only insofar as
it concerns Mountain Resort’s claim for a refund of its lump-sum
fees.
¶59 Finally, because Pigeonhole’s proposed amendment to its
original complaint alleges a new act of misconduct directed against
a new party, it does not relate back to its original complaint. We
therefore affirm the trial court’s determination that Pigeonhole’s
PWJ claims are untimely.
¶60 With the guidance offered in this opinion, the trial court may
now fully resolve this conflict, including determining appropriate
fees and costs.18
18. All parties agree that the trial court abused its discretion in
awarding the landowners’ expert-witness fees in excess of the
statutory rate. Upon remand, if the trial court still determines that
an award of these fees is appropriate, it must adhere to the
statutory rate.
20130445-CA 27 2015 UT App 173