Grand County v. Rogers

----ooOoo----

Grand County,
Plaintiff and Appellee,

v.

Lester W. Rogers,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990766-CA

F I L E D
June 2, 2000
  2000 UT App 162 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
Scott L. Wiggins, Salt Lake City, for Appellant
W. Scott Barrett, Logan, for Appellee

-----

Before Judges Jackson, Bench, and Davis.

JACKSON, Associate Presiding Judge:

"In reviewing a grant of summary judgment, we accord no deference to the trial court's conclusions of law and review them for correctness." Drysdale v. Ford Motor Co., 947 P.2d 678, 680 (Utah 1997). "[W]e view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993).

Rogers first argues that the County is estopped from enforcing its subdivision ordinance. The elements of equitable estoppel are: "(1) an admission, statement or act inconsistent with the claim afterwards asserted, (2) action by the other party on the faith of such admission, statement or act, and (3) injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement or act." State ex rel. Parker v. Irizarry, 945 P.2d 676, 680 (Utah 1997). Specifically, Rogers asserts that the County's acceptance and recordation of contracts and a deed for the sale of portions of his acreage are acts inconsistent with the County's current position. We disagree. A county recorder has no discretion and must record all instruments received. See Utah Code Ann. § 17-21-17(1) (1999). The recording of the relevant instruments is for notice purposes and is unrelated to the County's enforcement of zoning ordinances; it did not justify Rogers's inference that the County was allowing subdivision of his property without approval. Rogers also does not allege specific impending injury if the County is allowed to enforce its ordinances here. On both the first and third of the essential elements of equitable estoppel, then, Rogers's defense fails as a matter of law.

Rogers next argues that the county waived its right to enforce its ordinances against him. We decline to consider this defense as it is not properly before us. For an issue to be preserved for appeal, the district court must be given the chance to consider it. See Turtle Management, Inc. v. Haggis Management, Inc., 645 P.2d 667, 672 (Utah 1982). Because Rogers's memorandum to the district court did not address the defense of waiver, Rogers failed to properly preserve this defense for appeal.

Rogers also argues that his buyers are necessary parties within the meaning of Utah Rule of Civil Procedure 19(a). A party is necessary if: (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. Utah R. Civ. P. 19(a). Rogers has not argued that subsection (1) applies and, under subsection (2), Rogers's buyers are not necessary parties.

Though they likely may claim an interest, Rogers points to no particular circumstance under which the buyers' ability to protect their interests will be impaired or impeded by the disposition of this case in their absence. Likewise, Rogers does not specify how he would be subject to the risk of "double, multiple, or otherwise inconsistent obligations." Id. Because Rogers alleges no facts which would meet the requirements of Rule 19, this argument also fails.

Though Rogers next invokes the Occupying Claimant's Act (the Act), it is not apparent how it applies to this case. See Utah Code Ann. §§ 57-6-1 to -8 (1994 & Supp. 1999). Rogers's buyers are not threatened with the kind of action against their property that the Act's protections contemplate. The remedy sought by the County seeks neither to expel them nor to encumber their property in any way. The Act thus does not apply here.

Rogers also argues that the district court's grant of summary judgment was improper before discovery. Such decisions regarding discovery will be reviewed for abuse of discretion. See American Towers Owners Ass'n v. CCI Mechanical, Inc., 930 P.2d 1182, 1195 (Utah 1996). Despite his argument that discovery must generally precede summary judgment, a court need not allow discovery when "the motion opposing summary judgment is dilatory or without merit." Downtown Athletic Club v. Horman, 740 P.2d 275, 278 (Utah Ct. App. 1987). The district court judge apparently determined here that Rogers's opposition to the County's motion was without merit. Further, Rogers did not then and does not now offer any theories as to what material facts he might obtain through discovery. Discovery is not allowed when the party opposing the motion for summary judgment is "'merely on a "fishing expedition."'" Id. (citations omitted). We thus cannot say the district court abused its discretion in denying Rogers's motion for discovery.

Affirmed.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
James Z. Davis, Judge