U.P.C., Inc. v. R.O.A. General, Inc.
Annotate this Casepublication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
----ooOoo----
U.P.C., Inc.,
dba Garco Industrial Park,
Plaintiff and Appellant,
v.
R.O.A. General, Inc.,
dba Reagan Outdoor Advertising,
Defendant and Appellee.
OPINION
(For Official Publication)
Case No. 980280-CA
F I L E D
October 21, 1999
1999 UT App 303
-----
Third District, Salt Lake
Department
The Honorable William B.
Bohling
Attorneys:
F. Mark Hansen, Salt Lake
City, for Appellant
Richard A. Rappaport and
Leslie Vanfrank, Salt Lake City, for Appellee
-----
Before Judges Wilkins, Billings, and Davis.
DAVIS, Judge:
¶1.
Plaintiff, Garco Industrial
Park (Garco), challenges the trial court's order dismissing its complaint
against defendant Reagan Outdoor Advertising General, Inc. (Reagan), denying
its Motion to Revise Order and Judgment Dismissing Plaintiff's Complaint,
and granting Reagan's Motion to Strike. We affirm.
BACKGROUND
¶2.
Reagan and Garco's relationship
arises from a 1975 lease between Reagan and Garco's predecessor-in-interest
which entitled Reagan to maintain an outdoor advertising sign on Garco's
property. Garco purchased the property in 1990, at which time Reagan's
sign was still in place. During the early 1990s, Garco and Reagan tried
to negotiate a new lease, as the 1975 lease was due to expire on July 8,
1995. The negotiations failed, and in correspondence dated February 23,
1995, Garco told Reagan that it had "elected to pursue other options" and
demanded that Reagan remove its sign by July 8, 1995.
¶3.
Initially, Garco was concerned
about Reagan removing the sign's foundation because that may have compromised
the integrity of the adjacent building. Additionally, in correspondence
between the parties, Garco mentioned that it may use the foundation to
place a different sign at that location. Notwith- standing, after the lease
expired, Garco demanded that Reagan also remove the foundation which Reagan
has never done.
¶4.
After Garco told Reagan
to remove its sign by lease end, Reagan entered into a lease agreement
to erect a new sign on adjacent property. Reagan's new sign is less than
five hundred feet from Garco's southern property line. Because Utah law
requires 500-foot spacing between outdoor advertising signs, see
Utah Code Ann. § 72-7-505(3)(a) (Supp. 1999), Garco cannot contract
with any of Reagan's competitors to place a sign on its property. Because
of this and Reagan's refusal to remove the sign's foundation, Garco brought
suit against Reagan alleging trespass, unlawful detainer, intentional interference
with potential economic relations, unfair practices, and a claim of relief
for punitive damages.
Reagan filed a counterclaim
for breach of a covenant against competition.
¶5.
In August 1997, Reagan filed
a motion for summary judgment on all Garco's claims. Three months later,
Garco filed a cross-motion for partial summary judgment with supporting
affidavits, seeking dismissal of Reagan's counterclaim. On December 29,
1997, the trial court entered an Order and Judgment Dismissing Plaintiff's
Complaint. The order granted Reagan's motion for summary judgment and dismissed
Garco's complaint in its entirety. At that time, Reagan's counterclaim
and Garco's cross-motion for partial summary judgment was still pending.
Shortly thereafter, Garco filed a "Motion to Revise Order and Judgment
Dismissing Plaintiff's Complaint" (motion to revise) under Utah Rule of
Civil Procedure 54(b), seeking reversal of the trial court's summary judgment
ruling. Reagan then filed a motion to strike portions of Garco's reply
memorandum in support of its motion to revise.
¶6
On May 1, 1998, the trial
court entered two orders. First, it denied Garco's motion to revise and
granted Reagan's motion to strike. Second, it dismissed Reagan's counterclaim
based on the stipulation of the parties. Garco then filed a notice of appeal,
which provided that Garco "appeals . . . the final order . . . entered
in this matter on May 1, 1998. The appeal is taken from the entire order."
ISSUES
¶7
Garco raises numerous issues
on appeal arising from two orders of the trial court: the December 29,
1997 order dismissing its complaint against Reagan, and the May 1, 1998
order denying its motion to revise and granting Reagan's motion to strike
portions of its reply memorandum in support of its motion to revise.
¶8
Challenging the December
29, 1997 order, Garco argues the trial court erred by dismissing the following
causes: (1) trespass; (2) unlawful detainer; (3) intentional interference
with potential economic relations; and (4) its claim of relief for punitive
damages. Reagan contends that Garco's notice of appeal was insufficient
for Garco to raise these issues on appeal, and, in any event, the trial
court correctly dismissed Garco's complaint.
¶9
In its challenge to the
May 1, 1998 order, Garco maintains the trial court erred by denying its
motion to revise and by granting Reagan's motion to strike.
I. ANALYSIS
A. Adequacy of Notice of Appeal
¶10
Garco challenges the trial
court's December 29, 1997 order dismissing its complaint against Reagan.
Reagan argues that this court is without jurisdiction to hear Garco's appeal
of the December 29, 1997 order because Garco failed to particularly identify
that order in its notice of appeal.
¶11
Rule 3(d) of the Utah Rules
of Appellate Procedure governs the content of a notice of appeal: "The
notice of appeal . . . shall designate the judgment or order, or part thereof,
appealed from . . . ." This language has been interpreted by our supreme
court. First, in Scudder v. Kennecott Copper Corp., 886 P.2d 48
(Utah 1994), Scudder brought a personal injury suit against Kennecott Copper
Corp. (Kennecott) and Stearns Catalytic Corp. (Stearns). See id.
at 49. Stearns in turn filed a third-party complaint against Weyher-Livsey
Constructors, Inc. (Weyher-Livsey). See id. Before the trial began,
the trial court granted summary judgment in Weyher-Livsey's favor and dismissed
it from the suit. See id. The case then proceeded to trial and a
jury verdict was reached, finding both Kennecott and Stearns liable to
Scudder for his injuries. See id.
¶12
Stearns appealed to this
court, which reversed the earlier summary judgment granted in Weyher-Livsey's
favor. See id. On certiorari, the supreme court addressed
the issue of whether Stearns's notice of appeal complied with Rule 3(d)
of the Utah Rules of Appellate Procedure. See id. at 49-50. Weyher-Livsey
argued that the court of appeals lacked the requisite jurisdiction to hear
Stearns's appeal because, inter alia, it failed "to designate that the
appeal was taken from the summary judgment as well as from the final judgment
that had been entered on the jury verdict." Id.
¶13
Interpreting the same language
at issue in this case, the court held: "When appealing from an entire final
judgment as Stearns did here, it is not necessary to specify each interlocutory
order of which the appellant seeks review." Id. at 50 (emphasis
added). It was further noted that: "[W]hen an appeal is taken from a final
judgment, '[t]here is no requirement that the notice designate intermediate
orders which are to be raised as issues on appeal.'" Id. (quoting
Rourk
v. State, 821 P.2d 273, 280 (Ariz. Ct. App. 1991)) (second alteration
in original).
¶14
The Utah Supreme Court again
addressed Rule 3(d) in Zions First National Bank v. Rocky Mountain Irrigation,
Inc., 931 P.2d 142 (Utah 1997). There, Zions First National Bank (Zions)
filed suit against Grant and Ruby Cooper (the Coopers), who were doing
business as Rocky Mountain Irrigation, Inc. See id. at 143. The
Coopers counterclaimed.
See id. Before trial, the trial court dismissed
the Coopers' fraud claim and also directed a verdict on the part of their
racketeering counterclaim that relied on fraud. See id. at 144.
¶15
A jury returned a verdict
in favor of Zions; the trial court then dismissed the Coopers' claims and
entered a final judgment in favor of Zions. See id. On appeal, the
supreme court held that the trial court erred by dismissing the fraud claim
and directing a verdict on the racketeering counterclaim, remanding those
issues back to the trial court. See id.
¶16
On remand, the trial court
dismissed the racketeering counterclaim and sent the fraud claim to a jury.
See
id. The jury returned a verdict in favor of Zions, and the trial court
therefore dismissed the Coopers' claims and entered a final judgment thereon.
See id. The Coopers appealed for a second time to the supreme court.
¶17
On the second appeal, "Zions
contend[ed] that because the Coopers' notice of appeal designate[d] only
the final judgment, they [were] precluded from raising issues relating
to any other proceedings or orders leading up to the judgment." Id.
As in Kennecott, the supreme court again interpreted the language
in Rule 3(d) at issue here: "'The notice of appeal . . . shall designate
the judgment or order, or part thereof, appealed from . . . .'" Id.
(quoting Utah R. App. P. 3(d)). The court reiterated its holding in Kennecott
that "[t]here is no requirement under this rule that an appellant must
indicate that the appeal also concerns intermediate orders or events that
have led to that final judgment." Id. The court went on to hold
that "[b]ecause the Coopers complied with rule 3(d) and generally designated
the final judgment in their notice of appeal, they are not precluded
from alleging errors in any intermediate order involving the merits or
necessarily
affecting the judgment as long as such errors were properly preserved."
Id.
(emphasis added).
¶18
Lastly, and most recently,
the Utah Supreme Court addressed the same Rule 3(d) language, albeit with
a different result. In Jensen v. Intermountain Power Agency, 977 P.2d 474 (Utah 1999), Jensen filed suit against Intermountain Power Agency
(IPA), setting forth numerous causes of actions. See id. at 475.
Before trial, the court entered a partial summary judgment in favor of
IPA on Jensen's easement and water rights claims, and therefore dismissed
those claims. See id. at 475-76. A jury trial was held on the other
issues. See id. at 476. The jury returned a verdict in favor of
IPA, and the trial court therefore dismissed Jensen's remaining claims.
See
id. Jensen filed a motion for a judgment notwithstanding the verdict
and a separate motion for a new trial. See id. The trial court denied
both motions and thereafter entered a final judgment, which Jensen appealed.
See id.
¶19
In his appellate brief,
Jensen attacked both the jury verdict and the earlier partial summary judgment.
See
id. IPA, however, moved to either limit the scope of appeal or for
summary disposition on the issues relating to the partial summary judgment.
See id. IPA argued that the supreme court did not have "jurisdiction
to review the partial summary judgment because Jensen did not appeal from
the judgment finalizing it." Id.
¶20
The supreme court discussed
the content of Jensen's notice of appeal:
Jensen's notice
of appeal states that he appeals from "the jury verdict entered . . . on
July 14, 1995," and the trial court's "denial of his Rule 50 and Rule 59
motion, which denial was entered . . . on October 10, 1995." Jensen did
not state in his notice that he was appealing either the February 2, 1994,
judgment granting IPA partial summary judgment or the August 10, 1995,
final judgment concerning both the jury verdict and the partial summary
judgment. Thus, neither of the judgments Jensen listed in his notice
deals with the partial summary judgment.
Id. (emphasis added;
alterations in original).
¶21
Jensen's "fail[ure] to notice
an appeal from any judgment related to the partial summary judgment" was
fatal to his ability to appeal those issues addressed in the partial summary
judgment. Id. Although Jensen argued that his motion for a new trial
encompassed the partial summary judgment, the court noted that "Jensen's
motion for a new trial was addressed only to those claims that went to
the jury, which did not include the [issues addressed in the partial summary
judgment.]" Id.
¶22
Additionally, the supreme
court
found that IPA was prejudiced by Jensen's failure to "notice an appeal
from any judgment related to the partial summary judgment." Id.
Because of Jensen's deficient notice of appeal, IPA did not file any cross-appeals
pertaining to the partial summary judgment. See id. Jensen's error
and the resulting prejudice to IPA was not cured by the docketing statement
because it was filed after IPA's time for filing a cross-appeal had expired.
See
id.
¶23
The analysis in Jensen
is instructive and consistent with Kennecott and Zions. If
Jensen had appealed from a final judgment relating to the partial summary
judgment, IPA would not have been prejudiced by any failure to particularly
identify the partial summary judgment in his notice of appeal because IPA
would have had the requisite notice. Kennecott, Zions, and
Jensen
clearly and unambiguously stand for the proposition that a party who seeks
to appeal a nonfinal summary judgment need not specifically identify that
summary judgment in the notice of appeal, but need only identify a final
judgment that relates to that summary judgment.
¶24
Ruling on Reagan's Motion
for Summary Judgment, the trial court in the case at bar entered an "Order
and Judgment Dismissing Plaintiff's Complaint" (summary judgment). The
summary judgment addressed each cause of action raised in Garco's complaint
and dismissed each one with prejudice. Because Reagan's counterclaim was
still pending before the trial court, the summary judgment was not a final,
appealable order.
See Utah R. Civ. P. 54.
¶25
Garco then filed its Rule
54(b) motion entitled, "Motion to Revise Order and Judgment Dismissing
Plaintiff's Complaint," requesting that the trial court "revis[e] the Court's
Order and Judgment Dismissing Plaintiff's Complaint." On May 1, 1998, the
trial court entered an order denying Garco's Motion to Revise, ruling in
its Memorandum Decision that "[n]one of [Garco's] arguments persuade the
Court that its original ruling was not proper. On the contrary, [Garco's]
arguments essentially rehash arguments already fully considered." Thus,
the trial court did reconsider the Order and Judgment Dismissing Plaintiff's
Complaint, but declined to revise its earlier ruling.
¶26
Clearly, the subject matter
of Garco's Motion to Revise Order and Judgment Dismissing Plaintiff's Complaint
was the summary judgment. Thus, Garco's Rule 54(b) motion, under the procedural
posture of this case, had no free-standing, substantive existence apart
from the summary judgment. The May 1, 1998 order denying Garco's Rule 54(b)
motion also was the final judgment in the case,(1)
having the effect of making the summary judgment final and appealable.
¶27
Garco's notice of appeal
states, in relevant part, that it appeals "the final order of the Honorable
William B. Bohling entered in this matter on May 1, 1998. The appeal is
taken from the entire order." It is inconceivable that this language does
not relate to the summary judgment since the subject matter of the May
1, 1998 order was the very summary judgment the trial court declined to
revise. Accordingly, under Kennecott,
Zions, and Jensen,
Garco sufficiently noticed an appeal from a final judgment that related
to the summary judgment. Because Garco "generally designated the final
judgment in [its] notice of appeal, [it is] not precluded from alleging
errors in any intermediate order involving the merits or necessarily affecting
the judgment as long as such errors were properly preserved." Zions,
931 P.2d at 144. This court should and must therefore exercise its jurisdiction
over that part of Garco's appeal that addresses the issues disposed of
in the summary judgment.(2)
¶28
To hold otherwise would
be unduly harsh, does not further the underlying purpose of a notice of
appeal, and is in direct contradiction of our jurisprudence governing the
right of appeal. "'Statutes giving the right of appeal are liberally construed
in furtherance of justice. Such an interpretation as will work a forfeiture
of that right is not favored.'"
Price v. Western Loan & Sav. Co.,
35 Utah 379, 100 P. 677, 679 (1909) (citation omitted).
B. Order Dismissing Complaint
¶29
On December 29, 1997, the
trial court entered its Order and Judgment Dismissing Plaintiff's Complaint
granting Reagan's motion for summary judgment and dismissing Garco's complaint
in its entirety. Garco appeals several issues ruled upon in this order.
First, Garco argues the trial court incorrectly ruled that Reagan had not
committed trespass by leaving the foundation to its sign on Garco's property.
Second, Garco maintains the trial court erred by ruling that Reagan was
not in unlawful detainer of Garco's property because it has refused to
remove the foundation. Third, Garco contends the trial court erred by ruling
that Reagan did not intentionally interfere with Garco's potential economic
relations. Fourth and last, Garco argues the trial court erred in dismissing
its claim for punitive damages.
¶30
"We review the trial court's
grant of summary judgment for correctness, according no deference to the
trial court's conclusions of law." Potter v. Chadaz, 977 P.2d 533,
535 (Utah Ct. App. 1999). Additionally, "'we view the facts and inferences
in the light most favorable to the non-moving party,' and affirm only when
'there is no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.'" Id. at 535-36
(quoting Drysdale v. Ford Motor Co., 947 P.2d 678, 680 (Utah 1997)
(citations omitted)) (alteration in original).
1. Trespass
¶31
Garco's first cause of action
was for trespass. Garco claimed that after the lease expired on July 8,
1995, and Garco demanded removal, Reagan had to remove the entire sign,
including the underground foundation. Garco maintains that Reagan's failure
to do so constitutes a trespass.
¶32
The trial court made the
following ruling regarding Garco's trespass claim:
The Court finds
that there are no material factual disputes with respect to whether there
was a lease between defendant and plaintiff's predecessor-in-interest.
The undisputed evidence is that there was a lease between defendant and
plaintiff's predecessor-in-interest. The face of the lease document itself
does not require removal of the sign foundation of which plaintiff has
complained. Nor does the face of the lease document require that the defendant
restore the property to its former condition upon vacating the property.
Therefore, as a matter of law, defendant did not and has not trespassed
on plaintiff's property by leaving the sign foundation in place when defendant
removed the sign face and poles from the plaintiff's property.
¶33
In support of its argument
that the trial court erred in dismissing its trespass claim, Garco maintains
that it is not bound by the lease between Reagan and Garco's predecessor-in-interest
because (1) Garco did not have notice of the lease when it bought the property
and (2) the lease is voidable for unconscionability and lack of consideration.
We can summarily dispose of Garco's second argument regarding unconscionability
and lack of consideration. This argument was not before the trial court
until Garco's Reply Memorandum in support of its motion to revise. Accordingly,
we will not address this argument in context of the trial court's summary
judgment.(3) Cf. State v. Amoroso,
975 P.2d 505, 507 (Utah Ct. App. 1999) ("As a general rule, appellate courts
will not consider an issue raised for the first time on appeal.").
¶34
Garco argues that, even
though it made an inquiry, it did not have either record or actual notice
of Reagan's lease. "The fact that . . . a deed is not recorded or that
recording is delayed 'does not affect the validity of a document with respect
to the parties to the document and all other persons who have notice of
the document.'" Crowther v. Mower, 876 P.2d 876, 879 (Utah Ct. App.
1994) (quoting Utah Code Ann. § 57-3-2(3)). Notice may be actual or
constructive. See Diversified Equities, Inc. v. American Sav.
and Loan Ass'n, 739 P.2d 1133, 1136 (Utah Ct. App. 1987). Here, it
is undisputed that Garco did not have actual knowledge of a written lease;
thus our focus is on whether Garco had constructive notice of Reagan's
lease.
¶35
Constructive notice can
take two forms. First, pursuant to the recording statute, constructive
notice is imparted when documents are properly recorded. Second, constructive
notice arises from a duty to inquire when one has "knowledge of certain
facts and circumstances."
First Am. Title Ins. Co. v. J.B. Ranch, Inc.,
966 P.2d 834, 837-38 (Utah 1998). This second type of notice is referred
to as inquiry notice.
See id. at 837.
¶36
Because Reagan did not record
its lease until two years after Garco purchased the property, we must determine
whether Garco had inquiry notice. "[I]nquiry notice 'occur[s] when circumstances
arise that should put a reasonable person on guard so as to require further
inquiry on his part.'" Id. at 838 (citation omitted; second alteration
in original). "Whatever is notice enough to excite attention and put the
party on his guard and call for inquiry is notice of everything to which
such inquiry might have led. When a person has sufficient information to
lead him to a fact, he shall be deemed conversant of it." Id. (citations
and quotation marks omitted).
¶37
Garco concedes that it was
under a duty to inquire as to the status of Reagan's relationship with
Garco's predecessor-in-interest, but maintains that it "exercised good
faith and reasonable care in inquiring into the status of [Reagan's] sign,"
which inquiry did not uncover the existence of the lease. Garco provided
evidence that it asked Lamont, Garco's predecessor-in-interest, about Reagan's
rental agreement. Garco claims it was told that Reagan was on a month-to-month
oral rental arrangement. Garco also maintains that when Lamont gave all
the files pertaining to the property to Garco, Reagan's written lease was
not in those files.(4)
¶38
Notwithstanding, Garco has
not claimed that it spoke with Reagan to determine whether Reagan possessed
a written lease. A simple telephone call to Reagan could have confirmed
or dispelled any question in this regard and would have led to Garco's
learning of Reagan's interest. Thus, because Garco had "knowledge of certain
facts [i.e., the sign's existence] and circumstances that [were] sufficient
to give rise to a duty to inquire further," id., we hold that Garco
had constructive knowledge of Reagan's lease and, therefore, the lease
was valid and binding upon Garco.
¶39
Because the lease is enforceable
against Garco, we look to the terms of the lease to determine the duties
of the parties.
See Cherry v. Utah State Univ., 966 P.2d 866, 869 (Utah Ct. App. 1998) ("'[I]n interpreting a contract, we first
look to the four corners of the agreement to determine the intent of the
parties.'") (citation omitted). Only if the lease is ambiguous will we
look to extrinsic evidence to determine the parties' intent. See id.
at 869-70. If extrinsic evidence fails to clarify the lease terms, then
the document will be construed against the drafter. See id. at 870.
¶40
The trial court ruled that
"[t]he face of the lease document itself does not require removal of the
sign foundation of which plaintiff has complained. Nor does the face of
the lease document require that the defendant restore the property to its
former condition upon vacating the property." Because the lease did not
contain a duty on Reagan's part to remove the foundation or restore the
property to its original condition, the trial court held that Reagan was
under no duty to do so. Thus, Garco's trespass claim was dismissed with
prejudice.
¶41
The language of the lease
neither explicitly nor implicitly addresses the parties' obligation or
expectations regarding Reagan's duty to remove the sign's foundation. Nor
does the lease require that Reagan restore the premises to its pre-leased
condition. While Garco urges the court to imply such a requirement, "a
court may not make a better contract for the parties than they have made
for themselves; furthermore, a court may not enforce asserted rights not
supported by the contract itself."
Ted R. Brown & Assocs., Inc.
v. Carnes Corp., 753 P.2d 964, 970 (Utah Ct. App. 1988). Additionally,
"'[t]he lessee is not required to remove improvements made by him with
the consent of the landlord, or under authority of the lease in the absence
of express requirement thereof.'"
Arkansas Fuel Oil Co. v. Connellee,
39 S.W.2d 99, 101 (Tex. Ct. App. 1931) (citation omitted).
Had the parties
desired to contract that upon termination of the lease defendant would
be required to remove all of its property and to restore the premises to
their former condition, they could have done so, but here the only covenant
touching removal of the property is the one giving lessee the right to
remove if it so desires. An express agreement or covenant excludes the
possibility of an implied one of a different or contradictory nature.
Duvanel v. Sinclair Refining
Co., 227 P.2d 88, 92 (Kan. 1951). "By the terms of this lease [Reagan]
had the right to erect the improvements in question. It was under no duty
to remove them, although it was granted the right and option to do so if
it saw fit. [Garco] could not require removal." Id. We decline to
impose such a duty upon Reagan when the lease does not.(5)
¶42
Because we hold that Reagan
did not have a duty to remove the sign's foundation, it could not be in
trespass for refusing to do so. Accordingly, the trial court correctly
dismissed Garco's trespass cause of action.
2. Unlawful Detainer
¶43
Garco argues the trial court
erred by dismissing its unlawful detainer claim. In dismissing Garco's
unlawful detainer cause of action, the trial court ruled:
2. The Court further
finds that there are no material factual disputes as to whether [Reagan]
returned possession of the property to [Garco] prior to [Garco's] service
of a Notice to Quit. [Reagan] returned possession to [Garco] when [Reagan]
completed removal of the sign faces and sign structure from [Garco's] property
no later than June 19, 1995. [Garco's] Notice of Unlawful Detainer was
served more than a year later, on July 29, 1996. As a matter of law, [Reagan]
is not liable for unlawful detainer of the property, having returned possession
of the property to [Garco] more than a year prior to [Garco's] Notice of
Unlawful Detainer.
¶44
Garco argues that because
Reagan left the sign's foundation in the ground, it is guilty of unlawful
detainer. See Utah Code Ann. § 78-36-3 (1996).(6)
Garco bases its argument on the premise that Reagan is under a duty to
remove the sign's foundation, and until it does so, it is in unlawful possession
of Garco's property. However, as we have held, Reagan is under no duty
to remove the sign's foundation and is therefore not guilty of an unlawful
detainer. Accordingly, we hold that the trial court correctly dismissed
Garco's unlawful detainer cause of action.
3. Intentional Interference with Economic Relations
¶45
Garco contends the trial
court erred in ruling that Reagan did not intentionally interfere with
Garco's potential economic relations when it placed a sign less than five
hundred feet from Garco's property. To succeed on a claim of intentional
interference with potential economic relations, a "plaintiff must prove
(1) that the defendant intentionally interfered with the plaintiff's existing
or potential economic relations, (2) for an improper purpose or by improper
means, (3) causing injury to the plaintiff." Leigh Furniture and Carpet
Co. v. Isom, 657 P.2d 293, 304 (Utah 1982). The trial court here ruled
that Garco was unable to prove that Reagan either used an improper purpose
or improper means in placing the new sign where it did. Thus, we focus
on those elements of the Leigh Furniture test.
¶46
Improper purpose "'is established
by a showing that the actor's predominant purpose was to injure [the complaining
party].'"
Promax Dev. Corp. v. Mattson, 943 P.2d 247, 254 (Utah
Ct. App.) (quoting St. Benedict's Dev. Co. v. St. Benedict's Hosp.,
811 P.2d 194, 201 (Utah 1991)) (alteration in original), cert. denied,
953 P.2d 449 (Utah 1997). To satisfy the improper purpose prong, the plaintiff
must prove that "the defendant's ill will predominated over all legitimate
economic motivations." Pratt v. Prodata, Inc., 885 P.2d 786, 788
(Utah 1994). "In a case of mixed motives, a court must determine the defendant's
predominant purpose underlying his conduct." Sampson v. Richins,
770 P.2d 998, 1003 (Utah Ct. App. 1989).
¶47
Here, the trial court made
the following ruling on improper purpose:
[E]ven if the Court
[assumes] that the plaintiff's purpose in locating the sign as it did on
the n[e]ighboring property was to prevent plaintiff from erecting its own
sign, there is no evidence that any injury to plaintiff occasioned by defendant's
move of the sign to the neighboring property was an end in and of itself,
designed to harm plaintiff merely for the sake of injury alone. Instead,
the defendant's move of the sign to its present location constituted legitimate
competitive activity, consistent with an effort by defendant to achieve
the long-range economic goal of maximizing its profits from its outdoor
advertising signs in the area by forestalling competitive activity on the
plaintiff's property.
¶48
We agree with the trial
court's conclusion that Garco cannot establish improper purpose on the
part of Reagan. In support of its argument, Garco notes two conversations
with Reagan in which Reagan told Garco that it strategically placed the
sign where it did "for the sole purpose to prevent Garco from doing business."
Viewing the facts and inferences in the light most favorable to Garco,
as we must do when reviewing summary judgment, see Potter,
977 P.2d at 535, we cannot say that Reagan's strategy was anything other
than "legitimate economic motivations," Pratt, 885 P.2d at 788,
in that it limited competition. Reagan did exactly what Garco sought to
do: contracted to erect a sign. Reagan simply acted before Garco. Thus,
Garco is unable to show that Reagan's predominant purpose behind erecting
the sign where it did was the result of ill will toward Garco. See id.
¶49
As earlier case law has
noted, problems arise in a commercial context when trying to prove improper
purpose because of the presence of legitimate competition. See Pratt,
885 P.2d at 789 n.3;
Leigh Furniture, 657 P.2d at 307. Thus, in
commercial settings, it has been suggested that the court look more at
the improper means prong of the test set out in Leigh Furniture.
See
Leigh Furniture, 657 P.2d at 307 ("Problems inherent in proving
motivation or purpose make it prudent for commercial conduct to be regulated
for the most part by the improper means alternative, which typically requires
only a showing of particular conduct."). "An 'improper means' is shown
when the plaintiff proves that the defendant's means of interference were
contrary to statutory, regulatory, or common law or violated '"an established
standard of a trade or profession."'" Pratt, 885 P.2d at 788 (quoting
Leigh Furniture, 657 P.2d at 308 (quoting Top Serv. Body Shop,
Inc. v. Allstate Ins. Co., 582 P.2d 1365, 1371 & n.11 (Or. 1978))).
¶50
The trial court here made
the following ruling regarding improper means:
[T]he Court notes
that it is undisputed that after lengthy lease negotiations between plaintiff
and defendant, on February 23, 1995, plaintiff advised defendant that it
had "elected to pursue other options" and demanded that defendant immediately
remove the sign. Defendant contracted with the neighboring property owner
on April 20, 1995, and applied to UDOT to move the sign shortly thereafter.
There is no evidence that plaintiff took any substantial steps during that
interim period to attempt to secure its own permit for a competing sign.
Nor is there any evidence before the Court that the defendant's R-407 permit
was improperly granted or that the defendant's two signs being erected
at the same time for some three weeks caused any injury to plaintiff. Therefore,
there is no evidence that defendant acted by improper means in moving its
sign to the neighboring property or that the defendant's act in moving
the sign was the cause of plaintiff's inability to procure its own permit.
¶51
Garco argues that this ruling
was in error because of the existence of different sign permits on different
signs. However, the fact that Reagan may have had the wrong permit on the
wrong sign and may have violated of the Utah Outdoor Advertising Act does
not show that Reagan used improper means to intentionally interfere with
Garco's potential economic relations. Garco also contends that the fact
that Reagan was in trespass or unlawful detainer by not removing the sign's
foundation shows improper means. Because we have held that Reagan was not
under a duty to remove the foundation, and was therefore not in trespass
or unlawful detainer, Garco's argument fails. Lastly, Garco argues that
Reagan's placement of its sign violates the Utah Antitrust Act. See
Utah Code Ann. §§ 76-10-911 to -926 (1995 & Supp. 1999).
Notwithstanding, Garco's general statement that the trial court's finding
that Reagan placed its sign for the purpose of "forestalling competitive
activity" supports a violation of the Utah Antitrust Act is insufficient
to persuade this court that a violation occurred. Therefore, we reject
this argument based on the lack of analysis. See Utah R. App. P.
24(a)(9).
¶52
We accordingly hold that
the trial court did not err in ruling that Garco was unable to show improper
means on the part of Reagan. Because Garco was unable to show either improper
purpose or improper means, the trial court correctly dismissed Garco's
claim for intentional interference with potential economic relations.
4. Punitive Damages
¶53
Because all Garco's underlying
substantive claims were dismissed, the trial court correctly dismissed
Garco's claim for punitive damages.
C. Motion to Revise
¶54
Garco challenges the trial
court's denial of its motion to revise, brought pursuant to Rule 54(b)
of the Utah Rules of Civil Procedure. Rule 54(b) provides, in pertinent
part:
Judgment upon
multiple claims . . . .
When more than one claim
for relief is presented in an action, whether as a claim, [or] counterclaim
. . . , the court may direct the entry of a final judgment as to one or
more but fewer than all of the claims . . . only upon [1] an express determination
by the court that there is no just reason for delay and [2] upon an express
direction for the entry of judgment. In the absence of such determination
[that the judgment is final] and direction, any order or other form of
decision, however designated, which adjudicates fewer than all the claims
or the rights and liabilities . . . shall not terminate the action as to
any of the claims . . . and the order . . . is subject to revision at any
time before the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.
Utah R. Civ. P. 54(b) (second
emphasis added); accordKennedy v. New Era Indus., Inc., 600 P.2d 534, 536-37 (Utah 1979).
¶55
We have interpreted Rule
54(b) to allow "a [trial] court to change its position with respect to
any order or decision before a final judgment has been rendered in the
case." Trembly v. Mrs. Fields Cookies, 884 P.2d 1306, 1310 n.2 (Utah
Ct. App. 1994); accordTimm v. Dewsnup, 851 P.2d 1178, 1184-85 (Utah
1993) (permitting reconsideration of summary judgment under Rule 54(b)
and holding summary judgment did not fully dispose of case when part of
counterclaim remained in trial court, and was thus subject to revision);
Kennedy,
600 P.2d at 536-37; Salt Lake City Corp. v. James Constructors, Inc.,
761 P.2d 42, 44 n.5 (Utah Ct. App. 1988) (stating "Rule 54(b) allows courts
to readjust prior rulings in . . . cases . . . unless those rulings disposed
of entire claims or parties and those rulings were specifically
certified as final").
¶56
Garco's motion to revise
was properly before the trial court pursuant to Rule 54(b). Because a final
judgment had not yet been rendered disposing of all of the parties' claims
(i.e., Reagan's counterclaim was outstanding), the court had the power
to revise its summary judgment order under Rule 54(b). See, e.g.,
Don
Houston, M.D., Inc. v. Intermountain Health Care, Inc., 933 P.2d 403,
406 (Utah Ct. App. 1997) (providing "judgment is not a final, appealable
order if it does not dispose of all the claims in a case, including counterclaims").
¶57
We next examine whether
the court properly denied Garco's motion to revise. "A trial court's decision
to grant or deny a motion to reconsider summary judgment is within the
discretion of the trial court, and we will not disturb its ruling absent
an abuse of discretion."
Timm v. Dewsnup, 921 P.2d 1381, 1386 (Utah
1996) (emphasis omitted);
accord Trembly, 884 P.2d at 1312.(7)
¶58
As previously stated, "a
motion under Rule 54(b) is a proper vehicle to ask the court to reconsider
its prior [ruling on] a motion for summary judgment." Trembly, 884 P.2d at 1311. However, a litigant seeking revision and reversal must demonstrate
a reason for the request. See id. For instance, a litigant may show
that:
(1) the matter is
presented in a "different light" or under "different circumstances;" (2)
there has been a change in the governing law; (3) a party offers new evidence;
(4) "manifest injustice" will result if the court does not reconsider the
prior ruling; (5) a court needs to correct its own errors; or (6) an issue
was inadequately briefed when first contemplated by the court.
Id. (citation omitted).
Here, Garco argues the trial court erred in denying its motion to revise
because it properly presented matters in a "different light" and presented
"new evidence."(8)
¶59
First, Garco argues the
court abused its discretion in denying its motion to reconsider because
it offered "new evidence." Specifically, Garco claims that "commentary
during oral argument" brought to the trial court's attention "new evidence"
it had not seen at the time of its ruling. However, without reference to
the record by Garco we do not know and will not guess the "commentary"
or "new evidence" to which Garco refers.(9)
¶60.
Second, Garco contends the
court abused its discretion in denying its motion to revise because it
"presented matters in a different light." Specifically, it argues that
matters it argued in its cross-motion for partial summary judgment put
matters in "a different light." However, we agree with the trial court
that Garco's motion to revise does not present matters in a different light,
but merely "rehash[es] arguments already fully considered" in the court's
summary judgment ruling. For instance, Garco has failed to demonstrate
that newly discovered or additional evidence was adduced after the
summary judgment ruling or that material facts had changed. SeeSittner
v. Big Horn Tar Sands & Oil, Inc., 692 P.2d 735, 736 (Utah 1984).
Rather, Garco filed its cross-motion for partial summary judgment
before
the court dismissed Garco's complaint.
¶61.
We therefore hold that the
trial court did not abuse its discretion in denying Garco's motion to revise.
D. Motion to Strike
¶62.
Relying on State v. Phathammavong,
860 P.2d 1001 (Utah Ct. App. 1993), the trial court struck several portions
of Garco's reply memorandum in support of its motion to revise because
they were not previously raised in Garco's initial memorandum and did not
rebut matters raised in Reagan's opposing brief. Garco challenges this
ruling.
¶63.
A trial court may grant
a motion to strike issues raised for the first time in a reply memorandum.
See
id. at 1003-04. To allow a party to raise new issues in its rebuttal
materials is improper because it precludes the other party the opportunity
to respond. See id. As we indicated in Phathammavong, a reply
memorandum is limited to rebutting matters raised in the memorandum opposing
the motion.
See id. at 1004 & n.6.
¶64.
Garco argues that its reply
memorandum rebutted new matters set forth in Reagan's opposing brief. However,
after carefully reviewing the parties' memoranda, we agree with the trial
court that the arguments raised in Garco's reply memorandum are new and
did not answer matters raised in Reagan's memorandum. Therefore, we hold
that the trial court did not err in granting Reagan's motion to strike.
CONCLUSION
¶65.
In summary, we affirm the
trial court's order dismissing Garco's complaint in its entirety, the trial
court's order denying Garco's motion for revision, and granting Reagan's
motion to strike portions of Garco's reply memorandum.
¶66.
Affirmed.
______________________________
James Z. Davis, Judge
-----
¶67
I CONCUR:
______________________________
Judith M. Billings, Judge
1. The trial court contemporaneously entered an order dismissing Reagan's counterclaim without prejudice, thereby disposing of all remaining issues in the case.
2. Because Garco's notice of appeal was sufficient to appeal the summary judgment, Reagan's claim that Garco failed to perfect its appeal under Rule 3(d) of the Utah Rules of Appellate Procedure necessarily fails. Reagan does not argue that it was in any way prejudiced by Garco's failure to particularly reference the summary judgment in its notice of appeal. Although Reagan suggests that it was not clear until the docketing statement was filed which May 1, 1998 order Garco was appealing, it is difficult to imagine that Reagan believed that Garco was appealing only the stipulated dismissal of Reagan's counterclaim.
3. We also note that Garco's unconscionability argument was stricken by the trial court.
4. The record suggests, however, that Garco had in its possession an unsigned version of the lease.
5. Garco relies on section 160 of the Restatement (Second) of Torts to support his argument that Reagan was under a legal duty to remove the foundation. Section 160 provides, in relevant part: A trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor or his predecessor in legal interest has placed on the land (a) with the consent of the person then in possession of the land, if the actor fails to remove it after the consent has been effectively terminated . . . . Restatement (Second) of Torts § 160 (1965) (emphasis added).
Section 160 does not apply
to the fact situation before us. The first comment on subsection (a), comment
d, explains that "[i]f a structure . . . is placed on land with the possessor's
consent conditioned upon the actor's subsequently removing it, the
termination of consent creates a duty to remove it from the land." Restatement
(Second) of Torts § 160 cmt. d (1965) (emphasis added). The only exceptions
to comment d are not relevant here. Thus, a tenant's duty to remove a structure
at the end of a lease arises from the terms of the lease.
Notwithstanding, Garco would
have us rely on comment g, which provides, in part:
Mistaken belief
that license is irrevocable. Even though the actor or his transferor
has not agreed to remove the structure . . . from the land upon the termination
of the license pursuant to which it was placed there, as where the parties
act under a mistaken belief that the license is irrevocable, the termination
of the license creates a situation in which the rule stated in this Section
applies.
Restatement (Second) of Torts
§ 160 cmt. g (1965).
Any apparent inconsistency between comments d and g appears to be resolved by the title to comment g limiting that comment to situations when there is a "[m]istaken belief that [a] license is irrevocable." Id. (emphasis omitted). Thus, Garco's reliance on comment g is misplaced.
Garco also relies on section
158 of the Restatement (Second) of Torts (1965), section 12.2 of the Restatement
(Second) of Property (1977), and section 81 of 25 Am. Jur. 2d Easements
(1996). However, section 158 requires a tenant to remove a structure only
when the tenant is "under a duty" to do so. Restatement (Second) of Torts
§ 158(c) (1965). Reagan was under no duty to remove the sign or the
foundation. Garco's section 12.2 analysis assumes there was no valid lease
between Garco and Reagan. Having determined that a lease was in place and
that it is inappropriate under the facts of this case for a court to impose
rights and/or obligations on parties which are not supported by their contract,
Garco's section 12.2 argument fails. Based on our holding that Reagan did
not have a duty to remove the foundation, Garco's argument under section
81 of 25 Am. Jur. 2d Easements that Reagan exceeded the scope of
its easement is inapplicable on its face. See 25 Am. Jur. 2d Easements
§ 81 (1996) ("The owner of an easement is said to have all rights
incident or necessary to its proper enjoyment, but nothing more. . . .
[I]f the easement owner exceeds his rights . . . he becomes a trespasser
. . . .").
We also reject Garco's analysis
regarding the issue of waste because it was not raised below. SeeState
v. Amoroso, 975 P.2d 505, 507 (Utah Ct. App. 1999) ("[P]roper preservation
requires that the parties 'bring the issue to the attention of the trial
court, thus providing the court an opportunity to rule on the issue's merits.'"
(quoting Ohline Corp. v. Granite Mill, 849 P.2d 602, 604 n.1 (Utah
Ct. App. 1993) (citations omitted))).
6. Section 78-36-3 provides in pertinent part: (1) A tenant of real property, for a term less than life, is guilty of an unlawful detainer: (a) when he continues in possession . . . of the property or any part of it, after the expiration of the specified term or period for which it is let to him, which specified term or period, whether established by express or implied contract, or whether written or parol, shall be terminated without notice at the expiration of the specified term or period;
(b) when, having leased real property for an indefinite time with monthly or other periodic rent reserved:
. . . .
(ii) in cases of
tenancies at will, where he remains in possession of the premises after
the expiration of a notice of not less than five days . . . .
Utah Code Ann. § 78-36-3
(1996).
7. Garco's appellate brief fails to substantively present and analyze this issue. Because of this deficiency we may decline to address this argument for failure to comply with appellate briefing requirements. See State v. Thomas, 974 P.2d 269, 272 (Utah 1999). However, Garco's reply brief adequately addresses the issue. While we do not examine issues argued for the first time in a reply brief, see Sorenson v. Kennecott-Utah Copper Corp., 873 P.2d 1141, 1143 n.2 (Utah Ct. App. 1994) (refusing to examine issue argued only in reply brief because opponent had no opportunity to respond), in this instance the issue was raised in the initial brief, thereby avoiding total surprise to appellee, and developed adequately for our review.
8. Garco mentions in passing, but presents no meaningful argument regarding a claim that it "more fully briefed issues raised earlier," and "showed why the trial court should have corrected its own errors." As such, we do not address these issues further.
9. Even if we assume the "new evidence" to which Garco refers is the affidavits supporting its cross-motion for partial summary judgment, these affidavits were before the court when it ruled on Reagan's summary judgment motion, as Garco candidly admits in its brief. As such, the affidavits do not qualify as newly discovered evidence sufficient to require the court to reconsider its prior decision. -----
WILKINS, Presiding Judge (concurring in part and dissenting in part):
¶68
I concur in the result reached
by the majority, affirming the action of the trial court. However, I respectfully
dissent with respect to the opinion expressed by the majority regarding
this court's ability to review the December 29, 1997 summary judgment against
Garco by which its entire complaint against Reagan was dismissed.
¶69
Rule 3(d) of the Utah Rules
of Appellate Procedure requires that a notice of appeal "designate the
judgment or order, or part thereof, appealed from." As we said in M.L.
& S.L. v. V.H. (In re Baby Boy Doe), 894 P.2d 1285 (Utah Ct. App.
1995), "the object of a notice of appeal is to advise the opposite party
that an appeal has been taken from a specific judgment in a particular
case." Id. at 1286 n.1 (emphasis in original); see also Nunely
v. Stan Katz Real Estate, Inc., 15 Utah 2d 126, 128, 388 P.2d 798,
800 (Utah 1964) (holding that "[r]espondent is entitled to know specifically
which judgment is being appealed"). When a party does not refer to an order
in its notice of appeal, we are without jurisdiction to hear an appeal
of the order.
¶70
In this instance, Garco
filed a notice of appeal that referenced only "the final order of the Honorable
William B. Bohling entered in this matter on May 1, 1998." In fact, two
orders were entered by the trial court dated May 1, 1998. One order denied
Garco's Rule 54(b) motion to reconsider the judgment against Garco entered
on December 29, 1997. That order also granted Reagan's motion to strike
several potions of Garco's reply memorandum submitted in support of the
54(b) motion. The second order of May 1 dismissed Reagan's counterclaim.
On appeal, Garco raises no issue regarding dismissal of Reagan's counterclaim.
¶71
As accurately stated by
the majority, "Kennecott,
Zions, and Jensen clearly
and unambiguously stand for the proposition that a party who seeks to appeal
a non-final summary judgment need not specifically identify that summary
judgment in the notice of appeal, but need only identify a final judgment
that relates to that summary judgment." In all three cases relied upon
by the majority, the summary judgment sought to be challenged on appeal
was followed by a trial, a verdict, and a final judgment which incorporated
the consequences of the earlier, preliminary order. Garco's appeal is different.
¶72
The problem with Garco's
notice of appeal is that neither of the orders entered on May 1, 1998 were
final judgments. Both were post-judgment orders that had
the effect of making the summary judgment of December 29, 1997 final and
appealable. The May 1 order that Garco and the majority hang their collective
hat on is not even the one that made the earlier summary judgment final.
They rely on the order denying the post-judgment Rule 54(b) relief.
¶73
At the time Garco appealed
the May 1, 1998 order relating to the post-judgment 54(b) motion, Garco
could have appealed the December 29, 1997 judgment. It did not.(1)
¶74
The purpose of the notice
of appeal is to give notice of the pending appeal not only to the court,
but also to the appellee. During the fourteen days following the filing
of the notice of appeal, the appellee has the right to file its own notice
of cross-appeal. If the appellant does not give notice of issues it plans
to pursue on appeal in the notice of appeal, the appellee has the right
to assume that those issues have been waived, and will play no part in
the appeal. Had Garco specifically identified the December 29th order in
its notice of appeal, giving Reagan the required notice of what it intended
to contest on appeal, we would have had jurisdiction to consider those
claims. However, because Garco failed to identify the December 29th order
in its notice of appeal, we have no jurisdiction to address those questions.
¶75.
It follows that if this
court lacks jurisdiction to consider the issues raised by Garco relating
directly to the December 29th summary judgment, I dissent from both sections
A. and B. of the majority's analysis. As I have said, I reach the opposite
result in section A., namely that we do not have jurisdiction to consider
the claims. Consequently, I would neither reach nor address the issues
reached by the majority in section B.
¶76.
I concur in the result reached
in section C. and with the analysis except to the degree that the majority
suggests that the May 1st order on the post-judgment Rule 54(b) motion
is a final judgment in this case.
¶77 I fully concur with
the majority's analysis and result in section D. regarding the motion to
strike.
______________________________
Michael J. Wilkins,
Presiding Judge
1. Twenty-one days after filing the defective notice of appeal, Garco filed its docketing statement with this court as required by Rule 9 of the Rules of Appellate Procedure. In the docketing statement, for the first time, Garco identified both the May 1, 1998 order and the December 29, 1997 judgment under the heading of "Date of entry of judgment or order appealed from." It also correctly identified the 54(b) motion that led to the May 1 order under the heading of "Post Judgment Motion."
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