Utah Department of Transportation v. Walker Development Partnership

¶1 In 1992, the Utah Department of Transportation (UDOT)

condemned property belonging to Walker Development

Partnership. After nearly twenty years of litigation between UDOT

and Walker, UDOT moved to exclude evidence that it took

property not identified in the 1992 Condemnation Resolution. The

district court granted UDOT's motion to exclude. We affirm.

UDOT v. Walker Development

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BACKGROUND

¶2 Wasatch Boulevard traces the foot of the Wasatch

Mountains on the eastern edge of Salt Lake City. It stretches just

over ten miles from Parley's Canyon, where Interstate 80 drops

into the Salt Lake Valley, to Big and Little Cottonwood Canyons,

which provide access to several of Utah's largest ski resorts. One

segment of Wasatch Boulevard leads from Interstate 215, a belt

route encircling Salt Lake City, to the mouth of Big Cottonwood

Canyon. That segment is the subject of the dispute between UDOT

and Walker.

¶3 In the late 1980s, UDOT developed a plan to widen Wasatch

Boulevard from two lanes to four. In 1992, UDOT filed a

condemnation action. In the complaint, UDOT stated that it sought

"to acquire by this proceeding” all of Walker's property "described

and set forth” in the Condemnation Resolution, which the

complaint quoted in full. The complaint asked the district court to

"determine and adjudicate the amount to be paid . . . as just

compensation.”

¶4 In its answer, Walker asserted that the Condemnation

Resolution amounted to a government taking without due process

or proper compensation. However, Walker did not challenge the

Condemnation Resolution's description of the condemned

property.

¶5 After UDOT filed its complaint, the progress of this case

slowed. In 1994, in response to a motion by Walker, the district

court fixed the valuation date for the condemned property at July

10, 1992. In 1995, the court denied Walker summary judgment on

its gravel-removal counterclaim. Discovery remained open until

December 2011, and the district court postponed a jury trial once

scheduled for November 2012 to await the resolution of this

appeal.

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¶6 UDOT's motion to exclude evidence, at issue here, targets

information provided by one of Walker's experts. In January 2011,

Walker received a letter from its appraiser, Troy Lunt. Lunt's letter

explained the relationship between the pre-expansion right-of-way

and the value of the Walker parcels UDOT described in the

Condemnation Resolution:

There is reportedly some dispute as to the width of

the Wasatch [Boulevard] right of way in the before

condition. [Walker] contends that the right of way

was never formally conveyed[,] meaning that the

right of way has potentially been established only by

use. If such is the case, the right of way, according to

my understanding of the state statute, would be

limited to that area necessary to safe use of the

roadway. Based on [outside evaluation], roadway

width including shoulders is estimated at 50

feet. . . . The difference [in area between the UDOT

estimate and the outside estimate] is 366,841 square

feet or 8.42 acres. If indeed this additional acreage

was not existing right of way in the before condition,

compensation to the property owner may be

appropriate.

Lunt estimated the disputed 8.42 acres to be worth $757,800.

¶7 In November 2011, after receiving a copy of Lunt's letter,

UDOT filed a "Motion in Limine Re: Increased Taking” asking the

court to enter an order preventing Walker from "presenting

evidence or making a claim that UDOT took property belonging to

Walker . . . encompassing an area larger than that set forth in the

Condemnation Resolution underlying this lawsuit.” UDOT

attached a copy of Lunt's January 2011 letter to that motion. UDOT

argued that the pre-expansion right-of-way issue discussed in

Lunt's letter "has no relevance to the value of the property being

UDOT v. Walker Development

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condemned.” If Walker sought compensation for the pre-expansion

right-of-way crossing its property, UDOT asserted, the proper

procedure was to file a separate claim "premised upon a theory of

trespass or taking by inverse condemnation.”

¶8 Walker's response to UDOT's motion in limine argued that

the scope of the pre-expansion right-of-way became an issue as

soon as the parties filed their first pleadings. Walker asserted that

the pre-expansion right-of-way issue "is directly related to, and

inextricably connected with, the issue of just compensation.”

Walker reasoned that the district court could not "possibly

determine just compensation for the property taken by

UDOT . . . without first determining what property UDOT actually

took” and could not "possibly determine what property UDOT

took without first determining the extent of any prescriptive

roadway over [Walker's] property.”

¶9 The district court granted UDOT's motion in limine in June

2012. The district court's order did not state its reasons for granting

the motion. The effect of the order, however, was clear: it

prevented Walker from "presenting evidence or making a claim

that UDOT took property belonging to Walker . . . encompassing

an area larger than that set forth in the Condemnation Resolution

underlying this lawsuit.”

¶10 Shortly thereafter, Walker moved for leave from the district

court to amend its 1992 answer to include counterclaims related to

the pre-expansion right-of-way. Walker also filed a petition for

interlocutory appeal of the court's June 2012 order. This court

ordered that Walker's petition to appeal be deferred pending the

district court's resolution of Walker's motion to amend its 1992

answer. In October 2012, the district court denied Walker's motion

to amend and we granted Walker's motion for interlocutory

appeal.

UDOT v. Walker Development

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ISSUE AND STANDARD OF REVIEW

¶11 Walker contends that the district court erred in granting

UDOT's motion to exclude, because determining the scope of the

pre-expansion right-of-way is a necessary step in determining the

value of the condemned property. Generally, "[i]n reviewing the

exclusion of evidence, we grant a trial court broad discretion to

admit or exclude evidence and will disturb its ruling only for abuse

of discretion.” Ferguson v. Williams & Hunt, Inc., 2009 UT 49, ¶ 43,

221 P.3d 205 (citation and internal quotation marks omitted). But

when a district court's decision on a motion to exclude is based

wholly on a legal conclusion, "the proper standard of review is a

correctness standard” and we therefore "afford the [district] court's

conclusions no deference.” Ford v. American Express Fin. Advisors,

Inc., 2004 UT 70, ¶¶ 33–34, 98 P.3d 15.

ANALYSIS

¶12 The gist of Walker's claim as we understand it is that UDOT

took more property than it condemned and that it did so in two

ways.

¶13 First, Walker contends, UDOT took property that the parties

agree lies outside the property description in the Condemnation

Resolution—specifically, the strip of property subject to the preexpansion

right-of-way. Without a judicial determination that

Wasatch Boulevard had been dedicated and abandoned before

1992, "Walker is presumed to be the owner of the land under the

claimed right-of-way.” In Walker's view, UDOT has a choice: it

must prove that Wasatch Boulevard had been dedicated and

abandoned by judicial determination or "pay Walker for all of the

land underlying the claimed right-of-way.” It must, simply put,

either prove that it owns that strip or pay for it.

¶14 Second, Walker contends that even if UDOT already

controlled the pre-expansion right-of-way, that right-of-way is

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narrower than the property description in the Condemnation

Resolution assumes that it is. The result, according to Walker, is

that the property description in the Condemnation Resolution

encompasses more acreage than UDOT acknowledges.

¶15 UDOT responds that the taking of property not described in

the Condemnation Resolution or the pleadings "is simply not

relevant to the issues before the Court.” UDOT argues that if it took

additional property, that taking constituted "a separate and

unrelated wrongful act.” Thus, while Walker's claim that UDOT

took more property than it condemned might be the substance of

a trespass or inverse condemnation claim, Walker failed to bring

those claims in its answer and the statute of limitations on an

inverse condemnation claim has now run.

¶16 Article I, section 22 of the Utah Constitution states, "Private

property shall not be taken or damaged for public use without just

compensation.” "[W]hen the requirement of 'just compensation' is

triggered, the landowner is entitled to compensation to the extent

of the damages suffered”—that is, "the owners must be in as good

a position money wise as they would have occupied had their

property not been taken.” Utah Dep't of Transp. v. Admiral Beverage

Corp., 2011 UT 62, ¶ 20, 275 P.3d 208 (citations and internal

quotation marks omitted).

¶17 Eminent domain may be exercised for the purpose of

establishing "roads, streets, and alleys.” Utah Code Ann. § 78-34-

1(3) (Michie 1992). An eminent domain complaint must contain "a

description of each piece of land sought to be taken” and must

indicate whether the land sought "includes the whole or only part

of an entire parcel or tract.” Id. § 78-34-6(5). Our supreme court

elaborated on this statutory requirement:

The petition [exercising eminent domain] must

contain an accurate description of the land sought to

be taken, so that the extent of the claim will appear

on the record. In the absence of an opportunity to

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amend the petition, failure in this respect will

invalidate the proceeding. . . . [T]he land must be so

exactly described as to be understood by an ordinary

person who has no engineering knowledge.

Ash v. State, 572 P.2d 1374, 1377 (Utah 1977) (quoting 6 Nichols on

Eminent Domain § 26.112, at 26-48.1 to 26-57 (3d ed. 1950)).

¶18 Furthermore, "[i]f private property is taken or damaged for

public use absent formal use of Utah's eminent domain power, a

'property owner may bring an inverse condemnation action under

article I, section 22 to recover the value of the property.'” Gardner

v. Board of County Comm'rs, 2008 UT 6, ¶ 28, 178 P.3d 893 (quoting

Farmers New World Life Ins. Co. v. Bountiful City, 803 P.2d 1241, 1243

(Utah 1990)). However, "where a direct condemnation action has

been filed, an inverse condemnation claim will not be ripe until the

direct condemnation action has ended because, as long as the direct

condemnation action is active, there is a very real possibility that

the landowner will receive just compensation from the

government.” Wintergreen Group, LC v. Utah Dep't of Transp., 2007

UT 75, ¶ 10, 171 P.3d 418.

¶19 Utah's Rights-of-Way Act creates an exception to the

government's obligation to provide compensation when taking

private property. The act "allows property to be transferred from

private to public use without compensation” if the property has

been "dedicated and abandoned to the use of the public.” Wasatch

County v. Okelberry, 2008 UT 10, ¶ 9, 179 P.3d 768 (citation and

internal quotation marks omitted). A highway is "dedicated and

abandoned to the use of the public when it has been continuously

used as a public thoroughfare for a period of ten years.” Utah Code

Ann. § 27-12-89 (Michie 1989) (current version at Utah Code Ann.

§ 72-5-104(1)(a) (LexisNexis Supp. 2013)). Dedication creates a

public right-of-way. Mason v. State, 656 P.2d 465, 471 (Utah 1982).

The width of that right-of-way "is determined according to what

is reasonable and necessary under all the facts and circumstances.”

Memmott v. Anderson, 642 P.2d 750, 754 (Utah 1982). "[T]he burden

UDOT v. Walker Development

1. After the condemnation at issue here, our legislature codified

these common-law principles of abandonment and public

dedication. See Road on Public Lands Act, ch. 324, § 7, 2000 Utah

Laws 1403, 1405 (codified at Utah Code Ann. § 72-5-104(2), (3)

(LexisNexis Supp. 2000)) (stating that "dedication and

abandonment creates a right-of-way held by the state” and that

"[t]he scope of the right-of-way is that which is reasonable and

necessary to ensure safe travel according to the facts and

circumstances”) (current version at Utah Code Ann. § 72-5-

104(7), (8) (LexisNexis 2012)); Dedication and Abandonment of

Public Highways Act, ch. 341, § 1, 2011 Utah Laws 2010, 2010

(codified at Utah Code Ann. § 72-5-104(6)(a) (LexisNexis Supp.

2011)) ("The burden of proving dedication . . . is on the party

asserting the dedication.”).

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of establishing public use for the required period of time is on those

claiming it.” Bonner v. Sudbury, 417 P.2d 646, 648 (Utah 1966); see

also Okelberry, 2008 UT 10, ¶ 9 (same).1

¶20 Here, Walker contends that UDOT must prove in this

proceeding that the current Wasatch Boulevard has already been

dedicated and abandoned to public use. UDOT responds that

Walker is asserting this claim too late.

¶21 Utah's pleading requirements do not allow a party to amend

its pleadings by raising "novel claims or theories for recovery” in

later stages of the litigation. See Holmes Dev., LLC v. Cook, 2002 UT

38, ¶ 31, 48 P.3d 895 (citing Utah R. Civ. P. 7–10). The "assertion

of . . . unpleaded claims in briefing and argument before the district

court and on appeal cannot remedy the failure to include them in

an appropriate pleading.” Barton Woods Homeowners Ass'n, Inc.

v. Stewart, 2012 UT App 129, ¶ 11, 278 P.3d 615; see also Asael Farr

& Sons Co. v. Truck Ins. Exch., 2008 UT App 315, ¶ 19, 193 P.3d 650.

¶22 UDOT's 1992 complaint announced UDOT's intention to

acquire the Walker property described in the Condemnation

UDOT v. Walker Development

2. The Utah Rules of Civil Procedure do allow parties to amend

their pleadings to add omitted claims or to conform their existing

claims to the evidence if the court grants leave for them to do so.

See Utah R. Civ. P. 13(e), 15(b). After the district court granted

UDOT's motion to exclude, Walker moved for leave to amend its

answer and its counterclaim. The district court denied Walker's

motion to amend, and that denial is not before us on appeal.

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Resolution and asked the district court to "determine and

adjudicate the amount to be paid therefor as just compensation.”

In its answer, Walker asserted three defenses. But Walker did not

assert, as either a defense or a counterclaim, that Wasatch

Boulevard had never been dedicated and was thus being

condemned in the present proceeding. In fact, Walker raised the

Rights-of-Way Act for the first time in its 2011 memorandum

opposing UDOT's motion to exclude evidence. Nor did Walker

assert in its answer that the property description in the

Condemnation Resolution exaggerated the width of the preexpansion

right-of-way.

¶23 Utah's pleading requirements do not permit Walker to raise

these defenses for the first time in a memorandum opposing

UDOT's motion to exclude evidence filed nearly twenty years after

its answer. See Holmes, 2002 UT 38, ¶ 31.2 Accordingly, Walker is

not entitled to compensation in this proceeding for the alleged

taking of property not described in the Condemnation Resolution.

We therefore affirm the district court's order granting UDOT's

motion to exclude evidence.

¶24 Furthermore, we agree with UDOT that Walker is entitled

to compensation in this proceeding only for the property UDOT

condemned as described in the Condemnation Resolution,

including its estimate of the width of the pre-expansion right-ofway.

If, as Walker contends, UDOT took more property than it

condemned, that act may support (or have supported) a cause of

UDOT v. Walker Development

3. For example, Walker may argue that in describing Parcel No.

068:8:2A, UDOT asserted that it took only 0.181 of the plot's 4.055

acres, "more or less.” In an inverse condemnation claim, Walker

may contend that the pre-expansion right-of-way was much

narrower than the 1992 Condemnation Resolution indicates and

that therefore UDOT took significantly more than the 0.181 acres

of Parcel No. 068:8:2A UDOT asserted. But like the district court,

we give priority to the description contained in the Condemnation

Resolution—UDOT meant to take only the 0.181 acres of Parcel

068:8:2A that it described.

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action against UDOT for that uncompensated taking.3 But because

no such cause of action has been pleaded, we express no opinion as

to its merits or the merits of any defenses that UDOT might assert,

such as the running of the statute of limitations. See Fundamentalist

Church of Jesus Christ of Latter-Day Saints v. Lindberg, 2010 UT 51,

¶ 40, 238 P.3d 1054 (explaining the ripeness doctrine, which "serves

to prevent courts from issuing advisory opinions on issues that are

not ripe for adjudication” (citation and internal quotation marks

omitted)); Velasquez v. Harman–Mont & Theda, Inc., 2014 UT App 6,

¶¶ 18–21 ("[A]lthough we have authority to provide guidance to

the district court on remand, that authority does not confer upon

us the discretion to render advisory opinions on matters that might

never arise.” (footnote omitted) (citation omitted)).

¶25 In its 1992 answer, Walker did not argue that the preexpansion

right-of-way had never been dedicated and abandoned.

Utah’s pleading requirements do not allow Walker to raise that

theory for the first time in a memorandum opposing a motion to

exclude evidence. We therefore affirm the district court’s exclusion

of evidence that UDOT took additional Walker property not

described in the Condemnation Resolution.