Betty Keith v. Mountain Resorts Development, LLC

¶ 1 This case is about land in Park City, Utah—a little town

that has undergone many transformations. Mormon pioneers first

traveled through the area on their way to Salt Lake City. When

prospectors discovered silver in the hills, it became a mining

boomtown, then, when the price of silver fell, it was nearly

deserted as a ghost town—but industrious residents reinvented it

KEITH v. MOUNTAIN RESORTS

Opinion of the Court

2

as a luxury resort destination, which it remains today. At the

heart of this appeal is a dispute about land once owned by one of

the original Park City mining magnates—appellant's greatgrandfather,

Mr. David Keith—who along with Mr. Thomas

Kearns founded the highly successful Silver King Mining

Company in Park City in the 1890s. The property that gave rise to

this dispute is located near what is now the luxury ski resort Deer

Valley. Appellant, Ms. Betty Keith, and her two siblings,

Ms. Geneva Keith Ulm and Mr. David Keith IV, inherited the

parcels of land at issue from their father, Mr. David Keith III.

Following the bequest, the siblings owned the relevant parcels as

tenants in common with each other and with United Park City

Mines (UPCM).

¶ 2 After Ms. Keith inherited the property in 1996, she and

UPCM decided to jointly develop the parcels. In 2002, the parties

submitted a development plan to the county, which was

approved. UPCM was later acquired by Talisker Corporation,

Mountain Resort Developments' (MRD) parent company.

Unfortunately, MRD and Ms. Keith could not agree how to jointly

develop the property, nor could they agree on a purchase price for

Ms. Keith's interest in the parcels. In 2005, after several years of

unsuccessful negotiation, MRD filed an action to partition the

property. The parties ultimately entered a settlement agreement

(2005 settlement agreement) and exchanged interests in the

parcels. Ms. Keith gained an undivided interest in parcel A and

MRD received an undivided interest in parcels B and C.

Thereafter, MRD asserted that Ms. Keith had retained no

development rights under the development plan. Ms. Keith sued

for breach of contract, fraudulent inducement, and tortious

interference with prospective economic relations, among other

claims. The district court granted summary judgment to MRD

and dismissed all of Ms. Keith's claims. We affirm.

BACKGROUND

¶ 3 In early 2002, Ms. Keith and UPCM agreed that UPCM

would submit an application to Wasatch County for approval of a

large real estate development—”Pioche Mountain Estates”—on

the common property (development plan). The proposed

development covered 321 acres; contained 183 "equivalent

Cite as: 2014 UT 32

Opinion of the Court

3

residential units” (ERUs)1 including condominiums, ski lodges,

and residential lots; and spanned the entirety of the three parcels

commonly owned by Ms. Keith and UPCM (later MRD). Wasatch

County approved the preliminary development plan (2002

approval).

¶ 4 Ms. Keith and MRD began to disagree about the

development. They could not agree how to proceed together nor

on a purchase price for Ms. Keith's interests in the three parcels.

They continued to negotiate and exchanged various offers in an

attempt to reach an agreement.

¶ 5 On April 30, 2004, MRD made an offer to exchange

interests in the parcels with Ms. Keith and share in development

costs "based upon our proportionate densities” (2004 settlement

offer). Under the terms of this offer, Ms. Keith would have

continued as part of the development and would have shared in

the development costs based upon the number of ERUs in

proportion to her property interest. Ms. Keith rejected the offer.

¶ 6 In 2004, MRD purchased Ms. Keith's siblings' interests in

the parcels.2 At that point, MRD owned all of parcels A, B, and C,

except for Ms. Keith's interests. Ms. Keith's interests comprised

one-third of parcel A, 8.3 percent of parcel B, and 11.12 percent of

1 An ERU is the Wasatch County equivalent of a development

right that assigns density to the development. Development

rights in Wasatch County's "Mountain Zone” are assigned based

in part upon the open space available to support such

density. WASATCH CNTY., UTAH, CODE §§ 16.29.08, -14

(Sterling 2013); available at http://www.sterlingcodifiers.com

/codebook/index.php?book_id=940. Because the relevant

provisions of the Wasatch County Code are substantively

identical, as a convenience to the reader we cite throughout this

opinion to the current version of the code.

2 The special warranty deed granted by Ms. Keith's siblings to

MRD specified that the land was transferred, together with "all

right, title and interest of the Grantor in and to all improvements

located on the Property, all appurtenances, easements, rights-ofway

and all other rights and privileges appertaining to the

Property, [and] all development entitlements, approvals and permits

pertaining to the Property.” (emphasis added).

KEITH v. MOUNTAIN RESORTS

Opinion of the Court

4

parcel C. Parcel A consisted of approximately forty acres. Parcels

B and C together covered approximately 280 acres.

¶ 7 In January 2005, MRD sought legal partition of its

ownership interest from Ms. Keith's ownership interest in parcels

A, B, and C, while continuing to engage in settlement negotiations

with Ms. Keith. On April 28, 2005, Ms. Keith submitted an offer to

settle the partition action (2005 settlement offer). She made two

offers:

First . . . [Ms. Keith] is willing to make an offer of

$5,100,000 for [MRD's] interest in the parcels. In the

alternative, she would trade her interest in all other

parcels if [MRD] would convey to her a hundred

percent interest in Parcel A.

¶ 8 MRD accepted the second offer on the terms stated by

Ms. Keith. Ms. Keith and MRD exchanged special warranty deeds

whereby MRD conveyed all of its interest in parcel A and

Ms. Keith conveyed to MRD all of her interest in parcels B and C.

The parties then stipulated to the dismissal of the partition action.

¶ 9 The special warranty deeds exchanged by the parties

contained mirror language expressing the intent to mutually

exchange 100 percent interest in the respective parcels,

Together with all the appurtenances, rights and

privileges thereunto belonging; and Subject to

restrictions, reservations, covenants, conditions,

easements and right-of-ways now of record, all other

matters now of record, and general property taxes,

assessments and charges for the year 2005 and

thereafter.3

¶ 10 Following the settlement, Ms. Keith discovered that

MRD no longer considered her a part of the Pioche development

plan and instead intended to pursue the development plan

without her and without parcel A, which Ms. Keith now owned in

3 The deed Ms. Keith granted to MRD and the mirror deed

MRD granted her are different from the deeds Ms. Keith's siblings

granted to MRD. Specifically, Ms. Keith's deed omits the

language purporting to grant "all development entitlements,

approvals and permits pertaining to the Property.”

Cite as: 2014 UT 32

Opinion of the Court

5

its entirety. The parties do not dispute that MRD informed

county officials and potential buyers of Ms. Keith's property that

MRD had retained all 183 ERUs approved in the 2002 approval of

the Pioche development and that it believed that no ERUs were

transferred to Ms. Keith in the settlement agreement.4

¶ 11 After the exchange of deeds under the 2005 settlement

agreement, Ms. Keith continued to pay Wasatch County for fortyeight

ERUs as they related to the water rights of the property.

Additionally, a comparison of the map of parcel A with the

proposed layout for Pioche Mountain Estates shows that four

townhome buildings—each containing between ten and thirteen

units—and four ski club buildings were to be located on parcel A

under the 2002 approval.

¶ 12 Ms. Keith sued MRD for breach of contract, breach of

warranty, fraudulent inducement, tortious interference with

prospective economic relations, declaratory relief, and to quiet

title.5 The parties filed cross-motions for summary judgment and

the district court found in favor of MRD on all claims.

¶ 13 The district court granted summary judgment in favor of

MRD on Ms. Keith's claims of breach of contract and breach of

warranty because it held that MRD and Ms. Keith could not

lawfully transfer ERUs that the Wasatch County Planning

Commission had granted under the 2002 approval. This decision

was based on the district court's interpretation of Wasatch

4 Wasatch County Code requires 160 acres minimum for a

large development in the Mountain Zone. WASATCH CNTY., UTAH,

CODE § 16.09.03 (Sterling 2013). Parcel A was about forty acres.

Thus, outside of the 2002 approval, Ms. Keith officially retained

only the ability to build at most two single family homes on her

parcel. MRD attempted to go forward with the Pioche

development on its land. MRD's parcels, B and C, together were

well over 160 acres.

5 Ms. Keith also sued Wasatch County. In 2010, to resolve the

litigation, the County conditionally approved fifty-four ERUs for

Ms. Keith's property. In October 2010, Ms. Keith sold her

property to a third party.

KEITH v. MOUNTAIN RESORTS

Opinion of the Court

6

County, Utah, Code section 16.27.10(C)(3) (Sterling 2013)6 and on

its finding that MRD and Ms. Keith abandoned the development

plan and decided to develop their respective parcels separately.7

¶ 14 The district court granted summary judgment in favor of

MRD on Ms. Keith's claim for fraudulent inducement because it

found that Ms. Keith did not present sufficient evidence of the

elements required for fraudulent inducement. The court found

that Ms. Keith presented (1) no evidence that MRD "made any

representation about apportionment or transfer of ERUs which

[Ms.] Keith relied upon in entering into the settlement agreement”

and (2) no evidence that MRD intended to deceive Ms. Keith

when the parties entered into the settlement agreement.

¶ 15 Finally, the district court concluded that as a matter of

law, under the undisputed facts, MRD did not tortiously interfere

with Ms. Keith's contractual interests by an improper means or

6 Previously codified at WASATCH CNTY., UTAH, CODE

§ 16.27.10(3)(c) (Sterling 2010).

7 The district court interpreted the Wasatch County Code

phrase, "Preliminary approvals shall be for the entire property,”

to mean that in the 2002 preliminary approval the Wasatch

County Planning Commission allocated 183 ERUs for the entire

321-acre property—parcels A, B, and C. The district court

reasoned that "[t]he only right to ERUs transferred to Keith under

the settlement agreement was conditioned upon development of

parcels A, B, and C consistent with the 2002 preliminary plan.”

But the district court found that Ms. Keith and MRD had

abandoned the preliminary plan by settling the partition action.

The district court further concluded that any transfer of ERUs

from MRD to Ms. Keith in the settlement agreement was legally

impossible because reallocation of ERUs for separately planned

and developed parcels is a government function. Finally, the

district court concluded the settlement agreement did not transfer

ERUs to Ms. Keith even if it were legally possible to do so. It

reasoned that because MRD and Ms. Keith never agreed upon the

"number of ERUs to be allocated to their respective parcels, or the

method by which this number would be ascertained,” there was

no "meeting of the minds as to this material term” and the

settlement agreement was "unenforceable.”

Cite as: 2014 UT 32

Opinion of the Court

7

for an improper purpose. According to the court, "MRD had a

proper purpose for asserting that it did not transfer ERUs to

[Ms.] Keith,” specifically, its "genuinely held belief” that it did not

transfer any ERUs to Ms. Keith in the settlement agreement. The

court concluded that MRD "did not utilize improper means in

expressing its opinion” about the ERUs because MRD merely

expressed views "regarding the import of legal documents to

public officials at planning meetings in connection with the

planning process.” Ms. Keith appeals the district court's decision

to grant summary judgment on her claims for breach of contract,

breach of warranty, fraudulent inducement, and tortious

interference with prospective economic relations. We find that

the district court properly granted summary judgment in favor of

MRD on all claims and therefore affirm.

ISSUES AND STANDARD OF REVIEW

¶ 16 Ms. Keith appeals the district court's grant of summary

judgment in favor of MRD and corresponding dismissal of all of

Ms. Keith's claims. We review a district court's grant of summary

judgment for correctness and "accord no deference to [its]

conclusions of law.”8 Summary judgment is appropriate only if

"there is no genuine issue as to any material fact” and "the

moving party is entitled to a judgment as a matter of law.”9 In

evaluating whether the district court correctly concluded that

there were no genuine issues of material fact, we construe the

facts and any inferences drawn from those facts in the light that is

most favorable to the nonmoving party, Ms. Keith.10

¶ 17 Ms. Keith also appeals the district court's denial of her

motion for summary judgment on her breach of contract claim.

When a district court interprets a deed as a matter of law, "we

accord its construction no particular weight, reviewing its action

8 Torian v. Craig, 2012 UT 63, ¶ 13, 289 P.3d 479.

9 UTAH R. CIV. P. 56(c).

10 Peterson v. Sunrider Corp., 2002 UT 43, ¶ 13, 48 P.3d 918.

When there are cross-motions for summary judgment, we view

the facts in the light most favorable to the losing party. See

Cabaness v. Thomas, 2010 UT 23, ¶¶ 2–3, 232 P.3d 486.

KEITH v. MOUNTAIN RESORTS

Opinion of the Court

8

under a correctness standard.”11 "Whether a contract” or a deed

"is ambiguous is a question of law, which we review for

correctness.”12 If an ambiguity exists in the deed, then there is a

"factual issue as to what the parties intended,” and summary

judgment would generally be inappropriate.13

ANALYSIS

¶ 18 Ms. Keith argues that MRD improperly made statements

and proceeded as though it had retained all of the ERUs in the

2002 approval because she believes that forty-eight ERUs were

conveyed to her by the special warranty deed. She supports her

position by citing (1) language from MRD's 2004 settlement offer

that suggested her future retention of ERUs, (2) the fact that she

paid for water rights in the amount of forty-eight ERUs on parcel

A, and (3) a comparison of her land map with the Pioche

development map from the 2002 approval, showing the planned

location of buildings and lots. We disagree and therefore affirm

the district court's summary judgment ruling.

I. BREACH OF CONTRACT

¶ 19 Ms. Keith asserts that the district court erred when it

granted summary judgment to MRD on her breach of contract

11 Selvig v. Blockbuster Enters., LC, 2011 UT 39, ¶ 18, 266 P.3d

691 (internal quotation marks omitted); see also Stern v. Metro.

Water Dist., 2012 UT 16, ¶ 21, 274 P.3d 935; Ault v. Holden, 2002 UT

33, ¶ 37, 44 P.3d 781; Cornish Town v. Koller, 758 P.2d 919, 921

(Utah 1988) ("[I]n the absence of ambiguity, the construction of a

deed is a question of law for the court.”).

12 Peterson, 2002 UT 43, ¶ 14; see also Kimball v. Campbell, 699

P.2d 714, 716 (Utah 1985) ("A contract's interpretation may be

either a question of law, determined by the words of the

agreement, or a question of fact, determined by extrinsic evidence

of intent.”).

13 Peterson, 2002 UT 43, ¶ 14 (internal quotation marks

omitted); accord RHN Corp. v. Veibell, 2004 UT 60, ¶ 40, 96 P.3d 935

("[E]xtrinsic evidence is admissible to illuminate the intent of the

parties if the terms of a deed are ambiguous.” (internal quotation

marks omitted)).

Cite as: 2014 UT 32

Opinion of the Court

9

claim.14 She argued below, and renews her argument on appeal,

that MRD breached the terms of the "2005 Settlement Agreement

by refusing to confirm . . . the division of the ERUs that was

agreed to.” Ms. Keith argues that "the terms of the 2005

Settlement Agreement were contained in three documents”—

Ms. Keith's letter making the offer, MRD's letter accepting that

offer, and the deeds themselves.15 MRD agrees that "these

documents constitute the sum total of the parties' agreement” and

characterizes the "contract at issue” as the "settlement

agreement,” which it states "was effected by the exchange of

deeds.” Neither party raised the doctrine of merger, which

"provides that upon delivery and acceptance of an unambiguous

deed, all prior negotiations and agreements are deemed merged

therein.”16 We will ignore this omission, however, because the

contents of the two letters—Ms. Keith's offer and MRD's

14 Ms. Keith also appeals the district court's grant of summary

judgment on her claim of breach of warranty. But she fails to

make any argument that MRD breached a covenant of title. See,

e.g., Sanpete Am., LLC v. Willardsen, 2011 UT 48, ¶¶ 60–62, 269 P.3d

118 (explaining that by law, warranty deeds include certain

covenants of title). Both because Ms. Keith failed to brief her

breach of warranty claim and because the claim appears to have

no merit, we will not address it. See id. ¶ 64 n.14 ("We will not

address inadequately briefed issues”). A special warranty deed is

a deed "in which the grantor covenants to defend the title against

only those claims and demands of the grantor and those claiming

by and under the grantor.” BLACK'S LAW DICTIONARY 477 (9th ed.

2009). Since Ms. Keith did not allege a title defect, her claim for

breach of warranty fails as a matter of law and was appropriately

dismissed.

15 Technically, this would be four documents.

16 Nelson v. Gregory Cnty., 323 N.W.2d 139, 141 (S.D. 1982);

accord Spears v. Warr, 2002 UT 24, ¶ 13, 44 P.3d 742 ("The merger

doctrine, as a general rule, declares that on delivery and

acceptance of a deed the provisions of the underlying contract for

the conveyance are deemed extinguished or superseded by the

deed.” (internal quotation marks omitted)), abrogated on other

grounds by Tangren Family Trust v. Tangren, 2008 UT 20, ¶ 16 n.20,

182 P.3d 326.

KEITH v. MOUNTAIN RESORTS

Opinion of the Court

10

acceptance—neither materially add to nor detract from the

language in the special warranty deeds. 17

¶ 20 Ms. Keith appears to conflate two legal theories. She

argues (1) that the parties intended to include the ERUs granted by

the county in the 2002 approval in their agreement and in the

deeds and (2) that the ERUs were in fact included in the deed's

unambiguous language. To the extent she implies that the parties

intended to include ERUs in the conveyance but mistakenly did

not, she has inadequately briefed a request for deed reformation.

Reformation of a written instrument may be proper when a party

alleges that the writing did not conform to the intent of the

parties.18 However, Ms. Keith has not asked us to reform the

deed, nor has she argued any of the three justifications for

reformation: (1) mutual mistake, (2) unilateral mistake where the

other party knew of the mistake and kept silent, and (3) unilateral

mistake caused by the other party's fraudulent affirmative

behavior.19 Both parties confine their contract analysis to

Ms. Keith's deed, which they both claim was not ambiguous and

should be interpreted as a matter of law. Because Ms. Keith

frames her argument as a question of deed interpretation, and

because we believe this is the proper inquiry, we too will focus

our attention on the deed.

17 Ms. Keith's 2005 settlement offer, which MRD accepted,

consisted of one sentence stating only that Ms. Keith "would trade

her interest in all other parcels if [MRD] would convey to her a

hundred percent interest in Parcel A.” To the extent that

Ms. Keith suggests that this language is relevant to the parties'

intent, she has not adequately briefed this claim. Ms. Keith does

not explicitly argue that language in the 2005 settlement

agreement has independent significance or supplements the deed

language. Nor do she or MRD address the relevance of the

doctrine of merger. Nevertheless, Ms. Keith's breach of contract

claim arises entirely out of the deed language, and thus we will

likewise confine our analysis to the deed.

18 Jensen v. Manila Corp. of the Church of Jesus Christ of Latter-day

Saints, 565 P.2d 63, 64–65 (Utah 1977).

19 See id.

Cite as: 2014 UT 32

Opinion of the Court

11

¶ 21 "Deeds are to be construed like other written

instruments, and where a deed is plain and unambiguous, parol

evidence is not admissible to vary its terms.”20 "[C]ourts

interpreting a deed should employ all appropriate tools of

construction to arrive at the best interpretation of its language.”21

In interpreting a contract or a deed, "we look to the writing itself

to ascertain the parties' intentions.”22 "Specifically, we determine

the parties' intent from the plain language of the four corners of

the deed.”23

¶ 22 "[T]he intention of the parties to a conveyance is open to

interpretation only when the words used are ambiguous.”24

Accordingly, "[i]f the language of the [deed] is unambiguous, the

intention of the parties may be determined as a matter of law

based on the language of the [deed].”25 We hold that the language

used in the special warranty deed granted by MRD to Ms. Keith

was unambiguous and can be interpreted as a matter of law.

¶ 23 The language of the special warranty deeds exchanged

between the parties was identical. Each deed stated, in pertinent

part,

Grantor, hereby CONVEYS AND WARRANTS

specially against all claiming by, through or under

Grantor, and not otherwise, to . . . Grantee . . . all of

Grantor's right, title and interest in the real property

in Wasatch County, State of Utah, as follows: See

[attached land description] . . . Together with all the

appurtenances, rights, and privileges thereunto

belonging; and Subject to restrictions, reservations,

20 Hartman v. Potter, 596 P.2d 653, 656 (Utah 1979); see also Ault

v. Holden, 2002 UT 33, ¶ 37, 44 P.3d 781.

21 Stern v. Metro. Water Dist., 2012 UT 16, ¶ 33, 274 P.3d 935.

22 Selvig v. Blockbuster Enters., LC, 2011 UT 39, ¶ 23, 266 P.3d

691 (internal quotation marks omitted).

23 Ault, 2002 UT 33, ¶ 38.

24 Hartman, 596 P.2d at 656; Cornish Town v. Koller, 758 P.2d 919,

921 (Utah 1988).

25 Peterson v. Sunrider Corp., 2002 UT 43, ¶ 18, 48 P.3d 918.

KEITH v. MOUNTAIN RESORTS

Opinion of the Court

12

covenants, conditions, easements and right-of-ways

now of record, all other matters now of record, and

general property taxes, assessments and charges for

the year 2005 and thereafter.

¶ 24 Both parties present competing interpretations of the

deed language. Namely, the parties dispute whether the deed

language granted the ERUs contained in the 2002 approval.

Though the parties disagree about the meaning of the deed

language "rights, and privileges,” this does not mean that the

deed is ambiguous.26 A deed's language is ambiguous only if the

parties have both advanced a "tenable” interpretation of the

language.27 "[A] party cannot make a successful claim of

ambiguity based on usage of a term that is not reasonable or is the

product of forced or strained construction.”28

¶ 25 Ms. Keith argues that the deed language granting "all of

Grantor's right, title and interest” in the real property, "together”

with all "appurtenances, rights, and privileges” and "[s]ubject to

. . . all other matters now of record” includes development rights.

Specifically, she argues that the density (ERUs) allocated to the

undivided property in the 2002 approval was an independent

right that "vested” in her parcel and survived the transfer of

ownership. Ms. Keith invokes the vested rights doctrine and

argues that the 2002 approval created property rights that vested

in her parcel and were accordingly "rights” and "privileges” as

stated in the deed. We must therefore determine whether the

ERUs were a "vested right” that attached to parcel A and would

have run with the land.29 We hold that, under these

26 Winegar v. Froerer Corp., 813 P.2d 104, 109 (Utah 1991) ("[T]he

fact that the parties differ as to the interpretation of an agreement

does not alone establish that ambiguity exists.”); see also Stern,

2012 UT 16, ¶ 21 n.7 (court will apply "all relevant tools of

construction” before deeming a deed "ambiguous” such that

extrinsic evidence of intent becomes relevant).

27 Daines v. Vincent, 2008 UT 51, ¶ 30, 190 P.3d 1269 (internal

quotation marks omitted).

28 Id. ¶ 30 n.5 (internal quotation marks omitted).

29 We caution that this case does not present the question of

whether or when the provisions of a county's development

Cite as: 2014 UT 32

Opinion of the Court

13

circumstances, they were not; and therefore Ms. Keith's

interpretation of the deed is not reasonable and her breach of

contract claim fails as a matter of law.

¶ 26 We first discuss the nature of a preliminary development

approval and its attendant ERUs. We then determine that the

deed did not include the development rights granted by the 2002

approval. Finally, we conclude that Ms. Keith's interpretation of

the deed language is not reasonable. The plain language of the

deed does not and cannot under these circumstances include the

provisional rights granted by the County in the 2002 approval.

¶ 27 In order to develop property in Wasatch County, as in

most counties, a developer must obtain a permit from the county.

Wasatch County imposes different restrictions depending on the

size of the development, the nature of the development, and the

"zone” that it is in. Each zone has permitted principal uses and

permitted conditional uses. Conditional uses are allowed only if

the county grants the developer a conditional use permit. The

property at issue in this case was in the "Mountain Zone,” and

thus under Wasatch County Code any uses that are part of a

"planned performance development”30 (for example, the

construction of multi-family residences, ski lodges, or hotels) are

conditional uses and would require a conditional use permit.

approval become "vested rights” such that the county can no

longer take them away. Here we are asked to determine whether

ERUs granted by a county in a development approval are "rights”

as between the private parties, not with regard to the government.

30 The Wasatch County Code does not explicitly define

"planned performance development” but states generally that the

"purpose of the Planned Performance Developments Chapter is to

encourage imaginative and efficient utilization of land, to develop

a sense of community, and to ensure compatibility with the

surrounding neighborhoods . . . This is accomplished by

providing greater flexibility in the location of buildings on the

land, the consolidation of open spaces and clustering of dwelling

units.” WASATCH CNTY., UTAH, CODE § 16.29.01 (Sterling 2013). In

2010, the code also stated that planned performance

developments were specifically applicable to only two zones, one

of which was the Mountain Zone. Id. § 16.29.02 (Sterling 2010).

KEITH v. MOUNTAIN RESORTS

Opinion of the Court

14

Additionally, the county code states that planned performance

developments in the Mountain Zone must have a minimum of 160

acres.31

¶ 28 ERU is another way of saying population density.32 The

Wasatch County Code defines ERUs as "[t]he number of

residential equivalents to determine density based on sewer,

water and square footage of a structure.”33 Under the Utah Code,

an ERU is "a dwelling, unit, or development that is equal to a

single-family residence in terms of the nature of its use or impact

on an improvement to be provided in the assessment area.”34

¶ 29 Finally, we note that the Wasatch County Code also

states that "[a] conditional use permit is transferable with the title

to the underlying property so that an applicant may convey or

assign an approved project without losing the approval so long as

all conditions continue to be met.”35 It continues, "[t]he applicant

31 Id. §§ 16.09.03, 16.29.08 (Sterling 2013).

32 See, e.g., id. § 16.29.08(B) (Sterling 2013) ("Any mountain

zone (M) development more dense than one ERU for every five

(5) net developable acres must earn additional density by

complying with items listed on the performance chart.”).

33 Id. § 16.04.02 (Sterling 2013).

34 UTAH CODE § 11-42-102(20).

35 WASATCH CNTY., UTAH, CODE § 16.23.06(A) (Sterling 2013)

(emphasis added). Though neither party addresses expiration of

the permit in their briefing, Wasatch County Code § 16.23.06(C)

states that

[u]nless otherwise specified in the motion granting a

conditional use permit, a permit that has not been

utilized within twelve (12) months from the approval

date, shall become null and void by operation of law.

Once any portion of the conditional use permit is

utilized, the conditions related thereto become

immediately operative and must be strictly obeyed.

Utilization shall be construed to mean pouring of

concrete, or commencement of framing on

construction, or commencement of the use or uses for

which the permit was granted.

Cite as: 2014 UT 32

Opinion of the Court

15

cannot transfer the permit off the site on which the approval was

granted.”36

¶ 30 "Until the rights vest on a particular piece of property,

the city or state can change land-use and zoning regulations and

apply the new laws to the development of the property.”37 The

vested rights doctrine is the body of law that addresses at what

point development rights "vest” such that subsequent zoning

changes cannot be retroactively applied.38 This area of law

generally concerns the constitutional rights of landowners harmed

by post-approval changes to county or municipal permitting and

zoning regulations.39 The common problem seen in these cases is

that a landowner or developer applies for and receives the local

government's approval to build a development, takes various

steps in reliance on that approval, and then the local government

changes the applicable regulations to the detriment of the

developer. This is not the case here.

¶ 31 In Utah, rights in a development application vest upon

submission of a completed application that conforms to the

county land use and zoning ordinances in effect at the time.40

Thus, the submission of the Pioche Mountain Estates development

plan did create certain "vested” rights in the 321 acres upon

However, because this issue has not been raised, we do not

address it.

36 Id.

37 Thomas G. Pelham et al., "What Do You Mean I Can't Build!?”

A Comparative Analysis of When Property Rights Vest, 31 URB. LAW.

901, 901 (1999) (footnote omitted).

38 See W. Land Equities, Inc. v. City of Logan, 617 P.2d 388, 390–96

(Utah 1980) ("[A]dopting the rule that an applicant is entitled to a

building permit or subdivision approval if his proposed

development meets the zoning requirements in existence at the

time of his application and if he proceeds with reasonable

diligence, absent a compelling, countervailing public interest.”).

39 See John J. Delaney & William Kominers, He Who Rests Less,

Vests Best: Acquisition of Vested Rights in Land Development,

23 ST. LOUIS U.L.J. 219, 221–22 (1979).

40 UTAH CODE § 17-27a-508; W. Land Equities, 617 P.2d at 396.

KEITH v. MOUNTAIN RESORTS

Opinion of the Court

16

which the approval was granted. But the right created was the

right not to have the county revoke approval of the development

based on a change in the applicable zoning laws.41 A

development approval does not create independent free-floating

vested property rights—the rights obtained by the submission

and later approval of a development plan are necessarily

conditioned upon compliance with the approved plan.

¶ 32 When a county approves property for development but

then that property is sold to someone else, no additional approval

is necessary "so long as the [new owner's] use [is] consistent with

that that had already been approved.”42 This rule is consistent

with the Wasatch County Code, which states that "[a] conditional

use permit is transferable with the title to the underlying property

so that an applicant may convey or assign an approved project

without losing the approval, so long as all conditions continue to be

met.”43 Here, however, the conditional use permit (i.e., the 2002

approval) was for a 321-acre piece of property. Under the 2005

settlement agreement, that property was divided into two parts—

and there was no agreement between the parties to continue to

develop the properties together. Ms. Keith's forty-acre parcel was

not the "underlying property”44 upon which the approval was

granted and thus the rights attendant to the approval did not

survive the division. In other words, this changed condition

destroyed the approval. Accordingly, there was no vested right

that ran with parcel A.

¶ 33 Ms. Keith, as the purchaser of parcel A, did not obtain a

"vested” right in the ERUs allocated under the 2002 approval

41 W. Land Equities, 617 P.2d at 395–96 ("A property owner

should be able to plan for developing his property in a manner

permitted by existing zoning regulations with some degree of

assurance that the basic ground rules will not be changed in

midstream.”).

42 Maintain Our Desert Env't. v. Town of Apple Valley, 15 Cal.

Rptr. 3d 322, 332 (Cal. Ct. App. 2004).

43 WASATCH CNTY., UTAH, CODE § 16.23.06(A) (Sterling 2013)

(emphasis added).

44 Id.

Cite as: 2014 UT 32

Opinion of the Court

17

because the 2002 approval applied to all three parcels. In other

words, the density allocated to the Pioche development as a

whole did not create independent rights to ERUs that attached to

parcel A. Once parcel A was divorced from the property that was

the subject of the approval, and in the absence of any agreement

to continue to develop the properties together under the approved

plan, Ms. Keith did not retain any right to hold on to ERUs

granted under the approval. Accordingly, the deed's language

granting "rights and privileges” could not have included the

ERUs. Ms. Keith asks us to hold that provisions of a development

approval vest in and run with the land even when that land has

been divided and the separate owners no longer agree to develop

the property in accordance with the approval. This argument fails

as a matter of law. Accordingly, Ms. Keith's interpretation of the

deed language is not reasonable.

¶ 34 We note further that a county's approval of a

development plan and the corresponding assignment of density

(ERUs) is not a matter that is within the control of private parties.

The county regulations themselves contradict Ms. Keith's

interpretation of the deed language by stating that development

approvals made for one piece of land cannot be transferred to a

different piece of land.45 Insofar as Ms. Keith's deed was for a

different, smaller piece of land than the land upon which the

development approval was granted, and because she was not

working together with MRD to comply with the conditions of the

approval, the county's regulations extinguished any right

Ms. Keith might have had to ERUs granted in that approval.

¶ 35 Ms. Keith makes a number of arguments concerning the

parties' alleged intent to include ERUs when they exchanged the

deeds.46 But it is not appropriate for us to evaluate the parties'

45 Id. ("The applicant cannot transfer the permit off of the site

on which the approval was granted.”).

46 For example, Ms. Keith contends that the parties intended to

include ERU allocation in their contract by pointing to the 2004

settlement offer, in which MRD's predecessor proposed that the

parties could exchange interests in the properties and then

continue working together on the development plan, and that

Ms. Keith would "share in such costs based upon our

proportionate densities.” Ms. Keith, however, rejected that offer.

KEITH v. MOUNTAIN RESORTS

Opinion of the Court

18

intent unless the language on the face of the deed is ambiguous—

which it is not.47

¶ 36 Ms. Keith also appears to argue that the ERUs

constituted a covenant that runs with the land. Ms. Keith's

briefing of this argument is inadequate, as she fails to provide

"reasoned analysis” and instead provides only "bald citations”48

to support her assertion that the parties "were conveying the

rights and interests that existed in the property,” which "included

. . . the ERUs that had already been allocated” under the 2002

approval. Ms. Keith points out that some courts have found that

density restrictions and open space agreements can sometimes

constitute covenants that run with the land.49 She fails to brief the

law of real covenants, however, and if she had, she would have

noted the basic rule that a covenant that runs with the land is "a

formal agreement or promise . . . to do or not do a particular act.”50

Ms. Keith mischaracterizes the record when she states that her

"eventual offer to settle the partition litigation was the same offer

that was made in the course of these prior negotiations with

MRD.” It was not.

47 Ault, 2002 UT 33, ¶ 38 ("[W]e determine the parties' intent

from the plain language of the four corners of the deed.”); see also

Stern, 2012 UT 16, ¶¶ 59–60.

48 Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903 (internal

quotation marks omitted). For example, Ms. Keith cites Raymond

v. Holliday, No. 297146, 2011 WL 2462671, at *2, *3 (Mich. Ct. App.

June 21, 2011) for the proposition that "density restrictions are

covenants that run with the land.” But in that case the Michigan

Court of Appeals held that a contract containing an explicit

promise that the grantee would build only one building per ten

acres was a covenant running with the land. Id. Ms. Keith fails to

explain how this case is similar to her own, and indeed it is

readily distinguishable because here Ms. Keith does not allege the

existence of any of the elements of a real covenant.

49 See, e.g., Canyon Meadows Home Owners Ass'n v. Wasatch

Cnty., 2001 UT App 414, 40 P.3d 1148 (addressing whether an

open space agreement was a covenant that ran with the land).

50 BLACK'S LAW DICTIONARY 419 (9th ed. 2009) (emphasis

added).

Cite as: 2014 UT 32

Opinion of the Court

19

Here, Ms. Keith has failed to address any of the four

characteristics of a real covenant51 and thus has failed to

adequately brief this argument. Accordingly, we are

unpersuaded by the argument and will not address it beyond

saying that even if Ms. Keith had properly briefed this claim, she

almost certainly would not have been able to prove the elements

of a real covenant.52

¶ 37 Finally, Ms. Keith has not alleged that the parties had a

separate agreement to continue to develop the properties together

in accordance with the development plan—which is the only way

that the 2002 approval could have remained viable and in effect.

To the contrary, Ms. Keith acknowledged that when she entered

the settlement, she believed that each party would "be able to

proceed independently of one another to develop their parcels.”

In a deposition on September 26, 2011, Ms. Keith acknowledged

that there was no agreement between the parties to follow the

development plan.53 As MRD points out, "the very cause of the

51 Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P.2d 618,

622–23, 629 (Utah 1989) (stating that "(1) The covenant must

'touch and concern' the land; (2) the covenanting parties must

intend the covenant to run with the land”; (3) "there must be

privity of estate”; and (4) the covenant "must be in writing”).

52 This is because (1) the ERUs most likely do not "touch and

concern” the land because they are a conditional benefit granted

by Wasatch County, which is dependent on compliance with the

approved development plan—compliance that was lacking here;

(2) Ms. Keith has pointed to no evidence of MRD's intent to

covenant, express or otherwise; and (3) the purported covenant

was not put into writing. See id. at 623.

53 Q: Did you have an understanding one way or the

other whether or not the development would

proceed forward jointly between you . . . and

Talisker [MRD] after a partition order was

entered?

Keith: Well, my understanding was that the

development would continue, but I would be in

charge of Parcel A, they would be in charge of

Parcels B and C.

KEITH v. MOUNTAIN RESORTS

Opinion of the Court

20

Partition Action” was "the parties' inability to reach an agreement

regarding joint development of the property.” We hold that

absent any agreement to develop the properties together, the

provisions of the 2002 approval were no longer in effect and MRD

did not breach the settlement agreement or the terms of the deed.

¶ 38 In sum, because (1) the 2002 approval was granted for

the entire 321 acres, (2) the property was divided, (3) the parties

failed to follow the conditions of the development plan, (4) there

was no contract between the parties to continue to follow the plan,

and (5) the plain language of the deed did not address a

development right like ERUs, the provisional rights granted by

the 2002 approval were extinguished and there was no breach of

contract. The plain deed language conveying parcel A to

Ms. Keith with all of its "rights and privileges” does not include

conditional rights granted by the development approval.

Moreover, the deed language cannot reasonably be interpreted to

mean that the parties intended to do something that they did not

have the ability to do—namely, alter the county's conditional use

permit.54 The only way that the 2002 approval would have

remained viable, according to Wasatch County regulations, was

"so long as all conditions continue[d] to be met” and only on "the site

Q: Could the development, in fact, go forward, then,

if you disagreed with what they were proposing

for Parcel A?

Keith: Well, they wouldn't have a voice in proposing

anything on Parcel A.

. . .

Q: So you understood that they could do what they

wanted with their ground and you could do what

you wanted with your ground?

Keith: Precisely.

Q: And there would not be a joint development?

Keith: Right.

54 See RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 1.1(1), (3)

(2000) ("A servitude is a legal device that creates a right or

obligation that runs with land or an interest in land. . . . Zoning

and other public land-use regulations . . . are not servitudes . . . .”).

Cite as: 2014 UT 32

Opinion of the Court

21

on which the approval was granted.”55 The parties refused to

develop their now separately owned property together and no

rights from the 2002 approval could have survived this drastic

change in circumstances.

¶ 39 Because Ms. Keith's interpretation of the deed language

was not reasonable, the deed was unambiguous as a matter of

law. And the unambiguous language of the deed did not

reference county development rights or the Pioche development

plan. Summary judgment was appropriately granted to MRD on

Ms. Keith's breach of contract claim because the undisputed facts,

construed in favor of Ms. Keith, nevertheless show that MRD did

not breach the contract as a matter of law. Accordingly, we affirm

the district court's dismissal of Ms. Keith's breach of contract

claim.

II. FRAUDULENT INDUCEMENT

¶ 40 Ms. Keith made a claim for fraudulent inducement based

upon representations made to her during the "parties' prior

course of dealing.” As she cannot point to a false representation

made by MRD, this claim has no merit and we thus affirm the

district court's ruling.

¶ 41 To prevail on a claim of fraudulent inducement, a

plaintiff must establish:

(1) that a representation was made (2) concerning a

presently existing material fact (3) which was false

and (4) which the representor either (a) knew to be

false or (b) made recklessly, knowing that there was

insufficient knowledge upon which to base such a

representation, (5) for the purpose of inducing the

other party to act upon it and (6) that the other

party, acting reasonably and in ignorance of its

falsity, (7) did in fact rely upon it (8) and was

thereby induced to act (9) to that party's injury and

damage.56

55 WASATCH CNTY., UTAH, CODE § 16.23.06(A) (Sterling 2013)

(emphasis added).

56 Daines v. Vincent, 2008 UT 51, ¶ 38, 190 P.3d 1269 (internal

quotation marks omitted).

KEITH v. MOUNTAIN RESORTS

Opinion of the Court

22

Ms. Keith fails to demonstrate any evidence that MRD made a

false representation and her claim fails on that basis alone.

¶ 42 Ms. Keith cites generally to the parties' correspondence,

which spans a five-year period from 1999 through 2004 and

chronicles her negotiations with the company that is now MRD.

In her complaint, Ms. Keith focuses in particular upon a 2004 offer

made by MRD's predecessor, Capital Growth Partners (2004

settlement offer). In the 2004 settlement offer, Capital Growth

Partners offered to exchange interests in the various parcels, to the

effect that Ms. Keith would receive a complete interest in some

twenty-seven acres that would "includ[e] any and all appurtenant

benefits thereto such as . . . water rights.” Ms. Keith rejected that

offer. Nevertheless, she argued below that because ERUs are

associated with water rights, the use of the term "water rights” in

the 2004 offer letter was a knowing misrepresentation that was

aimed at inducing her to enter into the 2005 settlement agreement,

which she drafted. Ms. Keith fails to mention that she drafted the

2005 settlement agreement and fails to mention that she rejected

the offers that MRD/Capital Growth Partners made in 2004. It is

difficult to see how MRD could have fraudulently induced

Ms. Keith to enter a contract that Ms. Keith herself drafted.

Moreover, any statements made in settlement offers that Ms.

Keith rejected in 2004 could not possibly have induced her to

enter the settlement agreement she drafted over a year later; an

agreement that made no mention of water rights, ERUs, or the

Pioche development.

¶ 43 "Rather than offer evidence satisfying the fraud standard

in [her] appeal, [Ms. Keith] does little more than color the fraud

elements with conjectural allegations based on [her] subjective

experience of the transaction. We have held that, mere conclusory

allegations in a pleading, unsupported by a recitation of relevant

surrounding facts, are insufficient.”57 Accordingly, Ms. Keith's

fraudulent inducement claim fails as a matter of law and we

affirm the district court's summary judgment ruling.

57 Id. ¶ 39 (internal quotation marks omitted).

Cite as: 2014 UT 32

Opinion of the Court

23

III. TORTIOUS INTERFERENCE WITH

PROSPECTIVE ECONOMIC RELATIONS

¶ 44 Ms. Keith argues that the district court erred when it

granted summary judgment in favor of MRD on her claim of

intentional interference with prospective economic relations. She

argues that MRD committed this tort when it asserted,

immediately following the settlement in 2005 and for some time

thereafter, that it was entitled to all of the ERUs granted in the

preliminary development plan, and that they were valuable,

vested rights that MRD had retained in its property only.

Ms. Keith argues that MRD "actively sought to prevent Ms. Keith

from moving forward with the entitlement of her property . . .

without any legitimate need to do so” in order to "improperly

damage Ms. Keith.”

¶ 45 In order to recover damages for intentional interference

with prospective economic relations, "the 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.”58

¶ 46 To show an improper purpose, "the plaintiff must prove

more than a defendant's motivation of ill will toward the plaintiff;

[r]ather, the plaintiff must show that the defendant's predominant

purpose was to injure the plaintiff.”59 When a party is

"reasonably acting to protect a legitimate economic interest of its

58 Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 304 (Utah

1982). We note that a challenge to the "improper purpose”

element of Utah's intentional interference with prospective

economic relations cause of action has been fully briefed and is

currently under advisement before this court. Eldridge v.

Johndrow, No. 20130263 (Utah filed Oct. 17, 2013). We do not

address the future viability of the improper purpose element

today because it was not raised or briefed by the parties in this

case. Moreover, because we affirm the grant of summary

judgment on this issue, the question presented in Eldridge would

not change the outcome of this case one way or the other.

59 Ferguson v. Williams & Hunt, Inc., 2009 UT 49, ¶ 35, 221 P.3d

205 (alteration in original) (internal quotation marks omitted).

KEITH v. MOUNTAIN RESORTS

Opinion of the Court

24

own,” this is not an improper purpose.60 "Improper means are

present where the means used to interfere with a

party's economic relations are contrary to law, such as violations

of statutes, regulations, or recognized common law rules.

Improper means include violence, threats or other intimidation,

deceit or misrepresentation, bribery, unfounded litigation,

defamation, or disparaging falsehood.”61

¶ 47 MRD stated that it took the actions it did because it

believed, accurately, as it turns out, that because Ms. Keith's

property did not meet the 160-acre requirement for a

development in the Mountain Zone, it did not qualify for more

than the standard amount of ERUs (in this case, two lots of

record) without a variance. MRD further claimed that it

mistakenly believed that it held all approvals and entitlements

under the 2002 approval. Even if MRD harbored ill will towards

Ms. Keith, MRD's statements were made in pursuit of its own

economic interest. Thus, its statements were not made for the

predominant purpose of injuring Ms. Keith.62 Accordingly,

Ms. Keith failed as a matter of law to establish improper purpose

or improper means under Leigh Furniture and her claim of

intentional interference with prospective economic relations was

properly dismissed on summary judgment.



* * *



60 Leigh Furniture, 657 P.2d at 305.

61 Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55, ¶ 18,

192 P.3d 858 (internal quotation marks omitted).

62 See, e.g., Ferguson, 2009 UT 49, ¶ 35.

Cite as: 2014 UT 32

Opinion of the Court

25



* * *



63 See, e.g., RHN Corp. v. Veibell, 2004 UT 60, ¶ 36, 96 P.3d 935;

Guardian State Bank v. Stangl, 778 P.2d 1, 4–6 (Utah 1989).

CONCLUSION

¶ 48 The terms of the deed were unambiguous. Land

development rights, which are a conditional right granted and

controlled by the county government, are not included as a matter

of law in a deed’s general terms of conveyance giving a grantee

the “rights and privileges . . . belonging” to a piece of real

property. Because Ms. Keith and MRD did not agree to continue

to develop their properties in compliance with the 2002

development plan as approved by Wasatch County, there was no

reasonable basis for Ms. Keith to believe that she would retain

some amount of ERUs as detailed in that plan. Even if Ms. Keith

had argued for deed reformation, a unilateral mistake is generally not grounds to reform a deed.63 Thus, MRD did not breach the

terms of the deed and summary judgment was appropriate.

Additionally, Ms. Keith’s claims for fraudulent inducement and

intentional interference with prospective economic relations fail

because she did not allege facts sufficient to satisfy the elements of

those causes of action. We affirm the district court’s grant of

summary judgment on all claims.