author: ORME, Judge:

text:
    Jamie WIDDISON, Appellee, v. Janae A. KIRKHAM, Appellant.
    No. 20160961-CA
    Court of Appeals of Utah.
    Filed November 1, 2018
    Larry A. Kirkham, Attorney for Appellant
    Suzanne Marelius, Attorney for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate A. Toomey concurred.
    Opinion
   ORME, Judge:

¶ 1 Appellant Janae A. Kirkham (Wife) again appeals the trial court's findings and modification order as well as the award of attorney fees to Appellee Jamie Widdison (Husband). We largely affirm but remand for recalculation of the attorney fee award.

BACKGROUND

¶ 2 Wife and Husband divorced in 2003. The divorce decree awarded the parties joint legal and physical custody of their three children. In 2011, Husband filed a petition to modify child support, requesting that he be allowed to claim the tax exemption for their youngest child (Child), that the health insurance options for Child be reevaluated, and that Wife's interference with his parent time be addressed. The trial court granted Husband's petition (the 2012 Order), awarding him the tax exemption for Child for the tax years 2009 through 2012, with the option to purchase Wife's 2013 exemption; requiring the parties to disclose all available health and dental benefits for Child; and enforcing the parent-time and transportation provisions of the divorce decree. Because Husband substantially prevailed on all claims, the trial court awarded him attorney fees.

¶ 3 Wife appealed the 2012 Order. See Widdison v. Widdison , 2014 UT App 233, 336 P.3d 1106. On appeal, we concluded that the trial court's findings regarding the tax consequences of Wife losing the 2009, 2010, and 2011 tax exemptions, and Husband's removal of Child from his health insurance, were insufficient. Id. ¶¶ 7, 10, 14-15. We also determined that "Wife's continued opposition" to the tax-exemption issue was not unreasonable, and we therefore vacated the trial court's award of attorney fees to Husband. Id. ¶¶ 19-20 (quotation simplified). We remanded with instructions that the trial court enter additional findings on these issues. Id. ¶ 21.

¶ 4 On remand, the trial court determined that the tax-exemption issue had been resolved prior to the trial scheduled on remand. It also found that although Husband had removed Child from his health insurance for one year, Wife owed Husband for his costs of carrying health insurance for Child from 2009 to 2014. But it concluded that Husband could not recover these costs because he had waited too long to demand payment. The trial court also reinstated Husband's attorney fee award. And it held Wife in contempt for failing to comply with the 2012 Order and directed her to pay the attorney fees Husband incurred as a result of her contempt.

¶ 5 In response, Wife filed motions for a new trial and to amend or alter judgment on various grounds, including that child support should be retroactively increased, that the court's finding of contempt was not factually supported, and that she should have been awarded the value of the 2012 tax exemption. The trial court denied the motions. Wife appeals the trial court's orders entered on remand.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Wife contends that the trial court erred in shifting the tax exemptions for Child to Husband for the tax years 2009 through 2012. We review findings of fact for clear error, and "a trial court's factual finding is deemed clearly erroneous only if it is against the clear weight of the evidence." Wilson Supply, Inc. v. Fradan Mfg. Corp. , 2002 UT 94, ¶ 12, 54 P.3d 1177 (quotation simplified). Wife next contends that she should not have been held in contempt for failing to comply with the trial court's orders. "We review a trial court's decision to hold a party in contempt and impose sanctions for a clear abuse of discretion." Summer v. Summer , 2012 UT App 159, ¶ 8, 280 P.3d 451 (quotation simplified). And finally, Wife contends that the trial court erroneously awarded attorney fees to Husband. A trial court's award of attorney fees in a divorce proceeding is reviewed for abuse of discretion. See Allen v. Ciokewicz , 2012 UT App 162, ¶ 25, 280 P.3d 425.

ANALYSIS

I. The Tax Exemptions

¶ 7 Wife argues that the trial court erred in awarding Husband the tax exemptions for Child for the tax years 2009 through 2012 and that the court did not follow our mandate to make further findings on this issue. Because the trial court failed to address whether shifting the tax exemptions to Husband would trigger an Internal Revenue Service audit and subject Wife to fines, we had, indeed, instructed the court on remand to make further findings on the tax consequences for Wife in filing amended tax returns for 2009, 2010, and 2011. See Widdison v. Widdison , 2014 UT App 233, ¶¶ 7, 9-10, 336 P.3d 1106.

¶ 8 On remand, the trial court found that the parties had agreed, when before the district court commissioner, that all issues regarding the 2009, 2010, and 2011 tax exemptions were fully resolved and that Husband had reimbursed Wife for any financial losses she accrued in amending her tax returns for those years. Wife also could not produce any evidence at trial of financial harm caused by the shift. For those reasons, the court concluded that the issue was moot.

¶ 9 Because Wife challenges the trial court's factual findings on the tax-exemption issue, we expect Wife to "marshal and respond to evidence or authority that could sustain the decision under review." In re Discipline of LaJeunesse , 2018 UT 6, ¶ 28, 416 P.3d 1122 (quotation simplified). Although failing to marshal the evidence is no longer considered a "technical deficiency," State v. Nielsen , 2014 UT 10, ¶ 41, 326 P.3d 645, an appellant failing to "marshal all relevant evidence presented at trial which tends to support the findings and demonstrate why the findings are clearly erroneous ... 'will almost certainly fail to carry' their burden [of persuasion]" on appeal, Grimm v. DxNA LLC , 2018 UT App 115, ¶ 15, 427 P.3d 571 (quotation simplified) (quoting Nielsen , 2014 UT 10, ¶ 42, 326 P.3d 645 ).

¶ 10 On remand, the trial court found that the tax-exemption issue had been resolved before trial. This finding was based on the commissioner's order stating that "[b]oth counsel agree[d] that all issues, claims or payments arising from the tax returns for the filing years 2009, 2010, and 2011 were fully resolved" and that "no party will seek any amendment or change to those returns, as to the other party, nor will they seek any reimbursement for any funds arising from those returns." The commissioner also declined to certify for trial the issue of damages from filing the amended tax returns because Wife "failed to provide any documentation as to alleged damages despite discovery requests and orders from the Court." Against this background, Wife fails to demonstrate how the trial court erred in finding that the parties had settled the issue; rather, she proceeds to argue why she is entitled to the benefit of the tax exemptions for Child. Because Wife failed to marshal the evidence supporting the trial court's findings or otherwise demonstrate how the court erred in its findings and decision, Wife has failed to meet her burden of persuasion on appeal, and her challenge fails.

II. Wife's Contempt

¶ 11 Wife argues that the trial court abused its discretion by finding her in contempt on remand for failing to comply with the 2012 Order that required her to sign the necessary tax documents. Contempt of court includes "disobedience of any lawful judgment, order or process of the court." Utah Code Ann. § 78B-6-301(5) (LexisNexis 2012). "As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so." Von Hake v. Thomas , 759 P.2d 1162, 1172 (Utah 1988), superseded by statute on other grounds as stated in Valerios Corp. v. Macias , 2015 UT App 4, 342 P.3d 1127. And "[t]hese three elements must be proven ... by clear and convincing evidence in a civil contempt proceeding." Id.

¶ 12 Wife asserts that she "was always willing to sign the amended tax returns as ordered" but that she was never given an opportunity to do so. We disagree with her position. In 2012, at the close of trial, the court ordered the parties to file the necessary tax documents to shift the tax exemptions for Child for the tax years 2009 through 2012 to Husband. Husband's attorney responded that, in two weeks, she would have the documents in her office for Wife to sign. But Wife did not show up to sign those documents. Husband's attorney then sent Wife letters indicating that she needed to sign the tax documents, but Wife refused to cooperate. Three months later, at a hearing with the district court commissioner, Wife was ordered to sign the tax documents in court that day, but Wife did not. In view of Wife's continued refusal to cooperate, the court ultimately signed on her behalf the tax forms shifting the tax exemptions for Child to Husband.

¶ 13 Wife admits she was aware that the trial court ordered her to sign the necessary tax documents, but she asserts that Husband never provided her with those documents to sign and, for that reason, she could not comply. The record does not support her claim. Wife was given the amended tax returns prior to the trial court's orders and had ample opportunity to sign them after the 2012 Order. Because there is clear and convincing evidence that Wife knew she was required to sign the necessary documents to shift the exemptions over to Husband, had the ability to comply with that requirement, and was capable of cooperating with Husband to accomplish this simple task but refused to do so, we conclude that the trial court did not abuse its discretion by holding Wife in contempt.

III. Attorney Fees

¶ 14 Wife contends that the trial court went beyond the scope of our remand when it awarded attorney fees to Husband. Attorney fees are generally "awarded only when authorized by contract or by statute." Bilanzich v. Lonetti , 2007 UT 26, ¶ 11, 160 P.3d 1041. In divorce and modification proceedings, trial courts may award attorney fees under Utah Code section 30-3-3. Subsection (1) of that statute permits a trial court to award attorney fees in "any action to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case." Utah Code Ann. § 30-3-3(1) (LexisNexis 2013). But such an award of attorney fees must nonetheless be "based on the usual factors of need, ability to pay, and reasonableness." Connell v. Connell , 2010 UT App 139, ¶ 28, 233 P.3d 836. Subsection (2) allows a trial court to award attorney fees in "any action to enforce an order of custody, parent-time, [or] child support ... upon determining that the party substantially prevailed upon the claim or defense." Utah Code Ann. § 30-3-3(2) (emphasis added). Thus, an award pursuant to subsection (2) is premised on success rather than need and ability to pay.

¶ 15 In the 2012 Order, the trial court awarded attorney fees to Husband because he had "substantially prevailed on all disputed issues." Perhaps having lost track of the distinction between subsection (1) and subsection (2), we vacated that award because the trial court did not consider the "usual factors" under subsection (1). See Widdison v. Widdison , 2014 UT App 233, ¶ 20, 336 P.3d 1106 (quotation simplified). On remand, the trial court determined that the 2012 attorney fee award was warranted because, under the 2012 Order, Husband had substantially prevailed in enforcing an order of parent time, a matter encompassed by the narrower subsection (2). See Utah Code Ann. § 30-3-3(2). Husband sought to enforce the parent-time and transportation provisions of the divorce decree in his petition for modification, and the 2012 Order required the parties "to accommodate [Husband's] availability to spend parent time with [Child] as stated in the Decree of Divorce" and "to make every effort to implement a regular parent time arrangement for [Child] and [Husband] consistent with the Decree."

¶ 16 Upon closer review of the record, we recognize that the trial court initially awarded attorney fees under subsection (2), not subsection (1) as we concluded in Widdison . Accordingly, the trial court did not abuse its discretion by awarding Husband attorney fees insofar as they were attributable to the issue of parent time. But we remand the attorney fee award for modification and instruct the trial court to limit this award to attorney fees incurred by Husband on the parent-time issue.

¶ 17 Additionally, both parties request an award of attorney fees incurred on appeal. "Ordinarily, we award appellate attorney fees and costs when a party was awarded fees and costs below and then prevails on appeal." Tobler v. Tobler , 2014 UT App 239, ¶ 48, 337 P.3d 296. The trial court did not award Wife attorney fees nor did she prevail on appeal. The trial court did award Husband attorney fees, but that award must be limited to his attorney fees incurred in enforcing parent time, as explained above. He also did not prevail on the first appeal and was not granted attorney fees on remand for the issues raised in the instant appeal. We therefore conclude that neither party is entitled to attorney fees incurred in this appeal.

CONCLUSION

¶ 18 We affirm the trial court's findings and rulings on the tax-exemption issue and its contempt order against Wife. We also affirm its award of attorney fees to Husband to the extent it reimburses Husband for his attorney fees incurred in enforcing the order for parent time and insofar as fees were awarded as a contempt sanction, and we remand for the trial court to recalculate the award accordingly.

      This is Kirkham's third appeal arising out of a petition to modify support. See Kirkham v. McConkie , 2018 UT App 100, 427 P.3d 444 (appealing the dismissal of her claim of legal malpractice); Widdison v. Widdison , 2014 UT App 233, 336 P.3d 1106 (appealing the trial court's 2012 modification order). A fourth appeal is pending before us in a related matter, Kirkham v. Widdison , Marelius, HRB Tax Group, Hansen, Widdison, & Alpine Gardens Inc. , no. 20170655-CA, concerning Wife's claim that her amended tax returns were prepared without her consent.

      Wife raises two other issues on appeal. First, she argues that she should have been awarded attorney fees because she prevailed on the health insurance issue. See Utah Code Ann. § 30-3-3(2) (LexisNexis 2013) (providing that a trial court may award attorney fees to the party who has substantially prevailed on a claim to enforce an order of child support). On remand, the trial court found that Husband had carried Child on his health insurance since the divorce, with the exception of one year during which he believed that Wife's health insurance covered Child. Despite that one year, Wife owed Husband for health insurance premiums he paid for Child from 2009 to 2014. Husband's child support payments had not been offset by Wife's share, and she had also failed to reimburse him for her share. However, the trial court concluded that Husband could not retroactively seek payments for those costs because it was his responsibility to demand payment "near the time of the expenditure" and it would be "unfair to require [Wife] to reimburse him this far after the fact." The trial court also denied Wife's request for attorney fees on this issue because she did not prevail on the merits of it, and the court concluded it "would be unjustified even as an equitable matter, where [Wife] failed to contribute toward the child's health insurance as she should have." We agree with the trial court and likewise award no attorney fees attributable to this issue on appeal.
      Second, Wife argues that she should be retroactively awarded an increase in child support. Because this was not an issue before the court in 2012 or on remand, the issue is unpreserved, and we decline to reach it. See State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443 ("An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on it.") (quotation simplified).

      As the trial court noted on remand, in the first appeal we did not disturb its decision on the 2012 tax exemption. But, for the sake of clarity, the court revisited the issue on remand. And because both parties failed to provide sufficient financial information to establish who would benefit most from the tax exemption, and because Husband provided significant and continuing financial contributions to raising Child, the court concluded that it was fair and equitable to allow Husband the benefit of the tax exemption in 2012 and Wife in 2013. Because this does not differ from the 2012 Order, which was the subject of the first appeal, we decline to revisit this issue.

      Somewhat inconsistently, Wife also argues that it would have violated federal law for her to sign the amended tax returns because it is "a crime to put false information on a tax return." But she fails to explain why complying with the 2012 Order would have required her to report false information to the Internal Revenue Service.

      We instructed the trial court, on remand, to make findings on the 2012 attorney fee award, and the trial court commented that the award was made under the Frivolous Civil Litigation Statute. See Utah Code Ann. § 78B-5-825(1) (LexisNexis 2012) (providing that a "court shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith"). But the trial court actually awarded attorney fees in the 2012 Order because Husband "has substantially prevailed on all disputed issues." There was no discussion of lack of merit or bad faith in the 2012 Order-the lynchpins of section 78B-5-825(1) -and it is clear that the trial court granted attorney fees pursuant to Utah Code section 30-3-3(2), despite its errant reference on remand to the Frivolous Civil Litigation Statute.

      There is one exception to the pronouncements we make in this section. Separate from the attorney fees awarded pursuant to Utah Code section 30-3-3(2), the court awarded Husband his attorney fees incurred by reason of Wife's contempt. Those fees are proper as a contempt sanction and are affirmed on that basis. See Utah Code Ann. § 78B-6-311(1) (LexisNexis Supp. 2018); Goggin v. Goggin , 2013 UT 16, ¶ 32, 299 P.3d 1079. They may be included in the amended attorney fee award we have directed, along with the fees attributable to enforcing parent time as permitted by section 30-3-3(2).


source: Caselaw Access Project

license: Public Domain

text:
    Jamie EVANS and Evans Billboards LLC, Appellants, v. UTAH DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 20160994-CA
    Court of Appeals of Utah.
    Filed November 1, 2018
    Troy L. Booher, Julie J. Nelson, Salt Lake City, and Steve K. Gordon, Attorneys for Appellants.
    Sean D. Reyes, Stanford E. Purser, Mark E. Burns, Salt Lake City, and Renee Spooner, Attorneys for Appellee
    Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate A. Toomey concurred.
    Opinion
   ORME, Judge:

¶1 Appellants Jamie Evans and Evans Billboards LLC (collectively, Evans) appeal the district court's decision upholding the denial of two outdoor advertising applications by the Utah Department of Transportation (UDOT). We reverse.

BACKGROUND

¶2 In 2008, Evans submitted applications to construct two advertising signs near Exit 257 on Interstate 15 (I-15) in Spanish Fork, Utah. Because the sign locations were within 500 feet of an interchange, violating the Utah Outdoor Advertising Act, see Utah Code Ann. § 72-7-505(3)(c)(i)(A) (LexisNexis Supp. 2017), UDOT denied both applications. Evans nevertheless erected the two signs. The district court ordered Evans to remove them, and Evans appealed that decision to this court. See Spanish Fork City v. Evans Grader & Paving, Inc. , 2014 UT App 178, 332 P.3d 980. We affirmed, holding that both signs were "illegal and ... subject to removal" because they were constructed without a permit. Id. ¶ 6.

¶3 Following UDOT's 2008 denial of Evans's applications, UDOT reconfigured Exit 257 as part of its I-15 Core Project. Exit 257 now gives drivers the option of leaving I-15 southbound to connect to either U.S. Highway 6 (US-6) or Spanish Fork Main Street (SR-156). It has three exit lanes: two of those lanes form a bridge to cross over I-15 and connect to US-6 eastbound, and the other lane continues parallel to I-15 until it connects to SR-156.

¶4 In 2012, following this reconfiguration, Evans once again applied for two sign permits for essentially the same locations. UDOT denied those applications because it determined that the proposed signs were still within 500 feet of the interchange at Exit 257. Evans challenged this decision in the district court. Affirming UDOT's denial of the applications, the district court determined that the signs violated the Utah Outdoor Advertising Act because the Act's purpose "is to protect the 500 foot area around an interchange from advertising signs." Evans appeals.

ISSUE AND STANDARD OF REVIEW

¶5 Evans's primary contention is that the district court misinterpreted the meaning of an "intersecting highway" under the statutory definition of "pavement widening" in the Utah Outdoor Advertising Act. "We review questions of statutory interpretation for correctness, affording no deference to the district court's legal conclusions." Bank of America v. Adamson , 2017 UT 2, ¶ 7, 391 P.3d 196 (quotation simplified).

ANALYSIS

¶6 The Utah Outdoor Advertising Act (the Act) is "the statutory basis for the regulation of outdoor advertising," balancing concerns of "public safety" and preservation of "the natural scenic beauty of lands bordering on highways," with the goal of ensuring that outdoor advertising remains "a standardized medium of communication throughout the state." Utah Code Ann. § 72-7-501(1) (LexisNexis 2009). The Act fulfills the Utah-Federal Agreement, which conditions the grant of federal highway funds to Utah on "Utah agree[ing] to manage and regulate outdoor advertising along the federal highway system." Utah Admin. Code R933-5-1. See generally 23 U.S.C. § 131 (2012) (The Highway Beautification Act); Utah Admin. Code R933-5-2 (The Utah-Federal Agreement).

¶7 Under the Act, signs are prohibited within 500 feet of an interchange. Utah Code Ann. § 72-7-505(3)(c)(i)(A) (LexisNexis Supp. 2017). An interchange is an area "where traffic is channeled off or onto an interstate route." Id. § 72-7-502(11). The 500-foot prohibition around the interchange is "measured along the interstate highway or freeway from the sign to the nearest point of the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way." Id. § 72-7-505(3)(c)(i)(A). The pavement widening is (1) the point of the gore or (2) "where the intersecting lane begins to parallel the other lanes of traffic." Id. § 72-7-502(22). See also Young Elec. Sign Co. v. Utah Dep't of Transp. , 2005 UT App 169, ¶ 7, 110 P.3d 1118 (stating that "pavement widening" is synonymous with the definition of "point of widening").

¶8 Both sides in this case agree that the pavement widening occurs at the point of the gore, which is the point of the triangular area, defined by two solid white lines, where Exit 257 diverges from I-15. See Utah Admin. Code R933-2-2(21) (" 'Point of the gore' means the point of the area delineated by two solid white lines that is between a permanently constructed continuing lane of a through-roadway and a permanently constructed lane used to enter or exit the continuing lane, including similar areas between merging or splitting highways."). There is no dispute that Evans's signs are within 500 feet of the point of the gore-393.90 feet and 108.10 feet, respectively.

¶9 But signs are not prohibited within 500 feet of an interchange if the point of the gore is more than 2,640 feet-half a mile-"from the center line of the intersecting highway of the interchange," because by statutory definition there is no pavement widening for the purpose of measuring the 500-foot prohibition. Utah Code Ann. § 72-7-502(22) (LexisNexis Supp. 2017). UDOT concedes that "there was, and is, no intersecting highway" within 2,640 feet of the point of the gore, but insists that allowing Evans's signs would "violate the letter and spirit of [the Act] and the Utah-Federal Agreement." The district court agreed, concluding that, "for the purposes of interpreting the statutes," the point where Exit 257 crosses over I-15 (the Bridge) is an intersecting highway. And because the Bridge is 2,549 feet from the point of the gore, the court concluded that Evans's signs were within 500 feet of an interchange and therefore prohibited.

¶10 On appeal, Evans argues that the Bridge is not an "intersecting highway" and that, because there is no intersecting highway within 2,640 feet of the point of the gore at Exit 257, the signs should be allowed.

I. The Parties' Interpretations

¶11 The Act does not define an "intersecting highway," and the parties offer competing interpretations of this term. UDOT contends that the Bridge is an intersecting highway because Title 72 of the Utah Code (the Transportation Code) defines "highway" as "any public road, street, alley, lane, court, place, viaduct, tunnel, culvert, bridge, or structure laid out or erected for public use," Utah Code Ann. § 72-1-102(7) (LexisNexis 2009), and the Bridge is "both a public bridge and a public road that crosses over Interstate 15." This interpretation would support the district court's conclusion that, although I-15 and US-6 do not intersect, the interchange does intersect with I-15 "for the purposes of interpreting the statutes."

¶12 In contrast, Evans contends that, because an interchange is defined as an area channeling traffic off and onto "another federal, state, county, city, or other route," the Legislature intended "intersecting highway" to mean that "other route." Id. § 72-7-502(11) (Supp. 2017). But the Act does not support either of these interpretations.

¶13 When interpreting a statute, "our primary goal is to evince the true intent and purpose of the Legislature." State v. Davis , 2011 UT 57, ¶ 21, 266 P.3d 765 (quotation simplified). "The best indicator of legislative intent is the plain language of the statutes themselves," and "[w]e read the plain language of the statute as a whole and interpret its provisions in harmony with other statutes in the same chapter and related chapters." Hertzske v. Snyder , 2017 UT 4, ¶ 10, 390 P.3d 307 (quotation simplified). "Finally, we avoid any interpretation which renders parts or words in a statute inoperative or superfluous in order to give effect to every word of a statute." Monarrez v. Utah Dep't of Transp. , 2016 UT 10, ¶ 11, 368 P.3d 846 (quotation simplified).

¶14 UDOT's interpretation fails to give effect to every word of the statute. Because the Bridge is an off-ramp and therefore part of the interchange, see Utah Admin. Code R933-2-2(2), UDOT contends that an "intersecting highway" can include the interchange itself. But such an interpretation would render the entire 2,640-foot limit unnecessary because the interchange would always intersect the interstate highway at the exit. The statute clearly states that the distance is to be measured from the pavement widening to "the center line of the intersecting highway of the interchange." Utah Code Ann. § 72-7-502(22) (Supp. 2017) (emphasis added). We recognize that the preposition "of" is susceptible to varying interpretations, see generally Of , Webster's Third New International Dictionary 1565 (1993), but, to give effect to every word of the statute, the only reasonable interpretation of this statutory provision is that the pavement widening must be within 2,640 feet from the centerline of the highway intersecting the interchange -not components of the interchange intersecting each other.

¶15 Furthermore, the language of the Act does not support such an expansive interpretation of "highway" for this purpose. Section 505 uses the phrase, "streets, roads, or highways" several times, demonstrating that "highway" is not considered a street or road. See Utah Code Ann. § 72-7-505(3)(d) (LexisNexis 2009). Because "intersecting highway" does not have the same expansive meaning as "highway" in section 102 of the Transportation Code, UDOT's interpretation is incorrect.

¶16 Evans also incorrectly interprets the statute, arguing that by inserting the statutory definitions of "interchange" and "pavement widening" into the 500-foot prohibition statute, the Legislature clearly intended "intersecting highway" to mean "other route." While this view is logical, Evans fails to point to anything in the statute that supports the claim the Legislature intended such a meaning.

II. Definition of "Intersecting Highway"

¶17 Because the Act provides no specialized meaning for "intersecting highway," we turn to the plain and ordinary meaning of these terms. See State v. Rasabout , 2015 UT 72, ¶ 43, 356 P.3d 1258 (Lee, J., concurring). But, in doing so, we interpret "the meaning of the text given the relevant context of the statute (including, particularly, the structure and language of the statutory scheme)." Olsen v. Eagle Mountain City , 2011 UT 10, ¶ 12, 248 P.3d 465. And we "read and interpret statutory provisions in harmony with other provisions in the same statute and with other related statutes." State v. Jeffries , 2009 UT 57, ¶ 9, 217 P.3d 265.

¶18 "Intersect" is defined as "to meet and cross at a point." Intersect , Webster's Third New International Dictionary 1183 (1993). See also Intersect , New Oxford American Dictionary 909 (3d ed. 2010) (to "divide (something) by passing or lying across it"); Intersection , Black's Law Dictionary 896 (9th ed. 2009) ("A place where two roads meet or form a junction."). "Highway" is defined as "a main road," connecting towns or cities. Highway , New Oxford American Dictionary 821 (3d ed. 2010). See also Highway , Black's Law Dictionary 798 (9th ed. 2009) ("The main public road connecting towns or cities."); Highway , Webster's Third New International Dictionary 1069 (1993) ("[A] main direct road (as between one town or city and another.") ). Thus, the plain meaning of an intersecting highway is a main public road that meets or crosses a street, road, or highway. This meaning is consistent with other sections of the Act where "highway" is not a term so expansive as to include every street or road. See Utah Code Ann. §§ 72-7-502(1), -505(3)(d) (LexisNexis Supp. 2017).

¶19 Because the Act is "subject to and shall be superseded by conflicting provisions of the Utah-Federal Agreement," id. § 72-7-515(2) (2009), we must also interpret the meaning of "intersecting highway" to be in harmony with the agreement and the federal statutory scheme out of which it arises.

¶20 The agreement requires Utah to control outdoor advertising in "areas adjacent to the interstate and primary systems" within the State of Utah. Utah Admin. Code R933-5-2. See also 23 U.S.C. § 131(a) - (b) (2012). It also specifies the criteria for outdoor advertising, particularly the sizing, spacing, and lighting of signs. And it requires that "[o]nly roads, streets and highways which enter directly into the main-traveled way of the primary highway shall be regarded as intersecting."

Utah Admin. Code R933-5-2(III) (emphasis added). Given this provision, and the statutory context of the Act, we conclude that an "intersecting highway" must be a "primary highway."

¶21 In the case before us, the interchange is not "the main-traveled way of the primary highway." Id . A main-traveled way "means the through traffic lanes, including auxiliary lanes, acceleration lanes, deceleration lanes, or feeder systems, exclusive of frontage roads and ramps." Utah Code Ann. § 72-7-502(14). See also Utah Admin. Code R933-5-2(I)(I) (providing that a main-traveled way is "the traveled way of a highway on which through traffic is carried"). An interchange cannot be a main-traveled way because it does not include "deceleration lanes, acceleration lanes, or feeder systems." Utah Code Ann. § 72-7-502(11). Moreover, the 2,640-foot limit is measured from the "center line" of the intersecting highway. A "center line" is "a line equidistant from the edges of the median separating the main-traveled way of a divided interstate or other limited-access highway" or "the main-traveled way of a non-divided highway." Utah Admin. Code R933-5-2(I)(G). Center lines occur only on main-traveled ways. Because an interchange is not a main-traveled way, and an intersecting highway clearly has a center line under the statute, the interchange is not a "primary highway." For the Act and the Agreement to be in accord, the interchange must be the road that enters directly into or exits directly from "the main-traveled way of the primary highway," or as the Legislature put it: "the intersecting highway."

¶22 Because an "intersecting highway" must be a "primary highway," and the Act does not define "primary highway," we look to the Utah-Federal Agreement, and the federal statutes out of which it arises, to ascertain its meaning. A "primary highway" is a highway on the federal-aid primary system. See 23 U.S.C. § 131(a) (2012) ; Utah Code Ann. § 72-7-501(2) (LexisNexis 2009); Utah Admin. Code R933-5-2. As of 1991, the federal-aid highway system consisted of four parts: the interstate, primary, secondary, and urban systems. Congress then restructured this system into the National Highway System. See 23 U.S.C. § 103(a) (2012) ("[T]he Federal-aid system is the National Highway System."). See also Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, § 1006(a), (b)(2), 105 Stat. 1914, 1923, 1925 (1991). Now, the primary system is "the Federal-aid primary system in existence on June 1, 1991, and any highway which is not on such system but which is on the National Highway System." 23 U.S.C. § 131(t). This change is reflected in the Act because it regulates not only "the interstate" system and "federal aid primary highway [system] existing as of June 1, 1991," as required by the Agreement, but also "the national highway system." Utah Code Ann. § 72-7-501(2) - (3). See also id. §§ 72-7-502(26), -505(3)(ii)(A), -510(6)(a) (2009 & Supp. 2017).

¶23 The National Highway System (the NHS) is comprised of "highway routes and connections to transportation facilities that ... serve major population centers ... and other major travel destinations," and also "interstate and interregional travel and commerce." 23 U.S.C. § 103(b)(1) (2012). Highways on the NHS, and those previously designated as federal-aid primary highways, are major roads that receive federal funding to ensure they can meet the "[t]ransportation needs of [the] 21st century." 23 U.S.C. § 101(b)(3) (2012). Because the federal-aid primary highway system and the NHS are main public roads, connecting towns and cities, they fit within the ordinary meaning of a highway. See Highway , Black's Law Dictionary 798 (9th ed. 2009).

¶24 Here, the district court included I-15 in its interpretation of "intersecting highway." But an interstate highway cannot be an intersecting highway for two reasons. First, the entire 2,640-foot limit would be superfluous because an interchange channels traffic off from and onto an interstate highway, see supra ¶14, and for that reason, the interstate would always intersect the interchange at the exit and no limit would be necessary. And second, while the interstate system is a part of the NHS, the primary system does not include the interstate system, and the Act and the Utah-Federal Agreement refer to them as two separate systems. See 23 U.S.C. § 131(a) ; Utah Admin. Code R933-5-2. Therefore, an interstate highway is not a primary highway.

¶25 Rather, to be in harmony with the statutory context of the Act, an "intersecting highway" is a primary highway on the federal-aid primary system as of June 1, 1991, or on the NHS. Interpreting this term otherwise would put the Act at odds with legislative intent to adhere to the terms of the Agreement, which states that only streets, roads, and highways that directly intersect the main-traveled way of a primary highway are considered intersecting. See Utah Code Ann. § 72-7-515(2) (stating that provisions of the Act "shall be superseded by conflicting provisions of the Utah-Federal Agreement").

¶26 Accordingly, we conclude that an "intersecting highway" under section 505 of the Act is a primary highway that directly intersects the interchange in question.

III. US-6 and SR-156

¶27 Because US-6 is a federal-aid primary highway and SR-156 is part of the NHS system of highways, they are both primary highways. But neither primary highway intersects the interchange within 2,640 feet of the pavement widening at Exit 257.

¶28 UDOT calculated the distances to the intersecting highways by measuring from the point of the gore to the intersections of US-6 and SR-156 with I-15. This calculation is incorrect because a pavement widening is measured from the center line of the primary highway intersecting the interchange-not from where the primary highway intersects the interstate. In any event, neither US-6 nor SR-156 intersect the interchange within 2,640 feet of the point of the gore. US-6 begins at the "Moark Connection Interchange of Route 15 easterly through Spanish Fork Canyon," Utah Code Ann. § 72-4-106(1) (LexisNexis Supp. 2017), which is more than four miles from the interchange at I-15. UDOT also determined that "[a]t no point does [the] legislative definition of [US]-6 include the southbound ramps off of the I-15 mainline in this area." And SR-156 intersects I-15 more than 4,400 feet beyond the point of the gore. Because this intersection is proximate to the intersection of SR-156 and the interchange, it intersects more than 2,640 feet from the pavement widening.

¶29 Because there is no "intersecting highway" within 2,640 feet of the point of the gore at Exit 257 and, consequently, no 500-foot prohibition around the interchange, the district court erred in its conclusion that Evans's signs are prohibited.

CONCLUSION

¶30 We conclude that an "intersecting highway" under the Utah Outdoor Advertising Act is a primary highway that directly intersects the relevant interstate interchange, and that the district court erred in its conclusion that there is an intersecting highway within 2,640 feet of the pavement widening at Exit 257. We therefore reverse its decision to uphold UDOT's denial of Evans's applications and remand with instructions that UDOT grant the applications.

      The Utah Outdoor Advertising Act has since been amended and renumbered. For convenience, we cite the most recent version of the Act, which remains unchanged as to the relevant sections.

      As we gather from oral argument, the principal safety concern is with drivers becoming distracted by billboards when they should be concentrating on driving. This concern is minimal when drivers are simply cruising down a divided highway, but it may become significant when drivers are exiting or entering a highway or navigating intersections and interchanges. The applicable regulations are rather complex and technically challenging, from which it follows that our analysis is as well, but the regulations' overall purpose is not mystification; primarily, it is safety.

      Evans argues that pavement widening occurs at the point of the gore, and that the exit lanes are deceleration lanes. These two assertions seem at odds with our decision in Young Electric Sign Co. v. Utah Department of Transportation , 2005 UT App 169, 110 P.3d 1118, in which we determined that pavement widening occurs at the point of the gore when "there is no acceleration lane and the interchange on-ramp immediately dies into the freeway." Id. ¶ 9 (emphasis added) (quotation simplified). And "where there exists an acceleration lane," pavement widening occurs "where the intersecting lane begins to parallel the other lanes of traffic." Id. (quotation simplified). Because acceleration and deceleration lanes share the same definition under the Utah Administrative Code, we see no reason why our interpretation of pavement widening in Young should not apply to deceleration lanes as well. Utah Admin. Code R933-2-2(2) (defining acceleration and deceleration lanes as "speed change lanes created for the purpose of enabling a vehicle to increase or decrease its speed to merge into, or out of, traffic on the main-traveled way"). Accordingly, the point of the gore occurs where there is no deceleration lane, only an off-ramp, and where there is a deceleration lane, the pavement widening occurs where the intersecting lane ceases to parallel the other lanes of traffic. See Utah Code Ann. § 72-7-502(22) (LexisNexis Supp. 2017). In this case, one of the three exit lanes for Exit 257 is clearly an off-ramp, not a deceleration lane, because it immediately diverges from I-15 without allowing a vehicle to "merge into, or out of, traffic." For that reason, Evans is correct that pavement widening occurs at the point of the gore.

      UDOT has repeatedly argued that the 2,640-foot limit is contrary to the Utah-Federal Agreement, and Utah would therefore be in violation of that agreement to allow signs within 500 feet of an interchange. See Young , 2005 UT App 169, ¶ 9 n.4, 110 P.3d 1118. Essentially, the 2,640-foot limit hinders UDOT's enforcement of the 500-foot prohibition of signs around an interchange in some circumstances. Although the Utah-Federal Agreement does not provide a limit on how far a pavement widening may be from the intersecting highway, it is clear from the statute that the Legislature does intend to impose such a limit. Our role is to review and interpret the statutes as the Legislature intended, not to deviate from the statutory language as best meets UDOT's view of its mission.

      Evans also contends that the exit lanes are deceleration lanes, and that the Act "expressly allows billboards near deceleration lanes by excluding deceleration lanes from the definition of 'interchange.' " Because we reverse on the district court's interpretation of "intersecting highway," we have no occasion to decide whether the exit lanes are deceleration lanes.

      We recognize that, under the Act, the Legislature has defined "intersection," and that the term shares the same definition as "interchange." See Utah Code Ann. § 72-7-502(11) (LexisNexis Supp. 2017). But "intersecting" does not share this definition because the 2,640-foot restriction is measured from "the center line of the intersecting highway of the interchange or intersection at grade," indicating that these two terms hold different meanings. Id. § 72-7-502(22) (emphases added).

      Whether a highway constitutes a "primary highway" is determined by UDOT with approval by the Secretary of Transportation. 23 U.S.C. § 103(b)(3)(A) (2012). See also Utah Code Ann. § 72-1-102(6) (LexisNexis 2009).

      See generally Utah Dep't of Transp., Outdoor Advertising Control Map , http://arcg.is/04OLDW. US-6 is a part of the NHS because it is a non-interstate strategic highway that "provide[s] defense access, continuity, and emergency capabilities for the movement of personnel, materials, and equipment in both peacetime and wartime." 23 U.S.C. § 103(b)(2)(D)(i) (2012). See Federal Highway Admin., U.S. Dep't of Transp., National Highway System , https://hepgis.fhwa.dot.gov/fhwagis/. And SR-156 is a principal arterial route, a roadway that serves "major centers of metropolitan areas, provide[s] a high degree of mobility, and can also provide mobility through rural areas." Federal Highway Admin., U.S. Dep't of Transp., Highway Functional Classification Concepts, Criteria and Procedures , https://www.fhwa.dot.gov/planning/processes/statewide/related/highway_functional_classifications/section03.cfm [https://perma.cc/YYM6-L3NK]. See also Federal Highway Admin., U.S. Dep't of Transp., National Highway System , https://hepgis.fhwa.dot.gov/fhwagis/.


author: MORTENSEN, Judge:

text:
    UTAH DEPARTMENT OF TRANSPORTATION, Appellant, v. LEJ INVESTMENTS LLC, Robert Bowman Consulting LLC, Craig Jensen, Richard Jensen, Carol Bowman, and Robert Bowman, Appellees.
    No. 20160648-CA
    Court of Appeals of Utah.
    Filed November 8, 2018
    Sean D. Reyes, Barbara E. Ochoa, William H. Christensen, David M. Quealy, and Brent A. Burnett, Salt Lake City, Attorneys for Appellant
    Jonathan O. Hafen, Justin P. Matkin, and Jeffery A. Balls, Salt Lake City, Attorneys for Appellees
    Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.
    Opinion
   MORTENSEN, Judge:

¶1 In this condemnation action, the Utah Department of Transportation (UDOT) attempted to convince the trial court that a piece of property was nearly worthless dirt. The trial court thought more of the property, and UDOT appeals. We affirm.

BACKGROUND

¶2 UDOT filed a condemnation action to acquire a strip of land that crossed property owned by LEJ Investments LLC, Robert Bowman Consulting LLC, Craig Jensen, Richard Jensen, Carol Bowman, and Robert Bowman (collectively, LEJ). UDOT sought to obtain the land to construct a new freeway, the Mountain View Corridor (the MVC), on the west side of Salt Lake County. When the parties could not agree on the fair market value of the property, UDOT served LEJ with a complaint, establishing the date on which the trial court was to base its determinations of fair market value and severance damages.

¶3 At trial, UDOT and LEJ presented differing appraisal values for the property. UDOT depicted the property as "a 353-acre vacant dry farm" with "no streets accessing the interior of the property" and with "antelope still roam[ing] the area." LEJ depicted the property as a budding real-estate investment with immediate potential for mixed-use development. During trial, the mayor of West Jordan City (the City) testified that the mixed-use development plans were consistent with the City's plans for the area, even without the MVC. A real estate developer also testified that there was sufficient demand as of the valuation date to develop the LEJ property for mixed use, even in the absence of the MVC.

¶4 The trial court reviewed appraisals from each party and ultimately rejected both valuations. The court concluded, "Neither side offered a backup or alternative valuation for the court to look to for guidance, opting instead to go for broke with the value conclusions each had in hand. Under these circumstances, the court has no choice but to construct its own before-condition valuation, as best it can under the circumstances, and with all the limitations presented." The court ultimately awarded LEJ approximately $13 million in just compensation for the property.

¶5 After the trial court entered a final judgment, UDOT learned that LEJ had not supplemented its discovery responses prior to trial with information regarding actual development proposals for portions of the LEJ property. UDOT moved for a new trial, asking the court to compel production of documents and reopen discovery. The trial court granted the motion in part, requiring LEJ to supplement its discovery responses with unproduced documents and scheduling an additional day of trial. The trial court denied UDOT's request to conduct additional discovery and quashed the subpoenas UDOT's counsel had issued to consultants whom LEJ engaged in an effort to gain municipal development approvals during the time leading up to trial. After receiving additional evidence during the added day of trial, the trial court declined to amend its prior ruling.

¶6 UDOT appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 UDOT raises various challenges to the trial court's final order. Where UDOT challenges the court's application of the law, we review such conclusions for correctness. See AmericanWest Bank v. Kellin , 2015 UT App 300, ¶ 11, 364 P.3d 1055. Where UDOT's arguments challenge the court's factual findings, we review for clear error. Id. Finally, we review the court's decision to partially reopen trial and discovery for an abuse of discretion. See Sunridge Dev. Corp. v. RB & G Eng'g, Inc ., 2013 UT App 146, ¶ 3, 305 P.3d 171 ; Clissold v. Clissold , 30 Utah 2d 430, 519 P.2d 241, 242 (1974), overruled on other grounds by St. Pierre v. Edmonds , 645 P.2d 615 (Utah 1982).

ANALYSIS

¶8 UDOT contends that the trial court erred in four ways. First, UDOT argues that the trial court misapplied the project-influence rule by relying on developments and comparable properties that existed after the MVC project began. Second, UDOT argues that the trial court's conclusions regarding the after-condemnation value of the property and severance damages were clearly erroneous, legally incorrect, and internally inconsistent. Third, UDOT argues that the trial court did not hold LEJ to the appropriate burden of proof when it rejected LEJ's expert's appraisal but proceeded to complete a fair market evaluation. Fourth, UDOT argues that the trial court erred in refusing to allow UDOT to conduct additional discovery when it partially granted UDOT's motion for a new trial. We analyze these arguments in turn.

I. The Project-Influence Rule

¶9 We first examine UDOT's argument that the trial court misapplied the project-influence rule because it did not exclude increases to the value of LEJ's property attributable to the construction of the MVC. UDOT specifically argues that (1) the court should have excluded value increases resulting from development patterns that occurred after the MVC was announced, (2) the court's highest and best use conclusion wrongly incorporated the influence of the MVC, and (3) the court erroneously relied on comparable properties, influenced by the MVC, that did not exist on the valuation date. Because evidence was presented at trial showing that the development the court considered would have happened regardless of the construction of the MVC, we conclude that the court did not misapply the project-influence rule.

¶10 In a condemnation proceeding, the factfinder must determine the fair market value of the condemned property. See Utah Code Ann. § 78B-6-511(1) (LexisNexis Supp. 2018); Thorsen v. Johnson , 745 P.2d 1243, 1246 (Utah 1987). Our courts have developed a rule, referred to as the project-influence rule in these proceedings, to ensure that "any enhancement or decrease in value attributable to the purpose for which the property is being condemned shall be excluded in determining the fair market value of the property." Redevelopment Agency of Salt Lake City v. Grutter , 734 P.2d 434, 437 (Utah 1986).

¶11 UDOT concedes that the trial court recognized the project-influence rule while making its ruling. Indeed, the trial court articulated its task well when it stated,

[T]he court must construct a hypothetical world as of February 1, 2011, in which it assumes the MVC Project never existed. To do that, the court must reach back even further, to 2003, assume the project never existed, and then project forward what [the] real estate development world would have looked like in the relevant market during the period from 2003 to 2011 had the MVC Project never existed.

However, UDOT argues that the trial court failed to apply the rule properly. We disagree.

¶12 Ample evidence existed on the record for the trial court to conclude that the area would have been developed even without the MVC project. For example, the trial court found, and UDOT does not challenge the finding, that UDOT's expert arrived at his valuation conclusion by looking only to the City's general plan for the year 2003-before the MVC was announced. What that assessment ignores is the development that would have occurred in the absence of the MVC project's influence between 2003 and the valuation date for the LEJ property in 2011. But it was the trial court's duty to predict what development would likely have occurred and, by comparison, what the value of the LEJ property would likely have been had the MVC never been announced.

¶13 The trial court justifiably relied on two pieces of compelling evidence showing that the development of the area surrounding the LEJ property would have happened regardless of the MVC. First, the City's mayor testified that LEJ's plans for commercial and residential development were consistent with the City's plans for the area with or without the MVC. A year or two before the lawsuit, LEJ began working with the City to create a plan for mixed-use development. The mayor testified that those plans were consistent with the City's plans. The mayor highlighted her desire to encourage mixed-use development in the area and specifically testified that none of these plans were contingent on the construction of the MVC.

¶14 Second, the trial court heard testimony from "a well-known and well respected local real estate developer familiar with development properties along the western portion of the Salt Lake Valley." The developer testified that there was sufficient market demand as of the valuation date, even in the absence of the MVC, to make the uses proposed in LEJ's plan financially feasible.

¶15 It was within the trial court's discretion to find the mayor's testimony and the real estate developer's testimony credible. Under that framework, the court could rely on development patterns that occurred or comparable properties that were built after the MVC was announced because those developments would likely have happened anyway. Thus, the trial court did not error (1)

when it relied on increases resulting from development patterns that occurred after the MVC was announced, (2) in its highest and best use conclusion, and (3) in its reliance on comparable properties built in the shadow of MVC. We perceive no error in the trial court's application of the project-influence rule.

II. Severance Damages

¶16 Next, UDOT argues that the trial court's calculation of severance damages was "clearly erroneous, legally incorrect, and internally inconsistent." We conclude that UDOT invited any alleged error of which it now complains.

¶17 In a takings action where the property condemned constitutes only a part of the property, a court also determines damages to the part of the property not actually taken. See Utah Code Ann. § 78B-6-511(1)(b) (LexisNexis Supp. 2018). "The cardinal and well-recognized rule as to the measure of damages to property not actually taken but affected by condemnation is the difference in market value of the property before and after the taking." Salt Lake County Cottonwood Sanitary Dist. v. Toone , 11 Utah 2d 232, 357 P.2d 486, 488 (1960).

¶18 In its effort to determine the value of the property and to establish severance damages, the trial court stated that neither side's appraisals and conclusions were reliable, but the trial court nevertheless employed the "material and testimony from two appraisals" to arrive at its conclusion. During trial, UDOT endorsed this approach:

Your Honor, as the fact finder you are allowed to decide the case based on what you think the most reasonable value of the property is, weigh all of the evidence from both appraisers and decide a value, but it's not an either/or question. It's somewhere in the middle. ... [Y]ou could pick some portions from one appraiser's conclusions, you could pick some conclusions from another appraiser's opinions. ... You are allowed to arrive at a range in between what the experts say based on the evidence ....

UDOT now argues on appeal that the trial court's ruling on severance damages was erroneous because the court "did not explain how [the experts'] value conclusion[s], rejected as unreliable, could nonetheless support a range of values for its severance damage conclusion." UDOT essentially argues that because the trial court did not adopt either expert's appraisal, it could not rely on either expert's appraisal.

¶19 Although the trial court failed to provide a detailed calculus explaining how it arrived at its adjustment value, it explained why it could not provide such a mathematically precise calculus. The court noted that "the appraisal experts ... make much more sweeping percentage adjustments to comparable sales with little to no explanation." UDOT does not argue any facts upon which the court should have relied or explain what the trial court should have done with the evidence that was presented to it to avoid error. Under these circumstances, we are inclined to conclude that the trial court did not err. Cf. Utah Dep't of Transp. v. Target Corp. , 2018 UT App 24, ¶ 40, 414 P.3d 1080 (concluding that claimants in a condemnation action were not required to "present their severance damages on a line-item basis" but could "present their severance damages evidence in a more general way") cert. granted , 425 P.3d 800 (Utah 2018) ; see also Macris v. Sevea Int'l, Inc. , 2013 UT App 176, ¶ 35, 307 P.3d 625 ("Although damages may not be determined by speculation or guesswork, evidence allowing a just and reasonable estimate of the damages based on relevant data is sufficient." (cleaned up) ).

¶20 Even assuming that the trial court erred, UDOT invited the trial court to analyze the issue in the manner that it now complains was erroneous. "Under the doctrine of invited error, an error is invited when counsel encourages the trial court to make an erroneous ruling." State v. McNeil , 2016 UT 3, ¶ 17, 365 P.3d 699. Thus, a party cannot "intentionally mislead[ ] the trial court so as to preserve a hidden ground for reversal on appeal." Id. (cleaned up). Here, UDOT invited the trial court to "arrive at a range in between what the experts say based on the evidence." We therefore reject UDOT's argument that the court erred in doing exactly what UDOT urged it to do.

III. The Burden of Proof at Trial

¶21 UDOT next contends that the trial court failed to hold LEJ to the correct burden to prove its damages when it did not adopt LEJ's expert's opinion. UDOT argues that when the trial court rejected LEJ's expert's conclusion, it should have ordered just compensation in the amount that UDOT proffered or, in the alternative, the trial court should have ordered a new trial. We disagree and further conclude that UDOT invited any alleged error.

¶22 UDOT correctly posits that "[t]he burden of showing the damages which the owner will suffer rests on him." Tanner v. Provo Bench Canal & Irrigation Co. , 40 Utah 105, 121 P. 584, 589 (1911) (cleaned up). But UDOT fails to apply this principle in its argument correctly. "It is well settled that, although the plaintiff has the burden of proving the fact, causation, and amount of damages, he need only do so with reasonable certainty rather than with absolute precision." Macris v. Sevea Int'l, Inc. , 2013 UT App 176, ¶ 35, 307 P.3d 625 (cleaned up). Thus, LEJ's burden was not to prove damages with exact certainty, but to "produce a sufficient evidentiary basis to establish the fact of damages and to permit the trier of fact to determine with reasonable certainty the amount" of damages. Sawyers v. FMA Leasing Co. , 722 P.2d 773, 774 (Utah 1986) (per curiam).

¶23 Here, while the trial court did not adopt either expert's appraisals, it also did not outright reject them. The trial court stated that it "agrees and disagrees with both parties' experts." The fact that the trial court did not follow either expert to their respective conclusions does not render the court unable to rely on any portion of the experts' testimony. See Tucker v. Tucker , 910 P.2d 1209, 1216 (Utah 1996) ("[T]he trial court, as trier of fact, [is] entitled to weigh the evidence and reject all or part of any witness's testimony, even that of an expert." (cleaned up) ).

¶24 The trial court explained that LEJ's expert "did a better job of identifying the highest and best use of the property in the before condition, but the mechanism he used to calculate LEJ's damages is not reliable and the result appears to overstate the value of the property." The court "likewise accept[ed] and reject[ed] portions of the expert's opinions of value in the after condition," where "UDOT's experts seriously understate[d] the access problems created by the alignment of the MVC." We conclude that LEJ presented evidence of its damages, at least some of which the court found to be credible, and that LEJ satisfied its burden to the extent that the trial court could rule on LEJ's damages stemming from the condemnation. See Utah Dep't of Transp. v. Jones, 694 P.2d 1031, 1033 (Utah 1984) ("In eminent domain cases, absent a showing of passion and prejudice, if the award of compensation was within the estimate of value given by one of the expert witnesses, it is supported by competent evidence and will be affirmed."); State ex rel. Road Comm'n v. Taggart, 19 Utah 2d 247, 430 P.2d 167, 169 (1967) ("The finding of the jury in respect to severance or consequential damage was within the range of the testimony upon that subject matter. We are of the opinion that there is a reasonable basis in the evidence for the finding of the jury in respect to damages and that the trial court did not abuse its discretion in denying the defendant's motion for a new trial on that basis.").

¶25 Second, we again note that UDOT encouraged the trial court to rule based on the range of values presented by the experts. Even if it were error for the court to make a ruling on the range of values given, we would reject UDOT's argument under the invited error doctrine. See State v. McNeil , 2016 UT 3, ¶ 17, 365 P.3d 699.

IV. The Denied Request for Additional Discovery

¶26 Finally, UDOT argues that the trial court abused its discretion in refusing to allow additional discovery regarding plans to develop the remainder of the property. UDOT has not persuaded us that the court abused its discretion.

¶27 A trial court does not abuse its discretion "if a reasonable basis for its decision is apparent from the record." Johnston v. Labor Comm'n , 2013 UT App 179, ¶ 15, 307 P.3d 615. But UDOT attempts to construe our holding in Sleepy Holdings LLC v. Mountain West Title , 2016 UT App 62, 370 P.3d 963, to essentially mean that any time a court rules that a party may not conduct a deposition, that party is prejudiced. We do not follow UDOT to this conclusion.

¶28 In Sleepy Holdings , we examined a trial court's imposition of discovery sanctions. Id. ¶ 9. There, we determined that Mountain West was prejudiced by Sleepy Holdings' late supplementation because "had the deposition suggested additional avenues of discovery, Mountain West would be at a disadvantage in exploring them, as the discovery cutoff had by that time passed." Id. ¶ 27.

¶29 Here, we do not examine the trial court's imposition of discovery sanctions. Instead, we review the trial court's partial grant of UDOT's motion for additional discovery and a new trial. We are therefore unconvinced that our holding in Sleepy Holdings , which deals specifically with discovery sanctions , binds us to conclude that, when ruling on a motion to reopen discovery and for a new trial , a trial court must completely reopen discovery when potentially new evidence is discovered.

¶30 To the contrary, when a party moves for a new trial based on newly discovered evidence, as UDOT did here, the party must demonstrate that the evidence is "of sufficient substance that with it there is a reasonable likelihood that there would have been a different result." In re L.M. , 2003 UT App 75, ¶ 8, 68 P.3d 276 (cleaned up). UDOT has not explained why additional discovery, beyond what the trial court allowed, was necessary. UDOT's only assertion of prejudice is its inability to "fully develop[ ] the facts it needed to present its case." It makes no attempt to describe what those "needed" facts might be, or why they were needed. Given that the trial court partially granted the motion, ordered the production of documents, and even heard an additional day of testimony where new witnesses were called, we are hard-pressed to conclude that the court abused its discretion. Because UDOT "has not adequately explained why additional discovery was needed," we reject its argument. Sunridge Dev. Corp. v. RB & G Eng'g, Inc. , 2013 UT App 146, ¶ 9, 305 P.3d 171.

CONCLUSION

¶31 UDOT's challenge to the trial court's final order fails. UDOT's argument that the trial court misapplied the project-influence rule fails because there was ample evidence on the record that the improvements and development upon which the court based its determination would have occurred even without the MVC project. UDOT's argument that the court erred in calculating severance damages also fails because UDOT invited any error of which it now complains. UDOT's argument that the trial court failed to apply the proper burden of proof is without merit. LEJ presented enough evidence to carry its burden, and any error the trial court may have made was invited by UDOT. Finally, UDOT's argument that the trial court abused its discretion by not reopening discovery and not granting a new trial fails because UDOT did not explain why additional evidence was necessary.

¶32 Affirmed.

      Because the statutory provisions in effect at the relevant time do not differ in any material way from those now in effect, we cite the current version of the Utah Code for convenience.

      LEJ's proposed uses include residential housing at various densities, commercial development, and an office park.

      The trial court acknowledged that while neither appraisal was entirely reliable, the appraisals still informed the court's determination: "[A]s far as the value of the property in the before condition, the court is left with the unenviable task of trying to determine the fair market value of the property with material and testimony from two appraisals, neither of which correctly addressed the issue at hand."

      See also City of North Las Vegas v. 5th & Centennial, LLC , Nos. 58530, 59162, 2014 WL 1226443, at *4 (Nev. March 21, 2014) (holding that, where "the district court rejected all expert testimony relevant to damages and created its own arbitrary methodology," the court did not abuse its discretion where the calculation of damages was within the range set by the experts and based on the evidence it heard).


author: POHLMAN, Judge:

text:
    Al SYME and Martha Syme, Appellants, v. SYMPHONY GROUP LLC, Appellee.
    No. 20170531-CA
    Court of Appeals of Utah.
    Filed November 8, 2018
    Richard H. Reeve, Attorney for Appellants
    Robert E. Mansfield and Megan E. Garrett, Salt Lake City, Attorneys for Appellee
    Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.
    Opinion
   POHLMAN, Judge:

¶ 1 Al and Martha Syme met with Symphony Group LLC to discuss the construction of a custom home. The parties signed a contract, but the Symes cancelled it before construction began. Symphony, however, retained the Symes' earnest money and construction deposits. The Symes sued to recover both deposits, and Symphony moved for summary judgment, which the district court granted. The Symes appeal. We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

¶ 2 In the spring of 2015, the Symes met with representatives of Symphony about the construction of a new, custom home in Layton, Utah. The parties signed a written contract (the Agreement) on June 1, which set forth the basic details of the house Symphony was to construct, including its location, price, and floor plan. Some of the details, such as the color and type of brick, countertops, and floor coverings, were left to be selected in future meetings. The Agreement also set forth the obligations of each party and provided for specific remedies in the event of a breach.

¶ 3 As part of the house's purchase price, the Symes agreed to pay Symphony an earnest money deposit of $2,000 (the Earnest Money) and a construction deposit of $43,000 or $48,000 (the Construction Deposit). The Symes delivered the Earnest Money to Symphony when they signed the Agreement. They delivered a $48,000 Construction Deposit to Symphony at a subsequent "Structural Review Meeting."

¶ 4 Regarding the house's financing, the Agreement required the Symes "to receive written evidence of loan pre-approval within ten (10) days from" Symphony's acceptance of the Agreement, "or such longer period as [Symphony], in its sole discretion may allow." The same provision stated that if the Symes failed "timely to provide such loan approval to [Symphony]," then Symphony could elect to terminate the Agreement. If Symphony elected to terminate the Agreement under this provision, the Agreement required Symphony to return the Earnest Money to the Symes unless they were in default.

¶ 5 Another provision in the Agreement required the Symes to deliver to Symphony a loan pre-approval letter "prior to or at" the "Color Selection Meeting"-a meeting the Symes were required to attend at Symphony's "reasonable request." If the Symes failed to deliver the loan pre-approval letter as required by this provision, Symphony could, "in its sole and reasonable discretion," deem the Symes "in default" and enforce its remedies "as allowed by [the] Agreement and Utah law, including but not limited to, [Symphony's] retention of [the] Earnest Money and Construction Deposit."

¶ 6 The Color Selection Meeting never took place. According to the Symes, they "waited in vain" for Symphony to "follow through on [the Color Selection Meeting]" or "request [the pre-approval letter]."

¶ 7 Before construction started or any other meetings were held, the Symes sent a letter to Symphony through their attorney purporting to cancel the Agreement. The Symes conceded in the letter that they would have to forfeit their $2,000 Earnest Money but requested the return of their Construction Deposit. Because the Symes did not deliver the pre-approval letter and "failed to finalize other preconstruction selections at the Color Selection Meeting," Symphony refused to return the Construction Deposit.

¶ 8 The Symes brought suit for the return of the Earnest Money and Construction Deposit, seeking a declaration that no contract existed and, alternatively, seeking damages for breach of contract and breach of the implied covenant of good faith and fair dealing. Symphony moved for summary judgment on each claim.

¶ 9 The district court granted Symphony's motion. It concluded that there was an enforceable contract between the parties and determined that the Symes would be unable to prove their breach of contract claim because the Symes themselves breached the Agreement by failing to provide the pre-approval letter "within 10 days of acceptance of the contract." The court reasoned that "[e]ven if the [Color Selection Meeting] never took place, [the Symes] were still required by the contract to provide the pre-approval letter." The court also concluded that the Symes would be unable to prove their implied covenant of good faith and fair dealing claim. At the heart of that claim was the Symes' contention that the liquidated damages clause Symphony relied on to retain the Earnest Money and Construction Deposit was unconscionable. The court concluded that "expert testimony would be required" to establish unconscionability and that the Symes would be unable to prove their claim because they had conceded they "would be precluded from offering expert testimony at trial." Thus, the court entered final judgment in favor of Symphony. The Symes timely appeal.

ISSUE AND STANDARD OF REVIEW

¶ 10 The Symes' arguments on appeal all flow from the district court's summary judgment decision. Summary judgment is appropriate "if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). "An appellate court reviews a district court's legal conclusions and ultimate grant or denial of summary judgment for correctness and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." ZB, NA v. Crapo , 2017 UT 12, ¶ 11, 394 P.3d 338 (quotation simplified).

ANALYSIS

I. The Enforceability of the Agreement

¶ 11 The Symes first contend that the district court erred in granting summary judgment to Symphony on their claim for declaratory relief because there were disputed facts material to the question of whether a contract was formed. In support, they make three related arguments: first, that the Agreement is too indefinite to be enforced; second, that the parties never intended the Agreement to be the final agreement; and finally, that the Agreement is ambiguous. We address each argument in turn.

A. Contract Formation

¶ 12 The Symes assert that the Agreement is too indefinite to be an enforceable contract because it is "silent as to much of the work that [was] to be performed by Symphony." Without specifying "exterior materials," "interior finishes," and the "types of countertops, cabinets, shingles, lighting fixtures, or appliances" that were to be used in the construction of their house, the Symes assert that the Agreement "cannot be performed."

¶ 13 "Whether a contract exists between parties is ordinarily a question of law ...." Cea v. Hoffman , 2012 UT App 101, ¶ 9, 276 P.3d 1178. "A binding contract exists where it can be shown that the parties had a meeting of the minds as to the integral features of the agreement and that the terms are sufficiently definite as to be capable of being enforced." ACC Capital Corp. v. Ace West Foam Inc. , 2018 UT App 36, ¶ 12, 420 P.3d 44 (quotation simplified). "A contract may be enforced even though some contract terms may be missing or left to be agreed upon, but if the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no contract." Nielsen v. Gold's Gym , 2003 UT 37, ¶ 12, 78 P.3d 600 (quotation simplified).

¶ 14 Here, the Agreement is capable of being enforced because it includes all the essential terms of a valid contract. The Agreement was signed by both the Symes and Symphony, it listed the specific price of the property and the address, and it set forth additional terms regarding the work and the parties' relationship and respective obligations. While some contract terms, such as the color of the countertops and other materials selections, were "left to be agreed upon," see id. (quotation simplified), this fact does not demonstrate that there was no meeting of the minds on the contract's essential terms. Rather, the parties expressly contemplated that additional selections would be made, and they agreed on the process for making those selections. Thus, the Agreement includes sufficient detail as to be "capable of being enforced," and the district court did not err in concluding there was a valid contract. See ACC Capital , 2018 UT App 36, ¶ 12, 420 P.3d 44 (quotation simplified).

B. The Parties' Intentions

¶ 15 The Symes relatedly argue that the Agreement "was not intended, by itself, to be a final contract between the parties" and that the district court failed to recognize the existence of a factual dispute about the parties' intentions. In support, they again highlight that the Agreement contemplated future meetings and they refer to unsigned documents, such as additional exhibits and design addenda that, once completed, would "finalize the contract between the Symes and Symphony." Anticipating these future meetings and documents, the Symes assert that they "did not intend for the [Agreement] to serve as the contract with Symphony and considered themselves as being still engaged in the contract formation process." We are not persuaded.

¶ 16 The Symes' arguments regarding the parties' intentions largely rehash their argument that the contract was too indefinite to be enforced and needed more details. See supra Part I.A. As explained, the parties agreed to the "essential terms" of the Agreement, and the anticipation of future meetings to select finishes does not demonstrate that the parties did not intend the Agreement to be enforceable. The Agreement set forth the parties' obligations and their remedies in the event of a breach. That the parties anticipated future activities as set forth in the Agreement does not demonstrate an intent that the obligations they undertook were unenforceable. See Barker v. Francis , 741 P.2d 548, 551 (Utah Ct. App. 1987) ("It is not necessary ... that the contract itself contain all the particulars of the agreement. The crucial factor is that the parties agreed on the essential elements of the contract."); see also Leopold v. Kimball Hill Homes Fla., Inc. , 842 So.2d 133, 136-38 (Fla. Dist. Ct. App. 2003) (determining that a contract for a custom house was enforceable because, while "the buyer [and seller] had the right to make modifications to the plans as construction proceeded," the parties "did in fact have a meeting of the minds as to the essential terms of the contract");

Augusta Homes, Inc. v. Feuerstein , No. COA08-1456, 2009 WL 2501399, at *4-6 (N.C. Ct. App. Aug. 18, 2009) (similar). See generally Restatement (Second) of Contracts § 34 cmt. a (Am. Law Inst. 1981) ("If the agreement is otherwise sufficiently definite to be a contract, it is not made invalid by the fact that it leaves particulars of performance to be specified by one of the parties.").

C. Ambiguity

¶ 17 The Symes contend that the district court erred in granting summary judgment on the Symes' contract formation claim because, they argue, the Agreement is "facially ambiguous" and thus "ambiguous as to the intent of the parties." The Symes' argument fails for two reasons.

¶ 18 First, we disagree that the Agreement is ambiguous in the way the Symes assert. The Symes' ambiguity argument is premised on their contention that the Agreement "contains a facial ambiguity as to the [construction] completion deadline." In one provision, Symphony is allowed "180 days from the commencement of [excavation] on the home" to substantially complete construction. In another provision, the Agreement provides that Symphony "shall make a reasonable effort to have the House substantially complete ... within eight (8) months after" issuance of a building permit. The Symes assert these provisions create a facial ambiguity as to the completion date for construction and argue that "[t]o resolve the issue of ambiguity of intent, the district court would need to hear and receive factual evidence, which it was precluded from doing in the context of a motion for summary judgment."

¶ 19 These two provisions do not create ambiguity. "A contractual term or provision is ambiguous if it is capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies." Daines v. Vincent , 2008 UT 51, ¶ 25, 190 P.3d 1269 (quotation simplified). "Harmonizing conflicting or apparently ambiguous contract language before concluding that provisions are actually ambiguous is an important step in the hierarchy of rules for contract interpretation." Gillmor v. Macey , 2005 UT App 351, ¶ 19, 121 P.3d 57. "To harmonize the provisions of a contract, we examine the entire contract and all of its parts in relation to each other and give a reasonable construction of the contract as a whole to determine the parties' intent." Id. (quotation simplified). And harmonizing the two provisions here is simple: Symphony was given 8 months from the issuance of a building permit and 180 days (or 6 months) from excavation to "substantially complete" the house. The Symes do not explain how these provisions are inconsistent or otherwise ambiguous. It seems to us entirely possible that both deadlines could be honored by securing a building permit and then, within two months, beginning excavation.

¶ 20 Second, even if we were to discern some facial ambiguity in these two provisions, the Symes do not explain how that ambiguity would undermine the finality of the Agreement in its entirety. Instead, the Symes merely assume that an ambiguity in the terms of the Agreement relating to a construction deadline demonstrates an ambiguity as to the parties' overall intent regarding the finality and enforceability of the Agreement. We fail to see the connection. If there were an ambiguity as to the construction deadline, a court would take extrinsic evidence as to the deadline -that is, did the parties mean eight months or six months. See, e.g. , Holladay Bank & Trust v. Gunnison Valley Bank , 2014 UT App 17, ¶¶ 22-23, 319 P.3d 747 (concluding that a contract was ambiguous "regarding the allocation of collateral proceeds" and remanding to the district court to consider extrinsic evidence "as to the parties' intent with regard to the distribution of the proceeds " (emphasis added) ). It would not become a basis to deem the entire Agreement unenforceable. Thus, we conclude that the two provisions are not necessarily ambiguous, and even if they were, the ambiguity would not undermine the Agreement's overall enforceability.

¶ 21 In sum, we conclude that the Agreement is sufficiently clear and capable of being enforced. Accordingly, the district court did not err in granting summary judgment on the Symes' declaratory judgment claim.

II. The Alleged Breach of Contract

¶ 22 The Symes next contend that summary judgment on their breach of contract claim was inappropriate because, assuming there was an enforceable contract, a factual dispute existed about whether the Symes breached the Agreement by failing to provide Symphony with the loan pre-approval letter. The Symes argue that the district court disregarded the fact that the Symes "waited in vain" for Symphony and that Symphony "never followed through with or completed the Color Selection Meeting." (Quotation simplified.) Not only did the district court disregard these facts, according to the Symes, but the court "also failed to draw inferences from them" in the Symes' favor. The Symes assert that the district court "could have reasonably inferred that the Symes were not in breach because the [Color Selection Meeting] never occurred and, thus, the time for submittal of the pre-approval letter never arrived." Under this view of the facts, the Symes argue that they were not in breach and could have proven that Symphony breached the Agreement.

¶ 23 To prove a breach of contract claim, a party must demonstrate its own performance of the contract. Bair v. Axiom Design, LLC , 2001 UT 20, ¶ 14, 20 P.3d 388 ("The elements of a prima facie case for breach of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the contract by the other party, and (4) damages."), abrogated on other grounds as recognized in A.S. v. R.S. , 2017 UT 77, 416 P.3d 465. "Whether a party performed under a contract or breached a contract is a question of fact." iDrive Logistics LLC v. IntegraCore LLC , 2018 UT App 40, ¶ 43, 424 P.3d 970. And as stated, at the summary judgment stage we "view[ ] the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." ZB, NA v. Crapo , 2017 UT 12, ¶ 11, 394 P.3d 338 (quotation simplified).

¶ 24 It is undisputed that the Symes did not deliver the pre-approval letter to Symphony. But it is also undisputed that the Color Selection Meeting had not yet occurred. Viewing the facts and the reasonable inferences drawn therefrom in the light most favorable to the Symes, Symphony never followed through with the Color Selection Meeting and never otherwise requested the pre-approval letter. And the district court's conclusion that "[e]ven if the [Color Selection Meeting] never took place, [the Symes] were still required by the [Agreement] to provide the pre-approval letter" is contradicted by the Agreement itself, which provides that the Symes had until the Color Selection Meeting-which never occurred-to deliver the pre-approval letter.

¶ 25 The district court appears to have conflated the Symes' obligation to deliver the pre-approval letter to Symphony at the Color Selection Meeting with their obligation to receive written evidence of loan pre-approval within ten days of Symphony's acceptance of the Agreement. The Symes have not disputed that they never applied for a loan, but under the Agreement that failure would amount to a forfeiture of only the Earnest Money. For Symphony to keep the Construction Deposit, as relevant here, the Symes would have to fail to deliver the pre-approval letter by the Color Selection Meeting. And the Symes could not possibly have failed to deliver the pre-approval letter by the Color Selection Meeting because that meeting never occurred, and (according to the Symes) its non-occurrence was Symphony's fault. Thus, viewing the facts in the light most favorable to the Symes, the court erred in determining that the Symes, having not delivered the pre-approval letter, could not prove that Symphony breached the Agreement by retaining the Construction Deposit. Therefore, summary judgment in favor of Symphony on that basis was inappropriate.

¶ 26 Having rejected the conclusion that the Symes' failure to deliver the pre-approval letter barred their breach of contract action, we turn to Symphony's request to affirm the district court on an alternative basis. Symphony argues that the district court concluded not only that the Symes failed to perform but that they "have not shown that [Symphony] ... breached the [Agreement]." Because the Symes have not addressed "this second, and conclusive, basis" for the dismissal of their breach of contract claim, Symphony argues that the district court's decision should still be affirmed. But the grounds for this alternative basis are unclear. The district court did not discuss the undisputed facts or the relevant legal authority behind its conclusory statement that the Symes "have not shown that [Symphony] ... breached the contract." Instead, the statement appears as an aside, meant apparently for emphasis, to its primary conclusion that the Symes breached the Agreement by not delivering the pre-approval letter. Having concluded that the district court's reasoning was erroneous, and "unable to discern" any other "legal or ... factual basis for the district court's dismissal on this ground," we decline to affirm on this alternative basis and remand for further proceedings. See Vander Veur v. Groove Entm't Techs. , 2018 UT App 148, ¶ 37, 436 P.3d 109 (quotation simplified), petition for cert. filed , Sept. 10, 2018 (No. 20180730).

III. Good Faith and Fair Dealing

¶ 27 Finally, the Symes contend that the district court erred in dismissing their claim for breach of the implied covenant of good faith and fair dealing. In their complaint, the Symes asserted that, among other things, the Agreement's liquidated damages clause violates the covenant of good faith and fair dealing because it is unconscionable. In resisting the district court's grant of summary judgment on this claim, the Symes raise two arguments on appeal. First, they argue that "summary judgment was the inappropriate place for the court to even try to address ... unconscionability." Second, they argue that the district court incorrectly assumed that expert testimony was required to establish unconscionability.

¶ 28 We conclude the Symes have not carried their burden of persuasion on appeal on these arguments. "It is well established that an appellate court will decline to consider an argument that a party has failed to adequately brief." CORA USA LLC v. Quick Change Artist LLC , 2017 UT App 66, ¶ 2, 397 P.3d 759 (quotation simplified). To satisfy its burden of persuasion, an appellant must provide "reasoned analysis" on how the district court erred and "may not simply dump the burden of argument and research on the appellate court." Hi-Country Estates Homeowners Ass'n v. Jesse Rodney Dansie Living Trust , 2015 UT App 218, ¶ 5, 359 P.3d 655 (quotation simplified).

¶ 29 On their first argument, the Symes provide no authority for the proposition that the question of unconscionability can never be decided on summary judgment. Instead, they claim that the facts presented and "an analysis of the outcome of [the] Agreement ... should have been sufficient for the district court to postpone its analysis of substantive unconscionability to a fact finding hearing." While the Symes point generally to documents in the record, they do no more to develop the argument. Without pointing to some authority and developing their argument based on that authority, the Symes cannot meet their burden of persuasion on appeal.

¶ 30 Similarly, on their second argument, the Symes assert in a single conclusory paragraph that the district court "erred in determining that expert opinion was required." The district court grounded its decision to require expert testimony on the supreme court's opinion in Commercial Real Estate Investment, LC v. Comcast of Utah II, Inc. , 2012 UT 49, 285 P.3d 1193. There, the court explained that determining the substantive unconscionability of a liquidated damages clause requires an examination of "the mores and business practices of the time and place" of the contract. Id. ¶ 44 (quotation simplified). Because the Symes stipulated that "they would be precluded from offering expert testimony at trial," the district court concluded that without an expert to testify about the relevant "mores and business practices," the Symes would "have no way of proving that the liquidated damages clause is unconscionable." Other than arguing that "part of the unconscionability analysis could proceed without expert opinion," the Symes make no reasoned analysis of the district court's decision. Therefore, we conclude that the Symes have not carried their burden of persuasion on appeal, and we will not reverse the district court on this basis.

CONCLUSION

¶ 31 We conclude that the Agreement is a valid and enforceable contract and the district court did not err in granting summary judgment on the Symes' claim for declaratory relief. We also conclude that the Symes have not carried their burden of persuasion on their argument that the court erred in granting summary judgment on their implied covenant of good faith and fair dealing claim. Accordingly, we affirm the district court's decisions with regard to the Symes' claim for declaratory relief and their alternative claim for breach of the implied covenant of good faith and fair dealing. But we agree with the Symes that summary judgment on their breach of contract claim was inappropriate. We therefore reverse the grant of summary judgment on that claim and remand for further proceedings consistent with this opinion.

      "In reviewing a district court's grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party and recite the facts accordingly." Ockey v. Club Jam , 2014 UT App 126, ¶ 2 n.2, 328 P.3d 880 (quotation simplified).

      The Agreement states that the Construction Deposit was to be $43,000, but in the summary judgment briefing and on appeal both parties refer to a $48,000 Construction Deposit.

      We note an ambiguity in the Agreement regarding the timing of the Construction Deposit. In one provision, the Agreement required the deposit to be paid at the "Structural Review Meeting." In another provision, the Agreement required the deposit to be paid at the "Color Selection Meeting." The Symes contend that they provided the Construction Deposit at the Structural Review Meeting only because Symphony told them "it was conditionally required at that point." We need not resolve this ambiguity and express no opinion on the timing of the payment.

      The Agreement also required the Symes "to pursue [loan] application diligently." If the Symes failed to apply for a loan, a liquidated damages clause allowed Symphony to terminate the Agreement and retain the Earnest Money.

      In its summary judgment motion, Symphony sought to exclude the Symes from offering expert testimony because the time to disclose experts had passed under rule 26(a)(4) of the Utah Rules of Civil Procedure. In response, the Symes admitted that the deadlines to designate experts had expired and asserted that expert testimony was unnecessary.

      The Agreement provided default terms for the construction, and the Symes were able to select options and upgrades from among Symphony's offerings, subject to Symphony's approval. The Symes therefore could select from a finite universe of options, but the house would be constructed based on the default terms absent further selections with Symphony's approval.

      The Symes also argue that the district court failed to properly account for the alleged dispute created by Al Syme's declaration that the Symes and Symphony "never fully finalized all components of the [Agreement]." But Al Syme's assertion simply mirrors the arguments made and addressed above, namely, that because certain materials selections remained to be made under the Agreement, the Agreement was incomplete and unenforceable.

      Symphony contends that the issue of ambiguity is unpreserved. They assert that "[t]he Symes never briefed ambiguity in their opposition to Symphony's [motion for summary judgment]" and therefore failed to preserve the issue. While the Symes' memorandum in opposition to summary judgment was short and did not discuss ambiguity, the Symes' attorney at the hearing did reference the "facial inconsistency within the document itself" and discussed the provisions regarding the two construction deadlines. Therefore, we conclude the issue is preserved and reach the Symes' argument on the merits. See generally True v. Utah Dep't of Transp. , 2018 UT App 86, ¶¶ 23-30, 427 P.3d 338.