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RJW Media Inc. v. Heath

Court of Appeals of Utah

February 24, 2017

RJW Media Inc., Appellant,
Chuck Heath, Appellee.

         Third District Court, Silver Summit Department The Honorable Ryan M. Harris No. 130500240

          Michael D. Zimmerman, Erin Bergeson Hull, and Sean N. Egan, Attorneys for Appellant

          Alexander Dushku, Cameron M. Hancock, and Justin W. Starr, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Stephen L. Roth and Kate A. Toomey concurred.


          MORTENSEN, Judge

         ¶1 Chuck Heath built a house with a detached building. The detached building consists of a below-grade garage with an office on top. Heath's neighbor, RJW Media Inc. (RJW), sued to have the detached building torn down. Heath prevailed at a bench trial and RJW now seeks reversal. We affirm.


         ¶2 RJW owns property in Summit County in the Timbers Subdivision. Heath owns a lot in the Timbers Subdivision adjacent to the RJW property. Shortly after purchasing the lot in 2012, Heath began construction of a house. He originally planned to build the house with an attached garage. However, finding that this plan would require uprooting a large tree, Heath decided to build a detached garage instead. The detached building, with the below-grade garage and office above, is identified on the building plans as a “carriage house.”

         ¶3 The Covenants, Conditions & Restrictions (CC&Rs) governing the Timbers Subdivision restrict owners from building more than one residential structure per lot. The term "residence" is not defined in the CC&Rs, but the parties agree that, between the CC&Rs and the building codes in Summit County, a structure is residential if it is "designed and intended for use and occupancy as a residence" and if it is equipped for cooking, sleeping, and sanitation. Of all the criteria for determining whether a structure is residential, only the equipped-for-cooking criterion is relevant to this appeal. The carriage house did not contain the wiring and plumbing for a stove, but is equipped with 110-volt outlets and a microwave.

         ¶4 The CC&Rs require construction projects to be approved by the Timbers Subdivision's Home Owners Association (the HOA). Specifically, residents are to submit "complete plans" to the HOA for approval before construction may begin. The CC&Rs do not define the term "complete plans." Summit County also requires property owners to submit plans to approve building permits. Further, Heath needed Summit County's approval for a plat amendment on his property to resolve a ski easement. Heath prepared and submitted various plans to the HOA and to Summit County. The HOA ultimately approved the project. Heath also resolved the ski easement and received the needed permits from Summit County. Construction began on the Heath property shortly after all required permits and approvals were obtained.

         ¶5 RJW filed this action against Heath to enjoin the construction of the carriage house and to remove what had already been built. The trial court allowed Heath to complete construction but forbade him from building the carriage house any higher or wider. The parties began making preparations for trial.

         ¶6 In July 2013, RJW deposed Michael Upwall, one of Heath's experts and the architect for Heath's house. Upwall testified,

I believe the way the county defines accessory dwelling units is . . . cooking-so if you did a range that would require a 220 outlet or a gas line, you cannot have that. Could you put a microwave in there and pop popcorn? Yes. . . . But there is . . . no range, which would imply cooking.

         ¶7 In September 2013, Heath disclosed a list of ten non-retained expert witnesses who might be called to testify at trial. Sean Lewis, a county planner for Summit County, was included on this list.[1] The disclosure provided Lewis's name, title, and a generic description of the topics about which Lewis, along with the other nine witnesses, might testify. The description reads:

[Heath] identif[ies] the following "non-retained" experts as they provided architectural, planning, construction and or design services for the Heath project. Additionally, these witnesses may be asked to provide specific architectural, design, construction, or general building opinions regarding the Heath project as well as opinions and facts regarding [RJW's] deck, thus these witnesses are therefore included in this designation.

         ¶8 Four days before trial, Heath filed and served a supplemental disclosure stating that Lewis would testify that" under the Snyderville Basin Development Code and the County's interpretation thereof, the carriage house/garage is not a dwelling/accessory dwelling/residential unit" and that "a dwelling requires cooking facilities and more particularly, the structure needs to be plumbed with a 220V outlet for a stove." RJW then filed a motion to exclude Lewis as a witness, arguing that Lewis had "never been identified as someone to testify to the matters alluded to" in the supplemental disclosure, and that it was "severely prejudiced" as a result. Specifically, RJW asserted that because it "has not had any opportunity to prepare for [Lewis], it has not received any documents from [Lewis] or a summary of [his] testimony and it has not had the ability to have its own expert . . . review or prepare for this testimony."

         ¶9 The trial court ultimately allowed Lewis to testify, reasoning that, although the initial description of Lewis's testimony was "a little too generic, " Lewis "was disclosed" as a witness. The trial judge also stated, "I'm not sure it's fair to take a disclosure that is, sort of, borderline and not raise any objections to it until the eve of trial."

         ¶10 At trial, several experts testified. Upwall, Lewis, and Eric Hoff, a Park City-based architect, testified for Heath.[2] Richard Brighton, also a Park City-based architect, testified for RJW.

         ¶11 Upwall testified about his experience with Summit County and how the county decides whether a structure is equipped for cooking. He stated, "I believe the county holds it to the definition of is there a possibility for, or plumbed, or the intention for a range and either a 220 volt range or a gas range cooking appliance."

         ¶12 Hoff testified that, while he has never built anything in Park City, he has experience working on projects there.[3] He testified that the Heath structure is not equipped for cooking. Hoff noted, "[The carriage house] lack[s] a stove or the facilities to put a stove in, whether it would be natural gas plumbed into that counter area or a 220 outlet in there, which is typically required, and that's been my experience in all the different jurisdictions where I've designed these type of structures."

         ¶13 Lewis testified that he reviews "site plans and building plans for construction" for the Summit County Planning Department. He stated that "[i]t has been the practice of the department that a microwave, by itself, would not" be considered a kitchen or cooking facility, and that a structure would "require an oven or a stove" to be equipped for cooking. Lewis further testified that a 110-volt outlet is not considered a hook-up for a cooking facility.

         ¶14 Brighton interpreted the equipped-for-cooking criterion. He testified that "[t]heir definition is [the building] has to have cooking, " that "[b]y definition, a microwave is for cooking, " but that he is "not certain what the county says" about the presence of a microwave in a structure to fulfill the equipped-for-cooking criterion.

         ¶15 The trial court also received evidence on the plans that Heath submitted to the HOA for review. The court heard testimony from Michael Stoker, an architect that the HOA's Architectural Committee hired as a consultant. Stoker testified that the plans Heath submitted to the HOA "were complete enough for the HOA and their review process." The record also contains a copy of the CC&Rs, which state that the purpose of the HOA's review is to "ascertain whether the architecture conforms to the Design Guidelines." This includes considering

the materials to be used on the external features . . . [, ] exterior colors, harmony of external design with existing structures within said subdivision, the building bulk or mass of said buildings or structures, the location with respect to topography, existing trees and finished grade elevations, and harmony of landscaping with the natural setting and surroundings.

         ¶16 After a three-day bench trial, the trial court concluded both that Heath had fulfilled his obligations under the CC&Rs for his plans to be approved and that the detached building was not a residence. In its ruling, the trial court noted Lewis's testimony and found the practice of Summit County to be ...

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