Mark C. Haik, Appellant,
Salt Lake City Corporation, Appellee.
Direct Appeal Third District, Salt Lake The Honorable Andrew
H. Stone No. 140900915
R. Haik, Minneapolis, MN, for appellant.
E. Draney, Scott H. Martin, Dani N. Cepernich, Salt Lake
City, for appellee.
Justice Himonas authored the opinion of the Court, in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Durham, and Justice Pearce joined.
1 In 1997, Paul Haik litigated a lawsuit in federal court
based on strikingly similar facts to the one that he now
seeks to pursue in the third district, and he lost on the
merits. See Haik v. Town of Alta, No. 97-4202, 1999
WL 190717, at *1 (10th Cir. Apr. 5, 1999). In 2012, Mr. Haik
litigated a lawsuit in federal court based on exactly the
same facts as the one before us, and he lost again. See
Haik v. Salt Lake City Corp., 567 F.App'x
621, 623 (10th Cir. 2014). To be sure, Mr. Haik did not raise
each and every legal claim in the federal court that he now
seeks to raise-just some of them. But he could have raised
them all. And he should have. And now they are barred.
2 Mr. Haik has spent the better part of the last twenty years
asking courts to order Salt Lake City to supply his
undeveloped property in the Albion Basin Subdivision with
enough water (at least 400 gallons per day) to allow him to
build houses on it. His first foray into the courts occurred
in 1997, when he argued before the federal district court
that Salt Lake City and Alta's refusal to extend adequate
municipal water services to his unimproved land in the Albion
Basin amounted to an unconstitutional taking and was a
violation of equal protection of law. Haik v. Town of
Alta, No. 2:96-cv-732-BSJ, 1997 U.S. Dist. LEXIS 24541,
at *1, *34 (D. Utah Oct. 31, 1997), affd, No.
97-4202, 1999 WL190717 (10th Cir. Apr. 5, 1999). The federal
court ruled against Mr. Haik on the merits of both his
takings and equal protection claims, concluding that Salt
Lake City owed "no legal duty to furnish water to users
outside its own city limits." Id. at *36. With
respect to Mr. Haik's equal protection claim, the court
reasoned that Salt Lake City's refusal to provide Mr.
Haik with water was a rational exercise in line-drawing
connected to a legitimate interest-the curtailment of
"environmentally harmful development." Haik v.
Town of Alta, No. 97-4202, 1999 WL 190717, at *5 (10th
Cir. Apr. 5, 1999). The federal court also ruled that no
taking occurred because "mere expectation of municipal
water service in the future is not a legal right that
constitutes property subject to taking."Id.
3 In 2012, Mr. Haik filed yet another lawsuit-also litigated
in federal court-in which he again sought a determination
that Salt Lake City was required to supply him with enough
water to develop his Albion Basin property. This lawsuit
alleged different legal claims, but, for the most part, the
facts remained the same. In the 2012 lawsuit, Mr. Haik again
sought a court order requiring Salt Lake City to supply his
lots in the Albion Basin with enough water to permit him to
develop the property. This time, Mr. Haik added to his equal
protection claims allegations of misrepresentation and fraud
on the court, a civil conspiracy between Salt Lake City and
Alta, and violations of due process. Haik v. Salt Lake
City Corp., 567 F.App'x 621, 625-26 (10th Cir.
2014). He also sprinkled his complaint with citations to
several Utah constitutional provisions (although he did not
plead separate state constitutional violations as claims).
And he alleged, as new facts, that Salt Lake City had sought
and obtained authorization from the State Engineer to supply
properties in the Albion Basin with enough water to permit
development, that some properties falling within Salt Lake
City's water service area had received 400 gallons of
water per day, and that some properties in the Albion Basin
Subdivision had been receiving water in unmetered amounts.
4 As in his first federal suit, the federal court again ruled
against Mr. Haik. It noted that there was a "substantial
overlap between [the facts in the first federal lawsuit] and
the allegations supporting the Haiks' [current
claims]." Id. at 633. It found that his civil
conspiracy claim was barred by claim preclusion because he
could have raised it in his first federal lawsuit, but
neglected to do so. Id. at 633-34. It also found
that his due process claims were precluded by issue
preclusion, because they depended on his having a protected
property interest in the water that Salt Lake City refused to
supply him, and this question was resolved against him in his
first lawsuit. Id. at 627-31. And it concluded that
his misrepresentation and equal protection claims, though to
an extent predicated on new facts, failed to state a claim.
Id. at 631-33, 634-35.
5 After Mr. Haik lost his second federal suit, Salt Lake City
sued him in state court seeking to adjudicate Mr. Haik's
and others' interests in water rights in Little
Cottonwood Creek and to quiet title to a portion of the flow
of the South Despain Ditch that several defendants, including
Mr. Haik, allegedly claim for themselves. Mr. Haik has used
this suit as an opportunity to take yet a third bite at the
apple. Adducing exactly the same facts that he put before the
federal district court in 2012, Mr. Haik has alleged as
counterclaims that he is entitled to water under the state
constitution's due process and uniform operation of law
provisions as well as article XI, section 6 of the Utah
Constitution. He also claims that the City has invalidly
appropriated certain water rights and that the City's
management of water is subject to scrutiny under Salt
Lake County v. Salt Lake City, 570 P.2d 119 (Utah 1977).
6 The district court dismissed Mr. Haik's counterclaims
on the grounds that they were res judicata. After the court
certified this dismissal as a final order under rule 54(b) of
the Utah Rules of Civil Procedure, Mr. Haik