Appeal of Interlocutory Order Third District, Salt Lake The
Honorable Ryan M. Harris No. 090904101
Attorneys: Michael D. Zimmerman, Troy L. Booher, Beth E.
Kennedy, Clark B. Fetzer, Salt Lake City, Kim J. Trout,
Boise, ID, for appellant
Stanford P. Fitts, Stephen J. Trayner, S. Spencer Brown,
Jessica J. Johnston, Salt Lake City, for appellee Utah
Department of Transportation
F. Babcock, Brian J. Babcock, Cody W. Wilson, Salt Lake City,
for appellees Clyde-Geneva Constructors, \N.\N. Clyde &
Co., and Geneva Rock Products, Inc.
Associate Chief Justice Lee authored the opinion of the
Court, in which Chief Justice Durrant, Justice Himonas,
Justice Pearce, and Justice Petersen joined.
Associate Chief Justice
Build, Inc. was hired by the Utah Department of
Transportation (UDOT) to work on three different construction
projects. Build encountered problems on all three projects,
and it filed various claims against UDOT and three other
contractors on the project. UDOT moved for summary judgment
on two sets of claims - claims for breach of contract on the
"Arcadia" project and claims seeking consequential
damages. The original judge assigned to the case,
Judge Kennedy, denied both motions.
After his retirement Judge Kennedy was replaced by Judge
Harris. Judge Harris ultimately dismissed Build's claims
for breach of contract and consequential damages. And Build
challenges both dismissals on this interlocutory appeal.
Build challenges the dismissal of the Arcadia claim on two
grounds. It contends (a) that Judge Harris violated a
so-called coordinate judge rule, which in Build's view
limits the discretion of a successor judge to revisit
decisions of a predecessor; and (b) that Build presented
sufficient evidence to defeat UDOT's motion on its
merits. Build also challenges the dismissal of its claim for
consequential damages. It asserts that Judge Harris erred in
dismissing this claim without full briefing on a motion for
summary judgment and that he incorrectly concluded that Build
lacked proof of its consequential damages.
We affirm. Judge Harris had the authority to dismiss both
claims, and he committed no reversible error by doing so. In
so holding, we repudiate any language in our precedent that
suggests that a successor judge on a case is bound by
nonfinal decisions and rulings made by his predecessor. We
clarify that different judges on the same case are considered
a single judicial officer-and thus that a successor judge has
the same power to review nonfinal decisions that a
predecessor would have had.
UDOT hired Build to work as a contractor on three different
construction projects: the Legacy project, the Arcadia
project, and the 1-215 project. Only the facts surrounding
the Arcadia project are relevant to this appeal, however, so
we discuss only that project here.
The Arcadia project involved the replacement of a bridge and
reconstruction of the highway on either side of it. This
required excavation, and the excavated soil was slated to be
disposed as "fill" around the boundaries of the
project. After excavation began, UDOT's engineer, Rex
Harrison, discovered a complication that prevented this
method of soil disposal. So Build disposed of the soil
offsite, incurring $389, 000 of additional costs.
Build requested that UDOT compensate it for this additional
work. UDOT refused. Build then experienced financial problems
and went out of business. It filed suit against UDOT,
asserting that UDOT had breached its contract by asking Build
to complete work that fell outside of the contract and then
refusing to compensate Build for that work. Build also
alleged that UDOT's failure to appropriately compensate
Build for this extra work led to lost capital and cash flow,
lost bonding capacity, and eventually the demise of its
business. Build sought damages for breach of contract. It
also requested consequential damages associated with the loss
of its business.
The agreement between these parties contains two provisions
dealing with changes to the contract; the viability of
Build's claim for breach depends on which of the two
applies here. One provision, found in Part 1.6, deals with
changes that the engineer recognizes as falling outside of
the contract. It allows UDOT to make intentional changes to
the project if it does so in writing. Build's breach of
contract claim invoked this provision of the contract. It
asserted that UDOT had recognized that the additional soil
disposal was outside of the contract's parameters, and
claimed that UDOT had breached Part 1.6 by failing to give
notice in writing and to compensate Build for this change.
UDOT denied that Part 1.6 applied and claimed instead that
Part 1.5 of the contract controlled. That provision governs
if Build believes there has been a change in the contract
that UDOT does not recognize. In that case, Build must give
UDOT notice of the "alleged change" in writing
within five days of the date a change is noted.
The contract also provides that "[f]ailure to provide
the required notice constitutes a waiver of any and all
claims that may arise as a result of the alleged
breach." It is undisputed that Build failed to provide
the notice required by Part 1.5. And UDOT asserted that Build
had waived its claim to additional compensation by failing to
provide this notice. It moved for summary judgment on that
UDOT also moved for summary judgment on the consequential
damages issue. It argued that Build had "failed to
provide any evidence as to the value of [its] business before
and after UDOT's alleged conduct." UDOT acknowledged
that Build had designated an expert (Joan Whitacre). But it
noted that Ms. Whitacre had failed to specify an amount of
consequential damages or to identify a methodology for
calculating such damages.
The summary judgment motion on the breach of contract claim
was submitted to Judge Kennedy for decision. He denied the
motion on all counts. In denying the motion Judge Kennedy
ruled that Build's claims were "subject to questions
of fact, including whether UDOT breached its contract with
[Build], whether UDOT waived the notice provision and whether
[Build's] claims satisfy the requirement of the Changed
Conditions Clause of the contract specifications."
Judge Kennedy also upheld the viability of Build's
consequential damages claim. He concluded that Build had
"presented evidence-most notably in the form of Joan
Whitacre's expert opinion-that supports its consequential
Judge Kennedy retired soon after issuing his decision denying
UDOT's motions. He was replaced in this case by Judge
Harris. By that time the dispositive motion deadline had long
since passed. Yet UDOT filed two new motions. The first,
styled as a motion for clarification, related to the Arcadia
claim. In that motion, UDOT claimed that Judge Kennedy should
have applied Meadow Valley Contractors, Inc. v. State
Department of Transportation - a decision addressing
contract provisions virtually identical to Parts 1.5 and 1.6
of the contract between Build and UDOT. 2011 UT 35, 266 P.3d
671, abrogated on other grounds by Mounteer Enters., Inc.
v. Homeowners Ass]nfor the Colony at White Pine
Canyon, 2018 UT 23, P.3d . The Meadow Valley
court determined that contractual language mirroring Part 1.6
applied only where the engineer "knowingly and
deliberately" made changes to the contract. Id.
¶ 31. And in the absence of a showing of knowledge or
deliberate action, it held that any alteration to the
contract would have to be considered an "alleged
change" - triggering the language in the contract
mirroring Part 1.5, with its requirement that the contractor
provide notice of the alleged change or else forfeit its
right to compensation. Id. ¶ 33.
¶15 Judge Harris agreed with UDOT that Meadow
Valley controlled. He held that Build had failed to
provide any evidence that the change was "knowing and
deliberate" on Harrison's part, and that Part 1.5
accordingly applied. And because Build had failed to comply
with the notification requirements of that Part, Judge Harris
concluded that Build had waived its claim for additional
compensation. He accordingly entered summary judgment against
Build on the Arcadia claim.
UDOT"s second motion was styled as a motion in
limine. This motion asked the court to exclude the
testimony of Joan Whitacre and Build's president Freddie
Stromness on the amount of Build's consequential damages.
In so moving UDOT pointed out that Build had never provided a
calculation of its consequential damages. And it asserted
that Whitacre and Stromness should be prohibited from
testifying as to that amount on that basis.
At the hearing on the motion Judge Harris noted that a
decision granting UDOT's motion in limine would
"fatally wound" the business devastation basis of
the consequential damages claim. And he ultimately granted
the motion. In so doing he also entered an order dismissing
the consequential damages claim outright, concluding that the
claim "fails for lack of proof" because Whitacre
and Stromness were barred from testifying on the issue.
Build petitioned for leave to file this interlocutory appeal.
We granted the petition, and review the dismissal of
Build's claims de novo, affording no deference
to the district court's analysis. We do so because the
district court's decision amounted to a summary dismissal
of Build's claims,  and summary judgment is subject to
de novo review. See Dillon v. S. Mgmt. Corp.
Ret. Tr., 2014 UT 14, ¶ 21, 326 P.3d 656.
We consider Build's challenges to the dismissal of the
Arcadia claim first, in Part II below. Then we address
Build's arguments regarding the consequential damages
claim, in Part III. We affirm on all counts, and in so doing
reinforce the authority of a successor judge (here, Judge