Certiorari to the Utah Court of Appeals, Fourth District,
Utah County The Honorable Lynn W. Davis No. 090401127
Craig Smith, Kathryn J. Steffey, Clayton H. Preece, Salt Lake
City, for appellee
K. Burnett, Robert C. Keller, Salt Lake City, for appellant
Justice Petersen authored the opinion of the Court in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Himonas, and Judge Valencia joined.
recused himself, Justice Pearce does not participate herein.
District Judge Jennifer L. Valencia sat.
Ten years ago, Northgate Village Development, LC sued the
City of Orem to recover the cost of cleaning up property
Northgate had purchased from the City. Northgate contends
that when it began to excavate the property to prepare it for
sale to a developer, it found subsurface asphalt and
"urban detritus." This litigation centers on who
was responsible for cleaning up the property under the
After a grant of summary judgment, an appeal, and a reversal
and remand, this case was back in the district court.
Northgate filed an interlocutory appeal, challenging two of
the district court's pretrial evidentiary rulings. The
court of appeals reversed, holding that the district court
incorrectly excluded expert testimony and other evidence
proposed by Northgate. The City petitioned for certiorari,
which we granted.
Because we agree with the court of appeals' reasoning
regarding both evidentiary rulings, we affirm.
Northgate purchased a parcel of property from the City that
the City had used to operate a public works facility. When
Northgate began excavating the property, it found
car bumpers, bicycles, tires, water heaters, washing
machines, car engines, car parts, asphalt, galvanized pipes,
asbestos-containing transit pipe, trees, bushes, medical
waste products, brick, mason blocks, concrete, toilets,
electrical panels, refrigerators, silverware, 50-gallon
drums, conduit, general garbage, storm drains, ADS pipe,
slag, barbed wire, field fence, cedar fence posts, railroad
ties, plywood, carpet, transformers, mercury-containing
ballasts, gas cables, truck mud flaps, plastic sheeting, car
doors, pallets, rebar, pop bottles, sewer pipe, metal
t-posts, fire hydrants, water valves, ductile iron, copper
parts and valves, brass parts, fiberglass insulation, twine,
rubber traffic cones, concrete manhole sections, metal rings
and lids for manholes, valve boxes, bags of leaves, and metal
sheeting for roofs.
Northgate demanded that the City reimburse its clean-up costs
or perform the work itself. The City refused, disputing
Northgate's characterization of the parties'
agreement. Ultimately, Northgate incurred approximately $3
million in clean-up costs.
In 2009, Northgate sued the City, alleging breach of
contract. The parties filed competing summary judgment
motions disputing the terms of their agreement. The
parties' contract provided that the City was to
"complete any environmental clean-up responsibilities
specified in the written action plan." Northgate argued
that the "written action plan" referred to both an
Environmental Site Assessment referenced elsewhere in the
contract and an Environmental Clean-Up List (Clean-Up List)
attached to the agreement. The City argued that the Clean-Up
List was the only "written action plan."
The Clean-Up List outlined certain obligations including:
(1)"Landfilling construction materials with pieces of
asphalt"; (2)"Permit required for continued
landfilling"; (3) "Site assessment and application
required for closure of site"; (4) "Landfill
operations-burial of asphalt materials-Check permitting &
closure requirements including Coordination with State of
Utah Division of Solid & Hazardous Waste"; and (5)
"Landfill operations-burial of electrical transformers
The district court agreed with the City that the
"written action plan" referred only to the Clean-Up
List. Further, the court interpreted the Clean-Up List to
require the City to remove only buried transformers. For the
remaining debris and landfill material, the court concluded
that the agreement obligated the City only to procure the
necessary permits to leave it in place.
Northgate appealed. The court of appeals affirmed the
district court's determination that the agreement
obligated the City to perform only the clean-up identified in
the Clean-Up List, but it disagreed that the list
unambiguously required the City to remove only buried
transformers. Northgate Vill. Dev., LC v. Orem City
(Northgate I), 2014 UT App 86, ¶ 36, 325 P.3d
123. The court of appeals noted that the parties had
"ascribe[d] contrary meanings" to a section of the
Clean-Up List that could impose additional obligations on the
1. Landfilling construction materials with pieces of asphalt
2. Permit required for continued landfilling
3. Site assessment and ...