Brodkin v. Tuhaye Golf, LLC
2015 UT App 165
| Utah Ct. App. | 2015Background
- The dispute concerns a 52-acre parcel (the Progress Parcel) that became landlocked after the federal Jordanelle Reservoir project; Progress Corporation formerly owned it and later Terry Brodkin purchased it.
- Area B property owners executed an Area B Agreement granting "reciprocal, permanent, non-exclusive ingress and egress easements" to each other; Progress/Brodkin were not parties and the agreement’s Exhibit A map misidentified parcels (showing the Progress Parcel as part of Taylor/Tuft).
- EastSide Group operating agreement (a separate instrument) also contained covenants among its members and an express disclaimer that no third parties receive benefits; Progress never executed either agreement.
- Brodkin bought the Progress Parcel in 2004 after reviewing the agreements and county plans; subsequent high-value purchase offers failed or were not closed, in part due to access issues.
- Brodkin sued seeking declaratory relief that he was a third-party beneficiary of the Area B Agreement, breach of that agreement, easement by necessity, and condemnation; district court dismissed the easement/condemnation claims and later granted summary judgment for defendants on the contract/beneficiary claims and awarded fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Area B Agreement is ambiguous | The Agreement and attached map create (facial or latent) ambiguity showing access to Progress Parcel | Agreement language unambiguously grants easements only "to each other"—i.e., signatories—so no ambiguity exists | Agreement is unambiguous; no latent ambiguity shown |
| Whether Brodkin is an intended third-party beneficiary | Parties intended all Area B parcels (including Progress) to benefit; map and county planning support intent | Contractary text confines easement grants to defined "Area B Landowners" (signatories); Progress/Brodkin were not parties | Brodkin is not a third-party beneficiary as a matter of law |
| Whether Brodkin can enforce the Area B Agreement and prove damages | Defendants’ refusal to grant access caused failure of offers (Optimum) producing damages | Brodkin has no right to enforce the contract; alternatively, he failed to prove causation and failed to mitigate (let $5.5M Roth buyer walk) | No enforceable right; summary judgment for defendants (damages not established/mitigated) |
| Whether defendants are entitled to attorney fees under Utah’s reciprocal-fee statute | Brodkin argued statute doesn’t apply because he claimed only third-party beneficiary status, not party status | Even a plaintiff who bases claims on a contract can trigger the statute; contract provided prevailing-party fees | Fee award affirmed; defendants entitled to fees below and reasonable appellate fees (remanded to calculate) |
Key Cases Cited
- Giusti v. Sterling Wentworth Corp., 201 P.3d 966 (Utah 2009) (courts first interpret unambiguous contract language without extrinsic evidence)
- Watkins v. Henry Day Ford, 304 P.3d 841 (Utah 2013) (latent ambiguities may be shown by extrinsic evidence)
- SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 28 P.3d 669 (Utah 2001) (third-party beneficiary requires contract clearly intended to confer a direct benefit)
- Wagner v. Clifton, 62 P.3d 440 (Utah 2002) (third-party beneficiary status is shown by the written contract)
- Hooban v. Unicity Int’l, Inc., 285 P.3d 766 (Utah 2012) (reciprocal-fee statute applies when a litigant bases recovery on enforceability of a contract)
- Bushnell v. Barker, 274 P.3d 968 (Utah 2012) (alter-ego claims do not automatically trigger contractual fee provisions)
- Mahmood v. Ross, 990 P.2d 933 (Utah 1999) (duty to mitigate damages)
- Giles v. Mineral Res. Int’l, Inc., 338 P.3d 825 (Utah Ct. App. 2014) (prevailing party on appeal may recover reasonable appellate fees)