Build, Inc. v. Utah Dep't of Transp.
428 P.3d 995
Utah2018Background
- Build, Inc. (contractor) worked on three UDOT projects; dispute here concerns the Arcadia bridge/highway project where excavated soil had to be hauled offsite, costing Build ~$389,000.
- Build sued UDOT (and other contractors on separate claims) for breach of contract and consequential damages, alleging UDOT ordered extra work without required compensation and that this conduct led to loss of business.
- Contract contained two change provisions: Part 1.6 (engineer-recognized changes require written order) and Part 1.5 (unacknowledged "alleged changes" require contractor notice within 5 days or waiver).
- UDOT moved for summary judgment arguing Part 1.5 applied because Build failed to give the five-day notice (waiver), and separately moved to exclude Build’s consequential-damages witnesses for failing to disclose a damage computation.
- Judge Kennedy denied UDOT’s summary-judgment motion and found issues of fact; after Kennedy retired Judge Harris reconsidered, concluded Meadow Valley controlled, held the engineer did not "knowingly and deliberately" order extra work, granted summary judgment on the Arcadia claim, and excluded Build’s consequential-damages witnesses, leading to dismissal of that claim.
- Utah Supreme Court affirmed: (1) successor judges may revisit nonfinal predecessor rulings (Sittner/Richardson principles treated as hortatory), (2) summary judgment for UDOT on Arcadia claim was proper based on engineer’s subjective belief, and (3) consequential-damages dismissal was proper (any procedural misstep harmless because Build failed to disclose damage computation or alternate admissible proof).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a successor judge may reconsider a predecessor judge's nonfinal rulings ("coordinate judge" rule) | Judge Kennedy's denial should bind successor judge; successor lacked authority to overrule | Successor judge may revisit nonfinal prior rulings and correct errors | Successor judge has broad discretion; Sittner/Richardson norms are hortatory factors, not binding limits |
| Whether Build waived its breach claim by failing to give five-day notice under Part 1.5 | UDOT’s engineer acknowledged a changed condition so Part 1.6 applies (no notice needed) | Engineer did not "knowingly and deliberately" order extra work; Part 1.5 applies and Build waived claim by not timely notifying | Summary judgment for UDOT affirmed: engineer testified he did not view actions as extra-contractual; Build’s evidence did not create genuine issue of his subjective belief |
| Whether Meadow Valley requires a different result (i.e., that change was deliberate) | Meadow Valley supports finding Part 1.6 applies because later documents acknowledge change | Meadow Valley requires proof the engineer subjectively believed he was changing the contract; such proof lacking here | Meadow Valley standard applied; lack of contemporaneous evidence of engineer’s subjective belief fatal to Build’s claim |
| Whether dismissal of consequential-damages claim was improper without full summary-judgment briefing | Court should have required briefing before dismissing claim after granting motion in limine | Exclusion of Build’s only disclosed witnesses left no admissible proof; any briefing would be futile; error (if any) harmless | Affirmed: dismissal upheld because Build never disclosed a damages computation or alternative admissible evidence; exclusion of witnesses was fatal |
Key Cases Cited
- Richardson v. Grand Central Corp., 572 P.2d 395 (Utah 1977) (early statement limiting successor judges revisiting predecessor rulings)
- Sittner v. Big Horn Tar Sands & Oil, Inc., 692 P.2d 735 (Utah 1984) (framework on coordinate-judge exceptions)
- Red Flame, Inc. v. Martinez, 996 P.2d 540 (Utah 2000) (successor judge may revisit rulings; avoid exercising power in some circumstances)
- Meadow Valley Contractors, Inc. v. State Dep't of Transp., 266 P.3d 671 (Utah 2011) (contract language like Part 1.6 applies only where engineer "knowingly and deliberately" made changes)
- Macris v. Sculptured Software, Inc., 24 P.3d 984 (Utah 2001) (law-of-the-case does not prevent reconsideration of nonfinal orders; successor treated as same judicial officer)
- Mid-Am. Pipeline Co. v. Four-Four, Inc., 216 P.3d 352 (Utah 2009) (reaffirming discretion to revisit prior rulings regardless of judge identity)
- McLaughlin v. Schenk, 299 P.3d 1139 (Utah 2013) (law-of-the-case and reconsideration principles applied)