Case Information
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T HE U TAH C OURT OF A PPEALS
C OTTONWOOD I MPROVEMENT D ISTRICT ,
Plaintiff Appellee, v.
Q WEST C ORPORATION ,
Defendant Appellant.
Memorandum Decision No.
Filed January
Third District, Salt Lake Department The Honorable Joseph C. Fratto Jr.
No.
Joseph E. Minnock, Attorney for Appellant
Jeremy R. Cook Catherine L. Brabson, Attorneys Appellee
J UDGE J. F REDERIC V OROS J R . authored this
Memorandum Decision, J UDGES W ILLIAM A. T HORNE J R . and C AROLYN B. M C H UGH concurred.
VOROS, Judge: question appeal whether Corporation
(Qwest) obligated Improvement District (Cottonwood) $31,022.90 cost removing cable owned line owned by Cottonwood. At trial, proceeded three theories: estoppel, unjust enrichment, violation Damage Underground v. Utility Facilities Act. See Utah Code Ann. §§ 54 ‐ 8a ‐ 2 ‐ 13 (LexisNexis 2010). keeping the special verdicts returned by an advisory jury, the granted judgment Cottonwood first two causes action but on third. appeals. We affirm.
¶2 Qwest first contends elements promissory
estoppel were established, because even if not
promised Cottonwood, still excavated repaired line. “Claims equitable
doctrines ‘are mixed questions fact law.’”
Richards v. Brown
,
following: (1) reasonably expected induce reliance; (2)
reasonable reliance inducing action or forbearance part of
promisee or third person; (3) detriment promisee
third person.”
Weese v. Davis County Comm’n
,
Cottonwood “‘must have done some act [it] otherwise would not have done.’” Andreason Aetna Casualty Surety Co. Ct. App. 1993) (quoting a jury instruction and finding it consistent with case law).
¶4 Here, Qwest challenges finding of detrimen tal reliance. It argues that Cottonwood did not do anything in reliance Qwest’s that it would have done. Qwest points testimony representative, Gregory Neff, who testified that Cottonwood would have repaired pipe even if it had never talked any representative Qwest. He further testified that, had repaired line its own initiative, cost would have been essentially same. ¶5 We agree with Qwest that some Neff’s testimony may be read in that manner. However, Neff also testified that Cottonwood could have cleared sewer pipe without excavating and repairing pipe it did after receiving promise. He testified that “some equipment that done sort rough ‐ cut job” going inside pipe and cutting line inside. Although approach “would have cleared [the cable] out there,” did want cable cut “that cable pair something larger possibly, and . . . that difficult thing for them repair all those small phone wires there.”
¶6 Neff testified that he “was nervous about sending [Cottonwood’s] contractor out there without knowing whether or we were going be able get paid it.” He asked Qwest, “if we send our contractor out . . . they dig it up they fix line then they find out that is, fact, cable, will pay it? And [Qwest’s representative] told me, yes, they will. So conversation, scheduled Wolf Excavating go out [do work].” (Emphasis added.) view testimony, cannot agree court’s finding against clear weight evidence, especially v. granting the trial the “broader discretion” it allowed in cases of type. See v. Brown , 2009 315, ¶ 11, P.3d 69.
¶8 Qwest argues that Cottonwood’s promissory estoppel
claim fails because enforcement of promise of ment necessary to avoid injustice. “A promise which promisor should reasonably expect to induce action or forbearance
the part the promisee or third person does
induce such action forbearance binding injustice can be
avoided only by enforcement the promise.”
Andreason Aetna
Casualty Surety Co.
,
¶10 We therefore consider claim error appeal a challenge application law fact. “However, fact intensive nature equitable doctrines, grant applying law facts.” 11. Here, trial court might accepted argument as matter equity. But on facts this case, as presented in briefs appeal, under appropriately granted trial courts cases of this type, cannot say exceeded its discretion ruling did. sum, affirm court’s judgment against estoppel claim. ¶12 Affirmed.
alternatively its judgment Cotton ‐ wood’s unjust enrichment theory. On appeal, chal ‐ lenges ground damage award. However, our conclusion entitled judgment prom issory claim moots claim error.