UPC, INC. v. ROA General, Inc.

• Decision Date: 21 October 1999
• Docket Number: No. 980280-CA.,980280-CA.
• Citation: 1999 UT App 303,990 P.2d 945
• Parties: U.P.C., INC., dba Garco Industrial Park, Plaintiff and Appellant, v. R.O.A. GENERAL, INC., dba Reagan Outdoor Advertising, Defendant and Appellee.
• Court: Utah Court of Appeals

990 P.2d 945

1999 UT App 303

U.P.C., INC., dba Garco Industrial Park, Plaintiff and Appellant, v. R.O.A. GENERAL, INC., dba Reagan Outdoor Advertising, Defendant and Appellee.

No. 980280-CA.

Court of Appeals of Utah.

October 21, 1999.

F. Mark Hansen, Salt Lake City, for Appellant.

Richard A. Rappaport, and Leslie Vanfrank, Cohne, Rappaport & Segal, Salt Lake City, for Appellee.

Before WILKINS, P.J, BILLINGS, and DAVIS, JJ.

OPINION

DAVIS, Judge:

¶ 1 Plaintiff, Garco Industrial Park (Garco), challenges the trial court's order dismissing its complaint against defendant Reagan Outdoor Advertising General, Inc. (Reagan), denying its Motion to Revise Order and Judgment Dismissing Plaintiff's Complaint, and granting Reagan's Motion to Strike. We affirm.

BACKGROUND

¶ 2 Reagan and Garco's relationship arises from a 1975 lease between Reagan and Garco's predecessor-in-interest which entitled Reagan to maintain an outdoor advertising sign on Garco's property. Garco purchased the property in 1990, at which time Reagan's sign was still in place. During the early 1990s, Garco and Reagan tried to negotiate a new lease, as the 1975 lease was due to expire on July 8, 1995. The negotiations failed, and in correspondence dated February 23, 1995, Garco told Reagan that it had "elected to pursue other options" and demanded that Reagan remove its sign by July 8, 1995.

¶ 3 Initially, Garco was concerned about Reagan removing the sign's foundation because that may have compromised the integrity of the adjacent building. Additionally, in correspondence between the parties, Garco mentioned that it may use the foundation to place a different sign at that location. Notwithstanding, after the lease expired, Garco demanded that Reagan also remove the foundation, which Reagan has never done.

¶ 4 After Garco told Reagan to remove its sign by lease end, Reagan entered into a lease agreement to erect a new sign on adjacent property. Reagan's new sign is less than five hundred feet from Garco's southern property line. Because Utah law requires 500-foot spacing between outdoor advertising signs, see Utah Code Ann. § 72-7-505(3)(a) (Supp.1999), Garco cannot contract with any of Reagan's competitors to place a sign on its property. Because of this and Reagan's refusal to remove the sign's foundation, Garco brought suit against Reagan alleging trespass, unlawful detainer, intentional interference with potential economic relations, unfair practices, and a claim of relief for punitive damages. Reagan filed a counterclaim for breach of a covenant against competition.

¶ 5 In August 1997, Reagan filed a motion for summary judgment on all Garco's claims. Three months later, Garco filed a cross-motion for partial summary judgment with supporting affidavits, seeking dismissal of Reagan's counterclaim. On December 29, 1997, the trial court entered an Order and Judgment Dismissing Plaintiff's Complaint. The order granted Reagan's motion for summary judgment and dismissed Garco's complaint in its entirety. At that time, Reagan's counterclaim and Garco's cross-motion for partial summary judgment was still pending. Shortly thereafter, Garco filed a "Motion to Revise Order and Judgment Dismissing Plaintiff's Complaint" (motion to revise) under Utah Rule of Civil Procedure 54(b), seeking reversal of the trial court's summary judgment ruling. Reagan then filed a motion to strike portions of Garco's reply memorandum in support of its motion to revise.

¶ 6 On May 1, 1998, the trial court entered two orders. First, it denied Garco's motion to revise and granted Reagan's motion to strike. Second, it dismissed Reagan's counterclaim based on the stipulation of the parties. Garco then filed a notice of appeal, which provided that Garco "appeals ... the final order ... entered in this matter on May 1, 1998. The appeal is taken from the entire order."

ISSUES

¶ 7 Garco raises numerous issues on appeal arising from two orders of the trial court: the December 29, 1997 order dismissing its complaint against Reagan, and the May 1, 1998 order denying its motion to revise and granting Reagan's motion to strike portions of its reply memorandum in support of its motion to revise.

¶ 8 Challenging the December 29, 1997 order, Garco argues the trial court erred by dismissing the following causes: (1) trespass; (2) unlawful detainer; (3) intentional interference with potential economic relations; and (4) its claim of relief for punitive damages. Reagan contends that Garco's notice of appeal was insufficient for Garco to raise these issues on appeal, and, in any event, the trial court correctly dismissed Garco's complaint.

¶ 9 In its challenge to the May 1, 1998 order, Garco maintains the trial court erred by denying its motion to revise and by granting Reagan's motion to strike.

I. ANALYSIS

A. Adequacy of Notice of Appeal

¶ 10 Garco challenges the trial court's December 29, 1997 order dismissing its complaint against Reagan. Reagan argues that this court is without jurisdiction to hear Garco's appeal of the December 29, 1997 order because Garco failed to particularly identify that order in its notice of appeal.

¶ 11 Rule 3(d) of the Utah Rules of Appellate Procedure governs the content of a notice of appeal: "The notice of appeal ... shall designate the judgment or order, or part thereof, appealed from ...." This language has been interpreted by our supreme court. First, in Scudder v. Kennecott Copper Corp., 886 P.2d 48 (Utah 1994), Scudder brought a personal injury suit against Kennecott Copper Corp. (Kennecott) and Stearns Catalytic Corp. (Stearns). See id. at 49. Stearns in turn filed a third-party complaint against Weyher-Livsey Constructors, Inc. (Weyher-Livsey). See id. Before the trial began, the trial court granted summary judgment in Weyher-Livsey's favor and dismissed it from the suit. See id. The case then proceeded to trial and a jury verdict was reached, finding both Kennecott and Stearns liable to Scudder for his injuries. See id.

¶ 12 Stearns appealed to this court, which reversed the earlier summary judgment granted in Weyher-Livsey's favor. See id. On certiorari, the supreme court addressed the issue of whether Stearns's notice of appeal complied with Rule 3(d) of the Utah Rules of Appellate Procedure. See id. at 49-50. Weyher-Livsey argued that the court of appeals lacked the requisite jurisdiction to hear Stearns's appeal because, inter alia, it failed "to designate that the appeal was taken from the summary judgment as well as from the final judgment that had been entered on the jury verdict." Id.

¶ 13 Interpreting the same language at issue in this case, the court held: "When appealing from an entire final judgment as Stearns did here, it is not necessary to specify each interlocutory order of which the appellant seeks review." Id. at 50 (emphasis added). It was further noted that: "[W]hen an appeal is taken from a final judgment, `[t]here is no requirement that the notice designate intermediate orders which are to be raised as issues on appeal.'" Id. (quoting Rourk v. State, 170 Ariz. 6, 821 P.2d 273, 280 (Ct.App.1991)) (second alteration in original).

¶ 14 The Utah Supreme Court again addressed Rule 3(d) in Zions First National Bank v. Rocky Mountain Irrigation, Inc., 931 P.2d 142 (Utah 1997). There, Zions First National Bank (Zions) filed suit against Grant and Ruby Cooper (the Coopers), who were doing business as Rocky Mountain Irrigation, Inc. See id. at 143. The Coopers counterclaimed. See id. Before trial, the trial court dismissed the Coopers' fraud claim and also directed a verdict on the part of their racketeering counterclaim that relied on fraud. See id. at 144.

¶ 15 A jury returned a verdict in favor of Zions; the trial court then dismissed the Coopers' claims and entered a final judgment in favor of Zions. See id. On appeal, the supreme court held that the trial court erred by dismissing the fraud claim and directing a verdict on the racketeering counterclaim, remanding those issues back to the trial court. See id.

¶ 16 On remand, the trial court dismissed the racketeering counterclaim and sent the fraud claim to a jury. See id. The jury returned a verdict in favor of Zions, and the trial court therefore dismissed the Coopers' claims and entered a final judgment thereon. See id. The Coopers appealed for a second time to the supreme court.

¶ 17 On the second appeal, "Zions contend[ed] that because the Coopers' notice of appeal designate[d] only the final judgment, they [were] precluded from raising issues relating to any other proceedings or orders leading up to the judgment." Id. As in Kennecott, the supreme court again interpreted the language in Rule 3(d) at issue here: "`The notice of appeal ... shall designate the judgment or order, or part thereof, appealed from ....'" Id. (quoting Utah R.App. P. 3(d)). The court reiterated its holding in Kennecott that "[t]here is no requirement under this rule that an appellant must indicate that the appeal also concerns intermediate orders or events that have led to that final judgment." Id. The court went on to hold that "[b]ecause the Coopers complied with rule 3(d) and generally designated the final judgment in their notice of appeal, they are not precluded from alleging errors in any intermediate order involving the merits or necessarily affecting the judgment as long as such errors were properly preserved." Id. (emphasis added).

¶ 18 Lastly, and most recently, the Utah Supreme Court addressed the same Rule 3(d) language, albeit with a different result. In Jensen v. Intermountain Power Agency, 977 P.2d 474 (Utah 1999), Jensen filed suit against Intermountain Power Agency (IPA), setting forth numerous causes of actions. See id. at 475. Before trial, the court entered a partial summary judgment in favor of IPA on Jensen's easement and water rights claims, and therefore dismissed those claims. See id. at 475-76. A jury trial was held on the other issues. See id. at 476. The...