Checketts v. Providence City

2016 UT App 161

THE UTAH COURT OF APPEALS

CHRIS CHECKETTS AND SANDRA CHECKETTS,
Appellants,
v.
PROVIDENCE CITY,
Appellee.

Memorandum Decision
No. 20150054-CA
Filed July 29, 2016

First District Court, Logan Department
The Honorable Brian G. Cannell
No. 140100122

Christopher L. Daines, Attorney for Appellants
Craig M. Call and Jonathan W. Call, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE
RUSSELL W. BENCH concurred. 1

CHRISTIANSEN, Judge:

¶1 Appellants Chris Checketts and Sandra Checketts appeal
from the district court’s order dismissing their complaint for
failure to exhaust administrative remedies. We conclude that the
Checkettses’ appeal is moot and that their claims are barred by
the doctrine of res judicata. Accordingly, we dismiss the appeal.

¶2 The Checkettses own and operate a custom countertops
business. Before 2004, the Checkettses cut the countertops at

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
 Checketts v. Providence City

their customers’ residential and business sites. However, in 2004,
the Checkettses began cutting the countertops offsite in a storage
building on a residential lot (the Property) they own in
Providence City (the City). In 2005, the Checkettses obtained a
building permit from the City to build a commercial addition to
the storage building on the Property, 2 and they completed
construction of the $125,000 addition in May 2006. In 2008,
several of the Checkettses’ neighbors petitioned the City to shut
down the Checkettses’ business on the Property, and over the
next seven years, several administrative proceedings, lawsuits,
and negotiations ensued.

¶3 On March 6, 2014, the City issued a “Notice of Violation”
to the Checkettses, stating that the Checkettses were in violation
of several of the City’s business-license and land-use ordinances.
The notice stated, in relevant part, that the Checkettses were in
violation of one of the City’s land use ordinances for
“[m]aintaining a land use that is not allowed in the zone within
which the land use is located” and that “it is the land use
decision of the City administration that the [Checkettses’]
business . . . does not qualify as either a legal use nor as a legal
nonconforming use under Utah Code [section] 10-9a-103(32) or
Providence Code [section] 10-1-4.” The notice further provided
that the Checkettses had “fifteen days from the date of [the]
notice to appeal the land use decision to the Providence [City]
Appeal Authority.”

¶4 On March 17, 2014, the Checkettses filed suit in district
court. In their complaint, the Checkettses alleged that they were
entitled to continue running their business “as they have done

2. Although the Checkettses’ building permit application listed
the use of the addition as “Commercial,” nothing in the
application indicated that the Checkettses intended to cut
countertops for their business within the addition.

20150054-CA 2 2016 UT App 161
 Checketts v. Providence City

for the past eight years, based on ‘zoning estoppel.’” 3 At the time
the Checkettses filed their complaint, they had not yet filed an
administrative appeal with the Providence City Appeal
Authority (the Appeal Authority). The City responded to the
Checkettses’ complaint by filing a motion to dismiss, arguing
that the Checkettses had failed to exhaust their administrative
remedies. The Checkettses opposed the City’s motion and
argued that the City “does not have an administrative procedure
by which an applicant may seek and obtain an exemption from
the City’s zoning code, based on equitable estoppel” and,
consequently, “[i]t would be futile for the [Checkettses] to seek
an exemption from the City to the zoning ordinance that no
officer has the power to grant, or to file an appeal from such a
decision.” On November 19, 2014, the district court granted the
City’s motion to dismiss the Checkettses’ equitable estoppel
claim with prejudice, ruling that it lacked jurisdiction to hear the
case because the Checkettses had failed to exhaust their
administrative remedies. 4 The appeal now before us arises from
this order of dismissal (the First Appeal).

3. The doctrine of zoning estoppel “estops a government entity
from exercising its zoning powers to prohibit a proposed land
use when a property owner, relying reasonably and in good
faith on some governmental act or omission, has made a
substantial change in position or incurred such extensive
obligations or expenses that it would be highly inequitable to
deprive the owner of his right to complete his proposed
development.” Fox v. Park City, 2008 UT 85, ¶ 35, 200 P.3d 182
(citation omitted).

4. The Municipal Land Use, Development, and Management Act
provides,
Each municipality adopting a land use ordinance
shall, by ordinance, establish one or more appeal
(continued…)

20150054-CA 3 2016 UT App 161
 Checketts v. Providence City

¶5 In the meantime, on March 21, 2014, four days after the
Checkettses filed suit in district court, the Checkettses timely
filed three administrative appeals with the Appeal Authority. In
their administrative appeals, the Checkettses argued numerous
theories of relief from the Notice of Violation, including an
equitable estoppel claim based on the same facts and theories
alleged in their March 17 district court complaint. See supra ¶ 4.
On August 12, 2014, the Appeal Authority issued a decision on
the merits, concluding that, based “on the substantial evidence
in the Record,” “the City’s decision[] . . . to issue the Notice of
Violation to the [Checkettses] . . . [was] not arbitrary, capricious,
or illegal.”

(…continued)
authorities to hear and decide . . . appeals from
decisions applying the land use ordinances . . . . As
a condition precedent to judicial review, each
adversely affected person shall timely and
specifically challenge a land use authority’s
decision, in accordance with local ordinance.
Utah Code Ann. § 10-9a-701(1)(b), (2) (LexisNexis 2012). “No
person may challenge in district court a municipality’s land use
decision made under this chapter . . . until that person has
exhausted the person’s administrative remedies as provided in
[section 10-9a-701].” Id. § 10-9a-801(1). The Providence City Code
provides, “No person, board, or officer of the City may seek
judicial review of any decision applying the land use ordinance
until after challenging the land use authority’s decision in
accordance with this part. No theory of relief may be raised in
the District Court unless it was timely and specifically presented
to the Appeal Authority.” Providence City, Utah, Code § 2-5-
3(D) (2013), http://siterepository.s3.amazonaws.com/458/title_2_
chapter_5_appeal_authority_09_10_2013.pdf [https://perma.cc/F
D6F-U3R4].

20150054-CA 4 2016 UT App 161
 Checketts v. Providence City

¶6 Specifically regarding the Checkettses’ equitable estoppel
claim, the Appeal Authority concluded that the Checkettses’
business was neither a legal use nor a legal nonconforming use
and that the Checkettses had “not shown that all the elements
necessary to prove equitable zoning estoppel are present in this
case.” The Appeal Authority noted that it was not clear from the
record, and the Checkettses had failed to show, that they
“properly conferred with the City regarding the uses that were
permitted at [the Property] before beginning operation of the
Business.” The Appeal Authority further observed that the
Checkettses had received numerous warnings from the City that
their business did not comply with the Providence City Code
and that despite these warnings the Checkettses continued to
operate and to invest in their business. Ultimately, the Appeal
Authority denied all of the Checkettses’ theories of relief. On
September 10, 2014, the Checkettses filed in the district court a
petition for review and appeal from the Appeal Authority’s
decision (the Second Appeal). While the First Appeal was
pending in this court, the district court ruled against the
Checkettses on the merits in the Second Appeal.

¶7 In the case now before us, the First Appeal, the
Checkettses contend that the district court erred in dismissing
their complaint for failure to exhaust administrative remedies,
because “[t]here were no administrative remedies available to
the [Checkettses] by which they could seek or obtain relief based
on a theory of equitable or zoning estoppel.” The City contends
that the Checkettses “seek a redundant opportunity to retry this
matter . . . in district court after they did, in fact, exhaust their
administrative remedies.” We agree with the City and conclude
that the Checkettses’ exhaustion argument is moot and barred
by the doctrine of res judicata.

¶8 “We refrain from adjudicating issues when the
underlying case is moot. A case is deemed moot when the
requested relief cannot affect the rights of the litigants.” Burkett

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 Checketts v. Providence City

v. Schwendiman, 773 P.2d 42, 44 (Utah 1989). In addition, “an
appeal is moot if during the pendency of the appeal
circumstances change so that the controversy is eliminated,
thereby rendering the relief requested impossible or of no legal
effect.” Trustees of Eighth Dist. Elec. Pension Fund v. Westland
Constr., Inc., 2013 UT App 273, ¶ 2, 316 P.3d 992 (brackets,
citation, and internal quotation marks omitted). “Indeed,
mootness can be determined by facts that change or develop as
the suit is pending.” Id. (citation and internal quotation marks
omitted).

¶9 In this case, the Checkettses failed to pursue any
administrative remedies before filing suit in district court,
despite the fact that the Providence City Code clearly
contemplates that land use decisions are to be directed through
the Appeal Authority. See Providence City, Utah, Code § 2-5-3
(2013), http://siterepository.s3.amazonaws.com/458/title_2_chapt
er_5_appeal_authority_09_10_2013.pdf [https://perma.cc/FD6F-
U3R4]. The Checkettses claim they did so because the Appeal
Authority was limited to determining “only whether or not the
decision [applying a land use ordinance] is arbitrary, capricious,
or illegal,” see id. § 2-5-3(E), and could not “provid[e] the relief
sought by the [Checkettses]” or otherwise “make the
[Checkettses] whole,” whereas “courts are empowered to
consider all the circumstances relevant to an equitable
determination and provide equitable relief.” However, shortly
after filing suit in district court, the Checkettses filed their
administrative appeals, one of which included their equitable
estoppel claim, and the Appeal Authority denied all of the
Checkettses’ claims—including their equitable estoppel claim—
on the merits. The Checkettses then filed a petition for review
and appeal of the Appeal Authority’s decision with the district
court, and while the appeal now before us was pending, the
district court ruled against the Checkettses on the merits in the
Second Appeal.

20150054-CA 6 2016 UT App 161
 Checketts v. Providence City

¶10 Based on the foregoing, we conclude that the Checkettses’
First Appeal is moot. First, by filing three administrative
appeals, the Checkettses did, in fact, exhaust their administrative
remedies. In doing so, the Checkettses received a decision on the
merits of their equitable estoppel claim from the Appeal
Authority, and subsequently, the district court rejected the
Checkettses’ claims on the merits as well. Second, even if we
were to conclude that the district court erred in dismissing the
Checkettses’ case for failure to exhaust their administrative
remedies, our reversal of the district court’s dismissal could not
affect the Checkettses’ rights, because at this point the district
court has already ruled on the merits of the Checkettses’ claims
in the Second Appeal. See Burkett, 773 P.2d at 44 (stating that an
issue “is deemed moot when the requested judicial relief cannot
affect the rights of the litigants”). In that sense, the Checkettses
have already attained the relief they wanted, i.e., review of their
equitable estoppel claim in the district court. 5 Consequently, the
question of whether the Checkettses were required to exhaust
their administrative remedies is moot.

¶11 Moreover, the Checkettses’ argument appears to be
barred by res judicata. Res judicata has two distinct branches:
claim preclusion and issue preclusion. Macris & Assocs., Inc. v.
Neways, Inc., 2000 UT 93, ¶ 19, 16 P.3d 1214. “Claim preclusion
involves the same parties or their privies and also the same
cause of action, and this precludes the relitigation of all issues
that could have been litigated as well as those that were, in fact,

5. On June 27, 2016, while the First Appeal was pending, the
Checkettses filed a notice of appeal from the judgment of the
district court in the Second Appeal. The Checkettses assert that
they intend to argue that the district court erred (1) “in
determining that there was some substantial evidence to support
the decision of the Providence City Appeal Authority” and (2)
“in awarding Providence City its attorney’s fees.”

20150054-CA 7 2016 UT App 161
 Checketts v. Providence City

litigated in the prior action.” Id. (citation and internal quotation
marks omitted). Claim preclusion will bar a subsequent action if
three requirements are met:

First, both cases must involve the same parties or
their privies. Second, the claim that is alleged to be
barred must have been presented in the first suit or
must be one that could and should have been
raised in the first action. Third, the first suit must
have resulted in a final judgment on the merits.

Id. ¶ 20 (citation omitted).

¶12 In this case, all three elements of claim preclusion are met.
First, this appeal involves the same parties as the Second
Appeal—the Checkettses and the City. Second, the argument
presented by the Checkettses in this appeal “could and should
have” been raised in the Second Appeal. See id. (citation
omitted). Specifically, if the Checkettses believe that the Appeal
Authority lacked the authority to consider their equitable
estoppel claim and that the district court should have reviewed
that claim de novo as a result, the Checkettses should have made
that argument to the district court in challenging the Appeal
Authority’s decision. Finally, the Checkettses conceded at oral
argument before this court that the Second Appeal resulted in a
final judgment on the merits. Consequently, because all three
elements of claim preclusion are met, the Checkettses’ argument
on appeal is also barred by res judicata.

¶13 Finally, the City seeks attorney fees on the basis that the
Checkettses’ appeal is frivolous or for purposes of delay. “[I]f the
court determines that a motion made or appeal taken under
these rules is either frivolous or for delay, it shall award just
damages, which may include single or double costs . . . and/or
reasonable attorney fees, to the prevailing party.” Utah R. App.
P. 33(a) (emphasis added). Rule 33 defines a frivolous appeal as
“one that is not grounded in fact, not warranted by existing law,

20150054-CA 8 2016 UT App 161
 Checketts v. Providence City

or not based on a good faith argument to extend, modify, or
reverse existing law.” Id. R. 33(b). An appeal is considered
brought for the purpose of delay if it “is one interposed for any
improper purpose such as to harass, cause needless increase in
the cost of litigation, or gain time that will benefit only the party
filing the appeal.” Id.

¶14 We conclude that the Checkettses’ continued pursuit of
this appeal was frivolous. In their opening brief, the Checkettses
failed to mention that they had in fact exhausted their
administrative remedies and that the Appeal Authority had
ruled against them. 6 Because the merits of their theories of relief
had thus been ruled upon, this appeal, in which the Checkettses
sought to establish that the merits should have been ruled upon,
was rendered moot, i.e., “during the pendency of the appeal
circumstances change[d] . . . , thereby rendering the relief
requested . . . of no legal effect.” See Trustees of Eighth Dist. Elec.
Pension Fund v. Westland Constr., Inc., 2013 UT App 273, ¶ 2, 316
P.3d 992 (citation and internal quotation marks omitted).
Nevertheless, the Checkettses continued this appeal, filing a
reply brief—and not acknowledging until asked at oral
argument that they had, in fact, exhausted their administrative
remedies and had received a district court ruling against them—
rather than withdrawing their appeal. We therefore conclude
that the appeal is “not based on a good faith argument to extend,
modify, or reverse existing law.” See Utah R. App. P. 33(b).

¶15 We further conclude that the continuation of this appeal
was also for purposes of delay. The district court determined
that it lacked jurisdiction to consider the merits of the
Checkettses’ complaint because the Checkettses had failed to
exhaust their administrative remedies before filing suit in district

6. At some point after the filing of the Checkettses’ opening brief,
the district court upheld the Appeal Authority’s ruling.

20150054-CA 9 2016 UT App 161
 Checketts v. Providence City

court. 7 Despite the Appeal Authority’s ruling against the
Checkettses on the merits, the Checkettses appealed the district
court’s jurisdiction decision, ostensibly seeking to force the
district court to address the merits. Then, after the district court
addressed the merits in upholding the Appeal Authority’s
ruling, the Checkettses persisted in this appeal. And despite
receiving the Notice of Violation and the Appeal Authority’s
ruling against them, the Checkettses have carried on with their
business of cutting custom countertops in the storage building
on their property—an activity that is, as the City’s Notice of
Violation put it, a “land use that is not allowed in the zone
within which the land use is located.” It therefore appears that
the Checkettses continued this appeal simply to “gain time that
will benefit only the party filing the appeal.” See Utah R. App. P.
33(b).

¶16 Because we conclude that the Checkettses pursued this
appeal to conclusion for purposes both frivolous and for delay,
we award just damages to the City, in the amount of its
reasonable attorney fees incurred on appeal. Id. R. 33(a); see also
id. R. 33 advisory committee notes (“If an appeal is found to be
frivolous, the court must award damages.” (emphasis added));
Redd v. Hill, 2013 UT 35, ¶ 28, 304 P.3d 861 (“Sanctions are
appropriate for appeals obviously without merit, with no
reasonable likelihood of success, and which result in the delay of
a proper judgment.” (citation and internal quotation marks
omitted)).

¶17 We dismiss this appeal as moot and as barred by res
judicata. Pursuant to rule 33 of the Utah Rules of Appellate

7. By the time the district court issued its written order, the
Checkettses had, in fact, exhausted their administrative remedies
and received a decision on the merits from the Appeal
Authority.

20150054-CA 10 2016 UT App 161
 Checketts v. Providence City

Procedure, we award the City its reasonable attorney fees
incurred on appeal in an amount to be determined by the district
court.

20150054-CA 11 2016 UT App 161