TOOMEY, Judge
Opinion First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 090100270 Robert E. Mansfield, Steven J. Joffee, Megan E. Garrett, and Gregory H. Gunn, Attorneys for Appellants and Cross-appellees D. Matthew Moscon, Cameron L. Sabin, and R. Chad Pugh, Attorneys for Appellee and Cross-appellant JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred. TOOMEY, Judge: ¶1 This appeal stems from Rocky Mountain Power's (Rocky Mountain) condemnation to obtain easements across Randy E. Marriott's (Marriott) property. Marriott appeals, arguing that the district court erred in excluding evidence of damages resulting from the easements' interference with potential mining. Rocky Mountain cross-appeals, asserting that the district court erred in granting Marriott partial summary judgment on a provision in Rocky Mountain's amended condemnation complaint. We affirm the district court's grant of partial summary judgment to Marriott. But we reverse the district court's ruling that excluded evidence of damages resulting from lost potential mining and remand to that court for further proceedings consistent with this opinion.
The appellants include Randy E. Marriott, Kami F. Marriott, Edge Holdings LLC, Willard Land Holdings LLC, Westside Investments LC, and R&K Properties LC. For the reader's convenience, we refer to them collectively as "Marriott."
BACKGROUND
¶2 Seeking to construct an electric transmission line (the New Line), Rocky Mountain filed a complaint for condemnation to obtain easements across approximately 453 acres of land (the Property) belonging to Marriott. Soon after, the parties stipulated to Rocky Mountain's occupancy of the easements, and Rocky Mountain began construction on the New Line. Marriott then requested that a jury determine the appropriate amount of "just compensation." ¶3 At the time of the condemnation, Marriott possessed two small mining permits, which authorized him to mine for sand and gravel aggregate on a ten-acre portion of the Property. Although the mining operation was relatively small, Marriott had applied for a large mining permit from the Division of Oil, Gas and Mining (DOGM). In the application (the Proposed Permit), Marriott provided plans to mine 145 acres of the Property in two phases. Phase one consisted of 35 acres, and phase two consisted of 110 acres. The Proposed Permit estimated that it would take "between 8 and 15 years" to complete phase one and did not include a time frame for phase two. DOGM had indicated to Marriott that the Proposed Permit would be approved. ¶15 The district court granted the Motions to Exclude. It first stated, "[C]ourts have an obligation to act as a gatekeeper to screen irrelevant evidence from the jury" and that "motions in limine may be used early in the litigation process to narrow the issues and reasonably limit discovery." (Quotation simplified.) Accordingly, the court determined it was "well within its authority to address the substantive issues of the [Motions to Exclude]." ¶16 The court then addressed the substantive arguments. It first determined that mining in areas covered by the Proposed Permit was legally feasible because the Proposed Permit had been submitted and there was reason to believe it would actually be approved. But the court also determined that Marriott's plans to mine in areas that would require him to relocate the Utility Lines or obtain a mining permit for areas not covered by the Proposed Permit were conjectural or speculative potential uses that were not legally feasible. The court therefore ordered that "any evidence of alleged losses or valuation theories premised upon" those two development plans "are excluded from and shall not be introduced in this matter." ¶17 Following the district court's ruling, the parties entered a settlement agreement, reserving the right to appeal the district court's previous rulings. After that, the district court entered a final judgment of condemnation. Marriott now appeals and Rocky Mountain cross-appeals.
ISSUES AND STANDARDS OF REVIEW
¶18 Marriott argues that the district court erred in granting the Motions to Exclude on two grounds. First, he asserts that the court "adopted and applied an incorrect legal feasibility analysis" by ruling that "condemnees must request and receive permission from the entity with authority to approve or deny a proposed use for [that] use to be considered legally feasible." Second, he argues that the court erred in granting the Motions to Exclude before he had a "full and fair opportunity to complete fact and expert discovery." "We review the legal questions underlying the admissibility of evidence for correctness and the district court's decision to admit or exclude evidence for an abuse of discretion." Blackhawk Townhouses Owners Ass'n Inc. v. J.S., 2018 UT App 56, ¶ 17, 420 P.3d 128. ¶19 Rocky Mountain cross-appeals. It contends that the district court erred in granting Marriott partial summary judgment on the Canal Provision. "We review a district court's decision to grant summary judgment for correctness, with no deference to the district court's conclusions." School & Institutional Trust Land Admin. v. Mathis, 2009 UT 85, ¶ 10, 223 P.3d 1119.
ANALYSIS
I. Legal Feasibility of Potential Mining
¶20 Marriott argues that the district court erred in granting the Motions to Exclude. We agree. To show that a proposed "highest and best use" of condemned land is legally feasible, a landowner "must offer the testimony of a properly qualified expert." City of Hildale v. Cooke, 2001 UT 56, ¶ 25, 28 P.3d 697 (quotation simplified). Although "admission of such evidence is within the sound discretion of the [district] court," State ex rel. Road Comm'n v. Jacobs, 397 P.2d 463, 464 (Utah 1964), the court abuses its discretion when it denies the landowner a fair opportunity to develop the essential elements of his claim. Because Rocky Mountain filed the Motions to Exclude before the close of fact discovery and before expert discovery began, the court erred in ruling on the legal feasibility of Marriott's proposed "highest and best use" at that time. those areas, nor was he required to start the process of obtaining that right. Instead, he was required to show that the likelihood of obtaining approval to mine those areas was reasonably probable so as to have an appreciable influence upon market value. See State ex rel. Road Comm'n v. Jacobs, 397 P.2d 463, 465 (Utah 1964). ¶39 As explained above, see supra ¶ 28, expert testimony was essential to show that mining of gravel and sand aggregate was the relevant land's highest and best use, City of Hildale v. Cooke, 2001 UT 56, ¶ 25, 28 P.3d 697. And to show that mining was the highest and best use, an expert was required to testify that mining was legally feasible, i.e., that obtaining the proper permits was reasonably probable. See id. ¶¶ 24-25. And if obtaining those permits was reasonably probable, the proposed mining development was likely relevant to the market value of the Property. See Cornish Town v. Koller, 817 P.2d 305, 313-14 (Utah 1991) (determining that, although uncertain and speculative, the potential to exploit "in-place minerals" has a market value and is thus admissible to determine just compensation). ¶40 A properly qualified expert might have testified to the probability, given the circumstances, that a request to mine the unpermitted areas would have been granted. Marriott asserts on appeal, as he did below, that he intended to retain expert witnesses to establish the legal feasibility of receiving permission to engage in the proposed mining. But because Rocky Mountain filed the Motions to Exclude before fact discovery concluded and before expert discovery began, Marriott was denied the opportunity to present this essential evidence. ¶41 We therefore conclude that the district court erred in ruling, before the close of fact and expert discovery, that Marriott did not establish the legal feasibility of mining areas that were not included in the Proposed Permit.
We note that although our rules establish no firm deadline for filing motions in limine, such motions are typically filed after discovery has concluded and before trial. Had these issues been presented in the context of a motion for partial summary judgment, Marriott easily could have filed an affidavit under Utah Rule of Civil Procedure 56(d) asking the court to delay its decision until further discovery had been conducted, and, in this case, expert disclosures and discovery undertaken. We do not think district courts should easily allow parties to avoid the strictures of summary judgment procedures by presenting dispositive issues in motions in limine. Here, the Motions to Exclude were employed in lieu of a motion for summary judgment without the safeguards offered by that rule to ensure that the case was decided on its merits. --------
II. The Canal Provision
¶42 Rocky Mountain cross-appeals, arguing that the district court erred when it granted partial summary judgment to Marriott on the Canal Provision. We disagree. Because the Canal Provision was contrary to Utah condemnation law, we affirm the district court's decision to grant Marriott partial summary judgment and strike the Canal Provision from the amended condemnation complaint. ¶43 In condemnation cases, "the right to compensation and damages shall be considered to have accrued at the date of the service of summons." Utah Code Ann. § 78B-6-512(1) (LexisNexis 2012). And the condemning party "shall, within 30 days after final judgment, pay the sum of money assessed." Id. § 78B-6-514. ¶44 The Canal Provision was at odds with the requirement that condemning parties pay compensation and damages within 30 days after final judgment because it gave Rocky Mountain the option to pay part of Marriott's potential "just compensation" at some time in the future. It provided that, if Marriott received written approval from the federal government to relocate the Canal, Marriott could request that Rocky Mountain relocate the New Line to allow mining operations on the supporting land. If that happened, Rocky Mountain would have been obligated to either relocate the New Line at its own expense or pay Marriott "the fair market value of the Deposits that would otherwise be made accessible for mining by the relocation of the [New Line]." ¶45 Rocky Mountain disagrees with this interpretation. It argues that, under the Canal Provision, "relocation would be at the option of [Marriott], not [Rocky Mountain]." But the Canal Provision clearly provided otherwise. It stated, "[Rocky Mountain] shall have the option of paying [Marriott] the fair market value of the Deposits that would otherwise be made accessible for mining by the relocation of the [New Line]. This option shall be in lieu of relocating the [New Line]." (Emphasis added.) The Canal Provision's language clearly gave Rocky Mountain the option to pay part of Marriott's potential "just compensation" at a future, indefinite time. ¶46 Further, even if the Canal Provision required Rocky Mountain to relocate the New Line according to Marriott's future needs, the Utah Supreme Court has disapproved of such "floating" easements. See Jacobson v. Memmott, 354 P.2d 569, 571 (Utah 1960). That is because, in condemnation proceedings, we attempt to compensate the landowner for all property rights condemned. Id. And a relocation provision leaves the landowner "with the uncertainty of not knowing, nor being able to prove, the extent to which the [easement] will damage his property, because of the difficulties in presaging what might later occur." Id. It is therefore "more practical and in conformity with established patterns of law" to require condemning parties "to make a definite designation of it so that the damages to the [landowner] may be ascertained." Id. ¶47 We therefore conclude that the Canal Provision was contrary to Utah law and affirm the district court's grant of partial summary judgment to Marriott on that provision.
CONCLUSION
¶48 We affirm the district court's grant of partial summary judgment to Marriott on the Canal Provision, but we reverse its ruling on the Motions to Exclude and remand to the district court for further proceedings consistent with this opinion.