Velasquez v. Harmon-Mont & Theda, Inc.

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2014 UT App 6
THE UTAH COURT OF APPEALS
PAUL VELASQUEZ, EDWARD CALLISON, CAROLE CALLISON, TEAGAN MARIE CLARK, ASPEN CLARK, AND JEREMY WRIGHT, Plaintiffs and Appellees, v. HARMAN-MONT & THEDA, INC., Defendant and Appellant.
Opinion No. 20120858-CA Filed January 9, 2014
Third District Court, Salt Lake Department The Honorable Kate A. Toomey No. 100909068
David L. Bird, Bruce J. Boehm, and Nickolas S. Rice, Attorneys for Appellant; Karra J. Porter, Kristen C. Kiburtz, Edward T. Wells, Jeffrey D. Eisenberg, and Jordan P. Kendell, Attorneys for Appellee Paul Velasquez; J. Jordan Christianson and Michael C. Mathie, Attorneys for Appellees Edward Callison, Carole Callison, Teagan Marie Clark, and Aspen Clark; William R. Rawlings and Travis B. Alkire, Attorneys for Appellee Jeremy Wright
JUDGE CAROLYN B. MCHUGH authored this Opinion, in which JUDGES GREGORY K. ORME and JAMES Z. DAVIS concurred.
McHUGH, Judge:
I1 Defendant Harman-Mont & Theda, Inc. (Mont & Theda) appeals from an order entered by the district court on September 25, 2012 (the Memorandum Decision). We affirm the Memorandum Decision to the extent it struck Mont & Theda's motion for

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summary judgment and we decline to address those portions of the
Memorandum Decision that are not ripe for appellate review.
BACKGROUND
¶2 Mont & Theda operated a Kentucky Fried Chicken outlet in
Spanish Fork, Utah, licensed by Harman Management Corporation
(Harman Management). On March 11, 2010, an employee of Mont
& Theda (Employee), participated in a training session conducted
by Harman Management. Other Kentucky Fried Chicken licensees’
employees, including Kristine Velasquez, Donald Callison, and
Jeremy Wright, also attended this training session. The session
started at one location in Murray, Utah, but included off-site visits
to fast-food restaurants in the area. Employee used his father’s
automobile to drive Velasquez, Wright, and Callison to these
restaurants. During the drive from the first fast-food restaurant to
the second, Employee reached a light rail crossing. Although the
crossing arm was down, Employee drove around it and attempted
to cross before the coming train arrived. He was unsuccessful. The
resulting crash killed Employee and Callison and seriously injured
Velasquez and Wright.
¶3 Velasquez, through her parent and guardian, Paul
Velasquez, and Wright sued for personal injuries; Callison’s heirs
brought an action for wrongful death (collectively, Plaintiffs). The
plaintiffs each filed suit, seeking damages from Mont & Theda for
Employee’s actions. Although Mont & Theda raised a number of
affirmative defenses in its answers to the plaintiffs’ complaints, it
did not assert a defense based on the Travel Reduction Act, see
Utah Code Ann. §§ 72-12-101 to -110 (LexisNexis 2009). The cases
were later consolidated into the case now before us on
interlocutory appeal.
¶4 After the close of discovery, Mont & Theda filed a motion
for summary judgment raising the Travel Reduction Act as a

Velasquez v. Harman–Mont & Theda
1. The Travel Reduction Act provides, in relevant part,
(1) An employer is not liable for injuries to
passengers or other persons or both resulting from
the operation or use of a motor vehicle not owned,
leased, or contracted for by the employer in a ride-
sharing arrangement.
(2) An employer is not liable for injuries to
passengers or other persons or both on account of the
employer having provided information or incentives
or otherwise having encouraged employees to
participate in ride-sharing arrangements.
Utah Code Ann. § 72-12-106 (LexisNexis 2009).
20120858-CA 3 2014 UT App 6
defense for the first time. Plaintiffs moved to strike Mont &1
Theda’s motion for summary judgment because it was based on an
affirmative defense that had not been pleaded and thus not
properly joined and because the defense had been waived. In
addition, Plaintiffs opposed the motion for summary judgment on
the merits, arguing that the Travel Reduction Act was inapplicable
under the present facts and, if applied to bar Plaintiffs’ claims,
would violate the Utah Constitution.
¶5 After oral argument, the district court issued the
Memorandum Decision. The district court first addressed Plaintiffs’
motion to strike Mont & Theda’s motion for summary judgment.
The district court concluded that the Travel Reduction Act defense
was an affirmative defense that Mont & Theda should have
pleaded in its answers. In addition, the district court determined
that “what was pled did not put the plaintiffs on notice of the
issues raised by [the Travel Reduction Act] defense” and that “it is
unfair to allow [Mont & Theda] to raise it now, in the context of a
summary judgment motion after discovery has closed.”
Accordingly, the district court stated that Plaintiffs’ motion to
strike “should therefore be granted.”
¶6 Next, the district court considered the possibility that Mont
& Theda might attempt to remedy the failure to plead the Travel

Velasquez v. Harman–Mont & Theda
2. The district court also addressed several other motions for
summary judgment and partial summary judgment filed by the
parties. We do not address the Memorandum Decision’s discussion
of these other motions in this interlocutory appeal.
20120858-CA 4 2014 UT App 6
Reduction Act defense by moving to amend its answers. Although
the district court expressly reserved judgment on whether such a
motion would be granted, it decided to address the merits of the
Travel Reduction Act defense. Ultimately, the district court
indicated that the Travel Reduction Act “does not apply in the
context of this case” and that “Mont & Theda’s Motion for
Summary Judgment is therefore denied.”2
¶7 In response to the Memorandum Decision, Mont & Theda
took two actions. First, it filed a motion to amend its answers to
include the Travel Reduction Act defense “in order to ensure that
the [Travel Reduction Act] defense is properly preserved for
purposes of appeal.” Second, Mont & Theda filed a petition for
permission to appeal the interlocutory Memorandum Decision.
Before a scheduled hearing on the motion to amend Mont &
Theda’s answers could be held, a law and motion panel of this
court granted Mont & Theda’s petition for permission to appeal.
Mont & Theda then moved to stay all proceedings pending before
the district court, including the hearing on the motion to amend the
answers. The district court granted the motion to stay.
¶8 Although an initial reading of the Memorandum Decision
suggested that the district court issued an appealable ruling on the
applicability of the Travel Reduction Act to the facts of this case,
further examination revealed ambiguities in the district court’s
ruling. Plaintiffs drew this issue to our attention in their motion for
summary disposition, arguing that the district court’s discussion of
the Travel Reduction Act was an advisory opinion that was not
ripe for appellate review. We deferred ruling on the issues raised
by Plaintiffs and Mont & Theda pending plenary presentation and
consideration of the issues raised in the motion for summary
disposition and in the petition for interlocutory appeal. Following

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20120858-CA 5 2014 UT App 6
briefing, we also asked the parties to be prepared at oral argument
to address the question of whether the petition for interlocutory
appeal had been improvidently granted. During oral argument, the
parties disagreed as to the meaning of the Memorandum Decision.
While Mont & Theda asserted that the district court had denied the
motion to strike and denied the summary judgment motion on the
merits, Plaintiffs claimed that the district court had granted the
motion to strike and also held that the Travel Reduction Act
defense had been waived for all purposes. After oral argument, we
temporarily remanded this matter to the district court for further
explanation of the Memorandum Decision.
¶9 On November 18, 2013, the district court issued a
Clarification of Memorandum Decision Entered September 25, 2012
(the Clarification Order). The Clarification Order indicates that the
district court granted Plaintiffs’ motion to strike Mont & Theda’s
motion for summary judgment because it was based on an
affirmative defense that had not been pleaded and because the
defense had been waived. The district court also stated that it had
not “prejudg[ed] all aspects that would be addressed in deciding
a motion to amend” the answers, but decided to share its opinion
that such a motion would be denied as futile or, if granted, a
“Motion for Summary Judgment based upon the Travel Reduction
Act would be denied on the merits for the same reasons that the
Motion to Amend would be futile.”
ISSUES AND STANDARDS OF REVIEW
¶10 Mont & Theda seeks appellate review of the district court’s
statement that the Travel Reduction Act is not applicable under the
facts of this case, including its reasoning that a plain language
interpretation of the Act would lead to an absurd result. In
addition, the parties ask us to review whether the application of the
Travel Reduction Act as a complete defense to Plaintiffs’ claims is
constitutional. We review questions of statutory interpretation for
correctness, affording no deference to the district court. Turner v.

Velasquez v. Harman–Mont & Theda
3. Under the Act, “‘Ride-sharing arrangement’ means either a car-
pool, van-pool, or both.” Utah Code Ann. § 72-12-103(3)
(LexisNexis 2009). In turn, “‘Car-pool’ means a mode of
transportation in which: (a) six or fewer persons, including the
driver, ride together in a motor vehicle; (b) that transportation is
incidental to another purpose of the driver; and (c) the vehicle
manufacturer’s design capacity of any one seat is not exceeded.” Id.
§ 72-12-103(1).
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Staker & Parson Cos., 2012 UT 30, ¶ 7, 284 P.3d 600. Furthermore, we
address constitutional challenges to legislation only when we are
required to do so. Gardner v. State, 2010 UT 46, ¶ 93, 234 P.3d 1115.
However, this court has no power to issue an advisory opinion on
an issue that is not yet ripe for decision. See Utah Transit Auth. v.
Local 382 of the Amalgamated Transit Union, 2012 UT 75, ¶ 24, 289
P.3d 582; Carter v. Lehi City, 2012 UT 2, ¶ 93, 269 P.3d 141.
ANALYSIS
I. We Affirm the District Court’s Order Striking Mont & Theda’s
Motion for Summary Judgment Because Mont & Theda Does
Not Challenge It on Appeal.
¶11 Mont & Theda focuses its appeal on the applicability of the
Travel Reduction Act to the facts of this case. Mont & Theda argues
that, as a matter of law, it cannot be held vicariously liable for the
acts of Employee because he was engaged in a “ride-sharing
arrangement” as defined by the Act. See Utah Code Ann. § 72-12-
106(1) (LexisNexis 2009). However, Mont & Theda does not3
challenge the merits of the district court’s ruling striking the
motion for summary judgment, arguing instead that the motion to
strike was never granted and that the district court considered the
summary judgment motion and denied it on the merits.
Accordingly, Mont & Theda does not effectively challenge the
district court’s decision on this point.

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20120858-CA 7 2014 UT App 6
¶12 Because Mont & Theda first raised a defense based on the
Travel Reduction Act in its motion for summary judgment,
Plaintiffs moved to strike the summary judgment motion. The
district court granted the motion to strike both because the Travel
Reduction Act was an affirmative defense that had not been
pleaded and thus was not properly joined, and because Mont &
Theda had waived the defense by not putting Plaintiffs on notice
of it until after the close of discovery. Because Mont & Theda does
not challenge either of these grounds, we affirm the district court’s
decision striking Mont & Theda’s motion for summary judgment.
See Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903 (“If an appellant fails
to allege specific errors of the lower court, the appellate court will
not seek out errors in the lower court’s decision.”); Warner v.
Warner, 2013 UT App 225, ¶ 57 (summarily affirming district court
decision where appellants did not address any of the bases for the
decision on appeal); cf. Salt Lake County v. Butler, Crockett & Walsh
Dev. Corp., 2013 UT App 30, ¶ 28, 297 P.3d 38 (“This court will not
reverse a ruling of the trial court that rests on independent
alternative grounds where the appellant challenges only one of
those grounds.”).
II. The District Court’s Discussion of the Travel Reduction Act
Was for Advisory Purposes Only.
¶13 After granting Plaintiffs’ motion to strike Mont & Theda’s
motion for summary judgment, the district court provided
guidance to the parties concerning the Travel Reduction Act.
“[B]ecause the issues had been fully briefed and argued, and the
[district] court had read and considered the arguments on their
merits,” the district court addressed the arguments raised in Mont
& Theda’s summary judgment motion. In light of its analysis, the
district court “assume[d] that a Motion to Amend would be filed
but denied as futile, and in the alternative, if it were granted, that
the Motion for Summary Judgment based upon the Travel
Reduction Act would be denied on the merits for the same reasons
that the Motion to Amend would be futile.” The district court
further clarified that although it “used language of denial in

Velasquez v. Harman–Mont & Theda
20120858-CA 8 2014 UT App 6
addressing the Motion for Summary Judgment” in its original
Memorandum Decision, it intended, rather than to deny the motion
for summary judgment, to indicate “that even if a Motion to
Amend were filed, it would be denied as futile.” The district court
also reaffirmed that it had not ruled on the issue of whether Mont
& Theda would be permitted to amend its answers if it filed such
a motion.
¶14 In their appellate brief, Plaintiffs describe the district court’s
analysis of the statute as “dictum” and correctly note that “the Act
does not come into play unless two things happen at some later
point: 1) [Mont & Theda] files a motion to amend to allow it to
assert the Act, and 2) the motion is granted.” Although Mont &
Theda has filed a motion to amend, it later moved to stay the
proceedings below, and the district court has yet to rule on the
motion to amend. While the district court’s analysis of the Travel
Reduction Act was useful to the parties in assessing their litigation
strategy, it was not necessary to the resolution of the motion to
strike or the motion for summary judgment. Once the court
granted the motion to strike, all issues raised by both motions were
resolved. The Travel Reduction Act was not before the district
court because Mont & Theda had not pleaded it as an affirmative
defense. “[Mont & Theda’s] assertion of [its] unpleaded claims in
briefing and argument before the district court and on appeal
cannot remedy the failure to include them in an appropriate
pleading.” See Barton Woods Homeowners Ass'n v. Stewart, 2012 UT
App 129, ¶ 11, 278 P.3d 615; see also Holmes Dev., LLC v. Cook, 2002
UT 38, ¶ 31, 48 P.3d 895 (“A plaintiff cannot amend the complaint
by raising novel claims or theories for recovery in a memorandum
in opposition to a motion to dismiss or for summary judgment,
because such amendment fails to satisfy Utah’s pleading
requirements.” (citations omitted)). Nevertheless, the district court
shared its conclusion that the Travel Reduction Act would not be
applicable under the present facts, even if it had been pleaded.
¶15 We agree with Plaintiffs that the district court merely
hypothesized what it would do in response to possible future

Velasquez v. Harman–Mont & Theda
20120858-CA 9 2014 UT App 6
actions of the parties that may or may not occur. As a result, these
issues are not ripe for appellate review. See Carter v. Lehi City, 2012
UT 2, ¶ 93, 269 P.3d 141 (explaining that hypothetical statutory
issues are “unripe for adjudication” (citation and internal quotation
marks omitted)). The Utah Supreme Court has identified three
important functions served by the ripeness doctrine: (1) “block[ing]
the court from rendering advisory opinions on matters that may
not impact the parties”; (2) “requiring a clear factual record prior
to adjudication” and thereby “facilitat[ing] informed decisions that
fit the circumstances of individual cases”; and (3) “prevent[ing] the
court from intruding on legislative functions by unnecessarily
ruling on sensitive constitutional questions.” Id. (citations omitted).
Here, all three of these functions are implicated.
¶16 First, the Travel Reduction Act defense may never be at
issue. The district court stated in footnote 8 of the Memorandum
Decision and reaffirmed in the Clarification Order that it was
reserving judgment on whether it would allow Mont & Theda to
file amended answers. Of further significance is the district court’s
conclusion that “it is unfair to allow [Mont & Theda] to raise [the
Travel Reduction Act defense] now, in the context of a summary
judgment motion after discovery has closed.” Accordingly, one of
the bases for the district court’s decision to grant Plaintiffs’ motion
to strike Mont & Theda’s summary judgment motion was the
court’s conclusion that Mont & Theda had waived the Travel
Reduction Act defense. The district court might use this same
reasoning—as opposed to a futility analysis—to deny Mont &
Theda’s motion to amend its answers to add a defense based on the
Act. See Kelly v. Hard Money Funding, Inc., 2004 UT App 44, ¶ 26, 87
P.3d 734 (identifying three factors to be considered in analyzing
whether to grant a motion to amend: “the timeliness of the motion;
the justification . . . for the delay; and the resulting prejudice to the
responding party” (citation and internal quotation marks omitted)).
Until the district court actually rules on the applicability of the Act,
any guidance from this court would be an impermissible advisory
opinion.

Velasquez v. Harman–Mont & Theda
20120858-CA 10 2014 UT App 6
¶17 Second, the factual record has not yet been clarified either by
trial or by an agreement as to the undisputed facts. Indeed, the
district court noted that Plaintiffs “rais[ed] factual disputes
concerning whether Mont & Theda instructed the plaintiffs to visit
restaurants together, and whether [Employee] offered to drive a
car-pool.” Third, because Plaintiffs argue that the Act violates the
open courts clause, the uniform operation of laws clause, and the
protection for wrongful death claims in the Utah Constitution, a
decision from this court could include a premature analysis of the
constitutionality of a statute that may not ultimately be at issue. As
a result, any decision from this court interpreting the Travel
Reduction Act defense would also constitute an impermissible
advisory opinion. See Pett v. Autoliv ASP, Inc., 2005 UT 2, ¶¶ 4–5,
106 P.3d 705 (concluding that merits of affirmative defense were
not ripe at time of interlocutory appeal to consider whether
defendant should have been allowed to amend its answer to add
the defense); Failor v. Megadyne Med. Prods., Inc., 2009 UT App 179,
¶¶ 25–26, 213 P.3d 899 (concluding that plaintiffs’ objections to
special master’s report were not ripe where petition for
interlocutory appeal was granted and district court had not yet
ruled on the objections); Meadow Fresh Farms, Inc. v. Utah State Univ.
Dep’t of Agriculture & Applied Sci., 813 P.2d 1216, 1220–21 (Utah Ct.
App. 1991) (holding that “the permissibility of refiling a case more
than once is not ripe for adjudication unless and until plaintiff
refiles its suit, the trial court subsequently dismisses it, and plaintiff
appeals that dismissal”).
¶18 Utah’s appellate courts have repeatedly cautioned against
the issuance of advisory opinions. See, e.g., Summit Water Distrib.
Co. v. Summit County, 2005 UT 73, ¶ 50, 123 P.3d 437 (“Our settled
policy is to avoid giving advisory opinions in regard to issues
unnecessary to the resolution of the claims before us.”); Provo City
Corp. v. Thompson, 2004 UT 14, ¶ 22, 86 P.3d 735 (“We have
observed on many occasions that this court is not inclined to issue
mere advisory opinions.” (citation and internal quotation marks
omitted)). In Utah Transit Authority v. Local 382 of the Amalgamated
Transit Union, 2012 UT 75, 289 P.3d 582, the Utah Supreme Court

Velasquez v. Harman–Mont & Theda
20120858-CA 11 2014 UT App 6
examined the constitutional limits of our judicial authority and
concluded that “whatever else the judicial power clause [of the
Utah Constitution] may imply, it incorporates a prohibition on the
issuance of advisory opinions by our courts.” Id. ¶ 23. The supreme
court further admonished that judges have an independent duty
“to vigilantly follow the strictures of the constitution” in assessing
“the scope of our own power or jurisdiction.” Id. ¶ 26. Where the
issue before the court is moot or hypothetical, we simply lack the
judicial power to render a decision. Id. ¶ 24 & n.12.
¶19 Even the interest of judicial economy provides an
insufficient basis for us to review the district court’s advice
concerning hypothetical questions. The Utah Supreme Court
rejected a similar argument in Utah Transit Authority, stating that
the issuance of an advisory opinion “is beyond the scope of the
judicial power, and we have no inherent discretion to disregard the
limits of that power at the behest of parties who insist on the
precedential importance or practical significance of our doing so.”
Id. ¶ 24 (footnote omitted). Indeed, our supreme court cautioned,
“‘[W]henever we are persuaded by reasons of expediency to
engage in the business of giving legal advice, we chip away a part
of the foundation of our independence and our strength.’” Id. ¶¶ 19
n.4, 27 (quoting Duke Power Co. v. Carolina Envtl. Study Grp., Inc.,
438 U.S. 59, 103 (1978) (Stevens, J., concurring in the judgment)).
While it is unfortunate that the parties have incurred time and
expense to pursue this interlocutory appeal in part due to our
initial confusion over the Memorandum Decision, we are unable to
create judicial power where it does not exist. See id. ¶ 23.
¶20 This interlocutory appeal comes to us in much the same
posture as an issue the Utah Supreme Court refused to consider in
Jeffs ex rel. B.R. v. West, 2012 UT 11, 275 P.3d 228. There, the court
explained, “The district court refused to reach this issue, yet
hypothesized what it would do ‘if [it] were to reach that alternative
motion.’ We decline to offer an advisory opinion on the district
court’s hypothetical ruling.” Id. ¶ 4 n.1 (alteration in original). We
take the same approach here. Because there is no justiciable

Velasquez v. Harman–Mont & Theda
4. Rule 30(a) provides, in relevant part, “If a new trial is granted,
the court may pass upon and determine all questions of law
involved in the case presented upon the appeal and necessary to
the final determination of the case.” Utah R. App. P. 30(a). In the
present case, the district court ruled that Mont & Theda waived the
Travel Reduction Act defense, yet reserved a ruling on whether the
court would permit it to amend its answers. Under these
circumstances, it is uncertain whether interpretation of the Act will
be necessary to a final determination of the case.
20120858-CA 12 2014 UT App 6
controversy before us regarding the Travel Reduction Act, we have
no authority to render a ruling on it. See Utah Transit Auth., 2012
UT 75, ¶ 24 n.12 (defining a justiciable controversy as “‘a real and
substantial controversy admitting of specific relief through a decree
of a conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts’”
(quoting Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S.
227, 240–41 (1937))); see also In re R.B.F.S., 2012 UT App 132, ¶ 9, 278
P.3d 143 (“However, we do not give advisory opinions; an issue
must be ripe before we will consider it on appeal.” (citing Carter v.
Lehi City, 2012 UT 2, ¶ 93, 269 P.3d 141)). Accordingly, this issue is
not ripe for our consideration at this time.
¶21 Furthermore, although we have authority to provide
guidance to the district court on remand, see Utah R. App. P. 30(a),4
that authority does not confer upon us the discretion to render
advisory opinions on matters that might never arise. See Utah
Transit Auth., 2012 UT 75, ¶ 24 n.14 (explaining that decisions
which give guidance on remand “are not advisory in the sense of
dealing with hypothetical or since-extinguished controversies”).
The authority to provide guidance on remand is limited to “matters
necessary to resolution of the case on remand.” Id. (citing Utah R.
App. P. 30). If, on the other hand, the direction we give may
ultimately prove to be irrelevant or future circumstances may
obviate our need to consider the constitutionality of a statute, any
guidance this court offered on those questions would be an
impermissible advisory opinion. Compare Clegg v. Wasatch County,

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20120858-CA 13 2014 UT App 6
2010 UT 5, ¶¶ 26–27, 227 P.3d 1243 (refusing to consider whether
the Motor Vehicle Act violates the uniform operation of laws
provision of the Utah Constitution because the factual record had
not been developed sufficiently to establish that the Act applied),
with Houghton v. Department of Health, 2005 UT 63, ¶¶ 26–28, 125
P.3d 860 (declining to reach hypothetical issues but reaching the
issue of whether the district court properly interpreted a prior
holding of the Utah Supreme Court because the scope of the
protective order at issue was dependent upon that interpretation
and, therefore, the appellate court’s ruling would have “a
meaningful effect on the parties” (internal quotation marks
omitted)). As discussed, it is uncertain at this juncture whether the
district court will permit Mont & Theda to amend its answers to
add a defense based on the Travel Reduction Act. And if the
district court denies such a motion, there is no guarantee that it will
do so on the basis that the Act is inapplicable—as opposed to
extending its waiver analysis to the resolution of that question. See
Kelly v. Hard Money Funding, Inc., 2004 UT App 44, ¶ 26, 87 P.3d
734. Accordingly, this issue is not within the scope of our judicial
power. See Clegg, 2010 UT 5, ¶ 26 (“Indeed, where any direction we
may provide . . . may ultimately prove to be irrelevant, or where
there are possible circumstances under which we would not need
to address [a constitutional claim], to do so would be to
impermissibly render an advisory opinion.” (omission in original)
(citations and internal quotation marks omitted)). We therefore do
not address the merits of the parties’ arguments about the Travel
Reduction Act.
CONCLUSION
¶22 We affirm the district court’s order striking Mont & Theda’s
motion for summary judgment because Mont & Theda has not
challenged it on appeal. We decline to consider the applicability of
the Travel Reduction Act or its constitutionality because these
issues are not ripe.

Velasquez v. Harman—Mont & Theda

20120858-CA 14 2014 UT App 6