2025 UT App 3
THE UTAH COURT OF APPEALS
MAURICE ROKOVITZ AND DAWN ROKOVITZ,
Appellants,
v.
MANLEY CONSTRUCTION LLC,
Appellee.
Opinion
No. 20230590-CA
Filed January 9, 2025
Fourth District Court, Spanish Fork Department
The Honorable Jared Eldridge
No. 180300200
Bryan H. Booth, Attorney for Appellants
Stephen W. Whiting, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DAVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1 Maurice and Dawn Rokovitz (the Rokovitzes) hired
Manley Construction LLC (Manley) to build a custom home. As it
turned out, the home ended up costing more than anticipated, and
after completion of construction, certain disputes arose between
the parties regarding costs and the quality of the work. Each side
sued the other, and after a bench trial, the court dismissed parts
of the Rokovitzes’ breach of contract claim as “unpled” and
entered a net judgment for $38,098.76 in favor of Manley. The
Rokovitzes appeal from that judgment and raise several related
challenges, largely centered around the trial court’s dismissal of
parts of their contract claim as “unpled.”
Rokovitz v. Manley Construction
¶2 We agree with the Rokovitzes that the trial court erred by
dismissing parts of their contract claim for pleading-related
reasons. We therefore reverse the court’s orders of dismissal,
vacate the court’s judgment, and remand the case for further
proceedings consistent with this opinion.
BACKGROUND 1
¶3 In 2017, the Rokovitzes wanted to build their “dream
home” on a lot they had purchased in Woodland Hills, Utah. They
hired an architectural firm and an engineering firm to create
architectural plans and a site plan (the Plans), and they reached
out to several contractors to obtain construction bids. The initial
bids were much higher than the Rokovitzes anticipated: one was
for $550,000 and another was for $525,000.
¶4 The Rokovitzes also reached out to Manley, whom they
had heard of through a mutual friend. Manley’s principal
understood that the Rokovitzes “had been talking about this
dream home of theirs” and had been “struggl[ing] to find
anybody that could” build it “within their budget.” Manley gave
the Rokovitzes an ostensibly tentative “verbal price estimate” that
fit within their budget, and Manley began to reach out to
subcontractors to finalize the bid. But the subcontractor bids came
back “much more expensive than” Manley had “estimated in the
discussion” with the Rokovitzes, and Manley adjusted its first
official bid upward to $534,000 to meet these realities.
1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite the
facts consistent with that standard and only present conflicting
evidence to the extent necessary to clarify the issues raised on
appeal.” Huck v. Ken’s House LLC, 2022 UT App 64, n.1,
511 P.3d
1220 (quotation simplified).
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¶5 This price was apparently not within the Rokovitzes’
budget, so Manley and the Rokovitzes engaged in negotiations to
try to bring the price down. For one thing, the Rokovitzes agreed
to do significant work on the home themselves—a concept the
parties refer to as “sweat equity”—including site cleaning, tree
removal, and low-voltage electrical work. The Rokovitzes also
agreed to “reduce the size of the house by a little bit.” And the
parties agreed to exclude from the bid certain outdoor items that
were shown on the Plans, such as “the detached garage, the rock
wall, [the] driveway, [and the] landscaping.” Manley’s principal
later testified, “We agreed that we were only doing the house.”
Using these methods, Manley lowered its bid to $443,800, and the
parties eventually memorialized that amount in a written
contract, executed in November 2017 and captioned “Residential
Construction Agreement” (the Contract). As relevant to this
appeal, the Contract contained the following clauses:
• “Scope of Work” and “Warranty” Clauses. In these
sections, Manley agreed “to construct” the home “in
accordance with the [Plans]” and promised to “provide all
services, materials and labor for such work.” However, the
Contract limited Manley’s responsibility to “the
construction of the residential structure, unless specifically
agreed to in writing.” And the parties agreed that the
Contract “expressly excludes the detached garage,
landscaping and any landscaping/retaining rock.” For the
work performed, Manley warranted “all aspects of [its]
workmanship and materials for 1 year.”
• “Costs” and “Change Order” Clauses. Through these
clauses, the parties agreed that the “total project cost” was
not to “exceed $443,800 unless modified by written Change
Orders” signed by both sides. A separate “Change Order”
clause specified that the Rokovitzes could “make changes
to the scope of the work from time to time during the term
of” the Contract but that “any such change or modification
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shall only be made in a written Change Order which is
signed and dated by both parties” and that the Rokovitzes
would “pay any increase in the cost” of the home resulting
from any change order. Appended to the Contract as
“Exhibit A” was a document entitled “Cost Breakdown.”
The Cost Breakdown included a table with fifty-one line
items—one of which was a $38,615.31 “Management
Fee”—that added up to exactly $443,800. Excluded from
the Cost Breakdown were certain tasks that the Rokovitzes
had apparently agreed to do as “sweat equity,” such as tree
removal and cleaning.
¶6 After the Contract was signed, construction commenced.
During construction, the parties mutually signed five written
change orders, increasing the cost of the home by more than
$28,000. In addition to those five written change orders, the
Rokovitzes apparently directly asked some of the subcontractors
to undertake extra work; indeed, the trial court later found that
the Rokovitzes “requested upgrades beyond what was planned”
and that they did so “without consulting or notifying Manley.”
The Rokovitzes ended up having quite a bit of direct contact with
the subcontractors; one testified at trial that the Rokovitzes were
“much more hands-on” than most homeowners and that they—
rather than Manley, the general contractor—were the ones who
were “making the decisions about how much would be spent
improving” the home. Another testified at trial that the
Rokovitzes were the ones “request[ing] all of the bids” and
interfacing with the subcontractors. But much of this additional
work was never memorialized in written change orders. When
the construction was finished, the total cost of the home had
ballooned to more than $572,000, nearly $130,000 more than the
original bid price and about $100,000 more than the bid price plus
the costs reflected in the five written change orders. In addition,
the Rokovitzes also came to believe that some of the construction
work performed on the home was defective.
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¶7 In December 2018, the Rokovitzes filed suit against
Manley. 2 Their complaint contained two causes of action: for
breach of contract and for declaratory relief. Therein, the
Rokovitzes specifically alleged that Manley breached the Contract
“by, among other things, failing to pay or reduce the amount owed
to subcontractors by $18,256.00, failing to pay liquidated damages
for delays in completion, failing to pay their portion of all
overages, and failing to complete” certain items. (Emphasis
added.) The complaint was labeled “Tier 1,” and sought just over
$30,000 in damages for breach of contract.
¶8 A few weeks later, Manley responded to the complaint. It
did not file a motion to dismiss or other motion asserting any
pleading deficiencies; instead, it answered the Rokovitzes’
complaint and denied any liability under the Contract, and it filed
a counterclaim against the Rokovitzes, asserting that they had
“constantly . . . tried to micromanage” the construction of the
home, had “fired” certain subcontractors and hired some of their
own, and had made “many requests for changes” and “upgrades”
to the home, all of which had resulted in cost overruns and delays.
In addition, Manley alleged that many of the subcontractors
involved in the Rokovitz project now “refused to work with”
Manley on future projects “because of their experiences trying to
deal with” the Rokovitzes on this project. In the counterclaim,
Manley stated causes of action for (1) breach of contract, (2) unjust
enrichment, and (3) breach of the implied covenant of good faith
and fair dealing. 3 On its contract claim, Manley did not request
2. The Rokovitzes also included two of Manley’s principals as
named defendants in their lawsuit. But the trial court dismissed
the Rokovitzes’ claims against the individual defendants, and the
Rokovitzes do not appeal that decision.
3. Manley also included claims for defamation and intentional
interference with economic relations, but it later agreed to dismiss
those claims, which are not at issue in this appeal.
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any specific amount of damages, nor did it list specific damages
categories or items; instead, it simply requested “an amount not
less than $50,000” in damages.
¶9 A scheduling order was put into place that, as amended,
set July 31, 2020 as the deadline for completion of all fact
discovery. The parties exchanged initial disclosures and certain
supplementations, with each party providing additional
information about their claimed damages. In their initial
disclosures, the Rokovitzes indicated—as set forth in their
complaint—that they were seeking only about $30,000 in
damages. But over time, the Rokovitzes served several
supplemental disclosures, providing information about new
categories of damages and gradually increasing the amount they
intended to seek. In their third supplemental disclosures,
submitted just after the close of fact discovery but before the close
of expert discovery, the Rokovitzes indicated that they were
seeking a net judgment of $335,016.16, about ten times the amount
they had mentioned in their complaint. In particular, they
indicated their belief that they were entitled to over $27,000 of
“sweat equity” damages and to another $148,000 in damages for
“unfinished work” and “defective work.” And they identified
numerous witnesses and documents that they intended to use to
support these damages claims. Manley made no objection to the
Rokovitzes’ first, second, or third supplemental disclosures.
¶10 In April 2021, after the close of expert discovery, the
Rokovitzes tried one more time—a fourth time—to supplement
their initial disclosures to state a different damages amount and
to introduce a new damages category (for “delay damages and
loan costs”) and new supporting documents. This time, Manley
objected, asserting that these disclosures introduced new matters
into the litigation at a late date and would cause delay and
prejudice to Manley. The court sustained Manley’s objection,
concluding that the Rokovitzes’ fourth supplemental initial
disclosures were “untimely” and that the Rokovitzes had not
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demonstrated good cause or harmlessness. The court thus refused
to allow the Rokovitzes to make a fourth supplementation to their
initial disclosures.
¶11 As the matter approached the scheduled trial date, two
notable motions were filed. First, the Rokovitzes filed a motion to
amend their complaint to revise the “discovery tier”: in light of
the damages figure listed in their third supplemental disclosures,
they wanted to change the complaint from “Tier 1” to “Tier 3.”
Second, Manley filed a “motion in limine,” asserting that the
Rokovitzes were seeking “to prove claims that [were] not
specified in the complaint,” and asking the court to exclude the
Rokovitzes’ “documents and witness testimony on issues of
construction defects, overcharges, or other claims for damages not
specified in the complaint.” In opposing the motion in limine, the
Rokovitzes argued that the fact that they hadn’t mentioned some
of their later-disclosed damages categories in their complaint was
not problematic, because a complaint for damages “is sufficient if
it simply demands relief in the form of damages”; indeed, they
asserted that “[t]he amount of damages sought must be disclosed
in initial and supplemental disclosures” and “need not be
included in the complaint.”
¶12 The trial court entertained oral argument on both motions
in the same hearing, and it issued an oral ruling partially granting
both motions. The court allowed the Rokovitzes to change their
complaint from Tier 1 to Tier 2, but it refused to allow them to
change it to Tier 3, and it ruled that the Rokovitzes “may not assert
any claims for damages resulting from construction defects”
because “the original complaint did not assert damages from
construction defects.” For similar reasons, the court partially
granted Manley’s motion in limine, ruling that the Rokovitzes
could not “present at trial any documents or witness testimony
regarding . . . construction defects.” But the court denied Manley’s
motion in all other respects, stating that the Rokovitzes were “not
prevented from presenting documents or witness testimony
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regarding overcharges, incomplete work, or unperformed work.”
Following this ruling, the Rokovitzes filed an amended
complaint, labeled “Tier 2,” stating that they were seeking
damages up to $300,000.
¶13 The case then proceeded to a bench trial, which spanned
parts of six days in June and July 2022 and included testimony
from nineteen witnesses. The Rokovitzes took the position that
the Contract required Manley to construct “everything on the
[Plans]” that wasn’t expressly excluded in the Contract, and that
Manley was required to do that work for a “$443,800 fixed price”
plus the amounts set forth in the five written change orders.
Maurice Rokovitz testified that, in his view, this was “an allinclusive project” that “would include everything” for that price.
In addition, the Rokovitzes took the position that Manley had
failed to construct the home as depicted on the Plans and that
Manley had “omitted” certain work that the Rokovitzes believed
the Contract required it to perform. During the trial, the
Rokovitzes called multiple witnesses to testify about how much
they would charge to complete this unperformed, or omitted,
work. And they submitted a summary document—admitted as
“Exhibit 4” at trial—that tabulated all of this “omitted work,”
which the Rokovitzes claimed totaled just over $100,000. Finally,
the Rokovitzes presented evidence regarding the “sweat equity”
they put into the home. According to an exhibit admitted at trial,
the Rokovitzes performed work valued at just over $25,000. In
total, as they computed it, Manley owed them nearly $227,000—
the difference between the total amount the Rokovitzes had paid
Manley (some $572,000) and the amount the Rokovitzes believed
they were contractually required to pay (some $345,000) after
accounting for the omitted work and their sweat equity.
¶14 Manley took an entirely different position regarding
interpretation of the Contract and regarding amounts owed. In
Manley’s view, it was obligated only to construct the residence,
but nothing outside, and it was obligated to do so as per the Cost
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Breakdown that the parties had attached as Exhibit A to the
Contract. And Manley believed that any additions to the work
required by the terms of the Contract needed to be agreed upon
by both parties and reflected in a written change order. Manley
presented evidence at trial—through its principal’s testimony and
that of several subcontractors—indicating that Maurice Rokovitz
exercised an unusual amount of control over the details of the
project, often communicating directly with subcontractors and
asking them—without a written change order and without
Manley’s agreement—to perform additional or more expensive
work than originally contemplated. Also, Maurice Rokovitz
acknowledged in his testimony that the Rokovitzes had paid
Manley only a portion of its 10% management fee, an item that
was listed on the Cost Breakdown.
¶15 At the conclusion of the trial, the court took the matter
under advisement, and several weeks later it issued a written
ruling containing findings of fact and conclusions of law. In it, the
court looked to the Rokovitzes’ complaint to determine the scope
of the damages available to them. Using the complaint as its
template, the court considered the merits of only those discrete
damages items that it believed the Rokovitzes had specifically
enumerated in their complaint; it ruled that “the other items listed
on [the Rokovitzes’] Exhibit 4” and discussed at trial—including
most of their claimed “omitted work”—“were not properly
pleaded in the Amended Complaint in a way that gave [Manley]
fair notice of the nature and basis of the claim asserted and a
general indication of the type of litigation involved.” With regard
to the claims the court believed had been properly pleaded, the
court found that the Rokovitzes, on their affirmative claims, were
entitled to recover $1,810, which included $1,160 for “sweat
equity” for tree removal and $650 for a necessary repair item.
¶16 In determining the amount of damages to which Manley
was entitled on its counterclaim, however, the court took a
different approach: it looked to the Contract and to the evidence
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Manley introduced at trial, and not to the specifics (or lack of
same) of Manley’s pleading. In particular, the court found that the
Rokovitzes had admitted, during trial, that they did not pay a
significant part—more than $25,000—of the management fee to
which Manley was entitled. The court stated generally that there
was “no dispute that [the Cost Breakdown] also sets out the
anticipated cost breakdown for the construction of the Rokovitz
home.” Reasoning from this premise, the court determined that
the Rokovitzes were required to pay the management fee because
that fee was specifically listed in the Cost Breakdown. The court
also determined that Manley was entitled to recover two other
minor items of damage. In total, the court concluded that Manley
was entitled to recover $28,634.94 on its counterclaim.
¶17 At no point, however, did the court directly engage with
the overarching contractual dispute between the parties, namely,
whether the Cost Breakdown limits the scope of Manley’s
required work, or whether the Contract required Manley to build
the home as per the Plans, regardless of the ultimate cost. In
particular, the court did not expressly analyze whether the
Contract might be ambiguous on that point or, if so, what the
extrinsic evidence showed regarding the Contract’s meaning.
¶18 The court offset the Rokovitzes’ damages against Manley’s
damages, and it determined that Manley was entitled to a net
judgment of $26,824.94. Later, after adding interest, the court
entered a total judgment in Manley’s favor in the amount of
$38,098.76.
¶19 After entry of judgment, the Rokovitzes filed a motion
asking the court to amend its findings and the judgment. In that
motion, the Rokovitzes asserted that the court had “failed to
account for the Rokovitzes’ significant overpayment” above the
price indicated in the Contract. They also argued that the court
had erred by refusing to consider—on pleading grounds—many
of the Rokovitzes’ claims for “omitted work.” And they claimed
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that the court had failed to award them “sweat equity” damages
for certain items. After holding oral argument, the court made an
oral ruling—later memorialized in a two-page written order—
denying the motion. In that order, the court again resorted to a
review of the Rokovitzes’ complaint, stating that “[t]he Amended
Complaint does not provide notice of a claim against [Manley] for
the amounts above the alleged ‘total cost’ of” the Contract. But the
court also ruled that the Rokovitzes were not “entitled to recover
those amounts” in any event, because “the burden to provide
change orders was mutually the responsibility of [the Rokovitzes]
and Manley,” and the Rokovitzes waived their “right to receive
change orders” by “request[ing] extra work” or “changes without
consulting or notifying Manley.” In short, the court ruled that the
Rokovitzes were “responsible for upgrades causing increased
costs” and that they “retained the benefit of those upgrades.”
ISSUES AND STANDARDS OF REVIEW
¶20 The Rokovitzes now appeal, and they challenge several of
the trial court’s rulings. First, they take issue with the court’s
dismissal of—or refusal to award—two components of their
claimed breach of contract damages on the basis that those
damages weren’t properly pleaded. This issue is largely one of
rule interpretation, and on such claims we afford no deference to
the trial court’s rulings, reviewing them for correctness. Griffin v.
Snow Christensen & Martineau, 2020 UT 33, ¶ 7,
467 P.3d 833 (“We
review a [trial] court’s interpretation of our rules of civil
procedure for correctness.” (quotation simplified)); see also Zubiate
v. American Family Ins. Co.,
2022 UT App 144, ¶ 9,
524 P.3d 148
(reviewing the dismissal of a complaint for correctness).
¶21 Second, the Rokovitzes take issue with the trial court’s (at
most implicit) ruling that Manley’s obligations under the Contract
were limited to those items listed in the Cost Breakdown. Our
standard of review of a court’s contractual interpretation rulings
varies depending on which stage of the analysis we are reviewing.
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A decision about whether a contract is ambiguous is reviewed for
correctness. See Watkins v. Ford, 2013 UT 31, ¶ 19,
304 P.3d 841
(“Whether a contract is ambiguous is a question of law, which we
review for correctness.” (quotation simplified)). An interpretation
of an unambiguous contract is also reviewed for correctness. See
Brady v. Park,
2019 UT 16, ¶ 29,
445 P.3d 395. “But if a contract
term is ambiguous, [trial] courts should consider extrinsic
evidence to resolve the ambiguity,” and a court’s “determination
of the parties’ intent after considering extrinsic evidence . . . is a
factual determination to which we grant deference” and “should
be overturned only if clearly erroneous.”
Id. 4
ANALYSIS
I. Dismissal of “Unpled” Damages
¶22 The Rokovitzes’ first challenge concerns the trial court’s
dismissal of—or failure to award—two components of their
claimed damages, on the basis that such damages were not
identified and specifically pleaded in the Rokovitzes’ complaint.
First, they take issue with the court’s pretrial ruling, made in
connection with Manley’s motion in limine, refusing to allow the
Rokovitzes to “assert any claims for damages resulting from
construction defects” because their “original complaint did not
assert damages from construction defects.” Second, they take
issue with the court’s post-trial ruling refusing to award most of
their claimed damages for “omitted work” because those
4. The Rokovitzes raise two other challenges that are related to
their overarching complaint about the trial court’s interpretation
of the Contract: they assert that the court “failed to account for”
their “significant overpayment” and that the court “erred in
concluding that [they] waived their right to require signed change
orders.” But because we remand this case for clarification on the
overarching contractual interpretation issue, we need not delve,
at this time, into the specifics of these related challenges.
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damages “were not properly pled” in the Rokovitzes’ complaint.
The Rokovitzes assign error to these rulings, asserting that they
were not required to specifically plead, in their complaint,
categories and amounts of damages related to their breach of
contract claim, and asserting that they properly disclosed these
categories and amounts of damages in their supplemental
disclosures. We agree with the Rokovitzes that the court’s rulings
were erroneous.
¶23 As we read the record, the source of the court’s error was
its apparent misunderstanding of the different requirements
imposed by, on the one hand, the rules governing the pleading of
a damages claim and, on the other hand, the rules governing the
initial and supplemental disclosure of information relevant to a
damages claim. Generally speaking, the rules governing the
pleading of a damages claim do not require all that much, while
the rules governing the disclosure of relevant damages
information require a great deal more. As we explain, the
Rokovitzes complied with both the relevant pleading
requirements as well as the relevant disclosure requirements, and
thus there existed no basis for pleading- or disclosure-related
dismissal of these components of their claimed damages
associated with their breach of contract cause of action.
¶24 The relevant pleading requirements are found in rule 8 of
the Utah Rules of Civil Procedure. Utah, like most jurisdictions,
has adopted principles of “notice pleading,” see Mack v. Utah State
Dep’t of Com., 2009 UT 47, ¶ 17,
221 P.3d 194, and under our rules
all that is required at the pleading stage is “a short and plain . . .
statement of the claim showing that the party is entitled to relief”
and a “demand for judgment for specified relief,” Utah R. Civ. P.
8(a). Moreover, when considering the adequacy of pleadings,
“courts are to liberally construe both rules 8 and 12 to favor
finding a pleading sufficient.” Mack,
2009 UT 47, ¶ 17. “Indeed,
even if a complaint is vague, inartfully drafted, a bare-bones
outline or not a model of specificity, the complaint may still be
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adequate so long as it can reasonably be read as supporting a
claim for relief, giving the defendant notice of that claim.” Zubiate
v. American Family Ins. Co., 2022 UT App 144, ¶ 14,
524 P.3d 148
(quotation simplified). “A plaintiff’s complaint will be deemed
adequate under this standard as long as the defendant knows
what is being claimed and how to defend against it.” Id. ¶ 11
(quotation simplified); see also Southern Utah Wilderness All. v. Kane
County Comm’n,
2021 UT 7, ¶ 51,
484 P.3d 1146 (“Pleadings are
sufficient where they give fair notice of the nature and basis of the
claim asserted and a general indication of the type of litigation
involved.” (quotation simplified)).
¶25 Rule 8 expressly does not require parties to plead a specific
amount of damages. See Utah R. Civ. P. 8(a) (referring to
complaints that do “not plead an amount” of damages). Indeed,
there are only two basic pleading requirements when it comes to
damages. First, a party must indicate that it is seeking damages as
a general category of relief (as opposed to another kind of relief,
like an injunction or declaration). See
id. (requiring a “demand for
judgment for specified relief”). And second, the party must
specify which discovery tier the case fits into, an exercise that
requires the party to at least implicitly estimate the amount of
damages it is seeking. See
id. (“A party who claims damages but
does not plead an amount must plead that the damages are such
as to qualify for a specified tier defined by Rule 26(c)(3).”).
¶26 The Rokovitzes’ complaints—both their initial one and
their amended one—met these basic requirements. In each
complaint, they indicated that they were seeking monetary
damages as one form of requested relief for the breaches of
contract they believed Manley had committed. And in each
complaint, they specified which discovery tier the case fell into; in
their initial complaint, they called for Tier 1 damages, and in their
amended complaint—after the court refused to allow them to
request Tier 3 damages—they called for Tier 2 damages. Nothing
more is required, and there was therefore no basis for the court to
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dismiss—or refuse to award—particular components of damages
simply because they were not listed or enumerated in the
Rokovitzes’ complaints.
¶27 Simply put, rule 8 does not require parties to include
additional details in their complaint regarding categories or
amounts of damages. And parties should not be penalized—as
the Rokovitzes eventually were here—for attempting to include
in their complaints additional (but not required) information
about the damages they seek. For instance, in this case the
Rokovitzes, in their original complaint, offered a specific damages
amount, including several categories of damages, and showed
their work regarding computation of that amount. Such
information should be viewed as potentially helpful bonus
material that parties ought not be discouraged from providing.
And rulings like the one the court made here—limiting the
Rokovitzes to precisely those types and categories of damages
specifically enumerated in the complaint, even though they
weren’t required to list any and even though they indicated that
the listed categories were “among other things”—will certainly
have the effect of discouraging parties from providing any more
than the bare minimum required.
¶28 There is, of course, a time and a place where the rules
require parties to get specific about the damages they seek: during
the disclosure and discovery phase of the litigation. While the
pleading-related rules are quite liberal and don’t require all that
much, the disclosure-related rules, by contrast, are strict and
require parties, at the risk of stiff penalties for noncompliance, to
provide significant information. Those rules “require parties, at
the outset of their involvement in litigation, to provide certain
disclosures to their litigation opponents,” and parties “must do so
without waiting for a discovery request.” Butler v. Mediaport Ent.
Inc., 2022 UT App 37, ¶ 20,
508 P.3d 619 (quotation simplified); see
also Utah R. Civ. P. 26(a)(1).
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¶29 With respect to damages, the disclosure rules require
parties to provide their opponents with “a computation of any
damages claimed and a copy of all discoverable documents or
evidentiary material on which such computation is based.” Utah
R. Civ. P. 26(a)(1)(C). The rules recognize “that parties may not
know, at the outset of a case, exactly what their damages amount
to, and that damages often require additional discovery.” Butler,
2022 UT App 37, ¶ 20 (quotation simplified). But while the rules
may not require disclosure of “a to-the-penny calculation” at the
outset of every case, they do “require, at a minimum, a disclosure
that damages are in fact being claimed, the categories of any such
damages, and a description of the method by which the party
intends to compute those damages.” Id. ¶¶ 20, 22. Moreover, the
rules require parties to “timely serve” updated disclosure
information if they “learn[] that a disclosure or response is
incomplete or incorrect in some important way.” See Utah R. Civ.
P. 26(d)(5). Thus, “parties who do not possess enough information
at the outset of a case to provide complete damages disclosures
must supplement those disclosures as soon as they discover the
information needed to complete the computation.” Butler,
2022
UT App 37, ¶ 21.
¶30 The penalties for noncompliance with disclosure
requirements are significant: “If a party fails to disclose or to
supplement timely a disclosure, that party may not use the
undisclosed witness, document, or material at any hearing or trial
unless the failure is harmless or the party shows good cause for
the failure.” Utah R. Civ. P. 26(d)(4). These penalties are
“automatic and mandatory when the prerequisites are met,” and
courts “should, upon request, presumptively impose sanctions
for noncompliance unless the party seeking relief from disclosure
requirements can demonstrate that its noncompliance was
harmless or excused by good cause.” Bailey v. Bailey,
2024 UT App
51, ¶ 25,
548 P.3d 519 (quotation simplified).
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¶31 In this case, the Rokovitzes timely made their initial
disclosures, and then they supplemented those disclosures three
times without drawing any objection from Manley. Those
disclosures—especially the third supplemental disclosures—
indicated a significant increase in the amount of damages the
Rokovitzes were seeking: while their initial disclosures indicated
that they were seeking only about $30,000 in damages, the third
supplemental disclosures indicated a tenfold increase, to
$335,016.16. And the supplemental disclosures contained a
detailed breakdown of how that figure was derived, including a
list of various categories of claimed damages, such as “sweat
equity,” “unfinished work,” and “defective work.” Those
disclosures also referred Manley to over 1,200 pages of documents
that the Rokovitzes asserted supported their damages
calculations. And as noted, Manley never lodged an objection to
the Rokovitzes’ third supplemental disclosures, whether on the
basis of timeliness or as to their substance. Manley certainly knew
how to do so, as evidenced by its successful objection to the
Rokovitzes’ later (fourth) attempt to supplement their damages
disclosures. Thus, the damages claimed in the Rokovitzes’ third
supplemental disclosures—including damages for omitted work
and construction defects—must be considered timely and
properly disclosed; indeed, the trial court appeared to implicitly
acknowledge the propriety of the Rokovitzes’ third supplemental
disclosures in its motion in limine ruling, in which it determined
that the Rokovitzes would not be “prevented from presenting
documents or witness testimony [at trial] regarding overcharges,
incomplete work, or unperformed work.”
¶32 With these background facts and principles in mind, it
becomes apparent that there exists no procedural basis for the
court’s ruling dismissing—or refusing to award—the Rokovitzes’
claims for construction defect and omitted work damages. The
Rokovitzes sufficiently pleaded damages for breach of contract in
their two complaints; those documents did not need to contain
specific details about the various categories of contract damages
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the Rokovitzes might seek, such as construction defect damages
or omitted work damages. And later, the Rokovitzes sufficiently
disclosed those specific categories of damages to Manley, along
with amounts, computations, and supporting documentation.
¶33 Those two specific components of the Rokovitzes’ breach
of contract claim may or may not have merit, on their substance.
But the trial court erred by dismissing—or refusing to award—
them on procedural grounds related to the manner in which the
Rokovitzes had pleaded their damages in their complaints. We
therefore reverse the trial court’s rulings to that effect, vacate the
court’s judgment, and remand the matter to the trial court so that
those components of the Rokovitzes’ breach of contract claim
might be evaluated on their merits.5
II. Contractual Interpretation
¶34 The Rokovitzes’ second challenge is to the trial court’s
ruling—certainly not made expressly, but in the Rokovitzes’ view
made implicitly—that “the scope of work under [the Contract]
was limited to the specific items identified in the attached Cost
Breakdown.” To the extent that the court made such a ruling, its
basis is far from apparent, and because of that we are unsure
which standard of review to apply to the court’s ruling.
5. Manley raises several arguments that were not discussed or
ruled upon at the trial court level, and it invites us to affirm the
trial court’s rulings on one of these proffered alternative grounds.
For instance, it raises equitable estoppel, unclean hands, and the
first-breach rule. While it is true that we have the discretion to
affirm a trial court’s decision “on any legal ground or theory
apparent on the record,” see Bailey v. Bayles, 2002 UT 58, ¶ 10,
52
P.3d 1158 (quotation simplified), we decline to exercise that
discretion here. Of course, the parties remain free to raise these
and other legal arguments on remand.
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Accordingly, we are unable to effectively review that ruling, and
we must remand the matter to the trial court for clarification.
¶35 In this case, the parties came to trial espousing
diametrically opposed views regarding the scope of the work that
the Contract required Manley to perform. The Rokovitzes
believed that the Contract required Manley to build their home
according to the Plans, except the items specifically excluded in
the Contract, for a flat fee of $443,800 plus any amounts added by
written and agreed-upon change orders. Manley, by contrast,
believed that the Contract required it to perform the work
specifically set forth in the Cost Breakdown, attached to the
Contract as Exhibit A, plus any work added by written and
agreed-upon change orders. Thus, one of the chief foundational
tasks that the trial court was called upon to undertake in this case
was to decide which interpretation of the Contract was correct.
¶36 In a situation like this, courts should begin the analysis by
assessing whether the relevant instrument is ambiguous; the
answer to that question will inform the remainder of the court’s
analysis, and it will also inform our standard of review on appeal.
“If the language within the four corners of the contract is
unambiguous, the parties’ intentions are determined from the
plain meaning of the contractual language, and the contract may
be interpreted as a matter of law.” Brady v. Park, 2019 UT 16, ¶ 53,
445 P.3d 395 (quotation simplified); see also Ocean 18 LLC v.
Overage Refund Specialists LLC (In re Excess Proceeds from Foreclosure
of 1107 Snowberry St.),
2020 UT App 54, ¶ 22,
474 P.3d 481 (“In
many cases, we need look no further than the plain language of
the contract, because that language may unambiguously tell us
what the parties intended.”). “But where a contractual term or
provision is ambiguous as to what the parties intended, the
question becomes a question of fact to be determined by the factfinder.” Brady,
2019 UT 16, ¶ 53. And in that situation, the trial
court must consider extrinsic evidence of the parties’ intentions
and must make an ultimate factual finding, based on that
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evidence, about what the contract means. See Mind & Motion Utah
Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 24,
367 P.3d 994 (stating
that “if the parties’ intentions cannot be determined from the face
of the contract,” courts must move to a second step and “extrinsic
evidence must be looked to in order to determine the intentions
of the parties” (quotation simplified)). And we have already noted
that we review a trial court’s interpretation of an unambiguous
contract for correctness, but we review deferentially a trial court’s
findings regarding the meaning of an ambiguous contract. See
supra ¶ 21.
¶37 In this case, the trial court never engaged with the question
of whether the Contract’s scope-of-work provisions are
ambiguous. We simply do not know what the trial court thought
on that point. And this is problematic from an appellate
procedure perspective, because without a ruling from the trial
court on ambiguity, we are unable to ascertain the correct
standard of review, which in turn renders us unable to
meaningfully review the court’s ultimate interpretation of the
Contract. We must therefore remand the case to the trial court so
that the court can provide additional input regarding its
interpretation of the Contract. And the court should begin that
analysis by making an express determination about whether the
Contract’s scope-of-work provisions are ambiguous.
¶38 “A contract is facially ambiguous if its terms are capable of
more than one reasonable interpretation because of uncertain
meanings of terms, missing terms, or other facial deficiencies.”
Mind & Motion Utah Invs.,
2016 UT 6, ¶ 24, (quotation simplified).
A “reasonable interpretation” is one “that cannot be ruled out,
after considering the natural meaning of the words in the contract
provision in context of the contract as a whole, as one the parties
could have reasonably intended.” Brady,
2019 UT 16, ¶ 55.
Crucially, ambiguity is present only if both proffered
interpretations of the contract’s language are “tenable” and in
keeping with the contract’s language. See R & R Energies v. Mother
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Rokovitz v. Manley Construction
Earth Indus., 936 P.2d 1068, 1074 (Utah 1997) (stating that a
contract “is not necessarily ambiguous just because one party
gives [a] provision a different meaning than another party does,”
but instead, “the contrary positions of the parties must each be
tenable” (quotation simplified)); see also Brady,
2019 UT 16, ¶ 55
(stating that if “either of the competing interpretations could
reasonably have been what the parties intended when they
entered into the contract, then the contract is ambiguous”). A
contract containing terms that are “in irreconcilable conflict” and
cannot be harmonized is ambiguous. See American Bonding Co. v.
Nelson,
763 P.2d 814, 816 (Utah Ct. App. 1988). On remand, the
trial court should consider whether the competing interpretations
proffered by each side are tenable and, concomitantly, whether
the Contract is ambiguous.
¶39 If the court determines that the Contract’s scope-of-work
provisions are not ambiguous, it should interpret the Contract
based on its plain language. Any such ruling would then be
reviewed for correctness, without deference to the trial court. But
if the court determines that the Contract’s scope-of-work
provisions are ambiguous, then it must consider extrinsic
evidence of the parties’ intentions, including the negotiators’
testimony about what they meant, and including course-ofdealing evidence, contemporaneous documents, and other forms
of relevant evidence. If necessary, the court should make
credibility findings. And based on all that evidence, it should then
make findings about what the Contract’s scope-of-work
provisions require; any such ruling would then be reviewed
deferentially. Either way, though, the court should make an
express ruling regarding interpretation of the Contract,
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something not contained in either of its post-trial rulings. 6 In
particular, the court should indicate whether it believes the
Contract required Manley to construct the home as per the Plans
for a flat fee, as the Rokovitzes assert, or whether the Contract
required Manley to perform only those tasks enumerated in the
Cost Breakdown.
CONCLUSION
¶40 The trial court erred by dismissing—or refusing to award
damages for—certain components of the Rokovitzes’ claim for
breach of contract, based on its belief that those damages were not
properly pleaded. The Rokovitzes’ pleadings complied with rule
8’s lenient requirements, and the Rokovitzes later disclosed—
without objection—the very components of damages that the
court refused to consider. We therefore reverse the court’s rulings
regarding these damages items and, on this basis alone, we vacate
6. The court arguably made an implicit ruling in this regard:
reading between the lines of the court’s first post-trial ruling, one
might draw an inference that the court aligned itself with
Manley’s interpretation of the Contract. The court made many
references to the Cost Breakdown and appeared, at times, to view
that document as at least a basis for determining the scope of
Manley’s obligations under the Contract; for instance, it rejected
some of the Rokovitzes’ “sweat equity” items by stating that they
were “not a budget item included in the Cost Breakdown” and
therefore were “not part of the $443,800 contract price.” And the
Rokovitzes, in their appellate briefs, operate from the assumption
that the court did in fact “conclud[e] that the scope of work is
limited to the specific items identified in” the Cost Breakdown.
But as noted, the court did not ever make an express ruling on that
point, a deficiency that clouds the standard of review and
prevents us from meaningfully reviewing any such decision.
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the court’s judgment and remand the case to the trial court so that
it can consider these damages components on their merits.
¶41 On remand, the court should also deal directly with the
overarching contract interpretation dispute between the parties,
and it should make express rulings about whether the Contract’s
scope-of-work provisions are ambiguous and about which of the
two competing interpretations of those provisions is correct.
¶42 Vacated and remanded.
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