Howick v. Salt Lake City Corp. , 424 P.3d 841 ( 2018 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 20
IN THE
SUPREME COURT OF THE STATE OF UTAH
JODI HOWICK,
Appellant,
v.
SALT LAKE CITY CORPORATION,
Appellee.
No. 20150738
Filed May 25, 2018
On Direct Appeal
Third District, Salt Lake
The Honorable Richard D. McKelvie
No. 090913336
Attorneys:
Erik Strindberg, Salt Lake City, for appellant
W. Mark Gavre, Adam E. Weinacker, Salt Lake City, for appellee
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
JUSTICE PEARCE, and JUDGE DIREDA joined.
Due to her retirement, JUSTICE DURHAM did not participate herein;
DISTRICT COURT JUDGE MICHAEL D. DIREDA sat.
JUSTICE PETERSEN became a member of the Court on
November 17, 2017, after oral argument in this matter and
accordingly did not participate.
HOWICK v. SALT LAKE CITY CORP.
Opinion of the Court
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 In this case, the district court ruled that Jodi Howick, a
municipal employee, had forfeited her merit protection status
through contract, waiver, and estoppel. Ms. Howick argues on
appeal, along with other claims, that our precedent allowing a
contract in conflict with a statute to survive, provided it does not
violate public policy, does not extend to contracts involving
government employees. This is an important and difficult question,
but it is one we cannot reach here. We affirm without reaching the
merits of Ms. Howick’s claims because she fails to carry her burden
of challenging all of the district court’s rulings—each of which was
an independent basis for summary judgment.
Background
¶ 2 Jodi Howick was employed by Salt Lake City as an attorney.
For the first six years that she worked for the City, she enjoyed merit
employee status. In 1998, she accepted a promotion that came with a
significant raise, but the City required Ms. Howick to sign a
disclaimer stating that “I understand that, if I am appointed by the
Salt Lake City Attorney to the ‘Appointed Senior City Attorney’
position, my employment will be at-will and will be for no fixed
length of time.” Ms. Howick accepted the position at the beginning
of July 1998, but she did not sign the disclaimer until later that
month.
¶ 3 When Ms. Howick’s employment was terminated in 2007,
she attempted to appeal the termination to the City’s employee
review board, arguing that she was entitled to merit status
protections, but was told the board lacked jurisdiction over at-will
employees. She then initiated this declaratory action in the district
court to determine whether she was a merit or an at-will employee.
¶ 4 The district court concluded that she was a merit employee.
The City appealed the district court’s ruling to the Utah Court of
Appeals, which agreed that she was a merit employee, but held that
her merit status was subject to forfeiture through contract, waiver, or
estoppel.1 The court of appeals remanded the case to the district
court for factual findings as to whether Ms. Howick had, in fact,
_____________________________________________________________
1 Howick v. Salt Lake City Corp., 2013 UT App 218, ¶¶ 29–46, 310
P.3d 1220.
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Opinion of the Court
forfeited her merit status.2 On remand, the district court concluded
on summary judgment that “contractually, [she] was an at-will
employee at the time of her termination,” that she was “equitably
estopped from claiming she was a merit employee at the time of her
termination,” and that she “undoubtedly knew of her rights [as a
merit employee] and chose to waive them.” Ms. Howick filed a
timely appeal.
Standard of Review
¶ 5 Ms. Howick contends that the district court incorrectly held
that she was contractually an at-will employee. But she fails to
address the court’s ruling that, at the time the City terminated her
employment, she was equitably estopped from claiming merit
employment. “An appellate court reviews a trial court’s ‘legal
conclusions and ultimate grant or denial of summary judgment’ for
correctness and views ‘the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.’”3 But
we “will not reverse a ruling of the district court that rests on
independent alternative grounds where the appellant challenges
only one of those grounds.”4
Analysis
¶ 6 The court of appeals held that Ms. Howick was a merit
status employee, but concluded that as a merit status employee she
could “contract[] away her merit protection.”5 It remanded the case
to the district court, instructing it to resolve whether Ms. Howick
had forfeited her merit status protections through contract, waiver,
or estoppel.6 Bound by the mandate of the appellate court,7 the
district court held that Ms. Howick had forfeited her merit status
_____________________________________________________________
2 Id. ¶¶ 1, 44.
3 Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations omitted).
4 Gilbert v. Utah State Bar, 2016 UT 32, ¶ 24, 379 P.3d 1247.
5Howick v. Salt Lake City Corp., 2013 UT App 218, ¶ 43, 310 P.3d
1220.
6 Id. ¶ 44.
7 See Utah Dep’t of Transp. v. Ivers, 2009 UT 56, ¶ 8, 218 P.3d 583
(“The mandate of an appellate court binds the district court and the
parties and affords the district court no discretion whether to comply
with that mandate.”).
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HOWICK v. SALT LAKE CITY CORP.
Opinion of the Court
protections through contract, waiver, and estoppel. Ms. Howick
argues that both the court of appeals and the district court
incorrectly determined that the disclaimer she signed in July 1998
met the elements of contract. Only the final judgment of the district
court is currently before us on appeal.8 Although Ms. Howick raises
some important questions concerning the court of appeals’ decision,
because Ms. Howick has failed to challenge all grounds for the
district court’s ruling, we do not reach the merits of her arguments
and affirm the ruling of the district court.
I. Ms. Howick’s Arguments
¶ 7 The court of appeals held that Ms. Howick was a merit
status employee, but that “the Merit Protection Statute did not
prohibit [her] from contracting away her merit protection.”9 In
reaching this holding, the court relied on Ockey v. Lehmer,10 first for
general contract principles and then for our two-factor test to
determine whether a contract was against public policy.11 In Ockey,
we noted that “[p]eople are generally free to bind themselves
pursuant to any contract, barring such things as illegality of subject
matter or legal incapacity.”12 And we held that “[f]or a contract to be
void on the basis of public policy, ‘there must be a showing free from
doubt that the contract is against public policy.’”13 In order to
determine whether a contract is against public policy, the Ockey
court considered two factors: whether a statute declared such a
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8 Ms. Howick argues on appeal that we should revisit the court of
appeals’ legal conclusions in Howick, 2013 UT App 218. Under our
law of the case precedent, a legal holding in a previous appeal is
typically binding in subsequent stages of the litigation. This would
be an issue of first impression—whether under our law of the case
precedent we can review a court of appeals’ opinion from earlier
stages of litigation that is not before us for certiorari review. But
because Ms. Howick has failed to challenge all independent grounds
for reversal in the district court’s ruling, we will not address this
question here.
9Howick v. Salt Lake City Corp., 2013 UT App 218, ¶ 43, 310 P.3d
1220.
10 2008 UT 37, 189 P.3d 51.
11 Howick, 2013 UT App 218, ¶ 34.
12 Ockey, 2008 UT 37, ¶ 21 n.12 (citation omitted).
13 Id. ¶ 21 (citation omitted).
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Opinion of the Court
contract “absolutely void as against public policy”14 and whether
“the contract harmed the public as a whole—not just an
individual.”15
¶ 8 In the case now before us, the court of appeals held that
“neither Ockey factor is satisfied here”—in other words, “[t]he Merit
Protection Statute does not specifically declare contrary contracts to
be void, nor does this case present a showing free from doubt that
the contract offends public policy.”16 More specifically, the court
concluded that Ms. Howick had the burden of “ma[king] ‘a showing
free from doubt that the contract is against public policy,’” but failed
to carry it.17 So the court concluded that the City’s contract with Ms.
Howick was not void and that “the Merit Protection Statute does not
foreclose” contract, waiver, or estoppel defenses.18 Ms. Howick
claims this was error.
¶ 9 Specifically, she asserts that the court of appeals incorrectly
relied on Ockey because “Ockey does not address the contracts
involving government employees or contracts that contravene the
plain language of the statute.” She also claims that the court of
appeals’ reliance on Ockey in this case was misplaced because the
“statute [that] governed the relationship between the City and Ms.
Howick . . . specifically granted her and other staff attorneys merit
protection . . . and could not be circumvented.” This second assertion
suggests the Ms. Howick believes that the Merit Protection Statute
preempts any finding of waiver in caselaw.
¶ 10 We have generally recognized that “an enforceable contract
can coexist with a statute that may conflict with its terms so long as
the contract does not offend the public policy to which the statute
gives voice.”19 But we have not addressed whether a government
agency may contract with an employee in violation of statutory
requirements put in place for that employee’s protection. And we
have not addressed who bears the burden of making “a showing free
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14 Id. ¶ 24.
15 Id. ¶ 23.
16 Howick, 2013 UT App 218, ¶ 43.
17 Id. ¶ 42 (citation omitted).
18 Id. ¶ 44.
19 Lee v. Thorpe, 2006 UT 66, ¶ 22, 147 P.3d 443.
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HOWICK v. SALT LAKE CITY CORP.
Opinion of the Court
from doubt that the contract is against public policy.”20 It could
certainly be argued that in a case such as this one an employee
should not be required to make such a showing. Furthermore, we
have not addressed whether defenses such as waiver and estoppel
are available to parties who have contracted in violation of a statute,
nor have we addressed whether the Merit Protection Statute
preempts the possibility of individual waiver. These are difficult and
important questions. But we do not reach them today because Ms.
Howick failed to challenge all of the district court’s rulings on
appeal.
II. Ms. Howick Failed to Challenge All of the District Court’s
Independent Grounds for Reversal
¶ 11 “Our rules of appellate procedure place the burden on the
appellant to identify and brief any asserted grounds for reversal of
the decision below.”21 “[A]n appellant’s failure to ‘challenge a final
order of the lower court . . . place[s]’ that final order ‘beyond the
reach of further review.’”22 This court “will not reverse a ruling of
the district court that rests on independent alternative grounds
where the appellant challenges only one of those grounds.”23
¶ 12 The court of appeals remanded Ms. Howick’s case to the
district court to determine whether she had forfeited her merit
protection status through “contract, waiver, or estoppel.”24 The
district court followed the court of appeals’ mandate and held that
Ms. Howick had forfeited her merit protection status through
contract, waiver, and estoppel. It accordingly concluded that “Ms.
Howick was an at-will employee at the time of her termination.”
¶ 13 In her opening brief on appeal, Ms. Howick contends that
“the Disclaimer did not make Ms. Howick an at-will employee and is
not enforceable.” And although she argues that “[s]uch a contract is
a necessary under pinning [sic] for all three of the City’s defenses,”
she does not further address the district court’s holding of estoppel
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20 See Ockey, 2008 UT 37, ¶ 21 (citation omitted).
21 Kendall v. Olsen, 2017 UT 38, ¶ 12, --- P.3d ---.
22 Id. (second and third alterations in original) (citation omitted).
23 Gilbert v. Utah State Bar, 2016 UT 32, ¶ 24, 379 P.3d 1247.
24 Howick v. Salt Lake City Corp., 2013 UT App 218, ¶ 45, 310 P.3d
1220.
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Opinion of the Court
and only touches on the district court’s ruling of waiver.25 Instead,
she makes three arguments that sound in contract: that the
disclaimer was not supported by consideration; that the creation of
an at-will position would have violated then-existing law; and that
“the City never placed Ms. Howick in an at-will position,” but rather
the promotion she accepted was a merit position. Each of these
arguments speaks to the district court’s holding that Ms. Howick
was “contractually” an at-will employee, but none address the
district court’s ruling on estoppel.
¶ 14 Although equitable estoppel can be a defense to a contract
claim, it requires proof of three elements unrelated to the elements of
contract: (1) “a statement, admission, act, or failure to act by one
party inconsistent with a claim later asserted”; (2) “reasonable action
or inaction by the other party taken or not taken on the basis of the
first party’s statement, admission, act or failure to act”; and (3)
“injury to the second party that would result from allowing the first
party to contradict or repudiate such statement, admission, act, or
failure to act.”26 In her opening brief, Ms. Howick does not challenge
the district court’s finding that she is equitably estopped from
claiming merit status. In her reply brief, she argues that “the
Disclaimer’s text shows that Ms. Howick did not represent anything
to the City, and the City cannot show it relied on the Disclaimer
since it had already promoted Ms. Howick and given her a raise.”
But this argument comes too late. “We have consistently held that
‘issues raised by an appellant in the reply brief that were not
presented in the opening brief are considered waived and will not be
considered.’”27
Conclusion
¶ 15 It is possible that Ms. Howick is correct—Ockey may not
extend to contracts with government employees or to contracts in
direct violation of a statute, or that the Merit Protection Statute
preempts the possibility of individual waiver of its terms. But
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25We note that Ms. Howick does not argue whether she waived
her merit protection status. She only argues that the disclaimer she
signed does not constitute a contract and requires us to infer that she
accordingly did not waive her rights.
26 Youngblood v. Auto-Owners Ins. Co., 2007 UT 28, ¶ 14, 158 P.3d
1088 (citation omitted).
27 Kendall, 2017 UT 38, ¶ 13 (citation omitted).
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Opinion of the Court
because she failed to challenge the district court’s ruling that she was
equitably estopped from claiming merit status, we must affirm.
8