2015 UT App 63

_________________________________________________________

THE UTAH COURT OF APPEALS

NEIL ANDERSEN, ET AL.,

1

Plaintiffs and Appellants,

v.

DEPARTMENT OF CORRECTIONS,

Defendant and Appellee.

Memorandum Decision

No. 20131135-CA

Filed March 19, 2015

Third District Court, Salt Lake Department

The Honorable L.A. Dever

No. 120904405

Lauren I. Scholnick and Matt W. Harrison, 

Attorneys for Appellants

Sean D. Reyes and Peggy E. Stone, 

Attorneys for Appellee

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in

which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

concurred.

DAVIS, Judge:

¶1 Plaintiffs appealthedistrict court’s ruling granting summary

judgment in favor of the Utah Department of Corrections (UDOC)

on Plaintiffs’ breach of contract claims. We affirm.

¶2 Plaintiffs are current and former transportation-unit

correctional officers. In 1996, UDOC entered into an agreement

1. The parties on appeal are not limited to those listed but also

include other parties whose names appear on the notice of appeal

or who have otherwise entered appearances in this court.
Andersen v. Department of Corrections

with correctional officers who worked or anticipated working in

the transportation unit. The agreement established a pay incentive

amounting to a three-step pay-grade increase for transportation

officers. This agreement was modified in 2000 following a dispute

between UDOC and the transportation officers. The original

agreement provided that an officer who left the transportation unit

would lose the pay-grade steps the officer had gained by joining,

but the modified agreement provided that officers who served in

the transportation unit for at least three years would “not lose any

steps” and would “maintain[] minimally their current rate of pay.”

Officerswho joined the transportation unit after the agreement was

modified signed a memorandum of understanding reflecting the

terms of the modified agreement.2

¶3 In 2007, UDOC’s new executive director discontinued the

practice of providing pay incentives to officers joining the

transportation unit, and officers joining the transportation unit

after the incentives were discontinued did not sign the modified

agreement. In 2008, UDOC shifted all employees into a “straight- 3

line career ladder pay scale.” In response, Plaintiffs filed a

complaint against UDOC, claiming that the modified agreement

provides for them to maintain a three-step pay-grade differential

above other UDOC employees in perpetuity after three years in the

transportation unit and that UDOC breached the modified

2. Although the memorandum of understanding signed by officers

who joined the transportation unit after 2000 contained slightly

different language thanthe modified agreement, the differences are

not relevant to our analysis. Therefore, for simplicity, we refer to

all of these agreements collectively as “the modified agreement.”

3. Some of the plaintiffs in this case are officers who joined the

transportation unit around the same time the incentive program

was discontinued. The parties dispute whether these individuals

are parties to the modified agreement, but in light of its grant of

summary judgment to UDOC,thedistrict court did not resolve that

dispute. The issue is therefore not before us on appeal.

20131135-CA 2 2015 UT App 63
Andersen v. Department of Corrections

agreement by shifting transportation officers who had signed the

modified agreement into the new pay scheme.4

¶4 UDOC moved for summary judgment on Plaintiffs’ claims,

arguing that the modified agreement unambiguously establishes

only that transportation officers who have reached the three-year

mark cannot lose their three-step raise, not that they are entitled to

maintain a three-step differential in perpetuity. Plaintiffs

responded that the language in the modified agreement pertaining

to raises and promotions makes the contract ambiguous as to

whether the three-step differential must be permanently

maintained. The district court examined the contract and

determined that “[t]here is no language in the contract that

supports the interpretation offered by Plaintiffs.” Accordingly, the

district court granted UDOC’s motion for summary judgment.

¶5 On appeal, Plaintiffs assert that the modified agreement is

ambiguous and that the district court therefore erred in granting

summary judgment to UDOC. “[A] motion for summary judgment

may not be granted if a legal conclusion is reached that an

ambiguity exists in the contract and there is a factual issue as to

what the parties intended.” WebBank v. American Gen. Annuity Serv.

Corp., 2002 UT 88, ¶ 22, 54 P.3d 1139 (alteration in original) (citation

and internal quotation marks omitted). We “review[] a summary

judgment for correctness, giving no deference to the trial court’s

decision.” Bahr v. Imus, 2011 UT 19, ¶ 15, 250 P.3d 56.

¶6 A contract “is ambiguous if it is capable of more than one

reasonable interpretation because of uncertain meanings of terms,

missing terms, or other facial deficiencies.” Daines v. Vincent, 2008

UT 51, ¶ 25, 190 P.3d 1269 (citation and internal quotation marks

omitted). Plaintiffs argue that the modified agreement is

ambiguous because its provisions regarding salary, raises, and

promotions can reasonably be interpreted as providing for a

4. Plaintiffs’ salaries were not reduced under the new pay scheme,

but they assert that the new pay scheme will have the effect of

diluting their three-step pay-grade differential over time.

20131135-CA 3 2015 UT App 63
Andersen v. Department of Corrections

perpetual three-step pay-grade differential between transportation

officers and non-transportation officers.

¶7 Plaintiffspoint to three particular provisions in the modified

agreement that they contendmake the agreement ambiguous. First,

they examine the provision indicating that “salary increases to

Transportation Unit members will minimally be benchmarked to

Correctional Officers in the Division of Institutional Operations.”

Plaintiffs interpret this provision as requiring “that when [nontransportation] officers receive a pay raise, former or current

[transportation] Officers also receive the equivalent pay raise. This

interpretation . . . would effectuate a constant pay differential

whereby [current and former transportation] Officers would

remain above [non-transportation] officers.” They next look to the

provision indicating that an officer leaving the transportation unit

“will not lose any steps, but will be able to transfer into a position

that is the same as or closest to their current salary range that does

not constitute a promotion, and maintains minimally their current

rate of pay.” Plaintiffs interpret this provision as meaning “that the

officer who received a three step increase when joining the

[transportation] unit and then received all increases given [nontransportation] officers for at least the three years in [the

transportation unit] . . . will come back into the ranks with a three

step advantage on any [non-transportation] officer.” Finally,

Plaintiffs point to the provision indicating that a transportation

officer who “receives a promotion . . . will receive the same salary

increase consideration that other officers receive when they are

promoted.” They interpret this provision as requiring that even

though a transportation officer may already be earning the typical

salary of a promoted position, that officer should “receive the same

percentage increase or same dollar increase that [a] promoted [nontransportation] officer [would] receive[],” which would, again,

have the effect of keeping that officer three steps above nontransportation officers who followed a comparable career track.

¶8 We do not disagree with Plaintiffs that some language in the

modified agreement may be ambiguous as to how transportation

officers’ pay raises and promotions are to be handled as compared

20131135-CA 4 2015 UT App 63
Andersen v. Department of Corrections

to those of non-transportation officers. However, the action taken

by UDOC that triggered the Plaintiffs’ claims was the

implementation of a new pay scheme applicable to all UDOC

employees. Plaintiffs do not contend that the new pay scheme

prevents transportationofficers fromreceiving salary increases that

are equivalent to those received by non-transportation officers,

reduces transportation officers’ salaries when they leave the

transportation unit, or precludes promoted transportation officers

from receiving raises on par with those of other promoted officers.5

Thus, we fail to see how the ambiguities pointed out by Plaintiffs

could support a determination that UDOC breached the modified

agreement by implementing the new pay scheme. See Utah R. Civ.

P. 56(c) (providing that summary judgment is appropriate when

“the pleadings, depositions, answers to interrogatories, and

5. There is very little in the record explaining the new pay scheme.

Neither Plaintiffs’ complaint nor their briefs on appeal explainhow

the new pay scheme is expected to affect Plaintiffs’ ability to

maintain a three-step pay-grade differential. At the hearing on the

motion for summary judgment, Plaintiffs’ counsel suggested that

the new pay scheme puts a cap on an officer’s ability to obtain

raises once the officer reaches a certain pay level. According to

Plaintiffs’ counsel, if this scheme is applied to transportation

officers, then the three-step differential of a transportation officer

who reaches the highest pay level will eventually be diluted as

other non-transportation officers receive salary increases. At oral

argument on appeal, UDOC explained that the new pay scheme

establishes minimum salaries based on years of service that would

result in salary increases for officers who were earning below the

minimum when they reached certain years-of-service milestones.

Since transportation officers are more likely to be above the

minimum when they reach these milestones, their three-step

differential may be diluted as other officers making below the

minimumreceiveyears-of-service increases. However, the newpay

scheme does not reduce Plaintiffs’ salaries, and Plaintiffs have

pointed to nothing to suggest that the new pay scheme would

preclude them from obtaining raises and promotions based on the

same standards as all other correctional officers.

20131135-CA 5 2015 UT App 63
Andersen v. Department of Corrections

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law”).

¶9 Plaintiffs also rely on extrinsic evidence to support their

argument that the modified agreement was ambiguous. Although 6

district courts are required to “review relevant and credible

extrinsic evidence offered to demonstrate that there is in fact an

ambiguity,” Daines, 2008 UT 51, ¶ 31, “a finding of ambiguity after

a review of relevant, extrinsic evidence is appropriate only when

reasonably supported by the language of the contract,” Watkins v.

Henry Day Ford, 2013 UT 49, ¶ 28 n.2, 304 P.3d 841 (citation and

internal quotation marks omitted). See id.(“The introduction of any

relevant evidence does not . . . allow a litigant to create ambiguity

out of whole cloth or to advocate for an interpretation that is in no

way supported by the language of the underlying contract.”

(emphasis, citation, and internal quotation marks omitted)); Daines,

2008 UT 51, ¶ 31 (“[T]here can be no ambiguity where evidence is

offered in an attempt to obscure otherwise plain contractual

terms.”). Plaintiffs’ interpretation of the modified agreement is not

“plausible and reasonable in light of the language used.” See

Daines, 2008 UT 51, ¶ 31 (citation and internal quotation marks

omitted). The language of the modified agreement provides for

transportation officers to be treated the same as other officers for

purposes of promotions and raises. A promise to maintain the

transportation officers’ three-step pay-grade differential in

6. Specifically, they point to the affidavit of UDOC’s former

executive director, in which he averred that the modified

agreement intended for transportation officers to “always be paid

at a higher rate than officers who had never worked in [the

transportation unit]”; the declarations of transportation officers

claiming that UDOC informed them when they signed the

modified agreement that their pay would always be three steps

higher than officers who had not worked in the transportation unit;

and the history of the dispute between the transportation officers

and UDOC, which led to the adoption of the modified agreement.

20131135-CA 6 2015 UT App 63
Andersen v. Department of Corrections

perpetuity cannot reasonably be construed from this language,

except to the extent the pay-grade differential naturally persists as

a result of transportation officers receiving raises and promotions

at the same rate as other officers. It cannot reasonably be read to 7

exempt transportation officers from changes to UDOC’s pay

scheme that apply to all UDOC employees. Thus, Plaintiffs’

interpretation is not reasonably supported by the language of the

contract. See Watkins, 2013 UT 49, ¶ 28 n.2.

¶10 Because the language of the modified agreement is not

reasonably subject to the interpretation advocated by Plaintiffs, we

agree with the district court that it is unambiguous as to whether

Plaintiffs are entitled to retain their three-step pay-grade

differential in perpetuity. Accordingly, we affirm the district

court’s grant of summary judgment in favor of UDOC.

7. As UDOC observed at the hearing on its motion for summary

judgment, “[i]n a perfect world . . . , if [a transportation officer]

walked lockstep with another officer for [his or her] entire career,”

the transportation officer could conceivably maintain a three-step

pay-grade differential under the terms of the modified agreement.

20131135-CA 7 2015 UT App 63