2019 UT App 124

THE UTAH COURT OF APPEALS

AGTC INC. AND ALPINE COAL CO. INC.,

Appellants,

v.

COBON ENERGY LLC,

Appellee.

Opinion

No. 20170992-CA

Filed July 18, 2019

Fourth District Court, Provo Department

The Honorable James R. Taylor

No. 060402937

E. Scott Savage and Stephen R. Waldron, Attorneys

for Appellants

Wm. Kelly Nash, Douglas B. Thayer, Kimberly N. 

Baum, and Troy L. Booher, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES GREGORY K. ORME and RYAN M. HARRIS

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 AGTC Inc. and Alpine Coal Co. Inc. (collectively, A&A) 

appeal the district court’s grant of summary judgment to CoBon 

Energy LLC (CoBon) on their contract and unjust enrichment 

claims. We reverse and remand for further proceedings.
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BACKGROUND1

¶2 To pursue certain tax credits related to the manufacture of 

synthetic fuels from coal (synfuel), Covol Technologies Inc.

(Covol) and Intermountain Consumer Professional Engineers 

(ICPE) partnered to form CoBon. ICPE’s principals included 

Steven Nash, Robert Nash, and Anton Tonc, each licensed 

professional engineers. Using technology developed by Covol,

with assistance from ICPE, CoBon planned to develop facilities 

that would take small and unmarketable pieces of coal known as 

coal fines—a waste product of coal manufacturing—and bind 

them together to form marketable coal briquettes.2

¶3 After establishing a synfuel production facility, CoBon 

envisioned selling that facility to a buyer who would make and

sell synfuel briquettes. This production would entitle the buyer 

to claim the associated tax credits. As part of the facility 

transaction, CoBon would receive a share of the tax credits from 

the buyer in addition to certain royalty and proprietary 

technology fees. Before any of this could happen, however, 

CoBon needed to identify sources of coal fines, find suitable 

locations for facilities, and negotiate the purchase of coal fines 

and sale of coal briquettes. But neither Covol nor ICPE had coal 

industry experience or contacts.

¶4 In November 1995, CoBon contacted A&A and requested 

its assistance in presenting projects to coal companies and 

getting facility projects under contract. Mark Rodak, a consultant 

 

1. “In reviewing a district court’s grant of summary judgment, 

we view the facts and all reasonable inferences drawn therefrom 

in the light most favorable to the nonmoving party and recite the 

facts accordingly.” Far West Bank v. Robertson, 2017 UT App 213,

¶ 2 n.4, 406 P.3d 1134 (quotation simplified).

2. This process is typically referred to as “coal fines 

agglomeration.”
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and the principal of Alpine Coal, had significant mining 

engineering education and training as well as experience in 

various roles in the mining industry. Richard Visovsky, a 

consultant and the principal of AGTC, also had significant 

mining engineering training and education and had experience 

in synfuel development. Neither of these individuals was a 

licensed professional engineer.

¶5 In March 1996, A&A entered into a consulting agreement 

with Covol—the company licensing the coal fines bonding 

technology. Four months later, Covol terminated the consulting 

agreement with A&A and renegotiated its relationship with 

CoBon. Under the new arrangement, Covol agreed to license its 

coal fines bonding technology to CoBon who, using that license,

could pursue development of its own synfuel facilities.

Additionally, ICPE was removed as a principal of CoBon and 

replaced by Steven Nash and Robert Nash. In anticipation of

receiving its license from Covol, CoBon entered into its own 

agreement with A&A, first orally and then in a formal written 

agreement (the Consulting Agreement).

¶6 Over several years, A&A provided consulting and 

assistance to CoBon in its endeavor to establish synfuel facilities.

A&A communicated with coal companies and vendors on 

CoBon’s behalf. A&A brought in several potential project hosts 

and worked toward the goal of securing synfuel development 

projects. Ultimately, A&A devoted approximately 6,000 hours 

consulting for CoBon, which resulted in the completion of 

several synfuel projects generating approximately $69 million in

tax credit payments and other revenue to CoBon.

¶7 CoBon began paying A&A for its assistance under the 

Consulting Agreement in 2001 but stopped making payments 

the following year. In response to A&A’s demand to continue 

payments, CoBon filed a lawsuit in a Utah district court, 

alleging, among other things, that A&A breached the Consulting 

Agreement. In response, A&A asserted several counterclaims, 

including claims for breach of contract and unjust enrichment 

against CoBon. In 2009, CoBon amended its reply to A&A’s 
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counterclaims to argue that A&A was barred from asserting its 

contract claims by Utah’s “non-recovery rule,” which bars 

unlicensed professionals from seeking enforcement of contracts 

for professional services where the licensing requirements have 

been enacted with the purpose of protecting the public. See 

George v. Oren Ltd. & Assocs., 672 P.2d 732, 735 (Utah 1983).

¶8 In 2016, CoBon moved for partial summary judgment on 

A&A’s unjust enrichment claim. CoBon asserted that because 

both parties had previously admitted that the Consulting 

Agreement was a binding and enforceable contract, A&A could 

not pursue its unjust enrichment claim. See Ashby v. Ashby, 2010 

UT 7, ¶ 14, 227 P.3d 246 (“[A] prerequisite for recovery on an 

unjust enrichment theory is the absence of an enforceable 

contract governing the rights and obligations of the parties 

relating to the conduct at issue.”). A&A opposed the motion on 

the ground that several of CoBon’s “contentions and defenses,” 

including its contention that A&A was barred from recovering 

under the Consulting Agreement by the non-recovery rule,3 “go 

to the validity, enforceability and scope of the Consulting 

Agreement.” Because CoBon’s defenses had not been abandoned 

or rejected, A&A argued that dismissing its equitable claims 

“would be premature and prejudicial.” The district court 

disagreed and dismissed A&A’s unjust enrichment claim on the 

ground that the parties had previously acknowledged the 

validity of the contract.

 

3. As discussed infra ¶¶ 19–23, the district court expressed no 

opinion regarding whether a party barred from enforcing a 

contract under the non-recovery rule could maintain a cause of 

action under an equitable theory of unjust enrichment. While we 

ultimately need not reach this question, we are inclined to agree 

with CoBon that such a result would be inconsistent with the 

public policy behind the non-recovery rule. Further, a 

determination that a party is barred from enforcing a contract is 

different from a determination that the contract itself is 

unenforceable.
AGTC Inc. v. CoBon

20170992-CA 5 2019 UT App 124

¶9 One month before a scheduled trial on the remaining 

issues, CoBon and A&A each moved for summary judgment 

regarding CoBon’s assertion that the Consulting Agreement was 

an unenforceable engineering services contract under the nonrecovery rule. After briefing and argument on the motions, the 

court first concluded that the Consulting Agreement was 

ambiguous regarding “whether the parties intended A&A to 

provide engineering services.” As a result of that determination, 

the court considered extrinsic evidence of the parties’ intent, 

ultimately concluding that a number of A&A’s tasks agreed to in

the Consulting Agreement “required the application of 

engineering training and experience uniquely possessed by 

A&A.” It therefore concluded that the Consulting Agreement 

was a contract for engineering services and that A&A was 

barred from recovering under the contract because Rodak and 

Visovsky were not licensed professional engineers. Accordingly, 

the district court granted CoBon’s motion for summary 

judgment and denied A&A’s. A&A now appeals.

ISSUES AND STANDARD OF REVIEW

¶10 A&A asserts that the district court erred in granting 

summary judgment in favor of CoBon on A&A’s contract and 

unjust enrichment claims. With respect to the contract claims, 

A&A asserts that the district court erred in determining that the 

Consulting Agreement was ambiguous, that it was intended to 

be an engineering services contract, and that A&A could not 

enforce the contract due to its lack of licensing.4 With respect to 

the unjust enrichment claim, A&A argues that dismissal was 

premature because the court had not yet disposed of CoBon’s 

 

4. Because we agree with A&A that its lack of licensing did not 

affect its ability to enforce the contract under the facts of this case

and reverse the district court’s summary judgment ruling on that 

basis, we do not address A&A’s other arguments regarding the 

contract claim.
AGTC Inc. v. CoBon

20170992-CA 6 2019 UT App 124

various claims regarding the enforceability of the contract. 

Summary judgment is appropriate “if the moving party shows 

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

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

Civ. P. 56(a). “We review the trial court’s grant of summary 

judgment for correctness, considering only whether the trial 

court correctly applied the law and correctly concluded that no 

disputed issues of material fact existed.” In re Evan O. Koller 

Revocable Living Trust, 2018 UT App 26, ¶ 8, 414 P.3d 1099

(quotation simplified).

ANALYSIS

I. Contract Claims

¶11 A&A first argues that the district court erred in 

interpreting the “non-recovery rule” to preclude A&A from 

enforcing the Consulting Agreement. Assuming, without 

deciding, that the Consulting Agreement is a contract for 

engineering services,5 we agree with A&A that CoBon cannot 

 

5. The “practice of engineering” in Utah encompasses a broad 

array of activity, including any

service or creative work, the adequate performance 

of which requires engineering education, training, 

and experience in the application of special 

knowledge of the mathematical, physical, and 

engineering sciences to the service or creative work 

as consultation, investigation, evaluation, 

planning, design, and design coordination of 

engineering works and systems, planning the use 

of land and water, facility programming, 

performing engineering surveys and studies, and 

the review of construction for the purpose of 

monitoring compliance with drawings and 

specifications; any of which embraces these 

(continued...)
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invoke the non-recovery rule under the circumstances of this 

case.

¶12 The Utah Code requires that anyone working as a 

professional engineer first obtain a license. Utah Code Ann. § 58-

22-301(1) (LexisNexis 2016) (“A license is required to engage in 

the practice of professional engineering . . . .”). The general 

purpose of legislation requiring professional engineers to be 

licensed “is to provide for the qualification, registration and 

licensing of persons who hold themselves out to the public as 

having qualifications in specialized areas which affect the public 

health, safety or welfare.” Cannon v. Gardner, 611 P.2d 1207, 1210 

(Utah 1980). For this reason, the non-recovery rule generally 

precludes an unlicensed engineer from enforcing a contract for

professional engineering services.6 See George v. Oren Ltd. 

 

(...continued)

services or work, either public or private, in 

connection with any utilities, structures, buildings, 

machines, equipment, processes, work systems, 

projects, and industrial or consumer products or 

equipment of a mechanical, electrical, hydraulic, 

pneumatic, or thermal nature, and including other 

professional services as may be necessary to the 

planning, progress, and completion of any 

engineering services.

Utah Code Ann. § 58-22-102(9)(a) (LexisNexis Supp. 2018).

6. This rule was previously codified with respect to both 

contractors, see Utah Code Ann. § 58-55-604 (LexisNexis 2016), 

and engineers, see id. § 58-22-20 (Allen Smith 1955); id. § 58-22-11 

(Michie 1986) (provision renumbered). However, while the nonrecovery rule remains codified with respect to contractors, the 

Utah Legislature repealed the engineering provision in 1992 

when it enacted a new Professional Engineers and Land 

Surveyors Licensing Act. See Professional Eng’rs & Land 

Surveyors Licensing Act, ch. 183, § 11, 1992 Utah Laws 697, 701.

(continued...)
AGTC Inc. v. CoBon

20170992-CA 8 2019 UT App 124

& Assocs., 672 P.2d 732, 735 (Utah 1983) (“If the purpose of 

licensing is to protect the public, then the general rule in this 

State is that the party who does not obtain a license, but is 

required to do so, cannot obtain relief to enforce the terms of his 

contract—including payment thereunder . . . .” (quotation 

simplified)); accord Pacific Chromalox Div. v. Irey, 787 P.2d 1319, 

1325 (Utah Ct. App. 1990).

¶13 Nevertheless, the non-recovery rule is “not applied 

unconditionally, but only under circumstances in which the 

party from whom the contractor seeks to recover is in the class 

the legislature intended to protect.” Pacific Chromalox, 787 P.2d at 

1326 (quotation simplified); see also George, 672 P.2d at 735. 

“Laws intended for protecting the public are not intended to 

become an unwarranted shield for the avoidance of a just 

obligation and should not allow a [party] to take the benefit of 

an unlicensed plaintiff’s labor and refuse to pay for it.” Pacific 

Chromalox, 787 P.2d at 1326 (quotation simplified). Therefore, 

“unless it is shown that the party from whom the unlicensed 

contractor seeks to recover is within the class of persons whom 

the licensing statute is designed to protect, the rule will not be 

applied.” George, 672 P.2d at 735. “Thus, the pivotal issue in this 

case is whether [CoBon] occupied a protected status.” See id.

¶14 One class of individuals that has been explicitly 

prohibited from benefiting from the non-recovery rule is those 

“licensed in the same trade or profession as the unlicensed 

practitioner.” Pacific Chromalox, 787 P.2d at 1326 (“A litigant is 

not a member of the class the legislature intended to protect if 

the required protection is in fact afforded by another means,

 

(...continued)

The non-recovery rule with respect to engineers is now entirely a 

creation of common law. In their briefs, neither party contests 

the existence of a common-law non-recovery rule for engineers, 

and neither party takes the position that the 1992 repeal of the 

engineering statute affected the viability of the rule.
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20170992-CA 9 2019 UT App 124

such as the litigant being licensed in the same trade or profession 

as the unlicensed practitioner.” (quotation simplified)); see also 

Fillmore Products, Inc. v. Western States Paving, Inc., 561 P.2d 687, 

690 (Utah 1977). Such individuals are not in the same class as the 

“lay public” that the non-recovery rule is intended to protect,

because they are “presumed to possess expertise” in the relevant 

field that enables them to protect themselves. See Pacific 

Chromalox, 787 P.2d at 1326; see also Fillmore, 561 P.2d at 690 

(explaining that a licensed contractor has “expertise in the 

contracting business and is therefore informed of the necessity 

for licensing therein and the purpose behind licensing, viz., the 

protection of the public”).

¶15 At the time the parties entered into the Consulting

Agreement, Steven and Robert Nash were the principals of 

CoBon. Both Nashes were licensed professional engineers. Along 

with ICPE, including Anton Tonc, who was also a licensed 

professional engineer, the Nashes assisted Covol in developing 

its proprietary coal fines bonding technology. Moreover, the

Consulting Agreement obligated A&A to “perform services on 

behalf of CoBon in accordance with the express directives and 

authorizations of, and subject to the approval of, CoBon.” In 

other words, A&A’s efforts were subject to the supervision and 

approval of the Nashes—two licensed professional engineers. Cf.

Fillmore, 561 P.2d at 690 (declining to apply the non-recovery 

rule where “the entire sewer project was under the supervision 

of a licensed project engineer, . . . all of the work had to meet the 

specifications and requirements of the general contract and . . .

all of the work had to be approved and accepted by the project 

engineer before any payment was made”). Led by licensed 

engineers, CoBon possessed inherent protection against any 

possible fraud or incompetence resulting from unlicensed 

consultants performing the work of licensed professionals.

¶16 CoBon attempts to distinguish its situation from the 

general rule that licensed individuals cannot benefit from the 

non-recovery rule by pointing out that CoBon’s principals were 

licensed electrical and mechanical engineers rather than licensed 
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20170992-CA 10 2019 UT App 124

mining engineers and asserts that CoBon was therefore not 

engaged in the “same trade or profession” as A&A. See Pacific 

Chromalox, 787 P.2d at 1326. But in light of the reasoning for the 

exception to the non-recovery rule, we are convinced that this 

phrase should be interpreted broadly such that professional 

engineers of any type may be classified within the same trade or 

profession. The overarching consideration is not whether the 

party from whom the unlicensed contractor seeks to recover has

the exact same technical knowledge and expertise as that 

expected of the contractor, but whether that party “is within the 

class of persons whom the licensing statute is designed to 

protect,” see George, 672 P.2d at 735, that is, the “lay public,” see 

Pacific Chromalox, 787 P.2d at 1326. Given the “harshness of 

declaring contracts of non-licensees void or unenforceable,” see 

Fillmore, 561 P.2d at 689, a licensed professional engineer’s 

awareness “of the necessity for licensing . . . and the purpose 

behind licensing,” see id. at 690, is sufficient to take the licensed 

professional engineer out of “the class of persons whom the 

licensing statute is designed to protect,” see George, 672 P.2d at 

735.

¶17 It is clear from CoBon’s business plan for the projects that 

it was aware that Rodak and Visovsky were not professional 

engineers. Under the heading “Management Team,” the 

business plan states, “The key CoBon management and 

consulting team consists of four individuals. Their backgrounds 

consist of marketing, corporate development financial, 

engineering and design, construction and construction 

management and operation and maintenance experience. CoBon 

believes this team provides a solid management background and 

furthers the probability of the Project’s success.” The business 

plan then goes on to outline the respective qualifications and 

responsibilities of Rodak, Visovsky, and the Nashes. Steven and 

Robert Nash are identified as professional engineers by the 

shorthand “P.E.” following their names and are identified as 

being licensed in eight and fifteen states, respectively. On the 

other hand, the document is silent as to any licensing acquired 

by Rodak and Visovsky, instead listing their experience and 
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20170992-CA 11 2019 UT App 124

education. It is apparent from this document that CoBon was 

aware that Rodak and Visovsky were not professional engineers, 

yet CoBon was nevertheless confident in their ability to fulfill the 

objectives of their employment. Cf. Kennoy v. Graves, 300 S.W.2d 

568, 570 (Ky. 1957) (refusing to apply the non-recovery rule 

where a licensed engineer “was in a position to know, and did 

know, the qualifications of” the unlicensed engineer). Although 

clearly understanding the relevance of licensing, CoBon elected 

to enlist A&A’s consulting services in the absence of such 

licensing. Under these circumstances, “[n]o public policy would 

be served by allowing [CoBon] to invoke” the non-recovery rule. 

See Loader v. Scott Constr. Corp., 681 P.2d 1227, 1229 (Utah 1984). 

Rather, it would permit CoBon “to take the benefit of an 

unlicensed plaintiff’s labor and refuse to pay for it.” Pacific 

Chromalox, 787 P.2d at 1326 (quotation simplified).

¶18 Because CoBon does not fall in the class of individuals 

permitted to invoke the non-recovery rule against an unlicensed 

engineer, A&A is not barred from recovering under the contract. 

The district court therefore erred in granting summary judgment 

to CoBon on this basis.

II. Unjust Enrichment Claim

¶19 A&A also argues that the district court erred in granting 

summary judgment to CoBon on A&A’s unjust enrichment 

claim. Unjust enrichment “is designed to provide an equitable 

remedy where one does not exist at law.” American Towers 

Owners Ass’n v. CCI Mech., Inc., 930 P.2d 1182, 1193 (Utah 1996), 

abrogated on other grounds by Davencourt at Pilgrims Landing 

Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 2009 UT 

65, 221 P.3d 234. Therefore, “if a legal remedy is available, such 

as breach of an express contract, the law will not imply the 

equitable remedy of unjust enrichment.” Id.

¶20 In opposing CoBon’s motion for summary judgment on 

the unjust enrichment claim, A&A pointed to a number of 

arguments asserted by CoBon that A&A claimed “go to the 

validity, enforceability and scope of the Consulting Agreement.”
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20170992-CA 12 2019 UT App 124

CoBon contested A&A’s assertion that these arguments 

concerned the enforceability of the contract, representing that 

CoBon’s arguments instead focused on questions of contract 

interpretation, breach of contract, and the parties’ relative duties 

under the contract.

¶21 In ruling on the motion, the district court did not examine 

whether the remaining claims actually concerned the 

enforceability of the contract. Nevertheless, the court concluded 

that the Consulting Agreement is a valid contract as a matter of 

law because both parties had previously acknowledged “that the 

contract had been negotiated and signed by both [parties].”

Based on this conclusion, the court determined that A&A could 

not maintain a cause of action for unjust enrichment.

¶22 “Because a claim should be dismissed only if it appears to 

a certainty that the plaintiff would be entitled to no relief under 

any state of facts which could be proved in support of the claim, 

a district court should not dismiss alternative equitable claims if 

the existence or applicability of a contract remain in dispute.”

Northgate Village Dev., LC v. Orem City, 2014 UT App 86, ¶ 50, 325 

P.3d 123 (quotation simplified). The fact that the parties 

acknowledged and agreed that a contract existed between them 

does not necessarily lead to the conclusion that it was an 

enforceable contract that effectively governed their rights and 

obligations with respect to the subject matter of the case. See

Selvig v. Blockbuster Enters., LC, 2011 UT 39, ¶ 30, 266 P.3d 691 

(“Where an express contract covering the subject matter of the 

litigation exists, recovery for unjust enrichment is not available.” 

(quotation simplified)); Ashby v. Ashby, 2010 UT 7, ¶ 14, 227 P.3d 

246 (“[A] prerequisite for recovery on an unjust enrichment 

theory is the absence of an enforceable contract governing the 

rights and obligations of the parties relating to the conduct at 

issue.”).

¶23 Because the district court made no determination 

regarding whether A&A’s remaining claims and defenses dealt 

with the enforceability of the Consulting Agreement, we are 

concerned that its ruling left the door open to such claims at trial
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while foreclosing A&A’s ability to pursue an equitable remedy if 

the court were ultimately to determine that the Consulting 

Agreement is unenforceable.7 Thus, the district court 

prematurely dismissed A&A’s unjust enrichment claim while 

questions regarding the validity of the contract remained 

unresolved.

CONCLUSION

¶24 Because CoBon does not fall into the class of individuals 

the non-recovery rule was intended to protect, the rule does not 

preclude A&A from pursuing its contract claims, regardless of 

whether the contract is construed as a contract for professional

engineering services. Further, because the district court made no 

determination regarding whether claims and defenses at issue 

implicated the enforceability of the contract, its grant of 

summary judgment to CoBon on A&A’s unjust enrichment claim 

was premature. Accordingly, we reverse the district court’s 

summary judgment rulings and remand for further proceedings.

 

7. For example, A&A asserted that one of CoBon’s defenses 

“could result in the Court deciding there was no meeting of the 

minds as to the contract’s essential terms,” rendering the 

contract unenforceable. See Lebrecht v. Deep Blue Pools & Spas Inc., 

2016 UT App 110, ¶ 13, 374 P.3d 1064 (“Under the principles of 

basic contract law, a contract is not formed unless there is a 

meeting of the minds.” (quotation simplified)). If A&A is correct 

in its characterization of CoBon’s defense, and if the court 

ultimately found that there was no meeting of the minds, then 

the court’s summary judgment ruling would leave A&A without 

either a legal or an equitable remedy.