Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.

24 Page 1 of 20

Ryan W. Loose (#11299)

Gregory M. Simonsen (#4669)
Charity Brienz (#13101)
1600 West Towne Center Drive
South Jordan, UT 84095
Office: (801) 254-3742
[email protected]
[email protected]
[email protected]
Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

GREG YOUNG,
ANSWER AND COUNTERCLAIM
Plaintiff,
v. Case No. 2:22-cv-00679-CMR

Magistrate Judge Cecilia M. Romero

SOUTH JORDAN CITY, SOUTH JORDAN
FIRE DEPARTMENT, JOHN DOES 1-10,

Defendants.

Defendant City of South Jordan (inclusive of the South Jordan Fire Department, which is

not a separate entity) (hereafter “Defendant”) files this Answer and Counterclaim in response to

Plaintiff’s Complaint, filed on or about October 24, 2022.

FIRST DEFENSE

The Plaintiff’s Complaint fails to state a claim upon which relief may be granted.

SECOND DEFENSE

With respect to the specific allegations set forth in the Plaintiff’s Complaint, Defendant
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.25 Page 2 of 20

Answers as follows:

1. With respect to the allegations stated in Paragraph 1 of the Complaint, Defendant

admits that after the Plaintiff notified the Defendant on at least four occasions, including July 23,

and 24, 2022, that he intended to completely demolish the abandoned and empty home, it

conducted training exercises that furthered the demolition. It is affirmatively alleged that prior to

the training activities Plaintiff disconnected all utilities, allowed all the grass and landscaping to

die, paid for and conducted an asbestos analysis preparatory to demolition. It is further

affirmatively alleged that Plaintiff conducted partial demolition of the home by, among other

things, conducting destructive testing in the home, cutting holes in the floor, removing cabinets,

banisters, doors, plumbing fixtures and breaking windows. It is affirmatively alleged that

Plaintiff hired a demolition contractor (hereafter “Plaintiff’s Agent” or “Agent”) who had

authority from the Plaintiff to utilize subcontractors and other third parties, including the

Defendant, in the work of demolishing the home. Finally, it is affirmatively alleged that Agent,

acting with actual authority and with apparent authority, gave Defendant verbal and written

permission to conduct training activities in the home. All other allegations stated in Paragraph 1,

not specifically admitted herein, are denied.

2. With respect to the allegations stated in Paragraph 2 of the Complaint, it is

admitted that although the written contract allowed the Defendant to conduct training in the

home and warned that “the structure and the attached fixtures therein may be completely

destroyed,” the Defendant conducted only limited destructive training in the empty and partially

demolished home. It is affirmatively alleged that if necessary the damage to the home could be

Defendant’s Answer and Counterclaim

Page 2 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.26 Page 3 of 20

easily and inexpensively repaired. All other allegations stated in Paragraph 2, not specifically

admitted herein, are denied.

3. Paragraph 3 contains various pictures of the home. Defendant is without

knowledge of when these pictures were taken and, therefore, denies for lack of information or

belief that the pictures “reflect some of the damage South Jordan inflicted,” as is alleged in

Paragraph 3. It is affirmative alleged that after the Plaintiff notified the Defendant on at least

four occasions that he intended to completely demolish the abandoned and empty home,

disconnected all utilities, allowed all the grass and landscaping to die, paid for and conducted an

asbestos analysis preparatory to demolition, hired Plaintiff’s Agent who gave Defendant written

and verbal permission to demolish the entire home, the Defendant conducted limited and

permitted training activities in the partially demolished home. All other allegations stated in

Paragraph 3, not specifically admitted herein, are denied.

4. The allegations stated in Paragraph 4 of the Complaint are denied.

5. The allegations stated in Paragraph 5 of the Complaint are denied.

6. The allegations stated in Paragraph 6 of the Complaint are denied and it is

affirmatively alleged that, although the home was not destroyed, the written contract authorized

the Defendant to do exactly that “to facilitate the demolition.”

7. The allegations stated in Paragraph 7 of the Complaint are denied and it is

affirmatively alleged that Defendant had verbal and written permission to conduct destructive

training exercises in the home. It is also affirmatively alleged that Plaintiff visited the home

when the Fire Department was conducting the training and knew precisely what the Fire

Department was doing and made no objections.

Defendant’s Answer and Counterclaim

Page 3 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.27 Page 4 of 20

8. With respect to the allegations stated in Paragraph 8 of the Complaint, it is

admitted that discussions took place between the Plaintiff and Defendant to try to resolve

Plaintiff’s concerns. All other allegations stated in Paragraph 8, not specifically admitted herein,

are denied.

9. With respect to the allegations stated in Paragraph 9 of the Complaint, Defendant

admits that it had conversations with Plaintiff to try to resolve Plaintiff’s concerns. It is

specifically denied that the Defendant ever admitted that it was not authorized to conduct

training in the home. Even if such admissions were made (which is denied), they were made

during the course of settlement discussions and are inadmissible under Fed. R. Evid. 408. All

other allegations stated in Paragraph 9, not specifically admitted herein, are denied.

10. With respect to the allegations stated in Paragraph 10 of the Complaint, it is

admitted that efforts were made to resolve the matter. All other allegations stated in Paragraph

10, not specifically admitted herein, are denied.

11. The allegations stated in Paragraph 11 of the Complaint are admitted, but it is

affirmatively alleged that any deconstruction performed by the Defendant was done with the

express and/or or implied permission of Plaintiff.

12. With respect to the allegations stated in Paragraph 12 of the Complaint, it is

admitted that there were many communications about possibly settling the matter. All other

allegations stated in Paragraph 12, not specifically admitted herein, are denied.

13. With respect to the allegations stated in Paragraph 13 of the Complaint, it is

admitted that as part of the settlement discussions the Defendant discussed the possibility of

restoring the damage, but this was rejected by the Plaintiff because Plaintiff said he was just

Defendant’s Answer and Counterclaim

Page 4 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.28 Page 5 of 20

going to demolish the house anyway and didn’t want it repaired. All other allegations stated in

Paragraph 13, not specifically admitted herein, are denied.

14. With respect to allegations stated in Paragraph 14 of the Complaint, it is admitted

that Defendant did not provide bids for repairs because Plaintiff didn’t want repairs since

Plaintiff intended to demolish the property. All other allegations stated in Paragraph 14, not

specifically admitted herein, are denied.

15. With respect to allegations stated in Paragraph 15 of the Complaint, it is admitted

that the Plaintiff and Defendant had discussions to try to resolve the matter. All other allegations

stated in Paragraph 15, not specifically admitted herein, are denied.

16. With respect to allegations stated in Paragraph 16 of the Complaint, it is admitted

that the Plaintiff and Defendant had discussions to try to resolve the matter. All other allegations

stated in Paragraph 16, not specifically admitted herein, are denied.

17. The allegations stated in Paragraph 17 of the Complaint are denied.

18. The allegations stated in Paragraph 18 of the Complaint are denied.

19. With respect to the allegations stated in Paragraph 19 of the Complaint, it is

admitted that the Plaintiff and Defendant were unsuccessful in settling the matter, but Defendant

denies that the allegations set forth in Paragraph 19 are an accurate representation of those

efforts. All other allegations stated in Paragraph 19, not specifically admitted herein, are denied.

20. With respect to the allegations stated in Paragraph 20 of the Complaint, it is

denied that the Defendant trespassed on Plaintiff’s property. It is admitted that the Defendant

has not used or offered to use taxpayer money to pay a claim that is without merit. All other

allegations stated in Paragraph 20, not specifically admitted herein, are denied.

Defendant’s Answer and Counterclaim

Page 5 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.29 Page 6 of 20

21. With respect to the allegations stated in Paragraph 21 of the Complaint, it is

denied that the Defendant trespassed on Plaintiff’s property. It is admitted that the Defendant

has not used or offered to use taxpayer money to pay a claim that is without merit. All other

allegations stated in Paragraph 21, not specifically admitted herein, are denied.

22. With respect to the allegations stated in Paragraph 22 of the Complaint, it is

admitted that the Defendant has not used or offered to use taxpayer money to pay a claim that is

without merit. All other allegations stated in Paragraph 22, not specifically admitted herein, are

denied.

23. The allegations stated in Paragraph 23 of the Complaint are denied and it is

affirmatively alleged, as more fully set forth in the counterclaim, that the present lawsuit is

without merit and a breach of contract. All other allegations stated in Paragraph 23, not

specifically admitted herein, are denied.

24. With respect to the allegations stated in Paragraph 24 of the Complaint,

Defendant is without knowledge or information sufficient to know the truthfulness of the

allegations and therefore denies the same.

25. The allegations stated in Paragraph 25 of the Complaint are admitted.

26. With respect to the allegations stated in Paragraph 26 of the Complaint, it is

admitted that the South Jordan Fire Department is in the City of South Jordan. All other

allegations stated in Paragraph 26, not specifically admitted herein, are denied.

27. The allegations stated in Paragraph 27 of the Complaint are not factual allegations

and need no response.

Defendant’s Answer and Counterclaim

Page 6 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.30 Page 7 of 20

28. With respect to Plaintiff’s first claim of relief, stated in Paragraph 28 of the

Complaint, all prior responses are incorporated.

29. With respect to the allegations of Paragraph 29 of the Complaint, the wording of

the United States Constitution speaks for itself and any allegations inconsistent therewith are

denied.

30. With respect to the allegations of Paragraph 30 of the Complaint, it is denied that

the Defendant has taken any property of any value from the Plaintiff at any time. All other

allegations of paragraph 30 are denied.

31. With respect to the allegations stated in Paragraph 31 of the Complaint, the

wording of 42 U.S.C. § 1983 speaks for itself and any allegations inconsistent therewith are

denied. It is specifically denied that the Defendant has taken any property of any value from the

Plaintiff. All other allegations stated in Paragraph 31, not specifically admitted herein, are

denied.

32. The allegation stated in the first sentence of Paragraph 32 of the Complaint are

denied. With respect to the second and third sentences of Paragraph 32, it is admitted that

Defendant has not paid or offered to pay taxpayer money for a meritless claim. All other

allegations stated in Paragraph 32, not specifically admitted herein, are denied.

33. The allegations stated in Paragraph 33 of the Complaint are denied.

34. With respect to Plaintiff’s second claim for relief stated in Paragraph 34 of the

Complaint, all prior responses are incorporated.

Defendant’s Answer and Counterclaim

Page 7 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.31 Page 8 of 20

35. With respect to Plaintiff’s second claim for relief, stated in Paragraph 35 of the

Complaint, the wording of the Utah Constitution speaks for itself and any allegations

inconsistent therewith are denied.

36. With respect to the allegations set forth in Paragraph 36 of the Complaint, the

allegations are a legal conclusion and require no response.

37. With respect the allegations of Paragraph 37 of the Complaint, the allegations of

the first sentence are denied. With respect to the second and third sentences of Paragraph 37, it

is admitted that Defendant has not paid or offered to pay taxpayer money for a meritless claim.

All other allegations of Paragraph 37, not specifically admitted herein, are denied.

38. The allegations of paragraph 38 are denied.

39. All allegations not expressly admitted herein are denied.

40. Defendant denies that Plaintiff is entitled to the relief requested in his Prayer for

Relief.

THIRD DEFENSE

The Plaintiff’s Complaint must be dismissed, pursuant to Rule 19 of the Federal Rules of

Civil Procedure, due to Plaintiff’s failure to name a party necessary to accord complete relief

among existing parties.

FOURTH DEFENSE

On the date of the alleged taking, the home that is the subject of the Plaintiff’s Complaint

had no value.

FIFTH DEFENSE

Any individual defendants (currently listed as John Does) may be entitled to qualified

Defendant’s Answer and Counterclaim

Page 8 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.32 Page 9 of 20

immunity because their actions were objectively reasonable and did not violate any of Plaintiff’s

clearly established particularized constitutional, statutory, or common law rights or privileges.

SIXTH DEFENSE

Plaintiff’s claims are barred by the doctrines of laches and/or unclean hands, waiver,

estoppel, res judicata, collateral estoppel, claim preclusion, issue preclusion, consent,

acquiescence, ratification and release.

SEVENTH DEFENSE

Plaintiff is barred from recovery to the extent that he has failed to reasonably mitigate his

damages.

EIGHTH DEFENSE

Plaintiff is barred from recovery because he has failed to exhaust his administrative

remedies.

NINTH DEFENSE

Plaintiff cannot satisfy the standard to recover monetary damages under the Utah

Constitution.

TENTH DEFENSE

Punitive damages against Defendant are prohibited by at least the following provisions of

the United States and Utah Constitutions:

 The due process clauses (including substantive and procedural due process)

of the Fifth and Fourteenth Amendments to the United States Constitution,

and Article I § 7 of the Utah Constitution;

Defendant’s Answer and Counterclaim

Page 9 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.33 Page 10 of 20

 The taking clauses of the Fifth and Fourteenth Amendments to the United

States Constitution, and Article I § 22 of the Utah Constitution;

 The equal protection clauses of the Fourteenth Amendment to the United

States Constitution, and Article I § 24 of the Utah Constitution;

 The prohibitions against excessive fines and punishments contained in the

Eighth Amendment to the United States Constitution, and Article I § 9 of

the Utah Constitution;

 The rights given the accused by the Fifth and Sixth Amendments to the

United States Constitution, and Article I §§ 12, 13 of the Utah Constitution;

 The prohibition of ex post facto laws contained in Article I § 18 of the Utah

Constitution; and

 The open courts provision, Article I §11 of the Utah Constitution;

Among the reasons an award of punitive damages in this Case would violate these and

other provisions of the United States and Utah Constitutions are the following:

 The standards of conduct and standards for awarding punitive damages are

vague and ambiguous;

 Plaintiff seeks to punish answering Defendant for the acts of another;

 The state’s power to punish is not invoked for the purpose of serving the

public good, nor is it controlled by prosecutorial discretion, but rather, the

state’s power is invoked unchecked, for the private purpose of retribution

and greed; and

Defendant’s Answer and Counterclaim

Page 10 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.34 Page 11 of 20

 The threat of punishment will be used to chill Defendant’s access to open

courts and extort a favorable civil resolution. At a minimum, Defendant

must be given the protections and guarantees of an accused under criminal

law.

Plaintiff is not entitled to a jury as to the amount of punitive damages.

ELEVENTH DEFENSE

Punitive damages are prohibited because the standards of conduct and standards for

awarding punitive damages are vague and ambiguous; Plaintiff seeks to punish Defendant for the

acts of another; Defendant will be treated differently based upon wealth or municipal status;

Defendant may be repeatedly punished for the same conduct; Defendant has not been given the

same protections and guarantees as criminal defendants, such as protection from self-

incrimination, jury trial in the location of the alleged wrongful conduct, charge upon adequately

detailed information, proof beyond a reasonable doubt, etc.; taxpayers will be punished for the acts

of others, and their property will be taken for a public purpose and use without just compensation;

this Court has no power or jurisdiction to assess criminal penalties for alleged violation of federal

statute or regulation; the state’s power to punish is not invoked for the purpose of serving the

public good, nor is it controlled by prosecutorial discretion, rather, the state’s power is invoked,

unchecked, for the private purpose of retribution and greed; and the threat of punishment will be

used to chill Defendant’s access to open courts and extort a favorable civil resolution. At a

minimum, Defendant must be given the protections and guarantees of an accused under criminal

law.

Defendant’s Answer and Counterclaim

Page 11 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.35 Page 12 of 20

TWELFTH DEFENSE

Plaintiff is not entitled to receive punitive or exemplary damages from Defendant.

THIRTEENTH DEFENSE

Plaintiff’s claims are barred by his actual or constructive ratification of the contract.

RESERVATION OF RIGHTS

Defendant specifically reserve the right to amend its answers by way of adding additional

affirmative defenses, claims, cross-claims, or by instituting third-party actions.

Defendant reserves the right to incorporate herein any affirmative defenses asserted by

any other parties herein.

Furthermore, Defendant has not had an opportunity to conduct a reasonable inquiry of all

the facts underlying the lawsuit. Based upon knowledge, information, and belief formed after its

investigation of Plaintiff’s Complaint, Defendant may wish to interpose the other defenses, some

or all of which may ultimately be supported by the facts to be revealed in discovery and

investigation of this case. Defendant thus reserve the right to amend its answers by way of

further defenses, counterclaims, cross-claims and third-party claims as additional facts are

obtained through investigation and discovery. Upon request and after having conducted

discovery in this case, Defendant will voluntarily withdraw any of the foregoing defenses that

are unsupported by the facts revealed in discovery and investigation. By raising these defenses,

Defendant do not concede that it has the burden of proof as to any such defense.

WHEREFORE, having fully responded to the allegations in the Complaint, Defendant

requests that the Court dismiss Plaintiff’s Complaint, that Plaintiff take nothing thereby, and that

the Court orders Plaintiff to pay Defendant’s costs and attorneys’ fees pursuant to 42 U.S.C. §

Defendant’s Answer and Counterclaim

Page 12 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.36 Page 13 of 20

1988 and 28 U.S.C. § 1927.

COUNTERCLAIM

STATEMENT OF FACTS

Defendant counterclaims against plaintiff as follows:

1. Plaintiff represented to Defendant on multiple occasions in writing that the

Property would be demolished.

2. On June 15, 2022, an asbestos inspection and report was prepared by Thermal

West Industrial, Inc. at the request of Plaintiff on a vacant building located at 11636 S. Gold

Dust Drive in South Jordan Utah (hereinafter the “Property”). This report was provided by

Plaintiff to Defendant as part of an application to build a new home on the Property.

3. On June 22, 2022, through the Asbestos and Lead Paint Online Portal, an initial

filing of a demolition notification form was accepted. The form was for Demolition Activity on

a vacant residential structure owned by Plaintiff. Demolition Contractor was listed as MKP

Enterprises, Inc., with the named contact person being Mark Powell (hereinafter “Defendant’s

Agent” or “Agent”). Demolition dates listed on the form were start date of 7/07/2022 and end

date of 7/14/2022. This report was provided by Plaintiff to Defendant as part of an application to

build a new home on the Property.

4. Also on June 22, 2022, Plaintiff called the Defendant and said he just purchased

the home and had plans to demolish it, wanted the water meter shut off so he could proceed

getting needed permits for demolition. Defendant created Task 241866 in their task order

program to process Plaintiff’s request.

Defendant’s Answer and Counterclaim

Page 13 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.37 Page 14 of 20

5. On June 28, 2022, Defendant requested Plaintiff pick up garbage and recycle cans

because home is being demolished. Defendant created Task 244151 to process Plaintiff’s

request.

6. Also on June 28, 2022, Defendant requested Plaintiff turn water back on because

home won’t be demolished for a few more weeks and he needs water for neighbor’s horses. Task

244156 was created to process Plaintiff’s request.

7. On July 15, 2022, in the Asbestos and Lead Paint Online Portal a revision to the

demolition notification form was accepted. The Demolition Contractor was still listed as MKP

Enterprises, Inc. with the named contact person being Mark Powell, Plaintiff’s Agent.

Demolition dates listed on the form were start date of 7/07/2022 and end date of 7/22/2022. The

form had a comment “Contractor has put a hold on project for a few days until a utility line issue

is resolved.”

8. On July 17, 2022, Defendant received an application from Plaintiff for a new

home to be built at the Property address, 11636 S. Gold Dust Drive, South Jordan, Utah. The

applicant registered with the City’s online submission system as “Greg Young”, address: 11528

South Old Cedar Rd, South Jordan, UT 84095. Plaintiff submitted the following as part of his

application "Planning to tear down the existing home. I have power and water capped and off.

Gas line cap fee paid and dominion should have filed for excavation permit. I have air quality

letter and health department. Now plan to build a single family residence for my family."

9. On July 18, 2022, Defendant determined the application was incomplete and

notified Plaintiff he would need to apply for a demolition permit and demolish the existing house

prior to approval for a new home to be built on the Property.

Defendant’s Answer and Counterclaim

Page 14 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.38 Page 15 of 20

10. Plaintiff’s Agent possessed authority from Plaintiff to demolish the structure on

the Property due to a verbal agreement between Plaintiff and Plaintiff’s Agent which was made

via phone conversations and emailed price negotiations.

11. Plaintiff has in the past via verbal agreements utilized Plaintiff’s Agent for

demolition work. Due to past history of working together, and the verbal conversations and

emails Plaintiff’s Agent was confident he had actual authority to utilize subcontractors and other

third parties, including the Fire Department to facilitate demolition.

12. On Thursday July 21, 2022, The City met with Plaintiff’s Agent, the demolition

contractor selected by Plaintiff. Plaintiff’s Agent was informed of the nature of the training

exercises to be performed on the Property and said it would be fine.

13. Plaintiff’s Agent informed the City that Plaintiff planned to file for a demolition

permit on Tuesday July 26, 2022 and he planned to demolish the home by Thursday July 28,

2022.

14. Upon verbal authorization from Plaintiff’s Agent authorizing Defendant to cause

damage to the structure to facilitate the demolition while proceeding with firefighter training

activities, on July 22, 2022, the City’s Fire Department examined the house utilities, confirmed

they had been removed or disconnected by the Plaintiff and did a walk-through of the house with

permission from Plaintiff’s Agent.

15. Also on July 22, 2022, Defendant found exterior light fixtures were removed,

front entrance door was removed, back sliding door was open, garage on the north side of the

dwelling was open and unsecured, there existed two holes in the floor approximately 6-8 inches,

wood flooring was partially removed, stair railing leading to the basement had been removed,

Defendant’s Answer and Counterclaim

Page 15 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.39 Page 16 of 20

there was yellow caution tape around the stairs, numerous windows were already broken,

cabinets were removed from the walls, and multiple interior light fixtures were broken and/or

hanging.

16. Also on July 22, 2022, Defendant received email confirmation from Dominion

Energy “that the gas line located at the following address, 11636 Gold Dust Dr. South Jordan,

has been killed.”

17. On July 22, 2022, Plaintiff’s Agent gave written permission to Defendant (by

signing a release of liability and authorization to damage structure agreement, dated July 22,

2022, hereinafter the “Agreement”) to utilize the structure located on the Property which was

scheduled for imminent demolition for fire suppression related training of firefighters.

18. Plaintiff’s Agent asserted in the Agreement that he was authorized to execute the

document, the structure was intended for demolition, and the Defendant was released from all

claims of damage to the building.

19. On July 23, 2022, Plaintiff uploaded additional documents to his application for a

new home to be built, indicating his intention to move forward with his plans to demolish the

existing structure and to build a new home on the lot.

20. Also on July 23, 2022, in reliance on Plaintiff’s multiple statements regarding

demolition of the home, and on the verbal permission from Plaintiff’s Agent and the Agreement,

Defendant lawfully entered the Property and aided in demolition of the structure while

conducting training for firefighters.

21. Also on July 23, 2022 Plaintiff was at the Property and spoke to Defendant.

Defendant told Plaintiff destructive training maneuvers were occurring and that Defendant

Defendant’s Answer and Counterclaim

Page 16 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.40 Page 17 of 20

appreciated the opportunity. Plaintiff walked off to the barn and did not tell Defendant he

believed Defendant was trespassing, he did not ask Defendant to leave, nor did he tell or ask

Defendant to discontinue training operations. Defendant reasonably believed Plaintiff concurred

with the training activities.

22. On July 24, 2022, Plaintiff emailed Defendant additional items for his application

for building a new home on the Property. Plaintiff stated that he was working on getting

additional items for the application.

23. Authorized training operations were conducted at the Property, within the limits

authorized by the Agent (the barn and the fence were not to be destroyed) at various times on

July 23 through July 25, 2022.

24. All of Defendant’s entry and activities inside the structure on the Property were

authorized by Plaintiff through his Agent both verbally and in writing and ratified by the

Plaintiff.

COUNTERCLAIM 1 – BREACH OF CONTRACT

1. Defendant brings this Counterclaim based on Plaintiff’s refusal to honor its

contractual commitments in the Agreement signed by Plaintiff’s Agent.

2. Plaintiff breached the Agreement by improperly attempting to restrict Defendant’s

authorized activities on the Property. The Agreement allows Defendant “to utilize said

structure(s), at a time convenient for them, for use in fire suppression and/or law enforcement

related training of firefighters and/or police officers”. Plaintiff did not terminate the Agreement

in the manner contractually required but rather beginning on July 25, 2022 Plaintiff told

Defendant it was not authorized to use the Property.

Defendant’s Answer and Counterclaim

Page 17 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.41 Page 18 of 20

3. Further, Plaintiff breached the Agreement’s release of Defendant from “all claims

of damage to the building” by filing the above-captioned lawsuit against Defendant for damages

to the Property.

4. Plaintiff’s agent had actual and apparent authority to enter into agreements with

others on behalf of Plaintiff to facilitate the demolition of the home.

5. Plaintiff acted in a way that would cause a reasonable person to believe that he

consented to or knowingly permitted Mark Powell’s conduct. Specifically Plaintiff filed an

application with Defendant to build a new home on the property in place of the existing

structure. As part of the application Plaintiff submitted documents to the City that named

Plaintiff’s demolition contractor as MKP Enterprises, Inc. with the named contact person being

Mark Powell. Plaintiff also did not stop or object to training activities when he visited the home

on July 23 and spoke to Defendant’s employees then engaged in training.

6. Plaintiff provided documents to Defendant that listed demolition dates with a start

date of 7/07/2022 and end date of 7/22/2022. The form had a comment “Contractor has put a

hold on project for a few days until a utility line issues is resolved.” This informed the Defendant

clearly that Contractor possessed decision making duties related to the demolition of the

structure on the Property.

7. Mark Powell signed the Agreement with the Defendant. At the time, the

Defendant knew Plaintiff had listed Mark Powell as the contact person for the demolition

contractor and that the home was set to be demolished within a week or less (per the submitted

documents, the utilities Plaintiff had caused to be turned off, Plaintiff’s own statements during

Defendant’s Answer and Counterclaim

Page 18 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.42 Page 19 of 20

phone conversations with the Defendant regarding utilities, the home that had damage consistent

with salvage operations, and the representations made to the City by Mark Powell).

8. Mark Powell allowed the City to walk through the property and assess the home’s

condition for use in firefighter training operations. Mark Powell agreed both verbally and in

writing that the City had permission to enter the structure which was set for demolition to

facilitate the demolition and that he realized the structure may be completely destroyed and after

the usage the structure would have little if any value. Mark Powell also released the City from all

claims of damage to the building.

9. Due to Plaintiff’s actions and representations, the Defendant believed Mark

Powell had the authority to allow the Defendant to enter the Property and perform training

operations which would help demolish the structure. If Mark Powell in fact did not possess the

authority to enter the Agreement or permit Defendant’s access to the Property a reasonable

person could not have known that based on Plaintiff’s actions so Plaintiff remains bound to the

Agreement based on apparent authority.

10. Defendant has suffered damages in an amount to be determined at trial.

COUNTERCLAIM 2 – BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING

1. Defendant repeats, re-alleges, and incorporates by reference the above Statement

of Facts, paragraphs 1 through 22.

2. Utah law recognizes an implied duty of good faith and fair dealing in all contracts

to protect a party’s reasonable expectations in the absence of the breach of an express term.

3. With this knowledge, Plaintiff acted in bad faith by claiming Defendant caused

damage to a structure when all of Defendant’s actions were authorized by Plaintiff’s Agent and

Defendant’s Answer and Counterclaim

Page 19 of 20
 Case 2:22-cv-00679-CMR Document 6 Filed 11/18/22 PageID.43 Page 20 of 20

when the structure was scheduled to be demolished in a few days, thereby negating any claim for

damages.

4. Plaintiff also acted in bad faith by alleging he had no knowledge that Defendant

was conducting training at the Property when on July 23, 2022 Plaintiff was himself at the

Property while Defendant was conducting maneuvers.

5. Defendant has a reasonable expectation that Plaintiff would comply with his

representations regarding the demolition of the structure, with documents where he named Mark

Powell as his agent and demolition contractor, and with the representations and signed agreement

made by Plaintiff’s Agent.

6. Defendant has suffered damages in an amount to be determined at trial.

PRAYER FOR RELIEF

Wherefore, based on the allegations set forth above, Defendant seeks judgment against

Plaintiff as follows:

1. Actual and Compensatory Damages in an amount to be proven at trial;

2. Attorneys’ fees and costs; and

3. Such other relief as the Court deems just and proper.

JURY DEMAND

Defendant respectfully requests a jury trial and have submitted the appropriate fee.

DATED this 18th day of November 2022.

/s/ Gregory M. Simonsen

Gregory M. Simonsen
Attorney for Defendant

Defendant’s Answer and Counterclaim

Page 20 of 20