Opinion
BENCH, Senior Judge:
T1 Boggess-Draper Company LLC appeals the district courts grant of the Utah Department of Transportations (UDOT) motion in limine to exclude Boggess-Drapers evidence regarding severance damages in a condemnation proceeding. We reverse the district courts ruling and remand for further proceedings.
BACKGROUND
1 2 Boggess—Draperowns several parcels of real property in South Jordan, Utah. In 2001, UDOT sought to condemn a portion of Boggess-Drapers property to expand the intersection of Lone Péak Parkway (which runs north to south) and 11400 South Street (which runs east to west). In 2005, as part of that condemnation proceeding, the district court entered a final judgment (the 2005 Final Judgment) pursuant to an agreement between Boggess-Draper and UDOT, The 2005 Final Judgment states, in relevant part,
To enable [UDOT] to construct and maintain a public highway as a freeway, as contemplated by Title 72, Chapter 6, Section 117, Utah Code Annotated, 1998, as amended, the Owners of said entire tract of property hereby release and relinquish to said [UDOT] any and all rights appurtenant to the remaining property of said Owners by reason of the location thereof with reference to said highway, including, without limiting the foregoing, all rights of ingress to or egress from said Owners remaining property contiguous to the lands hereby conveyed to or from said highway between said des1gnated Point A and Point B."
T8 Subsequently, in 2010, UDOT filed a condemnation action against another portion of Boggess-Drapers property,. In its amended complaint, UDOT stated that it intended to condemn certain portions of Bog-gess-Drapers South Jordan property adjacent to 11400 South Street on the west side of Lone Peak Parkway (the Subject Property) for the widening and reconstruction of 11400 South Street. UDOT further stated that it is not condemning or acquiring in this action the right of reasonable access to said larger tract of property, nor any right of reasonable ingress and egress to said larger tract of property.
€4 In 2012, Boggess-Draper designated an expert witness to offer opinions on the value of UDOTs taking, including severance damages. - The expert concluded that UDOTs taking caused a loss of access, view, and exposure to the remainder of the Subject Property and that it resulted in severance damages.
15 Thereafter, in 2018, UDOT changed tack and filed a motion in limine to exclude all of Boggess-Drapers evidence relating to severance damages at trial because UDOT [had] previously acquired all rights appurtenant to [the Subject Property] from Defendant Boggess-Draper. It argued that [hlaving previously acquired those rights, and having already paid for them, UDOT should not now face severance damage claims relating to rights that Boggess-Draper does not own. In making this argument, UDOT relied on language from the 2005 Final Judgment awarding UDOT all rights appurtenant to the remaining property of said Owners by reason of the location thereof with reference to said highway. According to UDOT, Boggess-Draper could not show that it owned a protectable property interest that is related in any way to the types of severance damages being asserted by its expert appraiser because Boggess-Draper had already conveyed to UDOT all rights appurtenant to the Subject Property in the 2005 Final Judgment.
16 Boggess-Draper opposed UDOTs motion, arguing that in the 2005 Final Judgment, Boggess-Draper did not convey to UDOT all rights appurtenant to the [Subject] Property. - Boggess-Draper also asserted that UDOT had forfeited its argument that Boggess-Draper previously conveyed all rights appurtenant to the [Subject Property] by failing to raise the issue at the outset of this litigation.
T7 On December 28, 2018, the district court held a hearing on UDOTs motion and heard arguments regarding the meaning of the 2005 Final Judgment and the proper interpretation of the parties agreement. During the hearing, Boggess-Draper argued that there was an ambiguity as to what the parties intended with [the] language all rights appurtenant to the remaining property of said Owners by reason of the location thereof with reference to said highway because at the time of the 2005 Final Judgment, 11400 South Street was not a state highway west of Lone Peak Parkway. [It] was a city-owned road. In support of its argument, Boggess-Draper directed the district courts attention to several pieces of extrinsic evidence, including (1) a declaration from the attorney who negotiated the 2005 Final Judgment on Boggess-Drapers behalf regarding the parties intent in stipulating to the 2005 Final Judgment, (2) a schematic drawing and the complaint from the 2001 condemnation action, and (3) a summary of the approved appraisal amount for the property taken in the 2001 condemnation action. Boggess-Draper also argued that it should be allowed to conduct additional discovery regarding the parties intent and that the district court was required to look at the parol evidence to determine whether there is or isnt an ambiguity.
T8 UDOT, on the other hand, argued that when read as a whole, there was no ambiguity in the 2005 Final Judgment, that the district court was required to accept additional evidence only if the Court finds an ambiguity that requires the intent of the parties to be explored, and that theres not an ambiguity that would require that type of discovery. The district court concluded, I think I have to look at [parol evidence] after I determine if theres an ambiguity. I dont think I look before I determine that.... If I look at this and determine by viewing it that its not ambiguous, then I dont have to go there.
T9 On May 15, 2014, the district court entered its order granting UDOTs motion in limine. The court found that Boggess-Drapers claims for severance damages [were] all based on claimed losses of rights appurtenant that were previously acquired by UDOT through the 2005 Final Judgment. The court further found that the 2005 Final Judgment was unambiguous because it clearly provides that any and all rights appurtenant of Boggess-Drapers property along 11400 South Street were transferred to UDOT. Because the court determined that there is no ambiguity in the 2005 Final Judgment, it concluded that it would be improper for the Court to consider any extrinsic evidence as to its meaning.
10 As to Boggess-Drapers forfeiture argument, the district court concluded that an evidentiary motion filed more than two months before trial is timely and that UDOTs motion in limine was filed in accordance with the Courts Order during the October 11, 2018 Scheduling Conference, and is consistent with the purposes of the Utah Rules of Civil Procedure and Utah Rules of Evidence. - Consequently, the district court overruled Boggess-Drapers objection to the timeliness of UDOTs motion in limine and granted UDOTs motion, ordering that Bog-gess-Draper, its witnesses, and its counsel refrain from presenting any evidence relating to severance damages at trial.
{11 In lieu of a trial, the parties filed a stipulation resolving all remaining issues on June 17, 2014, and on June 24, the district court entered its final judgment of condemnation and satisfaction of judgment. Bog-gess-Draper timely appealed.
ISSUES AND STANDARDS OF REVIEW
T12 Boggess-Draper first argues that the district court erred in rejecting its argument that Utah Department of Transportation v. Ivers (Ivers II ), 2009 UT 56, 218 P.3d 583, required UDOT to raise its argument that Boggess-Draper had already conveyed the rights appurtenant to the Subject Property at the outset of the condemnation action. A district courts interpretation of case law ... presents an issue of law, which we review for correctness. Torres v. Madsen, 2015 UT App 34, ¶ 8, 344 P.3d 652.
¶ 13 Boggess-Draper next argues that the district court erred in granting UDOTs motion in limine. When a district courts rationale for granting or denying a motion in limine to exelude evidence is based wholly on a legal conclusion, we will review the district courts decision for correctness. Ford v. American Express Fin. Advisors, Inc., 2004 UT 70, ¶ 33, 98 P.3d 15. Here, the district courts decision to grant the motion in limine was based on its determination that the 2005 Final Judgment was not ambiguous. Whether the terms of a contract are ambiguous is a question of law.... Oliphant v. Estate of Brunetti, 2002 UT App 375, ¶ 14, 64 P.3d 587 (citation and internal quotation marks omitted). Thus, we review the district courts ruling on UDOTs motion in limine for correctness. Ford, 2004 UT 70, ¶ 33, 98 P.3d 15.
ANALYSIS
I. UDOT Did Not Forfeit Its Argument That It Already Owned the Rights Appurtenant to the Subject Property.
114 Boggess-Draper first contends that the district court erred by failing to recognize that UDOT forfeited its argument that Boggess-Draper had previously conveyed to UDOT all rights appurtenant to the Subject Property through the 2005 Final Judgment. Although UDOT filed the motion within the time allowed under the district courts scheduling order, Boggess-Draper asserts that it was untimely because UDOT did not raise the argument at the outset of this litigation and changed its position only a few months before the trial in this matter was scheduled to begin. In support of its forfeiture argument, Boggess-Draper relies on our supreme courts decision in Ivers II However, Bog-gess-Drapers reliance on Ivers II is misplaced.
115 Ivers II was an appeal following remand from an earlier appeal. Ivers II, 2009 UT 56, ¶ 1, 218 P.3d 583. See generally Ivers v. Utah Dept of Transp. (Ivers I), 2007 UT 19, 154 P.3d 802, overruled by Utah Dept of Transp. v. Admiral Beverage Corp., 2011 UT 62, 275 P.3d 208. In the initial appeal, Ivers I, the supreme court had been asked to consider whether an owner of condemned property could recover severance damages for loss of view where the view-impairing structure was not built on the condemned property but was part of the project for which the property was condemned. Ivers II, 2009 UT 56, ¶ 1, 218 P.3d 583. The supreme court determined that it could and remanded the case for the district court to determine whether the condemned property was essential to the project and, if so, ... to award [the property owner] appropriate damages. Id. However, on remand, UDOT filed a motion in limine to preclude testimony indicating that the owner of the condemned property owned a right of view, on the ground that the property owners predecessors in interest had previously relinquished any and all appurtenant rights, including the right of view, to UDOT. Id. 6. The district court initially denied the motion as an untimely motion to amend the complaint but later accepted UDOTs argument that it had the right to amend its taking at any time during the course of the proceedings" and declined to award the property owner severance damages. Id. T1 6-7.
1 16 The property owner appealed, and the supreme court held that the district court violated the mandate rule by exceeding the scope of [its] remand in Ivers I. Id. 181. The supreme court explained,
UDOTs failure to make apparent in the record before Ivers I the theory that [the property owner] had no right of view, its stipulation prior to final judgment that no triable issues remained, and the necessary implication of [the property owners] right of view in our ruling in Ivers I prohibit UDOT from reframing the issue to its advantage after remand. Indeed, if UDOT had already owned the right of view, it should have raised this at the outset of the case rather than the conclusion. By not doing so, it forfeited the argument and led us to foreclose the issue in Ivers Z.
Id. 1 20; see also id. M 16-17 (distinguishing Ivers II from Madsen v. Washington Mutual Bank fsb, 2008 UT 69, 199 P.3d 898, and explaining that because the appellee [in Madsen] had made the issue apparent in the record before the first appeal and [the court] had not ruled on the merits, the issue was not foreclosed); cf. Peak Alarm Co. v. Salt Lake City Corp., 2013 UT 8, ¶ 13, 297 P.3d 592 (noting that in Ivers II, the district court erroneously exceeded the seope of [the courts] remand, whereas in Peak Alarm, the district court merely entertained-and rejected-a successive affirmative defense, treating an issue on which [the court] had not ruled in [a previous appeal, which was not outside the seope of remand).
" 17 In contrast, when UDOT filed its motion in limine in this case, the case had not been appealed, nor had the district court issued a final judgment, and therefore there was no mandate from an appellate court limiting the seope of the issues that the district court could consider. Consequently, Ivers II has no applicability in the context of this case, and we conclude that the district court did not err in overruling Boggess-Drapers objection to the timeliness of UDOTs motion.
IL, - The District Court Erred in Declining to Consider Boggess-Drapers Extrinsic Evidence.
[18 Boggess-Draper next contends that the district court erred in holding that it would be improper to consider relevant extrinsic evidence in determining whether the 2005 Final Judgment is ambiguous. We conclude that Boggess-Drapers extrinsic evidence indicated the existence of a latent ambiguity in the 2005. Final Judgment and therefore hold that the district court committed reversible error by declining to consider the extrinsic evidence.
The following rules outline Utahs standards for the use of extrinsic evidence in reviewing contractual ambignuities. - Brodkin v. Tuhaye Golf LLC, 2015 UT App 165, ¶ 17, 355 P.3d 224. First, if a contract contains no ambiguity, the court will not consider extrinsic evidence and will en-foree the contract according to its terms. Id. 118 (footnote omitted). Second, if the contract contains a facial ambiguity, the court will consider extrinsic evidence to resolve the ambiguity. Id. 119 (footnote omitted). - Third, if a party contends that an apparently unambiguous contract contains a latent ambiguity, the court will consider extrinsic evidence to determine whether the contract contains a latent ambiguity, and if the court concludes that the contract contains a latent ambiguity, the court will consider extrinsic evidence to resolve the ambiguity. Id. 14 20, 22 (footnote omitted).
20 In determining whether it was appropriate to consider extrinsic evidence in analyzing the 2005 Final Judgment, the district court stated, I think I have to look at [parol evidence] after I determine if theres an ambiguity, I dont think I look before I determine that. ... If I look at this and determine by viewing it that its not ambiguous, then I dont have to go there. While this may be a correct statement of law to the extent that a facial ambiguity is alleged, if a latent ambignity is alleged, the district court should look to extrinsic evidence in determining whether the contract is ambiguous, See id. 1 19-20.
121 Boggess-Draper asserts that at the time of the 2001 condemnation action, the portion of 11400 South Street on the west side of Lone Peak Parkway was a city-owned road rather than a state highway. Accordingly, Boggess-Draper asserts that the language in the 2005 Final Judgment giving UDOT rights appurtenant to the remaining property of Boggess-Draper by reason of the location thereof with reference to said highway is ambiguous. This argument fails to establish a facial ambiguity because a public road constitutes a highway. regardless of whether it is classified as a state highway. See Utah Code Ann. § 72-1-102(7) (LexisNexis 2009) (defining highway for purposes of Utahs Transportation Code as any public road, street, alley, lane, court, place, viaduct, tunnel, culvert, bridge, or structure laid out or erected for public use, or dedicated or abandoned to the public, or made public in an action for the partition of real property, including the entire area within the right-of-way). However, the fact that 11400 South Street was not a state highway does threaten to expose a latent ambiguity in the 2005 Final Judgment because it indicates that the street was not owned by UDOT at the time of the 2005 Final Judgment.
122 A latent ambiguity arises from a collateral matter when the documents terms are applied or executed. Watkins v. Henry Day Ford, 2013 UT 31, ¶ 28, 304 P.3d 841 (quoting Blacks Law Dictionary 93 (9th ed.2009)); accord Mind & Motion Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 39, 367 P.3d 994. The fact that UDOT did not aequire the western portion of 11400 South Street until after the 2005 Final Judg-ment is an objectively verifiable collateral matter that may give rise to a latent ambiguity. See Mind & Motion, 2016 UT 6, ¶¶ 40-42, 367 P.3d 994 (emphasis omitted) (discussing how a latent ambiguity may be established). If UDOT did not own the western portion of 11400 South Street at the time of the 2005 Final Judgment, then the parties intent to grant rights appurtenant with respect to that portion of the highway is called into question. Because Utahs rules of contract mterpretatlon allow courts to consuder any relevant evidence to determme whether a latent ambiguity exists in contract terms that otherwise appear to be [facially] unambiguous, Watkins, 2013 UT 31, ¶ 28, 304 P.3d 841 (alteration in orlgmal) (citation and internal quotation marks omitted), the district court should have considered Boggess-Drapers extrinsic evidence to determine whether the change in ownership of the highway created a latent ambiguity in the 2005 Final Judgment. Cf. id. ¶¶ 29-30 (holding that extrinsic evidence was admissible to show that although the name of the vehicle the parties had contracted to buy had changed between the time of the contract and the time the vehicle became available, the vehicle was the same one for which the parties contracted).
CONCLUSION
123 We conclude that UDOT’s motion in limine was timely. However, we agree with Boggess-Draper that the district court erred in declining to consider extrinsic evidence to determine whether the 2005, Final Judgment contained a latent ambiguity, Accordingly, we reverse the district courts grant of UDOTs motion in limine and remand for additional proceedings consistent with this opinion.
2. The property between Point A and Point B is a narrow strip of land on the east side of Lone Peak Parkway, which the parties refer to as the sliver parcel.
, - We are not unsympathetic to Boggess—braper’s frustration that UDOT changed its position regarding its ownership of rights appurtenant at the eleventh hour,. However, UDOTs motion in limine, despite clearly being an afterthought, was timely,
. - The parties do not dispute that the term highway refers to 11400 South Street; rather, they disagree only as to whether the term highway refers to the entirety of 11400 South Street.
. As the concurrence points out, nothing in the 2005 Final Judgment references astate highway. But our decision does not rest on the assumption that only land bordering a state highway could fall under the 2005 Final Judgment. Rather, the fact that the western portion of 11400 South Street was not a state highway at the time of the 2005 Final Judgment is relevant only because it indicates that UDOT did not own that portion of the highway. The rights appurtenant were conveyed [to enable [UDOT] to construct and maintain a public highway as a freeway. But UDOT could not make a freeway out of a highway it did not own. Thus;-if Boggess-Draper can establish that UDOT did not own the western portion of 11400 South Street at the time of the 2005 Final Judgment because it was not a state highway, then it can establish a latent ambiguity based on the parties understanding of which property constituted the public highway in question at the time of the 2005 Final Judgment.
. The 2005 Final Judgment itself seems to emphasize the point that the parties focus in 2005 was on Boggess-Drapers property lying east of < Lone Peak Parkway. The 2005 Final Judgment expressly references property contiguous to the lands hereby conveyed to or from said highway between said designated Point A and Point B. Both Points A and B lie to the east of Lone Peak Parkway,