Eaglepointe Development Response and Counter Claims

Benson L. Hathaway, Jr. (Bar No.
4219)
R. Gary Winger (Bar No.6456)
Analise Q. Wilson (Bar No. 13845)
KIRTON McCONKIE
50 East South Temple, Suite 400
P.O. Box 45120
Salt Lake City, Utah 84111-1004
Telephone: (801) 328-3600
bhathaway@kmclaw.com
gwinger@kmclaw.com
aqwilson@kmclaw.com
Attorneys for Defendants Eaglepointe Development, L.C.,
SKY Properties, Inc., B & E Pace Investment, LLC;
and Excel Investment Corp.
IN THE SECOND JUDICIAL DISTRICT COURT

IN AND FOR DAVIS COUNTY, STATE OF UTAH
KERN RIVER GAS TRANSMISSION

COMPANY, a Texas General Partnership,
Plaintiff,
v.
EAGLEPOINTE DEVELOPMENT, L.C., a
Utah limited liability company; SKY
PROPERTIES, INC., a Utah corporation; B &
E PACE INVESTMENT, LLC, a Utah limited
liability company; EXCEL INVESTMENT
CORP., a Utah corporation; and GSH
GEOTECHNICAL, INC., a Utah corporation;
and JOHN DOES 1-10,
Defendants.
liability company; and EXCEL
INVESTMENT CORP., a Utah corporation,
Counterclaimants,
ANSWER, COUNTERCLAIM,
CROSSCLAIM, AND THIRD PARTY
COMPLAINT
Civil No. 150700450

Honorable David R. Hamilton
Tier 3
v.
KERN RIVER GAS TRANSMISSION
COMPANY,
Counterclaim Defendant.

Cross Claimants,
v.
GSH GEOTECHNICAL, INC
Cross Claim Defendants.

Third Party Plaintiffs,
v.
SANKIS, LLC; EAGLERIDGE TENNIS
CLUB, INC.; JEANETTE EVANS; PAUL
EVANS; and EARTHTEC ENGINEERING,
INC.; and JOHN DOES 1-10,
Third Party Defendants.
In response to Plaintiff Kern River Gas Transmission Companys (Kern River) complaint
(Complaint), Defendants Eaglepointe Development, LLC, (Eaglepointe), Sky Properties,
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Inc., B&E Pace Investment, LLC, and Excel Investment Corp. (Landowners), through counsel
of record, hereby answer by admitting, denying and affirmatively averring as follows:
INTRODUCTORY STATEMENT
A focused and intense rain storm on August 5, 2014 triggered a landslide in the foothills
of North Salt Lake resulting in damage to a home, improvements and property. The August 5th
storm was the final contributing factor in the collapse of the hillside in North Salt Lake City. It
turns out that the structural integrity of the hillside had been incrementally degraded in the years
leading up to the August 5th storm by such things as increased groundwater flows diverted from
natural channels and concentrated into the failed hillside via man-made aquifers (including Kern
Rivers pipeline trench); the removal of the toe of the failed hillside in the development of the
foot of the slope; excessive landscape irrigation; and, the natural geological make-up and
material strata of the failed hillside. Kern River notes that it was quick to hire geotechnical
experts to advise it on the protection of the integrity of its pipeline and [to] ensure [itself] of the
safe operation of [its] pipelines. In contrast, notwithstanding these multiple causes and conduct
of others, and notwithstanding only a small portion of the collapsed hillside is on Eaglepointes
property, Eaglepointe began immediately and continues through the present, to act quickly and in
the public interest.
Over the course of the ensuing ten months and at its sole expense,
Eaglepointe has, among other things, paid for temporary housing for displaced families, repaired
damaged real and personal property of threatened homeowners, built and paid for a replacement
home for a family whose home was destroyed, and hired geotechnical engineers to design a plan
to repair and secure the failed hillside.
By its Counterclaim, Crossclaim and Third Party
Complaint, Eaglepointe seeks to have the responsible parties pay for the damage resulting from
the August 5, 2014 failure of the North Salt Lake hillside.
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FIRST DEFENSE
Plaintiffs Complaint fails to state a claim upon which relief can be granted against the
Eaglepointe and the Landowners.
SECOND DEFENSE
In response to the specific allegations of the Complaint, Eaglepointe and the Landowners:
1.
Admit paragraph 1.
2.
Admit paragraph 2.
3.
Admit paragraph 3.
4.
Admit paragraph 4.
5.
Admit paragraph 5.
6.
Admit paragraph 6.
7.
Admit paragraph 7.
8.
Admit paragraph 8.
9.
Admit paragraph 9.
10.
Admit paragraph 10.
11.
Admit Kern Rivers Pipelines are to be located within the boundaries of a Right-
of-Way Easement, that the Right-of-Way Easement speaks for itself, but deny the remaining
allegations of paragraph 11.
12.
Admit Eaglepointe developed Lots 1901 through 1907 and 1813 of the
Eaglepointe Estates, but deny the remaining allegations of paragraph 12.

13.
Admit Eaglepointe Estates includes a Sensitive Area District as designated by
North Salt Lake; that North Salt Lake Ordinance 10-12-1 et seq. speaks for itself, but deny the
remaining allegations of paragraph 13.
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14.
Admit North Salt Lake Ordinance 10-12-1 et seq. speaks for itself, but deny the

15.
Admit Eaglepointe commissioned an engineering study in 2003 from AGEC, that
the 2003 Study speaks for itself, but deny the remaining allegations of paragraph 15.
16.
Admit the 2003 Study speaks for itself, but deny the remaining allegations of
paragraph 16.
17.
Are without knowledge and information sufficient to form a belief about the truth
of the statement in paragraph 17.

18.
Admit Eaglepointe developed its property and that of adjoining Landowners, but
deny the remaining allegations of paragraph 18.

19.
Admit Eaglepointe commissioned an engineering study in compliance with city
ordinances dated June 12, 2013 and supplemented November 14, 2013, that the 2013 Study, as
supplemented, speaks for itself, but deny the remaining allegations of paragraph 19.
20.
paragraph 20.
21.
paragraph 21.
22.

23.
paragraph 23.
24.

25.
Deny paragraph 25.

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26.
Deny paragraph 26.
27.
Admit paragraph 27.
28.
Admit Eaglepointe contacted GSH, that the GSH Supplement speaks for itself,
but deny the remaining allegations of paragraph 28.

29.
Admit the GSH Supplement speaks for itself, but deny the remaining allegations
of paragraph 29.
30.
Deny paragraph 30.
31.
Admit a landslide occurred on August 5, 2014, but deny the remaining allegations
of paragraph 31.
32.
Admit paragraph 32.
33.

34.

35.

36.
Deny paragraph 36.
37.
Deny paragraph 37.
38.
Deny paragraph 38.
39.

40.
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41.

42.
Incorporate responses to paragraphs 1 through 41 above.
43.
Deny paragraph 43.
44.
Deny paragraph 44.
45.
Deny paragraph 45.
46.

47.
Deny paragraph 47.
48.
49.
Deny paragraph 49.
50.
Deny paragraph 50.
51.
Deny paragraph 51.
52.
53.
Admit Eaglepointe is aware of the contents of the 2003 Study, but deny the

54.
Deny paragraph 54.
55.
Deny paragraph 55.
56.
Deny paragraph 56.
57.
Deny paragraph 57.
58.
59.
Admit GSH was engaged by Eaglepointe, that GSHs several studies and reports
speak for themselves, but deny the remaining allegations of paragraph 59.
60.
Admit paragraph 60.

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61.
Admit paragraph 61.
62.
Admit paragraph 62.
63.
Admit paragraph 63.
64.

65.
Admit the Eaglepointe and the Landowners relied on GSHs representations, but
are without knowledge and information sufficient to form a belief about the truth of the
remaining statement in paragraph 65.
66.
Deny paragraph 66.
67.
Deny paragraph 67.
68.
69.
Deny paragraph 69.
70.
Deny paragraph 70.
71.
Deny paragraph 71.
72.
Deny paragraph 72.
73.
Deny paragraph 73.
Deny every allegation not specifically admitted in this Answer.

THIRD AFFIRMATIVE DEFENSE
Plaintiffs claims are barred in whole or in part by the doctrine of unclean hands.
FOURTH AFFIRMATIVE DEFENSE

Plaintiff has waived, or is estopped by its own actions upon which Eaglepointe and the
Landowners reasonably relied from asserting, all or part of the claims set forth in its complaint.
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FIFTH AFFIRMATIVE DEFENSE

Plaintiffs claims are barred in whole or in part by the doctrine of laches and/or the
applicable statutes of limitations including, but not limited to Utah Code 78B-2-305, 307, 309
and 314.
SIXTH AFFIRMATIVE DEFENSE
Plaintiffs claims are barred in whole or in part by Plaintiffs failure to mitigate its
damages.
SEVENTH AFFIRMATIVE DEFENSE
Eaglepointe and the Landowners specifically reserve the right to assert any additional
defenses.
PRAYER FOR RELIEF
WHEREFORE, Eaglepointe and the Landowners demand relief on the Complaint as
follows:
A.
For an order dismissing each and every claim for relief in the Complaint against
Eaglepointe and the Landowners with prejudice and on the merits;

B.
For Eaglepointe and the Landowners attorneys fees and costs to the extent
permitted by law; and

C.
For such further relief as the Court may deem appropriate.
COUNTERCLAIM, CROSS CLAIM AND THIRD PARTY COMPLAINT

For Counterclaim, Crossclaim and Third Party Complaint against the following parties,
Eaglepointe Development, L.C., SKY Properties, Inc., B & E Pace Investment, LLC, and Excel
Investment Corp. allege and complain as follows:
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Parties, Jurisdiction and Venue

1.
Eaglepointe Development, L.C. (Eaglepointe), is a Utah limited liability company
with its principal place of business in Davis County, Utah.
2.
Sky Properties, Inc. (Sky Properties), is a Utah corporation with its principal place
of business in Davis County, Utah.
3.
B & E Pace Investment, LLC (B & E Pace), is a Utah limited liability company
with its principal place of business in Davis County, Utah.
4.
Excel Investment Corp. (Excel) is a Utah corporation with its principal place of
business in Davis County, Utah. SKY, B & E Pace and Excel are collectively referred to as
Landowners.
5.
Counterclaim Defendant Kern River Gas Transmission Company (Kern River) is a
Texas general partnership with its principal place of business in Salt Lake City, Utah.
6.
Crossclaim Defendant GSH Geotechnical, Inc. (GSH), is a Utah corporation with
its principal place of business in Salt Lake County, Utah.
7.
Third Party Defendant Sankis, LLC (Sankis) is, on information and belief, a Utah
limited liability company with its principal place of business in Davis County, Utah.
8.
Third Party Defendant Eagleridge Tennis Club, Inc. (Eagleridge) is, on information
and belief, a Utah corporation with its principal place of business in Davis County, Utah.
9.
Third Party Defendants Jeanette and Paul Evans (Evans) are individuals residing in
Davis County, Utah.
10.
Third Party Defendant Earthtec Engineering, Inc. (Earthtec) is, on information and
belief, a Utah corporation with its principal place of business in Weber County, Utah.
11.
Third Party Defendants John Does 1-10 include but are not limited to any companies
or individuals who have caused or contributed to the cause of the landslide that is the subject of this
lawsuit, or owners, members, shareholders, officers or directors of any company party identified
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herein which is shown to have been undercapitalized, dissolved or otherwise failed to comport with
proper corporate formalities.
12.
This dispute arises from the parties ownership of real property and real property
rights and interests located in Davis County, Utah; contracts entered into and to be performed in
Davis County, Utah; and conduct of the parties occurring in Davis County, Utah.
13.
This court is vested with jurisdiction over this matter pursuant to Utah Code 78A-5-
14.
Venue is properly laid in this district pursuant to Utah Code 78B-3-301, 304 and
102.
307.
General Allegations
15.
A focused and intense rain storm on August 5, 2014 triggered a landslide in the
foothills of North Salt Lake resulting in damage to a home, improvements and property
(Landslide).
Facts Concerning Kern River

16.
Kern River is the owner and operator of certain gas transmission facilities, including
two 36-inch natural gas pipelines (the Pipelines) which pass through North Salt Lake, Utah (the
City).
17.
Kern Rivers Pipelines are located within the boundaries of an Exclusive Right-of-
Way Easements held by Kern River (the Easements). The Easements grant Kern River right-ofways for the purpose of constructing and locating its Pipelines, as well as all rights necessary to
operate, protect, and maintain the Pipelines.
18.
The Pipelines are located southwest of the Landslide area and are oriented in a
southeast to northwest direction roughly oblique to slide movement. At its nearest point, one of Kern
Rivers pipelines is located approximately 130 feet southwest of the left flank of the Landslide.
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19.
In the fall of 2010, Kern River began to excavate a major trench at the top of the
landslide area for the installation of a major gas pipeline.
20.
Kern Rivers installation of this gas pipeline at the top of the slope altered the natural
groundwater hydrology as a result of the trenching activities and pipeline alignment, creating a
conduit for groundwater flows, consequently diverting more water from historic natural channels and
aquifers into the slope where the Landslide occurred.
21.
The increased groundwater flow disturbed the slopes stability.
22.
As a result of this instability, on the morning of August 5, 2014, the Landslide
occurred south of Parkway Drive in North Salt Lake, Utah.
Facts Concerning GSH

23.
In the late 1990s, Eaglepointe developed land in North Salt Lake City, including
what would eventually become Lots 1901 through 1907 and 1813 of the Eaglepointe Estates
development (Property).
24.
In 2013, in the course of seeking approval from the City for development of Phase 19
of Eaglepointe Estates, including the Subject Property, Eaglepointe commissioned another

engineering study in compliance with city ordinances in order to evaluate the feasibility of
development and identify geologic hazards associated with the site. This study, by GSH (2013
Study), was originally dated June 12, 2013.
25.
Among other things, GSH was engaged by Eaglepointe through its agent, SKY
Properties, Inc., to evaluate the stability of the Property and suitability for development, as well as to
prescribe conditions to be observed by Eaglepointe to ensure that adequate soil stability was
maintained.
26.
GSH was aware, or should have been aware that the 2013 Study would be relied upon
by Eaglepointe and, on information and belief, filed it with North Salt Lake City and/or Davis
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County, as required by law. GSH was aware that North Salt Lake City and others would rely on the
2013 Study and GSHs recommendations therein in governing development of the Property.
27.
Eaglepointe did reply upon GSHs study and representations and followed GSHs
recommendations in developing the Property.
28.
GSH owed Eaglepointe both a common law and contractual duty to perform its work
to industry standards and exercise the care and diligence of professionals in its industry.
29.
Upon information and belief, GSH failed to adequately evaluate the Property.
Specifically, GSH failed to obtain and consider sufficient data, failed to properly evaluate its data and
reach correct conclusions, and failed to make proper recommendations that would ensure continued
stability of the hillside and adjacent to the Property.
30.
Upon information and belief, GSH, in its 2013 Study, negligently misrepresented the
nature and geotechnical condition of the soils in the area of the Property, and negligently
misrepresented the stability of the hillside on and adjacent to Eaglepointes Property.
31.
In late September or early October 2013, evidence of hillside movement was
observed on real property owned by the Evans at 321 East Parkway Circle, and property owned by
North Salt Lake City extending downhill to the northwest, near and adjacent to the Property.
Specifically, a crack formed through the east corner of the Evans lot.
32.
Eaglepointe contacted GSH to investigate the cause of the cracking. Pursuant to
Eaglepointes request, GSH supplemented its 2013 Study on November 14, 2013 (GSH
Supplement). In supplementing its report, GSH excavated test pits to a depth of 5-8 feet in the area,
and concluded in the GSH Supplement: [T]here may have been movement along the fill/natural
clay contact; thus, it is our opinion that the slide is shallow and not deeper than a few feet below the
existing ground surface.
33.
Based on GSHs recommendations, Eaglepointe continued with its development
work on its Property and adjoining lands during the spring and summer of 2014.
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34.
To the extent Eaglepointes actions contributed to the Landslide, those actions
were a direct result of and in reliance on information provided Eaglepointe by GSH.

Facts Concerning Sankis and Eagleridge
35.
Sankis and Eagleridge Tennis Club, Inc. (S&E) are, on information and belief the
owners of certain real property in Davis County, Utah, situated at the base of the hillside which failed
on August 5, 2104. S&E are also the owners and operators of the Eagleridge Tennis & Swim Club
(Club), located at 711 South Parkway Drive, North Salt Lake, between Parkway Drive to the north
and Eaglepointe Drive to the south.
36.
The Club consists of parking lots along the northwestern and western boundaries; a
main building situated between two large, metal-framed tents covering three tennis courts each; a
large pool and patio area; and an outbuilding.
37.
Since the late 1990s, Eaglepointe has been the developer and owner of certain land in
North Salt Lake, Utah, which was portioned out in development phases containing residential lots to
be sold as part of a residential real estate development (Eaglepointe Estates).
38.
On or about August 13, 2003, Eaglepointe negotiated and entered into an Eaglepointe
Earnest Money Sales Agreement (Agreement) with S&E for the sale of lot numbers 508, 509, and
510 of the Eaglepointe Subdivision plat 5, where the Club is now located.
39.
Upon acquiring these lots, S&E developed them for the construction of the Club.
40.
In S&Es efforts to expand the parking and to flatten more of the land for the
installation of additional tennis courts, S&E cut and removed the toe of the existing 2H:1V slope of
the hillside and constructed a 15 to 20 high retaining wall in its place.
41.
This excavation of material from the toe of the slope and placement of retaining walls
adversely impacted the slopes stability by, among other things, removing lateral support of the hill
and rendering the slope unable to maintain its grade and structure.
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42.
As a result of this instability and lack of lateral support, on the morning of August 5,
2014, the Landslide occurred south of Parkway Drive, damaging the real and personal property of
Eaglepointe, SKY, B&E, Excel and others.
Facts Concerning the Evans

43.
The Evans own property above the Landslide adjacent to Eaglepointes
development.
44.
In September, 2013, the Evans reported to Eaglepointe and others that a fissure had
appeared in the back, northwestern corner of their lot.
45.
Eaglepointe engaged GSH to inspect the fissure and provide recommendations to
Eaglepointe how to remediate the fissure to enable Eaglepointe to continue to work on its Property.
46.
In response, GSH provided Eaglepointe its 2013 Study.
47.
In reliance on GSHs study, Eaglepointe remediated the fissure on the corner of the
Evans lot.
48.
According to the records of North Salt Lake Public Works, the Evans used the
following amounts of water during the following years in irrigating his lot and landscaping:
a. 2010: 509,000 gallons;
b. 2011: 330,000 gallons;
c. 2012: 416,000 gallons;
d. 2013: 385,000 gallons; and
e. 2014: 556,000 gallons.
The Evans water use totals nearly 2 times more gallons per year than their neighbor who owns
a comparably sized lot.
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49.
The Evans use of water during the summer of 2014 for purposes of irrigating
their yard and landscaping was extreme and excessive, which excess water, on information and
belief, migrated into the hillside which failed in August 2014 as part of the Landslide.
50.
Upon information and belief, the Evans historical practice of introducing
excessive amounts of water into the soils and hillside above and about the Landslide area
resulted in water migrating into the hillside following the natural drainage flows and grade, and
contributed to the instability of the soil.
51.
Upon information and belief, the resulting instability contributed to the Landslide.
Facts Concerning Earthtec
52.
In 2013, in the course of seeking approval from the City for the construction of a
home on Lot 1813 of the Eaglepointe Estates Phase 18, including part of the subject property,
Eaglepoint commissioned another engineering study in compliance with city ordinances in order
to evaluate the feasibility of proposed construction and to identify geologic hazards associated
with the site. This study, by Earthtec (Earthtec Study), was dated April 5, 2013.
53.
Among other things, Earthtec was engaged by Eaglepointe to evaluate the
stability of Lot 1813 and its suitability for home construction, as well as to prescribe conditions
to be observed by Eaglepointe to ensure that adequate soil stability was maintained.
54.
Earthtec was aware, or should have been aware that the Earthtec Study would be
relied upon by Eaglepointe in improving Lot 1813 and, on information and belief, subsequent
owners of Lot 1813 and the public generally.
55.
Eaglepointe relied upon the Earthtec Study and its representations and followed
Earthtecs recommendations in improving Lot 1813.

56.
Earthtec owed Eaglepointe both a common law and contractual duty to perform
its work to industry standards and exercise the care and diligence of professionals in its industry.
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57.
Upon information and belief, Earthtec failed to adequately evaluate Lot 1813.
Specifically, Earthtec failed to obtain and consider sufficient data, failed to properly evaluate its
data and reach correct conclusions, and failed to make proper recommendations that would
ensure continued stability of the hillside on and adjacent to Lot 1813.
58.
Upon information and belief, Earthtec, in its Earthtec Study, negligently
misrepresented the nature and geotechnical condition of the soils in the area of Lot 1813, and
negligently misrepresented the stability of the hillside on and adjacent to Eaglepointes lot.
59.
To the extent Eaglepointes actions contributed to the Landslide, those actions on
Lot 1813 were a direct result of and in reliance on information provided Eaglepointe by Earthec.
FIRST CLAIM FOR RELIEF
(Negligence Against Kern River)
60.
Eaglepointe and the Landowners incorporate and reallege the facts and allegations
set forth in Paragraphs 1-59 above.

61.
As the owner of a property interest, Kern River has a duty to use and maintain its
property in a manner that will not injure surrounding property owners use and enjoyment of
their property.
62.
Kern River breached that duty by, among other things, excavating a major trench
in the slope and altering the ground water hydrology, resulting in the transmission of water onto
the hillside where the Landslide occurred.
63.
As a result of Kern Rivers breach, Eaglepointe and the Landowners have
sustained damages and continue to sustain damages in an amount to be shown at trial.

SECOND CLAIM FOR RELIEF
(Negligence Against GSH)
64.

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65.
Eaglepointe retained GSH to perform geotechnical engineering services. Such
work and services included evaluating the feasibility of development and identifying geologic
hazards associated with the Property.
66.
GSH had a duty to perform such work and services in accordance with industry
standards, in accordance with applicable building code(s), in accordance with best practices in
the industry and in accordance with recommendations and requirements imposed by other
geotechnical experts and related studies or reports.
67.
Upon information and belief, GSH breached its duties by failing to, among other
things, obtain and consider sufficient data, failing to properly evaluate its data and reach correct
conclusions, and failing to make proper recommendations that would ensure continued stability
of the Property.
68.
Eaglepointe and the Landowners have been damaged as a result of the GSHs
defective work.
THIRD CLAIM FOR RELIEF
(Breach of Contract/Warranty-Against GSH)
69.

70.
Eaglepointe entered into a valid and enforceable contract.
71.
Eaglepointe fully performed and satisfied all of its obligations under the
agreement that it entered into with GSH.

72.
GSH failed to complete its work in accordance with the agreement that it entered
into with Eaglepointe.

73.
Eaglepointe has sustained damages as a result of GSHs breach.
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FOURTH CLAIM FOR RELIEF

(Contribution and/or Indemnity- Against GSH)
74.

75.
In the underlying complaint, Kern River makes claims against the Eaglepointe
and the Landowners alleging that the Eaglepointe and the Landowners are responsible for the
Landslide.
76.
Eaglepointe entered into a contract with GSH whereby GSH agreed to evaluate
the feasibility of development and identifying geologic hazards associated with the Property,
such as landslides.
77.
Pursuant to principles of equity and justice, to the extent Eaglepointe and the
Landowners are held liable for damages associated with the Landslide, that liability should be
allocated to GSH.
78.
Eaglepointe and the Landowners have sustained damages in this case due to Kern
Rivers claims related to GSHs work at the project. Eaglepointe and the Landowners will
sustain additional damages in the event Kern River is able to prove the existence of the defects
that are alleged in its complaint.
79.
Eaglepointe and the Landowners are entitled to recover such damages from GSH.
FIFTH CLAIM FOR RELIEF
(Negligence Against S&E)
80.

81.
As a property owner, S&E has a duty to use and maintain its property in a manner
that will not injure surrounding property owners use and enjoyment of their property.
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82.
S&E breached that duty by, among other things, excavating and removing the toe
of the hill, removing lateral support and thereby destabilizing the hillside.
83.
As a result of S&Es breach and the resulting Landslide, Eaglepointe and the
Landowners have sustained damages and continue to sustain damages in an amount to be shown
at trial.
SIXTH CLAIM FOR RELIEF
(Negligence Against the Evans)
84.

85.
As property owners, the Evans have a duty to use and maintain their property in a
manner that will not injure surrounding property owners use and enjoyment of their property.
86.
The Evan breached that duty by, among other things, using excessive and
extraordinary amounts of water on their property over the past several years, which has
incrementally and consistently inundated the soil of the hillside and contributed to its instability.
87.
As a result of the Evans breach and the resulting Landslide, Eaglepointe and the
Landowners have sustained damages and continue to sustain damages in an amount to be shown
at trial.
SEVENTH CLAIM FOR RELIEF
(Negligence Against Earthtec)
88.

89.
Eaglepointe retained Earthtec to perform geotechnical engineering services. Such work
and services included evaluating the feasibility of improvements and identifying geologic hazards
associated with the Property.
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90.
Earthtec had a duty to perform such work and services in accordance with industry
standards, in accordance with applicable building code(s), in accordance with best practices in the
industry and in accordance with recommendations and requirements imposed by other geotechnical
experts and related studies or reports.
91.
Earthtec breached its duties by failing to, among other things, obtain and consider
sufficient data, failing to properly evaluate its data and reach correct conclusions, and failing to make
proper recommendations that would ensure continued stability of Lot 1813.
92.
Eaglepointe and the Landowners have been damaged as a result of the Earthtecs
defective work.
EIGHTH CLAIM FOR RELIEF

(Breach of Contract/Warranty-Against Earthtec)
93.
Eaglepointe and the Landowners incorporate and reallege the facts and allegations set
forth in Paragraphs 1-92 above.
94.
Eaglepointe entered into a valid and enforceable contract with Earthtec.
95.
Eaglepointe fully performed and satisfied all of its obligations under the agreement that it
entered into with Earthec.
96.
Earthtec failed to complete its work in accordance with the agreement that it entered into
with the Eaglepointe.
97.
Eaglepointe has sustained damages as a result of Earthtecs breach.
NINTH CLAIM FOR RELIEF

(Contribution and/or Indemnity- Against Earthtec)
98.

99.
In the underlying complaint, Kern River makes claims against the Eaglepointe and the
Landowners alleging that the Eaglepointe and the Landowners are responsible for the Landslide.
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100.
Eaglepointe entered into a contract with Earthtec whereby Earthtec agreed to evaluate the
feasibility of improvement of and identifying geologic hazards associated with Lot 1813, such as
landslides.
101.
Pursuant to principles of equity and justice, to the extent Eaglepointe and the Landowners
are held liable for damages associated with the Landslide, that liability should be allocated to Earthtec.
102.
Eaglepointe and the Landowners have sustained damages in this case due to Kern Rivers
claims related to Earthtecs work at the project. Eaglepointe and the Landowners will sustain additional
damages in the event Kern River is able to prove the existence of the defects that are alleged in its
complaint.
103.
Eaglepointe and the Landowners are entitled to recover such damages from
Earthtec.
PRAYER FOR RELIEF
WHEREFORE, the Eaglepointe and the Landowners pray for relief against Counterclaim
Defendant, Cross Claim Defendant, and Third Party Defendants as follows:
1.
Under the First Claim for Relief, judgment against Kern River in an amount to be
proven at trial.
2.
Under the Second Claim for Relief, judgment against GSH in an amount to be
proven at trial.
3.
Under the Third Claim for Relief, judgment against GSH in an amount to be
proven at trial.
4.
Under the Forth Claim for Relief, judgment against GSH in an amount to be
proven at trial.
5.
Under the Fifth Claim for Relief, judgment against S&E in an amount to be
proven at trial.
22
4847-2232-2724
6.
Under the Sixth Claim for Relief, judgment against the Evans in an amount to be
proven at trial.
7.
Under the Seventh Claim for Relief, judgment against the Earthtec in an amount
to be proven at trial.
8.
Under the Eighth Claim for Relief, judgment against the Earthtec in an amount to
be proven at trial
9.
Under the Ninth Claim for Relief, judgment against the Earthtec in an amount to
be proven at trial
10.
Attorneys fees and costs incurred in this action; and
11.
Any other relief the Court deems just and equitable.

DATED this 2nd day of June, 2015.
KIRTON McCONKIE
By: /s/Benson L. Hathaway, Jr.

Benson L. Hathaway, Jr.
R. Gary Winger
Analise Q. Wilson
Attorneys for Defendants Eaglepointe
Development, L.C., SKY Properties, Inc.,
B & E Pace Investment, LLC, and Excel
Investment Corp.
23
4847-2232-2724
CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of June, 2015, a true and correct copy of the foregoing
ANSWER, COUNTERCLAIM, CROSSCLAIM AND THIRD PARTY COMPLAINT was
served on the following by the method indicated below:
John A. Snow
Alex B. Leeman
VAN COTT BAGLEY CORNWALL & McCARTHY
36 South State Street, Suite 1900
Salt Lake City, UT 84111-1478
( ) U.S. Mail, Postage Prepaid

( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
(X) E-Filer
Attorneys for Plaintiff
/s/Wendy Maynard
24
4847-2232-2724

Eaglepointe Development Response and Counter Claims

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Eaglepointe Development Response and Counter Claims

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Benson L. Hathaway, Jr. (Bar No.

IN THE SECOND JUDICIAL DISTRICT COURT

KERN RIVER GAS TRANSMISSION

Civil No. 150700450

EAGLEPOINTE DEVELOPMENT, L.C., a

EAGLEPOINTE DEVELOPMENT, L.C., a

By its Counterclaim, Crossclaim and Third Party

Admit paragraph 10.

Eaglepointe Estates, but deny the remaining allegations of paragraph 12.

Admit Eaglepointe Estates includes a Sensitive Area District as designated by

remaining allegations of paragraph 14.

Admit Eaglepointe commissioned an engineering study in 2003 from AGEC, that

of the statement in paragraph 17.

deny the remaining allegations of paragraph 18.

Admit Eaglepointe commissioned an engineering study in compliance with city

of the statement in paragraph 22.

of the statement in paragraph 24.

Deny paragraph 25.

Deny paragraph 26.

Admit paragraph 27.

but deny the remaining allegations of paragraph 28.

Deny paragraph 30.

Admit paragraph 32.

of the statement in paragraph 33.

of the statement in paragraph 34.

of the statement in paragraph 35.

Deny paragraph 36.

Deny paragraph 37.

Deny paragraph 38.

of the statement in paragraph 39.

of the statement in paragraph 40.

of the statement in paragraph 41.

Incorporate responses to paragraphs 1 through 41 above.

Deny paragraph 43.

Deny paragraph 44.

Deny paragraph 45.

of the statement in paragraph 46.

Deny paragraph 47.

Incorporate responses to paragraphs 1 through 47 above.

Deny paragraph 49.

Deny paragraph 50.

Deny paragraph 51.

Incorporate responses to paragraphs 1 through 51 above.

remaining allegations of paragraph 53.

Deny paragraph 54.

Deny paragraph 55.

Deny paragraph 56.

Deny paragraph 57.

Incorporate responses to paragraphs 1 through 57 above.

Admit paragraph 60.

Admit paragraph 61.

Admit paragraph 62.

Admit paragraph 63.

of the statement in paragraph 64.

Deny paragraph 66.

Deny paragraph 67.

Incorporate responses to paragraphs 1 through 67 above.

Deny paragraph 69.

Deny paragraph 70.

Deny paragraph 71.

Deny paragraph 72.

Deny paragraph 73.

Deny every allegation not specifically admitted in this Answer.

FOURTH AFFIRMATIVE DEFENSE