## Facts

- Price-Orem Investment Company owned and developed a shopping center site.
- A general contractor (John Price Associates, Inc. (JPA)) hired Rollins, Brown & Gunnell, Inc., a surveying firm, to survey and stake the site and certify the property boundaries.
- The next year, JPA again hired the surveying firm to stake the location of the first building (the “Skaggs” building).
- Instead of using its original survey or field notes, the surveyor staked the building by referring to construction and site plans and by using an apparent property corner marked by rebar and a labeled wooden stake.
- The apparent corner was approximately thirty feet south of the true corner, causing a thirty-foot placement error in the building staking.
- About one month later, the surveyor discovered the error during additional survey work; representatives of the surveyor, JPA, and Price-Orem met at the site after substantial concrete and related work had already been completed.
- Price-Orem accommodated the error by reducing planned shop space and sued the surveyor for negligence, seeking damages for reduced leasable area.

## Issues

1. Whether JPA was an indispensable party under Utah Rule of Civil Procedure 19 such that Price-Orem’s negligence action had to be dismissed for nonjoinder.
2. Whether the trial court erred by granting the surveyor a new trial after a jury found negligence and awarded damages to Price-Orem.

## Decision

- The Utah Supreme Court reversed the dismissal for failure to join JPA.
- The court held JPA was not an indispensable party whose absence required dismissal under Rule 19.
- The court also held the order granting a new trial was erroneous.
- The case was remanded to the district court for trial.

## Legal Principles

- Rule 19 “indispensability” turns on whether, in equity and good conscience, the action should proceed without the absent person, considering prejudice, ability to shape relief, adequacy of judgment, and whether dismissal would leave an adequate alternative remedy.
- A contractual intermediary (such as a contractor that retained a professional) is not automatically indispensable in a tort action by an injured third party against the professional; the court must evaluate whether complete relief can be accorded and whether the defendant faces a substantial risk of multiple or inconsistent obligations.
- When dismissal for nonjoinder would effectively eliminate the plaintiff’s claim (including due to limitations consequences) without a strong showing of unavoidable prejudice, dismissal is disfavored.
- A surveyor’s certification and staking work may support tort liability to a noncontracting party who is within the class of persons the surveyor should reasonably expect to rely on the work, including for economic loss stemming from negligent misrepresentation or negligent performance.
- A trial court may not set aside a jury verdict and grant a new trial without legally sufficient grounds under governing new-trial standards; absent an adequate basis, the order constitutes error.

## Conclusion

The Utah Supreme Court restored Price-Orem’s action against the surveying firm by holding the contractor was not an indispensable party under Rule 19 and by rejecting the trial court’s post-verdict grant of a new trial, remanding for further proceedings.


Price-Orem Inv. Co. v. Rollins, Brown & Gunnell, Inc., 713 P.2d 55 (Utah 1986)