Peterson v. Pierce , 440 P.3d 833 ( 2019 )


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    2019 UT App 48
    THE UTAH COURT OF APPEALS
    CAROL H. PETERSON,
    Appellee,
    v.
    MARK A. PIERCE AND JULIE D. PIERCE,
    Appellants.
    Opinion
    No. 20160778-CA
    Filed March 28, 2019
    Fourth District Court, Fillmore Department
    The Honorable Jennifer A. Brown
    No. 130700033
    Dale B. Kimsey, Attorney for Appellants
    Lewis P. Reece and Jonathan P. Wentz, Attorneys
    for Appellee
    JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
    in which JUDGES KATE APPLEBY and DIANA HAGEN concurred.
    CHRISTIANSEN FORSTER, Judge:
    ¶1      Mark A. Pierce and Julie D. Pierce appeal from the
    judgment of the district court in favor of Carol H. Peterson,
    trustee of the Larry A. and Carol H. Peterson Family Trust. The
    district court determined that an easement existed for a joint
    driveway between the parties’ properties and reformed the
    parties’ deeds to rectify a mistake in the deeds. We affirm in
    part, reverse in part, and remand to the district court for further
    proceedings consistent with this opinion.
    BACKGROUND
    ¶2    Appellants Mark A. and Julie D. Pierce and Appellee
    Carol H. Peterson, trustee of the Larry A. and Carol H. Peterson
    Peterson v. Pierce
    Family Trust, own adjacent properties in Millard County, Utah.
    Peterson acquired her property (Peterson Parcel) in July 1997.
    The Pierces acquired the property in which their home sits
    (Parcel 1) in June 1989, and property immediately to the west
    (Parcel 2) in May 1997 (collectively, the Pierce Parcel). See infra
    Appendix. The Pierce Parcel and the Peterson Parcel were all
    previously owned under common ownership by Harold H.
    Hatton and Flora Allie G. Hatton, Peterson’s parents and Julie
    Pierce’s grandparents. The Peterson house is on the Peterson
    Parcel. This house was built in approximately 1975 by Harold
    Hatton after he had retired from farming, and he lived there
    until his death in 1996. The Pierces’ house is located on Parcel 1
    of the Pierce Parcel and was built in the late 1930s.
    ¶3      The Peterson Parcel is located directly north of the Pierce
    Parcel, and along the northern property line of the Pierce Parcel
    is a two-rutted lane (Two Rutted Lane) that has been in existence
    since the late 1930s and has been used as a joint driveway.
    Harold Hatton maintained the Two-Rutted Lane and used it as a
    driveway to access the west side of the property during his
    lifetime. At the time the Hattons, as trustees of the Harold H.
    Hatton Revocable Family Trust (Hatton Trust), conveyed Parcel
    1 of the Pierce Parcel to the Pierces in 1989—and even after the
    line was surveyed and marked in 1997—nobody was clear about
    the exact boundary between the Pierce Parcel and the Peterson
    Parcel. Moreover, when the Hatton Trust conveyed Parcel 1 to
    the Pierces, there was a need to convey an additional seven feet
    of property by way of an easement for frontage so that Parcel 1
    could be subdivided from the main parcel. The conveyance deed
    from the Hatton Trust to the Pierces contains an “Easement for
    Joint Driveway.” Specifically, the Pierces’ 1989 Warranty Deed
    states:
    SUBJECT TO AND TOGETHER WITH an
    Easement for a joint driveway over and across the
    following described property: Beginning 70 feet
    North of the Southeast corner of Lot 7, Block 49,
    Plat A, Fillmore City Survey, thence North 7 feet;
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    Peterson v. Pierce
    thence West 194 feet; thence South 7 feet; thence
    East 194 feet to the point of beginning.
    ¶4      The conveyance deed from the Hattons, as trustees for
    Parcel 2 of the Pierce Parcel, contains a similar “Easement for
    Joint Driveway.” Specifically, the Pierces’ 1997 Quitclaim Deed
    states:
    SUBJECT TO AND TOGETHER WITH an
    Easement for a joint driveway over and across the
    following described property: Beginning 194 feet
    West and 70 feet North of the Southeast corner of
    Lot 7, Block 49, Plat A, Fillmore City Survey,
    thence North 7 feet; thence West 139.5 feet; thence
    South 7 feet; thence East 139.5 feet to the point of
    beginning.[1]
    ¶5     However, the district court found the inclusion of the
    “joint driveway” language in the deeds was in error. Given the
    historic use of the Two Rutted Lane, and the need to use it to
    access the west portion of the Peterson Parcel, the court found
    that Harold and Allie Hatton intended to convey a seven-foot
    easement to the Pierces solely for frontage, and the Hattons
    intended to reserve the use of the Two Rutted Lane as the joint
    driveway. The court further found that the Pierces were aware
    that the south seven feet of the Peterson Parcel was for frontage
    purposes and the Two Rutted Lane was to be kept and
    preserved as a joint driveway.
    ¶6   Following the death of Harold and Allie Hatton in 1996,
    Lynn Hatton and Betty Jo Dunnell became the successor trustees
    1. The Pierces actually received two deeds in May 1997 for Parcel
    2. The first deed, an unrecorded special warranty deed,
    incorrectly described the east-west distance of the lot and the
    easement. The Hatton Trust subsequently conveyed a quitclaim
    deed to Parcel 2, containing the correct distance of 139.5 feet.
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    to the Hatton Trust. In connection with the sale of the Peterson
    Parcel to Peterson, the Hatton Trust requested a survey of the
    property. The survey was not completed until after Peterson
    purchased the Peterson Parcel. And, even after the survey flags
    had been placed, the dispute about the actual boundaries of the
    property remained unresolved.
    ¶7     Peterson’s deed is “SUBJECT TO all easements,
    reservations, restrictions and rights-of-way of record or
    which may be ascertained from an inspection of the property.”
    Peterson took title to the Peterson Parcel with the full
    expectation that she would have access to the west of
    her property by using the Two Rutted Lane, and she did in fact
    use it as a joint driveway as often as she needed, and she cared
    for it as if it were her own property. Though there was a
    continuing dispute between the Petersons and the Pierces,
    Peterson was able to access the west portion of the Peterson
    Parcel by using the Two Rutted Lane until the Pierces
    constructed a fence on the north edge of their property in July
    2013. Without the use of the Two Rutted Lane, Peterson had
    great difficulty accessing the west portion of her property.
    Peterson brought suit after the fence was erected. After a five-
    day bench trial, the district court entered judgment in favor of
    Peterson.
    ¶8      Finding sufficient evidence of a mutual mistake in the
    deeds as to the description of the joint driveway and seven-foot
    frontage, the district court reformed each of the relevant deeds to
    reflect “that the joint driveway is not the seven foot strip north of
    [the Pierces’] property. Rather it is the Two Rutted Lane.” The
    Pierces appeal.
    ISSUES AND STANDARDS OF REVIEW
    ¶9    First, the Pierces contend that Peterson’s claims were
    untimely and the district court erred in determining that her
    claims were not barred by the statute of limitations or the
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    doctrine of laches. 2 “The application of a statute of limitations is
    a legal determination, which we review for correctness.” Griffin
    v. Cutler, 
    2014 UT App 251
    , ¶ 14, 
    339 P.3d 100
    . To the extent that
    a statute of limitations analysis involves subsidiary factual
    determinations, we review those determinations for clear error.
    
    Id.
     “Whether laches applies is a question of law, which we
    review for correctness.” Veysey v. Nelson, 
    2017 UT App 77
    , ¶ 5,
    
    397 P.3d 846
    . “The application of laches to a particular set of
    facts and circumstances presents a mixed question of law and
    fact.” 
    Id.
     (quotation simplified). “Within that framework, we
    review the [district] court’s conclusions of law for correctness
    and will disturb its findings of fact only if they are clearly
    erroneous.” 
    Id.
     (quotation simplified).
    ¶10 Second, the Pierces contend that the district court
    misinterpreted “key deed language” and the court therefore
    erred when it found that there was a mutual mistake warranting
    reformation of the deeds. 3 “Reformation of a deed is a
    proceeding in equity.” RHN Corp. v. Veibell, 
    2004 UT 60
    , ¶ 35, 
    96 P.3d 935
     (quotation simplified). “[T]he proper standard of
    review for a [district] court’s findings of fact for cases in equity is
    the same as for cases at law, namely the clearly erroneous
    2. The Pierces also argue that the district court misapplied a
    statute of repose. This issue has been inadequately briefed,
    obviating the need to address the applicable standard of review.
    Cheek v. Clay Bulloch Constr. Inc., 
    2016 UT App 227
    , ¶ 14 n.3, 
    387 P.3d 611
    . We further decline to address the merits of this issue
    on appeal. See Smith v. Smith, 
    1999 UT App 370
    , ¶ 8, 
    995 P.2d 14
    .
    3. The district court concluded, in the alternative, that Peterson
    had acquired an easement by implication or an easement by
    necessity to use the Two Rutted Lane, and the Pierces also
    challenge these conclusions on appeal. Because the district court
    correctly determined that a mutual mistake had occurred, and
    that the mistake necessitated reformation of the deeds, we do not
    need to reach these issues.
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    Peterson v. Pierce
    standard. Moreover, in both equity and law, we review the
    [district] court’s conclusions of law for correctness.” 
    Id.
    ¶11 Third, the Pierces contend that the district court erred in
    awarding attorney fees to Peterson. “The award of attorney fees
    is typically a matter of law, which we review for correctness.”
    Paul deGroot Bldg. Servs., LLC v. Gallacher, 
    2005 UT 20
    , ¶ 18, 
    112 P.3d 490
    . However, “where the fees are predicated upon
    findings of fact, . . . we review the award of fees for an abuse of
    discretion.” 
    Id.
    ANALYSIS
    I. Timeliness of Action
    ¶12 The Pierces contend that the district court failed to apply
    the relevant statute of limitations and the doctrine of laches that
    would bar Peterson’s claims. We address these arguments in
    turn.
    A.    Statute of Limitations
    ¶13 The Pierces first assert the district court “misapplied
    statutes relating to mutual mistake,” specifically, the applicable
    statute of limitations. The Pierces relatedly argue that Peterson
    failed to timely bring her reformation claims.
    ¶14 Utah Code section 78B-2-305 provides, in relevant part,
    “An action may be brought within three years: . . . for relief on
    the ground of fraud or mistake; except that the cause of action
    does not accrue until the discovery by the aggrieved party of the
    facts constituting the fraud or mistake.” Utah Code Ann. § 78B-
    2-305(3) (LexisNexis 2012).
    ¶15 The district court observed that Peterson “or her
    predecessor could have brought a claim to reform the deed after
    discovering the survey line between the Peterson Parcel and
    Parcels 1 and 2.” But the court found that Peterson’s predecessor,
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    Peterson v. Pierce
    Larry Peterson, had “clearly claimed that he had an absolute
    right to use the joint driveway as though it belonged to both
    [the] Petersons and [the] Pierces.” Given that the Petersons had
    continued to use the Two Rutted Lane “as though they had an
    absolute right to use the same” and that the Pierces “did not
    block that right in any permanent or real way until they put up
    the fence in the summer of 2013,” the district court concluded
    that the three-year statute of limitations did not begin to run
    until the summer of 2013. 4 For the same reason, the court
    determined that Peterson’s claim was not barred by the doctrine
    of laches. Infra ¶¶ 21–24.
    ¶16 Based on section 78B-2-305(3), the Pierces assert that
    “[the] Hattons and Petersons had three years to bring [an] action
    after discovery of the facts constituting mistake.” Relying on the
    district court’s finding that Peterson “or her predecessor could
    have brought a claim to reform the deed after discovering the
    survey line, in 1997,” the Pierces claim that “it is clear that the
    [district] court erred in allowing Peterson[’s] claim of mutual
    mistake.” In other words, the Pierces’ claim that the three-year
    statute of limitations began to run in 1997, when the survey
    conducted in connection with the sale of the Peterson Parcel to
    Peterson was completed. 5 But as Peterson correctly observes, the
    4. Peterson filed suit in October 2013.
    5. As part of this argument, the Pierces assert that the Hattons
    “recorded the Parcel [1] deed with a right of first refusal [for]
    Parcel [2] on June 13, 1989.” Citing Utah Code section 57-4a-2,
    the Pierces then assert that “[a] recorded document imparts
    notice of [its] contents despite any defects and a recorded easement
    deed, from the time of recording, imparts notice of any questions
    regarding the easement.” To adequately brief an argument, the
    appellant’s brief “must explain, with reasoned analysis
    supported by citations to legal authority and the record, why the
    party should prevail on appeal.” Utah R. App. P. 24(a)(8). An
    argument is inadequately briefed “when the overall analysis of
    (continued…)
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    Peterson v. Pierce
    Pierces’ “citation to the [district] court’s analysis in this regard is
    incomplete.” Indeed, the Pierces virtually ignore the district
    court’s findings and focus only on evidence favorable to them.
    ¶17    Relevant here, the district court found:
    (1)   Mark Pierce told the surveyor that the
    purpose of the seven-foot easement north of
    Parcel 1 was for frontage.
    (2)   Julie Pierce testified that the seven-foot
    easement was never used as a joint driveway
    and that the purpose of the seven-foot
    easement was for frontage only.
    (3)   Although Mark Pierce testified that the
    surveyor placed survey flags on the corners,
    there was no evidence the flags were placed
    in such a way that an ordinary person would
    understand the purpose of their location.
    (4)   When Mark Pierce and Larry Peterson met to
    discuss the survey, Larry Peterson did not
    agree with Mark Pierce as to the property
    line.
    (5)   The Petersons, as well as their grantors, the
    trustees of the Hatton Trust, understood that
    (…continued)
    the issue is so lacking as to shift the burden of research and
    argument to the reviewing court.” CORA USA LLC v. Quick
    Change Artist LLC, 
    2017 UT App 66
    , ¶ 5, 
    397 P.3d 759
     (quotation
    simplified). Such is the case here—analysis of section 57-4a-2 and
    its application to the facts of this case are wholly lacking. We
    therefore decline to address this argument.
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    the Two Rutted Lane was the joint driveway
    referenced in the Pierces’ deeds.
    (6)   The Petersons took title to the Peterson Parcel
    “with the full expectation and reliance” that
    they would have access to the western end of
    the property through the Two Rutted Lane.
    (7)   The Petersons used the Two Rutted Lane as
    often as needed and cared for it as if it was
    their own property.
    (8)   Mr. Peterson mowed the grass strip between
    the two ruts. The Petersons’ son continued
    this practice after Mr. Peterson died.
    (9)   Every fence surrounding the original Hatton
    Trust parcel was several feet off from the
    survey line.
    (10) The only “established” common driveway
    between the Peterson Parcel and Parcel 1 that
    was actually used as a common driveway
    was the Two Rutted Lane.
    (11) After Mr. Hatton died and the Petersons
    received the Peterson Parcel, the Petersons
    regularly used the Two Rutted Lane without
    asking for permission from the Pierces.
    (12) The Petersons’ son frequently used the Two
    Rutted Lane, and he helped maintain it after
    Mr. Peterson died.
    (13) Although the Pierces attempted to prevent
    the Petersons from using the Two Rutted
    Lane after Mr. Peterson’s death, these
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    attempts were unsuccessful until the Pierces
    constructed a fence on the northern edge of
    their property (Parcel 1) in July 2013.
    (14) The Hattons understood that the joint
    driveway was the Two Rutted Lane, and
    neither the Hattons nor the Pierces knew the
    correct boundary line between the properties.
    ¶18 In sum, the district court ultimately concluded that
    Peterson claimed that they had an absolute right to use the Two
    Rutted Lane, that they used it as often as they needed, and that
    the Pierces were unsuccessful in blocking that right in any
    permanent or real way until they erected a fence in the summer
    of 2013.
    ¶19 “To demonstrate clear error in the [district] court’s factual
    findings, the appellant must overcome the healthy dose of
    deference owed to factual findings by identifying and dealing
    with the supportive evidence and establishing a legal problem in
    that evidence.” Sandusky v. Sandusky, 
    2018 UT App 34
    , ¶ 25, 
    417 P.3d 634
     (quotation simplified). In order to meet this burden, a
    party must do more than “simply list[] or rehash[] the evidence
    and arguments [it] presented during trial or by merely pointing
    to evidence that might have supported” a more favorable
    outcome. 
    Id.
     (quotation simplified). Instead, a party “must
    identify flaws in the evidence relied on by the [district] court that
    rendered the [district] court’s reliance on it, and the findings
    resulting from it, clearly erroneous.” 
    Id.
     (quotation simplified).
    ¶20 Here, the Pierces do not adequately address the district
    court’s factual findings supporting its conclusion that the statute
    of limitations did not begin to run until the summer of 2013.
    Instead, they focus on a single statement by the district court—
    that Peterson “or her predecessor could have brought a claim to
    reform the deed after discovering the survey line, in 1997”—to
    support their statute of limitations argument. This is not
    sufficient. The Pierces cannot carry their burden of persuasion
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    Peterson v. Pierce
    merely by pointing to evidence that might have supported
    findings more favorable to them. Rather, they “must identify
    flaws in the evidence relied on by the [district] court that
    rendered the [district] court’s reliance on it, and the findings
    resulting from it, clearly erroneous.” 
    Id.
     (quotation simplified).
    They have not done so, and as a result, they have not carried
    their burden to show error in the district court’s decision
    regarding the statute of limitations.
    B.    Laches
    ¶21 The Pierces next contend that the district court
    “misapplied the doctrine of laches.” They assert that “[d]uring
    the ensuing years after the deeds, [they] improved the land,
    installed underground electrical lines, remodeled their home,
    and retired on disability in 2007.” According to the Pierces, they
    “rearranged the property to suit their changes of circumstance,
    having relied on the notion that the easement was located on
    [the Peterson Parcel] according to the deed language.” They
    assert that “[l]aches bars recovery by plaintiffs, such as Peterson
    here, for undue delay in seeking relief” and that they would
    “suffer immensely from their detrimental reliance.”
    ¶22 “The equitable doctrine of laches is founded upon
    considerations of time and injury. Laches in legal significance is
    not mere delay, but delay that works a disadvantage to another.”
    Insight Assets, Inc. v. Farias, 
    2013 UT 47
    , ¶ 17, 
    321 P.3d 1021
    (quotation simplified). “Laches has two elements: (1) a party’s
    lack of diligence and (2) an injury resulting from that lack of
    diligence.” Id. ¶ 19 (quotation simplified). Thus, “to successfully
    assert a laches defense, a defendant must establish both that the
    plaintiff unreasonably delayed in bringing an action and that the
    defendant was prejudiced by that delay.” Veysey v. Nelson, 
    2017 UT App 77
    , ¶ 8, 
    397 P.3d 846
     (quotation simplified). The Pierces
    have failed to do so here.
    ¶23 Although the Pierces claim that Peterson unreasonably
    delayed in filing her action, this assertion ignores the district
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    court’s findings. As previously discussed, the district court
    determined that despite the 1997 survey, Larry Peterson “clearly
    claimed that he had an absolute right to use the joint driveway
    as though it belonged to both [the] Petersons and [the] Pierces”
    and that the Petersons continued to use the Two Rutted Lane “as
    though they had an absolute right to use the same” until the
    Pierces erected a fence in the summer of 2013. Indeed, the record
    demonstrates that the Petersons used the Two Rutted Lane as
    often as necessary, without seeking permission from the Pierces,
    and that they worked to maintain the Two Rutted Lane as if it
    were their own property. Peterson filed suit in October 2013,
    within a few months after the Pierces erected the fence on the
    northern boundary of their property that blocked access to the
    Two Rutted Lane. Thus, we are not persuaded by the Pierces’
    undue-delay argument.
    ¶24 Moreover, although the Pierces claim they made
    improvements to the land and “rearranged the property to suit
    their changes of circumstance,” apart from their general
    assertion that they will “suffer immensely from their detrimental
    reliance,” the Pierces have failed to explain with any specificity
    how they were prejudiced by Peterson’s alleged undue delay in
    bringing suit. See 
    id.
    II. Mutual Mistake and Deed Reformation
    ¶25 The Pierces contend that the district court erred when it
    found that there was a mutual mistake warranting reformation
    of the deeds. “Reformation of a deed is appropriate where the
    terms of the written instrument are mistaken in that they do not
    show the true intent of the agreement between the parties.” RHN
    Corp. v. Veibell, 
    2004 UT 60
    , ¶ 36, 
    96 P.3d 935
     (quotation
    simplified). Mutual mistake of the parties provides a ground to
    seek the equitable remedy of reformation. 
    Id.
     This case involves a
    mutual mistake by the parties to the original deeds (namely, the
    Hattons and the Pierces).
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    ¶26 “Mutual mistake of fact may be defined as error in
    reducing the concurring intentions of the parties to writing.” Id.
    ¶ 37 (quotation simplified). Upon a showing of mutual mistake,
    the intent of the parties controls the reformation of a deed. Id.
    ¶ 38. And “[e]xtrinsic evidence is admissible to assist in
    determining the intent of the parties.” Id.
    ¶27 The Pierces contend that the district court erred in finding
    that the parties to the original deeds—the Hattons and the
    Pierces—intended the “joint driveway” language in the Pierces’
    deeds to refer to the Two Rutted Lane rather than the seven-foot
    frontage and in reforming the deed to conform with that intent.
    But this is not exactly what the district court found.
    ¶28 Based upon the evidence submitted at trial, the district
    court determined that when the Hattons originally conveyed
    Parcel 1 to the Pierces in 1989, “there was a need to convey an
    additional seven (7) feet by way of an easement so that Parcel 1
    could be subdivided from the main parcel” and that “all parties
    understood that this frontage requirement was the purpose of
    and reason for the seven foot easement north of Parcel 1.” “The
    purpose was not for the joint driveway, and inclusion of the joint
    driveway language in [the deed] in that seven [foot] easement
    was a scrivener’s error.” The court further found that the
    Hattons “intended the seven foot easement solely for frontage,
    and that they believed they expressly reserved use of the Two
    Rutted Lane . . . as the joint driveway.” In addition, the court
    found that the Pierces were equally aware that the seven-foot
    easement was only for frontage purposes and that the Two
    Rutted Lane “was to be kept and preserved as a joint driveway.”
    The court determined that the fact that the deed for Parcel 2
    “reiterated the south seven feet of the Peterson Parcel as the joint
    driveway” was “nothing but a perpetuation of the scrivener’s
    error originating in the deed to Parcel 1.”
    ¶29 The district court observed that the deeds to Parcels 1 and
    2 make the conveyances to the Pierces “subject to” the joint
    driveway. The court noted that the “subject to” language “would
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    have been entirely unnecessary if the parties to those deeds had
    understood the location of the property line and that the joint
    driveway was the south seven feet of the Peterson Parcel as the
    Pierces now argue.” The court determined that neither the
    Hattons nor the Pierces intended the south seven feet of the
    Peterson Parcel to be the joint driveway. Rather, the court
    concluded, “the existence of the joint driveway or rutted lane, in
    essentially the same spot for over 50 years and used by both
    predecessors and [the Petersons and the Pierces], shows that
    when the parties to the deeds said ‘joint driveway’ in the deeds,
    they clearly referred to the Two Rutted Lane they were using.”
    ¶30 Based on its conclusion that the parties intended the “joint
    driveway” language in the deeds to refer to the Two Rutted
    Lane, the district court ordered a survey to locate the center of
    the Two Rutted Lane and granted the Petersons an easement to
    use “five feet on each side of the center line for a total of ten
    feet.” The court then directed that the relevant deeds be
    reformed “to clarify that the joint driveway is not the seven foot
    strip north of [the Pierces’] property. Rather, it is the Two Rutted
    Lane.”
    ¶31 The Pierces next assert that there was no mutual mistake
    between the parties. According to the Pierces, there was “no
    misconception in the deed as to the location or size of the
    easement.” We are not persuaded.
    ¶32 This argument ignores the district court’s findings.
    Specifically, the district court found that the Hattons and the
    Pierces “were not clear on the boundary between the Peterson
    Parcel to the north and Parcels 1 and 2 to the south.” While Mr.
    Pierce testified that the boundary “was by the telephone pole to
    the east and at about to the southeast corner of the Starley fence
    on the west,” “on cross examination[] it was clear that the west
    end of that boundary (the Northwest corner of Parcel 1) was
    roughly 25 to 30 feet away from the southeast corner of the
    Starley fence.” Thus, the district court was persuaded that the
    parties considered “the southeast corner of Parcel 1 to be where
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    Peterson v. Pierce
    the fence and the cement marker, which is 4.5 feet south of
    where the survey line is.” The court was also persuaded that
    “neither Harold Hatton nor [the Pierces] knew where the survey
    line actually was for the boundary between the Peterson Parcel
    and Parcels 1 and 2, and that this remained unknown until after
    Harold Hatton’s death and until the line was surveyed and
    subsequently marked in the fall of 1997.” The court further
    found that even after the survey was completed, there was still
    “confusion between the parties as to the precise location of the
    property line” and that “[e]very fence surrounding the original
    Hatton Family Trust parcel (Parcel 1, Parcel 2 and the Peterson
    Parcel) is several feet off from the survey line.” The court
    determined that all of the parties intended the seven-foot
    easement described in the deeds to be for frontage and that the
    parties believed the Hattons had expressly reserved use of the
    Two Rutted Lane as the joint driveway referenced in the deeds.
    ¶33 Ultimately, the court concluded that the evidence of a
    mutual mistake was “abundant.” The court determined that the
    legal description in the deeds “does not match the actual
    boundaries of the rutted lane or joint driveway as it was used
    prior to and at the time of conveyance,” and that the “4.5 feet
    discrepancy on the southern border of Parcel 1 per 1997 survey”
    supported the claim of mutual mistake. In addition, the fact that
    the actual easement described in the deeds (on the Peterson
    Parcel) was never used by the parties as a joint driveway further
    supported a mutual mistake by the parties.
    ¶34 Given the existence of the “joint driveway or rutted lane,
    in essentially the same spot for over 50 years [that was] used by
    both predecessor and the parties,” the court concluded that
    when the parties to the deeds said “joint driveway” in the deeds,
    they were referring to the Two Rutted Lane. The Pierces have
    failed to adequately challenge the court’s findings of fact and
    conclusions of law on this point.
    ¶35 The Pierces also assert that the phrases “subject to” and
    “joint driveway” are vague and that the district court incorrectly
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    relied on those phrases instead of the metes and bounds
    description of the easement. As to their vagueness argument, the
    Pierces have failed to provide any analysis of this assertion. And,
    as Peterson correctly observes, the “metes and bounds
    description [in this case] simply does not describe the ‘joint
    driveway’ that the parties intended.” Indeed, as the district court
    observed, if the Hattons and Pierces had understood the joint
    driveway to be on the Peterson Parcel, as the Pierces now argue,
    the “subject to” language in the deeds would have been
    unnecessary.
    ¶36 We do acknowledge that there appear to be some
    inconsistencies between the district court’s findings of fact and
    conclusions of law and the language the court used in the
    reformed deeds. The Pierces note that “[i]f Appellants and
    Appellee agree that frontage was the purpose of the easement,
    and that the easement was intended to be seven feet, it is unclear
    how the [district] court could conclude the easement to be on
    Parcel 1 and ten feet wide.” We agree that this is unclear. But a
    close reading of the district court’s factual findings reveals that
    the original parties to the deeds intended to create two separate
    easements, and we agree with the district court on this point. But
    we find fault in the district court’s failure to distinguish between
    the two easements in its reformation. First, the district court
    found that Hatton intended to include a seven-foot easement for
    frontage burdening the Peterson Parcel so that Parcels 1 and 2
    could be subdivided from the main parcel. This easement was
    particularly described in the original deeds. Second, the court
    found that Hatton reserved for the Peterson Parcel a joint-
    driveway easement burdening the Pierce Parcel for the
    continued use of the Two Rutted Lane.
    ¶37 While a district court’s factual findings can sometimes be
    unclear, the fact that two findings appear inconsistent “does not
    necessarily vitiate the judgment based thereon.” Wilkin v.
    O'Brien, 
    176 P. 853
    , 856 (Utah 1918). When faced with
    inconsistent findings of fact, we must ask whether “the findings
    as a whole indicate what the court intended, and from them,
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    considered as a whole, can the intention of the court be
    satisfactorily determined?” 
    Id.
     Although there are a few points of
    confusion, the district court’s intentions in its deed reformation
    can satisfactorily be determined by assessing the district court’s
    findings of facts and conclusions of law as a whole.
    ¶38 As previously stated, the district court found “by clear
    and convincing evidence” that the Hattons and the Pierces
    understood that providing frontage was the “reason for the
    seven foot easement north of Parcel 1.” That easement “was not
    for the joint driveway, and the inclusion of the joint driveway
    language . . . was a scrivener’s error.” The district court also
    found that “when the parties to the deeds said ‘joint driveway’
    in the deeds, they clearly referred to the Two Rutted Lane they
    were using.” Taking these two findings in isolation, it appears
    the court’s findings are inconsistent as the court seems to state
    that the joint driveway language is both a scrivener’s error and
    evidence of the intent of the parties. But, looking at the broader
    context of the court’s findings of fact, it is apparent that Peterson
    was “seek[ing] to reform [the deeds] such that [the] ‘joint
    driveway’ description is no longer confused with the seven foot
    easement north of [the Pierces’] property.” The court then
    ordered the deeds to “be reformed to clarify that the joint
    driveway is not the seven foot strip north of [the Pierces’]
    property. Rather, it is the Two Rutted Lane.” The court further
    directed that “the Two Rutted Lane be surveyed, that the center
    be located, and that [Peterson’s] and her successor’s right to use
    the Two Rutted Lane should be five feet on each side of the
    center line for a total of ten feet.” 6
    ¶39 However, the district court did not expressly order that
    the seven-foot frontage easement was to be included in the
    reformed deeds. We agree with the Pierces that the district court
    6. The district court heard expert testimony that ten feet is a
    reasonable width for use of the Two Rutted Lane. The width is
    also consistent with the historical use of the Two Rutted Lane.
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    Peterson v. Pierce
    erred in describing only a ten-foot easement that burdens the
    Pierce Parcel when both parties agreed there was also a seven-
    foot easement burdening the Peterson Parcel for frontage. The
    district court acknowledged that the seven-foot frontage
    easement described in the original deeds but omitted a
    description of it in the reformed deeds. Neither party disputes
    the existence of this easement. While the district court’s findings
    at times may appear inconsistent “a reasonably careful analysis,
    with the view of ascertaining their meaning, renders them
    sufficiently intelligible to support the judgment of the court.”
    Wilkin, 176 P. at 856.
    ¶40 In sum, the record amply demonstrates that the parties
    intended that the Peterson Parcel be burdened by an easement
    for frontage, that the “joint driveway” language in the deeds
    refers to the Two Rutted Lane, and that there was a mutual
    mistake by the parties in reducing their intentions to writing.
    Consequently, reformation of the deeds to reflect the parties’
    actual intentions was an appropriate action. However, the
    district court’s omission of language in the reformed deeds
    recognizing the frontage easement has created confusion that
    needs to be remedied. Accordingly, we vacate the district court’s
    order reforming the deeds and we remand this issue to the
    district court to reform the deeds to correctly recognize the
    seven-foot easement for frontage in addition to the easement for
    the Two Rutted Lane.
    III. Attorney Fees Under the Lis Pendens Statute
    ¶41 The Pierces next contend that the district court erred by
    awarding Peterson attorney fees.
    ¶42 Utah Code section 78B-6-1303 provides that “[e]ither
    party to an action affecting the title to, or the right of possession
    of, real property may file a notice of the pendency of the action
    with the county recorder.” Utah Code Ann. § 78B-6-1303(1)
    (LexisNexis 2012). The Utah Code provides that parties affected
    by the lis pendens “may make a motion to the court in which the
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    Peterson v. Pierce
    action is pending to release the notice.” 
    Id.
     § 78B-6-1304(1)
    (LexisNexis 2012). “A court shall order a notice released if,” after
    receiving the motion, “the court finds that the claimant has not
    established by a preponderance of the evidence the probable
    validity of the real property claim that is the subject of the
    notice.” Id. § 78B-6-1304(2). “A court shall award costs and
    attorney fees to a prevailing party on any motion under this
    section unless the court finds that: (a) the nonprevailing party
    acted with substantial justification; or (b) other circumstances
    make the imposition of attorney fees and costs unjust.” Id. § 78B-
    6-1304(6) (emphasis added).
    ¶43 Here, after she filed her complaint, Peterson filed a lis
    pendens on Parcels 1 and 2. On September 5, 2014, the Pierces
    filed a motion to release the lis pendens and requested attorney
    fees pursuant to section 78B-6-1304. Peterson filed an opposition,
    in which she requested attorney fees pursuant to the same
    section of the Utah Code. Ultimately, the district court held a
    hearing on the matter and determined that the Pierces’ motion to
    release the lis pendens would be heard at trial.
    ¶44 After trial, the district court determined that Peterson’s lis
    pendens was “properly filed.” Observing that both parties had
    requested an award of attorney fees and costs pursuant to Utah
    Code section 78B-6-1304(6), the court awarded Peterson her
    attorney fees and costs “insofar as those attorney[] fees and costs
    were incurred to defend against [the Pierces’] Motion to Remove
    the Lis Pendens, and establish [Peterson’s] claim for an easement
    and mutual mistake.” Thus, the court awarded Peterson her
    attorney fees incurred after September 5, 2014. The court
    directed Peterson’s attorney to “submit an affidavit of attorney[]
    fees and costs consistent with the rules, allowing [the Pierces] to
    review and otherwise object to the same before submitting them
    to the Court. If there is an objection, the Court may set the matter
    for further hearing and issue a final decision.”
    ¶45 Consistent with the district court’s order, Peterson’s
    counsel submitted an affidavit and a partially redacted billing
    20160778-CA                     19                
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    Peterson v. Pierce
    history detailing Peterson’s attorney fees and costs incurred in
    defending against the Pierces’ motion to remove the lis pendens.
    The Pierces did not object to or challenge the affidavit, nor did
    they request a hearing on the issue of attorney fees.
    ¶46 On appeal, the Pierces first claim that they were “unaware
    the [district] court was considering their motion to remove lis
    pendens as determinative of an award to Peterson for attorney
    fees from the entire case.” As Peterson correctly observes,
    however, the district court did not award her attorney fees for
    the entire case; rather, the court awarded attorney fees from the
    time the Pierces filed their motion to release lis pendens—
    September 5, 2014—until the end of trial.
    ¶47 The Pierces also claim that they “had no opportunity to
    raise this issue during trial.” But the Pierces themselves
    requested attorney fees in bringing their motion to release the lis
    pendens, and they also requested attorney fees in their opening
    statement at trial. Thus, the Pierces’ claim that they did not have
    the opportunity to raise the attorney fees issue at trial is not well
    taken. Moreover, and perhaps more importantly, in awarding
    Peterson attorney fees, the district court provided that the
    Pierces would have an opportunity to review and object to
    Peterson’s affidavit of attorney fees before submission to the
    court. The court stated that if the Pierces had an objection to
    Peterson’s affidavit, it would set the matter for a hearing. But as
    previously noted, the Pierces did not object to or challenge
    Peterson’s affidavit, nor did they request a hearing on the issue
    of attorney fees. Consequently, we conclude that the Pierces
    waived any objection to Peterson’s affidavit when they failed to
    object or request a hearing on the matter as provided for by the
    district court. See 438 Main St. v. Easy Heat, Inc., 
    2004 UT 72
    , ¶ 51,
    
    99 P.3d 801
     (stating that “[i]ssues that are not raised at trial are
    usually deemed waived”).
    ¶48 Lastly, the Pierces claim that the district court
    “erroneously” awarded attorney fees to Peterson. Utah Code
    section 78B-6-1304(6) (LexisNexis 2012) provides that “[a] court
    20160778-CA                      20                
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    Peterson v. Pierce
    shall award costs and attorney fees to a prevailing party on any
    motion under this section unless the court finds that: (a) the
    nonprevailing party acted with substantial justification; or (b)
    other circumstances make the imposition of attorney fees and
    costs unjust.” Utah Code Ann. § 78B-6-1304(6) (emphases
    added). Here, the district court made no express findings as to
    whether the Pierces had acted with “substantial justification” or
    whether “other circumstances made the imposition of attorney
    fees and costs unjust,” and we therefore presume that the district
    court did not find these considerations to be present. See id.
    § 78B-6-1304(8). Although the Pierces assert that the district
    court “should not have awarded any fees unless Peterson[]
    demonstrated that [the] Pierces lacked any ‘substantial reason’ to
    make the motion,” they have failed to support that proposition
    with any authority or to otherwise demonstrate that the burden
    was on Peterson to prove that the Pierces had acted without
    substantial justification in moving to release the lis pendens.
    Accordingly, the Pierces have failed to carry their burden of
    persuasion on appeal. And in any event, if the Pierces had any
    objection to the district court’s award of attorney fees to
    Peterson, they had ample opportunity to object and request a
    hearing in the district court.
    ¶49 In sum, the Pierces have failed to demonstrate that the
    district court incorrectly awarded attorney fees to Peterson or
    that the district court abused its discretion regarding the amount
    of attorney fees awarded.
    IV. Attorney Fees on Appeal
    ¶50 Peterson seeks an award of her attorney fees incurred on
    appeal. “When a party who received attorney fees below
    prevails on appeal, the party is also entitled to fees reasonably
    incurred on appeal.” Austin v. Bingham, 
    2014 UT App 15
    , ¶ 33,
    
    319 P.3d 738
     (quotation simplified). As both parties have
    partially prevailed on appeal, we accordingly decline to award
    Peterson her fees incurred on appeal.
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    Peterson v. Pierce
    CONCLUSION
    ¶51 We affirm the district court’s ruling that mutual mistake
    by the original parties to the deeds necessitated that those deeds
    be reformed. But because the district court did not include a
    description of the seven-foot frontage easement, we vacate the
    court’s order reforming the deeds. We remand for the district
    court to reform the deeds to include language that expressly
    recognizes the seven-foot frontage easement on the Peterson
    Parcel in addition to the easement for the Two Rutted Lane.
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    Peterson v. Pierce
    APPENDIX
    Note: This diagram is not drawn to scale and is provided only
    for illustrative purposes.
    20160778-CA                  23              
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Document Info

Docket Number: 20160778-CA

Citation Numbers: 2019 UT App 48, 440 P.3d 833

Filed Date: 3/28/2019

Precedential Status: Precedential

Modified Date: 1/12/2023