Vandermeide v. Young , 296 P.3d 787 ( 2013 )

2013 UT App 31_________________________________________________________
THE UTAH COURT OF APPEALS
JOHN VANDERMEIDE JR., PATSY J. VANDERMEIDE,
CHRISTIAN VANDERMEIDE, AND CARRIE VANDERMEIDE,
Plaintiffs and Appellees,
v.
JAMES WINSLOW YOUNG
AND ROBERT J. YOUNG,
Defendants and Appellants.
Opinion
No. 20110989‐CA
Filed February 7, 2013
Second District, Bountiful Department
The Honorable Glen R. Dawson
No. 050801394
David S. Cook, Attorney for Appellants
Scott E. Isaacson and Justin W. Starr,
Attorneys for Appellees
JUDGE J. FREDERIC VOROS JR. authored this Opinion,
in which JUDGES CAROLYN B. MCHUGH
and STEPHEN L. ROTH concurred.
VOROS, Judge:
¶1 This case challenges the centuries‐old adage that “good
fences make good neighbors.” The case arose from a dispute over
a six‐foot fence running east and west between two neighbors’
residences. The neighbors on the south, John Vandermeide and
Patsy J. Vandermeide (the Vandermeides), built the fence; the
neighbor on the north, James Winslow Young, tore it down. The
Vandermeide v. Young
Vandermeides prevailed in the ensuing litigation. James Winslow
Young (Young) and Robert J. Young (collectively, the Youngs)
appeal.1 We agree with the Youngs that the trial court’s findings
appear to be internally inconsistent and remand for the court to
reconcile them. In all other respects, we affirm.
BACKGROUND
¶2 John Vandermeide (Vandermeide) and his two sons built the
fence ten years ago. Based on both a conversation with a neighbor
who had recently had his land surveyed and on a metal post
cemented into the ground, Vandermeide was “a hundred percent
confident” that he knew where his property line was. But “to make
sure [he] wasn’t infringing on any property,” Vandermeide built
the fence several feet south of what he believed was the boundary.
¶3 For two years, Young said nothing about the fence. Then one
day after church, he threatened to “knock it down.” Vandermeide
had the property surveyed, but the surveyor brought bad news:
“The bad news is the fence is not on your property. It’s in the
middle of this area, called a no‐man’s land; it doesn’t belong to Mr.
Young and it doesn’t belong to you. It’s not in either one of your
property descriptions.”2
¶4 On April 1, 2004, Vandermeide and Young held a summit at
the fence. Vandermeide told Young, “[I]f you’re not absolutely
happy with this, we’ll be willing to take the fence out.” In fact,
Vandermeide had a crew lined up and a backhoe on site in the
1. The appeal was filed by James Winslow Young on his own
behalf and as trustee of the Helen M. Stock Revocable Trust and by
Robert J. Young as trustee of the Helen M. Stock Revocable Trust.
2. There seems to be no dispute that the last sentence of this
quotation is an accurate statement of fact.
20110989‐CA 2 2013 UT App 31Vandermeide v. Young
event Young insisted that the fence be moved. But Young re‐
sponded, “Well, there’ll be no need for that. . . . [A]s far as I’m
concerned, the matter’s closed.” Vandermeide told the backhoe
operator, “[Y]ou can turn your backhoe off because there’s no need.
We’re not going to have to move the fence.”3
¶5 Vandermeide and Young occasionally saw each other at
church thereafter and exchanged pleasantries, but never discussed
the fence. But on March 18, 2005, Patsy Vandermeide called the
police because the fence had been broken apart—“it looked like a
tornado came through there.” Officers went to speak to Young,
who said, “I just frankly got cheesed off so I went down there this
morning with a tractor and a sledge hammer and I took that sucker
out because it was on mother’s property.”
¶6 The Vandermeides sued on a variety of theories, including
trespass to chattels. The Youngs counterclaimed and filed a third
party complaint.4 After a bench trial, the court awarded judgment
to the Vandermeides based on their trespass to chattels claim in the
amount of $3,600 plus interest at the statutory rate and attorney
3. The Youngs disputed this testimony at trial, but the court found
the Vandermeides’ testimony “most credible in regards to the April
1st meeting.” “This factual finding was not properly challenged by
[the Youngs,] nor is it clearly erroneous. Accordingly, this court is
bound by the district court’s finding and must accept it as true.” See
State v. Applegate, 2008 UT 63, ¶ 19, 194 P.3d 925.
4. John, Patsy, Christian, and Carrie Vandermeide sued James
Winslow Young, who tore down the fence. They also sued Helen
M. Stock and Robert J. Young as trustees of the Helen M. Stock
Revocable Trust, the record owner of the property occupied by
James Winslow Young. These defendants counterclaimed and filed
a third‐party complaint against Viola W. Squires, a remote grantor
of their property, and John Does 1–10. Viola Squires was dismissed
from the action before trial.
20110989‐CA 3 2013 UT App 31Vandermeide v. Young
fees under the bad faith statute. See Utah Code Ann. § 78B‐5‐825
(LexisNexis 2008). The court denied the Vandermeides’ boundary
by acquiescence claim and did not reach their remaining claims for
relief. The court denied the Youngs’ claims for reformation of deed,
adverse possession, malicious prosecution, and trespass. The court
also denied both parties’ requests for punitive damages. The
Youngs advance nine claims of error on appeal.
ANALYSIS
¶7 First, the Youngs contend that the trial court failed to make
findings of fact on all material issues presented by the litigants;
specifically, they argue that the court failed to rule on their quiet
title claim. This claim presents a question of law, which we review
for correctness. See Thompson v. Utah State Tax Comm’n, 2004 UT
107, ¶ 9, 112 P.3d 1205.
¶8 “It is the duty of the trial court to find upon all material
issues raised by the pleadings, and the failure to do so is reversible
error.” LeGrand Johnson Corp. v. Peterson, 420 P.2d 615, 616 (Utah
1966) (citation and internal quotation marks omitted). Furthermore,
“[i]n all actions tried upon the facts without a jury or with an
advisory jury, the court shall find the facts specially and state
separately its conclusions of law thereon, and judgment shall be
entered pursuant to Rule 58A.” Utah R. Civ. P. 52(a).
¶9 Here, the Youngs did not object to the court’s findings and
conclusions on this basis, nor did they file a post‐judgment motion
asking the court to make additional findings. The claim is thus
unpreserved, and we deny it on that ground. See 438 Main St. v.
Easy Heat, Inc., 2004 UT 72, ¶¶ 54–56, 99 P.3d 801.
¶10 In any event, we do not agree that the trial court failed to
rule on a material issue. The Youngs sought to quiet title in
themselves on two theories: adverse possession and reformation of
deed. The trial court orally announced that it refused to “grant
20110989‐CA 4 2013 UT App 31Vandermeide v. Young
quiet title to defendants based on any of the theories that they
presented.” It also concluded that “whatever legal theory the
[Youngs] had to claim quiet title, in the Court’s view it would be no
excuse to tear the fence down and do damage to the property.”
While the trial court’s written findings and conclusions do not
expressly state that the court refused to quiet title in the Youngs, no
other conclusion is possible from the court’s ruling. Cf. State v.
Ramirez, 817 P.2d 774, 787 (Utah 1991).
¶11 Second, the Youngs contend that the trial court erred in not
granting them title to the disputed strip based on their reformation
of deed claim. Succinctly stated, they assert that the Domans
conveyed to the Squires all of Lots 3 and 4, two adjacent lots of
equal size; that the Squires mistakenly conveyed to the Wendels
less than all of Lot 3, leaving the Squires with a parcel in the shape
of an inverted State of Oklahoma; that neither the Squires nor any
intermediate grantors in the Youngs’ chain of title intended to
convey less than all of the north‐south length of Lot 3 as described
on the original plat map; and thus, looking to the intent of the
grantors rather than the language of their grants, the disputed strip
was conveyed from the Domans to the Squires to the Wendels to
the Wendel Trust to the Keddingtons to Helen Stock and finally to
the Helen M. Stock Revocable Trust, i.e., the Youngs. Further, the
Youngs maintain that, by ruling that neither Viola Squires nor the
Youngs nor the Vandermeides owned the panhandle, the court left
it an isolated, unusable no‐man’s land, which the law abhors.5
¶12 “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 (citation omitted). The two
5. The court rejected the Vandermeides’ boundary by acquiescence
claim, a ruling they do not appeal. Accordingly, there seems to be
no dispute at this stage that the Vandermeides do not own the
strip.
20110989‐CA 5 2013 UT App 31Vandermeide v. Young
grounds for reformation of a deed are “mutual mistake of the
parties and ignorance or mistake by one party, coupled with fraud
by the other party.” Id. A “‘[m]utual mistake of fact may be defined
as error in reducing the concurring intentions of the parties to
writing.’” Id. ¶ 37 (quoting Naisbitt v. Hodges, 307 P.2d 620, 623
(Utah 1957)). The proponent of reformation has “the burden of
proving by clear and convincing evidence that there was a mutual
mistake of fact.” FDIC v. Taylor, 2011 UT App 416, ¶ 47, 267 P.3d
949 (citation and internal quotation marks omitted); see also Jacobson
v. Jacobson, 557 P.2d 156, 158 (Utah 1976) (noting that a deed regular
in form is presumed to convey the entire fee simple title, or at least
whatever title the grantor has, and “one who attacks a deed has the
burden of proving otherwise by clear and convincing evidence”).
“Extrinsic evidence is admissible to assist in determining the intent
of the parties.” RHN Corp., 2004 UT 60, ¶ 38 (citing 66 Am. Jur. 2d
Reformation of Instruments § 114 (2001)). The “standard of review for
a trial court’s findings of fact for cases in equity is the same as for
cases at law, namely the clearly erroneous standard.” Id. ¶ 35.
¶13 As stated above, the Youngs had the burden to prove
reformation by clear and convincing evidence. However, the trial
court ruled that they had the burden to prove reformation of deed
by only a preponderance of the evidence—an error in the Youngs’
favor. The court then correctly stated that the Youngs were
required to prove either mutual mistake or mistake on the part of
one and fraud or inequitable conduct on the part of the other. The
court continued that “the deed itself is the best representation of
the previous landowner’s intent . . . .” This is correct. See id., ¶ 44
(“To determine the parties’ intent, we look first to the terms of
the . . . deed.”). In fact, reformation will not be granted absent clear
and convincing proof precisely because of “the presumption that
the instrument correctly evidences the agreement of the
parties . . . .” Weight v. Bailey, 147 P. 899, 903 (Utah 1915) (citing
2 Pomeroy, Eq. Jur. (3d Ed.) § 859).
¶14 The court found that the Youngs had “failed to prove fraud
or mutual mistake by the parties to any of the deeds in their chain
20110989‐CA 6 2013 UT App 31Vandermeide v. Young
of title,” because “[t]here was no intent shown of George and Nellie
Wendel[] who received the property from [the] Squires.” Such a
finding will be set aside only if it is clearly erroneous. See Utah R.
Civ. P. 52(a); RHN, 2004 UT 60, ¶ 53. A finding is clearly erroneous
“‘only if the finding is without adequate evidentiary support or
induced by an erroneous view of the law.’” State v. Walker, 743 P.2d
191, 193 (Utah 1987) (quoting Wright & Miller, Federal Practice
& Procedure § 2585 (1971)). Therefore, we will not disturb a finding
unless it is “against the clear weight of the evidence, or if [we]
otherwise reach[] a definite and firm conviction that a mistake has
been made.” Id.
¶15 The Youngs have not demonstrated that the trial court’s
finding is clearly erroneous. Indeed, the Youngs’ brief does not
acknowledge the court’s stated basis for its rejection of their deed
reformation theory. This is a potentially fatal defect in the Youngs’
appellate challenge. See Duchesne Land, LC v. Division of Consumer
Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (rejecting appellate claim
on the ground that it did not address the actual basis for the district
court’s ruling).
¶16 Nor have the Youngs demonstrated that the court’s finding
is “without evidentiary support.” Although they have set forth in
considerable detail the evidence that they believe refutes the court’s
finding, they have not acknowledged the evidence supporting the
court’s finding. See Utah R. App. P. 24(a)(9) (“A party challenging
a fact finding must first marshal all record evidence that supports
the challenged finding.”); see also West Valley City v. Majestic Inv.
Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991) (explaining the
marshaling requirement).
¶17 The Youngs’ brief relies heavily on the testimony of Marie
Wendel. She was asked at trial whether, “as one of the trustee
grantors” in the conveyance from the Wendel Trust to the
Keddingtons, she intended to retain ownership of “any little strip
along the south side.” She responded, “We just thought the
boundary line went halfway through the block. That was always
20110989‐CA 7 2013 UT App 31Vandermeide v. Young
understood.” She then reiterated, “I’ve always understood the
boundary line was halfway through the block. . . . My whole life we
just always figured it was halfway through the block.” Asked the
basis for this understanding, she testified “[J]ust common sense.”
This testimony of George and Nellie Wendel’s daughter lends
inferential support to the Youngs’ characterization of the grantees’
intent in the Squires’ conveyance to the Wendels.
¶18 On the other hand, the Youngs’ brief ignores testimony from
this same witness when questioned explicitly concerning her
parents’ understanding. When asked if she ever recalled
“overhearing any discussions between either of your
parents, . . . between them and the Miles or anybody else about
what was considered to [be] the boundary line between backyards
there,” Marie Wendel responded, “[N]o, we just kind of knew
whose trees were on which side.” When pressed again to recall
whether she ever overheard any discussions “about where people
thought the backyard lines met,” she answered, “I don’t remember
that, no.” This is the most relevant evidence presented at trial
concerning the Wendels’ understanding of the property line when
they acquired the property. It directly supports the trial court’s
finding that the Youngs failed to establish the Wendels’ intent as
grantees in 1949. Yet it is never mentioned in the Youngs’ brief.
¶19 In sum, the Youngs have failed to acknowledge the basis of
the court’s finding and have failed to marshal significant evidence
supporting it. Moreover, testimony from their own witness
supports the challenged finding. The Youngs have thus not carried
their burden of demonstrating that the challenged finding was
clearly erroneous.
¶20 However, we agree with the Youngs that the trial court’s
findings appear to be inconsistent. The trial court refused to reform
any deeds in the Youngs’ chain of title and left the title to their
property “as it appears in their deed.” This ruling would seem to
leave title in Viola Squires, the last person in the chain of title
whose deed included the disputed strip. Yet three years before
20110989‐CA 8 2013 UT App 31Vandermeide v. Young
trial, the court dismissed Squires on the ground that, having sold
the parcel “with the understanding that [she and her husband]
were selling their entire [north‐south] interest in the property and
were not retaining any interest,” Squires now “has no right, title,
interest, or estate in” the strip. This apparent inconsistency leaves
title to the property in limbo even though all potential owners
appear to have been involved in this litigation.
¶21 Where the court’s findings are internally inconsistent on a
material point, reversal and remand are appropriate. See
Bailey‐Allen Co., Inc. v. Kurzet, 876 P.2d 421, 426 (Utah Ct. App.
1994). Accordingly, we remand the case for the trial court to
reconcile these apparently inconsistent findings and to take
whatever additional action the court deems necessary to that end.
¶22 Third, the Youngs contend that “if this court remands this
case for new trial on the land ownership issue, this court should
rule that Young was/is entitled to present adverse possession
evidence including evidence of payment of real property taxes.” To
establish title to property by adverse possession, the claimant “has
the burden of proving . . . open, notorious, and hostile” possession
for seven years and payment of property taxes for that period. See
Marchant v. Park City, 788 P.2d 520, 523–24 (Utah 1990) (footnote
citations omitted); Utah Code Ann. § 78B‐2‐208(2) (LexisNexis
2008). Because our decision today does not contemplate a new trial
on the issue of adverse possession, we need not reach this claim.
Moreover, because the Youngs have not demonstrated that the trial
court erred in ruling that the Youngs failed to prove that their
possession of the disputed strip was open, notorious, and hostile,
this claim fails regardless of whether they paid taxes.
¶23 Fourth, the Youngs contend that the Vandermeides were not
entitled to an award of damages for Young’s removal of the fence.
The Youngs argue that the trial court granted the Vandermeides
judgment on their trespass claim despite ruling that the
Vandermeides did not own the property from which Young
removed the fence, thus contravening the rule that “the essential
20110989‐CA 9 2013 UT App 31Vandermeide v. Young
element of a claim for trespass is invasion of the plaintiffs[’]
property.” This argument misstates the Vandermeides’ claim and
the court’s ruling. The Vandermeides brought, and the trial court
granted, a claim for trespass to chattels. The trial court determined
that the Vandermeides owned the fence, not the strip of land on
which it stood. Accordingly, this claim lacks merit.
¶24 Fifth, the Youngs contend that they are entitled to
compensatory and punitive damages against the Vandermeides on
the Youngs’ trespass claim. This claim presupposes that the Youngs
own the disputed strip. Because they have not demonstrated
ownership, this claim fails.6
¶25 Sixth, the Youngs contend that the Vandermeides were not
entitled to an award of attorney fees under the bad faith statute. See
Utah Code Ann. § 78B‐5‐825 (LexisNexis 2008). Under that statute,
“[i]n civil actions, the court shall award reasonable attorney fees to
a prevailing party if the court determines that the action or defense
to the action was without merit and not brought or asserted in
good faith . . . .” Id. For the purposes of that statute, a finding of
bad faith must be based on the absence of one or more of the
following three factors: “(1) An honest belief in the propriety of the
activities in question; (2) no intent to take unconscionable
advantage of others; and (3) no intent to, or knowledge of the fact
that the activities in question will, . . . hinder, delay, or defraud
others.” Cady v. Johnson, 671 P.2d 149, 151–52 (Utah 1983) (citation
and internal quotation marks omitted).
6. Moreover, as the Vandermeides argued in their Reply to
Counterclaim and Cross‐Claim, the Youngs’ trespass claims against
the Vandermeides appear to be time‐barred. See Utah Code Ann.
§ 78‐12‐26 (Michie 1996) (requiring a trespass action to be brought
within three years of discovery of cause of action) (current version
at id. § 78B‐2‐305 (LexisNexis 2012)).
20110989‐CA 10 2013 UT App 31Vandermeide v. Young
¶26 A “finding of bad faith turns on a factual determination of
a party’s subjective intent.” Still Standing Stable, LLC v. Allen, 2005
UT 46, ¶ 9, 122 P.3d 556. It is thus “within the trial court’s
discretion to determine bad faith under this section.” Canyon
Country Store v. Bracey, 781 P.2d 414, 421 (Utah 1989) (interpreting
the predecessor statute to section 78B‐5‐825). We review such a
determination under the clearly erroneous standard. Still Standing
Stable, 2005 UT 46, ¶ 8.
¶27 The trial court granted attorney fees to the Vandermeides
under the bad faith statute on the Youngs’ malicious prosecution
and trespass counterclaims. The court’s “concern mainly focus[ed]
on the malicious prosecution claim that was stated in the
counterclaim.” With respect to that claim, the court stated that
“there were never facts that would give rise to a claim for malicious
prosecution absent a criminal proceeding being instituted,” a fact
that the Youngs’ counsel conceded. See Neff v. Neff, 2011 UT 6, ¶ 52,
247 P.3d 380 (stating that an element of the tort of malicious
prosecution is that the defendant initiated or procured the initiation
of criminal proceedings against an innocent plaintiff). The Youngs
do not challenge or even acknowledge this primary basis for the
trial court’s finding of bad faith. Accordingly, we affirm the trial
court’s award of the Vandermeides’ attorney fees incurred in
defending against the Youngs’ malicious prosecution claim.
¶28 With respect to the trespass counterclaim, the court
explained that it was awarding fees because “both surveyors made
it clear through their work that defendant did not own the property
in question where the fence was built, yet despite hearing that from
both surveyors the defendant pursued counterclaim
for . . . trespass.” The court continued, “It’s my best view that those
actions are without merit and were not asserted in good faith
because [there] were not fact[s] sufficient that could have ever
proven either of those claims.”
¶29 In effect, the Youngs contend that, while their reformation
of deed claim ultimately did not prevail, the clear implication of the
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court’s assignment of bad faith with respect to that claim is that
they “should not have defended [against] the Vandermeide
complaint nor sought to quiet title nor to recover trespass damages,
but instead had a clear legal duty to abandon the strip to the
Vandermeides.”
¶30 The Youngs’ argument does not fairly meet the trial court’s
stated basis for its ruling. The award was not based on the Youngs’
defense against the Vandermeides’ claim nor was it based on their
quiet title claim. In fact, the trial court stated, “I’m not granting fees
on the quiet title claims.”7 The Youngs’ statement that the trial
court thus expected them to “abandon the strip to the
Vandermeides” is inaccurate. With respect to the trespass
counterclaim, it appears that counsel for the Youngs never
requested relief on the basis of trespass at trial, or for that matter
mentioned their trespass claim at all, in closing argument or
otherwise. In short, the Youngs have not demonstrated that the
trial court’s finding of bad faith in connection with their trespass
counterclaim was clearly erroneous.
¶31 Seventh, the Youngs contend that the trial court erred in not
awarding attorney fees to the Youngs under the bad faith statute.
The Youngs claim the Vandermeides acted in bad faith by
(1) pressing a “no‐man’s land” theory, (2) asserting damages could
be awarded without deciding property ownership, (3) claiming a
wire fence existed without factual support or encouraging a
surveyor to depict a nonexistent wire fence, (4) insisting that the
trial court refuse to consider or ignore undisputed evidence,
(5) refusing to substitute Young as a trustee, and (6) pressing the
7. The court recognized that the quiet title claim and the trespass
claim “tie together so much” that separating out fees incurred in
connection with one from fees incurred in connection with the
other was difficult. After making this statement, the court and
counsel met in chambers to discuss the matter further. That
discussion is not included in the record on appeal.
20110989‐CA 12 2013 UT App 31Vandermeide v. Young
court to hold Young in contempt for recording deeds properly
placing a corrected description of the border at the Vandermeides’
property boundary. This claim is unpreserved, see 438 Main St. v.
Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801, and unsupported by
citation to the record, see Utah R. App. P. 24(a)(9). Moreover, the
Youngs do not explain how a successful claim could be, as required
by the bad faith statute, “without merit.” See Utah Code Ann.
§ 78B‐5‐825 (LexisNexis 2008). The Youngs’ seventh contention
thus fails on all three grounds.
¶32 Eighth, the Youngs contend that Young, current co‐trustee
of the Helen M. Stock Revocable Trust, should have been
substituted as the real party in interest for Robert J. Young, the
former co‐trustee. The Youngs suggest that the trial court violated
rule 25(c) of the Utah Rules of Civil Procedure when it denied their
post‐trial motion for substitution.8 That rule states, “In case of any
transfer of interest, the action may be continued by or against the
original party, unless the court upon motion directs the person to
whom the interest is transferred to be substituted in the action or
joined with the original party.”
¶33 The Youngs do not explain how the trial court violated this
rule by allowing the action to be continued against the original
party. An issue is inadequately briefed “when the overall analysis
of the issue is so lacking as to shift the burden of research and
argument to the reviewing court.” State v. Thomas, 961 P.2d 299, 305
(Utah 1998). In such a circumstance, the appellate court will not
assist the appellant “by formulating arguments on its behalf or
translating its problematic arguments into plausible ones.” B.A.M.
Dev., LLC, v. Salt Lake County, 2012 UT 26, ¶ 35 n.8, 282 P.3d 41. We
deny the Youngs’ eighth claim on this basis.
8. Although the substitution of trustees occurred before trial, the
Youngs did not file their motion for substitution until nearly nine
months after trial.
20110989‐CA 13 2013 UT App 31Vandermeide v. Young
¶34 Ninth, the Youngs contend that this court should direct that
all proceedings on remand be heard by a different district court
judge. Specifically, the Youngs argue that the trial judge in this case
was biased against them. As proof of bias, the Youngs assert
without citation to the record that “the trial court should not press
a party to do what the law does not require in order to settle” and
that “[s]ettlement efforts not being successful, the court should not
have then required Young to do that which the law does not
require.”
¶35 This claim fails on three independent grounds. First, the
claim is unpreserved. This court will not “consider the issue of
judicial bias or prejudice when it is raised, as in the present case,
for the first time on appeal.” Wade v. Stangl, 869 P.2d 9, 11 (Utah Ct.
App. 1994). Second, the claim is unsupported by citation to the
record and is therefore inadequately briefed. See Utah R. App. P.
24(a)(9). And third, the claim lacks merit. Insofar as we are able to
determine, the allegation of bias rests solely on the trial court’s
rulings. But “‘no deduction of bias and prejudice may be made
from adverse rulings by a judge.’” In re Affidavit of Bias, 947 P.2d
1152, 1154 (Utah 1997) (Zimmerman, C.J., sitting alone) (quoting 46
Am. Jur. 2d Judges § 219 (1994)).
¶36 Finally, the Vandermeides seek attorney fees on appeal on
two independent grounds. First, they assert that the Youngs’
appeal is frivolous under rule 33 of the Utah Rules of Appellate
Procedure. “[A] frivolous appeal . . . is one that is not grounded in
fact, not warranted by existing law, or not based on a good faith
argument to extend, modify, or reverse existing law.” Utah R. App.
P. 33(b). We do not agree that the Youngs’ appeal was frivolous.
Indeed, what the Youngs call the “core issue” in this case—whether
they are entitled to reformation of their deed—was fairly debatable.
¶37 In addition, the Vandermeides seek attorney fees on appeal
on the ground that the Youngs’ brief “is full of baseless accusations
of judicial misconduct and bias” and that “the whole tenor of [the
Youngs’] brief is that no reasonable person could have ruled the
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way the trial court did in this case.” The Vandermeides compare
the Youngs’ brief on appeal to that stricken by our supreme court
in Peters v. Pine Meadow Ranch Home Ass’n, 2007 UT 2, 151 P.3d 962,
pursuant to rule 24(k) of the Utah Rules of Appellate Procedure.
That rule provides that “[a]ll briefs under this rule must be . . . free
from burdensome, irrelevant, immaterial or scandalous matters.
Briefs which are not in compliance may be disregarded or
stricken, . . . and the court may assess attorney fees against the
offending lawyer.” Utah R. App. P. 24(k).
¶38 In Peters, appellate counsel’s brief was “replete with attacks
on the integrity of the court of appeals panel that decided the cases
below.” Peters, 2007 UT 2, ¶ 23. For example, that counsel accused
the panel of choosing a result based on “prejudice, bias,
corruption[,] or whatever, and then work[ing] backwards to the
evidence, . . . fabricat[ing] the evidence they need to make their
decisions plausible.” Id. ¶ 12. He also compared the panel’s opinion
to a reported massacre of innocent civilians by United States
Marines during the war in Iraq. Id. ¶ 18.
¶39 Here, the Youngs’ brief does contain intemperate passages
that in the interest of professionalism, accuracy, and advocacy
should have been redacted in the editing process. But on the whole,
the Youngs’ brief avoids the worst excesses of the Peters brief. We
therefore decline to strike it or to award sanctions.
CONCLUSION
¶40 We remand the case for the trial court to reconcile the
apparently inconsistent findings and to take whatever additional
action the court deems necessary to that end. In all other respects,
the judgment of the trial court is affirmed. No fees are awarded on
appeal.
____________________
20110989‐CA 15 2013 UT App 31