Bresee v. Barton

2016 UT App 220

THE UTAH COURT OF APPEALS

RANDALL D. BRESEE AND DERRY BRESEE,
Appellants,
v.
LYLE C. BARTON AND VERONICA L. BARTON,
Appellees.

Opinion
No. 20140565-CA
Filed November 3, 2016

Fifth District Court, Cedar City Department
The Honorable G. Michael Westfall
No. 120500092

Matthew D. Carling, Attorney for Appellants
Todd Macfarlane, Attorney for Appellees

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
KATE A. TOOMEY concurred. JUDGE GREGORY K. ORME concurred
in part and dissented in part, with opinion.

ROTH, Judge:

¶1 Randall D. Bresee and Derry Bresee (collectively, the
Bresees) appeal several rulings made by the district court in
favor of Lyle C. Barton and Veronica D. Barton (collectively, the
Bartons). We affirm but remand for the narrow purpose of
determining the Bartons’ attorney fees on appeal.

BACKGROUND

¶2 This case involves water and boundary disputes between
the Bresees and the Bartons. The Bresees purchased a parcel of
land in 2009. Their parcel is surrounded on three sides by the
Bartons’ land. When the Bresees purchased their parcel, the deed
included a fifty-foot ingress, egress, and utilities easement over
 Bresee v. Barton

the Bartons’ land that allowed the Bresees access to their
property. The deed did not mention any other easement upon or
interest in the Bartons’ land.

¶3 The Bartons have two sources of irrigation water: water
shares they own in the Parowan Reservoir Company and water
they pump from an irrigation well located on their property.
They convey the water from both sources to their cultivated land
through a buried mainline running through their property.
During times when the reservoir water is sparse, the Bartons use
a valve to switch the mainline to deliver water from the private
well.

¶4 The Bresees own eleven shares in the Parowan Reservoir
Company. At the time of the dispute, the Bresees did not have
any way to access their reservoir shares. Before the Bresees
acquired their property, the Bartons had entered into a series of
exchange-of-use agreements with the Bresees’ predecessors in
interest whereby, in exchange for permitting the Bartons to farm
a portion of their property, the Bartons allowed the Bresees’
predecessors to access the water shares owned by the
predecessors through the Bartons’ mainline. In 2009, shortly
after the Bresees purchased the property, Mr. Barton approached
Mr. Bresee about entering into a similar exchange-of-use
agreement. The Bresees initially agreed to this arrangement.
However, a dispute arose between the parties that led to the
termination of the agreement before the 2012 growing season.

¶5 In April 2012, Mr. Bresee entered the Bartons’ property
without permission to divert water from the Bartons’ mainline to
his property. He turned off the water, dug a trench with a
backhoe, and proceeded to install a T-connection into the
mainline to connect a pipeline, which he ran back to his own
property through the new trench. The Bartons soon discovered
the entry onto their property, removed the T-connection, and
restored the property to its prior condition.

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 Bresee v. Barton

¶6 Shortly thereafter, the Bresees filed a complaint alleging,
among other things, that an easement existed for water transport
to their property in and from the Bartons’ existing irrigation
mainline on various theories, including eminent domain. The
Bresees also sought to quiet title in an approximately nine-foot
strip of land along their western border. The Bresees claimed a
right to the strip of land under theories of adverse possession
and boundary by acquiescence.

¶7 In early June 2012, the district court notified the parties of
the discovery completion deadlines. In particular, it noted that
fact discovery was to be completed by November 16, 2012.
However, on June 14, 2012, at a preliminary evidentiary hearing,
the Bartons sought leave to file a counterclaim. The court
ordered the parties to file any amended pleadings or
counterclaims no later than twenty days from the date of that
hearing. Although the Bresees’ counsel suggested to the court
that the discovery schedule should be extended accordingly, the
court did not alter the November 16, 2012 discovery deadline.
The Bartons filed their counterclaims before the twenty-day
deadline requesting, inter alia, a declaratory judgment that the
Bresees held no interest in either the Bartons’ mainline or their
irrigation well.

¶8 On September 9, 2012, the Bartons filed a motion for
summary judgment (the MSJ) seeking dismissal of all of the
Bresees’ original claims. The Bresees later admitted that at the
time the MSJ was filed, a little more than a month before the
discovery deadline, they had not yet conducted any discovery.
The court set a hearing on the MSJ for 9:00 a.m. on February 14,
2013, and notified the parties. The Bresees’ counsel mistakenly
calendared the hearing for 1:00 p.m. instead of 9:00 a.m. on the
same day. As a result of counsel’s calendaring error, neither he
nor the Bresees appeared for the hearing. Neither the Bartons’
counsel nor the court attempted to contact the Bresees’ counsel
to inquire as to his whereabouts. After confirming that notice of
the hearing had been sent out, the court heard the Bartons’

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 Bresee v. Barton

arguments despite the Bresees absence and orally ruled that the
Bartons were entitled to summary judgment in their favor on all
claims in the Bresees’ complaint, reserving the Bartons’ request
for bad-faith attorney fees for later decision.

¶9 After the MSJ hearing, the Bresees moved for a new trial
under rule 59 of the Utah Rules of Civil Procedure. They
contended that relief was warranted because their counsel’s
“mistake of writing down the wrong time for the hearing” was
an inadvertent “accident” under rule 59(a)(3) and that they
“suffered prejudice in not being afforded an opportunity to be
present at a meritorious stage of the action which they brought.”
The Bresees also argued that relief was warranted under rule
59(a)(1) due to an “irregularity in the proceedings” because
neither the court nor opposing counsel extended the
“professional courtesy” to contact the Bresees’ counsel “when it
was clear that he had not appeared . . . for the hearing” and that,
as a result, “the Bresees were deprived of the ability to present
oral arguments regarding the issues contained in the [MSJ]” and
were therefore “prevented from meaningfully being heard on
the matter.” Additionally, the Bresees contended that questions
of material fact warranted reversal and a new summary
judgment proceeding. The district court denied the Bresees’
motion on the grounds that, even assuming rule 59 subsections
(a)(1) and (a)(3) applied to the circumstances, the Bresees
suffered no prejudice by their absence, because they had “ample
opportunity to put their arguments before the court in written
form, and have in fact taken full advantage of such
opportunity.” The court granted the MSJ in the same order,
memorializing its earlier ruling from the bench.

¶10 On December 7, 2012, a couple of months prior to the MSJ
hearing, but four months after the pleading amendment cut-off
date, the Bresees filed a motion to amend their complaint to
assert new causes of action, including easement by necessity,
easement by implication, trespass, negligence, and negligent and
intentional infliction of emotional distress. The Bartons objected.

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 Bresee v. Barton

At the time of the MSJ hearing, the Bresees had not yet
submitted the motion to amend for decision and the district
court had not ruled on it. The Bresees did not request a ruling on
their motion to amend until a hearing on November 4, 2013,
nearly a year after it was filed and almost nine months after the
summary judgment ruling. About a month later, the court heard
arguments from both parties regarding the motion to amend and
ultimately denied the motion.

¶11 The Bartons’ counterclaims were resolved in a bench trial
on January 9, 2014. The district court determined that the Bresees
had no easement to access the Bartons’ mainline and
consequently found in the Bartons’ favor on their claims for
trespass and punitive damages, which both arose from the
Bresees’ incursion onto the Bartons’ property to hook into the
Bartons’ mainline. 1 The court also ruled that the Bartons owned
the narrow nine-foot strip of land that the Bresees had claimed
was theirs and that the Bresees had no basis for claiming an
interest in it. Finally, the court ordered the Bresees to pay the
Bartons’ attorney fees under the bad-faith attorney fee statute,

1. In their counterclaim, the Bartons also sought punitive
damages for other conduct that the Bresees had engaged in as
part of the larger conflict between the parties. In particular, the
Bartons sought damages for the Bresees’ repeated failure to close
a set of gates located on the access easement on the Bartons’
property despite “numerous requests by” the Bartons that they
do so. The failure to close the gates led to the Bartons’ livestock
escaping onto the road bordering the properties. More than
once, the Bartons called the police regarding the gates, and on
one occasion, Mr. Bresee informed the police that “he would not
close the gate and that he was [leaving the gates open] out of
spite.” The court concluded that the Bresees’ conduct on this
issue was willful and malicious, but it did not award punitive
damages, because the Bartons did not present evidence
regarding the actual damages they suffered.

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Utah Code section 78B-5-825, for fees incurred up to the date of
the court’s ruling on the MSJ. The district court determined that
the Bresees’ claims were without merit, because they “clearly
[lacked a] legal basis for recovery.” The court further found that
the Bresees’ claims were asserted in bad faith because the
Bresees “did not have [an] honest belief in the propriety of
instituting this litigation against [the Bartons].” (Citation and
internal quotation marks omitted.) The court denied the Bartons’
other counterclaims—private nuisance, destruction of property,
intentional interference with economic relations, and
negligence—and declined to award the Bartons further attorney
fees for prosecuting their counterclaim.

¶12 The Bresees appeal the district court’s grant of summary
judgment, the denial of their motion to amend, and the award of
bad-faith attorney fees.

ISSUES AND STANDARDS OF REVIEW

¶13 The Bresees first argue that the district court erred in
granting summary judgment in favor of the Bartons. “We review
summary judgments for correctness, giving no deference to the
[district] court’s decision . . . .” Bahr v. Imus, 2011 UT 19, ¶ 16, 250
P.3d 56. They also argue that the district court erred in denying
their rule 59 motion for a new trial following the MSJ hearing.
“A [district] court’s decision to grant or deny a motion for a new
trial is reviewed for an abuse of discretion,” Clayton v. Ford Motor
Co., 2009 UT App 154, ¶ 5, 214 P.3d 865, and “[w]e will reverse a
district court’s ruling on a motion for a new trial only if there is
no reasonable basis for the decision,” ASC Utah, Inc. v. Wolf
Mountain Resorts, LC, 2013 UT 24, ¶ 21, 309 P.3d 201 (citation and
internal quotation marks omitted).

¶14 The Bresees next argue that the district court erred in
denying the motion to amend their complaint. “‘The granting or
denial of leave to amend a pleading is within the broad
discretion of the [district] court, and we will not disturb [the

20140565-CA 6 2016 UT App 220
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district court’s decision] absent a showing of an abuse of that
discretion.’” Kelly v. Hard Money Funding, Inc., 2004 UT App 44,
¶ 41, 87 P.3d 734 (quoting Smith v. Grand Canyon Expeditions Co.,
2003 UT 57, ¶ 31, 84 P.3d 1154).

¶15 Finally, the Bresees argue that the district court erred in
awarding the Bartons attorney fees on the basis of the Bresees’
bad faith. The Utah Code requires a court to award reasonable
attorney fees in a civil action to the 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.” Utah Code
Ann. § 78B-5-825(1) (LexisNexis 2012). “The ‘without merit’
determination is a question of law, and therefore we review it for
correctness.” Jeschke v. Willis, 811 P.2d 202, 203 (Utah Ct. App.
1991). The bad-faith determination “is a question of fact” and is
therefore reviewed by this court for clear error. Id. at 204.

ANALYSIS

I. Summary Judgment

¶16 The Bresees make two arguments with regard to the
district court’s summary judgment decision. First, they argue
that, notwithstanding their failure to appear at the MSJ hearing,
the district court should not have granted the motion without
first allowing them an opportunity to present oral argument.
Second, they argue that the MSJ should not have been granted,
because genuine issues of material fact existed and the Bartons
were not entitled to judgment as a matter of law. We are not
persuaded that the district court erred.

A. Absence from the Summary Judgment Hearing

¶17 The Bresees argue that the district court erred when it
granted summary judgment without first having heard oral
argument from them. Specifically, they seem to contend that the
court should have contacted their counsel to inquire about his

20140565-CA 7 2016 UT App 220
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absence or should have rescheduled the hearing so that the
Bresees’ arguments could be considered alongside the Bartons’.
They claim that the court “specifically held [their] silence
occurring from nonattendance . . . against them,” “relied entirely
upon the Bartons’ arguments,” and “refused to consider” their
opposition to the MSJ. The Bresees also contend that, as a result
of the court’s decision to proceed with the hearing in their
absence, they were “unable to reaffirm [their] dispute with [the]
facts” that the Bartons had asserted in support of the MSJ. They
contend that the district court erred in denying their motion for a
new trial for essentially the same reasons.

¶18 In essence, the Bresees argue that they were not afforded
due process—the right to be heard—because they were not
present at the MSJ hearing. The Utah Supreme Court has stated
that “at its core, the [procedural] due process guarantee is
twofold—reasonable notice and an opportunity to be heard.” In
re Adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215. This requires
that a party “‘in any proceeding which is to be accorded finality
[must be provided] notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their
objections.’” Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶ 10, 100
P.3d 1211 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950)).

¶19 The Bresees concede that they received proper notice of
the MSJ hearing. 2 Thus, the Bresees must demonstrate that they

2. The Bresees contend that at the time of the 9:00 a.m. hearing,
their counsel was “in his office only three (3) minutes from the
courthouse and was available to have appeared,” but that “he
received no courtesy call from opposing counsel nor the court
personnel respecting this oversight.” But the Bresees do not
argue that the court or opposing counsel was required to call
him or that the district court abused its discretion by failing to
(continued…)

20140565-CA 8 2016 UT App 220
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suffered a due process violation even though they received
notice of the time and place of the hearing. In other words, the
Bresees must show that, despite having been notified, their
absence at the hearing rendered them without “an opportunity
to present” their case. Cf. id. (citation and internal quotation
marks omitted). They have not done so. The district court denied
the Bresees’ rule 59 motion for a new trial because it determined
that, even if the Bresees’ counsel had mistakenly miscalendared
the time of the hearing or their absence amounted to some
irregularity in the proceeding, the Bresees nonetheless “had
ample opportunity to put their arguments before the court in
written form, and ha[d] in fact taken full advantage of such
opportunity.” The record supports the district court’s
assessment. Even though the Bresees were not present for the
MSJ hearing, they nonetheless received an adequate opportunity
to be “heard” through their written motions and briefing.
Indeed, by the time of the hearing, the Bresees had fully briefed
their opposition to the MSJ, had provided their own affidavit to
support a number of factual assertions, and had filed motions to
strike every affidavit that accompanied both the Bartons’ initial
memorandum in support of the MSJ and the Bartons’ reply to
the Bresees’ opposition memorandum. In addition, the Bresees
provided the district court another opportunity to consider their
arguments by filing a rule 59 motion after the missed hearing in
which they argued not only that their absence from the MSJ
hearing was a basis for a new proceeding, but again presented to
the district court, in writing, the substance of their opposition to
the Bartons’ MSJ.

(…continued)
do so. And they cite no law or authority suggesting that either
opposing counsel or court personnel are obligated to provide a
“courtesy call” when counsel fails to appear for a hearing.
Accordingly, we decline to address the issue further.

20140565-CA 9 2016 UT App 220
 Bresee v. Barton

¶20 On appeal, the Bresees have not articulated any specific
argument or factual dispute that they did not have the
opportunity to present to the district court due to their absence
from the hearing. They assert that they were not “able to reply to
the court’s concerns regarding [the Bartons’] claim of
‘considerable interference’” (a claim we discuss in detail below,
see infra Part I.B), because they were “unable to reaffirm [their]
dispute with [the pertinent] facts” at the hearing. But an inability
to “reaffirm” disputed facts suggests that the Bresees had
already included their factual disputes in their briefing to the
district court before the hearing. And, in any event, an inability
to verbally “reply” to a claim in a hearing hardly seems to rise to
the level of a due process violation where the Bresees took
advantage of the opportunity—both before and after the
hearing—to brief the district court regarding their position on
the disputed issues. Further, other than conclusory allegations,
the Bresees offer no support for their contention that the district
court refused to consider their opposition on its merits because
of their absence from the hearing. 3 See Utah R. App. P. 24(a)(9).

3. The Bresees also argue that it was procedural error to grant
summary judgment when a motion to amend was still pending
and discovery had not yet closed. However, the Bresees do not
support these arguments with reasoned analysis; they simply
cite several ostensibly pertinent cases and then state that the
holdings of those cases support a conclusion that the summary
judgment in this case was improper. Such an approach cannot
satisfy the burden of persuasion. See Utah R. App. P. 24(a)(9);
State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (“Implicitly, rule
24(a)(9) requires not just bald citation to authority but
development of that authority and reasoned analysis based on
that authority. We have previously stated that this court is not a
depository in which the appealing party may dump the burden
of argument and research.” (citation and internal quotation
marks omitted)).

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 Bresee v. Barton

To the contrary, the district court’s written decision on the MSJ
indicates that it considered the arguments of both parties.

B. The Summary Judgment Decision

¶21 The Bresees argue that the district court erred in granting
summary judgment on their irrigation easement claim because
“disputed material facts existed” and because there was “record
evidence”—evidence they characterize as “undisputed”—that
contradicted the Bartons’ considerable interference contention.

¶22 In Utah, a person may condemn a “right of way” across
land for water and irrigation purposes:

Any person shall have a right of way across and
upon public, private, and corporate lands, or other
rights of way, for the construction, maintenance,
repair and use of all necessary reservoirs, dams,
water gates, canals, ditches, flumes, tunnels,
pipelines and areas for setting up pumps and
pumping machinery or other means of securing,
storing, replacing and conveying water for
domestic, culinary, industrial and irrigation
purposes or for any necessary public use . . . upon
payment of just compensation therefor, but such
right of way shall in all cases be exercised in a
manner not unnecessarily to impair the practical
use of any other right of way, highway, or public
or private road, or to injure any public or private
property.

Utah Code Ann. § 73-1-6 (LexisNexis 2012). The Utah Supreme
Court has interpreted this provision to mean that a plaintiff has a
“right to acquire a right-of-way across [a] defendant’s land in
order to use his water” only “if the defendant is justly
compensated for the taking” and “so long as [the plaintiff] does

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 Bresee v. Barton

not interfere with the rights and use of the defendant’s water.”
Dalton v. Wadley, 355 P.2d 69, 72 (Utah 1960). 4

¶23 In support of their MSJ, the Bartons argued that the
Bresees were not entitled to an irrigation easement, because an
easement in favor of the Bresees would interfere with the
Bartons’ own water use. 5 In particular, the Bartons argued that

4. In their opening brief, the Bresees also cite a related statute,
Utah Code section 73-1-7, as providing a right for them to
convey their shares of water through the Bartons’ mainline. That
section provides that a person may make use of another party’s
canal or ditch “to convey water for irrigation or any other
beneficial purpose.” Utah Code Ann. § 73-1-7(1) (LexisNexis
2012). This right is limited by the requirement that the canal or
ditch to which a person seeks access can be “used without
displacing current users or exceeding free board capacity.” Id.
But the Bresees did not refer to this statute in their complaint
and only mentioned it in passing, without analysis, in their
opposition to the Bartons’ MSJ. Moreover, in its summary
judgment ruling on the irrigation easement claim, the court did
not mention this statute, and the Bresees did not raise it in their
subsequent motion for a new trial. As a consequence, to the
extent that the Bresees have attempted to argue on appeal that
they are entitled to use any surplus capacity available in the
Bartons’ mainline under section 73-1-7, the contention is
unpreserved and we do not address it further.

5. The Bartons also argued in their MSJ that section 73-1-6
“requires compensation be paid for any taking” and that “no
compensation has either been paid, or proffered” by the Bresees.
In their summary judgment opposition, the Bresees responded
that once the court determined that they were entitled to a
private condemnation, the “issue of value would then be
litigated as a question of fact, to ultimately be determined by this
Court with the requirement that the Bresees pay the Bartons the
(continued…)

20140565-CA 12 2016 UT App 220
 Bresee v. Barton

an irrigation easement would cause considerable interference
and harm to their water use and rights because there were
insufficient water resources for both properties. They contended
that the water actually available through reservoir shares was
often limited, due to fluctuating reservoir levels resulting from
unreliable precipitation, and that the reservoir supply was
inadequate to irrigate their own property—let alone both the
Barton and Bresee properties. And as a result of the limited
availability of reservoir water, they regularly pumped water
from the irrigation well on their property to subsidize their
reservoir shares. To support this argument factually, the Bartons
presented an affidavit, averring that they access both their
reservoir shares and their irrigation well water through the main
water line on their property; that they “regularly pump” water
from the irrigation well located on their property to
accommodate their “farming operation” due to insufficient
water resources from reservoir shares; that the exchange-of-use
agreements permitted the previous as well as the current owners
of the Bresees’ parcel to access “certain shares of water” they
owned in exchange for the Bartons’ “watering, use of, and
farming of the northwestern section of” the Bresee parcel; and
that in the course of each of the exchange-of-use agreements the
Bartons “have had to pump water from their irrigation well to
irrigate their farming operation and the northwestern section” of
the Bresees’ parcel due to the insufficient “water resources apart
from the main water line.” Accordingly, the Bartons argued that
“no taking can occur” under section 73-1-6 of the Utah Code,
because “[t]he Bresees’ taking of an irrigation easement under
the theory of eminent domain would result in extensive harm
and interference with the Bartons’ use of their irrigation well,

(…continued)
value of the property taken prior to having the right to condemn
the property and assume ownership thereof.” The district court
did not reach this question below, and as neither party reargues
the point on appeal, we do not address it further.

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 Bresee v. Barton

their main water line and access to their water shares in the
Parowan Reservoir Company.”

¶24 In their opposition, the Bresees claimed that there were
disputes of material fact that precluded summary judgment. In
support, they submitted an affidavit by Mr. Bresee. The Bresees
did not dispute that the Bartons access both their reservoir
shares and their well water through the main water line or that
the Bartons regularly pump from the irrigation well on their
property to subsidize their reservoir shares. The Bresees also did
not dispute the terms of the exchange-of-use agreements
between the Bartons and their predecessors in interest—namely,
that the agreements provided the previous owners of the Bresee
parcel access to their reservoir shares and that the Bartons were
permitted to farm the northwestern portion of the Bresee parcel
in exchange. The Bresees did, however, purport to dispute the
Bartons’ assertions that the Bartons have had to pump irrigation
well water under the prior exchange-of-use agreements in order
to irrigate both the Barton property and the northwestern
portion of the Bresee property due to insufficient water
resources. For example, the Bresees alleged that “[t]he water
pumped was probably owned by the [owners of the Bresee
parcel]. Further, it was pumped through the common water line
in which the Bresees owned an interest.”

¶25 However, the district court struck the averments in Mr.
Bresee’s affidavit to support the disputes related to ownership of
the well, the well water, and the water line (including those
identified above and others) because they “include[d] legal
conclusions, lack[ed] foundation, or contain[ed] inadmissible
hearsay.” For example, Mr. Bresee averred that “some of [his]
ground water shares are assigned to the well located” on the
Barton property, that the water line “is held in common
ownership by both the Bresees and the Bartons,” and that he had
a “vested right to access to the water line [and] irrigation well”—
all of which the district court struck. Consequently, the asserted
factual disputes that relied on these stricken averments for

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 Bresee v. Barton

support—in particular, the dispute about the Bartons’ pumping
of well water under the exchange-of-use-agreements to
compensate for insufficient reservoir water—could not be
considered for purposes of summary judgment. See Smith v. Four
Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 50, 70 P.3d 904
(“An affidavit that merely reflects the affiant’s unsubstantiated
opinions and conclusions is insufficient to create an issue of
fact.” (citation and internal quotation marks omitted)); Webster v.
Sill, 675 P.2d 1170, 1172 (Utah 1983) (explaining that “[t]he mere
assertion that an issue of fact exists without a proper evidentiary
foundation to support that assertion is insufficient to preclude
the granting of a summary judgment motion”). The Bresees have
not challenged the district court’s decision to strike portions of
Mr. Bresee’s affidavit.

¶26 The Bresees also argued that the Bartons were not entitled
to summary judgment on the irrigation easement claim as a
matter of law. But in making their argument, they failed to
address either the facts or arguments that the Bartons submitted
to support their position—namely, that condemnation of an
easement in favor of the Bresees would significantly interfere
with the Bartons’ ability to use their water rights to irrigate their
own land. Instead, the Bresees argued broadly that the Bartons
were not entitled to summary judgment on the irrigation
easement claim because “there is a right as a matter of law for
private eminent domain” under Utah Code section 73-1-6. They
asserted that “[t]his alone precludes the grant of summary
judgment in favor of the Bartons.” And unlike the Bartons, the
Bresees failed to discuss the pertinent facts (or their disputes
with certain facts) relating to the Bartons’ interference defense or
demonstrate how the facts alleged by the Bartons failed to
support the defense. Furthermore, in their post-ruling motion for
a new trial, while the Bresees argued that a new summary
judgment proceeding was warranted on the basis of insufficient
evidence and errors of law under rule 59 of the Utah Rules of
Civil Procedure, Utah R. Civ. P. 59(a)(6), (a)(7), they again failed
to address the Bartons’ interference argument, much less

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identify particular facts that might have called the interference
argument into question for purposes of summary judgment.

¶27 In ruling in the Bartons’ favor, the district court
determined that it was undisputed that the Bartons accessed
both their reservoir shares and their well water through the main
water line; that the Bartons “regularly pump” water from the
irrigation well for their farming operation to compensate for
insufficient reservoir water; and that, while the exchange-of-use
agreements had provided the owners of the Bresee parcel access
to their reservoir shares through the Bartons’ mainline, in
connection with each of the exchange-of-use agreements the
Bartons have had to pump water from the irrigation well to
subsidize the reservoir shares due to insufficient water
resources.

¶28 Regarding the irrigation easement claim in particular, the
district court determined that, although the Bresees had asserted
a statutory right to condemn an irrigation easement in and over
the Bartons’ property, they failed to rebut the Bartons’ evidence
that such an easement would cause “considerable interference”
with the Bartons’ water use. The court noted the Bartons’
contentions that they regularly pumped well water to subsidize
their reservoir shares and that there were not sufficient water
resources for irrigation of the Barton property, let alone for both
properties. The court concluded that the Bresees’ failure to
respond to the “considerable interference” argument was
essentially a “concession” that their eminent domain claim did
not meet the requirements of the relevant statute and granted
summary judgment in the Bartons’ favor on that basis.

¶29 On appeal, the Bresees argue that summary judgment
was improper on the irrigation easement claim because there
were disputed material facts that should have precluded
summary judgment on that claim. In particular, the Bresees
argue that they “specifically disputed [the] facts” related to the
considerable interference contention in their summary judgment

20140565-CA 16 2016 UT App 220
 Bresee v. Barton

opposition, and that those disputes should have defeated
summary judgment on the irrigation easement claim. They also
argue that the Bartons’ considerable interference contention
should have failed because of certain undisputed evidence in the
record—namely, the fact of the Bresees’ own water shares
ownership, which they claim could be accessed “without
interfering with [the] Bartons’ shares whatsoever,” and the fact
of the exchange-of-use agreements. They argue that “[t]he water
cannot be sufficient for purposes of making an agreement, but
insufficient if access is allowed by eminent domain or
easement.” We address each below.

1. Factual Disputes

¶30 The Bresees claim on appeal that they specifically
disputed facts related to the considerable interference contention
below and that those factual disputes should have defeated
summary judgment. Indeed, they argue that they disputed “each
and every one of the eighty-five (85) paragraphs” of the MSJ and
that the factual disputes “pertaining to the eminent domain
claim rendered such a viable legal issue not subject to summary
judgment.” However, on appeal, the Bresees have failed to
identify the specific factual disputes they raised below that were
relevant to the considerable interference argument or to the
eminent domain claim. For example, although they argue that
the disputed facts “pertaining to the eminent domain claim
rendered such a viable legal issue not subject to summary
judgment,” they do not identify the “specific facts” they “set
forth” in opposition to show “that there [was] a genuine issue
for trial,” see Orvis v. Johnson, 2008 UT 2, ¶ 18, 177 P.3d 600
(citation and internal quotation marks omitted), or attempt to
analyze any particular disputes of fact from their summary
judgment opposition in light of the irrigation easement claim.
This failure places the burden on the appellate court to go
through the record, identify the potentially relevant disputed
facts, and make their arguments about those facts for the
appellant. But an appellant may not “dump the burden of

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 Bresee v. Barton

argument and research” on the appellate court. State v. Thomas,
961 P.2d 299, 305 (Utah 1998) (citation and internal quotation
marks omitted); see also Wohnoutka v. Kelley, 2014 UT App 154,
¶ 6, 330 P.3d 762 (“An appellate court should not be asked to
scour the record to save an appeal by remedying the deficiencies
of an appellant’s brief.”). Rather, the Bresees have the burden to
develop their arguments with “reasoned analysis” based on the
pertinent portions of the record, but they have failed to do so.
Thomas, 961 P.2d at 305.

¶31 Moreover, in the absence of focused assistance from the
Bresees, we are left to make our own assessment of the
proceedings below, and even a cursory review of the Bresees’
summary judgment opposition and Mr. Bresee’s affidavit
suggests that the relevant factual disputes failed to establish a
dispute of material fact, because the relevant evidence
supporting those disputes—Mr. Bresee’s averments—was
stricken as inadmissible. For example, as noted above, the
Bresees attempted to dispute the ownership of the well water by
alleging that the water the Bartons pumped from the well under
the exchange-of-use agreements was likely water shares owned
by the owners of the Bresee parcel. Had there been evidence to
support that allegation, it might have created a genuine dispute
of material fact. After all, if the well water was truly the Bresees’
reservoir water, then the fact that the Bartons had to pump from
the well might not support the allegations regarding insufficient
water resources and the Bartons’ need to switch to well water to
subsidize the reservoir shares. But the averments supporting
that dispute were stricken. And on appeal the Bresees do not
challenge the district court’s decision to strike the pertinent
portions of Mr. Bresee’s affidavit, nor do they identify other
relevant factual disputes that should have defeated summary
judgment on the interference issue.

¶32 As a consequence, we are not persuaded that there were
genuine disputes of material fact regarding the eminent domain
claim that should have precluded summary judgment.

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 Bresee v. Barton

2. Undisputed Facts

¶33 The Bresees also argue that the court failed to consider
certain undisputed facts that they claim should have precluded
summary judgment. For example, the Bresees point to the
undisputed ownership of their reservoir shares, which they
claim could be accessed “without interfering with [the] Bartons’
shares whatsoever,” and the implications of the exchange-of-use
agreements. They argue that “[t]he water cannot be sufficient for
purposes of making an agreement, but insufficient if access is
allowed by eminent domain or easement.” The Bresees contend
that reasonable inferences from these facts rebutted the Bartons’
claim of interference due to insufficient water resources.
However, as the district court concluded, the Bresees did not at
all address the considerable interference argument in their
summary judgment opposition or in the motion for a new trial,
and in particular, they did not argue to the district court that the
facts they now point to on appeal should have rebutted the
Bartons’ interference argument.

¶34 “As a general rule, claims not raised before the [district]
court may not be raised on appeal.” Oseguera v. State, 2014 UT
31, ¶ 10, 322 P.3d 963 (alteration in original) (citation and
internal quotation marks omitted). “An issue is preserved for
appeal when it has been presented to the district court in such a
way that the court has an opportunity to rule on [it].” Id.
(alteration in original) (citation and internal quotation marks
omitted). The preservation rule applies to “every claim,
including constitutional questions, unless a [litigant]
demonstrates that exceptional circumstances exist or plain error
occurred.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (internal
quotation marks omitted). The longstanding rule is that “[w]e
will not address the merits of an argument that has not been
preserved absent either plain error or exceptional
circumstances,” and we require the party “seek[ing] review of an
unpreserved [issue] . . . [to] articulate an appropriate justification
for appellate review.” Duke v. Graham, 2007 UT 31, ¶ 28, 158 P.3d

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 Bresee v. Barton

540 (third alteration in original) (citations and internal quotation
marks omitted) (declining to address an issue that had not been
preserved and for which the appellant had not provided
“justification for appellate review”). The Bresees have not done
so. They do not assert that either plain error or other exceptional
circumstances justify review of the merits of the arguments they
failed to preserve below; indeed, they do not acknowledge their
failure to preserve at all.

¶35 In any event, we are unpersuaded that the inferences the
Bresees attempt to derive from the undisputed facts in the
summary judgment record would have been obvious to the
district court. Cf. State v. Hare, 2015 UT App 179, ¶ 9, 355 P.3d
1071 (“To prevail on a claim of plain error, the appellant must
show obvious, prejudicial error.”). The Bresees argue, for
example, that the fact that they owned reservoir shares that
would “compensate for [the Bresees’] extra usage” of water in
irrigating their own land and the fact that the Bartons irrigated a
portion of the Bresees’ land under the historical exchange-of-use
agreements calls into question the Bartons’ arguments and
averments that the water resources were insufficient for both
properties. But without any input, written or oral, from the
Bresees, it demanded too much from the district court to expect
it to extract inferences to defeat the Bartons’ considerable
interference argument from the facts that the Bresees have
identified on appeal. This is especially so in light of evidence
that when the exchange-of-use agreements were in effect—
agreements that provided access to the water shares of the
previous owners of the Bresee parcel—the Bartons still had to
pump water from the irrigation well on their property to
subsidize the reservoir shares. In other words, it is not obvious
that the Bresees’ ownership of reservoir shares or the nature of
the exchange-of-use agreements created an obvious inference
that there was sufficient water for both properties or that an
irrigation easement in favor of the Bresees would not interfere
with the Bartons’ ability to deal with the periodic water
shortages on their farm.

20140565-CA 20 2016 UT App 220
 Bresee v. Barton

¶36 Accordingly, we see no reason to disturb the district
court’s summary judgment ruling.

II. The Motion to Amend

¶37 The Bresees next argue that the district court abused its
discretion by denying their motion for leave to amend their
complaint to add additional claims, including easement by
necessity, easement by implication, trespass, negligence, and
negligent and/or intentional infliction of emotional distress. The
Bresees claim that the sole basis for the court’s decision was that
they filed their motion beyond the twenty-day deadline the
court had set for filing amended pleadings and that the court
abused its discretion by failing to address each of the three
factors set out in Kelly v. Hard Money Funding, Inc.—timeliness,
justification, and prejudice—to justify the denial. 2004 UT App
44, ¶ 26, 87 P.3d 734.

¶38 Rule 15(a) of the Utah Rules of Civil Procedure provides
that once an answer has been filed, “a party may amend his
[complaint] only by leave of court or by written consent of the
adverse party; and leave shall be freely given when justice so
requires.” The Utah Supreme Court has stated, “[District] courts
should liberally allow amendments unless the amendments
include untimely, unjustified, and prejudicial factors.” Daniels v.
Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 58, 221 P.3d 256.
In Kelly, we noted that “Utah courts have focused on three
factors” when “analyzing the grant or denial of a motion to
amend”—“the timeliness of the motion; the justification given by
the movant for the delay; and the resulting prejudice to the
responding party.” 2004 UT App 44, ¶ 26. However, in Daniels,
the Utah Supreme Court held that “[t]rial courts are not required
to find all three [Kelly] factors to deny a motion to amend” and
noted that “many other factors, such as delay, bad faith, or
futility of the amendment, may weigh against the [district]
court’s allowing amendment.” Daniels, 2009 UT 66, ¶ 58
(citations and internal quotation marks omitted). In addition, we

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 Bresee v. Barton

have previously stated that a “district court retains the leeway to
evaluate the factual circumstances and legal developments
involved in each particular case, and a ruling on a motion to
amend may be predicated on only one or two of the particular
factors.” Anderson v. Larry H. Miller Commc’ns Corp., 2015 UT
App 134, ¶ 44, 351 P.3d 832 (citation and internal quotation
marks omitted). Moreover, “the dimensions of liberality [in
granting a motion to amend a complaint] are generally defined
by the trial judge, who is best positioned to evaluate the motion
to amend in the context of the scope and duration of the
lawsuit.” Berkshires, LLC v Sykes, 2005 UT App 536, ¶ 15, 127 P.3d
1243 (citation and internal quotation marks omitted).

¶39 Here, it is apparent that the district court thoroughly
“evaluate[d] the factual circumstances and legal developments
involved in [the] . . . case” before denying the motion to amend.
See Anderson, 2015 UT App 134, ¶ 44 (citation and internal
quotation marks omitted). In its analysis, the district court stated
that it denied the motion to amend because it was “due 20 days
after June 14, 2012” and the motion was “not filed until several
months later and only after the Defendants had filed [the MSJ].”
The court concluded that the motion to amend was therefore
untimely. The Bresees characterize this ruling as denying the
motion “solely because it was ‘due 20 days after June 14, 2012’
and [was] filed after that date.” However, in its written decision,
the district court extensively detailed the procedural history of
the case in relation to the motion to amend, and it is clear that
the decision to deny the motion was not as narrowly focused as
the Bresees claim.

¶40 Indeed, the court’s decision begins with its June 2012
order, which stated that “any amended pleadings or
amendments to pleadings must be filed within 20 days of June
14, 2012,” noting that “[n]either counsel voiced any objection” to
that order. But the court went on to “evaluate the motion to
amend in the context of the scope and duration of the lawsuit.”
Berkshire, 2005 UT App 536, ¶ 15 (citation and internal quotation

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 Bresee v. Barton

marks omitted). The court pointed out that the scheduling order
required fact discovery to be completed by November 16, 2012,
but that the Bresees had failed to even initiate discovery before
that date or generally move their case forward. 6 The court noted
that although the Bresees sent out written discovery requests to
the Bartons in December 2012, after the fact discovery deadline,
the court had granted the Bartons’ motion for a protective order
in January 2013, relieving them of any obligation to respond to
the Bresees’ late discovery requests.

¶41 The district court also focused on the timing of the
Bresees’ motion to amend their complaint. For example, it noted
that the Bresees had filed the motion on December 7, 2012—
almost three months after the Bartons’ MSJ and “after briefing on
the [MSJ] had been completed.” On that same day, the Bresees
also filed a motion to amend the scheduling order to extend the
discovery timeline, which the Bartons objected to on the basis of
the pending MSJ. The Bartons’ MSJ was granted at a hearing in
February 2013, and the written order was entered in May. In the
meantime, although the Bartons had not filed a response to the
Bresees’ motion to amend the complaint, the Bresees’ counsel
never filed a notice to submit the motion for decision and did not
bring it up again until a November 2013 hearing on the Bartons’
request for a jury trial on their counterclaims and on the issue of
entitlement to attorney fees.

¶42 Thus, the Bresees allowed both their motion to amend the
complaint and their motion to amend the scheduling order to
languish for nearly a year before they brought them to the
district court’s attention. And by that time, the court’s grant of
the Bartons’ MSJ was eleven months in the past and the trial on
the Bartons’ counterclaims was only one month away. Moreover,

6. For example, the Bresees admitted in their motion to amend
the scheduling order, discussed below, see infra ¶¶ 41–42, that as
of December 7, 2012, no discovery had been conducted.

20140565-CA 23 2016 UT App 220
 Bresee v. Barton

the Bresees provide no substantive justification for their delay in
prosecuting the motion to amend the complaint. They simply
assert that they had no dilatory motive, bad faith, or improper
purpose and that, instead, the delay was due to their “minimal
knowledge at the time the Complaint was filed.” But this
suggests that they had a strong incentive to act with more
diligence to gather needed information. The assertion thus
supports, rather than undermines, the district court’s decision to
deny the motion to amend. The Bresees also contend that the
Bartons caused the delay by objecting to the motion solely on the
basis of the pending MSJ and not following up with a formal
response until the district court instructed them to do so at the
November 2013 hearing. But the Bresees made no attempt to
submit the motion to amend to the district court for decision,
even though they could have done so as soon as the time for the
Bartons’ response had passed. See Utah R. Civ. P. 7(g) (“When
briefing is complete or the time for briefing has expired, either
party may file a ‘Request to Submit for Decision,’ but, if no party
files a request, the motion will not be submitted for decision.”);
cf. Brown v. Glover, 2000 UT 89, ¶¶ 29, 32, 37, 16 P.3d 540
(explaining that “the burden is on the discovering party to be
diligent in using the available procedures to obtain discovery”
and holding that it was not improper for the district court to
deny a Utah Rules of Civil Procedure 56(f) motion to extend
discovery where the appellant’s counsel acted without
“reasonable diligence” and the motion was therefore “dilatory
[and] lacking merit” (citation and internal quotation marks
omitted)).

¶43 Finally, implicit in the district court’s decision is the
notion that granting the motion to amend the complaint would
result in prejudice to the Bartons at a point in the case where the
discovery phase had long since been concluded, a dispositive
motion dismissing all the Bresees’ original claims had been
decided months before, and the Bartons’ counterclaim and
request for bad-faith attorney fees were on the eve of trial. The
Bresees’ assertion that had the motion been granted the Bartons

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 Bresee v. Barton

still would have had “several months to prepare for trial”
oversimplifies the circumstances on which the court based its
decision.

¶44 In sum, the district court’s decision to deny the motion to
amend was based on a thorough consideration of the procedural
history and status of the case and well within its discretion. See
Anderson v. Larry H. Miller Commc’ns Corp., 2015 UT App 134,
¶ 44, 351 P.3d 832 (noting that “[t]he district court has discretion
to grant or deny a motion to amend a complaint” and in
considering a motion to amend, “the district court retains the
leeway to evaluate the factual circumstances and legal
developments involved in each particular case.” (citation and
internal quotation marks omitted)). Accordingly, we affirm the
district court’s denial of the Bresees’ motion to amend their
complaint.

III. Bad-Faith Attorney Fees

¶45 Finally, the Bresees contend that the “[district] court erred
in finding bad faith in awarding attorney fees on the Bresees’
claims.” The Utah Code requires a district court to award
attorney fees in civil actions to the 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.” Utah Code
Ann. § 78B-5-825(1) (LexisNexis 2012); see also Still Standing
Stable, LLC v. Allen, 2005 UT 46, ¶ 7, 122 P.3d 556 (“In order to
award attorney fees under the [bad-faith statute], a [district]
court must determine both that the losing party’s action or
defense was without merit and that it was brought or asserted in
bad faith.” (internal quotation marks omitted)). “A claim is
without merit if it is frivolous, is of little weight or importance
having no basis in law or fact, or clearly [lacks a] legal basis for
recovery.” Utah Telecomms. Open Infrastructure Agency v. Hogan,
2013 UT App 8, ¶ 14, 294 P.3d 645 (alteration in original)
(citation and internal quotation marks omitted). But “the mere
fact that an action is meritless does not necessarily mean that the

20140565-CA 25 2016 UT App 220
 Bresee v. Barton

action is also brought in bad faith.” In re Sonnenreich, 2004 UT 3,
¶ 49, 86 P.3d 712. Rather, bad faith “turns on a factual
determination of a party’s subjective intent” and requires the
district court to find that “one or more of [the following] factors
is lacking”: “(1) [a]n 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.” Still Standing Stable, 2005 UT 46, ¶¶ 9, 12 (second
alteration in original) (citation and internal quotation marks
omitted).

¶46 Here, the district court conducted a bench trial in January
2014, well after the MSJ had been decided, to resolve the Bartons’
counterclaims as well as the Bartons’ request for attorney fees.
At the conclusion of the bench trial, the court determined that
the Bresees’ claims were “without merit” because they “clearly
[lacked a] legal basis for recovery.” (Quoting Utah Telecomms.,
2013 UT App 8, ¶ 14.) The court also found that the claims were
“asserted in bad faith.” In particular, the court found that the
Bresees “did not have ‘[a]n honest belief in the propriety of’
instituting this litigation against [the Bartons],” and accordingly
awarded the Bartons “reasonable attorney fees incurred to
defend against [the Bresees’] claims, incurred as of the date of
entry of the court’s ruling on [the MSJ].” (Quoting Still Standing
Stable, 2005 UT 46, ¶ 12.)

¶47 The Bresees contend that there was insufficient support
for the district court’s determination that the eminent domain
claim was without merit and that the suit was brought in bad
faith. 7 In particular, they contend that their statutory claim

7. The Bresees do not appear to challenge the district court’s
determination that the other claims in their complaint were
without merit, though they do contest the court’s finding that
they were brought in bad faith. Indeed, the entire analysis in
(continued…)

20140565-CA 26 2016 UT App 220
 Bresee v. Barton

seeking to condemn an irrigation easement, at least, was
meritorious even if not successful below. And with respect to
bad faith, they argue that the focus of an “honest belief” must be
whether there has been any “obvious untruthfulness
[demonstrated] by a party,” and contend that none of the court’s
findings supporting its bad-faith determination demonstrate that
they lacked an honest, subjective belief in instituting the
litigation against the Bartons. We address each contention below.

A. Without Merit

¶48 The Bresees assert that their complaint was not entirely
without merit because their eminent domain claim, at least, was
viable. As evidence, they direct us to their argument regarding
the impropriety of the district court’s summary judgment
decision on that claim, but they do not challenge any of the
findings of fact supporting the district court’s bad-faith attorney
fees conclusion. Whether a claim is meritorious is a question of
law that we review for correctness. Jeschke v. Willis, 811 P.2d 202,
203 (Utah Ct. App. 1991). However, we must accept the district
court’s underlying findings of fact as true and analyze the

(…continued)
their opening brief regarding merit appears to be focused on the
eminent domain claim, and there is no analysis regarding the
potential merit of the other claims in their complaint. An issue is
inadequately briefed if it “lacks sufficient development of the
argument and citation to legal authority” or if the argument is
“largely incoherent.” Golden Meadows Props., LC v. Strand, 2010
UT App 257, ¶ 32, 241 P.3d 375 (citation and internal quotation
marks omitted). Thus, to the extent that the Bresees may have
intended to challenge the court’s conclusion that their other
claims lacked merit, we cannot discern that argument. In that
event, the issue has been inadequately briefed, and we do not
address it further.

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 Bresee v. Barton

Bresees’ challenge accordingly. See Bel Courtyard Invs., Inc. v.
Wolfe, 2013 UT App 217, ¶ 23, 310 P.3d 747.

¶49 The Bresees are correct the Utah Code provides a legal
mechanism for a party to establish a right to condemn another’s
property in order to convey water for irrigation purposes. Utah
Code Ann. § 73-1-6 (LexisNexis 2012). However, the bare
existence of a basis in law for a potential claim is not sufficient to
make a claim meritorious. Rather, there must also be a factual
basis for a party’s claims apart from a statutory provision that
provides a theoretical “basis in law” for those claims. See Valcarce
v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998) (plurality opinion)
(concluding in the context of a claim for bad-faith attorney fees
that a party’s claims were meritless in circumstances where
“[a]lthough the [claimant’s] claims may have had some basis in
law and [the claimant] ostensibly provided evidence of their
factual claims, . . . the facts [were found] to be contrary to that
evidence”); see also Migliore v. Livingston Fin., LLC, 2015 UT 9,
¶ 31, 347 P.3d 394 (concluding that a party’s claim lacked merit
for purposes of the bad-faith attorney fees statute where “there
was no factual basis upon which” the claimant could support his
claim).

¶50 Here, the relevant statute expressly states that the use of
eminent domain to acquire an irrigation easement may not “be
exercised in a manner . . . to impair the practical use of any other
right of way . . . or to injure any public or private property.”
Utah Code Ann. § 73-1-6. Our supreme court has interpreted this
statute to require that a claimant may “acquire a right-of-way
across the defendant’s land in order to use his water” only “so
long as [the claimant] does not interfere with the rights and use
of the defendant’s water.” Dalton v. Wadley, 355 P.2d 69, 72 (Utah
1960). In other words, even cursory research into the
requirements of establishing an irrigation easement through
eminent domain would have informed the Bresees that the bare
existence of the right in law was not sufficient to establish their
own right to condemn an easement across the Bartons’ land.

20140565-CA 28 2016 UT App 220
 Bresee v. Barton

Rather, there is the additional element of interference that must
be acknowledged and dealt with before a claimant becomes
entitled to condemn.

¶51 And importantly, there is no indication that the Bresees
made any attempt to ascertain whether their condemnation of an
irrigation easement over the Bartons’ property would interfere
with the Bartons’ own water rights and use. Instead,
approximately three weeks before they filed their complaint, the
Bresees took it upon themselves to trench through the Bartons’
land and breach their mainline without the Bartons’ permission
or establishing that they had a right to do so. And as noted
above, at no time during the proceedings did the Bresees
conduct discovery to further develop the factual basis of their
claims. Indeed, they did not attempt to serve their initial
discovery requests until after the fact discovery deadline had
passed.

¶52 Further, as discussed above, the district court granted the
Bartons’ MSJ on the eminent domain claim due to the Bresees’
failure to address the issue of considerable interference, a
decision we have affirmed. Thus, because the Bresees were
required to demonstrate that their claimed entitlement to an
irrigation easement would not interfere with the Bartons’ water
use and did not even attempt to do so below, the Bresees failed
to provide the district court with the factual basis necessary to
support their claim to an irrigation easement over the Bartons’
property. Cf. Migliore, 2015 UT 9, ¶ 31; Valcarce, 961 P.2d at 305
(plurality).

¶53 This is not a case where the Bresees merely asserted an
“unenforceable” eminent domain claim, as they contend. Rather,
under the unique circumstances here, the record supports a
conclusion that the Bresees made no effort before or after
instigating litigation to ascertain or establish the factual basis for
asserting such a claim. Accordingly, because “there was no
factual basis” to support an important element of the Bresees’

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 Bresee v. Barton

statutory claim, we conclude that the district court did not err in
determining that the Bresees’ eminent domain claim lacked
merit for purposes of the bad-faith attorney fees statute. See Utah
Telecomms. Open Infrastructure Agency v. Hogan, 2013 UT App 8,
¶ 14, 294 P.3d 645 (explaining that a claim is without merit if it
“clearly [lacks a] legal basis for recovery” (alteration in original)
(citation and internal quotation marks omitted)).

B. Bad Faith

¶54 “A finding of bad faith is a question of fact and is
reviewed by this court under the ‘clearly erroneous’ standard.”
Jeschke v. Willis, 811 P.2d 202, 204 (Utah Ct. App. 1991). Here, the
district court found at the conclusion of the bench trial that the
Bresees “did not have ‘[a]n honest belief in the propriety’ of
instituting this litigation against [the Bartons].” (Quoting Still
Standing Stable, LLC v. Allen, 2005 UT 46, ¶ 12, 122 P.3d 556.)
Accordingly, it awarded the Bartons their “reasonable attorney
fees incurred to defend against [the Bresees’] claims, incurred as
of the date of entry of the court’s ruling on [the MSJ].”

¶55 The Bresees argue that “[t]here is no factual support” for
the district court’s bad-faith finding. In particular, they contend
that the district court’s factual findings do not support its bad-
faith determination where the district court’s order “only
indicates how [their] claims failed.” They also contend the
Bartons never presented evidence that the Bresees had been
“obviously untruthful” in regards to bringing their case. The
Bresees argue that they “reasonably” and “honestly believed the
allegations and causes of action”—specifically, the quiet title and
the eminent domain irrigation easement claims.

¶56 A trial court’s finding of bad faith may be upheld despite
a party’s claim that he or she held a subjectively reasonable or
honest belief in the propriety of the claims and defenses that the
party raised during the course of a case. See, e.g., Gallegos v.
Lloyd, 2008 UT App 40, ¶¶ 15–17, 178 P.3d 922 (affirming the
district court’s finding that the defendant “lacked an honest

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 Bresee v. Barton

belief in the propriety” of the litigation as “sufficient to support
[a bad-faith] finding” where the district court found that his
testimony was “totally without credibility”). For example, we
have affirmed a district court’s finding of bad faith despite the
fact the appellant claimed she “had a subjective belief in the
propriety of her claims,” where the district court determined the
appellant “could not have had an ‘honest belief in the propriety’
of her lawsuit,” given “the record evidence—including some of
[the appellant’s] own testimony” in the case. See Blum v. Dahl,
2012 UT App 198, ¶ 12, 283 P.3d 963 (citation omitted).

¶57 The Bresees fail to persuade us that the district court’s
bad-faith finding was clearly erroneous. First, although the
Bresees have argued that the district court’s findings of fact do
not support the its bad-faith determination, they fail to
challenge—or even acknowledge, for the most part—the many
factual findings the district court made that specifically implicate
the question of bad faith—in particular, the court’s findings
about what the Bresees knew, or should have known, prior to
instigating this lawsuit. Consequently, we accept the factual
findings in the counterclaim order as true. See Bel Courtyard Invs.,
Inc. v. Wolfe, 2013 UT App 217, ¶ 23, 310 P.3d 747.

¶58 Second, by neglecting the court’s findings, the Bresees
necessarily fail to adequately call into question the factual basis
for the district court’s ultimate bad-faith determination. Cf. State
v. Nielsen, 2014 UT 10, ¶ 40, 326 P.3d 645 (explaining that, with
regard to the marshaling requirement, “a party who fails to
identify and deal with supportive evidence will never persuade
an appellate court to reverse under the deferential standard of
review that applies to such issues”); Wayment v. Howard, 2006 UT
56, ¶ 17, 144 P.3d 1147 (presuming that the evidence presented
supported the district court’s factual findings where the
appellant “failed to marshal any of the supporting evidence”).
And the district court’s detailed factual findings amply support
its finding that the Bresees could not have had an honest belief in
the propriety of instituting this litigation.

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 Bresee v. Barton

¶59 With respect to their claim of an easement by eminent
domain, the Bresees alleged in their complaint that the Bartons
had prevented them from using their water shares “by asserting
that the [mainline] pipes belong to [the Bartons]” and had
threatened the Bresees if they “accesse[d] the easements on the
Barton Parcel for the purpose of using water.” The Bresees stated
that they “hereby assert their access to their irrigation water and
easements” and that they were seeking “damages for the
removal of their irrigation equipment” as well as an order from
the court to force the Bartons “to replace the ‘T’ joint” that the
Bartons had removed after the Bresees’ incursion. In other
words, the Bresees alleged from the beginning of this litigation
that they already owned the easement they sought to condemn
over the Bartons’ property and in their mainline and sought
damages for the Bartons’ response to the Bresees’ “self-help”
water diversion installation. But the district court concluded that
there was no reasonable basis in fact for such assertions. The
court found that the Bresees’ predecessors in interest did not
“receive any recorded easement or other written right to use
[the] Barton[s’] pipe for delivery of water” and that they “had no
rights to use of the water delivery system located on [the
Bartons’] property except as they might acquire through
agreement with [the Bartons].” The district court also found that
prior to the Bresees’ acquisition of their property, they visited
the property and were “informed by [the Bartons] that there
were no water rights associated with [the parcel].” It found that
although the Bresees acquired eleven shares in the Parowan
Reservoir Company in 2010, at that time they “did not acquire
any recorded easement or other written right to delivery of the
water . . . and specifically did not acquire or obtain any easement
or right to use [the Bartons’] water line,” and that “[a]side from
[the exchange-of-use agreement],” which was “rescinded by the
parties before the 2012 irrigation season,” “[the Bresees] had no
other right to delivery of any water through [the Bartons’]
irrigation mainline.” And notwithstanding the absence of any
factual or legal basis for doing so, the district court found that
Mr. Bresee entered the Bartons’ land in April 2012 “without any

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 Bresee v. Barton

prior permission,” dug a trench, and installed the T-connection
on the Bartons’ irrigation mainline, which the Bartons then
removed at their own expense.

¶60 Indeed, during the counterclaims trial, Mr. Bresee
testified that at the time he initiated the litigation, he had no
empirical evidence to support his own “common sense” belief
that he had rights to use the Bartons’ property for water
transport. He further testified that although he believed that he
had a right to “excavate[] [the Bartons’] mainline to tap into it,”
he also knew that neither his deed nor his title insurance
included language indicating that he had an interest in the
mainline. In fact, Mr. Bresee conceded that there were no “legal
documents” demonstrating that he held common ownership in
the water line with the Bartons. But nonetheless, he made no
effort to contact anyone to determine his legal rights related to
the water line prior to trenching the Bartons’ property and
hooking into their mainline, because he “didn’t think it was
necessary.” Mr. Bresee also testified that he was aware that the
only easement granted on his deed was for the fifty-foot
ingress/egress easement. And although he asserted his belief
“that [his] deed and the subsequent deeds in [his] chain of title
grant[ed] [him] an appurtenance and improvement” related to
the mainline, when pressed he acknowledged that the reason he
“thought he had a common ownership interest in the water line”
was “[b]ecause it only makes sense” according to his own
interpretation of how law generally works.

¶61 Thus, taken as a whole, the court’s factual findings
support a conclusion that when the Bresees instigated this
litigation, they had no supportable basis to assert that they held
a common ownership with the Bartons in the pipeline, that they
had an easement to use the Bartons’ pipeline, or that they were
entitled to access their water shares through the pipeline—all of
which were allegations they made to support their eminent
domain claim in their complaint and in their opposition to
summary judgment. In other words, the district court’s factual

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 Bresee v. Barton

findings support its determination that, under the circumstances
when they initiated the litigation, the Bresees “could not have
had an honest belief” that they had any legal entitlement to
ownership or use of the Bartons’ pipeline or for pursuing
litigation for the same. See Blum v. Dahl, 2012 UT App 198, ¶ 12,
283 P.3d 963 (citation and internal quotation marks omitted).

¶62 As to the quiet title claim, the Bresees asserted in their
complaint a right to possess an approximately nine-foot strip of
land along the western border of their property. They alleged
that although they initially thought the strip of land was theirs
when they purchased the property, they learned in 2010 that the
strip actually belonged to the Bartons. Nonetheless, the Bresees
claimed that they “desire[d] to possess the narrow strip . . . as a
wind break and shade,” and they asserted an entitlement to do
so under theories of adverse possession and boundary by
acquiescence. See Utah Code Ann. § 78B-2-214 (LexisNexis 2012)
(describing requirements for adverse possession, among which
is that the party desiring possession must have “paid all taxes
which have been levied and assessed upon the land according to
law”); Staker v. Ainsworth, 785 P.2d 417, 420 (Utah 1990)
(describing the elements of boundary by acquiescence, which,
among other things, requires the acquiesced-to boundary to
have been in place for “a long period of time,” which the
supreme court has interpreted as usually requiring no “less than
twenty years”). The Bresees specifically claimed that they had
“paid taxes on the said Quiet Title Property by virtue of the
county assessment” and asserted that the Bartons had “failed to
exercise [their] rights to secure said property.”

¶63 However, at the conclusion of the counterclaims trial, the
district court found that the Bresees had never paid any taxes on
the strip of land, despite their assertion that they had. In fact,
during the counterclaims trial, Mr. Bresee testified that although
he realized in 2010 that the boundary of his property did not
include the nine-foot strip of land, he nonetheless had
previously represented to the court through affidavit that he

20140565-CA 34 2016 UT App 220
 Bresee v. Barton

thought the land was his and had also stated that he had paid
taxes on that strip of land even though he later admitted that he
had not and had never contacted the county to verify the tax
status of the parcel he claimed. The court also found that “even a
cursory examination of the chain of title to that property would
have informed [the Bresees] that [their parcel of land] had been
severed from [the Bartons’] parcel in 2001,” which disqualified
them from a viable boundary-by-acquiescence claim because the
asserted boundary had to have been acknowledged for at least
twenty years. See Staker, 785 P.2d at 420. Thus, the court’s factual
findings support its conclusion that the Bresees could not have
had an honest belief in the validity of their quiet title claim.

¶64 In sum, the district court’s findings of fact support its
conclusion that the Bresees’ claims were without merit and
brought in bad faith. Accordingly, we will not disturb the district
court’s conclusion that the Bartons were entitled to an award of
attorney fees under Utah Code section 78B-5-825.

IV. Attorney Fees on Appeal

¶65 The Bartons request an award of attorney fees related to
this appeal pursuant to rule 33 of the Utah Rules of Appellate
Procedure. Rule 33(a) provides that “if the court determines that
a[n] . . . appeal taken under these rules is either frivolous or for
delay, it shall award just damages, which may include . . .
reasonable attorney fees, to the prevailing party.” The Bartons
also request attorney fees on the basis that they were the
prevailing party below and have prevailed on appeal. See
Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998) (plurality
opinion) (explaining that “when a party who received attorney
fees below prevails on appeal, the party is also entitled to fees
reasonably incurred on appeal”). The district court awarded the
Bartons attorney fees incurred “to defend against [the Bresees’]
claims, incurred as of the date of entry of the court’s ruling on
[the MSJ].” However, the district court also found that “the
parties each prevailed on issues raised in the [the Bartons’]

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 Bresee v. Barton

Counterclaim” and, accordingly, awarded “no attorney fees” for
work related to the counterclaim.

¶66 We award the Bartons their fees incurred for defending
the MSJ on appeal because they were awarded fees under the
bad-faith attorney fee statute on that issue below and have
prevailed on that issue on appeal. See id. We also award the
Bartons the attorney fees they incurred on appeal in successfully
defending their award of fees below. See Warner v. Warner, 2014
UT App 16, ¶¶ 62–63, 319 P.3d 711; see also Livingston Fin., LLC v.
Migliore, 2013 UT App 58, ¶ 11, 299 P.3d 620 (per curiam)
(awarding the prevailing party attorney fees incurred on appeal
in defending the district court’s award of bad-faith attorney
fees), aff’d, 2015 UT 9, 347 P.3d 394; Dantine v. Shores, 2011 UT
App 392, ¶¶ 6–7, 266 P.3d 188 (per curiam) (affirming the district
court’s award of bad-faith attorney fees below and awarding
attorney fees on that basis to the prevailing party on appeal).

¶67 The only remaining question is whether to award the
Bartons attorney fees under rule 33 on the issue of the district
court’s denial of the Bresees’ motion to amend. The district court
limited its bad-faith fee award to the fees the Bartons had
incurred as of the date of the MSJ ruling, which was entered in
May 2013. The motion to amend was not decided until January
2014 and had not been significantly prosecuted or defended
prior to November 2013, when the Bresees raised it again. Thus,
because the Bartons were not awarded attorney fees for this
issue below, there is no basis for an award of fees on appeal,
except under rule 33. Although the Bartons have prevailed, we
conclude that the Bresees’ appeal of the court’s denial of their
motion to amend was not frivolous. “[W]e have the authority to
award attorney fees and costs as a sanction for a frivolous
appeal[,] . . . [but] such a sanction is a serious matter and only to
be used in egregious cases . . . .” See Redd v. Hill, 2013 UT 35,
¶ 28, 304 P.3d 861. The Bresees’ arguments on appeal on this
issue have presented at least a plausible basis in fact and law. See
N.F. v. G.F., 2013 UT App 281, ¶ 18, 316 P.3d 944 (noting that a

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 Bresee v. Barton

case is not frivolous when “the [party] makes good-faith
arguments that are adequately supported by case law,” even if
“at times, [a party] arguably stretches certain facts to cast them
in a more favorable light” (alterations in original) (citations and
internal quotation marks omitted)). And although the Bartons
allege that the Bresees have employed dilatory and improper
tactics in pursuing this appeal, we decline to award fees on this
specific issue based upon general allegations of improper tactics.

¶68 Accordingly, we remand to the district court for the
narrow issue of determining the amount of fees that the Bartons
reasonably incurred in defending the MSJ and the bad-faith
attorney fees award in this appeal. Otherwise, the parties will
bear their own attorney fees incurred on appeal.

CONCLUSION

¶69 We affirm the district court’s decisions in all respects, and
remand the case for the sole purpose of determining the
reasonable fees incurred by the Bartons in defending the MSJ
and the bad-faith attorney fees award on appeal.

ORME, Judge (concurring in part and dissenting in part):

¶70 I concur in the court’s opinion—with one exception. In
paragraph 34 of the lead opinion, my colleagues ably explain
that appellants have not preserved for appellate review the
issues identified in paragraph 33. They point out that we will not
consider on appeal issues that have not been preserved, absent a
demonstration of plain error or other exceptional circumstances.
And they correctly conclude that the Bresees have not raised,
much less have they properly briefed, a claim that the issues
should nonetheless be considered under either doctrine. In my
view, our discussion of these issues should end there. Instead,
my colleagues go on to consider a plain error argument that the

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 Bresee v. Barton

Bresees did not make and conclude that there was no plain error.
That is, they conclude that even if there was error, it would not
have been obvious to the trial court.

¶71 It may seem that I am fussing about nothing terribly
important. It is, after all, only one paragraph out of sixty-nine,
and my disagreement does not affect the outcome.

¶72 My concern, however, is an important institutional one.
We undercut our longstanding insistence about the importance
of preserving issues for appeal, 8 and our resolve to resort to the
plain error doctrine only when it has been raised and briefed in
timely and adequate fashion, 9 if we will nonetheless go ahead

8. See, e.g., State v. Larrabee, 2013 UT 70, ¶ 15, 321 P.3d 1136
(discussing the importance of the preservation doctrine); State v.
Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (same); State v. Lorenzo,
2015 UT App 189, ¶ 11, 358 P.3d 330 (same).

9. See, e.g., Utah R. App. P. 24(a)(5)(A) (“The brief of the
appellant shall contain . . . citation to the record showing that the
issue was preserved in the trial court[.]”); State v. Blubaugh, 904
P.2d 688, 700–01 (Utah Ct. App. 1995) (declining to consider
exceptional circumstances and plain error when the appellant
has not raised them); State v. Stevenson, 884 P.2d 1287, 1292 n.8
(Utah Ct. App. 1994) (same); State v. Sepulveda, 842 P.2d 913,
917–18 (Utah Ct. App. 1992) (same). See also Utah R. App. P.
24(a)(9) (requiring appellant’s brief to “includ[e] the grounds for
reviewing any issue not preserved in the trial court”); State v.
Howell, 2016 UT App 90, ¶ 4, 374 P.3d 1032 (“[W]e have
consistently refused to consider arguments of plain error raised
for the first time in an appellant’s reply brief.”) (alteration in
original) (citation and internal quotation marks omitted); State v.
Robinson, 2014 UT App 114, ¶ 12, 327 P.3d 589 (“[A] plain error
argument presented for the first time in a reply brief is beyond
our reach.”).

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 Bresee v. Barton

and consider, on our own initiative, the possibility that plain
error might have occurred. 10 For that reason, I dissent from
paragraph 35.

10. I recognize that this is not the first time the court has given in
to the temptation to consider a plain error or exceptional
circumstances argument that should have been deemed
foreclosed. See, e.g., Berkshires, LLC v. Sykes, 2005 UT App 536,
¶ 21, 127 P.3d 1243; State v. Gooch, 2000 UT App 374U, paras. 4–5.
At least in Gooch, a twelve-paragraph memorandum decision not
designated for publication, there would have been nothing to
talk about had the court not dealt with the three arguments that
were waived. See 2000 UT App 374U, paras. 4, 7, 10. The same,
obviously, cannot be said here.

20140565-CA 39 2016 UT App 220