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