334 P.3d 507
Utah Ct. App.2014Background
- neighbors dispute over fence encroachment five-foot strip; Martins sue for multiple claims; Rasmussens own adjacent property; 2012 rule 68 offer to transfer four feet; offer stipulated no other actions; Martins accepted June 25, 2012; district court enforced four-foot transfer and awarded attorney fees to Martins; Rasmussens argued offer illegal due to zoning and that variance could cure; court concluded variance available and enforced offer; fee award under 78B-5-825 reversed on appeal; no further appellate fee award on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability of rule 68 offer despite zoning legality | Rasmussens: enforcement would require illegal conveyance | Rasmussens: enforceability violates zoning; variance not possible | Enforceable if variance available to cure illegality |
| Attorney fees under 78B-5-825 | Martins: fees appropriate for lack of merit and bad faith | Rasmussens: opposition had merit; award improper | Attorney fee award reversed; opposition did not lack merit |
Key Cases Cited
- Peterson v. Sunrider Corp., 2002 UT 43 (Utah 2002) (contract not to compel criminal action; variance option relevant to enforceability)
- Young v. Texas Co., 331 P.2d 1099 (Utah 1958) (variance as safety valve to comply with law and contract terms)
- Sine v. Rudy, 493 P.2d 299 (Utah 1972) (distinguishes Young; absence of express variance term can be supplemented by variance process)