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