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 
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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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20160778-CA 3 2019 UT App 48

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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20160778-CA 4 2019 UT App 48

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 fiveday 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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20160778-CA 5 2019 UT App 48

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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20160778-CA 6 2019 UT App 48

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. § 78B2-305(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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20160778-CA 7 2019 UT App 48

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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20160778-CA 8 2019 UT App 48

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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20160778-CA 9 2019 UT App 48

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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20160778-CA 11 2019 UT App 48

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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20160778-CA 12 2019 UT App 48

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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20160778-CA 13 2019 UT App 48

¶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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20160778-CA 14 2019 UT App 48

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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20160778-CA 15 2019 UT App 48

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 jointdriveway 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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20160778-CA 17 2019 UT App 48

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.
Peterson v. Pierce

20160778-CA 18 2019 UT App 48

erred in describing only a ten-foot easement that burdens the

Pierce Parcel when both parties agreed there was also a sevenfoot 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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20160778-CA 19 2019 UT App 48

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. § 78B6-1304(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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20160778-CA 20 2019 UT App 48

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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20160778-CA 21 2019 UT App 48

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.
Peterson v. Pierce

20160778-CA 22 2019 UT App 48

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.
Peterson v. Pierce

20160778-CA 23 2019 UT App 48

APPENDIX

Note: This diagram is not drawn to scale and is provided only

for illustrative purposes.