2016 UT App 100

THE UTAH COURT OF APPEALS

REED BRASHER,

Appellant,

v.

VIKKI CHRISTENSEN,

Appellee.

Opinion

No. 20141183-CA

Filed May 12, 2016

Seventh District Court, Castle Dale Department

The Honorable George M. Harmond

No. 130700011

Justin D. Heideman and Justin R. Elswick, Attorneys

for Appellant

Don M. Torgerson and Mandie J. Torgerson, 

Attorneys for Appellee

SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in 

which JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY

concurred.

1

GREENWOOD, Senior Judge:

¶1 Reed Brasher appeals the order of the trial court 

dismissing his complaint against Vikki Christensen for breach of 

contract, breach of the covenant of good faith and fair dealing, 

promissory estoppel, and declaratory relief. We affirm.

 

1. Senior Judge Pamela T. Greenwood sat by special assignment 

as authorized by law. See generally Utah R. Jud. Admin. 11-

201(6).
Brasher v. Christensen

20141183-CA 2 2016 UT App 100

BACKGROUND2

¶2 Vikki Christensen owns a 260-acre farm in Emery County, 

Utah, and rights to use irrigation water on that farm. Those 

water rights are represented by 780 shares of stock in the 

Huntington-Cleveland Irrigation Company (HCIC). Reed 

Brasher owns or leases approximately 100 acres of land in Emery 

County, where he raises cattle and grows alfalfa to feed the 

cattle. During the summer and fall, Brasher allows his cattle to 

graze on sixty acres of irrigated pasture; in the winter and 

spring, he feeds them from alfalfa stores gleaned from his thirtyacre alfalfa farm. Brasher, too, owns water stock in HCIC, but his

shares are sufficient to irrigate only forty-five acres of his 100-

acre farm. Thus, he must lease enough water to irrigate the 

remaining land to feed his twenty cattle and their calves.

¶3 On April 1, 2012, Brasher leased 215 class A water shares 

from Christensen. At that time, Brasher asked Christensen to 

lease him the water “until further notice.” Christensen declined. 

Both parties signed a Water Use Authorization (WUA) form 

provided by HCIC and delivered it to HCIC, indicating the 2012 

commencement of Brasher’s water lease. Brasher checked the 

box next to “until further notice” on the 2012 WUA form. When 

HCIC contacted Christensen to verify that she wanted to lease 

Brasher her water “until further notice,” she instructed HCIC 

that the lease was only for the 2012 season. Brasher’s 2012 lease 

thus ended with the water year on October 31, 2012.

¶4 In February 2013, Brasher discovered that he could 

qualify for a subsidized federal program to install sprinkler 

irrigation on his farm through the National Resources 

 

2. “On appeal from a bench trial, we view the evidence in a light 

most favorable to the trial court’s findings, and therefore recite 

the facts consistent with that standard.” Kidd v. Kidd, 2014 UT 

App 26, ¶ 2 n.1, 321 P.3d 200 (citation and internal quotation 

marks omitted).
Brasher v. Christensen

20141183-CA 3 2016 UT App 100

Conservation Service (NRCS) if he could establish he had longterm access to sufficient water shares. Brasher contacted 

Christensen to see if she would lease him water during the 2013 

season. Christensen declined, stating that she was not sure the 

water would be available. Brasher called Christensen two more 

times, and Christensen declined both times. Then Brasher tried a 

fourth time, indicating an interest in purchasing Christensen’s

farm. He told her that he had $5,000 earnest money and 

persuaded Christensen to meet with him to discuss the details of 

his offer.

¶5 On March 13, 2013, Brasher, Christensen, and 

Christensen’s friend, Nedra Swasey, met at Christensen’s home. 

Prior to the meeting, Christensen told Swasey she would not 

lease the water shares to Brasher unless he purchased the farm. 

Brasher brought two forms with him: a blank WUA form and a 

blank Offer to Purchase Real Estate (Offer) form. Brasher and 

Christensen negotiated the terms of the Offer, Swasey filled in

the Offer accordingly, and both parties signed it. The Offer 

allowed Brasher to take possession of the farm on March 25, 

2013, but allowed Christensen to stay in the farmhouse through 

April 2, 2014. It also required Brasher to pay $5,000 earnest 

money, but Brasher did not pay the $5,000 at that time or at any 

subsequent time.

¶6 The parties also discussed the terms of the potential water 

shares lease. Brasher filled out the WUA, and both parties signed 

it. The pertinent language read, “In accordance with a lease 

and/or other agreement, I Vikki Christensen am authorizing 

Reed Brasher to call for: 215 shares of Class A Water from my 

[HCIC] water account starting at the beginning of 2013 irrigation

season.” Brasher left a $1,290 check for the water shares lease, 

which Christensen never cashed.

¶7 Christensen kept the Offer, and Brasher took the signed 

WUA with him to make copies for the parties, but he never 

returned a copy to Christensen. Instead, he delivered the WUA

to HCIC that day in anticipation of the 2013 water season
Brasher v. Christensen

20141183-CA 4 2016 UT App 100

beginning on April 1. When Brasher delivered the WUA to 

HCIC, the form stated that the water lease would continue until 

“the end of 2018 irrigation season” and that it was “payable 3/15 

each year.” At trial, Swasey testified, and the trial court found, 

that Brasher had added those terms after he left the meeting. The 

trial court also found that Christensen told Brasher that she 

needed to discuss the terms of both the Offer and the WUA with 

her family and attorney before proceeding further and that the

water shares lease was contingent upon Brasher’s purchase of 

the farm. Brasher countered that the water shares lease was 

independent from the farm purchase and that Christensen 

communicated that she needed to discuss only the Offer—not 

the WUA—with her attorney and family before accepting.

Christensen argued that she understood the Offer and the WUA 

to be contingent upon each other, and Brasher argued that he 

understood the WUA to be independent of the Offer.

¶8 Between March 13 and March 24, Brasher called 

Christensen a number of times to determine if she accepted his 

Offer. He never reached her, and she never returned his call.

Finally, the day before Brasher was supposed to take possession 

of the farm, Brasher and Christensen spoke. Brasher said at trial 

that he “believed at this time” that his Offer would not be 

accepted.

¶9 Believing that the water lease was independently 

executed, Brasher began drawing water in April. Subsequently, 

HCIC contacted Christensen to confirm that she wanted to lease 

Brasher the water through the 2018 water season. Christensen 

said she did not and instructed HCIC to stop providing water to 

Brasher. When Brasher found out his access to the water had 

been terminated, he allocated his own water shares to his alfalfa 

fields and sold all but four or five of his cows, because he could 

not water both the grazing pasture and the alfalfa field.

¶10 Brasher sought damages against Christensen for the loss 

of his alfalfa crop for the 2013 year and for losses related to his 

cattle operation extending over the purported life of the water 
Brasher v. Christensen

20141183-CA 5 2016 UT App 100

lease—five years—amounting to approximately $150,000 in 

damages. After a bench trial, the court dismissed Brasher’s

complaint against Christensen, determining that the WUA was 

not an enforceable contract but rather an instruction from one 

shareholder to HCIC to deliver water to another person, and that 

there was no meeting of the minds as to the terms of an oral 

contract between the parties to lease water.

¶11 Brasher appeals the decision of the trial court.

ISSUES AND STANDARDS OF REVIEW

¶12 Brasher first contends that the trial court erred when it 

determined that the 2013 WUA was not an enforceable contract.

“A trial court’s determination of the law is reviewed for 

correctness.” Terry v. Bacon, 2011 UT App 432, ¶ 12, 269 P.3d 188 

(citation and internal quotation marks omitted).

¶13 Brasher also contends that some of the trial court’s 

findings of fact are not supported by the evidence and that the 

trial court clearly erred in determining that the parties did not 

have a “meeting of the minds.”

3 These contentions present

questions of fact, which we review for clear error. Id.

(“*F+indings of fact are reviewed for clear error.”); LD III, LLC v. 

BBRD, LC, 2009 UT App 301, ¶ 13, 221 P.3d 867 (“Whether the 

parties had a meeting of the minds sufficient to create a binding 

contract is . . . an issue of fact, which [w]e review . . . for clear 

error, reversing only where the finding is against the clear 

weight of the evidence, or if we otherwise reach a firm 

conviction that a mistake has been made.” (alterations in 

original) (citations and internal quotation marks omitted)).

 

3. Brasher further claims the trial court erred by failing to apply 

the doctrine of promissory estoppel and the parol evidence rule. 

We do not reach those issues due to our decisions regarding the 

other issues presented.
Brasher v. Christensen

20141183-CA 6 2016 UT App 100

ANALYSIS

I. The Trial Court Correctly Concluded That the 2013 WUA Was 

Not an Enforceable Contract.

¶14 On appeal, Brasher contends that the trial court erred 

when it concluded that the 2013 WUA was not an enforceable 

contract. Christensen responds that the 2013 WUA is merely “a 

form between a water owner and [HCIC] directing the company 

to deliver water to a third-party lessee,” that it contains 

“virtually none of the required elements for contract formation,” 

and that it “references a separate agreement between the water 

owner and lessee that defines their relationship.”

¶15 The WUA’s title reads “Water Use Authorization.” It 

begins, “In accordance with a lease and/or other agreement, I 

______ am authorizing ______ to call for . . . .” It continues by 

describing the number and type of HCIC water shares to be 

leased, as well as the duration of the lease. The form omits any 

reference to price or other consideration to be provided.

¶16 The trial court concluded 

1. The WUA by itself does not establish an 

enforceable contract and it does not establish that 

[Christensen] accepted Brasher’s offer to leas[e] 

water to Brasher, as a matter of law.

2. The WUA, [was] by its very terms, conditioned 

“*i]n accordance with a lease and/or agreement.” 

3. The WUA contemplates the parties have reached 

a separate agreement as to the lease of shares of 

HCIC stock, and the WUA instructs HCIC to 

deliver water to one of the parties for a period of 

time.

(Fourth alteration in original.)
Brasher v. Christensen

20141183-CA 7 2016 UT App 100

¶17 The essential elements of an enforceable contract are

(1) offer and acceptance, (2) consideration, and (3) competent 

parties. Uhrhahn Constr. & Design, Inc. v. Hopkins, 2008 UT App 

41, ¶ 12, 179 P.3d 808 (citing Golden Key Realty, Inc. v. Mantas, 699 

P.2d 730, 732 (Utah 1985).

¶18 We conclude that the trial court correctly determined that 

the 2013 WUA was not an enforceable contract. In particular, it 

seems clear that the terms of the form did not require offer and 

acceptance or consideration. The “WUA instructs HCIC to 

deliver water to one of the parties for a period of time,” nothing 

more. And as the trial court held, the WUA “by its very terms” 

expressly conditions its enforceability upon “a lease and/or 

agreement,” contemplating that the parties have reached a 

separate agreement as to the lease of HCIC stock. The terms of 

the form detail no offer by one party, no acceptance by another, 

and no consideration. The form is devoid of language 

establishing a contractual relationship between Brasher and 

Christensen. Consequently, the trial court correctly concluded

that the 2013 WUA was not, by itself, an enforceable contract 

between Brasher and Christensen.

II. The Trial Court Did Not Clearly Err When It Determined That 

There Was No Meeting of the Minds to Establish an Oral 

Contract.

¶19 Brasher claims the trial court “erred by entirely misstating 

Christensen’s own testimony.” He also claims the trial court 

“ignored the clear weight of evidence and every factual indicia

proving that Christensen agreed to lease the water to Brasher 

under the terms of the 2013 WUA.” Christensen responds that

“it was apparent to the trial court that the 2013 WUA and the 

[Offer] were interrelated and dependent on each other as a 

package deal.”

¶20 Having concluded that the 2013 WUA did not establish an 

enforceable contract between Brasher and Christensen, the trial

court recognized that “*w+hether an oral contract was 
Brasher v. Christensen

20141183-CA 8 2016 UT App 100

established [between the parties] turns upon whether there was 

a meeting of the minds as to each element of the contract” and 

that Brasher had the “burden to prove the existence of an oral 

contract.” The trial court found, “based on the evidence 

presented at trial, that Christensen believed the water lease was 

part of the Farm sale and that there was no meeting of the minds 

between the parties.” Thus, it concluded that “Christensen did 

not intend to lease the water to Brasher unless he purchased the 

farm and there was no contract between the parties.”

¶21 “[A] binding contract exists where it can be shown that 

[the] parties had a meeting of the minds as to the integral 

features of the agreement and that the terms are sufficiently 

definite as to be capable of being enforced.” LD III, LLC v. BBRD, 

LC, 2009 UT App 301, ¶ 14, 221 P.3d 867 (second alteration in 

original) (citation and internal quotation marks omitted).

“Whether there is a meeting of the minds depends on whether 

the parties actually intended to contract, and the question of 

intent generally is one to be determined by the trier of fact.” 

Terry v. Bacon, 2011 UT App 432, ¶ 21, 269 P.3d 188 (citation and 

internal quotation marks omitted). We review this issue “for 

clear error, reversing only where the finding is against the clear 

weight of the evidence, or if we otherwise reach a firm 

conviction that a mistake has been made.” LD III, LLC, 2009 UT 

App 301, ¶ 13 (citation and internal quotation marks omitted).

¶22 Brasher testified that he believed he could draw water 

regardless of Christensen’s acceptance of his offer to purchase

the farm, whereas Christensen testified multiple times that she 

intended the water lease to be contingent upon the sale of the 

farm. For example, Christensen testified, “If . . . I sold [the farm]

to him, then I’d rent him that water for a few years.” She also 

testified that she authorized Brasher to use her water “only 

because he was going to buy the place.” And she also stated that

“he was only to use the water if he bought the farm.” Swasey 

bolstered that testimony, stating that Christensen told her that 

she would not lease Brasher the water unless he bought the 

farm.
Brasher v. Christensen

20141183-CA 9 2016 UT App 100

¶23 Brasher also contends that the trial court clearly erred 

when it found that Christensen told Brasher she needed to 

discuss the terms of the WUA with her family and attorney. He 

argues that “all testimony and evidence in the record 

demonstrates that Christensen only ever discussed taking the 

[Offer] to her attorney and family,” not the WUA. Christensen, 

however, cites a number of instances where her testimony at trial 

supports the trial court’s finding that she “informed Brasher that 

she needed to discuss both [the Offer and the WUA] with her 

family and with her attorney before anything was final.”

¶24 We review a trial court’s finding of fact for clear error.

Terry, 2011 UT App 432, ¶ 12. Furthermore, “a party challenging 

a factual finding . . . will almost certainly fail to carry its burden 

of persuasion on appeal if it fails to marshal” the evidence. State 

v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645. In marshaling the 

evidence, it is an appellant’s burden to “establish*+ a basis for 

overcoming the healthy dose of deference owed to factual 

findings.” Id. ¶ 41. A trial court assessing whether evidence 

establishes a meeting of the minds will inevitably find itself in 

the position of weighing witness credibility. And “*a+ssessing 

the credibility of a witness is within the trial court’s domain.” 

Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 16, 288 P.3d 1046.

¶25 Brasher’s opening brief fails to cite a single instance—of 

the many—where Christensen or Swasey testified in support of 

the trial court’s finding. Although, as conceded in Christensen’s 

brief, Christensen’s testimony may not have been “a model of 

clarity,” it was sufficient, with other evidence, to support the 

trial court’s findings. For example, Christensen testified that

[Brasher] wasn’t supposed to *call on the water+ 

until I got back with my attorney to see whether I

was going to sell it or not. If . . . I sold it to him, 

then I’d rent him that water for a few years. If my

attorney and my family didn’t think it was right, 

then I wouldn’t.
Brasher v. Christensen

20141183-CA 10 2016 UT App 100

Christensen also testified that Brasher “was only to use the water 

if he bought the farm.” She further testified, “he was supposed 

to just hang on until I got . . . everything done before I said yes, 

. . . [a]nd before I [did] that, he started using water.” And the 

following exchange between Christensen and her attorney at 

trial elicited further support:

A (Christensen): None of it was supposed to be 

legal.

Q (Her attorney): What do you mean by that? . . .

A: Yeah, that it was not—I was going to you and a 

few people to see if it was. And that’s what I told 

him. I won’t—none of this is good here today.

Q: Including [the 2013 WUA]? . . .

A: Yeah, . . . .

Q: Did you think you were leasing him any water 

by itself?

A: No.

And Swasey testified that the 2013 WUA and the Offer to 

Purchase “were separate agreements, but they were contingent 

on each other.”4

¶26 We therefore conclude that the trial court’s finding was 

supported by evidence and that the court did not clearly err 

when it found that Christensen told Brasher she needed to 

discuss the terms of the WUA and the Offer with her family and 

attorney “before anything was final.” We further conclude that 

because Brasher testified that he believed the two agreements 

 

4. Brasher also disputes the trial court’s finding that he filled in 

the blanks “2018” and “payable 3/15 each year” on the 2013 

WUA after meeting with Christensen and before delivering the 

WUA to HCIC. Our determination that there was no meeting of 

the minds sufficient to establish an oral contract renders indepth analysis of this question unnecessary.
Brasher v. Christensen

20141183-CA 11 2016 UT App 100

were independent of each other and Christensen testified to the 

contrary—that she intended them to be contingent upon each 

other—the trial court did not err when it concluded there was no 

meeting of the minds sufficient to create an oral contract.

CONCLUSION

¶27 The trial court correctly determined that the WUA was 

not an enforceable contract and that there was no meeting of the 

minds as to the 2013 WUA. Accordingly, we affirm.