Bresee v. Barton, 20140565–CA

CourtCourt of Appeals of Utah
Citation2016 UT App 220,387 P.3d 536
Docket NumberNo. 20140565–CA,20140565–CA
Parties Randall D. Bresee and Derry Bresee, Appellants, v. Lyle C. Barton and Veronica L. Barton, Appellees.
Decision Date03 November 2016

387 P.3d 536
2016 UT App 220

Randall D. Bresee and Derry Bresee, Appellants,
Lyle C. Barton and Veronica L. Barton, Appellees.

No. 20140565–CA

Court of Appeals of Utah.

Filed November 3, 2016

Matthew D. Carling, Attorney for Appellants

Todd Macfarlane, Attorney for Appellees

Judge Stephen L. Roth authored this Opinion, in which Judge Kate A. Toomey concurred. Judge Gregory K. Orme concurred in part and dissented in part, with opinion.


ROTH, Judge:

¶1 Randall D. Bresee and Derry Bresee (collectively, the Bresees) appeal several rulings made by the district court in favor of Lyle C. Barton and Veronica D. Barton (collectively, the Bartons). We affirm but remand for the narrow purpose of determining the Bartons' attorney fees on appeal.


¶2 This case involves water and boundary disputes between the Bresees and the Bartons.

387 P.3d 540

The Bresees purchased a parcel of land in 2009. Their parcel is surrounded on three sides by the Bartons' land. When the Bresees purchased their parcel, the deed included a fifty-foot ingress, egress, and utilities easement over the Bartons' land that allowed the Bresees access to their property. The deed did not mention any other easement upon or interest in the Bartons' land.

¶3 The Bartons have two sources of irrigation water: water shares they own in the Parowan Reservoir Company and water they pump from an irrigation well located on their property. They convey the water from both sources to their cultivated land through a buried mainline running through their property. During times when the reservoir water is sparse, the Bartons use a valve to switch the mainline to deliver water from the private well.

¶4 The Bresees own eleven shares in the Parowan Reservoir Company. At the time of the dispute, the Bresees did not have any way to access their reservoir shares. Before the Bresees acquired their property, the Bartons had entered into a series of exchange-of-use agreements with the Bresees' predecessors in interest whereby, in exchange for permitting the Bartons to farm a portion of their property, the Bartons allowed the Bresees' predecessors to access the water shares owned by the predecessors through the Bartons' mainline. In 2009, shortly after the Bresees purchased the property, Mr. Barton approached Mr. Bresee about entering into a similar exchange-of-use agreement. The Bresees initially agreed to this arrangement. However, a dispute arose between the parties that led to the termination of the agreement before the 2012 growing season.

¶5 In April 2012, Mr. Bresee entered the Bartons' property without permission to divert water from the Bartons' mainline to his property. He turned off the water, dug a trench with a backhoe, and proceeded to install a T-connection into the mainline to connect a pipeline, which he ran back to his own property through the new trench. The Bartons soon discovered the entry onto their property, removed the T-connection, and restored the property to its prior condition.

¶6 Shortly thereafter, the Bresees filed a complaint alleging, among other things, that an easement existed for water transport to their property in and from the Bartons' existing irrigation mainline on various theories, including eminent domain. The Bresees also sought to quiet title in an approximately nine-foot strip of land along their western border. The Bresees claimed a right to the strip of land under theories of adverse possession and boundary by acquiescence.

¶7 In early June 2012, the district court notified the parties of the discovery completion deadlines. In particular, it noted that fact discovery was to be completed by November 16, 2012. However, on June 14, 2012, at a preliminary evidentiary hearing, the Bartons sought leave to file a counterclaim. The court ordered the parties to file any amended pleadings or counterclaims no later than twenty days from the date of that hearing. Although the Bresees' counsel suggested to the court that the discovery schedule should be extended accordingly, the court did not alter the November 16, 2012 discovery deadline. The Bartons filed their counterclaims before the twenty-day deadline requesting, inter alia, a declaratory judgment that the Bresees held no interest in either the Bartons' mainline or their irrigation well.

¶8 On September 9, 2012, the Bartons filed a motion for summary judgment (the MSJ) seeking dismissal of all of the Bresees' original claims. The Bresees later admitted that at the time the MSJ was filed, a little more than a month before the discovery deadline, they had not yet conducted any discovery. The court set a hearing on the MSJ for 9:00 a.m. on February 14, 2013, and notified the parties. The Bresees' counsel mistakenly calendared the hearing for 1:00 p.m. instead of 9:00 a.m. on the same day. As a result of counsel's calendaring error, neither he nor the Bresees appeared for the hearing. Neither the Bartons' counsel nor the court attempted to contact the Bresees' counsel to inquire as to his whereabouts. After confirming that notice of the hearing had been sent out, the court heard the Bartons' arguments despite the Bresees absence and orally ruled that the Bartons were entitled to summary judgment in their favor on all claims in the

387 P.3d 541

Bresees' complaint, reserving the Bartons' request for bad-faith attorney fees for later decision.

¶9 After the MSJ hearing, the Bresees moved for a new trial under rule 59 of the Utah Rules of Civil Procedure. They contended that relief was warranted because their counsel's "mistake of writing down the wrong time for the hearing" was an inadvertent "accident" under rule 59(a)(3) and that they "suffered prejudice in not being afforded an opportunity to be present at a meritorious stage of the action which they brought." The Bresees also argued that relief was warranted under rule 59(a)(1) due to an "irregularity in the proceedings" because neither the court nor opposing counsel extended the "professional courtesy" to contact the Bresees' counsel "when it was clear that he had not appeared ... for the hearing" and that, as a result, "the Bresees were deprived of the ability to present oral arguments regarding the issues contained in the [MSJ]" and were therefore "prevented from meaningfully being heard on the matter." Additionally, the Bresees contended that questions of material fact warranted reversal and a new summary judgment proceeding. The district court denied the Bresees' motion on the grounds that, even assuming rule 59 subsections (a)(1) and (a)(3) applied to the circumstances, the Bresees suffered no prejudice by their absence, because they had "ample opportunity to put their arguments before the court in written form, and have in fact taken full advantage of such opportunity." The court granted the MSJ in the same order, memorializing its earlier ruling from the bench.

¶10 On December 7, 2012, a couple of months prior to the MSJ hearing, but four months after the pleading amendment cut-off date, the Bresees filed a motion to amend their complaint to assert new causes of action, including easement by necessity, easement by implication, trespass, negligence, and negligent and intentional infliction of emotional distress. The Bartons objected. At the time of the MSJ hearing, the Bresees had not yet submitted the motion to amend for decision and the district court had not ruled on it. The Bresees did not request a ruling on their motion to amend until a hearing on November 4, 2013, nearly a year after it was filed and almost nine months after the summary judgment ruling. About a month later, the court heard arguments from both parties regarding the motion to amend and ultimately denied the motion.

¶11 The Bartons' counterclaims were resolved in a bench trial on January 9, 2014. The district court determined that the Bresees had no easement to access the Bartons' mainline and consequently found in the Bartons' favor on their claims for trespass and punitive damages, which both arose from the Bresees' incursion onto the Bartons' property to hook into the Bartons' mainline.1 The court also ruled that the Bartons owned the narrow nine-foot strip of land that the Bresees had claimed was theirs and that the Bresees had no basis for claiming an interest in it. Finally, the court ordered the Bresees to pay the Bartons' attorney fees under the bad-faith attorney fee statute, Utah Code section 78B–5–825, for fees incurred up to the date of the court's ruling on the MSJ. The district court determined that the Bresees' claims were without merit, because they "clearly [lacked a] legal basis for recovery." The court further found that the Bresees' claims were asserted in bad faith because the Bresees "did not have [an] honest belief in the propriety of instituting this litigation against [the Bartons]." (Citation and internal quotation marks omitted.) The court denied the Bartons' other counterclaims—private nuisance, destruction of property, intentional

387 P.3d 542

interference with economic relations, and negligence—and declined to award the Bartons further attorney fees for prosecuting their counterclaim.

¶12 The Bresees appeal the district court's grant of summary judgment, the denial of their motion to amend, and the award of...

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    ...we review whether it was raised in bad faith for clear error. Kirkham v. Widdison , 2019 UT App 97, ¶ 21, 447 P.3d 89 (citing Bresee v. Barton , 2016 UT App 220, ¶ 15, 387 P.3d 536 ). And as for 42 U.S.C. 1988, we review the denial of attorney fees for abuse of discretion. Harris v. Marhoef......
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