Lucky Seven Rodeo Corp. v. Clark

• Decision Date: 09 June 1988
• Docket Number: No. 880079-CA,880079-CA
• Citation: 755 P.2d 750
• Parties: LUCKY SEVEN RODEO CORPORATION, a Utah corporation, Plaintiff and Appellant, v. Pat CLARK, Defendant and Respondent.
• Court: Utah Court of Appeals

Page 750

755 P.2d 750

LUCKY SEVEN RODEO CORPORATION, a Utah corporation, Plaintiff and Appellant, v. Pat CLARK, Defendant and Respondent.

No. 880079-CA.

Court of Appeals of Utah.

June 9, 1988.

Timothy B. Anderson (argued), Dale R. Chamberlain, Jones, Waldo, Holbrook & McDonough, St. George, for plaintiff and appellant.

Phillip L. Foremaster, St. George, for defendant and respondent.

Before BENCH, JACKSON and BILLINGS, JJ.

OPINION

BILLINGS, Judge:

Appellant Lucky Seven Rodeo Corporation ("Lucky") appeals from a summary judgment which terminated Lucky's easement in property owned by respondent Pat Clark. Lucky contends that the trial court erred in granting summary judgment, arguing that the court misconstrued the unambiguous order establishing the easement or that the order granting the easement was ambiguous, and, thus, summary judgment was inappropriate. We reverse and remand.

In March of 1981, Lucky filed suit against Pat Clark to quiet title to a parcel of land, hereinafter referred to as the reservoir and dike area, bordering their respective properties. On the third day of trial, the parties negotiated a settlement. The stipulation was reduced to writing and signed by the parties and their counsel. An order and judgment incorporating the stipulation was signed by the judge on February 13, 1984.

The stipulation and order granted title to the reservoir and dike area to Pat Clark and Tex Gates, and granted an easement to Lucky. The easement relevant to this action is contained in the following paragraphs, with our emphasis added:

3. Plaintiff Lucky Seven Rodeo Corporation and its successors and assigns (hereinafter "Plaintiff") shall have an exclusive and perpetual easement to use, maintain and operate the reservoir and dyke are[a] which are described in paragraph 2 above for irrigation, stock watering, corralling of animals and agricultural purposes, together with the obligation that plaintiff shall maintain the fences enclosing the area hereinabove described.

* * *

6. In the event the reservoir and Dyke [sic] area described in paragraph 2 above were to fall into non-use for a period of Ten (10) consecutive years, the easement granted in paragraph 3 above would expire automatically without notice.

In 1985, Lucky removed from the easement a portion of a dike located on the property, and began to level the ground in preparation for planting. Pat Clark, the fee owner, filed this action to terminate Lucky's easement in the property, alleging Lucky's removal of the reservoir and dike destroyed the need for the easement, and indicated Lucky's intent to abandon it. Clark further alleged that Lucky had failed to maintain the fences on the property and had in fact destroyed the fences, contrary to the agreement of the parties, and the consequent court order.

It is undisputed that Lucky removed the dike, but there is disagreement as to whether Lucky removed fences that were part of the easement agreement, or other fences with no relevance to the easement. Lucky filed an affidavit of its president, Russel Walter, stating that he understood the easement agreement to grant alternative uses of the property and that Lucky had elected to use the property for agricultural purposes as provided for in the agreement. Lucky denied any intent to abandon the easement, and believed that its removal of the dike and reservoir was consistent with the language of the easement and the intent of the parties in allowing use of the property for agricultural purposes.

The court granted Clark's motion for summary judgment and terminated Lucky's easement. The court indicated that there was ambiguity in the agreement, but stated that it had "a clear memory in this case" and, in making its decision, had relied upon its recollection of the previous trial. In making his ruling, the judge stated It is my direct impression that the purpose of the lawsuit with respect to the area was for a reservoir and dike. That's my view. I believe that the purpose of the settlement, the purpose of the order and judgment of the Court, the purpose of resolving all of the law suit, was to maintain a reservoir and dike use. That's not done. Motion granted.

Lucky appeals the court's entry of summary judgment, claiming that the court erroneously relied on its own pre-stipulation recollection of the facts and claims the stipulation and court order clearly grant an easement for the use of the property for agricultural purposes. Lucky further claims that, if the language is ambiguous, the court erred in granting Clark's motion for summary judgment because there was a clear factual dispute as to the intent of the parties and Lucky's intent to abandon the easement.

STANDARD OF REVIEW

In reviewing a summary judgment, we apply the analytical standard required of the trial court. Oberhansly v. Sprouse, 751 P.2d 1155, 1156 (Utah Cr.App.1988). We liberally construe the facts and view the evidence in a light most favorable to the party opposing the motion. Id. Moreover, because a summary judgment is granted as a matter of law rather than fact, we are free to reappraise the trial court's legal conclusion. Atlas Corp. v. Clovis Nat'l Bank, 737 P.2d 225, 229 (Utah 1987); Oberhansly, 751 P.2d at 1156; K.O. v. Denison, 748 P.2d 588, 590 (Utah Ct.App.1988). After reviewing the facts in the light most favorable to appellant, if we conclude there is a dispute as to a material issue of fact, we must reverse the trial court's determination and remand for trial on that issue. Atlas, 737 P.2d at 229; Denison, 748 P.2d at 590. It is inappropriate for courts to weigh disputed material facts in ruling on a summary judgment. Spor v. Crested Butte Silver Mining, Inc., 740 P.2d 1304, 1308 (Utah 1987); W.M. Barnes Co. v. Sohio Natural Resources Co., 627 P.2d 56, 59 (Utah 1981); Oberhansly, 751 P.2d at 1156. It matters not that the evidence on one side may appear to be strong or even compelling. Spor, 740 P.2d at 1308; Oberhansly, 751 P.2d at 1156. One sworn statement under oath is all that is needed to dispute the averments on the other side of the controversy and create an issue of fact, precluding the entry of summary judgment. W.M. Barnes, 627 P.2d at 59; Holbrook Co. v. Adams, 542 P.2d 191, 193 (Utah 1975).

ORDER GRANTING EASEMENT

After an independent review, in a light most favorable to Lucky, we cannot conclude, as a matter of law, that the language of the stipulated court order granting the easement clearly and unambiguously requires that the dike and reservoir be preserved and the area used for irrigation purposes. The determinative paragraphs of the stipulation and order are paragraphs 3 and 6 which provide with our emphasis:

3. Plaintiff Lucky Seven Rodeo Corporation and its successors and assigns (hereinafter "Plaintiff") shall have an exclusive and perpetual easement to use, maintain and operate the reservoir and dyke are[a] which are described in paragraph 2 above for irrigation, stock watering, corralling of animals and agricultural purposes, together with the obligation that plaintiff shall maintain the fences enclosing the area hereinabove...