Martin v. Rasmussen, 20121058–CA.
| Decision Date | 21 August 2014 |
| Docket Number | No. 20121058–CA.,20121058–CA. |
| Citation | 334 P.3d 507,2014 UT App 200 |
| Court | Utah Court of Appeals |
| Parties | Gary MARTIN and Bethann Martin, Plaintiffs and Appellees, v. Shane RASMUSSEN and Terrilyn Rasmussen, Defendants and Appellants. |
Bruce M. Pritchett Jr., for Appellants.
Michael C. Van, Clay A. Alger, and Robert T. Spjute, for Appellees.
Opinion
¶ 1 Shane and Terrilyn Rasmussen appeal from the district court's order enforcing a settlement offer that they had made to Gary and Bethann Martin pursuant to rule 68 of the Utah Rules of Civil Procedure. The district court's order also awarded attorney fees to the Martins pursuant to Utah Code section 78B–5–825. We affirm the district court's enforcement of the settlement offer but reverse its attorney fee award.
¶ 2 The Rasmussens live next door to the Martins in Sandy, Utah. The Martins have owned their property since 2005. The Rasmussens purchased their property, which a developer had been using as a model home, in 2009. When the Rasmussens purchased the home, they were aware that the Martins believed that a fence the developer had erected between the two properties encroached upon the Martins' property line by five feet. Indeed, the Martins ensured that any potential buyer would be aware of their dispute with the developer by hanging a banner advertising their contention that the fence was misplaced. The developer assured the Rasmussens that the fence was properly located on the model home property. The developer also referred the Rasmussens to the plat map, which satisfied them that the fence was on their side of the boundary.
¶ 3 Thereafter, the Martins and the Rasmussens engaged in an increasingly rancorous disagreement about the fence and the property line. Their dispute resulted in litigation when the Martins sued the Rasmussens in 2010. The Martins' complaint asserted nine causes of action, including a quiet title claim regarding the disputed five-foot strip of land, as well as causes of action for assault, intentional infliction of emotional distress, and malicious prosecution. The Martins additionally sought punitive damages and attorney fees. The Rasmussens filed an answer, and later an amended answer, denying substantially all of the Martins' allegations and asserting twelve counterclaims, including defamation, intentional infliction of emotional distress, and abuse of process.
Notwithstanding the offer's express June 25 expiration date, the Rasmussens attempted to revoke the offer on June 22 and replace it with an offer that would convey only a two-foot strip of the disputed land to the Martins. However, on June 25, the Martins accepted the original four-foot offer. Shortly thereafter, they filed a motion entitled Plaintiffs' Motion to Enforce Offer of Judgment Pursuant to Rule 68. See Utah R. Civ. P. 68(c) ().
¶ 5 The Rasmussens opposed the motion to enforce, arguing that they had revoked their original offer before the Martins accepted it. The Rasmussens also argued that the four-foot offer was illegal because if they conveyed four feet of their property, they would violate a Sandy City zoning ordinance mandating a 20,000–square–foot minimum lot size. The district court ruled that the Rasmussens' original offer was irrevocable under rule 68 of the Utah Rules of Civil Procedure. The district court also rejected the Rasmussens' illegality argument, concluding that the Rasmussens should have considered the zoning requirements before making their offer and that “a variance can be sought from Sandy City in order to relieve [the Rasmussens] from the consequences of their offer.” Accordingly, the district court entered an order enforcing the Rasmussens' original offer and requiring the Rasmussens to convey four feet of the disputed strip of land to the Martins.
¶ 6 The district court also awarded the Martins the attorney fees they had incurred enforcing the offer. The district court justified its attorney fee award with a finding that “[the Rasmussens'] opposition to the motion [to enforce] is without merit and the rule 68 offer was made in bad faith.” The Martins' counsel filed an affidavit of attorney fees to support the claimed fees, but the document was not notarized. When this deficiency was brought to his attention, the Martins' counsel promptly filed a properly notarized affidavit. That same day, the district court awarded the Martins attorney fees in the amount of $24,416.44.
¶ 7 The Rasmussens now appeal from the district court's final order determining that the original rule 68 offer was enforceable, awarding attorney fees, and dismissing the case with prejudice.
¶ 8 The Rasmussens argue that the district court erred in ordering them to perform under their original rule 68 settlement offer because it compelled the Rasmussens to violate Sandy City zoning ordinances. They also argue that the district court's instruction that they could comply with the zoning ordinances by obtaining a variance contradicts the settlement offer's provision that “[n]either party will ... undertake to perform any other act for the other party.” These issues present questions of law, the district court's resolution of which we review for correctness. See LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 13, 221 P.3d 867 .
¶ 9 The Rasmussens also challenge the district court's award of attorney fees to the Martins, arguing that the Rasmussens' opposition to the motion to enforce did not lack merit and that the fee award was not supported by sufficient findings and a valid fee affidavit. “Whether attorney fees should be awarded in a particular case is a question of law, reviewed for correctness.” Purkey v. Roberts, 2012 UT App 241, ¶ 12, 285 P.3d 1242 (citation and internal quotation marks omitted); see also North Fork Special Serv. Dist. v. Bennion, 2013 UT App 1, ¶ 14, 297 P.3d 624 .
¶ 10 The Rasmussens first argue that the district court erred in ordering them to perform under their original rule 68 settlement offer because they believe they cannot do so without committing a criminal offense. If the Rasmussens transfer the four-foot strip of property, the size of their lot will fall to under 20,000 square feet. The Rasmussens argue that this would violate a Sandy City zoning ordinance mandating a minimum lot size. A violation of the zoning ordinances constitutes a Class C misdemeanor and, thus, a criminal offense. See Sandy City, Utah, Land Development Code § 15A–02–01(C) (2008).
¶ 11 “A court may not by its ruling entreat a party to take criminal action.” Peterson v. Sunrider Corp., 2002 UT 43, ¶ 40, 48 P.3d 918. The Utah Supreme Court has explained that, although a contract is not automatically unenforceable merely because it violates a statute or other law, “[it] must be held unenforceable if enforcement would compel the party seeking to avoid the contract to violate a penal statute.” Id. Relying on these statements, the Rasmussens argue that the settlement offer cannot be enforced because it requires them to run afoul of the Sandy City zoning ordinances and thereby commit a Class C misdemeanor. See id. ¶¶ 40–41 ().
¶ 12 The district court's ruling recognized, however, that the Rasmussens could seek a variance from the minimum lot size requirement. Sandy City provides a procedure for obtaining such a variance. See Sandy City, Utah, Land Development Code § 15A35–02 (2008). Further, the Martins presented affidavit evidence that during their previous negotiations with the developer, Sandy City had indicated that it “would grant a variance, unless [the Martins] did not agree to the variance.”1
¶ 13 Despite the potential availability of a variance—and Sandy City's apparent willingness to grant a variance—the Rasmussens insist that “it would be repugnant to the law to have the court itself order parties to commit criminal violations.” This assertion ignores the legal significance of a variance. Pursuant to the Sandy City Land Development Code, the variance procedure allows a landowner to seek “a waiver or modification of the requirements of the land use ordinance as applied to a parcel of property.” Sandy City, Utah, Land Development Code § 15A–35–02(A). Once such a “waiver or modification” is in place, the relevant zoning provision no longer applies to the affected parcel. Thus, if the Rasmussens can secure a variance to the minimum lot size requirement, their compliance with the settlement offer would not violate the Sandy City Land Development Code.
¶ 14 In...
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