CCW Ranch, LLC v. Nielsen

IN THE UTAH COURT OF APPEALS
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CCW Ranch, LLC, ) MEMORANDUM DECISION
)
Plaintiff and Appellant, ) Case No. 20090776‐CA
)
v. ) FILED
) (July 27, 2012)
Chris Nielsen and Sunny J. Nielsen, )
) 2012 UT App 205Defendants and Appellees. )
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Seventh District, Castle Dale Department, 060700003
The Honorable Douglas B. Thomas
Attorneys: Joane Pappas White, Price, for Appellant
Michael D. Olsen, Castle Dale, for Appellees
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Before Judges Orme, Roth, and Christiansen.
ORME, Judge:
¶1 This case arises as a result of a dispute regarding fencing along boundaries
shared by Plaintiff CCW Ranch and Defendants Chris and Sunny Nielsen. The parties
at various times have insisted or denied that they had an agreement that each would
take responsibility for rebuilding or repairing one of the sections of fence along their
two common borders. Plaintiff was once the main proponent of the idea that such an
agreement had been reached but now resists that proposition. Defendants were earlier
lukewarm on the notion that there was an agreement, but, at least given the totality of
the trial court’s disposition, now endorse the idea. Plaintiff is adamant that Defendants
breached any such agreement that there might have been, either by their significant
delay in beginning their part of the fence construction or by doing the work in an
incomplete or shoddy fashion. On alternative theories that there was no contract or, if
there was, it was breached, Plaintiff also sought to recover half the cost of construction
of proper fencing along its boundaries with Defendants, per Plaintiff’s interpretation of
Utah Code section 4‐26‐5.1. See Utah Code Ann. § 4‐26‐5.1(3) (2006).
¶2 Following a bench trial, during which the court heard conflicting evidence and
made its credibility assessments, the court entered detailed findings of fact. It
concluded that the parties had an agreement for refurbishing the fences in question and
that each party had fulfilled its obligations pursuant to the agreement. While the south
fence work did not satisfy government standards and both the north and south fences
had problems with moisture and “sway,” the fences were, according to the trial court,
on par with many others in the area and “appear[ed] to be doing the job [they were]
intended to do,” namely, keeping cattle where they belonged.
¶3 While Plaintiff has pointed to evidence in the record that could have supported
findings more favorable to Plaintiff, it has not demonstrated that the findings entered
by the trial court are clearly erroneous, i.e., that they lack adequate evidentiary support.
See Chen v. Stewart, 2004 UT 82, ¶ 19, 100 P.3d 1177 (“A trial court’s findings of fact will
not be set aside unless clearly erroneous. . . . [T]o establish that a particular finding of
fact is clearly erroneous, [a]n appellant must marshal the evidence in support of the
findings and then demonstrate that despite this evidence, the trial court’s findings are
so lacking in support as to be against the clear weight of the evidence.”) (second
alteration in original) (citation and internal quotation marks omitted). Accordingly, we
decline to disturb the findings made by the trial court and take them as our starting
point in considering Plaintiff’s legal arguments.1 See id. See also Kimball v. Kimball, 2009
1. We do not consider the affidavit submitted while the appeal was pending, as it was
not part of the record before the trial court, and our review is limited to the record as
developed in the trial court. See Osburn v. Bott, 2011 UT App 138, ¶ 5 n.2, 257 P.3d 1028.
And we express no opinion on the points made in section I of Plaintiff’s brief, which,
while interesting as a summary of legislation and policy concerning fencing, does not
articulate an appellate argument as such, but rather, in the words of the brief itself, sets
forth “historical background” within which “the case at bar arises.”
In addition, Plaintiff mentions the constitutionality of the applicable statute in the
(continued...)
20090776‐CA 2
UT App 233, ¶ 20 n.5, 217 P.3d 733 (“No matter what contrary facts might have been
found from all the evidence, our deference to the trial court’s pre‐eminent role as fact‐
finder requires us to take the findings of fact as our starting point, unless particular
findings have been shown, in the course of an appellant’s meeting the marshaling
requirement, to lack legally adequate evidentiary support.”).
¶4 Given those findings, we do not agree with Plaintiff’s primary argument that the
agreement was too vague or indefinite to be enforceable. The section of fence for which
each party was responsible was always clearly understood. And each party understood
that they would bear the costs attributable to the fence for which that party had
responsibility. The parties did not have an express understanding about the materials to
be used but each assumed, as evidenced by their subsequent course of conduct, that the
reconstructed fence would have to “hold up,” that it would be “a good fence . . .
common with the other fences found around the County,” and that the repaired or
rebuilt fence “would be adequate to keep the cattle enclosed in the respective owners’
property.”
1. (...continued)
sections of its brief titled “Issues Presented” and “Summary of the Argument” but,
except for those fleeting references, Plaintiff does not develop any constitutional
argument. Accordingly, we do not address the statute’s constitutionality. See Russell v.
Thomas, 2000 UT App 82, ¶ 9 n.9, 999 P.2d 1244.
Finally, regarding Defendants’ testimony that they no longer own any interest in the
property, Plaintiff raises contradictory arguments. On the one hand, Plaintiff suggests
that any effort on Defendants’ part to distance themselves from the trial court’s
judgment by reason of their sale of the property to family members should be
unavailing. We express no opinion on the effect of this intrafamily sale other than to
note that it appears Defendants have not actually sought the escape route Plaintiff seeks
to foreclose. On the other hand, Plaintiff contends that we should declare moot any
issue about “the future costs associated with the North boundary fence . . . because of a
change in the ownership of [Defendants’] parcel.” We note that rule 25(c) of the Utah
Rules of Civil Procedure provides that “[i]n case of any transfer of interest, the action
may be continued by or against the original party,” unless the parties satisfy certain
procedural requirements outlined in the rule. See Utah R. Civ. P. 25(c). Those
requirements have not been met.
20090776‐CA 3
¶5 Second, we cannot agree that Defendants’ delay in performing constituted a
breach as a matter of law. There was no explicit agreement about when each party had
to perform, so the law implies a reasonable time for performance. See Cooper v. Deseret
Fed. Sav. & Loan Assʹn, 757 P.2d 483, 485 (Utah Ct. App. 1988). That the time of
Defendants’ performance was not unreasonably late is implicit in the trial court’s
finding number ten2 and is buttressed by the fact, as acknowledged in the testimony of
Plaintiff’s principal, that although Plaintiff started its work long before Defendants,
Defendants finished their work first.
¶6 Third, Plaintiff’s argument that Defendant breached the covenant of good faith
and fair dealing, which is implied in all Utah contracts, see Eggett v. Wasatch Energy
Corp., 2004 UT 28, ¶ 14, 94 P.3d 193, has no basis in the facts as found by the trial court,
see generally Young Living Essential Oils, LC v. Marin, 2011 UT 64, ¶¶ 9–10, 266 P.3d 814(describing the limits of a covenant of good faith and fair dealing and the “high bar”
required to demonstrate the existence of such a covenant).
¶7 Plaintiff’s final argument is that the trial court’s allocation of responsibility for
future maintenance expenses is at odds with the governing statute. Both sides agree
that the cost of future maintenance of the fences is governed by section 4‐26‐5.1(4) of the
Utah Code, which provides that “[t]he cost of the maintenance of the fence shall also be
apportioned between each party based upon the amount of land enclosed.” Utah Code
Ann. § 4‐26‐5.1(4) (2006). However, Plaintiff contends that the trial court should
determine the “amount of land enclosed” by looking at the “lineal feet of boundary” of
each parcel. Defendants, on the other hand, agree with the trial court’s calculations,
which were based on the acreage of land enclosed by each landowner’s fencing of
which the boundary fences were a part.
¶8 “[A] trial court’s interpretation of a statute is a question of law that we review for
correctness.” Blackner v. Department of Transp., 2002 UT 44, ¶ 8, 48 P.3d 949. We
interpret statutes according to their plain meaning and “need not look beyond the plain
language unless we find some ambiguity.” State v. MacGuire, 2004 UT 4, ¶ 15, 84 P.3d
1171 (citation and internal quotation marks omitted).
2. Finding number ten provides: “Plaintiff began work on the South fence fairly soon
after the telephone conversation. Defendant did not commence serious work on his
fence for some time after the telephone conversation.”
20090776‐CA 4
¶9 The statute in issue is by no means a model of precise drafting. We note that it is
limited, as a practical matter, to rural areas. See Utah Code Ann. § 4‐26‐5.1(1)(b)
(defining a qualified landowner as a private landowner whose land is used for grazing
livestock and is land that qualifies as a “conservation easement” or is “in agricultural
use”). In that context, it appears to be designed to allocate the responsibility for repairs
based not on shared fence frontage, as may be the custom in urban neighborhoods, but
on the amount of land enclosed, i.e., the acreage belonging to each landowner that is
within the enclosure of which the boundary fence is a part.3 As the trial court noted,
this method assigns a larger share of maintenance costs to the landowner who benefits
most by the fence, as determined by comparing the relative size of the landowners’
respective enclosures, so this construction of the provision is not absurd or illogical. See
generally LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135 (explaining that Utah courts
construe statutes as written unless such an interpretation works an absurd result).
Plaintiff has not persuaded us that the Legislature had some other result in mind when
it used the phrase “amount of land enclosed.”4 Accordingly, we affirm the district
court’s methodology for allocating future maintenance costs.5
3. This interpretation accords with the common usage of the terms. “Enclose” is
defined as “to close in: surround[.]” Webster’s Third New International Dictionary 746
(1961). “Enclosed land” is “[l]and that is actually enclosed and surrounded by fences.”
Black’s Law Dictionary 881 (9th ed. 2009).
4. We note that this method of apportioning responsibility for future maintenance costs
is consistent with section 4‐26‐5 of the Utah Code, which deals with partition fences as
well as “fence enclosures.” See Utah Code Ann. § 4‐26‐5 (Supp. 2011). The rule of
thumb in that statute for allocating maintenance costs is also “based upon the amount
of land enclosed.” Id.
5. Plaintiff’s argument that the trial court used “an incorrect mathematical
determination” reiterates the argument that the court used the wrong methodology
when it considered acreage enclosed rather than “lineal feet of boundary of a parcel,”
an argument we have rejected. To the extent that the court may have made actual
mathematical errors when calculating each party’s share of costs, we are not persuaded
that the errors, if any, were significant. We note, for example, that the trial court’s
finding of fact number twenty‐seven refers to Defendants’ proportionate share as .385.
(continued...)
20090776‐CA 5
¶10 Affirmed.
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Gregory K. Orme, Judge
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¶11 WE CONCUR:
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Stephen L. Roth, Judge
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Michele M. Christiansen, Judge
5. (...continued)
However, the court correctly stated later in the same finding that Defendants’ share was
33.84%.
20090776‐CA 6