440 North SF v. Vista Heights Investments

2024 UT App 73

THE UTAH COURT OF APPEALS

440 NORTH SF, LLC,
Appellant,
v.
VISTA HEIGHTS INVESTMENTS, LLC AND SII MEGADIAMOND, INC.,
Appellees.

Opinion
No. 20220785-CA
Filed May 16, 2024

Fourth District Court, Provo Department
The Honorable Robert A. Lund
No. 210400480

Spencer Macdonald, Attorney for Appellant
James K. Tracy, Joshua L. Lee, and Steve L.
Lundwall, Attorneys for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 Appellant 440 North SF, LLC (440 North) purchased a
residentially zoned lot (Residential Parcel) in Provo, Utah. A road
runs between that lot and the neighboring property—a
commercially zoned lot (Commercial Parcel) owned by Appellee
Vista Heights Investments, LLC (Vista Heights) and upon which
Appellee SII MegaDiamond, Inc. (MegaDiamond) runs a
diamond manufacturing business. 440 North later realized that
the road the diamond business uses to access part of the
manufacturing facility lies on the Residential Parcel and sued for
trespass and to quiet title, in addition to other claims. Appellees
counterclaimed for a declaratory judgment establishing an
easement. On a motion for summary judgment, the district court
440 North SF v. Vista Heights Investments

ruled that the undisputed facts entitled Appellees to judgment as
a matter of law and certified its judgment as final. 440 North raises
two grounds for reversal. We reject them each and affirm.

BACKGROUND 1

¶2 This dispute involves two parcels of adjacent real property
in Provo, Utah—the Residential Parcel to the east and the
Commercial Parcel to the west. Ownership of the properties has
changed hands several times over the last decade—including two
intervals where they were owned by the same entity. From 2012
to 2015, Novatek, Inc. (Novatek), a company owned by David
Hall, owned both the Commercial Parcel and the Residential
Parcel. In 2015, Novatek conveyed both properties to another
company owned by Hall, New Vistas Property Holdings, LLC
(New Vistas). In 2018, New Vistas conveyed the Commercial
Parcel to Vista Heights and the Residential Parcel to DRH
Holdings, LLC (DRH), which was also owned by Hall. Then, in
2020, 440 North purchased the Residential Parcel from DRH.

¶3 This lawsuit centers around an asphalt road (Road) that
follows the east side of the Commercial Parcel and sits mostly on
the western edge of the Residential Parcel. The Road is

1. We both recite the facts and draw all reasonable inferences in a
light most favorable to 440 North as the nonmoving party on
summary judgment. See USA Power, LLC v. PacifiCorp, 2010 UT 31,
¶ 33, 235 P.3d 749. “Of course, to be reasonable, [an] inference
must present something more than pure speculation,” meaning
there must be “underlying evidence to support the conclusion.”
Medina v. Jeff Dumas Concrete Constr. LLC, 2020 UT App 166, ¶ 21,
479 P.3d 1116 (cleaned up). Therefore, in our recitation of the facts
and analysis, we draw only reasonable inferences in 440 North’s
favor and accept as true any of the district court’s conclusions that
440 North left unchallenged.

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“approximately 38 feet wide and 210 feet long.” The location of
the Road corresponds with the approximate location of an
easement (RR Easement) that Union Pacific Railroad recorded as
early as 1978. Union Pacific laid railroad tracks across the entirety
of the RR Easement, and those tracks are now covered by the
Road. In 2012, Novatek, the owner of both properties at the time,
renovated a large building (Building) on the Commercial Parcel
in order to run its diamond manufacturing business. In 2015,
MegaDiamond purchased the diamond business from Novatek,
and it has since leased the Commercial Parcel from Novatek and
later New Vistas, followed by Vista Heights. MegaDiamond
continues to run the business out of the Building in the same
manner that Novatek did.

¶4 The back of the Building is “only a few feet” from the Road
and the property line of the Residential Parcel. The back of the
Building includes a research and development space (R&D Space)
with “large overhead doors.” MegaDiamond uses heavy
equipment on the Road (as did Novatek previously) “including
semi-trucks and industrial capacity fork lifts to move multi-ton
granite boulders” through the doors of the R&D Space. Access to
the R&D Space, aside from foot traffic, is possible only through
the overhead doors that face the Residential Parcel.

¶5 In 2021, 440 North filed the present lawsuit against
Appellees seeking (1) declaratory judgment regarding each
party’s rights to the Road, (2) to quiet title, and (3) damages for
trespass. Appellees brought a counterclaim for declaratory
judgment to establish an easement by implication for the Road on
the Residential Parcel to benefit the Commercial Parcel. Later,
Appellees filed a motion for summary judgment on both the
complaint and the counterclaim. The district court granted the

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motion, holding that Appellees “established by undisputed facts
all of the elements of an implied easement.” 2

¶6 440 North then filed a rule 60(b) motion to set aside the
judgment, see Utah R. Civ. P. 60(b), raising for the first time the
argument that any commercial use of the Road was unlawful
because the Residential Parcel was zoned for only residential use.
The district court denied the motion, concluding that the zoning
information was public record and therefore available before the
lawsuit commenced. 440 North appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 440 North raises two issues on appeal. First, 440 North
argues that the district court erred in granting Appellees’
summary judgment motion. 3 “We review the district court’s
ultimate grant or denial of summary judgment for correctness,”
giving no deference to the district court’s legal conclusions. Far
West Bank v. Robertson, 2017 UT App 213, ¶ 15, 406 P.3d 1134
(cleaned up).

¶8 Second, 440 North argues that the district court erred by
denying its rule 60(b) motion. “A district court has broad
discretion to rule on a motion to set aside a judgment under rule
60(b).” Weber v. Mikarose, LLC, 2015 UT App 130, ¶ 11, 351 P.3d

2. The district court amended the initial ruling to correct a “one-
word typographical error.”

3. While 440 North has articulated this as seven separate issues, it
actually consists of a single challenge to the court’s grant of
summary judgment in favor of Appellees. We address 440 North’s
various concerns in our analysis.

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121 (cleaned up). Therefore, we review a district court’s denial of
such a motion under an abuse of discretion standard. See id.

ANALYSIS

I. Summary Judgment Motion

¶9 We turn first to 440 North’s contention that summary
judgment was inappropriate. In challenging the court’s summary
judgment order, 440 North raises three subsidiary arguments.
First, it claims that genuine issues of material fact precluded
summary judgment. Second, it asserts that the district court
applied the wrong standard of proof. And finally, it asserts that
the elements of an implied easement are not present here, at least
not as a matter of law. We address these arguments in turn.

A. Genuine Issues of Material Fact

¶10 440 North argues that the district court erred in granting
Appellees’ summary judgment motion because ten genuine issues
of material fact precluded entry of summary judgment. Summary
judgment is appropriate when “the moving party shows that
there is no genuine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law.” Utah R. Civ. P.
56(a). In the summary judgment context, “the word ‘genuine’
indicates that a district court is not required to draw every
possible inference of fact, no matter how remote or improbable, in
favor of the nonmoving party. Instead, it is required to draw all
reasonable inferences in favor of the nonmoving party.” IHC Health
Servs., Inc. v. D&K Mgmt., Inc., 2008 UT 73, ¶ 19, 196 P.3d 588. “An
inference is unreasonable if there is no underlying evidence to
support the conclusion.” Medina v. Jeff Dumas Concrete Constr. LLC,
2020 UT App 166, ¶ 21, 479 P.3d 1116 (cleaned up). “When the
facts are so tenuous, vague, or insufficiently established that
determining an issue of fact becomes completely speculative, the

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claim fails as a matter of law, and summary judgment is
appropriate.” Hardy v. Sagacious Grace LC, 2021 UT App 23, ¶ 21,
483 P.3d 1275 (cleaned up).

¶11 440 North’s argument on appeal primarily consists of only
a bulleted list delineating each fact it considers in dispute. 440
North gives us no analysis as to why these facts are in dispute or
why the district court erred by relying on them. The brief simply
states that “an affidavit, as well as other evidence, was presented
in the summary judgment proceedings disputing the foregoing
matters.” 440 North does not explain the content of the affidavit
or what this “other evidence” entails, again providing this court
with no analysis as to why it should accept its argument. 440
North concludes this two-page argument with the contention that
“even a single dispute of material fact is sufficient to overcome
summary judgment.” While that general proposition is correct,
440 North does not explain how even a single material fact is in
genuine dispute here. Just as importantly, 440 North makes no
attempt to show how any alleged disputes of fact are material to
any of the legal conclusions the district court reached. Such an
important connection is not self-evident, at least not to us. 4

¶12 In Warner v. Warner, 2014 UT App 16, 319 P.3d 711, our
court faced a similar briefing concern where trust beneficiaries
appealed the district court’s grant of summary judgment against
their breach of fiduciary duty claims. Id. ¶ 49. The beneficiaries
similarly devoted just two pages to their argument, and, rather
than identifying the elements of their breach of fiduciary duty
claims, they “simply list[ed] a series of breaches alleged to have
been committed by the [t]rustees without any analysis of the
pertinence of those breaches or any discussion of how they

4. “In both district and appellate courts, the development of an
argument is a party’s responsibility, not a judicial duty.”
Amundsen v. University of Utah, 2019 UT 49, ¶ 47, 448 P.3d 1224
(cleaned up).

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create[d] a factual dispute of legal significance when compared
with the facts and arguments made by the [t]rustees.” Id. ¶ 51. Our
court affirmed the summary judgment decision, explaining that
the beneficiaries failed to meet their burden on appeal because the
“cursory and incomplete description of the procedural, factual,
and legal circumstances of the summary judgment proceeding . . .
fail[ed] to provide context sufficient . . . to permit meaningful
appellate review.” Id. We similarly have not been provided with
sufficient context or analysis to allow us to conclude that genuine
issues of material fact precluded summary judgment in this case;
therefore, 440 North has failed to meet its burden of persuasion
on appeal, and we will not reverse the district court’s grant of
summary judgment on the basis that genuine issues of material
fact remained in dispute.

B. Standard of Proof

¶13 In a single paragraph, 440 North argues that the district
court applied the wrong standard of proof when granting
summary judgment, asserting that the claim required a showing
of “clear and convincing” evidence. The applicable standard of
proof for implied easements appears to be undecided under Utah
law. See Bridge BLOQ NAC LLC v. Sorf, 2019 UT App 132, ¶ 13 n.5,
447 P.3d 1278 (“The trial court ruled as a matter of first impression
that because implied easements deprive an individual of an
interest in real property, they must be established by clear and
convincing evidence. The parties appear to accept the clear and
convincing evidence standard. We therefore assume without
deciding that that standard applies.” (cleaned up)). It is
unnecessary for us to resolve this question to reach a decision in
this case. Even assuming without deciding that clear and
convincing evidence is the appropriate standard for the sake of
440 North’s argument, the claim of error falls short because 440
North fails to show that the district court did not apply that
standard or that, if it did, summary judgment was improperly
granted.

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¶14 A “reviewing court will not presume from a silent record
that the court applied an incorrect legal standard but must
presume the regularity and validity of the district court’s
proceedings, and that it applied the correct legal standard, in the
absence of evidence to the contrary.” In re P.J.R., 2023 UT App 27,
¶ 31, 527 P.3d 1114 (cleaned up), cert. denied, 534 P.3d 750 (Utah
2023). When “nothing in the record suggests that the court applied
something less than the clear and convincing standard, the
appellant cannot establish error.” Id. (cleaned up). Here, 440
North does not point us to any evidence in the record showing
that the district court applied a standard other than clear and
convincing evidence. It is true that the district court did not
specify which standard it applied, but the court also gives no
explicit indication that it applied a standard other than clear and
convincing evidence. With the silent record before us, if clear and
convincing is the standard, as 440 North argues it is, we must
presume that the district court applied that standard. Thus, this
claim fails as 440 North cannot establish that the district court
erred.

¶15 We note that because this is a review of a grant of summary
judgment, we are determining whether Appellees were entitled
to judgment as a matter of law. See Utah R. Civ. P. 56(a). Implicit
in that analysis is our consideration of whether the undisputed
facts meet the correct standard of proof. Accordingly, while not
establishing that a clear and convincing standard applies, for the
purposes of review, we assume that that standard does apply, and
for the reasons that follow, we sustain the district court’s grant of
summary judgment.

C. Implied Easement

¶16 440 North argues that we should reverse the district court’s
determination that an implied easement exists as a matter of law.
440 North’s arguments fall into two categories: (1) Appellees’
failure to meet the elements of an implied easement and (2)

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additional arguments against the easement’s existence. We
address each set of arguments in turn.

1. Elements of an Implied Easement

¶17 An implied easement requires the factfinder to find
evidence

(1) that unity of title was followed by severance;
(2) that the servitude was apparent, obvious, and
visible at the time of severance; (3) that the easement
was reasonably necessary to the enjoyment of the
dominant estate; and (4) that the use of the easement
was continuous rather than sporadic.

Bridge BLOQ NAC LLC v. Sorf, 2019 UT App 132, ¶ 24, 447 P.3d
1278 (cleaned up). 440 North makes arguments concerning the
first and third requirements: that Appellees failed to show unity
of title followed by severance and that the Commercial Parcel is
not landlocked so the easement is not necessary.

a. Unity of Title Followed by Severance

¶18 440 North argues that the “unity of title followed by
severance” element of implied easements is not defined by Utah
courts. Pointing to other states, 440 North argues that we should
read this first element as requiring ownership of a single tract of
land that is then severed. However, we do not find it necessary to
look outside of Utah for clarification, as our courts have already
answered this question. 5

5. Even if we did find it necessary to look at other states, our
conclusion would remain unchanged; that is, under the law of
most jurisdictions, an implied easement’s requirement of unity
followed by severance is met where two separate parcels are
(continued…)

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¶19 In Butler v. Lee, 774 P.2d 1150 (Utah Ct. App. 1989), our
court affirmed a district court’s declaratory judgment establishing
an implied easement on a parking strip abutting the boundary of
two adjacent, but separate, parcels. Id. at 1151, 1154. The two
separate parcels were initially owned by the same individual, but
one was awarded to his spouse in a divorce decree and the other
was sold. Id. at 1151 (describing the first parcel as “a restaurant
and parking lot” and the second as “an adjacent parcel abutting
the parking lot” (emphasis added)). Even with there being two
separate parcels, our court determined that these facts “clearly

unified under a single owner before being severed due to a change
in ownership. See, e.g., Manusos v. Skeels, 330 P.3d 53, 59 (Or. Ct.
App. 2014) (“[I]t is . . . well established that ‘severance of a parcel’
refers to the division of ownership of land, not a division that
occurs through a platting process or partition but does not change
ownership of the parcels.”); Boyd v. McDonald, 408 P.2d 717, 721
(Nev. 1965) (concluding that an implied easement exists where
“the owner of two parcels had so used one to the benefit of [the]
other that, on selling the benefited parcel, a purchaser could
reasonably have expected, without further inquiry, that these
benefits were included in the sale”). Numerous other cases use
treatise language to state that “where the owner of an entire tract
of land, or of two or more adjoining parcels, employs a part
thereof so that one derives from the other a benefit or advantage
of a continuous and apparent nature, and sells the one in favor of
which such continuous and apparent quasi easement exists,” an
implied easement exists. Brewer v. Avinger, 94 So. 590, 592 (Ala.
1922) (cleaned up); see also Dudley v. Neteler, 924 N.E.2d 1023, 1028
(Ill. App. Ct. 2009); Thompson v. E.I.G. Palace Mall, LLC, 2003 S.D.
12, ¶¶ 11–14, 657 N.W.2d 300; Stowe v. Head, 728 S.W.2d 120, 127
(Tex. Ct. App. 1987). Rather than addressing the plethora of cases
supporting this conclusion, 440 North provides us with largely
unhelpful caselaw that either decides the issue on other grounds
or discusses an entirely different kind of easement.

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440 North SF v. Vista Heights Investments

show[ed] that unity of title was followed by severance.” Id. at
1152. 440 North attempts to distinguish Butler, arguing that it “is
silent on a key issue, namely, whether the two parcels were
originally part of a single tract.” But as we’ve outlined, the facts
of Butler clearly show quite the opposite, which is that two
separate parcels unified under a single owner but later severed by
a change in ownership met the requirements for an implied
easement.

¶20 Furthermore, our court more recently in Bridge BLOQ NAC
LLC v. Sorf, 2019 UT App 132, 447 P.3d 1278, again affirmed a
district court’s finding of an implied easement where unity of title
involved two separate but adjacent parcels, this time divided by a
paved alley. Id. ¶¶ 2–4. These two cases are enough for us to reject
440 North’s argument and instead follow our court’s precedent:
the element of unity followed by severance for an implied
easement is met when two discrete but adjacent parcels owned by
a single individual or entity are then separated due to a change in
ownership. 6

¶21 Here, though two separate parcels, the properties met the
unity requirement because they shared a common owner from
2012 to 2018—owned first by Novatek and then by New Vistas.
Then, in 2018, the severance requirement was met when New
Vistas conveyed the Commercial Parcel to Vista Heights and the

6. For clarity, this is not the only circumstance in which the unity
followed by severance element may be met, but it is simply one
way in which a party may satisfy it. This approach is consistent
with the Restatement (Third) of Property, which states that the
“parcel whose severance gives rise to creation of the servitude is
usually a single parcel under a single ownership” but that “two
or more parcels may have been united in a single ownership, in
which case the same rule applies when they are severed again.”
Restatement (Third) of Property: Servitudes § 2.12 cmt. c (Am. L.
Inst. 2000).

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Residential Parcel to DRH, which later sold it to 440 North. Thus,
Appellees did not fail to show unity of title followed by severance.

b. Reasonable Necessity

¶22 440 North, in three sentences, contends that the district
court erred in creating an easement because the Commercial
Parcel is not landlocked. However, as 440 North concedes, this is
not a requirement for an implied easement. The third element of
an implied easement requires only a reasonable necessity, not an
absolute one. Butler, 774 P.2d at 1154. “[A]n implied easement . . .
is not dependent upon the need for a way to go to and from a
parcel of land entirely surrounded by land belonging to others or
retained by the seller.” Tschaggeny v. Union Pac. Land Res. Corp.,
555 P.2d 277, 280 (Utah 1976).

¶23 While not landlocked, the easement at issue was necessary
for Appellees’ heavy equipment to reach the R&D Space, which
was otherwise accessible only by foot. With “only a few feet”
between the large overhead doors of the R&D Space and both the
Road and the property line of the Residential Parcel, it would be
practically impossible—absent tearing down and redesigning the
entire Building—for MegaDiamond to maneuver its semi-trucks
and forklifts carrying “multi-ton granite boulders” into the
Building. MegaDiamond would be left with no means of entering
the R&D Space with the necessary large equipment and materials
if it could not access the doors located on the back of the Building.
Therefore, though not absolutely necessary as the only point to
access the property, the implied easement was reasonably
necessary to use the R&D Space without requiring reconstruction
of the Building entirely, and thus the district court did not err in
determining that, as a matter of law, use of the easement was
reasonably necessary to enjoyment of the dominant estate,
regardless of whether the Commercial Parcel was landlocked.

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2. Additional Arguments

¶24 440 North makes three additional arguments against the
existence of the implied easement: (1) the creation of an easement
“effectively divested” 440 North of its ownership rights, (2) the
district court improperly relied on the RR Easement, and (3) the
easement is unlawful as it violates the city zoning ordinances.

a. Divestment of Ownership Rights

¶25 440 North argues that the district court erred in granting
summary judgment and thereby creating the easement because it
“effectively divested [440 North] of its ownership rights.” 440
North relies on Judd v. Bowen, 2017 UT App 56, 397 P.3d 686, to
support its argument. However, 440 North fails to explain to the
court how Judd, which involves a prescriptive rather than an
implied easement, applies here. Id. ¶ 1. Furthermore, 440 North
does not explain why we should ignore our court’s previous
explicit explanation that the principles concerning ownership
rights in Judd do not apply to implied easements. In Bridge BLOQ,
our court clearly stated that “Judd limited its discussion to
prescriptive easements.” 2019 UT App 132, ¶ 34. Bridge BLOQ
went on to explain that Judd contrasted the ownership rights
gained through adverse possession with the rights granted from
an easement by prescription and that the Judd court reached the
conclusion that “the ability to exclude owners from their property
more closely resembles the ownership rights one can acquire only
through adverse possession.” Id. Bridge BLOQ concluded that
“this distinction is not legally relevant” when dealing with an
implied easement as implied easements depend on the parties’
“probable expectations.” Id. Therefore, we find 440 North’s
argument unpersuasive and inapplicable to the implied easement
at issue.

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b. Reliance on the RR Easement

¶26 440 North contends that the district court erred by relying
on the RR Easement—which it argues was abandoned—as a
partial basis for creating the new implied easement. The crux of
440 North’s argument is that any reliance on the RR Easement was
an error because whether the RR Easement had been abandoned
remained a genuine dispute between the parties. 440 North claims
that Appellees “heavily relied on the supposed significance of this
derelict railroad.” Appellees, in contrast, argue that this is a
mischaracterization. In the summary judgment proceedings
below, Appellees used the existence of the RR Easement, which
unrebutted evidence showed had been publicly recorded since at
least 1978, to show that 440 North “had the benefit of having
access to both recorded interests” (the RR Easement) and
“unrecorded visible, obvious, and apparent interests (the asphalt
road, pipes, boulders, and heavy equipment).”

¶27 Regardless of the extent to which Appellees relied on it, the
status of the RR Easement was not relevant to the district court’s
ultimate conclusion because the court’s inquiry was whether
Appellees’ use of the Road was continuous and reasonably
necessary and had been apparent, obvious, and visible to 440
North before it purchased the Residential Parcel. The court
concluded that Appellees’ use of the Road “established by
undisputed facts all of the elements of an implied easement.” 440
North does not explain how the abandonment of the RR Easement
negates the district court’s conclusions as to any of these elements.

¶28 Moreover, the existence of the RR Easement is largely
irrelevant. After all, its existence does not create, as Appellees
argue, “a genuine issue of fact precluding summary judgment”
on any of the four elements of an implied easement. First, the RR
Easement does not affect unity of title followed by severance
because the Commercial Parcel and the Residential Parcel were
unified under the ownership of Novatek and New Vistas

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irrespective of the RR Easement. Second, whether the RR
Easement was abandoned does not impact the analysis of whether
Appellees used the Road in an apparent, obvious, and visible
way. Third, the status of the RR Easement has no bearing on
whether the use of the Road was reasonably necessary for
Appellees to access the R&D Space. Finally, the existence of the
RR Easement does not impact the district court’s analysis that
Appellees used the Road in a continuous, rather than sporadic,
way. In sum, the facts and circumstances of the establishment and
subsequent abandonment, if any, of the RR Easement are not
material to the issues decided by the district court.

c. Violation of the Zoning Ordinances 7

¶29 Lastly, 440 North argues that the district court erred in
creating what 440 North deems an unlawful easement. 440 North
contends that the “court’s order necessarily requires [440 North]
to violate Provo City Code . . . , which prohibits the use of
residentially-zoned properties for commercial purposes.”
However, as Appellees point out, 440 North does not identify any
portion of the district court’s ruling that orders 440 North “to do
anything, let alone break the law.” The district court’s grant of
summary judgment does not compel 440 North to take any action;
instead, it establishes that Appellees have satisfied all the
elements of an implied easement. As the court’s order explained,
“[t]he existence of a property right is different than the ability to
use that right in a specific way.” An easement alone does not

7. Appellees argue that 440 North did not preserve this issue for
appeal. However, “if the merits of a claim can easily be resolved
in favor of the party asserting that the claim was not preserved,
we readily may opt to do so without addressing preservation.”
State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (cleaned up).
Because we ultimately resolve this issue in favor of Appellees, we
address the merits of 440 North’s zoning violation argument
without addressing preservation.

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require the servient estate owner to do anything beyond allowing
the dominant estate owner to use its property right.

¶30 Under the Provo City Code, the city can bring enforcement
actions against “any person responsible” for a zoning violation.
Provo, Utah, Code § 14.42.010(3)(b) (emphasis added). The district
court correctly observed that Appellees are entitled to seek a
variance should their use of the easement violate zoning
ordinances. And if the city decides to bring an enforcement action
against Appellees, it may do so, at which point the district court
will address the legality of Appellees’ use of the easement. But the
mere potential for a zoning ordinance violation has no bearing on
the validity of the easement. See, e.g., 15 Medway St., LLC v. Oaktree
SLR, LLC, No. 11-P-577, 2012 WL 998501, at *2 (Mass. App. Ct.
Mar. 27, 2012) (per curiam) (“Compliance with any local zoning
requirements are irrelevant to the validity of the easement itself,
which we have already determined is effective and remains in
force.”). Therefore, whether or not Appellees’ use of the easement
would violate a zoning ordinance, the district court did not err in
creating an implied easement because the only relevant issue
before the court was the easement’s existence.

II. Rule 60(b) Motion

¶31 440 North’s final argument is that the district court
exceeded its discretion in denying 440 North’s rule 60(b) motion
to set aside the court’s summary judgment order. See Utah R. Civ.
P. 60(b). A rule 60(b) motion provides the movant with relief from
a judgment or order upon a showing such as “mistake,
inadvertence, surprise,” or “newly discovered evidence.” Id. 440
North argues that the order was “necessarily” the product of
mistake, inadvertence, surprise, or excusable neglect, but 440
North does very little to explain why that is so. 440 North
contends that the “illegality” of the easement due to the zoning
violation is sufficient grounds for relief under rule 60(b).
However, as we have discussed, the creation of the easement does

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not force either party to take any action, nor does it encourage the
violation of the zoning ordinances; thus, we remain unpersuaded
by this argument.

¶32 440 North “alternatively or additionally” argues that
newly discovered evidence, specifically a “letter from Provo
City—dated nearly a month after the [summary judgment
order]—prohibiting [440 North] from allowing its residentially-
zoned property to be used for any ‘commercial, industrial,
agricultural, etc.’ purpose” was a sufficient basis for the motion.
To succeed on a rule 60(b) motion on the basis of newly
discovered evidence, the party must establish the existence of
“newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under [r]ule
59(b).” Id. R. 60(b)(2). The discoverability deadline under rule
59(b) is “no later than 28 days after entry of the judgment.” Id. R.
59(b).

¶33 We agree with the district court that the “zoning map and
zoning ordinances are a matter of public record and have been so
since before this lawsuit commenced” and that 440 North did not
exercise due diligence in addressing the zoning issue before the
court’s ruling. 440 North acknowledges the district court’s
reasoning but does not provide us with any argument as to why
the district court’s analysis constituted an abuse of discretion.
Instead, 440 North argues that the court’s reasoning “militates
against Appellees—the moving parties—at least as much as it
does against [440 North].” As Appellees point out, 440 North all
but concedes here that it did not act with reasonable diligence to
address the issue and does not explain why Appellees had any
obligation to raise the issue. As 440 North was aware of the zoning
ordinances pertaining to each parcel throughout the entirety of
this lawsuit, we do not see how the district court exceeded its
discretion by determining that the evidence of the zoning
regulations was not newly discovered evidence. Therefore, we

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440 North SF v. Vista Heights Investments

affirm the district court’s decision to dismiss 440 North’s rule
60(b) motion.

CONCLUSION

¶34 440 North fails to meet its burden of persuasion for each of
its arguments—first, that the district court erred in granting
Appellees’ motion for summary judgment and, second, that the
district court erred by denying 440 North’s rule 60(b) motion.

¶35 Affirmed.

20220785-CA 18 2024 UT App 73