Brigham City v. Bywater

2024 UT App 53

THE UTAH COURT OF APPEALS

PAUL B. BYWATER, DAN TAYLOR, GRACIA TAYLOR, AND
GOLDEN SPIKE RV, LLC,
Appellees,
v.
BRIGHAM CITY CORPORATION,
Appellant.

Opinion
No. 20220586-CA
Filed April 11, 2024

First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 170100040

Matthew D. Church, Taylor P. Kordsiemon, and
Carson M. Fuller, Attorneys for Appellant
Jack Molgard, Malone Molgard, and Kenneth Allsop,
Attorneys for Appellee Paul B. Bywater
Brad C. Smith and Elizabeth A. Knudson, Attorneys
for Appellees Dan Taylor and Gracia Taylor
Stephen Stoker, Attorney for Appellee
Golden Spike RV, LLC

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 Paul Bywater owns property in Brigham City. For many
years, Bywater accessed his property through an easement that he
had obtained across two neighboring properties—one was owned
by Dan and Gracia Taylor, and the other was owned by Golden
Spike RV, LLC. In 2012, Bywater conveyed a portion of his
property to Brigham City so that Brigham City could build an
Brigham City v. Bywater

abutting road (1100 West). After 1100 West was completed, the
Taylors and Golden Spike claimed that Bywater now had a right
of access to 1100 West that terminated Bywater’s easement across
their properties. Brigham City, however, was unwilling to give
Bywater unconditional access rights to the road.

¶2 Brigham City, Bywater, the Taylors, and Golden Spike
eventually ended up litigating the question of whether Bywater
now had direct access rights to 1100 West, or whether he instead
still had only the easement across the properties owned by the
Taylors and Golden Spike. In May 2022, the district court ruled
that Bywater has an easement allowing him to access 1100 West.
Brigham City appealed that ruling. But after doing so, it not only
took no efforts to stay the ruling, but it also gave Bywater a permit
to build a concrete “curb cut” from his property onto 1100 West. 1
Bywater soon hired a contractor to construct the curb cut, and he
has used it to access 1100 West ever since.

¶3 We’ve received merits briefs from Brigham City, Bywater,
and the Taylors, and Golden Spike filed a joinder in the Taylors’
brief. Much of the briefing focuses on whether Bywater has an
access easement to 1100 West. In a suggestion of mootness and
again in their brief, the Taylors also argued that Brigham City’s
subsequent conduct has mooted the appeal, and Bywater then
filed a request for leave to join in the Taylors’ mootness argument.
Brigham City, in turn, has opposed the mootness argument, and
it has also filed a motion arguing that the Taylors should not be
allowed to participate in this appeal.

¶4 For the reasons set forth below, we conclude that the
mootness question is appropriately before us. We also conclude

1. A “curb cut” is “a ramp cut into a street curb to provide
vehicular access to a driveway or parking space.” Curb cut,
Merriam-Webster Dictionary, https://www.merriam-webster.co
m/dictionary/curb%20cut [https://perma.cc/KZ8J-PB7X].

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Brigham City v. Bywater

that Brigham City’s post-appeal inaction and actions have mooted
this appeal. The appeal is accordingly dismissed.

BACKGROUND 2

¶5 Since 1984, the properties now owned by Bywater, the
Taylors, and Golden Spike 3 have been subject to a recorded
easement (the Easement). The Easement provided Bywater
“ingress and egress across” the properties now owned by the
Taylors and Golden Spike “because no available legal access
existed at the time.” The Easement also noted that Brigham City’s
Master Street Plan contemplated that a road would eventually be
built on the west side of Bywater’s property. It stated that “[i]f in
the future this street is dedicated such that access to [it] is
obtained, then the easements granted under this document shall
be vacated and be null and void.”

¶6 In March 2012, Bywater “conveyed to Brigham City the
western 53 feet of his real property, so Brigham City could

2. “When reviewing a district court’s decision granting summary
judgment, we view the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”
Nassi v. Hatsis, 2023 UT App 9, n.3, 525 P.3d 117. Our recitation of
the facts and procedural history in this case is drawn from facts
that were deemed undisputed by the district court or facts (mostly
procedural) for which there’s no dispute in the record.

3. While Bywater and the Taylors have been parties during all
related litigation, Golden Spike bought its property in September
2021. The previous owner was M & A Investments, Inc., which
joined the suit between Bywater and the Taylors in August 2020.
Golden Spike was subsequently permitted to substitute as a
“Defendant and Counterclaimant in this litigation in the place of
M & A Investments, Inc.” For simplicity, we refer to the relevant
actions as if they were taken by Golden Spike.

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Brigham City v. Bywater

construct 1100 West,” and Brigham City subsequently built that
road. Once 1100 West was built, the road formed the western edge
of Bywater’s property; 1100 South, a preexisting state highway,
formed the southern edge of Bywater’s property. Bywater
remained landlocked to the north and east by private property
owners, including the Taylors. Golden Spike’s property sits
directly to the east of the Taylors’ property.

¶7 In April 2017, Bywater sued the Taylors, claiming they
“obstructed and interfered with . . . use of his easement” and had
improperly placed “obstructions and markers on the easement to
limit the width and the location of the [his] use of his easement.”
The Taylors denied these allegations, stating that “[a]ccess is
available to [Bywater’s] property via 1100 West, which by the
terms of” the Easement, “extinguishes” the Easement. In
December 2017, recognizing that “the most efficacious solution”
to their dispute would be for Bywater to obtain direct access to
1100 West, Bywater and the Taylors jointly sought a variance from
certain public works standards, thereby allowing Bywater to
build a curb cut that would provide him with access to the road.
Brigham City responded that it would grant Bywater’s request for
the variance, but only if certain conditions were met. One of those
conditions was that Bywater would agree to access the road from
his property only for agricultural purposes.

¶8 In August 2019, instead of agreeing to the conditions,
Bywater filed a motion to join Brigham City as a third-party
defendant in the still-pending suit involving the Taylors. After the
court granted that motion, Bywater filed a third-party complaint
against Brigham City seeking a declaratory judgment that he had
“an easement by implication” or “necessity” allowing him to
access 1100 West.

¶9 In April and May of 2021, Bywater and Brigham City filed
competing motions for summary judgment, each asserting that it
was entitled to judgment as a matter of law on the question of

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Brigham City v. Bywater

whether Bywater had an easement allowing him to access 1100
West. The Taylors and Golden Spike then filed separate
memoranda, both of which supported Bywater’s motion for
summary judgment and opposed Brigham City’s motion.

¶10 In May 2022, the district court issued a memorandum
decision granting Bywater’s request for summary judgment
against Brigham City and denying Brigham City’s request for
summary judgment in its favor. In this decision, the court ruled
that Bywater was “entitled to a right of access to 1100 West, where
his property abuts a public road,” as well as “a curb cut, so he can
enjoy his right of access from his property to 1100 West.” Based
on these determinations, the court ruled that the “Easement [was]
terminated.”

¶11 After the court issued its memorandum decision, Bywater
removed some “jersey barriers” that Brigham City had placed on
the edge of his property to block access. Having done so, Bywater
began accessing his property “by using a temporary ramp to drive
over the curb and onto [his] property.”

¶12 In June 2022, Brigham City appealed the district court’s
memorandum decision.

¶13 In July 2022, Bywater was “making preparation[s]” for a
permanent driveway when a law enforcement officer “indicated
that [Bywater] could not continue work on the project without a
permit.” “The law enforcement officer and [Bywater] then
traveled down to the Brigham City [o]ffices for the purpose of
inquiring about a permit.” While there, Bywater interacted with
Brigham City’s director of public works, who was the main
Brigham City official that Bywater had corresponded with about
the access issue. After Bywater obtained a signature from his
general contractor, Bywater delivered a signed permit application
to the Brigham City offices and received a permit later the same
day. Before Bywater poured any concrete, “[t]wo Brigham City
inspectors . . . came and inspected the project to ensure that it was

20220586-CA 5 2024 UT App 53
Brigham City v. Bywater

in compliance with City requirements.” They concluded that it
was. Bywater ultimately spent $9,388.97 to grade the land, pour
concrete, and install gates for the curb cut and driveway
approach. 4

¶14 In February 2023, the Taylors filed a suggestion of
mootness and motion to dismiss in this court, which Bywater and
Golden Spike joined. In the Taylors’ view, “Brigham City
undertook no action to preserve its rights nor did it issue the
permit under protest,” and “[c]onstruction has occurred.” As a
result, the Taylors contended that the appeal was now moot and
must be dismissed. This court denied the motion to dismiss but
deferred the issue of mootness to “plenary consideration of this
appeal.”

¶15 In March 2023, Brigham City filed its opening brief, and its
arguments challenged the district court’s conclusion that Bywater
was entitled to an access easement to 1100 West. In May 2023,
Bywater filed a brief responding to Brigham City’s substantive
arguments. That same day, the Taylors filed a brief of their own,
and Golden Spike later joined in that brief. In addition to making
their own arguments about the correctness of the district court’s
ruling regarding the Easement, the Taylors again argued that the
appeal was moot because of Brigham City’s failure to file a motion
to stay the judgment and its approval of the curb cut permit. In
support of that argument, the Taylors submitted an affidavit from
Bywater laying out the facts recounted above regarding the curb
cut. Bywater soon filed a “Request for Leave of Court to Join” the
“Mootness . . . Section[]” of the Taylors’ brief.

4. Many of the facts set forth in paragraphs eleven through
thirteen are drawn from an affidavit from Bywater that was
submitted in conjunction with the Taylors’ brief. These facts are
undisputed, and as we explain below, we conclude that these facts
are appropriately before us.

20220586-CA 6 2024 UT App 53
Brigham City v. Bywater

¶16 Brigham City filed a motion to strike the Taylors’ brief (as
well as Golden Spike’s joinder in it), arguing that the Taylors “are
not natural parties to this appeal” and had failed to intervene
“within 40 days of the date on which the petition for review [was]
filed.” Utah R. App. P. 14(c). In its reply brief on appeal, Brigham
City then argued that because the Taylors’ brief should be
stricken, there would then be no mootness argument for Bywater
to join. This court subsequently issued an order denying Brigham
City’s motion to strike the brief but allowing “the panel assigned
this case for resolution on the merits to revisit this question and
strike the brief at that time, if it deems appropriate.” At oral
argument, counsel from both sides presented arguments on the
question of whether this appeal is moot.

ISSUES AND STANDARD OF REVIEW

¶17 Brigham City challenges the district court’s decision
granting summary judgment to Bywater on several grounds. We
would ordinarily review this ruling for correctness. See Orvis v.
Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600. But because we conclude
that the issues raised in Brigham City’s appeal are moot, we “lack
judicial power to address” them. In re M.S., 2023 UT App 74, ¶ 22,
533 P.3d 859; see also Utah Transit Auth. v. Local 382 of Amalgamated
Transit Union, 2012 UT 75, ¶ 12, 289 P.3d 582 (“[B]ecause it is moot,
we lack the power to address the underlying merits or issue what
would amount to an advisory opinion.”).

ANALYSIS

¶18 The district court granted summary judgment to Bywater,
ruling that he has an easement as a matter of law that allows him
to access 1100 West. In its opening brief, Brigham City challenged
that decision on several grounds, arguing, among others, that
Bywater failed to exhaust his administrative remedies and that
Bywater’s status as an abutting landowner was insufficient to

20220586-CA 7 2024 UT App 53
Brigham City v. Bywater

create the easement. Bywater filed a brief responding to those
legal arguments.

¶19 In both a suggestion of mootness and again in their brief,
the Taylors argued that the issues raised by Brigham City were
moot. Brigham City opposed the suggestion of mootness and then
filed a motion to strike the Taylors’ brief, arguing that they lack
standing to participate in this appeal. Bywater nevertheless filed
a request for leave to join the mootness section of the Taylors’
brief. In its reply brief, however, Brigham City argued that if we
strike the Taylors’ brief, there is no mootness argument left for
Bywater to join.

¶20 This is a somewhat unique set of circumstances involving
the confluence of a mootness argument and a motion to strike the
brief that had initially raised it. Given this, we’re presented with
two threshold questions relating to our ability to analyze the
mootness issue: first, whether we can reach the mootness issue
ourselves; and second, whether we can rely on the Bywater
affidavit in doing so. As explained in Part I below, the answers to
both questions are yes. From there, we turn in Part II to the
question of whether this case is moot. We answer that question in
the affirmative as well.

I. We Have Authority to Analyze the Mootness Issue on the
Basis of the Bywater Affidavit

¶21 First, we have authority to raise the question ourselves of
whether Brigham City’s appeal is moot. “An appeal is moot if
during the pendency of the appeal circumstances change so that
the controversy is eliminated, thereby rendering the relief
requested impossible or of no legal effect.” In re adoption of L.O.,
2012 UT 23, ¶ 8, 282 P.3d 977 (quotation simplified). “Mootness
does not provide the court with a choice of whether to proceed
with an appeal or not; it is jurisdictional.” State v. Legg, 2016 UT
App 168, ¶ 25, 380 P.3d 360 (quotation simplified); see also First
Nat’l Bank of Layton v. Palmer, 2018 UT 43, ¶ 10, 427 P.3d 1169

20220586-CA 8 2024 UT App 53
Brigham City v. Bywater

(recognizing that a court lacks “jurisdiction over issues that have
become moot”); Mower v. Mower, 2023 UT App 10, ¶ 19, 525 P.3d
110 (recognizing that mootness is a “jurisdictional bar”). And
“although it is the duty of each party to inform the court of any
circumstances which render moot one or more of the issues raised,
the court may also raise the issue of mootness sua sponte to
further a core judicial policy of limiting the scope of its power to
issues in controversy.” In re adoption of L.O., 2012 UT 23, ¶ 7
(quotation simplified); see also Utah Transit Auth. v. Local 382 of
Amalgamated Transit Union, 2012 UT 75, ¶ 26, 289 P.3d 582
(“Courts have a sua sponte obligation to carefully consider the
propriety of their own jurisdiction.”). Because of this, we reach the
question of whether this case is moot on our own initiative.

¶22 Second, we also conclude that we may rely on the Bywater
affidavit. It’s true that the Bywater affidavit was originally
attached to the Taylors’ brief, and it’s also true that Brigham City
has filed a motion to strike that brief. But Brigham City has never
contested the accuracy of the facts set forth in that affidavit. And
after Bywater filed a request to join in the mootness section of the
Taylors’ brief, Brigham City never filed a formal opposition to his
request. Instead, Brigham City simply suggested in its reply brief
that if we first grant its motion to strike the Taylors’ brief, there
would be nothing left for Bywater to join.

¶23 But again, we have no need to rule on Brigham City’s
motion to strike the Taylors’ brief in order to reach the mootness
issue. We can raise the issue ourselves. The remaining question,
then, is whether any party has given us a record from which to
conduct this analysis. Under the unique posture of this case, we
conclude that we can rely on the Bywater affidavit as part of this
analysis.

¶24 Rule 24(c) of the Utah Rules of Appellate Procedure states:
“More than one party may join in a single brief. Any party may
adopt by reference any part of the brief of another.” While

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Brigham City v. Bywater

Bywater’s filing was captioned as a “Request for Leave of Court
to Join” in the “Mootness . . . Section” of the Taylors’ brief, rule
24(c) itself doesn’t require leave of court for one party to join in
another party’s brief. The rule simply and permissively says that
“[m]ore than one party may join in a single brief.” Id. (emphasis
added). From this, it appears that joinder is automatic upon
indication by a party. Since Bywater is a party in this appeal, the
rule already allows him to join in the Taylors’ brief without any
“request” or motion. We accordingly construe his “Request for
Leave” to join in the Taylors’ brief as his joinder in it, and we
likewise recognize that his joinder allows him to adopt the parts
of the brief addressing mootness (including his own affidavit).

¶25 Although the rule would ordinarily permit this, Brigham
City nevertheless suggests that Bywater’s joinder in those
mootness arguments can be chronologically short-circuited if we
first strike the Taylors’ brief. This presents something of a chicken-
and-egg conundrum—which comes first, the motion to strike or
the joinder? And this conundrum is potentially compounded here
by the fact that Brigham City’s motion to strike and Bywater’s
“Request to Join” were filed on the same day.

¶26 No party has given us any authority that sets forth a
required order of operations in this scenario. In the absence of any
authority compelling us to start with the motion to strike, we
think it more appropriate to start with Bywater’s joinder. As
explained, Bywater is indisputably a party to this appeal, and
Bywater previously joined the suggestion of mootness and
motion to dismiss that were filed while briefing was underway,
so it’s clear that he intended to advance these arguments all along
(albeit through the briefing labor provided by the Taylors).
Moreover, what’s at issue now is our ability to consider Bywater’s
own affidavit, and yet Brigham City has never suggested that
Bywater has no right to continue participating in this appeal. In
these circumstances, Brigham City has not persuaded us that
Bywater should be prevented from relying on his own affidavit to

20220586-CA 10 2024 UT App 53
Brigham City v. Bywater

support his own assertion of his own property rights, particularly
where Bywater seeks to rely on his affidavit to support an
argument that this court can raise on its own initiative. For these
reasons, we conclude that the affidavit is properly before us. 5

II. This Case Is Moot

¶27 Against that backdrop, we turn to the question of whether
Brigham City’s challenge to the district court’s ruling is moot. We
conclude that it is. As we’ve previously explained, a party’s
failure to obtain a stay of a lower court judgment may become
“material to the question of mootness.” Wasatch County v. Utility
Facility Review Board, 2018 UT App 191, ¶ 14, 437 P.3d 406. In
Transportation Alliance Bank v. Int’l Confections Co., for example,
our supreme court held that an appeal was moot because a debtor
failed to seek a stay of an order approving a receivership sale. 2017
UT 55, ¶ 17, 423 P.3d 1171. And in Richards v. Baum, our supreme
court likewise held that a would-be purchaser’s challenge to a
decision allowing a buyer to sell a property to someone else
became moot when the would-be purchasers did not obtain a stay
and the sellers then sold the property. 914 P.2d 719, 721–22 (Utah
1996); see also Kellch v. Westland Mins. Corp., 484 P.2d 726, 726
(Utah 1971) (dismissing an appeal as moot where “[n]o steps were
taken by the defendants to stay the operation of the judgment,”
and where the stock in question in the case was thus sold while
the appeal was pending). In this sense, our cases establish the
principle that an appeal may become moot “where the appealing
party did not use available procedural tools to preserve the status
quo.” Wasatch County, 2018 UT App 191, ¶ 16.

5. In light of this conclusion, we also conclude that we have no
need to rule on Brigham City’s motion to strike the Taylors’ brief.
This is so because, as explained below, the record before us
(including the Bywater affidavit) establishes that this case is moot.

20220586-CA 11 2024 UT App 53
Brigham City v. Bywater

¶28 Here, the ruling in question granted Bywater an access
easement to 1100 West. Although Brigham City appealed that
decision, it did not request a stay of that ruling pending appeal.
As a result, Bywater has since accessed 1100 West from his
property in reliance on the district court’s ruling. And perhaps
more importantly, although Brigham City filed its notice of appeal
in June 2022, Brigham City then affirmatively gave Bywater a
permit in July 2022 allowing him to build a “curb cut” on his
property for the purpose of facilitating his access to 1100 West.
This “construction project included a curb-cut, new concrete,
gates, and other work in order to effectuate access,” and it cost
Bywater $9,388.97.

¶29 This additional construction matters, and our decision in
Wasatch County explains why. There, a county asked us to hold
that it had the right to prevent a power company from building a
series of transmission lines. Id. ¶¶ 3–13. Although we initially
ruled in the county’s favor, see Wasatch County v. Utility Facility
Review Board, 2018 UT App 1, ¶ 13, 414 P.3d 958, we learned
through a petition for rehearing that “while the proceeding for
judicial review had been pending, the [permit] had been issued,
the new transmission lines had been constructed,” and the lines
in question were now in use, Wasatch County, 2018 UT App
191, ¶ 8. In light of this new information, we concluded that “the
dispute” had now “been rendered moot,” and we did so based on
the “abundant case law support[ing] the proposition that once
construction (of, for instance, buildings or power lines) has
commenced, an appellant must avail itself of all avenues of
preserving the pre-construction status quo or risk the construction
rendering the appeal moot.” Id. ¶¶ 10, 19.

¶30 So too here. As in Wasatch County, a local government is
seeking the right to prevent a private party from performing an
action; the local government lost in the district court; the local
government appealed; and yet, after filing its notice of appeal, the
local government not only failed to take steps to prevent the

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Brigham City v. Bywater

private party from exercising its rights under the challenged
ruling, but the local government affirmatively issued a permit
allowing the private party to engage in construction that was
intended to facilitate that activity. True, the district court’s ruling
itself determined that Bywater was entitled to such a curb cut. But
again, Brigham City didn’t seek to stay that ruling, nor did it
subsequently grant the permit to build the curb cut under any sort
of protest. Instead, it affirmatively allowed construction to
commence. Under the principle set forth in Wasatch County, this
case has become moot.

¶31 In an attempt to forestall this outcome, Brigham City
suggests that there’s a meaningful difference between allowing
Bywater to construct the curb cut and allowing him to use it. In
Brigham City’s view, this case actually involves “a request for
recognition of [its] regulatory authority,” namely its authority to
“restrict Bywater’s use of that curb cut.”

¶32 Under the circumstances of this case, we’re skeptical that
there is such a difference. After all, Bywater has been resistant to
Brigham City’s efforts to place any restrictions on his ability to
access 1100 West in the past—as noted, Bywater was resistant to
Brigham City’s attempt to impose some restrictions on his ability
to access the roadway in December 2017, which is why Bywater
withdrew his earlier application and litigation commenced. When
the district court ruled a few years later that Bywater had an
easement, Bywater now had a ruling granting him unfettered
access to the roadway. Based on this, he then sought permission
to construct a curb cut from which he could access 1100 West.
Brigham City knew this, and yet it approved this request anyway,
without any request for stay, formal protest, or effort to
“preserv[e] the pre-construction status quo,” id., ¶ 19. Then, based
on that approval, Bywater spent almost $10,000 constructing his
access point.

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Brigham City v. Bywater

¶33 This alone undermines Brigham City’s attempt to avoid the
mootness implications of its past inaction and actions. After all,
our decision in Wasatch County (as well as in the cases cited
therein) turned on a party’s lack of opposition to “construction”
efforts, which is the very thing that occurred here.

¶34 In any event, by its own admission, Brigham City never
attempted to assert any right of “regulatory authority” over this
curb cut. At oral argument, a member of this court asked Brigham
City’s counsel about the “mechanism” by which the city would
attempt to restrict Bywater’s “use” of the curb cut. Counsel
responded that the city would “record [a] document on the
property” setting forth any “condition[s]” that it sought to
impose, and that it might then attempt to “revoke[]” those
conditions at some future point. In rebuttal, however, opposing
counsel then informed us that when Brigham City “issued the
permit for the curb cut,” that permit “contained no conditions, no
limits. It wasn’t subject to anything.” Brigham City has not refuted
this assertion.

¶35 Given this, what we have before us is a ruling from a
district court granting access to a roadway, Brigham City’s failure
to seek a stay of that ruling, Brigham City’s approval of a
construction project that was intended to create an access-point to
the roadway, Brigham City’s failure to impose any restrictions on
its approval of that access-point, the landowner’s expenditure of
almost $10,000 on the project, and the landowner’s subsequent
use of his access point without any restriction for 18 months. In
these circumstances, we conclude that Brigham City’s inaction
and actions alike have failed to preserve the “status quo,” thereby
rendering this appeal moot.

CONCLUSION

¶36 The district court ruled that Bywater has an access
easement to 1100 West, and Brigham City’s subsequent inaction

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Brigham City v. Bywater

and actions have mooted Brigham City’s ability to challenge that
decision. We therefore lack jurisdiction to consider its arguments
and thus dismiss this appeal.

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