text:
    Ria WILLIAMS, Appellant, v. KINGDOM HALL OF JEHOVAH'S WITNESSES, Roy Utah; Watchtower Bible and Tract Society of New York Inc.; Harry Diamanti; Eric Stocker ; Raulon Hicks; and Dan Harper, Appellees.
    No. 20170783-CA
    Court of Appeals of Utah.
    Filed March 21, 2019
    John M. Webster and Matthew G. Koyle, Attorneys for Appellant
    Karra J. Porter and Kristen C. Kiburtz, Attorneys for Appellees
    Judge Kate Appleby authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.
    Opinion
   APPLEBY, Judge:

¶1 Ria Williams appeals the district court's dismissal of her tort claims for negligent infliction of emotional distress and intentional infliction of emotional distress against defendants Kingdom Hall of Jehovah's Witnesses, Roy Utah; Watchtower Bible and Tract Society of New York Inc.; Harry Diamanti; Eric Stocker; Raulon Hicks; and Dan Harper (collectively, the Church). We affirm.

BACKGROUND

¶2 Williams and her family attended the Roy Congregation of Jehovah's Witnesses. In the summer of 2007, Williams met another Jehovah's Witnesses congregant ("Church Member"). Williams and Church Member began seeing each other socially, but the relationship quickly changed and throughout the rest of the year Church Member physically and sexually assaulted Williams, who was a minor.

¶3 In early 2008 the Church began investigating Williams to determine whether she engaged in "porneia," a serious sin defined by Jehovah's Witnesses as "[u]nclean sexual conduct that is contrary to 'normal' behavior." Porneia includes "sexual conduct between individuals who are not married to each other." The Church convened a "judicial committee" to "determine if [Williams] had in fact engaged in porneia and if so, if was she sufficiently repentant for doing so." A group of three elders (the Elders) presided over the judicial committee. Williams voluntarily attended the judicial committee with her mother and step-father. The Elders questioned Williams for forty-five minutes regarding her sexual conduct with Church Member.

¶4 After questioning Williams about her sexual conduct, the Elders played an audio recording of Church Member raping Williams. Church Member recorded this incident and gave it to the Elders during their investigation of Williams. The recording was "several hours" in length. Williams cried and protested as the Elders replayed the recording. The Elders played the recording for "four to five hours" stopping and starting it to ask Williams whether she consented to the sexual acts. During the meeting Williams was "crying and physically quivering." Williams conceded she was able to leave but risked being disfellowshipped if she did.

¶5 Williams continues to experience distress as a result of her meeting with the Elders. Her symptoms include "embarrassment, loss of self-esteem, disgrace, humiliation, loss of enjoyment of life," and spiritual suffering. Williams filed a complaint against the Church for negligence, negligent supervision, failure to warn, and intentional infliction of emotional distress (IIED).

¶6 In response to her complaint, the Church filed a motion to dismiss under rule 12(b)(6) of the Utah Rules of Civil Procedure. Williams filed an amended complaint dropping her negligence claims and adding a claim for negligent infliction of emotional distress (NIED) to the IIED claim. The Church filed a second motion to dismiss under rule 12(b)(6). The motion argued the United States and Utah constitutions barred Williams's claims for IIED and NIED.

¶7 After considering the motions and hearing argument the district court dismissed Williams's amended complaint. It ruled that the First Amendment to the United States Constitution bars Williams's claims for NIED and IIED. The court ruled that Williams's claims "expressly implicate key religious questions regarding religious rules, standards, ... discipline, [and] most prominently how a religion conducts its ecclesiastical disciplinary hearings." Although the allegations in the complaint were "disturbing" to the court, it ruled that the conduct was protected by the First Amendment and adjudicating Williams's claims would create unconstitutional entanglement with religious doctrine and practices. Williams appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 Williams argues the district court erred in dismissing her amended complaint. When reviewing appeals from a motion to dismiss, we "review only the facts alleged in the complaint." Franco v. The Church of Jesus Christ of Latter-day Saints , 2001 UT 25, ¶ 2, 21 P.3d 198 (quotation simplified). We "accept the factual allegations in the complaint as true and consider all reasonable inferences to be drawn from those facts in a light most favorable to the plaintiff." Id. (quotation simplified). We will affirm a district court's dismissal if "it is apparent that as a matter of law, the plaintiff could not recover under the facts alleged." Id. ¶ 10 (quotation simplified). "Because we consider only the legal sufficiency of the complaint, we grant the trial court's ruling no deference" and review it for correctness. Id. (quotation simplified).

ANALYSIS

¶9 Williams argues the First Amendment to the United States Constitution does not bar her claim for IIED. Specifically, she contends the Elders' conduct was not religiously prescribed and therefore adjudicating her claims does not violate the Establishment Clause.

¶10 The First Amendment to the United States Constitution provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. These provisions are known as the Establishment Clause and the Free Exercise Clause and they apply to the states through the Fourteenth Amendment. Franco v. The Church of Jesus Christ of Latter-day Saints , 2001 UT 25, ¶ 11, 21 P.3d 198 (citing Cantwell v. Connecticut , 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) ).

¶11 In Franco , the Utah Supreme Court applied what is known as the Lemon test to determine "whether government activity constitutes a law respecting an establishment of religion" under the Establishment Clause. Id. ¶ 13 (citing Lemon v. Kurtzman , 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) ). This test requires the government action "(1) must have a secular legislative purpose, (2) must neither advance nor inhibit religion, and (3) must not foster an excessive government entanglement with religion." Id. (quotation simplified).

¶12 Courts focus on the third prong of the test, "excessive government entanglement," when looking to determine clergy liability for tortious conduct. Id. Entanglement "is, by necessity, one of degree" because not all government contact with religion is forbidden. Id. ¶ 14. "[T]he entanglement doctrine does not bar tort claims against clergy for misconduct not within the purview of the First Amendment, because the claims are unrelated to the religious efforts of a cleric." Id. But tort claims "that require the courts to review and interpret church law, policies, or practices in the determination of the claims are barred" by the entanglement doctrine. Id. ¶ 15.

¶13 Some tort claims do not run afoul of the Establishment Clause because they do not require any inquiry into church practices or beliefs. Id. ¶ 14. For example, "slip and fall" tort claims against churches have been upheld because the tortious conduct was "unrelated to the religious efforts of a cleric." Id. (citing Heath v. First Baptist Church , 341 So.2d 265 (Fla. Dist. Ct. App. 1977) ); see also Fintak v. Catholic Bishop of Chi. , 51 Ill.App.3d 191, 9 Ill.Dec. 223, 366 N.E.2d 480 (1977) ; Bass v. Aetna Ins. Co. , 370 So.2d 511 (La. 1979).

¶14 But the Utah Supreme Court has rejected tort claims against church entities for "clergy malpractice" as well as other negligence-based torts that implicate policies or beliefs of a religion. Franco , 2001 UT 25, ¶¶ 16-19, 21 P.3d 198. "[I]t is well settled that civil tort claims against clerics that require the courts to review and interpret church law, policies, or practices in the determination of the claims are barred by the First Amendment under the entanglement doctrine." Id. ¶ 15. It is important that churches "have power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Id. (quotation simplified).

¶15 Allowing Williams's claims in this case to be litigated would require the district court to unconstitutionally inject itself into substantive ecclesiastical matters. Williams argues she is not challenging the Church's ability to determine what constitutes "sinful behavior," its ability to convene a judicial committee to investigate whether a member has engaged in "sinful behavior," or its ability to punish members based on a finding of "sinful behavior." But Williams asks the factfinder to assess the manner in which the Church conducted a religious judicial committee, which requires it to assess religiously prescribed conduct. See, e.g. , Bryce v. Episcopal Church in the Diocese of Colo. , 289 F.3d 648, 659 (10th Cir. 2002) (holding that a plaintiff's sexual harassment lawsuit was properly dismissed because the statements were "not purely secular disputes with third parties, but were part of an internal ecclesiastical dispute and dialogue protected by the First Amendment"); Stepek v. Doe , 392 Ill.App.3d 739, 331 Ill.Dec. 246, 910 N.E.2d 655, 668 (2009) (holding that "resolving this [defamation] dispute would involve the secular court interfering with the Church's internal disciplinary proceedings" where the plaintiff's claim is based on the statements made in a disciplinary setting); In re Goodwin , 293 S.W.3d 742, 749 (Tex. App. 2009) (dismissing a claim for IIED against a church for the method in which it punished a member because it would "require an inquiry into the truth or falsity of religious beliefs" (quotation simplified) ). Adjudicating Williams's claims would involve excessive government entanglement with the Church's "religious operations, the interpretation of its teachings" and "the governance of its affairs." Gulbraa v. Corp. of the President of the Church of Jesus Christ of Latter-day Saints , 2007 UT App 126, ¶ 25, 159 P.3d 392. This subjects the Church to "judicial oversight in violation of the Establishment Clause of the United States Constitution." Id.

¶16 Williams argues the factfinder need not consider ecclesiastical matters to adjudicate her claim for IIED and that she merely seeks to utilize generally applicable tort law. But the issue is not whether the tort law itself is neutral and generally applicable. The issue is whether the tort law being applied is used to evaluate religious activity in violation of the Establishment Clause. In this case, Williams asks the factfinder to interpret the "outrageousness" of the Church's conduct in investigating her alleged sins. See Russell v. Thomson Newspapers, Inc. , 842 P.2d 896, 905 (Utah 1992) (noting the elements of IIED include intentional conduct by the defendant toward the plaintiff that is "outrageous and intolerable in that it offends generally accepted standards of decency and morality"). Because Williams's IIED claim asks the factfinder to assess the "outrageousness" of a religious practice, this violates the Establishment Clause. See Franco , 2001 UT 25, ¶ 15, 21 P.3d 198 (holding that claims that require courts to interpret religious practices or beliefs are barred by the Establishment Clause).

¶17 This case is distinguishable from Gulbraa , in which this court allowed the plaintiff's IIED claim against a religious entity to proceed. 2007 UT App 126, ¶ 22, 159 P.3d 392. In Gulbraa the plaintiff claimed emotional distress as a result of the church's conduct in concealing the location of his children. Id. This court held this allegation involved "secular activity potentially amounting to a violation of generally applicable civil law" and therefore was not barred by the Establishment Clause. Id. (quotation simplified). Unlike the IIED claim in Gulbraa , Williams's IIED claim directly implicates religious activity not secular activity. And although Williams claims distress under a generally applicable law, the distress she experienced arose out of the manner in which the Church conducted a religiously prescribed judicial committee to investigate her alleged sins.

¶18 We conclude Williams's claim for IIED requires an inquiry into the appropriateness of the Church's conduct in applying a religious practice and therefore violates the Establishment Clause of the First Amendment.

CONCLUSION

¶19 The district court did not err in dismissing Williams's complaint as violating the Establishment Clause of the First Amendment. We affirm.

      "Because this is an appeal from a motion to dismiss under rule 12(b)(6) of the Utah Rules of Civil Procedure, we review only the facts alleged in the complaint." Franco v. The Church of Jesus Christ of Latter-day Saints , 2001 UT 25, ¶ 2, 21 P.3d 198 (quotation simplified).

      Elders are leaders of local congregations and are responsible for the daily operations and governance of their congregations.

      Williams alleged in her complaint that although church policy requires elders to conduct judicial committees to investigate claims of sexual abuse, the Church does not train them on how to interview children who are victims of sexual abuse.

      Disfellowship is expulsion from the congregation. When someone is disfellowshipped, an announcement is made to the congregation that the member is no longer a member of the Jehovah's Witnesses, but no details are given regarding the nature of the perceived wrongdoing.

      The Church also argued Williams's claim for IIED failed because the conduct was not "outrageous" as a matter of law and her claim for NIED failed because Williams did not allege sufficient facts to support it.

      Arguments under both the Utah and United States constitutions were presented to the district court. But the court determined dismissal was required under the federal constitution and did not reach the state constitutional analysis. Williams focuses her arguments on appeal on the federal constitution and does not argue the district court erred in failing to consider the Utah Constitution. As a result we likewise focus our analysis on the federal constitution. See State v. Worwood , 2007 UT 47, ¶ 18, 164 P.3d 397 ("When parties fail to direct their argument to the state constitutional issue, our ability to formulate an independent body of state constitutional law is compromised."); see also State v. Sosa , 2018 UT App 97, ¶ 7 n.2, 427 P.3d 448 (stating that although arguments under both the state and federal constitutions were made to the district court, we will not consider both constitutions when the appellant only makes arguments under the federal constitution).

      "[B]ecause the Establishment Clause is dispositive of the issues before us, we do not address the Free Exercise Clause." Franco v. The Church of Jesus Christ of Latter-day Saints , 2001 UT 25, ¶ 11 n.8, 21 P.3d 198.

      Williams's claim for NIED also violates the Establishment Clause of the First Amendment. She alleges that the Elders were not properly trained on how to conduct interviews of "minor victim[s] of rape," and argues the Church "should have realized [this] conduct involved an unreasonable risk of emotional, psychological, and physical damage to [Williams]." But these claims implicate the entanglement doctrine of the Establishment Clause in the same way her IIED claim does. See Franco v. The Church of Jesus Christ of Latter-day Saints , 2001 UT 25, ¶ 23, 21 P.3d 198 (dismissing a claim for NIED because the plaintiff's claim that the church "generally mishandled their ecclesiastical counseling duties" required the court to establish a standard of care "to be followed by other reasonable clerics in the performance of their ecclesiastical counseling duties" which "would embroil the courts in establishing the training, skill, and standards applicable for members of the clergy in this state" and therefore violates the First Amendment). Accordingly, we determine the district court did not err in dismissing it.


source: Caselaw Access Project

author: CHRISTIANSEN FORSTER, Judge:

license: Public Domain

text:
    CALIFORNIA COLLEGE INC., Stevens-Henager College Inc., CollegeAmerica Services Inc., CollegeAmerica Denver Inc., and CollegeAmerica Arizona Inc., Appellees, v. UCN INC. and inContact Inc., Appellants.
    No. 20160120-CA
    Court of Appeals of Utah.
    Filed March 21, 2019
    David M. Bennion, Zack L. Winzeler, and Alan S. Mouritsen, Salt Lake City, Attorneys for Appellants
    Robert E. Mansfield, Salt Lake City, and Steven J. Joffee, Cottonwood Heights, Attorneys for Appellees
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and David N. Mortensen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 This is an interlocutory appeal asking us to determine whether the district court abused its discretion when it denied inContact's pretrial motion to exclude certain expert witness testimony. InContact contends that the data set underlying the experts' opinions at issue failed to meet the standards of reliability set forth by rule 702 of the Utah Rules of Evidence. Because both expert opinions admitted by the court relied on data the parties agree was, to an extent, unreliable, we determine that a threshold showing of reliability was not shown. Accordingly, we vacate the district court's ruling denying inContact's motion to exclude and remand for further proceedings.

BACKGROUND

¶2 The appellant in this case is inContact Inc., formerly known as UCN Inc. We use its current name for clarity. The appellees are a consortium of educational entities including California College Inc., Stevens-Henager College Inc., CollegeAmerica Services Inc., CollegeAmerica Denver Inc., and CollegeAmerica Arizona Inc. For convenience, we refer to them collectively as "the College," mindful that the appellees are separate entities and without ascribing any legal status to the term.

¶3 InContact provided enhanced telephone services to assist the College in recruiting students. From February 2006 to April 2007 (Damage Period), the College's offices "were frequently unable to receive inbound calls," and "inbound calls were often incorrectly routed, delayed, or simply lost." These problems allegedly left the College without full telephone capabilities for a total of approximately 108 hours.

¶4 In December 2009, the College filed a complaint against inContact, alleging multiple causes of action. The College sought damages equal to its lost profits, asserting that the telephone problems led to lower recruitment, which in turn led to reduced student enrollment and therefore lost profits. The College retained two experts with experience in calculating damages: Ted Tatos, a statistician, and Richard Hoffman, a certified public accountant.

¶5 Tatos estimated the number of student enrollments that the College lost during the Damage Period. Tatos used a method known as regression analysis to develop a statistical model for estimating the number of enrollments the College should have had but for the malfunctioning telephone services. To conduct the regression analysis and develop the model, Tatos relied upon data collected by the College. The data reflected, among other things, how many potential students had contacted the College, how many interviews were conducted, and how many students had enrolled. Tatos compared the figures from January 2003 to March 2006 (before the Damage Period) and June 2007 to December 2010 (after the Damage Period) with the figures from the Damage Period. These figures ostensibly were drawn from the College's internal operating reports (OPS Reports). Using his regression model, Tatos estimated that the College suffered 1,254 lost student enrollments as a result of the faulty telephone services.

¶6 Hoffman used Tatos's estimate of lost enrollments to calculate the College's lost profits. He first determined the average net tuition dollars the College received for each student who enrolled during 2006 (roughly $19,000) and subtracted the costs the College would have incurred to generate that tuition (roughly $3,300). Hoffman then multiplied this result by the number of lost enrollments calculated by Tatos and arrived at approximately $19.7 million in lost profits. Hoffman's original report proffered these analyses and his damages estimate.

¶7 InContact moved to exclude Tatos and Hoffman as expert witnesses. It submitted two rebuttal expert reports-one from Patrick Kilbourne, a forensic accountant, and one from Steven Waters, an economist. Kilbourne's report cast doubt on the accuracy of the data set Tatos used, while Waters's report challenged the reliability of Tatos's statistical model based upon the data.

¶8 Kilbourne first noted that the values assigned to the variables Tatos used were incorrect. Instead of relying on the actual OPS Reports, Tatos used a "summary" prepared by Carl Barney, one of the owners of one of the colleges. Barney drew some values from the OPS Reports but also supplemented those with his own estimates. It was Barney's "summary," prepared specifically for the purpose of the lawsuit, that had been provided to Tatos and upon which Tatos based his regression analysis and the resulting statistical model. Kilbourne also identified some of the flaws in the OPS Reports. Because the OPS Reports each included twelve to eighteen months of rolling data, a particular month appeared in multiple reports and the numbers reflected for that month could vary for a variety of reasons. For example, the OPS Reports that included January 2007 recorded the number of interviews conducted during that month variously as 582, 594, 622, 631, and 654. Tatos used the lowest value in his analysis, without explanation, and Kilbourne criticized this approach because it resulted in a model that maximized the estimated shortfall. Moreover, Kilbourne noted that many of the numbers provided by Barney and used by Tatos did not match any of the OPS Reports.

¶9 Waters's report first rebutted the concept of lost enrollments, suggesting that the changing unemployment rate produced lower enrollments-a variable not accounted for in Tatos's model. Had Tatos incorporated the unemployment rate as a variable, Waters suggested, Tatos would have found that the data predicted no lost enrollment. Waters then opined that Tatos's model was overly sensitive to changes in the input values. To demonstrate this shortcoming, Waters plugged different sets of values into Tatos's statistical model. Waters first used values from the most recent OPS Reports, noting that the College's lawyers had described those figures as "the 'most accurate and up-to-date' data." Waters concluded that, "[b]y simply using [these values] instead of the [values] used by Mr. Tatos, I find that Mr. Tatos's model estimates [lost enrollments] of 588-a decrease of over 53% from 1,254-and this is without accounting for the unemployment rate." Waters also applied two other sets of numbers to Tatos's model: Tatos's data through 2007, which resulted in a calculation of 358 lost starts, and the OPS report data through 2007, which resulted in a calculation of 275 lost starts. In other words, Waters opined that (1) Tatos's model was flawed because it did not account for any change in the unemployment rate; and (2) even if not flawed in this manner, Tatos's model was too sensitive because it generated drastically different results when the input values were changed.

¶10 In response, the College submitted an updated expert report from Hoffman. Hoffman's updated report acknowledged that the values used in his original report were inaccurate. In his updated report, Hoffman noted that the College had "decided that the data used by Dr. Waters provided the most reasonable estimate of" the inquiry, interview, and enrollment figures. Hoffman therefore performed his calculations anew, starting with 588 lost enrollments and multiplying that by the same net per-student profit margin he had calculated before. In essence, Hoffman utilized the same numbers Waters had used to show that Tatos's model was oversensitive, but neither Waters nor Hoffman had independently verified the data set by checking against the raw numbers. On this basis, Hoffman re-estimated the College's lost profits at roughly $9.2 million.

¶11 After Hoffman submitted his updated report, both Kilbourne and Waters updated their expert reports as well. InContact's experts continued to disagree with the analysis and conclusions reached by Hoffman. Waters asserted, "[T]he analysis I put forward in [my first] report was done for the sole purpose of demonstrating the sensitivity of [the College's] findings. I did not, and still do not, consider [the College's expert's] model to be statistically reliable." Similarly, in his updated report, Kilbourne asserted,

[B]oth Dr. Waters and I identified data contained in [the OPS Reports] generated by [the College] in the normal course of their business that was substantially different from the data supplied to and relied upon by Mr. Hoffman. I did not opine, and I do not understand that Dr. Waters opined, that either data set was accurate or inaccurate, but rather that [the College] had produced multiple documents with conflicting data.

Kilbourne concluded that the integrity and accuracy of the data set relied on by both Tatos and Hoffman was questionable and that they had relied on irrelevant data in their analyses.

¶12 InContact moved to exclude Hoffman and Tatos as expert witnesses, along with their respective opinions. The district court held a hearing on the motion and noted inconsistencies in the data provided to and relied on by Tatos, stating, "[T]he regression analysis conducted by Mr. Tatos was not conducted reliably in this case because it was based on flawed data and insufficient data under Rule 702(b)." See Utah R. Evid. 702(b). The district court therefore "exclude[d] any testimony based upon the original data, including testimony from Mr. Tatos and testimony from Mr. Hoffman to the extent he relied upon Mr. Tatos'[s] work with the unreliable data."

¶13 Following the district court's order excluding the expert testimony based upon Tatos's original data, the case was assigned to a different judge who revisited that decision. Although no transcript of this hearing was included in the record on appeal, the parties agree the court sua sponte determined that it would reconsider the motion to exclude Tatos and Hoffman from trial. Two days later, inContact filed an objection to the court's decision to reconsider. On December 11, 2015, the court again held a hearing regarding the motion to exclude the College's expert witnesses.

¶14 At that hearing, inContact argued that "the data on which [the College] relied both in the first [report], but even in the second [report], is unreliable data." InContact highlighted Tatos's reliance on Barney's summary of the OPS Reports rather than the actual reports, but it also asserted that the underlying OPS Reports were "inherently unreliable." As an example, inContact noted that the data for a given month varied from report to report: "Then it happens again and again and again; and the numbers vary wildly. So those numbers become really problematic for making any kind of a reliable assessment. Which number do you take? Which operations report do you take [the number from]" to represent a particular month?

¶15 InContact also explained that its expert-Waters-lacked access to all of the College's data, and therefore he relied on the value reported in the most recent OPS Report for a given month. InContact stressed that Waters had not vouched for the reliability of the data and characterized his report as unreliable: " 'Even if you do [the analysis] with the numbers that [the College]' says are 'the most reliable numbers, it's either 588, 358, or 275 [lost starts.]' " And inContact pointed out that Waters's final opinion was that there were zero lost starts. Thus, according to inContact, both Tatos's and Hoffman's reports were based on inherently unreliable raw data.

¶16 The court conceded that "[i]n a case like this with business records kept the way they're kept, you're never going to have a perfect number, it seems, because of the rolling nature of the operation reports" but noted that "we don't have to have perfect numbers." The court stated that it could not rule on "whose regression analysis and methodology was better" because that was "an issue for the fact finder." Instead, the court framed the issue as whether the expert opinions of Tatos and Hoffman were reliable and, if not, the unreliability was "because [the experts] didn't use good data."

¶17 The court eventually ruled that inContact's arguments "go to the weight and credibility to be given to the opinions of [the College's] expert witnesses, not to the admissibility of those opinions." The court found that "the facts and data upon which [the College's] expert witnesses have relied are sufficiently reliable to satisfy the minimal threshold standard imposed by Rule 702 [of the Utah Rules of Evidence]. Although the facts and data may not be perfect, perfection is not required to satisfy Rule 702 's threshold standard." The court noted that it was the jury's role, not the court's, to determine the weight and credibility of the experts' opinions flowing from the data. The court therefore vacated its earlier order excluding Tatos's testimony, denied the motion to exclude Tatos's and Hoffman's testimony, and ruled that Tatos and Hoffman would be permitted to offer expert testimony during the trial. InContact sought interlocutory review, which this court granted.

ISSUE AND STANDARD OF REVIEW

¶18 InContact contends that, pursuant to rule 702 of the Utah Rules of Evidence, the district court erred or abused its discretion in not excluding Tatos's and Hoffman's opinions because those opinions were not based upon sufficient facts and data. We review a district court's decision as to the admissibility of expert witness testimony for an abuse of discretion and will not reverse that decision unless it exceeds the limits of reasonability. ConocoPhillips Co. v. Utah Dep't of Transp. , 2017 UT App 68, ¶ 12, 397 P.3d 772.

ANALYSIS

¶19 The district court initially excluded the expert opinion testimony of Tatos and Hoffman as "flawed" and "insufficient" to the extent those opinions rested on the results of Tatos's model based on his original data. See Utah R. Evid. 702(b). Following assignment of the case to a different judge, the district court reconsidered this decision and reversed course in a second ruling, determining instead that these expert opinions-though imperfect-would be admitted.

¶20 As an initial matter, we note that the district court's reconsideration of the expert witness issue was not inappropriate. "While a case remains pending before the district court prior to any appeal, the parties are bound by the court's prior decision, but the court remains free to reconsider that decision." IHC Health Services, Inc. v. D & K Mgmt., Inc. , 2008 UT 73, ¶ 27, 196 P.3d 588. And, two district court judges presiding over the same case, "while different persons, constitute a single judicial office." In re R.B.F.S. , 2012 UT App 132, ¶ 12, 278 P.3d 143 (quotation simplified). Thus, a district court judge may "revisit[ ] a previously decided issue during the course of a case, regardless of whether the judge has changed or remained the same throughout the proceedings" so long as the issue has not been raised before and ruled on by an appellate court. Mid-America Pipeline Co. v. Four-Four, Inc. , 2009 UT 43, ¶ 11, 216 P.3d 352.

¶21 We begin with the district court's second ruling: "The Court finds that the facts and data upon which [the College's] expert witnesses have relied are sufficiently reliable to satisfy the minimal threshold standard imposed by Rule 702." The expert witnesses referred to were Tatos and Hoffman. Because the only numbers used by Tatos were drawn from Barney's summary, we understand the court's statement to mean that non-expert, party-representative Barney's summary of the data, or a subset of that summary, prepared for this lawsuit, was a sufficient basis for the experts' testimony.

¶22 Rule 702(b) describes when certain expert opinion is admissible:

Scientific, technical, or other specialized knowledge may serve as the basis for expert testimony only if there is a threshold showing that the principles or methods that are underlying in the testimony
(1) are reliable,
(2) are based on sufficient facts or data, and
(3) have been reliably applied to the facts.

Utah R. Evid. 702(b). "Importantly, [ rule 702 ] require[s] the plaintiff to make only a threshold showing of reliability." Eskelson ex rel. Eskelson v. Davis Hosp. & Med. Center , 2010 UT 59, ¶ 12, 242 P.3d 762 (quotation simplified). This threshold "is not so rigorous as to be satisfied only by [methodology or data] that are free of controversy." Id. (quotation simplified); cf. State v. Woodard , 2014 UT App 162, ¶ 26, 330 P.3d 1283 (holding that one method of fingerprint analysis was sufficiently reliable to be admitted into evidence despite the existence of several competing methodologies and the lack of a nationwide standard method). While an expert may rely on his or her own interpretation of data that have a foundation in the evidence, even if the data is in dispute, the expert "cannot give opinion testimony that flies in the face of uncontroverted" facts or data. Eskelson , 2010 UT 59, ¶ 16, 242 P.3d 762 (quotation simplified). Thus, while a range of values for a given variable may be admissible under rule 702, there must be some evidence underpinning the values used by the expert.

¶23 Applying rule 702, district courts "act as gatekeepers to screen out unreliable expert testimony." State v. Lopez , 2018 UT 5, ¶ 20, 417 P.3d 116 (quotation simplified). The court, "view[ing] proposed expert testimony with rational skepticism," id. (quotation simplified), must determine whether the proponent has met the threshold showing that the method used is " 'generally accepted by the relevant expert community' " or that the "principles underlying [the expert's] testimony are 'reliable, based upon sufficient facts or data, and have been reliably applied to the facts,' " id. ¶ 22 (ellipses omitted) (quoting Utah R. Evid. 702 ).

¶24 As applied here, the data used by Tatos and Hoffman to generate their opinions must have some foundation indicating its reliability before the court may admit the data, the models developed from that data, or the interpreted results of the models. However, the College concedes that "the initial data provided to [Tatos and Hoffman] was mistakenly not derived entirely from OPS Reports and included certain inaccurate information." And on appeal, the College does not direct us to any evidence that the original data set used by Tatos to create his regression model was somehow reliable despite including inaccurate information.

¶25 The district court's ruling states that the data set given to Tatos was reliable. Now on appeal, however, even the proponent of Tatos's testimony admits that the data set "included certain inaccurate information." Because the College admits that the data given to Tatos contained some inaccurate values and did not identify any evidence rehabilitating the balance of those data, we cannot endorse the district court's conclusion that the data met the threshold of reliability required by rule 702. And Tatos does not claim that he in any way independently verified, even minimally, the accuracy of the data set Barney originally supplied. We therefore reject the district court's conclusion that simply assuming the reliability of Barney's summary endows the data with any degree of actual reliability. See, e.g. , Maddox v. Claytor , 764 F.2d 1539, 1552 (11th Cir. 1985) ("If the tested disparity is based on erroneous assumptions or suffers from flaws in the underlying data, then standard deviation analysis is foredoomed to yield an equally faulty result.").

¶26 Further, Tatos used unverified and summary data provided by Barney to create his regression model. The results of that analysis were also admitted by the district court. But the nature of regression analysis is such that a regression model based on flawed data will itself be flawed, because a "best fit" model that uses erroneous data may not reasonably approximate the actual values. See generally Franklin M. Fisher, Multiple Regression in Legal Proceedings , 80 Colum. L. Rev. 702, 704, 707 (1980) (discussing the process of regression analysis); Kevin Gilmartin & Elizabeth Hartka, Using Regression Analysis to Compute Back Pay , 31 Jurimetrics J. 289, 295-96, 298 (1991) (noting, as a pitfall of regression analysis, the design risk presented by "inclusion of tainted variables" and the fact that "an ill-designed regression model could result in an even more inequitable distribution of relief"); Michael J. Saks et al., 179 Annotated Reference Manual on Scientific Evidence (2d ed.), Reference Guide on Multiple Regression, at *15-16 (noting that multiple regression analysis assumes that the variables have been measured accurately and that inaccurate data will decrease the reliability of the results). The College never explained why Tatos's model, developed from erroneous and unreliable data, should nevertheless be considered reliable, even by the low bar set by rule 702. Rule 702 requires an expert's opinion to rest on "sufficient facts and data." Utah R. Evid. 702(b). Accordingly, we conclude that it was an abuse of discretion for the district court to admit Tatos's regression model and its results, because the model was developed from "certain inaccurate information."

¶27 We next consider whether Hoffman's opinions are admissible. Hoffman's initial opinion had two operative parts. First, Hoffman calculated the value of each lost start. Second, he calculated the total amount lost by multiplying the number of lost starts-estimated by Tatos to be 1,254-by the estimated amount lost per-lost-start. Hoffman later modified his damages opinion by substituting the number of lost starts from Waters's rebuttal opinion-588-for Tatos's original number. Because Hoffman relied on Waters's results, we must also consider Waters's conclusion.

¶28 Waters ran moderately different, hypothetical data through Tatos's statistical model and arrived at a number of lost starts that is less than half of Tatos's result. Due to the widely divergent results (1,254 and 588), Waters concluded that Tatos's statistical model itself was not reliable as it projected more dramatic results with only moderate changes to the input data. This also supported inContact's broader assertion that the original data did not support the proposition that the phone system caused any lost starts. Neither Waters nor inContact presented foundational evidence supporting the reliability of Tatos's statistical model. Indeed, the purpose for Waters's inputting new numbers through the model was to establish the model's complete unreliability. In modifying his expert opinion, Hoffman simply adopted the number of lost starts from Waters's calculation without any explanation other than acknowledging Waters had used them. No foundational evidence appears to have been presented regarding the reliability of Hoffman's opinion-specifically the statistical model's result that informs his conclusion-other than Hoffman's own statement that Waters's report provided "the most reasonable estimate" of the relevant data.

¶29 Because nothing in the record establishes that Hoffman has any expertise in regression analysis, there is no basis to conclude that Hoffman could determine whether Waters's report was a reasonable estimate, let alone "the most reasonable estimate." Indeed, Hoffman fails to acknowledge that Waters in no way endorsed the data he utilized as reliable. Instead, for only rhetorical purposes, Waters used data the College's lawyers-not its experts-had suggested was better than the previously inaccurate data. Accordingly, given the paucity of foundational support, we must conclude that the district court erred in determining that the College met the threshold showing of reliability required under rule 702(b) to admit Hoffman's expert opinion.

¶30 When the district court revisited its ruling, it determined that the second set of data-the set of numbers used by Waters in the rebuttal opinion showing the oversensitivity of Tatos's model-was sufficiently reliable to meet the threshold requirement under rule 702. Accordingly, the court admitted, without limitation, the expert opinion testimony of Tatos and Hoffman. This was error. The court's ruling implied that any regression analyses, models, or results based upon Waters's data critical of Tatos's model, satisfied rule 702. But, as we have explained, the court's determination that the data set was admissible pursuant to rule 702 was an abuse of discretion. It follows that it was improper to admit an expert opinion whose factual basis relied on the flawed data. Although the district court did not directly rule upon the admissibility of Hoffman's updated expert opinion, Hoffman's updated opinion is based upon flawed data and a correspondingly flawed statistical model. As a result, that opinion should have been excluded.

CONCLUSION

¶31 The district court abused its discretion by admitting Tatos's expert opinion and Hoffman's initial expert opinion, because those opinions were developed from a data set both parties acknowledge is unreliable. The district court also erred when it determined that the second set of numbers-Waters's assumed data-was sufficiently reliable to meet the threshold requirement of rule 702. We therefore vacate the district court's order and remand for further proceedings consistent with this opinion.

      California College Inc. does business as California College for Health Sciences and Independence University.

      Regression analysis is a statistical tool concerned with estimating the relationship between different variables and the influence of one variable on other variables. See Reed Constr. Data Inc. v. McGraw-Hill Cos. , 49 F.Supp.3d 385, 396-401 (S.D.N.Y. 2014) (providing a detailed explanation of regression analysis). For example, regression analysis may be used to test the predictive strength of snowfall on ski tourism.

      InContact notes that this amount of lost profits exceeds the amount of the College's actual annual profits before and during the Damage Period. In 2004, before the Damage Period, the College's profits were $4,263,322. In 2005, the profits were $1,223,191 and in 2006, the profits were $2,453,204.

      On appeal, the College concedes that "the initial data provided to [Tatos and Hoffman] was mistakenly not derived entirely from OPS Reports and included certain inaccurate information." For example, the numbers recorded in Barney's summary only matched the OPS Reports for two of the forty-six months between February 2005 and December 2008.

      InContact asserts, and we agree, that Waters was not opining that the newest OPS Reports were the most accurate or that Tatos's model, based on a regression analysis of inaccurate numbers, could generate accurate results so long as the right inputs were used.

      Several months after Hoffman's updated report, in response to inContact's Statement of Discovery Issues filed with the court seeking the production of the OPS Reports, the College asserted, "After reviewing its OPS reports, as well as the student data identified by Dr. Waters as coming from the most recent OPS reports, [the College] determined that the data pulled from the OPS reports by Dr. Waters, which reflects monthly student data from the most recent OPS reports, reflects the most accurate and reasonable data upon which to analyze [the College's] operating metrics."

      The court did not order Hoffman's exclusion as an expert witness. It determined that Hoffman's updated report, which relied in part on the values Waters used to discredit the initial report, was sufficiently reliable to be admitted into evidence. We address the apparent contradiction later in this opinion. Infra ¶¶ 27-29.

      The district court did not directly rule upon whether Hoffman's updated expert report was admissible. Instead, it determined that the data on which it relies-Waters's calculation-was sufficiently reliable. Because we conclude otherwise, we address the admissibility of Hoffman's updated report in order to provide direction to the district court and parties on remand.


text:
    Carol H. PETERSON, Appellee, v. Mark A. PIERCE and Julie D. Pierce, Appellants.
    No. 20160778-CA
    Court of Appeals of Utah.
    Filed March 28, 2019
    Dale B. Kimsey, Sandy, Attorney for Appellants
    Lewis P. Reece and Jonathan P. Wentz, St. George, Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and Diana Hagen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 Mark A. Pierce and Julie D. Pierce appeal from the judgment of the district court in favor of Carol H. Peterson, trustee of the Larry A. and Carol H. Peterson Family Trust. The district court determined that an easement existed for a joint driveway between the parties' properties and reformed the parties' deeds to rectify a mistake in the deeds. We affirm in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.

BACKGROUND

¶2 Appellants Mark A. and Julie D. Pierce and Appellee Carol H. Peterson, trustee of the Larry A. and Carol H. Peterson Family Trust, own adjacent properties in Millard County, Utah. Peterson acquired her property (Peterson Parcel) in July 1997. The Pierces acquired the property in which their home sits (Parcel 1) in June 1989, and property immediately to the west (Parcel 2) in May 1997 (collectively, the Pierce Parcel).

See infra Appendix. The Pierce Parcel and the Peterson Parcel were all previously owned under common ownership by Harold H. Hatton and Flora Allie G. Hatton, Peterson's parents and Julie Pierce's grandparents. The Peterson house is on the Peterson Parcel. This house was built in approximately 1975 by Harold Hatton after he had retired from farming, and he lived there until his death in 1996. The Pierces' house is located on Parcel 1 of the Pierce Parcel and was built in the late 1930s.

¶3 The Peterson Parcel is located directly north of the Pierce Parcel, and along the northern property line of the Pierce Parcel is a two-rutted lane (Two Rutted Lane) that has been in existence since the late 1930s and has been used as a joint driveway. Harold Hatton maintained the Two-Rutted Lane and used it as a driveway to access the west side of the property during his lifetime. At the time the Hattons, as trustees of the Harold H. Hatton Revocable Family Trust (Hatton Trust), conveyed Parcel 1 of the Pierce Parcel to the Pierces in 1989-and even after the line was surveyed and marked in 1997-nobody was clear about the exact boundary between the Pierce Parcel and the Peterson Parcel. Moreover, when the Hatton Trust conveyed Parcel 1 to the Pierces, there was a need to convey an additional seven feet of property by way of an easement for frontage so that Parcel 1 could be subdivided from the main parcel. The conveyance deed from the Hatton Trust to the Pierces contains an "Easement for Joint Driveway." Specifically, the Pierces' 1989 Warranty Deed states:

SUBJECT TO AND TOGETHER WITH an Easement for a joint driveway over and across the following described property: Beginning 70 feet North of the Southeast corner of Lot 7, Block 49, Plat A, Fillmore City Survey, thence North 7 feet; thence West 194 feet; thence South 7 feet; thence East 194 feet to the point of beginning.

¶4 The conveyance deed from the Hattons, as trustees for Parcel 2 of the Pierce Parcel, contains a similar "Easement for Joint Driveway." Specifically, the Pierces' 1997 Quitclaim Deed states:

SUBJECT TO AND TOGETHER WITH an Easement for a joint driveway over and across the following described property: Beginning 194 feet West and 70 feet North of the Southeast corner of Lot 7, Block 49, Plat A, Fillmore City Survey, thence North 7 feet; thence West 139.5 feet; thence South 7 feet; thence East 139.5 feet to the point of beginning.[ ]

¶5 However, the district court found the inclusion of the "joint driveway" language in the deeds was in error. Given the historic use of the Two Rutted Lane, and the need to use it to access the west portion of the Peterson Parcel, the court found that Harold and Allie Hatton intended to convey a seven-foot easement to the Pierces solely for frontage, and the Hattons intended to reserve the use of the Two Rutted Lane as the joint driveway. The court further found that the Pierces were aware that the south seven feet of the Peterson Parcel was for frontage purposes and the Two Rutted Lane was to be kept and preserved as a joint driveway.

¶6 Following the death of Harold and Allie Hatton in 1996, Lynn Hatton and Betty Jo Dunnell became the successor trustees to the Hatton Trust. In connection with the sale of the Peterson Parcel to Peterson, the Hatton Trust requested a survey of the property. The survey was not completed until after Peterson purchased the Peterson Parcel. And, even after the survey flags had been placed, the dispute about the actual boundaries of the property remained unresolved.

¶7 Peterson's deed is "SUBJECT TO all easements, reservations, restrictions and rights-of-way of record or which may be ascertained from an inspection of the property." Peterson took title to the Peterson Parcel with the full expectation that she would have access to the west of her property by using the Two Rutted Lane, and she did in fact use it as a joint driveway as often as she needed, and she cared for it as if it were her own property. Though there was a continuing dispute between the Petersons and the Pierces, Peterson was able to access the west portion of the Peterson Parcel by using the Two Rutted Lane until the Pierces constructed a fence on the north edge of their property in July 2013. Without the use of the Two Rutted Lane, Peterson had great difficulty accessing the west portion of her property. Peterson brought suit after the fence was erected. After a five-day bench trial, the district court entered judgment in favor of Peterson.

¶8 Finding sufficient evidence of a mutual mistake in the deeds as to the description of the joint driveway and seven-foot frontage, the district court reformed each of the relevant deeds to reflect "that the joint driveway is not the seven foot strip north of [the Pierces'] property. Rather it is the Two Rutted Lane." The Pierces appeal.

ISSUES AND STANDARDS OF REVIEW

¶9 First, the Pierces contend that Peterson's claims were untimely and the district court erred in determining that her claims were not barred by the statute of limitations or the doctrine of laches. "The application of a statute of limitations is a legal determination, which we review for correctness." Griffin v. Cutler , 2014 UT App 251, ¶ 14, 339 P.3d 100. To the extent that a statute of limitations analysis involves subsidiary factual determinations, we review those determinations for clear error. Id. "Whether laches applies is a question of law, which we review for correctness." Veysey v. Nelson , 2017 UT App 77, ¶ 5, 397 P.3d 846. "The application of laches to a particular set of facts and circumstances presents a mixed question of law and fact." Id. (quotation simplified). "Within that framework, we review the [district] court's conclusions of law for correctness and will disturb its findings of fact only if they are clearly erroneous." Id. (quotation simplified).

¶10 Second, the Pierces contend that the district court misinterpreted "key deed language" and the court therefore erred when it found that there was a mutual mistake warranting reformation of the deeds. "Reformation of a deed is a proceeding in equity." RHN Corp. v. Veibell , 2004 UT 60, ¶ 35, 96 P.3d 935 (quotation simplified). "[T]he proper standard of review for a [district] court's findings of fact for cases in equity is the same as for cases at law, namely the clearly erroneous standard. Moreover, in both equity and law, we review the [district] court's conclusions of law for correctness." Id.

¶11 Third, the Pierces contend that the district court erred in awarding attorney fees to Peterson. "The award of attorney fees is typically a matter of law, which we review for correctness." Paul deGroot Bldg. Servs., LLC v. Gallacher , 2005 UT 20, ¶ 18, 112 P.3d 490. However, "where the fees are predicated upon findings of fact, ... we review the award of fees for an abuse of discretion." Id.

ANALYSIS

I. Timeliness of Action

¶12 The Pierces contend that the district court failed to apply the relevant statute of limitations and the doctrine of laches that would bar Peterson's claims. We address these arguments in turn.

A. Statute of Limitations

¶13 The Pierces first assert the district court "misapplied statutes relating to mutual mistake," specifically, the applicable statute of limitations. The Pierces relatedly argue that Peterson failed to timely bring her reformation claims.

¶14 Utah Code section 78B-2-305 provides, in relevant part, "An action may be brought within three years: ... for relief on the ground of fraud or mistake; except that the cause of action does not accrue until the discovery by the aggrieved party of the facts constituting the fraud or mistake." Utah Code Ann. § 78B-2-305(3) (LexisNexis 2012).

¶15 The district court observed that Peterson "or her predecessor could have brought a claim to reform the deed after discovering the survey line between the Peterson Parcel and Parcels 1 and 2." But the court found that Peterson's predecessor, Larry Peterson, had "clearly claimed that he had an absolute right to use the joint driveway as though it belonged to both [the] Petersons and [the] Pierces." Given that the Petersons had continued to use the Two Rutted Lane "as though they had an absolute right to use the same" and that the Pierces "did not block that right in any permanent or real way until they put up the fence in the summer of 2013," the district court concluded that the three-year statute of limitations did not begin to run until the summer of 2013. For the same reason, the court determined that Peterson's claim was not barred by the doctrine of laches. Infra ¶¶ 21-24.

¶16 Based on section 78B-2-305(3), the Pierces assert that "[the] Hattons and Petersons had three years to bring [an] action after discovery of the facts constituting mistake." Relying on the district court's finding that Peterson "or her predecessor could have brought a claim to reform the deed after discovering the survey line, in 1997," the Pierces claim that "it is clear that the [district] court erred in allowing Peterson['s] claim of mutual mistake." In other words, the Pierces' claim that the three-year statute of limitations began to run in 1997, when the survey conducted in connection with the sale of the Peterson Parcel to Peterson was completed. But as Peterson correctly observes, the Pierces' "citation to the [district] court's analysis in this regard is incomplete." Indeed, the Pierces virtually ignore the district court's findings and focus only on evidence favorable to them.

¶17 Relevant here, the district court found:

(1) Mark Pierce told the surveyor that the purpose of the seven-foot easement north of Parcel 1 was for frontage.
(2) Julie Pierce testified that the seven-foot easement was never used as a joint driveway and that the purpose of the seven-foot easement was for frontage only.
(3) Although Mark Pierce testified that the surveyor placed survey flags on the corners, there was no evidence the flags were placed in such a way that an ordinary person would understand the purpose of their location.
(4) When Mark Pierce and Larry Peterson met to discuss the survey, Larry Peterson did not agree with Mark Pierce as to the property line.
(5) The Petersons, as well as their grantors, the trustees of the Hatton Trust, understood that the Two Rutted Lane was the joint driveway referenced in the Pierces' deeds.
(6) The Petersons took title to the Peterson Parcel "with the full expectation and reliance" that they would have access to the western end of the property through the Two Rutted Lane.
(7) The Petersons used the Two Rutted Lane as often as needed and cared for it as if it was their own property.
(8) Mr. Peterson mowed the grass strip between the two ruts. The Petersons' son continued this practice after Mr. Peterson died.
(9) Every fence surrounding the original Hatton Trust parcel was several feet off from the survey line.
(10) The only "established" common driveway between the Peterson Parcel and Parcel 1 that was actually used as a common driveway was the Two Rutted Lane.
(11) After Mr. Hatton died and the Petersons received the Peterson Parcel, the Petersons regularly used the Two Rutted Lane without asking for permission from the Pierces.
(12) The Petersons' son frequently used the Two Rutted Lane, and he helped maintain it after Mr. Peterson died.
(13) Although the Pierces attempted to prevent the Petersons from using the Two Rutted Lane after Mr. Peterson's death, these attempts were unsuccessful until the Pierces constructed a fence on the northern edge of their property (Parcel 1) in July 2013.
(14) The Hattons understood that the joint driveway was the Two Rutted Lane, and neither the Hattons nor the Pierces knew the correct boundary line between the properties.

¶18 In sum, the district court ultimately concluded that Peterson claimed that they had an absolute right to use the Two Rutted Lane, that they used it as often as they needed, and that the Pierces were unsuccessful in blocking that right in any permanent or real way until they erected a fence in the summer of 2013.

¶19 "To demonstrate clear error in the [district] court's factual findings, the appellant must overcome the healthy dose of deference owed to factual findings by identifying and dealing with the supportive evidence and establishing a legal problem in that evidence." Sandusky v. Sandusky , 2018 UT App 34, ¶ 25, 417 P.3d 634 (quotation simplified). In order to meet this burden, a party must do more than "simply list[ ] or rehash[ ] the evidence and arguments [it] presented during trial or by merely pointing to evidence that might have supported" a more favorable outcome. Id. (quotation simplified). Instead, a party "must identify flaws in the evidence relied on by the [district] court that rendered the [district] court's reliance on it, and the findings resulting from it, clearly erroneous." Id. (quotation simplified).

¶20 Here, the Pierces do not adequately address the district court's factual findings supporting its conclusion that the statute of limitations did not begin to run until the summer of 2013. Instead, they focus on a single statement by the district court-that Peterson "or her predecessor could have brought a claim to reform the deed after discovering the survey line, in 1997"-to support their statute of limitations argument. This is not sufficient. The Pierces cannot carry their burden of persuasion merely by pointing to evidence that might have supported findings more favorable to them. Rather, they "must identify flaws in the evidence relied on by the [district] court that rendered the [district] court's reliance on it, and the findings resulting from it, clearly erroneous." Id. (quotation simplified). They have not done so, and as a result, they have not carried their burden to show error in the district court's decision regarding the statute of limitations.

B. Laches

¶21 The Pierces next contend that the district court "misapplied the doctrine of laches." They assert that "[d]uring the ensuing years after the deeds, [they] improved the land, installed underground electrical lines, remodeled their home, and retired on disability in 2007." According to the Pierces, they "rearranged the property to suit their changes of circumstance, having relied on the notion that the easement was located on [the Peterson Parcel] according to the deed language." They assert that "[l]aches bars recovery by plaintiffs, such as Peterson here, for undue delay in seeking relief" and that they would "suffer immensely from their detrimental reliance."

¶22 "The equitable doctrine of laches is founded upon considerations of time and injury. Laches in legal significance is not mere delay, but delay that works a disadvantage to another." Insight Assets, Inc. v. Farias , 2013 UT 47, ¶ 17, 321 P.3d 1021 (quotation simplified). "Laches has two elements: (1) a party's lack of diligence and (2) an injury resulting from that lack of diligence." Id. ¶ 19 (quotation simplified). Thus, "to successfully assert a laches defense, a defendant must establish both that the plaintiff unreasonably delayed in bringing an action and that the defendant was prejudiced by that delay." Veysey v. Nelson , 2017 UT App 77, ¶ 8, 397 P.3d 846 (quotation simplified). The Pierces have failed to do so here.

¶23 Although the Pierces claim that Peterson unreasonably delayed in filing her action, this assertion ignores the district court's findings. As previously discussed, the district court determined that despite the 1997 survey, Larry Peterson "clearly claimed that he had an absolute right to use the joint driveway as though it belonged to both [the] Petersons and [the] Pierces" and that the Petersons continued to use the Two Rutted Lane "as though they had an absolute right to use the same" until the Pierces erected a fence in the summer of 2013. Indeed, the record demonstrates that the Petersons used the Two Rutted Lane as often as necessary, without seeking permission from the Pierces, and that they worked to maintain the Two Rutted Lane as if it were their own property. Peterson filed suit in October 2013, within a few months after the Pierces erected the fence on the northern boundary of their property that blocked access to the Two Rutted Lane. Thus, we are not persuaded by the Pierces' undue-delay argument.

¶24 Moreover, although the Pierces claim they made improvements to the land and "rearranged the property to suit their changes of circumstance," apart from their general assertion that they will "suffer immensely from their detrimental reliance," the Pierces have failed to explain with any specificity how they were prejudiced by Peterson's alleged undue delay in bringing suit. See id.

II. Mutual Mistake and Deed Reformation

¶25 The Pierces contend that the district court erred when it found that there was a mutual mistake warranting reformation of the deeds. "Reformation of a deed is appropriate where the terms of the written instrument are mistaken in that they do not show the true intent of the agreement between the parties." RHN Corp. v. Veibell , 2004 UT 60, ¶ 36, 96 P.3d 935 (quotation simplified). Mutual mistake of the parties provides a ground to seek the equitable remedy of reformation. Id. This case involves a mutual mistake by the parties to the original deeds (namely, the Hattons and the Pierces).

¶26 "Mutual mistake of fact may be defined as error in reducing the concurring intentions of the parties to writing." Id. ¶ 37 (quotation simplified). Upon a showing of mutual mistake, the intent of the parties controls the reformation of a deed. Id. ¶ 38. And "[e]xtrinsic evidence is admissible to assist in determining the intent of the parties." Id.

¶27 The Pierces contend that the district court erred in finding that the parties to the original deeds-the Hattons and the Pierces-intended the "joint driveway" language in the Pierces' deeds to refer to the Two Rutted Lane rather than the seven-foot frontage and in reforming the deed to conform with that intent. But this is not exactly what the district court found.

¶28 Based upon the evidence submitted at trial, the district court determined that when the Hattons originally conveyed Parcel 1 to the Pierces in 1989, "there was a need to convey an additional seven (7) feet by way of an easement so that Parcel 1 could be subdivided from the main parcel" and that "all parties understood that this frontage requirement was the purpose of and reason for the seven foot easement north of Parcel 1." "The purpose was not for the joint driveway, and inclusion of the joint driveway language in [the deed] in that seven [foot] easement was a scrivener's error." The court further found that the Hattons "intended the seven foot easement solely for frontage, and that they believed they expressly reserved use of the Two Rutted Lane ... as the joint driveway."

In addition, the court found that the Pierces were equally aware that the seven-foot easement was only for frontage purposes and that the Two Rutted Lane "was to be kept and preserved as a joint driveway." The court determined that the fact that the deed for Parcel 2 "reiterated the south seven feet of the Peterson Parcel as the joint driveway" was "nothing but a perpetuation of the scrivener's error originating in the deed to Parcel 1."

¶29 The district court observed that the deeds to Parcels 1 and 2 make the conveyances to the Pierces "subject to" the joint driveway. The court noted that the "subject to" language "would have been entirely unnecessary if the parties to those deeds had understood the location of the property line and that the joint driveway was the south seven feet of the Peterson Parcel as the Pierces now argue." The court determined that neither the Hattons nor the Pierces intended the south seven feet of the Peterson Parcel to be the joint driveway. Rather, the court concluded, "the existence of the joint driveway or rutted lane, in essentially the same spot for over 50 years and used by both predecessors and [the Petersons and the Pierces], shows that when the parties to the deeds said 'joint driveway' in the deeds, they clearly referred to the Two Rutted Lane they were using."

¶30 Based on its conclusion that the parties intended the "joint driveway" language in the deeds to refer to the Two Rutted Lane, the district court ordered a survey to locate the center of the Two Rutted Lane and granted the Petersons an easement to use "five feet on each side of the center line for a total of ten feet." The court then directed that the relevant deeds be reformed "to clarify that the joint driveway is not the seven foot strip north of [the Pierces'] property. Rather, it is the Two Rutted Lane."

¶31 The Pierces next assert that there was no mutual mistake between the parties. According to the Pierces, there was "no misconception in the deed as to the location or size of the easement." We are not persuaded.

¶32 This argument ignores the district court's findings. Specifically, the district court found that the Hattons and the Pierces "were not clear on the boundary between the Peterson Parcel to the north and Parcels 1 and 2 to the south." While Mr. Pierce testified that the boundary "was by the telephone pole to the east and at about to the southeast corner of the Starley fence on the west," "on cross examination[ ] it was clear that the west end of that boundary (the Northwest corner of Parcel 1) was roughly 25 to 30 feet away from the southeast corner of the Starley fence." Thus, the district court was persuaded that the parties considered "the southeast corner of Parcel 1 to be where the fence and the cement marker, which is 4.5 feet south of where the survey line is." The court was also persuaded that "neither Harold Hatton nor [the Pierces] knew where the survey line actually was for the boundary between the Peterson Parcel and Parcels 1 and 2, and that this remained unknown until after Harold Hatton's death and until the line was surveyed and subsequently marked in the fall of 1997." The court further found that even after the survey was completed, there was still "confusion between the parties as to the precise location of the property line" and that "[e]very fence surrounding the original Hatton Family Trust parcel (Parcel 1, Parcel 2 and the Peterson Parcel) is several feet off from the survey line." The court determined that all of the parties intended the seven-foot easement described in the deeds to be for frontage and that the parties believed the Hattons had expressly reserved use of the Two Rutted Lane as the joint driveway referenced in the deeds.

¶33 Ultimately, the court concluded that the evidence of a mutual mistake was "abundant." The court determined that the legal description in the deeds "does not match the actual boundaries of the rutted lane or joint driveway as it was used prior to and at the time of conveyance," and that the "4.5 feet discrepancy on the southern border of Parcel 1 per 1997 survey" supported the claim of mutual mistake. In addition, the fact that the actual easement described in the deeds (on the Peterson Parcel) was never used by the parties as a joint driveway further supported a mutual mistake by the parties.

¶34 Given the existence of the "joint driveway or rutted lane, in essentially the same spot for over 50 years [that was] used by both predecessor and the parties," the court concluded that when the parties to the deeds said "joint driveway" in the deeds, they were referring to the Two Rutted Lane. The Pierces have failed to adequately challenge the court's findings of fact and conclusions of law on this point.

¶35 The Pierces also assert that the phrases "subject to" and "joint driveway" are vague and that the district court incorrectly relied on those phrases instead of the metes and bounds description of the easement. As to their vagueness argument, the Pierces have failed to provide any analysis of this assertion. And, as Peterson correctly observes, the "metes and bounds description [in this case] simply does not describe the 'joint driveway' that the parties intended." Indeed, as the district court observed, if the Hattons and Pierces had understood the joint driveway to be on the Peterson Parcel, as the Pierces now argue, the "subject to" language in the deeds would have been unnecessary.

¶36 We do acknowledge that there appear to be some inconsistencies between the district court's findings of fact and conclusions of law and the language the court used in the reformed deeds. The Pierces note that "[i]f Appellants and Appellee agree that frontage was the purpose of the easement, and that the easement was intended to be seven feet, it is unclear how the [district] court could conclude the easement to be on Parcel 1 and ten feet wide." We agree that this is unclear. But a close reading of the district court's factual findings reveals that the original parties to the deeds intended to create two separate easements, and we agree with the district court on this point. But we find fault in the district court's failure to distinguish between the two easements in its reformation. First, the district court found that Hatton intended to include a seven-foot easement for frontage burdening the Peterson Parcel so that Parcels 1 and 2 could be subdivided from the main parcel. This easement was particularly described in the original deeds. Second, the court found that Hatton reserved for the Peterson Parcel a joint-driveway easement burdening the Pierce Parcel for the continued use of the Two Rutted Lane.

¶37 While a district court's factual findings can sometimes be unclear, the fact that two findings appear inconsistent "does not necessarily vitiate the judgment based thereon." Wilkin v. O'Brien , 53 Utah 1, 176 P. 853, 856 (1918). When faced with inconsistent findings of fact, we must ask whether "the findings as a whole indicate what the court intended, and from them, considered as a whole, can the intention of the court be satisfactorily determined?" Id. Although there are a few points of confusion, the district court's intentions in its deed reformation can satisfactorily be determined by assessing the district court's findings of facts and conclusions of law as a whole.

¶38 As previously stated, the district court found "by clear and convincing evidence" that the Hattons and the Pierces understood that providing frontage was the "reason for the seven foot easement north of Parcel 1." That easement "was not for the joint driveway, and the inclusion of the joint driveway language ... was a scrivener's error." The district court also found that "when the parties to the deeds said 'joint driveway' in the deeds, they clearly referred to the Two Rutted Lane they were using." Taking these two findings in isolation, it appears the court's findings are inconsistent as the court seems to state that the joint driveway language is both a scrivener's error and evidence of the intent of the parties. But, looking at the broader context of the court's findings of fact, it is apparent that Peterson was "seek[ing] to reform [the deeds] such that [the] 'joint driveway' description is no longer confused with the seven foot easement north of [the Pierces'] property." The court then ordered the deeds to "be reformed to clarify that the joint driveway is not the seven foot strip north of [the Pierces'] property. Rather, it is the Two Rutted Lane." The court further directed that "the Two Rutted Lane be surveyed, that the center be located, and that [Peterson's] and her successor's right to use the Two Rutted Lane should be five feet on each side of the center line for a total of ten feet."

¶39 However, the district court did not expressly order that the seven-foot frontage easement was to be included in the reformed deeds. We agree with the Pierces that the district court erred in describing only a ten-foot easement that burdens the Pierce Parcel when both parties agreed there was also a seven-foot easement burdening the Peterson Parcel for frontage. The district court acknowledged that the seven-foot frontage easement described in the original deeds but omitted a description of it in the reformed deeds. Neither party disputes the existence of this easement. While the district court's findings at times may appear inconsistent "a reasonably careful analysis, with the view of ascertaining their meaning, renders them sufficiently intelligible to support the judgment of the court." Wilkin , 176 P. at 856.

¶40 In sum, the record amply demonstrates that the parties intended that the Peterson Parcel be burdened by an easement for frontage, that the "joint driveway" language in the deeds refers to the Two Rutted Lane, and that there was a mutual mistake by the parties in reducing their intentions to writing. Consequently, reformation of the deeds to reflect the parties' actual intentions was an appropriate action. However, the district court's omission of language in the reformed deeds recognizing the frontage easement has created confusion that needs to be remedied. Accordingly, we vacate the district court's order reforming the deeds and we remand this issue to the district court to reform the deeds to correctly recognize the seven-foot easement for frontage in addition to the easement for the Two Rutted Lane.

III. Attorney Fees Under the Lis Pendens Statute

¶41 The Pierces next contend that the district court erred by awarding Peterson attorney fees.

¶42 Utah Code section 78B-6-1303 provides that "[e]ither party to an action affecting the title to, or the right of possession of, real property may file a notice of the pendency of the action with the county recorder." Utah Code Ann. § 78B-6-1303(1) (LexisNexis 2012). The Utah Code provides that parties affected by the lis pendens "may make a motion to the court in which the action is pending to release the notice." Id. § 78B-6-1304(1) (LexisNexis 2012). "A court shall order a notice released if," after receiving the motion, "the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim that is the subject of the notice." Id. § 78B-6-1304(2). "A court shall award costs and attorney fees to a prevailing party on any motion under this section unless the court finds that : (a) the nonprevailing party acted with substantial justification; or (b) other circumstances make the imposition of attorney fees and costs unjust." Id. § 78B-6-1304(6) (emphasis added).

¶43 Here, after she filed her complaint, Peterson filed a lis pendens on Parcels 1 and 2. On September 5, 2014, the Pierces filed a motion to release the lis pendens and requested attorney fees pursuant to section 78B-6-1304. Peterson filed an opposition, in which she requested attorney fees pursuant to the same section of the Utah Code. Ultimately, the district court held a hearing on the matter and determined that the Pierces' motion to release the lis pendens would be heard at trial.

¶44 After trial, the district court determined that Peterson's lis pendens was "properly filed." Observing that both parties had requested an award of attorney fees and costs pursuant to Utah Code section 78B-6-1304(6), the court awarded Peterson her attorney fees and costs "insofar as those attorney[ ] fees and costs were incurred to defend against [the Pierces'] Motion to Remove the Lis Pendens, and establish [Peterson's] claim for an easement and mutual mistake." Thus, the court awarded Peterson her attorney fees incurred after September 5, 2014. The court directed Peterson's attorney to "submit an affidavit of attorney[ ] fees and costs consistent with the rules, allowing [the Pierces]

to review and otherwise object to the same before submitting them to the Court. If there is an objection, the Court may set the matter for further hearing and issue a final decision."

¶45 Consistent with the district court's order, Peterson's counsel submitted an affidavit and a partially redacted billing history detailing Peterson's attorney fees and costs incurred in defending against the Pierces' motion to remove the lis pendens. The Pierces did not object to or challenge the affidavit, nor did they request a hearing on the issue of attorney fees.

¶46 On appeal, the Pierces first claim that they were "unaware the [district] court was considering their motion to remove lis pendens as determinative of an award to Peterson for attorney fees from the entire case." As Peterson correctly observes, however, the district court did not award her attorney fees for the entire case; rather, the court awarded attorney fees from the time the Pierces filed their motion to release lis pendens-September 5, 2014-until the end of trial.

¶47 The Pierces also claim that they "had no opportunity to raise this issue during trial." But the Pierces themselves requested attorney fees in bringing their motion to release the lis pendens, and they also requested attorney fees in their opening statement at trial. Thus, the Pierces' claim that they did not have the opportunity to raise the attorney fees issue at trial is not well taken. Moreover, and perhaps more importantly, in awarding Peterson attorney fees, the district court provided that the Pierces would have an opportunity to review and object to Peterson's affidavit of attorney fees before submission to the court. The court stated that if the Pierces had an objection to Peterson's affidavit, it would set the matter for a hearing. But as previously noted, the Pierces did not object to or challenge Peterson's affidavit, nor did they request a hearing on the issue of attorney fees. Consequently, we conclude that the Pierces waived any objection to Peterson's affidavit when they failed to object or request a hearing on the matter as provided for by the district court. See 438 Main St. v. Easy Heat, Inc. , 2004 UT 72, ¶ 51, 99 P.3d 801 (stating that "[i]ssues that are not raised at trial are usually deemed waived").

¶48 Lastly, the Pierces claim that the district court "erroneously" awarded attorney fees to Peterson. Utah Code section 78B-6-1304(6) (LexisNexis 2012) provides that "[a] court shall award costs and attorney fees to a prevailing party on any motion under this section unless the court finds that : (a) the nonprevailing party acted with substantial justification; or (b) other circumstances make the imposition of attorney fees and costs unjust." Utah Code Ann. § 78B-6-1304(6) (emphases added). Here, the district court made no express findings as to whether the Pierces had acted with "substantial justification" or whether "other circumstances made the imposition of attorney fees and costs unjust," and we therefore presume that the district court did not find these considerations to be present. See id. § 78B-6-1304(8). Although the Pierces assert that the district court "should not have awarded any fees unless Peterson[ ] demonstrated that [the] Pierces lacked any 'substantial reason' to make the motion," they have failed to support that proposition with any authority or to otherwise demonstrate that the burden was on Peterson to prove that the Pierces had acted without substantial justification in moving to release the lis pendens. Accordingly, the Pierces have failed to carry their burden of persuasion on appeal. And in any event, if the Pierces had any objection to the district court's award of attorney fees to Peterson, they had ample opportunity to object and request a hearing in the district court.

¶49 In sum, the Pierces have failed to demonstrate that the district court incorrectly awarded attorney fees to Peterson or that the district court abused its discretion regarding the amount of attorney fees awarded.

IV. Attorney Fees on Appeal

¶50 Peterson seeks an award of her attorney fees incurred on appeal. "When a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal."

Austin v. Bingham , 2014 UT App 15, ¶ 33, 319 P.3d 738 (quotation simplified). As both parties have partially prevailed on appeal, we accordingly decline to award Peterson her fees incurred on appeal.

CONCLUSION

¶51 We affirm the district court's ruling that mutual mistake by the original parties to the deeds necessitated that those deeds be reformed. But because the district court did not include a description of the seven-foot frontage easement, we vacate the court's order reforming the deeds. We remand for the district court to reform the deeds to include language that expressly recognizes the seven-foot frontage easement on the Peterson Parcel in addition to the easement for the Two Rutted Lane.

APPENDIX

Note: This diagram is not drawn to scale and is provided only for illustrative purposes.

      The Pierces actually received two deeds in May 1997 for Parcel 2. The first deed, an unrecorded special warranty deed, incorrectly described the east-west distance of the lot and the easement. The Hatton Trust subsequently conveyed a quitclaim deed to Parcel 2, containing the correct distance of 139.5 feet.

      The Pierces also argue that the district court misapplied a statute of repose. This issue has been inadequately briefed, obviating the need to address the applicable standard of review. Cheek v. Clay Bulloch Constr. Inc. , 2016 UT App 227, ¶ 14 n.3, 387 P.3d 611. We further decline to address the merits of this issue on appeal. See Smith v. Smith , 1999 UT App 370, ¶ 8, 995 P.2d 14.

      The district court concluded, in the alternative, that Peterson had acquired an easement by implication or an easement by necessity to use the Two Rutted Lane, and the Pierces also challenge these conclusions on appeal. Because the district court correctly determined that a mutual mistake had occurred, and that the mistake necessitated reformation of the deeds, we do not need to reach these issues.

      Peterson filed suit in October 2013.

      As part of this argument, the Pierces assert that the Hattons "recorded the Parcel [1] deed with a right of first refusal [for] Parcel [2] on June 13, 1989." Citing Utah Code section 57-4a-2, the Pierces then assert that "[a] recorded document imparts notice of [its] contents despite any defects and a recorded easement deed, from the time of recording, imparts notice of any questions regarding the easement." To adequately brief an argument, the appellant's brief "must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal." Utah R. App. P. 24(a)(8). An argument is inadequately briefed "when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court."CORA USA LLC v. Quick Change Artist LLC , 2017 UT App 66, ¶ 5, 397 P.3d 759 (quotation simplified). Such is the case here-analysis of section 57-4a-2 and its application to the facts of this case are wholly lacking. We therefore decline to address this argument.

      The district court heard expert testimony that ten feet is a reasonable width for use of the Two Rutted Lane. The width is also consistent with the historical use of the Two Rutted Lane.