Kim G. Hicken, John T. Hicken, Diane L. Hicken, and Tom Hicken, Appellants and Cross-appellees, v. Dylan Tim Van Wagoner and Mary Ann Giles, Appellees and Cross-appellants, (2026)

Opinion

¶1 This case stems from a boundary and easement dispute in Wallsburg, Utah. Kim, John, Diane, and Tom Hicken (collectively, the Hickens) sought to adjust the property line between their parcels and a parcel owned by Dylan Tim Van Wagoner and his mother, Mary Ann Giles (collectively, the Van Wagoners). The Hickens also sought a prescriptive easement across the Van Wagoners’ parcel, primarily for their agricultural equipment.

¶2 At a pretrial conference, the parties notified the court that they had signed a settlement agreement and would not need to go to trial. Sometime later, however, the Hickens viewed the settlement agreement as unenforceable and refused to comply with it. The district court granted three motions to enforce the settlement agreement filed by the Van Wagoners and awarded attorney fees for two of the motions. The Hickens now appeal those rulings, asserting that the settlement agreement is not an enforceable contract and that attorney fees were improperly awarded. On cross-appeal, the Van Wagoners challenge the district court's denial of attorney fees on the third enforcement order. Because questions of fact remain regarding essential terms—namely, the location and width of the easement—we reverse the court's orders enforcing the settlement agreement, vacate the awards of attorney fees, and remand the case to the district court for further proceedings consistent with this opinion.

BACKGROUND

The Property

¶3 The Hickens and the Van Wagoners own adjacent lots in Wallsburg, Utah. In 2017, the Hickens initiated this action against the Van Wagoners’ predecessors-in-interest to obtain a prescriptive easement across the property now owned by the Van Wagoners and an adjustment in the property line between the parties’ parcels.

¶4 The Van Wagoners’ property is a narrow parcel with its north-to-south length greater than its east-to-west width. The parcel is bordered on the east by the Hickens’ property and on the south by Main Canyon Road.

¶5 The Hickens’ property comprises several parcels. The larger northern parcel and smaller southern parcels are divided by 100 North, a gravel road that runs east to west between these parcels. The single-lane road lies between fences approximately thirty-five feet apart. It turns approximately 90 degrees on the property line between the Hickens and the Van Wagoners and ends at Main Canyon Road. The Hickens allege they have a prescriptive easement across the Van Wagoners’ property beginning on the eastern boundary where 100 North turns and ending on the western boundary before it intersects with Main Canyon Road.

¶6 The Hickens also dispute the north-to-south boundary line between their property and the Van Wagoners’ property. According to the Hickens, the boundary is marked by an old fence line. But the Van Wagoners assert that a survey recorded in 2016 shows the correct boundary. The difference between the boundary versions varies from two feet on the north to fifteen feet on the south.

Pretrial Negotiations

¶7 The case was set for trial in January 2023, but as the trial date drew closer, counsel for the parties began conferring about settlement. Gary McGinn represented the Hickens, and Edwin Barnes represented the Van Wagoners. On December 12, 2022, McGinn emailed a draft stipulation—in pleading form with a full caption and certificate of service—to Barnes. That same morning, Barnes edited the draft and emailed it back to McGinn. In response, McGinn emailed that Barnes's “changes look[ed] good” and he would run them by his clients. In the afternoon, Barnes emailed in response, “If your folks will pay for the survey, we're done.” He then offered to clean up the stipulation, sign it, and send it back to McGinn, concluding that they “should let the court know the case ha[d] been settled.” McGinn emailed in reply, “I think we are done. If you would go ahead and clean it up and send it to me[,] that would be great.” When Barnes received that email, he called McGinn, who confirmed that Barnes's changes were acceptable to the Hickens. Barnes then signed the stipulation (the Settlement Agreement) and attached it to an email, stating, “I trust this will conclude my involvement in this matter except for reporting the settlement to the judge tomorrow and reviewing the completed survey and boundary agreement.” Approximately twenty minutes later, McGinn replied, “Thanks for all your help. I think we are done except for the survey and the boundary agreement.”

¶8 At the pretrial conference the following day, McGinn and Barnes notified the court of the Settlement Agreement. Barnes stated they had “signed a stipulation,” he believed “all of the issues involving [his] client[s] ha[d] been resolved,” and his clients “would not participate in the trial.” McGinn, for his part, stated the Hickens planned to “do a survey” to “get the boundary lines right and the easements correct,” “not just because of issues with the [Van Wagoners], but also with [a party not involved in this appeal] and with the town of Wallsburg.” Based on the representations made by both parties’ counsel, the court canceled the trial and scheduled a status hearing for the end of January.

The Settlement Agreement 1

¶9 The Settlement Agreement states, in relevant part, that the “Parties agree to compromise and settle this lawsuit” as follows:

1. The boundary line between the [Hickens’] properties on the west and the [Van Wagoners’] property on the east shall be the old fence line.

2. The [Van Wagoners] shall grant to the [Hickens] a private easement for ingress and egress across their property. This easement shall be for agricultural purposes and is appurtenant to the [Hickens’] properties.

3. The [Van Wagoners] shall provide a 16 foot wide powder coated tube gate and at least a 10 foot long railroad tie. [The Hickens] shall install the gate on the old fence line boundary across 100 North.

4. The Parties will have a new survey of their properties made. Old survey markers shall be removed pursuant to the survey and new markers shall be placed. The survey shall describe the legal boundary between the Parties as the old fence line. The survey shall also describe the easement across the [Van Wagoners’] property. Based on the legal descriptions found in the survey, [the Hickens] shall prepare a boundary and easement agreement which will be recorded in Wasatch County. The cost of the survey will be shared by the Parties with one half the cost paid by the [Hickens] and one half the cost paid by the [Van Wagoners].

5. The parties shall exercise their best efforts, in good faith, to comply with the requirements of [the Settlement Agreement] and agree to execute all documents necessary to effectuate the purpose and intent of [the Settlement Agreement].

․

9. Each Party shall bear its own costs and attorney fees in connection with the negotiation, preparation, execution and good faith performance of this Settlement Agreement, but, in connection with any breach of this Agreement, the Party not in breach shall be entitled to recover its reasonable attorney fees and costs from the breaching Party in connection with any effort to enforce the terms of [the Settlement] Agreement.

¶10 The Settlement Agreement was not filed with the court until March 2023 after Barnes reached out to McGinn for an update on the survey. McGinn sent Barnes a copy of a draft survey in May 2023. Barnes quickly replied that the proposed 32-foot-wide easement indicated on the survey was a problem for his clients and pointed out that the parties had never discussed, let alone agreed, to an easement of that width. McGinn responded, “I agree, we never talked about a 32’ easement. 16’ would be fine.” Later that month, McGinn left the law firm that was representing the Hickens and was replaced by another attorney.

Enforcement Proceedings

¶11 At a July 2023 status hearing, Barnes and a new attorney for the Hickens informed the court that they were still working on the boundary and easement agreement required by paragraph 4 of the Settlement Agreement. The court ordered the parties “to file something finalizing their settlement agreement by [August 15, 2023],” and stated that if nothing was filed by that date, Barnes could “file his motion to enforce.” Instead, the Hickens filed a motion asking the court to schedule a trial. They argued that the court “should find that the stipulation was an agreement to agree” and that “it lack[ed] the essential terms necessary for a final agreement.” In response, the Van Wagoners filed an objection and a motion to enforce the Settlement Agreement.

¶12 After briefing and oral argument, the court entered an order granting the motion to enforce. The court ordered the Hickens to complete the survey, in accordance with paragraph 4, to “describe a 16-foot-wide agricultural easement appurtenant to [the Hickens’] properties extending in a straight line across the property of [the Van Wagoners] ․, generally following the alignment of the tire ruts show[n] in the photographs attached to Mr. Hicken's [d]eclaration.” The court also ordered the Hickens to “prepare a boundary and easement agreement,” install the 16-foot-wide gate previously provided by the Van Wagoners, and pay them attorney fees.

¶13 When months passed with no sign of compliance from the Hickens, the Van Wagoners filed a motion to hold the Hickens in contempt and to enforce the court order. The Van Wagoners also sought additional attorney fees. The district court denied the motion for contempt but found that because the Van Wagoners’ “motion and the evidentiary hearing [we]re proceedings by which [the Van Wagoners] continue[d] to seek to enforce the [Settlement Agreement],” the Van Wagoners were “entitled to additional fees related to the filing of the” motion to enforce.

¶14 The Hickens then provided a corrected survey to the Van Wagoners as ordered but requested an extension for completing the boundary agreement. The court denied the request. The Van Wagoners filed another motion to enforce because the Hickens failed to sign the boundary agreement. After briefing and oral argument, the court made an oral ruling in which it granted the motion. The court reasoned, “[T]his is not a situation where I made findings of fact about a boundary line. This is a situation where I found that counsel and their clients should be bound by the representations that they made to the [c]ourt; that there was an agreement that was reached.” The Van Wagoners sought attorney fees, but the court declined to award them. The following day, the court memorialized its findings in a written order and final judgment. Both the Hickens and the Van Wagoners now appeal.

ISSUES AND STANDARDS OF REVIEW

¶15 The Hickens challenge the district court's ruling that the Settlement Agreement is an enforceable contract. Generally, a district “court's enforcement of a settlement agreement will not be reversed on appeal unless it is shown that there was an abuse of discretion.” Park Prop. Mgmt. LLC v. G6 Hosp. Franchising LLC, 2022 UT App 75, ¶ 17, 514 P.3d 148 (cleaned up). “But because settlement agreements are governed by contract principles, the underlying issue of whether a contract exists may present both questions of law and fact, depending on the nature of the claims raised.” Id. (cleaned up). “Questions of contract interpretation not requiring resort to extrinsic evidence are matters of law, and on such questions we accord the [district] court's interpretation no presumption of correctness.” Sackler v. Savin, 897 P.2d 1217, 1220 (Utah 1995) (cleaned up). “In contrast, whether the parties had a meeting of the minds sufficient to create a binding contract is an issue of fact, which we review for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made.” Park Prop. Mgmt., 2022 UT App 75, ¶ 17 (cleaned up).

¶16 Both parties raise challenges to the district court's rulings on attorney fees. The Hickens challenge the attorney fees awards on two fronts. First, they argue the district court erred in awarding attorney fees because there was no breach of the Settlement Agreement. Second, they argue the court erred by not allocating between successful and unsuccessful efforts in the awards. In their cross-appeal, the Van Wagoners argue the district court abused its discretion when it declined to award attorney fees on the third motion to enforce. A district “court's award of attorney fees is reviewed for an abuse of discretion.” Daynight, LLC v. Mobilight, Inc., 2011 UT App 28, ¶ 4, 248 P.3d 1010.²

ANALYSIS

I. The Settlement Agreement

¶17 The Hickens contend that the Settlement Agreement is not an enforceable contract because it lacks both a description of the easement and a definite method of ascertaining that material term without further agreement by the parties. The Van Wagoners assert that the mere contemplation of additional action by the parties does not make the Settlement Agreement unenforceable. We conclude that we are unable to determine whether the Settlement Agreement is an enforceable contract on the record before us.

¶18 Under Utah law, the rules that govern contracts apply to settlement agreements. See Patterson v. Knight, 2017 UT App 22, ¶ 6, 391 P.3d 1075. “A binding contract exists where it can be shown that the parties had a meeting of the minds as to the integral features of the agreement and that the terms are sufficiently definite as to be capable of being enforced.” ACC Cap. Corp. v. Ace W. Foam Inc., 2018 UT App 36, ¶ 12, 420 P.3d 44 (cleaned up); see also New York Life Ins. Co. v. K N Energy, Inc., 80 F.3d 405, 409 (10th Cir. 1996) (“If essentials are unsettled, and no method of settlement is agreed upon, there is no contract.”). A binding contract requires a meeting of the minds on all essential terms because the “overriding principle of contractual interpretation is that the intentions of the parties are controlling.” Regal RealSource LLC v. Enlaw LLC, 2024 UT App 95, ¶ 20, 554 P.3d 1112 (cleaned up). And because the best way to ascertain the parties’ intent is to examine “the language they chose to use in the contract,” Compton v. Houston Cas. Co., 2017 UT 17, ¶ 17, 393 P.3d 305, courts “first look to the plain language within the four corners of the agreement,” Central Fla. Invs., Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 12, 40 P.3d 599. Yet contracts that are missing an important term “are not per se unenforceable if the parties ․ include in the contract a method by which that term will be computed or ascertained in the future.” Id. ¶ 25; see also Nielsen v. Gold's Gym, 2003 UT 37, ¶ 12, 78 P.3d 600 (“A contract may be enforced even though some contract terms may be missing or left to be agreed upon.” (cleaned up)). Moreover, “[i]n many cases, a court will not be able to conclusively determine, before examining relevant extrinsic evidence (including custom and usage), that a contract is unenforceable as a matter of law due to the absence of essential terms.” Regal RealSource LLC, 2024 UT App 95, ¶ 26. “Parol evidence will often shed light on the parties’ intentions, including ․ whether an agreement was reached at all on ostensibly missing material terms.” Id. Parol evidence may also shed light on whether a particular missing term is essential to the contract. Id. (“Whether or not a missing term is essential to the contract requires an examination of the entire agreement and the circumstances under which the agreement was entered into.” (cleaned up)).

¶19 Here, we agree with the Hickens that the Settlement Agreement does not contain a clear description of the easement's dimensions, location, or configuration. At most, the Settlement Agreement describes a “16 foot wide powder coated tube gate” that should be installed across the easement “on the old fence line boundary across 100 North” and states that a new “survey shall also describe the easement across the [Van Wagoners’] property.” Other than the description of a 16-foot-wide gate, the Settlement Agreement does not state how wide the easement should be,³ nor does it describe the easement's path or otherwise state exactly where it should cross the Van Wagoners’ property.⁴

¶20 But again, “contracts are not per se unenforceable if the parties—rather than setting forth a specific price term or a specific description of the property covered by the contract—include in the contract a method by which that term will be computed or ascertained in the future.” Regal RealSource LLC, 2024 UT App 95, ¶ 25. The question, then, is whether the Settlement Agreement contains a clear method to determine the essential terms of the easement and, if not, whether the parties had a parol agreement as to any of these terms. The Hickens assert that the Settlement Agreement lacks a definite method of ascertaining the material terms without further agreement by the parties. They argue that the only method provided for determining the easement's location and dimension was a subsequent survey and boundary agreement, which would require more negotiation. In the Hickens’ view, the Settlement Agreement was merely an agreement to agree, not an enforceable contract. In contrast, the Van Wagoners assert that the Settlement Agreement is enforceable because the language in paragraph 2 contains a process for determining the final easement description. Specifically, they assert that the Settlement Agreement's language in paragraph 2—“The [Van Wagoners] shall grant to the [Hickens] a private easement for ingress and egress across their property”— gives them the unilateral right to choose where the easement burdens their land, without consultation with the Hickens.

¶21 On the record before us, questions of fact remain as to whether the Settlement Agreement contains a method for determining some or all of its essential terms and whether the parties had a contemporaneous parol agreement regarding some or all of those terms. As noted above, “because settlement agreements are governed by contract principles, the underlying issue of whether a contract exists may present both questions of law and fact, depending on the nature of the claims raised.” Park Prop. Mgmt. LLC v. G6 Hosp. Franchising LLC, 2022 UT App 75, ¶ 17, 514 P.3d 148 (cleaned up). For instance, “whether the parties had a meeting of the minds sufficient to create a binding contract is an issue of fact, which we review for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made.” Id. (cleaned up). But “whether a contract exists between parties is ordinarily a question of law.” Syme v. Symphony Group LLC, 2018 UT App 212, ¶ 13, 437 P.3d 576 (cleaned up).

¶22 As the district court acknowledged, “this is not a situation where [it] made findings of fact about a boundary line.” Indeed, the district court made no factual findings on any issue because it “found that counsel and their clients should be bound by the representations that they made to the [court]; that there was an agreement that was reached.” But without factual findings about the parties’ intentions concerning the easement's width, its course across the Van Wagoners’ property, or its curvature where it connects at Main Canyon Road, we cannot determine whether the Settlement Agreement is enforceable as a matter of law. We also cannot determine whether McGinn had the authority to agree to the easement's width. These issues present questions of fact to be determined initially by the district court. In other words, “we are mindful that we are a court of review, not of first view.” R.O.A. Gen. Inc. v. Salt Lake City Corp., 2022 UT App 141, ¶ 39, 525 P.3d 100 (cleaned up).

¶23 For these reasons, we reverse and remand the case so that the district court can determine these unresolved questions of fact and whether there was a meeting of the minds between these parties on essential terms.

II. Attorney Fees

¶24 Because we reverse the district court's orders enforcing the Settlement Agreement, we necessarily must vacate the attorney fees awards made in conjunction with the enforcement orders. But if on remand the district court determines that the Settlement Agreement is an enforceable contract, then it will need to make findings of fact to determine whether to award attorney fees. We therefore offer the following guidance on remand.

¶25 The Settlement Agreement contains two provisions that are relevant to the question of whether a party is entitled to attorney fees for “any effort to enforce” the terms of the Settlement Agreement. First, paragraph 5 requires that the “parties shall exercise their best efforts, in good faith, to comply with the requirements of [the Settlement Agreement] and agree to execute all documents necessary to effectuate the purpose and intent of [the Settlement Agreement].” Second, paragraph 9 of the Settlement Agreement provides that “in connection with any breach of [the Settlement] Agreement, the Party not in breach shall be entitled to recover its reasonable attorney fees and costs” but that “[e]ach Party shall bear its own costs and attorney fees in connection with the negotiation, preparation, execution and good faith performance of [the] Settlement Agreement.”

¶26 Accordingly, prior to making an award of attorney fees under the Settlement Agreement, the district court would need to make factual findings as to whether a party's actions were made in good faith to negotiate, prepare, execute, or comply with the terms of the Settlement Agreement or whether they constituted a breach of the Settlement Agreement, as well as factual findings as to when any such breach occurred. If the district court finds that a breach occurred, then the court must limit any award of “reasonable attorney fees and costs” to the non-breaching party to those fees and costs incurred in remedying the breach of the Settlement Agreement.

CONCLUSION

¶27 On the record before us, we cannot decide as a matter of law whether the Settlement Agreement was an enforceable contract because questions of fact remain regarding the easement that the district court must determine. Accordingly, we reverse the court's three orders enforcing the Settlement Agreement and remand the case for factual findings necessary to determine whether there was a meeting of the minds as to the essential terms of the Settlement Agreement.

¶28 Because an award of attorney fees under the Settlement Agreement is contingent on the existence of an enforceable contract, we vacate the attorney fees awarded by the district court.⁵ The district court may revisit the issue after it has conducted proceedings consistent with this opinion.

FOOTNOTES

2.   The Hickens also challenge the district court's determination that McGinn's email stating that a “16’ [easement] would be fine” was a valid modification of the Settlement Agreement and assert that the district court was required to hold an evidentiary hearing on the third motion to enforce. But because we are reversing the district court's enforcement orders and remanding the case for further proceedings, we need not address these additional issues.

3.   Relying on the statute of frauds, the Hickens also assert that we “must hold that Gary McGinn did not have authority to agree to reduce the width of the easement or agree to the limitations on use” because “[t]here was no written authorization from [the] Hickens for Gary McGinn to agree to a 16-foot width.” But the Hickens did not preserve this argument, and “[a]n appellate court will not consider an issue unless it has been preserved.” Abu-Ulba v. Ananda Sci., Inc., 2026 UT 24, ¶ 22, 594 P.3d 565. And even if they had, the statute of frauds does not apply to McGinn's statement because the Van Wagoners, not the Hickens, were the ones conveying an interest in real property by granting an easement across their property. See Utah Code § 25-5-1 (“No estate or interest in real property ․ shall be created, granted, assigned, surrendered or declared otherwise than by ․ deed or conveyance in writing subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by that party's lawful agent thereunto authorized by writing.” (emphasis added)).

4.   The maps presented to the district court depict various trajectories of how the easement connects with Main Canyon Road, including how it curves—or remains straight—across the Van Wagoner property.

5.   The Van Wagoners request attorney fees on appeal as the prevailing party. See Gardiner v. Anderson, 2022 UT 42, ¶ 20, 523 P.3d 184 (“Where a party entitled to attorney fees below prevails on appeal, an award of attorney fees on appeal is proper.” (cleaned up)). Because the Van Wagoners have not prevailed on appeal, we deny their request for attorney fees incurred on appeal.

OLIVER, Judge: