Can a municipality's conduct after losing at trial moot its own appeal? Brigham City v. Bywater Explained

The Utah Court of Appeals recently addressed an unusual situation where a municipality’s own post-judgment conduct mooted its appeal in Brigham City v. Bywater. This case provides important lessons about preserving appellate rights in property disputes involving construction and irreversible changes.

Background and Facts

Paul Bywater owned property in Brigham City that he accessed through a recorded easement across neighboring properties owned by the Taylors and Golden Spike RV. The easement contained a provision stating it would be “vacated and null and void” if a street was built providing direct access. In 2012, Bywater conveyed land to Brigham City so the city could build 1100 West road, which then abutted his property. Disputes arose over whether this terminated Bywater’s easement rights across the neighboring properties and gave him direct access to 1100 West.

The district court granted summary judgment for Bywater, ruling he had an access easement to 1100 West and that the original easement was terminated. Brigham City appealed in June 2022 but took no steps to stay the judgment.

Key Legal Issues

The central issue became whether Brigham City’s appeal was moot due to its post-appeal conduct. After filing its notice of appeal, Brigham City issued Bywater a permit in July 2022 to build a concrete “curb cut” accessing 1100 West. Bywater spent $9,388.97 on the construction project and had been using the access point for 18 months without restriction.

Court’s Analysis and Holding

The Court of Appeals held that mootness is jurisdictional and that courts have a sua sponte obligation to consider their jurisdiction. The court applied the principle from Wasatch County v. Utility Facility Review Board that “an appeal may become moot where the appealing party did not use available procedural tools to preserve the status quo.”

The court found that Brigham City not only failed to seek a stay but “affirmatively allowed construction to commence” by issuing an unconditional permit. The court rejected Brigham City’s argument that it retained regulatory authority over the curb cut’s use, noting the permit contained “no conditions, no limits” and the city never attempted to assert any restrictions.

Practice Implications

This decision reinforces that appealing parties must take all available steps to preserve the status quo pending appeal. When a judgment involves property rights that can be exercised through construction or other irreversible actions, failure to seek a stay can be fatal to the appeal. The case also demonstrates that a party cannot take affirmative actions inconsistent with its appellate position and then claim the right to challenge the underlying judgment.