## Facts

- Patrick T. Panos owned two adjacent residential lots in Sandy, Utah (Lot 24, his residence, and vacant Lot 29).
- Panos sold Lot 29 to Olsen & Associates Construction, Inc., whose president and sole shareholder was Jay Olsen.
- To protect Panos’s view from Lot 24, the parties’ purchase contract and addenda included a 32-foot height limitation for structures on Lot 29, described as measured “from the road.”
- At closing, Panos delivered a warranty deed for Lot 29 containing a height restriction: the roof level or highest portion of any structure could not be higher than 32 feet, “measured from the existing street lying west and adjacent” to Lot 29.
- The adjacent street (Elm Ridge Road) slopes, so potential height measurements vary depending on the point on the street used as the baseline.
- Before the sale, Panos obtained a survey using a brass-cap monument in the street as a reference point for calculating the 32-foot limit.
- After Olsen built a home on Lot 29, Panos claimed the structure exceeded 32 feet when measured from the brass-cap monument; Olsen asserted it was under 32 feet when measured from a lower point on the street.
- Panos sued for breach of contract and sought reformation of the deed based on alleged mutual mistake about the measurement reference point.
- The trial court granted summary judgment for Olsen, denied Panos’s cross-motion, and denied Panos’s Rule 60(b) motion; Panos appealed.

## Issues

1. Whether the merger doctrine made the warranty deed, rather than the purchase contract and addenda, the controlling expression of the parties’ agreement on the height restriction.
2. Whether the deed’s height-restriction clause was latently ambiguous because it did not specify a precise measurement point on a sloped street, permitting extrinsic evidence to define the restriction.
3. Whether Panos proved mutual mistake by clear and convincing evidence such that the deed should be reformed to include a specific street reference point (e.g., the brass-cap monument).
4. Whether, under the deed’s proper construction, Olsen’s home complied with the 32-foot restriction as a matter of law, supporting summary judgment.

## Decision

- The Utah Court of Appeals affirmed summary judgment for Olsen and affirmed denial of Panos’s cross-motion and post-judgment motion.
- The court held the merger doctrine applied; the deed superseded prior contract terms regarding the restriction.
- The court held the deed’s measurement language was not latently ambiguous and could be applied based on its text without importing survey-based reference points.
- The court held Panos failed to establish mutual mistake by clear and convincing evidence; the record showed, at most, Panos’s unilateral misunderstanding.
- Applying the deed as written, the court upheld the determination that the home satisfied the 32-foot restriction when measured from the existing adjacent street.

## Legal Principles

- When a deed is delivered and accepted as performance of a contract to convey real property, the contract’s provisions generally merge into the deed, which becomes the final agreement absent a recognized exception.
- If deed language is unambiguous, the parties’ intent is determined from the deed’s text, and extrinsic evidence cannot be used to add to or alter the instrument.
- Practical measurement variability caused by physical conditions (such as a sloped street) does not, by itself, create latent ambiguity where the deed’s measurement reference is stated in general terms.
- Reformation based on mutual mistake requires clear and convincing evidence of an antecedent agreement and that the written instrument fails to reflect that shared agreement; unilateral mistake is insufficient.

## Conclusion

The court enforced the deed’s height restriction as the controlling agreement under the merger doctrine, rejected claims of latent ambiguity and mutual mistake, and affirmed summary judgment because the home complied with the deed’s 32-foot limit when measured from the existing adjacent street.


Panos v. Olsen & Assocs. Constr., Inc., 2005 UT App 446, 123 P.3d 816 (Utah Ct. App. 2005)