493 P.3d 1131
Utah Ct. App.2021Background
- Jensen purchased a parcel in 2015 that adjoins the Hansens’ parcel; the deeded boundary runs north–south but physical features lay ~10 feet west of that line.
- From the 1970s–1980s the adjoining owners (Carters/Hansens and the Mottes) installed features along an aligned line: a carport (c.1977), chain‑link fence (c.1983), garage, shed, rodeo arena, and remnants of back fencing.
- In 2018 Jensen removed several fences and began re‑fencing on the deeded boundary; the Hansens sued, alleging boundary by acquiescence (claiming the true boundary was the visible line ~10 feet west of the deeded line).
- Jensen moved twice for summary judgment and sought a motion in limine to exclude the Hansens’ witnesses for failure to make Rule 26 initial disclosures; the district court denied the summary judgment motions and declined to exclude witnesses (finding the disclosure failure harmless but ordering compliance).
- After a one‑day bench trial the court found Victoria Hansen credible, discredited contrary testimony (notably Flora), and concluded by clear and convincing evidence that the parties had acquiesced to a common boundary approximately ten feet west of the deeded line.
- On appeal Jensen challenged (1) denial of summary judgment(s), (2) denial of the Rule 26 exclusion, and (3) sufficiency of the evidence; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Hansens) | Defendant's Argument (Jensen) | Held |
|---|---|---|---|
| Whether denials of two summary judgment motions are reviewable | Hansens: trial resolves disputed facts; summary denial proper because factual disputes exist | Jensen: summary rulings were legally erroneous and should be reviewed | Court: declines review—denials were based on existence of disputed facts and were resolved at trial; post‑trial review not warranted |
| Whether district court abused discretion by refusing to exclude Hansens’ witnesses for Rule 26 violation | Hansens: verified complaint and subsequent disclosures gave Jensen actual notice; omission was harmless | Jensen: Rule 26 requires exclusion absent harmlessness/good cause; failure to disclose prejudiced defense | Court: no abuse of discretion—trial court reasonably found the omission harmless, required disclosures, and offered reopened discovery |
| Whether Hansens proved boundary by acquiescence for rear boundary (clear and convincing standard) | Hansens: aligned, longstanding markers and conduct show visible line and mutual acquiescence for >20 years | Jensen: some former owners testified they did not treat markers as boundary; lack of specific conduct equals no mutual acquiescence | Court: affirmed—markers, elevation difference, and credible testimony satisfied elements (visible markers; occupation; mutual acquiescence; 20+ years) by clear and convincing evidence |
| Proper role of marker purpose in acquiescence analysis | Hansens: objective treatment of markers matters more than original purpose | Jensen: some markers served other purposes (e.g., corrals), so they should not be dispositive | Held: marker purpose is not dispositive; objective evidence of consistent treatment controls |
Key Cases Cited
- Anderson v. Fautin, 379 P.3d 1186 (Utah 2016) (sets forth the elements of boundary by acquiescence).
- Essential Botanical Farms, LC v. Kay, 270 P.3d 430 (Utah 2011) (mutual acquiescence is an objective inquiry based on parties’ conduct).
- RHN Corp. v. Veibell, 96 P.3d 935 (Utah 2004) (explains that acquiescence can be tacit and inferred from silence or conduct).
- Arnold v. Grigsby, 417 P.3d 606 (Utah 2018) (post‑trial review limits for denials of summary judgment based on disputed facts).
- Segota v. Young 180 Co., 470 P.3d 479 (Utah Ct. App. 2020) (upholds exclusion where court finds prejudice from belated Rule 26 disclosures).
- RJW Media Inc. v. Heath, 392 P.3d 956 (Utah Ct. App. 2017) (emphasizes the substantive purpose of disclosure rules and risk of sandbagging).
- Linebaugh v. Gibson, 471 P.3d 835 (Utah Ct. App. 2020) (reaffirms clear and convincing proof requirement for boundary by acquiescence).