392 P.3d 861
Utah Ct. App.2017Background
- Leslie M. Mower (and related entities) sought to assemble parcels in Hobble Creek Canyon for a ranch/equestrian center; her husband Ken Dolezsar worked the transactions and enlisted real estate agent David Simpson.
- Transactions involved purchases, trades, and transfers of parcels; some parcels ended up titled to third parties including Kristin and Dean Mackey.
- Mower filed suit alleging fraud, negligent misrepresentation, breach of fiduciary duty, conversion, unjust enrichment, and conspiracy related to the transactions.
- At summary judgment Simpson moved to strike Mower’s later-filed declaration as contradicting her deposition and containing speculation; the district court struck it and granted summary judgment for Simpson on two alternative grounds: no factual support and statute of limitations.
- Mower’s motion for reconsideration was denied; the district court later granted summary judgment for the Mackeys as well; Mower appealed and the Utah Court of Appeals affirmed in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Mower Declaration | Declaration creates factual disputes; deposition discrepancies explained | Declaration contradicts prior deposition and contains speculation/conclusions | Court did not abuse discretion in striking the declaration as inconsistent or speculative |
| Summary judgment for Simpson on merits | Mower argued facts were controverted and record contained supporting materials | Simpson pointed to detailed citations; Mower provided no admissible citations in opposition | Summary judgment affirmed because Mower failed to cite admissible evidence as required by Rule 7(c)(3) |
| Statute of limitations / equitable tolling | Equitable discovery rule should toll limitations; Dolezsar not necessarily Mower’s agent | Agent’s knowledge (Dolezsar) imputed to Mower; limitations accrued at closings; no concealment/exception shown | Claims barred; agent status imputed knowledge and equitable tolling does not apply |
| Motion for reconsideration and law-of-the-case re: Mackeys | New filings (declarations) cured prior defects and created genuine issues | Declarations were inadmissible; no intervening change/new evidence; law-of-the-case applied | Denial of reconsideration and subsequent summary judgment for Mackeys affirmed |
Key Cases Cited
- Magana v. Dave Roth Constr., 215 P.3d 143 (Utah 2009) (deposition statements cannot be contradicted later by affidavit without explanation)
- Webster v. Sill, 675 P.2d 1170 (Utah 1983) (depositions generally more reliable than affidavits)
- Portfolio Recovery Assocs. v. Migliore, 314 P.3d 1069 (Utah Ct. App. 2013) (district court has broad discretion to strike affidavits in summary judgment context)
- Russell Packard Dev., Inc. v. Carson, 108 P.3d 741 (Utah 2005) (equitable discovery rule and exceptions to fixed statutes of limitation)
- Wardley Better Homes & Gardens v. Cannon, 61 P.3d 1009 (Utah 2002) (agent's knowledge imputed to principal)