Brown v. Jorgensen
| Decision Date | 27 April 2006 |
| Docket Number | No. 20040853-CA.,20040853-CA. |
| Citation | 2006 UT App 168,136 P.3d 1252 |
| Parties | Thomas E. BROWN Jr. and Marilyn R. Brown, Plaintiffs and Appellants, v. Lee JORGENSEN, John Does 1-10, and other persons unknown claiming title or interest in the subject property of this action, Defendants and Appellees. |
| Court | Utah Court of Appeals |
James C. Jenkins and Robert B. Funk, Olson & Hoggan, Logan, for Appellants.
Ray G. Martineau and Anthony R. Martineau, Salt Lake City, and David S. Cook, Bountiful, for Appellees.
Before BENCH, P.J., McHUGH and ORME, JJ.
¶ 1 Plaintiffs Thomas E. Brown Jr. and Marilyn R. Brown (the Browns) appeal the trial court's judgment rejecting their boundary by acquiescence claim and quieting title of real property to Defendant Lee Jorgensen. The Browns also appeal the award of costs, the partial denial of their motion for summary judgment, and the denial of their post-trial motion to amend their pleadings. We affirm but vacate the award of costs.
¶ 2 The Browns own real property (the Brown Parcel) located in Summit County. The Browns took title to the Brown Parcel in 1971. However, other members of the Brown family have continuously owned the parcel since the 1940s. Jorgensen owns real property (the Jorgensen Parcel) adjacent to and to the southwest of the Brown Parcel and has maintained ownership of his parcel since 1979. The preceding owner of the Jorgensen Parcel, Tracey Land & Livestock Company, used the parcel to raise livestock.
¶ 3 Located near the northeastern border of the Jorgensen Parcel is a fence (the Fence) that runs roughly along the southern border of the Brown Parcel. Sometime between 1943 and 1946, Thomas E. Brown Sr. and other Brown family members constructed the Fence. Although some of the Fence is located on the Brown Parcel, the Fence crosses onto the Jorgensen Parcel along a hillside above an irrigation ditch. The Fence separates a strip of land of approximately seven acres from the Jorgensen Parcel. This strip of land (the Subject Property) is the subject of this litigation. Since the Fence was erected, the Brown family has used the Subject Property and periodically maintained the Fence.
¶ 4 In 1971, the Browns hired a company to prepare a site plan to construct a home on the Brown Parcel. Although the site plan identified a property line different from the Fence line, the Browns built a home on their parcel and continued to use the Subject Property. In 1994, in anticipation of selling his parcel, Jorgensen commissioned an informal survey of the Jorgensen Parcel scaled from an aerial photo. This survey indicated that the property line was not the Fence line and that the property line actually cut through the Browns' home.
¶ 5 In July 1999, Jorgensen sent a letter to the Browns demanding removal of the part of the Fence located on the Jorgensen Parcel. In response, the Browns commissioned a survey of the Brown Parcel. The results confirmed that Jorgensen's 1994 survey was erroneous as to the property line cutting through the Browns' home, but the survey correctly indicated that the Subject Property was part of the Jorgensen Parcel.
¶ 6 Thereafter, in 2001, the Browns filed an action to quiet title to the Subject Property, claiming ownership based on the doctrine of boundary by acquiescence. The trial court1 denied the parties' motions for summary judgment, but granted the Browns partial summary judgment, holding that they had satisfied some of the elements of the doctrine of boundary by acquiescence.
¶ 7 Trial was held on the remaining elements. After trial, the trial court found that the parties did not mutually acquiesce to the Fence as the boundary line, an essential element of the doctrine of boundary by acquiescence, and quieted title of the Subject Property to Jorgensen. The trial court also awarded court costs to Jorgensen pursuant to rule 54(d) of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 54(d). The Browns now appeal.
¶ 8 The Browns assert several claims on appeal. First, the Browns argue that the trial court erred by holding that there was no mutual acquiescence in the Fence as the boundary between the Brown and Jorgensen Parcels.2 A determination of acquiescence "is reviewable as a matter of law." Argyle v. Jones, 2005 UT App 346, ¶ 8, 118 P.3d 301 (quotations and citation omitted). "However, this legal determination is highly fact sensitive and thus the trial court has some measure of discretion." Id. (quotations and citation omitted).
¶ 9 Second, the Browns argue that the trial court should have granted summary judgment in their favor. Specifically, they contend that the trial court erred by denying their motion to strike Jorgensen's affidavit in opposition to their motion for summary judgment because the affidavit did not comply with rule 56 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 56. "A trial court's decision to grant or deny a motion for summary judgment is a legal one and will be reviewed for correctness." Salt Lake City v. Silver Fork Pipeline Corp., 913 P.2d 731, 733 (Utah 1995).
¶ 10 Third, the Browns argue that the trial court erred by denying their motion to amend the pleadings to include the claim of prescriptive easement. "The [trial] court's decision to allow [or deny] amendment of the pleadings is reviewed for `abuse of discretion resulting in prejudice to the complaining party.'" Savage v. Utah Youth Vill., 2004 UT 102, ¶ 9, 104 P.3d 1242 (quoting Norman v. Arnold, 2002 UT 81, ¶ 38, 57 P.3d 997).
¶ 11 Fourth, the Browns argue that the trial court erred in awarding costs to Jorgensen because he failed to timely file a verified memorandum of costs in violation of rule 54(d)(2) of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 54(d)(2). Although the determination of the amount of allowable costs is generally within the sound discretion of the trial court, compliance with the procedure outlined in rule 54(d)(2) is mandatory and "leaves no discretion to the court; therefore, we review this decision for correctness without deference to the trial court's conclusion." Lyon v. Burton, 2000 UT 19, ¶ 76, 5 P.3d 616, modified on other grounds, 2000 UT 55, 5 P.3d 616.
¶ 12 Fifth, the Browns argue that the trial court's judgment is overly broad in that it purports to preclude future claims against the Subject Property and that the judgment is therefore incompatible with the doctrine of res judicata. The issue of "whether res judicata bars an action presents a question of law[,] which we review for correctness." Massey v. Board of Trs. of the Ogden Area Cmty. Action Comm., Inc., 2004 UT App 27, ¶ 5, 86 P.3d 120 (alteration in original) (quotations and citation omitted).
¶ 13 The Browns argue that the trial court erred in concluding that "[t]he [F]ence was not intended as a boundary line demarcating the [parcels]" and that "[t]here was no mutual acquiescence in the open boundary line of the [F]ence." In support of their argument, the Browns assert that Jorgensen did not object to the Fence until several years after he acquired his parcel, that he treated the Fence as the boundary by never occupying any part of the Subject Property, and that he acquiesced to the Fence as the boundary line via his silence.
¶ 14 The party seeking to establish boundary by acquiescence must prove "(i) occupation up to a visible line marked by monuments, fences, or buildings, (ii) mutual acquiescence in the line as a boundary, (iii) for a long period of time, (iv) by adjoining landowners." RHN Corp. v. Veibell, 2004 UT 60, ¶ 23, 96 P.3d 935 (quotations and citation omitted). "`Under the doctrine of boundary by acquiescence, the party attempting to establish a particular lines the boundary between properties [has the burden to] establish that the parties mutually acquiesced in the line as separating the properties.'" Id. at ¶ 24 (quoting Ault v. Holden, 2002 UT 33, ¶ 18, 44 P.3d 781). The Utah Supreme Court has further defined, for purposes of this doctrine, that "[t]o acquiesce means to `recognize and treat an observable line, such as a fence, as the boundary dividing the owner's property from the adjacent landowner's property.'" Id. (quoting Ault, 2002 UT 33 at ¶ 18, 44 P.3d 781). Thus, determining acquiescence is a "highly fact-dependent question and acquiescence, or recognition, may be tacit and inferred from evidence, i.e., the landowner's actions with respect to a particular line may evidence the landowner impliedly consents, or acquiesces, in that line as the demarcation between the properties." Id. (quotations and citations omitted).
¶ 15 Various landowner activities may provide evidence of acquiescence in a visible line as a boundary, such as "[o]ccupation up to, but never over, the line," or "silence, or the failure of a party to object to a line as a boundary." Id. at ¶ 25. Although acquiescence in a boundary line may occur through a party's silence or failure to object and does not require an explicit agreement, "recognition and acquiescence must be mutual, and both parties must have knowledge of the existence of a line as [the] boundary line." Argyle v. Jones, 2005 UT App 346, ¶ 11, 118 P.3d 301 (emphasis added) (alteration in original) (quotations and citations omitted).
¶ 16 In the instant matter, although the Browns subjectively believed that the Fence was the property line, they never actually communicated their belief to Jorgensen, either by word or action. Therefore, there was no "actual acknowledgment... that the parties treat the [F]ence as the common boundary." Moreover, "`[t]he mere fact that a fence happens to be put up and neither party does anything about it for a long period of time will not establish it as the true boundary.'" Argyle, 2005 UT. App 346 at ¶ 13, 118 P.3d 301 (alteration in original) (quoting Glenn v. Whitney, 116 Utah 267, 209 P.2d 257, 260 ...
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