Hansen v. Kurry Jensen Props. LLC

CourtCourt of Appeals of Utah
Citation493 P.3d 1131
Decision Date27 May 2021
Docket NumberNo. 20191039-CA,20191039-CA
Parties Hank C. HANSEN and Tifnie Ann Hansen, Appellees, v. KURRY JENSEN PROPERTIES LLC and Kurry Jensen, Appellants.

493 P.3d 1131

Hank C. HANSEN and Tifnie Ann Hansen, Appellees,
KURRY JENSEN PROPERTIES LLC and Kurry Jensen, Appellants.

No. 20191039-CA

Court of Appeals of Utah.

Filed May 27, 2021

Timothy R. Pack, Salt Lake City, Attorney for Appellants

D. Shane Clifford, Attorney for Appellees

Judge Gregory K. Orme authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred in part. Judge Mortensen filed an opinion concurring specially, in which Judge Pohlman concurred.


ORME, Judge:

493 P.3d 1134

¶1 Kurry Jensen Properties, LLC, and Kurry Jensen (collectively, Jensen) appeal the district court's ruling that Hank C. Hansen and Tifnie Ann Hansen proved their boundary by acquiescence claim by clear and convincing evidence. Jensen also challenges the court's denial of two motions for summary judgment and a motion in limine to bar the testimony of the Hansens’ witnesses at trial due to the Hansens’ violation of rule 26 of the Utah Rules of Civil Procedure. We affirm.


Boundary Line

¶2 In 2015, Jensen purchased a parcel of land (the Jensen property) from Flora and Richard Motte. At the time of sale, Flora2 had lived on the Jensen property for sixty-five years. In 2016, Victoria Hansen,3 Flora's niece, inherited the property to the west of the Jensen property (the Hansen property) from her parents, Mickie and Clifton Carter, and she subsequently conveyed it to the Hansens. The Jensen property and the Hansen property share a deeded boundary line of approximately 450 feet running north to south, with the front of the properties facing south.

¶3 In 1977, the Carters built a carport next to their garage at the front of the Hansen property. The garage and carport both extend approximately ten feet beyond the deeded demarcation (the claimed boundary line). See Appendix. In 1983, the Carters also erected a chain link fence along the western side of the carport. At the back of the property, arranged roughly in a straight line behind the garage and extending approximately ten feet over the deeded property line, is a shed with a nearby fence, a rodeo arena, and an additional fence.

¶4 In 2018, Jensen, acting unilaterally, removed the fences near the shed and at the back of the property and began building a fence approximately ten feet to the east along the deeded boundary line, prompting the Hansens to file suit in district court. In their verified complaint,4 they asserted that the lawful boundary between the two properties had been established through acquiescence. They further claimed that the true property line was to the west of the deeded boundary as "marked by monuments, fences, and buildings."

First Motion for Summary Judgment5

¶5 Jensen moved for summary judgment, arguing that "because the Hansens failed to submit initial disclosures, disclose any witnesses, trial witness testimony, documents, or any other evidence to support their claims as required by Utah R. Civ. P. 26(a)(1) ... the Hansens cannot meet their burden of proof as a matter of law." The Hansens responded by directing the court to their

493 P.3d 1135

verified complaint that identified "potential witnesses" as the Hansens, Kurry Jensen, Victoria, Richard, and Flora, and that contained "three photographs of the disputed boundary area" as well as "an aerial photograph of the [properties], with actual boundary designations and proposed boundary designations." The Hansens argued that because Jensen "had actual knowledge of potential witnesses and received copies of relevant documents (which [Jensen] rel[ied] upon in support of [his] Motion for Summary Judgment), any technical failure to make ‘initial disclosures’ was harmless" pursuant to rule 26(d)(4) of the Utah Rules of Civil Procedure.

¶6 The district court denied Jensen's summary judgment motion, stating that its focus on the motion was "simply to see whether or not the requirements to grant a motion for summary judgment have been met ..., or whether or not there's a factual dispute that would preclude summary judgment." It explained that "[t]he verified complaint contains allegations and conclusions, but it also contains alleged facts which support the elements of the claim[ ]" of boundary by acquiescence. Specifically, the court noted that Hank averred in the complaint that the garage "along with a fence that Mr. Jensen has allegedly torn down, have acted as the actual physical boundary." The court, pointing to the garage as an example, observed that Hank averred "that a mutual understanding of acquiescence between current and former property owners had existed for at least 20 years" and that Jensen had respected that boundary for three years following his purchase. Thus, the court determined that "a genuine issue of material fact" existed and, on that basis, the court denied Jensen's motion.

Motion in Limine

¶7 Following the district court's denial of their first motion for summary judgment, Jensen filed a motion in limine seeking to exclude the Hansens’ trial witnesses. Jensen asserted that because "the Hansens failed to submit initial disclosures as required by Utah R. Civ. P. 26(a)(1), and thus failed to disclose any individuals who would testify at trial, let alone a summary of the expected trial testimony," the "[d]isclosure of any witnesses at this point would be highly prejudicial to Jensen's ability to defend against the Hansens’ claims." The Hansens opposed the motion, arguing that their "very detailed" verified complaint provided "actual notice of the names of all potential witnesses, and ... informed [Jensen] of the precise nature of their expected testimony." Therefore, they argued, "any technical failure to repeat the contents of the Verified Complaint in a document titled ‘initial disclosures’ was harmless."

¶8 The court denied the motion, stating that "this is a razor thin case" and that even though the court "routinely enforces Rule 26 disclosures," it was not going to do so in this case because of the case's "unique" nature. In the court's view, the case was "a very straightforward claim with respect to the boundary by acquiescence ... dispute," and it was obvious that the testimony of former owners, who were all named in the complaint, would be necessary. Therefore, the court ruled that because Jensen was aware of the complaint that named these individuals, and of "their role in the case and the nature of the pleadings and the allegations," as well as "the overall general substance of boundary markers," it was "a harmless omission" not to disclose this information "where there was so much information already disclosed in the complaint." The court did, however, offer Jensen the option of reopening discovery to take any deposition they desired. It also ordered the Hansens to comply with rule 26 and disclose summaries of their witnesses’ testimonies, which they promptly did.

Second Motion for Summary Judgment

¶9 After denial of their motion in limine, Jensen obtained an affidavit from Flora, in which she stated,

There has never been any fences, walls, monuments or other objects marking a boundary line between what is currently the Jensen and the Hansen properties to the north of the Hansens’ carport and house and neither my husband nor I, nor my parents nor the Carters ever treated any particular line, visible or otherwise, as the boundary between what is now the Jensen and the Hansen properties.

In fact, on the north the chain link fence between [the properties] came to an end at
493 P.3d 1136
about the same place that the carport stopped and, although we did not know where the deeded description was because it had never been surveyed, we had generally treated and agreed that the deeded descriptions were the boundary line between the respective properties, not necessarily the chain link fence.

¶10 Based on this affidavit,6 Jensen again moved for summary judgment, arguing "that the Hansens misrepresented to the Court that the Mottes acquiesced to the boundary line." Jensen continued, "because the Mottes themselves affirm that there was no acquiescence ..., the Court should enter summary judgment in favor of Jensen." In opposing this motion, the Hansens submitted a declaration by Victoria contradicting Flora's affidavit by stating that there "was always a fence" and other markers between the properties. Jensen responded that the Hansens could not prove mutual acquiescence and that the court should grant summary judgment because Victoria's affidavit did not focus on the mutual acquiescence element of their claim, whereas Flora clearly stated that she never acquiesced.

¶11 The court denied the motion. It ruled that even though the Mottes planned on testifying "that the boundary of the property was never acquiesced to[,] [t]hat fact alone does not settle the dispute of acquiescence" for purposes of summary judgment. It further ruled that Victoria's and Flora's affidavits created "disputes as to whether or not the Mottes acquiesced to a boundary line as delineated by the [Hansens] through trees, fences, buildings, et cetera, and for that reason [Jensen's] motion for summary judgment is denied."


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    ...deference." Veibell , 2004 UT 60, ¶ 22, 96 P.3d 935 (cleaned up); accord Hansen v. Kurry Jensen Props. LLC , 2021 UT App 54, ¶ 20, 493 P.3d 1131.ANALYSIS ¶42 Utah's "boundary by acquiescence doctrine requires a claimant to show: (1) a visible line marked by monuments, fences, buildings, or ......
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