MARTIN v. LAUDER

• Decision Date: 05 August 2010
• Docket Number: No. 20090523-CA.,20090523-CA.
• Citation: 239 P.3d 519,2010 UT App 216
• Parties: Bruce MARTIN and Diane Martin, Plaintiffs and Appellees, v. Edwin LAUDER, Cynthia Lauder, and Mary Best Ferguson, Defendants and Appellants.
• Court: Utah Court of Appeals

239 P.3d 519

2010 UT App 216

Bruce MARTIN and Diane Martin, Plaintiffs and Appellees, v.Edwin LAUDER, Cynthia Lauder, and Mary Best Ferguson, Defendants and Appellants.

No. 20090523-CA.

Court of Appeals of Utah.

Aug. 5, 2010.

Mary Best Ferguson, Cynthia Lauder, and Edwin Lauder, Salt Lake City, Appellantspro se.

Mark O. Morris and Emily Jackson, Salt Lake City, for Appellees.

Before Judges ORME, THORNE, and VOROS.

MEMORANDUM DECISION

ORME, Judge:

¶ 1Defendants Edwin and Cynthia Lauder and Mary Best Ferguson challenge the district court's denial of their summary judgment motion and its grant of summary judgment to plaintiffs Bruce and Diane Martin.Defendants also challenge the district court's ruling that their claim for equitable estoppel was moot.We affirm the district court's denial of Defendants' summary judgment motion but reverse the court's grant of the Martins' summary judgment motion and its ruling on Defendants' equitable estoppel claim.

¶ 2 This dispute between Defendants and the Martins arose over the boundary that separates their properties.In the 1970s, Diane Martin's parents, the Eskelsons, owned the Martins' property and built a fence that the Martins removed in 2007 after a survey they requested revealed the fence was not located on their property's boundary as described in their deed.At the time the fence was built and until 1991, Defendants' properties were not occupied.After Defendants purchased their properties, they each built a house on their respective property and made improvements up to the fence line.

¶ 3 Soon after the Martins removed the fence, Defendants registered their objection, and the Martins filed an action to quiet title in the property between the fence line and the property boundary as fixed by the survey (the Disputed Property).¹Defendants answered by claiming they were entitled to the Disputed Property under the doctrines of boundary by acquiescence and equitable estoppel.Subsequently, each party filed a motion for summary judgment, supported by affidavits, and both sides filed motions to strike portions of the other side's supporting affidavits.The district court struck portions of the affidavits of Defendants, as well as portions of a neighbor's affidavit offered by Defendants.The district court denied Defendants' motion to strike the affidavits of Diane Martin and Darrell Eskelson.The court ultimately denied Defendants' summary judgment motion, determined that Defendants' equitable estoppel claim was moot, and granted the Martins' summary judgment motion.Defendants appeal these rulings.

¶ 4“Summary judgment is appropriate only if ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ”Cabaness v. Thomas,2010 UT 23, ¶ 18, 232 P.3d 486(omission in original)(quotingUtah R. Civ. P. 56(c)).“An appellate court reviews a trial court's ‘legal conclusions and ultimate grant or denial of summary judgment’ for correctness and views ‘the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.’ ”Orvis v. Johnson,2008 UT 2, ¶ 6, 177 P.3d 600(citations omitted).

¶ 5The district court properly denied Defendants' summary judgment motion on their boundary by acquiescence claim.To be entitled to judgment as a matter of law, Defendants needed to prove that the undisputed facts established “(i) occupation up to a visible line marked by monuments, fences, or buildings, (ii) mutual acquiescence in the line as a boundary,^[[ ^2](iii) for a long period oftime,^[3](iv) by adjoining landowners.”RHN Corp. v. Veibell,2004 UT 60, ¶ 23, 96 P.3d 935(citation and internal quotation marks omitted).SeeOrvis,2008 UT 2, ¶ 10, 177 P.3d 600(“Where the moving party would bear the burden of proof at trial, the movant must establish each element of his claim in order to show that he is entitled to judgment as a matter of law.”).

¶ 6 Even if we considered the facts contained in the portions of the affidavits that were stricken, ⁴Defendants simply did not present undisputed facts ⁵ that, viewed in the Martins' favor, would definitively establish each element of their boundary by acquiescence claim.Specifically, they did not establish as a matter of law “occupation up to a visible line marked by ... [the] fence[ ]” nor mutual acquiescence for a “long period of time,”RHN Corp.,2004 UT 60, ¶ 23, 96 P.3d 935, and thus, they were not entitled to summary judgment.

¶ 7 While properly denying Defendants' summary judgment motion, the district court incorrectly granted the Martins' cross-motion for summary judgment.To be entitled to summary judgment, a party filing a cross-motion for summary judgment must establish its own entitlement to summary judgment rather than simply rely on the other party's failure on its own motion.⁶SeeOrvis,2008 UT 2, ¶ 16, 177 P.3d 600(“Utah law does not allow a summary judgment movant to merely point out a lack of evidence in the nonmoving party's case, but instead requires a movant to affirmatively provide factual evidence establishing that there is no genuine issue of material fact.”);Diamond T Utah, Inc. v. Travelers Indem. Co.,21 Utah 2d 124, 441 P.2d 705, 706(1968)(stating that “it is not true that once both parties move for summary judgment the court is bound to grant it to one side or another”).See alsoDunlap v. Stichting Mayflower Mountain Fonds,2005 UT App 279, ¶ 3, 119 P.3d 302(mem.)(stating that typically “the denial of [plaintiffs']motion for summary judgment ... only mean[s] the [plaintiffs] would have to prove their claim at trial”).

¶ 8 Although Defendants clearly disputed some of the Martins' facts, the Martins argued that Defendants had conceded, byreason of filing their own summary judgment motion, that no genuine issues of material fact were disputed.This argument is without merit.

“Cross-motions for summary judgment do not ipso facto dissipate factual issues, even though both parties contend ... that they are entitled to prevail because there are no material issues of fact.”Rather, cross-motions may be viewed as involving a contention by each movant that no genuine issue of fact exists under the theory it advances, but not as a concession that no dispute remains under the theory advanced by its adversary.In effect, each cross-movant implicitly contends that it is entitled to judgment as a matter of law, but that if the court determines otherwise, factual disputes exist which preclude judgment as a matter of law in favor of the other side.

Wycalis v. Guardian Title,780 P.2d 821, 824-25(Utah Ct.App.1989)(omission in original)(quotingAmjacs Interwest, Inc. v. Design Assocs.,635 P.2d 53, 55(Utah1981)), cert. denied,789 P.2d 33(Utah1990).Because the Martins cannot simply rely on Defendants' contention in support of their own motion that the facts were undisputed, we review the Martins' cross-motion for summary judgment and Defendants' reply to determine if material facts germane to the Martins' motion were disputed.SeeGiusti v. Sterling Wentworth Corp.,2009 UT 2, ¶ 53, 201 P.3d 966(“[T]he party moving for summary judgment ... ha[s] the burden of demonstrating that there was no genuine issue of material fact....When, as here, the moving party‘challenges an element of the nonmoving party's case on the basis that no genuine issue of material fact exists, the burden then shifts to the nonmoving party to present evidence that is sufficient to establish a genuine issue of material fact.’ ”)(citation footnote omitted).From this review, it is clear that the Martins did not carry their burden of establishing that no material facts bearing on their entitlement to summary judgment were in dispute.

¶ 9 The Martins' summary judgment motion claimed they were entitled to summary judgment because Defendants failed to provide any evidence that the Eskelsons acquiesced in the fence as a boundary.Even assuming the district court correctly struck portions of Defendants' affidavits, seesupra note 4, Defendants produced other admissible evidence to dispute the Martins' assertion that the Eskelsons did not acquiesce in the fence as a boundary line.These facts, when viewed in Defendants' favor, demonstrated that the Eskelsons may have acquiesced in the fence as a boundary.

¶ 10 First, Defendants produced admissible evidence that showed they made improvements up to the fence without any protest or other reaction by the Eskelsons, which, when viewed in Defendants' favor, is evidence of acquiescence by the Eskelsons during the time Defendants owned their properties.SeeSmith v. Security Inv. LTD,2009 UT App 355, ¶¶ 5, 8, 223 P.3d 451(mem.)(stating that “[a]cquiescence may ... be shown by silence, or the failure of a party to object to a line as a boundary, particularly when a fence appears to be a boundary” and that when “the fence appear[ed] to denote a boundary of the disputed parcel, [the landowner]'s silence, inaction, and failure to object to the [adjoining landowner's] use of the [disputed property] is highly significant”)(citations and internal quotation marks omitted).

¶ 11 Second, Defendants produced admissible evidence, in the form of unstricken portions of the neighbor's affidavit, which disputed the Martins' claim that the fence followed a crooked line not suggestive of a boundary between residential lots.The neighbor stated that the “fence on [his] northern boundary line followed the exact line of the fence that is in dispute.”Seeid.¶ 7(stating that if a fence “follow[s] a nearly straight line, was constructed along the record boundary between several different properties, and only deviated from the record boundary with regard to the disputed ... parcel,” it is evidence that the fence acted as a boundary).This evidence, when viewed in Defendants' favor, is suggestive of the Eskelsons' acquiescence in the fence as a boundary even before Defendants owned...