Mower v. Simpson

Decision Date02 February 2017
Docket NumberNo. 20150549-CA,20150549-CA
Citation392 P.3d 861
Parties Leslie D. MOWER, LD III LLC, and LD Ranch LLC, Appellants, v. David R. SIMPSON, Landmark Real Estate Inc., Wood Springs LLC, Pheasant Meadows LLC, Kristin W. Mackey, and Dean Mackey, Appellees.
CourtUtah Court of Appeals

Denver C. Snuffer Jr., Steven R. Paul, Salt Lake City and William T. Jennings, Attorneys for Appellants.

Craig Carlile, Provo and Brent D. Wride, Salt Lake City, Attorneys for Appellees David R. Simpson, Landmark Real Estate Inc., Wood Springs LLC, and Pheasant Meadows LLC.

Aaron R. Harris, Lehi, Attorney for Appellees Kristin W. Mackey and Dean Mackey.

Judge J. Frederic Voros Jr. authored this Opinion, in which Judges Kate A. Toomey and Jill M. Pohlman concurred.


VOROS, Judge:

¶1 Plaintiffs Leslie D. Mower and related entities LD III LLC and LD Ranch LLC (collectively, Mower) appeal the district court's grant of summary judgment and other rulings whose combined effect was to deny all of Mower's claims. We affirm.


¶2 This case involves Mower's purchase of property in Hobble Creek Canyon for the purpose of building a ranch and equestrian center. Leslie Mower authorized her husband, Ken Dolezsar, to acquire the necessary property. Dolezsar in turn enlisted the help of real estate agent David Simpson. To assemble the parcels needed for Mower's equestrian center, Simpson negotiated purchases, trades, and exchanges among the owners of several parcels. Some of these exchanges involved transferring parcels of Mower's land to neighboring landowners, including Kristin and Dean Mackey (the Mackeys). In the end, Mower acquired the property necessary to build the equestrian center. Dolezsar died four months after all the transfers closed. Mower sued Simpson, the Mackeys, and others for fraud and related causes of action in connection with the transactions.


¶3 Mower asserts five contentions on appeal. First, she contends that the district court erred by ruling her declaration inadmissible.

¶4 Second, she contends that the district court erred by granting summary judgment in favor of Simpson.

¶5 Third, she contends that the district court erred by ruling that the statute of limitations had run on her claims.

¶6 Fourth, she contends that the district court erred by denying her motion for reconsideration.

¶7 Finally, she contends that the district court erred by granting summary judgment in favor of the Mackeys.

I. The Mower Declaration

¶8 Mower contends that "the trial court erred when it struck the Mower Declaration as inadmissible, finding it was contradicted by her deposition testimony or contained inadmissible speculation or conclusions, without giving any reasoning or support."

¶9 Simpson moved for summary judgment on each of Mower's claims; Mower opposed the motion. After filing her memorandum in opposition, Leslie Mower also filed her own declaration (the Mower Declaration) disputing various facts that Simpson asserted were undisputed. Simpson moved to strike the Mower Declaration on the ground that "it contradict[ed] her prior sworn deposition testimony and consist[ed] of unsubstantiated opinions and conclusions." Simpson's supporting memorandum contrasted each statement in the Mower Declaration with Mower's earlier deposition testimony.

¶10 The district court ruled the Mower Declaration inadmissible on the ground that "it consists of nothing but statements directly contradicted by her prior deposition testimony and unsubstantiated opinions and conclusions."

¶11 District courts generally have "broad discretion to decide motions to strike summary judgment affidavits." Portfolio Recovery Assocs. v. Migliore , 2013 UT App 255, ¶ 4, 314 P.3d 1069 (citation and internal quotation marks omitted). "We review a district court's decision on a motion to strike affidavits submitted in support of or in opposition to a motion for summary judgment for an abuse of discretion." Id. "An abuse of discretion may be demonstrated by showing that the district court relied on an erroneous conclusion of law or that there was no evidentiary basis for the trial court's ruling." Id. (citation and internal quotation marks omitted).

A. The Mower Declaration contradicted Mower's deposition.

¶12 Mower contends that the district court erred in ruling the Mower Declaration inadmissible because it contains "statements directly contradicted by her prior deposition testimony."

¶13 " [W]hen a party takes a clear position in a deposition, that is not modified on cross-examination, [she] may not thereafter raise an issue of fact by [her] own affidavit which contradicts [her] deposition, unless [she] can provide an explanation of the discrepancy.’ " Magana v. Dave Roth Constr. , 2009 UT 45, ¶ 39 n.33, 215 P.3d 143 (quoting Webster v. Sill , 675 P.2d 1170, 1172–73 (1983) ). Moreover, "[a]s a matter of general evidence law, a deposition is generally a more reliable means of ascertaining the truth than an affidavit, since a deponent is subject to cross-examination and an affiant is not." Webster , 675 P.2d at 1172.

¶14 On appeal Mower contends that a written power of attorney that she gave to Dolezsar "provides no basis to strike the Mower Declaration." In her declaration Mower averred that she had "never authorized or instructed Ken Dolezsar to have David Simpson title property in David Simpson's name or in the name of an entity he owned or controlled." Simpson argued below that this assertion contradicted Mower's deposition testimony that she had given Dolezsar power of attorney to act for her in relation to the Hobble Creek real estate transactions. But Mower maintains that no discrepancy exists, because in her deposition she "testified that she held onto the power of attorney until March 2007," the date she entered prison in California, and several months after the challenged real estate transactions had closed. In other words, she testified that she gave her written power of attorney to Dolezsar only after he had completed the equestrian center acquisitions.1

¶15 In her deposition, Leslie Mower testified that Dolezsar "was managing whatever affected me. So whatever affected me [he] had power of attorney to take care of in my stead." She testified that Dolezsar acted as her agent and managed her business affairs while she was in prison, after she gave him her written power of attorney. But she also testified that he acted as her agent before she gave him that written power of attorney:

Q. Paragraph 69 [says], "Further, Simpson transferred, gave or traded a part of the real property he purchased with [Mower's] funds to Mackeys without [Mower's] authorization." [Dolezsar] had the power of attorney to act in your name, didn't he?
A. He had the fiduciary responsibility to take care of me and to do what I asked him to do up at the ranch, yes.
Q. According to the Complaint, the transfers that are referred to in paragraph 69 occurred on August 23rd of 2006. You had not yet gone to prison; correct?
A. That is correct.
Q. But [Dolezsar] was acquiring property for your benefit using your funds during that period of time; correct?
A. Correct.

Thus, Mower testified that even before she gave Dolezsar a written power of attorney, she had authorized him to acquire property for the ranch on her behalf.

¶16 Furthermore, Mower's fraud claims rely on Dolezsar's status as her agent during his dealings with Simpson. As Simpson argued below without contradiction, if Dolezsar "wasn't the agent, [Mower's] entire case against Mr. Simpson evaporates because she had no dealings with Mr. Simpson at all." That is, Mower's own claims depend on Dolezsar acting as her agent even before she gave him a written power of attorney.

¶17 In sum, Mower has not shown that the district court abused its discretion in concluding that the Mower Declaration contradicted her deposition testimony.

B. The Mower Declaration contained conclusory and speculative statements.

¶18 Mower contends that the district court abused its discretion in ruling her declaration inadmissible because it contains "unsubstantiated opinions and conclusions."

¶19 "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Utah R. Civ. P. 56(e).2 "A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Utah R. Evid. 602.

¶20 Mower maintains that her declaration asserts "specific facts showing a genuine issue for trial." Mower offers the following example of a specific fact showing a genuine issue for trial: "Simpson represented to me and my lawyers, on or after July 17, 2007, that he had transferred all the property to LD Ranch that he acquired in Hobble Creek Canyon with my personal funds or LD III's funds." But Mower testified in her deposition that "Ken [Dolezsar]"—not David Simpson"made that statement to me." This statement was thus excludable on the ground that it contradicted Mower's deposition testimony.

¶21 Moreover, Mower's declaration contains numerous statements lacking specificity or foundation:

I deny the claim that my former husband, Kenneth Dolezsar, instructed or authorized David Simpson to acquire property in Hobble Creek Canyon in his own name or in the name of any entity which he owned or controlled.
For purposes of this motion, I deny the Mackeys purchased the Mackey Parcel. Mackeys have not proved to my satisfaction they properly acquired any of the Mackey parcel.
During the time of the property acquisitions in 2005 and 2006, I believe Simpson avoided contact or communication with me because he knew based on previous problems I had in dealing with Simpson that I would not approve of his representing me or my interests in any way.

(Emphases added.) These averments read less like testimony than like denials in an answer. And Mower makes no attempt to show how her...

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