Rob v. Jim

Decision Date01 April 2011
Docket NumberNo. 20090646,20090646
PartiesRob & Sherri Bahr, individuals, and Ione Senn, an individual, Plaintiffs and Petitioners, v. Jim & Melodee Imus, individuals, Defendants and Respondents.
CourtUtah Supreme Court

2011 UT 19

Rob & Sherri Bahr, individuals, and Ione Senn, an individual, Plaintiffs and Petitioners,
Jim & Melodee Imus, individuals, Defendants and Respondents.

No. 20090646

Supreme Court of the State of Utah

Filed April 1, 2011

Third District Court, Salt Lake
The Honorable Paul G. Maughan
No. 040906808

on Certiorari to the Utah Court of Appeals

Jared L. Bramwell, Steven M. Kelly, Draper, for plaintiffs
Robert J. Dale, Christian D. Austin, Salt Lake City,
for defendants

Justice Lee, opinion of the Court:

¶1 Rob and Sherri Bahr and lone Senn (the "Bahrs") filed this suit to challenge the location of the boundary between their residential property and that of their neighbors, Jim and Melodee Im-us. The district court entered summary judgment in favor of the Imuses, concluding that the Bahrs were precluded from challenging the boundary established by a fence on the property under the doctrine of boundary by estoppel. The court of appeals affirmed.

¶2 We agree that the Imuses are entitled to summary judgment, but base our decision on a ground (boundary by agreement) not relied on below. In affirming summary judgment for the Imuses, we clarify the metes and bounds of the three boundary dispute doctrines identified in our case law, articulating the rela-

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tionship and distinctions among these theories and refining a few of their elements.


¶3 The Imuses purchased a new home in a Sandy, Utah, subdivision in 1983. At that time, their yard was not landscaped, and no fences separated the Imuses' backyard from that of their adjoining neighbors to the east and west. Soon thereafter, the Imuses met with their neighbors on the east (the Daltons) and their neighbors on the west (the Wymans) and proposed that they cooperate in fencing in their properties. The Daltons agreed to split the cost of a fence on the boundary they shared with the Imuses. The Wymans agreed to share in the labor to build a fence they would share with the Imuses, but the Imuses consented to purchase all the necessary materials.

¶4 The neighbors then set out to determine the locations where the fences would be constructed. Not knowing the actual locations of the plat lines marking the boundaries between their respective properties, the neighbors decided to set the fence locations based on their own calculations and use of a tape measure. All neighbors came to mutual agreement regarding the ultimate locations of the fences. Although the parties understood that their measurements were inexact, each party was satisfied because their calculations showed that each neighbor's backyard measured eighty feet between fences, consistent with the plat. The parties then worked together in constructing the fences.

¶5 The Imuses then began extensive landscaping. In addition to planting trees and shrubs, the Imuses installed an irrigation system and a koi pond.

¶6 In 1985, the Imuses' neighbors to the west, the Wymans, sold their home to Joe Carlisle, who continued to treat the fence between his property and the Imuses' property as the boundary line. Carlisle later sold his home to Rob and Sherri Bahr in 1988.

¶7 Although the Bahrs and Imuses apparently enjoyed a cordial neighborly relationship for a number of years, a boundary dispute eventually arose, at a time that is still in controversy between the parties. The Imuses assert that the dispute did not arise until September 2003, more than twenty years after the initial installation of the boundary fence. The Bahrs insist that the dispute

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arose some time earlier, perhaps only nineteen years after the installation of the fence.

¶8 Although the precise timing of the dispute is in question, the reason for the dispute is clear. The Imuses had previously planted a Russian olive tree on the Imuses' side of the fence that the Bahrs disliked. The Bahrs requested that the Imuses remove the tree. The Imuses consented, but on the condition that the Bahrs pay for its removal. The Bahrs refused to pay for the removal of the tree. An extensive dispute between the Bahrs and the Imuses ensued, one that included multiple calls to Sandy City municipal authorities.

¶9 While the Bahrs were embroiled with the Imuses over the tree, the Bahrs obtained a survey of their property, which showed a .2-foot discrepancy between the platted boundary and the physical location of the Imus-Bahr boundary fence at the front end of the fence that gradually expanded to a 4.7-foot discrepancy at the back end of the fence. The Imuses subsequently sought their own survey, which similarly revealed a discrepancy, though the Imuses' survey showed a 1.12-foot discrepancy at the front end of the fence and a 4.37-foot discrepancy at the back end.

¶10 The Bahrs ultimately brought an action seeking to quiet title and, among other things, claiming that the Imuses were trespassing on the Bahrs' property. The Imuses moved for summary judgment, contending that the boundary as marked by the fence had been established by acquiescence or agreement between the parties. In the alternative, the Imuses argued that the Bahrs were equitably estopped from contesting the boundary. The district court granted the Imuses' motion on the latter ground. It found that the elements of equitable estoppel were satisfied because the Wymans and the Imuses had made mutual representations to one another that the line they had established was the boundary, the Imuses had relied on these representations by landscaping the property up to the fence line, and the Imuses would be injured if the boundary established was not upheld.

¶11 The Bahrs appealed, and the court of appeals affirmed. Bahr v. Imus, 2009 UT App 155, ¶ 17, 211 P.3d 987. In so doing, the court of appeals indicated that it was giving a "'fair degree of deference'" because boundary by estoppel is a mixed question of

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law and fact. Id. ¶ 5 (quoting State Dep't of Human Servs. ex rel. Parker v. Irizarry, 945 P.2d 676, 678 (Utah 1997)).


¶12 on certiorari to this court, the Bahrs raise a threshold challenge to the standard of review employed by the court of appeals. Citing extensive authority, the Bahrs note that we have consistently reviewed decisions on summary judgment for correctness, according no deference to a trial court's analysis. Massey v. Griffiths, 2007 UT 10, ¶ 8, 152 P.3d 312; Bonham v. Morgan, 788 P.2d 497, 499 (Utah 1989).

¶13 Despite this precedent, the Imuses defend the deferential standard applied by the court of appeals. Echoing that court's analysis, the Imuses contend that we should give the trial court's decision in this case "'a fair degree of deference'" because the doctrine of equitable estoppel is a mixed question of law "'applicable to a wide variety of factual and legal situations.'" Bahr v. Imus, 2009 UT App 155, ¶ 5, 211 P.3d 987 (quoting State Dep't of Human Servs. ex rel. Parker v. Irizarry, 945 P.2d 676, 678 (Utah 1997)). In the cases cited by the Imuses and relied on by the court of appeals, this court has accorded "differing degrees of deference" to trial court findings on mixed questions of fact and law "depending on several considerations." Irizarry, 945 P.2d at 678. In Irizarry, we applied a deferential standard of review to a trial court's determination that "the requirements of the law of ¶equitable] estoppel ha¶d] been satisfied." Id. Because this case also raises questions of equitable estoppel, the Imuses contend that Irizarry dictates a deferential standard of review here.

¶14 We disagree. In Irizarry, we were reviewing the findings of a trial court issued after a bench trial. Id. In that setting, we applied a deferential standard of review to the question whether the defendant "reasonably changed his position in reliance upon ¶the plaintiff's] representations" — "a largely factual question" that was "perilously fraught with uncertainty." Id. at 681. Although the evidence before the trial court on this question was "somewhat ambiguous," we sustained a deferential standard of review in Iri-zarry on the ground that "the trial judge ha¶d] observed 'facts' such as the witness's appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the

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record available to appellate courts." Id. at 681-82 (internal quotation marks omitted).

¶15 This approach has no application to a case like this one, which was decided on summary judgment. In this case, unlike Iri-zarry, the trial court observed no witnesses and made no findings to resolve disputes of fact. Indeed, summary judgment, by definition, cannot resolve genuine disputes of fact. Summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). A trial court decides such questions, moreover, on the basis of a cold paper record.1 Since the trial court has no comparative advantage over the appellate court in resolving these questions, the appellate court reviews a summary judgment for correctness, giving no deference to the trial court's decision.2

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¶16 The de novo standard of review of summary judgment...

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