Hansen v. Kurry Jensen Properties

2021 UT App 54

THE UTAH COURT OF APPEALS

HANK C. HANSEN AND TIFNIE ANN HANSEN,
Appellees,
v.
KURRY JENSEN PROPERTIES LLC AND KURRY JENSEN,
Appellants.

Opinion
No. 20191039-CA
Filed May 27, 2021

Seventh District Court, Castle Dale Department
The Honorable Douglas B. Thomas
No. 180700004

Timothy R. Pack, 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:

¶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.
 Hansen v. Kurry Jensen Properties

BACKGROUND 1

Boundary Line

¶2 In 2015, Jensen purchased a parcel of land (the Jensen
property) from Flora and Richard Motte. At the time of sale,
Flora 2 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

1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard,” presenting conflicting
evidence only “to the extent necessary to clarify the issues raised
on appeal.” Kidd v. Kidd, 2014 UT App 26, ¶ 2 n.1, 321 P.3d 200
(quotation simplified).

2. Because some individuals in this case share the same surname,
we refer to them by their first names, with no disrespect
intended by the apparent informality.

3. Victoria Hansen is Hank Hansen’s mother. She grew up and
lived on the Hansen property from 1957 until 1981 and thereafter
regularly returned to visit her parents, who lived on the
property until their deaths in 2015 and 2016.

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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 Judgment 5

¶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

4. In verifying the complaint, Hank declared under criminal
penalty that, with the exception of the few facts he specifically
alleged in the complaint to be based upon information and
belief, he had personal knowledge of the facts alleged and that
those facts were true.

5. With respect to both the first and second motions for summary
judgment, we describe in some detail what was before the
district court and how the court ruled because the availability of
appellate review of a denial of summary judgment, once a trial
culminating in a final judgment has been held, turns on the basis
for that denial. See, e.g., Arnold v. Grigsby, 2018 UT 14, ¶ 15, 417
P.3d 606; Kerr v. City of Salt Lake, 2013 UT 75, ¶ 29, 322 P.3d 669.

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 Hansen v. Kurry Jensen Properties

proof as a matter of law.” The Hansens responded by directing
the court to their 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

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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,

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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 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

6. Jensen had brought suit against the Mottes seeking $130,000 in
damages and attorney fees. Jensen claimed that the Mottes
breached obligations and covenants under the warranty deed
that conveyed the Jensen property to Jensen. Among other
things, Jensen asserted that the Mottes misrepresented “that they
had good right to convey the entire Jensen Property to Jensen”
and “that the entire Jensen Property was free from all
encumbrances.” Kurry Jensen testified at trial that this suit was
eventually settled.

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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.”

Trial

¶12 The case proceeded to a one-day bench trial at which
Victoria, Hank, Flora, Richard, and Kurry Jensen testified.
Victoria testified about the following markers, from the front of
the property to the back, that delineated the claimed boundary
line for more than 20 years: the stump of a tree that the Mottes
had required the Carters to care for and eventually remove (even
though it was on the Jensen property, then owned by the Mottes,
according to the deeds), a carport, a chain link fence on the side
of the carport, a garage, a small area of fenced-in apricot trees, a
storage shed behind the garage, a fence along the back portion of
the properties, a rodeo arena, and a round corral fence. Victoria
also testified that the Mottes and her parents, the Carters, “all
treated the fence as the boundary line.” Hank then testified that
there is “an elevation difference right where the fence line went
south towards the front of the yard” along the claimed boundary
line and that broken fence posts from that fence still remained
after Jensen removed it.

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¶13 Flora then testified that she “believe[d] the boundary
line was west of the carport.” She also acknowledged that she
did not “complain[] that the Carters’ corral went over the
[deeded] boundary.” But she also testified that “there was no
recognized boundaries” and that they “shared everything,”
including the backyard, the corrals, and the gardens. Flora
explained that neither her family nor the Carters ever treated
the fence in the middle of the properties, originally used to
enclose the apricot orchard, as a boundary marker, which
was also the case with the shed. She also testified that the
corral and rodeo fencing were not used as a boundary marker
but simply to contain livestock, and that there was no fencing
in the back of the property other than the corral and rodeo
fences. She explained that the linear elevation difference
between the properties was a result of the property being
slanted, and not the result of a former fence line. She did not
explain why fence remnants were still discernible, as
memorialized in photographic evidence. When asked whether
she knew “exactly where . . . the legal deeded boundary was
between the . . . properties,” Flora responded that she did not
know but figured the actual boundary was the deeded
boundary. Finally, Flora reaffirmed the statements contained in
her affidavit.

¶14 Richard then testified that he believed the boundary
line “was west of the carport” and that he had never objected
to the carport being there or “sa[id] that it was . . . over . . .
the boundary.” He also testified that he had never “treat[ed]
any fence, any tree, any building, any structure, any bush, any
stump as the boundary line between the [properties].”

¶15 After hearing the relevant testimony, the court entered
its findings of fact and conclusions of law. The court found
that “Victoria Hansen [was] a credible witness who has a
clear recollection of relevant facts which is consistent with
the physical evidence on the ground.” The court also found
that “Flora Motte, Richard Motte, and Kurry Jensen [were]

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less credible than Victoria Hansen. Their testimony was, at
times, internally inconsistent and/or inconsistent with the
physical evidence on the ground.” Specifically, the court
noted that Flora’s testimony was “particularly troubling”
because she “denied that there was any fence in the back” of
the properties, but the evidence presented at trial, even evidence
Jensen presented, showed “that there was in fact a fence
there, which really impacted the credibility of [Flora].”
Regarding Richard’s testimony, the court found that even
though Richard testified “that he assumed that the boundary
was west of the carport[,] [h]e acknowledged he didn’t know
where the boundary was, and he indicated [that] it could
have been either way, but in light of the fact that there was a
chainlink fence there,” the court found it “consistent with an
actual acquiesce [to] that . . . boundary.” The court concluded
that there was no evidence that Richard “ever voiced any
objection to the fence, or indicated that it was not being
treated as a boundary line, that there was any kind of activity
that was being utilized on the [Hansen] side of the fence by the
Mottes.”

¶16 Ultimately, the court ruled as follows:

For a very long period of time, well in excess of 20
years, the owners of the [properties] recognized
and acquiesced to a common boundary marked by
monuments, fences, and buildings. This common
boundary was and is located approximately 10 feet
west of the surveyed boundary [line].

The monuments, fences, and buildings which
marked the recognized common boundary
between the [properties] include the following:

a. The Hansens’ carport, built in
approximately 1977.

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b. A chain link fence on the west side of the
Hansens’ carport, built in approximately
1983.

c. A tree on the west side of the front of the
Hansens’ driveway, which was removed at
the Carters’ expense . . . .

d. The Hansens’ garage, located north of the
Hansens’ carport.

e. A shed located north of the Hansens’
carport and garage.

f. A fence along the recognized boundary
near the shed, a remnant of which was
removed by Kurry Jensen.

g. A fence on the recognized back portion of
the subject properties, a remnant of which
was removed by Kurry Jensen.

h. A rodeo arena located primarily on the
Hansen Property, but which extended past
the surveyed boundary onto the . . . Jensen
Property in a manner consistent with the
property owners’ understanding of the
recognized boundary between the subject
properties.

There is no evidence that any owner of the . . .
Jensen Property ever considered any part of the
Hansens’ carport to be part of the . . . Jensen
Property.

Kurry Jensen removed fences which would have
been helpful in establishing the location of the

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recognized boundary [between] the back of the
[properties].

Although Kurry Jensen removed fences, a broken
fence post remained. This broken fence post was
spray painted and photographed by Hank Hansen
to illustrate where a boundary fence was located
before fences were removed by Kurry Jensen.

A noticeable elevation difference, consistent with
the existence of a longstanding boundary fence,
represents the approximate location of a common
boundary by acquiescence between the back
portion of the [properties].

¶17 The court then set the boundary between the properties
along the claimed boundary line. Jensen appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 Jensen raises three issues. First, they assert that the district
court erred in denying their two motions for summary
judgment. Ordinarily, “we review a district court’s decision to
grant summary judgment for correctness, granting no deference
to the district court’s conclusions.” Gillmor v. Summit County,
2010 UT 69, ¶ 16, 246 P.3d 102 (quotation simplified). But the
matter comes to us in a much different posture when the court
denies a motion for summary judgment—or, as here, two such
motions—and the case proceeds to trial. “We do not review on
appeal . . . whether a dispute of material fact existed at the
summary judgment stage of a litigation [that proceeds to trial] if
the trial court denies summary judgment.” Kerr v. City of Salt
Lake, 2013 UT 75, ¶ 29, 322 P.3d 669.

¶19 Second, Jensen contends that the court erred in denying
their motion in limine to exclude the Hansens’ fact witnesses as a

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 Hansen v. Kurry Jensen Properties

sanction pursuant to rule 26(d)(4) of the Utah Rules of Civil
Procedure. “We review a district court’s interpretation of our
rules of civil procedure, precedent, and common law for
correctness.” Keystone Ins. Agency v. Inside Insurance, 2019 UT 20,
¶ 12, 445 P.3d 434. But in reviewing a district court’s
determination with respect to harmlessness and good cause, our
review is necessarily deferential. This is because “[a] court’s
decision in discovery matters is a discretionary call, and . . . we
will affirm such decisions when the court’s discretion was not
abused, even if we or another court might have made a different
decision in the first instance.” Segota v. Young 180 Co., 2020 UT
App 105, ¶ 22, 470 P.3d 479 (quotation simplified).

¶20 Third, Jensen asserts that the court erred in determining
that the Hansens proved their boundary by acquiescence claim
at trial with the requisite clear and convincing evidence. “We
review the trial court’s conclusions of law on this issue for
correctness, according the trial court no particular deference,”
but “we will not reverse the findings of fact of a trial court
sitting without a jury unless they are clearly erroneous.” RHN
Corp. v. Veibell, 2004 UT 60, ¶ 22, 96 P.3d 935 (quotation
simplified).

ANALYSIS

I. Summary Judgments

¶21 Jensen asserts that the district court erred in denying both
of their summary judgment motions. But for a summary
judgment decision to be “reviewable following a trial,” it must
be “based on a purely legal question or on undisputed
facts.” Arnold v. Grigsby, 2018 UT 14, ¶ 15, 417 P.3d 606. See also
Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 15, 215 P.3d 152
(“When a court denies a motion for summary judgment on a
purely legal basis, that is where the court denies the motion
based on the undisputed facts, rather than because of the

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 Hansen v. Kurry Jensen Properties

existence of a disputed material fact, the party denied summary
judgment may challenge that denial on appeal.”).

¶22 Here, when the district court denied Jensen’s first motion,
it ruled that disputes of material fact existed because the verified
complaint “contains alleged facts which support the elements of
the claim” of boundary by acquiescence. And in denying the
second motion, the court 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.” “We therefore decline
to review the trial court’s summary judgment decision[s]”
because the “court expressly denied [Jensen’s] motion[s] based
on the existence of disputed facts,” and a trial was subsequently
held to adjudicate those facts. See Arnold, 2018 UT 14, ¶ 15.

II. Rule 26 Motion in Limine 7

¶23 Jensen asserts that the district court erred in not excluding
the Hansens’ witnesses as a discovery sanction pursuant to rule
26(d)(4) of the Utah Rules of Civil Procedure because the
Hansens did not timely disclose their witnesses or a summary of
the witnesses’ testimony as part of their required initial
disclosures under rule 26(a)(1). 8 In relevant part, rule 26(a)(1)

7. In view of Judge Pohlman’s concurrence in Judge Mortensen’s
opinion, only the result reached in this section has unanimous
support. On those points where Judge Mortensen’s opinion is at
variance with the discussion in this section, his opinion controls.

8. Jensen also contends that the district court erred in finding
that “the Hansens adequately disclosed summaries of witnesses’
testimonies” in their verified complaint and in determining “that
the Hansens could satisfy their Rule 26 disclosure obligations
with ‘general’ allegations in a complaint.” This is not what the
court did. Rather, the court stated that, for purposes of assessing
(continued…)

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 Hansen v. Kurry Jensen Properties

requires parties to serve initial disclosures “without waiting for a
discovery request,” which disclosures must include “the name
and, if known, the address and telephone number” of each
witness they may call at trial as well as a summary of their
testimony. Utah R. Civ. P. 26(a)(1)(A)(ii). If a party fails to serve
these disclosures, “that party may not use the undisclosed
witness . . . at any hearing or trial unless the failure is harmless
or the party shows good cause for the failure.” Id. R. 26(d)(4).

¶24 Here, the district court determined that while the
Hansens failed to comply with rule 26(a)(1)(A)(ii), the failure
was harmless. On that basis, it denied Jensen’s motion to exclude
the Hansens’ witnesses under rule 26(d)(4). Jensen contends that
this ruling was erroneous because “while the district court may
have discretion to reopen fact discovery or set discovery
deadlines, it did not have discretion to stray from Rule 26(d)(4)’s
explicit instruction to exclude the witnesses.” This argument is
unavailing.

¶25 The court did not “stray from Rule 26(d)(4)’s explicit
instruction to exclude the witnesses” as Jensen contends. While
rule 26(d) does contemplate that excluding witnesses in such
circumstances will be the norm, it does not absolutely require
courts to do so, as Jensen suggests. Rather, a court is not
required to exclude witnesses if, in its discretion, it finds that
“the failure is harmless or the party shows good cause for the
failure.” Id. See also Dahl v. Dahl, 2015 UT 79, ¶ 63, 459 P.3d 276

(…continued)
whether Jensen was harmed, the verified complaint contained
sufficient information to render the mistake in not serving their
initial disclosures harmless. The court did not rule that the
complaint was compliant with rule 26(a)(1). In fact, after finding
that it was harmless for the Hansens not to have served their
initial disclosures in a timely fashion, it ordered the Hansens to
do so forthwith, which they did.

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 Hansen v. Kurry Jensen Properties

(“[W]e grant district courts a great deal of deference in matters
of discovery and review discovery orders for abuse of
discretion.”). While one or more members of this panel might
have handled the matter differently, we review the decision only
for an abuse of discretion. See Gunn Hill Dairy Props., LLC v. Los
Angeles Dep't of Water & Power, 2015 UT App 261, ¶ 24, 361 P.3d
703 (Orme, J., and Toomey, J., concurring) (noting that “[i]n
short, while we think the trial judge made the wrong call, it was,
in its essence, a discretionary call—and one that was within the
broad range of discretion entrusted to him”). See also Berger v.
Ogden Reg'l Med. Center, 2020 UT App 85, ¶ 15, 469 P.3d 1127
(“When reviewing a district court’s exercise of discretion, we
will reverse only if there is no reasonable basis for the district
court’s decision.”) (quotation simplified).

¶26 There was no abuse of discretion here because a
reasonable basis existed for the court’s decision, namely, that
although the Hansens’ verified complaint did not satisfy rule
26(a)(1), it did put Jensen on notice of who would be testifying
and the general nature of their testimony. The complaint stated
that previous owners, including Victoria, recognized and
acquiesced to a boundary different from that contained in their
deeds. Specifically, the complaint stated that “[f]or a period of
many decades . . . the owners of [both properties] recognized a
common boundary marked by monuments, fences, and
buildings.” It also claimed that for more than 20 years, “there
was a visible line between the [properties] marked by
monuments, fences, and buildings” and “the owners of [both
properties] considered the visible line marked by monuments,
fences, and buildings to be the boundary between the properties,
and they mutually acquiesced to the same.” While the complaint
did not go into the same detail on the markers and boundaries as
the Hansens’ belated rule 26 disclosures did, the court could
reasonably conclude that the complaint provided Jensen
sufficient notice that the Hansens were relying on the markers
and monuments that would have been clearly visible to Kurry

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 Hansen v. Kurry Jensen Properties

Jensen: the carport, chain link fence, garage, shed, rodeo corral,
and the remnants of the old fencing in the back of the property—
the very fencing that Jensen removed in their effort to relocate
the boundary to that established by the parties’ deeds.
Furthermore, the Hansens objected to Jensen moving that
boundary before they filed their complaint, and thus Jensen
cannot plausibly claim that they did not know what markers and
monuments would have been the basis for the Hansens’ claim.
The district court could reasonably conclude, even though
another judge might have taken a stricter approach, that this
information in the complaint was enough to have given Jensen
notice of the substance of the Hansens’ claim, rendering any
error in not disclosing more specific information harmless.

¶27 Also, this was not a complicated boundary by
acquiescence case involving, for instance, testimony from long
lost prior owners, experts relying on aerial photography, or the
like. The district court could reasonably conclude that Jensen
knew the former owners named in the complaint would testify
regarding the markers that Kurry Jensen could readily see and
that the Hansens were planning to rely on these owners to testify
that there was mutual acquiescence to those markers. Thus,
based on these facts, the court, in the sound exercise of its
discretion, found the Hansens’ discovery violation to be
harmless. While some members of this panel would apparently
have ruled otherwise, it cannot be said that there was no
reasonable basis for this decision. 9

9. Although the court concluded that Jensen was not harmed by
the belated disclosures, it offered Jensen the opportunity to
re-open discovery having recognized that Jensen may not have
taken depositions because of the lack of disclosures. Jensen
argues that “[t]he harm caused by the failure to disclose cannot
be cured by simply restarting the case and re-doing fact
discovery” because they incurred “fees and costs to litigate
(continued…)

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III. Boundary by Acquiescence

¶28 Jensen does not challenge the district court’s ruling that
the Hansens proved their boundary by acquiescence claim
regarding the front of the property, namely from the Hansens’
garage to the street. But with respect to the Hansens’ claim
regarding the boundary from the garage to the back of the
property, 10 Jensen asserts that the court erred in ruling that the
Hansens proved their claim by clear and convincing evidence.

¶29 The boundary by acquiescence doctrine encompasses four
elements:

(1) a visible line marked by monuments, fences,
buildings, or natural features treated as a
boundary; (2) the claimant’s occupation of his or
her property up to the visible line such that it

(…continued)
motions that were filed as a direct result of the disclosing party’s
discovery violations.” But because Jensen did not make this
distinct argument before the district court, they have not
preserved it for appeal, see Columbia HCA v. Labor Comm’n, 2011
UT App 210, ¶ 6, 258 P.3d 640 (“Utah law requires parties to
preserve arguments for appellate review by raising them first in
the forum below.”), and because they have not argued an
exception to the preservation requirement, we decline to address
this argument.

10. Even though Jensen does not challenge the district court’s
ruling regarding the boundary in the front of the properties, we
still recite and rely on the evidence of the markers on that
portion of the property because it is directly in line, for all
practical purposes, with the markers in the back of the property,
providing further evidence of the owners’ intent and the location
of the line for the entire boundary.

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would give a reasonable landowner notice that the
claimant is using the line as a boundary; (3) mutual
acquiescence in the line as a boundary by adjoining
landowners; (4) for a period of at least 20 years.

Anderson v. Fautin, 2016 UT 22, ¶ 31, 379 P.3d 1186. “To prevail
on a claim of boundary by acquiescence, a claimant must prove
each element ‘by clear and convincing evidence.’” Linebaugh v.
Gibson, 2020 UT App 108, ¶ 25, 471 P.3d 835 (quoting Essential
Botanical Farms, LC v. Kay, 2011 UT 71, ¶ 34, 270 P.3d 430).

¶30 Here, there is no dispute that the 20-year period has been
met, and Jensen does not challenge any of the district court’s
findings regarding the second element of occupation. Thus, we
analyze only the first and third elements, i.e., whether there were
sufficient markers to delineate the boundary and whether there
was mutual acquiescence to that boundary.

A. Markers

¶31 At trial, the Hansens presented evidence—determined by
the district court to have satisfied the clear and convincing
standard—of “a visible line marked by monuments, fences,
buildings, or natural features” along the claimed boundary line.
See Fautin, 2016 UT 22, ¶ 31. Beginning from the front of the
properties and proceeding to the back, there is a stump where
once stood a tree that the Mottes, while owners of the Jensen
property, required the Carters, then the owners of the Hansen
property, to remove; a carport; a chain link fence to the west of
the carport; a garage; a shed; remnants of fences that Jensen
removed; and a rodeo arena. In addition to these markers, there
is a noticeable elevation difference in the back portion of the
property, consistent with a fence having long been in place and
then removed, delineating a boundary that is roughly in line
with the other markers along the claimed boundary line. All
these markers created a clearly visible line approximately ten
feet west of the deeded boundary line that the property owners

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could acquiesce to as the boundary for the properties, and we
thus conclude that there was clear and convincing evidence
supporting the court’s finding on the marker element. We next
consider the court’s finding that the property owners actually
did so acquiesce.

B. Mutual Acquiescence

¶32 Landowners acquiesce to a boundary when they
“recognize and treat an observable line, such as a fence, as the
boundary dividing the owner’s property from the adjacent
landowner’s property.” RHN Corp. v. Veibell, 2004 UT 60, ¶ 24, 96
P.3d 935 (quotation simplified). Acquiescence “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. (quotation simplified), and it “is an objective
determination based solely on the parties’ actions in relation to
each other and to the line serving as the boundary,” Essential
Botanical Farms, 2011 UT 71, ¶ 27. It “may be shown by silence, or
through failure by the record title owner to suggest or imply that
the dividing line between the properties is not in the proper
location.” Id. (quotation simplified). See Fautin, 2016 UT 22, ¶ 21
(“[T]he mutual acquiescence element merely requires silence or
indolence by a nonclaimant[.]”).

¶33 “On the other hand, nonacquiesence in a boundary would
be signaled where a landowner notifies the adjoining landowner
of her disagreement over the boundary, or otherwise takes action
inconsistent with recognition of a given line as the boundary.”
Essential Botanical Farms, 2011 UT 71, ¶ 27 (emphasis in original)
(quotation otherwise simplified). “Ultimately, ‘a party’s
subjective intent has no bearing on the existence of mutual
acquiescence’ because such acquiescence ‘is based on the
objective behavior of the adjacent landowners regardless of their
subjective intent to act in such a manner.’” Linebaugh, 2020 UT
App 108, ¶ 27 (quoting Essential Botanical Farms, 2011 UT 71,

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¶ 27). “A party’s subjective belief will be considered evidence of
mutual acquiescence only ‘to the extent that such understanding
is based on the objective actions of the landowners.’” Id. (quoting
Essential Botanical Farms, 2011 UT 71, ¶ 28).

¶34 Jensen contends that the district court erred in
determining that the Hansens proved mutual acquiescence by
the Mottes and the Carters to the claimed boundary line.
Specifically, Jensen asserts that the court erred because Flora
“unequivocally testified that she did not treat any particular
marker as a boundary” and because Victoria’s “testimony was
devoid of any specific conduct showing mutual acquiescence.”
Jensen is mistaken.

¶35 Although the Mottes testified that they treated the deeded
property line as the boundary—questionable testimony, given
that the district court characterized it as incredible, see supra
¶ 15—the facts on the ground combined with Victoria’s
testimony provided the court with clear and convincing
evidence that the Mottes, as owners of the Jensen property, and
the Carters, as owners of the Hansen property, mutually
acquiesced to the claimed boundary line. Specifically, the Mottes
required the Carters to remove a tree that was, in fact, on the
Mottes’ deeded property, and they never objected to the Carters
erecting the carport, chain link fence, or garage within the
approximate ten-foot area between the deeded line and the
claimed boundary line. The Mottes also did not object to the
rodeo corral in the back of the property that extended over the
deeded boundary and was in line with the markers in the front
of the property. This provided clear evidence that the Mottes
treated the acquiesced-to line in the front of the property as the
boundary, which Jensen does not contest on appeal, and that
they also treated this line as extending through the back of the
property.

¶36 Furthermore, Victoria testified that all the previous
owners treated the claimed boundary line as the boundary

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between their properties. The markers along that line, and the
elevation discrepancy between the properties along that line,
supported her testimony. Jensen contends that Flora’s testimony
is dispositive because she claimed they did not treat all these
markers as the boundary. But the court expressly discredited
Flora’s testimony because it was inconsistent with the facts on
the ground, and Jensen has not shown how this finding is clearly
erroneous. See generally Utah R. Civ. P. 52(a)(4) (“Findings of
fact, whether based on oral or other evidence, must not be set
aside unless clearly erroneous, and the reviewing court must
give due regard to the trial court’s opportunity to judge the
credibility of the witnesses.”).

¶37 Thus, based on Victoria’s credible testimony, combined
with the facts on the ground, the court did not err in finding, by
clear and convincing evidence, that the Mottes and Carters
mutually acquiesced to the claimed boundary line. All the
markers were consistently in line with one another along the
claimed boundary line, and the Mottes did not at any time,
through their objective actions, “suggest or imply that the
dividing line between the properties” was not the claimed
boundary line. See Essential Botanical Farms, 2011 UT 71, ¶ 27
(quotation simplified). See also Ault v. Holden, 2002 UT 33, ¶ 20,
44 P.3d 781 (holding that property owners must “take some
action manifesting that they do not acquiesce or recognize the
particular line, e.g., a fence, as a boundary between the
properties”).

¶38 Finally, Jensen contends that the district court erred
“because it did not consider the purpose of the alleged boundary
markers.” While the purpose of a particular boundary marker
may be taken into consideration, it is not dispositive in this
analysis, and a court is not required to take it into consideration
when the objective facts on the ground indicate that the markers
acted as a boundary regardless of the reason for their initial
installation. See Linebaugh, 2020 UT App 108, ¶ 28 (“[T]he fact
that a fence is built with the initial objective of containing

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animals—as opposed to where such a fence is built and how the
parties thereafter regard it—is not dispositive.”). The district
court could reasonably disregard the subjective reasons behind
the genesis of certain markers because the objective facts,
coupled with Victoria’s credible testimony, overcame the
significance of any subjective purpose for the creation of those
markers.

CONCLUSION

¶39 We decline to review the district court’s rulings on
Jensen’s summary judgment motions because the court denied
the motions on the basis that disputes of material fact existed
and a trial was subsequently held in which those facts were
definitively resolved. Furthermore, Jensen has not shown an
abuse of the court’s discretion in determining that the Hansens’
failure to serve initial disclosures in a timely manner was
harmless. Finally, given its findings, the court was correct in
ruling that the boundary between the Hansen property and the
Jensen property was approximately ten feet west of the deeded
boundary, as all the elements of boundary by acquiescence were
met.

¶40 Affirmed.

MORTENSEN, Judge (concurring):

¶41 I concur in sections I and III of the lead opinion, and I
concur in the result of section II. So that the precedential import
of this case is not misperceived, I write separately to emphasize
that had the district court excluded all the Hansens’ evidence
and witnesses I would have likely voted to affirm in a heartbeat.
I also write separately to clarify that, apart from the result
reached by the lead opinion, I do not share the views, nor
support the implication of the analysis, in section II. And finally,
I write separately because I think we must harmonize the result

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 Hansen v. Kurry Jensen Properties

reached here with our recent decision in Segota v. Young 180 Co.,
2020 UT App 105, 470 P.3d 479.

¶42 When a party blows off rule 26’s initial disclosure
requirements in their entirety, that party should not be surprised
when its evidence or witnesses are excluded. With that said, I am
resigned to concur in the result here because we review the
decision at issue for an abuse of discretion, giving the district
court substantial deference. And here, the district court made
specific findings regarding harm and prejudice with which I do
not think Jensen has engaged—specifically the district court’s
determination that the failure to file initial disclosures was
harmless.

¶43 Jensen fails to appreciate how the district court actually
ruled in this case. The district court first ruled that the failure to
file initial disclosures under the particular facts of this case was
harmless. After making that ruling and denying the relief Jensen
sought, the district court also (1) required the Hansens to file the
missing initial disclosures and (2) allowed for discovery to be
conducted in light of those disclosures. And while Jensen assails
the district court for what Jensen characterizes as an attempt to
blunt any harm the failure to disclose caused, see supra note 9,
Jensen’s principal brief does not engage with the district court’s
reasoning as to why and how the Hansens’ failure to file initial
disclosures was harmless. I would end the analysis there. With
some frequency we have affirmed the ruling of the court below
when an appellant fails to address the basis of the lower court’s
ruling. See Golden Meadows Props., LC v. Strand, 2010 UT App 257,
¶ 17, 241 P.3d 375 (“Because [the appellant] fails to address the
basis of the district court’s ruling, we reject this challenge.”); see
also Cattani v. Drake, 2018 UT App 77, ¶ 52, 424 P.3d 1131; Gillett
v. Brown, 2017 UT App 19, ¶ 38, 391 P.3d 1055; Ortega v.
Ridgewood Estates LLC, 2016 UT App 131, ¶ 23, 379 P.3d 18; Wing
v. Still Standing Stable LLC, 2016 UT App 229, ¶ 21, 387 P.3d 605.
Rule 26(d)(4) expressly provides that a district court need not
exclude evidence or witnesses when disclosures have not been

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made if that failure is “harmless” or “good cause” is shown.
Here, the district court specifically made a determination
that the failure to file initial disclosures was harmless. And
Jensen’s lone argument that any failure to file initial
disclosures automatically mandates exclusion of evidence and
witnesses thus fails to address the basis of the district court’s
ruling. 11
10F

¶44 But I am particularly troubled by what the lead opinion
seems to consider sufficient to support a finding of
harmlessness, a point on which I think we need not opine. While
acknowledging that the Hansens’ verified complaint did not
satisfy rule 26(a)(1), the lead opinion concludes that the
complaint put Jensen on notice of who would be testifying and
what the general nature of their testimony would be. That might
be, and if all reliance were placed on a complaint that contained
all the information required by rule 26(a)(1)—only failing to be
formally denominated as a disclosure—a determination of
harmlessness might be sustainable. But then the lead opinion
goes further, concluding that Jensen was required to compare
this admittedly deficient disclosure with Jensen’s presumed
knowledge of the underpinning facts, which leads to a
conclusion of harmlessness because Jensen knew what evidence

11. Jensen mainly argues that the failure to file initial
disclosures automatically results in exclusion of evidence
and/or witnesses; this is consistent with Jensen’s arguments
below. However, Jensen also contends that it suffered harm
by “incur[ing] attorney’s fees in connection with the First
Motion for Summary Judgment and the Motion in Limine
in reliance on . . . their failure.” But, so far as we can decipher,
Jensen did not claim it had suffered harm before the district
court. As a result, this issue is not properly before us on appeal.
See Phillips v. Skabelund, 2021 UT App 2, ¶ 15 n.5, 482 P.3d 237.

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 Hansen v. Kurry Jensen Properties

was going to be used by the Hansens at trial and who was going
to offer the relevant testimony. See supra ¶¶ 26, 27. That is a
bridge too far for me. 12 This seems to invite a party to claim
harmlessness if it can argue any logical basis, no matter how

12. The lead opinion’s approach is sensible, and is often used,
where the litigant provides deficient initial disclosures and the
parties have otherwise exchanged significant discovery. A
litigant who actively participates in discovery should be able to
demonstrate harmlessness by showing that, despite failing to
disclose a particular witness in its initial disclosures, the
opposing party was aware that the witness at least had
discoverable information because it was mentioned in
depositions, interrogatories, etc. But where initial disclosures
were not provided at all, the lead opinion’s approach is
untenable: it shifts an unacceptable burden on the opposing
party to closely parse the pleadings and discovery exchanged (if
any) to decrypt which individuals even have discoverable
information. See Ollier v. Sweetwater Union High School Dist., 768
F.3d 843, 863 (9th Cir. 2014) (“An adverse party should not have
to guess which undisclosed witnesses may be called to testify.”);
Saudi v. Valmet-Appleton, Inc., 219 F.R.D. 128, 134 (E.D. Wis. 2003)
(“The importance of lay and expert witness disclosures and the
harms resulting from a failure to disclose need little elaboration.
When one party does not disclose, the responding party cannot
conduct necessary discovery, or prepare to respond to witnesses
that have not been disclosed, and for whom expert reports have
not been provided.”). And even in cases that do not involve
“complicated” factual disputes, see supra ¶ 27, this burden may
still be significant. As just one example, witnesses known to the
opposing party may nevertheless speak to other individuals
(unknown to the opposing party) about the operative facts of the
case. These individuals would thus, unbeknownst to the
opposing party, have discoverable information and might even
be crucial witnesses.

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 Hansen v. Kurry Jensen Properties

attenuated, to conclude that the opposing party should have
been able to cobble together a prescient picture of the potential
evidence or witnesses. For me, this is a result the 2011
amendments to rule 26 were specifically designed to avoid. See
Utah R. Civ. P. 26 advisory committee’s notes to 2011
amendment (explaining that the initial disclosure requirements
are “meaningful” and should be interpreted and applied so as to
prevent “sandbagging” the opposing party).

¶45 Moreover, I think it especially important to harmonize
what we have determined, in this case, falls within a district
court’s discretion, and our decision in Segota, where we
sustained another court’s decision to bar all documents and
witnesses because the plaintiff failed to provide timely initial
disclosures. See 2020 UT App 105, ¶¶ 21–23. As in this case, the
plaintiff in Segota did not provide initial disclosures until after
discovery had closed, id. ¶ 6, and she argued that her failure to
provide timely initial disclosures was harmless because the
defendants had actual knowledge of the information needed—
evidenced by the fact that her belated initial disclosures were
“identical” to the defendants’, id. ¶ 21. But unlike in this case,
and crucially so, the district court in Segota made a specific
finding of harm and accordingly sanctioned the plaintiff under
rule 26(d)(4). Id. ¶ 19.

¶46 We determined that the district court in Segota, for several
reasons, did not abuse its discretion. First, we held that actual
notice of witnesses and documents that might eventually be
used did not preclude the district court from finding that the
defendants were harmed. To this point, we specifically explained
that “[o]ne party’s ability to ‘guess at’ what the other party’s
disclosures might be, had they been timely made, does not
relieve the other party from its obligation to definitively inform
her litigation opponent, through disclosures, about the witnesses
and documents she plans to use to prove her case.” Id. ¶ 21
(quoting Keystone Ins. Agency v. Inside Ins., 2019 UT 20, ¶ 20, 445
P.3d 434). Second, we identified harm in the fact that, by not

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 Hansen v. Kurry Jensen Properties

providing initial disclosures until after discovery had closed, the
defendants had lost “their opportunity to conduct meaningful
fact discovery.” Id. Third, we identified harm in the delays and
costs caused by the belated disclosures that the defendants had
“no role in creating,” yet had to bear. Id. ¶ 22. And had the
district court in this case made any similar findings of harm and
accordingly excluded evidence under rule 26(d)(4), I have little
doubt that I would vote to affirm.

¶47 The result we reach here should thus not be understood
to change Segota’s holding. Both cases involve our review of a
discretionary judgment call under a necessarily deferential
standard. Therefore, both cases stand for the same general
proposition: a truly close call that could go either way—which
the district court here characterized as “razor thin”—will likely
be sustained. In one case—Segota—the district court made a
determination that neither harmlessness nor good cause could
be shown, and as a result, excluded the plaintiff’s evidence and
witnesses as directed by rule 26(d)(4). Id. ¶ 19. In the second
case—this case—the district court made a determination of
harmlessness and accordingly declined to impose sanctions
under rule 26(d)(4).

¶48 In RJW Media Inc. v. Heath, 2017 UT App 34, 392 P.3d 956,
we warned litigants about the need for proper and complete
disclosures, albeit in the specific context of expert disclosures,
but the substance of the warning is equally salient for initial
disclosures:

The requirement to provide a summary of
expected testimony is not merely a matter of form.
Disclosure of specific facts and opinions is required
so that parties can make better informed choices
about the discovery they want to undertake or, just
as important, what discovery they want to forgo.
More complete disclosures serve the beneficial
purpose of sometimes giving the opposing party

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 Hansen v. Kurry Jensen Properties

the confidence to not engage in further discovery.
But this is only true if the potential for surprise is
reduced by at least minimum compliance with the
rule 26 disclosure requirements.

Id. ¶ 25. And we categorically rejected the idea that an adverse
party is under any obligation to point out deficiencies in an
adverse party’s disclosures. Id. ¶ 29. We explained:

[W]here a party desires to use a witness or a
document, and where that party’s disclosure is
inadequate, the opposing party remains under no
obligation to bring the issue to a head. An
insufficient disclosure by one party does not shift
the burden and risk to resolve the insufficient
disclosure to the other party, who now must either
seek court intervention or waive objections to the
sufficiency of the disclosure. Such an approach
would undermine the purpose of the rule, which
ultimately is to encourage open disclosures
without a formal discovery request, and would
encourage scant disclosures at the outset in hopes
that the opposing party will not seek to compel
more.

Id. We further explained:

Instead, the rules embrace the idea of competing
risks. A disclosing party who endeavors, by
stratagem or otherwise, to disclose as little as
possible faces a significant risk that the disclosure
will be found insufficient and the evidence or the
witness may not be allowed. See Utah R. Civ. P.
26(d)(4) (exclusion of witness or exhibit is the
presumed sanction). To minimize this risk,
disclosing parties should be liberally forthcoming
rather than minimally compliant and risk the

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 Hansen v. Kurry Jensen Properties

possible consequences of testimony exclusion.
Likewise, where the sponsoring party under-
discloses, the receiving party may object and
attempt to compel further disclosure. See id. R.
26(b)(3), 37(a)(1)(A). And while there is no penalty
in the rule for failing to do so, the receiving party
does take the risk that a trial court may ultimately
find the disclosure sufficient, as occurred here.

RJW Media Inc., 2017 UT App 34, ¶ 30 (cleaned up). Implicit in all
of this is that neither the district court in this case, nor any
district court, is required by the rules to make any attempt to
ameliorate or blunt the resultant prejudice which occurs when a
party ignores disclosure requirements. No disclosure
requirement, and certainly not an initial disclosure requirement,
should come as a surprise to any party.

¶49 In sum, and as a forewarning to all litigants who are
tempted to play fast and loose with our discovery rules: the
Hansens risked it all when they failed to file initial disclosures.
That the gambit did not result in disaster should offer no solace
or refuge to future parties who undertake the same risk.

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 Hansen v. Kurry Jensen Properties

APPENDIX

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