Mower v. Simpson , 831 Utah Adv. Rep. 21 ( 2017 )

2017 UT App 23THE UTAH COURT OF APPEALS
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.
Opinion
No. 20150549-CA
Filed February 2, 2017
Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 100403908
Denver C. Snuffer Jr., Steven R. Paul, and William T.
Jennings, Attorneys for Appellants
Craig Carlile and Brent D. Wride, Attorneys for
Appellees David R. Simpson, Landmark Real Estate
Inc., Wood Springs LLC, and Pheasant
Meadows LLC
Aaron R. Harris, 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.
Mower v. Simpson
BACKGROUND
¶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.
ISSUES
¶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.
20150549-CA 2 2017 UT App 23Mower v. Simpson
ANALYSIS
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
20150549-CA 3 2017 UT App 23Mower v. Simpson
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 (Utah 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
20150549-CA 4 2017 UT App 23Mower v. Simpson
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?
1. Mower also cursorily argues that certain other statements in
her declaration are “not contradicted by her deposition
testimony” and “not contradicted by . . . the deposition
testimony.” However, Mower does not further analyze this
argument or support it with citations to the record as required
by rule 24(a)(9) of the Utah Rules of Appellate Procedure. We
therefore do not discuss it further.
20150549-CA 5 2017 UT App 23Mower v. Simpson
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
20150549-CA 6 2017 UT App 23Mower v. Simpson
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.
2. Throughout this opinion we cite to the 2013 version of the
Utah Rules of Civil Procedure, which was in effect at the time of
the proceedings in the district court.
20150549-CA 7 2017 UT App 23Mower v. Simpson
....
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 speculations about what other people discussed
in her absence or why someone avoided contact with her could
possibly be admissible into evidence. The district court did not
abuse its discretion in excluding these statements as
“unsubstantiated opinions and conclusions.”
¶22 Because Mower’s declaration testimony either
contradicted her deposition testimony or set forth
unsubstantiated opinions and conclusions, the district court did
not abuse its discretion in ruling Mower’s declaration
inadmissible.
II. Summary Judgment for Simpson Based on Lack of a
Factual Dispute
¶23 The district court granted summary judgment for
Simpson on two alternative grounds: that Mower’s claims were
barred by the statute of limitations and that Mower did not
provide “any evidence or any citations to depositions or
affidavits to show that the Simpson Defendants engaged in
fraud, negligent misrepresentation, a breach of fiduciary duties,
or conspiracy.” On appeal, Mower challenges both grounds.
¶24 Mower contends that “the trial court erred when it
granted summary judgment to Simpson and deemed all of
[Simpson’s] facts uncontroverted based on a hyper-stringent
20150549-CA 8 2017 UT App 23Mower v. Simpson
reading of Rule 7(c)(3)” of the Utah Rules of Civil Procedure.
Specifically, Mower argues that “[t]he trial court refused to
consider all the facts in the Court Record and improperly found
[Simpson’s] facts unopposed.” “Based on the fiction of
unopposed facts,” Mower argues, “the trial court proceeded to
make findings and conclusions supporting summary judgment.”
¶25 After briefing by both parties and oral argument, the
district court identified undisputed facts. Although Mower had
attempted to dispute Simpson’s facts, the court noted that
Simpson’s facts were supported by “very detailed citation to, or
quotes from, various depositions”; “citations to numerous
exhibits attached to the memorandum in support”; or “citations
to the complaint.” On the other hand, Mower’s opposition to
summary judgment contained “no citation to any deposition, no
citation to any affidavit, and no citation to any exhibit.”
Consequently, the court accepted Simpson’s factual assertions
and rejected Mower’s:
The rule requires more than a denial or
unsupported factual allegations; to defeat a motion
for summary judgment, the opposing party must
explain the basis for denial by providing citation to
relevant materials. As the Plaintiffs have failed to
cite any material to support the denials, the
Simpson Defendants’ facts are deemed admitted.
Utah R. Civ. P. 7(c)(3)(A); see also Jensen v. Skypark
Landowners Assoc., 2013 UT App 48, ¶ 2, 299 P.3d
609.
Plaintiffs failed to properly dispute any of the
undisputed facts set forth in the Simpson
Defendants’ Statement of Undisputed Facts.
Accordingly, all those facts are deemed admitted.
Plaintiffs’ attempt to incorporate additional facts
by reference to [the Mower Declaration] is likewise
20150549-CA 9 2017 UT App 23Mower v. Simpson
futile as the declaration is inadmissible because it
consists of nothing but statements directly
contradicted by her prior deposition testimony and
unsubstantiated opinions and conclusions.
Based on Simpson’s statement of undisputed facts, the court
granted Simpson summary judgment on each of Mower’s
claims.
¶26 “We review the district court’s grant of a motion for
summary judgment for correctness.” Overstock.com, Inc. v.
SmartBargains, Inc., 2008 UT 55, ¶ 12, 192 P.3d 858 (citing
Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 21, 54 P.3d
1054). Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Utah R. Civ. P. 56(c). If the
moving party demonstrates that no genuine issue of material
fact exists, the burden shifts to the nonmoving party to present
evidence of a material factual dispute:
The moving party has the burden of presenting
evidence to demonstrate that no genuine issue of
material facts exists and that judgment as a matter
of law is proper. Utah R. Civ. P. 56(e). However,
once 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. Utah R. Civ. P. 56(e). The
nonmoving party “may not rest upon the mere
allegations or denials of his pleading, but his
response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that
20150549-CA 10 2017 UT App 23Mower v. Simpson
there is a genuine issue for trial.” Utah R. Civ. P.
56(e). The nonmoving party must submit more
than just conclusory assertions that an issue of
material fact exists to establish a genuine issue.
Waddoups, 2002 UT 69, ¶ 31, (additional citations omitted).
¶27 Rule 7(c)(3)(B) of the Utah Rules of Civil Procedure
requires that a party opposing summary judgment set forth a
“verbatim restatement of each of the moving party’s facts that is
controverted” and, for each controverted fact, “provide an
explanation of the grounds for any dispute, supported by
citation to relevant materials, such as affidavits or discovery
materials.”
¶28 Here, Mower cited no facts in opposing Simpson’s motion
for summary judgment. Her opposition to Simpson’s motion
disputed certain factual statements but contained no citations to
supporting materials. The district court concluded that Mower
did not “provide any evidence or any citations to depositions or
affidavits” to support her claims against Simpson. Accordingly,
the district court granted summary judgment for Simpson.
¶29 On appeal Mower argues that her declaration supported
her factual assertions. However, as the district court explained,
Mower’s “attempt to incorporate additional facts by reference to
[the Mower Declaration] [was] likewise futile as the declaration
[was] inadmissible.” Because we have already concluded that
the district court did not abuse its discretion in striking the
Mower Declaration, see supra Part I, the court was within its
authority to refuse to consider Mower’s unsubstantiated facts at
summary judgment. 3
3. Mower also relies on the declaration of Paul Reeb, in which he
asserted that “Hobble Creek Investments did not demand the 4.5
(continued…)
20150549-CA 11 2017 UT App 23Mower v. Simpson
¶30 In sum, we reject Mower’s claim that the district court
erred in granting summary judgment, having concluded that
Mower failed to “support by citation to the relevant
materials . . . each of the moving party’s facts that is
controverted.” See Utah R. Civ. P. 7(c)(3)(B).
III. Summary Judgment for Simpson Based on the Statute
of Limitations
¶31 Mower contends that the district court erred in granting
summary judgment for Simpson on the ground “that the statute
of limitations had run on [her] claims.” Mower maintains that
application of the equitable discovery rule tolls the statute of
limitations against her claims.
¶32 The district court ruled that Mower’s claims were barred
by the statute of limitations because “Dolezsar, Mower’s agent,
was aware of the details of each of these transactions, and his
knowledge is imputed to Mower.” The district court found that
“the last event to complete the closing” of the parcel on which
Mower’s Equestrian Center now sits “occurred on August 27,
2006” and hence that the statute of limitations had run on
Mower’s claims:
The closings constitute the time when [Mower’s]
causes of action would have accrued, as that was
the time any alleged damages would have been
incurred. Dolezsar, Mower’s agent, was aware of
(…continued)
acres from the Mackey Parcel and would have taken any
property contiguous to its own to make up the 10 total acres.”
But Mower merely refers to this allegation; she does not show
how it created a dispute of fact that would defeat summary
judgment.
20150549-CA 12 2017 UT App 23Mower v. Simpson
the details of each of these transactions, and his
knowledge is imputed to Mower. Therefore, the
claims for fraud and negligent misrepresentation
would have been barred as of August 27, 2009,
more than a year before the complaint was filed.
Any claims of conversion, breach of fiduciary
duties, unjust enrichment and conspiracy were
barred within four years of each closing, the latest
of which would have been August 27, 2010.
Accordingly, [Mower’s] claims are barred by the
statute of limitations.
Finding that the relevant statutes of limitation had run on each
of Mower’s claims, the district court granted summary judgment
in favor of Simpson. “A trial court’s determination of whether a
statute of limitations has expired is a question of law reviewed
for correctness.” Crawford v. CBS Outdoor, Inc., 2008 UT App 51U,
para. 4 (per curiam).
¶33 “As a general rule, a statute of limitations begins to run
upon the happening of the last event necessary to complete the
cause of action.” Russell Packard Dev., Inc. v. Carson, 2005 UT 14,
¶ 20, 108 P.3d 741 (citation and internal quotation marks
omitted). “Once a statute has begun to run, a plaintiff must file
his or her claim before the limitations period expires or the claim
will be barred. Mere ignorance of the existence of a cause of
action will neither prevent the running of the statute of
limitations nor excuse a plaintiff’s failure to file a claim within
the relevant statutory period.” Id.
¶34 Two exceptions to the general rule allow a statute of
limitations to be tolled “until the discovery of facts forming the
basis for the cause of action.” Id. ¶ 21 (citation and internal
quotation marks omitted). The first exception, known as the
“statutory discovery rule,” “involves situations in which a
relevant statute of limitations, by its own terms, mandates
20150549-CA 13 2017 UT App 23Mower v. Simpson
application of the discovery rule.” 4 Id. The second exception,
known as the “equitable discovery rule,” “involves situations
where a relevant statute of limitations provides only a fixed
limitations period with no statutory discovery rule exception.”
Id. ¶ 24. The equitable discovery rule “may operate to toll an
otherwise fixed statute of limitations” in two situations. Id. ¶ 25.
First, “where a plaintiff does not become aware of the cause of
action because of the defendant’s concealment or misleading
conduct.” Id. (citation and internal quotation marks omitted).
And second, “where the case presents exceptional circumstances
and the application of the general rule would be irrational or
unjust, regardless of any showing that the defendant has
prevented the discovery of the cause of action.” Id. ¶ 25 (citation
and internal quotation marks omitted).
¶35 The knowledge of an agent concerning the business
which he is transacting for his principal is imputed to his
principal. Wardley Better Homes & Gardens v. Cannon, 2002 UT 99,
¶ 16, 61 P.3d 1009. Thus, if Dolezsar was Mower’s agent, the law
imputes to his principal, Mower, his knowledge of the
transactions with Simpson. Accordingly, our resolution of the
underlying statute of limitations issue turns on whether
Dolezsar was Mower’s agent.
¶36 Mower argues, based solely on the Mower Declaration,
that Dolezsar was not her agent: “Whether Dolezsar was
[Mower’s] agent, whether he acted within the scope of that
agency, and whether his knowledge at the time of closing can be
imputed to [Mower] are all disputed in the Mower Declaration.”
As noted, Mower’s sole support for this statement is the Mower
Declaration, which we have already concluded was properly
4. Mower does not contend that the statutory discovery rule
applies.
20150549-CA 14 2017 UT App 23Mower v. Simpson
ruled inadmissible. See supra Part I. Accordingly, Mower’s claim
fails on this ground alone.
¶37 Moreover, the undisputed facts support the district
court’s conclusion that Dolezsar acted as Mower’s agent. Over
half a dozen times, Mower’s complaint alleges that Simpson
“told” Mower something or “represented” something to Mower.
Yet Mower admitted in her summary judgment response that
“Simpson never had any conversations with Mower regarding
the purchase and acquisition of any of the properties assembled
by Simpson and Dolezsar for a horse ranch and equestrian
center.” In other words, Mower’s own claims depend on
Dolezsar’s having acted as her agent. And, as shown above,
Mower testified in her deposition that Dolezsar “had the
fiduciary responsibility to take care of me and to do what I asked
him to do up at the ranch” and was acquiring property for her
benefit using her funds.
¶38 As Dolezsar’s principal, Mower is imputed with
Dolezsar’s knowledge regarding the various property deals. See
Wardley, 2002 UT 99, ¶ 16. And Mower does not dispute that
Dolezsar had knowledge of the challenged property transactions
at the time of closing. Additionally, Mower has not argued or
provided any evidence that she was not “aware of [her] cause[s]
of action because of [the Appellees’] concealment or misleading
conduct . . . .” See Russell Packard Dev., Inc. v. Carson, 2005 UT 14,
¶ 25, 108 P.3d 741. Without showing exceptional circumstances
or that Appellees concealed or otherwise caused Mower to not
learn of the facts leading to her complaint, Mower has not
demonstrated that the district court erred when it ruled
equitable tolling did not apply. 5
5. Mower cites Jensen v. IHC Hospitals, Inc. for the proposition
that, “where the agent has interests in the transaction adverse to
(continued…)
20150549-CA 15 2017 UT App 23Mower v. Simpson
¶39 We therefore conclude that the district court correctly
ruled that Mower’s claims against Simpson are barred by the
statute of limitations.
IV. Motion for Reconsideration
¶40 Mower contends that “[t]he trial court abused its
discretion when it denied [Mower’s] motion for reconsideration
when the case was not fully resolved and the court record
demonstrated genuine issues of material fact.”
¶41 After the district court granted Simpson’s motion for
summary judgment, Mower filed a motion for reconsideration.
In the motion, Mower urged the court to “reconsider its ruling
and deny summary judgment and allow the parties to proceed to
trial on the merits of their claims.” Mower’s motion relied on
“the disputed issues of fact demonstrated by [her] declaration
and the other supporting materials submitted in opposition to
Simpson’s motion for summary judgment.”
¶42 The district court denied the motion based on the court’s
oral ruling made at a previous hearing. That hearing began with
a statement from the court about the “rarity involved” and
“extraordinary circumstances” required for a court to grant a
motion for reconsideration. Mower’s counsel explained that
(…continued)
the principal’s, or where the agent colludes with third parties
whose interests are adverse to the principal’s interests,
knowledge of the facts at issue will not be imputed to the
principal.” 2003 UT 51, ¶ 63, 82 P.3d 1076 (citations and internal
quotation marks omitted). But Mower points to no admissible
evidence from which a finder of fact could conclude that
Dolezsar’s conduct implicates this exception to the general rule
of agency.
20150549-CA 16 2017 UT App 23Mower v. Simpson
summary judgment was improper when material facts—many
contained in Mower’s deposition—were still in dispute.
Simpson’s counsel responded that reconsideration was improper
under any of the criteria that Utah courts analyze when deciding
to grant or deny a motion for reconsideration. The court denied
Mower’s motion on the ground that it did not rise “to that level
of the rare circumstance” under the general criteria involved. 6
¶43 “Because trial courts are under no obligation to consider
motions for reconsideration, any decision to address or not to
address the merits of such a motion is highly discretionary.”
Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 15, 163 P.3d 615.
“We will not disturb a district court’s decision to grant or deny
such a motion absent an abuse of discretion. ‘Under this
standard, [a] trial court’s ruling may be overturned only if there
is no reasonable basis for the decision.’” State v. Ruiz, 2012 UT 29,
¶ 23, 282 P.3d 998 (alteration in original) (quoting Tschaggeny,
2007 UT 37, ¶ 16).
¶44 Mower does not show that there is no reasonable basis for
the decision. On appeal she relies on cases holding merely that a
court may reconsider a prior ruling. See, e.g., Timm v. Dewsnup,
851 P.2d 1178 (Utah 1993). But none of these cases show that the
court abused its discretion here. Mower argues that
reconsideration was proper because she “showed contested
issues of fact and cured any possible technical defect in the
pleadings.” This argument appears to refer to her declaration as
6. The district court relied on a statement from our supreme
court that, while “the extraordinary circumstance may arise
when it is appropriate to request a trial court to reconsider a
ruling,” these occasions are “rare.” See Shipman v. Evans, 2004 UT
44, ¶ 18 n.5, 100 P.3d 1151, abrogated on other grounds by Utahns for
Better Dental Health-Davis, Inc. v. Davis County Clerk, 2007 UT 97,
175 P.3d 1036.
20150549-CA 17 2017 UT App 23Mower v. Simpson
the source of contested facts. But we have already concluded
that her declaration was properly ruled inadmissible. See supra
Part I. Because Mower did not present any new evidence or
otherwise show why her motion involved anything other than a
second challenge to the court’s prior summary judgment ruling
on the same issues, she has not shown that the district court
abused its discretion by denying her motion for reconsideration.
See Tschaggeny, 2007 UT 37, ¶ 16.
V. Summary Judgment for the Mackeys
¶45 Mower contends that “[t]he trial court erred in granting
the Mackey defendants summary judgment based upon the law
of the case.” Specifically, she argues that the court erred in
granting the Mackeys summary judgment based on the prior
summary judgment in favor of Simpson because “a Motion for
reconsideration, an opposition to the Mackey Motion for
Summary Judgment, the Mower Declaration, and the Reeb
Declaration,” had all been “add[ed] to the record before the
Mackey hearing.” “The record,” Mower argues, “contained all
the required citations the lower court claimed were missing
before.” In essence Mower argues that by the time the Mackeys’
motion for summary judgment was under consideration, she
had cured the flaws that had caused her earlier opposition to
Simpson’s motion for summary judgment to fail.
¶46 The district court granted the Mackeys summary
judgment on each of Mower’s claims. In its ruling the district
court discussed the concept of “the law of the case” before
explaining why summary judgment was appropriate for each of
Mower’s claims.
¶47 “The application of the law of the case doctrine is
ordinarily reviewed under an abuse of discretion standard.
However, when a legal question is presented to an appellate
court in law-of-the-case packaging, the abuse of discretion
20150549-CA 18 2017 UT App 23Mower v. Simpson
standard must yield to the correctness standard of review.”
McLaughlin v. Schenk, 2013 UT 20, ¶ 19, 299 P.3d 1139 (citation
and internal quotation marks omitted). Although Mower argues
that the standard of review in this case is correctness, we see no
legal question presented in law-of-the-case packaging.
Therefore, we review this claim under the abuse of discretion
standard. See id.
¶48 “The law-of-the-case doctrine generally provides that a
decision on an issue at one stage of a case is binding in
successive stages of the same litigation.” Plumb v. State, 809 P.2d
734, 739 (Utah 1990). “However, this doctrine does not prevent a
judge from reconsidering his or her previous nonfinal orders,”
id., but “‘merely expresses the practice of courts generally to
refuse to reopen what has been decided,’” id. (quoting Messinger
v. Anderson, 225 U.S. 436, 444 (1912)). “The exceptional
circumstances under which courts have reopened issues
previously decided are narrowly defined: (1) when there has
been an intervening change of controlling authority; (2) when
new evidence has become available; or (3) when the court is
convinced that its prior decision was clearly erroneous and
would work a manifest injustice.” Thurston v. Box Elder County,
892 P.2d 1034, 1039 (Utah 1995).
¶49 Mower maintains that “the case posture changed
dramatically” between the Simpson and the Mackey summary
judgment motions. However, she fails to specify any of those
changes or cite the record as required by the appellate rules. See
Utah R. App. P. 24(a)(9). Consequently, Mower has failed to
carry her burden of persuasion on appeal. See State v. Nielsen,
2014 UT 10, ¶ 34, 326 P.3d 645. Furthermore, given the
arguments in Mower’s briefing, it appears likely that the
dramatic change Mower refers to is the filing of her declaration,
20150549-CA 19 2017 UT App 23Mower v. Simpson
and we have affirmed the district court’s ruling excluding that
declaration. See supra Part I.7
¶50 Because Mower has not demonstrated that the district
court committed any error, we affirm the summary judgment in
favor of the Mackeys.
CONCLUSION
¶51 For the foregoing reasons, the judgment of the district
court is affirmed.
7. Mower makes several factual allegations in this section of her
brief. For example, she alleges that the “Mackeys have always
admitted that they have in their possession 12–14 acres of
property Plaintiffs paid for and that should be returned to
Plaintiffs.” But none of these factual allegations are supported by
citations to the record. Rule 24(a)(9) of the Utah Rules of
Appellate Procedure places on the appellant, not the appellate
court, the burden of identifying the parts of the record relied on
by the appellant. Unsupported factual allegations do nothing to
advance a litigant’s case on appeal.
20150549-CA 20 2017 UT App 23