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.
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BACKGROUND1

Boundary Line

¶2 In 2015, Jensen purchased a parcel of land (the Jensen 

property) from Flora and Richard Motte. At the time of sale,

Flora2 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 Judgment5

¶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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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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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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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 Limine7

¶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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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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(“[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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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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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.10F

11

¶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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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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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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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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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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possible consequences of testimony exclusion. 

Likewise, where the sponsoring party underdiscloses, 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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APPENDIX