2017 UT App 23

THE 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

20150549-CA 2 2017 UT App 23

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.
Mower v. Simpson

20150549-CA 3 2017 UT App 23

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 
Mower v. Simpson

20150549-CA 4 2017 UT App 23

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 
Mower v. Simpson

20150549-CA 5 2017 UT App 23

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.
Mower v. Simpson

20150549-CA 6 2017 UT App 23

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 
Mower v. Simpson

20150549-CA 7 2017 UT App 23

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.
Mower v. Simpson

20150549-CA 8 2017 UT App 23

. . . .

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 
Mower v. Simpson

20150549-CA 9 2017 UT App 23

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 
Mower v. Simpson

20150549-CA 10 2017 UT App 23

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 
Mower v. Simpson

20150549-CA 11 2017 UT App 23

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...)
Mower v. Simpson

20150549-CA 12 2017 UT App 23

¶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.
Mower v. Simpson

20150549-CA 13 2017 UT App 23

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 
Mower v. Simpson

20150549-CA 14 2017 UT App 23

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.
Mower v. Simpson

20150549-CA 15 2017 UT App 23

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...)
Mower v. Simpson

20150549-CA 16 2017 UT App 23

¶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.
Mower v. Simpson

20150549-CA 17 2017 UT App 23

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.
Mower v. Simpson

20150549-CA 18 2017 UT App 23

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 
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20150549-CA 19 2017 UT App 23

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, 
Mower v. Simpson

20150549-CA 20 2017 UT App 23

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.