The Appellate Group

Hansen v. Kurry Jensen Properties

Hansen v. Kurry Jensen Properties, LLC, 2021 UT App 54 (Orme, J.)

Civil Procedure; Property Law

Following a bench trial, the district court determined that the Hansens proved a claim of boundary by acquiescence by clear and convincing evidence. Jensen appealed, arguing among other things that the district court improperly denied its prior motions for summary judgment and its motion in limine to exclude the testimony of Hansens’ witnesses at trial due to Hansens’ failure to submit initial disclosures. The Utah Court of Appeals affirmed, holding:

  • Because the district court denied the summary motions on the basis that there were disputed facts, and a trial was subsequently held to adjudicate those facts, the court of appeals would not review the district court’s summary judgment decisions.
  • Rule 26(d) of the Utah Rules of Civil Procedure does not mandate that the court exclude witnesses as a sanction if the court finds the failure to disclose is harmless or there is good cause for the failure so the district court was not categorically required to exclude the Hansesn’ witnesses.
  • Mortenson, J. (joined by Pohlman, J.) concurred in the result on this issue, but wrote separately to emphasize the importance of complying with discovery requirements, point out that the district court also likely would have been within its discretion to impose the sanction, and disagree with the lead opinion’s opining as to why the violation was harmless.

Read the full court opinion