Mower v. Simpson

2017 UT App 23
THE UTAH COURT OF APPEALS
LESLIE D. M OWER , LD III LLC,
AND LD R ANCH LLC,
Appellants,
v.
DAVID R. S IMPSON , LANDMARK R EAL ESTATE I NC., WOOD S PRINGS
LLC, PHEASANT M EADOWS LLC, K RISTIN W. M ACKEY ,
AND DEAN M ACKEY ,
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. F REDERIC VOROS JR . authored this Opinion, in which
JUDGES K ATE 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.

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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.

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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

Mower v. Simpson
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.