Bangerter v. Petty

2009 UT 67
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Sonya Capri Bangerter, 	No. 20080562
Plaintiff and Petitioner,
v.
Ralph Petty, an individual;
Jarmaccc Properties, LLC,
a Utah limited liability company;
Jarmaccc, Inc., a Utah corporation;
and John Does 1 through 10,
individuals and entities whose true
names are unknown, and who may
claim some right, title, estate,
lien, or interest in real property 	F I L E D
owned by plaintiff,
Defendants and Respondents. 	October 20, 2009
---
Third District, Salt Lake
The Honorable Mark S. Kouris
The Honorable Stephen L. Roth
No. 040900081
Attorneys: 	James C. Haskins, Ryan M. James, Salt Lake City, for
petitioner
Ralph C. Petty, Salt Lake City, for respondents
---
On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 	We granted certiorari in this case to determine whether
the court of appeals erred in concluding that Jarmaccc
Properties, LLC (Jarmaccc) did not waive its statute of
limitations defense. 	Because we hold that the statute of
limitations does not bar an individual, in actual possession of
real property under a claim of ownership, from asserting a quiet

1 Jarmaccc attempted to pay the real estate taxes on the
Property for 2001, but its payment was rejected and refunded;
Bangerter’s payment was accepted.
2 The original amount of Bangerter’s unpaid dental bill was
$67.52.
No. 20080562 	2
title action, we need not address whether Jarmaccc waived its
statute of limitations defense. 	We therefore remand this case to
the court of appeals to consider whether the district court erred
in deciding Jarmaccc’s remaining claims.
FACTS AND PROCEDURAL HISTORY
¶2 	Sonya Capri Bangerter has continuously occupied the
real property (the Property) disputed in this case since she
purchased it in April 1994. 	She has paid all the real estate
taxes on the Property from 1994 to the present, 1 and she is the
only individual or entity that has made mortgage payments on the
Property.
¶3 	In April 1995, a judgment was entered against Bangerter
in the amount of $307.46 for failure to pay for dental services, 2
which ultimately resulted in a writ of execution that commanded
the sheriff “to collect the judgment, with costs, interest, and
fees, and to sell enough of defendant’s non-exempt real property
to satisfy the same.” 	A deputy sheriff filed a notice of real
estate levy against the Property and it was subsequently sold in
March 1996 at a public auction for $1,550.00 to North American
Recovery Services (N.A.R.), a collection agency. 	Bangerter
failed to redeem the property within six months, and as a result
N.A.R. was given a sheriff’s deed to the Property in September
1996. 	More than a year later, an amended real estate certificate
of sale execution was filed to correct an error in the legal
description of the property that was present in the original
notice of real estate levy and certificate of sale execution.
N.A.R. subsequently filed a quitclaim deed to the Property in
favor of Jarmaccc.
¶4 	Bangerter alleges she never received any notice that
the Property would be sold at a public auction to satisfy the
judgment for the unpaid dental services. 	Indeed, Bangerter
asserts that she was unaware that Jarmaccc or anyone else claimed
an adverse interest in the Property until March 1998. 	Even then,
Bangerter claims that she was ignorant of Jarmaccc’s adverse
claim of actual title. 	Rather, she believed that Jarmaccc held
only a lien on the Property.

3 Jarmaccc argues that it did not pursue the Notice to Quit
because of the automatic stay provisions of the bankruptcy code.
However, Jarmaccc could have filed for relief from the automatic
stay provisions during the pending bankruptcy proceeding but
chose not to do so.
4 Indeed, Jarmaccc did not file a motion seeking relief from
the automatic stay provisions during either of Bangerter’s
bankruptcy proceedings.
5 Jarmaccc did not attempt to reject the funds it received
from Bangerter’s second bankruptcy proceeding at the time the
funds were paid and made no attempt to tender those funds back to
Bangerter until exactly one week before it filed its brief before
the court of appeals.
3 	No. 20080562
¶5 	In March 1998, Bangerter filed for Chapter 13
bankruptcy. 	Shortly after Bangerter filed, Jarmaccc served
Bangerter with the first and only Notice to Quit the Property.
However, Jarmaccc did not pursue the Notice to Quit, 3 nor did it
file a motion seeking relief from the automatic stay provisions
of the bankruptcy code. 	After Bangerter’s first bankruptcy was
dismissed, Bangerter filed for bankruptcy a second time. 4 	In
Bangerter’s second bankruptcy action, she listed Jarmaccc as a
secured creditor with a lien on the Property for $1,200.00.
Bangerter’s bankruptcy plan provided that “[a]ny lien or other
claim against the title of debtor’s real property securing the
claim of Jarmaccc Properties shall be extinguished and released
by payment through the Plan.” 	Jarmaccc received a copy of
Bangerter’s bankruptcy plan and failed to lodge any objections.
Bangerter then paid Jarmaccc the full amount set out in the
bankruptcy plan. 5 	In August 2003, after Jarmaccc had received
full payment under the terms of the bankruptcy plan, the
bankruptcy court dismissed Bangerter’s second bankruptcy
petition.
¶6 	In January 2004, Bangerter filed this action against
Jarmaccc seeking to quiet title to the Property. 	Bangerter
argued that title to the Property should be quieted in her
because the sheriff’s deed was void and Jarmaccc was equitably
estopped from claiming any title to the property where it failed
to object to Bangerter’s second bankruptcy plan that listed
Jarmaccc as a secured creditor and where Bangerter had paid
Jarmaccc the full amount set out in that plan. 	In its answer,
Jarmaccc asserted that the statute of limitations barred
Bangerter’s quiet title action, that Jarmaccc held title to the
Property, and that the bankruptcy proceeding could not convey
title back to Bangerter.

No. 20080562 	4
¶7 	After both parties filed cross motions for summary
judgment, the district court quieted title in Bangerter holding
that (1) the original sale of the Property failed to convey any
title because the deed contained an incorrect legal description,
(2) Jarmaccc failed to object to the bankruptcy plan, and (3)
Bangerter would be injured if Jarmaccc was “allowed to contradict
its actions in accepting the payments made pursuant to the
Chapter 13 plan.” 	The district court also rejected Jarmaccc’s
statute of limitations arguments.
¶8 	On appeal, the court of appeals reversed the district
court and held that Jarmaccc did not waive its statute of
limitations defense and that, pursuant to Nolan v. Hoopiiaina (In
re Hoopiiaina Trust), 2006 UT 53, 144 P.3d 1129, the statute of
limitations bars Bangerter’s quiet title action against Jarmaccc.
Bangerter v. Petty, 2008 UT App 153, ¶¶ 15-24, 184 P.3d 1249.
Because the court of appeals held that Bangerter’s quiet title
action was barred by the statute of limitations, it did not
consider whether the district court erred in its determination
that Jarmaccc’s deed was defective because of an incorrect legal
description or whether Jarmaccc was equitably estopped from
claiming title to the Property.
¶9 	Bangerter petitioned for certiorari, which we granted.
We have jurisdiction in this case pursuant to Utah Code section
78A-3-102(3)(a) (2008).
STANDARD OF REVIEW
¶10 	“On certiorari review, we review the decision of the
court of appeals, not the decision of the district court.” 	Nolan
v. Hoopiiaina (In re Hoopiiaina Trust), 2006 UT 53, ¶ 19, 144
P.3d 1129. 	We review “the court of appeals’ decision for
correctness, with particular attention to whether [it] reviewed
the [district] court’s decision under the correct standard.”
State v. Worwood, 2007 UT 47, ¶ 11, 164 P.3d 397. 	Summary
judgment is appropriate where “there is no genuine issue as to
any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” 	Utah R. Civ. P. 56(c).
Therefore, when an appellate court reviews a
district court’s grant of summary judgment,
the facts and all reasonable inferences drawn
therefrom [are viewed] in the light most
favorable to the nonmoving party, while the
district court’s legal conclusions and

6 JARMACCC’s Answer to Bangerter’s complaint alleges that
her claim was barred under the statute of limitations. 	Rule 9(h)
of the Utah Rules of Civil Procedure states as follows:
In pleading the statute of limitations it is
not necessary to state the facts showing the
defense but it may be alleged generally that
the cause of action is barred by the
provisions of the statute relied on,
referring to or describing such statute
specifically and definitely by section
number, subsection designation, if any, or
otherwise designating the provision relied
upon sufficiently clearly to identify it.
Utah R. Civ. P. 9(h) (emphasis added).
7 “We note that the scope of our grant of certiorari, while
generally binding on the parties for purposes of argument, does
not preclude us from treating dispositive issues that become
apparent when the advocacy process is complete.” 	Massey v.
Griffiths, 2007 UT 10, ¶ 9 n.1, 152 P.3d 312. 	The applicability
of the statute of limitations defense was ruled on by the court
of appeals. In the interest of preventing the perpetuation of an
incorrect rule, we may correct errors in the court of appeals’
opinion on certiorari even when the parties initially fail to
bring the error to our attention.
5 	No. 20080562
ultimate grant or denial of summary judgment
are reviewed for correctness.
Massey v. Griffiths, 2007 UT 10, ¶ 8, 152 P.3d 312 (alteration in
original) (internal citation and quotation marks omitted).
ANALYSIS
¶11 	We granted certiorari in this case to determine whether
the court of appeals erred in holding that Jarmaccc did not waive
its statute of limitations defense when it failed to identify the
limitations statute it relied upon in its original Answer to
Bangerter’s complaint. 6 	Because we hold that the statute of
limitations does not apply to quiet title actions where the
claimant is in actual possession of the property in question
under a claim of ownership, we need not address whether the court
of appeals erred in holding that Jarmaccc did not waive its
statute of limitations defense. 7

No. 20080562 	6
I. 	A STATUTE OF LIMITATION NEVER BARS A PARTY FROM BRINGING A
QUIET TITLE ACTION WHEN THAT PARTY IS IN ACTUAL POSSESSION OF THE
REAL PROPERTY AT ISSUE UNDER A CLAIM OF OWNERSHIP
¶12 	In Branting v. Salt Lake City, we established the
general rule that where “the action is purely one to remove a
cloud or to quiet the title [to real property], the statute of
limitations has no application.” 	153 P. 995, 1001 (Utah 1915).
However, in Branting we also held that “all actions in which the
principal purpose is to obtain some affirmative relief . . .
clearly come within the [statute of limitations].” 	Id. 	More
recently, in Nolan v. Hoopiiaina (In re Hoopiiaina Trust), we
attempted to “clarify the rule regarding the application of the
statute of limitations to a quiet title action.” 	2006 UT 53,
¶ 21, 144 P.3d 1129. 	In that case, we held that “a court must
examine the relief sought in order to determine whether the
statute of limitations applies.” 	Id. ¶ 27. 	If the action is a
true quiet title action, meaning an action merely to “quiet an
existing title against an adverse or hostile claim of another,”
then the statute of limitations will not bar the claim. 	Id. ¶ 26
(internal quotation marks omitted) (emphasis in original).
However, “[i]f the party’s claim for quiet title relief can be
granted only if the party succeeds on another claim, then the
statute of limitations applicable to the other claim will also
apply to the quiet title claim.” 	Id. ¶ 27.
¶13 	Relying on our analysis in In re Hoopiiaina Trust,
Jarmaccc argues that Bangerter’s claim is not a true quiet title
action because Bangerter must first succeed on her claim to void
the sheriff’s deed before she can have title quieted in her, and
therefore the statute of limitations bars Bangerter’s claim to
the Property. 	Bangerter, on the other hand, argues that In re
Hoopiiaina Trust is distinguishable from this case on the basis
that it did not involve a quiet title action where the claimant
was in actual possession of the property. 	Bangerter cites the
court of appeals decision in Conder v. Hunt for the proposition
that “those in actual possession of real estate are never barred
by any statute of limitation from seeking to quiet their title.”
2000 UT App 105, ¶ 17, 1 P.3d 558.
¶14 	The court of appeals attempted to reconcile In re
Hoopiiaina Trust with Conder by reasoning that the two cases were
not in conflict but that both rules must be satisfied to avoid
the statute of limitations. 	It reasoned that “[a] person in
possession who seeks to quiet their own title is not barred by
any statute of limitations.” 	Bangerter v. Petty, 2008 UT App
153, ¶ 23, 184 P.3d 1249. 	The court of appeals then held that
“Bangerter is not pursuing a ‘true’ quiet title action because

8 See Clary v. Stack Steel & Supply Co., 611 P.2d 80, 83
(Alaska 1980)(“Normally no statute of limitations applies to a
quiet title action brought by a person in possession of real
property . . . .”); Tench v. Galaxy Appliance & Furniture Sales,
Inc., 567 S.E.2d 53, 58 (Ga. Ct. App. 2002)(“[T]here exists no
statute of limitation for the recovery of an equitable interest
in land. . . . 	‘One who is in possession of property under a
claim of ownership will not be guilty of laches for delay in
resorting to a court of equity to establish his rights.’”
(quoting Davis v. Newton, 108 S.E.2d 809, 811 (Ga. 1959)); Argyle
v. Slemaker, 585 P.2d 954, 958 (Idaho 1978)(“Statutes of
limitation are generally held to be inapplicable in actions
brought by a landowner in possession seeking to quiet title
. . . .”); Withroder v. Wiederoder, 134 P.2d 381, 385 (Kan.
1943)(“Plaintiff was in possession, consequently he was entitled
to bring an action to quiet title at any time his convenience or
necessity might require.”); Peterson v. Hopkins, 684 P.2d 1061,
1065 (Mont. 1984)(“[T]he right of a plaintiff to have his title
to land quieted, as against one who is asserting some adverse
claim, is not barred while the plaintiff or his grantors remain
in actual possession of the land, claiming to be the owners.”);
Ford v. Clendenin, 109 N.E. 124, 126 (N.Y. 1915)(“[A]n owner in
possession has a right to invoke the aid of a court of equity at
any time while he is so the owner and in possession . . . and
such a right is never barred by the Statute of Limitations.”).
See also 65 Am. Jur. 2d Quieting Title and Determination of
Adverse Claims § 51 (2008)(“Generally, the right of a plaintiff
to have his or her title to land quieted . . . is not barred
while the plaintiff or his or her grantors remain in possession
of the land, claiming to be its owners.”).
7 	No. 20080562
she did not have the title to the Property at the time she was in
possession of the Property and brought her lawsuit” and therefore
the statute of limitations applied and bared her quiet title
action. 	Id. 	We disagree. 	In re Hoopiiaina Trust does not apply
to bar an individual or entity in actual possession of property
under a claim of ownership from bringing an action to quiet
title. 	As discussed below, this rule conforms to our prior case
law and mirrors the rule adopted by other jurisdictions. 8
¶15 	While we have dealt with the applicability of the
statute of limitations in prior quiet title actions, this case
presents us with the first opportunity to address whether a
statute of limitations defense can prevent a claimant in actual
possession of the property at issue from bringing a quiet title

9 Because the claimants in In re Hoopiiaina were not in
actual possession of the disputed property, our analysis in that
case does not address whether one in actual possession is ever
barred from bringing a quiet title action. 	See In re Hoopiiaina,
2006 UT 53, ¶ 11.
No. 20080562 	8
action. 9 	In Conder, the court of appeals recognized in dicta
that “the general rule is that those in actual possession of real
estate are never barred by any statute of limitation from seeking
to quiet their title.” 	2000 UT App 105, ¶ 17. 	While no Utah
cases have specifically adopted this rule, a number of our cases
assume that we adhere to it. 	For example, in Rodgers v. Hansen,
we held that claimant’s quiet title action was not barred by a
limitation statute where claimant’s successor “had continuous
possession of the property” and claimant filed the action shortly
after the successor’s death, even though “it was known that there
was a dispute as to respective interests in the property” almost
twenty years before the quiet title action was filed. 	580 P.2d
233, 235 (Utah 1978). 	Similarly, in Davidsen v. Salt Lake City,
we found significant the fact that claimant was “not in
possession of the land” along with other factors in ultimately
concluding that a limitations statute barred claimant’s quiet
title action. 	81 P.2d 374, 376-77 (Utah 1938).
¶16 	Other jurisdictions have explicitly adopted the general
rule recognized in Condor. 	For example, in Viersen v. Boettcher,
the Oklahoma Supreme Court held “that an action to quiet title,
where the plaintiff has been in continuous possession of the
property, claiming ownership therein, can be maintained at any
time, and no statute of limitation bars [the claimant’s] right to
the relief sought.” 	387 P.2d 133, 138 (Okla. 1963). 	Similarly,
in Muktarian v. Barmby, the California Supreme Court held that
while “it is ordinarily necessary to refer to the underlying
theory of relief to determine which [limitation] statute
applies,” it was unnecessary in that case because “no statute of
limitations runs against a plaintiff seeking to quiet title when
he is in possession of the property” and claims ownership
thereof. 	407 P.2d 659, 661 (Cal. 1965). 	The court in Muktarian
went on to explain the reason for this rule:
In many instances one in possession would not know of
dormant adverse claims of persons not in
possession. 	Morever, even if . . . the party
in possession knows of such a potential
claimant, there is no reason to put him to
the expense and inconvenience of litigation
until such a claim is pressed against him.

9 	No. 20080562
Id. (internal citations omitted). 	More recently, the California
Supreme Court affirmed this rule in Mayer v. L&B Real Estate, 185
P.3d 43, 46 (Cal. 2008) (“It long has been the law that whether a
statute of limitations bars an action to quiet title may turn on
whether the plaintiff is in undisturbed possession of the
land.”). 	We agree with the rule followed in other jurisdictions
and hold that the statute of limitations does not bar an
individual or entity from bringing an action to quiet title to
real property when that individual or entity is (1) in actual
possession of property and (2) under a claim of ownership.
¶17 	In this case, Bangerter has been in continuous
possession of the Property under a claim of ownership from at
least 1994 to the present. 	While Jarmaccc was given a sheriff’s
deed to the Property in January 1998 and filed a Notice to Quit
in May 1998, it failed to pursue the Notice to Quit or any other
eviction proceeding, and Bangerter has remained in possession of
the Property. 	Further, Bangerter claims both legal and equitable
ownership of the property. 	Specifically, she alleges that
Jarmaccc’s deed is void and that Jarmaccc is equitably estopped
from asserting any title to the Property based on payments
Jarmaccc received during Bangerter’s second bankruptcy
proceeding. 	Given these facts, we hold that no statute of
limitations bars Bangerter from asserting an action to quiet
title in the Property because she is in actual possession of the
Property under a claim of ownership. 	We therefore remand to the
court of appeals to review the District Court’s ruling that
Jarmaccc’s sheriff’s deed is void and that Jarmaccc is equitably
estopped from asserting any title to the Property.
CONCLUSION
¶18 	Bangerter has been in continuous possession of the
Property under a claim of ownership from 1994 to the present and
therefore is not barred by the statute of limitations from
asserting an action to quiet title to the Property. 	Because we
hold that no statute of limitations applies in this case, we need
not determine whether Jarmaccc waived its statute of limitations
defense. 	We therefore remand to the court of appeals for further
proceedings consistent with this opinion.
---
¶19 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur in Justice Parrish’s
opinion.