Massey v. Griffiths

2007 UT 10
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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H.C. Massey and Betty Massey, 	No. 20051028
Plaintiffs and Petitioners,
v.
Kenneth A. Griffiths, BKB LLC,
12 X 12 L.L.C., Aaron B. Buttars, 	F I L E D
Brenda L. Buttars, Adele B. Lewis,
Defendants and Respondents. 	January 23, 2007
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Second District, Ogden Dep’t
The Honorable Roger S. Dutson
No. 960900027
Attorneys: 	Frank S. Warner, Ogden, for petitioners
Ray G. Martineau, Anthony R. Martineau, Douglas L.
Stowell, Lloyd R. Jones, Brett D. Cragun, Salt Lake
City, M. Darin Hammond, Ogden, for respondents
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On Certiorari to the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 	This case involves a suit to quiet title to a tract of
land in Weber County that the Masseys purchased at tax sales.
The Masseys brought the suit to quiet title in the property after
one of the Defendants constructed a building on what the Masseys
believed was their property under the tax deeds. 	In response to
the Masseys’ complaint, Defendants filed motions for summary
judgment. 	The district court granted Defendants’ motions, and
the court of appeals upheld the district court’s decision. 	We
affirm.

No. 20051028 	2
BACKGROUND
¶2 	On or about September 10, 1993, Frances B. Hanks
conveyed a tract of land (the Griffiths’ property) to Kenneth A.
Griffiths by a warranty deed, which was recorded on September 23,
1993. 	Mr. Griffiths conveyed the property to BKB, L.L.C. (BKB)
by warranty deed dated and recorded January 24, 1997. 	BKB then
conveyed the property to 12 X 12, L.L.C. (12 X 12) by quitclaim
deed dated October 26, 2000, and recorded November 1, 2000.
¶3 	Adele B. Lewis owned a tract of land (the Buttars’
property) to the south of the Griffiths’ property from 1952 until
1994. 	In 1994, Ms. Lewis conveyed her property to her daughter,
Brenda Buttars, and her daughter’s husband, Aaron Buttars. 	Mr.
Griffiths, BKB, 12 X 12, Ms. Lewis, and the Buttars are the
defendants in this lawsuit.
¶4 	At all times, Defendants or their predecessors in
interest believed that the Griffiths’ and Buttars’ properties
abutted one another, sharing a boundary marked by “long
established fence lines.” 	Due to this belief, they occupied the
land up to the fence for at least twenty years before the Masseys
filed their complaint. 	In addition, Defendants or their
predecessors timely paid and discharged all real property taxes
that were levied upon their properties.
¶5 	The current dispute relates to tax deeds acquired by
H.C. and Betty Massey in 1986 and 1992. 	The legal description of
the property conveyed by these tax deeds purportedly straddles
the fence line establishing the boundary between the Griffiths
and Buttars’ properties. 	Based on these tax deeds, the Masseys
brought suit to quiet title against Defendants.
¶6 	Defendants moved for summary judgment, arguing that the
Masseys’ tax deeds descended from a wild deed, that Defendants
had occupied the property for over twenty years, and that
Defendants had paid all taxes on the property. 	The Masseys
conceded that Defendants had fully paid all taxes for which they
had received tax notices and had occupied the disputed property.
The district court determined that in order for the Masseys to
withstand summary judgment, “they [had to] show the property they
[were] claiming did not have taxes assessed and paid and was
different land than [the land on which] taxes were paid.” 	The
Masseys were unable to produce such evidence, and as a result,
the district court concluded that “[n]one of the legal
descriptions . . . in the tax deeds cover[ed] any real property
that the defendants and their predecessors in interest ha[d] not

3 	No. 20051028
possessed, occupied and paid taxes on.” 	The district court
therefore granted summary judgment in favor of Defendants.
¶7 	The Masseys appealed the district court’s order to the
Utah Court of Appeals. 	Massey v. Griffiths, 2005 UT App 410, 131
P.3d 243. 	The court of appeals affirmed the district court’s
order, concluding that there was “[n]o dispute of material fact
. . . as to whether Defendants paid the property taxes assessed
on the property they had long occupied.” 	Id. ¶ 10. 	In
explaining its holding, the court of appeals noted that “the
Masseys still ha[d] not produced any evidence that Defendants
were delinquent in paying property taxes assessed on [the
disputed] portion” of the property. 	Id. ¶ 11. 	Thereafter, the
Masseys filed a petition for certiorari review, which we granted.
STANDARD OF REVIEW
¶8 	“When reviewing a case on certiorari, we review the
court of appeals’ decision for correctness.” 	The View Condo.
Owners Ass’n v. MSICO, L.L.C., 2005 UT 91, ¶ 17, 127 P.3d 697.
This inquiry focuses on “whether [the court of appeals] correctly
reviewed the trial court’s decision under the appropriate
standard of review.” 	Id. 	In this case, the court of appeals
reviewed the district court’s grant of summary judgment to
Defendants. 	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,” Fericks v. Lucy Ann Soffe
Trust, 2004 UT 85, ¶ 2, 100 P.3d 1200, while the district court’s
legal conclusions and ultimate grant or denial of summary
judgment are reviewed for correctness, MSICO, 2005 UT 91, ¶ 17.
ANALYSIS
¶9 	We granted certiorari in this case on the question of
whether a deed acquired at a tax sale takes priority over
ownership acquired under the doctrine of boundary by
acquiescence. 	From the parties’ briefs and oral arguments,
however, it is clear that the outcome of this case depends
entirely upon the validity of the tax deeds that are the source
of the Masseys’ claim to title. 	Accordingly, we find it
unnecessary to discuss the relevance of the doctrine of boundary

1 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.
No. 20051028 	4
by acquiescence. 1 	Instead, the dispositive question in this case
is whether there is a genuine issue of fact as to the validity of
the Masseys’ tax deeds.
¶10 	A county may sell at a tax sale only land “on which a
[tax] delinquency exists.” 	See Utah Code Ann. § 59-2-1351(1)(a)
(2004) (“[T]he county auditor shall select a date for the tax
sale for all real property on which a delinquency exists.”).
Accordingly, we stated in Tintic Undine Mining Co. v. Ercanbrack,
74 P.2d 1184 (Utah 1938), that “[n]o validity can attach to any
[tax] sale except of the property assessed and delinquent for
failure to pay the tax levied on the assessment as made.” 	Id. at
1189; see also Hayes v. Gibbs, 169 P.2d 781, 786 (Utah 1946)
(“[A]ssessment is the basis of the tax title and only that
interest which was properly assessed can be sold.”); Thirteenth
S. Ltd. v. Summit Vill., Inc., 866 P.2d 257, 259 (Nev. 1993) (“A
sovereign may only convey in a tax sale an estate subject to
delinquent taxes.”).
¶11 	Utah Code section 59-2-1351.1(9)(b) (2004) states that
a tax deed is “prima facie evidence of the regularity of all
proceedings subsequent to the date the taxes initially became
delinquent and of the conveyance of the property to the grantee
in fee simple.” 	However, this statute creates only a presumption
of validity, and the presumption can be rebutted by evidence that
the tax sale was not valid. 	Indeed, we have stated,
The main purpose of presumptions is to shift
the burden either of producing evidence or of
persuasion and thereby make sure that the
evidence showing the basic facts will be held
sufficient to support a finding for the
favored party if the disfavored party fails
to satisfy his burden. 	This does not mean
that the fact finder may consider or weigh
the presumption as evidence.
In re Estate of Swan, 293 P.2d 682, 690 (Utah 1956). 	Other
courts have similarly held that a presumption does not have
evidentiary value where evidence rebutting the presumption is
offered. 	See, e.g., United States v. Ross, 92 U.S. 281, 285
(1876) (“Nowhere is the presumption [that a public official has
performed his duty] held to be a substitute for proof of an

5 	No. 20051028
independent and material fact.”); Sec. State Bank v. Benning, 433
N.W.2d 232, 234 (S.D. 1988) (“A presumption is not evidence of
anything, and only relates to a rule of law as to which party
shall first go forward and produce evidence sustaining a matter
in issue.” (internal quotation marks omitted)).
¶12 	In this case, Defendants filed motions for summary
judgment arguing that the Masseys’ tax deeds were not valid. 	To
support their arguments, Defendants presented the district court
with evidence that the Masseys’ tax deeds were descendants of a
wild deed, that the Griffiths’ and Buttars’ properties abutted
one another, and that Defendants had fully paid all tax notices
that they had received. 	In response, the Masseys argued that
Defendants’ wild deed evidence was inconclusive because their
experts were not qualified to testify about the validity of tax
deeds. 	They also produced a topical land survey to show that
there was a “gap” between the survey descriptions of the
Griffiths’ and Buttars’ properties. 	According to the Masseys,
this survey evidence showed that there was an area of land that
the taxes paid by Defendants did not cover. 	The Masseys did not,
however, offer any evidence to show that there were actually
delinquent taxes on the alleged “gap” property. 	Moreover, the
Masseys conceded that Defendants had paid all taxes for which
they had received notices, and failed to show that any notices
did not include the disputed property.
¶13 	We hold that Defendants successfully rebutted the
presumption that the Masseys’ tax deeds were valid. 	Once
Defendants rebutted the presumption, the Masseys had the burden
to produce evidence that the tax sales were valid by showing that
there was a tax delinquency on the property they claimed under
the tax deeds. 	The Masseys failed to satisfy this burden.
Although the Masseys’ survey evidence created an issue of fact as
to the possible existence of a gap in the property lines between
the Griffiths’ and Buttars’ properties, the survey did not show
that taxes had not been paid on the gap property prior to the tax
sale. 	Moreover, the Masseys did not offer any other evidence
showing that taxes had been delinquent on the property described
in the tax deeds. 	Under our Rules of Civil Procedure, a party
opposing summary judgment “may not rest upon the mere allegations
or denials of the pleadings, but the response, by affidavits or
as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.” 	Utah R. Civ.
P. 56(e) (2006). 	Because the Masseys failed to provide evidence
of delinquent taxes, they did not satisfy their burden under our
rules. 	Therefore, they did not show that there was a genuine
issue for trial with regard to the tax delinquency, and the

No. 20051028 	6
district court appropriately granted summary judgment to
Defendants.
CONCLUSION
¶14 	In this case, the Masseys failed to produce any
evidence showing a tax delinquency on the disputed property and
therefore have not carried their burden to show that the tax
sales at which they acquired the property were valid. 	Because
the Masseys failed to satisfy their burden of proof after
Defendants overcame the presumption of validity, summary judgment
was appropriate. 	Accordingly, we affirm the court of appeals’
decision upholding the district court’s order.
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¶15 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.