Hansen v. Stewart

761 P.2d 14, 87 Utah Adv. Rep. 46, 1988 Utah LEXIS 71, 1988 WL 78683

• Court: Utah Supreme Court
• Decided: July 28, 1988
• Docket: 19383
• Status: Published

Opinions

ZIMMERMAN, Justice:

Wilford and Vada Hansen brought a quiet title action to settle a boundary dispute with John and Alice Stewart. By stipulation, the only issue presented to the jury was the actual location of a certain corner partially defining the boundary separating the adjoining parcels of land. The jury found in favor of the Stewarts. The Han-sens unsuccessfully moved for judgment notwithstanding the verdict or a new trial and then appealed. They challenge various aspects of the way in which the case was tried and the denial of their post-trial motions. We affirm.

The Stewarts purchased a parcel of land in Cache County in 1967. In 1969, the Hansens purchased an adjoining parcel and shortly thereafter claimed that the existing fence dividing the parcels actually encroached several feet onto their property. The Hansens brought a quiet title action, and each party caused the land to be surveyed. The parties then stipulated that the only issue for trial was the actual location of “the Northeast Corner of Lot 12, Block 34, Providence Farm Survey,” which served as a common comer for the two parcels as described in their respective chains of title.

The Stewarts demanded a jury trial. During trial, the parties presented conflicting evidence on the issue, including the testimony of expert surveyors, as well as various maps and deeds. The jury found that the corner was actually located as claimed by the Stewarts. The Hansens’ post-trial motions for a judgment notwithstanding the verdict and for a new trial were denied.¹

On appeal, the Hansens raise three claims of error: first, that the pivotal question was one of law, not of fact, and, therefore, should have been decided by the court, not the jury; second, that the court should have given the Hansens’ proffered jury instructions; and third, that a judgment notwithstanding the verdict or, alternatively, a new trial should have been granted.

We first consider the Hansens’ claim that the location of the critical comer should not have been decided by the jury. There is a right to a jury trial on all questions of fact in any action to determine the right to possession of real property. Holland v. Wilson, 8 Utah 2d 11, 14-15, 327 P.2d 250, 252 (1958); see Utah Code Ann. § 78-21-1 (1987); Utah R.Civ.P. 38(a). The present case is clearly one to determine the right to possess real property. Therefore, the Hansens were entitled to have the question of the location of the corner determined by the judge only if that question is one of law. See Utah Code Ann. § 78-21-3 (1987).

The determination of the actual location of a disputed boundary is often a compound issue which presents questions both of law and of fact. Several complex legal rules have been developed to govern the determination of this issue. These rules specify, inter alia, the relative weight to be given various types of evidence that may be used to determine the location of a boundary. For example, natural landmarks are generally preferred over artificial monuments. See 12 Am.Jur.2d Boundaries § 65 (1964). On the other hand, the determination of factual questions may also be important in boundary cases. For example, whether a specific event occurred or where a particular marker is located may be critical. In any particular case, then, where conflicting evidence of various types is presented, some eviden-tiary conflicts may be resolved as matters of law, while others may be decided as matters of fact. The appropriate roles of judge and jury are preserved when the judge instructs as to the relative weight to be given each type of evidence and the jury, then determines the facts to which those relative weights are to be assigned. See 12 Am.Jur.2d Boundaries § 116 (1964).

In the present case, the trial court followed this course. We therefore find no error in the trial court’s submitting to the jury the question of the actual location of the disputed boundary corner.

The Hansens' second claim is that the trial court erred by rejecting or modifying several jury instructions which they submitted regarding, inter alia, the allocation of burdens of proof and the relevance of the impact that the jury’s decision might have on neighboring property owners. The Stewarts respond that the issue was not properly preserved below.

Utah Rule of Civil Procedure 51 provides, “No party may assign as error the giving or failure to give an instruction unless he objects thereto.” Utah R.Civ.P. 61; see Barson v. E.B. Squibb & Sons, Inc., 682 P.2d 832, 837 (Utah 1984). And the grounds for any objection must be distinctly and specifically stated. E.g., Beehive Medical Elec., Inc. v. Square D Co., 669 P.2d 859, 860 (Utah 1983). The requirement of a specific objection on the record ensures that the trial court will understand the basis of the objections and have an opportunity to correct any errors before the case goes to the jury. E.g., State v. Kazda, 545 P.2d 190, 192-93 (Utah 1976). This requirement also assures that the appellate court will have a record of the grounds asserted below. If, however, the record on appeal fails to demonstrate that the trial court has been given a fair opportunity to avoid an error, we usually will not consider any claim based on that error. E.g., Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1045 (Utah 1983).

In the present case, the record does not contain the Hansens’ proposed instructions, and it does not indicate that an objection was made to the instructions actually given. After this appeal was taken, the Han-sens attempted to correct this problem by supplementing the record pursuant to former Utah Rule of Civil Procedure 75(h).² That rule allows omissions or misstatements in the record to be rectified by three means: (i) stipulation of the parties; (ii) order of the trial court; or (iii) order of this Court.

The Stewarts refused to stipulate that specific objections regarding the instructions had been made. The Hansens then sought and were granted a hearing by the trial court. The transcript of that hearing shows that the Stewarts again opposed supplementation of the record. At the conclusion of the hearing, the trial judge did not order supplementation.

Under rule 75(h), the only remaining avenue for supplementation is an order of this Court. The Hansens have not clearly requested that relief. However, we choose to resolve questions about what the Han-sens are requesting in their favor and proceed to consider the matter. See Advisory Committee Note to former Utah R.App.P. 11 (h)(1987) (now R. Utah S.Ct. 11(h)). Based on a review of the transcript of the supplemental hearing, we conclude that the parties and the trial judge agreed that during trial a conference was held in chambers and out of the presence of the court reporter at which some sort of objections were made to the jury instructions. However, the exact nature of the objections made is not clear. Moreover, the parties could not agree upon and the trial judge could not recall specific details of the proposed instructions that were rejected or modified. In their brief on appeal, the Hansens have provided what they claim are copies of their proposed instructions. However, we have no means of verifying the accuracy of the alleged copies. Under all these circumstances, we decline to permit the supplementation of the record to show that the objections required by rule 51 were made.

Rule 51 does allow this Court “in its discretion and in the interests of justice” to review errors in instructions which have not been properly preserved. Utah R.Civ. P. 51. However, “it is incumbent upon the aggrieved party to present a persuasive reason” for exercising that discretion, E.A. Strout W. Realty Agency, Inc. v. W.C. Foy & Sons, Inc., 665 P.2d 1320, 1322 (Utah 1983), and this requires “showing special circumstances warranting such a review.” Cambelt Int’l Corp. v. Dalton, 745 P.2d 1239, 1241 (Utah 1987). The Hansens have made no such showing. Counsel for the Hansens simply did not adequately preserve the record. Therefore, we will not consider their challenge to the instructions. See id.; King v. Fereday, 739 P.2d 618, 621-22 (Utah 1987).

The Hansens’ final claim is that the evidence was insufficient to support the verdict and that the trial court erred in refusing to grant a new trial or, alternatively, a judgment notwithstanding the ver-diet (“j.n.o.v.”). See Utah R.Civ.P. 50 (new trial), 59 (j.n.o.v.). Before this contention is considered, a brief explanation of the applicable standards of review is appropriate. The standard to be applied by the trial court in determining whether to grant a motion for a j.n.o.v. is stricter than the standard for deciding to grant a new trial. A j.n.o.v. can be granted only when the losing party is entitled to a judgment as a matter of law. On the other hand, a new trial may be granted whenever there is evidence that would have permitted entry of a judgment for the losing party. See King v. Fereday, 739 P.2d at 620, 621; Price-Orem Inv. Co. v. Rollins, Brown & Gunnell, Inc., 713 P.2d 55, 57-58 (Utah 1986); see generally James & Hazard, Civil Procedure §§ 7.20, .22 (3d ed. 1985).

On appeal, however, when a challenge is made to a trial court’s denial of a motion for a j.n.o.v. or a new trial and the challenge is based on a claim that there was insufficient evidence to support the verdict, the different standards governing the trial court in passing on these motions become immaterial because of the differing degrees of discretion we accord trial courts in ruling on these motions. A trial court has some discretion in deciding whether or not to grant a new trial, and we reverse only when that discretion is abused. A trial court has no latitude in passing on a motion for a j.n.o.v.; its decision must be correct. Therefore, an insufficiency-of-the-evidence based challenge to a denial of either motion is governed by one standard of review: we reverse only if, viewing the evidence in the light most favorable to the party who prevailed, we conclude that the evidence is insufficient to support the verdict.³ See King, 739 P.2d at 620, 621; Price-Orem Inv. Co., 713 P.2d at 57-58. Because the Hansens’ challenge to the denial of their motions amounts to an attack on the sufficiency of the evidence, they “must marshal all the evidence supporting the verdict” and then show that the evidence cannot support the verdict. Price-Orem Inv. Co., 713 P.2d at 58; see Cambelt Int’l Corp., 745 P.2d at 1242 (quoting Von Hake v. Thomas, 705 P.2d 766, 769 (Utah 1985)); Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985).

Applying the foregoing standard to the present case, we conclude that the Hansens have not made the necessary showing. During the three-day trial, each side supported its position with deeds, maps, plats, and the testimony of several expert surveyors who had independently retraced the original surveys of the disputed parcels. The Hansens did not object to the admission of any of the material evidence. There were conflicts in the evidence, and as the Stewarts point out, their position was supported in part by the testimony of one of the Hansens’ experts. On the record before us, we cannot conclude that the evidence was so slight and insubstantial that it cannot support the verdict for the Stewarts. Therefore, we find no error in the trial court’s denial of the motions for a new trial or a judgment notwithstanding the verdict.⁴

We have reviewed the Hansens’ remaining arguments and find them to be without merit. The judgment is affirmed.

HALL, C.J., concurs. STEWART, J., concurs in the result.

1 . The record and the briefs do not clearly indicate whether the Hansens filed a motion for a directed verdict before the case was given to the jury. Ordinarily, the failure to make a motion for a directed verdict forecloses consideration of a later motion for judgment notwithstanding the verdict and any appellate review of the sufficiency of the evidence to support the verdict. Pollesche v. Transamerican Ins. Co., 27 Utah 2d 430, 433 n. 1, 497 P.2d 236, 238 n. 1 (1972); Utah R.CIV.P. 50(b). In this case, however, we proceed on the assumption that the motion was made, because the record is unclear and the Stewarts have not raised this issue.

2 . Rule 75(h) has since been replaced by the substantially similar rule 11(h) of the Rules of the Utah Supreme Court, which, between January 1985 and April 1987, was known as Utah Rule of Appellate Procedure 11(h). The rule allows errors or material omissions in the trial record to be corrected on appeal. See R. Utah S.Ct. 11(h).

3 . Some of our cases have phrased somewhat differently the standard to be employed when reviewing a trial court’s denial of an insufficiency-of-the-evidence based motion for a new trial as distinguished from an insufficiency-of-the-evidence based motion for a judgment notwithstanding the verdict. E.g., King, 739 P.2d at 620, 621; Price-Orem Inv. Co., 713 P.2d at 58. However, no operative distinction appears to exist between these standards as they are applied by this Court. See, e.g., King, 739 P.2d at 620, 621.

4 . The dissent, in advocating that we reverse and enter judgment for the Hansens, effectively asks that we ignore our standards of review and substitute our judgment for that of the jurors. We agree that on the record before us the jury could have reached a decision favoring the Han-sens and that a favorable outcome would, perhaps, have been made more likely if the jury had received the instructions that the Hansens now claim were submitted and improperly rejected. In sum, if the Hansens’ case had been presented more clearly and forcefully, the jury could have found in their favor.

However, as this case comes to us, the Han-sens received a fair trial of their claims, without prejudicial errors of law, and the jury reasonably found in favor of the Stewarts. Under the circumstances, we simply do not see sufficient justification for this Court to step in and substitute its judgment for that of the jury.