JENNINGS INVESTMENT, LC v. Dixie Riding Club, Inc.

2009 UT App 119, 208 P.3d 1077, 629 Utah Adv. Rep. 8, 2009 Utah App. LEXIS 120, 2009 WL 1152041
CourtCourt of Appeals of Utah
DecidedApril 30, 2009
Docket20060631-CA
StatusPublished
Cited by12 cases

This text of 2009 UT App 119 (JENNINGS INVESTMENT, LC v. Dixie Riding Club, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
JENNINGS INVESTMENT, LC v. Dixie Riding Club, Inc., 2009 UT App 119, 208 P.3d 1077, 629 Utah Adv. Rep. 8, 2009 Utah App. LEXIS 120, 2009 WL 1152041 (Utah Ct. App. 2009).

Opinion

OPINION

THORNE, Associate Presiding Judge:

T1 Defendant Dixie Riding Club, Inc. (Dixie) appeals the district court's summary judgment rulings. The district court denied Dixie's motion for partial summary judgment and instead granted Plaintiffs Jennings Investment, LC; Gilbert Jennings; Mansfield Jennings; Conrad Bowler; Lewis J. and Dorcus N. Bowler; H. Val Hafen; Randy and Gai Bowler; Troy and Kerrie Bowler; and John Bowler's motion for summary judgment. We affirm in part and reverse and remand in part.

BACKGROUND

1 2 Dixie owns property in the City of St. George, upon which a road adjacent to an equestrian arena is located and deseribed in the Owners' Dedication Plat as 1020 West X 1050 North Street (the Road). In 1972, before Dixie obtained its ownership of the property, the arena and the Road, as well as the subdivision that was originally part of the property, were annexed into the City of St. George.

13 In 2008, Plaintiffs filed a complaint against David Welch and John Does seeking a declaratory judgment that the Road had been dedicated and abandoned to public use pursuant to Utah Code section 72-5-104. See Utah Code Ann. § 72-5-104 (2001). Plaintiffs later moved to amend their complaint to name Dixie as a Defendant, remove Welch, and add a cause of action for prescriptive easement. The district court granted said motion.

T4 Through prior counsel, Dixie filed a motion for partial summary judgment on Plaintiffs' road dedication claim together with the affidavit of Charles Welch. Plaintiffs responded with a cross-motion for summary judgment with affidavits and memorandum in opposition to Dixie's motion for partial summary judgment. Dixie filed an opposition to Plaintiffs' cross-motion, which included a see-ond affidavit of Welch. Plaintiffs then filed a reply brief arguing that Dixie had failed to controvert Plaintiffs' statement of facts and requesting that the court deem the facts admitted for purposes of summary judgment pursuant to rule 7 of the Utah Rules of Civil Procedure. The district court held a hearing on the parties' summary judgment motions and, thereafter, issued a ruling wherein it deemed Plaintiffs' facts admitted, granted Plaintiffs' motion, and denied Dixie's motion. On March 7, 2006, the district court signed a *1080 decree of dedication for a fifty-foot wide road.

ISSUES AND STANDARDS OF REVIEW

15 Dixie appeals from the district court's summary judgment rulings. "We review a district court's grant [or denial] of summary judgment for correctness, affording no deference to the district court." Bluffdale City v. Smith, 2007 UT App 25, ¶ 5, 156 P.3d 175. Dixie first argues that the district court erred in its determination that Plaintiffs met their burden to establish dedication of the Road for public use by clear and convincing evidence. 1

We review the trial court's legal interpretation of the Dedication Statute for correctness and its factual findings for clear error. But whether the facts of a case satisfy the requirements of the Dedication Statute is a mixed question of fact and law that involves various and complex facts, evidentiary resolutions, and credibility determinations. Thus, we review the trial court's decision regarding whether a public highway has been established under [the Dedication Statute] ... for correctness but grant the court significant discretion in its application of the facts to the statute.

Town of Leeds v. Prisbrey, 2008 UT 11, ¶ 5, 179 P.3d 757 (alteration and omission in original) (internal quotation marks and footnotes omitted).

16 Dixie next argues that the district court abused its discretion when it ruled that all the facts Plaintiffs set forth in their eross-motion for summary judgment were deemed admitted because Dixie failed to comply with rule 7 of the Utah Rules of Civil Procedure. The district court has discretion in requiring compliance with rule 7. See Bluffdale City, 2007 UT App 25, 15, 156 P.3d 175 ("[The trial court has discretion in requiring compliance with [rule 7 of the Utah Rules of Civil Procedure]." (second alteration in original) (internal quotation marks omitted)). Thus, we must determine whether the district court abused its discretion in admitting as uncon-troverted the facts Plaintiffs submitted in their cross-motion for summary judgment. See id. ¶ 7.

T7 Dixie further asserts that the district court improperly weighed the evidence in granting summary judgment. "On a motion for summary judgment, a trial court should not weigh disputed evidence, and its sole inquiry should be whether material issues of fact exist." Bear River Mut. Ins. Co. v. Williams, 2006 UT App 500, ¶ 15, 153 P.3d 798 (internal quotation marks omitted). "In reviewing the trial court's granting of a motion for summary judgment, we view the facts, and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." Id. (internal quotation marks omitted).

T8 Dixie also argues that the district court erred in failing to assess the reasonable and necessary width of the Road after it determined the Road to be a public highway. "Onee the district court has made a determination [of width], it will not be disturbed if supported by substantial evidence." Memmott v. Anderson, 642 P.2d 750, 754 (Utah 1982).

T9 Lastly, Dixie contends that the City of St. George is a necessary and indispensable party to this action. Dixie asserts that it raised this issue below; however, it does not appear that the district court addressed this issue.

Generally, we will not consider issues not preserved in the trial court absent plain error or exceptional cireumstances. Nevertheless, a party may raise the issue of failure to join an indispensable party at any time in the proceedings, including for the first time on appeal.

Cassidy v. Salt Lake County Fire Civil Serv. Council, 1999 UT App 65, ¶ 9, 976 P.2d 607.

*1081 ANALYSIS

I. Dedication of Public Road

1 10 Dixie argues that summary judgment was not properly granted in favor of Plaintiffs' road dedication claim because Plaintiffs failed to prove that the Road was used as a public thoroughfare. Under Utah law, "(al highway is dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of ten years." Utah Code Ann. § 72-5-104(1) (2001).

111 To satisfy the public thoroughfare element, Plaintiffs must demonstrate proof of (i) passing or travel, (i) by the public, and (iii) without permission. See Heber City Corp. v. Simpson, 942 P.2d 307, 311 (Utah 1997) (listing the three general requirements established by the definition of public thoroughfare and noting the previous abandonment of a fourth requirement). "The public's taking of property in such circumstances ...

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Bluebook (online)
2009 UT App 119, 208 P.3d 1077, 629 Utah Adv. Rep. 8, 2009 Utah App. LEXIS 120, 2009 WL 1152041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jennings-investment-lc-v-dixie-riding-club-inc-utahctapp-2009.