District Court, Provo Department The Honorable Derek P.
Pullan No. 160400808
W. Shakespear, Douglas P. Farr, W. Daniel Green, and Andrew
Jacobs, Attorneys for Appellant
L. Booher, Beth E. Kennedy, Dick J. Baldwin, Quinn M.
Kofford, Gregory S. Roberts, and Greg M. Newman, Attorneys
Jill M. Pohlman authored this Opinion, in which Judges
Gregory K. Orme and David N. Mortensen concurred.
Pioneer Home Owners Association brought two consecutive suits
against TaxHawk Inc. and Vandelay Properties LLC
(collectively, TaxHawk) over rights to real property. The
first suit, in which Pioneer claimed boundary by acquiescence
based on the conduct of a previous owner, was dismissed on
summary judgment because Pioneer did not have a deed from the
previous owner. The second suit, in which Pioneer claimed
quiet title based on the deed that it had by then obtained,
was consolidated with the first suit and then dismissed on
the grounds of res judicata. Further, after dismissing the
second suit as claim precluded, the district court granted
summary judgment to TaxHawk on its quiet-title counterclaim
and, in doing so, barred Pioneer from asserting boundary by
acquiescence as an affirmative defense. Pioneer appeals all
three judgments. We affirm the grant of summary judgment as
to the first action but reverse the dismissal of the second
action and the grant of summary judgment on TaxHawk's
quiet-title counterclaim. We therefore remand for further
From 1952 to 2001, the operator of a drive-in movie theater
(the Drive-In) owned real property in Utah County, Utah (the
Property). A fence (the Fence), and later a row of trees
along the Fence (the Trees), separated the Property from
adjacent properties to the north.
The legal description in the Drive-In's deed for the
Property sets the boundary elsewhere, but the Drive-In and
the owners of the adjacent properties treated the Fence as
the boundary line between the properties for several decades.
For example, the Drive-In maintained the land up to the Fence
and allowed its customers to park their cars there. With one
exception, "no adjoining land owner questioned or
contested that the [F]ence and [T]rees were the boundary, and
no adjoining landowner disputed or questioned [the
Drive-In's] use of the land up to the [F]ence and
In 2001, the Drive-In deeded the Property to a developer
(Developer). When Developer acquired the Property, it
undertook an extensive boundary line search and, based on its
understanding of the boundary line, it did not believe that
the Trees and the Fence were part of the Property.
Several years later, Pioneer began acquiring the Property
from Developer in stages. As relevant here, Pioneer obtained
a portion of the Property in 2007, and it obtained the
remaining land in 2016. In 2006 and 2010, TaxHawk acquired
the adjacent land on the north side of the Fence. Its deeds
reflected the same boundary line as Pioneer's deeds.
However, according to Pioneer, both parties treated the Fence
as the boundary during this period.
Things changed in early 2016 when TaxHawk attempted to remove
the Fence and the Trees and assert the boundary described in
its deeds. Pioneer then sued TaxHawk for quiet title (the
First Suit), asserting boundary by acquiescence to the Fence
and, alternatively, to the Trees. TaxHawk counterclaimed and
similarly sought to quiet title in itself to the land
described in its deeds, which encompassed the Trees and the
Fence (the Disputed Strip). See infra Appendix. It
also brought a counterclaim seeking damages for trespass.
At the end of 2016, TaxHawk moved for summary judgment on
Pioneer's claims for boundary by acquiescence. It claimed
that Pioneer, which obtained the Disputed Strip no earlier
than 2007, did not occupy the Disputed Strip for the
requisite twenty years. It further argued that Pioneer could
not rely on the years of occupation by Developer
(Pioneer's predecessor-in-interest), because Developer
had actual knowledge of the true boundary line based on its
search. According to TaxHawk, Pioneer could show at most that
it had occupied the Disputed Strip for "only nine
Pioneer did not dispute TaxHawk's facts for purposes of
summary judgment but asserted that the Drive-In had treated
the Fence and the Trees as the boundary line for several
decades and that, "until the mid-1990s, no party ever
asserted a different boundary." Thus, Pioneer argued,
the Drive-In met "all the requirements of boundary by
acquiescence" and gained ownership of the Disputed Strip
by operation of law no later than 1989-before Developer took
possession of the Property.
In its reply memorandum, TaxHawk accepted Pioneer's
additional facts for purposes of summary judgment but argued
that even if the Drive-In had acquired the Disputed Strip it
had purportedly obtained through boundary by acquiescence,
the Drive-In never conveyed it to Pioneer or its
predecessor-in-interest. Relying on Q-2 LLC v.
Hughes, 2016 UT 8, 368 P.3d 86, and Brown v.
Peterson Development Co., 622 P.2d 1175 (Utah 1980),
TaxHawk maintained that Pioneer "had notice of the
actual boundary lines," which did not include the
Disputed Strip. TaxHawk further asserted that Pioneer
"was never conveyed or deeded the [Disputed Strip]"
and that Developer could not have transferred title to
Pioneer because it too had notice of the actual boundary and
accordingly "never had title to the [Disputed
Strip]" to convey. TaxHawk reasoned that, assuming the
Drive-In had title to the Disputed Strip, only it could have
deeded the strip to Pioneer, which it had not done.
The district court agreed with TaxHawk and granted the
summary judgment motion. It concluded that Pioneer
"never received title to the disputed land from [the
Drive-In] by deed" and that, under Brown, that
"failure [was] fatal" to the
boundary-by-acquiescence claims as a matter of law. The court
accordingly dismissed Pioneer's claims with prejudice.
Although TaxHawk still had remaining counterclaims, the
court's order granting summary judgment to TaxHawk was
labeled as a "Final Judgment." However, the court
did not include any other language indicating that the
judgment was appealable.
In March 2017, after the dismissal of its
boundary-by-acquiescence claims, Pioneer acquired a quitclaim
deed to the Disputed Strip from the Drive-In. It thereafter
filed a new complaint (the Second Suit) for quiet title
alleging, as relevant here, that it "owns [the Property
and Disputed Strip] by virtue of a quit claim deed" from
the Drive-In, who had obtained the Disputed Strip "by
operation of the doctrine of boundary by acquiescence."
TaxHawk moved to consolidate the Second Suit with the First
Suit, which still included TaxHawk's counterclaims for
quiet title and trespass. Pioneer opposed consolidation,
contending that "new claims have been asserted that make
consolidation of the two matters unnecessary," but the
court granted the motion.
Shortly after moving to consolidate, TaxHawk also moved to
dismiss the claims in Pioneer's Second Suit as barred by
res judicata. Specifically, it argued that claim preclusion
foreclosed those claims because (1) the parties were
identical, (2) Pioneer "could and should have"
acquired the deed to the Disputed Strip in the First Suit,
and (3) the First Suit resulted in a final judgment on the
merits. Pioneer opposed the motion, asserting that there had
"been a new transaction," namely, "the
execution and recording of [the] quit claim deed" that
rendered claim prelusion inapplicable. It further argued
that, despite TaxHawk's arguments that it could
have obtained the deed earlier, it was not "required to
set out and obtain all possible evidence for all possible
claims." Rather, it was required only to "bring
claims that [were] possible with the evidence as it exist[ed]
at the time the complaint [was] filed."
The district court again agreed with TaxHawk. It described
Pioneer's Second Suit for quiet title as "based on
claims of boundary by acquiescence," which were
previously dismissed with prejudice on summary judgment in
the First Suit. It then ruled that Pioneer "could have
and should have obtained a quitclaim deed to the
[P]roperty" during the First Suit and that, therefore,
the Second Suit was "barred by claim preclusion."
This order was also labeled "a Final Judgment with
regard to [Pioneer's] claims" but noted that
TaxHawk's counterclaims "remain[ed] pending."
The parties eventually filed cross-motions for summary
judgment on TaxHawk's remaining counterclaims for quiet
title and trespass. TaxHawk relied on the legal descriptions
in the deeds to assert ownership of the Disputed Strip and to
claim that Pioneer trespassed on its property, while Pioneer
argued that the Disputed Strip, by virtue of boundary by
acquiescence, belonged to the Drive-In and, therefore,
TaxHawk could neither quiet title in itself nor hold Pioneer
liable for trespass on land it did not own.
The court dismissed TaxHawk's trespass claim but granted
TaxHawk's motion for quiet title. It concluded that there
was "no meaningful distinction" between
Pioneer's claim for quiet title based on boundary by
acquiescence and its affirmative defense against TaxHawk
based on the same theory. In other words, because
Pioneer's claim was barred by claim preclusion, so too
was its defense.
AND STANDARDS OF REVIEW
Pioneer contends that "the district court erred in
finding a quitclaim deed a necessary element of boundary by
acquiescence" and therefore erred in granting summary
judgment to TaxHawk in the First Suit. (Cleaned up.) Summary
judgment is appropriate "if the moving party shows that
there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of
law." Utah R. Civ. P. 56(a). An "appellate court
reviews a summary judgment for correctness, ...