Pilot v. Hill ( 2019 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 10
IN THE
SUPREME COURT OF THE STATE OF UTAH
ROBERT PILOT,
Petitioner
v.
EARL N. HILL,
Respondent
No. 20180523
Filed March 1, 2019
On Certiorari to the Utah Court of Appeals
Third District, Summit County
The Honorable Kara Pettit
No. 140500187
Attorneys:
Karra J. Porter, Kristen C. Kiburtz, Salt Lake City, Edward T. Wells,
Murray, for petitioner
Kristin A. VanOrman, Jessica J. Johnston, S. Spencer Brown, Salt
Lake City, for respondent
JUSTICE HIMONAS authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 “Speak what you think now in hard words, and to-morrow
speak what to-morrow thinks in hard words again, though it
contradict every thing you said to-day.” Ralph Waldo Emerson, Self-
Reliance, ESSAYS: FIRST SERIES (1841),
https://emersoncentral.com/texts/essays-first-series/self-reliance/
(last visited Feb. 15, 2019). Embracing this contrary spirit, the
petitioner in this case, Robert Pilot, applies this attitude to the Utah
Rules of Civil Procedure. In 2011, these rules were amended in large
PILOT v. HILL
Opinion of the Court
part to facilitate access to justice and promote proportionality in
costs and procedures in civil litigation. The three-tier structure
established by Utah Rule of Civil Procedure 26 requires plaintiffs to
plead one of three tiers based on expected damages. In turn, this tier
designation commensurably restrains discovery schedules,
document production, and general costs associated with civil
litigation. Because Pilot pled a Tier 2 case—which involves, among
other things, a limit on recoverable damages—and never amended
his pleading before trial, he now asks this court to allow a post-trial
amendment of his tier designation so that he can receive more
damages. The district court and court of appeals both rejected Pilot’s
motion for post-trial amendment of his tier designation. Because the
facts of this case, the relevant law, and the rules of the tier
structure—rules Pilot understood and followed before pragmatism
forced an alternative understanding after trial—all dispositively
oppose Pilot’s preferred outcome, we affirm.
BACKGROUND
¶2 In 2011, Utah adopted several amendments to its rules of civil
procedure with the intention of addressing the ever-increasing cost
of litigation and its effect on litigants. High discovery costs and the
expenses of a lengthy trial exert a ripple effect that can dissuade
potential litigants from even bringing their cases. The prohibitive
resources needed to try a case function as a limitation on access to
justice for plaintiffs and defendants alike. In response to this
problem, the Utah Supreme Court’s Advisory Committee on the
Rules of Civil Procedure recommended sweeping changes to the
rules, which were put into place via the 2011 amendments.
¶3 Utah Rule of Civil Procedure 26(c) separates cases into three
tiers. 1 These tiers are delineated by the amount of damages claimed
by the plaintiff. Each tier provides proportional caps on the allowed
amount of deposition hours, interrogatories, requests for document
production and admission, and days allotted to complete standard
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1 “Actions claiming $50,000 or less in damages are permitted
standard discovery as described for Tier 1. Actions claiming more
than $50,000 and less than $300,000 in damages are permitted
standard discovery as described for Tier 2. Actions claiming $300,000
or more in damages are permitted standard discovery as described
for Tier 3. Absent an accompanying damage claim for more than
$300,000, actions claiming non-monetary relief are permitted
standard discovery as described for Tier 2.” UTAH R. CIV. P. 26(c)(3).
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Opinion of the Court
fact discovery. A Tier 1 case seeks damages not to exceed $50,000
and each party is limited to three hours of deposition, five requests
for production, and five requests for admission. UTAH R. CIV. P.
26(c)(5). By contrast, a Tier 3 case seeks damages of $300,000 or more
and allows 30 hours of deposition, 20 interrogatories, 20 requests for
production, and 20 requests for admission. Id. Under rule 8, “[a]
pleading that qualifies for tier 1 or tier 2 discovery constitutes a
waiver of any right to recover damages above the tier limits specified
in Rule 26(c)(3), unless the pleading is amended under Rule 15.” Id.
8(a). In turn, rule 15 provides the framework for the amendment of
pleadings before, during, and after trial. This appeal pertains
exclusively to Pilot’s attempt to amend his tier designation under
rule 15(b)(1) on the theory that Earl N. Hill impliedly consented to
such an amendment.
¶4 The original action here involved a civil suit by Pilot against
Hill for recovery of damages relating to an automobile accident. Pilot
pled a Tier 2 case indicating a range of damages more than $50,000
but less than $300,000. There is no evidence presented to show or
reason to believe that both parties did not adhere to the
corresponding Tier 2 rules of discovery, deposition, production, and
admission commensurate with the Tier 2 designation before trial.
¶5 During discovery and at trial, Pilot presented evidence that he
had suffered damages well over and above the $300,000 damage
limit imposed by the Tier 2 designation. This prompted the district
court to ask the attorneys at a pre-trial conference how to reconcile
the claimed damages in excess of $300,000 with Tier 2’s recovery cap
of $300,000. The district court asked both parties “if [the jury]
come[s] up with a verdict of $300,000 or more, it gets reduced?”
Hill’s counsel responded, “Right.” And Pilot’s counsel said, “Yeah.
And then we deal with that after trial,” which, at a minimum,
seemingly confirmed the district court’s and opposing counsel’s
understanding.
¶6 At trial, Pilot put on evidence suggesting that he had suffered
more than $300,000 in damages. Pilot’s expert economist testified
that Pilot’s lost earning capacity was between $625,000 and $634,000.
Additionally, Pilot presented lengthy testimony and evidence
regarding severe noneconomic damages resulting from his pain and
suffering. Hill in turn presented two of his own expert witnesses to
testify against the figures presented by Pilot and to attest to Pilot’s
ability to return to work. Additionally, Hill’s attorney contested
Pilot’s claims for damages by vigorously cross-examining Pilot’s
witnesses. The jury awarded Pilot $19,484 in economic damages and
$621,505 in noneconomic damages for a total of $640,989 in damages.
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PILOT v. HILL
Opinion of the Court
¶7 After trial and after the jury verdict, Pilot filed a motion to
amend his pleadings under Utah Rule of Civil Procedure 15(b). 2 He
contended that the issue of damages exceeding those capped by the
Tier 2 structure was tried by implied consent of both parties under
rule 15(b)(1) and that, regardless of consent, the pleadings should be
amended under 15(b)(2). The district court found that the
undisputed facts did not constitute implied consent for the purposes
of rule 15(b)(1) and that rule 15(b)(2) did not apply. The district court
reduced Pilot’s judgment to $299,999.99, commensurate with the
limits of his Tier 2 designation. Pilot appealed, arguing that under
rule 15(b)(1) he was entitled to amend his tier designation post-trial.
The court of appeals affirmed the district court, stating that rule
15(b)(1) only applies to unpleaded issues, and that the issue of which
tier this case falls into was pled when Pilot designated this as a Tier 2
case. Pilot appeals. We affirm the court of appeals.
¶8 We exercise certiorari jurisdiction under Utah Code
section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶9 When exercising certiorari jurisdiction, “we review the
decision of the court of appeals, not that of the district court.” Judge
v. Saltz Plastic Surgery, P.C., 2016 UT 7, ¶ 11, 367 P.3d 1006 (citation
omitted) (internal quotation marks omitted). In the process, we
consider whether the court of appeals applied the correct standard.
In this respect, the trial court’s interpretation of rule 15(b) should be
reviewed for correctness, but, “because the trial court’s
determination of whether the issues were tried with all parties’
‘implied consent’ is highly fact intensive, we grant the trial court a
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2 Rule 15(b) states in part:
(b)(1) When an issue not raised in the pleadings is
tried by the parties’ express or implied consent, it
must be treated in all respects as if raised in the
pleadings. A party may move—at any time, even after
judgment—to amend the pleadings to conform them
to the evidence and to raise an unpleaded issue. But
failure to amend does not affect the result of the trial
of that issue.
(b)(2) If, at trial, a party objects that evidence is not
within the issues raised in the pleadings, the court
may permit the pleadings to be amended.
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Opinion of the Court
fairly broad measure of discretion in making that determination
under a given set of facts.” Keller v. Southwood N. Med. Pavilion, Inc.,
959 P.2d 102, 105 (Utah 1998). Thus, in the context of this action, we
review whether Pilot can amend his tier designation under rule 15(b)
post-trial, infra ¶¶ 12–15, a pure question of law, for correctness. On
the other hand, the question of whether Hill impliedly consented to
an unpleaded tier 3 case, infra ¶¶ 16–23, is a fact-intensive mixed
question of law and fact entitling the trial court’s decision to broad
deference.
ANALYSIS
¶10 Pilot, after first following the orderly structure prescribed by
rule 26 of the Utah Rules of Civil Procedure, now seeks to use rule
15(b)(1) to circumvent the tier structure established by rule 26. After
filing a Tier 2 case, and binding both parties to the corresponding
rules of trial strategy, cost, and discovery mandated by rule 26, Pilot
seeks to ignore the damage limitation also mandated by the tier
structure. He asks this court to hobble Hill with a limited Tier 2
defense, while also imposing the maximum stakes of a Tier 3
outcome. Rule 15(b) does no such thing. 3
¶11 Additionally, the facts of this case clearly show that, even if
Pilot’s creative understanding of the language of 15(b)(1) and
“implied consent” permitted such a modification of the tier structure
at trial, there was no such consent here. Both parties adhered
faithfully to the Tier 2 designation, the trial court and court of
appeals diligently applied the standards agreed upon by the parties,
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3 Although we attach no decisional weight to advisory committee
notes, the commentary to rule 8 seems to anticipate this case: “It
would be unfair for a party to plead a smaller amount of damages in
order to take advantage of the streamlined discovery and then seek
to recover greater damages. Thus, Rule 8 provides that a party
waives its right to recover damages in excess of the maximums
provided for that tier unless the pleading is amended.” UTAH R. CIV.
P. 8, advisory committee notes.
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PILOT v. HILL
Opinion of the Court
and we in turn shall maintain the integrity of the tier system and its
mandates. We affirm the court of appeals.
I. PILOT CANNOT MODIFY HIS TIER DESIGNATION
POST-TRIAL UNDER RULE 15
¶12 Rule 8(a) of the Utah Rules of Civil Procedure requires
claimants to plead that their “damages are such as to qualify for a
specified tier defined by Rule 26(c)(3).” Once a claim is designated as
Tier 1, 2, or 3, the guidelines and limitations imposed by rule 26(c)(5)
dictate how the case will be litigated by both parties to the action.4
As stated before, this is meant to streamline the process and enables
both parties to understand the stakes of the action so that they may
plan their litigation strategies and cost outlays accordingly.
Additionally, this system functions to allow less valuable claims, as
well as defenses—which may otherwise be bludgeoned away from
the courts by prohibitive litigation costs—to be asserted. The
structure is designed to match the potential outcomes of a case with
a temporally and financially proportional litigation process.
Rule 8(a) also allows parties to amend their tier designation under
rule 15. 5
¶13 This case is about Pilot’s impermissible weaponization of
this process. Rule 15(a) prescribes procedures for the amendment of
pleadings before trial. In the context of the tier structure, this makes
intuitive sense; if evidence is uncovered during discovery that
indicates that the damages in question may be less than or greater
than those defined by the initial tier designation, a party may
strategically decide that a tier designation amendment is
appropriate. This is a tactical decision because the tier structure
limits and guides both parties. The tier chosen sets the rules of the
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4 Utah Rule of Civil Procedure 26(c)(5) contains this handy chart:
Tier Amount of Total Fact Rule 33 Rule 34 Rule 36 Days to
Damages Deposition Interrogatories Requests for Requests for Complete
Hours including all Production Admission Standard Fact
discrete subparts Discovery
1 $50,000 or less 3 0 5 5 120
2 More than $50,000 15 10 10 10 180
and less than
$300,000 or non-
monetary relief
3 $300,000 or more 30 20 20 20 210
5“A pleading that qualifies for tier 1 or tier 2 discovery
constitutes a waiver of any right to recover damages above the tier
limits specified in Rule 26(c)(3), unless the pleading is amended
under Rule 15.” UTAH R. CIV. P. 8(a).
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Opinion of the Court
game and puts both parties on notice about what is at stake and
therefore how to proceed as adversaries. Such an amendment would
not merely alter the amount of damages available, but would also
change the core nature of the proceeding and the avenues possible
for defense; different tiers bring with them different limitations on
deposition hours, interrogatories, requests for production and
admission, and days allotted for standard fact discovery. But
because Pilot never amended his pleadings before the trial, he cannot
make use of rule 15(a).
¶14 Rule 15(b)(1) also cannot apply here because the “issue” of
which tier would govern this action was raised in the pleadings. Pilot
v. Hill, 2018 UT App 105, ¶ 12, 427 P.3d 508. Rule 15(b)(1) states:
“When an issue not raised in the pleadings is tried by
the parties’ express or implied consent, it must be
treated in all respects as if raised in the pleadings. A
party may move—at any time, even after judgment—
to amend the pleadings to conform them to the
evidence and to raise an unpleaded issue.”
UTAH R. CIV. P. 15(b)(1) (emphases added).
¶15 But the tier designation was not an unpleaded issue. For the
purposes of rule 15(b)(1)’s language regarding issues not raised in
the pleadings, the tier structure operates as an umbrella issue that
governs the amount of damages and discovery. As the court of
appeals correctly noted, the pleading of one tier—as is required by
rule 26—includes within it an express disclaimer of the two
unchosen tiers. By pleading to proceed under Tier 2, Pilot was
therefore necessarily pleading that he was not proceeding under Tier
1 or Tier 3. 6 The tier designation is itself an issue, and that issue was
already pled, consented to, and handled at trial to the express
exclusion of the other unpleaded tiers. 7
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6 Because of this structure it is impossible to plead tiers in the
alternative. This same logic does not apply to inconsistent causes of
action. See Helf v. Chevron USA, Inc., 2015 UT 81, ¶ 74, 361 P.3d 63
(“Utah’s modern pleading rules permit litigants to plead inconsistent
theories of recovery in the alternative.”). Consequently, and by way
of example, in pleading a claim for strict liability, a party is not
precluded from pleading a claim sounding in negligence.
7Pilot attempts to separate each tier into its own issue. In Pilot’s
view, to plead Tier 2 says nothing with respect to Tier 1 and Tier 3.
This fundamentally misunderstands rule 26. If in the course of
(continued . . .)
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PILOT v. HILL
Opinion of the Court
¶16 In sum, Pilot cannot amend his complaint to a Tier 3
pleading under any subsection of rule 15. 8 Rule 15(a) only applies in
the pre-trial context, and the tier designation cannot be modified
once trial begins, ruling out an amendment under rule 15(b). 9 For
this reason, we affirm the court of appeals.
evidence production and discovery plaintiffs realize that their claim
is worth more or less than the tier they initially pled, rule 8(a)
permits them to amend their pleadings to reflect the appropriate tier.
The choice of which tier is appropriate may be modified before trial
under rule 15—rule 15(a) to be precise. But once the trial begins, the
tier issue has been settled. By that point, the parties have already
finished conducting discovery and the stage is set for trial. The tier
system has done its job. For the purposes of rule 15(b)(1), every tier-
related issue has been raised. By selecting a tier the plaintiff has
rejected the other two—raising and dismissing them—leaving the
matter beyond amendment under rule 15(b)(1). The issue of tier
designation may not be modified as if the other tiers had never been
addressed.
8 Although Pilot does not make an explicit appeal to rule 15(b)(2),
this part of rule 15 is also of no avail to his case. Rule 15(b)(2) allows
that at trial a party may “object[] that evidence is not within the
issues raised in the pleadings, [and] the court may permit the
pleadings to be amended.” Here we assume our deferential posture
with regard to the district court’s fact-intensive inquiry. We are
satisfied that the evidence related to damages presented at trial was
relevant to the tier chosen in the pleadings. Pilot’s evidence of
damages in excess of $300,000 could be used in a Tier 3 case, but this
does not mean the evidence was “not within the [Tier 2] issues raised
in the pleadings.” See UTAH R. CIV. P. 15(b)(2). Additionally, neither
party objected to the damages introduced at trial as being beyond
the scope of the Tier 2 pleadings.
9 The import of this conclusion is that rule 8’s reference to rule 15
only refers to rule 15(a) in the context of implied tier designation
modifications. Because a tier designation modification by implied
consent is impossible both during and after trial, rule 8’s reference to
rule 15 is necessarily cabined to rule 15(a) in this context. Moreover,
we do not believe this outcome will chill the designation of lower
tiers in the pursuit of expedited justice for plaintiffs. The award of
damages in excess of those permitted by a specific tier does not
necessarily reflect what would have happened had the parties
(continued . . .)
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Opinion of the Court
II. HILL DID NOT CONSENT TO AN UNPLEADED
TIER 3 CASE
¶17 It is obvious to us that the best reading of rule 8(a)’s
reference to rule 15 is that tier designation issues may only be
modified through rule 15(a); once trial has commenced, a rule 15(b)
modification is not possible. However, because this case presents an
issue of first impression, we also address Pilot’s implied consent-
based argument. Because the tier designation governs the
underlying trial, Pilot’s attempt to make an argument grounded in
the “express or implied consent” language of rule 15(b)(1) fails. He
claims that Hill consented to a Tier 3 designation by not objecting to
Pilot’s evidence of damages exceeding those allowed in a Tier 2 case.
Pilot would have us interpret the decision not to object to any
evidence of damages exceeding $300,000 as a defendant’s consent to
a higher tier. This is wholly unpersuasive.
¶18 Pilot’s complaint clearly stated “[t]his is a Tier II case.” At
no time prior to or during trial did he attempt to amend this
complaint. In fact, when the trial court raised the issue at a pre-trial
conference, Hill’s counsel explicitly stated her belief that any
damages awarded above $300,000 would be reduced. And Pilot’s
counsel not only failed to dispel the notion that damages would be
reduced, he seemingly confirmed it, noting, “[y]eah, and then we
deal with that after trial.” 10 Accordingly, everything that happened
after the pre-trial conference would have been viewed by Hill
through the lens of a party that thought any damages in excess of
$300,000 would be reduced. In other words, at all times during the
trial Hill was operating under the assumption that this was a Tier 2
case. Based on these pre-trial discussions, Hill had no reason to
believe that any actions taken during trial would imply consent to
trying a Tier 3 case. 11
agreed on a higher tier with the accompanying increase in general
costs and options for the defense. Counsel’s choice of a lower tier
and the accompanying limited procedures and time may often be an
easily defensible strategic decision. The legitimacy of a lawyer’s
decision rests on his or her rationale and the client’s choices.
10 In fact, during the hearing on Pilot’s motion to amend, his
counsel admitted that the decision not to amend the tier pre-trial was
“a strategic decision by the lawyers.”
11The fact that Hill brought a motion for a directed verdict
regarding future lost wages does not imply consent to a higher tier.
(continued . . .)
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PILOT v. HILL
Opinion of the Court
¶19 Pilot asks us to find consent because Hill proceeded to
litigate the case even after Pilot submitted damages in excess of
$300,000. Pilot’s economist submitted a report estimating Pilot’s total
damages at $950,000–$990,000 and his future wage loss at $625,000–
$634,000. Pilot’s claim rests on the erroneous belief that this figure,
provided by his own expert, constituted sufficient notice to Hill that
the stakes exceeded those of a Tier 2 designation, and that Hill’s
proceeding to litigate the case constituted consent to a modified tier.
But this argument proves too much.
¶20 First, because of the pre-trial discussions, Hill had no reason
to object to the presentation of excess damages at trial. Hill was
merely operating under the assumption that any excess damages
awarded would be reduced after trial.
¶21 Second, although the tier structure is guided by damages,
limited damages are not the only consequence of a Tier 2
designation. Pilot asks us to infer consent to a higher tier based on
the damages estimates of Pilot’s own witnesses. This ignores the fact
that a tier designation sets other rules, such as how much discovery
can be conducted. And even if Hill was not operating under the
assumption that damages would be reduced post-trial, neither party
violated the mandates of the Tier 2 rules in any way that would
imply consent to a different tier. Pilot’s own brief illustrates the fact
that Hill litigated a Tier 2 case bound by Tier 2 restrictions:
During discovery, Mr. Hill used less than half the
amount of discovery that Tier II afforded him. Mr.
Hill could have conducted 15 hours of depositions;
instead, he only used a total of 3 hours and 23
minutes. Mr. Hill could have propounded 10 requests
for admission; instead, he did not propound any. Mr.
Hill did not make any request for additional fact
discovery. Mr. Hill hired two experts who both
testified that Mr. Pilot did not suffer any lasting
injuries and had no wage claim. Mr. Hill’s counsel
represented to the trial court, she would have no
Hill’s motion claimed that Pilot had not carried his burden to show
that he deserved “the over $600,000 in damages” that his economist
reported. Use of this higher figure in this motion pertained to Hill’s
assertion that Pilot had not upheld his burden of proof, not any
desire by Hill to consent to a different tier.
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difficultly confronting Mr. Pilot’s extensive damage
claims.
¶22 Hill’s closing argument stated that, by asking for so much in
damages, Pilot indicated that he was not credible and that he did not
suffer any lasting injury in this case. Hill designated no economist,
biomechanical expert, or accident reconstructionist—experts
commonly retained in high-value injury cases. Where then is Hill’s
implied consent to modify the tier designation? It does not exist.
¶23 There is simply no evidence to infer consent in this case.
“Implied consent to try an issue ‘may be found where one party
raises an issue material to the other party’s case or where evidence is
introduced without objection, where it appear[s] that the parties
understood the evidence [is] to be aimed at the unpleaded issue.’” Hill v.
Estate of Allred, 2009 UT 28, ¶ 48, 216 P.3d 929 (alterations in original)
(emphasis added) (citation omitted). A plaintiff’s expert witness
testifying to high damages is not the introduction of new evidence.
And it does not introduce a new issue. 12 Hill’s behavior with regard
to the myriad other limitations of Tier 2 make this clear. Hill did not
respond to Pilot’s expert witness testimony in a way commensurate
with any understanding of a tier designation modification. He did
not exceed his allowed discovery, depositions, interrogatories,
admissions, or increase his cost outlays. He contested the claim for
damages through cross-examination and closing statements. All
evidence indicates that the Tier 2 structure was preserved and
adhered to by both parties.
¶24 Additionally, Rule 26 provides a method by which both
parties could expressly consent to discovery procedures over and
above those prescribed by the tier system. Rule 26(c)(6) states:
“To obtain discovery beyond the limits established in
paragraph (c)(5), a party shall file:
(c)(6)(A) . . . a stipulated statement that extraordinary
discovery is necessary and proportional under
paragraph (b)(2) and that each party has reviewed
and approved a discovery budget; or
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12 It is not atypical for a plaintiff to overstate the damages they
seek out of an expectation that the jury will try to split the baby and
award the plaintiff damages that fall somewhere between the
parties’ estimates. Evidence of damages above those allowed by a
tier designation does not indicate an abandonment of the tier
structure. It is merely trial strategy.
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PILOT v. HILL
Opinion of the Court
(c)(6)(B) before the close of standard discovery and
after reaching the limits of standard discovery
imposed by these rules, a request for extraordinary
discovery under Rule 37(a).
UTAH R. CIV. P. 26(c)(6). Obviously, Pilot does not make the claim
that any such stipulations or requests were made here. There was no
modification of the pled tier made through either implied or express
consent of the parties.
CONCLUSION
¶25 The tier structure established by Rule 26 of the Utah Rules
of Civil Procedure exists so that parties may understand the stakes
underlying a civil litigation and plan their strategies and
expenditures accordingly. Pilot pled and litigated a Tier 2 case in
which he was awarded damages in excess of what he was permitted
to receive in his designated tier structure. In keeping with the rules
he chose and consented to by pleading his case as a Tier 2 case, his
damages were commensurately reduced after trial. There is no
permitted modification of the tier designation once trial commences
and no indication that Hill impliedly consented to litigating a higher
tier case even if he could. He could not. He did not. We affirm the
court of appeals.
12