Johansen v. Johansen , 2021 UT App 130 ( 2021 )

2021 UT App 130THE UTAH COURT OF APPEALS
COLTEN JOHANSEN,
Appellee,
v.
KATHY JOHANSEN,
Appellant.
Opinion
No. 20200234-CA
Filed November 26, 2021
Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 114900531
Charles R. Ahlstrom, Attorney for Appellant
Jason B. Richards, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN
concurred.
ORME, Judge:
¶1 Kathy Johansen challenges the district court’s denial of
her motion to dismiss Colten Johansen’s petition to terminate
alimony. She argues that the court erred in finding that Colten’s
failure to provide initial disclosures was harmless. 1 We agree
and reverse.
1. Because the parties share the same surname, we refer to them
by their first names, with no disrespect intended by the apparent
informality.
Johansen v. Johansen
BACKGROUND 2
¶2 In 2011, Kathy and Colten divorced. The divorce decree
required Colten to pay Kathy alimony that was to terminate after
15 years or upon Kathy’s remarriage or cohabitation. On October
30, 2018, Colten filed a petition to terminate alimony, alleging
that Kathy had been cohabitating with another man (Boyfriend)
since at least January 2018. Acting pro se, Kathy filed her answer
on November 8, 2018, denying the allegation. A pretrial
conference was held the following March, during which the
district court set the case for a three-day bench trial to begin in
late August 2019. On July 29, Colten, having never filed his
initial disclosures, provided pretrial disclosures that included his
witness list and his exhibits. The witness list named Kathy,
Colten, a private investigator, and Kathy and Colten’s daughter
(Daughter). On August 6, Kathy moved to dismiss the petition to
terminate alimony, alleging that Colten never served initial
disclosures as required by rule 26 of the Utah Rules of Civil
Procedure. Pursuant to rule 26, Colten was required to provide
these disclosures way back in November 2018, 14 days after
Kathy filed her answer to his petition. See Utah R. Civ. P.
26(a)(2)(A).
¶3 Just before the trial began, the district court addressed
Kathy’s motion to dismiss. Although the court stated that Colten
appeared to have violated rule 26’s disclosure requirements, it
declined to exclude Colten’s witnesses and exhibits because it
2. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard and only present
conflicting evidence to the extent necessary to clarify the issues
raised on appeal.” Linebaugh v. Gibson, 2020 UT App 108, n.5, 471
P.3d 835 (quotation simplified).
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found that the apparent violation of the rule was harmless.
Specifically, while addressing Kathy, the court ruled:
[Colten’s] responsibility exists in and of
itself to provide those initial disclosures to you.
However, there is an exception. If . . . they can
show that the failure is harmless or there is good
cause, . . . they can overcome that requirement.
There’s one other requirement, and that is
they don’t have to disclose anything to you that
would be used for impeachment purposes. And so
what they would do is they would simply call you
to testify in their case in chief, allow you to testify.
Once you testify in a certain way, then
[Colten] is going to say, “Well, we have witnesses.”
You’ll say, “Wait, those witnesses weren’t
disclosed to me.”
And then he’ll say, “These are for rebuttal
purposes or impeachment purposes only. We
didn’t have to disclose impeachment evidence,”
and so, really, it turns out to be harmless. It’s just a
matter of the order in which they call their
witnesses.
And in calling you first and having you
testify first, then they bring in people [such as] a
private investigator, your daughter or whoever
that would be in the nature of impeachment
evidence, which they are not required to disclose
under Rule 26.
So the Court finds that while this does
appear to be a violation of . . . or I’ll say could be a
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violation of Rule 26(a)(2) and Rule 26.1(b), the
violation would be harmless in that they’re not
required under Rule 26 or 26.1(b) to disclose
impeachment evidence that was retained for
impeachment purposes only.
¶4 And a few months after trial, at a hearing on Kathy’s
motion to amend the court’s findings, the court added to its
harmlessness finding:
As a party and as a person involved in a
case, to . . . disclose [Kathy] as a potential witness
certainly is helpful, but what is she going to do to
then go find out from herself what her testimony
will be and to find out from herself what her
documents may be? She’s already got those. She
should have that knowledge. That . . . is
harmless. . . . I think this a prime and premium
example of harmlessness, because her attempts to
depose herself or subpoena her own documents or
anything like that, that . . . just doesn’t make sense
at all why that is necessary.
. . . . She had . . . at least 28 days to prepare
for the fact that she was going to be a witness.
I believe . . . the [pretrial disclosures filed on
July 29, 2019,] also disclosed the impeachment
witnesses that were going to testify. So it’s not like
she didn’t know that either.
So all of the purposes of Rule 26 were
served under these circumstances[.]
¶5 At trial, Colten first called Kathy to testify. She testified
that during the time in question, Daughter and other family
members lived with her. She stated that she and Boyfriend had
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been dating for approximately two years. Although she did
affirm that Boyfriend kept a few dress shirts and a pair of
running shoes at her house, and that he occasionally spent the
night there, she denied that he had ever lived in the home with
her. Colten then presented Kathy with photographs taken from
inside her home. One photograph showed a carburetor that
Boyfriend had designed and a plaque that he had received as an
award for it. Kathy explained that Boyfriend had gifted both to
her. The second photograph depicted a laptop and a pair of
glasses. Kathy claimed that the laptop was Boyfriend’s that he let
her borrow and that the glasses belonged to her. The next
photograph was taken in her bathroom and showed shaving
cream, a razor, and a bag. Kathy claimed that the shaving cream
and razor were hers but the bag belonged to Boyfriend, which
contained “his stuff to stay overnight.” Colten then showed
Kathy multiple photos of a computer, her bedroom, and a spare
bedroom. Kathy claimed that most of the items depicted in the
photographs belonged to her or her children, with the exception
of the dress shirts and running shoes that belonged to Boyfriend.
Throughout Kathy’s testimony, she continued to aver that, while
Boyfriend obviously spent time at the house, he did not live
there.
¶6 Colten next called himself as a witness. He testified that
when he went to pick up his children from Kathy’s home, they
“would tell me that [Boyfriend] was there the whole time that
they would stay there.” Colten also testified that Boyfriend’s car
would be at Kathy’s house a majority of the time he came by to
pick them up. Colten then offered into evidence a mailed
envelope, addressed to Boyfriend at Kathy’s address, that he
found in a garbage can in front of Kathy’s house. Kathy objected
to this evidence, claiming that she was not made aware of the
envelope when Colten identified exhibits in his pretrial
disclosures. The court overruled her objection, stating, “For
impeachment purposes those things are not required to be
disclosed.”
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¶7 Colten next called Daughter to testify. She stated that
Boyfriend was living with Kathy in the home, that he kept his
personal belongings in the home, that he had a key to the home,
and that he had complete access to the home at all times. She
also claimed that Boyfriend slept in the same room as Kathy,
gave Kathy money, and bought groceries. Daughter stated that
she had taken the photographs that were shown to Kathy during
Kathy’s testimony, and that the computer, clothes, and other
items mostly belonged to Boyfriend and not to Kathy or to
Kathy’s children, as Kathy had claimed. Finally, Daughter
testified that Boyfriend spent approximately 95% of his nights at
the home.
¶8 Colten’s final witness was a private investigator. He
testified that over the course of the five days he spent surveilling
the home, he witnessed Boyfriend carry groceries from his
vehicle into the home, take tools from the garage and put them
in his truck, have conversations with neighbors in which he
presented himself as Kathy’s husband, enter the home in the
evening and leave the next morning in different clothes, and
undertake other actions indicative of Boyfriend living in the
home. Colten then offered into evidence the investigator’s
written report, which the court accepted.
¶9 Kathy called no witnesses of her own. The district court
subsequently found that Kathy and Boyfriend had cohabitated
from January 2018 until at least November 2018, when Colten
served Kathy with the petition to terminate alimony.
Accordingly, the court terminated Colten’s alimony obligations
retroactive to January 2018 and entered judgment against Kathy
in the amount of the excess alimony Colten had paid since that
time.
¶10 Kathy appeals.
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ISSUE AND STANDARD OF REVIEW
¶11 Kathy contends that the district court erred in denying
her motion to dismiss Colten’s petition to terminate alimony and
bar all his witnesses as a sanction pursuant to rule 26(d)(4) of the
Utah Rules of Civil Procedure.3 “We review a district court’s
interpretation of our rules of civil procedure, precedent, and
common law for correctness.” Keystone Ins. Agency v. Inside Ins.,
2019 UT 20, ¶ 12, 445 P.3d 434. But in reviewing a court’s
determination with respect to harmlessness and good cause, our
review is necessarily deferential. This is because “a court’s
decision in discovery matters is a discretionary call, and . . . we
will affirm such decisions when the court’s discretion was not
abused, even if we or another court might have made a different
decision in the first instance.” Segota v. Young 180 Co., 2020 UT
App 105, ¶ 22, 470 P.3d 479 (quotation simplified). Accordingly,
we will reverse a court’s harmlessness determination “only if
there is no reasonable basis for the district court’s decision.” See
Berger v. Ogden Reg'l Med. Center, 2020 UT App 85, ¶ 15, 469 P.3d
1127 (quotation simplified).
ANALYSIS
¶12 In relevant part, rule 26 of the Utah Rules of Civil
Procedure requires parties to serve initial disclosures “without
waiting for a discovery request.” Utah R. Civ. P. 26(a)(1). These
disclosures must include “the name and, if known, the address
and telephone number of . . . each individual likely to have
3. Kathy also asserts that the district court erred in finding that
she had cohabitated with Boyfriend. But because we hold that
the court should have barred Colten’s evidence and dismissed
his petition due to his failure to file initial disclosures, we have
no occasion to address this issue.
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discoverable information supporting its claims or defenses,
unless solely for impeachment . . . ; and . . . each fact witness the
party may call in its case-in-chief and, except for an adverse
party, a summary of the expected testimony.” Id. R. 26(a)(1)(A).
A party is further required to serve on the opposing party “a
copy of all documents, data compilations, electronically stored
information, and tangible things in the possession or control of
the party that the party may offer in its case-in-chief.” Id. R.
26(a)(1)(B).
¶13 A plaintiff is required to make initial disclosures “within
14 days after filing of the first answer to the complaint.” Id. R.
26(a)(2)(A). If a party fails to serve these disclosures, “that party
may not use the undisclosed witness, document or material at
any hearing or trial unless the failure is harmless or the party
shows good cause for the failure.” Id. R. 26(d)(4). In cases like the
one now before us, “where initial disclosures were not provided
at all,” a party faces an uphill battle to show harmlessness
because otherwise it would shift “an unacceptable burden on the
opposing party to closely parse the pleadings and discovery
exchanged (if any) to decrypt which individuals even have
discoverable information.” Hansen v. Kurry Jensen Props., 2021
UT App 54, ¶ 44 n.12, 493 P.3d 1131 (Mortensen, J., and
Pohlman, J., concurring). See also Ollier v. Sweetwater Union High
School Dist., 768 F.3d 843, 863 (9th Cir. 2014) (“An adverse party
should not have to guess which undisclosed witnesses may be
called to testify.”), cited with approval in Hansen, 2021 UT App 54,
¶ 44 n.12.
And even in cases that do not involve
“complicated” factual disputes, this burden may
still be significant. As just one example, witnesses
known to the opposing party may nevertheless
speak to other individuals (unknown to the
opposing party) about the operative facts of the
case. These individuals would thus, unbeknownst
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to the opposing party, have discoverable
information and might even be crucial witnesses.
Hansen, 2021 UT App 54, ¶ 44 n.12 (internal citation omitted).
Thus, “a disclosing party who endeavors, by stratagem or
otherwise, to disclose as little as possible faces a significant risk
that the disclosure will be found insufficient and the evidence or
the witness may not be allowed. To minimize this risk,
disclosing parties should be liberally forthcoming rather than
minimally compliant and risk the possible consequences of
testimony exclusion.” RJW Media Inc. v. Heath, 2017 UT App 34,
¶ 30, 392 P.3d 956 (quotation simplified).
¶14 Here, it is undisputed that Colten completely failed to file
his rule 26 initial disclosures detailing the witnesses or the
material supporting his claim, insofar as then in his possession,
either when initially due or at any time thereafter. Thus, the
presumptive sanction was for his evidence to be barred from
trial. See Utah R. Civ. P. 26(d)(4). But because the district court
found this failure to be harmless, Colten was ultimately allowed
to present all his evidence at trial. To come to this conclusion, the
court made what is in essence a two-part ruling. First, it found
that Colten’s failure to disclose Kathy as a case-in-chief witness
was harmless because she presumably knew what her testimony
would be. Second, having found that this was harmless, it
essentially piggybacked on that ruling and determined Colten
did not have to disclose the remaining witnesses and evidence
under rule 26’s impeachment exception. We disagree on both
counts.
I. Kathy’s Testimony
¶15 Colten argues that the district court’s harmlessness ruling
in regard to his calling Kathy as a witness was correct because “it
is nonsensical to think that Kathy would need to depose or seek
document production from herself” and because “[t]here were
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many times throughout the history of the case where Kathy was
put on notice that her alleged cohabitation was the only issue for
trial.” All this, Colten argues, put Kathy “at absolutely no
disadvantage by her not being listed on Colten’s initial
disclosures.” We disagree.
¶16 Colten and the district court both focus unduly on the fact
that Kathy would know what her testimony would be. But both
fail to recognize that if Colten had actually served his initial
disclosures informing Kathy that she was the only witness on
whom his case was based—and the court’s order assumes he
had to disclose only Kathy—that disclosure could have
completely altered Kathy’s legal strategy, including her decision
on whether she should retain counsel.
¶17 Knowing that Colten was going to make his case based on
her testimony would be quite instructive concerning Colten’s
trial strategy or lack thereof. Having knowledge of this
important fact early on, Kathy likely would have deposed Colten
or at least sent him interrogatories to ferret out how he believed
her testimony would help him prove his case-in-chief, given the
denial in her answer that she was cohabitating. See Saudi v.
Valmet-Appleton, Inc., 219 F.R.D. 128, 134 (E.D. Wis. 2003) (“The
importance of . . . witness disclosures and the harms resulting
from a failure to disclose need little elaboration. When one party
does not disclose, the responding party cannot conduct
necessary discovery, or prepare to respond to witnesses that
have not been disclosed[.]”), cited with approval in Hansen v. Kurry
Jensen Props., 2021 UT App 54, ¶ 44 n.12, 493 P.3d 1131(Mortensen, J., and Pohlman, J., concurring). Early disclosure of
Kathy’s pivotal role in Colten’s case-in-chief would have led
Kathy to discover the “impeachment” witnesses and materials
Colten had in reserve and through which he actually intended to
prove his case under the guise of impeaching Kathy’s testimony,
long before he made Kathy aware of this information in his
pretrial disclosures just 28 days before trial.
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¶18 Thus, had Kathy been informed that she would be
Colten’s only case-in-chief witness, 4 she would have been given
a better opportunity to decide whether she needed to hire an
attorney and investigate what Colten’s case really hinged on,
better preparing herself for trial. Not being provided this
information until 28 days before trial—months past the rule 26
deadline for initial disclosures—went against the purpose of rule
26, “which is to preclude parties from trying to gain an
advantage by offering ‘surprise’ testimony at trial that has not
been [properly] disclosed.” Arreguin-Leon v. Hadco Constr. LLC,
2018 UT App 225, ¶ 24, 438 P.3d 25, aff’d, 2020 UT 59, 472 P.3d
927. See also Utah R. Civ. P. 26 advisory committee notes (“The
intent of [initial disclosures] is to give the other side basic
information concerning the subjects about which the witness is
expected to testify at trial, so that the other side may determine
the witness’s relative importance in the case, whether the
witness should be interviewed or deposed, and whether
additional documents or information concerning the witness
should be sought.”). As we have explained,
Disclosure of specific facts and opinions is required
so that parties can make better informed choices
about the discovery they want to undertake or, just
as important, what discovery they want to forgo.
More complete disclosures serve the beneficial
purpose of sometimes giving the opposing party
the confidence to not engage in further discovery.
But this is only true if the potential for surprise is
4. Given our perspective on the narrowness of the impeachment
exception under rule 26, contrary to the district court’s
assumptions, adequate initial disclosures would actually have
included much more than just that Kathy would be called as a
witness in Colten’s case-in-chief. See infra Section II.
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reduced by at least minimum compliance with
the rule 26 disclosure requirements.
RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 25, 392 P.3d 956.
While RJW Media dealt with disclosures about expert testimony,
these policy considerations apply to all disclosures and to the
circumstances present in the instant case.
¶19 Essentially, Colten’s and the district court’s rationale
would lead to the conclusion that it is always harmless to omit
from initial disclosures the fact that the plaintiff plans to call the
opposing party as a witness because that party will always know
their own testimony. But this approach essentially eviscerates
the rule that explicitly requires parties to designate the opposing
party as a witness if they intend to call the opposing party in
their case-in-chief at trial, albeit with a less extensive disclosure
duty than with other witnesses. See Utah R. Civ. P. 26(a)(1)(A)(ii)
(requiring parties to designate “each fact witness the party may
call in its case-in-chief and, except for an adverse party, a
summary of the expected testimony”). Ultimately, this rationale
misses the point that an opposing party can be harmed in this
situation. A party may well know the content of their own
testimony, but the fact that they will or will not be called as a
witness by the other side in the other side’s case-in-chief
undoubtedly will dictate how they prepare to prosecute or
defend at trial. Thus, the district court exceeded its discretion in
determining that Colten’s failure to provide initial disclosures
naming Kathy as his only case-in-chief witness was harmless,
and the court should have precluded Colten’s use of her
testimony due to his clear violation of the rule.
¶20 This is not the end of the inquiry, however, because
“when we determine that a trial court erred, we do not reverse
unless there is a reasonable likelihood that a different result
would have been reached absent the errors,” or, in other words,
we do not reverse unless the aggrieved party was prejudiced. Lee
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v. Williams, 2018 UT App 54, ¶ 69, 420 P.3d 88 (quotation
simplified). See also Utah R. Civ. P. 61 (“The court at every stage
of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties.”). We need not belabor this analysis. It is perfectly clear
that had the court excluded Kathy from testifying as Colten’s
witness, it is certain that a different result would have been
reached given that Colten’s strategy was to call Kathy and then
prove his case by impeaching her testimony. Specifically, had the
court precluded Colten from calling Kathy to testify, Colten
would have had no testimony to impeach and he would have
been unable to prove his case for lack of evidence. Thus, Kathy
was prejudiced by the court’s failure to exclude her as a witness
for Colten.
II. Remaining Evidence
¶21 Colten argues that the district court did not err in
admitting his remaining evidence because rule 26 “does not
require a party to disclose witnesses or evidence if it is solely
used for impeachment.” See Utah R. Civ. P. 26(a)(1)(A)(i). Colten
also asserts that because “Utah has not held that the ‘solely for
impeachment’ language means that you can only present it
when challenging a particular witness’s veracity or credibility
. . . , the trial court ha[d] the discretion to use impeachment
evidence to assist in establishing the core facts of a case.” We
disagree and we reverse the court’s ruling concerning the
remaining evidence on two grounds.
A. First Ground: Kathy’s Testimony
¶22 To be clear, in a technical sense, we need not reach the
district court’s impeachment ruling because of the nature of its
order regarding Colten’s ability to call Kathy as a witness.
Specifically, the court actually excluded Colten’s remaining
witnesses and evidence from being used in his case-in-chief for
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anything other than impeachment by reason of his failure to
make his initial disclosures. Accordingly, under the court’s
ruling, and had Kathy been precluded from testifying as she
should have been, Colten would not have been able to present
any of his remaining evidence because the court would allow it
only for the purpose of impeaching Kathy. And because we have
determined that the court exceeded its discretion in allowing
Colten to call Kathy as a witness despite not having initially
disclosed his plan to do so, it necessarily follows that none of
Colten’s remaining witnesses and evidence should have been
allowed. Because Kathy could not properly have been called,
there would have been no testimony to impeach. Kathy was thus
necessarily prejudiced because, without this evidence, Colten
could not have proven his case, and the district court should
have then dismissed his petition. See Lee v. Williams, 2018 UT
App 54, ¶ 69, 420 P.3d 88.
B. Second Ground: Limits of Impeachment Exception
¶23 We also reverse the district court’s ruling on the
independent ground that, even if it was not error to allow Kathy
to testify in Colten’s case-in-chief, the court misapplied the rules
of civil procedure in allowing Colten to present his remaining
witnesses and documents as impeachment evidence. Regardless
of whether Kathy should have been permitted to testify, the
court still erred in allowing Colten’s remaining evidence under
rule 26’s impeachment exception. 5
5. Because we determine that the impeachment exception did not
apply to Colten’s remaining witnesses and the documents and
other tangible things he presented at trial, we do not address the
additional argument Colten advances, i.e., that “the trial court
ha[d] the discretion to use impeachment evidence to assist in
establishing the core facts of a case.”
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¶24 Rule 26 states that
(a)(1) . . . a party shall, without waiting for a
discovery request, serve on the other parties:
(A) the name and, if known, the address and
telephone number of:
(i) each individual likely to have
discoverable information supporting
its claims or defenses, unless solely
for impeachment, identifying the
subjects of the information; and
(ii) each fact witness the party may
call in its case-in-chief and, except for
an adverse party, a summary of the
expected testimony;
(B) a copy of all documents, data
compilations, electronically stored
information, and tangible things in the
possession or control of the party that the
party may offer in its case-in-chief . . . .
Utah R. Civ. P. 26(a)(1).
¶25 “When we interpret a procedural rule, we do so according
to our general rules of statutory construction.” Arbogast Family
Trust v. River Crossings, LLC, 2010 UT 40, ¶ 18, 238 P.3d 1035.
Thus, “we start by examining the ordinary meaning or usually
accepted interpretation.” Id. If we determine the language is
unambiguous, then the inquiry ends there. Pilot v. Hill, 2018 UT
App 105, ¶ 11, 427 P.3d 508, aff'd, 2019 UT 10, 437 P.3d 362. Cf.
Amax Magnesium Corp. v. Utah State Tax Comm'n, 796 P.2d 1256,
1258 (Utah 1990) (“[S]tatutory construction mandates that a
statute be read according to its literal wording unless it would be
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unreasonably confusing or inoperable.”). In undertaking this
inquiry, we presume “that the words and phrases used were
chosen carefully and advisedly.” Amax Magnesium Corp., 796
P.2d at 1258.
¶26 Based on the plain language of rule 26, the “solely for
impeachment” exception is found within subsection (a)(1)(A)(i),
which addresses only “individual[s] likely to have discoverable
information supporting [the party’s] claims or defenses.” Utah R.
Civ. P. 26(a)(1)(A)(i). This exception does not appear in
subsections (a)(1)(A)(ii) or (a)(1)(B), which deal with witnesses
and documents and other tangible things that a party plans on
using in its case-in-chief. Thus, because we presume that the
drafters of the rule used the words and phrases in rule 26
“carefully and advisedly,” Amax Magnesium Corp., 796 P.2d at
1258, an impeachment exception cannot be read into subsections
(a)(1)(A)(ii) and (a)(1)(B) to allow for witnesses or documents
and tangible things a party plans to use in its case-in-chief to not
be initially disclosed even if their use is focused on
impeachment. Therefore, an analysis of whether a witness
should have been disclosed turns initially on whether that
witness will be called in a party’s case-in-chief or held in reserve
as a possible rebuttal witness whose testimony is “solely for
impeachment.”
¶27 This interpretation comports with the purpose of the rule
as a whole, see id. (“A principal rule of statutory construction is
that the terms of a statute should not be interpreted in a
piecemeal fashion, but as a whole.”), which is to maximize
disclosure “to preclude parties from trying to gain an advantage
by offering ‘surprise’ testimony at trial that has not been
[properly] disclosed,” see Arreguin-Leon v. Hadco Constr. LLC,
2018 UT App 225, ¶ 24, 438 P.3d 25, aff'd, 2020 UT 59, 472 P.3d
927. If we were to allow a party to forgo disclosing in initial
disclosures the witnesses and documents it planned to use in its
case-in-chief and then slip them in at trial under the
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impeachment exception, then we would not be following the
clear language of the rule, much less honoring its purpose. 6
¶28 We first address the documents and tangible things the
court allowed and then turn to the witnesses Colten was
permitted to call at trial.
1. Documents and Tangible Things
¶29 Once Colten filed his petition, under subsection (a)(1)(B)
any documents and tangible things in his possession that Colten
intended to present in his case-in-chief were required to be
disclosed to Kathy in initial disclosures. In making initial
disclosures, no impeachment exception exists allowing such
evidence not to be disclosed. Therefore, all the pictures Colten
presented from inside Kathy’s home and the private
investigator’s report should not have been allowed at trial
because Colten failed to disclose any of it to Kathy in his initial
disclosures. 7 Utah R. Civ. P. 26(a)(1)(B); id. R. 26(d)(4).
6. This does not mean that substantive evidence can never be
presented through impeachment witnesses. It simply means that
if a party knows in advance that it wishes to present such
evidence in its case-in-chief, it must be disclosed as required and
cannot be sprung on the opposing party at trial, or even during
pretrial disclosures, which come quite late in the course of
litigation.
7. There is some confusion in the record regarding when Colten
obtained the private investigator’s report. At a hearing before
the district court, Colten asserted that he could not have
included the report in his initial disclosures because he did not
have the report at the time initial disclosures were due, i.e., 14
days after Kathy filed her answer on November 8, 2018. See Utah
(continued…)
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2. Witnesses
¶30 Colten, Daughter, and the private investigator were all
witnesses Colten called as part of his case-in-chief for purposes
of subsection (a)(1)(A)(i) of rule 26. They were not merely
“individual[s] likely to have discoverable information
supporting [his] claims” who had nothing to offer beyond
impeachment evidence, which would make them exempt from
disclosure under subsection (a)(1)(A)(ii). On the contrary, as
witnesses used exclusively in Colten’s case-in-chief, their contact
information and a summary of their expected testimony was
required to be served on Kathy in initial disclosures. See id. R.
26(a)(1)(A)(ii).
(…continued)
R. Civ. P. 26(a)(2)(A). This assertion is questionable given that
the report is dated November 7, 2018. But this confusion is
ultimately immaterial to our analysis because Colten had a
continuing duty to disclose it as part of his initial disclosures,
and Colten clearly had the report at some point soon after Kathy
filed her answer. See Williams v. Anderson, 2017 UT App 91, ¶ 15,
400 P.3d 1071 (“Parties . . . have a continuing obligation to
supplement disclosures with ‘additional or correct information’
if they ‘learn[] that a disclosure or response is incomplete or
incorrect in some important way’ and ‘if [the additional or
correct information] has not been made known to the other
parties.’”) (alterations in original) (quoting Utah R. Civ.
P. 26(d)(5)). And rule 26(d)(4)’s evidentiary exclusion sanction is
equally applicable to a party who fails to supplement their initial
disclosures with information that comes into their possession
after the time period for filing their initial disclosures has
passed. See Utah R. Civ. P. 26(d)(4) (stating that a party may not
use undisclosed witnesses or information if they “fail[] to
disclose or to supplement timely a disclosure”) (emphasis added).
20200234-CA 18 2021 UT App 130Johansen v. Johansen
¶31 Colten’s trial strategy was to first call Kathy in his
case-in-chief, and she categorically denied that she was
cohabitating with Boyfriend. Continuing with his case-in-chief,
Colten then called himself, Daughter, and the private
investigator to testify that Kathy was, in fact, cohabitating with
Boyfriend. 8 The court allowed these witnesses to testify in
Colten’s case-in-chief even though they had not been disclosed
in initial disclosures because it ruled that they were used solely
for impeaching Kathy’s testimony and did not have to be
disclosed under subsection (a)(1)(A)(i). This reasoning was
flawed because this subsection’s “solely for impeachment”
exception did not properly come into play. 9 While these
8. The district court labeled these witnesses as rebuttal or
impeachment witnesses. But whether their testimony was for
impeachment or not, they were still part of Colten’s case-in-chief
as Colten called them immediately after Kathy testified to
establish Kathy’s cohabitation before resting his case.
9. Subsection (a)(1)(A)(i)’s “solely for impeachment” exception is
applicable only in the much more limited trial context when
evidence presented by the opposing party takes an unexpected
turn and the party wishes to impeach that testimony on rebuttal
with individuals it knew likely had discoverable information but
planned to use only if they were needed to rebut certain
testimony, i.e., the individuals were not ones the party intended
to call in its case-in-chief. Take, for example, a medical
malpractice case brought against a doctor by a plaintiff. Before
trial, the parties serve their initial disclosures and conduct
discovery, and all that information indicates that the doctor had
one nurse assisting during the procedure. But, at trial, the
doctor’s story changes, and the doctor testifies that there were
two nurses assisting. To impeach that testimony, the plaintiff
could then present testimony from a nurse that plaintiff had
contacted previously, but that plaintiff had not disclosed in
(continued…)
20200234-CA 19 2021 UT App 130Johansen v. Johansen
witnesses may have been impeaching Kathy’s testimony, they
were still called in Colten’s case-in-chief, before Kathy presented
any evidence in her defense, and were thus fact witnesses Colten
intended to call in his case-in-chief for purposes of subsection
(a)(1)(A)(ii), thus requiring that they be disclosed in initial
disclosures. This is borne out by the fact that had Colten simply
called Kathy in his case-in-chief and then rested, his case would
have been dismissed for lack of evidence. Rather, after he called
Kathy to testify, he continued his presentation of witnesses and
called himself, Daughter, and the private investigator to
establish that Kathy was cohabitating—all as part of his
case-in-chief.
¶32 Based on the plain language of rule 26, the district court
erred in allowing Colten to call any of his witnesses or to present
the photographs and investigator’s report because it was all used
in Colten’s case-in-chief and was required to be disclosed in
(…continued)
initial disclosures, to testify that on this occasion, the doctor had
only one nurse assisting in the relevant procedure. In this
situation, the impeachment witness would qualify as a witness
under subsection (a)(1)(A)(i) because the witness was not used in
the plaintiff’s case-in-chief but rather was, for purposes of initial
disclosures, just an “individual likely to have discoverable
information” that was used “solely” to impeach the doctor’s
testimony. Utah R. Civ. P. 26(a)(1)(A)(i). This is not the case here.
Rather, Colten knew from the beginning that he, Daughter, and
the private investigator were critical to his case-in-chief and
were not simply individuals with discoverable information who
would be used, if at all, solely to impeach Kathy because,
without them, his case could not be proven. Colten always
intended to call them in his case-in-chief, and he was therefore
required to identify them in his initial disclosures. Id. R.
26(a)(1)(A)(ii).
20200234-CA 20 2021 UT App 130Johansen v. Johansen
initial disclosures pursuant to subsections (a)(1)(A)(ii) and
(a)(1)(B). Yet, the court essentially allowed Colten to present his
entire case-in-chief under subsection (a)(1)(A)(i)’s impeachment
exception, which is an incorrect use of that extremely limited
exception, constituting reversible error. 10 Because Colten was
required to serve his initial disclosures detailing this information
and failed to do so, Colten has to show that such failure was
harmless to Kathy or that his failure to disclose was a result of
good cause. See id. R. 26(d)(4). He has not made that showing,
and Kathy was prejudiced by the district court’s erroneous
ruling because without the evidence Colten presented during his
case-in-chief, he could not have proven that Kathy cohabited
with Boyfriend. See Lee v. Williams, 2018 UT App 54, ¶ 69, 420
P.3d 88.
CONCLUSION
¶33 The district court erred in allowing Colten to call his
witnesses and present his documents at trial. Kathy was harmed
10. This result may seem harsh, but as this court recently stated,
if litigants “are tempted to play fast and loose with our
discovery rules,” then they run the risk of losing it all. Hansen v.
Kurry Jensen Props., 2021 UT App 54, ¶ 49, 493 P.3d 1131(Mortensen, J., and Pohlman, J., concurring). And the fact that
we sometimes uphold a district court’s ruling in this regard
should “offer no solace or refuge” to parties if they determine to
ignore the rules. See id. Our discovery rules are written to be
followed, and if parties determine that they want to skirt around
them, then let them be warned once more that they “face[] a
significant risk that [an untimely, inadequate, or skipped]
disclosure will be found insufficient and the evidence or the
witness may not be allowed.” See RJW Media Inc. v. Heath, 2017
UT App 34, ¶ 30, 392 P.3d 956.
20200234-CA 21 2021 UT App 130Johansen v. Johansen
by not being informed in the required initial disclosures that she
would be called as a witness by Colten in his case-in-chief, and
the court misapplied rule 26 of the Utah Rules of Civil Procedure
in allowing Colten’s remaining witnesses to testify under the
“solely for impeachment” exception because they were witnesses
used in Colten’s case-in-chief. The court also erred in allowing
Colten to present any of his documents and tangible things
under the inapplicable impeachment exception. We therefore
vacate the judgment against Kathy and remand with instructions
to dismiss Colten’s petition to terminate alimony.
20200234-CA 22 2021 UT App 130