RJW Media Inc. v. Heath ( 2017 )

2017 UT App 34THE UTAH COURT OF APPEALS
RJW MEDIA INC.,
Appellant,
v.
CHUCK HEATH,
Appellee.
Opinion
No. 20141082-CA
Filed February 24, 2017
Third District Court, Silver Summit Department
The Honorable Ryan M. Harris
No. 130500240
Michael D. Zimmerman, Erin Bergeson Hull, and
Sean N. Egan, Attorneys for Appellant
Alexander Dushku, Cameron M. Hancock, and Justin
W. Starr, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES STEPHEN L. ROTH and KATE A. TOOMEY concurred.
MORTENSEN, Judge:
¶1 Chuck Heath built a house with a detached building. The
detached building consists of a below-grade garage with an
office on top. Heath’s neighbor, RJW Media Inc. (RJW), sued to
have the detached building torn down. Heath prevailed at a
bench trial and RJW now seeks reversal. We affirm.
BACKGROUND
¶2 RJW owns property in Summit County in the Timbers
Subdivision. Heath owns a lot in the Timbers Subdivision
adjacent to the RJW property. Shortly after purchasing the lot in
2012, Heath began construction of a house. He originally
RJW Media Inc. v. Heath
planned to build the house with an attached garage. However,
finding that this plan would require uprooting a large tree,
Heath decided to build a detached garage instead. The detached
building, with the below-grade garage and office above, is
identified on the building plans as a ‚carriage house.‛
¶3 The Covenants, Conditions & Restrictions (CC&Rs)
governing the Timbers Subdivision restrict owners from
building more than one residential structure per lot. The term
‚residence‛ is not defined in the CC&Rs, but the parties agree
that, between the CC&Rs and the building codes in Summit
County, a structure is residential if it is ‚designed and intended
for use and occupancy as a residence‛ and if it is equipped for
cooking, sleeping, and sanitation. Of all the criteria for
determining whether a structure is residential, only the
equipped-for-cooking criterion is relevant to this appeal. The
carriage house did not contain the wiring and plumbing for a
stove, but is equipped with 110-volt outlets and a microwave.
¶4 The CC&Rs require construction projects to be approved
by the Timbers Subdivision’s Home Owners Association (the
HOA). Specifically, residents are to submit ‚complete plans‛ to
the HOA for approval before construction may begin. The
CC&Rs do not define the term ‚complete plans.‛ Summit
County also requires property owners to submit plans to
approve building permits. Further, Heath needed Summit
County’s approval for a plat amendment on his property to
resolve a ski easement. Heath prepared and submitted various
plans to the HOA and to Summit County. The HOA ultimately
approved the project. Heath also resolved the ski easement and
received the needed permits from Summit County. Construction
began on the Heath property shortly after all required permits
and approvals were obtained.
¶5 RJW filed this action against Heath to enjoin the
construction of the carriage house and to remove what had
already been built. The trial court allowed Heath to complete
construction but forbade him from building the carriage house
20141082-CA 2 2017 UT App 34RJW Media Inc. v. Heath
any higher or wider. The parties began making preparations for
trial.
¶6 In July 2013, RJW deposed Michael Upwall, one of
Heath’s experts and the architect for Heath’s house. Upwall
testified,
I believe the way the county defines accessory
dwelling units is . . . cooking—so if you did a range
that would require a 220 outlet or a gas line, you
cannot have that. Could you put a microwave in
there and pop popcorn? Yes. . . . But there is . . . no
range, which would imply cooking.
¶7 In September 2013, Heath disclosed a list of ten non-
retained expert witnesses who might be called to testify at trial.
Sean Lewis, a county planner for Summit County, was included
on this list.1 The disclosure provided Lewis’s name, title, and a
generic description of the topics about which Lewis, along with
the other nine witnesses, might testify. The description reads:
[Heath] identif[ies] the following ‚non-retained‛
experts as they provided architectural, planning,
construction and or design services for the Heath
project. Additionally, these witnesses may be asked
to provide specific architectural, design,
construction, or general building opinions
regarding the Heath project as well as opinions and
facts regarding *RJW’s+ deck, thus these witnesses
are therefore included in this designation.
¶8 Four days before trial, Heath filed and served a
supplemental disclosure stating that Lewis would testify that
1. RJW also designated Lewis as a witness in its pretrial
disclosures, including his contact information.
20141082-CA 3 2017 UT App 34RJW Media Inc. v. Heath
‚under the Snyderville Basin Development Code and the
County’s interpretation thereof, the carriage house/garage is not
a dwelling/accessory dwelling/residential unit‛ and that ‚a
dwelling requires cooking facilities and more particularly, the
structure needs to be plumbed with a 220V outlet for a stove.‛
RJW then filed a motion to exclude Lewis as a witness, arguing
that Lewis had ‚never been identified as someone to testify to
the matters alluded to‛ in the supplemental disclosure, and that
it was ‚severely prejudiced‛ as a result. Specifically, RJW
asserted that because it ‚has not had any opportunity to prepare
for [Lewis], it has not received any documents from [Lewis] or a
summary of [his] testimony and it has not had the ability to have
its own expert . . . review or prepare for this testimony.‛
¶9 The trial court ultimately allowed Lewis to testify,
reasoning that, although the initial description of Lewis’s
testimony was ‚a little too generic,‛ Lewis ‚was disclosed‛ as a
witness. The trial judge also stated, ‚I’m not sure it’s fair to take
a disclosure that is, sort of, borderline and not raise any
objections to it until the eve of trial.‛
¶10 At trial, several experts testified. Upwall, Lewis, and Eric
Hoff, a Park City-based architect, testified for Heath.2 Richard
Brighton, also a Park City-based architect, testified for RJW.
¶11 Upwall testified about his experience with Summit
County and how the county decides whether a structure is
equipped for cooking. He stated, ‚I believe the county holds it to
2. Michael Stoker, a consultant to the HOA and its Architectural
Committee, also testified. It appears that the trial court
attributed to Stoker some testimony on the equipped-for-
cooking criterion that he did not actually provide. Because our
analysis of Lewis’s testimony and Summit County’s
requirements for residential structures reaches the same result
without consideration of Stoker’s testimony, we analyze that
issue without reference to Stoker.
20141082-CA 4 2017 UT App 34RJW Media Inc. v. Heath
the definition of is there a possibility for, or plumbed, or the
intention for a range and either a 220 volt range or a gas range
cooking appliance.‛
¶12 Hoff testified that, while he has never built anything in
Park City, he has experience working on projects there.3 He
testified that the Heath structure is not equipped for cooking.
Hoff noted, ‚[The carriage house] lack[s] a stove or the facilities
to put a stove in, whether it would be natural gas plumbed into
that counter area or a 220 outlet in there, which is typically
required, and that’s been my experience in all the different
jurisdictions where I’ve designed these type of structures.‛
¶13 Lewis testified that he reviews ‚site plans and building
plans for construction‛ for the Summit County Planning
Department. He stated that ‚[i]t has been the practice of the
department that a microwave, by itself, would not‛ be
considered a kitchen or cooking facility, and that a structure
would ‚require an oven or a stove‛ to be equipped for cooking.
Lewis further testified that a 110-volt outlet is not considered a
hook-up for a cooking facility.
¶14 Brighton interpreted the equipped-for-cooking criterion.
He testified that ‚*t+heir definition is [the building] has to have
cooking,‛ that ‚*b+y definition, a microwave is for cooking,‛ but
that he is ‚not certain what the county says‛ about the presence
of a microwave in a structure to fulfill the equipped-for-cooking
criterion.
¶15 The trial court also received evidence on the plans that
Heath submitted to the HOA for review. The court heard
3. Hoff’s testimony about his experience is somewhat unclear.
Hoff testified that, in addition to designing for other HOA
communities, he works as an architect for architectural review
committees for other HOAs. Hoff’s expertise is not being
challenged on appeal.
20141082-CA 5 2017 UT App 34RJW Media Inc. v. Heath
testimony from Michael Stoker, an architect that the HOA’s
Architectural Committee hired as a consultant. Stoker testified
that the plans Heath submitted to the HOA ‚were complete
enough for the HOA and their review process.‛ The record also
contains a copy of the CC&Rs, which state that the purpose of
the HOA’s review is to ‚ascertain whether the architecture
conforms to the Design Guidelines.‛ This includes considering
the materials to be used on the external
features . . . [,] exterior colors, harmony of external
design with existing structures within said
subdivision, the building bulk or mass of said
buildings or structures, the location with respect to
topography, existing trees and finished grade
elevations, and harmony of landscaping with the
natural setting and surroundings.
¶16 After a three-day bench trial, the trial court concluded
both that Heath had fulfilled his obligations under the CC&Rs
for his plans to be approved and that the detached building was
not a residence. In its ruling, the trial court noted Lewis’s
testimony and found the practice of Summit County to be of
particular relevance. The trial court also relied on Upwall’s
testimony, stating,
Mr. Upwall also noted that under the applicable
provisions of the Snyderville Basin Development
Code and the County’s policies and practice, a
structure is not considered a ‚dwelling‛ unless it
contains cooking facilities that require a 220-volt
electrical system, or a natural gas system sufficient
for a stove or range, and that a microwave oven is
not considered cooking facilities.
(Emphasis added.) And the trial court relied on Hoff’s
testimony, stating,
20141082-CA 6 2017 UT App 34RJW Media Inc. v. Heath
Based on Mr. Hoff’s experience and review of the
applicable codes and regulations, a structure is not
considered a residence or dwelling unless it
contains a full kitchen that includes a stove and the
wiring or plumbing for a stove, in particular a 220
volt wiring or other natural gas plumbing for a
stove.
(Emphasis added.)
¶17 RJW appeals, claiming that the court erred by allowing
Lewis to testify and that it was prejudiced by that error. RJW
also contends that the court erred in concluding that Heath did
not violate the CC&Rs, which require the HOA’s approval of
‚complete plans.‛
ISSUES AND STANDARDS OF REVIEW
¶18 First, RJW appeals the trial court’s determination that
Heath’s pretrial disclosure of his non-retained expert, Lewis, was
sufficient under rule 26 of the Utah Rules of Civil Procedure.
While interpretations of the Utah Rules of Civil Procedure are
questions of law reviewed for correctness, Pete v. Youngblood,
2006 UT App 303, ¶ 7, 141 P.3d 629, ‚we grant district courts a
great deal of deference in matters of discovery and review
discovery orders for abuse of discretion,‛ Dahl v. Dahl, 2015 UT
79, ¶ 63. ‚Accordingly, we ‘will not find abuse of discretion
absent an erroneous conclusion of law or where there is no
evidentiary basis for the trial court’s ruling.’‛ Id. (quoting Green
v. Louder, 2001 UT 62, ¶ 37, 29 P.3d 638).
¶19 Second, RJW appeals the trial court’s determination that
Heath had fulfilled his obligations under the CC&Rs by
submitting plans to the HOA that were not complete enough to
receive a building permit from the county. ‚We review all
findings of fact for clear error, granting the district court great
deference in its review of the evidence.‛ Dansie v. Hi-Country
20141082-CA 7 2017 UT App 34RJW Media Inc. v. Heath
Estates Homeowners Ass’n, 2004 UT App 149, ¶ 7, 92 P.3d 162.
‚We review all conclusions of law for correctness, granting the
district court no deference.‛ Id. ¶ 6.
ANALYSIS
I. Disclosure of Non-retained Experts
¶20 The trial court erred when it determined that Heath’s
pretrial disclosure of Lewis was sufficient, but we affirm its
ultimate ruling and judgment because the error was harmless.
A. Insufficient Disclosure of Non-retained Expert’s Expected
Testimony
¶21 Rule 26 of the Utah Rules of Civil Procedure governs
discovery and disclosures. If a party intends to present evidence
from a non-retained expert, rule 26 requires that the party ‚serve
on the other parties a written summary of the facts and opinions
to which the witness is expected to testify.‛ Utah R. Civ. P.
26(a)(4)(E). ‚If a party fails to disclose or to supplement timely a
disclosure or response to discovery, 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.‛4 Id. R. 26(d)(4).
¶22 Since the rules were revised in 2011, the particular issue
presented here has not been subject to appellate review.5 We
4. The trial court made no findings that good cause existed for
the delay, nor did the court find that the failure was harmless.
Accordingly, we review only the actual basis of the trial court’s
decision—that Heath’s disclosure of Lewis was sufficient.
5. Recent Utah decisions have explored disclosure where an
expert witness was not properly designated, but have not
(continued…)
20141082-CA 8 2017 UT App 34RJW Media Inc. v. Heath
begin by considering the advisory committee notes to rule 26,
which offer persuasive, but not binding, interpretative guidance
for the rule. See Burns v. Boyden, 2006 UT 14, ¶ 18 n.6, 133 P.3d
370 (‚We note that, although not authoritative, the advisory
committee notes to the Utah Rules of Evidence merit great
weight in any interpretation of those rules.‛).
¶23 Of the written summary requirement—both for
summaries of fact witnesses and, presumably, expert
witnesses—the advisory committee states:
[T]he summary of the witness’s expected testimony
should be just that—a summary. The rule does not
require prefiled testimony or detailed descriptions
of everything a witness might say at trial. On the
other hand, it requires more than the broad,
conclusory statements that often were made under
the prior version of Rule 26(a)(1) (e.g., ‚The
witness will testify about the events in question‛ or
‚The witness will testify on causation.‛). The intent
of this requirement 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
(…continued)
explored the sufficiency of the summary of expected testimony.
See, e.g., Coroles v. State, 2015 UT 48, ¶ 21, 349 P.3d 739(reviewing untimely designation of experts under the scheduling
order); Baumann v. Kroger Co., 2016 UT App 165, ¶ 12, 381 P.3d
1135 (reviewing sanctions for a party’s failure to make expert
disclosures), cert. granted, 384 P.3d 566 (Utah Oct. 31, 2016) (No.
20160686); Solis v. Burningham Enters. Inc., 2015 UT App 11, ¶ 24,
342 P.3d 812 (holding that the trial court correctly concluded that
a party’s failure to designate an expert witness was not
harmless).
20141082-CA 9 2017 UT App 34RJW Media Inc. v. Heath
importance in the case, whether the witness should
be interviewed or deposed, and whether additional
documents or information concerning the witness
should be sought. This information is important
because of the other discovery limits contained in
the 2011 amendments, particularly the limits on
depositions.
Utah R. Civ. P. 26 advisory committee notes. Directly referencing
the rule governing non-retained expert disclosures, the advisory
committee notes state,
Rules 26(a)(4)(E) and 26(a)(1)(A)(ii) are not
intended to elevate form over substance—all they
require is that a party fairly inform its opponent
that opinion testimony may be offered from a
particular witness. And because a party who
expects to offer this testimony normally cannot
compel such a witness to prepare a written report,
further discovery must be done by interview or by
deposition.
Id.
¶24 Certainly, scrutiny of non-retained expert disclosures
should not become a rigid critique of form. But the committee’s
comment that the rule requires that ‚a party fairly inform its
opponent that opinion testimony may be offered from a
particular witness,‛ id., must contemplate that the information
provided will include at least a ‚written summary of the facts
and opinions to which the witness is expected to testify,‛ id. R.
26(a)(4)(E). Given the context of this clause, it cannot reasonably
be construed to require the mere mention that opinion may be
offered. Read that way, even a topic would not be required.
Instead, a party must ‚fairly inform,‛ which includes ‚that such
witnesses be identified and the information about their
anticipated testimony should include . . . any opinion testimony
20141082-CA 10 2017 UT App 34RJW Media Inc. v. Heath
that a party expects to elicit from them at trial.‛ Id. R. 26
advisory committee notes. Along with the expert designation,
there must be some disclosure of expected opinion and fact
testimony that is ‚more than . . . broad, conclusory statements.‛
Id.; cf. Anderson v. Bristol, Inc., 936 F. Supp. 2d 1039, 1059–60 (S.D.
Iowa 2013) (concluding that summaries of expected testimony
for non-retained experts were inadequate under the similar rule
26 of the Federal Rules of Civil Procedure, where the plaintiff
‚merely state*d+ the witness’ occupation, connection with the
case, and then state[d] what type of expertise the witness
‘presumably’ possesse*d+,‛ or ‚state*d+ only the name of the
physician, the physician’s title, and then refer[red] Defendants to
previously produced medical records‛).
¶25 The requirement to provide a summary of expected
testimony is not merely a matter of form. 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 reduced by at least minimum compliance with the
rule 26 disclosure requirements.
¶26 In this case, Heath failed to provide adequate disclosure
for the expected testimony of his non-retained expert, Lewis.6
6. Both parties briefed this case assuming that Lewis’s testimony
on the practices of Summit County is expert testimony and we
treat it as such here. We agree that testimony on how to interpret
terms would constitute expert testimony. See Universal Inv. Co. v.
Carpets, Inc., 400 P.2d 564, 566 (Utah 1965) (‚Where . . . terms
may have a particularized application or meaning and there is
room for uncertainty and disagreement . . . it was proper for the
trial court to . . . allow extraneous evidence by experts . . . .‛). We
express no opinion on whether testimony about an observed
(continued…)
20141082-CA 11 2017 UT App 34RJW Media Inc. v. Heath
The duty imposed by the rule is to disclose a summary of the
facts and opinions of non-retained experts, and here there were
no facts or opinions disclosed whatsoever. All Heath provided
was a list of general topics about which Lewis, along with nine
other witnesses, might testify, such as that the witnesses ‚may be
asked to provide specific architectural, design, construction, or
general building opinions regarding the Heath project.‛ But this
is all too similar to the examples in the committee notes of
‚broad, conclusory statements‛ specifically warned against, like
that ‚‘The witness will testify about the events in question’ or
‘The witness will testify on causation.’‛ Utah R. Civ. P. 26
advisory committee notes. And the trial court’s conclusion that,
while ‚a little too generic,‛ the disclosure complied with rule 26
can stand only if the requirement for a summary of expected
facts and opinions is read out of the rule.7
¶27 Recognizing that non-retained experts may pose
challenges for the sponsoring party, any requirement for precise
disclosure of expected testimony could become problematic. See
id. (‚There are a number of difficulties inherent in disclosing
expert testimony that may be offered from fact witnesses. . . .
[M]any of these fact witnesses will not be within the control of
the party who plans to call them at trial.‛). Hence the
(…continued)
practice is expert testimony as opposed to percipient witness
testimony. See generally Astill v. Clark, 956 P.2d 1081, 1087–88
(Utah Ct. App. 1998) (explaining the difference between
percipient and expert testimony).
7. We acknowledge Heath’s argument that any prejudice to RJW
was minimized by his supplement at the eve of trial. We do not
analyze the timeliness of the supplement because that was not
the basis of the trial court’s ruling. However, we remain
skeptical that a supplemental disclosure made on the eve of trial
is timely where the receiving party is prejudiced by not having
an opportunity to conduct discovery based on that supplement.
20141082-CA 12 2017 UT App 34RJW Media Inc. v. Heath
requirement for non-retained experts is different from that of
retained experts where a full, written report can be obtained and
the expert may be available for consultation. Compare id. R.
26(a)(4)(E) (explaining requirements for non-retained experts),
with id. R. 26(a)(4)(A), (B) (explaining requirements and
discovery limits for retained experts). The advisory committee
notes acknowledge the realities of non-retained expert testimony
and point out that rule 26 insulates against the imposition of
overly specific disclosure requirements in favor of a more
pragmatic, flexible standard. See id. R. 26 advisory committee
notes (‚Where [witnesses are uncooperative] . . . the rules
require that such witnesses be identified and the information
about their anticipated testimony should include that which is
required under Rule 26(a)(1)(A)(ii), which should include any
opinion testimony that a party expects to elicit from them at
trial.‛). The rule also requires timely supplementation when a
disclosing party learns that a disclosure is incomplete or
incorrect, which ultimately provides even more flexibility to get
the disclosure right. See id. R. 26(d)(5). But here, the trial court
concluded that Heath’s initial disclosure was sufficient where
Heath disclosed nothing but general topics on which the expert
might opine. This cannot satisfy the rule. Therefore, we hold that
the trial court incorrectly concluded that Heath’s disclosure of
Lewis’s expected testimony satisfied the rule 26 disclosure
requirement.
¶28 To the extent the trial court’s remarks suggested that RJW
had a duty to object earlier than it did, we disagree. In the case at
hand, Heath identified Lewis as a witness in September 2013,
and supplemented his disclosure in March 2014, just four days
before trial. RJW moved to exclude Lewis’s testimony on the
same day. Heath argues that rule 37 of the Utah Rules of Civil
Procedure supports the trial court’s observation that RJW should
have objected earlier, citing Dahl v. Dahl as an example. See 2015
UT 79, ¶¶ 68, 71 (concluding that the district court did not abuse
its discretion when it denied a request to compel
supplementation because the request was filed two years after
disclosures were received).
20141082-CA 13 2017 UT App 34RJW Media Inc. v. Heath
¶29 The circumstances in Dahl are dissimilar. Where a party
desires that information be provided, as in Dahl, that party
cannot unnecessarily delay efforts to compel such production.
By contrast, where a party desires to use a witness or a
document, and where that party’s disclosure is inadequate, the
opposing party remains under no obligation to bring the issue to
a head. An insufficient disclosure by one party does not shift the
burden and risk to resolve the insufficient disclosure to the other
party, who now must either seek court intervention or waive
objections to the sufficiency of the disclosure. Such an approach
would undermine the purpose of the rule, which ultimately is to
encourage open disclosures without a formal discovery request,
and would encourage scant disclosures at the outset in hopes
that the opposing party will not seek to compel more.
¶30 Instead, the rules embrace the idea of competing risks. 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.8 See Utah R. Civ. P. 26(d)(4)
(exclusion of witness or exhibit is the presumed sanction). To
minimize this risk, disclosing parties should be liberally
forthcoming rather than minimally compliant and risk the
possible consequences of testimony exclusion. Likewise, where
the sponsoring party under-discloses, the receiving party may
object and attempt to compel further disclosure. See id. R.
26(b)(3), 37(a)(1)(A). And while there is no penalty in the rule for
failing to do so, the receiving party does take the risk that a trial
court may ultimately find the disclosure sufficient, as occurred
here.
8. The penalty for failing to provide adequate disclosure is found
within rule 26 itself and is not dependent on rule 37 as Heath
suggests. See Baumann, 2016 UT App 165, ¶ 8 n.5 (‚In 2011 . . .
amendments to the Utah Rules of Civil Procedure included a
provision similar to rule 37(f) in rule 26(d)(4), which governs this
case.‛).
20141082-CA 14 2017 UT App 34RJW Media Inc. v. Heath
¶31 Heath additionally argues that he was excused from a
more specific disclosure requirement because topics of potential
testimony are all that were required since Lewis was
‚uncooperative‛ by virtue of ‚several failed attempts‛ to
interview him, and because he supplemented the disclosure
soon after he was able to obtain additional information. Heath
points out that the advisory committee states:
For uncooperative or hostile witnesses any
summary of expected testimony would necessarily be
limited to the subject areas the witness is reasonably
expected to testify about. For example, defense
counsel may be unable to interview a treating
physician, so the initial summary may only
disclose that the witness will be questioned
concerning the plaintiff’s diagnosis, treatment and
prognosis. After medical records have been
obtained, the summary may be expanded or
refined.
Id. R. 26 advisory committee notes (emphasis added). But
Heath’s reliance on this language is somewhat misplaced. This
particular note speaks generally about initial disclosures of
witnesses under rule 26(a)(1). The committee commented more
specifically about uncooperative non-retained experts, saying,
[In the case of uncooperative non-retained experts],
disclosures will necessarily be more limited. On the
other hand, consistent with the overall purpose of
the 2011 amendments, a party should receive
advance notice if their opponent will solicit expert
opinions from a particular witness so they can plan
their case accordingly. In an effort to strike an
appropriate balance, the rules require that such
witnesses be identified and the information about
their anticipated testimony should include that
which is required under Rule 26(a)(1)(A)(ii), which
20141082-CA 15 2017 UT App 34RJW Media Inc. v. Heath
should include any opinion testimony that a party
expects to elicit from them at trial.
Id. Both the language of the rule itself and the advisory
committee notes require the disclosure of expected fact and
opinion testimony of non-retained experts to be included in the
disclosure, even where the witness is hostile or uncooperative.
¶32 Parties may find themselves in a position where they do
not know exactly what a non-retained expert may say and
therefore assume they need not disclose expected opinion
testimony. But the rule does not require parties to disclose the
testimony that they know will be offered, but rather what they
expect to elicit. ‚Expect‛ means ‚to await, look forward to.‛
Expect, Webster’s Third New Int’l Dictionary 799 (1971). To
mitigate the risk that a witness will not be allowed to testify,
parties should disclose the testimony that they await, that they
look forward to, or that they hope the expert will give. See id.(listing ‚hope‛ as a synonym of ‚expect‛). Again, a disclosing
party who endeavors to disclose as little as possible faces a
significant risk that the disclosure will be found insufficient and
the evidence or the testimony may not be allowed. That risk
should have been realized here. The disclosure provided no
expected testimony beyond broad topics on which Lewis might
opine. No actual fact or opinion was identified. This cannot
satisfy rule 26. Therefore, the trial court allowed Lewis to testify
under ‚an erroneous conclusion of law‛ which constitutes ‚an
abuse of discretion.‛ See Dahl v. Dahl, 2015 UT 79, ¶ 63 (citation
and internal quotation marks omitted).
B. Harmless Error
¶33 We must now examine the effect of the trial court’s error.
‚Even if . . . the trial court exceeded its discretion,‛ an appellant
‚has the burden to show that the error was ‘substantial and
prejudicial,’‛ meaning that the appellant ‚‘was deprived in some
manner of a full and fair consideration of the disputed issues by
the [trier of fact].’‛ Avalos v. TL Custom, LLC, 2014 UT App 156,
20141082-CA 16 2017 UT App 34RJW Media Inc. v. Heath
¶ 24, 330 P.3d 727 (quoting Ashton v. Ashton, 733 P.2d 147, 154
(Utah 1987)); see also Covey v. Covey, 2003 UT App 380, ¶¶ 20–21,
80 P.3d 553 (placing the burden to show prejudice on the
appellant in an appeal from a bench trial). If we conclude that an
error is harmless, ‚we are not required to reverse.‛ West Valley
City v. Kent, 2016 UT App 8, ¶ 23, 366 P.3d 415. An error is
harmless when it is ‚sufficiently inconsequential that we
conclude there is no reasonable likelihood that the error affected
the outcome of the proceedings.‛ Covey, 2003 UT App 380, ¶ 21
(citation and internal quotation marks omitted). That is, ‚an
error is harmful only if the likelihood of a different outcome is
sufficiently high as to undermine our confidence in the verdict.‛
Id. (citation and internal quotation marks omitted).
¶34 Because Lewis’s testimony was cumulative of evidence
admitted from other sources, our confidence in the trial court’s
ultimate decision here is not undermined. See In re L.B., 2015 UT
App 21, ¶ 6, 343 P.3d 332 (affirming juvenile court’s order under
harmless error because ‚there was sufficient . . . evidence from
other sources supporting the juvenile court’s determination‛); cf.
Larsen v. Johnson, 958 P.2d 953, 958 (Utah Ct. App. 1998) (‚The
more evidence supporting the verdict, the less likely there was
harmful error.‛ (quoting State v. Hamilton, 827 P.2d 232, 240
(Utah 1992))).
¶35 Here, Lewis testified that based on his experience
reviewing building plans for Summit County, a microwave oven
alone generally does not satisfy the equipped-for-cooking
criterion for a structure to be considered a residence, and that
Summit County does not consider a 110-volt outlet sufficient to
meet the equipped-for-cooking criterion. But the record also
contains similar testimony from other sources, which the trial
court expressly relied on in making its ruling. For instance, the
trial court relied on Upwall, who, based on his experience in
Summit County, testified, ‚I believe the county holds it to the
definition of is there a possibility for, or plumbed, or the
intention for a range and either a 220 volt range or a gas range
cooking appliance.‛ The trial court acknowledged Upwall’s
20141082-CA 17 2017 UT App 34RJW Media Inc. v. Heath
testimony as going to the ‚policies and practice‛ of Summit
County, and Upwall’s testimony about Summit County’s
policies and practice mirrors Lewis’s testimony.
¶36 Additionally, Hoff’s testimony added to the evidence of
Summit County’s policies and practice. Hoff, like Lewis and
Upwall, testified that the carriage house does not meet the
equipped-for-cooking criterion. Hoff testified, ‚*The carriage
house] lack[s] a stove or the facilities to put a stove in, whether it
would be natural gas plumbed into that counter area or a 220
outlet in there, which is typically required, and that’s been my
experience in all the different jurisdictions where I’ve designed
these type of structures.‛ While the court did not specifically use
the phrase ‚policies and practice‛ of Summit County when
citing to Hoff’s testimony, the court did acknowledge that Hoff’s
testimony was based on his ‚experience and review of the
applicable codes and regulations.‛ The trial court’s reference to
Hoff’s experience and review of the applicable codes and
regulations is a reference to Hoff’s experience working in
Summit County, the source of the applicable codes and
regulations for the Heath project—where Hoff testified he had
experience. Therefore, Hoff’s testimony also goes to the policy
and practice of Summit County. Like Upwall’s testimony, Hoff’s
testimony is cumulative of Lewis’s testimony and further
demonstrates the harmlessness of the admission of Lewis’s
testimony.
¶37 In light of the testimonies given by Upwall and Hoff,
‚there was sufficient . . . evidence from other sources supporting
the *trial+ court’s determination,‛ see In re L.B., 2015 UT App 21,
¶ 6, and any error in allowing Lewis’s testimony did not affect
the outcome of the trial.
¶38 RJW argues, however, that ‚none of the architects testified
directly regarding Summit County’s practice and procedure for
determining whether a structure was residential,‛ and that
‚*o+nly *Lewis+ so testified.‛ As outlined above, this argument is
unsupported by the record. Upwall and Hoff each testified about
20141082-CA 18 2017 UT App 34RJW Media Inc. v. Heath
the policy and practice of Summit County, and the trial court
relied on their testimony to understand the county’s policies and
practice. While true that Lewis, an employee of Summit County,
is ‚uniquely qualified‛ to testify about Summit County’s policies
and practices, the other experts are nevertheless qualified to
testify to the same policies and practices based on their
respective experience working in Summit County. And while
RJW’s own expert, Brighton, testified differently from the other
architects, the trial court was not obligated to rely on RJW’s
expert.9 Thus, the same information was admitted into evidence,
with or without Lewis’s testimony. In light of all of the other
unchallenged evidence, RJW cannot show that it was prejudiced
by Lewis’s cumulative testimony.10
9. In its ruling, the trial court only mentioned Brighton’s
testimony to point out how ‚even RJW’s expert witness and
architect . . . testified that, under the applicable codes and
regulations, the Carriage House is a single story above grade.‛
The trial court apparently did not find Brighton’s testimony—
that the presence of a microwave oven or a hot plate in a
structure could fulfill the equipped-for-cooking criterion and
transform the non-residential structure into a residence—
compelling.
10. RJW argues that it was prejudiced because it was unable to
prepare for Lewis’s testimony. Because we hold that Lewis’s
testimony was cumulative, we need not address this issue.
However, we note not only that the information in Lewis’s
testimony was cumulative, but also that RJW had access to
Upwall’s deposition testimony from July 2013. See supra ¶ 6.
Because RJW already knew that Upwall would testify that
Summit County requires a residential structure to be equipped
for a range, and because Lewis testified similarly, any prejudice
to RJW is ‚sufficiently inconsequential that we conclude there is
no reasonable likelihood that the error affected the outcome of
the proceedings.‛ See Covey v. Covey, 2003 UT App 380, ¶ 21, 80
(continued…)
20141082-CA 19 2017 UT App 34RJW Media Inc. v. Heath
II. Complete Plans
¶39 The trial court correctly concluded that Heath fulfilled his
obligations under the CC&Rs.
¶40 ‚*R+estrictive covenants are to be interpreted using the
same rules of construction that are used to interpret contracts.‛
Fort Pierce Indus. Park Phases II, III & IV Owners Ass’n v.
Shakespeare, 2016 UT 28, ¶ 19, 379 P.3d 1218. We interpret the
terms of the CC&Rs according to their usually accepted
meanings and in light of the document as a whole. See id. ¶ 19
n.3. Although the term ‚complete plans‛ is not defined, this does
not mean that the CC&Rs are ambiguous. See WebBank v.
American Gen. Annuity Service Corp., 2002 UT 88, ¶ 20, 54 P.3d
1139 (‚An ambiguity exists in a contract term or provision if it is
capable of more than one reasonable interpretation because of
uncertain meanings of terms, missing terms, or other facial
deficiencies.‛ (citation and internal quotation marks omitted));
see also Equitable Life & Cas. Ins. Co. v. Ross, 849 P.2d 1187, 1192
(Utah Ct. App. 1993) (‚*A+ contract term is not ambiguous
simply because one party ascribes a different meaning to it to
suit his or her own interests.‛).
¶41 We agree with the trial court that, when looking at the
CC&Rs as a whole, Heath fulfilled his obligations. The provision
restricts property owners from building on their properties
without HOA approval. RJW argues, ‚In the context of
architectural or building plans, ‘complete plans’ must . . . mean
the plans for which a lot owner could receive a building permit
from the county.‛ RJW further argues that the CC&Rs require
(…continued)
P.3d 553 (citation and internal quotation marks omitted). We are
not convinced that, had it deposed Lewis, RJW would have been
any more prepared for testimony that Summit County requires a
220-volt outlet or gas hook-ups for a range because it already
knew that that testimony was forthcoming from another witness.
20141082-CA 20 2017 UT App 34RJW Media Inc. v. Heath
complete plans to be approved by the HOA’s Architectural
Committee and that because the plans that Heath submitted
were not complete enough to request or receive a building
permit from the county, the Architectural Committee never
reviewed complete plans. Therefore, RJW argues, the HOA’s
approval of the project is void, and we should reverse and order
that the whole structure be torn down.
¶42 RJW conflates what might be required by a governmental
entity with the language, purpose, and context of the particular
CC&R provision in play here. Absent its own conclusion about
the ordinary meaning of ‚complete plans,‛ RJW has pointed to
no evidence showing that the concerns of the HOA are identical
to Summit County’s concerns and require plans that are
complete enough for a building permit. In fact, the CC&Rs state
that the purpose of the HOA’s review is to allow the
Architectural Committee to ‚ascertain whether the architecture
conforms to the Design Guidelines,‛ which involves considering
cosmetic, aesthetic, and building material requirements
completely irrelevant to safety or other applicable ordinance
requirements. Given the purpose of the HOA’s review, we
interpret the term ‚complete plans‛ to mean plans that allow the
HOA to ascertain whether the structure adheres to the cosmetic,
aesthetic, and building material requirements as set forth in the
design guidelines.
¶43 According to the testimony at trial, the plans were
complete enough for the HOA to conduct its review. The HOA
approved the plans and Heath was within his rights to move
forward with the construction project. RJW fails to demonstrate
how the level of specificity in what was supplied to the HOA
compromised the HOA’s ability in any material way to ensure
compliance with the CC&Rs. We see no error in the trial court’s
conclusion that Heath fulfilled his obligations in obtaining the
HOA’s approval.
20141082-CA 21 2017 UT App 34RJW Media Inc. v. Heath
CONCLUSION
¶44 The trial court made an erroneous conclusion of law, and
therefore abused its discretion, when it determined that Heath’s
pretrial disclosure of Lewis was sufficient under rule 26 of the
Utah Rules of Civil Procedure. Lewis’s testimony should have
been excluded. However, the trial court’s ultimate conclusion is
affirmed because the error in allowing Lewis to testify was
harmless. Lastly, the trial court did not err when it concluded
that Heath fulfilled his obligations under the CC&Rs. The HOA
approved the plans, and Heath was entitled to proceed with
construction.
¶45 Affirmed.
20141082-CA 22 2017 UT App 34