Wallace v. Niels Fugal Sons

2022 UT App 111THE UTAH COURT OF APPEALS
RANELLE WALLACE,
Appellant,
v.
NIELS FUGAL SONS CO. AND PATHWAY DIRECTIONAL BORING AND
UNDERGROUND UTILITY LLC,
Appellees.
Opinion
No. 20210031-CA
Filed September 22, 2022
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 160903144
Bret P. Bryce, Attorney for Appellant
Bruce C. Burt, Attorney for Appellees
JUDGE DAVID MORTENSEN authored this Opinion, in which JUDGE
MICHELE M. CHRISTIANSEN FORSTER and SENIOR JUDGE KATE
APPLEBY concurred.1
MORTENSEN, Judge:
¶1 This is a case of a pro se litigant that wasn’t. Ranelle
Wallace was injured in a bicycle accident and sued several
entities, alleging that the accident resulted from negligent repair
of a parking strip. The case was not resolved for several years, and
eventually a trial date was set. But after a failed mediation,
Wallace’s attorney sought to withdraw, citing irreconcilable
differences. What followed was a confusing series of motions, the
appearances of additional attorneys, and Wallace’s putative
status as a pro se litigant. After Wallace failed to timely file her
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
Wallace v. Niels Fugal Sons
pretrial disclosures, the district court granted the defendants’
motion to exclude Wallace’s witnesses and documents, and
because this left Wallace with no ability to proceed, dismissed the
case. We affirm.
BACKGROUND
The Accident and Lawsuit
¶2 In October 2014, Wallace was in a bicycle accident after she
cut diagonally across a parking strip corner formed where a
driveway approach met the abutting sidewalk. The front tire of
her bicycle became caught in the approximately four-inch drop-
off in the parking strip corner, resulting in Wallace “falling face
first on the concrete.”
¶3 In May 2016, Wallace sued Niels Fugal Sons Co. and others
(collectively, Fugal), who were contractors involved in installing
an underground cable, alleging negligence in failing to fill the
parking strip to bring it up to grade with the adjacent sidewalk
and curbing, which caused Wallace to crash and sustain injuries.2
Wallace was represented by two attorneys: James Hasenyager,
who represented Wallace from the time she filed her initial
complaint, and Lani Wallace (Lani), who entered her appearance
in July 2017.3 Lani is Hasenyager’s daughter and co-counsel, but
2. Wallace originally sued Niels Fugal Sons Co. and CenturyLink.
Fugal subsequently brought in Pathway Directional Boring and
Underground Utility LLC (Pathway) as a third-party defendant.
Wallace was allowed to amend her complaint to include Pathway.
In February 2017, the parties stipulated to dismiss CenturyLink
without prejudice.
3. The record gives no indication that Ranelle Wallace and Lani
Wallace are related. To avoid confusion, we refer to Lani Wallace
by her given name.
20210031-CA 2 2022 UT App 111Wallace v. Niels Fugal Sons
there is no indication in the record, apart from sharing the same
address, that they belonged to the same law firm.4
¶4 In January 2019—after completion of fact discovery—
Fugal moved for summary judgment, arguing that there was no
evidence that it owed a duty to Wallace or that it breached an
alleged duty. The district court denied the motion. Then, in May
2019, the court filed a notice of intent to dismiss for failure to file
a certificate of readiness for trial within 330 days of the filing of
the first answer to the complaint. See Utah R. Jud. Admin. 4-103(2).
Within a few days, Wallace certified the matter ready to proceed
and requested a trial date. In June 2019, the court set the trial date
for January 6, 7, 9, and 10, 2020, directing the parties to exchange
witness and exhibit disclosures twenty-eight days before trial.
Original Counsel Attempts to Withdraw
¶5 On October 2, 2019, the parties unsuccessfully attempted to
mediate the case. The next day, Hasenyager moved for
permission to withdraw; he explained that he and Wallace had
“developed irreconcilable differences as to the handling of this
case,” making it “impossible” for him to continue as counsel. On
October 15, the court granted Hasenyager’s motion to withdraw.
¶6 On October 16, Fugal served notice on Wallace to appear
on her own behalf or to appoint new counsel. The notice was sent
to her St. George, Utah, address. On November 6, Fugal filed a
motion to dismiss for failure to appear or appoint counsel and
mailed it to Wallace. On the same day, Fugal served a rule 68
settlement offer on Wallace. See Utah R. Civ. P. 68 (describing an
offer to resolve all claims between parties).
¶7 On November 7, Lani filed a motion to withdraw as
Wallace’s counsel, stating that it was “impossible” to continue
4. Indeed, the captions on their court filings lists Hasenyager’s
firm as “Hasenyager Law” and Lani’s firm as “Lani K. Wallace,
Attorney at Law, PLLC.”
20210031-CA 3 2022 UT App 111Wallace v. Niels Fugal Sons
because she and Wallace had “developed irreconcilable
differences as to the handling of this case.” Notice of Lani’s
motion to withdraw was served on Wallace.
¶8 On November 12, the court received a “Motion to Extend
Time to find New Attorney/Represent Myself” from Wallace. It
stated,
I would like to file an extension to request more time
to find a new lawyer in regard to my civil case . . .
that went thru mediation that failed to resolve my
case and subsequently, I lost representation.
I am close to finding the right counsel for my case[.]
In the meantime, I would like to file representing
myself in order to have any docs regarding my case
be sent to me at the address or to the emails below.
The motion, which was signed by Wallace and provided her St.
George address along with two email addresses, was in the form
of a letter from Wallace to the Second District Court in the care of
the judge assigned to the case. It was dated November 3 and
postmarked November 7. It does not appear to have been served
on Fugal.
¶9 On November 29, Fugal filed its pretrial disclosures, and
the next day, it filed proposed jury instructions, including one
stating that Wallace was representing herself.
New Counsel Attempts to Enter
¶10 On December 2, Bret Bryce filed a notice of appearance as
counsel for Wallace, a role in which he continues on appeal.5 On
December 3, Bryce filed an opposition to Fugal’s November 6
5. Bryce’s Notice of Appearance is dated December 2, but the case
docket shows that it was filed on December 3.
20210031-CA 4 2022 UT App 111Wallace v. Niels Fugal Sons
motion to dismiss and a notice to submit for decision Wallace’s
November 12 motion to extend the time to retain a new attorney.
¶11 Also on December 3, Fugal filed several motions in limine,
asking, among other things, that the court limit evidence to what
was produced during discovery: “To prevent surprise, [Fugal]
seek[s] to limit admissible evidence to that which was produced
in discovery. If the parties did not properly and timely disclose
evidence in discovery, it should not be allowed to come into
evidence.” Both Wallace and Bryce were served these motions.
¶12 A docket note was entered on December 3, apparently in
response to Lani’s motion to withdraw, supra ¶ 7: “The Court does
not permit an attorney to withdraw once a case is set for trial. This
case is set in Jan 2020 for jury trial.”
¶13 Also on December 3, at around 3:45 p.m., Bryce sent an
email to Fugal’s counsel:
Wallace told me she thought you were trying to set
a trial for January but thought the court was
ordering further mediation, in any case, I did not
know that there was a trial date set. I don’t think it
is very realistic to get up to speed and prepared for
a trial that is weeks away and meet our pre-trial
deadlines (what are they, btw?).6
Within approximately thirty minutes, Fugal’s counsel responded,
I’m not sure what to tell you. There was a mediation
and it failed. There was an offer of judgment and
[Wallace] rejected it. No more money will be offered
6. We note that Bryce and Fugal’s counsel had exchanged email
messages earlier in the day about the settlement offer made to
Wallace. In this exchange, Fugal’s counsel requested of Bryce,
“Please advise when I can receive your pre-trial disclosures and
when we can talk about jury instructions.”
20210031-CA 5 2022 UT App 111Wallace v. Niels Fugal Sons
on this case. There was never ANY discussion about
a second mediation. The trial date has now been set
for quite a while and this information was available
to you (via Greenfiling) when you made your
appearance.
What’s realistic for you and for my clients are
two very different things. Unfortunately, when you
made your appearance you did so knowing you
were subject to all of the current deadlines,
including the trial date. Non-refundable retainers
were paid to our experts. Witnesses are arranging
their schedules to come prepared for my case. Tens
of thousands of dollars have been spent getting this
case ready for the trial.
I’m working 7 days per week to have this
case ready to present on January 6, 2020 and to
handle all of my other cases. This is the nature of
trial work. I’m happy to discuss with you deadlines
for witness and document disclosures, but we insist
on keeping the trial date.
Fugal’s counsel then emailed Bryce and Lani at around 11:00 p.m.
that same day:
I’d like to schedule a time for a teleconference this
week to discuss pretrial disclosures, exhibit and
witness lists, jury instructions and the verdict form.
I am happy to work with you on a brief extension to
submit your pre trial disclosures if you need it and
we can talk about that too.
¶14 On December 4, apparently in response to Wallace’s
motion to extend time to find a new attorney, supra ¶ 8, a note was
entered (presumably by a clerk) in the docket: “Case is set for jury
trial Jan 6, 2020. New attorney can not come on board at this
20210031-CA 6 2022 UT App 111Wallace v. Niels Fugal Sons
stage.” Two hours later, Hasenyager requested “a telephone
conference be set in this matter between . . . Hasenyager, [Fugal’s
counsel], and . . . Bryce to discuss case.” Significantly,
approximately three hours after Hasenyager filed the request for
the conference, this note was entered in the docket: “Clerk will
hold Order on Motion to Withdraw as counsel until the telephone
conference.”
¶15 The conference took place on December 10. The minute
entry, which identified Hasenyager and Bryce as counsel for
Wallace, indicates that (1) the court granted the “motion to
withdraw for” Hasenyager and Lani and (2) the “[j]ury [t]rial will
stay as scheduled.”7 On December 11, the court signed an order
allowing Lani to withdraw.
¶16 On December 12, another attorney—Lucas Adams—filed
an appearance to represent Wallace “in conjunction with” Bryce.
The same day, Fugal filed (1) a motion to exclude Wallace from
offering medical evidence apart from her disclosed expert and (2)
a motion to exclude exhibits and witnesses not disclosed at least
twenty-eight days before trial. See Utah R. Civ. P. 26(a)(5)(B).
These motions were served on Bryce and Adams.
¶17 On December 13, during a telephone conference that
Adams requested—the minute entry for which identifies Adams
as Wallace’s counsel—the court determined that it would allow
Adams to enter an appearance as counsel but would not continue
the trial or extend disclosure deadlines. The court also said it
would allow Adams to withdraw on December 16, noting that if
7. We note that the court had already granted Hasenyager’s
motion to withdraw on October 15. Supra ¶ 5. Thus, it is unclear
whether the “hold” placed on the motion to withdraw referred to
Hasenyager’s motion, Lani’s motion, or both. But it does not
matter to our analysis, because in any of the three scenarios, when
her disclosures were due, Wallace had representation (either both
Hasenyager and Lani or Lani alone).
20210031-CA 7 2022 UT App 111Wallace v. Niels Fugal Sons
he did not, he would remain as counsel for trial. Adams withdrew
as counsel on December 16.
¶18 Also on December 16, Wallace—from this point
represented by Bryce alone—filed a motion to extend time to file
pretrial disclosures and also submitted pretrial disclosures. On
December 20, Wallace, through Bryce, submitted her own rule 68
offer of settlement. And on December 23, Wallace filed ten
motions, many in opposition to Fugal’s previously filed motions,
related to evidence, theories of damages and liability, and
remedial measures. Notably, all those motions were filed by
Bryce, who was acting as Wallace’s counsel despite the court’s
earlier note that a new attorney could not “come on board.” Supra
¶ 14.
The Court’s Decision
¶19 On December 27, after oral argument on the pending
motions, the court granted Fugal’s motion to exclude witnesses
and documents, dismissed the case, and ordered the trial dates
stricken. On January 2, 2020, the court issued eight orders
pertaining to the specific evidence, witnesses, and use of legal
theories covered in Fugal’s motions. In granting the motion to
exclude witnesses and documents, the court ruled as follows:
“[Wallace] may not use any documents at trial, nor may [she] call
any witnesses at trial, including herself. Accordingly, [her]
lawsuit is hereby dismissed with prejudice because she cannot
establish her causes of action.”8
8. Wallace conceded at oral argument that it was appropriate for
the court to dismiss her case once it excluded her witnesses. As
Wallace stated in her brief, granting the motion to exclude
“effectively dismiss[ed]” the case. Thus, Wallace does not appeal
the district court’s conclusion that with all her witnesses,
including herself, and documents excluded, dismissal of the case
was warranted.
20210031-CA 8 2022 UT App 111Wallace v. Niels Fugal Sons
¶20 On January 30, Wallace filed a motion for relief from an
order under rule 60(b) of the Utah Rules of Civil Procedure,
arguing that (1) the court violated Wallace’s due process rights
when it “forced” her to proceed pro se without an explanation of
her obligations regarding pretrial disclosures; (2) Wallace should
have been permitted more time to file her pretrial disclosures
“because her situation met the standard of excusable neglect”
under rule 60(b)(1) of the Utah Rules of Civil Procedure; and (3)
Fugal “committed misrepresentation, misconduct, and fraud
upon [the] court by pursuing a pattern of consistently
misrepresenting the facts” to prejudice the court against Wallace
and get Wallace’s action dismissed “in violation of [her] due
process rights.”
¶21 Regarding her assertion of excusable neglect, Wallace
argued,
The delay was not within the reasonable control of
[Wallace]. [Hasenyager] withdrew for medical
reasons because he did not want to conduct her trial
after mediation failed to achieve a settlement, and
her new counsel was not sure if he was even
recognized by the court to file pretrial disclosures
until the telephonic conference between the court,
Mr. Adams, and [Fugal’s counsel] on December 13,
2019. Because of [Wallace’s] health, her counsel’s
health, and confusion as to who was representing
her, as well as ignorance of due dates, [Wallace] did
not have the option to file her pretrial disclosures
until December 13, 2019[.]
¶22 In mid-February, Wallace filed a declaration stating that
she never fired Hasenyager, that Hasenyager told her he had a
debilitating illness and would not be able to take her case to trial,
that Fugal’s counsel became “belligerent and angry and
threatening” when he called her after Hasenyager’s withdrawal,
and that she had difficulty finding a new attorney “on such short
notice and so close to trial.” In a second declaration filed six days
20210031-CA 9 2022 UT App 111Wallace v. Niels Fugal Sons
later, Wallace stated that “neither . . . Hasenyager, [Fugal’s
counsel], nor the court ever gave [her] notice of pretrial deadlines
or the trial date.”
¶23 Also in mid-February, Hasenyager signed an affidavit
stating that he “withdrew from the case because of ‘irreconcilable
differences’” after mediation failed. He also stated that when he
filed his October 3 motion to withdraw, his “assumption was that
[he] and Lani . . . were withdrawing.” But in November, “when it
became apparent that the [district court] still had Lani . . . as an
attorney for [Wallace], [Hasenyager] filed a motion to withdraw
for her to clarify that she was, in fact, withdrawn from the case.” 9
¶24 Some months later, in December 2020, the court issued a
memorandum decision denying Wallace’s motion for relief.
¶25 Wallace appeals the district court’s decision to grant
Fugal’s motion to exclude documents and witnesses, which led to
the dismissal of her case, and its denial of her rule 60(b) motion.10
ISSUES AND STANDARDS OF REVIEW
¶26 Wallace first contends that the district court abused its
discretion when it granted Fugal’s motion to exclude her
documents and witnesses, which resulted in the dismissal of the
case. “A district court has broad discretion in selecting and
9. To be clear, Lani—not Hasenyager—signed her motion to
withdraw. Moreover, we note that, contrary to Hasenyager’s
statement that Lani’s motion “clarif[ied] that she was, in fact,
withdrawn from the case,” the Utah Rules of Civil Procedure
make clear that if a “trial has been set, an attorney may not
withdraw except upon motion and order of the court.” See Utah
R. Civ. P. 74(a).
10. Wallace also appeals the court’s rulings on all of Fugal’s other
motions in limine, but because of the manner in which we resolve
this appeal, we need not consider these other arguments.
20210031-CA 10 2022 UT App 111Wallace v. Niels Fugal Sons
imposing sanctions for discovery violations under rule 26.
Appellate courts may not interfere with such discretion unless
there is either an erroneous conclusion of law or no evidentiary
basis” for the district court’s ruling. VT Holdings LLC v. My
Investing Place LLC, 2019 UT App 37, ¶ 25, 440 P.3d 767 (cleaned
up); see Utah R. Civ. P. 26(d)(4) (“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.”).
¶27 Wallace also asserts that the district court violated her due
process rights by “forcing” her to proceed without an attorney
with no explanation of her obligations regarding pretrial
disclosures. “Constitutional issues, including questions regarding
due process, are questions of law that we review for correctness.
However, because these questions require the application of facts
in the record to the due process standard, we incorporate a clearly
erroneous standard for the necessary subsidiary factual
determinations.” Salt Lake City Corp. v. Jordan River Restoration
Network, 2012 UT 84, ¶ 47, 299 P.3d 990 (cleaned up).11
11. Wallace also claims that the district court erred when it refused
to estop Fugal from enforcing the pretrial disclosure deadlines.
Wallace asserts that “she argued the elements of equitable
estoppel by raising the issue of Fugal’s counsel offering a vague
extension” and Fugal’s “misrepresenting that extension in oral
argument before the trial court” in her rule 60(b) motion. “To the
extent that [Wallace] did raise the claim, [her] argument was so
cryptic and vague that it did not satisfy the preservation rule’s
specificity requirement.” See Salt Lake City Corp. v. Jordan River
Restoration Network, 2012 UT 84, ¶ 145, 299 P.3d 990 (cleaned up);
see also Gressman v. State, 2013 UT 63, ¶ 45, 323 P.3d 998 (“An issue
is preserved for appeal when it has been presented to the district
court in such a way that the court has an opportunity to rule on
it.” (cleaned up)). “When an issue is not preserved in the trial
(continued…)
20210031-CA 11 2022 UT App 111Wallace v. Niels Fugal Sons
ANALYSIS
I. The court did not abuse its discretion in granting Fugal’s
motion to exclude Wallace’s documents and witnesses.
¶28 Under rule 26(d)(4) of the Utah Rules of Civil Procedure,
“[i]f 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.”
“[A]s a general rule, we grant district courts a great deal of
deference in matters of discovery and review discovery orders for
abuse of discretion. 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.” Dahl v. Dahl,
2015 UT 79, ¶ 63, 459 P.3d 276 (cleaned up).
¶29 As a threshold matter, we acknowledge that “standards of
review really do matter” and that we will affirm a district court’s
decision not necessarily “because we think it was the right
decision but because of our deferential standard of review.” Gunn
Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2015
UT App 261, ¶ 21, 361 P.3d 703 (Orme, J., concurring). Thus, even
if we think a trial judge made the “wrong call,” if that call is
“within the broad range of discretion entrusted” to the judge, we
will affirm it. Id.; see also In re J.M., 2020 UT App 52, ¶ 42, 463 P.3d
66 (“The standard of review we apply [here] is so deferential that
we must forebear disturbing the close call, even if we may view
the facts in a different light.” (cleaned up)).
court, but a party seeks to raise it on appeal, the party must
establish the applicability of one of the exceptions to preservation
to persuade an appellate court to reach that issue.” State v. Van
Huizen, 2019 UT 1, ¶ 21, 435 P.3d 202 (cleaned up). Wallace has
not argued that any exception applies, so we decline to consider
her equitable estoppel claim.
20210031-CA 12 2022 UT App 111Wallace v. Niels Fugal Sons
¶30 First, there is no question that Wallace’s disclosures were
untimely. The district court set the date of the trial to begin on
January 6, 2020, making the deadline for pretrial disclosure
December 9, 2019. Wallace did not file disclosures until December
16. Wallace asserts that several of the findings that the district
court made in granting Fugal’s motion to exclude documents and
witnesses were erroneous: (1) that Hasenyager sought
withdrawal due to irreconcilable differences rather than illness,
(2) that Lani sought withdrawal for conflict of interest with
Wallace rather than illness, (3) that Lani’s motion to withdraw
was granted on December 3 instead of December 11, (4) that
Wallace “did not zealously seek representation,” (5) that Wallace
created excessive legal costs for Fugal, and (6) that confusion
about Wallace’s legal representation was “merely harmless
error.” But none of these alleged errors—and not even all of them
combined—would have affected Wallace’s ability to timely file
disclosures, because she was represented—at the very least by
Lani—at the time of the deadline.
¶31 Second, Wallace’s failure to timely disclose her witnesses
and documents was not harmless to Fugal. Wallace argues that
the “court at the very least should have permitted [Wallace] to file
her pretrial disclosures merely 7 days after the deadline” and that
the “length of the delay and the delay’s potential impact on
judicial proceedings was non-existent,” asserting, “A one week’s
delay is incredibly minimal.” But being seven days late is not
harmless when considered in the context of preparing for a trial
that is less than one month away. And the seven-day delay would
have been additionally harmful considering the time of the year
(when there are several holidays) during which it occurred.
¶32 Wallace also argues that “[t]here existed no surprise for
[Fugal in Wallace’s] disclosures, as they are practically and for all
purposes identical [to Fugal’s disclosures], and [Fugal] has known
about and has been preparing for these witnesses for a long period
of time.” But the harmfulness of the delay persists even though
Wallace’s disclosures were nearly identical to those offered by
Fugal. As Fugal argues,
20210031-CA 13 2022 UT App 111Wallace v. Niels Fugal Sons
It’s accurate that [Wallace] appears to have largely
copied the defense pre-trial disclosures. Indeed, the
lack of preparation that went into [Wallace’s] pre-
trial disclosures only heightened the difficulty for
defense counsel to prepare the case for trial. The
purpose of pretrial disclosures—for [Wallace]—is to
tell the defense what documents she will, in fact,
present in her case in chief. There were hundreds of
pages of medical records identified by [Wallace’s]
disclosure. Its lack of specificity made it more
difficult (not less difficult) for [Fugal] to prepare its
defense.
¶33 Third, Wallace did not show good cause for her failure to
disclose. Wallace offers several excuses that she argues show good
cause for her failure to timely file her disclosures: “Because of . . .
Wallace’s health, her counsel’s health, and confusion as to who
was representing her, as well as ignorance of due dates, . . .
Wallace did not have the option to file her pretrial disclosures
until sometime after December 13, 2019.”
¶34 But the record is clear that Wallace was represented at the
time the disclosures were due. And the record does not reflect a
specific connection between Wallace’s counsel’s health and the
untimely filing of the pre-trial disclosures. Any ignorance
attributable to Wallace herself—as an allegedly pro se litigant—as
to the due dates is irrelevant because Wallace was represented by
Lani at the time the disclosures were due. Hasenyager was
Wallace’s counsel until the court granted his motion to withdraw
on October 15. After October 15, Lani was representing Wallace,
even though this may not have initially been clear to Wallace,
Hasenyager, and Lani. But by November 7—the date Lani
submitted her motion to withdraw, supra ¶ 7—it is clear that
Wallace was still represented and that both Hasenyager and Lani
were aware that Lani was still on the case. Thus, from November
7 until December 11 (when the court signed Lani’s motion to
withdraw), the record is clear that Wallace was represented by
Lani and that Lani and Hasenyager were aware of Lani’s
20210031-CA 14 2022 UT App 111Wallace v. Niels Fugal Sons
representation of Wallace. Significantly, the date on which the
disclosures were due—December 9—fell within the period
Wallace was represented by Lani.
¶35 Lani and Hasenyager also would have known that merely
submitting a motion to withdraw was not enough to effect Lani’s
withdrawal as counsel. Lani’s motion specifically and properly
sought the court’s “permission to withdraw as attorney” for
Wallace because she and Wallace had “developed irreconcilable
differences as to the handling of this case.” (Emphasis added.) As
the Utah Rules of Civil Procedure make clear, once a “trial has
been set, an attorney may not withdraw except upon motion and
order of the court.” See Utah R. Civ. P. 74(a). Thus, because the
trial date had been set, Lani knew that she could not merely inform
the court of her withdrawal but would have to seek permission to
withdraw—permission that she, in fact, sought. And that
permission was not granted until the court signed the order to that
effect on December 11, two days after the pretrial disclosures were
due.
¶36 Moreover, once the alleged confusion arose over whether
Bryce was representing Wallace, the district court noted that it
would “hold” the order on Lani’s motion to withdraw until the
matter was clarified in the telephone conference. Only after the
conference on December 10 did the court sign the order allowing
Lani to withdraw. Thus, on December 9, when pretrial disclosures
were due, Lani was representing Wallace.
¶37 In sum, having determined that Wallace did not timely file
her pretrial disclosures, that her failure to disclose was not
harmless to Fugal, and that—because she was represented at the
time the disclosures were due—she cannot show good cause for
her failure, we conclude that the district court did not abuse its
discretion in granting Fugal’s motion to exclude Wallace’s
documents and witnesses and in dismissing her case.
20210031-CA 15 2022 UT App 111Wallace v. Niels Fugal Sons
II. The court did not violate Wallace’s due process rights.
¶38 Wallace argues that the district court “deprived” her of the
“constitutional right to due process when it forced her to proceed
pro se and then defaulted her on a technicality.” Wallace might
have a good point if the court had indeed forced her to proceed
pro se. But Wallace’s assertion is built on a faulty factual
foundation.
¶39 First, there is no evidence that the court forced Wallace to
proceed pro se. While Wallace, Hasenyager, and Lani may have
mistakenly understood that Wallace was representing herself for
(at most) twenty-four days (from October 15, when the court
signed the order allowing Hasenyager to withdraw, until
November 7, when Lani filed her motion to withdraw), the record
shows that Wallace was, in fact, represented by Lani continuously
from her appearance in July 2017 until the court signed the order
allowing Lani to withdraw on December 11, 2019. Indeed, the
court made a point of delaying issuing its order allowing Lani’s
withdrawal until after Wallace had obtained new counsel. And
after December 13—at the latest—either Bryce or Adams
represented Wallace.
¶40 Second, there is no evidence that Wallace ever acted in a
pro se manner, apart from sending a letter asking to extend time
to find a new attorney or represent herself, which was filed when
Lani was still counsel to Wallace. Except for this motion—filed
well before disclosures were due on December 9, when there is no
question that Lani represented Wallace—there is no indication
that Wallace functioned as a pro se litigant in any substantive
way. Put simply, Wallace never actually did anything pro se. And
it is certainly true that Wallace was not acting as a pro se litigant
anywhere near the critical time that her disclosures were due.
¶41 In sum, Wallace’s due process rights were not violated. She
was never compelled to act pro se, and there is no evidence that
Wallace ever, in fact, acted pro se during the critical point at which
her disclosures were due.
20210031-CA 16 2022 UT App 111Wallace v. Niels Fugal Sons
CONCLUSION
¶42 The district court did not abuse its discretion when it
granted Fugal’s motion to exclude Wallace’s documents and
witnesses based on her untimely pretrial disclosures. And
because she was represented by counsel at all relevant times and
not forced to proceed pro se, Wallace’s due process rights were
not violated.
¶43 Affirmed.
20210031-CA 17 2022 UT App 111