Clifford P.D. Redekop Family LLC v. Utah County Real Estate LLC

2016 UT App 121THE UTAH COURT OF APPEALS
THE CLIFFORD P.D. REDEKOP FAMILY LLC
AND H. TIMOTHY MCCARDELL,
Appellants,
v.
UTAH COUNTY REAL ESTATE LLC, DONALD L. BLACKWELDER,
AND TERRY A. POTTER,
Appellees.
Opinion
No. 20150097-CA
Filed June 3, 2016
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 110401668
Dwight G. Beckstrand, Attorney for Appellants
Russell C. Fericks and Sean C. Miller, Attorneys
for Appellees
SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in
which JUDGES GREGORY K. ORME and MICHELE M.
CHRISTIANSEN concurred.1
GREENWOOD, Senior Judge:
¶1 Plaintiffs The Clifford P.D. Redekop Family LLC and H.
Timothy McCardell (collectively, Redekop) appeal the district
court’s order granting summary judgment to Defendants Utah
County Real Estate LLC, Donald L. Blackwelder, and Terry A.
Potter (collectively, Prudential). We affirm.
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
The Clifford P.D. Redekop Family v. Utah County Real Estate
BACKGROUND
¶2 In 2005, Redekop entered into a Limited Agency Consent
Agreement with Prudential. Prudential represented both the
buyer—Redekop—and the seller when Redekop purchased two
commercial office condominiums in Utah County (the Premises).
For several years, Redekop collected rent from its commercial
tenants in the Premises without any problems. But in 2009, both
of Redekop’s tenants claimed Redekop had overstated the
square footage of the Premises, stopped paying rent, and
demanded a rebate of rent paid. One tenant abandoned the
Premises and, apparently, the other eventually moved out.
Redekop was unable to find replacement tenants, and the loss of
rental income caused it to default on the loan used to finance
purchase of the Premises. The lender foreclosed on the property.
¶3 In June 2011, Redekop sued Prudential seeking damages
for breach of contract, breach of the implied covenant of good
faith and fair dealing, breach of fiduciary duty, fraud, civil
conspiracy, and negligent misrepresentation. Redekop claimed
Prudential ‚knew that the square footage of the Premises . . . was
inaccurate‛ but misrepresented the square footage in order to
‚ensure the successful sale of the Premises [to Redekop] at the
highest possible price.‛
¶4 A September 2012 stipulated amended case management
order (the 2012 Scheduling Order) designated the fact discovery
deadline as January 31, 2013, and the deadline for Redekop’s
expert disclosures of February 28, 2013, extending both
deadlines by six months from the original order. The cutoff date
for filing dispositive motions was extended to July 31, 2013. In
August 2013, after months of inactivity, the district court notified
the parties that it would dismiss the case unless it heard from
Redekop within twenty days ‚showing good cause why this
*case+ should not be dismissed.‛ Twenty-one days later,
Redekop filed a motion, explaining that the sudden death of
‚one of the Redekop parties[’]‛ children had caused the delay
20150097-CA 2 2016 UT App 121The Clifford P.D. Redekop Family v. Utah County Real Estate
and requesting that the district court schedule a trial date.
Prudential filed a motion for summary judgment, arguing that
Redekop had not designated an expert witness to address the
professional and legal duty of a limited real estate agent.
Redekop responded with a motion to strike the motion for
summary judgment, in which it requested a modification of the
2012 Scheduling Order regarding designation of expert
witnesses. The district court refused to consider Redekop’s
motion due to untimeliness but nevertheless denied Prudential’s
motion for summary judgment, stating that Prudential had not
met its ‚burden of presenting evidence that no genuine issue of
material fact exists in this case.‛
¶5 In its second stipulated amended case management order
dated February 14, 2014 (the 2014 Scheduling Order)—seventeen
months after the 2012 Scheduling Order and almost two years
after the original case management order—the district court set
an expert disclosure deadline of June 12, 2014, for Redekop; a
rebuttal expert disclosure deadline of July 14, 2014, for
Prudential; and an expert discovery completion deadline of
September 30, 2014, for both parties. Expert witness disclosures
and expert reports were to comply with rule 26(a)(3) of the Utah
Rules of Civil Procedure.2 The district court later advised the
parties that the deadlines in the 2014 Scheduling Order ‚are firm
and will not be extended.‛
¶6 Redekop timely designated its expert witnesses. The
district court noted, however, that the report disclosed only the
2. Because this case was filed in June 2011 and because
amendments to the Utah Rules of Civil Procedure effective
November 1, 2011, made significant changes to the discovery
rules, the district court applied the pre-amendment version of
the discovery rules. See Utah R. Civ. P. 1 advisory committee
notes. We, likewise, cite the pre-amendment version of the rules.
20150097-CA 3 2016 UT App 121The Clifford P.D. Redekop Family v. Utah County Real Estate
name Pontis Architectural Group as its expert and included only
‚floor plans of the commercial property in dispute‛ and
‚conclusory‛ square footage assessments, without explaining
how those numbers were calculated. Prudential objected to the
expert witness report, citing the report’s insufficiency and lack of
identification of any individual qualified to testify as an expert in
the case. Prudential also attempted to communicate with
Redekop to correct the report’s deficiencies so that it could
depose Clifford Redekop and the designated experts. When
Redekop still did not supplement its expert disclosure,
Prudential notified Redekop and the district court that it was
cancelling the deposition of Redekop’s expert scheduled to take
place on the last day of expert witness discovery. After close of
business on September 30, 2014—the deadline for expert
discovery—Redekop provided a supplement to its expert
witness designation and report. The supplement contained the
names of three individuals associated with Pontis Architectural
Group, who Redekop explained ‚may‛ testify, along with a
brochure from Pontis Architectural Group detailing biographical
information for each potential witness. Prudential, on the other
hand, had timely designated its rebuttal expert witnesses by its
July deadline.
¶7 On October 7, Prudential filed a second motion for
summary judgment, arguing that the district court should
exclude Redekop’s expert witness due to its failure to comply
with the 2014 Scheduling Order and that, in the absence of
qualified expert testimony, Redekop could not meet its burden
of proof.3 Redekop’s counsel explained his noncompliance,
3. Redekop claims that Prudential’s second motion for summary
judgment—raising the issues we consider in this appeal—
‚addressed the issues litigated in‛ its first motion for summary
judgment. To the contrary, Prudential states that the first motion
for summary judgment was denied because Prudential ‚had
(continued…)
20150097-CA 4 2016 UT App 121The Clifford P.D. Redekop Family v. Utah County Real Estate
stating that from ‚late-July 2014 through September 2014, [he]
was mostly incommunicado professionally due to an apparent
breach of [his] security and violation of [his] privacy in
connection with an unrelated and highly contentious client
matter.‛ The district court rejected Redekop’s explanation and
excluded its expert witness and report as a sanction for
noncompliance with the 2014 Scheduling Order. The district
court stated that Redekop’s counsel’s security breach in late July
‚could not have affected [Redekop’s+ ability to make timely
disclosures one month earlier on June 12, 2014,‛ and that
Redekop’s counsel ‚did not communicate with opposing counsel
about this problem, or seek a timely extension of time from the
Court.‛ Redekop, thus, had not shown ‚good cause‛ why it
could not comply with the 2014 Scheduling Order. The district
court also found that Redekop did not comply with rule 26,
because it ‚did not disclose the qualifications, compensation, or
prior casework of any particular person working for or with
Pontis Architectural Group.‛ Citing rule 37 of the Utah Rules of
Civil Procedure, the district court found
(…continued)
failed to establish that no genuine issue of material fact existed
as to Redekop’s need for expert testimony on the standard of
care required of a limited real estate agent.‛ The memorandum
decision denying the first motion acknowledged Prudential’s
argument regarding the need for expert testimony as to the
duties of a limited real estate agent, but also stated that at that
time there was ‚evidence in the record evidencing a genuine
issue of material fact as to the square footage of the Premises.‛
However, the denial of the earlier motion is not material to our
analysis. The district court’s decision did not resolve the issue of
whether expert testimony was needed on the issue of square
footage. Furthermore, the entry of the 2014 Scheduling Order
rendered any prior procedural loose ends largely irrelevant.
20150097-CA 5 2016 UT App 121The Clifford P.D. Redekop Family v. Utah County Real Estate
no good cause for *Redekop’s] failure to make
expert discovery disclosures timely. The non-
disclosure was willful. It was also prejudicial to
[Prudential] as it rendered [Prudential] incapable
of deposing *Redekop’s+ experts, attempting to
disqualify the experts, and finding rebuttal experts.
¶8 The district court next determined that expert testimony
was needed ‚as to the manner in which commercial square
footage is calculated in the commercial real estate industry.‛ It
noted the ‚common areas and storage space in the building‛ and
questioned the ‚manner and . . . methodology‛ by which these
‚shared spaces [were] allocated to each commercial unit.‛ It
stated its belief that the ‚average bystander could not provide
testimony related to these issues.‛ (Citing State v. Rothlisberger,
2006 UT 49, ¶ 34, 147 P.3d 1176.) Thus, the district court held that
‚*w+ithout the testimony of *Redekop’s+ expert, the testimony of
*Prudential’s+ expert—that the square footage of the building
was equal to or exceeded the square footage promised to
[Redekop]—stands unrebutted.‛ Accordingly, the district court
granted summary judgment in Prudential’s favor.
ISSUES AND STANDARDS OF REVIEW
¶9 Redekop first argues that it substantially complied with
the 2014 Scheduling Order and therefore no sanctions were
warranted. Redekop further asserts that the district court’s
exclusion of his expert witness was an abuse of discretion. We
review a district court’s imposition of sanctions by first ensuring
that the district court has expressly found that the party’s
behavior merits sanctions. Kilpatrick v. Bullough Abatement, Inc.,
2008 UT 82, ¶ 23, 199 P.3d 957. If such a finding has been made,
we will disturb the sanction only if the district court clearly
abused its discretion, i.e., if the court relied on an erroneous
conclusion of law or if no evidentiary basis supports the court’s
ruling, keeping in mind that, ‚[a]s a general rule, district courts
20150097-CA 6 2016 UT App 121The Clifford P.D. Redekop Family v. Utah County Real Estate
are granted a great deal of deference in selecting discovery
sanctions.‛ Id. (citation and internal quotation marks omitted).
¶10 Redekop next argues that summary judgment was
unwarranted because ‚expert opinion [was] not needed in this
matter.‛ An appellate court reviews a district court’s conclusion
that expert testimony is required for correctness. See Townhomes
at Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes,
LLC, 2014 UT App 52, ¶ 20, 329 P.3d 815 (affirming in part
because the district court did not err in determining that expert
testimony was required).
ANALYSIS
I. The District Court Did Not Exceed Its Discretion When It
Excluded Redekop’s Expert as a Rule 37 Sanction for Willful
Noncompliance with the Court’s Order.
¶11 Redekop contests the district court’s ruling excluding its
expert witness as a rule 37 sanction for willful noncompliance
with the court’s 2014 Scheduling Order. Redekop argues that it
sufficiently complied with the 2014 Scheduling Order and that
the sanction was merely a ‚docket-clearing exercise [and thus]
was an abuse of the District Court’s discretion.‛ Prudential
responds that Redekop’s inadequate disclosure was ‚so grossly
deficient that it amounted to a non-disclosure‛ and that the
district court did not abuse its discretion by excluding Redekop’s
expert witness as a sanction under rule 37.
¶12 The district court found that there was ‚no good cause‛
for Redekop’s ‚failure to make expert disclosures timely.‛ It also
found that the ‚non-disclosure was willful‛ and that Redekop’s
failure had prejudiced Prudential by rendering Prudential
‚incapable of deposing *Redekop’s+ experts, attempting to
disqualify the experts, and finding rebuttal experts.‛ Thus, the
20150097-CA 7 2016 UT App 121The Clifford P.D. Redekop Family v. Utah County Real Estate
district court excluded Redekop’s expert witness ‚in accordance
with Rule 37.‛
¶13 Rule 16 of the Utah Rules of Civil Procedure ‚gives the
district court broad authority to manage a case.‛ Coroles v. State,
2015 UT 48, ¶ 19, 349 P.3d 739 (citation and internal quotation
marks omitted); see also, e.g., Allen v. Ciokewicz, 2012 UT App 162,
¶ 32, 280 P.3d 425 (‚Where the trial court finds that a party acted
willfully, rule 37 of the Utah Rules of Civil Procedure allows it to
impose sanctions. Once the court makes this threshold finding,
the choice of an appropriate discovery sanction is primarily the
responsibility of the trial judge.‛ (citation and internal quotation
marks omitted)). Our supreme court has cautioned that ‚where
the exclusion of an expert is tantamount to the dismissal of the
lawsuit, . . . the district court should exercise restraint in
choosing this grave step rather than a lesser sanction.‛ Coroles,
2015 UT 48, ¶ 29. But it also has declared that ‚[o]ur already
overworked district court judges should not be required to
provide remedial instructions to counsel on how to properly
conduct discovery, designate trial exhibits, or prepare expert
reports.‛ Dahl v. Dahl, 2015 UT 79, ¶ 83, 794 Utah Adv. Rep. 5.
‚Pretrial discovery and disclosure are basic skills that we expect
all attorneys to possess.‛ Id. Thus, ‚‘it is within a trial court’s
discretion to impose such a sanction.’‛ Allen, 2012 UT App 162,
¶ 32 (quoting Morton v. Continental Baking Co., 938 P.2d 271, 274
(Utah 1997)). Our ‚deferential review recognizes that trial courts
must deal first hand with the parties and the discovery process.‛
Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 23, 199 P.3d
957 (citations and internal quotation marks omitted). Thus, ‚we
overturn a sanction only in cases evidencing a clear abuse of
discretion.‛ Id. And a trial court does not clearly abuse its
discretion in choosing a sanction, even a harsh one, unless ‚there
is either an erroneous conclusion of law or . . . no evidentiary
basis for the trial court’s ruling.‛ Allen, 2012 UT App 162, ¶ 32
(omission in original) (citation and internal quotation marks
omitted).
20150097-CA 8 2016 UT App 121The Clifford P.D. Redekop Family v. Utah County Real Estate
¶14 While a district court judge enjoys ‚broad discretion in
determining how a [case] shall proceed in his or her courtroom,‛
Steffensen-WC, LLC v. Volunteers of America of Utah, Inc., 2016 UT
App 49, ¶ 12, 369 P.3d 483 (alteration in original) (citation and
internal quotation marks omitted), before a district court may
impose discovery sanctions under rule 37, ‚the court must find
on the part of the noncomplying party willfulness, bad faith, or
fault.‛ Morton, 938 P.2d at 274. ‚To find that a party’s behavior
has been willful, there need only be any intentional failure as
distinguished from involuntary noncompliance.‛ Id. at 276
(citation and internal quotation marks omitted). ‚Once the trial
court determines that sanctions are appropriate, [t]he choice of
an appropriate discovery sanction is primarily the responsibility
of the trial judge.‛ Id. at 274 (alteration in original) (citation and
internal quotation marks omitted).
¶15 The district court found that Redekop acted ‚willfully‛
and found ‚no good cause‛ for its failure to timely disclose an
expert in accordance with rule 26. Rule 26(a)(3) requires parties
to identify each expert witness and provide a written report
prepared and signed by the party or expert. The report must
include (1) ‚the subject matter on which the expert is expected to
testify‛; (2) ‚the substance of the facts and opinions to which the
expert is expected to testify‛; (3) ‚a summary of the grounds for
each opinion‛; (4) ‚the qualifications of the witness, including a
list of all publications authored by the witness within the
preceding ten years‛; (5) ‚the compensation to be paid for the
study and testimony‛; and (6) ‚a listing of any other cases in
which the witness has testified as an expert at trial or by
deposition within the preceding four years.‛ Utah R. Civ. P.
26(a)(3)(B). Under the 2014 Scheduling Order, Redekop had until
June 12, 2014, to designate an expert witness and provide a
compliant report to Prudential. Redekop did not provide an
expert witness report by the stipulated deadline and attempted
to excuse its failure to do so—and its lack of communication
with the district court and opposing counsel—by explaining that
20150097-CA 9 2016 UT App 121The Clifford P.D. Redekop Family v. Utah County Real Estate
its counsel had experienced a security breach and was ‚mostly
incommunicado professionally‛ from ‚late-July 2014 through
September 2014.‛ And only when pressed—and at the close of
all expert witness discovery—did it designate three possible
witnesses from Pontis Architectural Group, any one of whom
might testify. Thus, the district court found that Redekop
disclosed only the name of Pontis Architectural
Group and the floor plans of the commercial
property in dispute. The plans did contain square
footage calculations, but these figures were
conclusory. [Redekop] did not disclose the subject
matter of the expert’s expected testimony, the
substance of the facts and opinions on which the
expert would testify, or the grounds for each
opinion. [Redekop] did not disclose the
qualifications, compensation, or prior casework of
any particular person working for or with Pontis
Architectural Group.
Consequently, the district court determined that there was ‚no
good cause‛ for this ‚willful‛ and untimely disclosure.
¶16 Given these facts and the evidence supporting them, we
discern no abuse of discretion in the district court’s exclusion of
Redekop’s expert witness and report as a rule 37 sanction. See
Dahl, 2015 UT 79, ¶ 83 (‚Our courts rely heavily on the
competence and diligence of counsel. The evidentiary rulings
[the appellant] complains of were largely the result of her
counsel’s inability to follow basic rules of procedure and
properly manage discovery.‛).
II. The District Court Did Not Err in Determining that Expert
Testimony Was Needed in This Case.
¶17 Redekop next argues that an expert is not needed to
testify as to the Premises’ square footage because ‚the precise
20150097-CA 10 2016 UT App 121The Clifford P.D. Redekop Family v. Utah County Real Estate
measurement of the Premises is not important,‛ a ‚layperson can
measure an office and testify as to those measurements,‛ and a
‚trier of fact can determine what to think of those lay
measurements.‛ Prudential responds, however, that
‚[s]pecialized knowledge is required to properly calculate the
square footage‛ of the Premises because commercial real estate
square footage calculations ‚must take into account any common
areas in the building such as the lobby and waiting areas,
restrooms, elevator shafts, storage areas, etc.‛ Prudential further
explains that
[e]ach tenant in the building is assessed a share of
these common areas (referred to in the industry as
‚core factor‛) based on the amount of space the
tenant occupies, the amount of rent the tenant
pays, the location of the tenant within the building,
and the relative importance of the tenant to the
building.
¶18 As Redekop explains, the ‚disputed issue addressed in
this matter‛—and the underpinning of all of its claims—‚is
whether the rentable square footage at the [Premises] was
overstated by *Prudential+.‛ For Redekop to show that the
square footage of the Premises was less than promised, as the
district court determined,
[e]xpert testimony [was] needed as to the manner
in which commercial square footage is calculated
in the commercial real estate industry. For
example, there are common areas and storage
space in the building. In what manner and by what
methodology are these shared spaces allocated to
each commercial unit? The average bystander
could not provide testimony related to these issues.
In other words, the district court concluded that a jury could
find that Prudential had overstated the rentable square footage
20150097-CA 11 2016 UT App 121The Clifford P.D. Redekop Family v. Utah County Real Estate
of the Premises only if the jury could understand the
methodology and standards employed by real estate agents in
calculating a property’s rentable square footage.
¶19 An appellate court reviews for correctness a district
court’s conclusion that expert testimony is required. See
Townhomes at Pointe Meadows Owners Ass’n v. Pointe Meadows
Townhomes, LLC, 2014 UT App 52, ¶ 20, 329 P.3d 815 (holding
that the district court did not err in determining that expert
testimony was required). The ‚test for determining whether
testimony must be provided by an expert is whether the
testimony requires that the witness have scientific, technical, or
other specialized knowledge; in other words, whether an
average bystander would be able to provide the same
testimony.‛ State v. Rothlisberger, 2006 UT 49, ¶ 34, 147 P.3d 1176.
Furthermore, ‚expert testimony is necessary in cases where the
jury would be unable to determine the applicable standard of
care without resorting to speculation.‛ Callister v. Snowbird Corp.,
2014 UT App 243, ¶ 15, 337 P.3d 1044 (emphasis added); id.(noting that in cases involving a standard of care, ‚expert
testimony is necessary . . . where the particularities of the alleged
standard of care do not reside within the common knowledge
and experience of a lay juror.‛). And, ‚*o+rdinarily, the standard
of care in a trade or profession must be determined by testimony
of witnesses in the same trade or profession.‛ Townhomes at
Pointe Meadows, 2014 UT App 52, ¶ 20 (citation and internal
quotation marks omitted).
¶20 We conclude that the district court correctly determined
that the question of how square footage is calculated in
commercial real estate, including consideration of a ‚core
factor,‛ was key to Redekop’s claims; it is not a question that a
lay person can answer, even though such persons would likely
be able, without an expert’s help, to find a tape measure and a
friend and measure the square footage of their own living room.
For a jury to arrive at a conclusion regarding a square footage
20150097-CA 12 2016 UT App 121The Clifford P.D. Redekop Family v. Utah County Real Estate
assessment in the realm of commercial real estate would indeed
require the jury to engage in speculation. Therefore, the district
court’s determination that an ‚average bystander‛ could not
provide reliable testimony as to the manner and methodology by
which commercial real estate is measured is not erroneous.
CONCLUSION
¶21 The district court did not exceed its discretion when it
excluded Redekop’s expert as a rule 37 sanction after Redekop
failed to comply with the court’s order. The district court also
correctly concluded that expert testimony was required in this
case. Accordingly, we affirm.
20150097-CA 13 2016 UT App 121