Dahl v. Harrison

• Decision Date: 10 November 2011
• Docket Number: No. 20100553–CA.,20100553–CA.
• Citation: 695 Utah Adv. Rep. 4,265 P.3d 139,2011 UT App 389
• Parties: Kim DAHL, Plaintiff and Appellant, v. Brian C. HARRISON, an individual; and Brian C. Harrison, P.C., a Utah professional corporation, Defendant and Appellee.
• Court: Utah Court of Appeals

2011 UT App 389

265 P.3d 139

695 Utah Adv. Rep. 4

Kim DAHL, Plaintiff and Appellant,

v.Brian C. HARRISON, an individual; and Brian C. Harrison, P.C., a Utah professional corporation, Defendant and Appellee.

No. 20100553–CA.

Court of Appeals of Utah.

Nov. 10, 2011.

Steve S. Christensen and Benjamin Lusty, Salt Lake City, for Appellant.

Ben W. Lieberman, Salt Lake City, for Appellee.

Before Judges ORME, VOROS, and CHRISTIANSEN.

OPINION

ORME, Judge:

¶ 1Kim Dahl(Client) sued Brian C. Harrison and Brian C. Harrison, P.C.(collectively Lawyer), for legal malpractice.Following a bench trial in October 2009, the trial court entered judgment in favor of Lawyer and dismissed the case.Client now appeals several of the trial court's rulings in that suit.We vacate the court's award of attorney fees but affirm as to all other issues.

BACKGROUND

¶ 2 In October 2007, Client filed this legal malpractice suit against Lawyer related to Lawyer's representation of her in a divorce suit.In November 2007, Lawyer filed a motion to disqualify Client's counsel, which was ultimately resolved by stipulation in February 2008.Neither party sought to stay the proceedings pending the outcome of the motion to disqualify.

¶ 3 In November 2007, Client drafted a scheduling order and Lawyer agreed to it.In January 2008, the trial court approved the scheduling order, which established a deadline of April 7, 2008, for the completion of fact discovery and a deadline of May 5, 2008, for Client's expert witness disclosures.Lawyer pursued discovery prior to the April 7 deadline.Client, in contrast, served her first discovery requests on April 7.Lawyer then filed a motion for protective order asking the court to rule that Lawyer was not required to respond to the discovery requests because he could not do so within the discovery period.

¶ 4 On May 15, 2008, Client filed a motion to amend the scheduling order, asking the trial court to extend all discovery deadlines for three months.At an August 2008 hearing, the court extended the deadline for Client's expert disclosures to September 8, 2008.At the same hearing, the court granted Lawyer's motion for protective order and denied Client's motion to extend the deadline for fact discovery.The court found that Client had been dilatory in pursuing discovery and that her request to extend the deadline was not founded in fact or reason.The court also noted that Lawyer had clean hands, had pursued discovery, had a right to rely on the scheduling order, and would be prejudiced by delay.The court's subsequent written ruling states, “To the extent this motion requested modification of the fact discovery deadline, it is denied for failure to show good cause.”

¶ 5 On September 8, 2008, Client submitted her expert disclosures and reports.Two days later, Lawyer notified Client that the expert reports were inadequate and asked for a response by September 12.In response to Lawyer's request to meet and confer, Client contacted Lawyer on September 15, but Lawyer had already mailed to the court his “Motion To Strike Plaintiff's Expert Disclosures and Reports Pursuant to Utah R. Civ. P. 37(f).”¹That motion to strike argued that the expert disclosures were “grossly deficient.”

¶ 6 At a December 2008 hearing, the trial court granted Lawyer's motion to strike Client's expert disclosures and denied Client's oral request to file an amended report from Martin Olsen, one of Client's proposed experts.Client asked at that time whether the court would consider a motion for leave to amend the expert reports and the court“strongly hinted” that it would deny such a motion.

¶ 7 In January 2009, Client filed her “Motion To Allow Testimony of Expert Witnesses at Trial” and, alternatively, requested an extension of time in which to file expert disclosures, on the basis that no prejudice would result to Lawyer because the trial had not yet been scheduled.At a March 2009 hearing, Client acknowledged that the arguments in her pending motion and in her opposition to the previous motion to strike were identical but stated that the requests for relief were not identical.Specifically, Client's written opposition to the motion to strike asked the court for “sufficient time to revise her expert reports,” and she also requested leave to file an amended report from Martin Olsen during the December 2008 hearing.In contrast, the new motion asked the court to allow Client's experts to testify at trial.The trial court rejected this argument, stating that “as a natural result, [striking the experts' reports] disallows [the experts'] testimony.You can't put [the experts] on [to testify] if [the opposing party hasn't] had notice.”Client responded that because the court“did not make that statement at the hearing[, t]he Court has not ruled on that issue,” i.e., the issue of whether Client's experts could testify at trial.

¶ 8The trial court denied both aspects of the motion,² stating that (1) it found no basis on which to grant Client more time to disclose experts, and (2) it found no basis to allow Client to introduce expert testimony at trial because rule 37(g) of the Utah Rules of Civil Procedure“clearly and unequivocally requires proper disclosure as a condition precedent to admission of evidence.”In addition, the court awarded costs and attorney fees to Lawyer, finding that Client's “Motion To Allow Testimony of Expert Witnesses at Trial” was frivolous and that it was “in essence a motion for reconsideration of the Court's prior order striking Plaintiff's expert disclosures.”

¶ 9 In June 2009, the trial court bifurcated the trial into two issues—(1) liability and (2) causation and damages—and scheduled a bench trial for October 2009.After presentation of evidence on the issue of liability, the court found in favor of Lawyer on each of Client's claims.

ISSUES AND STANDARDS OF REVIEW

¶ 10 Client argues that the trial court abused its discretion by (1) granting Lawyer's motion to strike expert witnesses without giving Client leave to amend the expert witness reports, (2) denying Client's motion to allow her experts to testify at trial and her alternative motion to extend the deadline for expert disclosures, and (3) granting Lawyer's motion for a protective order and denying Client's motion to extend factual discovery.

¶ 11We review discovery rulings for an abuse of discretion.SeeWelsh v. Hospital Corp. of Utah,2010 UT App 171, ¶ 9, 235 P.3d 791(“Trial courts have broad discretion in managing the cases assigned to their courts.”)(citation and internal quotation marks omitted).Rule 16 of the Utah Rules of Civil Procedure allows the court to set dates for the completion of fact discovery and expert discovery, seeUtah R. Civ. P. 16(b)(3), and to impose sanctions on parties who violate discovery rules or orders, seeUtah R. Civ. P. 16(d)(“If a party or a party's attorney fails to obey a scheduling or pretrial order, ... the court ... may take any action authorized by Rule 37(b)(2).”).We likewise review the imposition of discovery sanctions for abuse of discretion.SeeWelsh,2010 UT App 171, ¶ 9, 235 P.3d 791(“[W]e will then only disturb [a] discovery sanction if abuse [of discretion][is]clearly shown.”)(emphasis and last alteration in original)(citation and internal quotation marks omitted).

¶ 12 Client also argues that the trial court improperly awarded attorney fees as a sanction against Client for filing her motion to allow expert testimony at trial.We review whether a litigant is entitled to attorney fees pursuant to a particular express provision for correctness.SeeFisher v. Fisher,2009 UT App 305, ¶ 8, 221 P.3d 845(giving no deference to the trial court's determination as to whether attorney fees were allowed under a statute), cert. denied,230 P.3d 127(Utah2010).If a court awards attorney fees pursuant to its equitable powers, we review the award for abuse of discretion.Seeid.

ANALYSIS

I.Motions Related to Expert Witnesses

¶ 13 Client argues that the trial court abused its discretion by granting Lawyer's motion to strike the expert witnesses without leave to amend.Client also argues that the trial court abused its discretion by denying Client's motion to allow her experts to testify at trial and, alternatively, by denying her request for an extension of time to amend her expert disclosures.

¶ 14 Client did not challenge Lawyer's argument, as articulated in his motion to strike, that Client's expert reports were inadequate—and rightfully so.However, in opposing the motion to strike, Client argued that a discovery sanction was inappropriate because Lawyer had not attempted to meet and confer and because there was no showing of willfulness, bad faith, or prejudice because the matter had not been set for trial.In her brief, Client mentions in passing that the trial court“should have at the very least required the moving party to comply with Rule 37(a) and the duty to meet and confer informally before seeking discovery sanctions.”She does not develop that argument on appeal, however, and we will not consider it here.³SeeRussell v. Thomas,2000 UT App 82, ¶ 9 n. 9, 999 P.2d 1244(declining to address an issue where, “except for [a] brief reference, defendants do not develop the argument and cite no authority therefor[ ]”).Instead, Client focuses on her stronger arguments that the remedy of excluding the witnesses was improper and that the trial court abused its discretion by granting the motion to strike without leave to amend.Similarly, she argues that the court erred by not allowing Client's subsequent motion to extend the time to allow Client to amend her expert disclosures, which was raised as an alternative to her motion to allow her experts to testify at trial.

¶ 15 In support of her arguments that the trial court should have allowed her more time for expert disclosures or to amend her expert reports, Client states that she met the deadline for expert disclosures set by ...