R.O.A. General v. Dai

1. The Honorable Pamela T. Greenwood and Russell W. Bench,
Senior Judges, sat by special assignment as authorized by law. See
generally Utah Code Jud. Admin. R. 11-201(6).
2014 UT App 124
_________________________________________________________
THE UTAH COURT OF APPEALS
R.O.A. GENERAL, INC.,
Plaintiff,
v.
CHUNG JI DAI AND CHUNG CHU DAI,
Defendants, Third-party Plaintiffs, and Appellants,
v.
STEWART TITLE GUARANTY COMPANY,
Third-party Defendant and Appellee.
Opinion
No. 20120896-CA
Filed May 30, 2014
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 000908045
Scott L. Wiggins, Attorney for Appellants
Jeffrey J. Steele and Justin R. Baer, Attorneys
for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in
which JUDGE JOHN A. PEARCE and SENIOR JUDGE PAMELA T.
GREENWOOD concurred.1
BENCH, Senior Judge:
¶1 Chung Ji Dai and Chung Chu Dai appeal the trial court’s
striking of their untimely expert witness report and its dismissal of
their case for failure to prosecute. We affirm.

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20120896-CA 2 2014 UT App 124
BACKGROUND
¶2 In November 1999, the Dais purchased commercial property
in Salt Lake City, Utah (the Property). The Dais obtained a title
insurance policy from Stewart Title Guaranty Company (Stewart
Title). At the time of the purchase, there was an outdoor
advertising sign on the Property belonging to R.O.A. General, Inc.
(ROA), which had been there since the mid-1970s and was erected
pursuant to an earlier lease (the Sign Lease). The Dais filed a claim
with Stewart Title “asserting that the [Sign Lease] was a defect or
lien insured by [the] policy of title insurance underwritten by
Stewart Title.” Stewart Title denied the claim because it asserted
that the Sign Lease was executed by an individual who had no
interest in the Property and was therefore invalid.
¶3 In October 2000, ROA filed a complaint against Chung Ji Dai
seeking to establish the validity of the Sign Lease. ROA moved for
summary judgment, and the trial court granted the motion in
August 2002 on the ground that the Sign Lease, though not
properly executed, was ratified by the Dais’ predecessor-in-interest
and was therefore valid.
¶4 In light of the trial court’s ruling that the Sign Lease was
valid, the Dais filed a third-party complaint against Stewart Title in
April 2005. After unsuccessfully moving for dismissal, Stewart Title
answered the complaint on September 29, 2005. Thereafter, the
Dais took no action in pursuit of their claim for over five years. In
January 2011, Stewart Title filed a motion to dismiss for failure to
prosecute. The Dais opposed the motion, and the trial court denied
it but “strongly admonished [the Dais] to move this case [forward]
diligently as failure to timely prosecute this matter in the future
would likely result in dismissal with prejudice.” The parties agreed
to a scheduling order setting the discovery deadline as November
30, 2011, and later agreed to amend the scheduling order to set the
deadline for fact discovery as February 29, 2012, and for expert
disclosures as March 16, 2012.

R.O.A. General v. Dai
2. The Dais implicitly assert that the trial court’s summary
judgment ruling should be reversed if we reverse the trial court’s
ruling on the motion to strike, but the Dais have not otherwise
challenged the trial court’s summary judgment ruling on appeal.
20120896-CA 3 2014 UT App 124
¶5 In the meantime, the Dais filed for bankruptcy. On
November 23, 2011, two days after the amended scheduling order
was filed with the court, the bankruptcy trustee filed a motion to
be substituted for the Dais as the third-party plaintiff in this case,
which the trial court granted. On February 9, 2012, the bankruptcy
trustee held an auction to sell the cause of action against Stewart
Title. Stewart Title attended the auction and bid $30,000 for the
cause of action, but it was ultimately sold to the Dais and their
sister for $30,500. The sale was approved by the bankruptcy court
on February 24, 2012.
¶6 After purchasing the cause of action, the Dais took no
immediate steps to pursue it. They did not seek an extension of the
March 16, 2012 expert disclosure deadline and did not provide
expert disclosures by that date. On March 21, 2012, Stewart Title
filed a notice to appear or appoint counsel, to which the Dais
responded on April 6, 2012, with a pro se motion for an extension
of time to retain counsel. The trial court granted the Dais’ motion
and gave them “until close of business April 20, 2012 to appoint
new counsel” but warned, “The scheduling order in this case has
not been modified as a result of the granting of this motion, nor
will it be modified.” When no counsel had appeared on the Dais’
behalf by May 1, 2012, Stewart Title filed a motion to dismiss for
failure to prosecute and a motion for summary judgment on
grounds of inability to prove damages.
¶7 Counsel appeared on behalf of the Dais on May 7, 2012, and
provided an expert report on May 16, 2012. Stewart Title moved to
strike the expert report as untimely. Following a hearing, the trial
court granted Stewart Title’s motion to strike, motion to dismiss for
failure to prosecute, and motion for summary judgment for
inability to prove damages. The Dais now appeal.2

R.O.A. General v. Dai
3. Effective November 1, 2011, rule 37 of the Utah Rules of Civil
Procedure was amended primarily to incorporate aspects of rule 26
into rule 37. Utah R. Civ. P. 37 advisory committee notes (2013).
These amendments resulted in the renumbering of several
subsections so that former subsections (b)(2) and (f) have now
become subsections (e)(2) and (h), respectively. These subsections
(continued...)
20120896-CA 4 2014 UT App 124
ISSUES AND STANDARDS OF REVIEW
¶8 The Dais first assert that the trial court abused its discretion
by striking their expert report. “Trial courts have broad discretion
in managing the cases before them and we will not interfere with
their decisions absent an abuse of discretion.” A.K. & R. Whipple
Plumbing & Heating v. Aspen Constr., 1999 UT App 87, ¶ 11, 977 P.2d
518.
¶9 The Dais also argue that the trial court exceeded its
discretion by dismissing their case for failure to prosecute. Like the
trial court’s decision to strike the expert report, its decision to
dismiss for failure to prosecute is afforded broad discretion and
will not be disturbed “absent an abuse of discretion and a
likelihood that injustice occurred.” Cheek v. Clay Bulloch Constr.,
Inc., 2011 UT App 418, ¶ 6, 269 P.3d 964 (citation and internal
quotation marks omitted).
ANALYSIS
¶10 The Dais assert that “[b]efore a trial court can impose
discovery sanctions under rule 37, the court must find on the part
of the noncomplying party willfulness, bad faith, . . . fault, or
persistent dilatory tactics frustrating the judicial process.” Morton
v. Continental Baking Co., 938 P.2d 271, 274 (Utah 1997) (citations
and internal quotation marks omitted). However, their “argument
confuses the requirements for an affirmative sanction by the district
court under rule [37(e)(2)] with the exclusion of untimely disclosed
experts by operation of law, as mandated by rule [37(h)].” See3

R.O.A. General v. Dai
3. (...continued)
are nearly identical to their counterparts in the previous version of
the rule, and any variations from the previous version do not affect
our analysis. Compare id. R. 37(e)(2), (h), with id. R. 37(b)(2), (f)
(2011).
4. Like rule 37, rule 26 of the Utah Rules of Civil Procedure was
amended and reorganized effective November 1, 2011, but the
amendments do not affect our analysis in this case.
20120896-CA 5 2014 UT App 124
Townhomes at Pointe Meadows Owners Ass’n v. Pointe Meadows
Townhomes, LLC, 2014 UT App 52, ¶ 14; see also Moa v. Edwards,
2011 UT App 140, ¶ 4 n.2, 256 P.3d 242 (explaining that the
willfulness requirement has historically been applied where the
trial court dismissed claims or entered default judgment against a
party as a sanction for a party’s disregard of a court order
compelling discovery, and suggesting that the exclusion of witness
testimony based on untimeliness does not necessarily require a
finding of willfulness). Rule 37(h) provides,
If a party fails to disclose a witness, document or
other material . . . as required by Rule 26(d), that
party shall not be permitted to use the witness,
document or other material at any hearing unless the
failure to disclose is harmless or the party shows
good cause for the failure to disclose.
Utah R. Civ. P. 37(h) (emphasis added).
¶11 We have held that “the sanction of exclusion is automatic
and mandatory unless the sanctioned party can show that the
violation of rule 26[ governing disclosure of witnesses] was either4
justified or harmless.” Dahl v. Harrison, 2011 UT App 389, ¶ 22, 265
P.3d 139; see also Posner v. Equity Title Ins. Agency, Inc., 2009 UT App
347, ¶ 8, 222 P.3d 775 (“Utah law mandates that a trial court
exclude an expert witness report disclosed after expiration of the
established deadline unless the trial court otherwise chooses to

R.O.A. General v. Dai
5. We acknowledge that our discussions in Dahl v. Harrison, 2011
UT App 389, 265 P.3d 139, and Welsh v. Hospital Corp. of Utah, 2010
UT App 171, 235 P.3d 791, may imply that the willfulness
requirement applicable to rule 37(e) sanctions also applies where
a trial court strikes an untimely expert report. See Dahl, 2011 UT
App 389, ¶¶ 15–16, 19; Welsh, 2010 UT App 171, ¶¶ 11–12. To the
extent those cases can be read in that fashion, we now take the
opportunity to disavow that implication.
20120896-CA 6 2014 UT App 124
exercise its equitable discretion.”). Accordingly, a finding of5
willfulness is not necessary in order for the trial court to exclude
untimely disclosed witnesses. See Pointe Meadows, 2014 UT App 52,
¶ 14; see also Moa, 2011 UT App 140, ¶ 4 & n.2. Thus, where it is
undisputed that an expert witness report has been untimely filed,
“the proper inquiry is whether the district court abused its
discretion in determining that the [party’s] failure to disclose was
not harmless and that good cause did not excuse its failure.” Pointe
Meadows, 2014 UT App 52, ¶ 14; see also Welsh v. Hospital Corp. of
Utah, 2010 UT App 171, ¶ 10, 235 P.3d 791 (explaining that it may
be an abuse of discretion for the trial court to exclude an expert
report if, under the circumstances, “‘justice and fairness . . . require
that [the] court allow a party to designate witnesses . . . after the
court-imposed deadline for doing so has expired’” (quoting Boice
ex rel. Boice v. Marble, 1999 UT 71, ¶ 10, 982 P.2d 565)).
¶12 In Welsh v. Hospital Corp. of Utah, 2010 UT App 171, 235 P.3d
791, we held that the late filing of expert reports would not
prejudice the defendant, and after taking into account a number of
factors, we also held that the trial court had abused its discretion by
excluding the Welshes’ expert witnesses. Id. ¶ 19. In particular, this
court found it relevant that the Welshes had moved to extend the
deadline for expert disclosures before the deadline had passed; that
the defendant had contributed to previous delays by requesting at
least one amendment to the scheduling order and stipulating to all
other amended scheduling orders; that the extension did not
further delay the trial; that the Welshes had been erroneously
informed by the court clerk that the court had granted their motion

R.O.A. General v. Dai
6. Another aspect of Welsh that is not present in this case is the fact
that, relying on the court clerk’s representation that their motion
for an extension had been granted, the Welshes incurred time and
expense to obtain an expert report. Here, the Dais had no
reasonable expectation that their untimely expert report would be
permitted; they never moved the court to extend the deadline, and
when the trial court granted their motion for an extension of time
to obtain counsel, it explicitly informed them, “The scheduling
order in this case has not been modified as a result of the granting
of this motion, nor will it be modified.”
20120896-CA 7 2014 UT App 124
for an enlargement of time and that they had incurred
“considerable time and expense completing their expert reports”
under the assumption that their motion to extend had been
granted; that the Welshes’ expert disclosures and report were
submitted before the trial court denied the motion to extend; and
that the defendant had made no claim that it would suffer
prejudice if the motion were granted, whereas the effect on the
Welshes’ case if it were denied was “potentially devastating.” Id.
¶¶ 8, 13–18; see also Dahl, 2011 UT App 389, ¶ 19 (observing that
Welsh presented “an unusual fact situation”).
¶13 None of the circumstances we found compelling in Welsh are
present in this case. Unlike the Welshes, the Dais never moved the
trial court to extend the deadline for expert disclosures. Not only
did they not attempt to extend discovery, but after purchasing the
cause of action from the bankruptcy trustee, they took no action to
pursue their claim until after receiving Stewart Title’s notice to
appear or appoint counsel. Even then, the Dais displayed no sense
of urgency; after the Dais obtained an extended deadline from the
court to appoint counsel, no counsel appeared on their behalf until
more than two weeks after the new deadline. In light of the trial
court’s warning to the Dais the previous year that their “failure to
timely prosecute this matter in the future would likely result in
dismissal with prejudice,” the Dais’ continued delays are simply
unjustified.6

R.O.A. General v. Dai
20120896-CA 8 2014 UT App 124
¶14 Furthermore, unlike the defendant in Welsh who “never
claimed that granting the Welshes’ motion [to extend] would result
in prejudice” and who, “[n]otwithstanding the Welshes’ delay in
designating experts, . . . had time to depose those experts, designate
rebuttal experts, and otherwise prepare for trial,” see Welsh, 2010
UT App 171, ¶ 16, Stewart Title has alleged both prejudice and
delay if the Dais’ expert is permitted. See generally DeBry v. Cascade
Enters., 879 P.2d 1353, 1361 (Utah 1994) (“A requirement that
parties designate their expert witnesses by a certain date before
trial allows the parties to prepare for trial by deposing witnesses,
planning for effective cross-examination, and obtaining rebuttal
testimony.”). Stewart Title asserts that the Dais’ expert report relied
on sources Stewart Title has been unable to locate and raised
factual issues that had either not previously been asserted by the
Dais or varied from the Dais’ previous assertions. Stewart Title
asserts that the trial would have had to have been delayed further
in order to give it sufficient time to respond to the expert report.
¶15 The Dais do not dispute Stewart Title’s characterization of
the time and effort it would have had to expend in order to
respond to their expert’s report. They maintain, however, that
“Stewart Title had time to depose the expert and obtain a rebuttal
report because the case was not ready for trial and a trial date had
not been set,” and that the Dais would suffer greater prejudice than
Stewart Title if the expert were excluded. We are not persuaded
that these factors required the trial court to allow the Dais’
untimely expert report. See Dahl, 2011 UT App 389, ¶¶ 15, 19
(upholding the trial court’s striking of the plaintiff’s expert report,
despite her arguments that a trial date had not yet been set and that
exclusion of the expert and his report was fatal to her case).
Although a trial date had not been set, the parties’ scheduling order
anticipated a June 2012 trial date, which would not have given
Stewart Title sufficient time to respond to the expert report. Thus,
while an actual continuance of the trial would not have been
necessary, the trial could not have been scheduled as soon as it
would have been if the Dais had complied with the March 16, 2012
deadline. See Townhomes at Pointe Meadows Owners Ass’n v. Pointe
Meadows Townhomes, LLC, 2014 UT App 52, ¶ 17 (holding that

R.O.A. General v. Dai
20120896-CA 9 2014 UT App 124
where the plaintiff’s untimely disclosures meant that “a substantial
amount of discovery would need to be revisited or performed . . .
well after the deadline for completing these steps had passed,” the
plaintiff’s “failure to timely disclose its expert was not harmless”).
As Stewart Title observes, the Dais’ assertion that they should have
been permitted to disregard the deadline simply because trial had
not yet been scheduled “undermine[s] the significance of
scheduling orders and the authority of the trial court to establish
deadlines.” Likewise, the fact that the Dais cannot establish their
claim without their expert, while certainly harmful to the Dais,
does not require that the trial court excuse them from complying
with discovery deadlines, particularly where a delay would be
harmful to Stewart Title. Cf. Welsh, 2010 UT App 171, ¶ 17
(considering the likelihood of prejudice to the plaintiffs relevant
where there was no prejudice to the defendant).
¶16 The one unique facet of this case is the bankruptcy trustee’s
brief substitution as the third-party plaintiff. However, we agree
with Stewart Title that this circumstance does not justify the Dais’
dilatory behavior. The case was not stayed when the bankruptcy
trustee was substituted, and the trustee participated in discovery
during the time he was a party. The Dais purchased the cause of
action at auction several weeks before the deadline for expert
disclosures expired, yet they made no attempt either to provide
expert reports by the deadline or to seek an extension of the
deadline. Even if the Dais were confused about their role in the case
when the bankruptcy trustee was substituted, as they assert, any
doubt regarding their authority and responsibility to pursue their
claim should have been resolved after they bought back the cause
of action at auction in February. Thus, their failure to take any steps
in pursuit of the claim between the time the cause of action was
returned to them and the expert disclosure deadline is simply
unjustified. For these reasons, the trial court did not abuse its
discretion by declining to relieve the Dais of the automatic
exclusion of their expert pursuant to rule 37(h).
¶17 The Dais also challenge the trial court’s grant of Stewart
Title’s motion to dismiss for failure to prosecute. However, this

R.O.A. General v. Dai
20120896-CA 10 2014 UT App 124
challenge is moot because even if we were to reverse the trial
court’s grant of the motion to dismiss, the trial court’s grant of
summary judgment against the Dais would still preclude them
from further litigating their claim. See generally Ellis v. Swenson,
2000 UT 101, ¶ 25, 16 P.3d 1233 (“A case is deemed moot when the
requested judicial relief cannot affect the rights of the litigants.”
(citation and internal quotation marks omitted)). At the hearing on
Stewart Title’s motion to strike, motion to dismiss, and motion for
summary judgment, the Dais stipulated that they could not prove
damages without the expert report. Accordingly, upon
determining that the motion to strike was warranted, the trial court
also granted the motion for summary judgment on the basis that
the Dais could not establish damages. The Dais have not challenged
the summary judgment beyond the implicit assertion that a
reversal of the motion to strike ruling would necessarily require
reversal of the summary judgment ruling as well. Because we have
determined that the trial court did not exceed its discretion in
striking the Dais’ expert report, we have no basis for reversing the
trial court’s summary judgment ruling. And because the trial court
has granted summary judgment in favor of Stewart Title, a reversal
of the trial court’s dismissal for failure to prosecute would not
permit the Dais to pursue their claim. Accordingly, the Dais’ appeal
of the dismissal is moot.
CONCLUSION
¶18 Because the Dais failed to timely provide their expert report,
it was properly excluded pursuant to rule 37(h) of the Utah Rules
of Civil Procedure, and the trial court appropriately declined to
exercise its discretion to permit the report because the Dais’ failure
was neither justified nor harmless. Furthermore, because the trial
court granted Stewart Title’s motion for summary judgment based
on the Dais’ inability to establish damages without the expert
report, the Dais’ challenge to the trial court’s dismissal of their
claim for failure to prosecute is moot. Accordingly, we affirm.