Prisbrey v. Prisbrey

2026 UT App 39

THE UTAH COURT OF APPEALS

LEONA MARIA PRISBREY,
Appellee,
v.
KENT TERRY PRISBREY,
Appellant.

Opinion
No. 20250070‐CA
Filed March 19, 2026

Fifth District Court, St. George Department
The Honorable Keith C. Barnes
No. 234500039

Terry L. Hutchinson and Daniel J. Tobler,
Attorneys for Appellant
David W. Read, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 This appeal arises out of a divorce trial between Leona
Maria Prisbrey and Kent Terry Prisbrey. Leona never filed initial
disclosures, even when reminded by Kent and the district court.1
Three weeks before trial, Leona finally submitted disclosures, but
by this time, the original discovery period and an extension
period of discovery had both expired, leaving no opportunity for
any discovery. Kent objected to the disclosures and moved the
court to exclude all of Leona’s evidence. The district court
deferred the decision to the morning of trial, where the court

1. Because the parties share a common surname, we refer to them
by their given names, with no disrespect intended by the apparent
informality.
Prisbrey v. Prisbrey

overruled the objection, allowed the evidence, and then relied on
the late‐disclosed evidence to rule against Kent. Kent now
appeals, claiming that the district court exceeded its discretion in
overruling the objection and allowing the evidence to be used at
trial. We agree with Kent’s argument, vacate the judgment of the
district court, and remand the case for a new trial to be conducted
with the evidence excluded.

BACKGROUND

¶2 Leona and Kent married in Australia in 2014, and they
subsequently moved to Leeds, Utah, to live in a house owned by
Kent (the Leeds Property). The two separated in 2022 and
separately petitioned for divorce in January 2023. The cases were
later consolidated.

¶3 Kent filed his answer to Leona’s petition on February 8,
2023, and he submitted his initial disclosures in December 2023.
Leona failed to file any initial disclosures. She did, however, move
to reopen discovery on October 18, 2023—a request that the
district court granted, allowing discovery to be conducted until
February 28, 2024.

¶4 At a conference on April 26, 2024, Kent, who was acting pro
se at the time, notified the court that he had asked Leona to
provide initial disclosures and financial statements but had
received none. He said he had been assured by Leona’s counsel
that those items would be produced in discovery “soon,” but he
still had not received anything as of the date of the conference.
Leona’s counsel acknowledged that “discovery [was] over” and
the “case [was] ripe to move forward for trial.” The court asked
Leona’s counsel if initial disclosures and discovery had been
provided, and counsel stated that he was “not prepared to speak
to that” at the time. The court responded, “Isn’t that kind of a
pretty basic question . . . ? Have you provided . . . the initial
discovery . . . or not? It’s either yes or no. I think you would know

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that.” Counsel agreed it was a simple question and said that he
would “comply with” the disclosure requirements set by rule 26
of the Utah Rules of Civil Procedure.2 The court then set the matter
for a pretrial conference on May 7.

¶5 At that pretrial conference, Leona’s counsel stated that he
would like to set a date for trial. Kent, now represented by
counsel, informed the court that he still had not received initial
disclosures or a response to his discovery requests. Kent’s counsel
expressed concern about setting the matter for trial in the absence
of disclosures and responses to repeated discovery requests. He
further asked that “anything [Kent has] requested [but not
received] be excluded.” Kent’s counsel assured the court that he
could not find “any certificates of service” indicating that
disclosure had been made. More specifically, he stated, “My client
says he has not received anything, and so my request was going
to be that we might need some more time before setting it for trial
to clean this up, get that information, and then proceed.” The
court continued the matter until May 28.

¶6 At the pretrial conference on May 28, Leona’s counsel
conceded that initial disclosures had still not yet been provided to
Kent, but he represented that “a financial declaration” would be
forthcoming. He did say that there was “one home at issue” and
“any documents” related to it were “in the possession” of Kent.
But Kent’s counsel told the court that it was “not just the financial
declaration” that was missing but “the full initial disclosure” was
also lacking. The court set the trial date for September 23 and
indicated that the disclosure issue would be addressed at that
time.

2. Of course, by that time compliance with rule 26 was impossible
as the time period for disclosure had passed and discovery had
closed. See Utah R. Civ. P. 26(a), (c) (setting out timing for initial
disclosures and discovery).

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¶7 Less than three weeks prior to trial, on September 3, Leona
finally provided initial disclosures to Kent. On September 9, Kent
asked that the belatedly disclosed evidence be excluded from trial
as untimely under rule 26(d)(4) of the Utah Rules of Civil
Procedure. He argued that Leona disclosed six witnesses and
sixty‐five exhibits, noting that her disclosure “was the first time,
ever, that [she] provided these exhibits or anything related to
these exhibits, or named any of these witnesses.”

¶8 Leona responded to the objection, arguing that the “vast
majority” of the exhibits she disclosed should have been disclosed
by Kent; that Kent was familiar with or had in his control the
documents, financial records, and materials she disclosed; and
that Kent had not fully complied with his discovery obligations.
She further asserted that she had “good cause” for the late
disclosure because the exhibits were “integral to resolving issues
that [Kent] failed to adequately address in his disclosures.” And
she claimed that the late disclosure was “harmless” because Kent
was aware of or had in his possession “many” of the “financial
records, communication logs, and property documents” she had
disclosed.

¶9 The district court addressed Kent’s objection and motion to
exclude on the first day of the trial. Leona’s counsel explained that
Leona had “received so little” in the way of disclosure from Kent
that if her late‐disclosed documents were not “allowed as pretrial
disclosures,” then the case could not move forward because there
was “so little disclosed.” Kent’s counsel responded,

[O]ne of the bigger issues is going to be [the Leeds
Property] and how much money was put into the
home by both parties during their marriage. That’s
. . . the biggest issue that we have to address, and we
didn’t receive any information regarding that up
until a couple of weeks ago.

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So whatever [Leona] is claiming that she has
put into the property, we have . . . no idea if that’s
accurate. She’s provided a very simple sheet stating
what she’s put into it. This is information that
should have been disclosed much earlier in this
proceeding. [Kent] was quite diligent in requesting
it, filed the discovery request, served that on
[Leona]. We brought it up more than once, and now
here we are.

We have that information now, very vague,
but again, like I say, the issue is, [Kent] hasn’t had a
chance to explore that further, or even try to find out
whether it’s true or not. That’s the bigger issue.

¶10 Leona’s counsel replied, “If the [Leeds Property] is the core
of the issue, we received nothing from [Kent]. We are providing
information that he should have provided but failed to do.” To
this, Kent’s counsel retorted,

[Kent’s] position is, it’s his home, it’s been his home,
there was nothing for him to disclose. That it’s true,
both parties contributed some while they lived
there, but there would be really not much more than
what two people would contribute while they lived
in a home. So it’s not an issue where somebody
provided so much money or a substantial amount to
where she should have an equitable interest in the
property. So from [Kent’s] perspective, there was
nothing to disclose further than just that it has been
his premarital property.

Leona’s counsel reiterated that since the “core issue” was the
Leeds Property, she should be allowed to proceed with all the
documents in her late disclosure.

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¶11 The court overruled Kent’s objection to the late disclosure
and denied his motion to exclude the evidence. The court
observed that it didn’t see “any kind of surprise” to Kent given
his position that the Leeds Property belonged to him.
Accordingly, the court said, “[F]or now, I’m going to allow
counsel from each side to present what evidence they feel to be
relevant to the finder of fact, myself.”

¶12 In its findings of fact and conclusions of law, the district
court determined that the Leeds Property was marital property
because Leona had “contributed more than $187,000 of her money
to [its] renovation, construction, and maintenance.” It made this
determination “based on extensive and detailed bank records,”
apparently those contained in the disclosures she provided to
Kent for the first and only time three weeks before trial.

ISSUE AND STANDARDS OF REVIEW

¶13 Kent appeals, arguing that the district court erred in
allowing Leona to introduce evidence that was not timely
disclosed as required by rule 26 of the Utah Rules of Civil
Procedure. “We review a district court’s interpretation of our
rules of civil procedure, precedent, and common law for
correctness. But in reviewing a district court’s determination with
respect to harmlessness and good cause, our review is necessarily
deferential. This is because a court’s decision in discovery matters
is a discretionary call, and we will affirm such decisions when the
court’s discretion was not abused, even if we or another court
might have made a different decision in the first instance.” Hansen
v. Kurry Jensen Props. LLC, 2021 UT App 54, ¶ 19, 493 P.3d 1131
(cleaned up); see also Lunt v. Lunt, 2024 UT App 148, ¶ 27, 559 P.3d
73 (“A court abuses its discretion only if no reasonable person

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would take the view adopted by the trial court.” (cleaned up)),
cert. denied, 564 P.3d 958 (Utah 2025).3

ANALYSIS

¶14 As relevant here, rule 26 of the Utah Rules of Civil
Procedure requires a party, “without waiting for a discovery
request,” to serve on the other party “the name and, if known, the
address and telephone number of . . . each individual likely to
have discoverable information supporting its claims or defenses,
unless solely for impeachment, . . . and . . . each fact witness the
party may call in its case‐in‐chief and, except for an adverse party,
a summary of the expected testimony.” Utah R. Civ. P.
26(a)(1)(A)(i)–(ii). The rule also requires the initial disclosures to
include “a copy of all documents, data compilations,
electronically stored information, and tangible things in the
possession or control of the party that the party may offer in its
case‐in‐chief.” Id. R. 26(a)(1)(B). This disclosure must be made by
a plaintiff “within 14 days after the [defendant’s] filing of the first
answer to that plaintiff’s complaint.” Id. R. 26(a)(2)(A).

¶15 The sanction for failing to timely provide initial disclosures
is severe. The associated evidence is barred from admission at trial
unless the district court finds the failure to be harmless or justified
by good cause. See id. R. 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.”). See generally Keystone Ins.
Agency v. Inside Ins., 2019 UT 20, ¶ 18 n.7, 445 P.3d 434 (“Under a
plain language reading of rule 26(d)(4), the burden to

3. Kent identifies two other issues on appeal, but they both
implicate the single issue articulated above.

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demonstrate harmlessness or good cause is clearly on the party
seeking relief from disclosure requirements . . . .”).

¶16 Establishing that the defective disclosures were “harmless”
requires more from a party than simply showing “any logical
basis, no matter how attenuated, to conclude that the opposing
party should have been able to cobble together a prescient picture
of the potential evidence or witnesses.” Hansen v. Kurry Jensen
Props. LLC, 2021 UT App 54, ¶ 44, 493 P.3d 1131 (Mortensen, J.,
concurring, joined by Pohlman, J.). In other words, a defective
disclosure cannot be considered harmless just because the other
party ought to have known that the undisclosed evidence would
be used. And showing “good cause,” under the plain language of
rule 26, requires the party to show why the failure to adequately
disclose was justified. Utah R. Civ. P. 26(d)(4). Thus, “good cause”
has to mean something more than that the party needs the
deficiently disclosed information to make its case. Showing good
cause requires, at the very least, a party to demonstrate
justification for not disclosing information that it should have
been able to disclose. Cf. Keystone, 2019 UT 20, ¶ 17 (“Regardless
of what Keystone knew or did not know about its damages, it was
still incumbent on Keystone to disclose what it had and, more
crucially, its method and computation for damages.”).

¶17 Here, there is no question that Leona was not timely in her
initial disclosures. The initial disclosures were due in February
2023. And Kent reminded Leona on multiple occasions that they
had not been made, even long after the deadline had passed. The
district court—at Leona’s request—reopened discovery and set a
deadline of February 28, 2024, for the parties to make disclosures.
But even then, Leona did not make her disclosures. Indeed, she
did not submit her initial disclosures until September 3, 2024—
just twenty days before the trial and over six months after the
disclosures were due pursuant to the extended deadline set by the
court.

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¶18 Leona did not demonstrate harmlessness or good cause to
excuse her late disclosures. Nor did the court rule that the late
disclosures were harmless or that her failure was justified by good
cause.4

¶19 Leona has not attempted to argue on appeal that there was
good cause for her late disclosures. She did assert below that she
had shown good cause because the late‐disclosed material was
“integral to resolving issues that [Kent] failed to adequately
address in his disclosures.” But just because a party needs late‐
disclosed material to resolve a case, it does not follow that the
party can demonstrate good cause on that basis alone. If this were
the standard for showing good cause, rule 26’s timing
requirements would be meaningless because a party could simply
assert any evidence should be admitted on the basis of need.
Instead of good cause being based on the late‐disclosing party’s
need for the material, good cause must be related to the reason
that the late disclosure happened. As rule 26 explicitly states, a
party is not allowed to use late‐disclosed materials unless “the
party shows good cause for the failure,” not by showing a reason
the material is needed. See Utah R. Civ. P. 26(d)(4) (emphasis
added). In other words, good cause for the failure to disclose has
nothing to do with having a good reason to need the material in
question.

¶20 Leona implies that her lack of compliance with disclosure
requirements was due to Kent’s own lack of disclosure. But Kent
had made his disclosures, and Leona has not pointed to anything
in the record to show that they fell short. And he claimed he had
nothing he needed to disclose relative to the Leeds Property—

4. While the district court stated that it did not see “any kind of
surprise” to Kent in the late disclosures, it did not specifically
address whether the late disclosures were harmless. And the
district court made no finding that even remotely touched on
good cause.

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meaning that he was ready to proceed based on what he had
disclosed. Moreover, rule 26 clearly prohibits one party pointing
to another party’s alleged failure to comply with disclosure
requirements to justify its own failure. See Utah R. Civ. P. 26(d)(3)
(“A party is not excused from making disclosures or responses
because the party has not completed investigating the case, the
party challenges the sufficiency of another party’s disclosures or
responses, or another party has not made disclosures or
responses.”). Accordingly, the rationale of Leona’s argument
(namely, blaming Kent) is expressly foreclosed by the plain
language of the rule.

¶21 Leona does argue that the late disclosures were harmless
to Kent because the material in question did not affect the
outcome of the trial, asserting that the “bank records were merely
cumulative of other evidence confirming that both parties
contributed labor and funds to the [Leeds Property’s]
improvement.” This argument falls flat for at least two reasons.
First, Leona’s appellate brief wholly fails to identify what this
other evidence was. Second, and more importantly, the district
court’s findings of fact belie this conclusion. The court specifically
found, “based on extensive and detailed bank records, that
[Leona] contributed more than $187,000 of her money to the
renovation, construction, and maintenance” of the Leeds
Property. This leads to but one conclusion in a prejudice analysis:
Leona was successful in her claim that the Leeds Property was
marital property largely because of the court’s reliance on the late‐
disclosed bank records. We simply do not see how Kent was not
harmed by Leona’s noncompliance with rule 26 given this
unequivocal statement of fact from the court.

¶22 Leona also suggests that Kent’s lack of surprise regarding
the substance of the undisclosed material shows that no prejudice
flowed from the late disclosures. We are not persuaded. This
rationale would lead to the conclusion that it is always harmless
to forgo initial disclosures if the opposing party would not be

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surprised by the material disclosed. This thinking misses the
mark. First, noncompliance with disclosure requirements until
three weeks before trial obviously means that the other party—
whether surprised or not—cannot conduct any discovery in
response. See Hansen, 2021 UT App 54, ¶ 46 (Mortensen, J.,
concurring, joined by Pohlman, J.) (“By [the plaintiff] not
providing initial disclosures until after discovery had closed, the
defendants had lost their opportunity to conduct meaningful fact
discovery.” (cleaned up)). Moreover, it’s not an opposing party’s
lack of surprise that makes late‐disclosed material harmless.
Rather, it’s the material being used to build a late‐disclosing
party’s case that makes it harmful. “A party may well know the
content” of the late‐disclosed material so as not to be surprised by
it, but the fact that the material will be used “by the other side in
the other side’s case‐in‐chief undoubtedly” will come as a surprise
because its content “will dictate how” a party prepares to defend
at trial. See Johansen v. Johansen, 2021 UT App 130, ¶ 19, 504 P.3d
152. As we have repeatedly explained,

The requirement to provide a summary of expected
testimony is not merely a matter of form. Disclosure
of specific facts . . . 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.

RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 25, 392 P.3d 956. By
blowing off disclosure requirements until it was too late in the
game to be of any benefit to Kent, Leona harmed Kent by denying
him the opportunity to conduct discovery in an informed manner.

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¶23 Leona further argues that “[e]ven if disclosure was
technically late,” the district court properly admitted the financial
records identified in her late disclosures as “impeachment
evidence.”5 She bases this assertion on Kent’s alleged testimony
that she “contributed ‘zero’ dollars toward improvements on the
Leeds Property.” Leona argues that her “bank statements
[identified in her late disclosures] did not introduce a new theory
or previously undisclosed claim,” but they “simply demonstrated
that [she] made purchases—such as ‘wood for pond’ and ‘cement
for walkway’—contradicting [Kent’s] categorical claim that she
made no contributions.” She asserts that the “trial court
specifically found that these statements were used to test [Kent’s]
credibility, not to expand [her] affirmative case.” Leona would
have a good point if the claims supporting her impeachment
argument were true. Unfortunately for her, she has not pointed
out where in the record Kent allegedly stated that she contributed
nothing toward the improvement of the Leeds Property or where
the district court found that such an assertion by Kent supported
the admission of impeachment evidence. Appellate advocacy
requires “attentiveness to presenting a clear picture of facts and
argument to [the reviewing] court, which, of course, does not
have the benefit of having previously reviewed the evidence. In
particular, appellate advocates must never assume that it is [the]
court’s burden to comb the record for evidence supporting poorly
framed arguments. We have stated this principle on multiple
occasions.” Tanner v. Carter, 2001 UT 18, ¶ 19, 20 P.3d 332. Though
it is not our responsibility to comb the record, we nevertheless
diligently verify the accuracy of assertions made in briefing,

5. By no standard can it be said that initial disclosures being made
eighteen months late and less than three weeks before trial is a
mere “technicality.” Rather, such tardiness represents a
fundamental disregard for the applicable rules and for
conducting a trial fairly.

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especially when they are front and center in the controversy.6 We
can find no place in the record where the court admitted the

6. It should come as no surprise that in rendering a decision,
appellate judges, assisted by their law clerks, carefully read the
briefs to verify the accuracy of the propositions asserted, the
sources cited, and the representation of the record. Leona’s brief
on appeal has fallen far short of our reasonable expectations. We
note the following shortcomings as especially troubling:
(1) Leona’s counsel has not provided a single citation to the
record in Leona’s brief on appeal. And counsel makes some
assertions about what happened at trial that, if true, would
have had a substantive impact on our analysis and the
outcome. Without record citations, we don’t even have the
benefit of knowing which page in the record is being
referred to. Still, we have taken the extra step of doing
word searches to locate these phantom citations, but to no
avail. As a result, the location of key information that
Leona’s counsel represents as being in the record remains
a mystery to us.
(2) In the recitation of the standards of review, Leona’s counsel
cites five Utah cases a total of six times to support his
propositions. Of these six citations, four are incorrect for
various reasons (e.g., the cited material has nothing to do
with the proposition for which the case is cited, the case
name is incorrect, or the cited paragraph does not exist).
(3) In the argument section, which is just over four pages long,
Leona’s counsel cites four Utah cases a total of seven times.
Only one citation is correct. The others are deficient in
various ways (e.g., wrong case name, unrelated in any way
to the asserted proposition, cited paragraph of the case
does not exist, or misquoted the case). Indeed, some of the
citations appear to be made out of whole cloth.
(continued…)

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disputed evidence for impeachment purposes. And we have
found nothing in the record to suggest that Kent ever stated that
Leona contributed “zero” dollars to the Leeds Property. Indeed,
the opposite is true. Kent stated that he thought Leona “probably
put $30,000 into the home and into rebuilding everything.”
Accordingly, we are left to conclude that Leona’s impeachment
argument is simply without any foundation.

¶24 In sum, the district court exceeded its discretion in
allowing Leona to present her late‐disclosed evidence. To put it
bluntly, “no reasonable person would take the view adopted” by
the district court in overlooking the lateness of the disclosures. See
State v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167 (cleaned
up). And since the late disclosures prejudiced Kent and were not
excused by good cause, we reverse the district court’s
determination that the Leeds Property was marital property and
remand this matter for a new trial based on the evidence that was
properly disclosed.

CONCLUSION

¶25 Given that Leona has not shown good cause for her late
disclosure or that her violation of rule 26 was harmless, the district
court exceeded its discretion in allowing the admission of Leona’s
late‐disclosed evidence. We therefore vacate the resulting
judgment and remand this matter for a new trial to be conducted
without that evidence.

We realize attorneys find themselves pulled in many directions,
but even in the midst of these pressures, we do expect a modicum
of compliance with briefing and citation standards. In a case like
this, where any similarity between the citation in the brief and the
material cited appears to be purely accidental, we are left
perplexed as to what happened in the composition process.

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