S6 v. Wing Enterprises

2024 UT App 105

THE UTAH COURT OF APPEALS

S6, LLC,
Appellant,
v.
WING ENTERPRISES, INC. AND ARTHUR WING,
Appellees.

Opinion
No. 20220977-CA
Filed August 1, 2024

Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 180401660

Jefferson W. Gross, S. Ian Hiatt, and J. Adam
Sorenson, Attorneys for Appellant
Mark O. Morris, Cameron J. Cutler, and Benjamin J.
Mills, Attorneys for Appellees

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN D. TENNEY
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 S6, LLC (S6) is a consulting firm owned and managed by
Mark Stromberg. For approximately three years, S6 provided
consulting services to Wing Enterprises, Inc. (Wing). When Wing
terminated the relationship with S6, S6 filed suit against Wing,
asserting claims for breach of oral agreement, breach of implied-
in-fact contract, unjust enrichment, and promissory estoppel.
Following a series of pretrial motions, the district court dismissed
all but S6’s promissory estoppel claim. After a five-day trial, a jury
returned a special verdict in favor of S6, which was subsequently
vacated by the court.
S6 v. Wing Enterprises

¶2 S6 now appeals, arguing there were abundant errors that
infected the judgment. Specifically, S6 takes issue with multiple
rulings of the district court, including the court’s decisions to
dismiss all but S6’s promissory estoppel claim, to exclude all
evidence of S6’s damages, to grant Wing’s post-trial motion for
judgment as a matter of law, and to award Wing costs. We affirm
the district court in all respects.

BACKGROUND

¶3 In 2012, following his father’s death, Arthur Wing became
the chief executive officer of Wing, a closely held corporation that
manufactures and distributes ladders. In early 2014, Arthur 1 was
introduced to Hero Partners (Hero)—a business networking and
consulting company—through Randy Hunt, who was Hero’s vice
president of business development. During the initial meeting,
Hunt told Arthur about several upcoming events put on by Hero
that he could attend, including a retreat in Montana the following
month. Hunt also explained Hero’s “15-15-15 Model” for the cost
of its consulting services, whereby Hero would charge Wing a
$15,000 monthly retainer fee, would receive 15% of Wing’s stock,
and would then have a 15% option on other stock in Wing.

¶4 In July 2014, Hero provided Wing with a proposed written
agreement for consulting services (Hero Agreement). Per the
terms of the Hero Agreement, Wing would pay Hero a $30,000
engagement fee to participate in the Montana retreat. The
engagement fee would be used to cover the $15,000 monthly
retainer fee for two months. Regarding equity, the Hero
Agreement provided, “During the initial 90 days of this
Agreement, the Parties shall arrive at a commitment wherein

1. Because Wing Enterprises, Inc. and Arthur Wing share the
name Wing, we refer to Arthur by his first name for clarity, with
no disrespect intended by the apparent informality.

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S6 v. Wing Enterprises

[Wing] shall grant to [Hero] the right to purchase an ownership
interest in [Wing] . . . .” Wing did not sign the Hero Agreement. It
did, however, pay Hero the engagement fee.

¶5 The following week, Wing’s executives attended the retreat
in Montana. While at the retreat, they were introduced to
Stromberg, whom Hero had hired to provide consulting services
on Hero’s behalf. Stromberg presented Wing with a “thorough
overview” of his “strategic planning process” although he did not
have “any financial information of Wing” at the time of that
meeting. At the end of the retreat, Arthur remarked that Hero
“should be charging . . . north of $40,000 a month” for its
consulting services.

¶6 After the retreat, the parties continued discussions
regarding the terms of the Hero Agreement. Wing’s counsel
proposed several changes, which Hunt accepted on Hero’s behalf,
and the document was returned to Wing to execute. 2 Wing never
signed the amended Hero Agreement. Stromberg, however, was
under the impression that the agreement had been executed, and
in August 2014, Stromberg attended a “strategic planning kickoff”
meeting with Wing’s executives and began working on a strategic

2. The amended Hero Agreement provided that “the Parties will
use their best efforts to arrive at a commitment wherein [Wing]
shall grant to [Hero] the right to purchase an ownership interest
in [Wing], a mutually agreed upon amount, not to exceed a fully
diluted interest equal to 15% of the authorized and issued equity
of [Wing],” and that “[u]nder no circumstances will failure by the
Parties to come to a mutually agreeable valuation of [Wing] be
considered bad faith or a failure to act in good faith on the part of
a Party.” Stromberg acknowledged that this was merely an
“agreement to agree later,” meaning that even if the document
had been signed, “there was still a process that had to be pursued
to come to a mutual agreement sometime in the future.”

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S6 v. Wing Enterprises

plan for Wing. Wing also began paying Hero the monthly $15,000
consulting retainer.

¶7 Stromberg continued to provide consulting services to
Wing through Hero until March 2015. In April 2015, Stromberg
and Hero mutually agreed to allow Stromberg to separate from
Hero, and Hero assigned its consulting agreement with Wing to
S6—Stromberg’s company. Thereafter, Stromberg met with Wing
and informed the company that he would no longer be working
with Hero but that he could continue providing consulting
services through S6 just as he had done through Hero. Wing
agreed and began making payments directly to S6. For
approximately the next three years, Wing paid S6 its $15,000
monthly retainer, and Stromberg provided consulting services to
Wing through S6.

¶8 Following the transition from Hero to S6, Stromberg knew
that “there was no enforceable agreement at the time for an equity
interest.” But Stromberg “anticipated” that a deal would be “put
in writing,” and he “frequently” met with Wing to propose
different equity options. In July 2015, S6 proposed—based on the
terms of the unsigned Hero Agreement—a 15% carried interest.
Wing rejected this 15% proposal outright. The parties then
continued to discuss other percentages, including 8% and 10%.
Ultimately, the parties did not agree on any specific percentage.

¶9 In February 2016, Stromberg prepared a carried interest
term sheet, which he sent to Wing. Wing did not respond to the
term sheet, other than to acknowledge that it had been received.
Despite having no written equity deal, Stromberg continued to
work for Wing “based on trust” that an equity deal would get
done.

¶10 In August 2016, Stromberg met with Arthur and other
Wing executives to discuss Stromberg’s latest equity proposal.
Stromberg gave a lengthy presentation detailing “the [equity]

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S6 v. Wing Enterprises

mechanics and the numbers, at least that [he] was proposing.”
Stromberg proposed a number of predetermined “gates” or
“hurdles” that would have to be met in order for S6 to receive any
equity in Wing. Although the Wing executives asked him
multiple questions, Stromberg perceived “no push back” or
“rejection” by Wing of the gates that Stromberg had proposed,
which led Stromberg to conclude that “there was an agreement
reached that [the proposal] looked reasonable.” According to
Stromberg, by the end of the meeting S6 and Wing had “agreed to
a four percent equity” interest. Arthur instructed a Wing
executive to set up a meeting with Wing’s counsel to “have him
begin drafting an agreement.”

¶11 Stromberg met with Wing’s counsel in January 2017.
During this meeting, Stromberg gave “basically” the same
presentation that he had given in August 2016. Stromberg
testified that Wing’s counsel expressed no concerns with any of
the proposed gates and told Stromberg that he thought the
proposal “looked reasonable.” At the end of the meeting,
Stromberg told Wing’s counsel that “although [the parties] had
agreed to the equity percent, four percent, . . . [Stromberg was]
willing to work with [counsel] on reasonable hurdles.” The next
day, Stromberg sent Wing’s counsel a follow-up email that stated,
“Attached is the worksheet we took a look at yesterday. Anything
in blue is variable so you can play with different scenarios.”
Among the “variables” were some of the gates that Stromberg had
proposed.

¶12 Over the course of the following year, Stromberg was
assured that an equity deal would get done. But in February 2018,
Wing informed S6 that it was terminating the relationship and
that S6 would not receive any equity in Wing. Wing agreed to pay
S6 its monthly consulting fee through June to allow S6 to complete
its outstanding projects.

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S6 v. Wing Enterprises

¶13 In October 2018, S6 filed suit against both Wing and
Arthur, asserting claims for breach of oral agreement, breach of
implied-in-fact contract, unjust enrichment, and promissory
estoppel. Arthur moved for summary judgment on all claims
against him individually. After briefing and argument, the district
court granted Arthur’s motion, dismissing him from the case.

¶14 In September 2019, Wing moved for summary judgment
on all claims against it. Regarding S6’s equitable claims, Wing
argued that (1) S6 could not establish an implied-in-fact contract
because “S6 testified it had subjective and actual knowledge that no
agreement on terms was reached” and “S6 [could] point to no
conduct on the part of Wing that indicates it ever agreed to an
equity interest”; (2) S6’s unjust enrichment claim failed “for lack
of damages” because “S6 [had] adduced no evidence to establish
the value of any benefit it purportedly conferred on Wing”; and
(3) promissory estoppel was not available to S6 because
“consideration [was] exchanged,” i.e., S6 received $15,000 per
month from Wing in exchange for providing consulting services.

¶15 In December 2019, the district court entered a summary
judgment order narrowing S6’s breach of contract and implied-in-
fact contract claims to a single factual scenario: that “the parties
negotiated about how much equity S6 would get and the gates S6
must meet to obtain that equity” and “those negotiations
culminated in an agreement on August 22, 2016 that [Wing]
would grant S6 a 4% equity interest without any other conditions
attaching to that grant.” The court also dismissed S6’s unjust
enrichment claim, concluding that “S6 [had] not produced
evidence of the amount of damages.” However, the court denied
summary judgment on S6’s promissory estoppel claim, reasoning
that “[a] partial payment of consideration does not bar relief
under a theory of promissory estoppel.”

¶16 Approximately one month later, Wing moved to exclude
S6’s valuation and damages expert (Expert), who had offered two

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S6 v. Wing Enterprises

opinions. First, Expert had opined that Wing’s fair market value
had increased from $16 million in July 2014 to $70 million in
December 2018. Second, Expert had opined that S6 suffered
economic damages of $1.2 million over the course of its
engagement with Wing by reducing its monthly consulting fee.
The district court granted Wing’s motion, concluding that
Expert’s fair market value opinion was inadmissible under rules
401, 402, and 403 of the Utah Rules of Evidence. The court also
excluded Expert’s economic damages opinion under rule 702
because the opinion did not “involve scientific, technical, or other
specialized knowledge.”

¶17 Due to the COVID-19 pandemic, the trial date was pushed
back several times. Trial was ultimately set for October 2021.

¶18 On September 9, 2021, Wing moved to exclude any
evidence of S6’s damages based on S6’s failure to “disclose an
adequate damages computation for the 4% equity interest”
pursuant to rule 26(a)(1)(C) of the Utah Rules of Civil Procedure.
The district court granted Wing’s motion in part, ruling that S6
had failed to disclose the value and method of computation of its
alleged 4% equity interest and was therefore precluded under rule
26(d)(4) from presenting any “evidence of [S6’s] damages related
to its alleged 4% equity interest in Wing, whether characterized as
expectation, consequential or otherwise.” The court reached the
opposite conclusion, however, with respect to S6’s alleged
reliance damages in regard to its promissory estoppel claim,
finding that S6 was entitled to “introduce evidence of its properly
disclosed reliance damages” of $1.2 million.

¶19 In October 2021, approximately one week before the jury
trial was scheduled to begin, Wing moved to dismiss the
remaining portion of S6’s breach of contract and implied-in-fact
contract claims in light of the district court’s ruling barring S6
from presenting any evidence of damages to support these claims.
The court dismissed the claims.

20220977-CA 7 2024 UT App 105
S6 v. Wing Enterprises

¶20 After another COVID-19-related continuance, the case
finally went to trial in May 2022 on S6’s remaining claim for
promissory estoppel and Wing’s related defenses. At the close of
S6’s case-in-chief, Wing moved for judgment as a matter of law
pursuant to rule 50 of the Utah Rules of Civil Procedure. The
district court declined to rule on Wing’s motion at that time. Then,
before closing arguments, Wing renewed its rule 50 motion and
S6 moved for judgment as a matter of law on Wing’s failure-to-
mitigate defense. The court again declined to rule on the motions
and instead submitted the case to the jury.

¶21 Following deliberations, the jury returned a special verdict
in favor of S6 on each element of its promissory estoppel claim.
However, the jury also found that S6 had failed to mitigate its
damages in the amount of $510,000, rendering a net damages
award of $600,000.

¶22 Thereafter, each side submitted a written post-trial motion
that included, at the district court’s request, supplemental briefing
on the parties’ respective rule 50 motions. After considering the
briefing and holding oral argument, the court granted Wing’s
motion for judgment as a matter of law on S6’s promissory
estoppel claim and vacated the jury’s verdict. The court found that
S6’s promissory estoppel claim failed as a matter of law because
there was no evidence of a reasonably clear and definite promise:

[T]here is no evidence in the record on which a
reasonable jury could find that [Wing] made a
reasonably certain and definite promise of equity to
S6 . . . . Even though the parties agreed as to the
amount of equity—four percent, the parties never
agreed upon the gates S6 would need to pass in
order to obtain that equity.

Having granted Wing’s motion, the court dismissed as moot S6’s
post-trial motion for judgment as a matter of law or, alternatively,

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S6 v. Wing Enterprises

to alter or amend the judgment on Wing’s failure-to-mitigate
defense. The court also concluded that Wing, as the prevailing
party, was entitled to costs in the amount of $12,805.60.

ISSUES AND STANDARDS OF REVIEW

¶23 S6 now appeals, asserting the district court committed
numerous errors—both pre- and post-trial—that affected the final
judgment. First, S6 argues the court improperly dismissed its
implied-in-fact contract and unjust enrichment claims prior to
trial. As part of this argument, S6 challenges (A) the court’s
summary judgment rulings limiting S6’s implied-in-fact contract
claim and dismissing S6’s unjust enrichment claim and (B) the
court’s exclusion of S6’s damages evidence. “We review a district
court’s decision to grant summary judgment for correctness,
granting no deference to the district court’s conclusions, and we
view the facts and all reasonable inferences in the light most
favorable to the nonmoving party.” Eskelson ex rel. Eskelson v.
Davis Hosp. & Med. Center, 2010 UT 59, ¶ 6, 242 P.3d 762 (quotation
simplified). Conversely, we review a district court’s decision to
exclude expert testimony deferentially, reversing the court’s
decision “to strike expert testimony only when it exceeds the
limits of reasonability.” Id. ¶ 5 (quotation simplified). A district
court’s decision to exclude evidence as a sanction under rule
26(d)(4) of the Utah Rules of Civil Procedure is likewise reviewed
for abuse of discretion. See Keystone Ins. Agency v. Inside Ins., 2019
UT 20, ¶ 12, 445 P.3d 434; see also Bodell Constr. Co. v. Robbins, 2009
UT 52, ¶ 35, 215 P.3d 933 (“We will determine that a district court
has abused its discretion in choosing which sanction to impose
only if there is either an erroneous conclusion of law or no
evidentiary basis for the district court’s ruling.” (quotation
simplified)).

¶24 Second, S6 contends the district court erred in granting
Wing’s post-trial motion for judgment as a matter of law on S6’s

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S6 v. Wing Enterprises

promissory estoppel claim. A district court may grant a motion
for judgment as a matter of law “only if there is no basis in the
evidence, including reasonable inferences which could be drawn
therefrom, to support the jury’s determination.” ASC Utah, Inc. v.
Wolf Mountain Resorts, LC, 2013 UT 24, ¶ 18, 309 P.3d 201
(quotation simplified). We review rulings on such motions for
correctness. See id. 3

¶25 Third, S6 contends the district court abused its discretion
in awarding costs. “A trial court’s decision to award the
prevailing party its costs will be reviewed under an abuse of
discretion standard.” Jensen v. Sawyers, 2005 UT 81, ¶ 140, 130 P.3d
325 (quotation simplified).

ANALYSIS

I. The District Court Correctly Dismissed S6’s Implied-in-Fact
Contract and Unjust Enrichment Claims Prior to Trial

¶26 In its initial complaint, S6 asserted claims against Wing for
breach of oral agreement, breach of implied-in-fact contract,
unjust enrichment, and promissory estoppel. Through a series of
orders, the district court dismissed S6’s contract claims and unjust
enrichment claim, leaving only the promissory estoppel claim for
trial. On appeal, S6 argues the court erred in dismissing its

3. After granting Wing’s motion for judgment as a matter of law,
the district court concluded that S6’s post-trial motion to alter or
amend the judgment on Wing’s failure-to-mitigate defense was
moot. S6 notes that if this court reinstates the jury’s verdict, then
S6’s post-trial motion is no longer moot. Because we conclude that
the district court did not err in granting Wing judgment as a
matter of law, the court’s mootness determination is not
implicated.

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S6 v. Wing Enterprises

implied-in-fact contract and unjust enrichment claims. 4 S6’s
challenges can be grouped into two general categories:
(A) challenges to the court’s summary judgment rulings and
(B) challenges to the court’s rulings excluding S6’s damages
evidence.

A. Summary Judgment Rulings

¶27 Summary judgment is appropriate “if the moving party
shows that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.” Utah
R. Civ. P. 56(a). However, the “extent of the moving party’s
burden [to produce evidence] varies depending on who bears the
burden of persuasion at trial.” Salo v. Tyler, 2018 UT 7, ¶ 26, 417
P.3d 581. Where, as here, the nonmoving party will bear the
burden at trial, “the moving party may carry its burden of
persuasion [on summary judgment] without putting on any
evidence of its own—by showing that the nonmoving party has
no evidence to support an essential element of a claim.” Id. ¶ 2.
“Upon such a showing, . . . the burden then shifts to the
nonmoving party, who may not rest upon the mere allegations or
denials of the pleadings, but must set forth specific facts showing
that there is a genuine issue for trial.” Id. ¶ 25 (quotation
simplified).

¶28 Wing moved for summary judgment on each of S6’s
claims. The district court largely agreed with Wing’s position,
granting Wing partial summary judgment on S6’s implied-in-fact
contract claim and granting Wing summary judgment on S6’s
unjust enrichment claim. S6 argues the court erred in so ruling,
asserting that there were genuine issues of material fact on both
claims.

4. S6 does not challenge the district court’s rulings concerning S6’s
claim for breach of oral agreement.

20220977-CA 11 2024 UT App 105
S6 v. Wing Enterprises

1. Implied-in-Fact Contract Claim

¶29 On summary judgment, the district court narrowed S6’s
implied-in-fact contract claim, limiting that claim to a single
factual scenario: that the parties negotiated about how much
equity S6 would receive and “those negotiations culminated in an
agreement to grant S6 a 4% equity interest without any
requirement that gates be met.” The court reasoned it was
“undisputed that the parties never reached an agreement on what
. . . gates” S6 was required to meet to obtain equity and the “gates
[were] material terms.” Thus, the court concluded that to the
extent the equity was contingent on S6 meeting certain gates, the
agreement was unenforceable for lack of sufficient definiteness.
We agree.

¶30 “An implied-in-fact contract is established by conduct.”
Wayment v. Schneider Auto. Group LLC, 2019 UT App 19, ¶ 14, 438
P.3d 1005 (quotation simplified). “When mutual assent is based
on conduct or performance, the law requires that words or actions
of a party must be reasonably interpretable as indicating an
intention to make a bargain with certain terms or terms which
reasonably may be made certain.” Bergdorf v. Salmon Elec. Contractors
Inc., 2019 UT App 128, ¶ 37, 447 P.3d 1265 (quotation simplified),
cert. denied, 456 P.3d 389 (Utah 2019).

¶31 The district court did not err in narrowing S6’s implied-in-
fact contract claim because the gates were material terms and S6
has not pointed to any evidence demonstrating that the parties
ever reached an agreement on what the gates would be. Indeed,
as the court correctly ruled, the only evidence in the record is that
“these terms could not reasonably be made certain.”

¶32 Nevertheless, S6 contends that even if the district court was
correct in concluding the gates were material terms, the “court
ignored evidence . . . from which a jury could find a meeting of
the minds, demonstrated by conduct.” But S6’s position on this

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S6 v. Wing Enterprises

point is likewise not supported by record evidence. As S6
correctly notes, Stromberg met with Wing multiple times to
discuss S6 receiving an equity piece of Wing as part of S6’s
compensation package. During these meetings, Stromberg
“floated multiple percentages,” and he and Wing “discuss[ed]”
what gates would need to be cleared in order for S6 to be awarded
equity. However, no evidence exists showing that the parties ever
agreed as to any specific gate. Indeed, in January 2017, Stromberg
met with Wing’s counsel to draft a proposed equity agreement
memorializing the terms Stromberg had presented to Arthur and
other Wing executives during the August 2016 meeting. But one
day after that meeting, Stromberg emailed Wing’s counsel a copy
of the proposal with the following instruction: “Attached is the
worksheet we took a look at yesterday. Anything in blue is
variable so you can play with different scenarios.” (Emphasis added.)
Included among those “variables” were the gates that Stromberg
had proposed. 5 Therefore, even assuming that the parties did in
fact agree on granting S6 equity subject to gates, Wing’s conduct
did not establish what those gates were, as evidenced by
Stromberg’s invitation to Wing’s counsel to “play with” the
proposed gates. Because “[t]here was simply no communication
between [S6] and [Wing] that exhibits a meeting of the minds on
any certain terms,” see id. ¶ 38, the district court did not err in
limiting S6’s implied-in-fact contract claim on summary
judgment.

5. Stromberg likewise testified at trial that at the end of the
meeting with Wing’s counsel, Stromberg told counsel that
“although [the parties] had agreed to the equity percent, four
percent, . . . [Stromberg was] willing to work with [counsel] on
reasonable hurdles.” Stromberg further explained that he “made
sure [counsel] understood that he could play with [Stromberg’s
proposal] and maybe propose something [counsel] felt . . . needed
to be . . . adjust[ed].”

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2. Unjust Enrichment Claim

¶33 The district court also dismissed S6’s unjust enrichment
claim on summary judgment on the ground that S6 had not
“produced evidence of the amount of damages.” Again, we
discern no error in the court’s ruling.

¶34 To recover on a claim for unjust enrichment, the plaintiff
must establish three elements: “(1) The defendant received a
benefit; (2) an appreciation or knowledge by the defendant of the
benefit; (3) under circumstances that would make it unjust for the
defendant to retain the benefit without paying for it.” Emergency
Physicians Integrated Care v. Salt Lake County, 2007 UT 72, ¶ 11, 167
P.3d 1080 (quotation simplified). “The general measure of
recovery for an unjust enrichment claim is the value of the benefit
conferred on the defendant (the defendant’s gain) and not the
detriment incurred by the plaintiff.” Jones v. Mackey Price
Thompson & Ostler, 2015 UT 60, ¶ 57, 355 P.3d 1000 (quotation
simplified). But where, as here, the defendant “has requested
professional services, . . . the proper measure of the defendant’s
gain will normally be the reasonable value of the plaintiff’s
services.” Id. ¶ 58. Expert testimony is required when the issue of
damages is “not in the common knowledge and experience of the
average person,” Warenski v. Advanced RV Supply, 2011 UT App
197, ¶ 11, 257 P.3d 1096, cert. denied, 268 P.3d 192 (Utah 2011), or
when “the jury would be unable to determine the [issue] without
resorting to speculation,” Callister v. Snowbird Corp., 2014 UT App
243, ¶ 15, 337 P.3d 1044, cert. denied, 343 P.3d 708 (Utah 2015); see
also Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 54, 513
P.3d 729 (requiring expert testimony “where jurors cannot,
without unjustifiable speculation, resolve a dispute based on the
facts of the case and their own experiences”).

¶35 Before the district court, S6 outlined two ways by which
the court could measure damages. First, S6 claimed that the
“value of the benefit conferred” on Wing was $54 million, which

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was “the increase in the fair market value of Wing from $16
million to $70 million during the period S6 provided consulting
services.” Second, S6 claimed that the “reasonable value of its
services” was “the difference between S6’s reduced monthly
charge of $15,000 and the $45,000 [that] S6 would have charged
had it not been promised an equity interest in Wing.” The court
rejected both proposed damages calculations, finding that S6 had
failed to produce evidence to support either measure. We agree.

¶36 Regarding the value of the benefit conferred, S6 provided
a report prepared by Expert, wherein he opined “that the fair
market value of total equity in Wing increased by $54 million
between July of 2014 and December of 2018.” However, Expert
did not analyze how much of that purported increase was
attributable to S6’s consulting services. And this is of import here
given the fact that the parties all agreed that Wing would have
experienced organic growth independent of S6’s services. Because
of this, we agree with the court’s conclusion that asking jurors to
decide damages on this basis would be a “wildly speculative
endeavor.”

¶37 As to the reasonable value of S6’s services, the sole basis
for S6’s claim that its services were worth more than the monthly
$15,000 fee it had been charging was Stromberg’s “self-serving
and after-the-fact” statement that S6 would have charged more
had it not been promised equity. But Stromberg’s statement does
not establish the reasonable value of S6’s services, nor does it
establish that S6’s services were actually worth $45,000 per month.
Accordingly, the district court was correct in determining that
jurors asked to decide damages based on this evidence would be
“engaged in a speculative endeavor.”

¶38 S6 did not present sufficient evidence of the amount of
damages to support its unjust enrichment claim. Therefore, the
district court was correct in granting summary judgment to Wing
on this claim.

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S6 v. Wing Enterprises

B. Damages Evidence Rulings

¶39 Following the district court’s summary judgment rulings,
Wing moved to exclude Expert. The court granted the motion.
Then, shortly before trial, Wing moved to exclude all evidence of
S6’s contractual damages pursuant to rule 26(d)(4) of the Utah
Rules of Civil Procedure. The court also granted this motion. S6
argues the court abused its discretion on both rulings.

1. Exclusion of Expert

¶40 Expert prepared a report wherein he opined that over the
course of S6’s engagement, Wing’s fair market value had
increased from $16 million in July 2014 to $70 million in December
2018—a total increase of $54 million. 6 The district court excluded
this opinion, concluding it was inadmissible under rules 401 and
402 of the Utah Rules of Evidence because “the two valuations
that provided the basis for the opinion, a July 2014 valuation and
a December 2018 valuation, are irrelevant and not sufficiently
proximate in time to any of the potential dates of breaches of the
contracts in question.” In addition, the court concluded that even
if the opinion was relevant, it was inadmissible under rule 403
because “the danger of unfair prejudice substantially outweighs
the valuations’ slight probative value.” We discern no abuse of
discretion in the court’s decision to exclude Expert’s opinion on
either ground.

¶41 Under rule 402 of the Utah Rules of Evidence, only
“[r]elevant evidence is admissible.” Evidence is relevant if it bears

6. In this report, Expert also opined as to the amount of economic
damages S6 had suffered by reducing its consulting fee. The
district court excluded this opinion. Although S6 contends this
was error, it does not challenge this exclusion on appeal because
S6 was ultimately allowed to present evidence of these damages
from other sources at trial.

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on a fact “of consequence in determining the action.” Utah R.
Evid. 401(b). “Where evidence has no probative value to a fact at
issue, it is irrelevant and is inadmissible under rule 402.” State v.
Smedley, 2003 UT App 79, ¶ 15, 67 P.3d 1005 (quotation
simplified).

¶42 S6 sought to admit Expert’s opinion as to the fair market
value of Wing for the express purpose of establishing the “value
of the benefit conferred” on Wing, which S6 was required to prove
to succeed on its unjust enrichment claim. That claim, however,
was properly dismissed on summary judgment. As a result, the
alleged overall $54 million increase in Wing’s fair market value
was unrelated to any remaining claim. Therefore, the district
court’s decision to exclude Expert’s opinion on this basis was well
within its wide discretion. 7

¶43 Notwithstanding the dismissal of its unjust enrichment
claim, S6 contends the district court abused its discretion in
excluding Expert’s opinion because his opinion as to Wing’s 2018
valuation was relevant to establish damages for S6’s implied-in-
fact contract claim. 8 But the court carefully explained why
Expert’s opinion regarding Wing’s 2018 valuation was not

7. S6 takes issue with the district court’s decision to exclude
Expert’s opinion on this basis primarily because S6 believes that
the court incorrectly dismissed its unjust enrichment claim.
Consequently, S6 contends that if we reinstate its unjust
enrichment claim, we should also reverse the exclusion of
Expert’s opinion. Because we have determined the court correctly
dismissed S6’s unjust enrichment claim, we decline S6’s invitation
to reinstate Expert’s opinion on this ground.

8. As noted, Expert also opined that Wing’s valuation in 2014—a
year prior to S6’s engagement and some two years before the
alleged breach—was $16 million. S6 has not argued on appeal that
the court erred in excluding this valuation.

20220977-CA 17 2024 UT App 105
S6 v. Wing Enterprises

relevant to S6’s implied-in-fact contract claim: “The measure of
damages for breach of a contract to deliver stock is the value of
the loss sustained or gain prevented at the time . . . of the breach.”
(Emphasis added.) Put differently, the proper valuation date for
measuring S6’s damages was the date of the alleged breach,
which, according to Stromberg, occurred in August 2016 when
Wing agreed to grant S6 a 4% equity interest but did not actually
do so. 9 In light of the applicable August 2016 breach date, the
court was well within its discretion to exclude Expert’s opinion
on the basis that the valuation of Wing in 2018—months after the
end of S6’s engagement and some two years after the alleged
breach—was “irrelevant and not sufficiently proximate in time”
to the date from which any damages should be measured.

¶44 Moreover, even if Expert’s opinion had satisfied the
relevancy requirements under rules 401 and 402, the district court

9. S6 challenges the district court’s conclusion that August 2016
was the proper valuation date. S6 cites Utah Department of
Transportation v. Boggess-Draper Co., 2020 UT 35, 467 P.3d 840, for
the propositions that “transactions removed in time from the
valuation date may be probative of the market value on that date”
and “sales of the same property at any reasonable time in the past
or future [are] relevant evidence on the issue of present value.” Id.
¶ 27 (quotation simplified). But that case is readily
distinguishable. Critically, Boggess-Draper Co. is an eminent
domain case concerning the value of real property. Here, not only
was the market valuation at issue unrelated to real property, but
the valuation was not based on an established sale price. And the
fact of the sale was of import in Boggess-Draper Co., where our
supreme court expressly noted that “sales of the same property . . .
when made under normal and fair conditions, are necessarily a
better test of the market value than speculative opinions of
witnesses.” Id. (emphasis added) (quotation simplified). Boggess-
Draper Co. is therefore inapposite, and we decline to apply it here.

20220977-CA 18 2024 UT App 105
S6 v. Wing Enterprises

did not abuse its discretion by excluding the opinion on the
alternative ground that it did not pass the rule 403 balancing test.
Under rule 403, “[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice, confusing the issues, [or] misleading the jury.”
Utah R. Evid. 403. Evidence is unfairly prejudicial if it “creates an
undue tendency to suggest decision on an improper basis.”
Anderson-Wallace v. Rusk, 2021 UT App 10, ¶ 23, 482 P.3d 822
(quotation simplified), cert. denied, 496 P.3d 716 (Utah 2021).

¶45 Here, the district court determined that any “probative
value” of Expert’s opinion was “light” given the substantial
period of time between the 2018 valuation and the date of the
alleged 2016 breach. Conversely, there was a “substantial
likelihood” that the 2018 valuation would “confuse and mislead
the jury.” This determination does not “exceed[] the limits of
reasonability.” State v. Chapman, 2014 UT App 255, ¶ 16, 338
P.3d 230 (quotation simplified), cert. denied, 343 P.3d 708 (Utah
2015).

¶46 Given “the lack of proximity” between the 2018 valuation
and August 2016, which was the proper date for measuring
damages for the remaining implied-in-fact contract claim, we
agree with the district court that the probative value of this
valuation was low. In contrast, the danger of unfair prejudice was
high. It is reasonable to conclude that admitting the 2018
valuation that lacked any bearing on the proper measure of
damages would confuse and mislead the jury. Presenting the
valuation to the jury would force jurors to wrestle with the import
of Wing’s valuation on a date far removed from the date of the
alleged breach, to say nothing of the fact that at the time of the
2018 valuation, S6 was not even providing consulting services to
Wing.

¶47 Based on the foregoing, the district court did not abuse its
discretion when it excluded Expert’s opinion.

20220977-CA 19 2024 UT App 105
S6 v. Wing Enterprises

2. Exclusion of Contractual Damages Evidence

¶48 Prior to trial, the district court excluded “[a]ll evidence of
[S6’s] damages related to its alleged 4% equity interest in Wing,
whether characterized as expectation, consequential or
otherwise,” as a sanction for S6’s failure to fully comply with the
disclosure requirements outlined in rule 26(a)(1)(C) of the Utah
Rules of Civil Procedure. S6 takes issue with this ruling on two
grounds. First, S6 contends the court erred in concluding its
disclosure violated rule 26. Second, S6 contends that even if its
disclosure was incomplete, the court abused its discretion in
concluding that S6 had failed to establish good cause or
harmlessness for its failure to disclose. We disagree with S6 on
both fronts.

¶49 A party is required to include in its initial disclosures “a
computation of any damages claimed and a copy of all
discoverable documents or evidentiary material on which such
computation is based.” Utah R. Civ. P. 26(a)(1)(C). “In other
words, both the fact of damages and the method for calculating
the amount of damages must be apparent in the initial
disclosures.” Black Diamond Fin. LLC v. Big Cottonwood Pine Tree
Water Co., 2020 UT App 90, ¶ 20, 470 P.3d 445 (quotation
simplified), cert. denied, 474 P.3d 948 (Utah 2020). When “a party
fails to disclose or to supplement timely a disclosure . . . , 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.” Utah R. Civ. P. 26(d)(4).

¶50 In its original initial disclosures, S6 disclosed its damages
as follows:

S6 has suffered significant monetary damages due
to Wing’s failure to grant S6 an equity interest.
Although the value of such four-percent (4%) equity

20220977-CA 20 2024 UT App 105
S6 v. Wing Enterprises

interests is currently undetermined[,] S6 believes
the value of such interest is in excess of $5,000,000.

S6 later supplemented this disclosure. In the supplement, S6
disclosed two alternative ways by which it would calculate
damages: (1) “the benefit conferred” on Wing from S6’s services
or (2) the difference in the monthly fee S6 would have charged
Wing without the promise of equity. Notably, the supplemental
disclosure did not provide additional information concerning the
value of the 4% equity interest identified in the original
disclosure; indeed, the supplement did not include any mention
of the 4% equity interest. Based on S6’s disclosures, the district
court found that S6’s damages computation was incomplete,
reasoning that “[w]hile S6 disclosed a portion of its method [for
calculating damages], i.e. 4% of the value of Wing, it disclosed
neither the value nor the method of the value’s computation. This
failure made it impossible for Wing to know the amount of these
damages claimed and to defend against it.” This determination is
legally sound.

¶51 S6 admitted below that its initial disclosure was
inadequate, stating that “the method of calculating the value of
[Wing] was not explained in that disclosure.” Despite this
acknowledgement, S6 defends its disclosure on two grounds.
First, S6 contends that it did disclose the value of Wing through
Expert, whom the district “court (incorrectly) excluded.” Second,
S6 contends that it “attempt[ed] to estimate the value of Wing in
its initial disclosures, calculating the value of its 4% interest at
approximately $5 million.” Neither argument is availing.

¶52 As an initial matter, we have already determined that the
district court’s exclusion of Expert was proper because his
valuation opinion failed to calculate Wing’s value at the time of
the alleged breach. See supra Part I.B.1. But aside from this fact, S6
cannot rely on a belated damages disclosure through an expert
witness to cure its failure to serve an appropriate damages

20220977-CA 21 2024 UT App 105
S6 v. Wing Enterprises

disclosure prior to the close of fact discovery. See Bodell Constr. Co.
v. Robbins, 2009 UT 52, ¶ 38, 215 P.3d 933 (rejecting a damages
disclosure as insufficient where the plaintiff “disclosed its
damages theories during fact discovery and then laid them out in
greater detail in an expert report produced during the expert
discovery period” (quotation simplified)); see also Sleepy Holdings
LLC v. Mountain West Title, 2016 UT App 62, ¶ 14, 370 P.3d 963 (“If
factual contentions about the amount of damages require further
investigation or discovery, the party must undertake that
investigation as early in the litigation process as is practicable.”
(quotation simplified)).

¶53 Moreover, S6’s claim that it estimated the value of its
interest in Wing as approximately $5 million mischaracterizes S6’s
disclosure and mistakes the requirements of rule 26. S6’s
disclosure is a self-avowed “undetermined” estimate of its alleged
equity interest, which S6 believed to be “in excess of $5,000,000.”
(Emphasis added.) Thus, the plain language of the disclosure is
far from certain, and it does not satisfy the standard for proving
the fact of damages. See Sleepy Holdings, 2016 UT App 62, ¶ 13
(stating that the standard for determining the amount of damages
requires “evidence that rises above speculation and provides a
reasonable, even though not necessarily precise, estimate of
damages” (quotation simplified)).

¶54 Because the district court was correct in its determination
that S6 violated rule 26(a)(1)(C) when it failed to disclose “the
value [and] the method of the value’s computation,” we next turn
to the court’s conclusion that S6’s failure to disclose was not
harmless or excused by good cause. “[T]he burden to demonstrate
harmlessness or good cause is . . . on the party seeking relief from
disclosure requirements.” Keystone Ins. Agency v. Inside Ins., 2019
UT 20, ¶ 18 n.7, 445 P.3d 434.

¶55 S6 contends that any failure to comply with rule 26 was
both harmless and warranted by good cause. Regarding

20220977-CA 22 2024 UT App 105
S6 v. Wing Enterprises

harmlessness, S6 asserts that “Wing cannot be prejudiced by any
failure on the part of S6 to disclose the value of Wing itself.” But S6’s
argument is entirely speculative. There was no evidence that
Wing, S6, or anyone else knew Wing’s value at the relevant time—
August 2016. 10 And even if Wing had known its own value in
August 2016, this knowledge would not inform Wing of S6’s
alleged damages and method of computation. Wing’s alleged
ability “to guess at potential damages does not free [S6] from its
obligations to disclose a computation of damages.” See Black
Diamond Fin., 2020 UT App 90, ¶ 25 (quotation simplified); see also
RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 29, 392 P.3d 956 (“An
insufficient disclosure by one party does not shift the burden and
risk to resolve the insufficient disclosure to the other party . . . .”).
The district court was therefore well within its discretion to
conclude that S6 failed to meet its burden to establish that its
failure was harmless to Wing.

¶56 Likewise, S6 cannot demonstrate the district court abused
its discretion in concluding that S6 failed to meet its burden to
establish that any failure to disclose was warranted by good
cause. S6 again grounds this argument in the unproven
assumption that Wing knew its own value; as such, it fails for the
same reasons articulated above. Furthermore, S6 cannot show
good cause for its failure where S6 acknowledged that its initial
disclosure was insufficient yet it took no action to cure the
insufficiency.

10. S6 posits that Wing was aware of its own value because Arthur
testified during a deposition that he believed Wing’s value to be
$100 million. But Arthur’s statement does not express an opinion
of Wing’s value as of August 2016. Indeed, Arthur’s opinion as to
the $100 million valuation was related to a third party’s non-
binding January 2019 letter of intent to purchase Wing and was
couched strictly in terms of what Arthur believed Wing to be
worth “[a]t the time” of the offer.

20220977-CA 23 2024 UT App 105
S6 v. Wing Enterprises

¶57 In short, the district court did not err in concluding that S6
failed to satisfy its initial disclosure obligation because the
disclosure did not include a damages computation as required
by rule 26(a)(1)(C). The court also acted within its discretion
in excluding the disclosure as a sanction pursuant to rule
26(d)(4) because S6 did not carry its burden of demonstrating
that the failure to disclose was harmless or warranted by good
cause.

II. The District Court Correctly Granted Wing’s Motion for
Judgment as a Matter of Law

¶58 Next, S6 argues the district court erred in granting Wing’s
motion for judgment as a matter of law on S6’s promissory
estoppel claim. The district court concluded Wing was entitled to
judgment as a matter of law because the evidence adduced at trial
was legally insufficient to establish that Wing made “a reasonably
certain and definite promise” of equity to S6. In so ruling, S6
argues the court “misinterpreted Utah’s promissory estoppel law,
as well as the facts presented at trial.”

¶59 Rule 50 of the Utah Rules of Civil Procedure permits a
district court to grant judgment as a matter of law only where “the
court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party” on a claim or
defense. Utah R. Civ. P. 50(a)(1). When considering a rule 50
motion, the “court must look at the evidence and all reasonable
inferences in a light most favorable to the nonmoving party.”
Franklin v. Stevenson, 1999 UT 61, ¶ 6, 987 P.2d 22. We will affirm
a judgment as a matter of law when a review of the evidence in a
light most favorable to the non-moving party reveals that “there
is no competent evidence that would support a verdict in the non-
moving party’s favor.” Gables at Sterling Village Homeowners Ass’n
v. Castlewood-Sterling Village I, LLC, 2018 UT 04, ¶ 21, 417 P.3d 95
(quotation simplified).

20220977-CA 24 2024 UT App 105
S6 v. Wing Enterprises

A. Promissory Estoppel Requires a Reasonably Certain and
Definite Promise

¶60 S6 argues the district court erred in concluding that
promissory estoppel requires a “reasonably certain and definite
promise.” Relying on the definition of promissory estoppel
contained in section 90 of the Restatement (Second) of Contracts,
S6 contends that promissory estoppel may be established even
where the promise does not contain all the usual elements, so long
as the promise is reasonably certain and definite as to induce
reliance. S6 misapprehends the law.

¶61 The Utah Supreme Court first cited the definition of
promissory estoppel contained in section 90 in Tolboe Construction
Co. v. Staker Paving & Construction Co., 682 P.2d 843 (Utah 1984), a
case raising a promissory estoppel claim in a situation involving
a mistaken bid. Section 90 defines promissory estoppel as follows:

A promise which the promisor should reasonably
expect to induce action or forbearance on the part of
the promisee or a third person and which does
induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the
promise. The remedy granted for breach may be
limited as justice requires.

Restatement (Second) of Contracts § 90 (Am. L. Inst. 1981). After
quoting this definition, the Tolboe court articulated the elements
of a promissory estoppel claim under Utah law. 682 P.2d at 845–
46. It then analyzed the reasonableness of the plaintiff’s reliance
on the mistaken bid, finding that it was not sufficiently reasonable
to support a claim for promissory estoppel. Id. at 846–48.

¶62 Four years later, in Skanchy v. Calcados Ortope SA, 952 P.2d
1071 (Utah 1998), the Utah Supreme Court again cited the
definition of promissory estoppel contained in section 90 and

20220977-CA 25 2024 UT App 105
S6 v. Wing Enterprises

repeated the elements of a claim for promissory estoppel
articulated in Tolboe, see id. at 1076–77. Those elements are as
follows:

(1) [T]he plaintiff acted with prudence and in
reasonable reliance on a promise made by the
defendant; (2) the defendant knew that the plaintiff
had relied on the promise which the defendant
should reasonably expect to induce action or
forbearance on the part of the plaintiff or a third
person; (3) the defendant was aware of all material
facts; and (4) the plaintiff relied on the promise and
the reliance resulted in a loss to the plaintiff.

Id. at 1077.

¶63 A decade later, the Utah Supreme Court again addressed
promissory estoppel in the case of Nunley v. Westates Casing
Services, Inc., 1999 UT 100, 989 P.2d 1077. As in the instant case,
Nunley involved a plaintiff seeking to enforce an alleged promise
for stock in the defendant company. See id. ¶ 29. After identifying
the previously established elements of a claim for promissory
estoppel, the Nunley court analyzed what a plaintiff must show in
order to prove reasonable reliance on a promise made by the
defendant. It held that a “party claiming estoppel must present
evidence showing that an offer or promise was made on which
the party based his or her reliance” and that “the alleged promise
must be reasonably certain and definite.” Id. ¶ 36. Moreover, a
“claimant’s subjective understanding of the promissor’s
statements cannot, without more, support a promissory estoppel
claim.” Id. These requirements for establishing reasonable
reliance have been consistently applied by Utah courts in
subsequent cases. See, e.g., Youngblood v. Auto-Owners Ins. Co.,
2007 UT 28, ¶ 19, 158 P.3d 1088; Volonte v. Domo, Inc., 2023 UT App
25, ¶ 49, 528 P.3d 327; Lodge at Westgate Park City Resort & Spa
Condo. Ass’n v. Westgate Resorts Ltd., 2019 UT App 36, ¶ 26, 440

20220977-CA 26 2024 UT App 105
S6 v. Wing Enterprises

P.3d 793; Mitchell v. ReconTrust Co., 2016 UT App 88, ¶ 53, 373 P.3d
189, cert. denied, 387 P.3d 508 (Utah 2016).

¶64 S6 argues the district court erred in applying these
requirements here because Utah courts have adopted a “flexible
approach” to promissory estoppel. Under this flexible approach,
S6 maintains, promissory estoppel may be established even where
the promise is not certain or definite, so long as the promise is
sufficient to induce reliance.

¶65 But S6’s argument is not based on established Utah law.
Rather, S6 relies on two cases from other jurisdictions (Iowa and
Colorado) and the general notion that the definition contained in
section 90 infused a more “flexible approach” to the doctrine of
promissory estoppel. But the cases from Iowa and Colorado are
neither controlling nor persuasive in the face of controlling Utah
Supreme Court precedent to the contrary. And while the
restatement serves an appropriate advisory role to courts in
approaching unsettled areas of law, it does not supplant
controlling precedent. See Andreason v. Aetna Cas. & Surety Co., 848
P.2d 171, 175 (Utah Ct. App. 1993) (recognizing that section 90 has
been adopted as “useful guidance” (emphasis added)); see also
Young H2ORE LLC v. J&M Transmission LLC, 2024 UT App 10,
¶ 36, 543 P.3d 1264 (“Our supreme court has observed that . . .
restatements are persuasive authority[] that serve an appropriate
advisory role to courts in approaching unsettled areas of law.”
(emphasis added) (quotation simplified)); Grundberg v. Upjohn
Co., 813 P.2d 89, 95 (Utah 1991) (stating that the restatement “is
not binding on our decision . . . except insofar as we explicitly
adopt its various doctrinal principles”). And it certainly does not
allow Utah courts to disregard explicit requirements articulated
by our supreme court in the very same case in which the court had
only generally recognized the definition contained in section 90.
We accordingly agree with the district court that “the doctrine of
promissory estoppel as applied in Utah requires a reasonably
certain and definite promise.”

20220977-CA 27 2024 UT App 105
S6 v. Wing Enterprises

B. Wing Never Made a Reasonably Certain and Definite
Promise of Equity

¶66 With the correct legal standard in mind, we now turn to the
district court’s conclusion that there was “no evidence in the
record on which a reasonable jury could find that [Wing] made a
reasonably certain and definite promise of equity to S6.”

¶67 S6 contends the district court’s ruling was in error because
S6 presented facts at trial that provided a “legally sufficient
evidentiary basis” for the jury to find in favor of S6. Those facts
include the following:

• From the outset of the engagement when the Hero “15-15-
15 Model” was discussed, Wing knew, understood, and
promised that equity would be part of the deal.

• The Hero Agreement itself constituted a promise of equity.
That agreement, which Wing accepted by paying the initial
$15,000 fee, provided that the parties would arrive at a
commitment whereby Wing would grant the right to
purchase up to 15% of the outstanding stock.

• Throughout the engagement and based on Wing’s
promises of equity, S6 presented various proposals. In
response to those proposals, Wing continually reassured
S6 that an equity deal would get done.

• In August 2016, Stromberg met with Wing’s
representatives to make an equity proposal. Wing’s
representatives agreed that the proposal looked
reasonable, agreed to a 4% equity, and instructed one of
Wing’s executives to set up a meeting with Wing’s counsel
to memorialize the terms. Thereafter, Wing’s counsel
agreed that the proposal looked reasonable.

20220977-CA 28 2024 UT App 105
S6 v. Wing Enterprises

¶68 Even viewing the evidence in the light most favorable to S6
and drawing all reasonable inferences in S6’s favor, we do not
agree with S6 that these facts establish that Wing made a
reasonably certain and definite promise of equity. Although the
parties eventually agreed as to the amount of equity—4%—the
parties never agreed upon the “gates” that S6 would need to pass
in order to obtain that equity. See Nunley v. Westates Casing
Services, Inc., 1999 UT 100, ¶ 41, 989 P.2d 1077 (rejecting the
plaintiff’s promissory estoppel argument because “the parties
failed to come to terms on how, when, and on what terms” the
plaintiff could obtain the promised equity interest). Indeed, in the
words of Stromberg himself, “It was agreed that we’d get 4
percent, but we needed to negotiate what the basis was going to be,
which means how much organic growth we did not get—that
needed to be built in, and then also what the hurdles were that we
needed to clear.” (Emphasis added.)

¶69 Moreover, standing alone, Stromberg’s subjective belief
that an equity deal would get done is not sufficient to support
a promissory estoppel claim. See id. ¶ 36. That Stromberg faced
no pushback or disagreement after presenting his proposals does
not equate to a clear and definite promise from Wing to grant
equity along the terms identified by Stromberg. As just noted,
Stromberg had to admit at trial that the gates were never agreed
upon.

¶70 In sum, there is no dispute that Wing’s satisfaction of
never-defined gates was a prerequisite to S6 obtaining an equity
interest in Wing and that S6 and Wing never determined or
agreed upon a specific set of gates. Because these gates were never
agreed to, Wing, as a matter of law, did not make a promise of
equity to S6 that was sufficiently clear and definite to be
actionable on a theory of promissory estoppel. The district court
thus correctly granted Wing’s motion for judgment as a matter of
law.

20220977-CA 29 2024 UT App 105
S6 v. Wing Enterprises

III. The District Court’s Award of Costs Was Proper

¶71 As a final matter, S6 argues the district court’s award of
costs was improper because the award included expenses that are
not taxable as costs under rule 54(d) of the Utah Rules of Civil
Procedure. 11 Specifically, S6 challenges the court’s award of
(1) service costs, (2) certain deposition costs, and (3) costs for
pretrial and trial transcripts.

¶72 Rule 54(d)(1) provides that “costs should be allowed to the
prevailing party.” Utah R. Civ. P. 54(d)(1). “Utah courts have
consistently made a distinction between legitimate and taxable
costs and other expenses of litigation . . . .” Stevensen 3rd East, LC
v. Watts, 2009 UT App 137, ¶ 62, 210 P.3d 977 (quotation
simplified). “Costs are recoverable; litigation expenses, while
seemingly necessary, are not.” Stevenett v. Wal-Mart Stores, Inc.,
1999 UT App 80, ¶ 35, 977 P.2d 508.

¶73 Although rule 54(d)(1) does not define the term “costs,”
our supreme court has defined costs to mean “those fees which
are required to be paid to the court and to witnesses, and for
which the statutes authorize to be included in the judgment.”
Frampton v. Wilson, 605 P.2d 771, 774 (Utah 1980). “Thus, witness
fees, travel expenses, and service of process expenses are
chargeable as costs but only in accordance with the fee schedule
set by statute.” Stevensen, 2009 UT App 137, ¶ 63 (quotation

11. After granting Wing’s motion for judgment as a matter of law,
the district court determined that Wing had “prevailed on all
claims” and was therefore the “prevailing party.” See R.T. Nielson
Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119 (discussing the standard
for determining the prevailing party). S6 argues that if we reverse
any of the court’s decisions challenged above then we must also
vacate the court’s prevailing party determination. Because we
have affirmed each of the court’s rulings, we have no occasion to
reconsider the court’s prevailing party determination.

20220977-CA 30 2024 UT App 105
S6 v. Wing Enterprises

simplified). Deposition costs are also recoverable “as long as the
[district] court is persuaded that the depositions were taken in
good faith and, in the light of the circumstances, appeared to be
essential for the development and presentation of the case.” Id.
¶ 65 (quotation simplified).

¶74 We conclude that the district court did not abuse its
discretion in awarding Wing service costs. See id. ¶ 67 (upholding
a “service of process fees” award); cf. Frampton, 605 P.2d at 772–
74 (reversing an award for service cost where the cost “exceed[ed]
[that] allowed by statute”).

¶75 Likewise, the district court’s award of deposition costs was
proper. The court evaluated each of the complained-of
depositions and concluded that they were taken in good faith and
were essential to the case. S6 has pointed to nothing that would
indicate this determination is “so unreasonable as to manifest a
clear abuse of discretion.” See Ames v. Maas, 846 P.2d 468, 476
(Utah Ct. App. 1993) (quotation simplified). As a result, we will
not disturb it.

¶76 Lastly, we affirm the district court’s award of costs for
pretrial and trial transcripts. Wing requested transcripts for
certain proceedings wherein the court ruled on motions in limine
as well as a transcript for four days of the jury trial. The court
evaluated Wing’s request and concluded that an award of costs
for these transcripts was warranted because the hearings for
“[t]he motions in limine were important hearings that affected the
parties’ strategies and decisions for trial” and “[t]he trial
transcript was . . . important in light of the parties’ competing
motions for judgment as a matter of law.” Because the Utah Code
provides that transcripts may be properly taxed as costs, see Utah
Code § 78A-2-410 (“A transcript may not be taxed as costs, unless
the preparation of the transcript is ordered either by a party or by
the court.”), we discern no abuse in the court’s decision to award
Wing its requested costs for transcripts.

20220977-CA 31 2024 UT App 105
S6 v. Wing Enterprises

CONCLUSION

¶77 The district court did not err in dismissing S6’s implied-in-
fact contract and unjust enrichment claims prior to trial. The court
acted well within its broad discretion in both excluding Expert’s
opinion and in excluding S6’s damages evidence as a sanction for
S6’s failure to comply with the disclosure requirements outlined
in rule 26 of the Utah Rules of Civil Procedure. The court was also
correct in granting Wing’s post-trial motion for judgment as a
matter of law and vacating the jury’s verdict that found Wing
liable for promissory estoppel. The court’s award of costs was
likewise proper.

¶78 Affirmed.

20220977-CA 32 2024 UT App 105