Pilot v. Hill

2018 UT App 105

THE UTAH COURT OF APPEALS

ROBERT PILOT,
Appellant,
v.
EARL N. HILL,
Appellee.

Opinion
No. 20160959-CA
Filed June 7, 2018

Third District Court, Silver Summit Department
The Honorable Kara Pettit
No. 140500187

Karra J. Porter, Kristen C. Kiburtz, and Edward T.
Wells, Attorneys for Appellant
Kristin A. VanOrman, S. Spencer Brown, and Jessica
J. Johnston, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE A. TOOMEY and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1 In an effort to promote proportional discovery practices,
Utah adopted tier designations in 2011 whereby parties must
plead an amount of damages that correlates to one of three
specified tiers. These tier designations have far-reaching effects
on how parties handle discovery during a case. Corresponding
with this, tier designations also impose limits on the amount of
damages a plaintiff can ultimately recover. Robert Pilot seeks to
circumvent those intended effects after trial by amending his
original tier designation from Tier 2 to Tier 3, a change that
would increase the amount of damages he is entitled to recover.
We affirm the trial court’s denial of his motion to amend.
Pilot v. Hill

BACKGROUND

¶2 Earl N. Hill’s vehicle rear-ended Pilot’s vehicle, causing
Pilot personal injuries. Pilot filed suit and specifically pleaded,
“This is a Tier II case.” A Tier 2 designation sets the range of
damages between $50,000 and less than $300,000, Utah R. Civ. P.
26(c)(3), and limits the amount of discovery the parties may
conduct, id. R. 26(c)(5).

¶3 Before trial, Pilot’s expert economist estimated that Pilot’s
total economic damages were close to $1,000,000 and that his
future wage loss was approximately $634,000. Nevertheless, the
parties completed discovery and proceeded to trial with no
amendments to the original pleadings.

¶4 During a pretrial conference, the trial court attempted to
address the tier designation while working through the jury
instructions. The court asked, “And then this last thing just to
make sure that I guess I’m understanding how the parties
anticipate approaching the Tier 2 aspect of it. That you just
present your evidence and then if they come up with a verdict of
$300,000 or more, it gets reduced?” Hill’s counsel responded,
“Right,” while Pilot’s counsel responded, “Yeah, I think we deal
with that after trial.”

¶5 At trial, Pilot’s expert testified as expected with no
objection. The jury awarded $640,989 in damages to Pilot. Pilot
then filed a motion to amend his pleading under rule 15(b) of the
Utah Rules of Civil Procedure, arguing that “the issue of
damages exceeding $299,999 was tried by implied consent.” The
trial court denied the motion, ruling that Hill “had no reason to
believe the evidence presented by [Pilot’s] expert was being
introduced to allow [Pilot] to recover damages above $300,000,
and was not simply introduced to establish what, if any, injuries
[Pilot] suffered for purposes of recovering damages up to
$299,999.”

20160959-CA 2 2018 UT App 105
Pilot v. Hill

¶6 Pilot appeals.

ISSUE AND STANDARD OF REVIEW

¶7 Pilot challenges the trial court’s denial of his rule 15(b)
motion to amend pleadings.

Our review of the trial court’s application of rule
15(b) is a legal question that we review for
correctness. However, because the trial court’s
determination of whether the issues were tried
with all parties’ implied consent is highly fact
intensive, we grant the trial court a fairly broad
measure of discretion in making that determination
under a given set of facts.

Keller v. Southwood N. Med. Pavilion, Inc., 959 P.2d 102, 105 (Utah
1998) (cleaned up).

ANALYSIS

¶8 Pilot argues that the plain language of rule 15(b) and
supporting case law are contrary to the trial court’s decision to
allow Hill to “try an issue without raising an objection . . . and
then claim that the pleadings cannot be amended to conform to
the evidence presented.” We disagree with Pilot’s
characterization of the issue and, ultimately, with his argument.

¶9 Rule 15 of the Utah Rules of Civil Procedure governs
amendments and supplements to pleadings. Rule 15(b)
specifically governs amendments to pleadings during and after
trial. See Utah R. Civ. P. 15(b). “Rule 15(b) has two parts, one
mandatory and one discretionary.” Hill v. Estate of Allred, 2009
UT 28, ¶ 47, 216 P.3d 929. At issue is the mandatory part of the
rule, which states,

20160959-CA 3 2018 UT App 105
Pilot v. Hill

When an issue not raised in the pleadings is tried
by the parties’ express or implied consent, it must
be treated in all respects as if raised in the
pleadings. A party may move—at any time, even
after judgment—to amend the pleadings to
conform them to the evidence and to raise an
unpleaded issue. But failure to amend does not
affect the result of the trial of that issue.

Utah R. Civ. P. 15(b)(1).

¶10 Rule 15(b) cannot be applied in these circumstances. Here,
the tier designation and the corresponding range of the amount
of damages were pleaded issues, not unpleaded issues.

¶11 We begin our analysis by examining the term “unpleaded
issue.” “When we interpret a procedural rule, we do so
according to our general rules of statutory construction.”
Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 18,
238 P.3d 1035. We therefore start by examining the ordinary
meaning of “unpleaded issue” and only continue the inquiry
where the ordinary meaning is ambiguous. See id. ¶¶ 18–19. An
issue is “[a] point in dispute between two or more parties.” Issue,
Black’s Law Dictionary (10th ed. 2014). An issue is unpleaded if
it is “not raised in the pleadings.” See Utah R. Civ. P. 15(b)(1).

¶12 Under this framework, the tier designation that Pilot
specified in his complaint was, by the ordinary meaning of the
term, a pleaded issue. Neither party disagrees that the amount of
damages or the tier designation are points of dispute—that is,
issues—in this case. Pilot’s pleading designated the case as Tier
2. Because Tier 2 damages were a point of dispute, and because
the tier was raised in the pleading, Pilot’s tier designation was a
pleaded issue.

¶13 Rule 15(b) applies only to “issue[s] not raised in the
pleadings.” Id. Because Pilot pleaded that the case was Tier 2, the

20160959-CA 4 2018 UT App 105
Pilot v. Hill

issue was pleaded, not unpleaded, and rule 15(b) is inapplicable
to amend the tier designation.

¶14 We also note that the rules characterize tier designations
as issues that a party pleads. Rule 8(a) of the Utah Rules of Civil
Procedure describes pleadings and states, “A party who claims
damages but does not plead an amount must plead that the
damages are such as to qualify for a specified tier[.]” Id. R. 8(a).
Thus, the rules treat tier designations as issues that must be
included in the pleadings. A party is not free to fail to plead a
specified tier. Rule 8(a) further states, “A pleading that qualifies
for tier 1 or tier 2 discovery constitutes a waiver of any right to
recover damages above the tier limits specified in Rule 26(c)(3),
unless the pleading is amended under Rule 15.” Id. Accordingly,
not only is a tier designation itself described as a pleaded issue,
but pleading a particular tier waives designation to another tier.
Although that waiver is subject to amendment under rule 15,
rule 15(b) is inapplicable to that express waiver because, as
explained above, that rule applies only to unpleaded issues. 1

1. We base our decision solely upon the plain language of rules 8
and 15. However, we also observe that the Utah Supreme
Court’s Advisory Committee on the Rules of Civil Procedure’s
explanation regarding rule 8 supports our conclusion. The
Advisory Committee Notes to rule 8 state:
The amount of damages pled will determine the
amount of standard discovery available under Rule
26(c)(3). It would be unfair for a party to plead a
smaller amount of damages in order to take
advantage of the streamlined discovery and then
seek to recover greater damages. Thus, Rule 8
provides that a party waives its right to recover
damages in excess of the maximums provided for
that tier unless the pleading is amended.
(continued…)

20160959-CA 5 2018 UT App 105
Pilot v. Hill

¶15 Despite Pilot’s attempt to cast Tier 2 and Tier 3 damages
as separate and simultaneously triable issues, Pilot excluded the
possibility of Tier 3 damages by expressly pleading that the case
was Tier 2. Because Pilot excluded Tier 3 damages in his
pleadings, the trial court acted well within its broad discretion,
see Keller v. Southwood N. Med. Pavilion, Inc., 959 P.2d 102, 105
(Utah 1998), to conclude that Hill had “no reason to believe a

(…continued)
Utah R. Civ. P. 8 advisory committee notes. Further, on a
Frequently Asked Questions page on the Utah Court’s website,
the Committee was asked, “What if a jury awards an amount in
excess of the tier limits? May a motion to amend to conform to
the evidence be made at that point?” Advisory Committee FAQs,
Utah Courts Civil Procedures Committee, http://www.utcourts
.gov/committees/civproc/Effect%20of%20discovery%20tier%20
on%20limiting%20the%20judgmentpdf [https://perma.cc/5QSV-
USJV]. The Advisory Committee responded,
No. Under Rule 8(a), a party who pleads the case
as a tier 1 or tier 2 case has waived any right to
recover damages above the applicable tier limits.
Thus, unless the party has appropriately amended
its pleading pursuant to Rule 15, the tier limit
restricts the amount of damages that can be
awarded. An award in excess of the tier must be
reduced by the court to the applicable tier limit.
The choice of a lower tier confers the benefit of no
significant discovery in return for the party’s
giving up the chance to obtain greater damages. It
would be inequitable if a party were allowed to
plead a case into tier 1, prevent the defense from
conducting the discovery befitting a larger claim,
and then recover an amount in excess of the tier
limit.
Id.

20160959-CA 6 2018 UT App 105
Pilot v. Hill

new issue [was] being injected into the case,” and thus could not
“be said to have impliedly consented” to trying the case at Tier 3,
see Hill v. Estate of Allred, 2009 UT 28, ¶ 48, 216 P.3d 929 (cleaned
up).

CONCLUSION

¶16 In short, we conclude that a tier designation is a pleaded
issue. Because rule 15(b) applies only to amend unpleaded
issues, the trial court did not abuse its discretion in denying
Pilot’s motion.

¶17 Affirmed.

20160959-CA 7 2018 UT App 105