Martinez v. Dale

2020 UT App 134

THE UTAH COURT OF APPEALS

KARLA MARTINEZ,
Appellant,
v.
JOHNNY DALE AND SHAMAN INC.,
Appellees.

Opinion
No. 20180160-CA
Filed October 1, 2020

Third District Court, Salt Lake Department
The Honorable Su Chon
No. 150907764

Daniel F. Bertch, Attorney for Appellant
Paul M. Belnap and John M. Zidow,
Attorneys for Appellees

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER concurred in
the result in part I and concurred in parts II and III.
JUDGE JILL M. POHLMAN concurred in the result, with
opinion, in part I and concurred in parts II and III.

ORME, Judge:

¶1 Karla Martinez appeals the district court’s summary
judgment order dismissing her complaint seeking to impose
Dramshop Act liability on Appellees for the death of her
daughter. We reverse and remand for further proceedings.
Martinez v. Dale

BACKGROUND 1

The Accident

¶2 In the early morning hours of July 7, 2014, Martinez’s
daughter (Daughter) was ejected from a vehicle near 500 South
in North Salt Lake City. Prior to the accident, Daughter and a
friend (Friend) had been drinking at a Salt Lake City
bar. Daughter was unable to drive, so Friend decided to
drive her home in Daughter’s car. Friend lost control and
rolled the vehicle, causing Daughter to be ejected. Daughter
suffered serious injuries that left her hospitalized for over a
month and eventually resulted in her death on January 3, 2015—
several months after the hospital discharged her to at-home care.
Friend was prosecuted criminally on charges arising from
this incident.

The Complaints

¶3 Relying on the Alcoholic Product Liability Act (the
Dramshop Act), see generally Utah Code Ann. §§ 32B-15-101
to -302 (LexisNexis 2011), Martinez filed a complaint against
Richard Noel d/b/a Bar-X on October 19, 2015. 2 At the time,
Martinez believed that Daughter and Friend had been drinking
at Bar-X. Martinez soon discovered, however, that they had
instead been drinking at a nearby bar, Johnny’s On Second, and
not Bar-X. Martinez subsequently moved to amend her

1. “[W]hen reviewing a grant of summary judgment, we recite
the disputed facts in a light most favorable to the nonmoving
party.” Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 5, 178 P.3d 343.

2. Martinez also named Friend as a defendant, but a settlement
was reached and the district court dismissed her claims against
him with prejudice.

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complaint to name “Johnny Dale, an individual residing in Utah,
d/b/a Johnny’s on Second” as a defendant and to dismiss Bar-X
from the suit. The district court granted the motion and
“received” the amended complaint on June 23, 2016. 3 Martinez
subsequently had a summons issued for April Dale, the
registered agent for “Johnny Dale . . . d/b/a Johnny’s on Second.”
The summons was then served on July 7, 2016, at April Dale’s
residential address and accepted by Johnny Dale.

¶4 Once again, however, Martinez failed to name the correct
party in her complaint. Unbeknownst to Martinez, at the time
she filed her first amended complaint, the true owner of the bar
was Shaman, Inc., which did business as “Johnny’s On Second,”
not Johnny Dale individually, although his ownership interest in
Shaman is no secret. See infra note 8. On September 30, 2016,
Martinez filed a second amended complaint naming “Johnny
Dale . . . and/or Shaman, Inc., d/b/a Johnny’s on Second.”
Shaman timely answered the complaint.

3. Appellees claim that this first amended complaint was not
filed on June 23, 2016, because on September 28, 2016, the district
court’s clerk made a minute entry stating that “new parties will
be entered in the registry after the filing of [t]he amended
complaint (granted 6/23/2016).” But the court found this
argument to be meritless, stating, “Ordinarily, when a party files
a motion to amend, the Amended Complaint is then
subsequently filed. It is very likely that the clerk did not see the
text of the order [noting that the amended complaint had been
‘received’] when the note was made. After the note was entered
in the docket, a Second Amended Complaint was filed.”
Furthermore, while the court used the word “received” in its
order, in context we understand the court to be saying that the
first amended complaint was deemed filed on June 23, 2016.

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Summary Judgment

¶5 The following August, Appellees moved for summary
judgment, asserting that Martinez’s claims were barred by the
applicable statute of limitations because her first amended
complaint was filed after July 7, 2016—the two-year anniversary
of Daughter’s accident. Appellees further argued that summary
judgment was appropriate because Martinez was “precluded
from presenting evidence of damages at trial due to her failure to
make any disclosures required by Rule 26(a) of the Utah Rules of
Civil Procedure.” Martinez opposed summary judgment,
arguing that she filed her first amended complaint naming
Johnny Dale before July 7, 2016, and that the second amended
complaint naming Shaman related back to this complaint. She
claimed it related back because using “Johnny Dale d/b/a
Johnny’s on Second” instead of Shaman was a mere misnomer
and that Shaman had sufficient notice of the action and would
not be prejudiced by the relation back. Martinez further argued
that under Utah Code section 78B-2-108, the statute of
limitations was tolled until Daughter’s death because Daughter
was left mentally incapacitated as a result of her injuries.

¶6 The district court granted summary judgment to
Appellees and dismissed the case. The court ruled that Martinez
filed her second amended complaint after the statute of
limitations had run and that it did not relate back to the first
amended complaint. It determined that relation back would be
improper because there was no “identity of interest” between
Johnny Dale, who accepted the first amended complaint, and
Shaman.

¶7 The court also ruled that the statute of limitations ran
from the date of Daughter’s injury and that it was not tolled by
Daughter’s alleged incapacity. The court concluded that because
the information Martinez provided was “inconclusive as to
whether or not [Daughter] was incompetent,” it could not

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determine “that her incompetence tolled the statute of
limitations.” Having granted the motion on these grounds, the
district court declined to address Appellees’ rule 26 argument.
Martinez appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 This appeal presents three issues. First, Martinez argues
that the district court erred in ruling that her second amended
complaint did not relate back to her first amended complaint
and that the court applied the incorrect standard in so ruling.
Second, Martinez contends that there was “at least a genuine
issue of material fact regarding [Daughter’s] ‘mental
incompetency’” and that the court therefore erred in ruling as a
matter of law that the statute of limitations had not been tolled.
Finally, Appellees assert that, even if we are otherwise inclined
to reverse, the court’s ruling can be upheld on grounds not
reached by the court, namely that Martinez failed to make
disclosures required by rule 26 of the Utah Rules of Civil
Procedure and therefore that she “cannot make a prima facie case
for dram shop liability at trial.”

¶9 Concerning the first two issues, “[w]e review summary
judgments for correctness, giving no deference to the trial court’s
decision.” Bahr v. Imus, 2011 UT 19, ¶ 16, 250 P.3d 56. Even in
fact-intensive cases, appellate courts make their “own decision
on the correctness of summary judgment, reviewing the same
paper record that was before the trial court to decide whether
there are genuine issues of material fact and whether the moving
party is entitled to judgment as a matter of law.” Id. ¶ 17.

¶10 Concerning the third issue, “[i]nterpretation of the Utah
Rules of Civil Procedure is a question of law that we review for
correctness.” Pete v. Youngblood, 2006 UT App 303, ¶ 7, 141 P.3d
629. But “we grant district courts a great deal of deference in

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matters of discovery.” Dahl v. Dahl, 2015 UT 79, ¶ 63, 459 P.3d
276 (amended opinion).

ANALYSIS

I. Relation Back

¶11 Pursuant to the Dramshop Act’s statute of limitations,
Martinez was required to commence an action within two years
of July 7, 2014—the date of Daughter’s accident. See Utah Code
Ann. § 32B-15-301(3) (LexisNexis 2011). While Martinez filed her
first two complaints within the statute of limitations, she did not
file her second amended complaint—in which she finally named
Shaman, the correct party—until September 30, 2016. Martinez
argues that under rule 15(c) of the Utah Rules of Civil Procedure,
the district court erred in ruling that her second amended
complaint did not relate back to her first amended complaint.
We agree.

¶12 At the relevant time, rule 15(c) provided that “[w]henever
the claim or defense asserted in the amended pleading arose out
of the conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading, the amendment relates
back to the date of the original pleading.” Utah R. Civ. P. 15(c)
(2015). 4 Although rule 15(c) at the time “did not expressly
contemplate the substitution of parties,” our Supreme Court

4. Rule 15(c) was amended effective November 1, 2016, but
because “matters of procedure are governed by the law in effect
at the time of the underlying procedural act,” we apply rule 15(c)
as it existed at the time Martinez filed her complaints. See Howick
v. Salt Lake City Corp., 2013 UT App 218, ¶ 38, 310 P.3d 1220
(quotation simplified).

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recognized an exception to this rule when “it can be assumed or
proved the relation back is not prejudicial.” 5 2010-1
RADC/CADC Venture, LLC v. Dos Lagos, LLC, 2017 UT 29, ¶ 19,
408 P.3d 313 (quotation simplified). This exception most often
applies “in two types of cases: (1) in so called misnomer cases
and (2) where there is a true identity of interest.” Ottens v.
McNeil, 2010 UT App 237, ¶ 43, 239 P.3d 308 (quotation
simplified).

¶13 Misnomer cases are those where “the correct party
was served so that the party before the court is the one plaintiff
intended to sue, but the name or description of the party in the
complaint is deficient in some respect.” Wilcox v. Geneva Rock
Corp., 911 P.2d 367, 370 (Utah 1996) (quotation simplified).
Generally, “if the body of the complaint correctly identifies
the party, or if the proper person has actually been served
with process, courts . . . will allow an amendment under rule
15 to correct technical defects in the caption.” Tan v. Ohio Cas.
Ins. Co., 2007 UT App 93, ¶ 12, 157 P.3d 367 (quotation
simplified).

¶14 Identity-of-interest cases are those where the intended
party was not served, but service was effected on another who
shared an “identity of interest” with the intended party so that
the “real parties in interest would be sufficiently alerted to the
proceedings so that no prejudice would result from a party’s
addition.” 2010-1 RADC/CADC Venture, 2017 UT 29, ¶ 19
(quotation simplified).

5. “[T]he current version of rule 15(c) expressly provides that an
amended pleading that adds, substitutes, or changes the name of
a party relates back to the date of the original pleading under
certain circumstances.” 2010-1 RADC/CADC Venture, LLC v. Dos
Lagos, LLC, 2017 UT 29, ¶ 19 n.5, 408 P.3d 313. See Utah R. Civ. P.
15(c)(3) (2020).

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¶15 Both situations are governed by rule 15(c) of the Utah
Rules of Civil Procedure, with “the key inquiry center[ed] on
whether the amendment will prejudice the nonmoving party.”
Id. ¶ 19 n.6. While the earlier version of rule 15(c) did not
explicitly provide a time frame in which the correct party needed
to receive notice of the action to not be prejudiced, Utah courts
have generally followed the requirement of rule 15(c)(3) of the
Federal Rules of Civil Procedure, pursuant to which the correct
party must have received notice of the action within 120 days
after the original complaint was filed. See Tan, 2007 UT App 93,
¶¶ 11–15.

¶16 Often, cases will cleanly fall into one of these categories.
However, these two types of cases—misnomer and identity of
interest—are not meant to be rigid pigeonholes in which a case
may qualify for only one or the other. They are best understood
as analytical tools to help courts determine whether allowing
relation back will prejudice a party, which is the ultimate
question under rule 15(c). See Utah. R. Civ. P. 15(c).

¶17 The present case could possibly fall under either type of
case. It has elements of both but is not a classic example of either.
It is, however, more akin to a misnomer case than an
identity-of-interest case, as the proper party ended up with the
summons and complaint, was provided notice before the statute
of limitations had run, and appeared in and defended the action.
See Wilcox, 911 P.2d at 370. See also Penrose v. Ross, 2003 UT App
157, ¶ 12, 71 P.3d 631 (“A misnomer is involved when the correct
party was served so that the party before the court is the one
plaintiff intended to sue, but the name or description of the party
in the complaint is deficient in some respect.”) (quotation
simplified).

¶18 When Martinez filed her first amended complaint, she
had the summons issued to April Dale, who actually was the
registered agent for Shaman, although service was recited as

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being on April as agent for “Johnny Dale . . . d/b/a Johnny’s on
Second.” Shaman’s failure to object to improper service waived
any future challenge as to whether this service was appropriate.
See Utah R. Civ. P. 12(h). See also State v. All Real Prop., Residence
& Appurtenances, 2005 UT 90, ¶ 8, 127 P.3d 693 (“[I]f a party fails
to assert [an insufficient service] defense in the first responsive
pleading or by a motion filed prior to the first responsive
pleading, the defense is waived.”). Thus, because Shaman
appeared in the action and failed to raise this defense, it may be
deemed to have been properly served through its registered
agent, April Dale. 6

¶19 At the time service was effected, Martinez was unaware
that instead of naming “Johnny Dale . . . d/b/a Johnny’s on
Second” in her complaint, she should have named “Shaman,
Inc., d/b/a Johnny’s on Second.” But April Dale was the
registered agent for Shaman and presumably received the
summons and complaint from Johnny Dale when it was left with
Johnny at their residence. 7 Thus, Martinez’s only error was a

6. April Dale is the registered agent for Shaman, which does
business as “Johnny’s On Second.” Given the lack of a timely
objection to the sufficiency of service of process, we have no
occasion to consider whether service in accordance with rule
4(d)(1)(A) of the Utah Rules of Civil Procedure is an effective
method of serving a registered agent, when a copy of the
summons and complaint is left with “a person of suitable age
and discretion who resides” at the registered agent’s residence—
in this case, none other than Johnny Dale. See infra note 7.

7. At one point the district court stated that no proof of this
service was filed. It is clear in the record, however, that this first
amended complaint was served. A copy of the proof of service
was included in Appellees’ reply memorandum in support of
(continued…)

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technical one concerning the name of the entity that was doing
business as “Johnny’s On Second.” But that entity’s registered
agent was served—or at least may properly be deemed to have
been served. And the correct party, Shaman, received the
summons and complaint following service on its registered
agent. This is confirmed by the fact that Shaman’s counsel
emailed Martinez on August 8, 2016, informing her that she had
made an error in captioning her complaint. Nonetheless, Shaman
appeared and defended itself. And, via the second amended
complaint, the caption was fixed.

¶20 Martinez always intended to sue a single party, that being
whoever was responsible for the bar known as “Johnny’s On
Second,” and she simply erred in naming the owner of the bar.
See Tan v. Ohio Cas. Ins. Co., 2007 UT App 93, ¶¶ 16–17, 157 P.3d
367 (holding that, among other reasons, an identity-of-interest
analysis was not “applicable,” although misnomer analysis was,

(…continued)
their motion for summary judgment. Additionally, during one
hearing, Martinez represented to the court that service had been
properly effected, and Appellees did not challenge the
statement. Most importantly, Appellees did not assert
insufficiency of service of process as a defense in their
responsive pleadings, thereby waiving any argument of
insufficient service of process. See Utah R. Civ. P. 12(h).
Whether service can be effected on an agent at the agent’s
residence by leaving the summons and complaint “with a person
of suitable age and discretion,” see id. R. 4(d)(1)(A), is an
interesting question that arises from the acceptance of service by
Johnny Dale for April Dale, the registered agent of Shaman. But
because, as indicated, Appellees did not object to the alleged
insufficient service of process, they waived this possible
objection, and thus we need not further consider the question.
See id. R. 12(h).

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because “there was only one entity to sue,” and plaintiff’s initial
complaint merely misnamed the defendant).

¶21 Having determined that Martinez’s failure to properly
name Shaman in her first amended complaint was a simple
technical defect and that Shaman received the summons and
complaint when it was presumably passed along by April Dale,
it is unnecessary to undertake an identity-of-interest analysis
between Johnny Dale and Shaman, although we suspect it
would lead to the same conclusion. 8 We now turn to consider
whether under rule 15(c) Martinez’s second amended complaint,
correcting the name of the entity responsible for Johnny’s On
Second, should be allowed to relate back.

¶22 First, for relation back to be appropriate, Martinez’s
second amended complaint must assert a claim that “arose out
of the conduct, transaction, or occurrence set out . . . in the
original pleading.” Utah R. Civ. P. 15(c)(2). Martinez’s first
amended complaint alleged Dramshop Act liability against
“Johnny Dale . . . d/b/a Johnny’s on Second” stemming from
Daughter’s July 7, 2014 car accident. And her second amended
complaint alleged the same Dramshop Act liability arising from
the same incident against “Johnny Dale . . . and/or Shaman, Inc.,

8. A simple public records search provides ample evidence that
Johnny Dale is connected to Shaman in a very meaningful way.
Those records show that in 2006 a John Dale, presumably Johnny
Dale, signed an application for Johnny’s On Second as the
registered agent for Johnny’s On Second and the owner of
Shaman. In 2011, the registered agent was changed from John
Dale to April Dale but was subsequently changed back to John
Dale on July 7, 2018. This evidence was not in the record, and we
do not rely on it as the basis for our opinion. Still, this publicly
available information assures us that our opinion does not work
a miscarriage of justice.

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d/b/a Johnny’s on Second.” Thus, Martinez’s second amended
complaint satisfies this aspect of rule 15(c)(2).

¶23 Second, Shaman had to have received “sufficient notice of
[Martinez’s] action so that relation back is not prejudicial.” See
2010-1 RADC/CADC Venture, LLC v. Dos Lagos, LLC, 2017 UT 29,
¶ 19 n.6, 408 P.3d 313. Martinez filed her first amended
complaint on June 23, 2016, and Shaman filed an answer on
October 10, 2016, within the 120-day period. This demonstrates
that Shaman had actual notice of the action within the 120-day
period after Martinez filed her first amended complaint. See Tan,
2007 UT App 93, ¶¶ 11–15 (stating that a party “was not
prejudiced by the correction in the amended complaint because
it was served with the amended complaint within 120 days of
the original filing date, as permitted by rule 4(b) of the Utah
Rules of Civil Procedure, after the applicable statute of
limitations had run”). Additionally, Shaman’s counsel’s email
sent on August 8, 2016, informing Martinez of the incorrect
name on the complaint, further shows that Shaman knew about
the action well within the 120-day period.

¶24 In light of the fact that it had actual notice within 120 days
of Martinez’s first amended complaint, Shaman has not
shown how it would be prejudiced in defending Martinez’s
Dramshop Act claim against it. Thus, the second amended
complaint relates back to the first amended complaint because
the error in naming the entity doing business as Johnny’s On
Second was simply “a technical defect in the naming or
identification” of Shaman, see Penrose v. Ross, 2003 UT App 157,
¶ 12, 71 P.3d 631, and Shaman was “sufficiently alerted to the
proceedings” within 120 days of Martinez’s first amended
complaint and would not be prejudiced by defending the action,
see Wilcox v. Geneva Rock Corp., 911 P.2d 367, 370 (Utah 1996)
(quotation simplified).

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II. Tolling of the Statute of Limitations

¶25 Having determined that relation back is proper and that
the statute of limitations did not bar Martinez’s second amended
complaint, we do not necessarily need to consider whether
Daughter’s alleged mental incompetency tolled the statute of
limitations. We think it best to reach this issue, however, because
it provides an additional basis on which our reversal can be
premised.

¶26 Martinez argues that the district court erred in rejecting
her argument that the Dramshop Act’s statute of limitations was
tolled until Daughter’s death on January 3, 2015, because
Daughter was incompetent from the time of the accident up until
her death. Utah Code section 78B-2-108 states that “[d]uring the
time [a] person is . . . incompetent, the statute of limitations for a
cause of action other than for the recovery of real property may
not run.” Utah Code Ann. § 78B-2-108 (LexisNexis 2011). Thus,
Martinez contends that the Dramshop Act’s statute of limitations
expired on January 3, 2017—two years after Daughter’s death—
and she filed her second amended complaint well within that
time frame, having filed it on September 30, 2016.

¶27 Our Supreme Court has held that section 78B-2-108 is
intended “to relieve from the strict time restrictions people who
are unable to protect their legal rights because of an overall
inability to function in society.” O'Neal v. Division of Family
Services, 821 P.2d 1139, 1142 (Utah 1991) (emphasis added)
(quotation otherwise simplified). To show this inability, it must
be established that a plaintiff—or as here, a potential plaintiff—
was “unable to manage [her] business affairs or estate, or to
comprehend [her] legal rights or liabilities.” Id. (quotation
simplified). “Nonmedical evidence” in the form of affidavits
from family members and friends attesting to an individual’s
“mental incompetency” may be considered in this analysis. Ellis
v. Estate of Ellis, 2007 UT 77, ¶ 36, 169 P.3d 441. “[E]xpert

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testimony, medical records, and a medical diagnosis, while
potentially helpful, are not necessary under the statute.” Id. As
such, “‘mental incompetency’ under section [78B-2-108] is a legal
disability” that can be shown by lay affidavits. Id. (emphasis in
original).

¶28 In Ellis, our Supreme Court held that lay affidavits from
family members of Mrs. Ellis, attesting to her mental
incompetence, “were sufficient to establish a genuine issue of
material fact [to] send the matter to a jury” because the affidavits
described Mrs. Ellis’s “inability to take care of herself after the
accident.” Id. ¶ 32. This is not much different from the present
case. Here, Martinez provided an affidavit stating that she had to
stop working to care for Daughter, “had to supervise her 24/7,”
and was unable “to leave her at all without direct supervision.”
She also stated that after the tragic accident, Daughter “spoke
and acted like a child,” “was unable to hold a normal
conversation,” “was unable to handle interactions with other
people,” “was unable to leave the house by herself,” was not
capable of driving, and could not “handle” or “understand” her
financial, medical, or legal affairs. This affidavit was “sufficient
to establish a genuine issue of material fact,” requiring “the
matter to [be sent] to a jury,” as it tends to show that Daughter
had an overall inability to function in society. See id. ¶ 32.

¶29 The district court did not give Martinez’s affidavit its due.
Instead, it focused primarily on medical records, which it
acknowledged it was unable to fully comprehend. The court
ruled that because Daughter “understood that she had a legal
case regarding the accident” and because she wanted to return to
work and could “understand some things,” it was “inconclusive
as to whether or not [Daughter] was incompetent.” On this basis,
the court ruled against Martinez. But lack of conclusivity in the
summary judgment context typically calls for later resolution by
the fact finder—not making a decision as a matter of law. This
case is no exception.

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¶30 The court placed too much importance on Daughter’s
expressed understanding and desires, limited though they were.
When dealing with mental incompetency under section
78B-2-108, the questions to be asked are whether the individual
is able “to manage [her] business affairs or estate, or to
comprehend [her] legal rights or liabilities.” O'Neal, 821 P.2d at
1142 (emphasis added) (quotation otherwise simplified). The
district court simply focused on Daughter’s desire to go to work,
not on her actual ability to return to work, and on her simple
understanding that there was a “legal case,” not on her ability to
comprehend her “legal rights” and maximize her opportunity to
have them vindicated. The court also indicated that “no doctor
stated that she was incompetent.” But as indicated, this was an
incorrect basis on which to rule on Daughter’s incompetency
because, as our Supreme Court has held, one need not have a
doctor opine on incompetency to toll the statute as it is a “legal
disability” with which we are concerned, which does not present
a purely medical question. See Ellis, 2007 UT 77, ¶ 36 (emphasis
in original).

¶31 Ultimately, the district court did not properly analyze the
evidence for purposes of summary judgment when it found a
material fact to be “inconclusive” but nonetheless granted
Appellees’ motion for summary judgment. Instead, the
inconclusive nature of the evidence precluded summary
judgment, as the issue was legitimately in dispute because of
Martinez’s affidavit. Thus, reversal is also warranted on this
basis, because of the existence of disputes of material fact
concerning whether the statute should have been tolled as a
result of Daughter’s claimed incapacity between the time of the
accident and her eventual death.

III. Discovery Sanctions

¶32 Appellees assert that Martinez failed to make disclosures
required by rule 26 of the Utah Rules of Civil Procedure and

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“therefore cannot make a prima facie case for dram shop liability
at trial,” as rule 26 prohibited her from using the evidence she
belatedly disclosed. While Appellees argued this in their motion
for summary judgment, the district court declined to address the
argument and, as explained above, granted the motion on other
grounds. Appellees now ask us to affirm the district court’s
ruling on this unreached, alternative ground, which we could
concededly do in an appropriate case. See Bailey v. Bayles, 2002 UT
58, ¶ 10, 52 P.3d 1158 (“Appellate courts may affirm the
judgment appealed from if it is sustainable on any legal ground
or theory apparent on the record, even though such ground or
theory differs from that stated by the trial court to be the basis of
its ruling or action.”) (quotation simplified).

¶33 While Appellees are correct that Martinez did not serve
her disclosures in a timely manner, we are disinclined to affirm
the summary judgment against her on this basis. “Because trial
courts must deal first hand with the parties and the discovery
process,” this is a classic call for the district court and a matter
for its sound discretion. See Morton v. Continental Baking Co., 938
P.2d 271, 274 (Utah 1997) (quotation simplified). If the district
court were to find here, as we think possible, that there was no
real prejudice to Appellees as a result of Martinez’s failure, it
would not have to dismiss the complaint. Utah R. Civ. P. 26(d)(4)
(Any “party [that] fails to disclose or to supplement timely a
disclosure or response to discovery . . . 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.”) (emphasis added).

¶34 Thus, we decline to affirm the district court’s ruling on
this unreached, alternative basis.

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CONCLUSION

¶35 The district court erred in ruling that Martinez’s second
amended complaint did not relate back to her first amended
complaint under the version of rule 15(c) of the Utah Rules of
Civil Procedure in effect at the time. Furthermore, the court
erred when it granted summary judgment in Appellees’ favor
when there was a genuine issue of material fact as to Daughter’s
incompetency tolling the statute of limitations. We therefore
reverse and remand to the district court for trial or such other
proceedings as may now be in order.

POHLMAN, Judge (concurring):

¶36 I agree with the judgment of the court and with much of
its analysis, but I write separately to identify a point of
disagreement in Part I. Specifically, I agree with Judge Orme that
the second amended complaint naming Shaman relates back to
the first amended complaint naming Johnny Dale, but I disagree
that the naming of Dale was akin to a misnomer.

¶37 “A misnomer is involved when the correct party was
served so that the party before the court is the one plaintiff
intended to sue, but the name or description of the party in the
complaint is deficient in some respect.” Wilcox v. Geneva Rock
Corp., 911 P.2d 367, 370 (Utah 1996) (quotation simplified). That
is not what happened here. When Martinez filed her first
amended complaint, she named Johnny Dale, an individual.
That was the person she intended to sue, and she did not make a
technical mistake in naming him; rather, her mistake was a
substantive one. She should have named Shaman Inc.—a
different and distinct entity. And while it is true that Shaman
“ended up with” the summons and complaint, the correct party
was not served.

20180160-CA 17 2020 UT App 134
Martinez v. Dale

¶38 Despite my disagreement with Judge Orme’s analysis on
that point, I agree that rule 15(c) of the Utah Rules of Civil
Procedure is satisfied here. I share his view that the misnomer
and identity-of-interest tests “are not meant to be rigid
pigeonholes in which a case may qualify for only one or the
other.” Supra ¶ 16. Instead, the “ultimate question” under rule
15(c) is whether “allowing relation back will prejudice a party.”
Id.; see also 2010-1 RADC/CADC Venture, LLC v. Dos Lagos, LLC,
2017 UT 29, ¶ 19, 408 P.3d 313 (framing the relevant question as
whether “the real parties in interest would be sufficiently alerted
to the proceedings so that no prejudice would result from a
party’s addition” (quotation simplified)). And for all the reasons
he identifies, I have no trouble concluding that in this case the
answer to that question is no. See supra ¶ 23.

20180160-CA 18 2020 UT App 134