R.O.A. General, Inc. v. Chung Ji Dai, 327 P.3d 1233

In 1999 the Dais bought commercial property with an existing outdoor advertising sign subject to a prior sign lease; Stewart Title issued title insurance and denied the Dais' claim that the lease was a covered defect.
ROA sued to establish the Sign Lease’s validity; the trial court ruled the lease valid in 2002, prompting the Dais to file a third-party claim against Stewart Title in 2005. Stewart Title answered in 2005.
The case largely lay dormant for years; the trial court admonished the Dais in 2011 for lack of prosecution but entered a scheduling order with an expert-disclosure deadline of March 16, 2012.
The bankruptcy trustee was briefly substituted as plaintiff and auctioned the claim in February 2012; the Dais repurchased the cause of action but did not seek an extension and failed to disclose an expert by March 16, 2012.
Counsel appeared May 7, 2012 and the Dais served an expert report May 16, 2012; Stewart Title moved to strike the untimely report, move to dismiss for failure to prosecute, and for summary judgment on inability to prove damages. The trial court struck the report, dismissed for failure to prosecute, and entered summary judgment for Stewart Title. The Dais appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion by striking the Dais' untimely expert report under Utah R. Civ. P. 37(h)	Exclusion requires a finding of willfulness/bad faith; the Dais argued their delays were excused by bankruptcy substitution and circumstances	Stewart Title argued rule 37(h) mandates exclusion of untimely expert reports unless harmless or good cause shown; Dais showed neither prejudice nor justification	Court affirmed exclusion: automatic/mandatory unless justified or harmless; Dais neither moved for extension nor showed good cause or harmlessness, and exclusion was not an abuse of discretion
Whether dismissal for failure to prosecute was improper and/or moot in light of summary judgment	Dais argued dismissal was an abuse of discretion	Stewart Title argued dismissal was within trial court's discretion and, in any event, summary judgment on inability to prove damages (due to excluded expert) would moot reversal of dismissal	Appeal of dismissal is moot: even if dismissal reversed, summary judgment (granted because Dais stipulated they could not prove damages without the expert) would preclude relief; therefore affirming exclusion and summary judgment disposes of the appeal

Morton v. Continental Baking Co., 938 P.2d 271 (Utah 1997) (discusses willfulness requirement for affirmative sanctions under discovery rules)
Welsh v. Hospital Corp. of Utah, 235 P.3d 791 (Utah Ct. App. 2010) (late expert disclosure excusal may be warranted where defendant suffers no prejudice and equitable factors favor allowance)
Dahl v. Harrison, 265 P.3d 139 (Utah Ct. App. 2011) (automatic exclusion of untimely expert reports unless justified or harmless)
Townhomes at Pointe Meadows Owners Ass'n v. Pointe Meadows Townhomes, LLC, 329 P.3d 815 (Utah Ct. App. 2014) (proper inquiry is whether failure to disclose was harmless or excused; abuse of discretion standard)
Posner v. Equity Title Ins. Agency, Inc., 222 P.3d 775 (Utah Ct. App. 2009) (Utah law mandates exclusion of late expert reports absent equitable relief)
DeBry v. Cascade Enters., 879 P.2d 1353 (Utah 1994) (importance of expert designation deadlines to allow opposing party to prepare)
Ellis v. Swensen, 16 P.3d 1233 (Utah 2000) (mootness doctrine where judicial relief cannot affect litigants' rights)