Johansen v. JohansenJohansen v. Johansen
Charles R. Ahlstrom, Attorney for Appellant
Jason B. Richards, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN
ORME, Judge:
¶1 Kathy Johansen challenges the district court‘s denial of her motion to dismiss Colten Johansen‘s petition to terminate alimony. She argues that the court erred in finding that Colten‘s failure to provide initial disclosures was harmless.1 We agree and reverse.
BACKGROUND2
¶2 In 2011, Kathy and Colten divorced. The divorce decree required Colten to pay Kathy alimony that was to terminate after 15 years or upon Kathy‘s remarriage or cohabitation. On October 30, 2018, Colten filed a petition to terminate alimony, alleging that Kathy had been cohabitating with another man (Boyfriend) since at least January 2018. Acting pro se, Kathy filed her answer on November 8, 2018, denying the allegation. A pretrial conference was held the following March, during which the district court set the case for a three-day bench trial to begin in late August 2019. On July 29, Colten, having never filed his initial disclosures, provided pretrial disclosures that included his witness list and his exhibits. The witness list named Kathy, Colten, a private investigator, and Kathy and Colten‘s daughter (Daughter). On August 6, Kathy moved to dismiss the petition to terminate alimony, alleging that
¶3 Just before the trial began, the district court addressed Kathy‘s motion to dismiss. Although the court stated that Colten appeared to have violated
[Colten‘s] responsibility exists in and of itself to provide those initial disclosures to you. However, there is an exception. If . . . they can show that the failure is harmless or there is good cause, . . . they can overcome that requirement.
There‘s one other requirement, and that is they don‘t have to disclose anything to you that would be used for impeachment purposes. And so what they would do is they would simply call you to testify in their case in chief, allow you to testify.
Once you testify in a certain way, then [Colten] is going to say, “Well, we have witnesses.”
You‘ll say, “Wait, those witnesses weren‘t disclosed to me.”
And then he‘ll say, “These are for rebuttal purposes or impeachment purposes only. We didn‘t have to disclose impeachment evidence,” and so, really, it turns out to be harmless. It‘s just a matter of the order in which they call their witnesses.
And in calling you first and having you testify first, then they bring in people [such as] a private investigator, your daughter or whoever that would be in the nature of impeachment evidence, which they are not required to disclose under Rule 26.
So the Court finds that while this does appear to be a violation of . . . or I‘ll say could be a violation of Rule 26(a)(2) and Rule 26.1(b), the violation would be harmless in that they‘re not required under Rule 26 or 26.1(b) to disclose impeachment evidence that was retained for impeachment purposes only.
¶4 And a few months after trial, at a hearing on Kathy‘s motion to amend the court‘s findings, the court added to its harmlessness finding:
As a party and as a person involved in a case, to . . . disclose [Kathy] as a potential witness certainly is helpful, but what is she going to do to then go find out from herself what her testimony will be and to find out from herself what her documents may be? She‘s already got those. She should have that knowledge. That . . . is harmless. . . . I think this a prime and premium example of harmlessness, because her attempts to depose herself or subpoena her own documents or anything like that, that . . . just doesn‘t make sense at all why that is necessary.
. . . . She had . . . at least 28 days to prepare for the fact that she was going to be a witness.
I believe . . . the [pretrial disclosures filed on July 29, 2019,] also disclosed the impeachment witnesses that were going to testify. So it‘s not like she didn‘t know that either.
So all of the purposes of Rule 26 were served under these circumstances[.]
¶5 At trial, Colten first called Kathy to testify. She testified that during the time in question, Daughter and other family members lived with her. She stated that she and Boyfriend had been dating for approximately two years. Although she did affirm that Boyfriend kept a few dress shirts and a pair of running shoes at her house, and that he occasionally spent the night there, she denied that he had ever lived in the home with her. Colten then presented Kathy with photographs taken from inside her home. One photograph showed a carburetor that Boyfriend had designed and a plaque that he had received as an award for it. Kathy explained that Boyfriend had gifted both to her. The second photograph depicted a laptop and a pair of glasses. Kathy claimed that the laptop was Boyfriend‘s that he let her borrow and that the glasses belonged to her. The next photograph was taken in her bathroom and
¶6 Colten next called himself as a witness. He testified that when he went to pick up his children from Kathy‘s home, they “would tell me that [Boyfriend] was there the whole time that they would stay there.” Colten also testified that Boyfriend‘s car would be at Kathy‘s house a majority of the time he came by to pick them up. Colten then offered into evidence a mailed envelope, addressed to Boyfriend at Kathy‘s address, that he found in a garbage can in front of Kathy‘s house. Kathy objected to this evidence, claiming that she was not made aware of the envelope when Colten identified exhibits in his pretrial disclosures. The court overruled her objection, stating, “For impeachment purposes those things are not required to be disclosed.”
¶7 Colten next called Daughter to testify. She stated that Boyfriend was living with Kathy in the home, that he kept his personal belongings in the home, that he had a key to the home, and that he had complete access to the home at all times. She also claimed that Boyfriend slept in the same room as Kathy, gave Kathy money, and bought groceries. Daughter stated that she had taken the photographs that were shown to Kathy during Kathy‘s testimony, and that the computer, clothes, and other items mostly belonged to Boyfriend and not to Kathy or to Kathy‘s children, as Kathy had claimed. Finally, Daughter testified that Boyfriend spent approximately 95% of his nights at the home.
¶8 Colten‘s final witness was a private investigator. He testified that over the course of the five days he spent surveilling the home, he witnessed Boyfriend carry groceries from his vehicle into the home, take tools from the garage and put them in his truck, have conversations with neighbors in which he presented himself as Kathy‘s husband, enter the home in the evening and leave the next morning in different clothes, and undertake other actions indicative of Boyfriend living in the home. Colten then offered into evidence the investigator‘s written report, which the court accepted.
¶9 Kathy called no witnesses of her own. The district court subsequently found that Kathy and Boyfriend had cohabitated from January 2018 until at least November 2018, when Colten served Kathy with the petition to terminate alimony. Accordingly, the court terminated Colten‘s alimony obligations retroactive to January 2018 and entered judgment against Kathy in the amount of the excess alimony Colten had paid since that time.
¶10 Kathy appeals.
ISSUE AND STANDARD OF REVIEW
¶11 Kathy contends that the district court erred in denying her motion to dismiss Colten‘s petition to terminate alimony and bar all his witnesses as a sanction pursuant to
ANALYSIS
¶12 In relevant part,
¶13 A plaintiff is required to make initial disclosures “within 14 days after filing of the first answer to the complaint.”
And even in cases that do not involve “complicated” factual disputes, this burden may still be significant. As just one example, witnesses known to the opposing party may nevertheless speak to other individuals (unknown to the opposing party) about the operative facts of the case. These individuals would thus, unbeknownst to the opposing party, have discoverable information and might even be crucial witnesses.
Hansen, 2021 UT App 54, ¶ 44 n.12 (internal citation omitted). Thus, “a disclosing party who endeavors, by stratagem or otherwise, to disclose as little as possible faces a significant risk that the disclosure will be found insufficient and the evidence or the witness may not be allowed. To minimize this risk, disclosing parties should be liberally forthcoming rather than minimally compliant and risk the possible consequences of testimony exclusion.” RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 30, 392 P.3d 956 (quotation simplified).
¶14 Here, it is undisputed that Colten completely failed to file his
I. Kathy‘s Testimony
¶15 Colten argues that the district court‘s harmlessness ruling in regard to his calling Kathy as a witness was correct because “it is nonsensical to think that Kathy would need to depose or seek document production
¶16 Colten and the district court both focus unduly on the fact that Kathy would know what her testimony would be. But both fail to recognize that if Colten had actually served his initial disclosures informing Kathy that she was the only witness on whom his case was based—and the court‘s order assumes he had to disclose only Kathy—that disclosure could have completely altered Kathy‘s legal strategy, including her decision on whether she should retain counsel.
¶17 Knowing that Colten was going to make his case based on her testimony would be quite instructive concerning Colten‘s trial strategy or lack thereof. Having knowledge of this important fact early on, Kathy likely would have deposed Colten or at least sent him interrogatories to ferret out how he believed her testimony would help him prove his case-in-chief, given the denial in her answer that she was cohabitating. See Saudi v. Valmet-Appleton, Inc., 219 F.R.D. 128, 134 (E.D. Wis. 2003) (“The importance of . . . witness disclosures and the harms resulting from a failure to disclose need little elaboration. When one party does not disclose, the responding party cannot conduct necessary discovery, or prepare to respond to witnesses that have not been disclosed[.]“), cited with approval in Hansen v. Kurry Jensen Props., 2021 UT App 54, ¶ 44 n.12, 493 P.3d 1131 (Mortensen, J., and Pohlman, J., concurring). Early disclosure of Kathy‘s pivotal role in Colten‘s case-in-chief would have led Kathy to discover the “impeachment” witnesses and materials Colten had in reserve and through which he actually intended to prove his case under the guise of impeaching Kathy‘s testimony, long before he made Kathy aware of this information in his pretrial disclosures just 28 days before trial.
¶18 Thus, had Kathy been informed that she would be Colten‘s only case-in-chief witness,4 she would have been given a better opportunity to decide whether she needed to hire an attorney and investigate what Colten‘s case really hinged on, better preparing herself for trial. Not being provided this information until 28 days before trial—months past the
Disclosure of specific facts and opinions is required so that parties can make better informed choices about the discovery they want to undertake or, just as important, what discovery they want to forgo. More complete disclosures serve the beneficial purpose of sometimes giving the opposing party the confidence to not engage in further discovery. But this is only true if the potential for surprise is reduced by at least minimum compliance with the rule 26 disclosure requirements.
RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 25, 392 P.3d 956. While RJW Media dealt with disclosures about expert testimony, these policy considerations apply to all disclosures and to the circumstances present in the instant case.
¶19 Essentially, Colten‘s and the district court‘s rationale would lead to the conclusion
¶20 This is not the end of the inquiry, however, because “when we determine that a trial court erred, we do not reverse unless there is a reasonable likelihood that a different result would have been reached absent the errors,” or, in other words, we do not reverse unless the aggrieved party was prejudiced. Lee v. Williams, 2018 UT App 54, ¶ 69, 420 P.3d 88 (quotation simplified). See also
II. Remaining Evidence
¶21 Colten argues that the district court did not err in admitting his remaining evidence because
A. First Ground: Kathy‘s Testimony
¶22 To be clear, in a technical sense, we need not reach the district court‘s impeachment ruling because of the nature of its order regarding Colten‘s ability to call Kathy as a witness. Specifically, the court actually excluded Colten‘s remaining witnesses and evidence from being used in his case-in-chief for anything other than impeachment by reason of his failure to make his initial disclosures. Accordingly, under the court‘s ruling, and had Kathy been precluded from testifying as she should have been, Colten would not have been able to present any of his remaining evidence because the court would allow it only for the purpose of impeaching Kathy. And because we have determined that the court exceeded its discretion in allowing Colten to call Kathy as a witness despite not having initially disclosed his plan to do so, it necessarily follows that none of Colten‘s remaining witnesses and evidence should have been allowed. Because Kathy could not properly have been called, there would have been no testimony to impeach. Kathy was thus necessarily prejudiced because, without this evidence, Colten could not have proven his case, and the district court should have then dismissed his petition. See Lee v. Williams, 2018 UT App 54, ¶ 69, 420 P.3d 88.
¶23 We also reverse the district court‘s ruling on the independent ground that, even if it was not error to allow Kathy to testify in Colten‘s case-in-chief, the court misapplied the rules of civil procedure in allowing Colten to present his remaining witnesses and documents as impeachment evidence. Regardless of whether Kathy should have been permitted to testify, the court still erred in allowing Colten‘s remaining evidence under
¶24
(a)(1) . . . a party shall, without waiting for a discovery request, serve on the other parties:
(A) the name and, if known, the address and telephone number of:
(i) each individual likely to have discoverable information supporting its claims or defenses, unless solely for impeachment, identifying the subjects of the information; and
(ii) each fact witness the party may call in its case-in-chief and, except for an adverse party, a summary of the expected testimony;
(B) a copy of all documents, data compilations, electronically stored information, and tangible things in the possession or control of the party that the party may offer in its case-in-chief . . . .
¶25 “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. Thus, “we start by examining the ordinary meaning or usually accepted interpretation.” Id. If we determine the language is unambiguous, then the inquiry ends there. Pilot v. Hill, 2018 UT App 105, ¶ 11, 427 P.3d 508, aff‘d, 2019 UT 10, 437 P.3d 362. Cf. Amax Magnesium Corp. v. Utah State Tax Comm‘n, 796 P.2d 1256, 1258 (Utah 1990) (“[S]tatutory construction mandates that a statute be read according to its literal wording unless it would be unreasonably confusing or inoperable.“). In undertaking this inquiry, we presume “that the words and phrases used were chosen carefully and advisedly.” Amax Magnesium Corp., 796 P.2d at 1258.
¶26 Based on the plain language of
¶27 This interpretation comports with the purpose of the rule as a whole, see id. (“A principal rule of statutory construction is that the terms of a statute should not be interpreted in a piecemeal fashion, but as a whole.“), which is to maximize disclosure “to preclude parties from trying to gain an advantage by offering ‘surprise’ testimony at trial that has not been [properly] disclosed,” see Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 24, 438 P.3d 25, aff‘d, 2020 UT 59, 472 P.3d 927. If we were to allow a party to forgo disclosing in initial disclosures the witnesses and documents it
¶28 We first address the documents and tangible things the court allowed and then turn to the witnesses Colten was permitted to call at trial.
1. Documents and Tangible Things
¶29 Once Colten filed his petition, under subsection (a)(1)(B) any documents and tangible things in his possession that Colten intended to present in his case-in-chief were required to be disclosed to Kathy in initial disclosures. In making initial disclosures, no impeachment exception exists allowing such evidence not to be disclosed. Therefore, all the pictures Colten presented from inside Kathy‘s home and the private investigator‘s report should not have been allowed at trial because Colten failed to disclose any of it to Kathy in his initial disclosures.7
2. Witnesses
¶30 Colten, Daughter, and the private investigator were all witnesses Colten called as part of his case-in-chief for purposes of subsection (a)(1)(A)(i) of
¶31 Colten‘s trial strategy was to first call Kathy in his case-in-chief, and she categorically denied that she was cohabitating with Boyfriend. Continuing with his case-in-chief, Colten then called himself, Daughter, and the private investigator to testify that Kathy was, in fact, cohabitating with Boyfriend.8 The court allowed these witnesses to testify in Colten‘s case-in-chief even though they had not been disclosed in initial disclosures because it ruled that they were used solely for impeaching Kathy‘s testimony and did not have to be disclosed under subsection (a)(1)(A)(i). This reasoning was flawed because this subsection‘s “solely for impeachment” exception did not properly come into play.9 While these witnesses may have been
¶32 Based on the plain language of
CONCLUSION
¶33 The district court erred in allowing Colten to call his witnesses and present his documents at trial. Kathy was harmed by not being informed in the required initial disclosures that she would be called as a witness by Colten in his case-in-chief, and the court misapplied