Luna v. Luna , 442 P.3d 1155 ( 2019 )


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    2019 UT App 57
    THE UTAH COURT OF APPEALS
    LUIS LUNA,
    Appellant,
    v.
    MARIA LUNA,
    Appellee.
    Opinion
    No. 20170994-CA
    Filed April 11, 2019
    Third District Court, Salt Lake Department
    The Honorable James D. Gardner
    No. 160903176
    Daniel F. Bertch, Attorney for Appellant
    Joel D. Taylor and Matthew D. Church,
    Attorneys for Appellee
    JUDGE RYAN M. HARRIS authored this Opinion, in which
    JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.
    HARRIS, Judge:
    ¶1      While giving her brother Luis Luna (Luna) a ride to work,
    Maria Luna (Sister) was involved in an automobile accident
    in which Luna was injured. Luna sued Sister for negligence,
    yet during depositions testified unequivocally that the traffic
    light was green in Sister’s favor. Sister contends—and we
    agree—that this testimony constitutes a binding judicial
    admission that Luna cannot contest at trial, and we therefore
    conclude that the district court properly entered partial
    summary judgment against Luna on the issue of whether the
    light was green. While this fact alone does not entitle Sister to
    complete summary judgment, the court’s entry of judgment in
    Sister’s favor was appropriate on the facts of this case, where
    Luna produced no evidence of negligence other than potential
    Luna v. Luna
    testimony about the color of the traffic light. We therefore affirm
    the district court’s summary judgment order, as well as a
    challenged discovery order.
    BACKGROUND
    ¶2      Sister was giving Luna a ride to work one morning when
    their vehicle was struck by another driver (Driver) at an
    intersection controlled by a traffic light. Because Driver and
    Sister each entered the intersection perpendicular to one another,
    the light could not have been green for both of them. Luna
    sustained injuries from the accident, and eventually brought suit
    against both Driver and Sister for negligence and other related
    claims. In his complaint, Luna alleged that Driver had caused the
    accident by running a red light or, in the alternative, that Sister
    had caused the accident by running a red light. Luna also
    alleged that both drivers had failed to maintain a proper lookout
    and failed to yield to the other vehicle.
    ¶3      All parties to the suit were deposed, and Sister and Driver
    each testified that they had the green light when they entered the
    intersection. Luna was deposed twice and, during each
    deposition, his testimony was given through a Spanish-language
    interpreter. Each time, he testified—repeatedly—that the light
    was green for Sister when she entered the intersection. At his
    first deposition, he testified as follows:
    Q. Did you see the color of the light as you were
    entering the intersection?
    A. Yes. It was green.
    Q. How long had the light been green before you
    entered the intersection?
    A. Since we went through it until it hit us.
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    Luna v. Luna
    Q. How many seconds had the light been green
    before you entered the intersection?
    A. I would not be able to tell you.
    ....
    Q. You don’t know how far back you were from
    the intersection when you first noticed the color
    of the light?
    A. I will repeat myself. It was green when we went
    through it.
    ....
    Q. So what I want to know is exactly where was
    your car in relation to the intersection when
    you first noticed the color of the light. . . . I’m
    just trying to figure out where you were when
    you first noticed the light.
    A. Well we saw it—we were driving, we saw that it
    was green, and when we passed through the
    intersection it was already green. We were
    okay.
    ....
    Q. Was the light always green from the moment
    that you first saw it until the moment of the
    impact?
    A. Yes.
    ¶4     Three weeks later, Luna was again deposed. Though he
    stated that he did not give the road the same attention as he
    would have had he been the one behind the wheel, he again
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    Luna v. Luna
    emphasized that the light was green when Sister entered the
    intersection:
    Q. Now based on your previous testimony the last
    time we were here, you were absolutely
    adamant that the light was green as you
    proceeded through the intersection; is that
    correct?
    A. Yes.
    ....
    Q. You were in the car the day the accident
    happened; correct?
    A. Yes, of course.
    Q. You saw the light was green as you were going
    through the intersection; correct?
    A. Well, I’ll tell you again, yes, I was looking, but I
    wasn’t looking to see who else was looking. I
    was merely focused on the idea that I was
    headed to work. So I’ll tell you again, all I had
    on my mind was what I would be doing when I
    got to work, and that’s what occupied my
    thinking. . . . Any other type of question I
    couldn’t tell you, but my attorney could tell
    you.
    Q. Did you see the light green as you proceeded
    through the intersection?
    A. Yes.
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    Luna v. Luna
    ¶5    During the second deposition, defense counsel asked
    Luna about his opinion of Sister’s driving on the day in question:
    Q. So in terms of the accident, do you have any
    problems with the way your sister operated her
    vehicle on the day of the accident?
    [Luna asks for the question to be repeated]
    A. Well, no. To me, I mean, with all that’s
    happened to me, and I’ll tell you again, things
    have changed. So it was one thing before and
    now it’s different in terms of how I am.
    Everything has changed for me, and that’s why
    I am putting forth this suit with [Sister]. I don’t
    think I could say anything more. I would defer
    to my attorney.
    Q. Well, you just answered my question, and I
    want to just confirm it that you just said that
    you had no problems with the way [Sister]
    operated her vehicle on the day of the accident.
    Is that what you said?
    A. Yes.
    ¶6      Luna eventually reached a settlement with Driver, who
    was then dismissed from the case. Thereafter, Sister filed a
    motion for summary judgment, arguing that there was no
    genuine dispute as to material facts between Luna and Sister,
    because each of them agreed not only that the light was green,
    but also that Sister was properly operating her vehicle. In
    opposition to Sister’s motion, Luna pointed only to the
    conflicting testimony of Driver regarding the color of the traffic
    light, arguing that,
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    Luna v. Luna
    [Luna’s] testimony is disputed by [Driver]. . . . The
    jury is no more bound by [Luna’s] testimony than
    [Sister’s]. The jury might conclude that [Luna’s]
    testimony was protective of [Sister], and conclude
    that [Driver] was truthful . . . . Or the jury might
    attribute only a small percentage of fault to [Sister].
    Luna offered no other evidence to show negligence, attaching
    only two pages of Driver’s deposition testimony in which Driver
    testified that his light was green. Specifically, Luna offered no
    evidence that Sister was driving improperly by, for instance,
    failing to keep a proper lookout, speeding, or driving while
    distracted.
    ¶7      The district court held a hearing, after which it requested
    supplemental briefing from the parties on whether some of the
    statements Luna made in his deposition should be considered
    binding admissions. Sister argued that Luna’s statements were
    “judicial admissions” that Luna should be precluded from
    contradicting. Luna acknowledged that he had consistently
    testified that the light was green, but argued that his testimony
    was ordinary testimony that a jury should be able to disregard in
    favor of Driver’s account of the relevant events. After oral
    argument, the district court determined that Luna’s deposition
    testimony—including both his statements about the color of the
    light as well as his statements about how Sister was driving her
    vehicle—contained judicial admissions that he was not free to
    contradict, and that therefore summary judgment was
    appropriate in favor of Sister.
    ¶8      During the course of the litigation, Luna designated his
    treating physicians as non-retained expert witnesses who may
    testify at trial in support of his claims. After some litigation
    about the propriety of those disclosures, Sister’s counsel noticed
    and took the depositions of two of Luna’s treating physicians.
    The parties were unable to agree on which party, if any, should
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    Luna v. Luna
    pay the fees charged by the treating physicians for their time
    spent in deposition and, after the depositions were taken, Luna
    filed a statement of discovery issues asking the court to compel
    Sister to pay those fees. Luna argued that rule 26(a)(4)(B) of the
    Utah Rules of Civil Procedure required Sister to do so, because
    she had requested the depositions. Sister objected to the
    statement, arguing that the rule required a party to pay an
    expert’s professional fee for attending a deposition only if the
    expert was a retained expert. The court issued an order denying
    Luna’s statement of discovery issues on the same day it issued
    its grant of summary judgment in favor of Sister.
    ISSUES AND STANDARDS OF REVIEW
    ¶9     Luna appeals the district court’s orders, and asks us to
    consider three issues. First, Luna argues that the district court
    erred in treating his deposition statements as non-rebuttable
    judicial admissions. “We review the legal questions underlying
    the admissibility of evidence for correctness and the district
    court’s decision to admit or exclude evidence for an abuse of
    discretion.” Rocky Mountain Power Inc. v. Marriott, 
    2018 UT App 221
    , ¶ 18 (quotation simplified); see also Caponi v. Larry’s 66, 
    601 N.E.2d 1347
    , 1355 (Ill. App. Ct. 1992) (“The determination of
    whether a party’s statement is sufficiently unequivocal to be
    considered a judicial admission is a question of law.”).
    ¶10 Next, Luna argues that the district court erred in
    dismissing the entire action, because even if the traffic light is
    conclusively considered to be green, this fact did not necessarily
    establish that Sister was not negligent. “[W]e review a district
    court’s grant of summary judgment for correctness, affording no
    deference to the court’s legal conclusions.” Poulsen v. Farmers Ins.
    Exch., 
    2016 UT App 170
    , ¶ 8, 
    382 P.3d 1058
    .
    ¶11 Lastly, Luna argues that the district court abused its
    discretion when it did not require Sister to pay the hourly
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    Luna v. Luna
    professional fee charged by Luna’s treating physicians for
    appearing at depositions taken by Sister. “We review discovery
    rulings for an abuse of discretion.” Dahl v. Harrison, 
    2011 UT App 389
    , ¶ 11, 
    265 P.3d 139
    , abrogated on other grounds by R.O.A.
    Gen., Inc. v. Chung Ji Dai, 
    2014 UT App 124
    , 
    327 P.3d 1233
    .
    ANALYSIS
    I
    ¶12 First, Luna argues that the district court erred by deeming
    conclusive—as non-rebuttable judicial admissions—Luna’s
    sworn deposition testimony that the traffic light was green as
    Sister drove into the intersection and that he had no concerns
    with the manner in which Sister was operating her vehicle. Luna
    asserts that his testimony should be treated as ordinary evidence
    that a factfinder is free to ignore in favor of other competent
    evidence. In resolving this issue, we first consider, under Utah
    law, whether and under what circumstances a party’s testimony
    may be deemed a non-rebuttable judicial admission. We then
    analyze the two statements at issue and conclude that Luna’s
    statement that “the light was green” is a conclusive judicial
    admission, but that Luna’s statement about Sister’s driving does
    not qualify as such.
    A
    ¶13 Before beginning our analysis, we consider it necessary to
    carefully frame the question presented in this case. Here, Luna is
    not seeking to alter or change his deposition testimony, and
    therefore we are not confronted with the question of whether
    Luna ought to be permitted to contradict his deposition
    testimony with his own affidavit or testimony. Whether a party
    may alter his or her own deposition testimony with a later-filed
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    Luna v. Luna
    contradictory affidavit in an attempt to create a factual issue is a
    question with which Utah appellate courts have already
    grappled. See, e.g., Webster v. Sill, 
    675 P.2d 1170
    , 1172–73 (Utah
    1983) (stating that “when a party takes a clear position in a
    deposition, that is not modified on cross-examination, he may
    not thereafter raise an issue of fact by his own affidavit which
    contradicts his deposition, unless he can provide an explanation
    of the discrepancy”); Gaw v. Department of Transp., 
    798 P.2d 1130
    ,
    1140–41 (Utah Ct. App. 1990) (applying Webster and stating that
    a party may vary his deposition testimony if he has an
    explanation for doing so that is “plausible”). In both of these
    cases, the question presented is one of admissibility: whether a
    party opposing summary judgment is allowed to create an issue
    of fact by presenting his or her own affidavit at odds with his or
    her previously-rendered deposition testimony.
    ¶14 That is not the question at issue here, because Luna is
    content with the state of his deposition testimony and makes no
    effort to alter it. Instead, Luna seeks to introduce evidence from a
    different witness—rather than from his own mouth—to call into
    question his own testimony. This case therefore presents a
    distinct issue: where a party either does not wish to, or is not
    allowed to, change a factual admission made during a
    deposition, what is the evidentiary effect of that admission?
    And, specifically, should that party’s admission be deemed
    conclusive, such that the party will not be allowed to introduce
    evidence from other sources to contradict it?
    ¶15 In Utah, as in other jurisdictions, a party’s admission of
    fact in a pleading is normally treated as a conclusive admission
    that the party is not later permitted to contradict, even with
    evidence from other sources. See Baldwin v. Vantage Corp., 
    676 P.2d 413
    , 415 (Utah 1984) (“An admission of fact in a pleading is
    a judicial admission and is normally conclusive on the party
    making it.”); 2 McCormick on Evidence § 257 (7th ed. 2016) (stating
    that pleadings “are used as judicial and not as evidentiary
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    Luna v. Luna
    admissions, and they are conclusive until withdrawn or
    amended”); 29A Am. Jur. 2d Evidence § 788 (2d ed. 2019)
    (“Stipulations and admissions in the pleadings are generally
    binding on the parties and the court.”). Statements made in
    depositions are not exactly the same thing as statements made in
    pleadings, and no Utah court has yet given definitive guidance
    about whether, and under what circumstances, a party will be
    conclusively held to statements he makes in a deposition.
    ¶16 Commentators and courts in other jurisdictions have
    directly addressed the issue, though, and have identified two
    basic approaches. See 2 McCormick on Evidence § 258. Some
    jurisdictions treat the sworn testimony of a party like that of any
    other witness, allowing parties to contradict their own
    statements with the testimony of other witnesses. Id.; see also, e.g.,
    Whitmire v. Ingersoll-Rand Co., 
    109 Cal.Rptr.3d 371
    , 379–80 (Cal.
    Ct. App. 2010) (“[N]either a party’s deposition testimony nor its
    responses to interrogatories constitute incontrovertible judicial
    admissions of a fact that bar the party from introducing other
    evidence that controverts the fact.” (quotation simplified)); D.R.
    Horton, Inc.-Denver v. D&S Landscaping, LLC, 
    215 P.3d 1163
    , 1170
    (Colo. App. 2008) (stating that deposition testimony “is not a
    judicial admission absolutely binding on that party” and may be
    contradicted by the party who gave it (quotation simplified)).
    But other jurisdictions consider a party’s sworn deposition
    testimony to be binding on that party, provided that the
    statements are unequivocal and made about facts within the
    party’s knowledge. 2 McCormick on Evidence § 258; see also, e.g.,
    Hansen v. Ruby Constr. Co., 
    508 N.E.2d 301
    , 304 (Ill. App. Ct.
    1987) (stating that unequivocal “assertions made in a deposition
    constitute binding judicial admissions”); Yockey v. State, 
    540 N.W.2d 418
    , 421 (Iowa 1995) (stating that “the rule is well
    established that” a party will be held to unequivocal deposition
    testimony “as an informal judicial admission”); Body v. Varner,
    
    419 S.E.2d 208
    , 211 (N.C. Ct. App. 1992) (stating that
    “unequivocal and unambiguous” statements made by a party at
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    Luna v. Luna
    a deposition are “judicial admission[s] and are conclusively
    binding”); Aguirre v. Vasquez, 
    225 S.W.3d 744
    , 756 (Tex. App.
    2007) (stating that a party’s statement at a deposition “will be
    treated as a true judicial admission” that is “conclusive on the
    party making it,” so long as certain factors are met). Leading
    legal encyclopedias appear to espouse the second approach. See,
    e.g., 29A Am. Jur. 2d Evidence §§ 783–84 (stating that “[a] judicial
    admission is a party’s unequivocal concession of the truth of a
    matter, and removes the matter as an issue in the case,” and that
    “statements made during a discovery deposition” can “be held
    to be judicial admissions” under appropriate circumstances);
    32A C.J.S. Evidence § 1650 (2019) (stating that “a party’s
    deposition testimony may be treated as a judicial admission”
    under appropriate circumstances). We think the second
    approach is the better rule, for two reasons.
    ¶17 First, allowing cases to proceed to trial when the two
    parties do not disagree about the matter to be tried is a poor use
    of our limited judicial resources. The main function of the
    judicial system in our society is to act as a forum for the fair and
    impartial resolution of bona fide disputes between parties.
    “Private-rights disputes lie at the core of the historically
    recognized judicial power.” Jenkins v. Swan, 
    675 P.2d 1145
    , 1149
    (Utah 1983) (quotation simplified). To this end, “[t]he courts
    [have] developed ways of identifying and categorizing
    particular grievances, techniques for the receipt of information,
    and principles for arriving at a resolution of these disputes,” 
    id.,
    always with the end goals of justice and truth in mind, see, e.g.,
    Moler v. CW Mgmt. Corp., 
    2008 UT 46
    , ¶ 12, 
    190 P.3d 1250
    (describing the “truth-finding function of courts”); see also, e.g.,
    Utah R. Evid. 102 (“These rules should be construed so as to
    administer every proceeding fairly . . . to the end of ascertaining
    the truth and securing a just determination.”).
    ¶18 If two parties do not actually have a dispute about a
    particular issue, there seems little point in bringing the power of
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    Luna v. Luna
    the judicial system to bear to weigh in on the matter. See Utah
    Animal Rights Coal. v. Salt Lake City Corp., 
    371 F.3d 1248
    , 1262
    (10th Cir. 2004) (McConnell, J., concurring) (stating that “courts
    exist to resolve live controversies, to remedy wrongs, and to
    provide prospective relief,” and are “not debating societies”
    convened for the purpose of discussing academic questions);
    State v. Smith, 
    401 P.2d 445
    , 447 (Utah 1965) (stating that “[t]he
    resolution of disputes is the purpose for which courts and juries
    exist”). Judicial resources are finite, and courts have enough to
    do without spending time and effort on cases in which the
    litigants do not disagree. Indeed, to allow a party to pursue
    recovery under a set of facts that he himself has sworn to be false
    would run counter to the goals courts are designed to further.
    ¶19 Second, there is something unjust about allowing a
    litigant to convene a trial so that a jury can determine if the facts
    are other than what the litigant swears they are. As one court put
    it, a litigant should not be permitted to “make out a better case
    for himself than he himself has testified to where his case
    involves facts within his own knowledge.” Bell v. Harmon, 
    284 S.W.2d 812
    , 816 (Ky. 1955). Allowing otherwise may tempt a
    party to commit perjury, see Hansen, 508 N.E.2d at 304
    (explaining that one “frequently stated purpose of the doctrine
    of judicial admissions is to eliminate the temptation to commit
    perjury”), “would be tantamount to permitting him to say for his
    own advantage that his own testimony should be regarded as
    false, and that of some other witness as true,” Bell, 284 S.W.2d at
    816, and would open the door for litigants to argue that they
    should recover despite their own sworn statements to the
    contrary, see Aguirre, 
    225 S.W.3d at 757
     (“The policy underlying
    this rule is that it would be unjust to permit a party to recover
    after it has negated its right to recover by clear, unequivocal
    evidence.”); Hodnett v. Friend, 
    352 S.E.2d 338
    , 340–41 (Va. 1987)
    (holding that, with regard to “a statement of fact, [a party]
    cannot expect a court or jury to believe that he has not told the
    truth in making the statement” (quotation simplified)); 32A
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    C.J.S. Evidence § 1649 (“[I]t would be absurd and unjust to allow
    a party to recover after he or she has clearly and unequivocally
    sworn to facts that defeat his or her cause of action or defense.”).
    ¶20 Luna points out that he is allowed to plead his case using
    alternative theories of recovery, and argues that considering his
    deposition testimony as conclusive would curtail his ability to
    plead in the alternative. Modern rules do allow parties to plead
    alternative theories of relief, see Helf v. Chevron U.S.A. Inc., 
    2015 UT 81
    , ¶¶ 72–74, 
    361 P.3d 63
     (observing that the old rules that
    did not allow pleading in the alternative “frequently result[ed]
    in injustice,” and that the modern, liberal pleading standards
    “ha[ve] eliminated this harsh interpretation” and now “allow
    parties the opportunity to fully adjudicate their claims on the
    merits” (quotations simplified)), and even allow parties to plead
    facts in the alternative in cases where the facts are unknown or
    disputed, see 32 C.J.S. Evidence § 546 (“When a pleader pleads
    alternatively or inconsistently, such allegations may not be used
    against the pleader, at least, in the case of alternative fact
    allegations, where such allegations are made in good faith and
    based on genuine doubt.” (quotation simplified)); 29A Am. Jur.
    2d Evidence § 791 (“The pleader states facts in the alternative
    because he or she is uncertain as to the true facts, so that the
    pleader is not ‘admitting’ anything other than uncertainty . . . .”).
    But once the potentially disputed factual issues necessitating
    alternative pleading are resolved, the need for alternative
    pleading is eliminated. Cf. Helf, 
    2015 UT 81
    , ¶ 76 (stating that
    “[o]nce the fact-finder and the judge have resolved all factual
    and legal disputes related to the inconsistent theories of liability,
    the plaintiff is then entitled to the one remedy (if any) that is
    supported by the final determination of the law and the facts”).
    ¶21 This case illustrates the point. Here, Sister does not
    assert—and we do not discern—anything inappropriate about
    the fact that, in his original complaint, Luna pled facts about the
    color of the light in the alternative. At the time parties file
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    complaints, they may not have all of the facts at their disposal,
    and may be uncertain as to their true state. At the time Luna
    filed his complaint, we can perhaps give him the benefit of the
    doubt about whether he was completely sure about the color of
    the traffic light at the time Sister entered the intersection. But
    after discovery was complete, the record contained Luna’s sworn
    deposition testimony, in which he repeatedly and unequivocally
    stated that the light was green in Sister’s favor. At that point,
    Luna no longer has any colorable basis upon which to plead that
    the light was anything other than green, and therefore there is no
    longer any role for “alternative facts.”
    ¶22 For these reasons, then, we reject Luna’s argument that all
    statements a party makes at a deposition are nothing more than
    ordinary evidentiary admissions that can never constitute
    conclusive judicial admissions. We think the better rule—and the
    one we adopt here—is that a party’s sworn deposition
    statements, provided certain factors are present, can constitute
    binding judicial admissions.
    B
    ¶23 Next, we consider the precise circumstances under which
    a party will be conclusively deemed to have admitted a matter in
    a deposition. Our review of both Utah case law and persuasive
    authority from other jurisdictions reveals that four factors
    largely drive the analysis and that, in order to be considered a
    binding judicial admission, a statement must meet all four of the
    following criteria.
    ¶24 First, the statement at issue must be made under oath in
    the course of the current judicial proceeding. See Aguirre v.
    Vasquez, 
    225 S.W.3d 744
    , 756 (Tex. App. 2007). This requirement
    puts parties on notice of the gravity of their statements and the
    need to be both thoughtful and forthright in what they say.
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    ¶25 Second, the testimony in question must be clear and
    unequivocal—that is, it must not be ambiguous or susceptible to
    multiple interpretations, there must be no contention that the
    party made any mistake in their testimony, and there must not
    be any rational or sufficient explanation for the discrepancy
    between the testimony and the pleadings. See 
    id.
     (noting that
    “the hypothesis of mere mistake or slip of the tongue must be
    eliminated” (quotation simplified)). Parties sometimes misspeak,
    misunderstand, or simply fall prey to the frailties of human
    memory. See Webster v. Sill, 
    675 P.2d 1170
    , 1173 (Utah 1983).
    Parties testifying through an interpreter, or in a language that is
    not their first, might be particularly susceptible to providing
    equivocal testimony. But if a party testifies unambiguously
    about a fact within the party’s personal knowledge, and there
    exist no concerns that the party failed to understand the question
    or that the party’s testimony is otherwise unreliable, the party
    rightly should be held to that testimony.
    ¶26 Third, the statement in question must be about a factual
    issue within the party’s personal knowledge, rather than about a
    matter of opinion, ultimate fact, or legal conclusion. See Hansen v.
    Ruby Constr. Co., 
    508 N.E.2d 301
    , 305 (Ill. App. Ct. 1987) (stating
    that “[f]or testimony to be binding, it must also be peculiarly
    within the knowledge of the deponent”); Yockey v. State, 
    540 N.W.2d 418
    , 421 (Iowa 1995) (stating that, to be a judicial
    admission, a statement at a deposition must be about “a concrete
    fact, not [about] a matter of opinion, estimate, appearance,
    inference or uncertain memory” (quotation simplified)); Celli v.
    Santos, 
    888 P.2d 1067
    , 1069 (Or. Ct. App. 1995) (stating that
    “[w]hen a party testifies about a series of observations that
    express matters of opinion, judgment, estimate, inference or
    uncertain memory, as opposed to concrete facts peculiarly
    within the party’s own knowledge, the court should allow for
    the obvious possibility of mistake by allowing consideration of
    all available evidence”). But see Body v. Varner, 
    419 S.E.2d 208
    ,
    211 (N.C. Ct. App. 1992) (allowing even statements going to
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    ultimate issues like “negligence” to qualify as judicial
    admissions). Legal conclusions are for courts to determine. And
    statements about matters of opinion, including statements going
    to ultimate issues—for instance, whether a party was negligent
    or whether a party acted reasonably—are not the sort of fact-
    bound statements that logically lend themselves to being treated
    as binding admissions.
    ¶27 Finally, giving conclusive effect to the testimony must be
    consistent with the public policies of conserving judicial
    resources, preventing perjury, and advancing the quality of
    justice. See supra ¶¶ 17–20; see also Aguirre, 
    225 S.W.3d at 756
    (stating that a declaration will not be considered a binding
    judicial admission unless “the giving of conclusive effect to the
    declaration will be consistent with the public policy upon which
    the rule is based” (quotation simplified)). There may exist
    situations in which the first three factors are met but in which
    holding a party to his testimony would be unjust or at odds with
    the policies underlying the rule. Our test provides trial judges
    with the flexibility to address such (presumably unusual)
    situations.
    ¶28 Accordingly, we hold that a party’s statement will be
    considered a binding judicial admission only if all of the
    following criteria are met: (1) the statement is made under oath
    during the course of the judicial proceeding; (2) the statement is
    clear and unequivocal; (3) the statement is about a factual matter
    within the party’s personal knowledge (as opposed to a
    statement offering an opinion or legal conclusion); and (4) giving
    binding effect to the statement would be consonant with the
    policies underlying the “judicial admission” rule.
    C
    ¶29 Next, we must apply this test to the two categories of
    statements Luna made during his deposition: (1) his statements
    20170994-CA                    16               
    2019 UT App 57
    Luna v. Luna
    that the traffic light was green; and (2) his statement that he “had
    no problem with” the manner in which Sister operated her
    vehicle on the day of the accident. Sister seeks to hold Luna to
    both categories of statements. We agree with Sister that Luna’s
    statements about the color of the traffic light meet the criteria
    required to be considered judicial admissions and should
    therefore be considered as such, but we agree with Luna that his
    statement about the way in which Sister was driving does not
    meet the criteria.
    1
    ¶30 With regard to Luna’s statements that the traffic light was
    green when Sister entered the intersection, we conclude all of the
    necessary elements are met. Luna acknowledges that the
    statements were made under oath at a deposition in the course
    of the judicial proceeding at issue, and does not dispute that the
    statements concern an almost archetypal matter of fact (whether
    the light was red or green) that is certainly within the realm of
    his personal knowledge. Luna argues, however, that his
    testimony was not sufficiently unequivocal, when taken as a
    whole, 1 to qualify as a judicial admission. On the facts presented
    here, we disagree.
    1. Luna argues that his testimony must be “taken as a whole,”
    but submitted only four pages of his deposition transcript into
    the record. We are thus unable to review Luna’s testimony “as a
    whole”; our review is necessarily limited to the excerpts
    contained in the record. Litigants in similar situations—who
    may want to ask the court to consider deposition testimony “as a
    whole”—might find it best to err on the side of inclusiveness
    when attaching deposition excerpts (in four-pages-on-one-page
    format, if burdening the record is a concern) to summary
    judgment memoranda.
    20170994-CA                     17                
    2019 UT App 57
    Luna v. Luna
    ¶31 When asked about the color of the light, Luna was
    adamant that it was green for Sister. Indeed, Luna so testified
    seven different times over the course of his two depositions. At
    times, Luna even appeared annoyed by the multiple questions
    about the matter, twice stating: “I will repeat myself. It was
    green when we went through it.” In the portions of the
    deposition transcript Luna provided, he never expressed the
    slightest doubt or equivocation about the color of the light.
    Moreover, Luna did not seek to correct or amend his deposition,
    nor did he ever file an affidavit seeking to explain away or
    contradict his testimony. Indeed, by his own admission, Luna’s
    testimony on this point has remained remarkably consistent.
    ¶32 And giving conclusive effect to Luna’s testimony
    regarding the color of the light is consistent with the public
    policies underlying judicial admissions—conserving judicial
    resources, preventing perjury, and advancing the quality of
    justice. Luna and Sister do not have a dispute about the color of
    the light: they each clearly swore, under oath, that it was green.
    It makes little sense to convene a jury to consider the matter.
    ¶33 The circumstances presented here constitute a clear
    example for application of the “judicial admission” rule. Luna
    testified clearly and unequivocally, under oath in a deposition,
    about a factual matter well within his personal knowledge. It
    would be unjust to relieve him of the consequences of this
    admission. Accordingly, the district court correctly determined
    that Luna’s testimony on this point constituted a judicial
    admission, and correctly deemed the light “green” for the
    purposes of adjudicating the dispute between Luna and Sister.
    2
    ¶34 We reach a different conclusion, however, with regard
    to Luna’s deposition testimony about the manner in which
    Sister was operating her vehicle on the day in question.
    20170994-CA                    18               
    2019 UT App 57
    Luna v. Luna
    Although that statement was offered under oath in a
    deposition in this judicial proceeding, it does not meet two of the
    other elements: the statement was not unequivocal, and—as
    construed and offered by Sister—it concerned a matter of
    opinion.
    ¶35 First, when asked if he had “any problems with the
    way [Sister] operated her vehicle on the day of the accident,”
    Luna’s answer was far from clear and unequivocal. His response
    was: “Well, no. To me, I mean, with all that’s happened to
    me, and I’ll tell you again, things have changed. So it was
    one thing before, and now it’s different in terms of how I am.”
    When asked to confirm that he “just said that [he] had
    no problems with the way [Sister] operated her vehicle on
    the day of the accident,” Luna replied “Yes.” Luna was
    not asked any specific follow-up questions about, for
    instance, whether Sister appeared distracted, whether she
    was speeding, or any other particular fact about her driving that
    day.
    ¶36 In our view, the question posed was not particularly clear.
    Whether a person has “any problems” with the way someone
    else is operating a vehicle is a question open to various
    interpretations. It is not at all clear, from context, whether Luna
    even understood this question to be asking about potential
    negligent actions Sister might have taken; this lack of clarity is
    only heightened by the fact that Luna was testifying through a
    Spanish-language interpreter. Luna first asked for the question
    to be repeated, perhaps indicating some confusion about what
    the question meant, then gave a rather rambling and (at least
    partially) non-responsive answer. The attorney asking the
    question tried to restate it, at which point Luna answered in the
    affirmative. In sum, this particular exchange between lawyer
    and witness does not leave us with any confidence that Luna
    was offering knowing testimony about the particulars of Sister’s
    driving that day.
    20170994-CA                    19                
    2019 UT App 57
    Luna v. Luna
    ¶37 Second, if we construe the question as one asking for
    Luna’s opinion about whether Sister was operating her vehicle
    in a negligent manner—the only context for which Sister offers
    it—Luna’s answer would be in the nature of an opinion on an
    ultimate issue, rather than on a particular factual matter within
    his personal knowledge. Negligence, and the apportionment of
    negligence in a case where two or more parties may be at fault,
    are ultimate facts, see, e.g., Acculog, Inc. v. Peterson, 
    692 P.2d 728
    ,
    730 (Utah 1984) (“The ultimate facts in a comparative negligence
    case embrace only negligence, causation and the percentages of
    negligence attributed to plaintiff and defendant.”), and these
    facts are usually best left to a factfinder. Had counsel asked
    specific follow-up questions about factual matters (was Sister
    speeding, did Sister appear to be watching the road, was Sister
    talking on her cellphone, and so on), Luna’s answers would
    constitute factual testimony that might—if all the other factors
    were satisfied—constitute judicial admissions. But a party’s
    ultimate opinion about whether the other side was negligent is
    not the sort of matter that will be considered a binding judicial
    admission.
    II
    ¶38 Had we determined that both of Luna’s statements were
    judicial admissions, it would have followed therefrom that
    summary judgment in favor of Sister is appropriate. But given
    our ruling that only Luna’s statements about the color of the
    traffic light constitute judicial admissions, we must proceed to
    the next step: whether it is possible for Luna’s case to survive
    Sister’s motion for summary judgment when (a) his statement
    about Sister’s driving is merely an ordinary admission, but (b) it
    is deemed a conclusive fact that Sister did not run a red light.
    ¶39 Luna correctly points out that, even if his statement that
    the light was green is considered conclusive, and the factfinder
    must therefore find that the light was green, that fact alone does
    20170994-CA                      20                 
    2019 UT App 57
    Luna v. Luna
    not inexorably exonerate Sister from negligence. In certain
    instances, drivers proceeding through a green light may still be
    considered to have acted negligently. See, e.g., Keller v. Martinez,
    
    2014 UT App 2
    , ¶ 11, 
    318 P.3d 1147
     (“[A] green arrow never
    permits a driver to proceed carelessly, oblivious to the
    conditions at hand; the driver must take reasonable precautions
    to avoid a collision.”); see also Model Utah Jury Instructions 2d
    CV 614 (Utah Judicial Council 2014) (stating that even “the
    driver with the green light has a duty to use reasonable care to
    avoid a collision”).
    ¶40 Sister acknowledges this point, but argues that the district
    court’s summary judgment ruling should nevertheless be
    affirmed due to a lack of competent evidence from any source
    that would indicate that Sister was driving in a negligent
    manner. As the plaintiff in a negligence action, Luna bore the
    burden of proof at trial. See Asael Farr & Sons Co. v. Truck Ins.
    Exch., 
    2008 UT App 315
    , ¶ 12, 
    193 P.3d 650
     (“On issues essential
    to the cause of action for negligence, the plaintiff, in general, has
    the burden of proof.” (quotation simplified)). When Sister
    moved for summary judgment, she “had the initial burden to
    show through reference to the pleadings, depositions, answers to
    interrogatories, and admissions on file that there was no genuine
    issue of material fact concerning [Luna’s] claim.” See Jones v.
    Mackey Price Thompson & Ostler, 
    2015 UT 60
    , ¶ 28, 
    355 P.3d 1000
    (quotation simplified). Sister met this burden by showing that
    she and Luna agreed about the facts that led to the accident, that
    no other fact witness could offer any evidence that Sister was
    driving negligently, and pointing out that Luna “failed to
    identify any accident reconstructionist or expert witness to
    opine” about the cause of the accident or Sister’s driving.
    ¶41 Once Sister met her initial burden, the burden shifted to
    Luna, “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. ¶ 29
     (quotation simplified). In
    20170994-CA                     21                 
    2019 UT App 57
    Luna v. Luna
    opposition to Sister’s motion, Luna pointed only to the
    conflicting testimony of Driver about the color of the light. Luna
    offered no other evidence to show Sister’s negligence. Instead, he
    offered “mere allegations,” not “specific facts showing that there
    is a genuine issue for trial.” 
    Id.
     In fact, Luna alleges no specific
    action by Sister that could lead a jury to find her at fault. In both
    his complaint and his opposition to Sister’s motion for summary
    judgment, Luna’s allegations of Sister’s negligence—save
    running a red light—merely recite provisions from Utah’s model
    jury instructions. A plaintiff who “merely state[s] elements of the
    claimed causes of action and allege[s] in vague and conclusory
    terms” that defendant committed acts amounting to tortious
    conduct is not entitled to survive summary judgment. See Rusk v.
    University of Utah Healthcare Risk Mgmt., 
    2016 UT App 243
    , ¶ 7,
    
    391 P.3d 325
     (per curiam).
    ¶42 Because Luna’s deposition testimony about Sister’s
    driving is not deemed conclusive, Luna was entitled to the
    opportunity to present other evidence that might tend to show
    that—even though she had a green light—Sister was
    nevertheless driving in a negligent manner. Luna did not take
    advantage of this opportunity. He produced no evidence—other
    than Driver’s testimony that he had the green light, which
    testimony is of no use to Luna—that Sister was operating her
    vehicle in a negligent manner. For this reason, we affirm the
    district court’s grant of summary judgment in favor of Sister on
    the merits of Luna’s claim. 2
    2. The district court based its grant of summary judgment on its
    determination that both categories of Luna’s statements—
    including his statement that he had no complaints about Sister’s
    driving on the day of the accident—were judicial admissions.
    Although we reach a different conclusion than the district court
    did about the binding effect of the second category of
    (continued…)
    20170994-CA                     22                 
    2019 UT App 57
    Luna v. Luna
    III
    ¶43 Lastly, Luna argues that Sister should be required to pay
    the fee apparently charged by his treating physicians for the time
    they spent sitting for depositions taken by Sister. Luna grounds
    his argument in the text of rule 26(a)(4)(B) of the Utah Rules of
    Civil Procedure, which states that “the party taking the
    deposition shall pay the expert’s reasonable hourly fees for
    attendance at the deposition.” Sister accuses Luna of taking the
    language of that provision out of context, because she reads that
    particular subsection as being concerned only with retained
    experts, and the depositions in question here were of non-retained
    experts. Sister points out that the applicable section of the rule
    dealing with non-retained experts contains no similar provision
    about allocation of costs, see Utah R. Civ. P. 26(a)(4)(E), and
    asserts that, in this situation, the rule does not require either
    party to pay a professional witness fee to non-retained experts,
    and that therefore the allocation of any such costs is a matter left
    to the discretion of the district court. We think Sister has the
    better of this argument.
    ¶44 Rule 26(a)(4) begins, in subsection (A), with a discussion
    of the disclosure requirements for witnesses who are “retained
    or specially employed to provide expert testimony.” 
    Id.
     R.
    26(a)(4)(A). Specifically, with regard to those witnesses, parties
    (…continued)
    statements, “we can affirm summary judgment on any ground
    or theory apparent on the record, regardless of whether it was
    identified by the district court as the basis of its ruling.” Gardiner
    v. Anderson, 
    2018 UT App 167
    , ¶ 16, 
    436 P.3d 237
    . In our view, it
    is apparent from the record that Luna has no evidence of Sister’s
    negligence other than Driver’s testimony about the color of the
    light, and that Sister is entitled to summary judgment on this
    alternative ground.
    20170994-CA                      23                
    2019 UT App 57
    Luna v. Luna
    must provide a disclosure that includes, among other things, the
    expert’s “qualifications, including a list of all publications
    authored within the preceding 10 years” and “a list of any other
    cases in which the expert has testified . . . within the preceding
    four years,” as well as “all data and other information that will
    be relied upon by the witness in forming” her opinions. 
    Id.
    Immediately following this list of specific requirements for
    disclosure of retained experts, subsection (B) appears, and reads,
    in its entirety, as follows:
    Further discovery may be obtained from an expert
    witness either by deposition or by written report. A
    deposition shall not exceed four hours and the party
    taking the deposition shall pay the expert’s reasonable
    hourly fees for attendance at the deposition. A report
    shall be signed by the expert and shall contain a
    complete statement of all opinions the expert will
    offer at trial and the basis and reasons for them.
    Such an expert may not testify in a party’s case-in-
    chief concerning any matter not fairly disclosed in
    the report. The party offering the expert shall pay
    the costs for the report.
    
    Id.
     R. 26(a)(4)(B) (emphasis added). Luna focuses solely on the
    emphasized language, while Sister asks us to consider the
    provision as a whole, and in context. When viewed in context,
    we think it evident that subsection (B)—as opposed to
    subsection (E)—covers only retained experts.
    ¶45 It is clear that subsection (A) deals only with retained
    experts. The specific disclosure requirements found there differ
    markedly from the less-stringent disclosure requirements found
    in subsection (E), the subsection regarding non-retained experts,
    with regard to whom parties need only disclose “a written
    summary of the facts and opinions to which the witness is
    expected to testify.” 
    Id.
     R. 26(a)(4)(E). The first words of
    20170994-CA                    24                 
    2019 UT App 57
    Luna v. Luna
    subsection (B)—“[f]urther discovery”—are a clear reference to
    subsection (A), and indicate that a party may obtain more
    information, in addition to that already disclosed, regarding a
    retained expert in one of two ways: “by deposition or by written
    report.” 
    Id.
     R. 26(a)(4)(B). This provision cannot possibly be
    referring to non-retained experts, because the rule does not
    contemplate reports from non-retained experts. See 
    id.
     R. 26
    advisory committee notes (stating that, “because a party who
    expects to offer . . . testimony [from non-retained experts]
    normally cannot compel such a witness to prepare a written
    report, further discovery must be done by interview or by
    deposition”); see also Drew v. Lee, 
    2011 UT 15
    , ¶ 18, 
    250 P.3d 48
    (stating that “written reports are required only of retained or
    specially employed experts” (quotation simplified)). Moreover,
    the entire “report or deposition” choice that is the subject of
    subsection (B) is one that the rule contemplates will be made
    only with regard to retained experts. And finally, there is
    language in subsection (B) that, if it applied to non-retained
    experts, would render similar language in subsection (E)
    superfluous. Compare Utah R. Civ. P. 26(a)(4)(B) (stating that “[a]
    deposition shall not exceed four hours”), with 
    id.
     R. 26(a)(4)(E)
    (stating that “[a] deposition of such a witness may not exceed
    four hours”). Thus, the language in rule 26(a)(4)(B) applies only
    to discovery from retained experts, and therefore does not assist
    Luna here, because the depositions Sister took were of Luna’s
    non-retained experts.
    ¶46 The rule that does apply here is the subsection dealing
    with non-retained experts. See Utah R. Civ. P. 26(a)(4)(E). But, as
    noted, that subsection does not contain any provision assigning
    responsibility for payment of any hourly fee the non-retained
    expert might charge for her time during a deposition. 3 Thus,
    3. Not only does this rule differ from the Utah rule regarding
    retained experts, see Utah R. Civ. P. 26(a)(4)(B), but it also differs
    (continued…)
    20170994-CA                      25                
    2019 UT App 57
    Luna v. Luna
    nothing in any applicable rule requires Sister to pay the hourly
    fee of any non-retained expert witness that she deposes, and
    nothing in any applicable rule requires the district court to
    allocate those fees or related costs to any particular party in any
    particular way. 4
    ¶47 Luna argues—and Sister does not dispute—that there
    exists a “custom” among lawyers in Utah that the party
    requesting a deposition pay the court reporter’s fee for the
    original deposition transcript, and analogizes that the same rule
    should hold true for hourly fees charged by non-retained
    experts. See Caldwell v. Wheeler, 
    89 F.R.D. 145
    , 147 (D. Utah 1981)
    (citing a study indicating that, “[p]rior to 1970, . . . the
    overwhelming custom among lawyers was that the instigating
    party paid for the original deposition” transcript); see also
    Kirkham v. Societe Air France, 
    236 F.R.D. 9
    , 12 (D.D.C. 2006)
    (stating that “professional standards in some areas may permit
    treating physicians to be compensated for time spent as a
    witness or at a deposition”). But in the posture of this case,
    questions about the existence of any such “custom” are academic
    (…continued)
    from the applicable federal rule, see Fed. R. Civ. P. 26(b)(4)(E)
    (stating that “unless manifest injustice would result, the court
    must require that the party seeking discovery: (i) pay the expert
    a reasonable fee for time spent in responding to discovery
    under” the rule providing for depositions of experts).
    4. The Utah Rules of Civil Procedure require parties to pay
    subpoenaed witnesses “the fees for one day’s attendance and the
    mileage allowed by law,” Utah R. Civ. P. 45(b)(2), which Sister
    did in this case. These fees are nominal and calculated on a per
    diem basis, see Utah Code Ann. § 78B-1-119 (LexisNexis 2018),
    whereas a professional witness’s fee is usually calculated by the
    hour and may constitute a more significant amount of money.
    20170994-CA                    26                
    2019 UT App 57
    Luna v. Luna
    because, even if it were the custom in Utah that the party
    requesting the deposition of a non-retained expert should pay
    any costs or fees associated with that deposition, such a custom
    would not serve to create a mandatory obligation in the absence
    of a rule so stating, and could conceivably be varied in
    appropriate cases. 5
    ¶48 In a situation like this, where no rule mandates the
    allocation of these fees in any particular way, we default to the
    general rule that “[district] courts have broad discretion in
    matters of discovery.” Daniels v. Gamma West Brachytherapy, LLC,
    
    2009 UT 66
    , ¶ 54, 
    221 P.3d 256
     (quotation simplified). While
    district courts could conceivably take asserted “custom” into
    account when assessing discovery disputes like this one, there is
    no indication on this record that the district court abused its
    discretion in reaching its decision to deny Luna’s statement of
    discovery issues. We disagree with Luna that any provision of
    rule 26 mandates the opposite result, and Luna has not met his
    burden of demonstrating that the district court otherwise
    committed an abuse of discretion.
    CONCLUSION
    ¶49 We conclude that the district court properly treated
    Luna’s deposition testimony about the color of the traffic light as
    a binding judicial admission. However, the district court erred
    when it treated Luna’s equivocal testimony regarding his
    opinion of Sister’s driving that day as a judicial admission.
    Nevertheless, we affirm the district court’s ultimate grant of
    summary judgment on the merits of this case, because Luna
    presented the district court with no evidence of Sister’s
    5. To the extent that the text of the rules does not match local
    custom, that is a matter the parties can bring to the attention of
    the committee tasked with drafting and amending the rules.
    20170994-CA                    27                
    2019 UT App 57
    Luna v. Luna
    negligence, other than Driver’s testimony about the color of the
    light. Finally, we discern no abuse of discretion in the district
    court’s discovery order.
    ¶50   Affirmed.
    20170994-CA                   28                
    2019 UT App 57