VT Holdings v. My Investing Place , 440 P.3d 767 ( 2019 )

2019 UT App 37THE UTAH COURT OF APPEALS
VT HOLDINGS LLC, MATTHEW D. SCOTT, AND NELSON MOAK,
Appellants,
v.
MY INVESTING PLACE LLC, FIRST AMERICAN TITLE INSURANCE
AGENCY LLC, KAREN OGDEN, AND REAL CAPITAL FUNDING LTD,
Appellees.
Opinion
No. 20170647-CA
Filed March 14, 2019
Fifth District Court, St. George Department
The Honorable Thomas M. Higbee
No. 100503684
Gary W. Pendleton, Attorney for Appellants
Erik A. Olson, Bruce R. Baird, David C. Castleberry,
Ronald G. Russell, and Matthew J. Ball, Attorneys
for Appellees
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.
HAGEN, Judge:
¶1 This appeal stems from a judicial foreclosure action
brought by lenders VT Holdings LLC, Matthew D. Scott, and
Nelson Moak (collectively, VT Holdings) against property owner
My Investing Place LLC (MIP) and lenders Karen Ogden and
Real Capital Funding LTD (collectively, RCF). Although VT
Holdings had previously executed a document reconveying its
fourth-position trust deed to RCF, it claimed that the
reconveyance was ineffective because it never provided RCF
with an original copy of the document. VT Holdings also sought
damages against First American Title Insurance Agency LLC
VT Holdings v. My Investing Place
(First American) for wrongfully recording the reconveyance
based on an electronically transmitted document. Following a
bench trial, the district court determined that the reconveyance
was effective because the parties had agreed to conduct business
electronically. The court dismissed VT Holdings’ claims and
quieted title to the property at issue in favor of RCF. We affirm.
BACKGROUND 1
¶2 MIP purchased real property (the Property) from VT
Holdings, which MIP financed through several sources.
RCF provided a bridge loan 2 of $2.8 million 3 to MIP in exchange
for a promissory note secured by a first deed of trust
with assignment of rents to RCF as the beneficiary and First
American as the trustee. MIP intended to obtain permanent
financing from other sources and to repay RCF’s bridge
1. “On appeal from a bench trial, findings of fact shall not be set
aside unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the credibility of the
witnesses.” Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 2,
70 P.3d 35 (quotation simplified). “We relate the facts
accordingly, granting due deference to the trial court’s resolution
of factual disputes.” Id.
2. “A bridge loan is a short-term loan used until a person or
company secures permanent financing or removes an existing
obligation. It allows the user to meet current obligations by
providing immediate cash flow.” Bridge Loan Definition,
Investopedia (January 11, 2019), https://www.investopedia.com/t
erms/b/bridgeloan.asp [https://perma.cc/6VB3-VXA9].
3. RCF initially funded $2.9 million but “reduced the funded
amount by $100,000 at or near the time of closing and for all
purposes relevant here the original secured amount was $2.8
million.”
20170647-CA 2 2019 UT App 37VT Holdings v. My Investing Place
loan within ninety days. First American recorded the RCF trust
deed, and, as intended by the parties, the RCF trust deed was in
first priority position. MIP also obtained financing from two
other outside sources and those loans were secured by trust
deeds recorded in second and third positions. Finally, VT
Holdings provided $450,000 in seller financing secured by a trust
deed in fourth position.
¶3 Ultimately, MIP defaulted on all four loans secured by
the four trust deeds. RCF, based on its first priority position,
had two options: it could foreclose its trust deed or “it could
take back deeds in lieu of foreclosure.” Although taking
the deeds in lieu of foreclosure was a “riskier” choice,
RCF determined it was the “most viable” option because the
value of the Property was less than the value of the RCF trust
deed.
¶4 The lenders in second and third positions reconveyed
their trust deeds to RCF. RCF also requested a reconveyance
from VT Holdings. Two of RCF’s partners, Brady Boman and
Ray Zoll, contacted Moak, the majority owner of VT Holdings,
and asked him to authorize a request for reconveyance (the
Request for Reconveyance). Without a reconveyance, Boman and
Zoll told Moak that RCF would foreclose the RCF trust deed,
which would “wipe out” VT Holdings’ interest. Boman testified
that during this time “there were some discussions about [Moak]
being involved with [developing the Property] in the future, but
they were very general and very limited.”
¶5 Three of RCF’s representatives testified that Moak agreed
to the reconveyance. Because Boman’s practice was to deliver
the originals of the documents to the title company for
recording, he told Moak that he would need the original copy of
the Request for Reconveyance. According to Boman, Moak
would sign the Request for Reconveyance, “fax it to Zoll’s office,
and then deliver the original in due time.” After the
conversations with Moak, Zoll emailed Moak the Request for
Reconveyance. Moak and his business partner, Scott, signed and
20170647-CA 3 2019 UT App 37VT Holdings v. My Investing Place
notarized it. Moak then faxed the Request for Reconveyance
back to RCF.
¶6 According to Moak, he signed, notarized, and faxed the
Request for Reconveyance “only as a showing of good faith to
demonstrate that he would be willing to deliver the original if
some sort of agreement could be reached regarding his future
participation” in developing the Property. But he did not
communicate that intent or place any conditions on the Request
for Reconveyance when he faxed it to RCF. RCF’s paralegal
testified that when she followed up with Moak, he agreed to sign
and return the Request for Reconveyance without providing any
conditions or asking her to wait to send it to First American for
recording. A few days after he faxed the Request for
Reconveyance back to RCF, Moak met with one of RCF’s
representatives who “was not impressed with anything [Moak]
had to offer” regarding future participation in developing the
Property. That representative did not ask Moak for the original
copy of the Request for Reconveyance and Moak “did not
volunteer it.”
¶7 RCF delivered the Request for Reconveyance to First
American via email. First American recorded the reconveyance
(the Full Reconveyance) and mailed a copy of the Full
Reconveyance to VT Holdings’ business address, which released
VT Holdings’ trust deed and gave RCF clear title to the Property.
According to Moak, he did not receive the copy of the Full
Reconveyance and was not made aware of it until one year later.
After waiting a few months, Moak attempted to contact RCF
about the Full Reconveyance, but was unsuccessful. Moak then
contacted First American and requested that it rescind the Full
Reconveyance because Moak never gave RCF an original copy of
the Request for Reconveyance and had never intended VT
Holdings’ trust deed to be reconveyed. After Moak complied
with the requirement for requesting a rescission of a recorded
reconveyance, First American recorded a Rescission and Notice
of Erroneous Recordation (the Rescission).
20170647-CA 4 2019 UT App 37VT Holdings v. My Investing Place
¶8 Following the Rescission, VT Holdings initiated this
lawsuit, seeking judicial foreclosure of its trust deed and naming
MIP and RCF as defendants. 4 VT Holdings sought judgment in
the amount of $472,500, “plus interest at the rate of fifteen
percent” and an order “extinguishing any interest of [the named
defendants] in [the Property].” In the same lawsuit, VT Holdings
sued First American for erroneously reconveying VT Holdings’
trust deed without authorization and for the expenses VT
Holdings would “reasonably incur in successfully defending
[its] interest and priority in [the Property]” and “the diminution
in the value of [its] interest in [the Property] occasioned by the
intervening lien or interest of any innocent third party.”
¶9 In response, RCF answered the complaint and asserted
counterclaims, seeking to quiet title in its favor. First American
also answered the complaint and First American and RCF
asserted crossclaims against each other. The parties engaged in
fact and expert discovery and RCF designated an expert witness
to testify to the statutory requirements and industry standards of
a title company’s duty to a beneficiary when recording
reconveyances. First American designated Paul D. Newton as an
expert witness to rebut RCF’s expert’s testimony. VT Holdings
did not designate any expert witnesses. After both expert
witnesses were deposed, VT Holdings certified the case ready
for trial.
¶10 Prior to trial, First American determined that it correctly
recorded the Full Reconveyance based on the electronic copy
transmitted by RCF and therefore erroneously recorded the
Rescission requested by VT Holdings. RCF and First American
settled their differences and the court entered an order
dismissing their crossclaims. RCF then filed a motion in limine
to bar Newton from testifying at trial. Having settled its claims
4. VT Holdings named other parties as defendants, but those
parties are not relevant to this appeal.
20170647-CA 5 2019 UT App 37VT Holdings v. My Investing Place
with RCF, First American “stipulated to the entry of an order
barring his testimony.”
¶11 VT Holdings opposed the motion and claimed that there
was “nothing to prevent” it from calling Newton as an expert
witness, “or, in the event of his ‘unavailability,’ presenting his
testimony by use of his deposition.” VT Holdings explained that
the opinions advanced by Newton were “in line with the
theories of breach that [VT Holdings] advanced throughout the
proceedings.” But the district court concluded that VT Holdings
was precluded from calling Newton because it never designated
him as an expert witness as required by rule 26 of the Utah Rules
of Civil Procedure. The court explained that the “substance of
[Newton’s] position was known, to be sure, but the parties are
entitled to rely upon designation itself, or lack there[of], as they
prepare” for trial. The court granted the stipulated motion in
limine and excluded Newton’s testimony.
¶12 The case proceeded to a three-day bench trial. VT
Holdings presented its case-in-chief and argued that the
reconveyance was ineffective because VT Holdings did not
deliver the original copy of the Request for Reconveyance, as
required by industry standards, and did not agree to conduct
business electronically with RCF, as required by statute. VT
Holdings also claimed that First American breached its duty
under the trust deed because it could only reconvey the trust
deed “upon written request of [VT Holdings] . . . and
presentation of [VT Holdings’ trust deed] and the note for
endorsement.” VT Holdings argued that this language of the
trust deed required First American to obtain the original copy of
the Request for Reconveyance and not an electronic copy. VT
Holdings relied primarily on Moak’s testimony to prove its
claims.
¶13 When VT Holdings rested its case-in-chief on the second
day of trial, First American moved for judgment on partial
findings under rule 52(e) of the Utah Rules of Civil Procedure.
First American first argued that VT Holdings failed to prove that
20170647-CA 6 2019 UT App 37VT Holdings v. My Investing Place
First American breached its duty of care when it recorded the
Full Reconveyance without the original copy of the Request for
Reconveyance because VT Holdings did not present expert
testimony or other evidence “to establish such a standard of
care, [which is] an essential element of their claim.” Second, First
American argued that VT Holdings failed to offer any evidence
of damages or diminution of value of their interest in the
Property. The district court granted First American’s motion
with respect to the claim for money damages, but it denied the
motion with respect to whether First American breached a duty
owed to VT Holdings, concluding that the court would be “in a
better position to rule on that issue” after RCF presented its
defense that the Full Reconveyance was properly recorded. The
court explained that First American would remain a party in the
case only for the resolution of whether the Full Reconveyance
was properly recorded, which could have an effect on RCF’s
request to quiet title to the Property in its favor.
¶14 Following the bench trial, the district court issued its
ruling, finding that “the position stated by [Moak] doesn’t make
any sense” because “[s]igning an ineffective document adds
nothing to either the good faith of [VT Holdings] or the
likelihood that a deal would be reached” between VT Holdings
and RCF about future development possibilities related to the
Property. Moak attempted to provide “other explanations about
why he signed and returned [the Request for Reconveyance] to
RCF even though it wasn’t going to be effective, none of which
[made] sense” to the court. In addition, the court found that VT
Holdings was “not in a position to start throwing out demands.”
“Had Moak told [RCF] flat out that he would not sign [the
Request for Reconveyance] until they had reached a deal” that
allowed VT Holdings to stay involved in developing the
Property, “it seem[ed] pretty clear that RCF would simply have
foreclosed” without VT Holdings’ reconveyance because VT
Holdings’ trust deed position was “behind two prior trust deeds
securing balances significantly greater than the value of [the
Property].” Also, by selling the Property to MIP in the first place,
VT Holdings showed that it “wasn’t interested [in] and/or didn’t
20170647-CA 7 2019 UT App 37VT Holdings v. My Investing Place
have the ability to develop” the Property. The court ultimately
found that “[i]t strains credulity to think that RCF would risk its
first priority on the possibility that they could reach a
subsequent vague deal with Moak,” who had nothing to offer
and “could not improve the development possibilities” of the
Property.
¶15 The court concluded that “the Request for Reconveyance
was properly delivered and was effective when delivered. . . .
Zoll made the request supported by the conversation between
Boman and Moak. [RCF’s paralegal] followed up. [Moak]
obtained signatures on the [Request for Reconveyance] and
returned it via fax to [RCF]. There were no conditions attached
to the delivery and it was effective.” The court also concluded
that “First American acted properly in recording the [Full
Reconveyance]” and “did not breach its duty to VT Holdings.”
In further support of these conclusions, the court explained the
witnesses for RCF and First American were more credible than
Moak because they had a “greater understanding of the
transactions at hand” and “[t]heir testimony was more precise
and backed up by the documents.” In contrast, Moak “was
vague and [e]lusive” and the court “considered [his] conviction
of a crime involving moral turpitude which hamper[ed] his
credibility.”
¶16 VT Holdings appeals. 5
5. During the pendency of this appeal, RCF filed a motion
suggesting that “any issues on appeal pertaining to the
disposition or ownership of [the Property] . . . have become moot
due to the sale of the Property to a third party,” and therefore
any relief this court could award is “now unavailable.” We
disagree. VT Holdings’ appeal is not moot, because VT Holdings
filed a notice of lis pendens with the district court at the outset of
litigation and “record[ed] a copy of the notice filed with the
court with the county recorder in [Washington County, Utah]
(continued…)
20170647-CA 8 2019 UT App 37VT Holdings v. My Investing Place
ISSUES AND STANDARDS OF REVIEW
¶17 VT Holdings raises two overarching contentions on
appeal. First, VT Holdings contends the district court
erroneously determined that the Full Reconveyance was
effective because the parties did not agree to conduct business
electronically and a faxed document does not constitute a
“written document” under the relevant statute or VT Holdings’
trust deed. On appeal from a bench trial, we review the findings
of fact for clear error and give “due regard” to the district court’s
opportunity to judge the credibility of the witnesses. See Armed
Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 2, 70 P.3d 35(quotation simplified). We review the district court’s
interpretation of VT Holdings’ trust deed and the relevant
statutes for correctness. See Fisher v. Davidhizar, 2018 UT App
153, ¶ 8 (providing the standard of review for the interpretation
of a contract); Bott v. Osburn, 2011 UT App 139, ¶ 5, 257 P.3d
1022 (“The proper interpretation and application of a statute is a
question of law which we review for correctness, affording no
deference to the district court’s legal conclusions.” (quotation
simplified)).
(…continued)
where . . . [the Property] is located.” See Utah Code Ann. § 78B-6-
1303(1) (LexisNexis 2018). Our supreme court has “long ago
recognized the on-going potency and effectiveness of a recorded
lis pendens after judgment,” which gives “constructive notice of
the pendency of proceedings,” including a “pending appeal,”
“which may be derogatory to an owner’s title or right to
possession.” Hidden Meadows Dev. Co. v. Mills, 590 P.2d 1244,
1247–48 (Utah 1979). The issues raised on appeal by VT Holdings
are therefore not moot, and the new owners of the Property have
been given “constructive notice of the pendency of proceedings
which may be derogatory to [the] owner’s title or right to
possession” through VT Holdings’ recording of the notice of lis
pendens. Id.20170647-CA 9 2019 UT App 37VT Holdings v. My Investing Place
¶18 Second, VT Holdings contends the district court erred in
excluding Newton’s expert testimony under rule 26 of the Utah
Rules of Civil Procedure or, alternatively, in denying VT
Holdings’ request for a continuance to designate an expert
witness. District courts have “broad discretion in selecting and
imposing sanctions for discovery violations under rule 26,” such
as the exclusion of expert testimony, and we will “not interfere
with such discretion unless there is either an erroneous
conclusion of law or no evidentiary basis for the trial court’s
ruling.” Baumann v. Kroger Co., 2016 UT App 165, ¶ 14, 381 P.3d
1135 (quotation simplified), aff’d in part and vacated in part on other
grounds 2017 UT 80, 416 P.3d 512. Similarly, the district court
“has substantial discretion in deciding whether to grant
continuances and will not be reversed on appeal unless it has
abused that discretion by acting unreasonably.” Hill v. Dickerson,
839 P.2d 309, 311 (Utah Ct. App. 1992) (quotation simplified).
But we review the district court’s interpretation of a rule of civil
procedure for correctness. 6 Harris v. IES Assocs., Inc., 2003 UT
App 112, ¶ 25, 69 P.3d 297.
ANALYSIS
I. The Full Reconveyance Was Effective
¶19 None of the parties dispute that First American was
permitted to reconvey VT Holdings’ trust deed “only upon [First
American’s] receipt of a written request for reconveyance,”
pursuant to Utah Code section 57-1-33.1 and the provisions of
VT Holdings’ trust deed. See Utah Code Ann. § 57-1-33.1(LexisNexis 2010). However, section 57-1-33.1 does not expressly
require an original copy of the “written request.” See generally id.Under the Uniform Electronic Transactions Act (UETA), “[i]f a
6. In light of our conclusion that the Full Reconveyance was
effective, it is unnecessary to reach the alternative arguments
raised on appeal by VT Holdings.
20170647-CA 10 2019 UT App 37VT Holdings v. My Investing Place
law requires a record to be in writing, an electronic record
satisfies the law” and “[i]f a law requires a signature, an
electronic signature satisfies the law.” Id. § 46-4-201(3), (4) (2018).
“A record or signature may not be denied legal effect or
enforceability solely because it is in electronic form,” and a
“contract may not be denied legal effect or enforceability solely
because an electronic record was used in its formation.” Id. § 46-
4-201(1), (2).
¶20 But the UETA applies only to parties who have “agreed to
conduct transactions by electronic means.” Id. § 46-4-105(2)(a).
VT Holdings contends that none of the parties had an agreement
to conduct business electronically, and therefore a fax of the
Request for Reconveyance does not constitute a writing under
either Utah Code section 57-1-33.1 or VT Holdings’ trust deed.
“Whether or not the parties agree to conduct a transaction by
electronic means is determined from the context and
surrounding circumstances, including the parties’ conduct.” Id.
§ 46-4-105(2)(b).
¶21 Here, there is sufficient evidence to support the district
court’s factual finding that RCF and VT Holdings had agreed to
conduct business electronically. The court found that Moak
accepted an email from RCF’s paralegal with the Request for
Reconveyance attached. Both Moak and Scott signed the Request
for Reconveyance and notarized their signatures. Moak then
faxed the Request for Reconveyance back to RCF without stating
any conditions or otherwise informing RCF that the Request for
Reconveyance was not intended to be effective. The court found
that “the lack of a valid reason why everyone would go to the
trouble of preparing [the Request for Reconveyance], get it
signed, get it notarized, and arrange to return it [electronically],
for no legal effect,” is the “primary weakness” of VT Holdings’
argument.
¶22 Although Moak testified at trial that the purpose of faxing
the Request for Reconveyance after signing and notarizing it was
to show “good faith” for further discussions about VT Holdings’
20170647-CA 11 2019 UT App 37VT Holdings v. My Investing Place
future involvement in developing the Property, the district court
found Moak’s testimony incredible. Because the district court
has the opportunity to view the witnesses and weigh their
credibility, we defer to such findings unless the record
demonstrates clear error. See American Fork City v. Thayne, 2012
UT App 130, ¶ 4, 279 P.3d 840. Here, VT Holdings “has provided
no reason for this court to depart from the deference we grant
the trial court to make credibility determinations.” Id. (quotation
simplified). VT Holdings presented no evidence to support its
assertion that “[s]igning an ineffective document add[ed] . . . to
either the good faith of [VT Holdings] or the likelihood that a
deal would be reached” between VT Holdings and RCF about
VT Holdings’ future involvement in developing the Property.
Moreover, VT Holdings was “not in a position to start throwing
out demands,” because its trust deed position was “behind two
prior trust deeds securing balances significantly greater than the
value of [the Property]” and, therefore, “[h]ad Moak told [RCF]
flat out that he would not sign the [Request for Reconveyance]
until they had reached a deal,” “it seems pretty clear that RCF
would simply have foreclosed.” Based on “the context and
circumstances” of the case, there was ample evidence to support
the district court’s finding that VT Holdings and RCF agreed to
conduct this transaction electronically. See Utah Code Ann. § 46-
4-105(2)(b) (LexisNexis 2018).
¶23 There was also sufficient evidence in the record to
support an agreement between RCF and First American to
conduct business electronically. RCF emailed First American the
Request for Reconveyance, and First American acted on the
email by recording the Request for Reconveyance without asking
for the original document. Although VT Holdings argues that
First American and RCF never “exchanged a single word
concerning [VT Holdings’ trust deed] or the prospect of
transacting any business by electronic means,” the UETA does
not require an express agreement. The district court properly
inferred such an agreement based on “the context and
20170647-CA 12 2019 UT App 37VT Holdings v. My Investing Place
surrounding circumstances, including the parties’ conduct.” See
id. 7
¶24 The context of this transaction and the parties’ conduct in
this case provided sufficient evidence to support an agreement
to conduct business electronically. See id. We therefore conclude
the district court correctly determined that all of the relevant
parties agreed to conduct business electronically. See id. And
because there is no dispute that a request for reconveyance
electronically transmitted to a title company in accordance with
UETA satisfies the requirement for a written request under Utah
Code section 57-1-33.1, the court correctly determined that the
Full Reconveyance was properly recorded.
II. Expert Witness
¶25 VT Holdings contends the district court erred in
precluding VT Holdings from calling Newton, the expert
witness designated by First American. Rule 26 of the Utah Rules
of Civil Procedure provides: “If a party fails to disclose or to
supplement timely a disclosure or response to discovery, that
party 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.” Utah R. Civ. P.
26(d)(4); see also R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App
124, ¶ 11, 327 P.3d 1233 (providing that a party need only show
that the late disclosure was “either justified or harmless,” not
both (quotation simplified)). “Critically, a district court has
broad discretion in selecting and imposing sanctions for
discovery violations under rule 26.” Baumann v. Kroger Co., 2016
UT App 165, ¶ 14, 381 P.3d 1135 (quotation simplified), aff’d in
part and vacated in part on other grounds 2017 UT 80, 416 P.3d 512.
7. VT Holdings also argues that the parties’ conduct did not give
rise to an agreement to conduct business electronically between
VT Holdings and First American, but it fails to offer any
explanation as to why such an agreement would be necessary.
20170647-CA 13 2019 UT App 37VT Holdings v. My Investing Place
“Appellate courts may not interfere with such discretion unless
there is either an erroneous conclusion of law or no evidentiary
basis” for the district court’s ruling. Id. (quotation simplified).
¶26 VT Holdings does not argue that it had good cause for
failing to designate an expert witness. Instead, it argues that this
failure was harmless because “no party would have been
surprised by the substance” of Newton’s testimony as he
submitted a report and was deposed by RCF, First American,
and VT Holdings. We disagree.
¶27 First American retained Newton to rebut RCF’s expert’s
testimony that the Rescission was improper. After First
American and RCF settled their cross-claims, this testimony was
no longer relevant. VT Holdings never designated Newton as an
expert witness, nor did it disclose that Newton would opine on
the propriety of the Full Reconveyance. Because VT Holdings
never disclosed that it would offer expert testimony on whether
the Request for Reconveyance was effective, neither RCF nor
First American were on notice that it would need to rebut such
expert testimony. See Roundy v. Staley, 1999 UT App 229, ¶ 11,
984 P.2d 404 (explaining that “the purpose of Utah’s discovery
rules” is to “facilitate[e] fair trials with full disclosure of all
relevant testimony and evidence”). To the contrary, RCF and
First American “relied on this lack of an expert disclosure when
conducting discovery, engaging in settlement negotiations, and
conducting their litigation and trial preparation.” As a result, VT
Holdings’ failure to designate an expert witness was not
harmless and the district court acted within its discretion in
excluding the witness.
¶28 Similarly, we disagree with VT Holdings’ assertion that
the court erred in denying VT Holdings’ request for a
continuance to designate an expert witness. “The granting of a
continuance rests in the sound discretion of the trial court. The
judge’s action in denying a continuance will not be reversed on
appeal unless the court has abused that discretion by acting
unreasonably.” Hardy v. Hardy, 776 P.2d 917, 925–26 (Utah Ct.
20170647-CA 14 2019 UT App 37VT Holdings v. My Investing Place
App. 1989) (quotation simplified). Here, VT Holdings’ “request
for a continuance was solely due to [its] own failure to retain and
designate” an expert witness by the close of expert discovery
and mere weeks before trial. See Hill v. Dickerson, 839 P.2d 309,
311 (Utah Ct. App. 1992) (explaining that the appellant’s “second
request for a continuance was solely due to her own failure to
retain and designate a new expert witness in a timely manner”
and concluding that the district court did not exceed its
discretion when it denied that request). The district court
exercised sound discretion when it denied VT Holdings’
untimely request for a continuance to designate an expert
witness that could have been designated prior to the close of
expert discovery.
CONCLUSION
¶29 We conclude the district court did not err in determining
that the Full Reconveyance was effective and properly recorded
because the parties had agreed to conduct business
electronically. In addition, the court acted within its discretion in
excluding Newton’s expert testimony and denying VT Holdings’
request for a continuance. Accordingly, we affirm.
20170647-CA 15 2019 UT App 37