Duffin v. Duffin

       THE UTAH COURT OF APPEALS

           JAMES MARLO DUFFIN JR.,
                 Appellant,
                     v.
          BRANDY ELIZABETH DUFFIN,
                  Appellee.

                    Opinion
                No. 20221046-CA
             Filed October 31, 2024


           BRANDY ELIZABTH DUFFIN,
                 Appellee,
                      v.
             JAMES M. DUFFIN III,
                 Appellant.

                    Opinion
                No. 20221047-CA
             Filed October 31, 2024


         BRANDY ELIZABETH DUFFIN,
                Appellant,
                     v.
JAMES MARLO DUFFIN JR. AND JAMES M. DUFFIN III,
                Appellees.

                    Opinion
                No. 20221098-CA
             Filed October 31, 2024

   Third District Court, Salt Lake Department
       The Honorable Andrew H. Stone
                  No. 200900444

       Troy L. Booher and Taylor P. Webb,
       Attorneys for James Marlo Duffin Jr.
                          Duffin v. Duffin


              Julie J. Nelson and Mitchell J. Olsen, Jr.,
                  Attorneys for James M. Duffin III
             T. Jake Hinkins and Renee L.H. Blocher,
              Attorneys for Brandy Elizabeth Duffin

 JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER concurred.

LUTHY, Judge:

¶1     While James M. Duffin III (James 1) and Brandy Elizabeth
Duffin were married, they worked with a builder to construct a
house (the Property), which they moved into after it was
completed. When James and Brandy later sought a divorce, James
argued that his father, James Marlo Duffin Jr. (Marlo), who had
paid at least $410,875.42 of the $429,875.42 purchase price for the
Property, owned the Property. Without resolving the issue of who
owned the Property, the court presiding over the divorce found
that any interest James or Brandy had in the Property was not
marital property. We reversed that decision upon Brandy’s
appeal, concluding that whatever interest James or Brandy had in
the Property—if any—was marital property. See Duffin v. Duffin,

, ¶ 32, 

, cert. denied, 

(Utah 2022).

¶2     During the pendency of the divorce proceedings, Marlo
filed a quiet title action against James and Brandy, requesting a
declaration that Marlo is the owner of the Property. Brandy
brought a counterclaim against Marlo for civil conspiracy and
crossclaims against James for negligent misrepresentation,
fraudulent non-disclosure, fraudulent conveyance, civil
conspiracy, and a violation of Utah’s Uniform Voidable


1. Because the parties share a surname, we refer to them by first
names, with no disrespect intended by the apparent informality.
Moreover, because two of the parties share a given name, we
distinguish them according to the names used in the briefing.


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                           Duffin v. Duffin


Transactions Act (the UVTA). She also sought a declaratory
judgment “that James had a legal interest in the Property.”

¶3     Brandy later filed a motion for summary judgment on her
claims against James, relying on the fact that James had failed to
provide initial disclosures. James did not respond to that motion,
and the district court granted summary judgment against him
subject to a trial on the issue of damages. Marlo then argued that
he could not receive a fair jury trial if the issue of his liability was
going to be tried together with the issue of damages as to James
because in such a trial, the court would inform the jury that James
was already liable for civil conspiracy and Marlo was the only
possible co-conspirator. The court rejected that argument, and a
jury subsequently found that James was the sole owner of the
Property and that James and Marlo were liable for civil
conspiracy. The jury awarded Brandy compensatory and punitive
damages against both James and Marlo. Each party now appeals,
and this opinion resolves all three appeals.

¶4     James appeals the district court’s grant of Brandy’s
unopposed summary judgment motion. We conclude that
Brandy’s summary judgment motion did not establish a basis for
judgment as a matter of law and that the court thus erred by
granting summary judgment against James. We therefore reverse
the grant of summary judgment and vacate the subsequent
damages awards and associated declaratory judgment.

¶5     Marlo appeals the district court’s decision not to bifurcate
his and James’s trials. We determine that the court abused its
discretion by not bifurcating the trials. Thus, we vacate the
judgment against Marlo, including the damages awards and the
associated declaratory judgment.

¶6    Brandy appeals the punitive damages awards that were
entered in her favor, asserting that the amounts of those awards
were inadequate in light of the compensatory damages awarded
in her favor. Because our resolution of James’s and Marlo’s




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appeals results in our vacating the punitive damages awards
Brandy now contests, we dismiss Brandy’s appeal as moot.


                        BACKGROUND

                   The Purchase of the Property

¶7      James and Brandy were married in 2015. See Duffin v.
Duffin, 

, ¶ 2, 

, cert. denied, 

 (Utah 2022). They sought and obtained preapproval for a
home loan of up to $360,000, and in April 2016 they entered into
a purchase agreement with Ivory Homes for a home to be
constructed in West Jordan. See id. ¶ 3. James paid a security
deposit of $1,000 to Ivory Homes from an account in his name,
though he later admitted that money from Brandy’s income may
also have been in that account. See id. ¶ 3 & n.2. James later
testified that Marlo reimbursed him for the $1,000. See id. ¶ 3.

¶8       In June 2016, James’s grandfather paid $18,000 to Ivory
Homes as a pre-construction deposit, which “James asserted . . .
was actually an advance on [Marlo’s] inheritance” from the
grandfather. Id. ¶ 4. In February 2017, on the day before closing,
James sent an email to Marlo titled “Loan Contract,” which said
that Marlo was “dispensing a loan of $429,875.42 to purchase [the
Property]” and that James was responsible for repaying the loan.
Id. ¶ 5. The next day, Marlo paid the outstanding balance on the
Property—$410,875.42—to the title company. See id. ¶¶ 1, 4. A
warranty deed listing only James as grantee of the Property was
then recorded, and James and Brandy moved into the home. See
id. ¶ 6.

¶9     In February 2018, James executed and recorded a new
warranty deed adding Marlo to the title of the Property. See id.
¶ 7. Later, “Brandy contended that the ‘marriage was struggling
and divorce was a very real possibility’ at the time James added
[Marlo] to the title of the [P]roperty.” Id.




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                         Duffin v. Duffin


                     The Divorce Proceedings

¶10 James and Brandy separated in July 2018, and the
following month, James petitioned for divorce. See id. ¶ 8. In the
divorce proceedings, Brandy requested that the Property be sold
and the equity be divided equally between her and James. See id.
¶ 10. James asserted that he had purchased the Property on
Marlo’s behalf, though James admitted he had never informed
anyone that he was acting as Marlo’s agent and he was unaware
of any written evidence indicating that he had been acting on
Marlo’s behalf. See id. ¶ 11.

¶11 Marlo also testified that James was acting on his behalf and
that he never intended the Property to be a gift to James. See id.
¶ 12. Like James, Marlo admitted to the lack of documentary
evidence of an agency relationship between him and James. See id.
But he said, “[I]t was always understood between my son and me
that that was my house.” Id. Marlo stated that although he had
discussed the Property with James many times, he had never had
any conversation with Brandy about the financial aspects of the
purchase. See id. ¶ 14.

¶12 Brandy agreed that she had never had a conversation with
Marlo about the financial aspects of the purchase of the Property,
and she testified that James had never talked to her about
purchasing the Property on Marlo’s behalf. See id. ¶ 15. She stated
that she and James chose the floorplans and finishings, that James
never indicated a need to check with Marlo about design choices,
that the $1,000 deposit was from their comingled funds, and that
she and James completed landscaping on the Property and added
various outdoor features, including a cement pad, fence, and
basketball standard. See id.

¶13 The court presiding over the divorce found that the
Property was not marital property, and Brandy appealed that
determination. See id. ¶¶ 16, 20. This court reversed, saying, “The
extent to which Brandy and James even have an interest in the
[P]roperty is an issue that will be decided in the separate lawsuit



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                           Duffin v. Duffin


[filed by Marlo] . . . . But to the extent they are adjudicated to have
an interest in the [Property], that interest is marital property
subject to equitable distribution between them.” Id. ¶ 32.

                   The Origins of the Present Case

¶14 The present case—i.e., the “separate lawsuit” referenced in
our opinion resolving the divorce appeal—began as a quiet title
action filed by Marlo against both Brandy and James in January
2020, during the pendency of the divorce proceedings. In his
complaint, Marlo alleged that he was “the true and legal owner of
the Property.” He also asserted a claim of conversion against
Brandy, and he later amended his complaint to include claims
against Brandy for waste and unjust enrichment as well.

¶15 Brandy filed an answer, a counterclaim against Marlo, and
a crossclaim against James. In her counterclaim, she alleged civil
conspiracy against Marlo. In her crossclaim, she alleged negligent
misrepresentation, fraudulent non-disclosure, fraudulent
conveyance, and civil conspiracy against James. Brandy later
amended her crossclaim and her counterclaim to allege that James
and Marlo had also violated the UVTA, though she ultimately
dismissed that claim as against Marlo. In her amended pleadings,
Brandy further sought a declaratory judgment “that James had a
legal interest in the Property.”

¶16 In April 2021, James and Marlo answered Brandy’s
amended crossclaim and amended counterclaim. In his answer,
James stated (among other things) that although he had
previously been a resident of Salt Lake County, he was now a
resident of Utah County. Then in June 2021, James’s counsel
withdrew and identified the Property, which is in Salt Lake
County, as James’s last known address, and he mailed his notice
of withdrawal to that address. James claims that he never received
a copy of the notice of withdrawal because he was then living in
Utah County. In July 2021, Brandy filed a notice for James and
Marlo to appear or appoint counsel, and she mailed that notice to
James at the Property and to Marlo at a different Salt Lake County



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                         Duffin v. Duffin


address. James claims that Brandy and her counsel were aware he
was then living in Utah County and that he never received that
notice either.

              Brandy’s Motion for Summary Judgment

¶17 In September 2021, Brandy filed a motion for summary
judgment. In her statement of undisputed material facts, Brandy
stated only that “[t]he parties have differing views on many
aspects of this case,” that Marlo had failed to “disclose any
computation of damages” or “provide any sort or semblance of an
itemized list of the specific property items that Brandy [was]
alleged to have taken or damaged,” and that “James [had]
provided no initial disclosures.” In the argument portion of her
motion, Brandy argued that Marlo’s failures caused his claims of
conversion, unjust enrichment, and waste to fail as a matter of law
and that those claims should be dismissed with prejudice.

¶18   As to James, she argued,

      James has not complied at all with his initial
      disclosure requirements in this case. Accordingly,
      his answer to the amended cross-claim in this matter
      should be stricken and Brandy should be awarded
      judgment against James as requested in her
      amended cross-claim. At a minimum, for all of the
      reasons set forth herein, James should be precluded
      from putting on any evidence at trial, since he did
      not provide any disclosures in this case.

James claims he did not receive the summary judgment motion,
which Brandy mailed to the Property.

¶19 Neither James nor Marlo responded to Brandy’s motion,
and in December 2021, the district court granted summary
judgment in Brandy’s favor. In its order, the court stated,




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                          Duffin v. Duffin


       1. [Marlo] did not disclose any computation of
       damages, fact discovery and expert discovery is
       over and no supplement or attempt to do so has
       been provided. Accordingly, he cannot provide
       evidence that would support any award of damages
       and his remaining claims fail as a matter of law.

       2. All of [Marlo’s] claims are dismissed with
       prejudice.

       3. [James] did not provide any initial disclosures in
       this case, and fact and expert discovery is now
       closed. Because of his failure to comply with his
       [r]ule 26 disclosure requirements, his answer to the
       amended crossclaim is stricken and judgment is
       granted in favor of [Brandy], subject to a trial on
       damages.

Because Brandy did not seek summary judgment on her
crossclaim against Marlo for civil conspiracy, the court did not
rule on that claim.

                    James’s Motions to Set Aside

¶20 In February 2022, James moved the court to set aside its
summary judgment order against him, contending that the order
was based on mistake and excusable neglect. See generally Utah R.
Civ. P. 60(b)(1) (“On motion and upon just terms, the court may
relieve a party or its legal representative from a judgment, order,
or proceeding for . . . mistake, inadvertence, surprise, or excusable
neglect.”). Among other things, he asserted that Brandy already
“had in her possession all documents [he] would have included
in his Initial Disclosures” because he had provided them to her in
the divorce action.

¶21 Marlo filed a memorandum in support of James’s motion,
and at a hearing on the motion, Marlo’s counsel explained Marlo’s
objection to the summary judgment order. Marlo’s counsel


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                           Duffin v. Duffin


asserted that “[e]ach and every one of Brandy’s causes of action,
whether it’s against Marlo or against James, . . . include essentially
the same set of facts.” He then argued that “[i]f the claims
involving James . . . have already been decided, then [Marlo]
walks into court already facing an uphill battle.” Not only would
Marlo have to defend himself from the claims alleged against him,
Marlo’s counsel explained, but he would have “to overcome this
presumption that the jury will have that, well, if James is liable,
then obviously Marlo must be liable.” Marlo’s counsel expressed
doubt that lay jurors would be able to fairly adjudicate Marlo’s
liability where James had already been deemed liable, regardless
of what instructions the jury might receive. He contended that
approaching trial that way would be “unduly burdensome” and
“unduly prejudicial” and would not give Marlo “a fair shake at
trial.” Ultimately, he stated that while there was not a motion
before the court to bifurcate the trial, “[i]n reality, if the court is
intent on keeping the [summary judgment] order . . . [,] the issues
should probably be bifurcated, where [Marlo] can try and prove
his claims independent of [the] already decided claims against
James.”

¶22 The district court denied James’s motion to set aside the
summary judgment order. The court stated that it was James’s
“obligation to keep the [c]ourt apprised of the proper address for
service” and that the various filings “were served correctly.”
Regarding initial disclosures, the court was not satisfied that
Brandy had necessarily been provided with all of the necessary
information through James’s disclosures in the divorce case. It
determined that “[w]ithout disclosures [in this case], Brandy is in
a poor position to guess at how this case will be defended.” The
court continued, “With respect to confusion among the jury, it is
no different than a case where one party has defaulted and does
not appear at trial, but for purposes of the case has admitted to
the allegations in the complaint, whereas the other party
continues to defend. The [c]ourt can handle that potential issue at
trial.”




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¶23 James then filed a second motion to set aside the summary
judgment order. This time, James asserted that the court had in
essence “imposed discovery sanctions and entered a default
judgment” by granting summary judgment based on his lack of
response to Brandy’s motion and his lack of initial disclosures. He
argued that rules 26 and 37 of the Utah Rules of Civil Procedure
“are the proper vehicles for addressing discovery disputes,” that
those rules “impose mandatory processes and certifications prior
to a court imposing sanctions,” and that “Brandy did not comply
with any of these required steps.” James continued, “Viewing the
matter through the lens of a summary judgment, Brandy failed to
meet her burden of proof on her claims. James is the defendant—
he need not put on any evidence to prevail. Brandy’s unverified
motion presented no evidence. She cannot have been found to
have satisfied her burden.”

¶24 The court denied James’s second motion to set aside the
summary judgment order. The court reasoned,

       [T]his is not unusual to have summary judgment
       based on a failure to make disclosures. It’s not a
       sanction. It’s simply a motion that says this person
       is not in a position to oppose my case. We can dig
       into whether the summary judgment was proper,
       but that’s just not something we need to do in terms
       of an unopposed motion.

                   The Trial and Jury Instructions

¶25 The case then proceeded to a jury trial. During the trial, the
court granted Marlo’s motion for a directed verdict as to Brandy’s
fraudulent non-disclosure claim against him but denied the
motion with respect to her civil conspiracy claim against him.

¶26 Before deliberation, the court read the various jury
instructions. Instruction 23 was the court’s effort to clarify that the
jury was to independently determine whether Marlo was liable
for civil conspiracy even though James had already been deemed



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                          Duffin v. Duffin


liable for civil conspiracy. In relevant part, Instruction 23 read as
follows:

              Brandy’s claims against Marlo are for:
       1) fraudulent non-disclosure; 2) civil conspiracy;
       and 3) for declaratory judgment.

              Brandy’s claims against [James] are for:
       1) Negligent Misrepresentation; 2) Fraudulent Non-Disclosure; 3) Fraudulent Conveyance; 4) Civil
       Conspiracy; 5) violation of [the UVTA] against him;
       and 6) declaratory judgment. The [c]ourt has
       already determined that [James] is responsible, due
       to procedural issues, to Brandy for the first 5 causes
       of action, with Brandy bearing the burden of now
       proving the extent that she has been damaged by
       [James] and that she is entitled to money damages.

               You are instructed to make independent
       findings as it relates to each defendant. You may
       make one set of findings against one defendant and
       a different set of findings against the other
       defendant. Therefore, the [c]ourt’s previous ruling
       as it related to [James] being responsible to Brandy
       shall have no impact on how you come to
       independent findings as it relates to Marlo’s liability
       in this matter.

               The [c]ourt has also previously determined
       that [James] had a legal interest in the [Property]. As
       part of Brandy’s claim for declaratory judgment,
       you will be charged with determining the extent of
       [James’s] and/or Marlo’s respective interests in the
       [P]roperty.




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                          Duffin v. Duffin


                      The Verdict and Appeals

¶27 The jury returned a verdict in favor of Brandy via a special
verdict form. The first question on the form read, “As of
immediately before the divorce was finalized, what percentage of
ownership in the [P]roperty belongs to Marlo and [James],
respectively? The combination of percentage must equal 100%
and you may allocate 0% to 100% for each individual.” The jury
wrote 0% for Marlo and 100% for James.

¶28 Regarding civil conspiracy, the jury was asked, “Did you
find by clear and convincing evidence that Marlo and [James]
engaged in a civil conspiracy consisting of one or more unlawful,
overt acts relating to the [Property]?” The jury checked “YES.” It
also checked “YES” for the question “Do you find by clear and
convincing evidence that Brandy suffered monetary damages as
a result of a civil conspiracy relating to the property at issue?” The
jury awarded Brandy $205,500 in damages on this issue.

¶29 As to Brandy’s claim against James for negligent
misrepresentation, the jury found that she had proved by a
preponderance of the evidence that she had been damaged, and it
awarded her $5,000.

¶30 On Brandy’s claim against James for fraudulent non-disclosure, the jury found that she had proved by clear and
convincing evidence that she had been damaged, and it awarded
her $106,000.

¶31 With regard to Brandy’s claim against James for fraudulent
conveyance, the jury found that Brandy had not proved by clear
and convincing evidence that she had been damaged.

¶32 As to Brandy’s claim that James violated the UVTA, the
jury found that she had not proved by a preponderance of the
evidence that she had been damaged.

¶33 Finally, the jury found grounds for punitive damages
awards against both James and Marlo, and it awarded Brandy


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                          Duffin v. Duffin


punitive damages of $5,137.50 against Marlo and $10,687.50
against James.

¶34 The court then entered judgment according to the jury’s
verdict, and each of the parties now appeals.


            ISSUES AND STANDARDS OF REVIEW

¶35 In his appeal, James argues that the district court erred by
granting Brandy’s summary judgment motion. “We review a
grant of summary judgment for correctness. We give no deference
to the district court’s legal conclusions and consider whether the
court correctly decided that no genuine issue of material fact
existed. We review the facts in a light most favorable to the party
against whom summary judgment was granted.” Heslop v. Bear
River Mutual Ins. Co., 

, 

 (cleaned up). 2

¶36 In his appeal, Marlo asserts that the district court abused
its discretion by failing to bifurcate his and James’s trials. We
review a court’s bifurcation decision for an abuse of discretion. See
Tobler v. Tobler, 

, 

. 3



2. James also asserts that the district court erred by denying his
motions to set aside the summary judgment order. Because we
reverse the grant of summary judgment, we need not separately
address this issue. Additionally, James contends that the court’s
striking of his answer and granting summary judgment to Brandy
violated his constitutional due process rights. Because we reverse
the grant of summary judgment and vacate the subsequent
damages awards, we need not address this issue either.

3. Marlo raises various other issues that we need not address
because we reverse and remand the matter for a new trial based
on the lack of bifurcation under these circumstances. However,
we note one issue that is likely to arise on remand—whether a
                                                  (continued…)


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¶37 In her appeal, Brandy contends that the jury’s punitive
damages awards were inadequate. Because we reverse the grant
of summary judgment and damages awards as to James as well as
the jury’s verdict and damages awards as to Marlo, Brandy’s
argument is moot and we do not address it.


                             ANALYSIS

                          I. James’s Appeal

¶38 James argues that “[t]he district court erred in granting
summary judgment to Brandy” and “in imposing discovery
sanctions without requiring Brandy to use the mandated
processes to resolve discovery disputes.” We agree.

¶39 Under rule 56 of the Utah Rules of Civil Procedure,
summary judgment is merited when “the moving party shows
that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Utah R.
Civ. P. 56(a). “Even where a summary judgment motion stands
unopposed, a district court is still obligated to examine the filed
motion, and [the court] must still determine whether the moving
party’s pleadings, discovery, and affidavits demonstrate its
entitlement to judgment as a matter of law.” Turley v. Childs, 

, 

 (cleaned up); see id. ¶ 28 (“[A]
district court must review the moving papers, and [it] may not
grant the motion without conducting such a review simply
because the motion is unopposed.”). “And where the moving
party would bear the burden of proof at trial, the movant must
establish each element of [the movant’s] claim in order to show
that [the movant] is entitled to judgment as a matter of law.” Id.
(cleaned up); see also Utah R. Civ. P. 56(e)(3) (“[T]he court may . . .
grant summary judgment if the motion and supporting



question of damages under the UVTA may be presented to a
jury—so we provide guidance on this issue in our analysis below.


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                         Duffin v. Duffin


materials—including the facts considered undisputed—show
that the moving party is entitled to it . . . .”).

¶40 Moreover, we have held that on a nonmovant’s appeal
from the grant of an unopposed summary judgment motion, “we
must review for correctness the question of whether the movant’s
papers, on their face, indicate that the movant is entitled to
judgment as a matter of law.” Turley, 

. “That
is, we must satisfy ourselves—just as district courts must—that
the requirements of rule 56 are met on the face of the moving
papers.” 

 Here, we are not satisfied that the requirements of
rule 56 are met on the face of Brandy’s moving papers.

¶41 Rule 56 requires a party requesting summary judgment to
provide “a statement of material facts claimed not to be genuinely
disputed” and to support each assertedly undisputed fact with a
citation “to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . . , admissions,
interrogatory answers, or other materials.” Utah R. Civ. P.
56(a)(1), (c)(1)(a). The movant must then show that based on the
material facts that are not genuinely in dispute, “the moving party
is entitled to judgment as a matter of law.” 

 R. 56(a).

¶42 The only assertedly undisputed fact bearing on Brandy’s
claims against James that Brandy supported with a citation to the
record was that “James provided no initial disclosures.” Brandy
then argued for summary judgment against James by saying only,
“James has not complied at all with his initial disclosure
requirements in this case. Accordingly, his answer to [Brandy’s]
amended cross-claim in this matter should be stricken and Brandy
should be awarded judgment against James as requested in her
amended cross-claim.” Brandy’s argument did not identify the
elements of any of her causes of action against James, and her
statement of undisputed facts did not include facts showing that
she could satisfy the elements of any of those claims and was
therefore entitled to judgment as a matter of law. Because the
requirements for Brandy to receive judgment as a matter of law



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                           Duffin v. Duffin


against James are not met on the face of her summary judgment
papers, the district court erred by granting Brandy’s summary
judgment motion against James.

¶43 Instead of analyzing whether the facts in Brandy’s
statement of undisputed material facts satisfied the elements of
her claims against James, the court stated, “[James] did not
provide any initial disclosures in this case, and fact and expert
discovery is now closed. Because of his failure to comply with his
[r]ule 26 disclosure requirements, his answer to the amended
crossclaim is stricken and judgment is granted in favor of
[Brandy], subject to a trial on damages.” In so saying, the court
essentially imposed on James the sanctions provided under rule
37 of the Utah Rules of Civil Procedure. See id. R. 37(b)(4) (“Unless
the court finds that the failure was substantially justified, the
court, upon motion, may impose appropriate sanctions for the
failure to follow its orders [regarding rule 26 disclosures],
including . . . strik[ing] all or part of the pleadings, or render[ing]
judgment by default on all or part of the action.”); see also Eskamani
v. Auto-Owners Ins. Co., 

, 

(“Although rule 26 provides for the exclusion of documents and
witnesses that are not timely disclosed, it does not authorize the
exclusion of entire claims or defenses. Such requests for sanctions
are governed by rule 37.” (cleaned up)).

¶44 However, rule 37 sets forth the process for obtaining such
sanctions, stating, “A party or the person from whom discovery
is sought may request that the judge enter an order regarding any
discovery issue, including . . . failure to disclose under [r]ule 26,”
and, “The statement of discovery issues . . . must include . . . a
certification that the requesting party has in good faith conferred
or attempted to confer with the other affected parties in person or
by telephone in an effort to resolve the dispute without court
action.” Utah R. Civ. P. 37(a)(1), (a)(2). Brandy did not meet these
requirements. Thus, the district court’s imposition of rule 37
sanctions was not an appropriate response to her summary
judgment motion against James.




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¶45 For the foregoing reasons, we reverse the grant of
summary judgment against James and vacate the subsequent
damages awards and declaratory judgment entered against him. 4

                         II. Marlo’s Appeal

¶46 Marlo also appeals, including on the basis that the district
court abused its discretion by not bifurcating his and James’s
trials. We agree that the district court abused its discretion in this
regard. But because Brandy argues that the bifurcation issue was
not preserved, we begin with a discussion of preservation.

A.     Preservation

¶47 “To preserve an issue for appellate review, a party must
first raise the issue in the trial court, giving that court an
opportunity to rule on the issue.” Searle v. Searle, 

, 

 (cleaned up). “For an issue to be sufficiently
raised, even if indirectly, it must at least be raised to a level of
consciousness such that the trial judge can consider it.” Weiser v.


4. Our ruling here does not preclude imposition on remand of rule
26’s exclusionary sanction if James is unable to show that his
failure to produce initial disclosures was either justified or
harmless. See Utah R. Civ. P. 26(d)(4) (“If a party fails to
disclose . . . , 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.”); Dahl v.
Harrison, 

, 

 (“[T]he sanction of
exclusion is automatic and mandatory unless the sanctioned party
can show that the violation of rule 26(a) was either justified or
harmless.”), abrogated on other grounds by R.O.A. Gen., Inc. v. Chung
Ji Dai, 

, 

. Imposition of rule 26’s
exclusionary sanction would not alone entitle Brandy to summary
judgment against James. To obtain summary judgment, she
would still be required to demonstrate that the undisputed
material facts in the record—absent the excluded evidence—
entitle her to judgment as a matter of law.


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                           Duffin v. Duffin


Union Pac. R.R., 

, 

 (cleaned up). This
standard was satisfied here.

¶48 During the hearing on James’s first motion to set aside the
court’s grant of summary judgment to Brandy, Marlo’s counsel
asserted that “[e]ach and every one of Brandy’s causes of action,
whether it’s against Marlo or against James, . . . include essentially
the same set of facts.” He then contended that “[i]f the claims
involving James . . . have already been decided, then [Marlo]
walks into court already facing an uphill battle, where not only
does he have to defend against his claims, he’s got to overcome
this presumption that the jury will have that . . . if James is liable,
then obviously Marlo must be liable.” Marlo’s counsel was
doubtful that lay jurors would be able to fairly adjudicate
Brandy’s claims against Marlo in this circumstance, and he did
not think jury instructions would be sufficient to address this
issue, regardless of their content. Marlo’s counsel contended that
approaching trial together with James already having been found
liable would be “unduly burdensome” and “unduly prejudicial”
to Marlo and would not give Marlo “a fair shake at trial.” Marlo’s
counsel then, while acknowledging that there was not a motion
before the court to bifurcate the trial, said, “In reality, if the court
is intent on keeping the order for motion for summary judgment,
. . . the issues should probably be bifurcated, where [Marlo] can
try and prove his claims independent of [the] already decided
claims against James.” Accordingly, the district court heard
Marlo’s reasons for believing that a joint trial would be prejudicial
to him. It also heard Marlo’s counsel ask that summary judgment
against James be set aside or, in the alternative, that the court
order bifurcation.

¶49 What’s more, the district court actually ruled on this issue.
In denying James’s motion to set aside the summary judgment
order, the court said, “With respect to confusion among the jury,
it is no different than a case where one party has defaulted and
does not appear at trial, but for purposes of the case has admitted
to the allegations in the complaint, whereas the other party
continues to defend. The [c]ourt can handle that potential issue at



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                           Duffin v. Duffin


trial.” This ruling captured the court’s determination that a joint
trial would not unduly burden or prejudice Marlo because,
instead of bifurcation, the court could adequately manage any
potential for confusion and prejudice at trial through jury
instructions. While the court did not use the word bifurcation, its
ruling that it could “handle that potential issue at trial” plainly
rejected Marlo’s argument that either the summary judgment
should be set aside or the trial should be bifurcated. In sum, the
issue of whether Marlo could receive a fair joint trial of Brandy’s
claims against him where the jury would be instructed that
Brandy had already prevailed on all of her claims against James
was raised to a level of consciousness such that the trial judge
could and did consider it. Accordingly, this issue was preserved,
and we next consider the merits of Marlo’s appeal on this point.

B.     Bifurcation

¶50 Marlo claims that the district court abused its discretion by
not bifurcating the trial. Under the unique circumstances of this
case, we agree.

¶51 The Utah Rules of Civil Procedure provide that “[t]he court
in furtherance of convenience or to avoid prejudice may order a
separate trial of any claim, cross claim, counterclaim, or third
party claim, or of any separate issue or of any number of claims,
cross claims, counterclaims, third party claims, or issues.” Utah R.
Civ. P. 42(b). “Because this rule gives the trial court considerable
discretion to administer the business of its docket and determine
how a trial should be conducted, this court will not disturb [a] trial
court’s bifurcation order unless the trial court abused its
discretion.” Sandusky v. Sandusky, 

, 

 (cleaned up). “Generally, a trial court abuses its discretion if
its decision exceeds the limits of reasonability.” 

 (cleaned up).
A court’s decision not to bifurcate is an abuse of discretion where
it “sacrifices [a party’s] right to a fundamentally fair trial.” State v.
Pierre, 

 (Utah 1977).




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                          Duffin v. Duffin


¶52 This case presented a unique set of circumstances under
which the district court abused its discretion by deciding that
Marlo would not be prejudiced if tried together with James
despite a judgment having already been entered on all of Brandy’s
claims against James. First, Brandy alleged that Marlo and James
engaged in a civil conspiracy, a claim that involves joint liability:
“Civil conspiracy is a basis of secondary liability. It allows a
defendant to be held responsible for a tort committed by another.”
Restatement (Third) of Torts: Liab. for Econ. Harm § 27 cmt. a
(Am. L. Inst. 2020). Additionally, civil conspiracy requires, among
other things, a “meeting of the minds” between “two or more
persons,” Peterson v. Delta Air Lines, Inc., 

, 

 (cleaned up), and the plaintiff is required to prove both
co-conspirators’ participation in the conspiracy, see Tanner v.
Pillsbury Mills, 

 (Utah 1955) (concluding that an
alleged co-conspirator could not be liable for conspiracy where his
conduct could not be said to have constituted “active
participation in a joint plan”). Marlo and James were the only two
persons alleged to be co-conspirators. And, finally, of necessity
the jury was instructed both (1) that James was liable for civil
conspiracy and the various underlying torts and (2) that it was to
determine the amount of actual damages James’s conduct caused.

¶53 When the jury was instructed that James was liable for a
conspiracy requiring at least one other person and Marlo was the
only other person alleged to have participated in that conspiracy,
there was a significant likelihood that the jury would perceive the
court’s instructions to mean that Marlo participated in the
conspiracy. The significant likelihood that the jury would be left
with that perception deprived Marlo of a fair trial.

¶54 That the jury was instructed that James’s liability was
based on a procedural issue rather than a factual determination of
liability did not cure the problem because the jury was also
instructed to determine any actual damages caused by James’s
conduct. The notion that James’s conduct may have caused actual
damages is at odds with the notion that his liability had no basis
in factual wrongdoing. Thus, under the instructions given in the



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                          Duffin v. Duffin


joint trial, there remained a significant likelihood that the jury
perceived that a determination of an actual conspiracy involving
Marlo had already been made.

¶55 The instruction to the jury that it was “to make
independent findings as it relates to each defendant” and that it
could “make one set of findings against one defendant and a
different set of findings against the other defendant” also did not
solve the problem. For one thing, these instructions are inaccurate:
the jury could not make its own set of findings as to each
defendant because it was precluded from making any
independent findings as to James’s liability. More importantly,
once the jury was instructed that James was liable for a conspiracy
and Marlo was the only alleged co-conspirator, the potential
unfairness of that instruction could not be cured by a follow-up
instruction that might easily have been understood as an
invitation to ignore the first. The remaining potential for
confusion and unfairness was simply too great.

¶56 In short, under the particular circumstances of this case, it
was not possible for Marlo to receive a fair trial on the civil
conspiracy claim against him. No jury instructions—no matter
how well worded—could avoid the fundamental unfairness.

¶57 The same is true with regard to Brandy’s declaratory
judgment claim against Marlo. Brandy brought a declaratory
judgment claim against both James and Marlo, and in each one
she requested the same thing: “a declaratory judgment
establishing that James had a legal interest in the Property.” The
evidence arguably supported three possible outcomes as to
Marlo’s and James’s interests in the Property, and the parties
contended as much to the jury. Brandy argued that James had a
100% interest in the Property because his name alone appeared on
the original deed and the subsequent deed to both James and
Marlo was a fraudulent transfer. Alternatively, Brandy argued
that if the deed to James and Marlo was not a fraudulent transfer,
James had a 50% interest in the Property based on that deed. On
the other hand, James and Marlo argued that Marlo had a 100%



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                          Duffin v. Duffin


interest in the Property based on his having paid for the Property.
However, the court’s grant of summary judgment against James
meant that in the joint trial the jury would be instructed that the
court had “previously determined that [James] had a legal interest
in the [Property].” Thus, per the court’s necessary instructions in
a joint trial, the jury would essentially be told that the one
outcome that was most favorable to Marlo was not an option. This
deprived Marlo of a fundamentally fair trial on Brandy’s
declaratory judgment claim against him.

¶58 In sum, once the court determined not to set aside its grant
of summary judgment against James, its decision not to bifurcate
Marlo’s and James’s trials necessarily resulted in fundamental
unfairness to Marlo in the trial of both of Brandy’s remaining
claims against him—civil conspiracy and declaratory judgment.
Because the decision not to bifurcate the trial thus constituted an
abuse of discretion, we vacate the judgment against Marlo,
including the damages awarded against him by the jury.

                     III. Guidance on Remand

¶59 We take this opportunity to provide guidance on another
issue that Marlo has raised on appeal that might very well arise
during retrial. See State v. Low, 

, 

(“[T]here are other issues presented on appeal that will likely arise
during retrial. We therefore exercise our discretion to address
those issues for purposes of providing guidance on remand.”).

¶60 One of Brandy’s claims against James is for an alleged
violation of the UVTA. Brandy appears to rely on that alleged
violation as one of the possible underlying “torts” for her civil
conspiracy claim. See generally Puttuck v. Gendron, 

, 

 (“The claim of civil conspiracy requires, as
one of its essential elements, an underlying tort.” (cleaned up)). 5


5. We note but do not address the unresolved issue of whether
civil conspiracy requires an underlying “tort” or whether a
                                                (continued…)


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                          Duffin v. Duffin


On appeal, Marlo has raised the issue of whether the question of
damages under the UVTA should have been presented to the
jury in this case. If after remand the factfinder determines
that there was a civil conspiracy involving a violation of
the UVTA, it will not be appropriate for the jury to determine
the amount of damages on that claim. Under the UVTA, “to the
extent a transfer is avoidable in an action by a creditor[,] . . . the
creditor may recover judgment for the value of the asset
transferred . . . or the amount necessary to satisfy the creditor’s
claim, whichever is less.” Utah Code § 25-6-304(2). In other words,
the remedy available for a violation of the UVTA in this case is
recovery of the amount of the creditor’s (namely, Brandy’s)
underlying equitable claim in the divorce action, not some
independent amount.

¶61 In Brandy’s appeal in the divorce case, we stated, “The
extent to which Brandy and James even have an interest in the
[P]roperty is an issue that will be decided in the separate lawsuit.
But to the extent they are adjudicated to have an interest in the
[Property], that interest is marital property subject to equitable
distribution between them.” Duffin v. Duffin, 

,
¶ 32, 

, cert. denied, 

 (Utah 2022).
Accordingly, if on remand the factfinder determines that James
had an interest in the Property and finds James or Marlo liable
based on a UVTA violation, the divorce court—not the factfinder
in this case—must determine the amount of Brandy’s claim as
James’s creditor in the divorce action, see generally Bradford v.
Bradford, 

, 

 (holding that under
the predecessor statute to the UVTA, one spouse becomes a


statutory violation can serve as the unlawful, overt act necessary
to support a civil conspiracy claim. See generally Timothy v. Pia,
Anderson, Dorius, Reynard & Moss LLC, 

, 

 (declining to decide whether a claim for civil conspiracy
requires “an underlying ‘tort’” or whether “a violation of the
[Uniform Fraudulent Transfer] Act could serve as the unlawful,
overt act necessary to support a civil conspiracy claim”), vacated
on other grounds, 

, 

.


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                          Duffin v. Duffin


creditor of the other when there have been “recent threats of
divorce”), cert. denied, 

 (Utah 2000), and Brandy may
then recover the value of that claim.

                       IV. Brandy’s Appeal

¶62 Brandy alleges error regarding the punitive damages
awards entered against Marlo and James. She asserts that either
the district court or the jury (or both) erred with respect to these
awards because the awards “were not reasonably or rationally
related to the underlying damages.” James and Marlo contend
that Brandy has not preserved this issue and that, in any event,
Brandy’s argument fails on the merits. We do not reach this issue
because Brandy’s appeal is rendered moot by our rulings in
James’s and Marlo’s appeals.

¶63 “Where the issues that were before the trial court no longer
exist, the appellate court will not review the case. An appeal is
moot if during the pendency of the appeal circumstances change
so that the controversy is eliminated, thereby rendering the relief
requested impossible or of no legal effect.” In re adoption of L.O.,

, 

 (cleaned up). 6

¶64 Because our rulings in James’s and Marlo’s appeals
vacate all of the damages awards against James and Marlo, the
issue—assuming it was preserved—of whether the punitive
damages awards were adequate in light of the actual damages
awards no longer exists. The controversy in Brandy’s appeal is
therefore eliminated, and the relief she requests, if granted, would
be of no legal effect. We therefore dismiss Brandy’s appeal as
moot.



6. Although the parties did not raise the issue of mootness, “the
court may . . . raise the issue of mootness sua sponte to further a
core judicial policy of limiting the scope of its power to issues in
controversy.” In re adoption of L.O., 

, 

(cleaned up).


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                         Duffin v. Duffin


                         CONCLUSION

¶65 Brandy’s summary judgment motion did not establish a
basis for judgment as a matter of law against James. Therefore, the
district court erred by granting summary judgment against him.
We reverse that grant of summary judgment and vacate the
subsequent damages awards and declaratory judgment against
James.

¶66 After the district court granted summary judgment against
James, it abused its discretion by not bifurcating James’s and
Marlo’s trials. Accordingly, we vacate the jury verdict and
resulting judgment against Marlo, including the damages awards
and declaratory judgment entered against him.

¶67 Because our resolution of James’s and Marlo’s appeals
results in vacation of the punitive damages awards Brandy
contests on appeal, we dismiss Brandy’s appeal as moot.




 20221046-CA                    25