2019 UT App 37

THE 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 
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20170647-CA 2 2019 UT App 37

(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.

BACKGROUND1

¶2 MIP purchased real property (the Property) from VT 

Holdings, which MIP financed through several sources.

RCF provided a bridge loan2 of $2.8 million3 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.”
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20170647-CA 3 2019 UT App 37

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 
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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).
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¶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.
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20170647-CA 6 2019 UT App 37

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 
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20170647-CA 7 2019 UT App 37

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 
VT Holdings v. My Investing Place

20170647-CA 8 2019 UT App 37

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...)
VT Holdings v. My Investing Place

20170647-CA 9 2019 UT App 37

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.
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20170647-CA 10 2019 UT App 37

¶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.
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20170647-CA 11 2019 UT App 37

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’ 
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20170647-CA 12 2019 UT App 37

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 
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20170647-CA 13 2019 UT App 37

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.
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20170647-CA 14 2019 UT App 37

“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. 
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20170647-CA 15 2019 UT App 37

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.