2019 UT App 67

THE UTAH COURT OF APPEALS

DARNELL GHIDOTTI AND GREG GHIDOTTI,

Appellants,

v.

MELODIE WALDRON AND RE/MAX METRO,

Appellees.

Opinion

No. 20180045-CA

Filed May 2, 2019

Third District Court, West Jordan Department

The Honorable James D. Gardner

No. 150900601

Lincoln W. Hobbs and Sarah H. Orme, Attorneys

for Appellants

Stuart H. Schultz and Nicholas E. Dudoich, 

Attorneys for Appellees

JUDGE KATE APPLEBY authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.

MORTENSEN concurred.

APPLEBY, Judge:

¶1 Darnell and Greg Ghidotti appeal the district court’s grant 

of summary judgment in favor of Melodie Waldron and Re/Max 

Metro (collectively, Re/Max). The court ruled that the Ghidottis 

were unable to prove their damages with the requisite degree of 
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certainty and had not properly disclosed Darnell1 as an expert 

witness prior to trial. We affirm.

BACKGROUND

¶2 The Ghidottis were looking to purchase a house where 

they could live and operate a dog training and boarding 

business. They specifically wanted to find one in a community 

that was not controlled by a homeowners’ association (HOA)

because they anticipated an HOA would not allow them to 

operate this type of business from their home. One of the listings 

the Ghidottis reviewed with their real estate agent was for a 

property (Property) that apparently was not subject to an HOA:

the listing left “blank[s]” after “HOA contact,” “HOA phone,” 

and “HOA remarks,” and the section identifying “Restrictions 

on the property” was marked “No.”

¶3 The Ghidottis signed a real estate purchase contract for 

the Property in May 2014. The contract required the sellers

(Sellers) to make various disclosures including providing “a 

copy of any restrictive covenants (CC&Rs) [and] rules and 

regulations affecting the property.” In their disclosures, the 

Sellers represented the Property was not “part of a 

condominium or other [HOA].” The Ghidottis allege they were 

never provided copies of any CC&Rs or rules and regulations 

affecting the Property. Based on the representations in the real 

estate purchase contract and the Sellers’ disclosures that the 

Property was not subject to an HOA, the Ghidottis closed the 

deal on the Property.

¶4 After purchasing the Property, the Ghidottis applied for a 

conditional use permit, which they needed for keeping dogs on

 

1. As is our practice when parties share a last name, we

sometimes refer to them by their first names with no disrespect 

intended by the apparent informality. 
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20180045-CA 3 2019 UT App 67

the Property. After becoming aware of the permit application, 

members of the Country Lane Ranchette’s Homeowners’ 

Association objected to its issuance, asserting that the Property 

was subject to CC&Rs. Further research revealed the Property 

was in fact subject to CC&Rs, which prohibited the Ghidottis 

from keeping their own dogs on the Property and precluded 

them from operating a training and kennel business there.

¶5 The Ghidottis filed a lawsuit in 2015 against the Sellers,

Re/Max, and their real estate agent and broker.

2 In March 2015, 

the Ghidottis served their initial disclosures. The disclosures

designated Darnell as a fact witness who potentially would 

testify about the Ghidottis’ desire to purchase property not 

subject to an HOA, their efforts to ensure the Property was not 

subject to an HOA, the information provided to them about the 

Property, and how they discovered it was subject to an HOA. 

Neither Ghidotti was identified as an individual who would 

testify about damages. Darnell was mentioned among the 

“individuals who the plaintiffs may call in their case in chief” 

along with the phrase, “See summary of expected testimony 

above.” The “computation of damages” section stated that the 

Ghidottis had “not yet had an opportunity to ascertain their 

damages.” Further, it stated that the damages calculation would 

“depend upon if and when the [Ghidottis were] able to sell their 

Property” and “upon the expenses [the Ghidottis were] forced to 

incur in defending the action brought against them by their 

neighbors who [were] seeking to enforce the [CC&Rs].”

¶6 As fact discovery progressed, Darnell testified in her 

deposition about her calculation of damages resulting from their 

inability to run the business out of their home. Darnell

acknowledged this was a new business operation. She also 

testified there were no other businesses in the area that offered 

similar services. After Darnell’s deposition the Ghidottis filed 

 

2. The claims against the Sellers and the Ghidottis’ agent and 

broker were resolved prior to this appeal.
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20180045-CA 4 2019 UT App 67

their first supplemental disclosures, which included financial 

documents “the [Ghidottis] may offer in their case-in-chief.” The 

documents were labeled but no explanation was provided along 

with them. The Ghidottis filed their second supplemental 

disclosures, which provided the following damages calculation:

The [Ghidottis] have computed their damages 

based on the difference in revenue their 

business . . . would have earned, had they been 

able to operate the business as originally planned, 

and what it will earn in light of the required 

changes to its business plan. Because the 

[Property] . . . is in the Country Lane Ranchette’s 

Homeowners’ Association and is subject to 

restrictive covenants—a fact that was concealed 

from and thus unbeknownst to [the Ghidottis] at 

the time of their purchase, despite their efforts to 

avoid purchasing a property in a homeowners 

association—[the Ghidottis] cannot operate the 

business on their property, as originally intended, 

but will have to operate the business at an off-site 

location. Operating at an off-site facility changes 

the services [the Ghidottis] can offer and increases 

operation costs. The [Ghidottis] calculate that the 

total damages, over the 20 years that [they] intend 

to run their business, will be $2,784,159.[3]

The Ghidottis did not disclose any expert witnesses and

acknowledge they never intended to do so.

¶7 In late 2015, the Ghidottis’ real estate agent and broker 

filed a motion for summary judgment arguing the Ghidottis 

were unable to prove their damages with reasonable certainty.4

 

3. This is the entire damages calculation.

4. Re/Max joined the motion.
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20180045-CA 5 2019 UT App 67

The district court granted the motion and dismissed the 

Ghidottis’ claims against their real estate agent and broker as 

well as Re/Max. The court ruled that the Ghidottis could not

prove their damages with the requisite degree of certainty

because they did “not have an expert to testify on profit 

potential.” And although the Ghidottis suggested that “Darnell 

planned to offer expert testimony at trial,” they did not properly 

disclose her as an expert witness under the Utah Rules of Civil 

Procedure. The Ghidottis appeal.

ISSUE AND STANDARD OF REVIEW

¶8 The Ghidottis argue the district court erred in granting 

summary judgment on the grounds that Darnell was not 

properly disclosed as an expert witness under the Utah Rules of 

Civil Procedure and therefore they failed to prove their damages 

with the requisite degree of certainty. “Interpretation of the Utah 

Rules of Civil Procedure is a question of law that we review for 

correctness.” Pete v. Youngblood, 2006 UT App 303, ¶ 7, 141 P.3d 

629. This court also “reviews a [district] court’s entry of 

summary judgment for correctness and gives its conclusions of 

law no deference.” Utah Farm Bureau Ins. Co. v. Crook, 1999 UT 

47, ¶ 3, 980 P.2d 685. Further, “in reviewing a grant of summary 

judgment, we view the facts and all reasonable inferences drawn 

therefrom in the light most favorable to the nonmoving party.” 

GLFP, Ltd. v. CL Mgmt., Ltd., 2007 UT App 131, ¶ 5, 163 P.3d 636 

(quotation simplified). 

ANALYSIS

¶9 The Ghidottis challenge the district court’s finding that 

they failed to timely disclose their intent to rely on Darnell as a 

non-retained expert witness. They acknowledge they did not 

properly disclose her as a retained expert but argue they 

“implicitly and sufficiently identified [Darnell] as an unretained 

expert witness to testify regarding the Ghidottis’ damages.” The 
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Ghidottis argue that Darnell was properly disclosed as a 

non-retained expert when they listed her as a potential fact 

witness in their initial disclosures, when she testified about their 

damages during her deposition, and when they disclosed their 

financial documents in their first supplemental disclosures. The 

Ghidottis argue summary judgment was improper because these 

disclosures gave Re/Max “ample notice” that they intended to 

have Darnell testify about their damages as an expert at trial. We 

disagree.

¶10 Summary judgment is appropriate 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). The district court “should not weigh 

disputed evidence” and must view “the facts and all reasonable 

inferences to be drawn therefrom in a light most favorable to the 

nonmoving party.” Pigs Gun Club, Inc. v. Sanpete County, 2002 UT 

17, ¶ 24, 42 P.3d 379 (quotation simplified). 

¶11 In this case, Re/Max argued the Ghidottis were unable to 

prove damages with the requisite degree of certainty and 

therefore their claims should be dismissed on summary 

judgment. To recover damages, a plaintiff must prove both the 

fact of damages and the amount of damages. Atkin, Wright

& Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 336 (Utah 

1985). “The level of persuasiveness required to establish the fact 

of loss is generally higher than that required to establish the 

amount of a loss.” Id. (quotation simplified). But “there still must 

be evidence that rises above speculation and provides a 

reasonable, even though not necessarily precise, estimate of 

damages.” Id.

¶12 The Ghidottis sought damages in the form of lost profits, 

which “must be established with . . . sufficient certainty that 

reasonable minds might believe from a preponderance of the 

evidence that the damages were actually suffered.” Kilpatrick v. 

Wiley, Rein & Fielding, 2001 UT 107, ¶ 76, 37 P.3d 1130 (quotation 

simplified). In particular, new businesses, such as the Ghidottis’,
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20180045-CA 7 2019 UT App 67

“lack an actual record of past earnings, which decreases the 

certainty with which one could predict future profits.” Id.

(quotation simplified). But this does not “automatically preclude 

new businesses from recovering lost profits” and “new 

businesses should be allowed to try to prove lost profits up to a 

reasonable level of certainty by other means.” Id. (quotation 

simplified). “Alternative means of establishing the certainty of 

lost profits include expert testimony of profit potential, evidence 

of the actual profits of similar businesses, and evidence of 

subsequent earnings of the business claiming lost profits.” Cook 

Assocs., Inc. v. Warnick, 664 P.2d 1161, 1166 n.4 (Utah 1983).

¶13 In this case, the Ghidottis desired to start a new business. 

Because they did not have any record of past earnings they 

needed to prove their damages through other means.5 See id. It

also was undisputed that the Ghidottis did not retain an expert 

to testify about profit potential. In its ruling the district court 

noted that during the hearing on the motion for summary 

judgment the Ghidottis “seemed to suggest that [Darnell] 

planned to offer expert testimony on profit potential at trial.” But 

as the district court ruled, the Ghidottis never properly disclosed 

Darnell as a non-retained expert under rule 26(a)(4)(E) of the 

Utah Rules of Civil Procedure, which provides,

If a party intends to present evidence at trial under 

Rule 702 of the Utah Rules of Evidence from any 

person other than an expert witness who is 

retained or specially employed to provide 

testimony . . . that party must serve on the other 

parties a written summary of the facts and 

opinions to which the witness is expected to testify.

 

5. The Ghidottis challenge only the court’s finding that they did 

not properly disclose Darnell as an expert witness. They do not 

argue that they should have been able to prove their damages 

through the other two means mentioned in Cook Assocs., Inc. v. 

Warnkick, 664 P.2d 1161, 1166 n.4 (Utah 1983).
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20180045-CA 8 2019 UT App 67

¶14 The Ghidottis argue they adequately disclosed “a written 

summary of the facts and opinions to which [Darnell was]

expected to testify.” Utah R. Civ. P. 26(a)(4)(E). But contrary to 

this argument, such a disclosure is not enough. This court has

consistently held that disclosing a witness as a fact witness, by 

itself, is insufficient to allow that witness to also present expert 

testimony. See Solis v. Burningham Enters. Inc., 2015 UT App 11, 

¶ 19, 342 P.3d 812 (explaining that disclosing a witness as a fact 

witness but omitting the witness from the expert witness list 

“did not fairly inform [the opposing parties] that opinion 

testimony may be offered from [the witness]” (quotation 

simplified)); Hansen v. Harper Excavating, Inc., 2014 UT App 180, 

¶ 17, 332 P.3d 969 (“[A party’s] disclosure of his intent to call 

treating physicians as fact witnesses is not sufficient to allow the 

admission of their expert opinions.”); Ladd v. Bowers Trucking, 

Inc., 2011 UT App 355, ¶ 13, 264 P.3d 752 (“Without an expert 

witness designation, [the plaintiff] cannot establish causation.”);

Pete v. Youngblood, 2006 UT App 303, ¶¶ 15–16, 141 P.3d 629

(determining that the plaintiff was required to “identify [a 

witness] as a person who may be used at trial to present expert 

testimony” despite the plaintiff’s argument that she 

“substantially complied with the requirements of [the expert 

witness disclosure rule] because [the witness] was named as a 

fact witness”). Here, the Ghidottis produced a summary of what 

Darnell was expected to testify about as a fact witness, not as an 

expert. We conclude that this was insufficient to disclose Darnell

as a non-retained expert witness under rule 26(a)(4)(E).

¶15 The Ghidottis also argue that they implicitly disclosed 

Darnell as an expert witness and the substance of her potential 

testimony was properly disclosed through her deposition and 

financial documents. This argument is contrary to our precedent. 

In Solis, this court held that implicit disclosures are insufficient 

to qualify a fact witness as an expert witness. 2015 UT App 11, 

¶ 19. The plaintiff in Solis claimed she adequately notified the 

defendants of her intent to use a designated fact witness as an 

expert witness because her initial disclosures included diagrams

she expected the witness to testify about. Id. ¶ 18. Relying on 
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20180045-CA 9 2019 UT App 67

Pete, this court determined that designating a fact witness and 

also providing supplemental records or diagrams is insufficient 

to designate that witness as an expert. Id. Ultimately, if a party 

designates a fact witness but fails to include that witness on an 

expert witness list, that party fails to satisfy the expert disclosure

requirements under rule 26. Id. ¶ 19. Here, the Ghidottis failed to 

include Darnell as an expert in their disclosures. Thus, their 

“implicit” disclosure through other means did not comply with 

rule 26. 

¶16 The Ghidottis argue that such a narrow interpretation of 

expert disclosure requirements is inconsistent with rule 1, which 

states that the rules of civil procedure “shall be liberally 

construed and applied to achieve the just, speedy, and 

inexpensive determination of every action.” Utah R. Civ. P. 1. 

We recognize that “‘all [the disclosure rules] require is that a 

party fairly inform its opponent that opinion testimony may be 

offered from a particular witness.’” RJW Media Inc. v. Heath, 2017 

UT App 34, ¶ 23, 392 P.3d 956 (quoting Utah R. Civ. P. 26 

advisory committee notes). But the requirement to “‘fairly 

inform . . . includes ‘that such witnesses be identified and the 

information about their anticipated testimony should include . . . 

any opinion testimony that a party expects to elicit from them at 

trial.’” Id. ¶ 24 (quoting Utah R. Civ. P. 26 advisory committee 

notes). Importantly, “[a]long with the expert designation, there 

must be some disclosure of expected opinion and fact 

testimony.” Id. (emphasis added). That did not happen here.

Darnell was never designated as an expert and her opinions 

were not adequately disclosed. Adhering to the requirements of 

the disclosure rule is not, under these circumstances, 

inconsistent with rule 1.

¶17 As this court noted in RJW, disclosure requirements are

“not merely a matter of form.” Id. ¶ 25. The disclosure 

requirements “serve the beneficial purpose of . . . giving the 

opposing party the confidence to not engage in further 

discovery. But this is only true if the potential for surprise is 

reduced by at least minimum compliance with the rule 26 
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disclosure requirements.” Id. These minimal disclosure 

requirements are necessary so “parties can make better informed 

choices about the discovery they want to undertake or, just as 

important, what discovery they want to forgo.” Id. Here, Re/Max 

relied on the Ghidottis’ representation that they had no intention 

of using experts in not hiring any experts of their own. Such 

strategic decisions are a key aspect of discovery and must be 

carefully safeguarded by strictly following the disclosure 

requirements.

¶18 Finally, the district court ruled that the Ghidottis did not 

demonstrate that their failure to disclose Darnell as an expert 

was harmless or that there was good cause for the omission. See 

Utah R. Civ. P. 26(d)(4) (“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.”). The court ruled 

that late disclosure of Darnell as an expert would be harmful 

because the time set for trial was approaching and none of the 

defendants had retained experts in reliance on the Ghidottis not 

disclosing any expert witnesses. We conclude the court did not 

abuse its discretion in making this determination. See Townhomes 

at Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes, 

LLC, 2014 UT App 52, ¶ 17, 329 P.3d 815 (holding that the district 

court did not abuse its discretion in finding the failure to disclose 

an expert was not harmless when “a substantial amount of 

discovery would need to be revisited or performed . . . well after 

the deadline for completing these steps had passed”), superseded 

by rule as stated in Baumann v. Kroger Co., 2016 UT App 165, 381 

P.3d 1135. This finding also supports strict enforcement of the 

disclosure requirements because allowing parties to designate 

witnesses at this stage in the litigation would not promote a just, 

speedy, and inexpensive determination of an action as

envisioned by rule 1 of the Utah Rules of Civil Procedure.

¶19 We conclude that Darnell’s testimony about damages in 

her deposition, the financial exhibits, and the statement of 
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20180045-CA 11 2019 UT App 67

damages in the supplemental disclosures are insufficient to 

support a conclusion that Darnell was properly disclosed as a 

non-retained expert witness under the Utah Rules of Civil 

Procedure. 

CONCLUSION

¶20 The district court properly granted summary judgment in 

favor of Re/Max when the Ghidottis failed to prove their 

damages with the requisite degree of certainty by failing to 

properly disclose Darnell as an expert witness. Affirmed.