2024 UT App 121

THE UTAH COURT OF APPEALS

R4 CONSTRUCTORS LLC,

Appellee,

v.

INBALANCE YOGA CORPORATION AND JENNIFER SCHNABEL,

Appellants.

Opinion

No. 20220735-CA

Filed August 29, 2024

Fourth District Court, Provo Department

The Honorable Christine S. Johnson

No. 170401436

Justin D. Heideman and Justin R. Elswick,

Attorneys for Appellants

Cody W. Wilson and Andrew L. Berne,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS

concurred.

MORTENSEN, Judge:

¶1 In an earlier appeal of this case between R4 Constructors

LLC (R4) and InBalance Yoga Corporation and its owner Jennifer 

Schnabel (collectively, InBalance), this court reviewed a number 

of the district court’s rulings, including rulings on cross-motions 

for summary judgment. We affirmed much of the court’s analysis, 

yet on the question of the cross-motions for summary judgment,

we concluded that the court had erred. But we did not reverse. 

Instead, we vacated those rulings, noting that recovery by R4

would turn on whether certain common-law exceptions to a 

nonrecovery statute applied. And because the applicability of the 
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common-law exceptions had not been tackled by the district 

court, we remanded the case for the narrow purpose of

addressing this issue.

¶2 On remand, the district court did just that and concluded

that two common-law exceptions to licensure applied as a matter 

of law under the facts that the court determined to be undisputed. 

Therefore, the district court granted summary judgment again. 

InBalance appeals, and we vacate the summary judgment grant 

and remand the case for further proceedings.

BACKGROUND

¶3 As stated, we are visiting this case for the second time. See 

R4 Constructors LLC v. InBalance Yoga Corp., 2020 UT App 169, 480 

P.3d 1075. This dispute stems from InBalance contracting with R4 

to build a yoga studio. Sometime after construction began, 

disputes arose regarding the work, and InBalance refused to pay. 

Upon completion of the studio, R4 sued over the missing 

payments. InBalance responded with an answer and 

counterclaims. R4 filed summary judgment motions on both R4’s 

claims and InBalance’s counterclaims. InBalance also filed a 

motion for summary judgment regarding R4’s claims, asserting 

that the claims were statutorily barred due to R4’s lack of a 

contractor’s license at the time of entering the contract and that 

none of the common-law exceptions to that statutory bar applied 

here. See Utah Code § 58-55-604 (“A contractor . . . may not . . . 

commence or maintain any action in any court of the state for 

collection of compensation for performing any act for which a 

license is required by this chapter without alleging and proving 

that the licensed contractor . . . was appropriately licensed when 

the contract sued upon was entered into, and when the alleged 

cause of action arose.”); A.K. & R. Whipple Plumbing & Heating v. 

Aspen Constr., 1999 UT App 87, ¶¶ 16–20, 977 P.2d 518 (discussing

the common-law exceptions). Following a grant of summary 
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judgment in R4’s favor, InBalance appealed. A fuller recitation of 

the facts can be found in the opinion from the first appeal. See R4 

Constructors, 2020 UT App 169, ¶¶ 2–5. 

¶4 In the first appeal, we vacated “the district court’s 

judgment denying InBalance’s cross-motion for summary 

judgment and granting judgment to R4 on its affirmative claims.” 

Id. ¶ 25. We vacated instead of reversing the judgment because 

InBalance could be entitled to the relief it sought “if the court on 

remand determine[d] as a matter of law that no common law 

exception to the nonrecovery provision applie[d].” Id. The parties 

had briefed the issue in their original summary judgment motions 

leading to the first appeal, but the district court had not addressed 

it; thus, we remanded the issue “for the district court to consider 

the remaining arguments raised in InBalance’s motion regarding 

R4’s ability to recover as an unlicensed claimant.” Id. We explicitly 

stated that the “vacatur of the district court’s judgment in favor of 

R4 [was] a narrow one.” Id. ¶ 25 n.4. “We vacate[d] the court’s 

order only inasmuch as it permitted R4 to recover without R4 

either satisfying the requirements of section 58-55-604 or meeting 

an exception thereto.” Id.

¶5 On remand, R4 filed a new motion for summary judgment 

addressing the issue of licensure, asserting that under facts it 

claimed were undisputed, some of the common-law exceptions to 

the statutory nonrecovery provision applied here. InBalance filed 

a memorandum in opposition and, in the alternative, moved to 

allow additional discovery. See Utah R. Civ. P. 56(d). The district 

court granted R4’s motion and denied InBalance’s request for 

additional discovery. InBalance appeals for a second time. 

ISSUES AND STANDARDS OF REVIEW

¶6 InBalance raises three issues on appeal. First, InBalance

argues that the district court erred by allowing R4 to rely on the 
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common-law exceptions to licensure in its motion for summary 

judgment even though R4 had “never previously raised or relied” 

on them as “an avoidance, affirmative defense or otherwise 

until after the close of fact discovery.” Second, InBalance 

argues that the district court erred by determining that 

InBalance had admitted key material facts supporting R4’s 

argument in its motion that an exception to licensure applied. We 

review InBalance’s first two issues for correctness as they concern 

“the district court’s ultimate grant or denial of summary 

judgment.” Far West Bank v. Robertson, 2017 UT App 213, ¶ 15, 406 

P.3d 1134 (cleaned up). “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.” Id. 

(cleaned up). 

¶7 Third, InBalance argues that the district court erred by 

denying its rule 56(d) request, see Utah R. Civ. P. 56(d), to conduct 

additional discovery. “We review the denial of a request for 

further discovery for abuse of discretion.” Deeter v. Deeter (In re 

Estate of Deeter), 2020 UT App 65, ¶ 10, 465 P.3d 1164. 

ANALYSIS

¶8 We circle back to the narrow issue we remanded—the 

applicability of any exceptions to the nonrecovery provision.

Section 58-55-604 of the Utah Code states that a contractor may 

not seek “collection of compensation” in court for any work that

requires a license if, at the time the contractor entered into the 

contract, the contractor was not licensed. R4 was not licensed at 

the time it entered into the contract with InBalance. However, as 

we already explained in the first appeal, “our understanding of 

[this] provision is informed by certain exceptions to nonrecovery 

that arose under the common law,” and “when an exception 

applies, the nonrecovery provision does not bar the claim.” R4 

Constructors LLC v. InBalance Yoga Corp., 2020 UT App 169, ¶ 20, 
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20220735-CA 5 2024 UT App 121

480 P.3d 1075 (cleaned up). Our court laid out four exceptions in 

A.K. & R. Whipple Plumbing & Heating v. Aspen Construction, 1999 

UT App 87, 977 P.2d 518: 

First, unlicensed contractors have been 

allowed to recover when the party for whom the 

work is to be done possesses skill or expertise in the 

field. . . . 

Second, an unlicensed contractor may 

recover if the work it performed was supervised by 

a licensed contractor. . . . 

Third, if the reason a contractor fails to obtain 

proper licensure is minor and does not undermine 

its ability to perform its work, the unlicensed 

contractor may recover. . . . 

Finally, courts have considered whether the 

contracting party relied on the subcontractor’s 

representations that he was properly licensed and 

whether the subcontractor has posted a 

performance bond.

Id. ¶¶ 17–20. For simplicity, we refer to these common-law 

exceptions as the Whipple exceptions.

I. Summary Judgment

¶9 InBalance argues that the district court erred in granting 

R4’s motion for summary judgment because (1) R4 untimely 

raised and relied on the Whipple exceptions and (2) the court relied 

on disputed factual allegations. We address each argument in 

turn.
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A. Reliance on the Whipple Exceptions

¶10 InBalance contends that the district court erred by allowing 

R4 to “raise and rely on the defenses to licensure as set forth in 

[Whipple] even though [R4] had never previously raised or relied 

on the Whipple exceptions as an avoidance, affirmative defense or 

otherwise until after the close of fact discovery.” InBalance argues 

that the Whipple exceptions are an avoidance under rule 8(c) of the 

Utah Rules of Civil Procedure and “should have been raised 

during the pleading stage of the litigation.”

¶11 We addressed a related issue in this case’s first appeal. In 

the initial litigation, the district court denied InBalance’s crossmotion for summary judgment based on R4’s lack of licensure 

because the district court determined that the argument was an 

affirmative defense that InBalance waived when it did not raise 

lack of licensure in answer to R4’s complaint. R4 Constructors, 2020 

UT App 169, ¶ 14. As a matter of first impression in Utah, we 

determined that licensure is part of the cause of action and, as 

such, “objection to lack of an opposing party’s license” falls under 

“failure to state a claim upon which relief can be granted.” Id. 

¶¶ 22–24 (cleaned up). We cited rule 12(h) of the Utah Rules of 

Civil Procedure, see id. ¶ 24, which allows the defense of failure to 

state a claim upon which relief can be granted to “be made by a 

later pleading, if one is permitted, or by motion for judgment on 

the pleadings or at the trial on the merits.” Utah R. Civ. P. 12(h). 

We explicitly stated that lack of licensure was not an affirmative 

defense that falls under rule 8(c). R4 Constructors, 2020 UT App 

169, ¶ 24. And we remanded the matter for the narrow purpose of 

allowing the district court to determine whether any of the 

Whipple exceptions apply. Id. ¶ 25. 

¶12 An avoidance, which InBalance now contends the Whipple

exceptions constitute, also falls under rule 8(c). The rule states, “A 

party must set forth affirmatively in a responsive pleading . . . any 

. . . matter constituting an avoidance or affirmative defense.” Utah 
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R. Civ. P. 8(c). While rule 8(c) “does not define or explain what 

constitutes an avoidance or an affirmative defense,” Prince v. Bear 

River Mutual Ins. Co., 2002 UT 68, ¶ 31, 56 P.3d 524, we know that 

they are functionally similar, if not synonymous, compare Jones, 

Waldo, Holbrook & McDonough v. Dawson, 923 P.2d 1366, 1374 

(Utah 1996) (“A rule 8(c) affirmative defense . . . raises [a] matter 

outside the plaintiff’s prima facie case.” (cleaned up)), with

Creekview Apartments ex rel. Hedman Invs., Inc. v. State Farm Ins. Co., 

771 P.2d 693, 695 (Utah Ct. App. 1989) (explaining that a “defense 

independent of the allegations in the pleadings . . . constitutes an 

avoidance”). As stated, we already determined that InBalance had 

not waived the right to claim lack of licensure as a bar to recovery

because it failed to plead that as an affirmative defense in its 

answer to R4’s complaint. We held that the issue of licensure is 

not controlled by rule 8(c), see R4 Constructors, 2020 UT App 169, 

¶ 24, and, as such, could be raised in a later pleading, in a 

dispositive motion, or at trial. 

¶13 In the context of the present appeal, where the issue is 

whether R4 waived its right to rely on the Whipple exceptions to 

the statutory bar by not raising the exceptions in either its 

complaint or in its reply to InBalance’s counterclaim, we similarly 

decide that rule 8(c) does not apply. First and foremost, rule 8(c) 

has no application to what litigants have to plead in their own 

affirmative complaint for relief; instead, it sets requirements for 

things that have to be pled in responsive pleadings (such as

answers to complaints or replies to counterclaims). Thus, R4 could 

not, by definition, have violated rule 8(c) by failing to plead 

something in its own affirmative complaint. Second, R4’s own 

licensure is an issue that has nothing to do with InBalance’s 

counterclaim asserting that R4 performed substandard work; 

rather, it is an issue that is connected to R4’s ability to recover 

from InBalance the cost of services rendered and material 

provided. Indeed, the Whipple exceptions are not an affirmative 

defense or avoidance to anything InBalance was asserting, simply 
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because they apply only in the context of an unlicensed

contractor-plaintiff seeking “collection of compensation” in court 

for work completed that required a license. See Utah Code § 58-

55-604. Thus, R4 would have had no reason to raise the Whipple

exceptions as a defense in a reply to InBalance’s counterclaim. 

¶14 Further, even if R4 did have a pleading obligation with 

regard to its license status, see Utah R. Civ. P. 8(a), R4 satisfied 

those “liberal” requirements, Berg v. Berg, 2012 UT App 142, ¶ 10, 

278 P.3d 1071 (cleaned up), when it pled, in its complaint, that it 

was a Utah LLC “licensed and duly authorized to conduct 

business in the State of Utah.” Timing-wise, we also note that it 

was InBalance, not R4, that introduced the lack of licensure 

argument, including the Whipple exceptions, to this litigation 

ahead of the first appeal. InBalance made this argument in its 

favor as part of its summary judgment motion without ever 

claiming that the Whipple exceptions couldn’t be considered by the 

court due to a defect in the pleadings. For all of these reasons, we 

reject InBalance’s argument and determine that consideration of 

R4’s arguments regarding the Whipple exceptions is appropriate

in this case at this stage in the litigation.

B. Merits of the Summary Judgment Motion

¶15 InBalance argues that the district court incorrectly granted 

summary judgment because the court reached its conclusion by 

“determining [InBalance] admitted ‘key facts.’” The court’s order 

concluded that “at least the first Whipple exception” applied by 

relying on “key facts” it determined that InBalance “admitted” in 

its response to R4’s summary judgment motion. Those facts and 

InBalance’s responses are as follows:

18. Ms. Schnabel testified that she acted as her own 

general contractor in building two of her own 

homes, and that she built two additional homes in 

Spanish Fork in the 2008 time frame.
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Response: Admitted. However, regardless of any prior 

experience, [InBalance] specifically hired [R4] to be the 

“General Contractor” for the construction work.

19. Ms. Schnabel was in control of the schedule and 

quality of the job.

Response: Admitted that Ms. Schnabel was in charge of 

the “schedule.” Denied that the “quality” of the job was 

Ms. Schnabel’s sole obligation. Article 5 of the Contractor 

Agreement specifically requires that [R4] perform in a 

“workmanlike manner,” in “compliance with all building 

codes,” and in accordance with [Schnabel’s] expectations, 

applicable laws and industry standards.

On appeal, R4 also directs us to facts 16 and 17. InBalance argues 

that because the district court did not rely on these two additional 

facts to reach its decision, they are not relevant on appeal. 

However, we give a district court’s grant of summary judgment 

no deference. Far West Bank v. Robertson, 2017 UT App 213, ¶ 15, 

406 P.3d 1134. As such, our only question on appeal is whether 

summary judgment was properly granted. Accordingly, we are 

free to consider the entirety of the record, including facts 16 and 

17. Those facts and responses are as follows:

16. The contract required Ms. Schnabel to perform 

her own supervision of the jobsite.

Response: Admitted. However, “supervision” does not 

obviate [R4’s] contractual obligations concerning its 

licensure status, obtaining an appropriate bond or other 

professional duties imposed by statute. Furthermore, 

Article 5 of the Contractor Agreement requires that 

[R4’s] work should meet the “Owner’s expectations,” 

and comply with building codes, applicable laws and be 

performed in accordance with industry standards. There 

are previously recognized disputed material facts whether 
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[R4] complied with these contractual obligations. Further 

discovery is required to ascertain [the owner of R4’s (and 

an associated contractor’s)] understanding of their duties 

and obligations vis-à-vis Jennifer Schnabel—particularly 

since the first Whipple exception applies “when the party 

for whom the work is to be done possesses skill or expertise 

in the field.”

17. R4 contracted to have Ms. Schnabel perform her 

own supervision because she represented to [R4’s 

owner] that she had construction experience, and 

she wanted to cut costs as much as possible.

Response: Denied. Pursuant to Utah R. Civ. P. 56(d) 

[InBalance] requires additional discovery to adequately 

respond to this allegation. In particular, [InBalance]

needs to query [the owner of R4] as to the specifics of this 

alleged “representation” and his understanding of his 

own duties under the Contractor Agreement.

We give no deference to the court’s legal conclusions on summary 

judgment, but even if we assume that the district court correctly 

construed InBalance’s responses as admissions, we must reverse 

for the reasons identified below.

¶16 InBalance argues that after determining that the facts were 

undisputed, the court failed to draw all reasonable inferences 

from those facts in InBalance’s favor as the non-moving party. To 

support this argument, InBalance quotes our supreme court in 

USA Power, LLC v. PacifiCorp, 2010 UT 31, 235 P.3d 749, which 

explained, “Even if the moving party’s objective statement of the 

facts are agreed upon, reasonable inferences made from those 

undisputed facts can indeed create a genuine issue of material 

fact. That the objective facts are undisputed does not mean that no 

genuine issues remain as to those facts.” Id. ¶ 33. InBalance 

contends that the district court “ignored the qualifications that 
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20220735-CA 11 2024 UT App 121

[InBalance] gave with respect to [its] admission to [fact 18]” that 

Schnabel “had acted as her own contractor on personal homes,” 

arguing that this admission does not lead to the inference that 

Schnabel “‘possessed skill or expertise in the field’ sufficient to 

establish the first Whipple exception.” InBalance makes a similar 

argument in regard to fact 19, that Schnabel oversaw the 

construction schedule, which, as InBalance argues it, does not 

lead to the inference that Schnabel had the appropriate skill or

expertise in the field. As we explain below, we agree with 

InBalance that summary judgment is not appropriate here. 

¶17 The first Whipple exception excuses an unlicensed 

contractor from complying with the licensing requirement if “the 

party for whom the work is to be done possesses skill or expertise 

in the field.” A.K. & R. Whipple Plumbing & Heating v. Aspen 

Constr., 1999 UT App 87, ¶ 17, 977 P.2d 518. Utah courts have not 

yet determined what constitutes “skill or expertise in the field.” 

Precedent establishes, however, that “a litigant is not a member of 

the class the legislature intended to protect if the required 

protection is in fact afforded by another means.” Pacific Chromalox 

Div. v. Irey, 787 P.2d 1319, 1326 (Utah Ct. App. 1990) (cleaned up); 

accord Govert Copier Painting v. Van Leeuwen, 801 P.2d 163, 170 

(Utah Ct. App. 1990). A sufficient other means of protection has

included possessing a license “in the same trade or profession as 

the unlicensed practitioner.” Pacific Chromalox, 787 P.2d at 1326; 

accord Govert, 801 P.2d at 170. The Utah Supreme Court has also 

held that where an individual is licensed in one field and that field 

“necessarily includes some practices or activities which are 

common” to another field, that individual is not required to 

obtain a license in the other field unless mandated by statute. 

Smith v. American Packing & Provision Co., 130 P.2d 951, 955, 958 

(Utah 1942) (determining that a licensed engineer did not go 

outside of his field when his job required him to accomplish tasks 

common to the field of architecture). Furthermore, caselaw 

explains that litigants “usurp[ing] the general contractor’s 
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prerogatives in constructing” a building and relying “on their 

own competence,” even if they do not have their own license in 

the field, can be a contributing factor in determining that a 

contractor’s licensing status does not preclude recovery. Lignell v. 

Berg, 593 P.2d 800, 805 (Utah 1979) (determining that an 

unlicensed general contractor could still recover where it “had 

inadvertently permitted its license to lapse” and owners relied on 

their own competence).

¶18 Here, the record is clear that Schnabel possessed some skills 

or expertise in the field given that, under the contract, Schnabel 

performed her own supervision of R4’s work because she 

represented to R4 that “she had construction experience.”

Schnabel also controlled the schedule and quality of R4’s work but

shared that responsibility with R4. Furthermore, Schnabel 

testified that she had previously acted as her own general 

contractor over the building of two of her own homes, as well as 

two additional homes. On this record, a factual predicate exists on 

which a factfinder could potentially conclude that the first Whipple

exception applies. However, making all reasonable inferences in 

favor of InBalance, a factual question still remains as to whether 

Schnabel possessed sufficient skills or expertise in the field to 

provide her with the protection section 58-55-604 otherwise 

affords individuals against unlicensed contractors. A correctly 

instructed jury may very well conclude that Schnabel’s experience 

as a general contractor over the construction of four homes gave 

her the necessary “skills or expertise in the field” for the 

construction of the yoga studio. But a jury could just as reasonably 

decide that Schnabel’s work as a general contractor on a small 

number of residential homes would not provide her with the type 

of skills or expertise needed to manage unlicensed contractors on 

a commercial project. Because the facts and reasonable inferences 

under the first Whipple exception do not clearly compel one result, 

summary judgment is inappropriate on that basis. See Medina v. 

Jeff Dumas Concrete Constr. LLC, 2020 UT App 166, ¶ 20, 479 P.3d 
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1116 (“In determining whether a genuine issue of material fact 

exists, we ask whether reasonable jurors, properly instructed, 

would be able to come to only one conclusion, or if they might 

come to different conclusions, thereby making summary 

judgment inappropriate.” (cleaned up)). Myriad cases in Utah 

hold that where reasonable minds could differ on the conclusions 

to be reached on undisputed facts, summary judgment is not 

proper. See, e.g., Penunuri v. Sundance Partners, Ltd., 2017 UT 54, 

¶ 35, 423 P.3d 1150; Jones v. Farmers Ins. Exch., 2012 UT 52, ¶ 8, 286 

P.3d 301; Clegg v. Wasatch County, 2010 UT 5, ¶ 15, 227 P.3d 1243; 

Nassi v. Hatsis, 2023 UT App 9, ¶ 29, 525 P.3d 117.

¶19 R4, meanwhile, urges this court to affirm summary 

judgment on an alternative ground by concluding that the third 

Whipple exception applies as a matter of law. This exception

allows an unlicensed contractor to recover if the reason for the 

lack of licensure is “minor and does not undermine [the 

contractor’s] ability to perform its work.” Whipple Plumbing, 1999

UT App 87, ¶ 19. In granting R4’s motion for summary judgment, 

the district court concluded,

To the extent it is needed, the third Whipple

exception potentially applies. InBalance admitted 

the statement that “R4 had not yet received its 

license because of an outstanding tax debt owed [by 

the owner of R4].” This admission establishes the 

reason R4 failed to receive proper licensure was 

minor and does not undermine its ability to perform 

the work. InBalance has failed to establish a genuine 

issue of material fact related to this third Whipple 

exception.

We first note that the district court did not rule explicitly that the 

third exception applied as a matter of law but only that it 

“potentially” applied. The court was quoting the entirety of fact 

22 as asserted in R4’s statement of facts in its motion for summary 
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judgment. InBalance’s response to this statement of fact was as 

follows:

Admitted. This is an admission that R4 was not licensed 

as a general contractor at the time it entered into the 

Contractor Agreement (contrary to the representation 

that it was duly licensed and in compliance with 

applicable law).

Though InBalance admitted this fact, that admission remains

silent—or at least materially ambiguous—as to the extent of R4’s 

tax debt, the reason for its accrual, or how and why it prevented 

R4 from obtaining a license. Without these and other questions 

answered, it is impossible to determine whether a reasonable jury 

must conclude that the lack of licensure was “minor” and did not 

“undermine” R4’s ability to complete the contracted work. Id. The 

evidentiary picture is simply insufficient to establish that the third 

exception applies. We therefore cannot affirm on this alternative 

basis.1 Thus, we address this issue further in the following section 

with respect to InBalance’s rule 56(d) request.

1. This result is consistent with our reading of Govert Copier 

Painting v. Van Leeuwen, 801 P.2d 163 (Utah Ct. App. 1990). There, 

this court held, before and similar to Whipple, that common-law 

exceptions applied to a nonrecovery statute. The court stated, 

“Whether [a] particular exception to the statutory bar . . . applies 

must first be decided by the district court when it has the critical 

facts before it and has access to the properly focused arguments 

of counsel.” Govert, 801 P.2d at 170. We read this to mean, 

consistent with general principles, that sufficient facts must be 

presented to the district court, whether on summary judgment or 

through the presentation of evidence, to show applicability of any 

common-law exception. Indeed, the Govert court reversed 

expressly because facts were in dispute. Id. at 171.
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II. Rule 56(d) Request

¶20 InBalance relatedly argues that the district court erred by 

denying its rule 56(d) request to conduct additional discovery. As 

previously highlighted, in its opposition to the alleged facts in 

R4’s motion for summary judgment, InBalance pointed to a 

number of facts it argued “required additional discovery related 

to [R4’s] claim that it qualified for one or more of the Whipple

exceptions.” Because the standard of review for the denial of a 

rule 56(d) request is abuse of discretion, “we will not reverse 

unless the court’s decision exceeds the limits of reasonability.” 

Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 16, 390 P.3d 314

(cleaned up).2 In Crossland Savings v. Hatch, 877 P.2d 1241 (Utah 

1994), our supreme court upheld a district court’s denial of a rule

56(d) request. Id. at 1244. The supreme court reasoned that the 

party “had sufficient information to create an issue of material fact 

if such an issue actually existed.” Id. But “[i]nstead of filing an 

affidavit and creating such an issue,” the party filed a rule 56(d) 

motion, an action “squarely invoking the discretion of the district 

court.” Id. Because the party had “unlimited access” to the 

requested information, the supreme court concluded that the 

district court reasonably denied the request. Id.

¶21 Here, we similarly determine that it was reasonable for the 

district court to deny InBalance’s request as to information 

2. Prior to a 2015 amendment, requests for additional discovery 

were made under rule 56(f) rather than rule 56(d). See Heslop v.

Bear River Mutual Ins. Co., 2017 UT 5, ¶ 11 n.2, 390 P.3d 314. “The 

objective of the 2015 amendments [was] to adopt the style of 

Federal Rule of Civil Procedure 56 without changing the 

substantive Utah law.” Utah R. Civ. P. 56 advisory committee’s 

note to 2015 amendment. Thus, any cases we cite that reference 

rule 56(f) are just as applicable to rule 56(d). We also change any 

reference to rule 56(f) to rule 56(d) in our citations to avoid 

perpetuating confusion.
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regarding the first Whipple exception because InBalance had 

“sufficient information to create an issue of material fact if such 

an issue actually existed” as to any skills or expertise in the field 

Schnabel did or did not possess. Id. The district court reasonably 

concluded that Schnabel, a named defendant, “could have 

provided a declaration to her attorneys objecting to the allegations 

that she was supervising or that she was qualified to supervise the 

work,” yet InBalance chose not to submit or seek that information.

Thus, the district court did not abuse its discretion and properly 

denied InBalance’s rule 56(d) request in that regard.

¶22 However, as to the third Whipple exception, the district 

court should have granted the motion in order to allow InBalance 

to discover the reason for R4’s lack of licensure, particularly the 

truthfulness of and details concerning the owner of R4’s alleged 

tax debt. Unlike information concerning the sufficiency of 

Schnabel’s skills and expertise in construction, InBalance had no 

access to R4’s records or any other information to confirm or deny 

the accuracy of R4’s claim that the delay in obtaining licensure 

was due to a “minor” tax debt as opposed to some other reason. 

And R4 has pointed to no reason InBalance would have had 

during discovery to investigate this issue. Nor does the district 

court’s ruling identify any such reason. The issue only arose in the 

context of dispositive motions. Therefore, the district court 

exceeded its discretion and should have granted the rule 56(d) 

request in this regard.

CONCLUSION

¶23 The district court erred by granting R4’s motion for 

summary judgment, and it exceeded its discretion in denying the 

entirety of InBalance’s rule 56(d) request as to the third Whipple

factor. We therefore vacate the grant of summary judgment and 
R4 Constructors v. InBalance Yoga

20220735-CA 17 2024 UT App 121

remand this matter for further proceedings consistent with this 

opinion.3

3. Following the district court’s grant of summary judgment, the 

court awarded R4 its attorney fees pursuant to the contract 

language and Utah statute. See Utah Code § 78B-5-826 (“A court 

may award costs and attorney fees to either party that prevails in 

a civil action based upon any . . . written contract . . . [when the 

contract allows] at least one party to recover attorney fees.”). 

Because we have vacated the grant of summary judgment, the 

grant of attorney fees to R4 is also vacated. InBalance has 

requested attorney fees on appeal, but an award of fees to either 

party is improper at this juncture in the litigation because a party

“is not a prevailing party until after a determination on the merits 

is made by either a jury or a trial court judge.” Cache County v. 

Beus, 2005 UT App 503, ¶ 14, 128 P.3d 63 (cleaned up).