2022 UT App 37

THE UTAH COURT OF APPEALS

JON F. BUTLER,

Appellant and Cross-appellee,

v.

MEDIAPORT ENTERTAINMENT INC. AND RED TOUCH MEDIA LTD.,

Appellees and Cross-appellants.

Opinion

No. 20200465-CA

Filed March 24, 2022

Third District Court, Salt Lake Department

The Honorable Andrew H. Stone

No. 130901072

Diana J. Huntsman and David C. Harless, 

Attorneys for Appellant and Cross-appellee

Barry N. Johnson, Daniel K. Brough, and Ryan M. 

Merriman, Attorneys Appellees and 

Cross-appellants

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES JILL M. POHLMAN and RYAN D. TENNEY concurred.

HARRIS, Judge:

¶1 The district court excluded all evidence supporting Jon F. 

Butler’s counterclaims—filed against his former employer in 

litigation over the validity of a specific employment agreement—

because Butler made only vague disclosures regarding the 

computation of his claimed damages. The court then summarily 

dismissed those counterclaims for lack of evidence. Butler 

appeals that dismissal, asserting that his damages disclosures 

were sufficient or, in the alternative, that his failure to make 

proper disclosures was harmless under the circumstances.

Butler’s former employer—Mediaport Entertainment Inc. 
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20200465-CA 2 2022 UT App 37

(Mediaport)—cross-appeals the denial of its motion for attorney 

fees. We affirm the district court’s rulings in all respects. 

BACKGROUND

¶2 In 2001, Butler founded a company—Mediaport—to 

market and sell a system he invented for selecting and 

downloading music tracks onto a CD or similar device. Some 

years later, Mediaport was acquired by Red Touch Media Ltd., 

and Butler continued to work for the company after the 

acquisition. For ease of reference, unless otherwise specified, we 

refer to the company simply as “Mediaport,” regardless of 

whether our reference points to a pre-acquisition or postacquisition event. 

¶3 In 2012, roughly a year after the acquisition, Butler 

provided the company’s new owners with a copy of an

employment agreement (the Agreement) that he claimed he and 

Mediaport had entered into before the acquisition. The 

Agreement contained provisions stating that, upon his 

termination for any reason other than for cause, Butler would 

“be entitled to severance in an amount equal to three (3) full 

years of Base Salary,” as well as “all compensation and benefits 

earned but not yet paid,” including credit for “unused vacation,

sick and personal days.” “Base Salary” is defined in the 

Agreement by reference to an attached “Schedule A,” which in 

turn specifies that Butler’s “Base Salary,” as of July 1, 2003, was 

$130,000 per year. The Agreement also provided that “[a]ny 

dispute, controversy, or questions arising under, out of, or 

relating to this Agreement . . . shall be referred for arbitration,” 

and that, “[i]n connection with any arbitration, the prevailing 

party shall be entitled to recover its costs and reasonable 

attorneys’ fees.”

¶4 In February 2013, Mediaport terminated Butler’s 

employment, and Butler claimed entitlement to the severance
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benefits discussed in the Agreement. But Mediaport refused to 

pay those benefits, apparently espousing the belief that the 

Agreement was neither valid nor enforceable, and that it had

additionally been superseded by another arrangement. That 

same month, Mediaport initiated this lawsuit, stating several 

claims for relief against Butler, including damages claims, but 

chiefly a request for a judicial declaration that the Agreement 

was unenforceable and that Mediaport owed Butler nothing. 

¶5 Butler responded by filing a counterclaim. In addition to 

claims for declaratory and injunctive relief regarding the 

Agreement’s validity, Butler’s initial counterclaim contained two 

different claims for damages: one for breach of contract and

another for conversion. Butler later amended his pleading to 

include additional damages claims; as amended, Butler’s 

counterclaim stated five such claims against Mediaport. First, 

Butler accused Mediaport of breaching the termination and 

severance provisions of the Agreement; on this claim, Butler 

sought “a sum exceeding one million dollars ($1,000,000.00).”1

Second, Butler set forth a claim for breach of the implied 

covenant of good faith and fair dealing, accusing Mediaport of 

“diluting his shares” of stock in the company and damaging him 

“in an amount to be determined at trial, but in no event less than 

$150,000.00.” Third, Butler stated a claim of conversion, accusing 

Mediaport of improperly taking some of his personal items from 

his office while he was away, and asserting that he had been 

 

1. In his original counterclaim, Butler included a statement in the 

“background facts” section alleging that Mediaport had “failed 

to pay [him] three times his annual salary at the time 

[Mediaport] was acquired by Red Touch . . . , as required by” the 

Agreement. But that statement was not included in Butler’s 

amended counterclaim, which superseded the original; the 

amended document contains no direct references to Butler being 

entitled to recover three times his salary as severance.
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20200465-CA 4 2022 UT App 37

damaged “in an amount to be determined by the fact-finder.” 

Fourth, Butler set forth a defamation claim, accusing Mediaport 

of “ma[king] and publish[ing] false statements” about him, and 

damaging him in an unspecified amount. Finally, Butler accused 

Mediaport of tortiously interfering with his business and 

contractual relations, asserting that he had been damaged “in an 

amount to be proven at trial, but no less than $200,000.00.” 

Butler also sought “costs and attorneys’ fees” under the “terms 

of the [Agreement].” Butler attached a copy of the Agreement to 

his amended counterclaim. 

¶6 Butler’s initial disclosures—which he served on 

Mediaport after filing his initial counterclaim but before filing 

the amended one—contained the following damages disclosure, 

quoted here in its entirety: 

Because of the lack of documents available to 

[Butler], he cannot provide an exact calculation of 

damages at this time. It is estimated that the 

damages suffered by [Butler] approximate 

$900,000.

Butler’s initial disclosures contained no further computation or 

categorization of damages, nor any explanation of how he 

arrived at the $900,000 figure. Butler produced some 150 pages 

of documents with his initial disclosures, but none of those 

documents purported to offer any computation of damages. And 

although Butler once supplemented his initial disclosures, that 

supplement did not provide any additional information 

regarding computation of damages. Butler never supplemented

his damages disclosures. 

¶7 During the discovery period, Mediaport asked Butler via

interrogatory to “[i]dentify all facts supporting your allegation, 

contained in . . . the Counterclaim, that . . . [Mediaport is]

indebted to [Butler] for accrued benefits under the terms of [the 
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20200465-CA 5 2022 UT App 37

Agreement] in a sum exceeding on[e] million dollars 

($1,000,000).” Butler responded as follows:

All of [Butler’s] records were either turned over to 

Mediaport . . . or were retained by the company 

. . . . For this reason [Butler] cannot respond with 

certainty to this interrogatory. [Mediaport has] the 

[Agreement], which speaks for itself. Specifically, 

the contract called for severance benefits, which 

included, but were not limited to, payment of three 

times the annual salary, compensation for benefits, 

and pre-payment of legal fees in litigation to 

enforce the contract. These severance benefits have 

not been paid and are estimated to exceed 

$1,000,000.00 in value.

¶8 Mediaport also took Butler’s deposition and asked him 

questions about his claim for breach of the termination and 

severance provisions contained in the Agreement. When asked 

what his base salary was when he first had one, Butler 

responded that it was “130.” But Butler maintained that he had 

never actually been paid $130,000 per year because Mediaport 

had been “deferring” some of his compensation; he also had a 

hard time answering questions related to how much salary he 

had actually been paid while in Mediaport’s employ.

¶9 During the deposition, Mediaport asked Butler questions 

about a letter (the Hubbard Letter) that had been written by 

Mediaport’s chief operating officer (COO) in 2012, just months 

before Butler was terminated. That letter contained a tally of the 

value of the vacation and sick days Butler had purportedly 

accrued, as well as two alternative tallies of the deferred 

compensation Butler had purportedly accrued. The Hubbard 

Letter also contained a reference to a possible increase in Butler’s 

base salary, from $130,000 to $190,000.
Butler v. Mediaport Entertainment

20200465-CA 6 2022 UT App 37

¶10 The fact discovery period ended in June 2015. After that, 

the litigation stagnated for several years, with neither party 

taking any meaningful action to move it forward toward trial. 

Finally, in early 2018, Mediaport filed a motion in limine seeking 

to exclude all of Butler’s damages-related evidence, asserting 

that Butler had failed to comply with the disclosure obligations 

set forth in rule 26(a)(1) of the Utah Rules of Civil Procedure. At 

the same time, Mediaport also filed a motion for summary 

judgment, arguing that, if its motion in limine were granted, 

Butler would be bereft of evidence supporting his claimed 

damages and that all his claims would on that basis be subject to 

dismissal.

¶11 After full briefing and oral argument, the district court 

granted both motions, but only in part. The court first 

determined that Butler’s damages disclosures “fail[ed] to meet 

the requirements of” rule 26(a)(1). The court next examined 

whether Butler’s noncompliance with the rule’s requirements 

was harmless and determined that, for many of his 

counterclaims, it was not. Regarding all of Butler’s claims other 

than the one for breach of contract, the court concluded that 

Butler’s faulty disclosures had harmed Mediaport because those 

claims alleged nonspecific damages and Butler had made no 

effort, during discovery or otherwise, to illuminate the amount 

of damages he sought on those claims. The court therefore 

excluded all of Butler’s damages-related evidence related to

those claims, and ruled that Mediaport was entitled to summary 

judgment on each of them due to Butler’s inability to prove 

damages.

¶12 With regard to Butler’s claim for breach of contract,

however, the district court’s ruling was more complex. The court 

concluded that Mediaport was in possession of sufficient 

information—through sources other than Butler’s initial 

disclosures (specifically, from Butler’s counterclaim and from 

information learned during discovery)—to be able to understand 
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20200465-CA 7 2022 UT App 37

and defend against Butler’s claim for payment of three times his 

base salary upon termination. In the court’s view, this portion of 

Butler’s damages was “readily calculated given an existing 

salary,” and therefore Butler’s failure to provide that calculation 

in a formal damages disclosure was harmless. As to Butler’s

claims for payment of deferred compensation and benefits upon 

termination, the court made no definitive ruling, but concluded 

that Butler’s disclosure failures might be considered harmless if 

Mediaport possessed evidence demonstrating that “the parties 

each understood that specific amounts were owing to Butler,” 

but that they would not be considered harmless if the amount of 

Butler’s entitlement were “subject to factual debate.” The court 

therefore allowed Butler’s counterclaim for breach of contract to 

survive and proceed toward trial. Sometime later, the court 

scheduled a ten-day jury trial to take place in March 2020.

¶13 Less than two weeks before the trial was scheduled to 

begin, Mediaport filed a renewed motion in limine, asking the 

court to reconsider its earlier decision and this time exclude 

Butler’s damages-related evidence regarding his breach of 

contract claim. In the motion, Mediaport asserted that a recent 

opinion from our supreme court—Keystone Insurance Agency, 

LLC v. Inside Insurance, LLC, 2019 UT 20, 445 P.3d 434—required 

exclusion of Butler’s damages evidence and dismissal of his last 

remaining claim for damages. The court heard argument on the 

motion at a final pretrial conference and, at the conclusion of the 

hearing, granted the motion. In the court’s view, Butler’s claims 

for post-termination deferred compensation and unpaid benefits 

were directly foreclosed by Keystone. The court noted that if it 

were to find Butler’s disclosures harmless merely because “there 

ended up being information [e.g., the Hubbard Letter] in the 

possession of [the] defendant that indicated what [the] damages 

were,” exclusion of evidence for faulty damages disclosures 

would almost never occur, because in “most every commercial 

case a plaintiff could later point to some document that supports 

their [damages] theory and say ‘That’s been my theory all 
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20200465-CA 8 2022 UT App 37

along.’” And while the court acknowledged that Butler’s claim 

for payment of three times his base salary at termination 

presented a closer question, the court excluded Butler’s evidence 

supporting his damages on that claim too, concluding that 

Butler’s disclosure had “lumped together” all of his contract 

claims, and that “there is debate” about the proper salary figure 

to use in the Agreement’s treble multiplier. Accordingly, the 

court excluded “all evidence” supporting Butler’s contractual 

damages claims, and on that basis dismissed Butler’s 

counterclaim for breach of contract, with prejudice and on the 

merits.

¶14 Following the court’s ruling, Mediaport agreed that, 

“without a claim for breach of the [Agreement] by Butler, [it 

had] no reason to try [its] claims” against him, and it consented 

to dismissal of its claims without prejudice. In light of that 

concession, Butler’s counsel agreed that “if there’s no damages, 

[then] I don’t think there’s any case left,” and the court 

determined that any decision it might make on Butler’s claims 

for declaratory relief “would be an advisory opinion,” and 

therefore that claim too was subject to dismissal.

¶15 Following the court’s dismissal of all claims, both sides 

filed post-judgment motions. Butler filed a motion to alter or 

amend the judgment, asking the court to reconsider its ruling. 

The court denied that motion. For its part, Mediaport filed a 

motion seeking some $200,000 in attorney fees, arguing that it 

was entitled to fees pursuant to the Agreement and Utah’s 

reciprocal attorney fees statute, see Utah Code Ann. § 78B-5-826

(LexisNexis 2018), even though its position was that the 

Agreement was unenforceable. The court denied that motion as 

well, concluding that the attorney fees provision in the 

Agreement applied, by its terms, only to fees incurred during 

arbitration.
Butler v. Mediaport Entertainment

20200465-CA 9 2022 UT App 37

ISSUES AND STANDARDS OF REVIEW

¶16 Both sides now appeal. Butler takes issue with the district 

court’s decision to exclude his damages-related evidence and on 

that basis dismiss his damages counterclaims.2 Mediaport, in a 

 

2. Butler also raises two additional arguments that do not merit

extended discussion. First, he complains that Mediaport’s 

renewed motion in limine was, in actuality, a tardy and 

disguised motion for summary judgment. This is incorrect. We 

acknowledge Butler’s point that parties should not be able to 

dodge dispositive motion deadlines by cloaking summary 

judgment motions under a motion in limine label. But this is not 

what happened here. In this case, not only was Mediaport’s 

renewed motion in limine based on Utah Supreme Court case 

law—Keystone Insurance Agency, LLC v. Inside Insurance, LLC, 

2019 UT 20, 445 P.3d 434—issued after the dispositive motion 

deadline, but that motion sought only exclusion of certain 

evidence on entirely procedural grounds; it did not ask the court 

to summarily consider the merits of any particular claim. The 

summary judgment aspect came into play only after the court 

granted the motion in limine, leaving Butler unable to prove 

damages on any of his claims. Rather than wait until the close of 

Butler’s case-in-chief to grant an inevitable directed verdict for 

lack of proof of damages, the court acted appropriately, not to 

mention efficiently, in choosing to take up the matter prior to 

trial. Second, Butler contends that, by reconsidering its 2018 

ruling and entering summary judgment in Mediaport’s favor, 

the court denied Butler his constitutional right to his day in 

court. Not only is this argument unpreserved for our review, it 

also fails on the merits. Due process affords litigants an 

opportunity to be heard, not a guarantee of a day in court; having 

one’s case dismissed on procedural grounds does not amount to 

a due process violation unless it can be shown that the relevant 

procedural requirement “foreclose[d] [a party’s] meaningful 

(continued...)
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20200465-CA 10 2022 UT App 37

cross-appeal, challenges the court’s denial of its motion for 

attorney fees. 

¶17 Regarding Butler’s appeal, we review for correctness the 

district court’s conclusion that Butler’s disclosures were 

inadequate, because that determination is at root a question of 

interpretation of rule 26 of the Utah Rules of Civil Procedure. See 

Keystone Ins. Agency, LLC v. Inside Ins., LLC, 2019 UT 20, ¶ 12, 445 

P.3d 434 (“We review a district court’s interpretation of our rules 

of civil procedure, precedent, and common law for 

correctness.”). But we review for abuse of discretion the court’s 

determination that Butler’s faulty disclosures were not harmless. 

See id. ¶¶ 12, 18–19 (noting that the court, in that case, “did not 

abuse its discretion in finding” that a faulty disclosure was not 

harmless). 

¶18 Regarding Mediaport’s cross-appeal, in assessing a 

district court’s decision to award (or not to award) attorney fees 

“pursuant to a contract, we review the district court’s 

interpretation of the contract language for correctness.” See

Robinson v. Robinson, 2016 UT App 32, ¶ 44, 368 P.3d 147. 

ANALYSIS

I. Butler’s Appeal

¶19 Before ordering the exclusion of all Butler’s damagesrelated evidence, the district court made two important 

 

(...continued)

access to the justice system.” See In re adoption of B.Y., 2015 UT 67, 

¶ 27, 356 P.3d 1215 (quotation simplified). Butler does not even 

attempt to make that showing; indeed, he was capable of 

complying with rule 26’s disclosure requirements, but simply 

failed to do so. 
Butler v. Mediaport Entertainment

20200465-CA 11 2022 UT App 37

determinations. First, it concluded that Butler’s damages 

disclosures did not comply with the requirements of rule 

26(a)(1)(C) of the Utah Rules of Civil Procedure. Second, the 

court determined that Butler’s failure to comply with his 

disclosure obligations was not harmless. Butler challenges both 

of these determinations, and we examine each of them in turn, 

following a brief discussion of the governing law. 

A

¶20 Our discovery rules—in a requirement that has been in 

place since 1999, and in its current basic form since 2011—

require parties, at the outset of their involvement in litigation, to 

provide certain disclosures to their litigation opponents; parties 

must do so “without waiting for a discovery request.” See Utah 

R. Civ. P. 26(a)(1). In addition to information about witnesses 

and documents supporting a party’s claims, these initial 

disclosures must include information about the damages, if any, 

that parties intend to claim in the lawsuit. See id. R. 26(a)(1)(C).

In particular, the rule requires parties to provide their opponents

with “a computation of any damages claimed and a copy of all 

discoverable documents or evidentiary material on which such 

computation is based, including materials about the nature and 

extent of injuries suffered.” Id. These required initial damages 

disclosures need not, in every case, contain a to-the-penny 

calculation; indeed, the drafters of the 2011 amendments to rule 

26 recognized that parties may not know, at the outset of a case, 

exactly what their damages amount to, and that “damages often 

require additional discovery.” Id. R. 26(a)(1) advisory 

committee’s note to 2011 amendment. But the rules specify that 

“[a] party is not excused from making disclosures or responses 

because the party has not completed investigating the case.” Id.

R. 26(d)(3); see also id. R. 26(a)(1) advisory committee’s note to 

2011 amendment (emphasizing that damages disclosures should 

not as a matter of course simply be “deferred until expert 

discovery” because “[e]arly disclosure of damages information is 
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20200465-CA 12 2022 UT App 37

important” and “is a critical factor in determining 

proportionality”). In the drafters’ view, the damages disclosure 

requirement is intended to require parties to “make a good faith 

attempt to compute damages to the extent it is possible to do 

so,” and to “provide all discoverable information on the subject.” 

Id. R. 26(a)(1) advisory committee’s note to 2011 amendment.

¶21 And the rules require timely supplementation of all 

disclosures, including damages disclosures. See id. R. 26(d)(5). 

Under this requirement, parties who do not possess enough 

information at the outset of a case to provide complete damages 

disclosures must supplement those disclosures as soon as they 

discover the information needed to complete the computation. 

Id.

¶22 In the years since these damages disclosure rules were 

enacted, Utah appellate courts have interpreted them to require, 

at a minimum, a disclosure that damages are in fact being 

claimed, the categories of any such damages, and a description

of the method by which the party intends to compute those 

damages. See Keystone Ins. Agency, LLC v. Inside Ins., LLC, 2019 

UT 20, ¶ 17, 445 P.3d 434 (stating that “even if a plaintiff cannot 

complete its computation of damages before future events take 

place, the fact of damages and the method for calculating the 

amount of damages must be apparent in initial disclosures” 

(quotation simplified)); Vanlaningham v. Hart, 2021 UT App 95, 

¶ 14 n.1, 498 P.3d 27 (citing federal cases, and quoting this 

language: “Where a party fails to properly identify a category of 

damages or to provide the calculations underlying it, it is within 

the court’s discretion to exclude evidence relating to those 

damages” (quotation simplified)). 

¶23 The rule itself prescribes a penalty for noncompliance 

with these disclosure obligations: “If a party fails to disclose or 

to supplement timely a disclosure . . . , that party may not use 

the undisclosed witness, document, or material at any hearing or 
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20200465-CA 13 2022 UT App 37

trial unless the failure is harmless or the party shows good cause 

for the failure.” Utah R. Civ. P. 26(d)(4). On this point, the 

advisory committee was clear:

The penalty for failing to make timely disclosures 

is that the evidence may not be used in the party’s 

case-in-chief. To make the disclosure requirement 

meaningful, and to discourage sandbagging, 

parties must know that if they fail to disclose 

important information that is helpful to their case, 

they will not be able to use that information at trial. 

The courts will be expected to enforce them unless 

the failure is harmless or the party shows good 

cause for the failure. 

Id. R. 26(a)(1) advisory committee’s note to 2011 amendment; see

also Keystone, 2019 UT 20, ¶ 16 n.4 (quoting this note with 

approval but recognizing that courts “attach no decisional 

authority to advisory committee reports”). 

¶24 Applying these rules and precedents, the district court 

determined that Butler’s damages disclosures were insufficient, 

and did not meet the requirements of rule 26(a)(1)(C). With 

regard to whether Butler’s failure to disclose was harmless, the 

court issued a series of rulings. First, in its 2018 ruling, the court

determined that, regarding all of Butler’s damages claims other 

than for breach of contract, the failure to disclose was not 

harmless; Butler does not appeal that ruling. Next, in that same

ruling the court determined that, with regard to Butler’s breach 

of contract claim, the failure to disclose was not necessarily 

harmless. In its 2020 ruling, however, the court reconsidered that 

second determination and concluded, in light of Keystone, that 

Butler’s failure to disclose was in fact not harmless, even as 

applied to his breach of contract claim. At Butler’s request, we 

now examine the propriety of the 2020 ruling, beginning with a 
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discussion of the sufficiency of Butler’s damages disclosures, and 

concluding with a discussion of harmlessness. 

B

¶25 We need not linger very long on the question of whether 

Butler’s damages disclosures were sufficient. They quite clearly 

were not. As noted above, Butler’s disclosures were cursory, and 

made no effort to either categorize his damages or offer any 

method by which those damages might be computed. He stated 

only that he was unable to provide an “exact calculation of 

damages at [that] time,” but that he “estimated” that his total 

combined damages, on both of his damages claims then pleaded,

would “approximate $900,000.” At the time Butler made this 

disclosure, he had stated counterclaims for both breach of 

contract and conversion, and his disclosure made no effort to 

differentiate the damages between those claims. As was made 

clear later, even his breach of contract claim encompassed 

several different aspects of damages (e.g., benefits, deferred 

compensation, and severance), and he made no effort to 

categorize or quantify those claims either. 

¶26 Butler also made no effort whatsoever to supplement his 

damages disclosures, even though he later amended his 

counterclaim to include three new damages claims. He did make 

one disclosure supplementation—thus evidencing an awareness 

of the requirement—but that supplementation had nothing to do 

with damages.

¶27 Butler attempts to justify his rather spare disclosures by 

relying on Williams v. Anderson, 2017 UT App 91, 400 P.3d 1071. 

In that case, the plaintiff’s chief damages claim was for recovery 

of 30% of the purchase price that one company paid for another. 

Id. ¶ 3. In his initial disclosures, the plaintiff stated this 

computation quite plainly, although he offered no final claimed 

damages number and did not specify the purchase price that 

would need to be multiplied by 30%. Id. ¶¶ 5, 7. We held this 
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20200465-CA 15 2022 UT App 37

disclosure to be sufficient, noting that it “described the precise 

components [that the plaintiff] intended to factor into his 

damages claim,” including “both the fact of damages and the 

method by which those damages would be calculated.” Id. ¶ 19. 

We stated that, because the plaintiff had described “the process 

for calculating his claimed” damages, it met the requirements of 

rule 26(a)(1)(C). Id.

¶28 This case is quite different from Williams. In particular, 

Butler’s damages disclosure was far less specific than the one at 

issue in Williams. Although the Williams disclosure included a 

clear formula to be used in computing the single item of 

compensatory damage, Butler’s disclosure simply stated an 

estimated number, and made no effort to offer any method by 

which that number might be computed. Moreover, in Williams, 

there was no uncertainty about the purchase price that would 

need to be multiplied by 30%; the plaintiff did not know what 

that price was at the time its disclosures were made, but the 

defendant did. See id. In this case, there was a lot of uncertainty 

about the amounts Butler was claiming as damages, even 

regarding the less complex aspects of his breach of contract 

claim. See infra ¶ 46. 

¶29 Butler also points to documents other than his 

disclosures—such as his counterclaim, his discovery responses, 

and the Hubbard Letter—that contained information he claims 

he intended to use to prove his damages. But while those other 

sources (discussed in more depth below) may be relevant to 

whether his failure to disclose was harmless, they have no role to 

play in evaluating whether his disclosures—viewed on their 

own—met the requirements of rule 26(a)(1)(C). 

¶30 Under the circumstances presented here, Butler’s 

damages disclosures were insufficient. Although they included 

an estimated total figure, and thus indicated that Butler would 

be claiming damages, those disclosures lumped all of Butler’s 
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20200465-CA 16 2022 UT App 37

damages claims together and made no effort to either categorize 

Butler’s damages claims or offer any method by which any of 

those damages might be computed. Such a disclosure falls well 

short of the mark set out in rule 26, and the district court did not 

err in so concluding. 

C

¶31 Because Butler’s damages disclosures were insufficient, 

Butler’s damages evidence is to be excluded unless Butler’s 

failure to disclose “is harmless” or Butler can show “good cause” 

for his failure. See Utah R. Civ. P. 26(d)(4). In his brief, Butler 

focuses almost exclusively3 on the harmlessness option, and 

asserts that his failure to disclose visited no harm on Mediaport 

because the company had access, from other sources, to 

information sufficient to allow it to defend against Butler’s 

damages claims. For the reasons discussed, we conclude that the 

district court did not abuse its discretion in concluding that the 

inadequacies in Butler’s damages disclosures were not harmless. 

 

3. Butler contends, as an alternative to harmlessness, that he had 

“good cause” for failing to provide adequate damages 

disclosures, proffering as cause his asserted “reliance” on the 

district court’s 2018 ruling. This argument suffers chiefly from 

chronological infirmities: Butler’s failure to provide sufficient 

initial disclosures during the fact discovery period, which ran 

until 2015, cannot be justified by a 2018 court ruling. Indeed, 

Butler does not adequately explain how his failure to provide 

damages disclosures had anything to do with the court’s ruling. 

After all, the 2018 ruling was made in response to Mediaport’s 

motion challenging the adequacy of those very disclosures. 

Butler appears to argue that he relied on the 2018 ruling by 

“proceed[ing] with this case for two years” and by “preparing 

for trial,” but these actions do nothing to explain why Butler 

failed to provide adequate disclosures in the first place. 
Butler v. Mediaport Entertainment

20200465-CA 17 2022 UT App 37

¶32 Before delving into the merits of the harmlessness 

inquiry, we pause to note two procedural hurdles that work 

against Butler here. First, as previously noted, see supra ¶ 17, we 

review the district court’s harmlessness decision for abuse of 

discretion. Under this standard of review, “[t]he question 

presented is not whether we” would have made the same 

decision had we been in the district court’s shoes, but instead 

whether “we find an abuse of discretion in the district [court’s] 

decision.” See Stichting Mayflower Mountain Fonds v. United Park 

City Mines Co., 2017 UT 42, ¶ 49, 424 P.3d 72; see also Gunn Hill 

Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2015 UT 

App 261, ¶ 24, 361 P.3d 703 (Orme, J., concurring) (stating that, 

under an abuse of discretion standard of review, we will affirm 

even if we might not have made the same decision, so long as 

the decision “was within the broad range of discretion entrusted 

to” the district court). Second, Mediaport bears no burden to 

demonstrate that it was harmed by Butler’s inadequate 

disclosures; instead, it is Butler who bears the burden of 

demonstrating harmlessness. See Keystone Ins. Agency, LLC v. 

Inside Ins., LLC, 2019 UT 20, ¶ 18 n.7, 445 P.3d 434 (“Under a 

plain language reading of rule 26(d)(4), the burden to 

demonstrate harmlessness or good cause is clearly on the party 

seeking relief from the disclosure requirements.”). 

¶33 On the merits of the harmlessness inquiry, the “key 

question” is “whether a plaintiff’s failure to disclose its 

categories and methods of computing damages impaired the 

defense’s ability to ‘properly build a defense against the 

damages claimed.’” Chard v. Chard, 2019 UT App 209, ¶ 45, 456 

P.3d 776 (quoting Keystone, 2019 UT 20, ¶ 20). Given the practical 

realities of modern litigation, most of a party’s “defensebuilding” activities take place during the discovery process. 

Indeed, we have identified several factors for courts to consider 

in assessing harmlessness in this context, all of which have to do 

with the extent of impairment to a party’s ability to build a 

defense during the discovery period and to make decisions 
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20200465-CA 18 2022 UT App 37

about a case that are proportionate to its size and scope. See id.

Specifically, in this context courts should consider whether a

party, despite its opponent’s poor disclosures, was able to (1) 

“question witnesses” during discovery, (2) figure out the case’s 

“tier status” under rule 26(c), “(3) understand the nature and 

quantity of the plaintiff’s claimed damages, and (4) understand 

the scope and cost of the litigation pursued.” Id.; see also Keystone,

2019 UT 20, ¶¶ 19–20. 

¶34 Because this inquiry is focused on whether the potentially 

harmed party was able to appropriately deploy resources and 

discover relevant facts during the discovery period, courts

assessing harmlessness should consider the point in time at 

which additional information that may point toward 

harmlessness was received by the opposing party. Where 

additional illuminating information was received by an 

opposing party “relatively early during the discovery period,” 

within enough time to allow that party to use that information 

while taking depositions and propounding other discovery 

requests, then any inadequacies in a party’s damages disclosures

may turn out to be harmless. See Chard, 2019 UT App 209, ¶ 48. 

But where a party “waits until the twilight hours of fact 

discovery” or, worse, until “the close of expert discovery” to 

provide illuminating information, thereby depriving the 

opposing party of any meaningful opportunity to use, during 

discovery, the information that should have been initially 

disclosed, the faulty disclosures may well turn out to be harmful, 

especially where no extension of the discovery deadlines is 

sought or given. See Keystone, 2019 UT 20, ¶¶ 13, 19 (quotation 

simplified). 

¶35 In addition to considering when an innocent party receives 

illuminating information, in this context we have also considered 

the relative simplicity—or complexity—of the non-disclosing 

party’s damages claims. Where the damages claims are simple 

and easily computed, courts are more likely to conclude that an 
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20200465-CA 19 2022 UT App 37

innocent party’s receipt of illuminating information from a 

source other than initial disclosures renders inadequate 

disclosures harmless. For instance, we concluded in Chard that a 

faulty disclosure was harmless, at least with regard to one 

discrete claim for unjust enrichment, where the non-disclosing 

party was making a simple damages claim: recovery of precisely 

$120,000, as described clearly in its pleadings and as set forth in 

two short invoices that it had produced early in the discovery 

period. See 2019 UT App 209, ¶¶ 40, 43–46; cf. Bad Ass Coffee Co. 

of Hawaii v. Royal Aloha Int’l LLC, 2020 UT App 122, ¶¶ 31–37, 

473 P.3d 624 (finding a party’s damages disclosures adequate, in 

part because the damages theory was simple and partially 

stipulated and the non-disclosing party explained its theory “in 

its counterclaim and in its initial disclosures”). 

¶36 On the other hand, where a non-disclosing party’s 

damages theories are complex, it is more difficult for that party 

to demonstrate that inadequacies in its damages disclosures 

were harmless. Our supreme court’s decision in Keystone is an 

illustrative example. In that case, the plaintiff sought and 

identified several categories of damages, including commissions 

allegedly earned, but it disclosed no damages computation at 

any point during the fact discovery period. See Keystone, 2019 UT 

20, ¶ 5. Instead, the plaintiff “waited until the close of expert 

discovery to present, for the first time, its damage estimates and 

methodologies.” Id. ¶ 13. The plaintiff argued, however, that its 

failure to disclose was harmless, because the defendant had itself 

generated—and produced during discovery—both a “197-page 

spreadsheet” that the plaintiff interpreted as tracking the earned 

commissions as well as a “document summarizing” the 

spreadsheet. Id. ¶¶ 6, 22. The court rejected the plaintiff’s 

“harmlessness” argument, as well as a motion to reconsider its 

initial conclusions about the adequacy of the plaintiff’s 

disclosures, noting that the plaintiff’s damages theories—

computation of commissions—were “more complex” than the 

simple one at issue in Williams v. Anderson, 2017 UT App 91, 400 
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20200465-CA 20 2022 UT App 37

P.3d 1071. See Keystone, 2019 UT 20, ¶ 23.4 The court stated that 

the plaintiff’s “focus on [the defendant’s] possession of a 

spreadsheet detailing [earned] commissions misunderstands the 

burden placed on the plaintiff by rule 26.” Id. The court 

characterized the spreadsheet as “a mere tool that could aid in 

the calculation of damages—not a dispositive and clear recitation of 

what damages [the plaintiff] was after.” Id. And it concluded that, 

“[w]ithout a clear computation or theory of what [the plaintiff] 

was asking for, it was left to the guesswork of [the defendant] to 

determine how the spreadsheet might inform [the plaintiff’s] 

theory of the case and what damages it was seeking.” Id.

¶37 And in Vanlaningham v. Hart, 2021 UT App 95, 498 P.3d 

27, we reached a similar conclusion. In that case, a former patient 

of a dental practice sued the clinic for malpractice. Id. ¶ 2. 

Following discovery, the district court concluded that the 

plaintiff had failed to satisfy her damages disclosure obligation 

under rule 26 because she provided only a bottom-line damages

figure, and not a “mathematical computation or the 

methodology” explaining how that figure was derived. Id. ¶ 12

(quotation simplified). The plaintiff appealed, arguing that her 

disclosure was adequate or, alternatively, that any inadequacy 

was harmless. Id. We rejected the plaintiff’s arguments,

 

4. We recognize that some of the discussion in Keystone

regarding the complexity of the plaintiff’s damages theory arose 

in the context of evaluating the adequacy of the plaintiff’s 

disclosures, rather than in the context of evaluating whether any 

inadequacies in the plaintiff’s disclosures were harmless. See

Keystone, 2019 UT 20, ¶ 23. However, the relative complexity of 

the plaintiff’s damages theories is an issue that can potentially 

shed light on both the underlying adequacy of a plaintiff’s 

damages disclosures as well as whether any inadequacies in 

those disclosures were rendered harmless by other 

circumstances. 
Butler v. Mediaport Entertainment

20200465-CA 21 2022 UT App 37

concluding that the disclosure was inadequate because the 

plaintiff “neglected to provide [the] [d]efendants with any 

information that would allow them to discern how the total was 

calculated,” and because the defendants “were left to guess at

how much of [the sum total] was for past . . . treatments, as well 

as what components figured into her damages claim for future 

treatment.” Id. ¶ 15. We also noted that the plaintiff’s damages 

theories were more complex than the theories at issue in Williams

and in Bad Ass Coffee, noting in particular that the plaintiff’s 

disclosed bottom-line damages figure did “not represent a single 

item” but instead was intended to be a composite figure 

including both past and future treatment and other items. Id.

¶¶ 17–18. And we concluded that the plaintiff’s inadequate 

disclosures were not harmless, because the defendants “were left 

guessing” about how the plaintiff calculated her damages, thus 

“impairing their ability to properly build a defense.” Id. ¶ 21. 

¶38 In this case, Butler asserts that any inadequacies in his 

damages disclosures were harmless, at least with regard to his 

claim for breach of contract, because Mediaport was in 

possession of information from other sources that provided 

sufficient insight into Butler’s contractual damages claims. Some 

of the information to which Butler points—for instance, 

explanations given at the oral argument on Mediaport’s 2018 

motion, and information provided in advance of the parties’ 

2018 mediation—was transmitted far too late to have made any 

difference to Mediaport’s ability to build a defense during the 

discovery period, which ended in 2015. See Keystone, 2019 UT 20, 

¶¶ 13, 19. But other items of information were provided earlier 

in the litigation, before the fact discovery period ended, and we 

examine those sources of information in more detail. 

¶39 First, Butler points to allegations he made in his original 

and amended counterclaims. In the original counterclaim, Butler 

alleged that Mediaport failed to pay him “three times his annual 

salary” upon termination. That statement, however, was 
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20200465-CA 22 2022 UT App 37

removed from the amended counterclaim; in that amended 

pleading, Butler asserted more indirectly that he was entitled to 

compensation “as called for in” the Agreement, including 

“deferred salary and other compensation.” In making these 

statements, Butler specifically invoked paragraphs 2 and 5 of the 

Agreement, a copy of which he attached to the amended 

pleading. He asserted that, on his contract claim alone, he was 

entitled to damages “in a sum exceeding” $1 million. Paragraph 

2 of the attached Agreement specifies that Mediaport was to pay 

Butler a “Base Salary” as set forth on an attached schedule, but 

which was subject to being increased over time. The attached 

schedule indicates that, as of 2003, Butler’s Base Salary was 

$130,000. Paragraph 5 of the Agreement is a lengthy paragraph 

comprising three single-spaced pages, including seven separate 

subsections that describe things that should happen in the event 

that Butler’s employment was terminated. In particular, and 

among other things, that paragraph states that, upon 

termination, Butler would “be entitled to all compensation and 

benefits earned but not yet paid,” including the value of 

“unused vacation, sick and personal days.” It also indicates that 

Butler “shall be entitled to an amount equal to three (3) full years 

of Base Salary.” 

¶40 Second, Butler points to his interrogatory responses, in 

which he informed Mediaport that he was seeking “severance 

benefits, which included, but were not limited to, payment of

three times the annual salary, compensation for benefits, and 

pre-payment of legal fees in litigation to enforce the contract,” 

and that he “estimated” that these benefits collectively “exceed 

$1,000,000.00 in value.”

¶41 Third, Butler points to statements he made at his 

deposition, where he told Mediaport that his base salary had, at 

first, been “130” but that he had never actually been paid that 

amount because Mediaport had been “deferring” some of his 

compensation. But in that same deposition, he also had a hard 
Butler v. Mediaport Entertainment

20200465-CA 23 2022 UT App 37

time providing specific answers to questions related to how 

much salary he had actually been paid while employed by 

Mediaport.

¶42 And finally, Butler points to the Hubbard Letter, in which 

Mediaport’s COO set out a purported tally of the amount of the 

value of vacation and sick days Butler had accrued, as well as 

two alternative purported tallies of the deferred compensation 

Butler had accrued. The letter also contained a reference to a 

possible increase in Butler’s salary, from $130,000 to $190,000.

¶43 Pointing to all of this information, taken together, Butler 

asserts that Mediaport had a sufficient understanding of his 

damages claims to be able to adequately deploy resources and 

make decisions about defending the case. In particular, Butler

points out that Mediaport always understood this case to be a 

Tier 3 case, and that it therefore understood the scope and size of 

the litigation he was pursuing. We acknowledge Butler’s point, 

and agree that Mediaport, as Butler’s employer, had access to a 

lot of information about potential damages that Butler might 

claim. But having access to information that may potentially 

help form the basis for a plaintiff’s damages claims is not the 

same thing as possessing a concrete disclosure from the plaintiff 

regarding its claimed damages. We agree with the sentiments of 

the district court when it mused that, if possession of this sort of 

information were sufficient to render inadequate disclosures 

harmless, then harmlessness would be present in “most every 

commercial case.” Certainly, Mediaport was in possession of 

information that allowed it to make some solid educated guesses 

about the types and amounts of damages Butler may have 

intended to claim. But that alone is not enough: “any ability on 

the part of [the defendant] to guess at potential damages does 

not free [the plaintiff] from its obligation to disclose a 

computation of damages.” See Keystone, 2019 UT 20, ¶ 20; see also 

Vanlaningham, 2021 UT App 95, ¶¶ 19, 21 (rejecting the plaintiff’s 

harmlessness argument because her failure to properly disclose 
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20200465-CA 24 2022 UT App 37

her damages left the defendants to “guess at the components of 

and how [she] calculated her . . . damages claim”). 

¶44 Our decision is driven, to some degree, by the relative 

complexity of Butler’s damages theories, especially when 

compared to the damages theories at issue in Williams, Chard, 

and Bad Ass Coffee. See Bad Ass Coffee, 2020 UT App 122, ¶¶ 31–37 

(stating a simple and partially stipulated theory that its damages 

were $500,000 because that was the agreed-upon value of certain 

in-kind services); Chard, 2019 UT App 209, ¶¶ 40, 43–46 (stating a 

simple theory of unjust enrichment damages: $120,000 as 

described clearly in pleadings and supported by two invoices); 

Williams, 2017 UT App 91, ¶ 3 (stating a simple compensatory 

damages theory: entitlement to 30% of the purchase price one 

company paid for another). In this case, Butler’s damages 

theories are not as simple as he claims. For instance, much of the 

information Butler identifies lumped some or all of Butler’s 

various—and very different—damages claims together, rather 

than clearly identifying a damages computation for each

individual claim. Butler’s initial disclosures, such as they were, 

asserted that he had suffered $900,000 worth of damages on his 

contract and conversion claims combined. Similarly, and 

somewhat contradictorily, Butler’s amended counterclaim and 

interrogatory response indicated that his total damages on the

contract claim alone were in excess of $1 million—an amount 

intended to include both the claimed severance payment (three 

times salary) and also deferred compensation and benefits. A 

plaintiff who combines several components of damages into one 

composite figure has, by doing so, taken action to make the 

situation more—not less—complex. See Vanlaningham, 2021 UT 

App 95, ¶ 18 (noting, in determining that disclosures were 

inadequate, that the proffered damages figure “does not 

represent a single item”). 

¶45 Moreover, Butler’s reliance on the Hubbard Letter is, as 

the district court correctly perceived, foreclosed by Keystone, the 
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20200465-CA 25 2022 UT App 37

case in which our supreme court rejected a plaintiff’s attempt to 

rely on a spreadsheet in the defendant’s possession as 

emblematic of the adequacy of its disclosures. See 2019 UT 20, 

¶ 23. Like the spreadsheet in Keystone, the Hubbard Letter is “not 

a dispositive and clear recitation of what damages [Butler] was 

after.” See id. (emphasis omitted). Rather, the Hubbard Letter 

was “a mere tool that could aid in the calculation of” Butler’s 

damages, and left Mediaport guessing as to exactly how Butler 

intended to interpret the document and how much weight he 

intended to give it. See id. (stating that the spreadsheet still left 

the defendant guessing as to how it “might inform [the 

plaintiff’s] theory of the case”). 

¶46 Finally, even Butler’s simplest component of damages—

the part of his contract claim in which he claimed entitlement to 

payment of three times his salary—is not quite as simple as 

Butler asserts. As noted, Butler often combined this claim with 

other components of claimed contract damages, leaving 

Mediaport to wonder how big a role the severance claim played 

in the context of Butler’s overall contract claim. But even 

assessing this component of damages separately, we agree with 

Mediaport that this claim is more complex than the “30% of an 

unspecified purchase price” claim at issue in Williams. First of 

all, the information at issue in Williams came in an actual initial 

disclosure, and not in a cobbled-together amalgam of laterproduced documents. See Williams, 2017 UT App 91, ¶ 5. 

Furthermore, the information to which Butler points requires 

Mediaport to follow a series of cross-references from one 

document to the next, from the amended counterclaim to two 

specific (and lengthy) paragraphs in the body of the Agreement 

to a schedule appended to the Agreement. Finally, and perhaps 

most importantly, there remained a fair bit of confusion about 

the relevant “salary” figure that was supposed to be trebled. 

Was it the “Base Salary” identified in the original Agreement 

($130,000)? Was it an increased “Base Salary” to which Butler 

apparently claimed entitlement later in his employment 
Butler v. Mediaport Entertainment

20200465-CA 26 2022 UT App 37

($190,000)? Or was it his “annual salary,” a phrase Butler used in 

his interrogatory response, which could conceivably mean either 

the salary to which he thought he was entitled, including unpaid 

deferred compensation, or the salary that he had actually been 

paid? As noted above, when asked how much he had actually 

been paid, Butler had a hard time providing specific figures. 

¶47 Butler protests that, based on all this information, it 

should have been clear to Mediaport that he was seeking three 

times his Base Salary (rather than his annual salary), and that by 

“Base Salary” he intended the higher figure referred to in the 

Hubbard Letter. At a minimum, he asserts that these relatively 

minor factual distinctions should have been left for a factfinder

to sort out. But Butler—like the plaintiff in Keystone—

“misunderstands the burden placed on the plaintiff by rule 26.” 

See Keystone, 2019 UT 20, ¶ 23. It is not Mediaport’s responsibility

to cull through the documents and attempt to divine what 

Butler’s damages computations might be; it is Butler’s 

responsibility to tell Mediaport what those computations are. It 

is only in those cases where the damages theories and 

computations are clean and simple, and in which the 

illuminating information is produced or obtained well in 

advance of the end of the fact discovery period, where we can 

say that a district court abused its discretion in concluding that 

an inadequate disclosure was not harmless. See, e.g., Chard, 2019 

UT App 209, ¶¶ 43–46.

¶48 Our mention of the district court’s discretion brings us, 

appropriately, back to the standard of review. We recognize that 

assessment of harm in this context is a nuanced matter, and that 

it is sometimes difficult to tell if a defendant has really been 

harmed or is just feigning harm for the purposes of trying to get 

the plaintiff’s damages claims dismissed on non-merits grounds 

prior to trial. In this context, we recognize that a district court 

will almost always have a better vantage point than we do to 

make such a call; partly for this reason, we review a district 
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20200465-CA 27 2022 UT App 37

court’s harmlessness determination for abuse of discretion. See

Keystone, 2019 UT 20, ¶ 18. On this record, the district court 

determined that Butler had not borne his burden of 

demonstrating that his inadequate disclosures were harmless. In 

particular, the court concluded that Butler’s faulty disclosures 

negatively impacted Mediaport’s ability to defend the lawsuit, 

including its decisions about “allocating resources” during the 

discovery phase of the case. This decision, while perhaps not the 

only possible permissible decision under the circumstances, was 

not outside the bounds of the court’s discretion. 

¶49 We therefore affirm the district court’s decision to grant 

Mediaport’s motion in limine and consequently strike all of the 

evidence Butler planned to use to support his damages 

counterclaims. And given that Butler therefore had no evidence 

to support those counterclaims, we perceive no error in the 

court’s decision to dismiss them summarily. 

II. Mediaport’s Cross-Appeal

¶50 In its cross-appeal, Mediaport challenges the district 

court’s determination that Mediaport was not entitled to recover 

the attorney fees it incurred in this litigation. The court 

determined that the Agreement, even assuming its validity, 

simply did not provide for recovery of attorney fees outside the 

arbitration context. We agree with the district court’s 

assessment. 

¶51 “In general, a party may recover attorney fees only when 

provided for by statute or contract—the so-called American 

Rule.” USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 93, 372 P.3d 

629. Here, although Mediaport does make mention of Utah’s 

reciprocal attorney fees statute, see Utah Code Ann. § 78B-5-826, 

its attorney fees claims are grounded in the Agreement. We must 

therefore carefully examine the language of that document; after 

all, under the American rule, attorney fees “provided for by 

contract . . . are allowed only in strict accordance with the terms of 
Butler v. Mediaport Entertainment

20200465-CA 28 2022 UT App 37

the contract.” Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 73, 

201 P.3d 966 (emphasis added) (quotation simplified). 

¶52 Here, there are only two sentences in the Agreement that 

deal with attorney fees, both of which appear in a paragraph 

captioned “Governing Law; Arbitration.” The first such sentence 

states that “[a]ny dispute, controversy or questions arising 

under, out of, or relating to this Agreement . . . shall be referred 

for arbitration,” which “shall be the exclusive and sole means of 

resolving any such dispute.” The next relevant sentence states as 

follows: “In connection with any arbitration, the prevailing party 

shall be entitled to recover its costs and reasonable attorneys’ 

fees in addition to other relief granted.” (Emphasis added.)

¶53 Butler—at least now5—asserts that these provisions entitle 

the prevailing party to recover attorney fees only in an 

arbitration setting, and not in connection with litigation pursued 

in court. We agree that the plain language of the Agreement 

bears no other reasonable interpretation. The parties to the 

Agreement—assuming, as noted, but without deciding, that the 

Agreement is valid—chose language indicating that recovery of 

attorney fees would be available to the prevailing party in any 

dispute between them, but only if that dispute was resolved in an 

 

5. Perhaps hedging his bet, Butler in his counterclaim asserted an 

entitlement to recover attorney fees pursuant to the Agreement, 

even though he filed that counterclaim in court and not before 

an arbitrator. Now, however, Butler reads the Agreement as the 

district court did, namely, providing for recovery of only those 

attorney fees incurred in arbitration. But we do not hold Butler’s 

change of heart against him; indeed, had Butler prevailed before 

the district court, we suspect Mediaport would not be very eager 

to pay attorney fees incurred during the litigation and may well 

have taken a different position than it is taking now regarding 

the interpretation of the Agreement’s attorney fees provision. 
Butler v. Mediaport Entertainment

20200465-CA 29 2022 UT App 37

arbitration proceeding. The Agreement states that attorney fees 

are recoverable only “[i]n connection with any arbitration.” 

Indeed, there is no mention of entitlement to recover attorney 

fees outside of the paragraph captioned “Arbitration.”

¶54 Mediaport resists this conclusion by pointing out that 

Butler, by filing his counterclaim in court and proceeding in 

litigation, waived his right to arbitration. But even assuming the 

truth of that assertion, it is irrelevant to the question at hand; the 

Agreement still does not provide for recovery of fees in courtbased litigation. Had either side filed this litigation in arbitration 

rather than in court, the prevailing party might very well have 

been entitled to recover fees, pursuant to either the terms of the 

Agreement or Utah’s reciprocal attorney fees statute. See Utah 

Code Ann. § 78B-5-826; see also Hooban v. Unicity Int’l, Inc., 2009 

UT App 287, ¶ 10, 220 P.3d 485, aff’d, 2012 UT 40, 285 P.3d 766.

But because neither side opted for arbitration, the Agreement 

simply does not provide for any party to recover attorney fees. 

¶55 Mediaport further protests that, because it took the 

position that the Agreement was invalid, it could not have 

availed itself of an arbitration forum—and thereby invoked the 

attorney fees provision—without harming its position regarding 

the validity of the Agreement. Maybe so. But even assuming that 

Mediaport could not have elected arbitration on a provisional 

basis, the fact that Butler retained control of the operation of the 

attorney fees provision—by being able to choose litigation or 

arbitration—is not necessarily unfair and is merely a function of 

a plaintiff being able to play a significant role in defining the 

scope of litigation. See Ramon v. Nebo School Dist., 2021 UT 30, 

¶ 16, 493 P.3d 613 (referring to the claimant as “master of the 

complaint,” and stating that our adversarial system of justice 

allows a plaintiff “the prerogative of identifying the claims or 

causes of action she seeks to sustain in court” (quotation 

simplified)). 
Butler v. Mediaport Entertainment

20200465-CA 30 2022 UT App 37

¶56 Thus, because the plain language of the Agreement limits 

any recovery of attorney fees to those incurred in arbitration, the

district court did not err in denying Mediaport’s motion for 

attorney fees. 

CONCLUSION

¶57 The district court correctly determined that Butler’s 

damages disclosures were insufficient, and did not abuse its 

discretion in determining that Butler had failed to demonstrate 

that his inadequate disclosures were harmless. Accordingly, the 

court did not err by entering summary judgment, for lack of 

evidence of damages, on all of Butler’s damages counterclaims. 

And finally, the court correctly denied Mediaport’s motion for 

recovery of attorney fees. 

¶58 Affirmed.