2016 UT App 121

THE UTAH COURT OF APPEALS

THE CLIFFORD P.D. REDEKOP FAMILY LLC

AND H. TIMOTHY MCCARDELL,

Appellants,

v.

UTAH COUNTY REAL ESTATE LLC, DONALD L. BLACKWELDER,

AND TERRY A. POTTER,

Appellees.

Opinion

No. 20150097-CA

Filed June 3, 2016

Fourth District Court, Provo Department

The Honorable Derek P. Pullan

No. 110401668

Dwight G. Beckstrand, Attorney for Appellants

Russell C. Fericks and Sean C. Miller, Attorneys

for Appellees

SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in 

which JUDGES GREGORY K. ORME and MICHELE M.

CHRISTIANSEN concurred.

1

GREENWOOD, Senior Judge:

¶1 Plaintiffs The Clifford P.D. Redekop Family LLC and H. 

Timothy McCardell (collectively, Redekop) appeal the district 

court’s order granting summary judgment to Defendants Utah 

County Real Estate LLC, Donald L. Blackwelder, and Terry A. 

Potter (collectively, Prudential). We affirm.

 

1. Senior Judge Pamela T. Greenwood sat by special assignment 

as authorized by law. See generally Utah R. Jud. Admin. 11-

201(6).
The Clifford P.D. Redekop Family v. Utah County Real Estate

20150097-CA 2 2016 UT App 121

BACKGROUND

¶2 In 2005, Redekop entered into a Limited Agency Consent

Agreement with Prudential. Prudential represented both the 

buyer—Redekop—and the seller when Redekop purchased two 

commercial office condominiums in Utah County (the Premises). 

For several years, Redekop collected rent from its commercial 

tenants in the Premises without any problems. But in 2009, both

of Redekop’s tenants claimed Redekop had overstated the 

square footage of the Premises, stopped paying rent, and 

demanded a rebate of rent paid. One tenant abandoned the 

Premises and, apparently, the other eventually moved out. 

Redekop was unable to find replacement tenants, and the loss of 

rental income caused it to default on the loan used to finance 

purchase of the Premises. The lender foreclosed on the property.

¶3 In June 2011, Redekop sued Prudential seeking damages 

for breach of contract, breach of the implied covenant of good 

faith and fair dealing, breach of fiduciary duty, fraud, civil 

conspiracy, and negligent misrepresentation. Redekop claimed 

Prudential ‚knew that the square footage of the Premises . . . was 

inaccurate‛ but misrepresented the square footage in order to 

‚ensure the successful sale of the Premises [to Redekop] at the 

highest possible price.‛

¶4 A September 2012 stipulated amended case management 

order (the 2012 Scheduling Order) designated the fact discovery 

deadline as January 31, 2013, and the deadline for Redekop’s 

expert disclosures of February 28, 2013, extending both 

deadlines by six months from the original order. The cutoff date 

for filing dispositive motions was extended to July 31, 2013. In 

August 2013, after months of inactivity, the district court notified 

the parties that it would dismiss the case unless it heard from 

Redekop within twenty days ‚showing good cause why this 

*case+ should not be dismissed.‛ Twenty-one days later, 

Redekop filed a motion, explaining that the sudden death of 

‚one of the Redekop parties[’]‛ children had caused the delay 
The Clifford P.D. Redekop Family v. Utah County Real Estate

20150097-CA 3 2016 UT App 121

and requesting that the district court schedule a trial date. 

Prudential filed a motion for summary judgment, arguing that 

Redekop had not designated an expert witness to address the 

professional and legal duty of a limited real estate agent.

Redekop responded with a motion to strike the motion for 

summary judgment, in which it requested a modification of the 

2012 Scheduling Order regarding designation of expert 

witnesses. The district court refused to consider Redekop’s 

motion due to untimeliness but nevertheless denied Prudential’s 

motion for summary judgment, stating that Prudential had not 

met its ‚burden of presenting evidence that no genuine issue of 

material fact exists in this case.‛

¶5 In its second stipulated amended case management order 

dated February 14, 2014 (the 2014 Scheduling Order)—seventeen 

months after the 2012 Scheduling Order and almost two years 

after the original case management order—the district court set

an expert disclosure deadline of June 12, 2014, for Redekop; a 

rebuttal expert disclosure deadline of July 14, 2014, for 

Prudential; and an expert discovery completion deadline of 

September 30, 2014, for both parties. Expert witness disclosures 

and expert reports were to comply with rule 26(a)(3) of the Utah 

Rules of Civil Procedure.

2 The district court later advised the 

parties that the deadlines in the 2014 Scheduling Order ‚are firm 

and will not be extended.‛

¶6 Redekop timely designated its expert witnesses. The 

district court noted, however, that the report disclosed only the 

 

2. Because this case was filed in June 2011 and because 

amendments to the Utah Rules of Civil Procedure effective 

November 1, 2011, made significant changes to the discovery 

rules, the district court applied the pre-amendment version of 

the discovery rules. See Utah R. Civ. P. 1 advisory committee 

notes. We, likewise, cite the pre-amendment version of the rules.
The Clifford P.D. Redekop Family v. Utah County Real Estate

20150097-CA 4 2016 UT App 121

name Pontis Architectural Group as its expert and included only

‚floor plans of the commercial property in dispute‛ and 

‚conclusory‛ square footage assessments, without explaining 

how those numbers were calculated. Prudential objected to the 

expert witness report, citing the report’s insufficiency and lack of 

identification of any individual qualified to testify as an expert in 

the case. Prudential also attempted to communicate with 

Redekop to correct the report’s deficiencies so that it could 

depose Clifford Redekop and the designated experts. When 

Redekop still did not supplement its expert disclosure, 

Prudential notified Redekop and the district court that it was

cancelling the deposition of Redekop’s expert scheduled to take 

place on the last day of expert witness discovery. After close of 

business on September 30, 2014—the deadline for expert 

discovery—Redekop provided a supplement to its expert 

witness designation and report. The supplement contained the 

names of three individuals associated with Pontis Architectural 

Group, who Redekop explained ‚may‛ testify, along with a 

brochure from Pontis Architectural Group detailing biographical 

information for each potential witness. Prudential, on the other 

hand, had timely designated its rebuttal expert witnesses by its 

July deadline.

¶7 On October 7, Prudential filed a second motion for 

summary judgment, arguing that the district court should 

exclude Redekop’s expert witness due to its failure to comply 

with the 2014 Scheduling Order and that, in the absence of 

qualified expert testimony, Redekop could not meet its burden 

of proof.3 Redekop’s counsel explained his noncompliance,

 

3. Redekop claims that Prudential’s second motion for summary 

judgment—raising the issues we consider in this appeal—

‚addressed the issues litigated in‛ its first motion for summary 

judgment. To the contrary, Prudential states that the first motion 

for summary judgment was denied because Prudential ‚had 

(continued...)
The Clifford P.D. Redekop Family v. Utah County Real Estate

20150097-CA 5 2016 UT App 121

stating that from ‚late-July 2014 through September 2014, [he] 

was mostly incommunicado professionally due to an apparent 

breach of [his] security and violation of [his] privacy in 

connection with an unrelated and highly contentious client 

matter.‛ The district court rejected Redekop’s explanation and 

excluded its expert witness and report as a sanction for

noncompliance with the 2014 Scheduling Order. The district 

court stated that Redekop’s counsel’s security breach in late July 

‚could not have affected [Redekop’s+ ability to make timely 

disclosures one month earlier on June 12, 2014,‛ and that 

Redekop’s counsel ‚did not communicate with opposing counsel 

about this problem, or seek a timely extension of time from the 

Court.‛ Redekop, thus, had not shown ‚good cause‛ why it

could not comply with the 2014 Scheduling Order. The district 

court also found that Redekop did not comply with rule 26,

because it ‚did not disclose the qualifications, compensation, or 

prior casework of any particular person working for or with 

Pontis Architectural Group.‛ Citing rule 37 of the Utah Rules of 

Civil Procedure, the district court found

 

(...continued)

failed to establish that no genuine issue of material fact existed 

as to Redekop’s need for expert testimony on the standard of 

care required of a limited real estate agent.‛ The memorandum 

decision denying the first motion acknowledged Prudential’s 

argument regarding the need for expert testimony as to the 

duties of a limited real estate agent, but also stated that at that 

time there was ‚evidence in the record evidencing a genuine 

issue of material fact as to the square footage of the Premises.‛ 

However, the denial of the earlier motion is not material to our 

analysis. The district court’s decision did not resolve the issue of 

whether expert testimony was needed on the issue of square 

footage. Furthermore, the entry of the 2014 Scheduling Order 

rendered any prior procedural loose ends largely irrelevant.
The Clifford P.D. Redekop Family v. Utah County Real Estate

20150097-CA 6 2016 UT App 121

no good cause for *Redekop’s] failure to make 

expert discovery disclosures timely. The nondisclosure was willful. It was also prejudicial to 

[Prudential] as it rendered [Prudential] incapable 

of deposing *Redekop’s+ experts, attempting to 

disqualify the experts, and finding rebuttal experts.

¶8 The district court next determined that expert testimony 

was needed ‚as to the manner in which commercial square 

footage is calculated in the commercial real estate industry.‛ It 

noted the ‚common areas and storage space in the building‛ and 

questioned the ‚manner and . . . methodology‛ by which these 

‚shared spaces [were] allocated to each commercial unit.‛ It 

stated its belief that the ‚average bystander could not provide 

testimony related to these issues.‛ (Citing State v. Rothlisberger, 

2006 UT 49, ¶ 34, 147 P.3d 1176.) Thus, the district court held that 

‚*w+ithout the testimony of *Redekop’s+ expert, the testimony of 

*Prudential’s+ expert—that the square footage of the building 

was equal to or exceeded the square footage promised to 

[Redekop]—stands unrebutted.‛ Accordingly, the district court 

granted summary judgment in Prudential’s favor.

ISSUES AND STANDARDS OF REVIEW

¶9 Redekop first argues that it substantially complied with 

the 2014 Scheduling Order and therefore no sanctions were 

warranted. Redekop further asserts that the district court’s 

exclusion of his expert witness was an abuse of discretion. We 

review a district court’s imposition of sanctions by first ensuring 

that the district court has expressly found that the party’s 

behavior merits sanctions. Kilpatrick v. Bullough Abatement, Inc., 

2008 UT 82, ¶ 23, 199 P.3d 957. If such a finding has been made, 

we will disturb the sanction only if the district court clearly

abused its discretion, i.e., if the court relied on an erroneous 

conclusion of law or if no evidentiary basis supports the court’s 

ruling, keeping in mind that, ‚[a]s a general rule, district courts 
The Clifford P.D. Redekop Family v. Utah County Real Estate

20150097-CA 7 2016 UT App 121

are granted a great deal of deference in selecting discovery 

sanctions.‛ Id. (citation and internal quotation marks omitted).

¶10 Redekop next argues that summary judgment was 

unwarranted because ‚expert opinion [was] not needed in this 

matter.‛ An appellate court reviews a district court’s conclusion 

that expert testimony is required for correctness. See Townhomes 

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

LLC, 2014 UT App 52, ¶ 20, 329 P.3d 815 (affirming in part 

because the district court did not err in determining that expert 

testimony was required).

ANALYSIS

I. The District Court Did Not Exceed Its Discretion When It

Excluded Redekop’s Expert as a Rule 37 Sanction for Willful 

Noncompliance with the Court’s Order.

¶11 Redekop contests the district court’s ruling excluding its

expert witness as a rule 37 sanction for willful noncompliance 

with the court’s 2014 Scheduling Order. Redekop argues that it

sufficiently complied with the 2014 Scheduling Order and that 

the sanction was merely a ‚docket-clearing exercise [and thus]

was an abuse of the District Court’s discretion.‛ Prudential 

responds that Redekop’s inadequate disclosure was ‚so grossly 

deficient that it amounted to a non-disclosure‛ and that the 

district court did not abuse its discretion by excluding Redekop’s 

expert witness as a sanction under rule 37.

¶12 The district court found that there was ‚no good cause‛ 

for Redekop’s ‚failure to make expert disclosures timely.‛ It also 

found that the ‚non-disclosure was willful‛ and that Redekop’s 

failure had prejudiced Prudential by rendering Prudential

‚incapable of deposing *Redekop’s+ experts, attempting to 

disqualify the experts, and finding rebuttal experts.‛ Thus, the 
The Clifford P.D. Redekop Family v. Utah County Real Estate

20150097-CA 8 2016 UT App 121

district court excluded Redekop’s expert witness ‚in accordance 

with Rule 37.‛

¶13 Rule 16 of the Utah Rules of Civil Procedure ‚gives the 

district court broad authority to manage a case.‛ Coroles v. State, 

2015 UT 48, ¶ 19, 349 P.3d 739 (citation and internal quotation 

marks omitted); see also, e.g., Allen v. Ciokewicz, 2012 UT App 162, 

¶ 32, 280 P.3d 425 (‚Where the trial court finds that a party acted 

willfully, rule 37 of the Utah Rules of Civil Procedure allows it to 

impose sanctions. Once the court makes this threshold finding, 

the choice of an appropriate discovery sanction is primarily the 

responsibility of the trial judge.‛ (citation and internal quotation 

marks omitted)). Our supreme court has cautioned that ‚where 

the exclusion of an expert is tantamount to the dismissal of the 

lawsuit, . . . the district court should exercise restraint in 

choosing this grave step rather than a lesser sanction.‛ Coroles, 

2015 UT 48, ¶ 29. But it also has declared that ‚[o]ur already 

overworked district court judges should not be required to 

provide remedial instructions to counsel on how to properly 

conduct discovery, designate trial exhibits, or prepare expert 

reports.‛ Dahl v. Dahl, 2015 UT 79, ¶ 83, 794 Utah Adv. Rep. 5.

‚Pretrial discovery and disclosure are basic skills that we expect 

all attorneys to possess.‛ Id. Thus, ‚‘it is within a trial court’s 

discretion to impose such a sanction.’‛ Allen, 2012 UT App 162,

¶ 32 (quoting Morton v. Continental Baking Co., 938 P.2d 271, 274 

(Utah 1997)). Our ‚deferential review recognizes that trial courts 

must deal first hand with the parties and the discovery process.‛ 

Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 23, 199 P.3d 

957 (citations and internal quotation marks omitted). Thus, ‚we 

overturn a sanction only in cases evidencing a clear abuse of 

discretion.‛ Id. And a trial court does not clearly abuse its 

discretion in choosing a sanction, even a harsh one, unless ‚there 

is either an erroneous conclusion of law or . . . no evidentiary 

basis for the trial court’s ruling.‛ Allen, 2012 UT App 162, ¶ 32 

(omission in original) (citation and internal quotation marks 

omitted).
The Clifford P.D. Redekop Family v. Utah County Real Estate

20150097-CA 9 2016 UT App 121

¶14 While a district court judge enjoys ‚broad discretion in 

determining how a [case] shall proceed in his or her courtroom,‛ 

Steffensen-WC, LLC v. Volunteers of America of Utah, Inc., 2016 UT 

App 49, ¶ 12, 369 P.3d 483 (alteration in original) (citation and 

internal quotation marks omitted), before a district court may

impose discovery sanctions under rule 37, ‚the court must find 

on the part of the noncomplying party willfulness, bad faith, or 

fault.‛ Morton, 938 P.2d at 274. ‚To find that a party’s behavior 

has been willful, there need only be any intentional failure as 

distinguished from involuntary noncompliance.‛ Id. at 276

(citation and internal quotation marks omitted). ‚Once the trial 

court determines that sanctions are appropriate, [t]he choice of 

an appropriate discovery sanction is primarily the responsibility 

of the trial judge.‛ Id. at 274 (alteration in original) (citation and 

internal quotation marks omitted).

¶15 The district court found that Redekop acted ‚willfully‛

and found ‚no good cause‛ for its failure to timely disclose an 

expert in accordance with rule 26. Rule 26(a)(3) requires parties 

to identify each expert witness and provide a written report 

prepared and signed by the party or expert. The report must 

include (1) ‚the subject matter on which the expert is expected to 

testify‛; (2) ‚the substance of the facts and opinions to which the 

expert is expected to testify‛; (3) ‚a summary of the grounds for 

each opinion‛; (4) ‚the qualifications of the witness, including a 

list of all publications authored by the witness within the 

preceding ten years‛; (5) ‚the compensation to be paid for the 

study and testimony‛; and (6) ‚a listing of any other cases in 

which the witness has testified as an expert at trial or by 

deposition within the preceding four years.‛ Utah R. Civ. P. 

26(a)(3)(B). Under the 2014 Scheduling Order, Redekop had until 

June 12, 2014, to designate an expert witness and provide a 

compliant report to Prudential. Redekop did not provide an 

expert witness report by the stipulated deadline and attempted 

to excuse its failure to do so—and its lack of communication

with the district court and opposing counsel—by explaining that 
The Clifford P.D. Redekop Family v. Utah County Real Estate

20150097-CA 10 2016 UT App 121

its counsel had experienced a security breach and was ‚mostly

incommunicado professionally‛ from ‚late-July 2014 through

September 2014.‛ And only when pressed—and at the close of 

all expert witness discovery—did it designate three possible 

witnesses from Pontis Architectural Group, any one of whom 

might testify. Thus, the district court found that Redekop

disclosed only the name of Pontis Architectural 

Group and the floor plans of the commercial 

property in dispute. The plans did contain square 

footage calculations, but these figures were 

conclusory. [Redekop] did not disclose the subject 

matter of the expert’s expected testimony, the 

substance of the facts and opinions on which the 

expert would testify, or the grounds for each 

opinion. [Redekop] did not disclose the 

qualifications, compensation, or prior casework of 

any particular person working for or with Pontis 

Architectural Group.

Consequently, the district court determined that there was ‚no 

good cause‛ for this ‚willful‛ and untimely disclosure.

¶16 Given these facts and the evidence supporting them, we 

discern no abuse of discretion in the district court’s exclusion of 

Redekop’s expert witness and report as a rule 37 sanction. See

Dahl, 2015 UT 79, ¶ 83 (‚Our courts rely heavily on the 

competence and diligence of counsel. The evidentiary rulings 

[the appellant] complains of were largely the result of her 

counsel’s inability to follow basic rules of procedure and 

properly manage discovery.‛).

II. The District Court Did Not Err in Determining that Expert 

Testimony Was Needed in This Case.

¶17 Redekop next argues that an expert is not needed to 

testify as to the Premises’ square footage because ‚the precise 
The Clifford P.D. Redekop Family v. Utah County Real Estate

20150097-CA 11 2016 UT App 121

measurement of the Premises is not important,‛ a ‚layperson can 

measure an office and testify as to those measurements,‛ and a 

‚trier of fact can determine what to think of those lay 

measurements.‛ Prudential responds, however, that 

‚[s]pecialized knowledge is required to properly calculate the 

square footage‛ of the Premises because commercial real estate 

square footage calculations ‚must take into account any common 

areas in the building such as the lobby and waiting areas, 

restrooms, elevator shafts, storage areas, etc.‛ Prudential further 

explains that

[e]ach tenant in the building is assessed a share of 

these common areas (referred to in the industry as 

‚core factor‛) based on the amount of space the 

tenant occupies, the amount of rent the tenant 

pays, the location of the tenant within the building, 

and the relative importance of the tenant to the 

building.

¶18 As Redekop explains, the ‚disputed issue addressed in 

this matter‛—and the underpinning of all of its claims—‚is 

whether the rentable square footage at the [Premises] was 

overstated by *Prudential+.‛ For Redekop to show that the 

square footage of the Premises was less than promised, as the 

district court determined,

[e]xpert testimony [was] needed as to the manner 

in which commercial square footage is calculated 

in the commercial real estate industry. For 

example, there are common areas and storage 

space in the building. In what manner and by what 

methodology are these shared spaces allocated to 

each commercial unit? The average bystander 

could not provide testimony related to these issues.

In other words, the district court concluded that a jury could 

find that Prudential had overstated the rentable square footage 
The Clifford P.D. Redekop Family v. Utah County Real Estate

20150097-CA 12 2016 UT App 121

of the Premises only if the jury could understand the 

methodology and standards employed by real estate agents in 

calculating a property’s rentable square footage.

¶19 An appellate court reviews for correctness a district

court’s conclusion that expert testimony is required. See

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

Townhomes, LLC, 2014 UT App 52, ¶ 20, 329 P.3d 815 (holding 

that the district court did not err in determining that expert 

testimony was required). The ‚test for determining whether 

testimony must be provided by an expert is whether the 

testimony requires that the witness have scientific, technical, or 

other specialized knowledge; in other words, whether an 

average bystander would be able to provide the same 

testimony.‛ State v. Rothlisberger, 2006 UT 49, ¶ 34, 147 P.3d 1176.

Furthermore, ‚expert testimony is necessary in cases where the 

jury would be unable to determine the applicable standard of 

care without resorting to speculation.‛ Callister v. Snowbird Corp., 

2014 UT App 243, ¶ 15, 337 P.3d 1044 (emphasis added); id.

(noting that in cases involving a standard of care, ‚expert 

testimony is necessary . . . where the particularities of the alleged 

standard of care do not reside within the common knowledge 

and experience of a lay juror.‛). And, ‚*o+rdinarily, the standard 

of care in a trade or profession must be determined by testimony 

of witnesses in the same trade or profession.‛ Townhomes at 

Pointe Meadows, 2014 UT App 52, ¶ 20 (citation and internal 

quotation marks omitted).

¶20 We conclude that the district court correctly determined 

that the question of how square footage is calculated in 

commercial real estate, including consideration of a ‚core 

factor,‛ was key to Redekop’s claims; it is not a question that a 

lay person can answer, even though such persons would likely 

be able, without an expert’s help, to find a tape measure and a 

friend and measure the square footage of their own living room.

For a jury to arrive at a conclusion regarding a square footage 
The Clifford P.D. Redekop Family v. Utah County Real Estate

20150097-CA 13 2016 UT App 121

assessment in the realm of commercial real estate would indeed 

require the jury to engage in speculation. Therefore, the district

court’s determination that an ‚average bystander‛ could not 

provide reliable testimony as to the manner and methodology by 

which commercial real estate is measured is not erroneous.

CONCLUSION

¶21 The district court did not exceed its discretion when it

excluded Redekop’s expert as a rule 37 sanction after Redekop 

failed to comply with the court’s order. The district court also 

correctly concluded that expert testimony was required in this 

case. Accordingly, we affirm.