Ford v. Ford

2016 UT App 127
THE UTAH COURT OF APPEALS
TRACI CRAWFORD FORD,
Appellee,
v.
PAUL JAMES FORD,
Appellant.
Memorandum Decision
No. 20141040-CA
Filed June 23, 2016
Fifth District Court, St. George Department
The Honorable Jeffrey C. Wilcox
No. 084500221
Robert A. Winsor, Attorney for Appellant
N. Adam Caldwell and Stephen R. Schwendiman,
Attorneys for Appellee
SENIOR JUDGE PAMELA T. GREENWOOD authored this
Memorandum Decision, in which JUDGES STEPHEN L. ROTH and
KATE A. TOOMEY concurred.1
GREENWOOD, Senior Judge:
¶1 Paul James Ford (Ford) appeals the district court’s order
imposing sanctions for his failure to respond to his ex-wife Traci
Crawford Ford’s—now Traci Tun (Tun)—discovery requests.
We affirm.
¶2 Ford and Tun divorced in 2008. At that time, Ford was
making “a substantial amount of money,” and the divorce
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).

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20141040-CA 2 2016 UT App 127
decree required Ford to pay Tun monthly child support. In 2012,
Ford filed a motion to modify child support, property
distribution, and visitation, claiming his income had
significantly declined. Tun responded and filed an ex parte
motion for an order to show cause, claiming Ford had not paid
child support as ordered. The district court issued an order to
show cause. However, due to various continuances, no hearing
occurred until June 2014. In anticipation of the June hearing on
the two motions, Ford served Tun with discovery requests in
April 2014. Tun timely responded to those requests and served
Ford her own discovery requests. Ford ignored Tun’s requests.
Tun sent Ford a letter reminding him of the requests and
extending the time frame within which he could respond before
she would file a motion “seeking to have [his] pleadings
stricken” as a sanction under rule 37 of the Utah Rules of Civil
Procedure. Ford did not respond, and Tun filed a motion to
strike Ford’s pleadings.
¶3 The district court conducted an evidentiary hearing on
June 26, 2014, and first addressed Tun’s motion to strike. Ford
argued he had ignored Tun’s requests because she had
submitted them “outside of the time allowed by the Rules of
Civil Procedure” and had not requested an extension from the
district court and because Tun was only allowed ten requests for
admission under rule 26, not the twelve she submitted.2 The
2. Rule 26(c)(5) of the Utah Rules of Civil Procedure governs
standard fact discovery and provides that suits claiming
amounts in controversy between $50,000 and $300,000 are
limited to ten requests for admission. Utah R. Civ. P. 26(c)(5).
Rule 26(b)(2) explains that discovery requests are proportional,
however, if they meet a number of criteria, including
(1) reasonability considering the needs of the case, the amount in
controversy, and the importance of the discovery in resolving
the issues; (2) the benefit of the discovery when compared with
the burden or expense it imposes; and (3) its furtherance of a
“just, speedy and inexpensive determination of the case,” among
(continued…)

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20141040-CA 3 2016 UT App 127
district court asked Ford, “How can [Tun] prepare for your . . .
presentation when [s]he’s been denied discovery?” Ford told the
court, “That’s a valid point,” but that the court could “continue
the case” in light of the fact that he had not responded. The court
then asked Ford if he would still argue that his failure to
respond was appropriate “[e]ven though [Tun] responded to
your discovery that was earlier this year after fact discovery
closed?” Ford replied, “You’re right,” but that Tun could have
argued “the same.” Ford argued that because “*s+tandard fact
discovery has been closed, [he did not] necessarily need to
respond.” The district court then offered Ford a solution: rather
than strike Ford’s pleadings as a sanction per Tun’s request, it
would instead “consider a continuance if [he would pay Tun’s+
attorney’s fees that were expended in seeking discovery and
preparing for trial today” and if he would respond to Tun’s
discovery requests. Ford declined. The court then struck Ford’s
pleadings without prejudice, including his motion to reduce his
child support payments, and proceeded to consider evidence on
Tun’s order to show cause. In so doing, the district court held
that Tun’s twelve requests for admission were deemed admitted.
¶4 Ford appeals the district court’s order, contending first
that the district court erred when it required him to respond to
Tun’s discovery requests, and second that the district court’s
choice of sanction was “harsh given the facts of the case.” “We
review discovery rulings for an abuse of discretion.” Dahl v.
Harrison, 2011 UT App 389, ¶ 11, 265 P.3d 139. “An abuse of
discretion may be demonstrated by showing that the district
court relied on an erroneous conclusion of law.” Kilpatrick v.
Bullough Abatement, Inc., 2008 UT 82, ¶ 23, 199 P.3d 957 (citation
and internal quotation marks omitted). Furthermore, we grant
the district court “a great deal of deference in selecting discovery
(…continued)
other things. Id. R. 26(b)(2). A district court “has broad discretion
in deciding whether a discovery request is proportional.” Id.
advisory committee notes.

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20141040-CA 4 2016 UT App 127
sanctions” and will “overturn a sanction only in cases
evidencing a clear abuse of discretion.” Kilpatrick, 2008 UT 82,
¶ 23.
¶5 Ford first claims that he had no obligation to respond to
Tun’s discovery requests, because the number of Tun’s
discovery requests exceeded the number of requests allowed
under rule 26(c)(5) of the Utah Rules of Civil Procedure and also
because her requests were served late. Tun responds that “the
Utah Rules of Civil Procedure obligate [Ford] to provide the
discovery” and that if he found Tun’s requests deficient in some
way he should have objected or moved for a protective order
“rather than simply remain silent.” Because “there was no way
for [Tun] to sufficiently present her case without the requested
information,” Tun contends that the district court properly
determined that Ford “was obligated to produce the requested
discovery” or respond in writing.
¶6 Rule 36 of the Utah Rules of Civil Procedure requires
parties to respond to requests for admission within twenty-eight
days. See Utah R. Civ. P. 36(b)(1). It provides that a “matter is
deemed admitted unless, within 28 days after service of the
request, the responding party” responds in writing. Id. It further
provides that, unless a party “objects to a matter, the party must
admit or deny the matter or state in detail the reasons why the
party cannot truthfully admit or deny.” Id. R. 36(b)(2) (emphasis
added). And “[a]ny reason [for objection] not stated is waived
unless excused by the court for good cause.” Id. R. 36(b)(3). As
we have previously noted, “[t]he rule does not say the court may
admit the matter—it says [t]he matter is admitted. By simple
operation of Rule 36(a), parties who ignore requests for
admissions do so at their peril.” Mercado v. Hill, 2012 UT App 44,
¶ 8, 273 P.3d 385 (second alteration in original) (citation and
internal quotation marks omitted). By way of further
explanation, under rule 36, “*o+nce the requests have been
deemed admitted, a party may move to amend or withdraw the
admissions.” Id. Thus, “the trial court has discretion to deny a
motion to amend [or withdraw admissions], but its discretion to

Ford v. Ford
20141040-CA 5 2016 UT App 127
grant such a motion comes into play only after the preliminary
requirements *of Rule 36+ are satisfied.” Id. (alterations in
original) (citation and internal quotation marks omitted).
¶7 Accordingly, the district court did not err when it
determined that Ford was required to respond to Tun’s requests
for admission. Indeed, it did not have discretion to rule
otherwise. Here, Ford chose to ignore Tun’s discovery requests
because he believed that they were “not proportional to the
case” and because they were “8 months late.” If Ford wished to
challenge Tun’s requests, he was required to object in writing.
See Utah R. Civ. P. 36(b)(3). Alternatively, Ford could have
moved the court to amend or withdraw the newly admitted
material once it was deemed admitted. See Mercado, 2012 UT
App 44, ¶ 8. He did not. And Ford’s argument that the
untimeliness of Tun’s discovery requests provided him with
good cause not to respond was not persuasive to the district
court. As the court noted, Ford himself had served untimely
discovery requests on Tun, requests to which she responded.
The district court also noted that Ford’s failure to respond put
Tun at an unfair disadvantage in preparing for trial.3 Thus under
the circumstances the district court acted well within its
authority in concluding that Ford was obligated to respond to
Tun’s discovery requests.
¶8 Ford next argues that the district court abused its
discretion when it sanctioned him “for not responding to
discovery that was not allowed by the Rules” by striking his
pleadings and deeming the requests for admission to be
admitted. Ford asserts that the sanctions are unduly harsh. Tun
replies that it was appropriate for the district court “to impose
3. On appeal, Ford does not argue that the district court abused
its discretion when it failed to find good cause for Ford’s refusal
to respond to Tun’s requests for admission. Nevertheless, for the
reasons stated above, we do not believe the district court abused
its discretion in so deciding.

Ford v. Ford
20141040-CA 6 2016 UT App 127
[upon Ford] any sanction it desired under Rule 37” because he
failed to respond to her requests.4
¶9 At trial, the district court offered Ford a choice: it would
grant him a continuance with time to respond to the discovery
requests if Ford would pay Tun’s attorney fees “expended in
seeking discovery and preparing for trial.” Alternatively, it
would grant Tun’s motion and strike Ford’s pleadings. Ford
rejected the court’s offer, and the district court struck Ford’s
pleadings without prejudice and, in accordance with rule 36,
deemed Tun’s requests for admission admitted. See supra ¶¶ 6–7.
¶10 When discovery requests are outstanding, “*f+ailure to
respond in the appropriate time frame may subject the
noncomplying party to sanctions under Rule 37.” Tuck v. Godfrey,
1999 UT App 127, ¶ 27, 981 P.2d 407. Rule 37(b) authorizes the
court—upon motion and within its discretion—to “strike all or
part of the pleadings,” “deem the matter or any other designated
facts to be established in accordance with the claim or defense,”
and5 “order the party or the attorney to pay the reasonable costs,
4. The parties’ arguments are based upon the pre-2011 versions
of rules 26 and 37 of the Utah Rules of Civil Procedure. Our
analysis, likewise, applies the pre-2011 rules.
5. While rule 37(b) uses the conjunctive “and” when identifying
the panoply of sanctions available to a district court, we note
that the disjunctive “or” is also applicable to an interpretation of
what sanctions the court may impose, i.e., because the statute
uses the term “and,” the court “may impose” all of the sanctions
available to it within its discretion; it may also impose only one
sanction or its choice of sanctions, depending on the facts and
circumstances of the case. Utah R. Civ. P. 37(b); Bodell Constr. Co.
v. Robbins, 2009 UT 52, ¶ 35 n.29, 215 P.3d 933 (explaining that
rule 37 “allows for either the exclusion of the untimely
disclosure or any other sanctions authorized by Subdivision
(b)(2). Other available sanctions include order[ing] the [non-
(continued…)

Ford v. Ford
20141040-CA 7 2016 UT App 127
expenses, and attorney fees, caused by the failure *to respond+.”
Utah R. Civ. P. 37(b)(1), (4), (5). And district courts have “broad
discretion in selecting and imposing sanctions for discovery
violations.” Tuck, 1999 UT App 127, ¶ 15 (citation and internal
quotation marks omitted). Furthermore, “*a+ppellate courts may
not interfere with such discretion unless abuse of discretion is
clearly shown.” Id. “A trial court’s abuse of discretion in
selecting which sanction to impose may be shown only if there is
either an erroneous conclusion of law or no evidentiary basis for
the trial court’s ruling.” Id. (citation and internal quotation
marks omitted). We have already determined that the district
court did not err in concluding that Ford violated rule 36 of the
Utah Rules of Civil Procedure. We now examine whether the
district court exceeded its discretion by imposing the sanctions it
chose.
¶11 The facts of this case support the district court’s choice of
sanctions. After the close of fact discovery, Ford himself served
Tun with untimely discovery requests. She responded to them
and sent Ford her own discovery requests, which he ignored.
She sent Ford a letter offering him more time to respond and
informed him that she would file a motion to strike if he did not
respond. He still chose not to respond. Tun filed her motion to
strike. At the hearing on the matter and after Ford explained to
(…continued)
compliant] party or the attorney to pay the reasonable expenses,
including attorney fees, caused by the failure.” (alterations in
original) (citations and internal quotation marks omitted)); see
also Morton v. Continental Baking Co., 938 P.2d 271, 276 (Utah
1997) (indicating that “a party’s conduct merits sanctions under
rule 37 if any of the following circumstances are found:” (1)
willfulness; (2) bad faith; (3) some fault; or (4) persistent dilatory
tactics (emphasis added) (citations omitted)); Tuck v. Godfrey,
1999 UT App 127, ¶ 21, 981 P.2d 407 (“In sum, once the threshold
determination is made, sanctions are warranted, and the choice
of sanctions is the responsibility of the trial judge.”).

Ford v. Ford
20141040-CA 8 2016 UT App 127
the court that he did not respond in part because Tun’s requests
were not timely, the court noted that Ford had made untimely
requests to which Tun had responded. The court offered Ford
the opportunity to rectify his decision with a continuance if he
provided the requested discovery and agreed to pay Tun’s
attorney fees. Ford declined. The district court then struck Ford’s
pleadings—without prejudice—in accordance with rule 37 of the
Utah Rules of Civil Procedure and deemed Tun’s requests for
admission admitted in accordance with rule 36. Thus, there was
an evidentiary basis for the district court’s choice of sanctions in
this case.
¶12 Under these circumstances, the district court’s choice of
sanctions was also not “harsh,” as Ford claims. But even if it
were “harsh,” a district court may impose a harsh sanction on a
party and still not abuse its discretion. Wright v. Wright, 941 P.2d
646, 650 (Utah Ct. App. 1997) (“[A]s the Utah Supreme Court
emphasized . . . , although some of Rule 37’s discovery sanctions
are harsh and extreme, . . . we will not interfere with the trial
court’s imposition of discovery sanctions . . . , unless [an
appellant] clearly shows the trial court abused its discretion.”).
Here, the district court did not abuse its discretion by striking
Ford’s pleadings without prejudice after Ford failed to respond
to Tun’s requests for admission when Tun had responded to
Ford’s own untimely requests for admissions and when the
district court offered Ford a way out—which he refused to take.
¶13 We conclude that the district court acted within its
discretion when it found that Ford had an obligation to respond
to Tun’s discovery requests and when it imposed sanctions on
Ford for his failure to respond to those requests. Accordingly,
we affirm the district court’s decision.