Bodell v. Robbins

2009 UT 52
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Bodell Construction Company, 	No. 20070951
Plaintiff and Appellant,
v.
Mark H. Robbins; Cherokee &
Walker Investment Company, LLC;
Cherokee & Walker, LLC; JPMorgan
Chase Bank, N.A., Successor to Bank 	F I L E D
One, N.A.; and Does 1 through 50,
Defendants and Appellees. 	August 4, 2009
---
Third District, Salt Lake
The Honorable John Paul Kennedy
No. 030917018
Attorneys: 	James S. Jardine, Matthew R. Lewis, Erin Bergeson
Hull, Salt Lake City, for plaintiff
Andrew G. Deiss, Billie J. Siddoway, Salt Lake City,
for defendant Mark H. Robbins
John A. Beckstead, H. Douglas Owens, Romaine C.
Marshall, Salt Lake City, for defendant JPMorgan
Chase Bank
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	In this case, we must determine the scope of a
settlement agreement between Michael Bodell and his company
Bodell Construction Company (collectively, “Bodell”), on the one
hand, and Marc Jenson and his company MSF Properties
(collectively, “Jenson”), on the other. 	More specifically, we
must determine whether Bodell and Jenson intended their
settlement agreement to settle only the claims between themselves
or whether they intended the settlement agreement to also settle
related claims involving third parties, specifically Bank One and
Mark Robbins.

No. 20070951 	2
¶2 	Bank One and Robbins argued before the district court
that the settlement agreement between Bodell and Jenson was an
“accord and satisfaction,” meaning that the agreement was not
limited to the claims between Bodell and Jenson but satisfied all
related claims even those with third parties. 	On this basis,
Bank One and Robbins moved for summary judgment regarding claims
that Bodell asserted against them. 	In response, Bodell argued
that the agreement was not an accord and satisfaction but rather
a “release,” meaning that the agreement only released the named
parties from the claims that they had against one another. 	The
district court granted the summary judgment motion filed by Bank
One and Robbins.
¶3 	On appeal, Bodell asserts that the district court erred
when it (1) granted summary judgment on the ground that the
settlement agreement was unambiguously an accord and satisfaction
and (2) struck the report of Bodell’s damages expert.
¶4 	Because we determine that the language of the
settlement agreement unambiguously demonstrates that Bodell and
Jenson intended the agreement to release only the claims they had
against one another, not any third-party claims, we reverse the
district court’s grant of summary judgment. 	But we affirm the
district court’s decision to strike the report of Bodell’s
damages expert because we conclude that striking the report was
within the district court’s discretion.
BACKGROUND
¶5 	For purposes of the summary judgment motion, the
parties did not dispute the following material facts. 	In January
2000, Robbins sold a 50 percent interest in his bicycle companies
(collectively, “Vtrax”) to Cherokee & Walker (“C & W”). 	Within
weeks of this transaction, Robbins and C & W became dissatisfied
with the business relationship. 	In May 2000, the parties agreed
that Robbins would repurchase C & W’s interest in Vtrax for $8
million. 	But Robbins did not have $8 million. 	Consequently,
Robbins missed several payment deadlines over the next few
months. 	The directors of C & W grew impatient and threatened to
seize control of Vtrax.
¶6 	Robbins did not want to lose control of Vtrax, so he
continued his search for a lender. 	During this search, Robbins
became aware of the opportunity to acquire the popular “Mongoose”
bicycle brand. 	Robbins knew he needed complete control over
Vtrax in order to pursue the Mongoose acquisition. 	At this
point, Robbins approached Jenson, the owner of a hard-money

3 	No. 20070951
lending business, and asked Jenson for $8 million. 	Robbins
explained that Vtrax was pursuing the acquisition of Mongoose but
that in order for the acquisition to be finalized Robbins needed
$8 million to buyout C & W’s interest in Vtrax. 	After several
negotiations, Jenson agreed to loan Robbins the $8 million
necessary for the C & W buyout.
¶7 	Jenson told Robbins that $4 million of the $8 million
loan would come from Jenson’s own money and Jenson would borrow
the other $4 million from someone else. 	Accordingly, Jenson
approached Bodell about the possibility of borrowing $4 million.
Jenson informed Bodell that the $4 million Bodell contributed
would be loaned to Robbins for the C & W buyout. 	Jenson also
informed Bodell that Robbins was pursing the acquisition of
Mongoose. 	Jenson had known Bodell for many years, and Bodell had
recently loaned Jenson $1 million in a separate transaction. 	Yet
Bodell was hesitant about lending such a large sum of money to
Jenson without knowing the stability of Vtrax.
¶8 	Jenson relayed Bodell’s concerns to Robbins.
Subsequently, Robbins approached Benjamin Lightner, Robbins’s
private banker at Bank One, and asked Lightner to draft a letter
representing the stability of Vtrax. 	On August 22, 2000,
Lightner wrote a letter (the “Lightner Letter”) addressed to
“Whom It May Concern.” 	The Lightner Letter indicated that
Robbins and Jenson would be depositing $165 million into a Bank
One account for MadTrax, the company created by Robbins to pursue
the acquisition of Mongoose. 	The deposit was to come from a loan
agreement between MadTrax and Arimex Investments. 	In actuality,
there was no loan agreement between MadTrax and Arimex. 	Still,
Robbins gave a copy of the Lightner Letter to Jenson, who in turn
gave a copy to Bodell.
¶9 	Eight days after the Lightner Letter was written,
Bodell loaned $4 million to Jenson. 	As planned, Jenson then took
the $4 million from the Bodell loan and $4 million of his own
money and loaned $8 million to Robbins to buy out C & W. 	Robbins
paid C & W the required $8 million and obtained full control of
Vtrax. 	Two months later, Robbins’s efforts to acquire Mongoose
failed and Vtrax collapsed. 	Robbins defaulted on his loan
payment to Jenson, and, subsequently, Jenson defaulted on his
repayment obligation to Bodell.
¶10 	On March 18, 2003, Bodell and Jenson entered into a
settlement agreement whereby Bodell released Jenson from all tort
and contract claims in exchange for $3 million. 	Paragraphs 1 and
2 of the settlement agreement state as follows:

No. 20070951 	4
1. 	Contemporaneous 	with 	the 	execution 	and
delivery 	of 	this 	Agreement, 	[Jenson] 	has
caused 	$3,000,000 	in 	immediately 	available
funds 	to 	be 	delivered 	to 	[Bodell]. 	[Bodell]
hereby acknowledges receipt of such funds.
2. 	Each of Bodell and BCC, for himself,
itself, their affiliates and for all persons
or entities claiming by, through or under
him, it or them, hereby (a) releases,
acquits, waives and forever discharges MSF,
its affiliates and their respective members,
managers, officers, employees and agents
(each, including without limitation Jenson,
an “MSF Party”) from any and all claims,
allegations of fraud, charges, demands,
losses, damages, obligations, liabilities,
grievances, causes of action, or suits at law
and equity of whatsoever kind and nature,
expenses, costs and attorneys fees, whether
known or unknown, suspected or unsuspected,
liquidated or unliquidated (each, a “Claim”),
arising out of all past affiliations and
transactions among Bodell, BCC and any MSF
Party, including, but not limited to, the
Loans and all related arrangements and
transactions, (b) without limiting the
generality of the foregoing, acknowledges and
agrees that the obligations of the MSF
Parties in connection with the Loans,
including all principal and interest that may
have been deemed to have accrued thereon, are
hereby deemed fully satisfied and repaid in
full. (Emphasis added.)
¶11 	Four months after executing the settlement agreement,
Bodell filed suit against Bank One and Robbins claiming four
causes of action: 	(1) fraud, (2) civil conspiracy, (3) negligent
misrepresentations, and (4) unjust enrichment.
¶12 	On October 29, 2003, Bank One and Robbins filed a
motion for summary judgment. 	On March 15, 2004, Judge Bohling of
the district court entered an order denying the motion for
summary judgment filed by Bank One and Robbins. 	The district
court held that (1) the settlement agreement was not an accord
and satisfaction, and (2) an accord and satisfaction does not
operate for the benefit of third parties unless the third parties
are specifically referenced in the agreement.

1 Sackler v. Savin, 897 P.2d 1217, 1220 (Utah 1995).
2 Peterson v. Sunrider Corp., 2002 UT 43, ¶ 14, 48 P.3d 918.
5 	No. 20070951
¶13 	During the discovery period, the case was reassigned to
Judge Kennedy. 	Three weeks after the close of discovery, Bodell
served the expert report of Merrill Weight (the “Weight Report”)
on Bank One and Robbins. 	The Weight Report included three new
damages theories that were not disclosed during discovery. 	Bank
One and Robbins filed a motion to strike the Weight Report. 	The
district court granted the motion because Bodell had (1) not
disclosed its alternative damages theories during fact discovery,
(2) failed to show good cause for its failure to timely disclose,
and (3) prejudiced the defendants by failing to disclose these
theories.
¶14 	Additionally, Bank One and Robbins renewed their
initial motion for summary judgment and asked Judge Kennedy to
revisit the question of whether the settlement agreement was an
accord and satisfaction. 	At a hearing on September 10, 2007,
Judge Kennedy granted summary judgment for Bank One and Robbins,
ruling that (1) the settlement agreement was unambiguously an
accord and satisfaction, and (2) an accord and satisfaction
operates for the benefit of third parties. 	Thus, the district
court held that the settlement agreement--as an accord and
satisfaction--extinguished Bodell’s claims of fraud and negligent
misrepresentation asserted against Bank One and the claims of
fraud, civil conspiracy, and unjust enrichment asserted against
Robbins.
¶15 	Bodell timely appealed. 	We have jurisdiction to
consider Bodell’s arguments on appeal pursuant to Utah Code
section 78A-3-102(3)(j) (2008).
STANDARDS OF REVIEW
¶16 	We review a district court’s interpretation of a
contract for correctness, giving no deference to the district
court. 1 	Whether a contract is ambiguous is a question of law,
which we also review for correctness. 2 	We review a district
court’s decision to grant summary judgment for correctness,
granting no deference to the district court’s conclusions, and we
view the facts and all reasonable inferences in the light most

3 Arnold Indus., Inc. v. Love, 2002 UT 133, ¶ 11, 63 P.3d
721.
4 Morton v. Cont’l Baking Co., 938 P.2d 271, 274 (Utah
1997).
5 R & R Indus. Park, L.L.C. v. Utah Prop. & Cas. Ins. Guar.
Ass’n, 2008 UT 80, ¶ 20, 199 P.3d 917 (internal quotation marks
omitted).
No. 20070951 	6
favorable to the nonmoving party. 3 	We review discovery sanctions
under an abuse of discretion standard. 4
ANALYSIS
¶17 	We first consider Bodell’s argument that the settlement
agreement is a release rather than an accord and satisfaction.
We conclude that the plain language of the settlement agreement
unambiguously demonstrates that the parties to the agreement
intended that the agreement operate only as a mutual release of
claims rather than an accord and satisfaction of all claims,
including those against third parties. 	Next, we consider
Bodell’s argument that the district court abused its discretion
in striking the report of Bodell’s damages expert. 	Because we
determine that the district court did not abuse its discretion,
we affirm the district court’s decision to strike the expert
report.
I. 	THE SETTLEMENT AGREEMENT UNAMBIGUOUSLY RELEASES ONLY THE
CLAIMS BETWEEN THE PARTIES NAMED IN THE AGREEMENT
¶18 	Bodell argues that the district court erred in ruling
that the settlement agreement unambiguously settled Bodell’s
claims against nonparties to the agreement. 	More specifically,
Bodell argues that the settlement agreement plainly released only
those claims that Bodell and Jenson had against one another. 	In
the alternative, Bodell argues that the settlement agreement was
ambiguous and extrinsic evidence demonstrates that the parties
intended to limit the settlement agreement to claims between
Bodell and Jenson. 	We agree with Bodell’s first argument, that
the settlement agreement unambiguously released only those claims
between Bodell and Jenson. 	Accordingly, we decline to consider
any extrinsic evidence.
¶19 	“Settlement agreements are governed by the rules
applied to general contract actions.” 5 	When we interpret a
contract, or in this case a settlement agreement, we determine
“the intent of the contracting parties” by “first look[ing] to

6 Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 44, 201
P.3d 966.
7 Id. (quoting Green River Canal Co. v. Thayn, 2003 UT 50,
¶ 17, 84 P.3d 1134).
8 Id.; see also Deep Creek Ranch, LLC v. Utah State Armory
Bd., 2008 UT 3, ¶ 16, 178 P.3d 886.
9 Giusti, 2009 UT 2, ¶ 44 (quoting Daines v. Vincent, 2008
UT 51, ¶ 25, 190 P.3d 1269).
10 We have defined “Bodell” to include both Michael Bodell
and Bodell Construction Company. 	We have defined “Jenson” to
include both Marc Jenson and MSF Properties.
7 	No. 20070951
the writing alone.” 6 	If the writing is unambiguous, we determine
the intent of the parties exclusively from the “‘plain meaning of
the contractual language.’” 7 	Only where there is ambiguity in
the terms of the contract may we ascertain the parties’ intent
from extrinsic evidence. 8 	“‘A contractual term or provision is
ambiguous if it is capable of more than one reasonable
interpretation because of uncertain meanings of terms, missing
terms, or other facial deficiencies.’” 9
¶20 	The settlement agreement between Bodell and Jenson is
unambiguous because it is capable of only one reasonable
interpretation. 	The language of the settlement agreement
unambiguously demonstrates that Bodell and Jenson intended only
to settle those claims that they had against one another. 	First,
the agreement identifies the parties to the agreement:
THIS SETTLEMENT AGREEMENT (this “Agreement”)
is entered into . . . by and among BODELL
CONSTRUCTION COMPANY, a Utah corporation
(“BCC”), MICHAEL BODELL, an individual
(“Bodell”), MARC S. JENSON, an individual
(“Jenson”), and MSF PROPERTIES, L.L.C., a
Utah limited liability company (“MSF”).
As we use the terms in this opinion, Bodell and Jenson are the
only parties named by the settlement agreement. 10 	Then the
settlement agreement plainly limits its terms to those named
parties. 	It states,
WHEREAS, the parties now desire to achieve a
full settlement of all obligations, disputes

No. 20070951 	8
and other matters outstanding between them
. . . .
4. 	. . . MSF, Jenson, Bodell and BCC have
definitely settled all matters between them
. . . .
5. 	Each of the parties hereto understand and
agree that this is a mutual release of claims
and that following execution of this
document, no Bodell Party shall have any
claim against an MSF Party and no MSF Party
shall have any claim against a Bodell Party
. . . . 	(Emphases added.)
¶21 	In addition to limiting its terms to the named parties,
the settlement agreement also specifically names which parties
are released from which claims. 	The agreement states,
2. 	Each of Bodell and BCC, for himself,
itself, their affiliates and for all persons
or entities claiming by, through or under
him, it or them, hereby (a) releases,
acquits, waives and forever discharges MSF,
its affiliates and their respective members,
managers, officers, employees and agents
(each, including without limitation Jenson,
an “MSF Party”) from any and all claims,
. . . arising out of all past affiliations
and transactions among Bodell, BCC and any
MSF Party, . . . acknowledges and agrees that
the obligations of the MSF Parties in
connection with the Loans, including all
principal and interest that may have been
deemed to have accrued thereon, are hereby
deemed fully satisfied and repaid in full
. . . . 	(Emphases added.)
There is no language to indicate that the parties intended to
satisfy all of Bodell’s potential tort and contract claims
against persons not a party to the agreement.
¶22 	Bank One and Robbins argue that because the settlement
agreement includes the word “satisfied,” we should construe the
agreement to be an accord and satisfaction, or, in other words,
to satisfy any and all related claims that the named parties may
have against nonparties to the agreement. 	We disagree.

11 See IFG Leasing Co. v. Gordon, 776 P.2d 607, 614 n.32
(Utah 1989).
12 ProMax Dev. Corp. v. Raile, 2000 UT 4, ¶ 20, 998 P.2d 254
(internal quotation marks omitted).
13 Bennion v. LeGrand Johnson Constr. Co., 701 P.2d 1078,
1082 (Utah 1985).
14 See Arthur L. Corbin, Corbin on Contracts § 1276 (1962)
(“Discharge by accord and satisfaction means a discharge by the
rendering of some performance different from that which was
claimed as due and the acceptance of such substituted performance
by the claimant as full satisfaction of his claim.” (emphasis
added)).
15 ProMax, 2000 UT 4, ¶ 20.
9 	No. 20070951
¶23 	Accord and satisfaction is a common law concept. 11 	It
denotes the intention of the contracting parties to “agree that a
different performance, to be made in substitution of the
performance originally agreed upon, will discharge the obligation
created under the original agreement.” 12 	An accord and
satisfaction may discharge an obligation arising out of a
“contract, quasi-contract, [or] tort.” 13 	When a claim is
discharged through an accord and satisfaction, the claim is
considered fully satisfied. 	The claimant no longer has the legal
right to seek recovery from anyone on that claim. 14 	Before we
determine that an agreement constitutes an accord and
satisfaction, we must find the following three elements in the
contract: 	“(1) an unliquidated claim or a bona fide dispute over
the amount due; (2) a payment offered as full settlement of the
entire dispute; and (3) an acceptance of the payment as full
settlement of the dispute.” 15
¶24 	From a plain reading of the settlement agreement, we
determine that the last two elements of an accord and
satisfaction are not met. 	Although the agreement incorporated
the offer of a payment by Jenson and the acceptance by Bodell in
satisfaction of an obligation, the language of the agreement does
not indicate that the payment was offered and accepted with the
intent to satisfy the entire underlying dispute. 	Rather, the
payment was offered and accepted as “a full settlement of all
obligations, disputes and other matters outstanding between them,
including, but not limited to the Loans.” 	(Emphasis added.)
Thus, the plain language limits the effect of the payment to the
settlement of the claims between Bodell and Jenson; claims as to
third parties are not contemplated.

16 Because we determine that the plain language of the
settlement agreement demonstrates that the parties intended to
limit the impact of their agreement to the claims between them,
we do not reach Bodell’s argument that the Liability Reform Act,
found in Utah Code section 78B-5-822, prohibits this court from
applying the agreement to claims Bodell may have against third
parties.
17 Bank One argues that we should affirm the district
court’s grant of summary judgment on any of seven other theories
that they presented to, but were not reached by, the district
court. 	To serve judicial economy, we may affirm a district
court’s decision whenever the decision appealed from “is
sustainable on any legal ground or theory apparent on the
record.” 	Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158
(internal quotation marks omitted); see also Bill Nay & Sons
Excavating v. Neeley Constr. Co., 677 P.2d 1120, 1123 (Utah
1984); Limb v. Federated Milk Producers Ass’n, 461 P.2d 290, 293
(continued...)
No. 20070951 	10
¶25 	Robbins and Bank One contend that by including the term
“satisfied” in the settlement agreement, Bodell necessarily
released any claims he may have against Bank One and Robbins,
even though Bank One and Robbins were not parties to the
agreement. 	We disagree. 	The parties’ use of “satisfied” in the
settlement agreement does not alter our reading of the agreement.
Indeed, we decline to adopt a rule that overlooks the contracting
parties’ clear intent and imputes a different meaning to a
contract simply because the parties incorporated an otherwise
ordinary term into their agreement. 	“Satisfied” appears only
once in the agreement and is limited by surrounding language.
The agreement states that Bodell “acknowledges and agrees that
the obligations of [Jenson] in connection with the Loans . . .
are hereby deemed fully satisfied and repaid in full.” 	Thus the
word “satisfied” does not depict a full satisfaction of all
underlying claims, as is characteristic of an accord and
satisfaction; rather its impact is limited to “the obligations of
[Jenson] in connection with the Loans.” 	Thus, the settlement
agreement satisfied only Jenson’s loan obligation to Bodell. 	It
did not satisfy any claims that Bodell may potentially have
against Robbins or Bank One for full satisfaction of the debt
owed. 16
¶26 	Because we determine that the plain language of the
settlement agreement limited the agreement to claims between
Bodell and Jenson, we reverse the district court’s grant of
summary judgment. 17 	We now turn to the court’s decision to

17 (...continued)
n.2 (Utah 1969).
We decline to consider the alternative grounds in this case
because we do not see that doing so will serve judicial economy.
The district court is already familiar with the alternative
theories as they have been fully briefed and argued to that
court. 	Accordingly, we determine that the district court is in a
better position than we are at this time to rule on Bank One’s
alternative theories.
18 Bd. of Trs. of Wash. County Water Conservatory Dist. v.
(continued...)
11 	No. 20070951
strike the report of Bodell’s damages expert.
II. 	THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN STRIKING
THE WEIGHT REPORT
¶27 	Three weeks after the close of discovery, Bodell served
the Weight Report on Bank One and Robbins. 	The Weight Report
included three new damages theories that were not disclosed
during discovery. 	Bank One and Robbins filed a motion to strike
the Weight Report. 	The district court granted the motion because
Bodell had (1) not disclosed his alternative damages theories
during fact discovery, (2) failed to show good cause for his
failure to timely disclose, and (3) prejudiced the defendants by
failing to disclose these theories.
¶28 	Bodell argues that the district court abused its
discretion in striking the Weight Report because Bodell’s
disclosure of the Weight Report did not violate any court order
and complied with the Utah Rules of Civil Procedure. 	In the
alternative, Bodell argues that even if the Weight Report was not
properly disclosed, the court nevertheless abused its discretion
in striking the report because there was good cause for the
failure and the failure was harmless. 	Bank One and Robbins
contest the merits of Bodell’s arguments, and Bank One contends
that this issue is not ripe for appeal. 	We first address Bank
One’s ripeness argument, and then we turn to the substance of
Bodell’s arguments.
A. 	The Issue of Whether the District Court Erred in Striking the
Weight Report Is Ripe for Appeal
¶29 	A dispute is ripe “when ‘a conflict over the
application of a legal provision [has] sharpened into an actual
or imminent clash of legal rights and obligations between the
parties thereto.’” 18 	An issue is not ripe for appeal if “‘there

18 (...continued)
Keystone Conversions, L.L.C., 2004 UT 84, ¶ 32, 103 P.3d 686
(alteration in original) (quoting Redwood Gym v. Salt Lake County
Comm’n, 624 P.2d 1138, 1148 (Utah 1981)).
19 Id. (alteration in original) (quoting Redwood Gym, 624
P.2d at 1148).
20 DeBry v. Cascade Enters., 935 P.2d 499, 502 (Utah 1997)
(citing State ex rel. Road Comm’n v. Rohan, 503 P.2d 141 (Utah
1972)); see also Smith v. DeNiro, 501 P.2d 265 (Utah 1972).
21 2005 UT 2, 106 P.3d 705.
22 1999 UT 84, 987 P.2d 39.
23 2005 UT 2, ¶ 3.
24 Id.
No. 20070951 	12
exists no more than a difference of opinion regarding the
hypothetical application of [a provision] to a situation in which
the parties might, at some future time, find themselves.’” 19 	If,
however, an issue was “raised, argued, and resolved by the trial
court prior to the entry of” a final judgment, then that issue is
ripe for appeal, and the “failure to raise [it] on appeal
result[s] in a waiver of the[] right to raise [it] at a later
time.” 20
¶30 	Bank One argues that the issue of whether the district
court erred in its decision to strike the Weight Report is not
ripe for appeal because there may be some future scenario in
which an appellate court would not have to reach the issue. 	That
future scenario would occur if the district court, on remand,
were to enter summary judgment on one of Bank One’s alternative
theories, the case settled, or the case eventually reaches a jury
and the jury finds against Bodell. 	To support its position, Bank
One relies upon Pett v. Autoliv ASP, Inc. 21 and State v. Ortiz.22
¶31 	In Pett, we granted an interlocutory appeal challenging
a district court’s decision to grant a party leave to amend an
answer to plead a particular affirmative defense. 23 	The
respondent asked us to determine whether Utah law recognized the
affirmative defense that the petitioner sought to plead. 24 	We
declined to determine the scope of Utah law as it related to the
affirmative defense because we determined that the issue had not
“matured to the extent that we [could] know with certainty the

25 Id. ¶ 5.
26 1999 UT 84, ¶ 1.
27 Id. ¶ 4.
13 	No. 20070951
facts and law which [would] shape its final outcome.” 25
¶32 	In Ortiz, two defendants challenged the sentencing
structure applicable to the crimes with which they were
charged. 26 	Because the defendants had not yet been convicted, we
determined that the challenge was not ripe. 	We stated, “there
are several possible circumstances under which we would not need
to address the constitutionality of [the sentencing
structure].” 27
¶33 	In both Pett and Ortiz, the challenged law had not yet
been applied to the parties, and we determined that without such
application the challenges were not ripe. 	This case is markedly
different. 	Bodell has sought to submit the Weight Report, and
the district court, applying Utah Rule of Civil Procedure 37(f)
to the facts, struck the report. 	Though it is possible that the
case could be later decided or settled on issues unrelated to the
information in the Weight Report, the admissibility of the Weight
Report is still properly before us. 	The issue has been squarely
presented to the district court, the court has ruled on the
issue, the issue was ripe when the court ruled on it, and the
court has issued a final judgment. 	Accordingly, we conclude that
the issue is ripe for our determination.
B. 	The District Court Did Not Abuse Its Discretion in Striking
the Weight Report
¶34 	Bodell argues that the district court erred in striking
the Weight Report because the disclosure of the report complied
with the Utah Rules of Civil Procedure, and even if the
disclosure had violated the rules, allowance of the report would
not have harmed the defendants. 	Further, Bodell claims that he
had good cause for his failure to previously disclose the
information in the report. 	Bank One and Robbins argue that
because Bodell did not disclose the damages theories in the
Weight Report during initial disclosures or discovery, the
district court was within its discretion to strike the Weight
Report rather than reopen discovery. 	We determine that (1)
Bodell violated Utah Rule of Civil Procedure 26 when he failed to
disclose the theories in the Weight Report before the close of
fact discovery and (2) it was within the district court’s
discretion to find that Bodell’s failure to disclose harmed Bank

28 Utah R. Civ. P. 26(a)(1)(C).
29 Utah R. Civ. P. 37(f).
Rule 37(f) 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-
compliant] party or the attorney to pay the reasonable expenses,
including attorney fees, caused by the failure.” 	Utah R. Civ. P.
37(b)(2)(D).
30 Morton v. Cont’l Baking Co., 938 P.2d 271, 274 (Utah
1997) (internal quotation marks omitted).
31 Id. at 275.
32 Id. at 274 (citations and internal quotation marks
omitted).
No. 20070951 	14
One and Robbins and that Bodell did not have good cause for its
failure to disclose the theories in a timely manner.
¶35 	Rule 26 of the Utah Rules of Civil Procedure requires
that a party disclose the “computation of any category of damages
claimed by the disclosing party” during initial disclosures. 28
When a party fails to make timely disclosure, the district court
is required to impose discovery sanctions on that party unless
the “failure to disclose is harmless or the party shows good
cause for the failure to disclose.” 29 	The district court has
“broad discretion regarding the imposition of discovery
sanctions.” 30 	In applying the abuse of discretion standard to
the district court’s imposition of a particular sanction, we give
the district court “a great deal of latitude in determining the
most fair and efficient manner to conduct court business” because
the district court judge “is in the best position to evaluate the
status of his [or her] cases, as well as the attitudes, motives,
and credibility of the parties.” 31 	Thus, we will determine that
a district court “has abused its discretion in choosing which
sanction to impose only if there is either an erroneous
conclusion of law or no evidentiary basis for the [district]
court’s ruling.” 32
¶36 	We determine that in this case there was a sufficient
evidentiary basis for the district court to exclude the Weight
Report. 	The damages theories advanced in the Weight Report were
not disclosed during the requisite discovery period. 	During
initial disclosures, Bodell disclosed that its damages
“constitute the funds advanced, together with interest at the
legal rate, less the payment received from MSF.” 	In response to

33 Utah Code Ann. § 15-1-1(2) (2005).
34 Bodell contends that his discovery responses referred to
the contractual interest rate in the Promissory Note between
Bodell and MSF. 	However, Bank One and Robbins were not parties
to that note and, therefore, are not bound by it. 	See Taylor,
Cotton & Ridley, Inc. v. Okatie Hotel Group, L.L.C., 641 S.E.2d
459, 464 (S.C. Ct. App. 2007) (holding that the home owner was
bound only to the statutory interest rate where the owner was not
party to the contract wherein the general contractor and the
subcontractor agreed to a higher interest rate); see also
Cassacia v. Habel, 303 N.E.2d 548, 551 (Ill. App. Ct. 1973)
(determining that a nonparty to an agreement is not subject to
the high interest rates of that agreement).
15 	No. 20070951
a request for admission from Bank One, Bodell clarified that he
sought interest at the legal rate as provided in Utah Code
sections 15-1-1 and 15-1-4, which provide that interest shall
accrue at “10% per annum” unless the parties “specify a different
rate of interest.” 33 	Neither Bodell and Bank One nor Bodell and
Robbins had specified a different interest rate. 34 	Thus, the
district court was correct when it concluded that Bodell
disclosed only the following damages: 	“$4 million, less payments
received, plus interest at the statutory rate.”
¶37 	It was not until three weeks after fact discovery
closed that Bodell served the Weight Report on Bank One and
Robbins. 	The Weight Report included three new damages theories,
including the Benefit of the Bargain Rule, the Modified Benefit
of the Bargain Rule, and the Comparable Rate of Return theory.
Bank One and Robbins moved to strike the Weight Report because
they did not have the opportunity to conduct discovery regarding
facts essential to these theories. 	According to Bank One and
Robbins, essential facts included Bodell’s loan history; the loan
histories and practices of those to whom Bodell could have and
would have allegedly loaned money in lieu of MSF; the
capabilities of MSF and Jenson to repay or obtain financing to
repay the $4 million loan at the time the loan was made; and
Bodell’s expenses, investments, and credit history at the time
the loan was made. 	The district court agreed: 	“the defendants
will suffer prejudice if Bodell were allowed to present these
damages theories at trial because these claims and the bases for
them were not disclosed during fact discovery and defendants are
now unable to conduct fact discovery to rebut those theories.”
Though the district court could have reopened fact discovery to
allow for these theories, the court was not obligated to do so.
Thus, the court’s finding of prejudice to Bank One and Robbins
was correct.

No. 20070951 	16
¶38 	Bodell contends that he had good cause for his failure
to comply with rule 26. 	Particularly Bodell argues that he
“complied with generally accepted litigation practices” when he
“disclosed its damages theories during fact discovery and then
laid them out in greater detail in an expert report produced
during the expert discovery period.” 	We are unpersuaded. 	As we
stated previously, Bodell’s reference to Utah Code sections 15-1-
1 and 15-1-4 was insufficient to constitute disclosure of the
“computation of any category of damages claimed by the disclosing
party,” particularly the Benefit of the Bargain Rule, the
Modified Benefit of the Bargain Rule, and the Comparable Rate of
Return theory.
¶39 	Because Bodell’s disclosure of the Weight Report failed
to comply with rule 26, allowing the report would have prejudiced
Bank One and Robbins, and Bodell failed to show good cause for
his failure, we affirm the district court’s decision to exclude
the Weight Report.
CONCLUSION
¶40 	The language of the settlement agreement between Bodell
and Jenson unambiguously demonstrates that Bodell and Jenson
intended the agreement to release only the claims they had
against one another, not any third-party claims they may have.
Accordingly, we reverse the district court’s grant of summary
judgment. 	But we affirm the district court’s decision to strike
the Weight Report. 	In light of the facts that Bodell failed to
timely disclose the damages theories contained in the report,
late disclosure of the theories would have prejudiced Bank One
and Robbins, and Bodell failed to show good cause for his
untimeliness, striking the report was within the discretion
granted to the district court by Utah Rule of Civil Procedure
37(f).
---
¶41 	Chief Justice Durham, Justice Parrish, Justice Nehring,
and Judge Willmore concur in Associate Chief Justice Durrant’s
opinion.
¶42 	Having disqualified himself, Justice Wilkins does not
participate herein; District Judge Thomas L. Willmore sat.