R4 Constructors v. Inbalance Yoga

2020 UT App 169
THE UTAH C OURT OF APPEALS
R4 C ONSTRUCTORS LLC,
Appellee,
v.
INBALANCE YOGA C ORPORATION AND J ENNIFER SCHNABEL ,
Appellants.
Opinion
No. 20190685-CA
Filed December 24, 2020
Fourth District Court, Provo Department
The Honorable Christine S. Johnson
No. 170401436
Justin D. Heideman and Justin R. Elswick, Attorneys
for Appellants
Cody W. Wilson and Andrew Berne, Attorneys
for Appellee
J UDGE D AVID N. MORTENSEN authored this Opinion, in which
J UDGES MICHELE M. C HRISTIANSEN FORSTER and R YAN M. HARRIS
concurred.
MORTENSEN, Judge:
¶1 	InBalance 	Yoga 	Corporation 	and 	Jennifer 	Schnabel
(collectively, InBalance) failed to timely designate any experts,
and the district court denied a motion to extend the lapsed
deadline. Subsequently, the district court granted a motion by R4
Constructors LLC (R4) for summary judgment—both on its own
claims 	for 	affirmative 	relief 	as 	well 	as 	on 	InBalance’s
counterclaims—and 	denied 	InBalance’s 	cross-motion 	for
summary judgment on R4’s claims. The district court’s grant of
R4’s motion rested, in part, on the conclusion that InBalance
failed to disclose a computation of damages. The denial of
InBalance’s cross-motion was premised on the district court’s

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conclusion that InBalance waived a licensure defense. InBalance
appeals these rulings. We affirm the district court’s rulings in
part but vacate the entry of summary judgment granting R4’s
claims for affirmative relief as well as the final judgment in R4’s
favor, and remand for further proceedings.
BACKGROUND
¶2 	In December 2015, InBalance contracted with R4 for the
construction 	of 	a 	yoga 	studio. 	R4 	subsequently 	began
construction on the studio, and InBalance paid R4 according to
the first invoice. Thereafter, disputes arose with regard to the
work on the studio, and InBalance refused to pay additional
amounts due. Eventually, R4 finished working on the studio,
and a certificate of occupancy was issued.
¶3 	R4 filed a complaint against InBalance seeking amounts
owed 	under 	the 	contract. 	InBalance 	filed 	a 	counterclaim
stemming 	from 	alleged 	defects 	in 	the 	construction 	and 	an
answer asserting twenty-nine affirmative defenses, not including
R4’s lack of licensure. During discovery, R4 propounded an
interrogatory 	requesting 	“a 	detailed 	computation” 	of 	the
damages 	alleged 	in 	InBalance’s 	counterclaim. 	In 	response,
InBalance stated it claimed no less than $185,723.79 “based upon
the original costs of labor and fixtures to perform the work as
identified in the R4 contract as well as the cost of correct and
functioning fixtures and the cost of repair for the items installed
and/or constructed.”
¶4 	The litigation continued, and the deadline to disclose
expert witnesses passed without InBalance having disclosed any
expert witness. Several weeks after the disclosure deadline,
InBalance filed a motion to extend the expert disclosure deadline
and sought leave to disclose a construction expert. The court
held a hearing, at the conclusion of which it denied the motion
and articulated the findings underlying its decision. The court
subsequently entered a written order denying the motion.

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¶5 	Thereafter, R4 filed a motion for summary judgment on
its 	affirmative 	claims 	and 	seeking 	dismissal 	of 	InBalance’s
counterclaims, in part because InBalance failed to timely disclose
an expert witness necessary to prove the alleged construction
defects. InBalance filed its own motion for summary judgment
for the limited purpose of dismissing R4’s claims as barred by
statute due to R4’s lack of a contractor’s license at the time the
parties made the contract. The district court granted R4’s motion,
denied 	InBalance’s 	cross-motion, 	dismissed 	InBalance’s
counterclaims, and entered judgment, including attorney fees,
for R4 on its affirmative claims.
¶6 	InBalance appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 	InBalance raises three issues on appeal. First, InBalance
asserts that the district court erred in denying its motion to
extend the expert disclosure deadline. We review a court’s
decision on extending the time for discovery for an abuse of
discretion, reversing only “if there is no reasonable basis for the
district court’s decision.” Berger v. Ogden Reg'l Med. Center, 2020
UT App 85, ¶ 15, 469 P.3d 1127 (cleaned up).
¶8 	Second, InBalance argues that the district court erred by
denying its motion for summary judgment and by granting R4’s
motion for summary judgment. “We review the district court’s
ultimate grant or denial of summary judgment for correctness.
We give no deference to the district court’s legal conclusions and
consider whether the court correctly decided that no genuine
issue of material fact existed.” Far West Bank v. Robertson, 2017
UT App 213, ¶ 15, 406 P.3d 1134 (cleaned up).
¶9 	Third, InBalance asserts it is entitled to attorney fees and
costs on appeal. “Whether attorney fees are recoverable in an
action is a question of law.” Tronson v. Eagar, 2019 UT App 212,
¶ 15, 457 P.3d 407 (cleaned up). “When a party who received
attorney fees below prevails on appeal, the party is also entitled

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to fees reasonably incurred on appeal.” Telegraph Tower LLC v.
Century Mortgage LLC, 2016 UT App 102, ¶ 52, 376 P.3d 333
(cleaned up). And we determine the award of costs on appeal in
the first instance. See Utah R. App. P. 34(a).
ANALYSIS
I. Motion to Extend Time for Expert Disclosure
¶10 	InBalance 	contends 	that 	the 	district 	court 	erred 	by
denying its motion to extend time for expert disclosure, asserting
it established excusable neglect under rule 6(b)(1)(B) of the Utah
Rules of Civil Procedure. InBalance suggests the court’s order
warrants reversal given the lack of findings to support the
court’s bare written order. However, in the reply brief, InBalance
acknowledges that the court made findings during the hearing
on the motion and further admits that it failed to include a
transcript of the hearing in the record on appeal.
¶11 	Under the Utah Rules of Appellate Procedure, “[i]f the
appellant intends to urge on appeal that a finding or conclusion
is unsupported by or is contrary to the evidence, the appellant
shall include in the record a transcript of all evidence relevant to
such finding or conclusion.” Utah R. App. P. 11(e)(2); see id.
R. 11(c). This is so that an appellant can meet the obligation to
“explain, with reasoned analysis supported by citations to legal
authority and the record, why the party should prevail on
appeal.” Id. R. 24(a)(8).
¶12 	In the absence of the hearing transcript containing the
district 	court’s 	findings, 	InBalance 	encourages 	this 	court 	to
reconsider the issue essentially de novo, asserting that “the
allegations and arguments relied upon by the parties are in the
record.” But such an undertaking is inappropriate under our
standard of review for abuse of discretion. Because InBalance
has not provided this court with the tools necessary to determine
whether the district court had a reasonable basis for its decision

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to deny the motion, its “claim of error is merely an unsupported,
unilateral allegation which we cannot resolve.” Horton v. Gem
State Mutual of Utah, 794 P.2d 847, 849 (Utah Ct. App. 1990)
(cleaned up); see also Lamar v. Lamar, 2012 UT App 326, ¶ 5, 292
P.3d 86 (per curiam) (holding appellant could not demonstrate
district court abused its discretion in its alimony award because
appellant had not included a transcript of the hearing containing
court’s 	findings 	on 	appellee’s 	financial 	need 	and 	earning
capacity). Without the hearing transcript, we presume that the
court’s findings provided it with a reasonable basis for its
decision, see Hoffer v. Hoffer, 2013 UT App 203, ¶ 3, 309 P.3d 277
(per curium) (“In the absence of the transcript on appeal, this
court presumes the regularity of the proceedings below.”), and
we therefore cannot conclude that the court abused its discretion
in denying InBalance’s motion to extend the time for expert
disclosure.
II. Cross-Motions for Summary Judgment
¶13 	InBalance next argues that the district court erred by
denying its motion for summary judgment, in which it sought
dismissal of R4’s claims due to R4’s lack of licensure, and by
granting R4’s motion for summary judgment on its own claims
as 	well 	as 	on 	InBalance’s 	counterclaims. 	We 	address 	each
contention in turn.
A. 	InBalance’s Motion for Summary Judgment
¶14 	InBalance contends the district court erred in denying its
cross-motion for summary judgment seeking to dismiss R4’s
claims for R4’s failure to comply with the requirements of Utah
Code section 58-55-604. The district court denied InBalance’s
motion 	because 	it 	concluded 	that 	InBalance’s 	argument
constituted 	an 	affirmative 	defense 	that 	was 	waived 	when
InBalance did not raise it in answer to R4’s complaint. The
court’s conclusion that InBalance waived the defense allowed
the court to enter judgment for R4—otherwise R4 would have
had the burden of overcoming the restrictions of section 58-55-

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604. 	We 	hold 	that 	the 	district 	court 	incorrectly 	denied
InBalance’s motion and incorrectly granted summary judgment
in favor of R4 on its affirmative claims.1
¶15 	Section 58-55-604 provides,
A contractor . . . may not . . . commence or
maintain any action in any court of the state for
collection of compensation for performing any act
for which a license is required by this chapter
without alleging and proving that the licensed
contractor . . . was appropriately licensed when the
contract sued upon was entered into, and when the
alleged cause of action arose.
Utah Code Ann. § 58-55-604 (LexisNexis 2016). Before the district
court, InBalance presented evidence that R4 was unlicensed at
the time it entered into the contract with InBalance, although R4
obtained its license a few weeks later while work under the
contract was still occurring.
¶16 	On appeal, InBalance contends that the licensure statute
deprives a claimant of the legal capacity to sue unless it was
1. We note some conflation in the record between the defense at
hand of “licensure” and the defense of “license” that is expressly
identified in rule 8(c) of the Utah Rules of Civil Procedure. See
Utah R. Civ. P. 8(c). “‘License’ as used in [rule 8(c)] is essentially
synonymous with ‘consent.’ If the defending party contends he
had the consent or license of the complaining party to do the acts
complained 	of, 	he 	must 	assert 	that 	defense 	as 	Rule 	8(c)
provides.” Lignell v. Berg, 593 P.2d 800, 805 (Utah 1979) (cleaned
up). By contrast, licensure speaks to the statutory prerequisite
for 	a 	party 	to 	be 	licensed 	as 	qualified 	to 	perform 	certain
activities. See, e.g., Utah Code Ann. § 58-55-301 (LexisNexis
Supp. 2020); id. § 58-55-604 (2016); id. § 61-2g-301 (Supp. 2020); id.
§ 61-2g-404 (2018).

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licensed, 	as 	specified, 	and 	further 	claims 	that 	the 	issue
constitutes both a prerequisite to commencing an action and a
substantive requirement for pleading and proving a claim, and it
can therefore be raised any time before or during trial. In
contrast, R4 asserts that the district court was correct to conclude
that non-compliance with the statute is an affirmative defense
and is waivable. The question as to whether the requirements of
section 	58-55-604 	constitute 	an 	affirmative 	defense 	or 	a
substantive requirement of pleading and proof is before us as a
matter of first impression. Ultimately, for the reasons that follow,
we hold that the district court erred in concluding that non-
compliance was a waivable affirmative defense.
¶17 	We recognize that our supreme court has discussed the
nonrecovery provision of section 58-55-604 and alluded to the
capacity to sue without reaching the issue at hand. See Lignell v.
Berg, 593 P.2d 800, 804–05 (Utah 1979). We have previously held
that “a party has capacity [to sue] when it has the legal authority
to act.” Elite Legacy Corp. v. Schvaneveldt, 2016 UT App 228, ¶ 51,
391 P.3d 222 (cleaned up). In discussing capacity to sue under
other 	statutes, 	we 	have 	generally 	concluded 	that 	“lack 	of
capacity is an affirmative defense, which may be waived.” Id.
¶ 53 (cleaned up) (discussing the Assumed Name Statute in Utah
Code section 42-2-10 (2014)). And this is the line of cases on
which the district court appears to have relied. However, we do
not think the nonrecovery provision here presents an issue of
mere lack of legal capacity because it differs from other statutes
which affect legal capacity to sue.
¶18 	For example, the Assumed Name Statute provides,
Any person who carries on, conducts, or transacts
business under an assumed name without having
complied with the provisions of this chapter, and
until the provisions of this chapter are complied
with: shall not sue, prosecute, or maintain any
action, 	suit, 	counterclaim, 	cross 	complaint, 	or
proceeding in any of the courts of this state . . . .

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Utah Code Ann. § 42-2-10 (LexisNexis 2014). Notably, that
statute deprives a litigant of legal capacity to participate in a case
under the assumed name only until the litigant complies with
the provisions of the chapter or otherwise cures the defect. See
Graham v. Davis County Solid Waste Mgmt. & Energy Recovery
Special Service Dist., 1999 UT App 136, ¶¶ 15–16, 979 P.2d 363 (on
curing deficiency); see also Estate of Faucheaux v. City of Provo,
2019 UT 41, ¶ 35, 449 P.3d 112 (holding that a lack of legal
capacity to sue, owing to a party not in interest asserting the
claim, can be cured by substitution of parties). That statute also
makes no mention of a claimant needing to affirmatively “allege
and prove” that it is not operating under an assumed name.
Compare Utah Code Ann. § 58-55-604, with id. § 42-2-10.
¶19 	In contrast, looking at the plain language of section 58-55-
604, the nonrecovery provision at issue here prevents a claimant
from recovering if it does not allege and prove that it was
licensed at both the time of contracting and at the time the cause
of action arose. See id. § 58-55-604; see also George v. Oren Ltd.
& Assocs., 672 P.2d 732, 734 (Utah 1983) (observing claimant
became relicensed but reversing with order to dismiss the claim
for lack of licensure).2 The Assumed Name Statute contains no
similar affirmative requirement. The requirement to allege and
prove 	licensure 	here 	affects 	both 	a 	claimant’s 	pleading
obligations and the evidence it must present to prevail on a
cause of action and not merely its legal authority to act. The
nonrecovery provision thus potentially acts as a bar to recovery
for 	unlicensed 	claimants. 	See 	A.K. 	& 	R. 	Whipple 	Plumbing
& Heating v. Aspen Constr., 1999 UT App 87, ¶ 14, 977 P.2d 518
(addressing section 58-55-604 as a “statutory bar”).
2. We recognize that the requirement of section 58-55-604 is
somewhat in tension with rule 9 of the Utah Rules of Civil
Procedure: “Except when required to show that the court has
jurisdiction, a pleading need not allege . . . a party’s capacity to
sue or be sued.” Utah R. Civ. P. 9(a)(1)(A).

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¶20 	At the same time, the nonrecovery provision should not
be understood in isolation. We have previously recognized that
the nonrecovery provision embodies a general common law rule,
and we therefore interpret it consistent “with the case law which
has developed under the general rule.” Pacific Chromalox Div. v.
Irey, 787 P.2d 1319, 1326 (Utah Ct. App. 1990); see, e.g., Smith v.
American Packing & Provision Co., 130 P.2d 951, 959 (Utah 1942)
(articulating general rule prior to codification). As such, our
understanding of the provision is informed by certain exceptions
to nonrecovery that arose under the common law. See Whipple
Plumbing, 1999 UT App 87, ¶ 14 (“We have recognized that the
statutory bar does not preclude the application of the previous
common law exceptions to the general rule of non-recovery.”
(cleaned up)); Pacific Chromalox, 787 P.2d at 1326 (“The general
rule 	is 	not 	applied 	unconditionally, 	but 	only 	under
circumstances in which the party from whom the contractor
seeks to recover is in the class the legislature intended to
protect.” (cleaned up)); see also American Rural Cellular, Inc. v.
Systems Commc'n Corp., 890 P.2d 1035, 1040–41 (Utah Ct. App.
1995) 	(discussing 	cases 	providing 	exceptions 	to 	the 	rule 	of
nonrecovery). And when an exception applies, the nonrecovery
provision does not bar the claim. See Whipple Plumbing, 1999 UT
App 87, ¶ 14 (“[I]f the court concludes the claim falls within the
purview of section 58-55-604, but the common law exceptions
apply, then the statutory bar will not preclude suit. However, if
the court determines section 58-55-604 applies but the common
law 	exceptions 	are 	inapplicable, 	then 	section 	58-55-604
absolutely bars the action.”); American Rural Cellular, 890 P.2d at
1036 (“Because [the counterclaimant] has not alleged or proved
that it was licensed at the relevant times, [the statutes] bar its
counterclaim unless (1) [it] was not engaged as a contractor
within the statutory definition, or (2) [it] qualifies for a statutory
or 	common 	law 	exception 	to 	the 	statutory 	bar.”). 	Thus,
unlicensed claimants can sue for recovery under Utah law, even
if they are out of compliance with section 58-55-604, so long as
they can demonstrate that one of the common law exceptions
applies.

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20190685-CA 	10 	2020 UT App 169
¶21 	In this case, R4 did not allege that it was licensed at the
time of contracting as required by section 58-55-604, and even
now does not claim to have been licensed at the time it entered
the contract with InBalance. Rather, R4 asserts that even if it is
out of compliance with the statute, it may still recover under
various 	common 	law 	exceptions. 	Its 	chief 	argument, 	in
opposition to InBalance’s motion for summary judgment and on
appeal, is that invocation of the nonrecovery provision of section
58-55-604 constitutes an affirmative defense which InBalance
waived by not raising it in answer to R4’s complaint; and this
was the basis on which the district court ruled. However, we
cannot endorse this reading and application of the statute.
¶22 	As stated, the issue of whether compliance with section
58-55-604 constitutes a waivable affirmative defense is one of
first impression in Utah. But this is not so in other states, and
there exists a split of authority on the issue. In discussing
similarly 	phrased 	statutes, 	some 	jurisdictions 	indeed 	have
recognized licensure as an affirmative defense that may be
waived 	if 	a 	party 	fails 	to 	timely 	assert 	it. 	See 	Smith 	v.
Pinnamaneni, 254 P.3d 409, 412 (Ariz. Ct. App. 2011) 	(“[A]
contractor’s lack of licensure is an affirmative defense subject to
waiver.”); Albers v. Fitschen, 143 N.W.2d 841, 843 (Minn. 1966)
(concluding 	the 	statutory 	condition 	“regulates 	or 	limits 	the
enforcement of a right and provides a defense which may be
waived”). 	Arizona 	courts 	have 	treated 	licensure 	as 	an
affirmative 	defense 	because 	“contracts 	with 	unlicensed
contractors 	are 	not 	per 	se 	unenforceable 	and 	unlicensed
contractors can seek compensation . . . if they show substantial
compliance 	with 	licensing 	requirements, 	[and 	therefore] 	the
burden is on the opposing 	party to 	affirmatively raise the
defense of lack of licensure.” Smith, 254 P.3d at 413. Similarly,
Minnesota 	courts 	reasoned 	that 	because 	the 	licensure
precondition 	relates 	to 	the 	remedy 	of 	enforcement, 	“[t]he
provision requiring the allegation and proof of the existence of a
license is more in the nature of a statute of limitations,” and a
licensure deficiency appearing on the face of the complaint is
therefore waivable. Albers, 143 N.W.2d at 843.

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¶23 	In contrast, other jurisdictions with similarly phrased
statutes 	do 	not 	treat 	licensure 	as 	a 	waivable 	affirmative
defense. See Reynolds v. College Park Corp., 234 N.W.2d 507, 508
(Mich. Ct. App. 1975) (“[O]bjection to lack of an opposing party’s
license . . . would not be waived if not asserted in defendant’s
responsive 	pleading.”); 	American 	Builders 	Supply 	Corp. 	v.
Enchanted 	Builders, 	Inc., 	1972-NMSC-012, 	¶ 	5, 	494 	P.2d 	165
(“[S]ince a failure to allege the license is fatal to the complaint, it
may be asserted at any time that the complaint fails to state a
claim on which relief can be granted.”). The courts of those states
treat licensure as part of the cause of action that the claimant
must 	affirmatively 	prove 	and 	permit 	a 	claim 	lacking 	the
required licensure allegation to be challenged as either a failure
of proof or a failure to state a claim for which relief can be
granted.3 See Reynolds, 234 N.W.2d at 508; American Builders,
1972-NMSC-012, ¶ 5. This approach furthers the intention for the
law 	“to 	prohibit 	the 	bringing 	of 	suit 	by 	those 	unlicensed
contractors who were acting illegally not to bar the remedy of
lawful 	contractors 	because 	of 	a 	technical 	error 	in 	their
pleadings,” Daughtrey v. Carpenter, 1970-NMSC-151, ¶ 15, 477
P.2d 807, and gives meaning to the statutory language requiring
claimants, in order to prevail in a lawsuit, to affirmatively
“alleg[e] and prov[e]” that they were licensed at the relevant
times, see Utah Code Ann. § 58-55-604.
¶24 	A review of Utah caselaw reveals that under the common
law our courts used the latter approach, treating licensure as
part of the cause of action. In Olsen v. Reese, 200 P.2d 733 (Utah
1948), our supreme court held that “to state a cause of action”
pursuant to the then common law rule—requiring that a “person
must allege and prove facts, which show he was licensed” before
recovering—“it was necessary for [a] plaintiff to allege he was a
licensed contractor.” Id. at 736. And our courts continued to treat
3. We note that InBalance did expressly preserve the defense that
R4’s claim failed to state a claim for which relief could be
granted.

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licensure as an element of the cause of action even after the law
was codified. See George, 672 P.2d at 734 (reversing entry of
judgment for plaintiff after trial and remanding for dismissal of
plaintiff’s 	complaint 	because 	“plaintiff 	was 	not 	licensed 	to
engage in the business of a contractor”); Motivated Mgmt. Int'l v.
Finney, 604 P.2d 467, 467 (Utah 1979) (reviewing dismissal of
case “for failure to state a claim because plaintiff performed the
work of a contractor without being licensed as a contractor”); see
also Meridian Corp. v. McGlynn/Garmaker Co., 567 P.2d 1110, 1111
(Utah 1977) (reaffirming the holding of Olsen v. Reese after
codification of the rule of nonrecovery). Accordingly, “objection
to lack of an opposing party’s license would come under . . .
failure to state a claim upon which relief can be granted” and
would not be treated as an affirmative defense. Reynolds, 234
N.W.2d at 508; see also Prince v. Bear River Mutual Ins. Co., 2002
UT 68, ¶ 31, 56 P.3d 524 (“If a defense directly assails or merely
controverts a plaintiff’s prima facie case, it is not an affirmative
defense.” (cleaned up)). Rather, because it is part of the cause of
action that a claimant must allege and prove, a claimant’s lack of
licensure is an issue that “may be raised before or during trial.”
Lignell v. Berg, 593 P.2d 800, 805 (Utah 1979); see also Utah R. Civ.
P. 12(h). Applying section 58-55-604 as a pleading requirement
and a component of the claim is compelled both by the plain
language of the statute and our caselaw. Therefore, the district
court incorrectly construed the statutory 	requirement as an
affirmative defense that had been waived.
¶25 	We vacate that portion of the district court’s judgment
denying InBalance’s cross-motion for summary judgment and
granting judgment to R4 on its affirmative claims. But we do not
reverse, because InBalance could be entitled to the relief sought
in its motion only if the court on remand determines as a matter
of 	law 	that 	no 	common 	law 	exception 	to 	the 	nonrecovery
provision applies. The parties briefed, but the district court did
not address, whether an exception might apply here. We remand
for the district court to consider the remaining arguments raised

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in InBalance’s motion regarding R4’s ability to recover as an
unlicensed claimant.4
B. 	R4’s Motion for Summary Judgment
¶26 	InBalance next argues that the district court erred in
granting summary judgment in favor of 	R4 on InBalance’s
counterclaim for breach of contract. The district court dismissed
InBalance’s 	counterclaim 	in 	part 	because 	InBalance—by 	not
providing a passable calculation of damages—failed to provide
evidence of any damages that were caused by R4’s alleged
breaches of the contract. The court determined that the lack of
causation 	evidence 	made 	InBalance’s 	claim 	for 	damages
speculative 	and 	that 	InBalance 	therefore 	could 	not 	prove
damages as a matter of law. On appeal, InBalance contends that
it “sufficiently quantified [its] damages . . . to avoid summary
judgment.” We disagree.
¶27 	Because InBalance bore the burden of production as to its
breach of contract claim, R4 could prove it was entitled to
summary judgment by showing that InBalance had no evidence
to support any one of the elements of its claim for breach of
contract, including damages. See Salo v. Tyler, 2018 UT 7, ¶ 2, 417
P.3d 	581 	(“[W]here 	the 	burden 	of 	production 	falls 	on 	the
nonmoving party, . . . the moving party may carry its burden of
persuasion without putting on any evidence of its own—by
showing that the nonmoving party has no evidence to support
an essential element of a claim.”); America West Bank Members, LC
4. Our vacatur of the district court’s judgment in favor of R4 is a
narrow one. We do not vacate the court’s determinations of the
amounts owed to R4 under the contract, R4’s entitlement to that
amount, or the dismissal of InBalance’s counter-claims, see infra
section II.B. We vacate the court’s order only inasmuch as it
permitted 	R4 	to 	recover 	without 	R4 	either 	satisfying 	the
requirements 	of 	section 	58-55-604 	or 	meeting 	an 	exception
thereto.

R4 Constructors v. InBalance Yoga
20190685-CA 	14 	2020 UT App 169
v. State, 2014 UT 49, ¶ 15, 342 P.3d 224 (“The elements of a prima
facie 	case 	for 	breach 	of 	contract 	are 	(1) 	a 	contract, 	(2)
performance by the party seeking recovery, (3) breach of the
contract by the other party, and (4) damages.” (cleaned up)).
Here, R4’s motion for summary judgment called into question
InBalance’s ability to prove damages resulting from the claimed
breach 	by 	asserting 	that 	“InBalance 	alleged 	$185,723.79 	of
damages ‘based upon the original costs of labor and fixtures to
perform the work as identified in the R4 contract as well as the
cost of correct and functioning fixtures and the cost of repair for
the items installed and/or constructed,’” and nothing more.
InBalance responded by asserting its claim for damages was
supported 	by 	the 	“voluminous 	documents” 	supplied 	in
discovery 	and 	by 	citing 	a 	declaration 	of 	its 	counsel. 	That
declaration 	averred, 	“During 	discovery, 	my 	office 	supplied
voluminous documents in response to R4’s requests including a
number of supplemental sets of responses and documents.” But
the 	declaration 	did 	not 	refer 	to 	any 	specific 	document 	or
evidence proving damages nor did it independently set forth a
calculation of damages. And InBalance did not include any of
the voluminous documents or any other evidence calculating its
damages in response to R4’s motion for summary judgment.
This is likely in part because InBalance failed to timely designate
an expert to testify and prove the damages resulting from any
claimed breach.
¶28 	The absence of evidence to support its claim of damages
caused by R4’s alleged breaches is fatal to InBalance’s breach of
contract cause of action. And InBalance’s contention that a fact
issue exists as to the amount of damages does not negate that R4
was entitled to judgment as a matter of law where InBalance
could not prove that any such damages, no matter the amount,
were caused by the asserted breaches of contract. See Utah R.
Civ. 	P. 	56(a). 	A 	dispute 	as 	to 	the 	amount 	of 	damages 	is
immaterial if there is no evidence to show that the damages
arose from the harm alleged. See Renegade Oil, Inc. v. Progressive
Cas. Ins. Co., 2004 UT App 356, ¶ 12, 101 P.3d 383 (“To prove
damages a plaintiff (1) must prove the fact of damages by

R4 Constructors v. InBalance Yoga
20190685-CA 	15 	2020 UT App 169
evidence that gives rise to a reasonable probability that the
plaintiff suffered damage as result of a breach and (2) must
prove 	the 	amount 	of 	damages.” 	(cleaned 	up)). 	Upon
consideration of the motion, the only information before the
district court regarding InBalance’s damages was the claimed
amount of $185,723.79.5 InBalance did not supply the court with
any 	evidence 	tying 	the 	alleged 	breach 	of 	contract 	to 	any
particular amount of damages claimed. The absence of evidence
to establish that causal connection precluded InBalance from
asserting 	that 	the 	fact 	was 	disputed 	and 	it 	entitled 	R4 	to
judgment as a matter of law because InBalance could not carry
its burden of production. See Utah R. Civ. P. 56(c)(1)(A) (“A
party asserting that a fact cannot be genuinely disputed or is
genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record . . . .”); id. R. 56(e)(3)
(“If a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required
by paragraph (c), the court may . . . grant summary judgment if
the 	motion 	and 	supporting 	materials—including 	the 	facts
considered undisputed—show that the moving party is entitled
to it . . . .”).
5. In the order dismissing InBalance’s claim, the district court
observed 	that 	InBalance’s 	failure 	to 	provide 	evidence 	of
damages in response to R4’s motion for summary judgment
reflected the party’s inattentiveness to the issue throughout the
case. The court indicated that InBalance did not meet its rule 26
obligation to provide a calculation of the damages. See Utah R.
Civ. P. 26(a)(1)(C). The court also noted that InBalance failed to
adequately answer an interrogatory requesting a calculation of
damages. See id. R. 33(b). Those failures could have permitted
the court to sanction InBalance, see id. R. 26(d)(4); id. R. 37(b), and
further justified the court’s decision to dismiss InBalance’s claim
for its inability to prove damages. But the court instead rested its
decision on summary judgment principles.

R4 Constructors v. InBalance Yoga
20190685-CA 	16 	2020 UT App 169
¶29 	On appeal, InBalance does not dispute the district court’s
conclusion that it failed to include a calculation of damages in
opposing R4’s summary judgment motion. Rather, it asserts that
the 	court 	had 	some 	evidence 	of 	damages 	in 	the 	form 	of
Schnabel’s 	declaration 	outlining 	expenses 	of 	approximately
$60,000. But InBalance does not engage with the district court’s
determination that the claimed damages were “not tied to any of
the breaches of which Schnabel complain[ed]” in her declaration.
Additionally, in responding to R4’s motion, InBalance did not
cite Schnabel’s declaration as evidence of damages resulting
from 	the 	alleged 	breaches—relying 	instead 	only 	upon 	the
declaration of its counsel. See id. R. 56(c)(3) (“The court need
consider only the cited materials.”). And InBalance did not raise
the argument at the hearing on the motion even after the district
court specifically asked it how the damages were tied to the
breaches alleged. Consequently, InBalance failed to preserve the
claim that Schnabel’s declaration provided evidence of damages.
See State v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (“Parties are
required to raise and argue an issue in the trial court in such a
way that the court has an opportunity to rule on it.” (cleaned
up)). And because InBalance did not ask this court to consider
the issue under an exception to the rule of preservation until its
reply brief, it waived our consideration of any such argument.
See id. ¶ 16 (“When a party fails to raise and argue an issue on
appeal, or raises it for the first time in a reply brief, that issue is
waived and will typically not be addressed by the appellate
court.”). Therefore, because the issue is unpreserved, we do not
consider whether Schnabel’s declaration contained evidence of
damages in support of the breach of contract claim. See State v.
Robinson, 2014 UT App 114, ¶ 12, 327 P.3d 589 (“A party seeking
appellate review of an unpreserved issue must articulate the
justification for review in the party’s opening brief. Thus, a plain
error argument presented for the first time in a reply brief is
beyond our reach.” (cleaned up)).
¶30 	Because InBalance failed to provide the district court with
any 	evidence 	establishing 	damages 	caused 	by 	the 	alleged

R4 Constructors v. InBalance Yoga
20190685-CA 	17 	2020 UT App 169
breaches, the district court correctly granted summary judgment
in favor of R4 on InBalance’s counterclaim for breach of contract.
III. Attorney Fees and Costs on Appeal
¶31 	The district court granted attorney fees to R4 under the
contract as the prevailing party. Because we vacate the district
court’s summary judgment order in part, we also necessarily
vacate the district court’s determination that R4 is entitled to
attorney fees as the prevailing party under the contract. And
because our decision does not resolve the litigation and there is
no prevailing party as of yet, we deny InBalance’s request for
attorney fees. On remand, the district court is free to award
attorney fees, if it deems appropriate, at the conclusion of the
litigation.
¶32 	Each party to bear its costs on appeal. See Utah R. App. P.
34(a).
CONCLUSION
¶33 	We affirm the district court’s order denying InBalance’s
motion 	to 	extend 	the 	time 	for 	expert 	disclosure 	because
InBalance’s failure to include the hearing transcript containing
the court’s reasoning undermines InBalance’s ability to show
that the court abused its discretion. We also affirm the district
court’s 	order 	granting 	summary 	judgment 	in 	favor 	of 	R4,
dismissing InBalance’s counterclaim for breach of contract.
¶34 	We 	vacate 	the 	portions 	of 	the 	district 	court’s 	order
denying summary judgment to InBalance but granting summary
judgment to R4 as to R4’s affirmative claims for relief on the
basis that the licensure defense was waived, and we remand the
case for resolution of InBalance’s motion consistent with this
opinion. We also consequently vacate the district court’s final
judgment in favor of R4 and its award of attorney fees to R4 as
the prevailing party.