Lewis v. Nelson

2015 UT App 262
THE UTAH COURT OF APPEALS
R EGGIE LEWIS,
Plaintiff and Appellee,
v.
R ODNEY NELSON ,
Defendant and Appellant.
Opinion
No. 20141086-CA
Filed October 29, 2015
Fifth District Court, St. George Department
The Honorable G. Michael Westfall
The Honorable James L. Shumate
No. 120500402
Charles A. Schultz, Attorney for Appellant
Penrod W. Keith and Elijah L. Milne, Attorneys
for Appellee
JUDGE J AMES Z. D AVIS authored this Opinion, in which JUDGES
GREGORY K. O RME and K ATE A. TOOMEY concurred.
DAVIS, Judge:
¶1 	Rodney Nelson appeals from the trial court’s grant of
summary judgment in favor of Reggie Lewis. We reverse and
remand.
BACKGROUND
¶2 	Nelson negotiated to purchase Lewis’s right to operate a
Nutty Guys supply route. Nelson began making payments to
Lewis and had paid approximately $11,000 before he ceased
making payments. Lewis eventually brought suit against Nelson
for breach of contract and, alternatively, unjust enrichment,
seeking $15,020 in damages.

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20141086-CA 	2 	2015 UT App 262
¶3 	Lewis submitted a discovery request consisting of thirty
requests for admission, thirteen interrogatories, and thirteen
requests for production of documents. Nelson objected to the
discovery request, arguing that the request was not proportional
under rule 26(b)(2)(A)–(E) of the Utah Rules of Civil Procedure.
Lewis replied to Nelson’s objections by explaining his need for
the discovery and the proportionality of his request. The trial
court overruled Nelson’s objections, stating, “[Nelson] must
answer/respond to all discovery by 27 Jun [2013].”
¶4 	Nelson subsequently responded. His response mirrored
the structure of Lewis’s request by including headings of each of
the three types of discovery sought—admissions, interrogatories,
and production of documents. Under the appropriate heading,
he retyped Lewis’s first five requests for admission and first five
requests for production and provided his answer to each of
those items. He answered only requests one through five of
Lewis’s 	requested 	admissions 	and 	one 	through 	five 	of 	the
requested production of documents. Nelson did not include the
text for Lewis’s requests for admission numbered six through
thirty or provide an answer to those requests. Nor did he do so
for numbers six through thirteen of Lewis’s remaining requests
for production. Likewise, under the “Interrogatories” heading on
Nelson’s 	response, 	he 	wrote, 	“I 	decline 	to 	respond 	to 	any
interrogatories, as no interrogatories are permitted in a tier 1
case under the provisions of Rule 26(c)(5) URCP.” See Utah R.
Civ. P. 26(c)(5) (describing a tier 1 case as a case in which $50,000
or less is at stake and describing the standard discovery for each
side in a tier 1 case as limited to five requests for production, five
requests for admission, and zero interrogatories).
¶5 	Lewis moved for summary judgment, noting, “The Court
ordered Nelson to answer all of Lewis’s discovery requests by
June 27, 2013. Nelson has never responded to Lewis’s requests
for admission nos. 5 through 30. Accordingly, all such requests
for admission are now automatically deemed admitted.” (Citing
Utah R. Civ. P. 36(b)(1) (providing that requests for admission

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20141086-CA 	3 	2015 UT App 262
are “admitted unless . . . the responding party serves upon the
requesting party a written response”).)
¶6 	In 	his 	memorandum 	opposing 	summary 	judgment,
Nelson contended that the trial court ordered him “to answer
Lewis’s discovery requests in accordance with URCP 26(c)(5)
that place this as a Tier 1 case”1 and that “Nelson responded to
the first five requests for admission in accordance with the
Court’s order.” 	During 	the 	hearing 	on 	summary 	judgment,
Nelson reiterated his argument that he was not required to
answer Lewis’s discovery request to the extent the request
exceeded the Tier 1 limits. 	The trial 	court granted Lewis’s
summary judgment motion, implicitly accepting Lewis’s fact
statements as undisputed and rejecting Nelson’s rule 26(c)(5)
argument.
¶7 	Nelson 	subsequently 	moved 	to 	alter 	or 	amend 	the
summary judgment order, arguing, among other things, that he
adequately disputed the issues of material fact to preclude
summary judgment. The trial court denied the motion, noting,
The 	fact 	that 	[Lewis] 	may 	have 	exceeded 	the
number of requests for admission set forth under
URCP 26(c)(5) for a Tier 1 case does not justify
[Nelson’s] apparent decision to ignore the requests
and hope for the best; rather, [Nelson] should have
objected 	or 	otherwise 	sought 	the 	Court’s
intervention 	on 	the 	discovery 	dispute 	prior 	to
summary judgment.
Nelson appeals.
1. The court did not explicitly order Nelson to answer Lewis’s
discovery request according to rule 26(c)(5).

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ISSUE AND STANDARD OF REVIEW
¶8 	Nelson 	argues 	that 	the 	trial 	court 	erred 	in 	its
interpretation and application of rule 26(c)(5).2 “The trial court’s
interpretation of the rules of civil procedure presents a question
of law which we review for correctness.” Nunley v. Westates
Casing Servs., Inc., 1999 UT 100, ¶ 42, 989 P.2d 1077.
ANALYSIS
¶9 	Nelson 	contends 	that 	his 	refusal 	to 	respond 	to 	the
majority of Lewis’s requests for admission does not render the
unanswered requests admitted. Nelson argues that, because
Lewis’s request exceeded the standard discovery permitted in
Tier 1 cases under rule 26(c)(5) of the Utah Rules of Civil
Procedure and because Lewis never sought court permission or
a stipulation entitling him to extraordinary discovery, the trial
court erred by accepting the unanswered portion of Lewis’s
discovery request as admitted. We agree.
¶10 	Rule 26 was amended in 2011 to, among other things,
incorporate a tiered system by which standard discovery is
limited in proportion to the amount in controversy. See Utah R.
Civ. P. 26(c)(5) & advisory committee note to 2011 amendment.
2. Nelson raises several other arguments on appeal pertaining to
the trial court’s summary judgment ruling. Given our resolution
of the rule 26 issue, we need not address these other issues.
Nelson also challenges the trial court’s dismissal with prejudice
of his request for leave to file a counterclaim. This issue is not
adequately briefed, and we accordingly do not consider it on
appeal. See Utah R. App. P. 24(a)(9). This decision on our part is
without 	prejudice 	to 	the 	prerogative 	of 	the 	trial 	court 	to
reconsider the dismissal in view of our reversal of the summary
judgment and our remand for further proceedings.

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20141086-CA 	5 	2015 UT App 262
In a Tier 1 case, which involves $50,000 or less in damages,
standard discovery for each side is limited to, among other
things, five requests for admission, five requests for production,
and 	no 	interrogatories. 	Id. 	R. 	26(c)(3), 	(c)(5). 	The 	standard
discovery permitted in each tier constitutes the entirety of the
discovery a “part[y] may conduct as a matter of right.” Id. R.
26(c) advisory committee note to 2011 amendment.
¶11 	Nonetheless, the rule contemplates that “there will be
some cases for which standard discovery is not sufficient or
appropriate.” Id. There are two ways by which a party can
obtain “extraordinary discovery,” i.e., “discovery beyond the
limits established in paragraph (c)(5).” Id. R. 26(c)(6). A party can
obtain 	extraordinary 	discovery 	either 	by 	filing 	a 	written
stipulation or by filing a request for extraordinary discovery
with the trial court. Id. In both situations, there are various
conditions the party seeking additional discovery must meet
related to the timing of the filing and the contents of the filing.
See id. R. 26(c)(6) & advisory committee note to 2011 amendment.
While the rule also suggests that a trial court does not have
discretion to reject properly submitted stipulations for additional
discovery, 	see 	id., 	it 	is 	apparent 	that 	a 	party’s 	access 	to
extraordinary discovery is not automatic, nor can a court’s grant
of extraordinary discovery be implicit.
¶12 	Here, 	Lewis’s 	discovery 	requests 	were 	clearly
extraordinary; Lewis’s thirty requests for admission, thirteen
requests for 	production, 	and 	thirteen 	interrogatories plainly
exceeded the scope of this Tier 1 case under rule 26(c)(5). And
Lewis neither obtained Nelson’s stipulation to extraordinary
discovery 	beyond 	what 	is 	permitted 	by 	rule 	26(c)(5) 	nor
submitted a statement of discovery issues to seek extraordinary
discovery. 	Thus, 	Lewis 	was 	entitled 	to 	only 	the 	standard
discovery 	permitted 	in 	a 	Tier 	1 	case—five 	requests 	for
admission, five requests for production, and no interrogatories.
See 	id. 	R. 	26(c)(5) 	(also 	addressing 	limits 	to 	discovery 	by

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deposition and the time parties have to complete standard fact
discovery).
¶13 	The 	trial 	court 	nevertheless 	stated 	in 	its 	ruling 	on
Nelson’s motion to amend,
The 	fact 	that 	[Lewis] 	may 	have 	exceeded 	the
number of requests for admission set forth under
URCP 26(c)(5) for a Tier 1 case does not justify
[Nelson’s] apparent decision to ignore the requests
and hope for the best; rather, [Nelson] should have
objected 	or 	otherwise 	sought 	the 	Court’s
intervention 	on 	the 	discovery 	dispute 	prior 	to
summary judgment.
It is true that Utah courts have previously held that “[w]hen
requests for admissions are properly served, and no written
answer or objection has been submitted, the result is automatic—
the requests for admissions, as a matter of law, are deemed
admitted by simple operation of . . . rule [36 of the Utah Rules of
Civil Procedure].” In re E.R., 2000 UT App 143, ¶ 10, 2 P.3d 948;
see also Utah R. Civ. P. 36(b)(1) (“The matter is admitted unless,
within 28 days after service of the request, the responding party
serves upon the requesting party a written response.”). And our
application of this principle has historically required the party
opposing the admission to affirmatively object in order to avoid
automatic admission 	of 	the requested 	information. 	See, 	e.g.,
Kotter v. Kotter, 2009 UT App 60, ¶ 18, 206 P.3d 633.
¶14 	However, the 2011 amendment to rule 26 works a major
change in the protocol previously in effect and obviates the
responding 	party’s 	obligation 	to 	object 	to 	the 	requests 	for
admission on rule 26(c)(5) grounds. To require otherwise would
turn the amended rule 26 on its head. The rule now explicitly
places the burden on the party seeking additional discovery to do
so in the prescribed manner. See Utah R. Civ. P. 26(c)(6); see also
id. 	advisory 	committee 	note 	to 	2011 	amendment 	(“The

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20141086-CA 	7 	2015 UT App 262
requesting party must demonstrate that the additional discovery
is proportional and certify that the party has reviewed and
approved a discovery budget. The burden to show the need for
additional 	discovery, 	and 	to 	demonstrate 	relevance 	and
proportionality, always falls on the party seeking additional
discovery.” (emphases added)).
¶15 	Lewis was not entitled to extraordinary discovery. And
Nelson twice objected to Lewis’s discovery requests; first, on
proportionality grounds and again, albeit indirectly, on rule
26(c)(5) 	grounds 	in 	his 	discovery 	response, 	which 	was 	not
Nelson’s burden under the amended rule. As a result, Nelson’s
failure to answer the portion of Lewis’s request that exceeded
the Tier 1 limits did not trigger an automatic admission of the
requested information under rule 36.3 While the trial court’s
ruling 	would 	have 	been 	appropriate 	prior 	to 	the 	2011
amendment, under the new version of the rule, the court erred in
treating the remainder of Lewis’s requests for admission as
admitted under rule 36.
¶16 	Lewis argues that even if the trial court erred by treating
the unanswered requests for admission as admitted, he was still
entitled 	to 	summary 	judgment 	because 	Nelson 	failed 	to
3. We recognize that Nelson arguably disobeyed the trial court’s
order 	that 	he 	“answer/respond 	to 	all 	discovery” 	when 	he
responded 	to 	the 	portion 	of 	Lewis’s 	discovery 	he 	deemed
appropriate under rule 26(c)(5). (Emphasis added.) Likewise, we
recognize that Lewis arguably should be permitted to select
which five requests for admission and production that Nelson is
required to respond to under the Tier 1 rules. We do not intend
our decision in this case to condone a party’s failure to strictly
follow trial court orders, nor do we intend this opinion to stand
for the proposition that when a party propounds excessive
discovery requests, only the first “x” number are necessarily
properly propounded and the rest waived.

Lewis v. Nelson
20141086-CA 	8 	2015 UT App 262
adequately dispute the material issues of fact. He argues that
Nelson did not dispute “the fact that [he] agreed to purchase,
and Lewis agreed to sell, the right to operate the [Nutty Guys
supply route] in accordance with the terms” in an unsigned
agreement or “that the parties orally agreed that the terms in the
[unsigned agreement] would govern” the transaction. This is
simply not true. Nelson repeatedly rejected the accuracy of the
unsigned agreement referenced by Lewis and asserted that the
parties signed a handwritten contract containing the basic terms
of their agreement, that Lewis retained the only copy of the
handwritten document, that Lewis later presented Nelson with a
new contract containing different terms than the handwritten
agreement, and that Nelson did not sign the new contract or
orally 	agree 	to 	its 	terms. 	Accordingly, 	Nelson 	adequately
disputed the material issues of fact in his summary judgment
filings, pleadings, and response to Lewis’s discovery request to
preclude the trial court’s entry of summary judgment in favor of
Lewis. See generally Utah R. Civ. P. 56(c).
CONCLUSION
¶17 	Lewis was not entitled to extraordinary discovery because
he failed to follow the procedures outlined in rule 26. As a result,
Nelson’s failure to answer the portion of Lewis’s request that
exceeded the Tier 1 limits did not trigger an automatic admission
of the requested information under rule 36, and the trial court
erred in treating the unanswered portion of Lewis’s discovery
request 	as 	admitted 	for 	summary 	judgment 	purposes.
Accordingly, genuine issues of material fact exist that preclude
summary judgment. We reverse the trial court’s ruling and
remand for further proceedings in accordance with this decision.