The Townhomes at Pointe Meadows Owners Assoc. v. Pointe Meadows Townhomes, LLC, et al.

2014 UT App 52
_________________________________________________________
THE UTAH COURT OF APPEALS
THE TOWNHOMES AT POINTE MEADOWS OWNERS ASSOCIATION,
Plaintiff and Appellant,
v.
POINTE MEADOWS TOWNHOMES, LLC; AMERICAN HOUSING
PARTNERS, INC.; AHP-LEHI, LLC; ARMANDO J. ALVAREZ;
SERGIO S. ALVAREZ; AND PAULA B. ALVAREZ,
Defendants, Third-party Plaintiffs, and Appellees,
v.
CONCRETE CONCRETE, INC.; HADCO CONSTRUCTION, LLC;
DYNASTY GROUP REALTY, LLC; DEXCOR, LLC; SHAUN HARDY;
ACADIAN BUILDERS, INC.; WORTHINGTON CONSTRUCTION, INC.;
RUSSELL J. CLARK; MOUNTAIN LANDS DEVELOPMENT, INC.; RALPH
BRODERICK PLUMBING, LLC; UNLIMITED SIDING AND RAINGUTTERS,
INC.; ROOF DESIGN, LLC; VAN TASSELL ROOFING, INC.; HEARTH
AND HOME DISTRIBUTORS OF UTAH, LLC; UNIQUE PLASTERING AND
CUSTOM EXTERIORS, INC.; AND ADVANTAGE MANAGEMENT & REAL
ESTATE SERVICES, LLC,
Third-party Defendants and Appellees.
Memorandum Decision
No. 20120813-CA
Filed March 6, 2014
Fourth District Court, American Fork Department
The Honorable Christine S. Johnson
No. 080101706
A. Richard Vial, Michael B. Miller, and
Tyler S. Lamarr, Attorneys for Appellant
Dennis K. Poole, Attorney for Appellees Pointe
Meadows Townhomes, LLC; American Housing
Partners, Inc.; AHP-Lehi, LLC; Armando J.
Alvarez; Sergio S. Alvarez; and Paula B. Alvarez
Brian J. Babcock and D. Scott DeGraffenried,
Attorneys for Appellee Concrete Concrete, Inc.

Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
20120813-CA 2 2014 UT App 52
Lincoln Harris, Mark L. McCarty, and
Zachary E. Peterson, Attorneys for Appellee Hadco
Construction, LLC
Ryan P. Atkinson, Roger H. Bullock, and
Byron G. Martin, Attorneys for Appellees
Dynasty Group Realty, LLC and Dexcor, LLC
Joseph E. Minnock, Allison S. Fletcher, and
Stephen F. Edwards, Attorneys for Appellees
Shaun Hardy; Russell J. Clark; Mountain Lands
Development, Inc.; and Ralph Broderick Plumbing,
LLC
Shirl Don LeBaron, Attorney for Appellee
Acadian Builders, Inc.
John N. Braithwaite, Attorney for Appellee
Worthington Construction, Inc.
John R. Lund and Nathan R. Skeen, Attorneys for
Appellees Unlimited Siding and Raingutters, Inc.
and Hearth and Home Distributors of Utah, LLC
Matthew L. Anderson, Attorney for Appellee
Roof Design, LLC
Conrad H. Johansen, Attorney for Appellee Van
Tassell Roofing, Inc.
Heinz J. Mahler, Attorney for Appellee Unique
Plastering and Custom Exteriors, Inc.
Andrew M. Morse and Tsutomu L. Johnson,
Attorneys for Appellee Advantage Management &
Real Estate Services, LLC
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGE JAMES Z. DAVIS and SENIOR JUDGE
PAMELA T. GREENWOOD concurred.1

Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes
20120813-CA 3 2014 UT App 52
CHRISTIANSEN, Judge:
¶1 The Townhomes at Pointe Meadows Owners Association
(the Association) challenges the district court’s denial of the
Association’s motion to extend discovery deadlines, exclusion of
the Association’s untimely disclosed experts, and ultimate grant of
summary judgment against the Association on all of its claims. We
affirm.
¶2 This case arises from alleged defects in the construction of
the Townhomes at Pointe Meadows, a multi-unit townhome
development in Lehi, Utah (the Development). The Association
was established to provide for maintenance and repair of the
common areas of the Development. In July 2008, the Association
filed and served a complaint against Pointe Meadows Townhomes,
LLC; American Housing Partners, Inc.; AHP-Lehi, LLC; Armando
J. Alvarez; Sergio S. Alvarez; and Paula B. Alvarez (collectively, the
Developer) as the developer and general contractor of the
Development and as the initial manager of the Association. The
complaint alleged the existence of various construction defects in
the common areas of the Development, breaches of various
warranties and covenants, and breach of the Developer’s fiduciary
duties in its capacity as manager of the Association by failing to
adequately respond to reports of such defects.
¶3 In January 2009, the district court signed an initial case
management order. That order established a November 30, 2009
deadline to complete fact discovery, amend pleadings, and add
new parties. At that time, the Association provided the Developer
with a preliminary report prepared by Western Architectural, a
consultant the Association had hired to assess the condition of the
Development’s building exteriors and to identify construction
defects. On September 14, 2009, the Developer filed a third-party
complaint against approximately twenty subcontractors whose
work was implicated by the Association’s construction defect
claims. In January 2010, the Association provided the third-party
defendants with the preliminary report.

Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes
20120813-CA 4 2014 UT App 52
¶4 In July 2010, the Association, the Developer, and the third-
party defendants met to discuss amending the initial case
management order. All parties agreed to an amendment of the case
management order, and the district court entered the stipulated
amended order in October 2010. The amended case management
order provided for amended pleadings to be filed by October 1,
2010, and for the Association’s final expert disclosures to be
completed by August 15, 2011. The amended case management
order also contemplated that the parties would enter into
mediation in early 2011. To facilitate mediation, the amended case
management order provided that all preliminary reports
exchanged for purposes of the contemplated mediation, including
the preliminary report already provided by the Association, were
protected as part of settlement discussions and would be
inadmissible at trial under Utah Rule of Evidence 408. The
Association ultimately filed its second amended complaint on
January 12, 2011, alleging additional claims based on the Utah
Supreme Court’s 2009 decision in Davencourt at Pilgrims Landing
Homeowners Ass’n v. Davencourt at Pilgrims Landing, LC, 2009 UT 65,
221 P.3d 234.
¶5 On July 27, 2011, the Association contacted the Developer in
an attempt to extend the August 15 deadlines established in the
amended case management order for disclosure of expert witnesses
and production of final expert reports. While the Developer agreed
to an extension of the deadlines, a proposed case management
order reflecting the extension was not approved by the Developer
until October 12, 2011. After the Developer had signed the
proposed case management order, the proposal was forwarded to
the third-party defendants, none of whom agreed to the proposed
extension. On October 25, two of the third-party defendants moved
for summary judgment, arguing that neither the Association nor
the Developer had produced evidence of defects in their work as
subcontractors.
¶6 In response to the third-party defendants’ motions for
summary judgment, the Association filed on October 28 a motion

Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes
20120813-CA 5 2014 UT App 52
to extend the discovery deadlines. On November 7, the Developer
filed a motion opposing the third-party defendants’ motion for
summary judgment against the Developer and joining in the third-
party defendants’ motion for summary judgment against the
Association. The Developer argued that because the Association
had failed to formally disclose any expert witnesses by the August
15 deadline, the Association could not establish its claims at trial
and summary judgment against the Association was appropriate.
¶7 The Association filed its opposition to the defendants’
motions for summary judgment on December 6, 2011. The
Association supported its memorandum with affidavits from its
attorneys regarding its attempt to modify the amended case
management order and an affidavit from one of Western
Architectural’s consultants giving his opinion as to the alleged
construction defects. The consultant also filed with his affidavit an
“amended preliminary report” of the alleged construction defects
in the Development. The Developer moved to strike the report and
the affidavit of the Association’s consultant as untimely disclosed
expert testimony.
¶8 The district court held a hearing on all pending motions on
January 25, 2012. The court entered a ruling and order denying the
Association’s motion to extend discovery deadlines and striking
the reports and affidavit of the Western Architectural consultant.
The district court then granted summary judgment to the
Developer, concluding that all of the Association’s claims required
expert testimony to prevail. The district court also granted
summary judgment to the third-party defendants by stipulation of
the Developer. The Association filed a motion to reconsider the
district court’s ruling, which the district court denied. The
Association appeals.
¶9 The Association first challenges the district court’s denial of
its motion to extend the discovery deadlines established by the
amended case management order. “Trial courts have broad
discretion in managing the cases before them and we will not

Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes
20120813-CA 6 2014 UT App 52
interfere with their decisions absent an abuse of discretion.” A.K.
& R. Whipple Plumbing & Heating v. Aspen Constr., 1999 UT App 87,
¶ 11, 977 P.2d 518. When reviewing a district court’s exercise of
discretion, we will reverse only if there is no reasonable basis for
the district court’s decision. Langeland v. Monarch Motors, Inc., 952
P.2d 1058, 1061 (Utah 1998).
¶10 The Association argues that the district court abused its
discretion in denying the Association’s motion to extend the
discovery deadlines because the Association had a reasonable basis
for failing to comply with the deadlines—that the Developer’s
counsel had agreed to an extension of the deadlines. However, the
Association’s argument ignores that the Developer is not the only
other party to this litigation. As the district court observed in
denying the Association’s motion, each of the numerous third-
party defendants in this case had also signed and agreed to be
bound by the amended case management order that the
Association sought to modify. Yet the Association did not receive
or even seek a stipulation from any of these third-party defendants
to modify the amended case management order until two months
after the discovery deadlines had expired. We agree with the
district court that it was not reasonable for the Association to rely
on the stipulation of only some of the defendants in this complex,
multi-party litigation in choosing to let its obligations under the
amended case management order lapse.
¶11 Moreover, the district court found that the Association had
exhibited “a pattern of delay and inaction” in prosecuting this
litigation. In addition to the Association’s failure to timely disclose
its experts, the district court observed that the Association had
failed to comply with the amended case management order’s
deadline for filing amended pleadings, having filed its amended
complaint more than three months late. The district court also
noted that the Association had failed to file timely and complete
responses to some of the defendants’ discovery requests and had
failed to timely file its opposition to the Developer’s motion to
strike. Our review of the record supports the district court’s

Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes
2. Rules 26 and 37 of the Utah Rules of Civil Procedure were
amended in 2011, subsequent to the filing of this case. However,
these amendments are effective only as to cases filed on or after
November 1, 2011, and are therefore not applicable to this case.
Hull v. Wilcock, 2012 UT App 223, ¶ 36 n.5, 285 P.3d 815; Liston v.
Liston, 2011 UT App 433, ¶ 14 n.3, 269 P.3d 169. Accordingly, we
refer to the pre-amendment version of those rules throughout this
decision.
20120813-CA 7 2014 UT App 52
observations. And while the Association argues that such delays
are commonplace in civil litigation, the district court’s conclusion
that, in this case, these delays amounted to a pattern of
“procrastination and delay” that did not justify further extension
of the discovery period is not unreasonable on the record before
this court.
¶12 Ultimately, the district court concluded that the “discovery
period in this case has afforded the parties a fair and reasonable
opportunity to prepare for trial and should therefore have an end.”
Given the pattern of delay identified by the district court and the
Association’s failure to demonstrate a reasonable justification for
its failure to comply with the amended case management order, we
cannot say that it was an abuse of discretion for the district court to
decline to extend the discovery deadlines and to deny the
Association’s motion to that effect.
¶13 The Association next challenges the district court’s exclusion
of the Association’s untimely disclosed expert witness. Disclosure
of an expert witness requires the disclosing party to submit a
written report that contains specific information, such as the
expert’s qualifications and the basis for and substance of the
expert’s opinion. Utah R. Civ. P. 26(a)(3)(B). “If a party fails to
disclose a witness . . . as required by Rule 26(a) . . . , that party shall
not be permitted to use the witness . . . at any hearing unless the
failure to disclose is harmless or the party shows good cause for the
failure to disclose.” Utah R. Civ. P. 37(f) (emphasis added). Thus,2
“Utah law mandates that a trial court exclude an expert witness

Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes
20120813-CA 8 2014 UT App 52
report disclosed after expiration of the established deadline” unless
the district court, in its discretion, determines that “good cause
excuses tardiness” or that the failure to disclose was harmless. See
Posner v. Equity Title Ins. Agency, Inc., 2009 UT App 347, ¶¶ 8, 23,
222 P.3d 775. We therefore review the district court’s exclusion of
the Association’s expert for an abuse of discretion. Id. ¶ 8.
¶14 The Association argues that the district court abused its
discretion because it failed to “sufficiently outline the bad faith,
willfulness, or persistent dilatory conduct that is required to
impose sanctions upon a party.” However, the Association’s
argument confuses the requirements for an affirmative sanction by
the district court under rule 37(b)(2) with the exclusion of untimely
disclosed experts by operation of law, as mandated by rule 37(f).
See id. The Association does not dispute that it failed to file an
expert witness report that complied with the requirements of rule
26(a) by the deadline established in the amended case management
order. Accordingly, the proper inquiry is whether the district court
abused its discretion in determining that the Association’s failure
to disclose was not harmless and that good cause did not excuse its
failure.
¶15 The Association’s argument that good cause existed for its
failure to comply with the deadline is premised upon its agreement
with the Developer to modify the amended case management
order. However, as discussed above, see supra ¶ 10, the district
court concluded that the Association’s reliance on an agreement
with only some of the many defendants was unreasonable and did
not justify extension of the discovery deadlines. The district court
further concluded that these circumstances did not provide good
cause to excuse the Association’s failure to disclose. The
Association has not shown that the district court’s determinations
on this issue exceeded the court’s discretion.
¶16 With respect to whether the failure to disclose was harmless,
the Association argues that any prejudice suffered by the many
defendants was merely delay, which is “insufficient to constitute

Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes
20120813-CA 9 2014 UT App 52
true prejudice” because the opinions expressed in the Association’s
final expert report would be “largely identical” to those contained
in its preliminary report and “all parties had notice of the major
defects” in the Development. However, the preliminary report
does not provide the information required by rule 26 and was
designated as preliminary and inadmissible by the amended case
management order. The report is also signed by two different
individuals, neither of whom was formally designated as an expert.
Morever, the Association’s amended report—submitted after the
deadline had passed—more than doubled the length of the report
from 193 to 533 pages. The substantial increase in the size of this
amended, yet still preliminary, report contradicts the Association’s
claim that any final report would express opinions “largely
identical” to those contained in the preliminary report.
¶17 “Formal disclosure of experts is not pointless. Knowing the
identity of the opponent’s expert witnesses allows a party to
properly prepare for trial . . . .” Brussow v. Webster, 2011 UT App
193, ¶ 8, 258 P.3d 615. The preliminary report failed to properly
identify the Association’s expert in such a way as to enable the
defendants to depose the expert, attempt to disqualify the expert,
or retain rebuttal experts to respond. See id. And the preliminary
report does not appear to have addressed the scope of the
Association’s claimed damages but instead recommended that a
“project repair manual” be prepared to solicit bids for remediation
of the issues identified in the report. Such a report does not “serve
the purpose of an expert disclosure.”See Spafford v. Granite Credit
Union, 2011 UT App 401, ¶ 19, 266 P.3d 866. The district court
noted that at least two of the third-party defendants had retained
and disclosed their own experts and would likely be compelled to
revise their reports to respond to the Association’s amended or
final report. And a substantial amount of discovery would need to
be revisited or performed in the first instance in response to the
Association’s disclosure, well after the deadline for completing
these steps had passed. Under these circumstances, the district
court could reasonably conclude that the Association’s failure to
timely disclose its expert was not harmless. The district court

Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes
3. The Association states that the same reasoning applies to eight
additional claims that it asserts are not directly related to
construction defects. However, the Association does not provide
any argument to support such an assertion and has thus failed to
(continued...)
20120813-CA 10 2014 UT App 52
therefore did not abuse its discretion in declining to relieve the
Association from the automatic exclusion of its expert under rule
37(f).
¶18 Finally, the Association contends that the district court
erroneously concluded that all of the Association’s causes of action
“hinge upon” the alleged construction defects and therefore require
expert testimony. The Association thus claims that the district court
erred in granting summary judgment to the defendants on all of
the Association’s claims even if its expert was properly excluded.
“Summary judgment is appropriate only where there are no
genuine issues of material fact and the moving party is entitled to
judgment as a matter of law.” Basic Research, LLC v. Admiral Ins. Co.,
2013 UT 6, ¶ 5, 297 P.3d 578. “A plaintiff’s failure to present
evidence that, if believed by the trier of fact, would establish any
one of the [elements] of the prima facie case justifies a grant of
summary judgment to the defendant.” Niemela v. Imperial Mfg., Inc.,
2011 UT App 333, ¶ 7, 263 P.3d 1191 (alteration in original) (citation
and internal quotation marks omitted).
¶19 The Association argues that many of its claims do not
require expert witness testimony to prevail, because the elements
of their claim are not “beyond the common scope and experience
of lay persons.” See Spafford, 2011 UT App 401, ¶ 30. By way of
example, the Association claims that its allegations of negligence
against the Developer in its role as the initial manager of the
owners association do not require expert testimony. The
Association asserts that no technical knowledge is necessary to
decide if the Developer failed to respond reasonably to reports of
defective construction or failed to set aside sufficient reserve funds
to provide for repair of the defects. A homeowners association3

Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes
3. (...continued)
adequately brief its argument on these remaining claims. “It is well
established that Utah appellate courts will not consider claims that
are inadequately briefed.” State v. Garner, 2002 UT App 234, ¶ 8, 52
P.3d 467. As a result, the Association has not met its burden of
demonstrating error in the district court’s determination that expert
witness testimony was required to establish these claims against
the Developer.
20120813-CA 11 2014 UT App 52
may bring a negligence action against a developer on the basis of,
among other things, the developer’s failure to use reasonable care
in managing and maintaining the common property or its failure
to establish a sound fiscal basis for the homeowners association by
imposing and collecting assessments and establishing reserves for
the maintenance of the common property. See Davencourt at
Pilgrims Landing Homeowners Ass’n v. Davencourt at Pilgrims
Landing, LC, 2009 UT 65, ¶ 39, 221 P.3d 234. The Association argues
that because such duties require the developer to exercise only
“basic financial planning” of the sort that is “delegated to every
homeowner in America,” no expert testimony is necessary to
establish the standard of care a developer must observe in
discharging these duties.
¶20 We are not convinced, however, that the Association’s
negligence claim does not “hinge upon” its construction defect
claims such that expert testimony was not necessary. “Ordinarily,
the standard of care in a trade or profession must be determined by
testimony of witnesses in the same trade or profession.” Wessel v.
Erickson Landscaping Co., 711 P.2d 250, 253 (Utah 1985). And expert
testimony is generally necessary in cases that involve trades or
professions that require specialized knowledge, “such as medicine,
architecture, and engineering.” Ortiz v. Geneva Rock Prods., Inc., 939
P.2d 1213, 1217 n.2 (Utah Ct. App. 1997). The district court
therefore concluded that the Association could not establish its
construction defect claims without expert testimony. The
Association has not demonstrated that this determination was

Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes
4. The Association briefly argues that no expert testimony was
necessary to establish its construction defect claims because direct
evidence of the defects would have been available through the
testimony of homeowners or subcontractors if the case proceeded
to trial. However, a party cannot oppose summary judgment on
the basis of testimony that may be elicited at trial but must put
forward admissible evidence and “set forth specific facts showing
that there is a genuine issue for trial.” See Utah R. Civ. P. 56(e). The
Association did not present the district court with any such
testimony through affidavits or deposition testimony in support of
its opposition to summary judgment, and that evidence is
accordingly not in the record before this court. Absent a showing
that the Association presented to the district court evidence
sufficient to survive summary judgment without expert testimony,
we are not convinced that the district court erred in concluding that
expert testimony was necessary in this case.
20120813-CA 12 2014 UT App 52
erroneous. Thus, to the extent that the Association’s negligence4
claim requires the Association to prove the existence or extent of
construction defects, that claim must fail because the Association
did not timely disclose an expert to prove its construction defect
claims.
¶21 The Association’s negligence claim relies, in part, on its
allegation that the Developer failed to reasonably identify and
repair the construction defects once they arose. This allegation
would require the Association to prove the existence and nature of
the alleged defects in order to establish that the Developer was
negligent in its maintenance of the common areas in light of such
defects. Without expert testimony on the nature and extent of the
alleged construction defects, it is difficult to see how a jury could
evaluate whether the Developer’s response to such defects was
reasonable or determine the proper measure of damages resulting
from the Developer’s alleged failure to properly respond to the
defect—as distinct from those damages resulting from the initial
defect.

Pointe Meadows Owners Ass’n v. Pointe Meadows Townhomes
20120813-CA 13 2014 UT App 52
¶22 The Association also asserts that the Developer was
negligent in failing to set aside adequate reserve funds to address
the alleged defects. Again, we do not see how a jury could assess
the reasonableness of the Developer’s financial planning in the face
of any alleged construction defects, or the damages resulting from
any negligence, without the Association first establishing the
existence and nature of these defects. We therefore agree with the
district court that the Association’s negligence claim required proof
of construction defects to survive summary judgment.
¶23 Because the Association has failed to demonstrate that any
of its claims could prevail absent admissible expert witness
testimony, the Developer was entitled to judgment as a matter of
law. See Niemela v. Imperial Mfg., Inc., 2011 UT App 333, ¶ 7, 263
P.3d 1191. Accordingly, we affirm the district court’s grant of
summary judgment to the Developer.
¶24 The district court did not abuse its discretion in denying the
Association’s motion to extend the discovery deadlines or in
declining to relieve the Association from the mandatory exclusion
of its expert under rule 37(f). The Association has failed to
demonstrate that the district court erred in concluding that expert
testimony was required to establish its claims against the
Developer and has therefore not shown that the district court’s
grant of summary judgment was erroneous.
¶25 Affirmed.