author: HARRIS, Judge:

text:
    In the MATTER OF the ADOPTION OF B.N.A., a Person Under Eighteen Years of Age
    C.E.L., Appellant, v. T.L. and A.L., Appellees.
    No. 20180316-CA
    Court of Appeals of Utah.
    Filed December 6, 2018
    Karra J. Porter and Crystal Lynn Orgill, Salt Lake City, Attorneys for Appellant
    Ronald D. Wilkinson, Provo, Marianne P. Card, and Sara Pfrommer, Park City, Attorneys for Appellees
    Judge Ryan M. Harris authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.
    Opinion
   HARRIS, Judge:

¶1 Utah adoption law provides that "[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court ... in the district where the prospective adoptive parent resides." Utah Code Ann. § 78B-6-105(1)(a) (LexisNexis Supp. 2018). In this case, we must determine what the consequences are, under this statute, if prospective adoptive parents file an adoption petition in the wrong district. The biological father (Father) of the child in question (Child) contends that the statute speaks to a court's subject-matter jurisdiction, and asserts that a petition filed in the wrong district must be dismissed for lack of jurisdiction. The prospective adoptive parents (Petitioners), on the other hand, contend that the statute speaks simply to venue, and assert that when a petition is filed in the wrong district, the court has jurisdiction to continue to adjudicate the case, but must transfer the case upon request to the proper district. For the reasons set forth herein, we find Petitioners' position persuasive, and therefore affirm the district court's decision to deny Father's motion to dismiss.

BACKGROUND

¶2 In early 2014, Father engaged in a brief romantic relationship with a woman (Mother) who became pregnant and gave birth to Child in November 2014. After the relationship ended, Father asserts that he had no further communication or interaction with Mother, and therefore claims to have been unaware of Mother's pregnancy or of Child's existence until after Child was born, and unaware that he was Child's father until December 2017. It is undisputed that Father has never had any relationship with Child, who is now four years old.

¶3 In the meantime, in the spring of 2017 Mother decided to place Child for adoption, and began working with an adoption agency toward that end. The adoption agency selected Petitioners as a potential adoptive family, and Petitioners filed a petition for adoption in April 2017. Despite the fact that Petitioners reside in Utah County, part of Utah's Fourth Judicial District, they filed their petition in Tooele County, part of Utah's Third Judicial District.

¶4 Immediately after filing their petition, Petitioners asked the court to authorize a "commissioner" to take Mother's relinquishment, in accordance with Utah Code section 78B-6-124(1)(b). The court approved Petitioner's request, and signed an order appointing a representative of the adoption agency to take Mother's relinquishment. After the order was signed, Mother met with the representative and signed a document relinquishing her parental rights to Child. One of that document's provisions stated that Mother's relinquishment was irrevocable "as to [Petitioners]," but that Mother was "not ... consenting to the adoption of [Child] by any other person or persons." In addition, the document provided that, "[i]f [Petitioners] are unable to complete the adoption of [Child] for any reason, and the adoption petition is dismissed or denied, it is in [Child's] best interest that he be returned to [Mother's] custody and control." Soon after Mother signed the relinquishment, Petitioners filed a copy of it with the court, and a few days later the court signed an order awarding temporary custody of Child to Petitioners.

¶5 Just a few months later, before the adoption was finalized, Mother filed a motion to set aside her relinquishment, asserting that she did not sign the document freely and voluntarily. The district court, after a half-day evidentiary hearing, determined that Mother had acted voluntarily and was not under duress or undue influence, and denied Mother's motion. The court's decision to deny Mother's motion is not at issue in this appeal.

¶6 About a month later, in early January 2018, Father entered an appearance in the adoption case and filed a motion seeking leave to intervene, asking that the adoption proceedings be dismissed. A few weeks later, Father filed a second motion, raising for the first time his argument-advanced here in this appeal-that the district court did not have subject-matter jurisdiction over the case because Petitioners filed their petition in the wrong district.

¶7 After full briefing and oral argument, the district court denied Father's motion to dismiss, and determined that it did have subject-matter jurisdiction over the case. Father then asked for permission to appeal the district court's interlocutory order regarding jurisdiction, and we granted that request.

ISSUE AND STANDARD OF REVIEW

¶8 The issue presented in this case is one of statutory interpretation: whether Utah Code section 78B-6-105(1)(a) acts as a limit on a district court's subject-matter jurisdiction, or is merely a venue statute. "We review questions of statutory interpretation for correctness, affording no deference to the district court's legal conclusions." State v. Stewart , 2018 UT 24, ¶ 5, 438 P.3d 515 (quotation simplified).

ANALYSIS

¶9 The statute in question states, in fairly straightforward language, that "[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court," and that, if the prospective adoptive parent is a Utah resident, the petition is to be filed "in the district where the prospective adoptive parent resides." Utah Code Ann. § 78B-6-105(1)(a). All parties agree that this language demands that adoption proceedings be initiated by the filing of a petition. And all parties agree that, at least in adoption cases that are to be filed in district court rather than juvenile court, see id. § 78B-6-105(1)(c), and in which the prospective adoptive parent is a Utah resident, see id. § 78B-6-105(1)(a), this petition is supposed to be filed in the district where the prospective adoptive parent resides. On these points, the language appears plain and unambiguous.

¶10 The statute is not as plain, however, when it comes to setting forth the consequences that attach when a petitioner files an adoption petition in the wrong judicial district. Father asserts that a petition filed in the wrong district must be dismissed, because he reads the statute as speaking to a court's subject-matter jurisdiction to adjudicate the case. Petitioners, on the other hand, point out that any Utah district court has subject-matter jurisdiction over adoption cases as a class, and read the statute as a venue provision that does not implicate a court's jurisdiction, but merely allows any party to request that the petition be transferred to the proper district. To resolve this dispute, we start by examining the concept of subject-matter jurisdiction, and then return to a further examination of the text of the statute.

¶11 "The notion of 'jurisdiction' is a slippery one." In re adoption of B.B. , 2017 UT 59, ¶ 125, 417 P.3d 1. The word "jurisdiction" means "different things in different circumstances." Id. Sometimes, it is used to refer to "the scope of a court's power to issue a certain form of relief," while at other times the word is used to refer to "the territorial authority of the court that issues a decision," but "neither of these notions of jurisdiction goes to a court's subject-matter jurisdiction." Id. ¶¶ 125 -27.

¶12 Subject-matter jurisdiction is a "special" type of jurisdictional concept, one that is "distinct from other notions of jurisdiction in that we require our courts to consider such issues sua sponte " and, unlike other notions of jurisdiction, we "do not allow the parties to waive or forfeit [subject-matter jurisdiction] from consideration." Id. ¶ 128. This distinction is "crucial," because "[i]f an issue is subject-matter jurisdictional, the general rules of finality and preservation are off the table," and that can "undermine the premises of efficiency, speedy resolution, and finality that generally undergird our justice system." Id.

¶13 Because subject-matter jurisdiction is "special" and "distinct" from other jurisdictional concepts, see id. , due to the fact that "parties can raise subject matter jurisdiction at any time during a proceeding, it makes sense to cabin the issues that fall under the category of subject matter jurisdiction," Johnson v. Johnson , 2010 UT 28, ¶ 10, 234 P.3d 1100 ; see also In re adoption of B.B. , 2017 UT 59, ¶ 129, 417 P.3d 1 (stating that "our law has been careful to cabin the notion of subject-matter jurisdiction"). In recent years, our supreme court has made a concerted effort to do just that, "routinely rebuff[ing] attempts by litigants to recast merits arguments as issues of subject-matter jurisdiction," and instructing trial courts that they must "guard[ ] against the faux elevation of a court's failure to comply with the requirements for exercising its authority to the same level of gravity as a lack of subject matter jurisdiction." In re adoption of B.B. , 2017 UT 59, ¶ 130 n.14, 417 P.3d 1 (quotation simplified); see also Johnson , 2010 UT 28, ¶ 9, 234 P.3d 1100 (stating that "[t]he concept of subject matter jurisdiction does not embrace all cases where the court's competence is at issue," and that "[w]here the court has jurisdiction over the class of case involved, judgment is not void on the ground that the right involved in the suit did not embrace the relief granted"); Chen v. Stewart , 2004 UT 82, ¶ 36, 100 P.3d 1177 (determining that the parties mischaracterized their claim as one grounded in subject-matter jurisdiction in a futile attempt to avoid waiver), abrogated on other grounds by State v. Nielsen , 2014 UT 10, 326 P.3d 645. In Johnson , for instance, the court held that a district court had subject-matter jurisdiction over a divorce case, even though the parties were never actually legally married to begin with, because subject-matter jurisdiction is generally determined by reference to a "class of cases, rather than the specifics of an individual case." Johnson , 2010 UT 28, ¶ 10, 234 P.3d 1100. "Because the district court clearly has the authority to adjudicate divorces, looking to the specific facts of a particular case is inconsistent with our usual definition of subject matter jurisdiction." Id. ¶ 12.

¶14 In fact, our supreme court has limited the concept of subject-matter jurisdiction to two specific situations: "(a) statutory limits on the authority of the court to adjudicate a class of cases," and "(b) timing and other limits on the justiciability of the proceeding before the court (such as standing, ripeness, and mootness)." In re adoption of B.B. , 2017 UT 59, ¶ 121, 417 P.3d 1 (quotation simplified); see also id. ¶ 153 (stating that "[o]ur law has long assessed subject-matter jurisdiction at the categorical level-encompassing only statutory limits on the classes of cases to be decided by the court and traditional limits on justiciability"). Neither of these situations is present here.

¶15 Starting with the second category first, Father does not assert that any of the common "justiciability" doctrines apply here, and therefore we need not analyze the potential applicability of any of those doctrines to the facts of this case.

¶16 And with regard to the first category, the text of the statute in question contains no express "limits" on the authority of Utah district courts to adjudicate adoption cases generally, as a class. Even Father wisely concedes that "[d]istrict courts may generally handle adoptions." Indeed, "in Utah our district courts are courts of general jurisdiction" that have "general power to hear 'all matters civil and criminal' so long as they are 'not excepted in the Utah Constitution and not prohibited by law.' " Id. ¶ 143 (quoting Utah Code section 78A-5-102(1) ). More specifically, as concerns adoption cases, our supreme court has noted that "Utah district courts clearly have subject matter jurisdiction over adoption proceedings as a class of cases." In re adoption of Baby E.Z. , 2011 UT 38, ¶ 34, 266 P.3d 702 ; see also In re adoption of B.B. , 2017 UT 59, ¶ 137, 417 P.3d 1 (stating that, "[b]y statute, our Utah courts are expressly authorized to assume jurisdiction over adoption petitions").

¶17 When the legislature intends to place a statutory limit on a district court's jurisdictional ability to hear a category of cases, it certainly knows how to do so expressly. See In re adoption of B.B. , 2017 UT 59, ¶ 143, 417 P.3d 1 (stating that "[t]he code ... places certain restrictions on the jurisdiction of our district courts," but that such restrictions "are expressly denominated as such-as jurisdictional limits"). For instance, the legislature will identify certain claims as within the "exclusive jurisdiction" of an administrative agency or of a particular type of court, see, e.g. , Utah Code Ann. § 34A-2-407(12)(a)-(b) (LexisNexis Supp. 2018) (identifying claims within the "exclusive jurisdiction" of the Labor Commission); id. § 78A-6-103(2) (Supp. 2018) (identifying the "exclusive jurisdiction" of juvenile courts over certain matters), or will note that "no court has jurisdiction" to entertain certain actions, see , e.g. , id. § 31A-27a-105(1)(b) (2017) (stating that "[n]o court has jurisdiction to entertain, hear, or determine a delinquency proceeding commenced by any person other than the commissioner of this state"). The subsection of the statute at issue here has no such express limitation on jurisdiction. See id.

§ 78B-6-105(1)(a). It does not identify adoption cases as within the "exclusive jurisdiction" of the judicial district in which the prospective adoptive parent resides, nor does it state that "no court" but the courts in the district in which the adoptive parents reside has jurisdiction over a case.

¶18 Indeed, while the linguistic structure of the statutory subsection in question is not at all similar to other statutes containing express jurisdictional limits, it is quite similar to other statutes concerning venue. Several of Utah's venue statutes require that a particular cause of action "be brought and tried" or "commenced and tried" in a particular location. See, e.g. , id. § 78B-3-305(1) (stating that "[a]ll transitory causes of action arising outside the state, except those mentioned in Section 78B-3-306, shall ... be brought and tried in the county where any defendant resides"); id. § 78B-3-306 (stating that "[a]ll transitory causes of action arising outside the state in favor of residents of this state shall be brought and tried in the county where the plaintiff resides, or in the county where the principal defendant resides"). We find it difficult to ignore the similarities between these venue statutes and the statute in question, which states that "[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court ... where the prospective adoptive parent resides." See id. § 78B-6-105(1)(a).

¶19 Moreover, in 2004 the legislature amended the title of the statute. Before the amendment, the statute had been captioned "Jurisdiction of district and juvenile court - Time for filing." See id. § 78-30-7 (LexisNexis 2003). In the 2004 legislative session, without materially altering the relevant language of the statute itself, the legislature changed the title of the statute to read as it does now: "District court venue - Jurisdiction of juvenile court - Jurisdiction over nonresidents - Time for filing." See Adoption Amendments, ch. 122, § 11, 2004 Utah Laws 546, 553; see also Utah Code Ann. § 78B-6-105. "The title of a statute is not part of the text of a statute, and absent ambiguity, it is generally not used to determine a statute's intent. However, it is persuasive and can aid in ascertaining the statute's correct interpretation and application." Blaisdell v. Dentrix Dental Sys., Inc. , 2012 UT 37, ¶ 10, 284 P.3d 616 (quotation simplified). In this case, in which we must determine whether the statute is a jurisdictional statute or a venue statute, we find it significant that the legislature has specifically categorized the statute as one speaking to venue rather than to subject-matter jurisdiction.

¶20 Despite all of these persuasive indications that the relevant statute speaks only to venue and not to subject-matter jurisdiction, Father directs us to two of our previous decisions that have referred to the statute as "jurisdictional." See In re adoption of S.L.F. , 2001 UT App 183, 27 P.3d 583 ; In re adoption of K.O. , 748 P.2d 588 (Utah Ct. App. 1988). Father asserts that those cases constitute binding authority that the statute is jurisdictional and compel the dismissal of Petitioner's petition.

¶21 Father's argument certainly has some force. In those cases, we did refer to the statute as containing a "jurisdiction requirement," see In re adoption of K.O. , 748 P.2d at 591 ; see also In re adoption of S.L.F. , 2001 UT App 183, ¶ 17, 27 P.3d 583, and even went so far as to state that "[w]ithout knowing the [petitioners'] residence ..., this Court cannot ascertain whether or not the trial court had jurisdiction to grant the adoption," In re adoption of K.O. , 748 P.2d at 591. In one of the cases, we implicitly rejected the argument Petitioners advance here, namely, that the adoption statute was merely a "venue" statute, and held that "until the adoption petition was properly filed in Second District Court, where [the prospective adoptive parent] resides, the proceeding had not been 'commenced' as required" by the statute. In re adoption of S.L.F. , 2001 UT App 183, ¶ 16 n.1, 27 P.3d 583. And in the other, we specifically stated that, if the trial court on remand "determines that it had no jurisdiction to hear the adoption because the [petitioners] were not residents of Cache County, Utah at the time of filing, that proceeding was void." In re adoption of K.O. , 748 P.2d at 592.

¶22 It is undeniably the case that one panel of this court is bound to follow the previous decisions of another panel of this court, unless we make a specific decision to overrule or disavow the earlier precedent. See State v. Legg , 2018 UT 12, ¶ 9, 417 P.3d 592 (stating that "[u]nder the doctrine of horizontal stare decisis, the first decision by a court on a particular question of law governs later decisions by the same court," and specifically holding that "[t]he doctrine of horizontal stare decisis applies as between different panels of the court of appeals" (quotation simplified) ). However, the principle of horizontal stare decisis only applies if the previous precedent remains robust. See United States v. Plouffe , 445 F.3d 1126, 1128 (9th Cir. 2006) (stating that "where an intervening higher authority has issued an opinion that is clearly irreconcilable with our prior circuit precedent, a panel is free to act disregarding that precedent" (quotation simplified) ); see also 21 C.J.S. Courts § 190 (2018) (stating that "stare decisis does not preclude a decision that reflects developments in the law since the courts must consider statutory or case law changes that undermine or contradict the viability of prior precedent").

¶23 While the two cases upon which Father relies have not been explicitly overruled, two developments have taken place in the decades since those cases were decided that cause us to doubt the continuing vitality of those cases' discussions of jurisdiction. First, both of those cases were decided prior to 2004, when our legislature amended the title of the statute to specify that the statute, at least as concerns district courts, is intended to speak to venue and not to jurisdiction. Second, since those cases were decided, our supreme court has significantly "cabin[ed] the issues that fall under the category of subject matter jurisdiction," Johnson , 2010 UT 28, ¶ 10, 234 P.3d 1100, and has made clear that subject-matter jurisdiction applies to only two situations, neither of which is present in this case. Our fealty is first and foremost to the mandates of our supreme court and to the enactments of our legislature, and where our precedent conflicts with more recent supreme court pronouncements or statutory changes, we are duty-bound to follow the path our supreme court and our legislature have set. See Ortega v. Ridgewood Estates LLC , 2016 UT App 131, ¶ 30, 379 P.3d 18 ("We are bound by vertical stare decisis to follow strictly the decisions rendered by the Utah Supreme Court." (quotation simplified) ); Beltran v. Allan , 926 P.2d 892, 898 (Utah Ct. App. 1996) (stating that "it is the Utah statute, as interpreted by majority holdings of the Utah Supreme Court, which controls the outcome of this case").

¶24 For these reasons, we conclude that Utah Code section 78B-6-105(1)(a) speaks to venue, and does not limit a court's subject-matter jurisdiction. Accordingly, unless the adoption is one that must be filed in juvenile court pursuant to Utah Code section 78A-6-103(1)(o), see Utah Code Ann. § 78B-6-105(1)(c), any district court has subject-matter jurisdiction to adjudicate an adoption case, even one filed in the wrong district, but must transfer the case to the correct district upon the filing of a proper request. Cf. id. § 78B-3-308 (stating that, when a case is filed in the wrong venue, a party may file "a written motion requesting the trial be moved to the proper county").

CONCLUSION

¶25 The provision in Utah's adoption code that requires that an adoption case be "commenced" by the filing of a petition in a particular judicial district is a provision that speaks to venue, and not to subject-matter jurisdiction. Petitioners did indeed file their petition in the wrong venue, but this did not deprive the court of subject-matter jurisdiction, because any district court in Utah has subject-matter jurisdiction over any adoption case that does not have to be filed in juvenile court. The consequence for filing in the wrong district is not automatic dismissal; it is that any party, upon proper motion, may request that the case be transferred to the correct district. Unless and until such a request is made, however, the court in which the case is filed may continue to adjudicate the case, and its rulings are not void. For all of these reasons, we affirm the district court's decision to deny Father's motion to dismiss for lack of subject-matter jurisdiction, and we remand the case to the district court for further proceedings consistent with this opinion.

      This provision of the relinquishment explains why the parties are litigating about whether Utah Code section 78B-6-105(1)(a) speaks to subject-matter jurisdiction or to venue: if the statute is jurisdictional, Petitioners' petition should be dismissed, and in that event Father intends to assert that Child should be returned to Mother's custody and control.

      Father emphasizes the statute's use of the word "shall," which is usually interpreted as a mandatory command, see Utah Code Ann. § 68-3-12(1)(j) (LexisNexis 2016) (defining "shall" as meaning "that an action is required or mandatory"), and argues that adoption petitioners are commanded to file their adoption petition in the proper district. This argument is correct, as far as it goes, but the legislature's use of the word "shall," in this context, fails to answer the question at the center of this dispute because it tells us nothing about what the intended consequences are for filing the petition in the wrong place. Indeed, this case nicely illustrates one reason why some legal scholars have noted that the word "shall" is "a semantic mess": because "a recurrent issue in the huge constellation of shall-must holdings" concerns "the effect of failing to honor a mandatory provision's terms," which presents "an issue for a treatise on remedies, not interpretation." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 113, 115 (2012).

      Father points out that subsection (1)(c) of the statute appears to be jurisdictional, in that it places some adoption cases within the exclusive jurisdiction of the juvenile court, and infers therefrom that the other subsections must therefore also be jurisdictional. Father is arguably correct that subsection (1)(c) speaks to a juvenile court's subject-matter jurisdiction-that provision states that adoption proceedings "shall be commenced by filing a petition" in "juvenile court as provided in Subsection 78A-6-103(1)." See Utah Code Ann. § 78B-6-105(1)(c) (LexisNexis Supp. 2018). The referenced section of the Juvenile Court Act states that "the juvenile court has exclusive original jurisdiction" over "adoptions" in cases where "the juvenile court has previously entered an order terminating the rights of a parent and finds that adoption is in the best interest of the child." See id. § 78A-6-103(1)(o) (Supp. 2018). This language does appear to encompass express limits on the authority of courts other than juvenile courts to hear a particular sub-class of adoption cases. However, it does not follow that, just because subsection (c) is jurisdictional, subsections (a) and (b) must also be jurisdictional. On this issue, the title of the statute provides helpful guidance, instructing us that the statute concerns itself with "[d]istrict court venue" but with "[j]urisdiction of juvenile court." See id. § 78B-6-105 ; see also infra ¶ 19. As we read the statute, the legislature has placed most adoption cases within the broad subject-matter jurisdiction of district courts, but has placed one sub-class of adoption cases within the narrower subject-matter jurisdiction of juvenile courts. Within the first (broader) category, we do not perceive the legislature as having set any jurisdictional limits on the ability of any particular judicial district or individual district court to hear any of the cases that fall within their purview.

      Furthermore, unlike some other comparable state statutes, see, e.g. , Wyo. Stat. Ann. § 1-22-109 (2018) (requiring specific documents to be filed with an adoption petition), Utah's statute does not impose any requirements on petitioners to file specific documents (such as, for instance, relinquishments or consents) with adoption petitions. Father points to some of these other state statutes, and notes that courts in other states have found such requirements to be jurisdictional. See, e.g. , In re JWT , 2005 WY 4, ¶¶ 5-6, 104 P.3d 93. Father's argument is unavailing here, however, because Utah's statute imposes no such requirements, and therefore we need not consider whether our legislature intended any such requirements to be jurisdictional.

      In 2008, Utah Code section 78-30-7 was renumbered as Utah Code section 78B-6-105. See Title 78 Recodification and Revision, ch. 3, § 864, 2008 Utah Laws 48, 443.

      The "redline" version of the bill that effected the title change did not show the new title in "redline" format, even though all proposed changes to the body of the statute were clearly marked. Father infers from this that the legislators themselves (as opposed, presumably, to legislative staff) may not have known that the title was even being changed, and therefore asserts that "the title change does not imply any legislative intent." We find Father's argument speculative-we simply do not know why the change to the title of the bill was not redlined, or whether that fact has any significance. Legislative history certainly has a role to play in helping courts interpret ambiguous statutes, see , e.g. , Allred v. Saunders , 2014 UT 43, ¶ 18, 342 P.3d 204 (stating that "it is sometimes appropriate to consider legislative history when interpreting statutes"), but in order to shed any meaningful light on the question of statutory meaning, the legislative history in question must itself be "reliable," see Graves v. North E. Services, Inc. , 2015 UT 28, ¶ 67, 345 P.3d 619 (stating that "[w]e may resolve ambiguities in the text of the law by reference to reliable indications of legislative understanding or intent" (emphasis added) ). It is certainly mysterious that the title change was not redlined even though the rest of the proposed changes were. But without knowing more about the reasons why that happened, or about what (if any) significance that had to the legislators who considered the bill, we find Father's argument insufficiently persuasive to overcome the basic fact that, prior to 2004, the title proclaimed the statute to be jurisdictional, but that since 2004, the legislature has chosen a title that proclaims the statute to be a venue statute, at least as concerns district courts.

      Even in In re adoption of S.L.F. , there is some indication that-prior to our supreme court's more recent cases-this court and the district courts were conceptualizing subject-matter jurisdiction too broadly. In that case, a potential adoptive parent filed an adoption petition in Salt Lake County (in the Third Judicial District), even though she lived in Davis County (in the Second Judicial District). See In re adoption of S.L.F. , 2001 UT App 183, ¶ 3, 27 P.3d 583. Later, the parent made a "motion for a change of venue," asking that the petition be transferred to Davis County. Id. ¶ 5. The Salt Lake County district court granted the motion, and transferred the petition to Davis County. Id. Had there been a jurisdictional defect of the kind Father envisions, transfer would not have been possible-indeed, the only action a court without jurisdiction can take is to dismiss the case. See , e.g. , Hollenbach v. Salt Lake City Civil Service Comm'n , 2013 UT App 62, ¶ 3, 299 P.3d 1148 (per curiam) (stating that "when a court lacks jurisdiction, it retains only the authority to dismiss the action" (quotation simplified) ). No party took issue with the Salt Lake County district court's decision to transfer (rather than dismiss) the case, and we did not reach the propriety of that transfer on appeal.

      Father also argues that construing the relevant statute as a venue statute rather than as a jurisdictional statute would have "constitutional implications," because he points out that fathers are required to "strictly" comply with other provisions of Utah's adoption code, and argues that "it would be unconstitutional to impose a 'strict compliance' standard for biological fathers but a more relaxed standard for adoptive parents." Our conclusion herein regarding the meaning of the relevant statute-and, specifically, regarding the intended consequences of filing a petition in the wrong district-has nothing to do with requiring "strict" or "relaxed" compliance with the statutory mandates. Our conclusion is simply that the legislature intended the statute to function as a venue statute, and therefore a court does not lack subject-matter jurisdiction over an adoption petition filed in the wrong district any more than it would lack subject-matter jurisdiction over a divorce case or a tort case filed in the wrong county. We see no constitutional infirmities with the legislature's creation of a venue statute in this context, and therefore reject Father's constitutional arguments.


source: Caselaw Access Project

author: HAGEN, Judge:

license: Public Domain

text:
    STATE of Utah, Appellee, v. Danny Robert KARREN, Appellant.
    No. 20150020-CA
    Court of Appeals of Utah.
    Filed December 13, 2018
    Nicolas D. Turner, Attorney for Appellant.
    Sean D. Reyes and Nathan D. Anderson, Salt Lake City, Attorneys for Appellee.
    Judge Diana Hagen authored this Opinion, in which Judges Kate A. Toomey and David N. Mortensen concurred.
    Opinion
   HAGEN, Judge:

¶1 Danny Robert Karren appeals his convictions for possession or use of methamphetamine, possession or use of marijuana, and possession of drug paraphernalia. Karren argues that the district court erred by denying his request for an innocent possession jury instruction. Relying on State v. Miller , 2008 UT 61, 193 P.3d 92, Karren contends that he was entitled to an instruction on innocent possession because he was charged with a possession crime. Because Karren's argument misinterprets the holding in Miller and because the evidence in the record does not support an innocent possession instruction, we affirm the district court's denial of his request.

¶2 Karren also contends that his trial counsel provided ineffective assistance by failing to timely file certain pre-trial motions. Without addressing whether trial counsel's failure to timely file motions constituted deficient performance, we hold that Karren has failed to carry his burden of showing prejudice.

BACKGROUND

¶3 After allegedly lighting a neighbor's car on fire, Karren's roommate and his girlfriend returned to the apartment they shared with Karren. There the two gathered "anything and everything they could," spoke briefly with Karren, and fled the apartment, leaving Karren behind. Sometime early the next morning, Karren smoked methamphetamine. Around the same time, Karren's roommate contacted Karren to let him know that the police might come to their apartment and that he left some things he needed Karren to bring to him. Karren agreed to deliver to a local motel a glass marijuana pipe, which belonged to the roommate's girlfriend, and a black backpack he retrieved from the roommate's bedroom. Karren placed the glass pipe in the backpack and drove to the motel in his van. When he arrived, Karren moved the backpack to the backseat of the van and fell asleep.

¶4 Shortly thereafter, a police officer responding to a call from a motel employee found Karren asleep in his vehicle. While he was standing outside of the vehicle looking in at Karren, the officer observed a large metal spoon with white residue lying on the passenger seat. Based on his training and experience, the officer recognized that the white residue was methamphetamine and that the spoon had been used to heat methamphetamine.

¶5 The officer woke Karren and asked him to get out of the van. After exiting the vehicle, Karren provided the officer with his name and date of birth and the officer ran Karren's name through a government database and discovered that Karren had several warrants for his arrest. The officer read Karren his Miranda rights, placed him under arrest, and questioned him about the white residue on the spoon. Karren replied that it was "meth." The officer also questioned Karren about when he last used "illegal drugs," to which Karren replied that it had been "approximately four hours before [their] encounter." Karren admitted he had also injected methamphetamine into his arm and the residue on the spoon was from heating the methamphetamine for injection.

¶6 Next, the officer asked Karren if there were any other drugs or drug paraphernalia in the vehicle. Karren answered affirmatively, directing the arresting officer to the black backpack in the backseat of the van that Karren admitted contained "a meth pipe, some syringes, a baggie of meth, and a marijuana pipe." When the officer asked if the items belonged to Karren, he answered, "Well, they're in my vehicle, aren't they?" In response to the arresting officer's questions, Karren also explained "that a crime happened earlier involving his roommate and that he thought the cops were going to come into his house, and so he loaded up some belongings inside his house, drove to the motel, and ... fell asleep." Then Karren disclosed that the drugs in the backpack actually belonged to his roommate.

¶7 After questioning Karren outside the vehicle, the officer searched the vehicle and recovered the spoon with white residue from the passenger seat, a digital scale from the floor between the front seats, and the black backpack from behind the passenger seat. He searched the inside the backpack and discovered a second spoon with white residue on it, a glass methamphetamine pipe with white residue, a small plastic bag containing syringe caps and a crystal substance "consistent with that of methamphetamine," and a glass pipe containing "a green leafy substance that was consistent with that of marijuana." The green leafy substance later tested positive for marijuana and the crystal substance and white residue later tested positive for methamphetamine.

¶8 Based on Karren's statements to the officer and the drugs and paraphernalia discovered in his van, the State charged Karren with possession or use of methamphetamine, see Utah Code Ann. §§ 58-37-8(2)(a)(i), 58-37-4 (LexisNexis Supp. 2018); possession or use of marijuana, see id. ; and possession of drug paraphernalia, see id. § 58-37a-5(1).

¶9 Karren's trial counsel filed several pre-trial motions as the case progressed, including a motion for discovery, a motion to compel discovery, two motions for defense resources, a motion for an entrapment hearing, and a motion to continue Karren's trial. Two days before trial, trial counsel filed a second motion to continue, which he orally renewed on the first morning of trial. In argument on that motion, counsel stated he was renewing the motion to continue to "pursue at least three [other] motions."

¶10 First, trial counsel requested a continuance to prepare a request for a jury instruction about missing or contaminated evidence, arguing that testimony from a prior hearing revealed that a police officer took photographs of the items inside of Karren's van. Because those photographs had not been produced, Karren requested a missing evidence jury instruction.

¶11 Karren's trial counsel then made a second motion, arguing that some of Karren's incriminating statements should be suppressed because the arresting officer conducted an "unwarranted custodial interrogation." Counsel stated that he believed that Karren was not given his Miranda rights before his driver license was taken and he was questioned.

¶12 Finally, trial counsel moved to dismiss, alleging "selective prosecution or vindictive prosecution." In making this argument, counsel conceded that he had not "really found the basis under the law for selective prosecution," but he nevertheless felt he needed to make a record of the motion. He also explained that Karren felt that "other defendants charged with similar ... distribution cases, have been released to treatment, [and] seem to have better outcomes than what has been offered to him."

¶13 Ultimately, the district court judge denied the motion to continue, stating that, based on the evidence before the court, it appeared that "the motions that [defense counsel] identified ... would be untimely and [it is unclear] how they would make any difference, even if the motions were to have been filed [in a timely fashion]."

¶14 At trial, the arresting officer testified that the black backpack and photographs he took of the drugs and paraphernalia he confiscated from Karren's van were missing from evidence. In addition, another officer testified that he processed the evidence but did not recall processing a black backpack. Based on this testimony, the district court granted Karren's request that the jury be instructed as to missing evidence. The jury was instructed that "the failure to preserve evidence by a party may give rise to an inference unfavorable to that party."

¶15 Near the end of trial, Karren's trial counsel also renewed the motion to suppress. Karren testified that he was not given Miranda warnings before the officer questioned him about the residue on the metal spoon found in the passenger seat of his van. Based on this testimony, the district court agreed to entertain the renewed motion to suppress outside the jury's presence. The State recalled the arresting officer, who testified that he gave Karren his Miranda warnings before questioning him. After argument on the motion, the district court ruled that it "believe[d] the officer's testimony with regard to what happened" and it "just doesn't make sense ... [that] it would happen the way that [Karren] describes it." Accordingly, the court denied the motion to suppress.

¶16 After closing arguments, trial counsel also requested an innocent possession jury instruction, which the court denied. The jury found Karren guilty of all charges.

¶17 Karren appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 Karren raises two issues on appeal. First, Karren contends that the district court erred in denying his request to instruct the jury as to innocent possession. "We review a district court's refusal to give a jury instruction for abuse of discretion." Miller v. Utah Dep't of Transp. , 2012 UT 54, ¶ 13, 285 P.3d 1208. "Abuse of discretion occurs only if it can be said that no reasonable person would take the view adopted by the district court." State v. Sanchez , 2017 UT App 229, ¶ 2, 409 P.3d 156 (per curiam) (quotation simplified).

¶19 Second, Karren contends that his trial counsel provided ineffective assistance by failing to timely raise four pre-trial motions. Karren failed to preserve this claim below but we recognize an exception to the preservation rule for claims of ineffective assistance of counsel. See State v. Johnson , 2017 UT 76, ¶ 19, 416 P.3d 443 (acknowledging an ineffective assistance of counsel exception to the preservation rule). "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Robertson , 2018 UT App 91, ¶ 21, 427 P.3d 361 (quotation simplified).

ANALYSIS

I. Innocent Possession Instruction

¶20 Karren first contends that he was entitled to an innocent possession jury instruction. In general, "a defendant is entitled to have his legal theory of the case placed before the jury if it would not be superfluous to do so because of an absence of any evidence to support the theory." State v. Piansiaksone , 954 P.2d 861, 871 (Utah 1998) (quotation simplified). A defendant is not entitled to present his theory to the jury if there is no "basis in the evidence to support" it. State v. Kennedy , 2015 UT App 152, ¶ 32, 354 P.3d 775. "The issue of whether the record evidence, viewed in its totality, supports the defendant's theory of the case is primarily a factual question," that is "entitled to more deference than any other kind of determination." State v. Berriel , 2013 UT 19, ¶ 9, 299 P.3d 1133.

¶21 In State v. Miller , 2008 UT 61, 193 P.3d 92, the Utah Supreme Court held that the possession of a controlled substance statute, Utah Code section 58-37-8(2)(a)(i), "implicitly includes the defense of innocent possession." Id. ¶ 21. The defense applies when "(1) the controlled substance was attained innocently and held with no illicit or illegal purpose, and (2) the possession of the controlled substance was transitory; that is, that the defendant took adequate measures to rid himself of possession of the controlled substance as promptly as reasonably possible." Id. ¶ 22.

¶22 In Miller , the court identified one factual scenario in which a defendant would be entitled to an innocent possession instruction. The defendant in that case was charged with possessing prescription oxycodone and hydrocodone pills. Id. ¶ 7. Both drugs were discovered in a pill bottle, which the defendant had placed in his pants pocket, with a prescription label bearing another person's name. Id. ¶¶ 6-7. At trial, the defendant presented evidence that he discovered the pill bottle when some guests left his house and that he put it in his pocket to keep it out of reach of his children until he could return it to the person to whom it belonged. Id. ¶ 6. Our supreme court held that the district court should have granted the defendant's request for an innocent possession jury instruction because "the term 'possess,' as it is used in section 58-37-8(2)(a)(i), excludes transitory possession of a controlled substance for the purpose of returning it to its lawful owner." Id. ¶¶ 21, 24. The court's holding presupposes a situation where there is a lawful owner to whom the drugs can be returned--in that case, the individual whose name was on the prescription label.

¶23 Unlike in Miller , there was no lawful owner to whom Karren could return the marijuana and methamphetamine, two drugs that could not be prescribed or legally possessed in Utah. Although Karren testified he was in possession of the drugs because he agreed to bring them to his roommate at the motel, no evidence in the record suggests that Karren's roommate could lawfully possess such contraband. There was no evidentiary basis on which a jury could find that Karren possessed the controlled substances "with no illicit or illegal purpose" where his professed purpose was to deliver the drugs to an illegal user.

¶24 We do not read Miller to suggest that "temporary possession for the purpose of returning a controlled substance to its lawful owner" is the only circumstance in which the innocent possession defense would apply. Miller , 2008 UT 61, ¶ 19, 193 P.3d 92. But Karren has identified no evidence that would support an alternative theory of innocent possession, such as intent to dispose of the drugs to prevent harm to others or to turn them over to the proper authorities. Instead, Karren claims only that he was returning the drugs to his roommate. Under such circumstances, a defendant must point to some evidence to suggest he was returning the drugs to a person who could legally possess them. Because there is no evidence to support such a theory in this case, the district court did not err in denying Karren's request for an innocent possession jury instruction.

II. Ineffective Assistance of Counsel

¶25 Karren's second claim is that his trial counsel provided ineffective assistance by making untimely pre-trial motions. Specifically, Karren argues that his trial counsel failed to timely move for a continuance so that he would have an opportunity to file three other motions: a motion for a jury instruction relating to "missing photographs and fingerprint contamination," a motion to suppress "based upon unwarranted custodial interrogation," and a motion to dismiss "based upon selective or vindictive prosecution." In order to succeed on this claim, Karren must show "both that his trial counsel performed deficiently ... i.e., 'that counsel's representation fell below an objective standard of reasonableness,' " and that, had counsel performed sufficiently, "there is a 'reasonable probability' that the outcome of the trial would have been more favorable to him." State v. Whitbeck , 2018 UT App 88, ¶ 35, 427 P.3d 381 (quoting Strickland v. Washington , 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (quotation simplified).

¶26 Although Karren bears the burden of showing both deficient performance and prejudice, "in the event it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, we will do so without analyzing whether counsel's performance was professionally unreasonable." State v. Lee , 2014 UT App 4, ¶ 13, 318 P.3d 1164 (quotation simplified). Here, Karren's claim that his trial counsel provided ineffective assistance in failing to file timely pre-trial motions can be disposed of for lack of prejudice because each of the motions was either futile or entertained on the merits by the district court. We address each motion in turn.

A. Motion for Jury Instruction Related to Missing Evidence

¶27 First, Karren contends that his trial counsel provided ineffective assistance of counsel by making an untimely motion for "some kind of instruction to the jury that the lack of [fingerprint and photograph] evidence prejudices [Karren]." In making this argument, Karren neglects to acknowledge that the district court did instruct the jury that "the failure to preserve evidence by a party may give rise to an inference unfavorable to that party." Although the court initially denied as untimely trial counsel's motion for a missing evidence instruction, Karren cannot show he was prejudiced by counsel's failure to timely make the motion where the court eventually granted the relief requested. Because the jury was instructed regarding the missing evidence, Karren cannot show that but for counsel's failure to timely make the motion for a jury instruction, "there is a reasonable probability that the verdict would have been different." See State v. Martinez-Castellanos , 2018 UT 46, ¶ 51, 428 P.3d 1038.

B. Motion to Suppress

¶28 Second, Karren argues that his trial counsel provided ineffective assistance by failing to timely move to suppress the statements Karren made to the arresting officer on the basis that they were the result of "unwarranted custodial interrogation."

¶29 Although the district court initially declined to hear the untimely motion to suppress, Karren's counsel renewed the motion after Karren testified at trial that the officer did not provide Miranda warnings until after he had taken Karren's driver license and began questioning. Outside the presence of the jury, the district court heard further testimony on the issue from both the arresting officer and Karren. After hearing additional testimony on the issue, the district court denied Karren's motion to suppress, stating that it "believe[d] the [arresting] officer's testimony with regard to what happened."

¶30 Given that the court ultimately considered the motion to suppress on the merits, trial counsel's failure to raise the motion in a timely fashion did not prejudice Karren. Furthermore, Karren does not challenge the court's denial of the motion to suppress nor does he argue that the result would have been different if his motion had been entertained before trial. As a result, Karren has failed to show that he was prejudiced by counsel's failure to timely file the motion in the first instance.

C. Motion to Dismiss

¶31 Third, Karren argues that his trial counsel was ineffective in failing to timely make a motion to dismiss based on Karren's concerns "that this case is an example of selective prosecution or vindictive prosecution." In the context of ineffective assistance of counsel claims, "the failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance." State v. Whittle , 1999 UT 96, ¶ 34, 989 P.2d 52 (quotation simplified).

¶32 In order to show selective or discriminatory prosecution, a defendant must demonstrate that the State's decision to prosecute was "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification" in violation of the Fourteenth Amendment Equal Protection Clause. State v. Geer , 765 P.2d 1, 3 (Utah Ct. App. 1988) (quoting Wayte v. United States , 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) ). To make this showing, "the defendant must demonstrate that a prosecutorial policy result[ed] in a discriminatory effect, based on an unlawful classification." Id. Generally, "as long as the prosecutor has probable cause to believe that an offense has been committed, the decision regarding whether to prosecute ... rests entirely in the prosecutor's discretion." Id. (quotation simplified).

¶33 Karren has not shown that the State's prosecution violated the Equal Protection Clause or that the State deliberately abused its discretion in deciding to prosecute him. Indeed, defense counsel admitted in argument on the motion to dismiss that he "just need[ed] to make a record." Although he had researched Karren's selective prosecution claims, he was not "sure [he had] seen the facts necessary to support such a motion." Karren's allegations of selective prosecution seem to be based entirely on his concern that "other defendants charged with similar ... distribution cases, have been released to treatment, [and] seem to have better outcomes than what has been offered to him." Karren cannot show he was prejudiced by his trial counsel's failure to timely file the motion to dismiss where nothing in the record suggests he would have prevailed on such an unsupported claim.

D. Motion to Continue Trial

¶34 Finally, Karren argues that his trial counsel provided ineffective assistance by failing to timely move to continue trial. Trial counsel moved for a continuance the morning of the first day of trial to "pursue at least three motions"-the motion for a jury instruction about missing evidence, the motion to suppress for failure to give Miranda warnings, and the motion to dismiss because of selective prosecution. Apart from those three motions, defense counsel made no other argument that the district court should grant Karren's motion to continue. We have already addressed those motions and determined they were, respectively, granted, rejected by the district court on the merits, or otherwise futile. Because of this, Karren cannot show that but for counsel's failure to timely make the motion to continue he would have received a better result at trial.

¶35 Karren has not shown that he was prejudiced by his trial counsel's failure to timely file pre-trial motions. Accordingly, he has failed to show that his trial counsel provided ineffective assistance of counsel.

CONCLUSION

¶36 We affirm the district court's denial of Karren's request to instruct the jury as to innocent possession because the evidence in the record does not support Karren's argument that he innocently possessed methamphetamine and marijuana. In addition, we hold that Karren has not shown that his trial counsel provided ineffective assistance of counsel because he has failed to demonstrate he was prejudiced by trial counsel's failure to timely file pre-trial motions. Accordingly, we affirm Karren's convictions.

      We recite the facts in the light most favorable to the jury's verdict, presenting conflicting evidence only as necessary to understand the issues on appeal. See State v. Bond , 2015 UT 88, ¶ 3 n.2, 361 P.3d 104.

      Pursuant to Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), every individual "in custody or otherwise deprived of his freedom of action in any significant way" must be advised of his rights against self-incrimination under the Fifth Amendment to the United States Constitution. Id. at 445, 478-79, 86 S.Ct. 1602.

      In his initial notice of appeal, Karren asserted three additional reasons that he believes his trial counsel provided ineffective assistance. Because Karren's appellate counsel was admittedly "unable to determine what [Karren] was referring to" in regards to these arguments and has otherwise failed to address them in the appellant's brief, we decline to reach them.

      The Utah legislature recently passed H.B. 3001, the Utah Medical Cannabis Act, which would legalize the possession of marijuana under limited circumstances. If signed into law, the Act would become effective on July 1, 2019.

      It is unclear from Karren's briefing on appeal whether he is arguing that his trial counsel provided ineffective assistance by failing to timely move to continue trial or if he is arguing that his trial counsel provided ineffective assistance by failing to timely make the motions that counsel claimed justified his motion to continue. For clarity, we address each of the four motions separately.


author: MORTENSEN, Judge:

text:
    Noe ARREGUIN-LEON, Appellee, v. HADCO CONSTRUCTION LLC, Appellant.
    No. 20161092-CA
    Court of Appeals of Utah.
    Filed December 13, 2018
    Karl M. Tilleman, Robert L. Janicki, Salt Lake City, and Michael L. Ford, Salt Lake City, Attorneys for Appellant
    Troy L. Booher, Beth E. Kennedy, Leonard E. McGee, Salt Lake City, and Peter R. Mifflin, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Kate A. Toomey and Ryan M. Harris concurred.
    Opinion
   MORTENSEN, Judge:

¶ 1 Working on a ladder involves certain inherent risks. Working on a ladder on the shoulder of Utah's largest interstate freeway magnifies those risks. In this series of unfortunate events, a car crash into a construction site knocked Noe Arreguin-Leon (Plaintiff) off a ladder and caused him to sustain serious bodily injury. Plaintiff sued Hadco Construction LLC (Hadco) for negligently failing to implement a proper traffic control plan, which purportedly would have protected against cars entering the construction site. At trial, the jury awarded Plaintiff $2.9 million in damages and found Hadco partially responsible for Plaintiff's injuries. Hadco appeals, and we reverse and remand for a new trial.

BACKGROUND

The Accident

¶ 2 The Utah Department of Transportation (UDOT) contracted with Hadco to build a new stretch of road on I-15 (the Corridor). Hadco subcontracted with Highway Striping & Signs (HSS) to install all road signs along the Corridor. As principal contractor of the Corridor, Hadco was responsible for implementing a traffic control plan to protect the construction workers but failed to do so. On the day of the accident, because Hadco had provided them no protection from traffic, the construction workers parked their semitrailer behind the work site in an attempt to safeguard themselves while installing a sign.

¶ 3 Plaintiff, who was employed by HSS, worked on the Corridor. He was atop a ladder, installing an exit sign, when a driver (Driver), who had fallen asleep at the wheel, suddenly veered off course, drove into the construction site, and crashed into Plaintiff's ladder. Plaintiff fell from the ladder and sustained significant injuries. After resolving his claims against Driver, Plaintiff brought suit against Hadco for negligently failing to implement a proper traffic control plan.

The Lawsuit

¶ 4 During pre-trial discovery, Plaintiff disclosed a traffic engineer as an expert (Expert). Plaintiff specified that Expert would testify regarding Hadco's violation of five engineering practices, regulatory standards, or contractual provisions, including that: (1) no traffic control (warning signs, barrels, etc.) was in place at the accident site; (2) HSS had placed vehicles near the accident site in violation of a UDOT standard known as a "work clear zone"; (3) HSS customarily placed its vehicles on the side of the road to protect workers, and if that were the case, a UDOT approved traffic control plan should have been designed to close the shoulder in conformance with "TA-5," a regulatory standard governing how to close the shoulder of a highway; (4) Hadco knew or should have known that HSS would be working at the accident site on the day of the incident, and therefore should have taken corrective action; and (5) no traffic control plan for the accident site had been designed by a professional engineer or approved by UDOT.

¶ 5 Because Hadco did not provide a traffic control plan specific to the Corridor, Expert did not base any opinion on an actual plan. Plaintiff disclosed that Expert arrived at his opinions by visiting the accident site and reviewing "(1) UDOT standard plans and drawings, (2) the Manual on Uniform Traffic Control Devices (2003 ed.), and (3) information provided by Plaintiff's counsel, which consisted of deposition transcripts, the police report, pictures, subcontract agreements, and daily traffic control plan inspections." Plaintiff's counsel did not disclose that Expert would offer trial testimony regarding causation.

¶ 6 In lieu of having Expert submit an expert report, Hadco elected to depose and cross-examine Expert on the five disclosed traffic-control opinions, see supra ¶ 4. During the deposition, Expert explained that Hadco should have closed the shoulder. He further explained that Hadco should have installed a taper, a buffer zone, signs, and barricades. At the conclusion of the examination, Hadco's counsel asked Expert, "Do you have any other opinions in this case that we have not talked about today?" Expert responded, "No," and asked to review the transcript, but he did not correct or add anything to his deposition testimony.

¶ 7 After Expert's deposition-but before trial-Hadco provided Plaintiff with a supplemental disclosure, containing "a packet ... consisting of Hadco's daily traffic control plans ... and copies of UDOT standard drawings." The supplemental disclosure did not directly or specifically address the Corridor. Rather, the disclosure contained UDOT's single-page standard plan for a lane closure. Hadco also retained a traffic control expert "to rebut [Expert's] five disclosed traffic-control opinions," but did not retain an expert "to testify on the issue of whether Hadco's conduct caused Plaintiff's injuries because Plaintiff had not disclosed an expert on that issue."

The Trial

¶ 8 At trial, Hadco's primary defenses were that Driver-not Hadco-caused Plaintiff's injuries, and that Hadco was unaware that HSS was working on the Corridor on the day of the accident. The jury heard undisputed evidence, from Hadco's Director of Operations and Hadco's own expert witness, that (1) the purpose of traffic control plans is to protect workers from traffic, (2) it was Hadco's responsibility to implement a traffic control plan for the Corridor, and (3) Hadco did not implement any plan.

¶ 9 Expert testified regarding the five disclosed traffic-control opinions. Plaintiff then asked Expert to give his opinion on whether Hadco's failure to implement a traffic control plan caused the accident and Plaintiff's injuries. Hadco's counsel immediately objected to the testimony regarding causation for three reasons: (1) Plaintiff had not disclosed that Expert would offer any opinions regarding causation, (2) Expert had not disclosed any data or information upon which he allegedly relied to formulate his surprise causation trial opinion, and (3) Expert testified at his deposition that he had no opinions in the case beyond those discussed at his deposition, which did not include any opinion relating to causation. The following bench conference ensued:

Hadco's counsel: Seems to me like this testimony is going toward causation-would traffic control have prevented the accident-and it goes beyond any opinion that he's ever disclosed in this case. There's a list of his items of testimony, and he doesn't touch on that at all.
Plaintiff's counsel: Your Honor, [Expert] was deposed in this case. [Hadco's counsel] had every opportunity to ask any question he wanted, and-he's not limited to the initial disclosure. If he had-if [Hadco's counsel] had elected a report, he would be limited to the contents of the report, but because a deposition has been elected, [Expert] is not so limited.
Hadco's counsel: That's not correct, your Honor.
Plaintiff's counsel: And-and there were documents provided to [Expert] after (inaudible).
Hadco's counsel: Then he needs to supplement his disclosure.
The court: Your objection is noted and is, frankly, overruled.
Hadco's counsel: Can I make a record-a record on this? I think it's very important.
The court: This record is the record here now.

¶ 10 Expert went on to testify that if the required traffic control plan had been implemented, "[t]here might have been an accident still. There's no question about that. I don't think the accident would have taken place where this happened" and therefore, Plaintiff's injury would not have occurred. Expert then explained that the traffic control plan required Hadco to place barrels over nearly 900 feet around the work site. To identify where Driver fell asleep, Expert relied upon Hadco's incident report, which stated that Driver fell asleep about 200 yards from the worksite. Expert noted that this was "within that 900-foot area" where there should have been barrels, and if Hadco had implemented the standard plan, he "would fully expect" that Driver would have hit "at least one, if not more, of these plastic barrels."

¶ 11 Expert further opined that, based on his own experience with hitting barrels, Driver would have awakened if he hit a barrel. As Expert put it, "[t]here's a hellacious racket that erupts when you hit one of these things. ... they make quite a noise. And so, had this area been, in fact, barricaded, as was suggested by the standard drawing, this driver would have been aware immediately upon impact of one of those barrels."

¶ 12 Expert then described what would have happened after Driver awakened on impact, based upon his professional training and experience. First, he explained that "normal perception, judgment, reaction time is about 2.5 seconds. That's the average that traffic engineers use to say, 'Okay. I'm seeing something. I need to adjust to it. I need to then take corrective action.' " Next, Expert opined that during the 2.5 seconds it likely took for Driver to awaken, Driver "would have had close to six seconds to wake up and take corrective action," which included "jerk[ing] hard left to get back on [I-15]." This opinion was based on the area's speed limit of 65 miles per hour, in combination with the report stating where Driver left the road. He acknowledged that his expert opinion was based upon assumptions, both from his professional experience and from facts provided to him in the case.

¶ 13 On cross-examination, Hadco's questions were designed to emphasize that Expert did not know (1) precisely where Driver fell asleep or (2) that hitting a barrel would have awakened him. But Expert responded by stating that his conclusion-that Driver would have awakened if he hit a barrel-did not depend on that location, explaining that, if Driver fell asleep anywhere along the 900-foot stretch where Hadco should have placed barrels, Driver would have hit a barrel, creating a "hellacious sound" that was "going to wake him up."

¶ 14 At the close of Plaintiff's case, Hadco moved for a directed verdict on the ground that Plaintiff had not presented "sufficient evidence that a jury should conclude that the lack of traffic control devices caused this accident." After a recess, the trial judge denied Hadco's motion. The jury went on to find Hadco partially at fault and apportioned 40% of Plaintiff's total $2,940,018.18 in damages to Hadco based on causation. Hadco appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 15 Hadco brings several issues on appeal. First, it argues that the trial court erred, under rule 26 of the Utah Rules of Civil Procedure, in allowing Expert's undisclosed causation opinion to be elicited during trial. "While interpretations of the Utah Rules of Civil Procedure are questions of law reviewed for correctness," we recognize that trial courts have "a great deal of deference in matters of discovery." RJW Media Inc. v. Heath , 2017 UT App 34, ¶ 18, 392 P.3d 956 (cleaned up). We therefore "review discovery orders for abuse of discretion ... [and] will not find abuse of discretion absent an erroneous conclusion of law or where there is no evidentiary basis for the trial court's ruling." Id. (cleaned up).

¶ 16 Lastly, Hadco argues that the trial court erred in denying Hadco's motion for directed verdict "where the jury would have had to speculate to make a causation finding against Hadco." We review a trial court's ruling on a motion for directed verdict for correctness. Blackmore v. L & D Dev. Inc. , 2016 UT App 198, ¶ 24, 382 P.3d 655. On appeal from a denial of a motion for a directed verdict based on the sufficiency of the evidence, "the applicable standard of review is highly deferential." State v. McCallie , 2016 UT App 4, ¶ 39, 369 P.3d 103 (cleaned up). The evidence is to be viewed in the light most favorable to the party moved against. Mahmood v. Ross , 1999 UT 104, ¶ 16, 990 P.2d 933.

ANALYSIS

I. Admission Under Rule 26

¶ 17 Hadco first argues that the trial court abused its discretion under rule 26 of the Utah Rules of Civil Procedure when it allowed Expert to give his causation opinion at trial. We first address whether the court abused its discretion, conclude that it did, and then analyze whether the error was harmless.

A. Abuse of Discretion

¶ 18 Rule 26 governs disclosure, discovery, and use of documents, testimony, and other evidence in hearings or at trial. See Utah R. Civ. P. 26. In short, the rule requires a party wishing to use an expert witness to make initial disclosures, participate in discovery, and supplement those disclosures and discovery responses as necessary. See id. R. 26(a)(4)(A)-(B), (d)(5). If a party does not comply with the rules, the party will likely not be allowed to use the evidence-exclusion is the presumed remedy. See id. R. 26(d)(4) ; see also Williams v. Anderson , 2017 UT App 91, ¶ 16, 400 P.3d 1071 ; RJW Media Inc. v. Heath , 2017 UT App 34, ¶ 21, 392 P.3d 956.

¶ 19 Plaintiff argues that under rule 26, "[a]n expert's trial testimony is limited by an expert report, not expert disclosures." Because the trial court cut off any effort to make a complete record, we must assume that the court ruled consistent with the argument of opposing counsel. In response to Hadco's objection, Plaintiff's counsel argued, "[I]f [Hadco's counsel] had elected a report, he would be limited to the contents of the report, but because a deposition has been elected, [Expert] is not so limited." Thus, Plaintiff argued at trial-and continues to argue on appeal-that when a party elects to depose an expert under rule 26, any limitation on the scope of an expert's testimony evaporates because the deposing party has the opportunity to ask anything it wants to during the deposition. We disagree.

¶ 20 This may have been the way things worked in days past, but under the current rule that is no longer the case. We reject Plaintiff's argument and hold that the trial court misinterpreted rule 26 as a matter of law and thereby abused its discretion. As we now set out to explain, although rule 26 may be more express in limiting expert testimony when a report is at issue, when a party locks in an expert's opinions in a deposition, the same limitations on the scope of expert testimony attach.

¶ 21 Rule 26 states, in relevant part,

(a)(4)(A) Disclosure of expert testimony . A party shall, without waiting for a discovery request, serve on the other parties the following information regarding any person who may be used at trial to present evidence under Rule 702 of the Utah Rules of Evidence and who is retained or specially employed to provide expert testimony in the case ... : (i) the expert's name and qualifications, ... (ii) a brief summary of the opinions to which the witness is expected to testify, (iii) all data and other information that will be relied upon by the witness in forming those opinions ....
(a)(4)(B) Limits on expert discovery . Further discovery may be obtained from an expert witness either by deposition or by written report. ... A report shall be signed by the expert and shall contain a complete statement of all opinions the expert will offer at trial and the basis and reasons for them. Such an expert may not testify in a party's case-in-chief concerning any matter not fairly disclosed in the report. ...
(a)(4)(C) Timing for expert discovery .
(i) The party who bears the burden of proof on the issue for which expert testimony is offered shall serve on the other parties the information required by paragraph (a)(4)(A) within seven days after the close of fact discovery. Within seven days thereafter, the party opposing the expert may serve notice electing either a deposition of the expert pursuant to paragraph (a)(4)(B) and Rule 30, or a written report pursuant to paragraph (a)(4)(B). The deposition shall occur, or the report shall be served on the other parties, within 28 days after the election is served on the other parties. If no election is served on the other parties, then no further discovery of the expert shall be permitted.

Utah R. Civ. P. 26(a)(4)(A)-(C). Thus, rule 26 provides a mechanism for the disclosure of anticipated expert testimony and the determination of whether an opposing party will elect to obtain a report from the expert or depose the expert. To be sure, and as the advisory committee notes acknowledge, rule 26 is drafted to encourage the use of reports instead of depositions in an effort to simplify and reduce costs associated with litigation. But this emphasis does not turn the choice of a deposition into a free-for-all. Instead, while the election of a report locks in the scope of the expert's testimony by operation of the rule itself ( rule 26(a)(4)(B) ), when an election is made to proceed with a deposition, it is up to the party deposing the expert to "lock in" the expert's opinion. The expert witness is bound by the testimony she gives in a deposition and, similarly, the party sponsoring the expert remains responsible, under penalty of exclusion of testimony, to supplement any disclosures or discovery responses previously made-including responses given in a deposition .

¶ 22 Rule 26 expressly provides, in relevant part,

(d)(3) A party is not excused from making disclosures or responses because the party has not completed investigating the case or because the party challenges the sufficiency of another party's disclosures or responses or because another party has not made disclosures or responses.
(d)(4) If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.

Id . R. 26(d)(3)-(4). These provisions of rule 26 make clear that disclosure and supplementation of both disclosures and discovery responses are required and that if a party fails to disclose or supplement a discovery response, the evidence or testimony may not be used.

¶ 23 In this case, the specific disclosure was the initial disclosure of Expert's anticipated testimony and the specific discovery response was Expert's deposition testimony. More particularly, the discovery was limited by Expert's answer of "No" to the question of whether he had any other opinions. Because Expert never supplemented his deposition answer-the discovery response-the causation testimony should not have been allowed at trial, absent a determination that Plaintiff's failure to supplement his discovery responses was harmless or excused by good cause-a determination that the trial court never made. See id. R. 26(d)(4) ("If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.").

¶ 24 The advisory committee notes support this interpretation and expressly address the "lock in" issue in expert depositions. The committee notes state,

The intent is not to require a verbatim transcript of exactly what the expert will say at trial; instead the expert must fairly disclose the substance of and basis for each opinion the expert will offer. The expert may not testify in a party's case in chief concerning any matter that is not fairly disclosed in the report. To achieve the goal of making reports a reliable substitute for depositions, courts are expected to enforce this requirement. If a party elects a deposition, rather than a report, it is up to the party to ask the necessary questions to "lock in" the expert's testimony. But the expert is expected to be fully prepared on all aspects of his/her trial testimony at the time of the deposition and may not leave the door open for additional testimony by qualifying answers to deposition questions.

Utah R. Civ. P. 26 Advisory Committee Notes. These notes reinforce the intent of rule 26, which is to preclude parties from trying to gain an advantage by offering "surprise" testimony at trial that has not been disclosed to, or evaluated by, the opposing party.

¶ 25 Here, the opinions that Expert disclosed in his deposition limited the scope of his trial testimony, and he deviated from those opinions. During the deposition, Hadco asked, "Do you have any other opinions in this case that we have not talked about today?" and Expert responded, "No." Because the causation testimony presented at trial exceeded both the scope of the disclosure and scope of the deposition as "locked in" by questioning, subsection (d)(4) was triggered, which (absent good cause or harmlessness) should have resulted in any testimony which exceeded the scope being excluded at trial. See Utah R. Civ. P. 26(d)(4).

¶ 26 Accordingly, the trial court's ruling-which implied that because Hadco elected a deposition, rather than an expert report, it could not object to the scope of Expert's testimony-constituted an erroneous interpretation of rule 26 and exceeded its discretion. See Kilpatrick v. Bullough Abatement, Inc. , 2008 UT 82, ¶ 23, 199 P.3d 957 ("An abuse of discretion may be demonstrated by showing that the district court relied on an erroneous conclusion of law or that there was no evidentiary basis for the trial court's ruling." (cleaned up) ).

B. Harmless Error

¶ 27 And we are unable to classify the trial court's error as harmless. "Even if the trial court exceeded its discretion, an appellant has the burden to show that the error was substantial and prejudicial, meaning that the appellant was deprived in some manner of a full and fair consideration of the disputed issues by the trier of fact." RJW Media Inc. v. Heath , 2017 UT App 34, ¶ 33, 392 P.3d 956 (cleaned up). An error is harmful "only if the likelihood of a different outcome is sufficiently high as to undermine our confidence in the verdict." Id. (cleaned up).

¶ 28 It is difficult for this court to determine what quantum of evidence tipped the scales for the jury to find in Plaintiff's favor or to apportion fault in the manner the jury did. Ultimately, for several reasons, we cannot conclude that the jury would have inevitably reached the same result without Expert's testimony. First, causation was a central and hotly contested issue at trial. Second, Expert's opinion was not cumulative of any other witness, and carried the imprimatur of coming from an "expert." Finally, Expert's opinion provided a logical roadmap that the jury could-and likely did-follow in deciding the issues of liability and in apportioning fault. Accordingly, any error caused by the trial court allowing Expert to testify regarding causation was not harmless and warrants reversal.

II. Motion for Directed Verdict

¶ 29 Hadco also argues that the trial court erred in denying Hadco's motion for directed verdict because Plaintiff's reliance on Expert's opinion left a "fatal gap in his prima facie negligence case." A trial court may properly grant a motion for directed verdict only when, after "examining all evidence in a light most favorable to the non-moving party, [the court concludes that] there is no competent evidence that would support a verdict in the non-moving party's favor." Gables at Sterling Village Homeowners Ass'n, Inc. v. Castlewood-Sterling Village I, LLC , 2018 UT 04, ¶ 21, 417 P.3d 95 (cleaned up). We "will sustain the denial [of a motion for directed verdict] if reasonable minds could disagree with the ground asserted for directing a verdict. ... [W]e review the trial court's decision to determine if the evidence at trial raised a question of material fact which precluded judgment as a matter of law." Hall v. Peterson , 2017 UT App 226, ¶ 19, 409 P.3d 133 (cleaned up). In considering this issue, we view the evidence as it existed at the close of evidence, without determining whether it was properly admitted. Franklin v. Stevenson , 1999 UT 61, ¶ 7, 987 P.2d 22.

¶ 30 Here, the evidence presented at trial-even without Expert's causation opinion-was sufficient to create a jury question as to causation, and therefore, the issue was properly submitted to the jury and Hadco's motion for directed verdict was correctly denied. Causation is that "which, in the natural and continuous sequence (unbroken by an efficient intervening cause), produces the injury and without which the result would not have occurred. It is the efficient cause-the one that necessarily sets in operation the factors that accomplish the injury." Mahmood v. Ross , 1999 UT 104, ¶ 22, 990 P.2d 933 (cleaned up). Causation is "generally determined by an examination of the facts, and questions of fact are to be decided by the jury." Id . Thus, trial courts should deny a motion for directed verdict on issues of causation "if there is any evidence which might lead a reasonable jury to find a causal connection between a breach and a subsequent injury." Id .

¶ 31 Based on the testimony of witnesses, there was certainly evidence that might lead a reasonable jury to find a causal connection between the absence of a traffic control plan and Plaintiff's injuries. It is certainly possible, at least in some cases, to demonstrate such a causal connection without retaining an accident reconstruction expert. Here, the jury heard undisputed evidence, from a Hadco employee as well as Hadco's own expert witness, that (1) the purpose of traffic control plans is to protect workers from traffic, (2) it was Hadco's responsibility to implement a traffic control plan for the Corridor, and (3) Hadco did not implement any plan. Furthermore, the jury heard evidence from percipient witnesses about the configuration of the accident, the dimensions of the work site, where Driver veered off the road, and generally how the accident unfolded. On that evidence, the jury was entitled to draw conclusions regarding whether implementation of a traffic control plan would have prevented the accident. It necessarily follows that the evidence was sufficient to support the denial of Hadco's motion for directed verdict. See Utah Dep't of Transp. v. Target Corp. , 2018 UT App 24, ¶ 12, 414 P.3d 1080, cert. granted , 425 P.3d 800 (Utah 2018). Therefore, the trial court correctly denied Hadco's motion.

CONCLUSION

¶ 32 The court abused its discretion in allowing Expert's causation testimony. Further, the error was harmful enough to warrant reversal and a new trial. Lastly, based upon the totality of the evidence presented at trial, the court correctly denied Hadco's motion for directed verdict.

      Driver stated that he fell asleep while driving and reported waking up to hear "the grids in the road" and "seeing the back end of the flatbed." He further testified that he swerved to avoid the truck, but lost control and hit Plaintiff's ladder.

      Plaintiff argues that the issue of expert disclosure and discovery is unpreserved because (1) the stated objection went only to disclosures and not discovery and (2) the deposition was not put in the trial court record either at trial or by a post-trial motion. But we determine this issue is preserved based on the fact that Hadco's counsel discussed the deposition with the trial court, see infra ¶ 9, and therefore, had the court allowed Hadco's counsel to elaborate on this point, it would necessarily follow that the deposition would likely have been reviewed by the trial court.
      Rule 46 of the Utah Rules of Civil Procedure states that "if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice [the party]." Utah R. Civ. P. 46. Where a trial court prevents a party from creating a record, as occurred here, the opposing party cannot claim that the issue is unpreserved because of the lack of a record. See id. ; see also United States v. Caper , 571 F. App'x 456, 459-60 (6th Cir. 2014) ("An 'opportunity' to object is illusory when the district court cuts off defense counsel, insisting that counsel need not even articulate an objection because 'everything's preserved.' "); Hanks v. Christensen , 11 Utah 2d 8, 354 P.2d 564, 566 (1960) ("[I]f a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him. Under such rule, if counsel was prevented from making objections, he should be deemed to have done so." (cleaned up) ); Albores v. Bracamontes , 2006 UT App 204, ¶¶ 4-5, 138 P.3d 106 (where a party was left "completely without occasion to object," the absence of an objection did not prejudice the party).
      Further, we acknowledge that the deposition was filed after the judgment was entered in this matter, but before the record was prepared. While such filings normally would not put the deposition before us for consideration, under the unique facts of this case-in the context of the trial court precluding a complete record from being made-we choose to exercise our discretion and consider the deposition. Plaintiff has made no claim that the deposition transcript is not accurate.

      Driver testified that he had no reason to believe he was traveling any slower than the speed limit, and furthermore, Hadco stated in closing argument that Driver was "in a vehicle that was traveling at 65 miles an hour that caused all of the harm we're talking about today."

      Hadco also argues that the trial court erred, under rule 702 of the Utah Rules of Evidence, in admitting Expert's undisclosed causation opinion. "The trial court has wide discretion in determining the admissibility of expert testimony, and such decisions are reviewed under an abuse of discretion standard. Under this standard, we will not reverse a decision to admit or exclude expert testimony unless the decision exceeds the limits of reasonability." State v. Hollen , 2002 UT 35, ¶ 66, 44 P.3d 794 (cleaned up). Here, there is a significant question of preservation, as well as inadequate briefing. Because we are already reversing and vacating the judgment on other grounds, we decline to further address this issue.

      See Burns v. Boyden , 2006 UT 14, ¶ 18 n.6, 133 P.3d 370 (explaining that although the advisory committee notes are not authoritative, they are "a ... reliable indicator of [the Utah Supreme Court's] intent in adopting the rules.").

      See the advisory committee notes to rule 26, which state:
      Expert disclosures and timing. Rule 26(a)(3). Expert discovery has become an ever-increasing component of discovery cost. ... However, [under the previous rules] because the expert was not required to sign these disclosures, and because experts often were allowed to deviate from the opinions disclosed, attorneys typically would take the expert's deposition to ensure the expert would not offer "surprise" testimony at trial. ... The amendments seek to remedy this and other costs associated with expert discovery by, among other things, allowing the opponent to choose either a deposition of the expert or a written report, but not both; in the case of written reports, requiring more comprehensive disclosures, signed by the expert, and making clear that experts will not be allowed to testify beyond what is fairly disclosed in a report, all with the goal of making reports a reliable substitute for depositions ....

      We recognize that where testimony is but a mere elaboration, supplemental disclosures might be unnecessary in some cases. See Conners v. Poticha , 293 Ill.App.3d 944, 228 Ill.Dec. 441, 689 N.E.2d 313, 316-18 (1997) (holding that an expert may provide an opinion as to causation where the opinion constitutes "an elaboration or refinement of a well-established theory"). But that is not the case here. Expert's trial testimony was not merely an elaboration on his deposition testimony concerning what Hadco should have done to protect Plaintiff and the other HSS employees. At trial, Expert provided additional, new opinions regarding a causative connection between Hadco's alleged negligence and Plaintiff's fall.

      We express no opinion regarding whether further discovery, supplementation, or even additional expert disclosures should be allowed by the trial court on remand. We leave it to the able determination and discretion of the trial court to decide how to proceed.

      In contrast, Plaintiff attempts to argue on appeal that all of Hadco's issues are unpreserved because Hadco failed to renew its motion for directed verdict after trial and, therefore, did not meet the procedural requirements set forth in rule 50(b) of the Utah Rules of Civil Procedure. We decline to address this issue because Hadco's argument fails for other reasons. But we observe that although the United States Supreme Court imposes such a requirement under the analogous federal rule, see Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc. , 546 U.S. 394, 400-01, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006) (holding that in the absence of a post-verdict motion under rule 50(b), an "appellate court [is] without power to direct the District Court to enter judgment contrary to the one it had permitted to stand" (cleaned up) ), that holding is untethered to the language of the rule itself, and we have our doubts that our supreme court would reach the same conclusion if it were asked to interpret the Utah rule, see Burns v. Boyden , 2006 UT 14, ¶ 19, 133 P.3d 370 ("We interpret court rules, like statutes and administrative rules, according to their plain language."); see also Strand v. Nupetco Assocs. LLC , 2017 UT App 55, ¶ 4, 397 P.3d 724 ("Courts are, in short, bound by the text of the rule."); State v. Quinonez-Gaiton , 2002 UT App 273, ¶ 11, 54 P.3d 139 ("We interpret a rule by examining the rule's plain language ...." (cleaned up) ); State v. Parker , 936 P.2d 1118, 1119, 1122 (Utah Ct. App. 1997) (declining to adopt a United States Supreme Court interpretation of a rule because the interpretation was "not consistent with the plain language" of the Utah rule).

      While the expert testimony presented may have informed the jury's consideration of the facts, the jury as fact finder was free to accept or reject part or all of any of the experts' opinions. See SA Group Props. Inc. v. Highland Marketplace LC , 2017 UT App 160, ¶ 24, 424 P.3d 187 ; Woodward v. Lafranca , 2016 UT App 141, ¶ 13, 381 P.3d 1125.