author: JAMES, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. David James KAMPH, Defendant-Appellant.
    A163547
    Court of Appeals of Oregon.
    Argued and submitted September 7, 2018. May 22, 2019
    Joshua B. Crowther, Deputy Public Defender, argued the cause for appellant. On the brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services.
    David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   JAMES, J.

In this criminal appeal, defendant appeals the denial of his motion to suppress evidence discovered as the result of a search of a truck in which he was a passenger. On appeal, defendant raises arguments under both the state and federal constitutions. For purposes of the Fourth Amendment to the United States Constitution, defendant argues that his lawful seizure that occurred when the vehicle was stopped for a traffic infraction was unlawfully extended by the deployment of a drug detection dog. Because of factual inconsistencies in the trial court's ruling on the Fourth Amendment issue, and because the trial court made its ruling without the benefit of critical case law from this court and the United States Supreme Court, we vacate and remand for the trial court to expressly address the Fourth Amendment standard regarding the unlawful extension of a stop, and for any additional factfinding that may be necessary.

"We review the trial court's denial of the motion to suppress for legal error." State v. Miller , 267 Or. App. 382, 383, 340 P.3d 740 (2014). "In reviewing a denial of a motion to suppress, we are bound by the trial court's findings of historical fact that are supported by evidence in the record. We state the facts consistently with the trial court's explicit and implicit factual findings, which the record supports." State v. Leiby , 293 Or. App. 293, 294, 427 P.3d 1141 (2018) (internal quotation marks and citations omitted).

Defendant was one of two passengers in a small pickup truck that was pulled over for a traffic violation. It was a single cab pickup truck and all three people in the truck-the driver, the middle passenger, and defendant-were sitting on the same bench seat. Upon contact with the driver, Coos Bay Police Officer Volin noticed that the middle passenger was not wearing a seatbelt. Volin requested identifying documents from both the driver and the middle passenger. The middle passenger was unable to produce identification but gave her name and date of birth. Volin contacted dispatch and, while the driver was "clear and valid," dispatch was unable to locate the middle passenger's information. Volin returned to the vehicle to ask if she had a driver's license, and the middle passenger provided Volin with an expired debit card. It was apparent at that point that Volin likely had misheard the name she provided earlier. Volin then returned to his vehicle to give dispatch the middle passenger's name. Dispatch then informed Volin that the middle passenger had a warrant out for her arrest. Volin confirmed the warrant, which was out of a different county.

It was during that time that a second officer, Scoville, of the Coquille Tribal Police Department, arrived with his drug detection dog. A third officer arrived shortly after. After the warrant was confirmed, Volin returned to the vehicle to advise the passenger that she had a warrant and needed to step out of the vehicle. The middle passenger brought a bag she was using as a purse with her when she got out of the vehicle. Volin and the third officer were located on the sidewalk-on the passenger side of the vehicle-while they took the middle passenger into custody. As she was being taken into custody, Scoville's drug detection dog scratched at the purse while it was on the ground, which is the signal that the dog has located drugs. Scoville, who did not stop to examine the contents of the purse, proceeded to put the dog back in his car, before again removing the dog to conduct a pass around the truck. Volin inspected the purse and was unable to locate any drugs. After Volin searched the purse and found no drugs, Scoville began the pass around the truck at the rear passenger-side bumper with the drug detection dog and proceeded in a counter-clockwise path towards the front passenger bumper. When the dog reached the passenger window, she alerted to the presence of drugs. At that point, Scoville made contact with defendant.

According to the testimony offered at trial, that was the first contact that any officer had with defendant. Defendant was informed that the dog had signaled at the window, and defendant was asked to get out of the vehicle. Defendant was Mirandized and was then informed that the truck would be searched. At some point, defendant informed Scoville that there were drugs in his backpack.

At that point, Scoville informed Volin that defendant had disclosed that there were drugs in his backpack.

Volin received consent from defendant to search the backpack. Volin asked defendant where the drugs would be located in the bag, and then searched it, starting in the location where defendant told Volin the drugs would be found. Volin located a methamphetamine pipe, a marijuana pipe, and a small amount of marijuana. At some point after contacting defendant, Volin was informed that defendant was on probation, and defendant was placed into custody. The driver received a verbal warning for his faulty equipment, and a citation for an undisclosed reason that was not related to the traffic infraction, after both passengers had been processed. Defendant subsequently pleaded guilty to, and was convicted of, possession of methamphetamine, ORS 475.894. Defendant appeals that conviction.

On appeal, defendant advances two arguments. First, he argues that he was unlawfully seized under Article I, section 9, of the Oregon Constitution when the drug dog was deployed around the truck while defendant was still inside because that conduct "transgressed ordinary social interaction," and a reasonable person in his situation would have believed that his liberty was curtailed. Second, defendant argues that his seizure was unlawful under the Fourth Amendment because the traffic stop was unlawfully extended by the dog sniff and ensuing investigation. The state argues, for purposes of Article I, section 9, that a dog sniff of the outside of a vehicle stopped for a traffic violation is not a seizure of a passenger, in this case, defendant. The state does not respond to the merits of defendant's argument under the Fourth Amendment, arguing only that it is unpreserved.

At the outset of our analysis, it is important to recognize that, in Oregon, a passenger in a vehicle that is stopped by police is Schrödinger's passenger-he exists in two potential states, both seized and not seized, and only one of those potential states becomes reality depending on the lens through which we observe him. Viewing the encounter through the lens of Article I, section 9, the passenger is not seized when the vehicle is stopped. In State v. Amaya , 336 Or. 616, 89 P.3d 1163 (2004), the Oregon Supreme Court stated that stopping the driver of a car does not constitute a seizure of the passengers for the purposes of Article I, section 9.

That holding was recently reiterated in State v. Stevens , 364 Or. 91, 100, 430 P.3d 1059 (2018). In contrast, viewing the encounter through the lens of the Fourth Amendment, "a police officer effectively seizes 'everyone in the vehicle,' the driver and all passengers" "for the duration of a traffic stop." State v. Bailey , 356 Or. 486, 507, 338 P.3d 702 (2014) (citing Arizona v. Johnson , 555 U.S. 323, 327, 129 S. Ct. 781, 172 L.Ed.2d 694 (2009) ; Brendlin v. California , 551 U.S. 249, 255, 127 S. Ct. 2400, 168 L.Ed.2d 132 (2007) ).

With that difference in the status of a passenger seizure in mind, we turn now to defendant's state constitutional argument in this case. "We review for legal error whether a police officer's interaction with an individual amounts to an unlawful seizure under Article I, section 9." State v. Sexton , 278 Or. App. 1, 4, 378 P.3d 83 (2016). In light of Amaya and Stevens , to prevail under a state constitutional analysis, defendant must identify some act that constituted the seizure, other than the vehicle stop. Here, defendant argues that police unlawfully seized him when the dog was deployed around the vehicle.

"A seizure of a person occurs under Article I, section 9, of the Oregon Constitution : (a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred." State v. Ashbaugh , 349 Or. 297, 316, 244 P.3d 360 (2010) (internal quotation marks and emphasis omitted). In other words, "[a] seizure exists only if the officer's conduct would be reasonably perceived as coercive in the sense that it would cause the citizen to reasonably believe that the officer is intentionally restraining the citizen's liberty or freedom of movement in a significant way-that is, in a way that exceeds the bounds of ordinary social encounters between private citizens." State v. Backstrand , 354 Or. 392, 400, 313 P.3d 1084 (2013). "A nonexclusive list includes the content or manner of questioning or the accompanying physical acts by the officer, if those additional factors could reasonably be construed as a threatening or coercive show of authority requiring compliance with the officer's request." Leiby , 293 Or. App. at 297, 427 P.3d 1141 (internal quotation marks omitted).

In State v. Rosales , 291 Or. App. 762, 766, 423 P.3d 112 (2018), we held that the dog sniff was not a seizure of the passenger, relying on our decision in Sexton , 278 Or. App. at 5, 378 P.3d 83. In Rosales , we concluded that whatever insinuation conveyed by the dog sniff that the defendant was under investigation for criminal activity was not enough to effectuate a seizure. We concluded that "only a direct and unambiguous accusation of unlawful activity can, by itself, amount to a seizure for purposes of Article I, section 9." Id. at 767, 423 P.3d 112 (internal quotation marks omitted); see State v. Jackson , 268 Or. App. 139, 149, 342 P.3d 119 (2014).

Rosales compels the same result here. In this case, the sniff of the outside of the truck was not a "direct and unambiguous" accusation that defendant was engaged in unlawful activity. It was not defendant's truck, and defendant was not contacted nor was an investigation into defendant begun until after the dog signaled that it had detected narcotics in the vehicle. Defendant was not seized within the meaning of Article I, section 9, and the trial court did not err in denying defendant's motion to suppress based on that argument.

We turn then to defendant's argument under the Fourth Amendment. Under that analytical framework, defendant was lawfully seized when the truck was stopped, and defendant argues that the stop was unlawfully extended by the dog sniff. We first address the issue of preservation as raised by the state. The state agrees that defendant cited the Fourth Amendment in his motion to suppress but argues that the issue is unpreserved because he developed no argument in reliance on the Fourth Amendment in the trial court. We find the record to be contrary to the state's assertion that no argument was developed in the trial court.

Before the trial court, defense counsel raised multiple arguments, much like he does on appeal. As he described his argument to the trial court:

"I would also submit, kind of as the second part of my-or, I guess it's maybe the-the third part of my Omni Motion, that the-the deployment of the dog, and the subsequent asking [defendant] to get out of the vehicle, was an extension of the stop, and an unreasonable extension of the stop."

Because defendant, as a passenger in the vehicle, was not stopped under the Oregon Constitution-a legal holding well-established by Amaya at the time of this motion hearing-the only plausible reading of defendant's argument about the extension of the stop is as an argument under the Fourth Amendment, a source of authority defendant directly cited in his motion.

Under the framework set out in State v. Hitz , 307 Or. 183, 188, 766 P.2d 373 (1988), the descending hierarchy of importance in evaluating whether an issue is preserved is first and most important, identifying the issue; second, and less important, identifying the source of law; and third, and least important, the particular argument. " '[I]t is essential to raise the relevant issue at trial, but less important to make a specific argument or identify a specific legal source with respect to the issue raised.' " State v. Stevens , 328 Or. 116, 122, 970 P.2d 215 (1998).

Here, defendant identified the issue-an unlawful extension of the stop-and cited the applicable federal constitutional basis. Although defendant did not explicitly identify the Fourth Amendment in his closing argument, we find that the practical purposes for preservation were served here. The court was aware of the issue and would have been able to rule on it. In fact, in this case, the court did rule on the issue, discussing whether the stop was extended.

Having rejected the state's argument on preservation, we turn now to the merits. Our task is made significantly more complicated, however, due to the failure by the state to respond at all to the merits of defendant's Fourth Amendment argument. While issues of preservation, harmless error, and such matters are important to appellate review, the choice by a litigant to focus exclusively on preservation at the expense of responding on the merits can be problematic, unless it is absolutely clear that an issue is unpreserved.

For the litigant, there is significant risk in failing to respond to the merits of an opponent's argument. We rely on parties to frame the contours of the legal issues presented in a case, and we will not endeavor to fill the void purposefully created by a party's tactical choices. "[I]t is not this court's function to speculate as to what a party's argument might be. Nor is it our proper function to make or develop a party's argument when that party has not endeavored to do so itself." Beall Transport Equipment Co. v. Southern Pacific , 186 Or. App. 696, 700 n. 2, 64 P.3d 1193, adh'd to on recons , 187 Or. App. 472, 68 P.3d 259 (2003).

For the court, the decision by a party to not respond on the merits of an argument creates tension between the principle from Beall discussed above, with the concomitant principle that we have "an independent obligation to review the rulings of the trial court for errors of law." State v. Remsh , 221 Or. App. 471, 475, 190 P.3d 476 (2008) ; see State v. Bea , 318 Or. 220, 224, 864 P.2d 854 (1993) (explaining that, even in the case where a respondent concedes error, we cannot accept that concession without concluding that an error occurred). When a respondent fails to address the merits of an issue-to argue why something was not error-that silence subtly conscripts the court into that role, and in so doing, risks casting a cloud over perceptions of fairness and impartiality. It is, in short, a practice to be avoided, unless the issue is unarguably unpreserved.

Having sufficiently admonished, we now focus on the constitutional question. Under the Fourth Amendment, a stop based on an officer's observation of a traffic violation becomes unlawful "if it is prolonged beyond the time reasonably required to complete the mission" of the traffic stop. Rodriguez v. United States , --- U.S. ----, 135 S. Ct. 1609, 1612, 191 L.Ed.2d 492 (2015) (citation and brackets omitted). Accordingly, the Fourth Amendment prohibits the extension of a stop beyond the point at which "tasks tied to the traffic infraction are-or reasonably should have been-completed." Id. at ----, 135 S. Ct. at 1614. Any measurable extension of the stop is impermissible. Id. at ----, 135 S. Ct. at 1615.

In Rosales , 291 Or. App. 762, 423 P.3d 112, we addressed whether a dog sniff had unlawfully extended a traffic stop for purposes of the Fourth Amendment. In that case, the defendant was a passenger in a vehicle that was stopped for traffic infractions by a Coos Bay police officer, one reserve officer, and their drug dog. Id. at 764, 423 P.3d 112. Upon contact with the driver, the police officer discovered that the driver did not have insurance. The officer returned to his car and gave the reserve officer the documentation needed to issue a citation and instructed the reserve officer to write the citation. While the reserve officer was writing the citation, the officer took the dog around the vehicle. While the dog sniff was taking place, the reserve officer stopped writing the citation for roughly 30 seconds to provide cover to the officer and the dog. The defendant remained seated in the car during the sniff. The dog alerted when near the passenger door and led the officer to believe that controlled substances were in the car. The driver was removed from the car, where he was patted down and then instructed to sit on the curb. The same procedure occurred with the defendant, with whom the officer had not previously spoken beyond possibly saying hello. The officer then searched the car, found the defendant's purse on the floor of the car, and located controlled substances within the defendant's purse. Id. at 765, 423 P.3d 112. We held that, under the Fourth Amendment, the defendant was seized when the car was stopped and that,

"[b]ecause the mission of a traffic stop may involve determining whether to issue a ticket, making ordinary inquiries incident to the stop, and taking certain precautions to ensure officer safety, the stop may last long enough to allow an officer to engage in those activities. But those 'highway and officer safety' interests are 'different in kind from the Government's endeavor to detect crime in general or drug trafficking in particular.' Accordingly, an officer may not conduct investigations unrelated to the stop's mission 'in a way that prolongs the stop, absent *** reasonable suspicion.' A dog sniff is aimed at detecting 'ordinary criminal wrongdoing' and is 'not an ordinary incident of a traffic stop.' Thus, if a dog sniff is conducted without reasonable suspicion of criminal activity, the 'critical question' that must be asked in determining whether the sniff violates the Fourth Amendment is whether the sniff 'adds time to' the stop."

Id. at 769, 423 P.3d 112 (internal citations omitted; asterisks in original). We concluded the analysis in Rosales by explaining that because the officer who was issuing the citation stopped processing the traffic violation for a measurable time-30 seconds-to provide cover while the dog sniff was conducted, the dog sniff "extended the duration of the traffic stop, which under the Fourth Amendment, constituted a seizure of defendant." Id. at 769-70, 423 P.3d 112.

Here, as in Rosales , the " 'critical question' that must be asked in determining whether the sniff violates the Fourth Amendment is whether the sniff 'adds time to' the stop." 291 Or. App. at 769, 423 P.3d 112 (quoting Rodriguez , --- U.S. ----, 135 S. Ct. at 1616 ). The record here, as developed through testimony at the suppression hearing, is subject to multiple competing interpretations. The delay in processing the vehicle stop came about because of the execution of the arrest warrant on the female passenger. Some testimony indicates that she was in custody before the dog was deployed around the vehicle. Other testimony, in contrast, indicates that the dog was deployed while the passenger was being taken into custody.

In the absence of express findings addressing that evidence, we ordinarily would presume that the trial court resolved factual disputes consistently with its ultimate decision-in this case, its ruling denying the motion to suppress. See Ball v. Gladden , 250 Or. 485, 487, 443 P.2d 621 (1968). However, that presumption only applies "in the absence of an indication that the court misapprehended the import of defendant's argument." State v. Ryan , 361 Or. 602, 625, 396 P.3d 867 (2017) ; see also Pereida-Alba v. Coursey , 356 Or. 654, 671, 342 P.3d 70 (2015) (explaining that the Ball presumption "has its limits" and that an implicit finding will not be attributed to a court that never made any findings regarding the factual issue in question). In other words, we attribute a finding of fact only where "we can deduce that the trial court's chain of reasoning must necessarily have included that fact as one of its links." State v. Lunacolorado , 238 Or. App. 691, 696, 243 P.3d 125 (2010), rev. den. , 350 Or. 530, 257 P.3d 1020 (2011).

The trial court's ruling in this case, which was made in 2014 without the benefit of Rodriguez or Rosales , leaves us with some doubt as to whether the court applied the correct Fourth Amendment standard in ruling on the extension issue and, consequently, whether the court necessarily resolved whether the sniff added time to the stop. That is because the court's reasoning appears internally inconsistent-stating both that the stop "certainly was extended" and that "I don't think the stop was extended at any point"-and makes no reference to whether the sniff itself added time:

"The stop certainly was extended, because the officer has to verify what was going on with both of them. Once he found out there was a Felony-Felony Warrant out, he had to take care of that-that situation before he went on to take care of a minor traffic violation. And, so I don't think the stop was extended at any point."

Under the circumstances, we vacate and remand for the trial court to expressly address the Fourth Amendment standard regarding the unlawful extension of a stop, and for any additional factfinding that may be necessary.

Vacated and remanded for reconsideration of defendant's Fourth Amendment argument; otherwise affirmed.

      As noted earlier, the state did not respond on the merits to defend the trial court's expressed reasoning.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    In the MATTER OF E. M. P., a Person Alleged to have Mental Illness.
    State of Oregon, Respondent, v. E. M. P., Appellant.
    A168965
    Court of Appeals of Oregon.
    Submitted May 3, 2019. June 19, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

Appellant seeks reversal of a judgment committing him to the Mental Health Division for a period not to exceed 180 days based on the court's determination that he was a person with a chronic mental illness under the expanded criteria set forth in ORS 426.005(1)(f)(C). The state concedes that the evidence is legally insufficient to support the involuntary commitment and that the judgment should be reversed. We agree, accept the state's concession, and reverse the commitment judgment.

Reversed.

      The judgment also states that, "although [appellant] is able to provide for his basic personal needs, outside the institutional setting[,] [he] is not now receiving such care as is necessary for his health or safety." It is unclear whether the trial court intended that statement to form a separate basis for the commitment, under the basic needs provision, ORS 426.005(1)(f)(B). We agree with appellant's argument, and the state's concession, that, in any event, there was not sufficient evidence to support a commitment under that provision.


text:
    GILBERT, Charles E. v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
    A166932
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    HIGH FOREST GAS, LTD. et al v. N&S OIL et al and Wafford et al
    A165712
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    HUBBARD, Justin v. BERGER
    A167486
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    HUDSON, Frank Gronroos v. CAIN
    A165180
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    In the MATTER OF D. W. W., a Child.
    Department of Human Services v. D. W. W.
    In the Matter of S. M. W., a Child.
    Department of Human Services v. D. W. W.
    A169415 (A169416)
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    In the MATTER OF E. S., a Child.
    Department of Human Services v. N. P.
    A169397
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    In the MATTER OF R. N. D., a Person Alleged to have Mental Illness.
    State v. R. N. D.
    A168461
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    JAY, Derrick Jermaine v. KELLY
    A165798
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    MILLER, Robert James v. KELLY
    A169011
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    REILLY v. KOUNINE et al
    A166936
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. BAKER, Eric Thomas
    A165411
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. CRISS, Tyrone Lamonte
    A165721 A165722
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. JONES, Theo Willey
    A167306
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. CHRISMAN, Cody Clayton
    A166372
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. READ, Jennifer Marvelle
    A167664
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. STANGER, Nickolus Victor, aka Stanger, Nickolas Victor
    A165121
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. BANUELOS, Michael Frank
    A167939
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. BARKER, James Merlin
    A166266
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. BAROCIO-GARIBAY, Juan
    A167282
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. BOLDA, Adam Michael, aka Bolda, Adam, aka Bolda, Adam M.
    A166202 A166203
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. BROUGHMAN, James Henry
    A166023
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. CAGLE, Glenn George
    A165884
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. CHELEMEDOS, Michael Andrew
    A168508
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. DEWEESE, Carl Abdullah, aka Deweese, Carl Abduallah
    A168029 A168030 A168031
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. GONZALES, Nicolas Joseph, aka Miller, Nicolas Joseph
    A166902
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. HOUSTON, David Michael, aka Houston, David
    A167108 A167109
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. MARSHALL, Gina M.
    A166165
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. PANKRATZ, Sarah Ann
    A167287
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. REEG, Robert Thomas
    A166982
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. SHANNON, Nick Russell, aka Nichols, Ernest Russell
    A166794
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. STOCKMAN, Jason Robert
    A165585
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. STONE, Timothy W.
    A166761
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. VICHI, David Arthur
    A166294
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. VIRAMONTES, Ricardo
    A165766 A165767
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. WADSWORTH, Lenora Rose
    A165935
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STATE v. WILLIAMS, Joshua Paul
    A167802
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    STUBBLEFLELD, Daniel Blaine v. KELLY
    A167633
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    In the MATTER OF B. V. L., a Person Alleged to have Mental Illness.
    State v. B. V. L.
    A167984
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    STATE v. FALLERT, Hannah Mae
    A165937
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF L. J., a Child.
    Department of Human Services v. J. J.
    A169384
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    TETUKEVICH, David v. KELLY
    A165382
    Court of Appeals of Oregon.
    May 22, 2019
    Affirmed without opinion.


text:
    BAKER, Donald v. CAIN
    A166126
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF J. D. R., a Child.
    Department of Human Services v. H. R. B
    In the Matter of R. W. R., aka R. B., a Child.
    Department of Human Services v. H. R. B.
    In the Matter of S. A. R. B., a Child.
    Department of Human Services v. H. R. B.
    A169348, (A169353), (A169349), (A169354), (A169351), (A169352)
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF J. W., a Child.
    Department of Human Services and J. W. v. C. E.
    A169627
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF K. G., a Child.
    Department of Human Services v. L. M. G. D. T. C.
    A169350(A169840)
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF M. A. H., a Person Alleged to have Mental Illness.
    State v. M. A. H.
    A168364
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF M. C, aka M. M. C, a Child.
    Department of Human Services v. D. L. C, aka D. C. W., aka D. L. C.-W.
    A169417
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF M. K., a Child.
    Department of Human Services v. M. A. K., Jr.
    In the Matter of D.-L. H. K., a Child.
    Department of Human Services v. M. A. K., Jr.
    In the Matter of H. K. S., aka B. G. K., aka B. G. S., a Child.
    Department of Human Services v. M. A. K., Jr.
    In the Matter of R. K., a Child.
    Department of Human Services v. M. A. K., Jr.
    A167656 A167657 A167658 A167659
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF R. L. R., a Person Alleged to have Mental Illness.
    State v. R. L. R.
    A168129
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF T. W., a Person Alleged to have Mental Illness.
    State v. T. W.
    A168088
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF the COMPENSATION OF COX, Harold D., Claimant.
    Cox v. Fred Meyer Stores, Inc.
    A168660
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    In the MATTER OF the MARRIAGE OF DAWKINS and Dawkins
    A166798
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    MCCAFFERY, David William v. TAYLOR
    A163836
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    MCGRANAHAN, Leslie E. v. CAIN
    A165984
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    MCGUIRE v. STEELE
    A168128
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    METROFAB, INC. v. ANDERSEN AND FARMERS INSURANCE EXCHANGE
    A166832
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    SCHMIDT v. SUMMIT FUNDING, INC. et al
    A166872
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    STATE v. BERNAL, Antone Dean
    A164359
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    STATE v. CHAVEZ, Ronald Lee
    A166448
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    STATE v. FLANAGAN, Robert Keith, aka Flanagan, Robert, aka Flanagan, Robert K
    A165868
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    STATE v. KNISLEY, Kori Lee
    A165695 A165858
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    STATE v. MARTIN, Luke Anthony
    A165893
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    STATE v. MOFFETT, Jason Westly
    A164782
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    STATE v. READ, Jennifer Marvelle
    A165519
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    STATE v. SCHWARZ, Wolfgang
    A166898
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    STATE v. SHAMET, Barbara Jean
    A166895
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    STATE v. WILSON, Jason Scot
    A165701
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


text:
    WEST, Randy E. v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
    A165541
    Court of Appeals of Oregon.
    May 30, 2019
    Affirmed without opinion.


author: HARRIS, Judge:

text:
    Luis LUNA, Appellant, v. Maria LUNA, Appellee.
    No. 20170994-CA
    Court of Appeals of Utah.
    Filed April 11, 2019
    Daniel F. Bertch, Salt Lake City, Attorney for Appellant
    Joel D. Taylor and Matthew D. Church, Salt Lake City, Attorneys for Appellee
    Judge Ryan M. Harris authored this Opinion, in which Judges Kate Appleby and Jill M. Pohlman concurred.
    Opinion
   HARRIS, Judge:

¶ 1 While giving her brother Luis Luna (Luna) a ride to work, Maria Luna (Sister) was involved in an automobile accident in which Luna was injured. Luna sued Sister for negligence, yet during depositions testified unequivocally that the traffic light was green in Sister's favor. Sister contends-and we agree-that this testimony constitutes a binding judicial admission that Luna cannot contest at trial, and we therefore conclude that the district court properly entered partial summary judgment against Luna on the issue of whether the light was green. While this fact alone does not entitle Sister to complete summary judgment, the court's entry of judgment in Sister's favor was appropriate on the facts of this case, where Luna produced no evidence of negligence other than potential testimony about the color of the traffic light. We therefore affirm the district court's summary judgment order, as well as a challenged discovery order.

BACKGROUND

¶ 2 Sister was giving Luna a ride to work one morning when their vehicle was struck by another driver (Driver) at an intersection controlled by a traffic light. Because Driver and Sister each entered the intersection perpendicular to one another, the light could not have been green for both of them. Luna sustained injuries from the accident, and eventually brought suit against both Driver and Sister for negligence and other related claims. In his complaint, Luna alleged that Driver had caused the accident by running a red light or, in the alternative, that Sister had caused the accident by running a red light. Luna also alleged that both drivers had failed to maintain a proper lookout and failed to yield to the other vehicle.

¶ 3 All parties to the suit were deposed, and Sister and Driver each testified that they had the green light when they entered the intersection. Luna was deposed twice and, during each deposition, his testimony was given through a Spanish-language interpreter. Each time, he testified-repeatedly-that the light was green for Sister when she entered the intersection. At his first deposition, he testified as follows:

Q. Did you see the color of the light as you were entering the intersection?
A. Yes. It was green.
Q. How long had the light been green before you entered the intersection?
A. Since we went through it until it hit us.
Q. How many seconds had the light been green before you entered the intersection?
A. I would not be able to tell you.
....
Q. You don't know how far back you were from the intersection when you first noticed the color of the light?
A. I will repeat myself. It was green when we went through it.
....
Q. So what I want to know is exactly where was your car in relation to the intersection when you first noticed the color of the light. ... I'm just trying to figure out where you were when you first noticed the light.
A. Well we saw it-we were driving, we saw that it was green, and when we passed through the intersection it was already green. We were okay.
....
Q. Was the light always green from the moment that you first saw it until the moment of the impact?
A. Yes.

¶ 4 Three weeks later, Luna was again deposed. Though he stated that he did not give the road the same attention as he would have had he been the one behind the wheel, he again emphasized that the light was green when Sister entered the intersection:

Q. Now based on your previous testimony the last time we were here, you were absolutely adamant that the light was green as you proceeded through the intersection; is that correct?
A. Yes.
....
Q. You were in the car the day the accident happened; correct?
A. Yes, of course.
Q. You saw the light was green as you were going through the intersection; correct?
A. Well, I'll tell you again, yes, I was looking, but I wasn't looking to see who else was looking. I was merely focused on the idea that I was headed to work. So I'll tell you again, all I had on my mind was what I would be doing when I got to work, and that's what occupied my thinking. ... Any other type of question I couldn't tell you, but my attorney could tell you.
Q. Did you see the light green as you proceeded through the intersection?
A. Yes.

¶ 5 During the second deposition, defense counsel asked Luna about his opinion of Sister's driving on the day in question:

Q. So in terms of the accident, do you have any problems with the way your sister operated her vehicle on the day of the accident?
[Luna asks for the question to be repeated]
A. Well, no. To me, I mean, with all that's happened to me, and I'll tell you again, things have changed. So it was one thing before and now it's different in terms of how I am. Everything has changed for me, and that's why I am putting forth this suit with [Sister]. I don't think I could say anything more. I would defer to my attorney.
Q. Well, you just answered my question, and I want to just confirm it that you just said that you had no problems with the way [Sister] operated her vehicle on the day of the accident. Is that what you said?
A. Yes.

¶ 6 Luna eventually reached a settlement with Driver, who was then dismissed from the case. Thereafter, Sister filed a motion for summary judgment, arguing that there was no genuine dispute as to material facts between Luna and Sister, because each of them agreed not only that the light was green, but also that Sister was properly operating her vehicle. In opposition to Sister's motion, Luna pointed only to the conflicting testimony of Driver regarding the color of the traffic light, arguing that,

[Luna's] testimony is disputed by [Driver]. ... The jury is no more bound by [Luna's] testimony than [Sister's]. The jury might conclude that [Luna's] testimony was protective of [Sister], and conclude that [Driver] was truthful .... Or the jury might attribute only a small percentage of fault to [Sister].

Luna offered no other evidence to show negligence, attaching only two pages of Driver's deposition testimony in which Driver testified that his light was green. Specifically, Luna offered no evidence that Sister was driving improperly by, for instance, failing to keep a proper lookout, speeding, or driving while distracted.

¶ 7 The district court held a hearing, after which it requested supplemental briefing from the parties on whether some of the statements Luna made in his deposition should be considered binding admissions. Sister argued that Luna's statements were "judicial admissions" that Luna should be precluded from contradicting. Luna acknowledged that he had consistently testified that the light was green, but argued that his testimony was ordinary testimony that a jury should be able to disregard in favor of Driver's account of the relevant events. After oral argument, the district court determined that Luna's deposition testimony-including both his statements about the color of the light as well as his statements about how Sister was driving her vehicle-contained judicial admissions that he was not free to contradict, and that therefore summary judgment was appropriate in favor of Sister.

¶ 8 During the course of the litigation, Luna designated his treating physicians as non-retained expert witnesses who may testify at trial in support of his claims. After some litigation about the propriety of those disclosures, Sister's counsel noticed and took the depositions of two of Luna's treating physicians. The parties were unable to agree on which party, if any, should pay the fees charged by the treating physicians for their time spent in deposition and, after the depositions were taken, Luna filed a statement of discovery issues asking the court to compel Sister to pay those fees. Luna argued that rule 26(a)(4)(B) of the Utah Rules of Civil Procedure required Sister to do so, because she had requested the depositions. Sister objected to the statement, arguing that the rule required a party to pay an expert's professional fee for attending a deposition only if the expert was a retained expert. The court issued an order denying Luna's statement of discovery issues on the same day it issued its grant of summary judgment in favor of Sister.

ISSUES AND STANDARDS OF REVIEW

¶ 9 Luna appeals the district court's orders, and asks us to consider three issues. First, Luna argues that the district court erred in treating his deposition statements as non-rebuttable judicial admissions. "We review the legal questions underlying the admissibility of evidence for correctness and the district court's decision to admit or exclude evidence for an abuse of discretion." Rocky Mountain Power Inc. v. Marriott , 2018 UT App 221, ¶ 18, 437 P.3d 653 (quotation simplified); see also Caponi v. Larry's 66 , 236 Ill.App.3d 660, 176 Ill.Dec. 649, 601 N.E.2d 1347, 1355 (1992) ("The determination of whether a party's statement is sufficiently unequivocal to be considered a judicial admission is a question of law.").

¶ 10 Next, Luna argues that the district court erred in dismissing the entire action, because even if the traffic light is conclusively considered to be green, this fact did not necessarily establish that Sister was not negligent. "[W]e review a district court's grant of summary judgment for correctness, affording no deference to the court's legal conclusions." Poulsen v. Farmers Ins. Exch. , 2016 UT App 170, ¶ 8, 382 P.3d 1058.

¶ 11 Lastly, Luna argues that the district court abused its discretion when it did not require Sister to pay the hourly professional fee charged by Luna's treating physicians for appearing at depositions taken by Sister. "We review discovery rulings for an abuse of discretion." Dahl v. Harrison , 2011 UT App 389, ¶ 11, 265 P.3d 139, abrogated on other grounds by R.O.A. Gen., Inc. v. Chung Ji Dai , 2014 UT App 124, 327 P.3d 1233.

ANALYSIS

I

¶ 12 First, Luna argues that the district court erred by deeming conclusive-as non-rebuttable judicial admissions-Luna's sworn deposition testimony that the traffic light was green as Sister drove into the intersection and that he had no concerns with the manner in which Sister was operating her vehicle. Luna asserts that his testimony should be treated as ordinary evidence that a factfinder is free to ignore in favor of other competent evidence. In resolving this issue, we first consider, under Utah law, whether and under what circumstances a party's testimony may be deemed a non-rebuttable judicial admission. We then analyze the two statements at issue and conclude that Luna's statement that "the light was green" is a conclusive judicial admission, but that Luna's statement about Sister's driving does not qualify as such.

A

¶ 13 Before beginning our analysis, we consider it necessary to carefully frame the question presented in this case. Here, Luna is not seeking to alter or change his deposition testimony, and therefore we are not confronted with the question of whether Luna ought to be permitted to contradict his deposition testimony with his own affidavit or testimony. Whether a party may alter his or her own deposition testimony with a later-filed contradictory affidavit in an attempt to create a factual issue is a question with which Utah appellate courts have already grappled. See, e.g. , Webster v. Sill , 675 P.2d 1170, 1172-73 (Utah 1983) (stating that "when a party takes a clear position in a deposition, that is not modified on cross-examination, he may not thereafter raise an issue of fact by his own affidavit which contradicts his deposition, unless he can provide an explanation of the discrepancy"); Gaw v. Department of Transp. , 798 P.2d 1130, 1140-41 (Utah Ct. App. 1990) (applying Webster and stating that a party may vary his deposition testimony if he has an explanation for doing so that is "plausible"). In both of these cases, the question presented is one of admissibility: whether a party opposing summary judgment is allowed to create an issue of fact by presenting his or her own affidavit at odds with his or her previously-rendered deposition testimony.

¶ 14 That is not the question at issue here, because Luna is content with the state of his deposition testimony and makes no effort to alter it. Instead, Luna seeks to introduce evidence from a different witness-rather than from his own mouth-to call into question his own testimony. This case therefore presents a distinct issue: where a party either does not wish to, or is not allowed to, change a factual admission made during a deposition, what is the evidentiary effect of that admission? And, specifically, should that party's admission be deemed conclusive, such that the party will not be allowed to introduce evidence from other sources to contradict it?

¶ 15 In Utah, as in other jurisdictions, a party's admission of fact in a pleading is normally treated as a conclusive admission that the party is not later permitted to contradict, even with evidence from other sources. See Baldwin v. Vantage Corp. , 676 P.2d 413, 415 (Utah 1984) ("An admission of fact in a pleading is a judicial admission and is normally conclusive on the party making it."); 2 McCormick on Evidence § 257 (7th ed. 2016) (stating that pleadings "are used as judicial and not as evidentiary admissions, and they are conclusive until withdrawn or amended"); 29A Am. Jur. 2d Evidence § 788 (2d ed. 2019) ("Stipulations and admissions in the pleadings are generally binding on the parties and the court."). Statements made in depositions are not exactly the same thing as statements made in pleadings, and no Utah court has yet given definitive guidance about whether, and under what circumstances, a party will be conclusively held to statements he makes in a deposition.

¶ 16 Commentators and courts in other jurisdictions have directly addressed the issue, though, and have identified two basic approaches. See 2 McCormick on Evidence § 258. Some jurisdictions treat the sworn testimony of a party like that of any other witness, allowing parties to contradict their own statements with the testimony of other witnesses. Id. ; see also, e.g. , Whitmire v. Ingersoll-Rand Co. , 184 Cal.App.4th 1078, 109 Cal.Rptr.3d 371, 379-80 (2010) ("[N]either a party's deposition testimony nor its responses to interrogatories constitute incontrovertible judicial admissions of a fact that bar the party from introducing other evidence that controverts the fact." (quotation simplified)); D.R. Horton, Inc.-Denver v. D&S Landscaping, LLC , 215 P.3d 1163, 1170 (Colo. App. 2008) (stating that deposition testimony "is not a judicial admission absolutely binding on that party" and may be contradicted by the party who gave it (quotation simplified)). But other jurisdictions consider a party's sworn deposition testimony to be binding on that party, provided that the statements are unequivocal and made about facts within the party's knowledge. 2 McCormick on Evidence § 258 ; see also , e.g. , Hansen v. Ruby Constr. Co. , 155 Ill.App.3d 475, 108 Ill.Dec. 140, 508 N.E.2d 301, 304 (1987) (stating that unequivocal "assertions made in a deposition constitute binding judicial admissions"); Yockey v. State , 540 N.W.2d 418, 421 (Iowa 1995) (stating that "the rule is well established that" a party will be held to unequivocal deposition testimony "as an informal judicial admission"); Body v. Varner , 107 N.C.App. 219, 419 S.E.2d 208, 211 (1992) (stating that "unequivocal and unambiguous" statements made by a party at a deposition are "judicial admission[s] and are conclusively binding"); Aguirre v. Vasquez , 225 S.W.3d 744, 756 (Tex. App. 2007) (stating that a party's statement at a deposition "will be treated as a true judicial admission" that is "conclusive on the party making it," so long as certain factors are met). Leading legal encyclopedias appear to espouse the second approach. See, e.g. , 29A Am. Jur. 2d Evidence §§ 783 - 84 (stating that "[a] judicial admission is a party's unequivocal concession of the truth of a matter, and removes the matter as an issue in the case," and that "statements made during a discovery deposition" can "be held to be judicial admissions" under appropriate circumstances); 32A C.J.S. Evidence § 1650 (2019) (stating that "a party's deposition testimony may be treated as a judicial admission" under appropriate circumstances). We think the second approach is the better rule, for two reasons.

¶ 17 First, allowing cases to proceed to trial when the two parties do not disagree about the matter to be tried is a poor use of our limited judicial resources. The main function of the judicial system in our society is to act as a forum for the fair and impartial resolution of bona fide disputes between parties. "Private-rights disputes lie at the core of the historically recognized judicial power." Jenkins v. Swan , 675 P.2d 1145, 1149 (Utah 1983) (quotation simplified). To this end, "[t]he courts [have] developed ways of identifying and categorizing particular grievances, techniques for the receipt of information, and principles for arriving at a resolution of these disputes," id. , always with the end goals of justice and truth in mind, see, e.g. , Moler v. CW Mgmt. Corp. , 2008 UT 46, ¶ 12, 190 P.3d 1250 (describing the "truth-finding function of courts"); see also, e.g. , Utah R. Evid. 102 ("These rules should be construed so as to administer every proceeding fairly ... to the end of ascertaining the truth and securing a just determination.").

¶ 18 If two parties do not actually have a dispute about a particular issue, there seems little point in bringing the power of the judicial system to bear to weigh in on the matter. See Utah Animal Rights Coal. v. Salt Lake City Corp. , 371 F.3d 1248, 1262 (10th Cir. 2004) (McConnell, J., concurring) (stating that "courts exist to resolve live controversies, to remedy wrongs, and to provide prospective relief," and are "not debating societies" convened for the purpose of discussing academic questions); State v. Smith , 16 Utah 2d 374, 401 P.2d 445, 447 (1965) (stating that "[t]he resolution of disputes is the purpose for which courts and juries exist"). Judicial resources are finite, and courts have enough to do without spending time and effort on cases in which the litigants do not disagree. Indeed, to allow a party to pursue recovery under a set of facts that he himself has sworn to be false would run counter to the goals courts are designed to further.

¶ 19 Second, there is something unjust about allowing a litigant to convene a trial so that a jury can determine if the facts are other than what the litigant swears they are. As one court put it, a litigant should not be permitted to "make out a better case for himself than he himself has testified to where his case involves facts within his own knowledge." Bell v. Harmon , 284 S.W.2d 812, 816 (Ky. 1955). Allowing otherwise may tempt a party to commit perjury, see Hansen , 108 Ill.Dec. 140, 508 N.E.2d at 304 (explaining that one "frequently stated purpose of the doctrine of judicial admissions is to eliminate the temptation to commit perjury"), "would be tantamount to permitting him to say for his own advantage that his own testimony should be regarded as false, and that of some other witness as true," Bell , 284 S.W.2d at 816, and would open the door for litigants to argue that they should recover despite their own sworn statements to the contrary, see Aguirre , 225 S.W.3d at 757 ("The policy underlying this rule is that it would be unjust to permit a party to recover after it has negated its right to recover by clear, unequivocal evidence."); Hodnett v. Friend , 232 Va. 447, 352 S.E.2d 338, 340-41 (1987) (holding that, with regard to "a statement of fact, [a party] cannot expect a court or jury to believe that he has not told the truth in making the statement" (quotation simplified)); 32A C.J.S. Evidence § 1649 ("[I]t would be absurd and unjust to allow a party to recover after he or she has clearly and unequivocally sworn to facts that defeat his or her cause of action or defense.").

¶ 20 Luna points out that he is allowed to plead his case using alternative theories of recovery, and argues that considering his deposition testimony as conclusive would curtail his ability to plead in the alternative. Modern rules do allow parties to plead alternative theories of relief, see Helf v. Chevron U.S.A. Inc. , 2015 UT 81, ¶¶ 72-74, 361 P.3d 63 (observing that the old rules that did not allow pleading in the alternative "frequently result[ed] in injustice," and that the modern, liberal pleading standards "ha[ve] eliminated this harsh interpretation" and now "allow parties the opportunity to fully adjudicate their claims on the merits" (quotations simplified)), and even allow parties to plead facts in the alternative in cases where the facts are unknown or disputed, see 32 C.J.S. Evidence § 546 ("When a pleader pleads alternatively or inconsistently, such allegations may not be used against the pleader, at least, in the case of alternative fact allegations, where such allegations are made in good faith and based on genuine doubt." (quotation simplified)); 29A Am. Jur. 2d Evidence § 791 ("The pleader states facts in the alternative because he or she is uncertain as to the true facts, so that the pleader is not 'admitting' anything other than uncertainty ...."). But once the potentially disputed factual issues necessitating alternative pleading are resolved, the need for alternative pleading is eliminated. Cf. Helf , 2015 UT 81, ¶ 76, 361 P.3d 63 (stating that "[o]nce the fact-finder and the judge have resolved all factual and legal disputes related to the inconsistent theories of liability, the plaintiff is then entitled to the one remedy (if any) that is supported by the final determination of the law and the facts").

¶ 21 This case illustrates the point. Here, Sister does not assert-and we do not discern-anything inappropriate about the fact that, in his original complaint, Luna pled facts about the color of the light in the alternative. At the time parties file complaints, they may not have all of the facts at their disposal, and may be uncertain as to their true state. At the time Luna filed his complaint, we can perhaps give him the benefit of the doubt about whether he was completely sure about the color of the traffic light at the time Sister entered the intersection. But after discovery was complete, the record contained Luna's sworn deposition testimony, in which he repeatedly and unequivocally stated that the light was green in Sister's favor. At that point, Luna no longer has any colorable basis upon which to plead that the light was anything other than green, and therefore there is no longer any role for "alternative facts."

¶ 22 For these reasons, then, we reject Luna's argument that all statements a party makes at a deposition are nothing more than ordinary evidentiary admissions that can never constitute conclusive judicial admissions. We think the better rule-and the one we adopt here-is that a party's sworn deposition statements, provided certain factors are present, can constitute binding judicial admissions.

B

¶ 23 Next, we consider the precise circumstances under which a party will be conclusively deemed to have admitted a matter in a deposition. Our review of both Utah case law and persuasive authority from other jurisdictions reveals that four factors largely drive the analysis and that, in order to be considered a binding judicial admission, a statement must meet all four of the following criteria.

¶ 24 First, the statement at issue must be made under oath in the course of the current judicial proceeding. See Aguirre v. Vasquez , 225 S.W.3d 744, 756 (Tex. App. 2007). This requirement puts parties on notice of the gravity of their statements and the need to be both thoughtful and forthright in what they say.

¶ 25 Second, the testimony in question must be clear and unequivocal-that is, it must not be ambiguous or susceptible to multiple interpretations, there must be no contention that the party made any mistake in their testimony, and there must not be any rational or sufficient explanation for the discrepancy between the testimony and the pleadings. See id. (noting that "the hypothesis of mere mistake or slip of the tongue must be eliminated" (quotation simplified)). Parties sometimes misspeak, misunderstand, or simply fall prey to the frailties of human memory. See Webster v. Sill , 675 P.2d 1170, 1173 (Utah 1983). Parties testifying through an interpreter, or in a language that is not their first, might be particularly susceptible to providing equivocal testimony. But if a party testifies unambiguously about a fact within the party's personal knowledge, and there exist no concerns that the party failed to understand the question or that the party's testimony is otherwise unreliable, the party rightly should be held to that testimony.

¶ 26 Third, the statement in question must be about a factual issue within the party's personal knowledge, rather than about a matter of opinion, ultimate fact, or legal conclusion.

See Hansen v. Ruby Constr. Co. , 155 Ill.App.3d 475, 108 Ill.Dec. 140, 508 N.E.2d 301, 305 (1987) (stating that "[f]or testimony to be binding, it must also be peculiarly within the knowledge of the deponent"); Yockey v. State , 540 N.W.2d 418, 421 (Iowa 1995) (stating that, to be a judicial admission, a statement at a deposition must be about "a concrete fact, not [about] a matter of opinion, estimate, appearance, inference or uncertain memory" (quotation simplified)); Celli v. Santos , 132 Or.App. 516, 888 P.2d 1067, 1069 (1995) (stating that "[w]hen a party testifies about a series of observations that express matters of opinion, judgment, estimate, inference or uncertain memory, as opposed to concrete facts peculiarly within the party's own knowledge, the court should allow for the obvious possibility of mistake by allowing consideration of all available evidence"). But see Body v. Varner , 107 N.C.App. 219, 419 S.E.2d 208, 211 (1992) (allowing even statements going to ultimate issues like "negligence" to qualify as judicial admissions). Legal conclusions are for courts to determine. And statements about matters of opinion, including statements going to ultimate issues-for instance, whether a party was negligent or whether a party acted reasonably-are not the sort of fact-bound statements that logically lend themselves to being treated as binding admissions.

¶ 27 Finally, giving conclusive effect to the testimony must be consistent with the public policies of conserving judicial resources, preventing perjury, and advancing the quality of justice. See supra ¶¶17-20; see also Aguirre , 225 S.W.3d at 756 (stating that a declaration will not be considered a binding judicial admission unless "the giving of conclusive effect to the declaration will be consistent with the public policy upon which the rule is based" (quotation simplified)). There may exist situations in which the first three factors are met but in which holding a party to his testimony would be unjust or at odds with the policies underlying the rule. Our test provides trial judges with the flexibility to address such (presumably unusual) situations.

¶ 28 Accordingly, we hold that a party's statement will be considered a binding judicial admission only if all of the following criteria are met: (1) the statement is made under oath during the course of the judicial proceeding; (2) the statement is clear and unequivocal; (3) the statement is about a factual matter within the party's personal knowledge (as opposed to a statement offering an opinion or legal conclusion); and (4) giving binding effect to the statement would be consonant with the policies underlying the "judicial admission" rule.

C

¶ 29 Next, we must apply this test to the two categories of statements Luna made during his deposition: (1) his statements that the traffic light was green; and (2) his statement that he "had no problem with" the manner in which Sister operated her vehicle on the day of the accident. Sister seeks to hold Luna to both categories of statements. We agree with Sister that Luna's statements about the color of the traffic light meet the criteria required to be considered judicial admissions and should therefore be considered as such, but we agree with Luna that his statement about the way in which Sister was driving does not meet the criteria.

1

¶ 30 With regard to Luna's statements that the traffic light was green when Sister entered the intersection, we conclude all of the necessary elements are met. Luna acknowledges that the statements were made under oath at a deposition in the course of the judicial proceeding at issue, and does not dispute that the statements concern an almost archetypal matter of fact (whether the light was red or green) that is certainly within the realm of his personal knowledge. Luna argues, however, that his testimony was not sufficiently unequivocal, when taken as a whole, to qualify as a judicial admission. On the facts presented here, we disagree.

¶ 31 When asked about the color of the light, Luna was adamant that it was green for Sister. Indeed, Luna so testified seven different times over the course of his two depositions. At times, Luna even appeared annoyed by the multiple questions about the matter, twice stating: "I will repeat myself. It was green when we went through it." In the portions of the deposition transcript Luna provided, he never expressed the slightest doubt or equivocation about the color of the light. Moreover, Luna did not seek to correct or amend his deposition, nor did he ever file an affidavit seeking to explain away or contradict his testimony. Indeed, by his own admission, Luna's testimony on this point has remained remarkably consistent.

¶ 32 And giving conclusive effect to Luna's testimony regarding the color of the light is consistent with the public policies underlying judicial admissions-conserving judicial resources, preventing perjury, and advancing the quality of justice. Luna and Sister do not have a dispute about the color of the light: they each clearly swore, under oath, that it was green. It makes little sense to convene a jury to consider the matter.

¶ 33 The circumstances presented here constitute a clear example for application of the "judicial admission" rule. Luna testified clearly and unequivocally, under oath in a deposition, about a factual matter well within his personal knowledge. It would be unjust to relieve him of the consequences of this admission. Accordingly, the district court correctly determined that Luna's testimony on this point constituted a judicial admission, and correctly deemed the light "green" for the purposes of adjudicating the dispute between Luna and Sister.

2

¶ 34 We reach a different conclusion, however, with regard to Luna's deposition testimony about the manner in which Sister was operating her vehicle on the day in question. Although that statement was offered under oath in a deposition in this judicial proceeding, it does not meet two of the other elements: the statement was not unequivocal, and-as construed and offered by Sister-it concerned a matter of opinion.

¶ 35 First, when asked if he had "any problems with the way [Sister] operated her vehicle on the day of the accident," Luna's answer was far from clear and unequivocal. His response was: "Well, no. To me, I mean, with all that's happened to me, and I'll tell you again, things have changed. So it was one thing before, and now it's different in terms of how I am." When asked to confirm that he "just said that [he] had no problems with the way [Sister] operated her vehicle on the day of the accident," Luna replied "Yes." Luna was not asked any specific follow-up questions about, for instance, whether Sister appeared distracted, whether she was speeding, or any other particular fact about her driving that day.

¶ 36 In our view, the question posed was not particularly clear. Whether a person has "any problems" with the way someone else is operating a vehicle is a question open to various interpretations. It is not at all clear, from context, whether Luna even understood this question to be asking about potential negligent actions Sister might have taken; this lack of clarity is only heightened by the fact that Luna was testifying through a Spanish-language interpreter. Luna first asked for the question to be repeated, perhaps indicating some confusion about what the question meant, then gave a rather rambling and (at least partially) non-responsive answer. The attorney asking the question tried to restate it, at which point Luna answered in the affirmative. In sum, this particular exchange between lawyer and witness does not leave us with any confidence that Luna was offering knowing testimony about the particulars of Sister's driving that day.

¶ 37 Second, if we construe the question as one asking for Luna's opinion about whether Sister was operating her vehicle in a negligent manner-the only context for which Sister offers it-Luna's answer would be in the nature of an opinion on an ultimate issue, rather than on a particular factual matter within his personal knowledge. Negligence, and the apportionment of negligence in a case where two or more parties may be at fault, are ultimate facts, see, e.g. , Acculog, Inc. v. Peterson , 692 P.2d 728, 730 (Utah 1984) ("The ultimate facts in a comparative negligence case embrace only negligence, causation and the percentages of negligence attributed to plaintiff and defendant."), and these facts are usually best left to a factfinder. Had counsel asked specific follow-up questions about factual matters (was Sister speeding, did Sister appear to be watching the road, was Sister talking on her cellphone, and so on), Luna's answers would constitute factual testimony that might-if all the other factors were satisfied-constitute judicial admissions. But a party's ultimate opinion about whether the other side was negligent is not the sort of matter that will be considered a binding judicial admission.

II

¶ 38 Had we determined that both of Luna's statements were judicial admissions, it would have followed therefrom that summary judgment in favor of Sister is appropriate. But given our ruling that only Luna's statements about the color of the traffic light constitute judicial admissions, we must proceed to the next step: whether it is possible for Luna's case to survive Sister's motion for summary judgment when (a) his statement about Sister's driving is merely an ordinary admission, but (b) it is deemed a conclusive fact that Sister did not run a red light.

¶ 39 Luna correctly points out that, even if his statement that the light was green is considered conclusive, and the factfinder must therefore find that the light was green, that fact alone does not inexorably exonerate Sister from negligence. In certain instances, drivers proceeding through a green light may still be considered to have acted negligently. See, e.g. , Keller v. Martinez , 2014 UT App 2, ¶ 11, 318 P.3d 1147 ("[A] green arrow never permits a driver to proceed carelessly, oblivious to the conditions at hand; the driver must take reasonable precautions to avoid a collision."); see also Model Utah Jury Instructions 2d CV 614 (Utah Judicial Council 2014) (stating that even "the driver with the green light has a duty to use reasonable care to avoid a collision").

¶ 40 Sister acknowledges this point, but argues that the district court's summary judgment ruling should nevertheless be affirmed due to a lack of competent evidence from any source that would indicate that Sister was driving in a negligent manner. As the plaintiff in a negligence action, Luna bore the burden of proof at trial. See Asael Farr & Sons Co. v. Truck Ins. Exch. , 2008 UT App 315, ¶ 12, 193 P.3d 650 ("On issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof." (quotation simplified)). When Sister moved for summary judgment, she "had the initial burden to show through reference to the pleadings, depositions, answers to interrogatories, and admissions on file that there was no genuine issue of material fact concerning [Luna's] claim."See Jones v. Mackey Price Thompson & Ostler , 2015 UT 60, ¶ 28, 355 P.3d 1000 (quotation simplified). Sister met this burden by showing that she and Luna agreed about the facts that led to the accident, that no other fact witness could offer any evidence that Sister was driving negligently, and pointing out that Luna "failed to identify any accident reconstructionist or expert witness to opine" about the cause of the accident or Sister's driving.

¶ 41 Once Sister met her initial burden, the burden shifted to Luna, "who may not rest upon the mere allegations or denials of the pleadings, but must set forth specific facts showing that there is a genuine issue for trial." Id. ¶ 29 (quotation simplified). In opposition to Sister's motion, Luna pointed only to the conflicting testimony of Driver about the color of the light. Luna offered no other evidence to show Sister's negligence. Instead, he offered "mere allegations," not "specific facts showing that there is a genuine issue for trial." Id. In fact, Luna alleges no specific action by Sister that could lead a jury to find her at fault. In both his complaint and his opposition to Sister's motion for summary judgment, Luna's allegations of Sister's negligence-save running a red light-merely recite provisions from Utah's model jury instructions. A plaintiff who "merely state[s] elements of the claimed causes of action and allege[s] in vague and conclusory terms" that defendant committed acts amounting to tortious conduct is not entitled to survive summary judgment. See Rusk v. University of Utah Healthcare Risk Mgmt. , 2016 UT App 243, ¶ 7, 391 P.3d 325 (per curiam).

¶ 42 Because Luna's deposition testimony about Sister's driving is not deemed conclusive, Luna was entitled to the opportunity to present other evidence that might tend to show that-even though she had a green light-Sister was nevertheless driving in a negligent manner. Luna did not take advantage of this opportunity. He produced no evidence-other than Driver's testimony that he had the green light, which testimony is of no use to Luna-that Sister was operating her vehicle in a negligent manner. For this reason, we affirm the district court's grant of summary judgment in favor of Sister on the merits of Luna's claim.

III

¶ 43 Lastly, Luna argues that Sister should be required to pay the fee apparently charged by his treating physicians for the time they spent sitting for depositions taken by Sister. Luna grounds his argument in the text of rule 26(a)(4)(B) of the Utah Rules of Civil Procedure, which states that "the party taking the deposition shall pay the expert's reasonable hourly fees for attendance at the deposition." Sister accuses Luna of taking the language of that provision out of context, because she reads that particular subsection as being concerned only with retained experts, and the depositions in question here were of non-retained experts. Sister points out that the applicable section of the rule dealing with non-retained experts contains no similar provision about allocation of costs, see Utah R. Civ. P. 26(a)(4)(E), and asserts that, in this situation, the rule does not require either party to pay a professional witness fee to non-retained experts, and that therefore the allocation of any such costs is a matter left to the discretion of the district court. We think Sister has the better of this argument.

¶ 44 Rule 26(a)(4) begins, in subsection (A), with a discussion of the disclosure requirements for witnesses who are "retained or specially employed to provide expert testimony." Id. R. 26(a)(4)(A). Specifically, with regard to those witnesses, parties must provide a disclosure that includes, among other things, the expert's "qualifications, including a list of all publications authored within the preceding 10 years" and "a list of any other cases in which the expert has testified ... within the preceding four years," as well as "all data and other information that will be relied upon by the witness in forming" her opinions. Id. Immediately following this list of specific requirements for disclosure of retained experts, subsection (B) appears, and reads, in its entirety, as follows:

Further discovery may be obtained from an expert witness either by deposition or by written report. A deposition shall not exceed four hours and the party taking the deposition shall pay the expert's reasonable hourly fees for attendance at the deposition . 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. The party offering the expert shall pay the costs for the report.

Id. R. 26(a)(4)(B) (emphasis added). Luna focuses solely on the emphasized language, while Sister asks us to consider the provision as a whole, and in context. When viewed in context, we think it evident that subsection (B)-as opposed to subsection (E)-covers only retained experts.

¶ 45 It is clear that subsection (A) deals only with retained experts. The specific disclosure requirements found there differ markedly from the less-stringent disclosure requirements found in subsection (E), the subsection regarding non-retained experts, with regard to whom parties need only disclose "a written summary of the facts and opinions to which the witness is expected to testify." Id. R. 26(a)(4)(E). The first words of subsection (B)-"[f]urther discovery"-are a clear reference to subsection (A), and indicate that a party may obtain more information, in addition to that already disclosed, regarding a retained expert in one of two ways: "by deposition or by written report." Id. R. 26(a)(4)(B). This provision cannot possibly be referring to non-retained experts, because the rule does not contemplate reports from non-retained experts. See id. R. 26 advisory committee notes (stating that, "because a party who expects to offer ... testimony [from non-retained experts] normally cannot compel such a witness to prepare a written report, further discovery must be done by interview or by deposition"); see also Drew v. Lee , 2011 UT 15, ¶ 18, 250 P.3d 48 (stating that "written reports are required only of retained or specially employed experts" (quotation simplified)). Moreover, the entire "report or deposition" choice that is the subject of subsection (B) is one that the rule contemplates will be made only with regard to retained experts. And finally, there is language in subsection (B) that, if it applied to non-retained experts, would render similar language in subsection (E) superfluous. Compare Utah R. Civ. P. 26(a)(4)(B) (stating that "[a] deposition shall not exceed four hours"), with id. R. 26(a)(4)(E) (stating that "[a] deposition of such a witness may not exceed four hours"). Thus, the language in rule 26(a)(4)(B) applies only to discovery from retained experts, and therefore does not assist Luna here, because the depositions Sister took were of Luna's non-retained experts.

¶ 46 The rule that does apply here is the subsection dealing with non-retained experts. See Utah R. Civ. P. 26(a)(4)(E). But, as noted, that subsection does not contain any provision assigning responsibility for payment of any hourly fee the non-retained expert might charge for her time during a deposition. Thus, nothing in any applicable rule requires Sister to pay the hourly fee of any non-retained expert witness that she deposes, and nothing in any applicable rule requires the district court to allocate those fees or related costs to any particular party in any particular way.

¶ 47 Luna argues-and Sister does not dispute-that there exists a "custom" among lawyers in Utah that the party requesting a deposition pay the court reporter's fee for the original deposition transcript, and analogizes that the same rule should hold true for hourly fees charged by non-retained experts. See Caldwell v. Wheeler , 89 F.R.D. 145, 147 (D. Utah 1981) (citing a study indicating that, "[p]rior to 1970, ... the overwhelming custom among lawyers was that the instigating party paid for the original deposition" transcript); see also Kirkham v. Societe Air France , 236 F.R.D. 9, 12 (D.D.C. 2006) (stating that "professional standards in some areas may permit treating physicians to be compensated for time spent as a witness or at a deposition"). But in the posture of this case, questions about the existence of any such "custom" are academic because, even if it were the custom in Utah that the party requesting the deposition of a non-retained expert should pay any costs or fees associated with that deposition, such a custom would not serve to create a mandatory obligation in the absence of a rule so stating, and could conceivably be varied in appropriate cases.

¶ 48 In a situation like this, where no rule mandates the allocation of these fees in any particular way, we default to the general rule that "[district] courts have broad discretion in matters of discovery." Daniels v. Gamma West Brachytherapy, LLC , 2009 UT 66, ¶ 54, 221 P.3d 256 (quotation simplified). While district courts could conceivably take asserted "custom" into account when assessing discovery disputes like this one, there is no indication on this record that the district court abused its discretion in reaching its decision to deny Luna's statement of discovery issues. We disagree with Luna that any provision of rule 26 mandates the opposite result, and Luna has not met his burden of demonstrating that the district court otherwise committed an abuse of discretion.

CONCLUSION

¶ 49 We conclude that the district court properly treated Luna's deposition testimony about the color of the traffic light as a binding judicial admission. However, the district court erred when it treated Luna's equivocal testimony regarding his opinion of Sister's driving that day as a judicial admission. Nevertheless, we affirm the district court's ultimate grant of summary judgment on the merits of this case, because Luna presented the district court with no evidence of Sister's negligence, other than Driver's testimony about the color of the light. Finally, we discern no abuse of discretion in the district court's discovery order.

¶ 50 Affirmed.

      Luna argues that his testimony must be "taken as a whole," but submitted only four pages of his deposition transcript into the record. We are thus unable to review Luna's testimony "as a whole"; our review is necessarily limited to the excerpts contained in the record. Litigants in similar situations-who may want to ask the court to consider deposition testimony "as a whole"-might find it best to err on the side of inclusiveness when attaching deposition excerpts (in four-pages-on-one-page format, if burdening the record is a concern) to summary judgment memoranda.

      The district court based its grant of summary judgment on its determination that both categories of Luna's statements-including his statement that he had no complaints about Sister's driving on the day of the accident-were judicial admissions. Although we reach a different conclusion than the district court did about the binding effect of the second category of statements, "we can affirm summary judgment on any ground or theory apparent on the record, regardless of whether it was identified by the district court as the basis of its ruling." Gardiner v. Anderson , 2018 UT App 167, ¶ 16, 436 P.3d 237. In our view, it is apparent from the record that Luna has no evidence of Sister's negligence other than Driver's testimony about the color of the light, and that Sister is entitled to summary judgment on this alternative ground.

      Not only does this rule differ from the Utah rule regarding retained experts, see Utah R. Civ. P. 26(a)(4)(B), but it also differs from the applicable federal rule, see Fed. R. Civ. P. 26(b)(4)(E) (stating that "unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under" the rule providing for depositions of experts).

      The Utah Rules of Civil Procedure require parties to pay subpoenaed witnesses "the fees for one day's attendance and the mileage allowed by law," Utah R. Civ. P. 45(b)(2), which Sister did in this case. These fees are nominal and calculated on a per diem basis, see Utah Code Ann. § 78B-1-119 (LexisNexis 2018), whereas a professional witness's fee is usually calculated by the hour and may constitute a more significant amount of money.

      To the extent that the text of the rules does not match local custom, that is a matter the parties can bring to the attention of the committee tasked with drafting and amending the rules.