Stevens-Henager College V. Eagle Gate College, Provo College
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Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 2009 Stevens-Henager College v. Eagle Gate College, Provo College, Mosese Iongi, Trevor Smith, Wallace Rogers, Richard Horwitz, Steven Todd Knecht, and Jana Miller : Brief of Appellee Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca3 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Thomas R. Karrenberg, Jennifer R. Eshelman; Anderson and Karrenberg; Nathan B. Wilcox; Clyde Snow Sessions and Swenson; Attorneys for Appellees. Robert E. Mansfield, Troy L. Booher; Snell and Wilmer LLP; Attorneys for Appellant. Recommended Citation Brief of Appellee, Stevens-Henager College v. Eagle Gate College, No. 20090815 (Utah Court of Appeals, 2009). https://digitalcommons.law.byu.edu/byu_ca3/1917 This Brief of Appellee is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. UTAH COURT OF APPEALS STEVENS-HENAGER COLLEGE, Plaintiff/Appellant, Case No. 20090815 vs. EAGLE GATE COLLEGE, PROVO Appeal from the Third District Court, COLLEGE, MOSESEIONGI, Salt Lake County, The Honorable TREVOR SMITH, WALLACE Robert Faust ROGERS, RICHARD HORWITZ, District Court No. 040921860 STEVEN TODD KNECHT, and JANA MILLER, Defendants/Appellees. BRIEF OF APPELLEES EAGLE GATE COLLEGE, PROVO COLLEGE AND JANA MILLER SNELL & WILMER ANDERSON & KARRENBERG Robert E. Mansfield Thomas R. Karrenberg (#3726) Troy L. Booher Jennifer R. Eshelman (#9155) 15 West South Temple, Suite 1200 50 West Broadway, Suite 700 Salt Lake City, Utah 84101 -1004 Salt Lake City, Utah 84101 -2035 Telephone: (801) 534-1700 Counsel for Plaintiff/Appellant Stevens-Henager College CLYDE SNOW & SESSIONS Nathan B. Wilcox (#6685) 201 S. Main Street, #1300 Salt Lake City, Utah 84111 Counsel for Defendants/Appellees Eagle Gate College, Provo College and Jana Miller FILED UTAH APPELLATE COURTS APR 22 2010 UTAH COURT OF APPEALS STEVENS-HENAGER COLLEGE, Plaintiff/Appellant, Case No. 20090815 vs. EAGLE GATE COLLEGE, PROVO Appeal from the Third District Court, COLLEGE, MOSESEIONGI, Salt Lake County, The Honorable TREVOR SMITH, WALLACE Robert Faust ROGERS, RICHARD HORWITZ, District Court No. 040921860 STEVEN TODD KNECHT, and JANA MILLER, Defendants/Appellees. BRIEF OF APPELLEES EAGLE GATE COLLEGE, PROVO COLLEGE AND JANA MILLER SNELL & WILMER ANDERSON & KARRENBERG Robert E. Mansfield Thomas R. Karrenberg (#3726) Troy L. Booher Jennifer R. Eshelman (#9155) 15 West South Temple, Suite 1200 50 West Broadway, Suite 700 Salt Lake City, Utah 84101-1004 Salt Lake City, Utah 84101-2035 Telephone: (801) 534-1700 Counsel for Plaintiff/Appellant Stevens-Henager College CLYDE SNOW & SESSIONS Nathan B. Wilcox (#6685) 201 S. Main Street, #1300 Salt Lake City, Utah 84111 Counsel for Defendants/Appellees Eagle Gate College, Provo College and Jana Miller TABLE OF CONTENTS Page STATEMENT OF JURISDICTION 1 ISSUES PRESENTED AND STANDARD OF REVIEW 1 DETERMINATIVE PROVISIONS 4 STATEMENT OF THE CASE 7 I. Nature of the case 7 II. Course of Proceedings & Statement of Facts 9 A. Plaintiff s Complaint 9 B. Scheduling Orders and Plaintiffs Motion to Compel 11 C. The First Motion for Summary Judgment 14 D. Plaintiffs Motion for Relief From or For Reconsideration of the Court's Order Granting Summary Judgment 17 E. The Eagle Gate Parties' Motion to Strike the Preliminary Expert Report ofBradTownsend 18 F. The Eagle Gate Parties' Second Motion for Summary Judgment 19 G. The Eagle Gate Parties' Motion in Limine 20 SUMMARY OF ARGUMENT 20 ARGUMENT 22 I. The Trial Court Properly Granted the First Motion for Summary Judgment 22 A. Plaintiff Failed to Substantiate Its Damages Through Timely Expert Testimony 23 B. Plaintiff Failed to Present Evidence of the Fact of Damages Through Non-Expert Testimony 26 i Carol Gastiger's Testimony 30 Vicki Dewsnup's Testimony 33 Carl Barney's Testimony 36 II. The Court Correctly Ordered Plaintiffs Belated Expert Report to be Stricken and Was Well Within Its Discretion to Refuse to Allow It 38 III. Regardless of Its Decision on Summary Judgment, the Trial Court Correctly Excluded Evidence of Damages 43 IV. The Court Properly Granted the Second Motion for Summary Judgment On Plaintiffs CFAA Claim 43 CONCLUSION 45 CERTIFICATE OF SERVICE 46 ADDENDUM OF EXHIBITS 47 ii TABLE OF AUTHORITIES Cases Page Anderson Development Co. v. Tobias, 2005 UT 36, 116 P.3d 323 29-30 Bodell Const. Co. v. Robbins, 2009 UT 52, 215 P.3d 933 2 Brown v. Jorgensen, 136 P.3d 1252, 1258 (Utah Ct. App. 2006) 32, 36 Diversified Holdings, L.C. v. Turner, 2002 UT 129, 63 P.3d 686 4 Kibatrick v. Wiley, Rein & Fielding, 37 P.3d 1130, 1146 (Utah 2001) 35, 37 Lee v. Langlev, 2005 UT App 339, 531 Utah Adv. Rep. 4 4 Loporto v. Hoegemann, 1999 UT App 175, 982 P.2d 586 42 McKee v. Williams, 741 P.2d 978 (Utah Ct. App. 1987) 42 Normandeau v. Hanson Equip., Inc., 2007 UT App 382, 174 P.3d 1 (rev'd on the Grounds, 2009 UT 44, 215 P.3d 152) 4 Posner v. Equity Title Ins. Agency, 2009 UT App 347, 222 P.3d 775 2, 24-25, 39 Renegade Oil, Inc. v. Progressive Cas. Ins. Co., 2004 UT App 356, 101 P.3d 383 ....28-29 Schmitz v. Yukon-Koyukuk School Dist, 147 P.3d 720, 727 (Alaska 2006) 24 Sohm v. Dixie Eve Center, 2007 UT App 235, 166 P.3d 614 27-28 Truegreen Co., L.L.C. v. Mower Bros., Inc., 199 P.3d 929, 934 (Utah 2008) 34-35 Western Water, LLC v. Olds, 2008 UT 18, 184 P.3d 578 1-2 Statutes Utah Code Ann. §§ 78A-4-103(2)(a) 1 Utah Code Ann. §§ 78-A-4-103(2)(j) 1 iii Rules Utah R. Civ. P. 16 4 Utah R. Civ. P. 26 4 Utah R. Civ. P. 37 5, 39 Utah R. Civ. P. 37(b)(2) 39 Utah R. Civ. P. 37(b)(2)(B) 39 Utah R. Civ. P. 37(b)(2)(C) 39 Utah R. Civ. P. 37(f) 39 18 U.S.C.A. § 1030(a)(5)(b)(2003) 6,43 18 U.S.C.A. § 1030(g) (2003) 6, 43 iv STATEMENT OF JURISDICTION This Court has jurisdiction pursuant to Utah Code Ann. § 78A-4-103(2)(a), 103(2)0. ISSUES PRESENTED AND STANDARD OF REVIEW Issue No. 1 1. Whether the trial court correctly granted partial summary judgment dismissing Plaintiffs claims for damages against Eagle Gate College, Provo College and Jana Miller (collectively "the Eagle Gate Parties") where Plaintiff failed to produce evidence to substantiate its damages. This issue turns on whether Plaintiff submitted evidence sufficient to raise a genuine issue of material fact as to whether Plaintiff could present any evidence that it suffered damages as a result of the alleged actions of the Eagle Gate Parties. Standard of Review A grant of summary judgment is reviewed for correctness. See, e.g., W. Water, LLC v. Olds, 2008 UT 18, f 14, 184 P.3d 578. Issue No. 2 2. Whether the trial court correctly ordered that Plaintiffs untimely expert report be stricken and, on a related note, acted within its broad discretion in refusing to allow Plaintiff to file an expert report approximately nine months after the deadline established by the operative scheduling order.1 1 Plaintiff has framed this issue as a subsequent ruling based at least in part upon the trial court's earlier ruling granting the Eagle Gate Parties' Motion for Summary 1 Standard of Review A decision to strike an expert report submitted after expiration of the established deadline is reviewed both for correctness and abuse of discretion. Posner v. Equity Title Ins. Agency, Inc., 2009 UT App 347, \ 8, 222 P.3d 775; Bodell Constr. Co. v. Robbins, 2009 UT52,lfl7,215P.3d933. Issue No. 3 3. Whether the trial court correctly granted partial summary judgment dismissing Plaintiffs claim for injunctive relief under the Federal Computer Fraud and Abuse Act when Plaintiff failed to present evidence of damages in the amount of $5,000 the threshold amount for such a claim. This issue turns on whether Plaintiff presented sufficient evidence to substantiate damages aggregating at least $5,000 in value, the statutory threshold for a civil action under the CFAA. Standard of Review A grant of summary judgment is reviewed for correctness. See, e.g., W. Water, 2008 UT18,H14. Judgment. Actually, this issue is entirely separate and distinct from the trial court's earlier ruling. Plaintiff designated its expert and served its expert report approximately nine months too late and after the hearing on the Eagle Gate Parties' Motion for Summary Judgment; that is why it was stricken. 2 Plaintiff has also framed this issue as a subsequent ruling based at least in part upon the trial court's earlier ruling granting the Eagle Gate Parties' Motion for Summary Judgment. In reality, the trial court's decision granting summary judgment for the Eagle Gate Parties on Plaintiffs CFAA claim may stand regardless of the trial court's ruling on the earlier summary judgment motion. While both of the motions for summary judgment were granted for the same reason—Plaintiffs complete failure to substantiate damages— they are separate and distinct and one does not flow from the other.