Prisbrey v. Prisbrey (Mar. 19, 2026)

Case details
Full caption
Leona Maria PRISBREY v. Kent Terry PRISBREY
Country
United States
Jurisdiction
Utah (UT)
Court
Utah Supreme Court
Decided
Mar. 19, 2026
Disposition
Vacated and Remanded
Majority
Mortensen (J.) (unanimous Court)
Prisbrey v. Prisbrey, --- P.3d ---- (2026)2026 UT App 39 © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 787382NOTICE: THIS OPINION HAS NOT BEEN RELEASEDFOR PUBLICATION IN THE PERMANENT LAWREPORTS. UNTIL RELEASED, IT IS SUBJECT TOREVISION OR WITHDRAWAL.Court of Appeals of Utah.Leona Maria PRISBREY, Appellee,v.Kent Terry PRISBREY, Appellant.No. 20250070‐CA|Filed March 19, 2026Fifth District Court, St. George Department, The HonorableKeith C. Barnes, No. 234500039Attorneys and Law FirmsTerry L. Hutchinson and Daniel J. Tobler, St George,Attorneys for AppellantDavid W. Read, Attorney for AppelleeJudge David N. Mortensen authored this Opinion, in whichJudges Gregory K. Orme and Amy J. Oliver concurred.OpinionMORTENSEN, Judge:*1 ¶1 This appeal arises out of a divorce trial betweenLeona Maria Prisbrey and Kent Terry Prisbrey. Leona neverfiled initial disclosures, even when reminded by Kent andthe district court.1 Three weeks before trial, Leona finallysubmitted disclosures, but by this time, the original discoveryperiod and an extension period of discovery had both expired,leaving no opportunity for any discovery. Kent objected tothe disclosures and moved the court to exclude all of Leona'sevidence. The district court deferred the decision to themorning of trial, where the court overruled the objection,allowed the evidence, and then relied on the late‐disclosedevidence to rule against Kent. Kent now appeals, claimingthat the district court exceeded its discretion in overrulingthe objection and allowing the evidence to be used at trial.We agree with Kent's argument, vacate the judgment of thedistrict court, and remand the case for a new trial to beconducted with the evidence excluded.BACKGROUND¶2 Leona and Kent married in Australia in 2014, and theysubsequently moved to Leeds, Utah, to live in a house ownedby Kent (the Leeds Property). The two separated in 2022 andseparately petitioned for divorce in January 2023. The caseswere later consolidated.¶3 Kent filed his answer to Leona's petition on February 8,2023, and he submitted his initial disclosures in December2023. Leona failed to file any initial disclosures. She did,however, move to reopen discovery on October 18, 2023—arequest that the district court granted, allowing discovery tobe conducted until February 28, 2024.¶4 At a conference on April 26, 2024, Kent, who was actingpro se at the time, notified the court that he had asked Leonato provide initial disclosures and financial statements buthad received none. He said he had been assured by Leona'scounsel that those items would be produced in discovery“soon,” but he still had not received anything as of thedate of the conference. Leona's counsel acknowledged that“discovery [was] over” and the “case [was] ripe to moveforward for trial.” The court asked Leona's counsel if initialdisclosures and discovery had been provided, and counselstated that he was “not prepared to speak to that” at thetime. The court responded, “Isn't that kind of a pretty basicquestion ...? Have you provided ... the initial discovery ...or not? It's either yes or no. I think you would know that.”Counsel agreed it was a simple question and said that hewould “comply with” the disclosure requirements set by rule26 of the Utah Rules of Civil Procedure.2 The court then setthe matter for a pretrial conference on May 7.*2 ¶5 At that pretrial conference, Leona's counsel stated thathe would like to set a date for trial. Kent, now representedby counsel, informed the court that he still had not receivedinitial disclosures or a response to his discovery requests.Kent's counsel expressed concern about setting the matter fortrial in the absence of disclosures and responses to repeateddiscovery requests. He further asked that “anything [Kenthas] requested [but not received] be excluded.” Kent's counselassured the court that he could not find “any certificatesof service” indicating that disclosure had been made. Morespecifically, he stated, “My client says he has not received
Prisbrey v. Prisbrey, --- P.3d ---- (2026)2026 UT App 39 © 2026 Thomson Reuters. No claim to original U.S. Government Works.2anything, and so my request was going to be that we mightneed some more time before setting it for trial to clean this up,get that information, and then proceed.” The court continuedthe matter until May 28.¶6 At the pretrial conference on May 28, Leona's counselconceded that initial disclosures had still not yet beenprovided to Kent, but he represented that “a financialdeclaration” would be forthcoming. He did say that therewas “one home at issue” and “any documents” related to itwere “in the possession” of Kent. But Kent's counsel told thecourt that it was “not just the financial declaration” that wasmissing but “the full initial disclosure” was also lacking. Thecourt set the trial date for September 23 and indicated that thedisclosure issue would be addressed at that time.¶7 Less than three weeks prior to trial, on September 3, Leonafinally provided initial disclosures to Kent. On September 9,Kent asked that the belatedly disclosed evidence be excludedfrom trial as untimely under rule 26(d)(4) of the Utah Rules ofCivil Procedure. He argued that Leona disclosed six witnessesand sixty‐five exhibits, noting that her disclosure “was thefirst time, ever, that [she] provided these exhibits or anythingrelated to these exhibits, or named any of these witnesses.”¶8 Leona responded to the objection, arguing that the “vastmajority” of the exhibits she disclosed should have beendisclosed by Kent; that Kent was familiar with or had inhis control the documents, financial records, and materialsshe disclosed; and that Kent had not fully complied withhis discovery obligations. She further asserted that she had“good cause” for the late disclosure because the exhibitswere “integral to resolving issues that [Kent] failed toadequately address in his disclosures.” And she claimedthat the late disclosure was “harmless” because Kent wasaware of or had in his possession “many” of the “financialrecords, communication logs, and property documents” shehad disclosed.¶9 The district court addressed Kent's objection and motion toexclude on the first day of the trial. Leona's counsel explainedthat Leona had “received so little” in the way of disclosurefrom Kent that if her late‐disclosed documents were not“allowed as pretrial disclosures,” then the case could notmove forward because there was “so little disclosed.” Kent'scounsel responded,[O]ne of the bigger issues is going to be [the LeedsProperty] and how much money was put into the homeby both parties during their marriage. That's ... the biggestissue that we have to address, and we didn't receive anyinformation regarding that up until a couple of weeks ago.So whatever [Leona] is claiming that she has put intothe property, we have ... no idea if that's accurate. She'sprovided a very simple sheet stating what she's put intoit. This is information that should have been disclosedmuch earlier in this proceeding. [Kent] was quite diligentin requesting it, filed the discovery request, served that on[Leona]. We brought it up more than once, and now herewe are.We have that information now, very vague, but again, likeI say, the issue is, [Kent] hasn't had a chance to explore thatfurther, or even try to find out whether it's true or not. That'sthe bigger issue.*3 ¶10 Leona's counsel replied, “If the [Leeds Property] isthe core of the issue, we received nothing from [Kent]. We areproviding information that he should have provided but failedto do.” To this, Kent's counsel retorted,[Kent's] position is, it's his home, it'sbeen his home, there was nothing forhim to disclose. That it's true, bothparties contributed some while theylived there, but there would be reallynot much more than what two peoplewould contribute while they lived ina home. So it's not an issue wheresomebody provided so much moneyor a substantial amount to where sheshould have an equitable interest in theproperty. So from [Kent's] perspective,there was nothing to disclose furtherthan just that it has been his premaritalproperty.Leona's counsel reiterated that since the “core issue” was theLeeds Property, she should be allowed to proceed with all thedocuments in her late disclosure.¶11 The court overruled Kent's objection to the late disclosureand denied his motion to exclude the evidence. The courtobserved that it didn't see “any kind of surprise” to Kentgiven his position that the Leeds Property belonged to him.Accordingly, the court said, “[F]or now, I'm going to allow
Prisbrey v. Prisbrey, --- P.3d ---- (2026)2026 UT App 39 © 2026 Thomson Reuters. No claim to original U.S. Government Works.3counsel from each side to present what evidence they feel tobe relevant to the finder of fact, myself.”¶12 In its findings of fact and conclusions of law, the districtcourt determined that the Leeds Property was marital propertybecause Leona had “contributed more than $187,000 of hermoney to [its] renovation, construction, and maintenance.”It made this determination “based on extensive and detailedbank records,” apparently those contained in the disclosuresshe provided to Kent for the first and only time three weeksbefore trial.ISSUE AND STANDARDS OF REVIEW¶13 Kent appeals, arguing that the district court erred inallowing Leona to introduce evidence that was not timelydisclosed as required by rule 26 of the Utah Rules of CivilProcedure. “We review a district court's interpretation of ourrules of civil procedure, precedent, and common law forcorrectness. But in reviewing a district court's determinationwith respect to harmlessness and good cause, our review isnecessarily deferential. This is because a court's decision indiscovery matters is a discretionary call, and we will affirmsuch decisions when the court's discretion was not abused,even if we or another court might have made a differentdecision in the first instance.” Hansen v. Kurry Jensen Props.LLC, 2021 UT App 54, 19, 493 P.3d 1131 (cleaned up); seealso Lunt v. Lunt, 2024 UT App 148, 27, 559 P.3d 73 (“Acourt abuses its discretion only if no reasonable person wouldtake the view adopted by the trial court.” (cleaned up)), cert.denied, 564 P.3d 958 (Utah 2025).3ANALYSIS¶14 As relevant here, rule 26 of the Utah Rules of CivilProcedure requires a party, “without waiting for a discoveryrequest,” to serve on the other party “the name and, if known,the address and telephone number of ... each individual likelyto have discoverable information supporting its claims ordefenses, unless solely for impeachment, ... and ... each factwitness the party may call in its case‐in‐chief and, exceptfor an adverse party, a summary of the expected testimony.”Utah R. Civ. P. 26(a)(1)(A)(i)–(ii). The rule also requires theinitial disclosures to include “a copy of all documents, datacompilations, electronically stored information, and tangiblethings in the possession or control of the party that theparty may offer in its case‐in‐chief.” Id. R. 26(a)(1)(B). Thisdisclosure must be made by a plaintiff “within 14 days afterthe [defendant's] filing of the first answer to that plaintiff'scomplaint.” Id. R. 26(a)(2)(A).*4 ¶15 The sanction for failing to timely provide initialdisclosures is severe. The associated evidence is barred fromadmission at trial unless the district court finds the failureto be harmless or justified by good cause. See id. R. 26(d)(4) (“If a party fails to disclose or to supplement timely adisclosure or response to discovery, that party may not usethe undisclosed witness, document, or material at any hearingor trial unless the failure is harmless or the party shows goodcause for the failure.”). See generally Keystone Ins. Agency v.Inside Ins., 2019 UT 20, 18 n.7, 445 P.3d 434 (“Under a plainlanguage reading of rule 26(d)(4), the burden to demonstrateharmlessness or good cause is clearly on the party seekingrelief from disclosure requirements ....”).¶16 Establishing that the defective disclosures were“harmless” requires more from a party than simply showing“any logical basis, no matter how attenuated, to conclude thatthe opposing party should have been able to cobble togethera prescient picture of the potential evidence or witnesses.”Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54, 44, 493 P.3d 1131 (Mortensen, J., concurring, joined byPohlman, J.). In other words, a defective disclosure cannotbe considered harmless just because the other party ought tohave known that the undisclosed evidence would be used.And showing “good cause,” under the plain language of rule26, requires the party to show why the failure to adequatelydisclose was justified. Utah R. Civ. P. 26(d)(4). Thus, “goodcause” has to mean something more than that the partyneeds the deficiently disclosed information to make its case.Showing good cause requires, at the very least, a party todemonstrate justification for not disclosing information thatit should have been able to disclose. Cf. Keystone, 2019 UT20, 17, 445 P.3d 434 (“Regardless of what Keystone knewor did not know about its damages, it was still incumbenton Keystone to disclose what it had and, more crucially, itsmethod and computation for damages.”).¶17 Here, there is no question that Leona was not timelyin her initial disclosures. The initial disclosures were duein February 2023. And Kent reminded Leona on multipleoccasions that they had not been made, even long after thedeadline had passed. The district court—at Leona's request—reopened discovery and set a deadline of February 28, 2024,for the parties to make disclosures. But even then, Leona didnot make her disclosures. Indeed, she did not submit her initial
Prisbrey v. Prisbrey, --- P.3d ---- (2026)2026 UT App 39 © 2026 Thomson Reuters. No claim to original U.S. Government Works.4disclosures until September 3, 2024—just twenty days beforethe trial and over six months after the disclosures were duepursuant to the extended deadline set by the court.¶18 Leona did not demonstrate harmlessness or good causeto excuse her late disclosures. Nor did the court rule that thelate disclosures were harmless or that her failure was justifiedby good cause.4¶19 Leona has not attempted to argue on appeal that therewas good cause for her late disclosures. She did assert belowthat she had shown good cause because the late‐disclosedmaterial was “integral to resolving issues that [Kent] failedto adequately address in his disclosures.” But just because aparty needs late‐disclosed material to resolve a case, it doesnot follow that the party can demonstrate good cause on thatbasis alone. If this were the standard for showing good cause,rule 26’s timing requirements would be meaningless becausea party could simply assert any evidence should be admittedon the basis of need. Instead of good cause being based onthe late‐disclosing party's need for the material, good causemust be related to the reason that the late disclosure happened.As rule 26 explicitly states, a party is not allowed to use late‐disclosed materials unless “the party shows good cause forthe failure,” not by showing a reason the material is needed.See Utah R. Civ. P. 26(d)(4) (emphasis added). In other words,good cause for the failure to disclose has nothing to do withhaving a good reason to need the material in question.*5 ¶20 Leona implies that her lack of compliance withdisclosure requirements was due to Kent's own lack ofdisclosure. But Kent had made his disclosures, and Leona hasnot pointed to anything in the record to show that they fellshort. And he claimed he had nothing he needed to discloserelative to the Leeds Property—meaning that he was readyto proceed based on what he had disclosed. Moreover, rule26 clearly prohibits one party pointing to another party'salleged failure to comply with disclosure requirements tojustify its own failure. See Utah R. Civ. P. 26(d)(3) (“Aparty is not excused from making disclosures or responsesbecause the party has not completed investigating the case, theparty challenges the sufficiency of another party's disclosuresor responses, or another party has not made disclosures orresponses.”). Accordingly, the rationale of Leona's argument(namely, blaming Kent) is expressly foreclosed by the plainlanguage of the rule.¶21 Leona does argue that the late disclosures were harmlessto Kent because the material in question did not affect theoutcome of the trial, asserting that the “bank records weremerely cumulative of other evidence confirming that bothparties contributed labor and funds to the [Leeds Property's]improvement.” This argument falls flat for at least tworeasons. First, Leona's appellate brief wholly fails to identifywhat this other evidence was. Second, and more importantly,the district court's findings of fact belie this conclusion. Thecourt specifically found, “based on extensive and detailedbank records, that [Leona] contributed more than $187,000 ofher money to the renovation, construction, and maintenance”of the Leeds Property. This leads to but one conclusion ina prejudice analysis: Leona was successful in her claim thatthe Leeds Property was marital property largely because ofthe court's reliance on the late‐disclosed bank records. Wesimply do not see how Kent was not harmed by Leona'snoncompliance with rule 26 given this unequivocal statementof fact from the court.¶22 Leona also suggests that Kent's lack of surprise regardingthe substance of the undisclosed material shows that noprejudice flowed from the late disclosures. We are notpersuaded. This rationale would lead to the conclusion that itis always harmless to forgo initial disclosures if the opposingparty would not be surprised by the material disclosed.This thinking misses the mark. First, noncompliance withdisclosure requirements until three weeks before trialobviously means that the other party—whether surprisedor not—cannot conduct any discovery in response. SeeHansen, 2021 UT App 54, 46, 493 P.3d 1131 (Mortensen,J., concurring, joined by Pohlman, J.) (“By [the plaintiff]not providing initial disclosures until after discovery hadclosed, the defendants had lost their opportunity to conductmeaningful fact discovery.” (cleaned up)). Moreover, it's notan opposing party's lack of surprise that makes late‐disclosedmaterial harmless. Rather, it's the material being used to builda late‐disclosing party's case that makes it harmful. “A partymay well know the content” of the late‐disclosed material soas not to be surprised by it, but the fact that the material willbe used “by the other side in the other side's case‐in‐chiefundoubtedly” will come as a surprise because its content “willdictate how” a party prepares to defend at trial. See Johansenv. Johansen, 2021 UT App 130, 19, 504 P.3d 152. As wehave repeatedly explained,The requirement to provide a summaryof expected testimony is not merelya matter of form. Disclosure ofspecific facts ... is required so that
Prisbrey v. Prisbrey, --- P.3d ---- (2026)2026 UT App 39 © 2026 Thomson Reuters. No claim to original U.S. Government Works.5parties can make better informedchoices about the discovery theywant to undertake or, just asimportant, what discovery they wantto forgo. More complete disclosuresserve the beneficial purpose ofsometimes giving the opposing partythe confidence to not engage in furtherdiscovery. But this is only true if thepotential for surprise is reduced by atleast minimum compliance with therule 26 disclosure requirements.*6 RJW Media Inc. v. Heath, 2017 UT App 34, 25, 392 P.3d956. By blowing off disclosure requirements until it was toolate in the game to be of any benefit to Kent, Leona harmedKent by denying him the opportunity to conduct discovery inan informed manner.¶23 Leona further argues that “[e]ven if disclosure wastechnically late,” the district court properly admitted thefinancial records identified in her late disclosures as“impeachment evidence.”5 She bases this assertion on Kent'salleged testimony that she “contributed ‘zero’ dollars towardimprovements on the Leeds Property.” Leona argues that her“bank statements [identified in her late disclosures] did notintroduce a new theory or previously undisclosed claim,” butthey “simply demonstrated that [she] made purchases—suchas ‘wood for pond’ and ‘cement for walkway’—contradicting[Kent's] categorical claim that she made no contributions.”She asserts that the “trial court specifically found that thesestatements were used to test [Kent's] credibility, not to expand[her] affirmative case.” Leona would have a good point ifthe claims supporting her impeachment argument were true.Unfortunately for her, she has not pointed out where in therecord Kent allegedly stated that she contributed nothingtoward the improvement of the Leeds Property or where thedistrict court found that such an assertion by Kent supportedthe admission of impeachment evidence. Appellate advocacyrequires “attentiveness to presenting a clear picture of factsand argument to [the reviewing] court, which, of course,does not have the benefit of having previously reviewedthe evidence. In particular, appellate advocates must neverassume that it is [the] court's burden to comb the recordfor evidence supporting poorly framed arguments. We havestated this principle on multiple occasions.” Tanner v. Carter,2001 UT 18, 19, 20 P.3d 332. Though it is not ourresponsibility to comb the record, we nevertheless diligentlyverify the accuracy of assertions made in briefing, especiallywhen they are front and center in the controversy.6 We canfind no place in the record where the court admitted thedisputed evidence for impeachment purposes. And we havefound nothing in the record to suggest that Kent ever statedthat Leona contributed “zero” dollars to the Leeds Property.Indeed, the opposite is true. Kent stated that he thought Leona“probably put $30,000 into the home and into rebuildingeverything.” Accordingly, we are left to conclude that Leona'simpeachment argument is simply without any foundation.*7 ¶24 In sum, the district court exceeded its discretionin allowing Leona to present her late‐disclosed evidence. Toput it bluntly, “no reasonable person would take the viewadopted” by the district court in overlooking the latenessof the disclosures. See State v. Valdovinos, 2003 UT App432, 14, 82 P.3d 1167 (cleaned up). And since the latedisclosures prejudiced Kent and were not excused by goodcause, we reverse the district court's determination that theLeeds Property was marital property and remand this matterfor a new trial based on the evidence that was properlydisclosed.CONCLUSION¶25 Given that Leona has not shown good cause for herlate disclosure or that her violation of rule 26 was harmless,the district court exceeded its discretion in allowing theadmission of Leona's late‐disclosed evidence. We thereforevacate the resulting judgment and remand this matter for anew trial to be conducted without that evidence.All Citations--- P.3d ----, 2026 WL 787382, 2026 UT App 39
Prisbrey v. Prisbrey, --- P.3d ---- (2026)2026 UT App 39 © 2026 Thomson Reuters. No claim to original U.S. Government Works.6Footnotes1Because the parties share a common surname, we refer to them by their given names, with no disrespectintended by the apparent informality.2Of course, by that time compliance with rule 26 was impossible as the time period for disclosure hadpassed and discovery had closed. See Utah R. Civ. P. 26(a), (c) (setting out timing for initial disclosuresand discovery).3Kent identifies two other issues on appeal, but they both implicate the single issue articulated above.4While the district court stated that it did not see “any kind of surprise” to Kent in the late disclosures, it didnot specifically address whether the late disclosures were harmless. And the district court made no findingthat even remotely touched on good cause.5By no standard can it be said that initial disclosures being made eighteen months late and less than threeweeks before trial is a mere “technicality.” Rather, such tardiness represents a fundamental disregard for theapplicable rules and for conducting a trial fairly.6It should come as no surprise that in rendering a decision, appellate judges, assisted by their law clerks,carefully read the briefs to verify the accuracy of the propositions asserted, the sources cited, and therepresentation of the record. Leona's brief on appeal has fallen far short of our reasonable expectations. Wenote the following shortcomings as especially troubling:(1) Leona's counsel has not provided a single citation to the record in Leona's brief on appeal. Andcounsel makes some assertions about what happened at trial that, if true, would have had a substantiveimpact on our analysis and the outcome. Without record citations, we don't even have the benefit ofknowing which page in the record is being referred to. Still, we have taken the extra step of doing wordsearches to locate these phantom citations, but to no avail. As a result, the location of key informationthat Leona's counsel represents as being in the record remains a mystery to us.(2) In the recitation of the standards of review, Leona's counsel cites five Utah cases a total of six timesto support his propositions. Of these six citations, four are incorrect for various reasons (e.g., the citedmaterial has nothing to do with the proposition for which the case is cited, the case name is incorrect,or the cited paragraph does not exist).(3) In the argument section, which is just over four pages long, Leona's counsel cites four Utah cases atotal of seven times. Only one citation is correct. The others are deficient in various ways (e.g., wrongcase name, unrelated in any way to the asserted proposition, cited paragraph of the case does notexist, or misquoted the case). Indeed, some of the citations appear to be made out of whole cloth.We realize attorneys find themselves pulled in many directions, but even in the midst of these pressures,we do expect a modicum of compliance with briefing and citation standards. In a case like this, where anysimilarity between the citation in the brief and the material cited appears to be purely accidental, we are leftperplexed as to what happened in the composition process.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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