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March 19, 2026 Get Citation Alerts Download PDF Add Note

OLoughlin v. AESA Enterprises

Court of Appeals of Utah

• Citations: 2026 UT App 41

• Docket Number: Case No. 20231088-CA

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.6K)

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Combined Opinion

2026 UT App 41

THE UTAH COURT OF APPEALS

MARTIN O’LOUGHLIN,
Appellant,
v.
ASEA, LLC; REOXCYN MEDICAL RESEARCH, INC.; REOXCYN
DISCOVERIES GROUP, INC.; REOXCYN INNOVATION GROUP, LLC;
MICHAEL SORENSEN; AND ASEA ENTERPRISES, LLC,
Appellees.

Opinion
No. 20231088-CA
Filed March 19, 2026

Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 190400761

Troy L. Booher and Caroline A. Olsen,
Attorneys for Appellant

H. Scott Jacobson, Graden P. Jackson, and
Axel Trumbo, Attorneys for Appellees Reoxcyn
Medical Research, Inc.; Reoxcyn Discoveries
Group, Inc.; Reoxcyn Innovation Group, LLC; and
Michael Sorensen

Cameron M. Hancock, Justin W. Starr, Michael A.
Eixenberger, and Christopher A. Bates, Attorneys for
Appellees ASEA Enterprises, LLC and ASEA, LLC

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.

ORME, Judge:
O’Loughlin v. ASEA Enterprises

¶1 Martin O’Loughlin was an early investor in ASEA, 1 a
pharmaceutical supplement company. ASEA’s founders, Michael
Sorensen among them, assured O’Loughlin that the company
owned the intellectual property behind its products. But after
O’Loughlin learned that this was not the case, he sued ASEA,
Sorensen, and the company that actually owned the intellectual
property—Reoxcyn. 2 Before trial, ASEA filed a motion in limine
to exclude O’Loughlin’s evidence of damages due to his failure to
initially disclose the methodology for calculating them. The
district court granted the motion in limine and, concluding that
the motion was dispositive, dismissed the case.

¶2 On appeal, O’Loughlin challenges these rulings by the
district court and its award of attorney fees. We affirm the court’s
grant of the motion in limine and dismissal of the case. We also
affirm the court’s attorney fees award to ASEA and its decision to
award fees to Sorensen, but we vacate Reoxcyn’s award. And
because the attorney fees were not originally allocated as between
Sorensen and Reoxcyn, we remand for the district court to
determine the amount due to Sorensen individually.

BACKGROUND 3

¶3 In 2008, Sorensen and his fellow founders courted
O’Loughlin’s investment in ASEA, representing that the new
company would develop pharmaceutical supplements.

1. We refer to the ASEA entities collectively.

2. We also refer to the Reoxcyn entities collectively.

3. In reviewing what is effectively the district court’s grant of
   summary judgment, we recite the facts “in the light most
   favorable to the nonmoving party.” Ockey v. Club Jam, 2014 UT
   App 126, ¶ 2 n.2, 328 P.3d 880 (quotation simplified).

20231088-CA 2 2026 UT App 41
O’Loughlin v. ASEA Enterprises

O’Loughlin eventually invested $100,000 in ASEA in exchange for
a 1% interest in the company. 4 O’Loughlin later claimed that it
was crucial to him that ASEA own the intellectual property
behind its products and that Sorensen and others had assured him
that it did. But years later, O’Loughlin learned that this was not
the case and ASEA had actually been making royalty payments to
license the intellectual property from Reoxcyn. He also learned
that other ASEA founders were linked to Reoxcyn, with Sorensen
serving as Reoxcyn’s CEO.

¶4 O’Loughlin sued ASEA and Reoxcyn, amending the
complaint twice to add Sorensen as a defendant and to raise
additional claims. 5 In his second amended complaint, O’Loughlin
raised thirteen claims. 6 His first cause of action, titled “Breach of
Operating Agreement—§ 48-3a-407(3)(c),” alleged that ASEA had
transferred its intellectual property to Reoxcyn “outside the
ordinary course of [ASEA’s] activities and affairs,” violating the
Utah Code and harming ASEA’s shareholders. The other claims
alleged breach of the duties of loyalty and care, fraudulent
transfer, fraudulent and negligent misrepresentation, interference
with contract, breach of the covenant of good faith and fair
dealing, violation of the Utah Trade Secrets Act, conversion,
unjust enrichment, and civil conspiracy. O’Loughlin directed
some of these claims against ASEA; some against Sorensen; and
some against ASEA, Sorensen, and Reoxcyn (collectively, the

1. O’Loughlin transferred the resultant stocks to three different
   trusts of which he is a trustee. He sued in his capacity as trustee.

2. Several of O’Loughlin’s claims against Sorensen and Reoxcyn
   were dismissed prior to the filing of O’Loughlin’s second
   amended complaint.

3. O’Loughlin raised both direct and derivative claims, though he
   later elected to pursue only the direct claims.

20231088-CA 3 2026 UT App 41
O’Loughlin v. ASEA Enterprises

Defendants). O’Loughlin sought damages as well as declaratory
and injunctive relief. 7

Discovery

¶5 Once discovery began, O’Loughlin filed his initial
disclosures per rule 26(a)(1) of the Utah Rules of Civil Procedure.
The disclosures included a section titled “Computation of
Damages” that stated, “A computation of damages as
contemplated by Rule 26(a)(1) is not available at this time because
said information is in the possession of Defendants.”

¶6 In its first set of discovery requests, ASEA asked
O’Loughlin to “[i]dentify and describe in detail and with
specificity the nature and dollar value of all damages . . . together
with a calculation and methodology used for determining the
alleged damages.” O’Loughlin did not do so and instead objected
to the request, stating, “The point of this legal action is to uncover
facts hidden by [the] Defendants” in order to establish his various
claims and “to determine the damages” incurred.

¶7 But O’Loughlin did not make his first set of discovery
requests for any such information from the Defendants until
December 3, 2021—though fact discovery was set to end on
February 25, 2022. 8 After receiving ASEA’s response—including
its profit and loss statements—O’Loughlin served his expert

1. O’Loughlin later filed a motion to further amend the complaint,
   which the district court denied.

2. Due to several delays, the district court had reset discovery in
   June 2020. O’Loughlin had made discovery requests prior to June
   2020 but apparently did not renew them. Fact discovery was set
   to end on February 25, 2022, but the parties apparently stipulated
   to an extension of that deadline until March 4, 2022, “to respond
   to certain outstanding written discovery requests.”

20231088-CA 4 2026 UT App 41
O’Loughlin v. ASEA Enterprises

witness disclosure. The disclosure listed an expert (Expert) who
would opine that O’Loughlin’s damages were as follows:

1% of Reoxcyn Royalty Payments, 2009–2020 =
$409,100

Interest on $409,100.70, at 13.87%, 2009–2021 =
$436,255

Diminished Value of Plaintiff’s Shares—$2,045,504

Income made from ASEA IP and Patents by 3rd
Parties—unknown

Income made from ASEA IP and Patents by
Reoxcyn Entities—unknown

Value of 1% Interest in Reoxcyn and related
entities—unknown

Other damages from corporate raiding—unknown

¶8 After submitting his expert disclosure, O’Loughlin was
deposed by the Defendants. The only measure of damages he
discussed in detail was his claim that, as a member of ASEA, he
had “proportional owner[ship] in Reoxcyn” and was entitled to
“one percent of the royalties less expenses” payable by Reoxcyn.

¶9 In several later supplements to his initial disclosures,
O’Loughlin did not attempt to further clarify his damages claim.
But on March 4, 2022, the last day of fact discovery, O’Loughlin
supplemented his expert disclosure with a worksheet containing
the figures on which Expert’s damages estimates were based.

¶10 Expert was also eventually deposed by the Defendants.
Expert discussed four theories for calculating damages, three of

20231088-CA 5 2026 UT App 41
O’Loughlin v. ASEA Enterprises

which were later excluded by the court on ASEA’s motion. 9 On
the remaining theory, which Expert confirmed dealt with the
“diminished value of” O’Loughlin’s 1% interest in ASEA, he
stated that he had calculated that O’Loughlin would have
received $409,101 “either through dividends or increased value of
the shares.” When asked by ASEA’s counsel whether Expert had
reviewed ASEA’s operating agreement “in connection with
making distributions or dividends” or whether he was “aware of
any facts or evidence where the distributions would have been
paid to [O’Loughlin] if they hadn’t been paid as royalties to
Reoxcyn,” Expert replied that he “assum[ed]” that the money
would have been distributed as he had stated. The court later
termed this theory of damages “the lost distributions theory.”

Summary Judgment Motion and Motions in Limine

¶11 After discovery, ASEA—joined by Sorensen and
Reoxcyn—moved for summary judgment, arguing, in relevant
part, that based largely on the potential exclusion of Expert’s
opinions, O’Loughlin could not present evidence of damages. The
district court denied the motion, concluding that O’Loughlin had
provided sufficient evidence on damages to withstand summary
judgment.

¶12 ASEA then filed a motion in limine—again joined by
Sorensen and Reoxcyn—to exclude all of O’Loughlin’s damages
evidence. ASEA argued that under rule 26(a)(1)(C) of the Utah
Rules of Civil Procedure, O’Loughlin had failed to disclose the
lost distributions theory of damages and that his later
supplements and expert disclosure did not adequately remedy

1. ASEA, joined by Sorensen and Reoxcyn, argued that Expert’s four theories should be excluded under rule 702 of the Utah Rules of Evidence. The district court later excluded three of Expert’s theories on this basis, though it denied the motion with respect to a fourth.

20231088-CA 6 2026 UT App 41
O’Loughlin v. ASEA Enterprises

the failure. ASEA further argued that because O’Loughlin’s
failure to disclose was harmful to the Defendants and not
supported by good cause, O’Loughlin should be “barred from
presenting any evidence of damages” at trial. ASEA also filed a
separate motion in limine to prevent O’Loughlin’s witnesses from
testifying at trial, arguing they were not timely disclosed.

¶13 At the hearing on both motions, the district court asked
ASEA’s counsel whether granting the motion in limine on
damages would render the motion to exclude O’Loughlin’s
witnesses moot. When ASEA’s counsel affirmed that it would, the
court asked, “This is . . . dispositive, in other words?” ASEA’s
counsel said, “Yes,” and then asked the court to grant the motion
in limine on damages and “to throw out the case because there is
no damages . . . evidence that they should be entitled to present at
trial.” O’Loughlin’s counsel did not address this request at all,
much less argue that O’Loughlin’s equitable claims should
survive the intended dismissal.

¶14 In its written ruling that followed the hearing, the court
emphasized,

Rule 26 of the Utah Rules of Civil Procedure
required [O’Loughlin], without waiting for a
discovery request, to disclose a computation of any
damages claimed, and a copy of all discoverable
documents or evidentiary material on which such
computation is based, including materials about the
nature and extent of the injuries suffered.

The court recognized that “[w]ithout the profit and loss
statements provided to [O’Loughlin] by [the] Defendants,”
O’Loughlin “could not compute the damages at $409,101.” But the
court noted that O’Loughlin “did not request this information
until . . . just weeks before the close of fact discovery.” The court
also noted that O’Loughlin provided a computation of damages

20231088-CA 7 2026 UT App 41
O’Loughlin v. ASEA Enterprises

prior to his deposition but that the actual worksheet containing
the data on which that computation was based was not provided
until after the close of fact discovery.

¶15 Accordingly, the court assumed that O’Loughlin had good
cause for his “failure to disclose a numeric computation of
damages” in his initial disclosures. But the court found that
O’Loughlin had “not shown good cause for failing to disclose the
method or theory of computing damages.” The court reiterated
that O’Loughlin’s lost distributions theory of damages was “as
follows: had ASEA not paid the Reoxcyn royalty payments, ASEA
would have had more money to pay distributions to its
shareholders. Therefore, [O’Loughlin was] entitled to one-percent
of the saved royalty payments that would have otherwise been
available to ASEA to pay distributions.” The court noted that
O’Loughlin had not disclosed this theory in his disclosures and
that “[n]othing prevented” him from doing so. The court then
found that this failure to disclose was not harmless because the
Defendants “were deprived of the opportunity to obtain . . .
concessions about the obvious limitations of the undisclosed
theory” of damages during Expert’s deposition. And the court
found that “[w]hile the documents necessary to compute the
amount of damages numerically were in [the] Defendants’
possession until the waning days of fact discovery, this did not
prevent [O’Loughlin] from disclosing the method or theory of
computation.”

¶16 Accordingly, the court granted the motion in limine to
exclude O’Loughlin’s evidence of damages, and concluding that
this ruling was “dispositive of [O’Loughlin]’s claims,” it
dismissed the entire case with prejudice.

Attorney Fees

¶17 Following the dismissal of the case, the Defendants
requested attorney fees under ASEA’s 2009 operating agreement

20231088-CA 8 2026 UT App 41
O’Loughlin v. ASEA Enterprises

or, alternatively, under either the 2011 or 2012 amended operating
agreements. The 2009 operating agreement authorized an award
of fees to the prevailing party in “any action, litigation or
proceeding . . . arising out of or in relation to” its terms, while the
2012 amended and restated agreement—which ASEA argued was
the operative agreement—authorized fees to the prevailing party
only for “a breach or dispute arising under” its terms.

¶18 In its attorney fees ruling, the court first concluded that the
2009 operating agreement governed, as O’Loughlin’s interest in
ASEA was “later memorialized in” that agreement. The court also
pointed to O’Loughlin’s first cause of action, which was titled
“Breach of Operating Agreement—§ 48-3a-407(3)(c)” and which
alleged that ASEA’s transfer of its intellectual property to
Reoxcyn was outside of ASEA’s ordinary course of business. The
court stated, “This cause of action presupposed the existence of
an applicable operating agreement.” Thus, the court reasoned that
the first cause of action “related to” the 2009 operating agreement.

¶19 The court then concluded that O’Loughlin’s remaining
claims were “all related legal theories arising from the same core
set of facts on which the first cause of action for breach of the
operating agreement rested.” The court stated,

These facts are that Mr. O’Loughlin was
fraudulently induced to purchase a one-percent
interest in what became ASEA . . . based on the
misrepresentation that the company owned or
would own valuable intellectual property when, in
fact, the intellectual property was never owned by
the company or had been transferred to [Reoxcyn]
and that the Defendants later lied to cover up this
fraud.

¶20 The court also held that while ASEA and Sorensen were
parties to the 2009 operating agreement, Reoxcyn was not, and

20231088-CA 9 2026 UT App 41
O’Loughlin v. ASEA Enterprises

“[w]ithout party status,” Reoxcyn was “not entitled to recover
attorneys’ fees, costs, or expenses under the 2009 Operating
Agreement.” The court further determined that “[t]he question of
whether [Reoxcyn] should nevertheless be entitled to recover
attorneys’ fees and expenses under the 2009 Operating
Agreement because [O’Loughlin] sued [Reoxcyn] for breach of
that agreement [was] not adequately briefed” and, thus, the court
declined to address it. But—somewhat perplexingly, given its
prior conclusions regarding Reoxcyn—the court then granted
attorney fees to ASEA, Sorensen, and Reoxcyn. And the court
found that there was “no need to allocate fees incurred” between
Sorensen and “his entities, the Reoxcyn Entities.” In its final
judgment, the court awarded $489,911.13 to ASEA and
$118,042.40 to Sorensen “on behalf of himself and” Reoxcyn.

¶21 O’Loughlin appeals.

ISSUES AND STANDARDS OF REVIEW

¶22 First, O’Loughlin challenges the district court’s grant of
ASEA’s motion in limine to exclude his evidence of damages—a
decision we review for an abuse of discretion. See S6, LLC v. Wing
Enters., Inc., 2024 UT App 105, ¶ 23, 556 P.3d 100. Relatedly, he
also challenges the court’s dismissal of the entire case based on
the motion in limine ruling. Because this dismissal had “the effect
of a grant of summary judgment, we treat it that way,” reviewing
it for correctness and “affording no deference to the district
court’s analysis.” Build, Inc. v. Utah Dep’t of Transp., 2018 UT 34,
¶ 18 & n.3, 428 P.3d 995.

¶23 Second, O’Loughlin argues that the district court erred in
awarding attorney fees to the Defendants. “The award of attorney
fees is a matter of law, which we review for correctness.” Globe

20231088-CA 10 2026 UT App 41
O’Loughlin v. ASEA Enterprises

Contracting LLC v. Hour, 2025 UT App 98, ¶ 35, 575 P.3d 235
(quotation simplified). 10

ANALYSIS

I. Evidence of Damages

¶24 O’Loughlin challenges the district court’s grant of the
motion in limine to exclude his evidence of damages and its
subsequent dismissal of his case. His arguments are unavailing.

A. Motion in Limine

¶25 Under rule 26 of the Utah Rules of Civil Procedure, a
plaintiff “must, without waiting for a discovery request, serve on
the other parties . . . a computation of any damages claimed and a
copy of all discoverable documents or evidentiary material on
which such computation is based, including materials about the
nature and extent of injuries suffered.” Utah R. Civ. P. 26(a)(1)(C).
The disclosure rules recognize “that parties may not know, at the
outset of a case, exactly what their damages amount to, and that
‘damages often require additional discovery.’” Butler v. Mediaport
Ent. Inc., 2022 UT App 37, ¶ 20, 508 P.3d 619 (quoting Utah R. Civ.
P. 26 advisory committee’s note to 2011 amendment). “These
required initial damages disclosures need not, in every case,
contain a to-the-penny calculation” but they do require, “at a
minimum, a disclosure that damages are in fact being claimed, the
categories of any such damages, and a description of the method

1. O’Loughlin raises other issues on appeal, arguing that the district court erred in denying him further leave to amend his complaint and in excluding two of Expert’s damages theories. Because we affirm the exclusion of all of O’Loughlin’s evidence of damages and the court’s ultimate dismissal of the case, see infra Part I, we need not address these other issues.

20231088-CA 11 2026 UT App 41
O’Loughlin v. ASEA Enterprises

by which the party intends to compute those damages.” Id.
¶¶ 20-22. “In other words, both the fact of damages and the
method for calculating the amount of damages must be apparent
in the initial disclosures.” S6, LLC v. Wing Enters., Inc., 2024 UT
App 105, ¶ 49, 556 P.3d 100 (quotation simplified).

¶26 The disclosure rules also “require timely supplementation
of” damages disclosures. Butler, 2022 UT App 37, ¶ 21. See Utah
R. Civ. P. 26(d)(5) (“If a party learns that a disclosure or response
is incomplete or incorrect in some important way, the party must
timely serve on the other parties the additional or correct
information if it has not been made known to the other parties.”).
“If a party fails to disclose or to supplement timely a disclosure,
that party may not use the undisclosed witness, document, or
material at any hearing or trial unless the failure is harmless or the
party shows good cause for the failure.” Utah R. Civ. P. 26(d)(4).
In fact, “[w]hen a party fails to make timely disclosure, the district
court is required to impose discovery sanctions on that party” in
the absence of a showing of good cause or harmlessness. Bodell
Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933 (emphasis
added).

¶27 O’Loughlin argues that he had good cause for failing to
disclose Expert’s methodology for calculating damages and that
the failure was harmless. We address these arguments in turn.

1. Good Cause

¶28 The district court assumed that O’Loughlin had good cause
for failing to initially disclose an exact numeric computation of his
damages. But the court found, with our emphasis, that “[n]othing
prevented” him “from disclosing the method or theory of
computation.” O’Loughlin argues he should have been “excused
from committing to a particular methodology” for calculating
damages because “the specifics of his methodology depended on

20231088-CA 12 2026 UT App 41
O’Loughlin v. ASEA Enterprises

information that [the Defendants] had in their [possession] but
did not produce until January 2022.”

¶29 But a plaintiff must commit to a particular methodology
for calculating damages. This is a “crucial[]” piece of initial
disclosures. Keystone Ins. Agency v. Inside Ins., 2019 UT 20, ¶ 17,
445 P.3d 434. “A party is not excused from making disclosures or
responses because the party has not completed investigating the
case.” Butler, 2022 UT App 37, ¶ 20 (quotation simplified). And “if
factual contentions about the amount of damages require further
investigation or discovery, the party must undertake that
investigation as early in the litigation process as is practicable.”
Sleepy Holdings LLC v. Mountain West Title, 2016 UT App 62, ¶ 14,
370 P.3d 963 (quotation simplified).

¶30 The onus was on O’Loughlin to provide his lost
distributions theory of damages in his initial disclosures. See S6,
LLC v. Wing Enters., Inc., 2024 UT App 105, ¶ 49, 556 P.3d 100
(stating that “both the fact of damages and the method for
calculating the amount of damages must be apparent in the initial
disclosures”) (emphasis added; quotation otherwise simplified).
Though O’Loughlin claimed that his ability to do so hinged on
information in the Defendants’ possession, and he faults ASEA for
not providing its profit and loss statements until January 2022,
“only weeks before the close of fact discovery,” O’Loughlin did
not make his first set of discovery requests until early December
2021. And despite ASEA’s request that O’Loughlin clarify his
initial disclosure of damages, the several supplements filed after
O’Loughlin received this information from ASEA did not address
damages.

¶31 We thus see no abuse of discretion in the district court’s
conclusion that O’Loughlin lacked good cause for failing to
disclose his lost distributions theory of damages at the outset of
his case.

20231088-CA 13 2026 UT App 41
O’Loughlin v. ASEA Enterprises

1. Harmlessness

¶32 The district court also concluded that O’Loughlin’s failure
to disclose was not harmless because the Defendants “were
deprived of the opportunity to obtain . . . concessions about the
obvious limitations of the undisclosed theory” of damages during
Expert’s deposition. O’Loughlin argues that the Defendants were
not actually harmed because they had notice of the lost
distributions theory in his complaints, discovery responses, and
expert disclosures. And he argues that “any information
imbalance favored [the Defendants], not O’Loughlin.”

¶33 “We have identified several factors for courts to consider
in assessing harmlessness in this context, all of which have to do
with the extent of impairment to a party’s ability to build a
defense during the discovery period and to make decisions about
a case that are proportionate to its size and scope.” Butler, 2022 UT
App 37, ¶ 33 (quotation simplified). “Specifically, in this context
courts should consider whether a party, despite its opponent’s
poor disclosures, was able to (1) question witnesses during
discovery, (2) figure out the case’s tier status under rule 26(c),
(3) understand the nature and quantity of the plaintiff’s claimed
damages, and (4) understand the scope and cost of the litigation
pursued.” Id. (quotation simplified).

¶34 “[C]ourts assessing harmlessness should [also] consider
the point in time at which additional information that may point
toward harmlessness was received by the opposing party.” Id.
¶ 34. “Where additional illuminating information was received by
an opposing party relatively early during the discovery period,
within enough time to allow that party to use that information
while taking depositions and propounding other discovery
requests, then any inadequacies in a party’s damages disclosures
may turn out to be harmless.” Id. (quotation simplified). “But
where a party waits until the twilight hours of fact discovery or,
worse, until the close of expert discovery to provide illuminating

20231088-CA 14 2026 UT App 41
O’Loughlin v. ASEA Enterprises

information, thereby depriving the opposing party of any
meaningful opportunity to use” that information during
discovery, “the faulty disclosures may well turn out to be
harmful.” Id. (quotation simplified).

¶35 The first time that O’Loughlin directly addressed damages
with specificity was in his expert disclosure. The disclosure listed
O’Loughlin’s purported damages as follows:

1% of Reoxcyn Royalty Payments, 2009–2020 =
$409,100

Interest on $409,100.70, at 13.87%, 2009–2021 =
$436,255

Diminished Value of Plaintiff’s Shares—$2,045,504

Income made from ASEA IP and Patents by 3rd
Parties—unknown

Income made from ASEA IP and Patents by
Reoxcyn Entities—unknown

Value of 1% Interest in Reoxcyn and related
entities—unknown

Other damages from corporate raiding—unknown

O’Loughlin did not supplement this disclosure with the
worksheet showing the data on which Expert based these
damages until the last day of fact discovery. Nor did Expert
discuss the lost distributions theory of damages until his
deposition months later.

¶36 “Regarding harmlessness, the key question is whether a
plaintiff’s failure to disclose its methods of computing damages
impaired the defense’s ability to properly build a defense against

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O’Loughlin v. ASEA Enterprises

the damages claimed.” Vanlaningham v. Hart, 2021 UT App 95,
¶ 21, 498 P.3d 27 (quotation simplified). Here, O’Loughlin did not
provide illuminating information regarding the methodology for
calculating damages until the “twilight hours of fact discovery”
and well into the expert discovery period. See Butler, 2022 UT App
37, ¶ 34 (quotation simplified). “We recognize that assessment of
harm in this context is a nuanced matter, and that it is sometimes
difficult to tell if a defendant has really been harmed or is just
feigning harm for the purposes of trying to get the plaintiff’s
damages claims dismissed on non-merits grounds prior to trial.”
Id. ¶ 48. But—importantly—we also “recognize that a district
court will almost always have a better vantage point than we do
to make such a call.” Id. See Bodell Constr. Co. v. Robbins, 2009 UT
52, ¶ 35, 215 P.3d 933 (“We give the district court a great deal of
latitude in determining the most fair and efficient manner to
conduct court business because the district court judge is in the
best position to evaluate the status of his or her cases, as well as
the attitudes, motives, and credibility of the parties.”) (quotation
simplified). O’Loughlin has not overcome the great deference
owed the district court’s harmlessness determination.

¶37 Because O’Loughlin did not demonstrate good cause or
harmlessness, the district court did not exceed its discretion in
granting the motion in limine to exclude O’Loughlin’s evidence
of damages.

B. Dismissal of the Case

¶38 The district court also did not err in dismissing the case
based on its grant of the motion in limine. O’Loughlin stresses that
the motion in limine was a “limited evidentiary motion” and the
court should not have dismissed the case without an opportunity
for full briefing on whether it was dispositive. But our case law
says otherwise.

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O’Loughlin v. ASEA Enterprises

¶39 In Build, Inc. v. Utah Department of Transportation, 2018 UT
34, 428 P.3d 995, the district court dismissed the case after
granting a motion in limine to exclude a construction company’s
damages witnesses. See id. ¶ 17. On appeal, our Supreme Court
recognized that “it may have been preferable for the district court
to order briefing on the question whether the decision granting
the motion in limine should lead to the summary dismissal of the
. . . damages claim.” Id. ¶ 45 (quotation simplified). Nevertheless,
the Court concluded that any error in the district court’s failure to
do so was harmless because after “the only two witnesses who
might have testified” about damages “were excluded, the claim
was left without a leg to stand on,” and it was “inevitable” the
court “would have dismissed the claim even if it had ordered full
briefing on a motion for summary judgment.” Id. ¶¶ 46, 52, 55.

¶40 And in Butler v. Mediaport Entertainment Inc., 2022 UT App
37, 508 P.3d 619, the district court dismissed an employee’s
counterclaims against his former employer after granting the
employer’s motion in limine to exclude the employee’s evidence
of damages. See id. ¶ 13. We affirmed the court’s grant of the
motion in limine, and “given that [the employee] therefore had no
evidence to support those counterclaims,” we held that there was
“no error in the court’s decision to dismiss them summarily.” Id.
¶ 49. While we recognized that “parties should not be able to
dodge dispositive motion deadlines by cloaking summary
judgment motions under a motion in limine label,” we stated that
“the court acted appropriately, not to mention efficiently, in
choosing to take up the matter prior to trial” instead of “wait[ing]
until the close of [the employee’s] case-in-chief to grant an
inevitable directed verdict for lack of proof of damages.” Id. ¶ 16
n.2.

¶41 Here, once O’Loughlin’s evidence of damages was
excluded, his claims were “left without a leg to stand on.” See

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O’Loughlin v. ASEA Enterprises

Build, Inc., 2018 UT 34, ¶ 55. Thus, the district court properly
dismissed them. 11

¶42 In sum, we affirm the court’s grant of the motion in limine
to exclude O’Loughlin’s evidence of damages and its subsequent
dismissal of the case.

II. Attorney Fees

¶43 O’Loughlin also challenges the district court’s attorney fees
award. We affirm the award in part and vacate and remand the
award in part.

¶44 “In Utah, attorney fees are awarded only if authorized by
statute or contract. If provided for by contract, attorney fees are
awarded in accordance with the terms of the contract.” Capozzoli
v. Madden, 2024 UT App 176, ¶ 48, 561 P.3d 727 (quotation
simplified). Here, the district court awarded attorney fees under
ASEA’s 2009 operating agreement, which authorized fees to the
prevailing party in “any action, litigation or proceeding . . . arising
out of or in relation to” the agreement. The court determined that

1. O’Loughlin argues that it was procedurally inappropriate to dismiss the entire case where equitable claims—which did not require damages disclosure—remained. But it was incumbent on O’Loughlin to alert the court to the persistence of these claims when the court considered whether to “throw out” the case. Because the court was not asked to determine whether these equitable claims prevented outright dismissal, this issue is unpreserved, and we do not address it further. See True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 24, 427 P.3d 338 (“For an issue to be preserved, a party must raise it before the district court specifically, in a timely manner, and with support by evidence and relevant legal authority, such that the issue has been presented to the trial court in such a way that the trial court has an opportunity to rule on it.”) (quotation simplified).

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O’Loughlin v. ASEA Enterprises

while ASEA and Sorensen were parties to the 2009 operating
agreement, Reoxcyn was not, and “[w]ithout party status” it was
“not entitled to recover attorneys’ fees, costs, or expenses under
the 2009 Operating Agreement.” The court then ruled that the
question of whether Reoxcyn was “nevertheless . . . entitled to
recover attorneys’ fees and expenses under the 2009 Operating
Agreement because [O’Loughlin] sued [Reoxcyn] for breach of
that agreement [was] not adequately briefed,” and thus the court
declined to address it. But concluding that O’Loughlin’s first
cause of action “related to” the 2009 operating agreement and his
remaining claims “ar[ose] from the same core set of facts on which
the first cause of action . . . rested,” the court then awarded fees to
ASEA and to “Sorensen and his entities, the Reoxcyn Entities.” In
its final judgment, the court awarded $489,911.13 to ASEA and
$118,042.40 to “Sorensen—on behalf of himself and” Reoxcyn.

¶45 O’Loughlin first argues that instead of relying on the 2009
operating agreement, the district court should have looked to the
2012 amended operating agreement, which authorizes an award
of fees to the “prevailing party” for “a breach or dispute arising
under” its terms. We need not definitively decide which operating
agreement governs because an award of fees was proper under
either one.

¶46 Again, with our emphasis, the 2009 operating agreement
authorized fees to the prevailing party in “any action, litigation or
proceeding . . . arising out of or in relation to” its terms. The 2012
operating agreement, with our emphasis, authorized fees only for
“a breach or dispute arising under” its terms. We see no practical
difference between the phrase “arising out of” in the 2009
operating agreement and “arising under” in the 2012 operating
agreement. While the district court concluded that O’Loughlin’s
first cause of action “related to” the 2009 operating agreement and
that his other claims “arose out of” a common core of facts with
that first claim, we may affirm on any basis apparent in the record.
See Okelberry v. West Daniels Land Ass’n, 2005 UT App 327, ¶ 11,

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O’Loughlin v. ASEA Enterprises

120 P.3d 34. And here, it is apparent that O’Loughlin’s claims
could have arisen under—or had a common core of facts with
claims that did arise under—either operating agreement.

¶47 Our Supreme Court has recognized that “there is no magic,
nor hidden meaning, in the phrase ‘relating to or arising out of.’”
Scott v. Wingate Wilderness Therapy, LLC, 2021 UT 28, ¶ 64, 493 P.3d
592 (quotation simplified). In particular, “the words ‘arising out
of’ are very broad, general and comprehensive” and are
“commonly understood to mean originating from, growing out
of, or flowing from.” Taylor v. Ogden City School Dist., 927 P.2d 159,
163 (Utah 1996) (quotation simplified). O’Loughlin’s first cause of
action was titled “Breach of Operating Agreement—
§ 48-3a-407(3)(c).” And though O’Loughlin now argues that this
was a mistake, the title persisted through all of O’Loughlin’s
amended and proposed amended complaints.

¶48 Moreover, as the district court recognized, this claim
presupposed the existence of an operating agreement, because
O’Loughlin articulated the claim as involving a transfer that did
not comply with ASEA’s ordinary business practice. Cf. HITORQ
LLC v. TCC Veterinary Services Inc., 2020 UT App 123, ¶ 50, 473
P.3d 1177 (concluding that “whether Plaintiffs were being granted
distributions and receiving all to which they were entitled under
the Operating Agreement inherently involves enforcing the
Operating Agreement because it amounts to a process of
compelling compliance with the agreement” as the provisions
“establish and define Plaintiffs’ rights”) (quotation simplified),
aff’d, 2021 UT 69, 502 P.3d 281. Thus, O’Loughlin’s first cause of
action could have arisen under either of ASEA’s operating
agreements.

¶49 O’Loughlin’s other causes of action involved ASEA’s
purported ownership of the intellectual property, its alleged
transfer to Reoxcyn, and the resultant harm to ASEA’s investors.
“When a dispute involves multiple claims involving a common

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O’Loughlin v. ASEA Enterprises

core of facts and related legal theories, and a party prevails on at
least some of its claims, it is entitled to compensation for all
attorney fees reasonably incurred in the litigation.” Airstar Corp.
v. Keystone Aviation LLC, 2022 UT App 73, ¶ 96, 514 P.3d 568
(quotation simplified). “Put differently, if a compensable claim is
inextricably intertwined with a noncompensable claim, fees
related to the noncompensable claim are appropriately included
in the fee calculation.” Id. (quotation simplified). By this logic,
because O’Loughlin’s other claims have a common core of facts
with his first cause of action the claims are all “inextricably
intertwined.” See id. We are not persuaded by O’Loughlin’s
attempts to frame his claims more narrowly.

¶50 As parties to the operating agreements and prevailing
parties in this litigation, ASEA and Sorensen were entitled to their
respective attorney fees. But O’Loughlin argues that Reoxcyn was
not entitled to attorney fees as it was not a party to either of the
operating agreements. We agree on this point.

¶51 The district court determined that Reoxcyn was not a party
to the 2009 operating agreement (and, by that logic, not a party to
any other ASEA operating agreement). And the court also
determined that Reoxcyn had not adequately briefed whether it
“should nevertheless be entitled to recover attorneys’ fees and
expenses under the 2009 Operating Agreement because Plaintiffs
sued the Reoxcyn Entities for breach of that agreement.” But the
court then awarded attorney fees to “Sorensen and . . . the
Reoxcyn Entities” anyway, without explaining the legal
justification or requiring allocation between them. We fail to see
how, if Reoxcyn was not a party to any operating agreement and
had inadequately briefed whether it was nonetheless entitled to

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O’Loughlin v. ASEA Enterprises

fees, it should be awarded fees here. Accordingly, we vacate
Reoxcyn’s attorney fees award. 12

¶52 In sum, the district court properly awarded attorney fees
to ASEA and Sorensen but not to Reoxcyn. We thus vacate
Reoxcyn’s fee award. And because the court did not allocate an
amount as between Reoxcyn and Sorensen, we remand for the
court to determine the fees due to Sorensen individually. 13

1. Reoxcyn argues that it was entitled to attorney fees under
   Utah’s reciprocal fee statute, which provides that “[a] court may
   award costs and attorney fees to either party that prevails in a civil
   action based upon any . . . written contract” when the contract
   provisions “allow at least one party to recover attorney fees.”
   Utah Code Ann. § 78B-5-826 (LexisNexis 2022). See Hooban v.
   Unicity Int’l, Inc., 2012 UT 40, ¶ 32, 285 P.3d 766. But the district
   court found that Reoxcyn was not a party to the 2009 operating
   agreement, and it ruled that the question of whether it “should
   nevertheless be entitled to recover attorneys’ fees and expenses
   [was] not adequately briefed.” This ruling—which Reoxcyn does
   not challenge on appeal—effectively forecloses Reoxcyn’s
   argument.

2. The Defendants also request attorney fees incurred on appeal.
   Because we affirm the district court’s award of fees to ASEA and
   Sorensen, we remand for the court to enter an additional award
   of the fees ASEA and Sorensen reasonably incurred on appeal. See
   Meade Recovery Services LLC v. Davidson, 2025 UT App 97, ¶ 35, 575
   P.3d 228 (“When a party who received attorney fees below
   prevails on appeal, the party is also entitled to fees reasonably
   incurred on appeal.”) (quotation simplified), cert. denied, 581 P.3d
   552 (Utah 2025). But because we reverse the district court’s award
   of fees to Reoxcyn, it is not entitled to appellate attorney fees.

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O’Loughlin v. ASEA Enterprises

CONCLUSION

¶53 The district court did not abuse its discretion in granting
ASEA’s motion in limine to exclude O’Loughlin’s evidence of
damages. And we affirm the court’s dismissal of the case on that
basis. We also affirm the court’s award of attorney fees to ASEA
and its decision to award fees to Sorensen, but we vacate
Reoxcyn’s attorney fee award. Thus, we remand for the district
court to determine the amount due to Sorensen individually, since
his award was lumped in with Reoxcyn’s, and to enter an
additional award for the fees ASEA and Sorensen reasonably
incurred on appeal.

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