Blackmore v. L & D Development Inc. ( 2016 )

2016 UT App 198THE UTAH COURT OF APPEALS
L. LANE BLACKMORE, BLACKMORE CANNON DEVELOPMENT
COMPANY LLC, AND THE HOME COMPANY,
Appellants and Cross-appellees,
v.
L&D DEVELOPMENT INC., SHADOW CANYON LAND COMPANY LLC,
SHADOW GLEN 420 INC., GEMSTONE HOMES INC., GEMSTONE
PROPERTIES INC., AND FRANK LINDHARDT,
Appellees and Cross-appellants.
Amended Opinion1
No. 20131177-CA
Filed September 15, 2016
Fifth District Court, St. George Department
The Honorable Gary D. Stott
The Honorable James L. Shumate
No. 030501322
Justin D. Heideman and Justin R. Elswick, Attorneys
for Appellants
Jerome Romero, M. Eric Olmstead, and David L.
Elmont, Attorneys for Appellees
SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.2
1. This Amended Opinion replaces the Opinion in Case No.
20131177-CA issued on June 23, 2016. In response to Appellees’
petition for rehearing, revisions were made to footnote 9 and
paragraphs 21, 39, 41, 43, and 46.
2. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
Blackmore v. L&D Development
BENCH, Senior Judge:
¶1 Plaintiffs L. Lane Blackmore, Blackmore Cannon
Development Company LLC (BCDC), and The Home Company
(collectively, Blackmore) appeal a jury verdict in favor of
Defendants L&D Development Inc., Shadow Canyon Land
Company LLC, Shadow Glen 420 Inc., Gemstone Homes Inc.,
Gemstone Properties Inc., and Frank Lindhardt (collectively,
Defendants). We affirm in most respects, but we vacate the
award of attorney fees.
BACKGROUND3
¶2 On August 21, 2002, Mr. Blackmore and BCDC signed a
Development Agreement with L&D Development and Shadow
Canyon Land Company (collectively, Shadow Canyon). The
Development Agreement concerned the proposed development
of real property owned by Shadow Canyon in Washington
County, Utah (the Property).
¶3 The Property was already partially developed, and it
secured debts owed to U.S. Bank and State Bank of Southern
Utah. The Development Agreement contemplated that
Blackmore and Shadow Canyon would become co-owners of
BCDC, which would then own the Property and manage its
development. The Home Company, managed by Mr. Blackmore,
contracted with BCDC to perform construction on the project.
¶4 Under the terms of the Development Agreement, Mr.
Blackmore promised to (1) bring current accrued interest owed
to U.S. Bank in the amount of approximately $70,000, (2) bring
3. ‚On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict.‛ Smith v. Fairfax Realty, Inc.,
2003 UT 41, ¶ 3, 82 P.3d 1064 (citation and internal quotation
marks omitted).
20131177-CA 2 2016 UT App 198Blackmore v. L&D Development
current all property taxes on the Property, (3) ‚*t+ake such
reasonable steps as necessary to obtain an extension on the [U.S.]
Bank loan,‛ and (4) pay Shadow Canyon $50,000 ‚at closing.‛
Mr. Blackmore also promised that he would market and sell
three existing homes on the Property and that he would build
and sell additional homes at his own expense. In exchange,
Shadow Canyon would transfer the Property to BCDC via
special warranty deed. Although the Development Agreement
did not include a specific date for closing, the property taxes
were due on November 30, 2002.
¶5 Mr. Blackmore performed some, but not all, of his
obligations under the Development Agreement. He sold the
three existing homes on the Property and began construction on
two more. He also paid off the debt owed to State Bank of
Southern Utah. But Mr. Blackmore never tendered the $50,000
payment to Shadow Canyon, nor did he pay the property taxes
or the U.S. Bank interest. And although he was engaged in
discussions with U.S. Bank throughout the autumn of 2002, he
did not succeed in renegotiating the loan with U.S. Bank.
¶6 For its part, Shadow Canyon never transferred title to the
Property to BCDC. Instead, Shadow Canyon ultimately sold the
Property to Shadow Glen 420. This transaction closed on January
31, 2003.
¶7 In July 2003, Blackmore sued Shadow Canyon; Shadow
Glen 420 and its registered agent, Frank Lindhardt; and
Gemstone Homes and Gemstone Properties, both of which Mr.
Lindhardt either owned or represented. For simplicity, we will
refer to Mr. Lindhardt, Shadow Glen 420, Gemstone Homes, and
Gemstone Properties collectively as Lindhardt.
¶8 Blackmore’s complaint stated claims against Shadow
Canyon for breach of the Development Agreement, breach of the
covenant of good faith and fair dealing, and unjust enrichment.
It also stated a claim against Lindhardt for intentional
interference with economic relations. Blackmore sought to void
20131177-CA 3 2016 UT App 198Blackmore v. L&D Development
the January 31, 2003 transfer of the Property and raised a claim
for specific performance, asking the court to order Shadow
Canyon to transfer the Property to BCDC. In its prayer for relief,
Blackmore also requested damages.
¶9 Both sides moved for summary judgment, each arguing
that the other had materially breached the Development
Agreement first. On July 10, 2008, the trial court entered an order
granting Blackmore’s motion and denying Shadow Canyon’s
motion (the 2008 Summary Judgment Order). The court
reasoned that Shadow Canyon’s ‚obligation to convey the
property . . . was a matter of ‘prime importance’‛ and that its
‚failure of performance . . . went to ‘the very object’ of the
contract.‛ (Quoting Coalville City v. Lundgren, 930 P.2d 1206, 1210
(Utah Ct. App. 1997).) Because the conveyance was the ‚most
significant duty required of Shadow Canyon,‛ the court further
reasoned that Shadow Canyon’s ‚failure to convey the property
as called for in the [Development Agreement+‛ was a material
breach that ‚predated‛ Blackmore’s failure to pay taxes by
November 30, 2002, and ‚any associated breach.‛ The court also
explained that ‚no identifiable ‘closing’ occurred . . . that would
have triggered Blackmore’s duty to make the $50,000 payment.‛
Accordingly, the court granted summary judgment to Blackmore
‚on the issue of whether Defendants breached material terms of
the [Development Agreement].‛ Lindhardt moved the court to
reconsider this ruling, but the trial court declined.
¶10 Following the trial court’s grant of a writ of attachment to
Blackmore, Defendants sought, and this court granted,
interlocutory review. In 2012, this court ‚affirm*ed+ the trial
court’s grant of a writ of attachment but vacate[d] the remedy
ordered to the extent that it exceed[ed] the scope of a
prejudgment writ of attachment.‛ Blackmore v. L&D Dev., Inc.,
2012 UT App 43, ¶ 1, 274 P.3d 316.
¶11 At the first hearing after this court’s decision, Shadow
Canyon’s counsel stated that Judge James Shumate, who was
20131177-CA 4 2016 UT App 198Blackmore v. L&D Development
presiding over the case, had mentioned once in court that ‚when
a matter was appealed from [his] court, and . . . when [he was]
. . . reversed, upon suggestion of a party, [he] frequently would
recuse *himself+.‛ Counsel then asked Judge Shumate if he
would consider recusing himself based on the fact that the court
of appeals had reversed an aspect of his order regarding the
prejudgment writ. Judge Shumate responded, ‚When I am
reversed, I think it is at least an issue that should be addressed to
the parties so that they will not feel as though there is some sort
of backlash in further proceedings.‛ Judge Shumate then noted
his desire for the parties to feel that they were in front of a fair
tribunal and also disclosed that he had recently formed an
acquaintance outside of work with one of the attorneys involved
in the case. Because of these concerns, Judge Shumate elected to
recuse himself from the matter. Blackmore objected, but Judge
Shumate reaffirmed his decision to recuse.
¶12 Senior Judge Gary Stott was subsequently assigned to the
case. Shortly thereafter, Lindhardt filed a second motion to
reconsider, requesting that the court set aside the 2008 Summary
Judgment Order. Lindhardt argued that the Development
Agreement was ambiguous as to whether the parties were
required to perform simultaneously. Lindhardt also contended
that Judge Shumate erred in ruling as a matter of law that
Shadow Canyon’s breach was material, because the issue of
materiality was a question of fact for the jury. Judge Stott agreed
with Lindhardt. The court explained that the 2008 Summary
Judgment Order ‚took away from the jury the very factual issues
that the jury should have been deciding,‛ namely, ‚the ultimate
question of the material breach‛ and ‚what was to take place as
contemplated under‛ the Development Agreement.
Accordingly, Judge Stott set aside the 2008 Summary Judgment
Order.
¶13 At a pretrial hearing, the trial court granted Blackmore’s
motion for summary judgment on the issue of whether
Lindhardt was a bona fide purchaser for value. Specifically, the
20131177-CA 5 2016 UT App 198Blackmore v. L&D Development
court ruled as a matter of law that Mr. Lindhardt was not a bona
fide purchaser for value, because he had either actual or
constructive notice of Blackmore’s prior interest in the Property.
The court also ruled that the proper measure of Blackmore’s
possible damages at trial would be the market value of the
Property at the time of the breach less the contract price.
¶14 At trial, Blackmore contended that Shadow Canyon
breached the Development Agreement by failing to transfer title
to the Property to BCDC and by selling the Property to
Lindhardt. Defendants countered that Blackmore breached the
Development Agreement first and thereby excused Shadow
Canyon from further contract performance. Defendants also
argued that even if Shadow Canyon was in breach of contract,
Blackmore had abandoned its rights under the Development
Agreement.
¶15 The parties introduced into evidence various letters
exchanged between the parties and their attorneys to shed light
on the breakdown of their relationship and the Development
Agreement. On November 21, 2002, Shadow Canyon’s attorneys,
Thomas Bayles and V. Lowry Snow, wrote to Mr. Blackmore,
asking him to contact them soon regarding his ability to obtain
financing for the project and his intentions with respect to the
Development Agreement.
¶16 Sometime during the following week and around the
Thanksgiving holiday, Mr. Blackmore called Mr. Snow (the
Thanksgiving Conversation). Mr. Snow testified at trial that
during the Thanksgiving Conversation, Mr. Blackmore had
expressed that he ‚simply *could not] do the deal.‛ According to
Mr. Snow, Mr. Blackmore had indicated that he had tried to find
investors and had tried to complete the deal but wanted to let
Mr. Snow and Shadow Canyon know that he was unable to
follow through on his obligations. Although Mr. Snow
acknowledged that Mr. Blackmore may have been referring to
only the U.S. Bank transaction, Mr. Snow came away from the
20131177-CA 6 2016 UT App 198Blackmore v. L&D Development
Thanksgiving Conversation with the ‚impression that *Mr.
Blackmore], although he tried sincerely very hard, was simply
not able to make this transaction [with Shadow Canyon]
happen.‛
¶17 On December 18, 2002, Shadow Canyon’s attorneys faxed
a letter to Blackmore’s attorney. The letter indicated that Shadow
Canyon understood that Blackmore could not obtain financing
to perform under the Development Agreement. The letter noted
that Shadow Canyon stood ready and willing to perform but
asserted that Blackmore was in breach. Additionally, the letter
warned Blackmore’s attorney that if no one responded within
two days, Shadow Canyon would begin making other plans and
would understand that Blackmore agreed with the letter’s
contents.
¶18 Blackmore and its attorney did not respond until nearly
three weeks later. On January 9, 2003, Blackmore’s attorney
wrote to Mr. Bayles, explaining that his ‚client was not in receipt
of [the] letter dated December 18, 2002 until January 6, 2003.‛
The letter expressed Mr. Blackmore’s objection to Shadow
Canyon’s claim that Blackmore had breached the Development
Agreement. Moreover, Mr. Blackmore believed that the
Thanksgiving Conversation had been misconstrued. According
to Mr. Blackmore, he had intended to convey during the
Thanksgiving Conversation his position that the terms of the
U.S. Bank extension were unacceptable and that he hoped the
dialogue would continue. The letter also proposed terms under
which Blackmore would be willing to release the terms of the
Development Agreement.
¶19 While specifically finding some facts favorable to
Blackmore, the jury ultimately returned a verdict in favor of
Defendants. As indicated on the special verdict forms, the jury
found that Mr. Blackmore was not required to pay the $50,000 at
the same time that Shadow Canyon was required to transfer title
to the Property. The jury then found that Blackmore did not
20131177-CA 7 2016 UT App 198Blackmore v. L&D Development
commit a material breach of the Development Agreement but
that Shadow Canyon did materially breach the Development
Agreement. Despite finding Shadow Canyon in breach of
contract, the jury found that Blackmore had abandoned its right
under the Development Agreement to develop the Shadow
Canyon project. As a result, Shadow Canyon was not held liable
to Blackmore for breach of contract.
¶20 Blackmore subsequently moved for judgment
notwithstanding the verdict, arguing that the evidence was
insufficient to support the jury’s finding of abandonment and
requesting that the court award Blackmore attorney fees and
specific performance. The trial court denied the motion. It
explained that ‚the verdict is supported by the evidence and the
Findings of the jury are not contrary to the law give[n] and the
facts presented at trial.‛
¶21 The trial court also awarded Defendants their claimed
attorney fees. The court reasoned that the jury’s verdict
‚support*ed] a finding that the Defendants prevailed against
*Blackmore’s+ claims on the contract issues and that the jury’s
finding of abandonment supported the conclusion that [Shadow
Canyon was] not liable on *Blackmore’s+ contract claims.‛ Citing
Utah Code section 78B-5-826, the court concluded that Shadow
Canyon was ‚the prevailing party on *Blackmore’s+ contract
claims, and as such, [was+ entitled to attorney’s fees in defending
such claims.‛ Blackmore appeals.
ISSUES AND STANDARDS OF REVIEW
¶22 First, Blackmore contends that Judge Shumate erred in
recusing himself from this matter. Generally, we review a
judge’s failure to recuse him or herself for correctness. See Lunt v.
Lance, 2008 UT App 192, ¶ 7, 186 P.3d 978. But where a judge
chooses to recuse him or herself even though recusal was
perhaps not required, we review that decision for abuse of
discretion. Cf. State v. Neeley, 748 P.2d 1091, 1094–95 (Utah 1988)
20131177-CA 8 2016 UT App 198Blackmore v. L&D Development
(‚*W+hile we recommend the practice that a judge recuse himself
where there is a colorable claim of bias or prejudice, absent a
showing of actual bias or an abuse of discretion, failure to do so
does not constitute reversible error . . . .‛); West Jordan City v.
Goodman, 2006 UT 27, ¶ 21, 135 P.3d 874 (‚*J+udges are not
subject to disqualification in every situation where their
impartiality is questioned, particularly when the potential for
bias is remote.‛).
¶23 Second, Blackmore contends that Judge Stott erred in
setting aside Judge Shumate’s 2008 Summary Judgment Order,
arguing that by doing so, Judge Stott violated the law of the case
doctrine. ‚The application of the law of the case doctrine is
ordinarily reviewed under an abuse of discretion standard.
However, when a legal question is presented to an appellate
court in law-of-the-case packaging, the abuse of discretion
standard must yield to the correctness standard of review.‛
McLaughlin v. Schenk, 2013 UT 20, ¶ 19, 299 P.3d 1139 (citation
and internal quotation marks omitted).
¶24 Third, Blackmore contends that the trial court erred in
refusing to grant its motion for judgment notwithstanding the
verdict on the question of abandonment, arguing that
insufficient evidence existed to support abandonment. A trial
court may grant a motion for judgment notwithstanding the
verdict ‚only if there is no basis in the evidence, including
reasonable inferences which could be drawn therefrom, to
support the jury’s determination.‛ ASC Utah, Inc. v. Wolf
Mountain Resorts, LC, 2013 UT 24, ¶ 18, 309 P.3d 201 (citation and
internal quotation marks omitted). We review the trial court’s
decision on a motion for judgment notwithstanding the verdict
for correctness. Id.4
4. Blackmore also contends that the trial court erred in limiting
Blackmore’s evidence regarding damages. But because we affirm
(continued<)
20131177-CA 9 2016 UT App 198Blackmore v. L&D Development
¶25 Finally, Blackmore contends that the trial court erred by
awarding attorney fees to Shadow Canyon and by failing to
award attorney fees to Blackmore. ‚A challenge to an award of
attorney fees on the basis that the relevant contract or statute
does not entitle the prevailing party to fees presents a question
of law that we review for correctness.‛ Brodkin v. Tuhaye Golf,
LLC, 2015 UT App 165, ¶ 34, 355 P.3d 224; see also id. ¶ 34 n.5
(‚We review certain other issues surrounding the award of
attorney fees for an abuse of discretion.‛).5
ANALYSIS
I. Judge Shumate’s Recusal
¶26 Blackmore contends that Judge Shumate erred in recusing
himself from this case. Specifically, Blackmore asserts that Judge
Shumate and Defendants ignored rule 63 of the Utah Rules of
Civil Procedure, which governs motions to disqualify a judge,
and that ‚*h]ad proper procedure been followed Judge Shumate
(2007 UT App 243, ¶ 27, 166
P.3d 639 (affirming the trial court’s conclusion that the parties
had abandoned the contract and that therefore a party was not
entitled to specific performance or damages).
5. Defendants cross-appeal several of the trial court’s decisions.
Defendants ask for relief on their cross-appeal ‚*i+f . . . the Court
determines that the final judgment is otherwise subject to
reversal on Blackmore’s direct appeal.‛ Because we ultimately
affirm the trial court’s judgment and reject Blackmore’s claims of
error on its direct appeal, except for the attorney fees issue, we
do not reach Defendants’ arguments on cross-appeal.
20131177-CA 10 2016 UT App 198Blackmore v. L&D Development
could not have disqualified himself based on *Defendants’+
untimely, improper, oral motion.‛ Defendants counter that
because no motion for disqualification was filed, rule 63 does not
apply to this case. Defendants further contend that even if Judge
Shumate erred in recusing himself, no prejudice resulted from
the appointment of a new judge.
¶27 ‚A judge should be disqualified when circumstances arise
in which the judge’s impartiality might reasonably be
questioned.‛ Dahl v. Dahl, 2015 UT 79, ¶ 49 (citation and internal
quotation marks omitted); see also Utah Code Jud. Conduct
2.11(A). Rule 2.11 of the Utah Code of Judicial Conduct contains
an illustrative, but not exhaustive, list of disqualifying
circumstances. Utah Code Jud. Conduct 2.11(A). The comments
to the rule make clear that a judge may recuse, ‚regardless of
whether any of the specific [disqualifying circumstances] apply,‛
so long as the circumstances are such that ‚the judge’s
impartiality might reasonably be questioned.‛ Id. R. 2.11(A)
& cmt. 1; see also Madsen v. Prudential Fed. Sav. & Loan Ass’n, 767
P.2d 538, 544 n.5 (Utah 1988) (‚*A+ctual bias need not be found to
support disqualification. An appearance of bias or prejudice is
sufficient for disqualification, but even disqualification because
of appearance must have some basis in fact and be grounded on
more than mere conjecture and speculation.‛ (citation omitted)).
Furthermore, the comments indicate that judges should consider
recusing themselves if disqualifying circumstances arise
‚regardless of whether a motion to disqualify is filed.‛ Utah
Code Jud. Conduct 2.11 cmt. 2. In other words, when
circumstances arise that, in the judge’s opinion, call into question
the judge’s impartiality, the judge may opt to recuse even if the
parties have not filed a rule 63 motion.
¶28 Blackmore has not shown that Judge Shumate exceeded
his broad discretion in choosing to recuse himself from this
matter. Judge Shumate elected to recuse himself due to his
concern that after a partial reversal on appeal, the parties might
fear ‚some sort of backlash in further proceedings‛ and might
20131177-CA 11 2016 UT App 198Blackmore v. L&D Development
doubt whether they were before a fair tribunal. Judge Shumate
also cited his recent acquaintance outside of work with one of
the attorneys. Although we are not prepared to say that Judge
Shumate was required to recuse himself under the circumstances
of this case, we cannot say that his decision to do so was an
abuse of discretion. Blackmore only briefly suggests that Judge
Shumate lacked legitimate grounds to recuse himself. Indeed,
Blackmore focuses on Defendants’ failure to file a rule 63 motion
to disqualify and asserts that their failure to comply with rule
63’s procedures precluded Judge Shumate from recusing
himself. See generally Utah R. Civ. P. 63(b) (2012) (providing,
among other things, that a rule 63 motion shall be filed within
twenty-one days of when disqualifying circumstances arise and
shall be supported by an affidavit and certificate of good faith). 6
However, ‚regardless of whether a motion to disqualify is filed,‛
judges can, sua sponte, evaluate a possible recusal. See Utah
Code Jud. Conduct 2.11 cmt. 2. Here, Shadow Canyon’s counsel
raised the issue of disqualification in open court without
formally filing a rule 63 motion. The absence of a rule 63 motion
did not prevent Judge Shumate from considering any
disqualifying circumstances. We thus conclude that Blackmore
has not demonstrated that Judge Shumate exceeded his
discretion in choosing to recuse himself.
II. Judge Stott’s Setting Aside of the 2008 Summary
Judgment Order
¶29 Next, Blackmore contends that Judge Stott violated the
law of the case doctrine by setting aside Judge Shumate’s 2008
Summary Judgment Order. According to Blackmore, ‚the law of
the case precluded Judge Stott from reversing Judge Shumate’s
6. Because rule 63 of the Utah Rules of Civil Procedure has been
amended as of May 1, 2016, we cite the rule in effect when Judge
Shumate recused himself in 2012.
20131177-CA 12 2016 UT App 198Blackmore v. L&D Development
July 10, 2008 Order‛ in which Shadow Canyon was ‚found to be
the primary breaching party.‛7 Further, Blackmore contends that
it was prejudiced by Judge Stott’s decision because the decision
‚crippled Blackmore’s long established trial strategy, allowed
Defendants to raise the affirmative defense of abandonment, and
altered nearly six years of case precedent.‛ Defendants respond
that Judge Stott’s decision was proper because ‚when a judge is
replaced in a pending action, the replacement becomes the ‘same
judicial officer’ as the replaced [judge], and retains the same
authority to reverse the court’s prior orders.‛
¶30 Under the law of the case doctrine, ‚a decision made on
an issue during one stage of a case is binding in successive stages
of the same litigation.‛ Thurston v. Box Elder County, 892 P.2d
1034, 1037 (Utah 1995). ‚Depending on the procedural posture of
a case . . . , the district court may or may not have discretion to
reconsider a prior decision it has made.‛ IHC Health Servs., Inc. v.
D & K Mgmt., Inc., 2008 UT 73, ¶ 27, 196 P.3d 588. One branch of
the doctrine, known as the mandate rule, ‚dictates that a prior
decision of a district court becomes mandatory after an appeal
and remand.‛ Id. ¶ 28. ‚The mandate rule . . . binds both the
district court and the parties to honor the mandate of the
appellate court.‛ Id. Nevertheless, on remand from an appeal,
the district court retains discretion to decide whether to
reconsider ‚any issue which was not expressly or impliedly
disposed of on appeal.‛ Procter & Gamble Co. v. Haugen, 317 F.3d
1121, 1126 (10th Cir. 2003) (citation and internal quotation marks
omitted); see also Peak Alarm Co. v. Werner, 2013 UT 8, ¶ 13, 297
P.3d 592 (holding that the district court did not exceed ‚the
scope of the remand‛ by addressing issues on which the
appellate court had not ruled); Utah Dep’t of Transp. v. Ivers, 2009
UT 56, ¶ 12, 218 P.3d 583 (suggesting that a district court on
7. Blackmore does not challenge the underlying merits of the
denial of summary judgment on the breach issue and instead
limits its argument to the law of the case doctrine.
20131177-CA 13 2016 UT App 198Blackmore v. L&D Development
remand from an appeal may decide ‚issues [that] are left open
by *the appellate court’s+ judgment or decree‛ (second alteration
in original) (citation and internal quotation marks omitted)).
¶31 The Utah Supreme Court has explained that the
substitution of a new judge does not alter the court’s discretion
to modify a prior decision:
Law of the case does not prohibit a district court
judge from revisiting a previously decided issue
during the course of a case, regardless of whether
the judge has changed or remained the same
throughout the proceedings. Rather, the doctrine
allows a court to decline to revisit issues within the
same case once the court has ruled on them.
McLaughlin v. Schenk, 2013 UT 20, ¶ 22, 299 P.3d 1139 (citation
and internal quotation marks omitted). ‚While a case remains
pending before the district court prior to any appeal, the parties
are bound by the court’s prior decision, but the court remains
free to reconsider that decision . . . sua sponte or at the
suggestion of one of the parties.‛ IHC Health Servs., 2008 UT 73,
¶ 27 (footnote omitted); accord Utah R. Civ. P. 54(b) (providing
that when a case involves multiple claims or parties, any order
or other decision that does not adjudicate all of the claims is
subject to revision at any time before a final judgment on all the
claims). ‚This is true even when a second judge has taken over
the case because the two judges, while different persons,
constitute a single judicial office.‛ PC Crane Serv., LLC v.
McQueen Masonry, Inc., 2012 UT App 61, ¶ 43, 273 P.3d 396(citation and internal quotation marks omitted). Three situations
require the court to reconsider a matter: ‚(1) when there has
been an intervening change of authority; (2) when new evidence
has become available; or (3) when the court is convinced that its
prior decision was clearly erroneous and would work a manifest
injustice.‛ Mid-America Pipeline Co. v. Four-Four, Inc., 2009 UT 43,
¶ 14, 216 P.3d 352 (citation and internal quotation marks
20131177-CA 14 2016 UT App 198Blackmore v. L&D Development
omitted). These exceptions to the law of the case doctrine
‚function only to dictate when the district court has no
discretion but rather must reconsider a previously decided,
unappealed issue.‛ Id. Thus, the supreme court has observed
that these ‚exceptions do not operate to bar a replacement judge
from reconsidering an issue previously ruled on by a prior judge
in the same case.‛ McLaughlin, 2013 UT 20, ¶ 24.
¶32 Here, Blackmore has not shown that the law of the case
doctrine forbade Judge Stott from reconsidering the 2008
Summary Judgment Order. The issues decided in that order
were not issues that this court evaluated on interlocutory review.
See generally Blackmore v. L&D Dev., Inc., 2012 UT App 43, ¶ 1,
274 P.3d 316. Thus, the mandate rule is not implicated. Even
though it was Judge Shumate who issued the 2008 Summary
Judgment Order, the law of the case doctrine did not bar Judge
Stott from revisiting the still-interlocutory 2008 Summary
Judgment Order. See IHC Health Servs., 2008 UT 73, ¶ 27.
Accordingly, we conclude that Judge Stott did not exceed his
discretion by setting that order aside.
III. The Denial of Blackmore’s Motion for Judgment
Notwithstanding the Verdict on the Issue of Abandonment
¶33 Blackmore contends that the trial court erred in denying
its motion for judgment notwithstanding the verdict, arguing
that the evidence was insufficient to support the jury’s verdict
that Blackmore had abandoned its rights under the Development
Agreement. Blackmore contends that its statements and actions
could not be construed as ‚a clear, unequivocal, event of
abandonment.‛8
8. Blackmore also asserts that Shadow Canyon ‚must mutually
acquiesce in, or permit abandonment‛ and that the evidence
shows ‚mutual acquiescence did not occur.‛ Because
(continued<)
20131177-CA 15 2016 UT App 198Blackmore v. L&D Development
¶34 We begin by noting that ‚*i+t is the exclusive function of
the jury to weigh the evidence and to determine the credibility of
the witnesses, and we will not overturn a verdict on a challenge
to the sufficiency of the evidence [s]o long as some evidence and
reasonable inferences support the jury’s findings.‛ Brewer v.
Denver & Rio Grande W. R.R., 2001 UT 77, ¶ 36, 31 P.3d 557(alterations in original) (citations and internal quotation marks
omitted). Furthermore, ‚*t+he existence of contradictory evidence
or of conflicting inferences does not warrant disturbing the jury’s
verdict when the sufficiency of the evidence is challenged on
appeal.‛ Id. (alteration in original) (citation and internal
quotation marks omitted).
¶35 Under Utah law, ‚a contract is abandoned when one
party ‘show*s+ by unequivocal acts that he regard[s] the
agreement as abandoned,’ and the other party acquiesces.‛
Watkins v. Henry Day Ford, 2013 UT 49, ¶ 33, 304 P.3d 841(alterations in original) (quoting Wallace v. Build, Inc., 402 P.2d
699, 701 (Utah 1965)). Likewise, ‚a contract may be abandoned
by the parties’ express assent or through acts or conduct of the
parties inconsistent with the continued existence of the contract.‛
Id. (citation, emphasis, and internal quotation marks omitted).
Whether abandonment of a contract has occurred must be
assessed in light of ‚all the facts and circumstances surrounding
(2004 UT 72, ¶ 51, 99 P.3d 801 (explaining that
an issue is preserved when the issue is presented in such a way
that the trial court has an opportunity to rule on the issue and
that ‚*i+ssues that are not raised at trial are usually deemed
waived‛).
20131177-CA 16 2016 UT App 198Blackmore v. L&D Development
the transaction, and the proof of abandonment must be made by
clear, unequivocal, and decisive evidence.‛ Id. (citation and
internal quotation marks omitted).
¶36 In support of its argument that the trial court should have
granted its motion for judgment notwithstanding the verdict,
Blackmore relies on Mr. Blackmore’s testimony that he did not
intend to abandon the Development Agreement and that his
intended meaning was only that he was no longer pursuing
refinance options with U.S. Bank. Blackmore also relies on Mr.
Snow’s testimony, which it believes tends to show that the
Thanksgiving Conversation did not constitute a clear
termination of the Development Agreement.
¶37 Blackmore stresses the conflicting evidence and the
inferences that could be drawn in its favor, but it has not
persuaded us that there was no basis in the evidence from which
the jury could conclude that Blackmore had abandoned the
Development Agreement. In particular, Mr. Snow, Shadow
Canyon’s counsel, testified that during the Thanksgiving
Conversation, Mr. Blackmore had expressed that he ‚simply
[could not] do the deal.‛ Mr. Snow stated,
Mr. Blackmore indicated to me that the
reason that he was calling was to—and I don’t
remember the exact words, but this is my
recollection, that he wanted to let me know
because he felt like he had some obligation to let
me know that he was not able to do the deal, not
for me but for the benefit of my client.
I believed that Mr. Blackmore at that time
what I thought that he was saying is ‚I think it’s
important that your client know that I simply
cannot do the deal. I’ve tried to find some
investors. I’ve tried to find the ability to complete
20131177-CA 17 2016 UT App 198Blackmore v. L&D Development
this, but I’m not able to do it, and I need to let you
know that.‛
Additionally, at least two other witnesses testified that Mr.
Blackmore indicated that he was ‚done with the project‛: one of
Blackmore’s employees stated that Mr. Blackmore indicated that
he did not see a way to secure financing necessary to continue
with the project, and a U.S. Bank representative, with whom
Blackmore had been negotiating, reported that Mr. Blackmore
said that he was ‚not moving forward with the project.‛
Although Mr. Blackmore offered contradictory evidence, the
jury was entitled to disbelieve Mr. Blackmore’s self-serving
version of events. See Brewer, 2001 UT 77, ¶ 36. The jury also
would have been justified in viewing the other witnesses’
testimony as clear and decisive evidence of abandonment, see
Watkins, 2013 UT 49, ¶ 33, and it apparently did exactly that.
Thus, from all the facts and circumstances surrounding the
breakdown of the Development Agreement, we determine that
while the conclusion was not inevitable, there was at least a basis
in the evidence for the jury to conclude that Blackmore had
abandoned the contract. Accordingly, the trial court did not err
in denying Blackmore’s motion for judgment notwithstanding
the verdict on the issue of abandonment.
IV. Attorney Fees
¶38 Blackmore contends that the trial court erred by awarding
attorney fees to Shadow Canyon and by failing to award
attorney fees to Blackmore. In evaluating this issue, we consider,
first, whether Shadow Canyon was entitled to attorney fees and,
second, whether Blackmore was entitled to attorney fees.
A. The Trial Court Erred in Awarding Attorney Fees to
Shadow Canyon.
¶39 In challenging the trial court’s attorney fees award to
Shadow Canyon, Blackmore argues that the trial court’s decision
20131177-CA 18 2016 UT App 198Blackmore v. L&D Development
improperly relied on the conclusion that Shadow Canyon was
the prevailing party. According to Blackmore, the Development
Agreement authorized attorney fees to be assessed against a
‚defaulting party,‛ not in favor of a ‚prevailing party,‛ and
because the jury expressly found that Blackmore did not breach
the Development Agreement, Blackmore asserts that it could not
be deemed a ‚defaulting party‛ under the attorney fees
provision. Shadow Canyon responds that it was entitled to
attorney fees because it was the prevailing party owing to the
fact that it succeeded on Blackmore’s contract claims.
¶40 ‚As a general rule, attorney fees may be awarded only
when authorized by statute or contract.‛ Fericks v. Lucy Ann Soffe
Trust, 2004 UT 85, ¶ 23, 100 P.3d 1200. ‚If the legal right to
attorney fees is established by contract, Utah law clearly requires
the court to apply the contractual attorney fee provision and to
do so strictly in accordance with the contract’s terms.‛ Jones v.
Riche, 2009 UT App 196, ¶ 2, 216 P.3d 357.
¶41 Utah Code section 78B-5-826 (the Reciprocal Attorney
Fees Statute), on which the trial court relied in awarding fees to
Shadow Canyon, provides that the ‚court may award costs and
attorney fees to either party that prevails in a civil action based
upon any promissory note, written contract, or other writing . . .
when the provisions of [that writing] . . . allow at least one party
to recover attorney fees.‛ Utah Code Ann. § 78B-5-826
(LexisNexis 2012). This statute typically ‚applies ‘when a
contract creates an unequal exposure to the risk of contractual
liability for attorney fees, [and is applied] to ensure that both
parties are subject to the attorney fee provision.’‛ Jones, 2009 UT
App 196, ¶ 5 (alteration in original) (quoting Giusti v. Sterling
Wentworth Corp., 2009 UT 2, ¶ 77, 201 P.3d 966) (additional
internal quotation marks omitted). But see Hooban v. Unicity Int’l,
Inc., 2012 UT 40, ¶¶ 15–17, 285 P.3d 766 (explaining that the
Reciprocal Attorney Fees Statute is not confined to contracts
with unilateral fee provisions).
20131177-CA 19 2016 UT App 198Blackmore v. L&D Development
¶42 In Jones v. Riche, 2009 UT App 196, 216 P.3d 357, the
contract at issue was similar to the Development Agreement in
that it required the defaulting party to pay attorney fees. Id. ¶ 2.
Despite this provision, the trial court in Jones applied the
Reciprocal Attorney Fees Statute and awarded fees to the party it
deemed to be the ‚prevailing party.‛ Id. ¶ 4. This court reversed
that decision, explaining that the ‚prevailing party‛ standard ‚is
not the standard for awarding fees that the parties included in
their contract,‛ id. ¶ 7, and that the Reciprocal Attorney Fees
Statute did not apply because the contract’s ‚attorney fee
provision cut both ways‛ in that ‚‘neither party had a
contractual advantage,’‛ id. ¶ 6 (quoting Giusti, 2009 UT 2, ¶ 77).
Because the contract required whichever side that defaulted to
pay for attorney fees, this court reasoned that the trial court
erred because it ‚was required to strictly enforce the agreement’s
terms‛ and ‚was not at liberty to rely on the Reciprocal Attorney
Fees statute . . . to contradict the agreement’s terms.‛ Id.¶43 In this case, like Jones, the ‚prevailing party‛ standard ‚is
not the standard for awarding fees that the parties included in
their contract.‛ See id. ¶ 7. Instead, the attorney fees provision in
the Development Agreement states,
Should any party default in any of the covenants or
agreements herein contained, that defaulting party
shall pay all costs and expenses, including
reasonable attorney fees, which may arise or accrue
from enforcing this Development Agreement,
enforcing any covenant or term herein, or in
pursuing any other remedy provided hereunder or
by applicable law, whether such remedy is
pursued by filing suit or otherwise.
(Emphases added.) This provision clearly provides that the party
who ‚defaults‛ is liable for attorney fees. Accordingly, the trial
court erred when it employed the Reciprocal Attorney Fees
Statute to deem Shadow Canyon ‚the prevailing party‛ and to
20131177-CA 20 2016 UT App 198Blackmore v. L&D Development
contradict the Development Agreement’s plain terms by
awarding it attorney fees. We therefore vacate the trial court’s
award of attorney fees.9
B. Blackmore Is Not Entitled to Attorney Fees.
¶44 Blackmore also contends that because the jury found that
Shadow Canyon materially breached the Development
Agreement, Shadow Canyon is the ‚defaulting party‛ who
should be held liable for Blackmore’s attorney fees under the
Development Agreement. See id. ¶ 3 (‚When a contract requires,
as this one does, that the defaulting party pay attorney fees, ‘the
sole criterion for [a party] to obtain attorney fees . . . is to show
default by the other contract party.’‛ (alteration and omission in
original) (quoting Foote v. Clark, 962 P.2d 52, 54–55 (Utah 1998))).
Shadow Canyon counters that Blackmore’s abandonment meant
that Blackmore had abandoned its rights to enforce the
Development Agreement’s provisions, including the attorney
fees provision. Consequently, Shadow Canyon argues, it would
be incongruous to allow Blackmore to recover attorney fees.
¶45 Under Utah law, ‚where ‘it is found that there was an
abandonment *of the contract+, then *the+ plaintiff’s entitlement
to attorney*+ fees is rendered moot.‛ Eldridge v. Farnsworth, 2007
UT App 243, ¶ 52, 166 P.3d 639 (alterations in original) (quoting
Forsyth v. Pendleton, 617 P.2d 358, 362 (Utah 1980) (per curiam)).
Thus, even assuming that Shadow Canyon was the ‚defaulting
party‛ under the attorney fees provision in this case, Blackmore
9. Blackmore attempts to challenge the trial court’s award of
costs to Lindhardt. But because it has not separately developed
and supported any argument on this issue, it has not
demonstrated error in this regard. See Simmons Media Group, LLC
v. Waykar, LLC, 2014 UT App 145, ¶ 37, 335 P.3d 885 (explaining
that to demonstrate trial court error, an appellant’s brief must
contain reasoned analysis based on authority).
20131177-CA 21 2016 UT App 198Blackmore v. L&D Development
was not entitled to contractual attorney fees. Because Blackmore
had abandoned the contract, the Development Agreement’s
attorney fees provision was no longer in force and Blackmore
was not entitled to claim fees under it. See id. ¶¶ 51–52.10
CONCLUSION
¶46 Blackmore has not shown that Judge Shumate exceeded
his discretion in recusing himself from this matter. Blackmore
also has not demonstrated that Judge Stott erred in revisiting the
2008 Summary Judgment Order. In addition, we affirm the trial
court’s denial of Blackmore’s motion for judgment
notwithstanding the verdict on the issue of whether Blackmore
had abandoned the contract. But because we conclude that
neither side is entitled to attorney fees, we vacate the trial court’s
attorney fees award to Shadow Canyon.
10. Although both sides request attorney fees incurred on
appeal, we do not award fees to any party, because neither side
is entitled to attorney fees under the Development Agreement.
See Westmont Mirador LLC v. Shurtliff, 2014 UT App 184, ¶ 14, 333
P.3d 369 (concluding that neither party was entitled to attorney
fees in the trial court and declining to award either party
attorney fees on appeal).
20131177-CA 22 2016 UT App 198