2015 UT App 198

THE UTAH COURT OF APPEALS

GAYLE CARTER AND LANETT CARTER,

Plaintiffs and Appellants,

v.

BOURGOIN CONSTRUCTION, INC. AND LANDMARK TESTING &

ENGINEERING, INC.,

Defendants and Appellee.

Memorandum Decision

No. 20140405-CA

Filed August 6, 2015

Fifth District Court, St. George Department

The Honorable Gary D. Stott

No. 090501861

Darwin C. Fisher, Attorney for Appellants

Jason C. Hunter, Attorney for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in 

which JUDGES MICHELE M. CHRISTIANSEN and JOHN A. PEARCE

concurred.

ROTH, Judge:

¶1 Gayle and Lanett Carter (the Carters) appeal the district 

court’s denial of their motion to amend their complaint. We 

affirm.

¶2 In 2003, A. Kent Cottam contracted with Landmark 

Testing & Engineering, Inc. (Landmark) to perform a 

geotechnical investigation on a parcel of land he was considering 

purchasing in Washington, Utah. Landmark tested the soil for 

both expansive and collapsible soils. Based on the results of the 

report, Cottam went forward with the purchase of the land 

which was then subdivided into residential lots. One of these 

lots was sold to Bourgoin Construction, Inc., which in turn 
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20140405-CA 2 2015 UT App 198

contracted with the Carters to sell them the lot and construct a 

home. In 2009, shifting and unstable soils resulted in significant 

damage to the Carters’ home. 

¶3 Shortly after, in June 2009, the Carters filed a complaint 

against Bourgoin Construction, Inc.; Cottam and his wife (the 

Cottams); Landmark; and other parties who had been involved 

in the development of the subdivision (the Complaint). In 

February 2011, the Carters filed an amended complaint adding a 

new defendant to their suit. A couple of months later, the 

Carters filed a second amended complaint adding claims against 

Landmark. Cottam passed away at the end of 2011. 

¶4 In June 2012, three years after the original Complaint was 

filed, the Carters’ claims against Landmark were dismissed on 

summary judgment, the court having determined that the 

Carters were not in privity of contract with Landmark. The 

Cottams, however, may have been in privity with Landmark 

with regard to the subject matter of the Carters’ claims because 

of the Cottams’ 2003 agreement with Landmark for geotechnical

investigation on the land underlying the Carters’ house. In fact, 

in a separate case, the Cottams had sued Landmark for 

fraudulent misrepresentation, fraudulent concealment, and 

negligent misrepresentation after another property in the 

Carters’ subdivision experienced similar soil-related damage. 

The Cottams, however, had not asserted any claims against 

Landmark in the Carters’ case. In any event, in May 2013, as part 

of a settlement in the Cottams’ bankruptcy case, the Carters 

acquired by assignment all claims the Cottams may have had

against Landmark related to the Carters’ property. Two months 

later, the Carters filed a motion with the district court requesting 

leave to amend the Complaint a third time in order to assert

those newly acquired claims. The district court denied the 

motion, and the Carters appeal that decision.

¶5 We review a district court’s denial of a motion to amend 

for abuse of discretion. Pride Stables v. Homestead Golf Club, Inc., 

2003 UT App 411, ¶ 11, 82 P.3d 198. 
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20140405-CA 3 2015 UT App 198

¶6 ‚A party may amend his pleading once as a matter of 

course at any time before a responsive pleading is served . . . .‛ 

Utah R. Civ. P. 15(a). Additional amendments may be filed ‚only 

by leave of court or by written consent of the adverse party,‛ but

‚leave shall be freely given when justice so requires.‛ Id. ‚This 

means that trial courts should ‘liberally allow amendments,’ but 

certain factors, such as untimeliness, futility, prejudice to the 

other side, and bad faith, ‘may weigh against the trial court’s 

allowing amendment.’‛ Warner v. Warner, 2014 UT App 16, ¶ 53, 

319 P.3d 711 (quoting Daniels v. Gamma W. Brachytherapy, LLC, 

2009 UT 66, ¶ 58, 221 P.3d 256). 

¶7 Here, the district court denied the motion on the basis that 

too much time had passed to permit a third amendment to the 

Complaint. The district court judge stated,

I am finding that plaintiff’s motion for leave 

to file the third Amended Complaint is denied. The 

circumstances as they exist in this case just prohibit 

a granting of that motion. The original Complaint 

was filed in June of 2009, . . . four plus years ago. 

The second Amended Complaint was filed in April 

of 2011, two plus years ago. We now have a lot of 

factors in this case that simply do not weigh in 

[favor of] this Court’s granting the motion . . . .

As part of its oral ruling, the district court quoted Kelly v. Hard 

Money Funding, Inc., 2004 UT App 44, 87 P.3d 734. Kelly states 

that motions to amend ‚filed in the advanced procedural stages 

of the litigation process‛ are ‚typically deemed untimely.‛ Id. 

¶ 29. Kelly further states that motions ‚filed several years into the 

litigation‛ are also generally untimely. Id. ¶ 30. This is so 

because 

[i]n such cases, the ongoing passage of time makes 

it increasingly difficult for the nonmoving party to 

effectively respond to the new allegations or 

claims. Parties in such circumstances are often 

hindered by witnesses who have since moved or 
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20140405-CA 4 2015 UT App 198

died, by their shaky memories and recollections, or 

by documents which have since been lost or 

destroyed. 

Id. While the district court did not go through each of the Kelly

concerns one by one, its ruling determined that a number were 

present in the case at hand and that too much time had passed to 

justify a grant of the motion to amend. In addition, the district 

court pointed to the fact that the attorney currently representing 

the Cottams, against whose assigned claims Landmark would 

have to defend, ‚doesn’t even know where his clients are 

anymore‛ and ‚can’t even get them to cooperate.‛ 

¶8 We find no abuse of discretion in the district court’s 

decision. Here, one of the parties had died,1 his family 

members—who would be at least tangentially involved in the 

litigation should the assigned claims be filed—had become 

difficult to locate or work with, and more than four years had 

passed since the filing of the Complaint. The Carters, however, 

contend that the court’s decision was an abuse of discretion 

because, by filing within a couple of months after being assigned 

the Cottams’ claims, and within a month of the stay in the 

Cottams’ bankruptcy case being lifted, they ‚acted promptly in 

filing the motion to amend.‛ Thus, they argue, ‚the filing of the 

motion to amend four years after the original Complaint and 

two years after the Second Amended Complaint are not a 

reasonable basis for the trial court’s ruling.‛ We disagree.

¶9 ‚*A+n assignee cannot stand in a better position than its 

assignor.‛ Sunridge Dev. Corp. v. RB&G Eng’g, Inc., 2010 UT 6, 

 

1. The Carters contend that Cottam’s death was not a reasonable 

basis for the district court’s determination that the motion to 

amend was untimely because Cottam had already testified 

during a deposition ‚regarding the material facts on which the 

assigned claims are based.‛ Because of the way we resolve the 

issue on appeal, we need not address this specific argument.
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20140405-CA 5 2015 UT App 198

¶ 16, 230 P.3d 1000; see also 6 Am. Jur. 2d Assignments § 108

(2008) (‚*T+he assignee has no greater rights than the assignor.‛).

‚In other words, the common law puts the assignee in the 

assignor’s shoes, whatever the shoe size.‛ Sunridge, 2010 UT 6,

¶ 13 (citation and internal quotation marks omitted). 

Accordingly, the Cottams’ timeliness in bringing their claims 

against Landmark in this case is of as much consequence here as 

the Carters’ timeliness in bringing their motion to amend. The 

Carters assert that the Cottams ‚discover*ed+ their claims‛ 

against Landmark in February 20102 but were justified in failing 

to assert them during the three years or so prior to the 

assignment because between September 2010 and June 2013 ‚the 

claims were the property of the *Cottams’+ bankruptcy estate.‛ 

But the Carters concede that, while the Cottams’ decision to

delay filing their claims against Landmark until their bankruptcy 

case had been resolved might have been prudent or 

advantageous to the Cottams, the ‚Cottams could have 

continued this case during the bankruptcy, but chose not to.‛ 

The Carters’ contention that the assigned claims against 

Landmark were brought in a timely fashion is not convincing 

given that more than three years passed between the time the 

claims were discovered and the time when the Carters brought 

their motion to amend. Rather, the Carters stand in the shoes of 

the Cottams on the assigned claims, see id., and must bear the 

consequences of the Cottams’ decision not to pursue their claims 

against Landmark during their bankruptcy proceedings. 

¶10 The Carters further argue that, under Kelly, the district 

court had discretion to deny their third motion to amend only if 

it found the ‚late filing was due to a dilatory motive, a bad faith 

effort during the pleading process, or unreasonable neglect in 

terms of pleading preparation.‛ (Citing Kelly, 2004 UT App 44, 

 

2. Landmark argues that the Cottams discovered their claims as 

early as June 2009 when the Carters filed the Complaint. For 

purposes of our analysis, we accept the date put forward by the 

Carters. 
Carter v. Landmark

20140405-CA 6 2015 UT App 198

¶¶ 37–38.) But the Carters have misunderstood the law. In other 

words, the Carters did not buy new claims, they bought claims 

that had been shelved for years; even though they were new to 

the Carters, they were still claims that could have been pursued 

earlier.

¶11 Kelly discussed three factors that trial courts may analyze 

in determining whether to grant a motion to amend: 

(1) timeliness, (2) prejudice, and (3) justification. Kelly, 2004 UT 

App 44, ¶¶ 26, 28–38. Under the justification prong, a district 

court should ‚focus*+ on the reasons offered by the moving 

party‛ for failing to include the new ‚facts or allegations in the 

original complaint.‛ Id. ¶ 38. In doing so, a court should look for 

‚a dilatory motive, a bad faith effort . . . , or unreasonable 

neglect.‛ Id. The Carters argue that ‚there is no evidence that 

*the Cottams’+ failure to file claims against Landmark and their 

failure to prosecute their claims against Landmark during the 

bankruptcy case [were] due to a dilatory motive, a bad faith 

effort during the pleading process, or unreasonable neglect in 

terms of pleading preparation.‛ Accordingly, the Carters argue 

that it was improper for the district court to deny their motion to 

amend.

¶12 But district courts are not required to find that all three 

factors (timeliness, prejudice, and justification) are satisfied 

before denying a motion to amend. Kelly v. Hard Money Funding, 

Inc., 2004 UT App 44, ¶ 42, 87 P.3d 734. Rather, ‚a court’s ruling 

on a motion to amend can be predicated on only one or two of 

the particular factors,‛ and ‚depending on the facts of a 

particular case, the weight that a court gives to one or another 

particular factor may vary.‛ Id. Indeed, ‚a court is under no 

obligation to consider any or all of the [three] specific factors that 

we have discussed above,‛ as long as the court provides an 

explanation for its decision grounded in the ‚appropriate 

principles of law or the factual circumstances that necessitate a 

particular result.‛ See id. Thus, a finding of untimeliness alone, 

without consideration of the justification or prejudice factors, 

can be a sufficient ground for a district court to deny a motion to 
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20140405-CA 7 2015 UT App 198

amend. See id. (‚‘*A+ district court acts within the bounds of its 

discretion when it denies leave to amend for ‚untimeliness‛ or 

‚undue delay.‛ Prejudice to the opposing party need not be 

shown also.’‛ (quoting First City Bank, NA v. Air Capitol Aircraft 

Sales, Inc., 820 F.2d 1127, 1133 (10th Cir. 1987))). 

¶13 We have previously affirmed district court decisions to 

deny motions to amend on the grounds of untimeliness even 

where no accompanying finding of prejudice or specific 

discussion regarding a movant’s ‚dilatory motive,‛ ‚bad faith 

effort,‛ or ‚unreasonable neglect‛ was apparent. See, e.g., Failor v. 

MegaDyne Med. Prods., Inc., 2009 UT App 179, ¶¶ 27–29, 213 P.3d 

899 (affirming the trial court’s denial of a motion to amend on 

the grounds of untimeliness alone because ‚[t]rial courts are in a 

much better position than appellate courts to make such casespecific determinations as to whether too much time has passed 

to fairly allow an amendment‛ (alteration in original)); Raiser v. 

Brigham Young Univ., 2007 UT App 105U, paras. 8–10 (per 

curiam) (affirming the district court’s decision to deny a motion 

to amend on grounds of untimeliness where the appellant had 

failed to state any grounds in support of allowing a motion to 

amend so late into the litigation). Thus, the district court was not 

required, as the Carters contend, to find the delay in bringing the 

claims was specifically a result of a ‚dilatory motive, a bad faith 

effort during the pleading process, or unreasonable neglect in 

terms of pleading preparation‛ before denying their motion to 

amend. Rather, the district court was within its discretion to 

make a ‚case-specific determination*+,‛ see Failor, 2009 UT App 

179, ¶ 28, to deny the Carters’ third motion to amend on the 

ground that it was untimely—a determination we have already 

concluded was justified under the circumstances here where 

several years had passed between the filing of the original 

Complaint and the third motion to amend.

¶14 Accordingly, we affirm.