2016 UT App 198

THE 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

20131177-CA 2 2016 UT App 198

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).
Blackmore v. L&D Development

20131177-CA 3 2016 UT App 198

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 
Blackmore v. L&D Development

20131177-CA 4 2016 UT App 198

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 
Blackmore v. L&D Development

20131177-CA 5 2016 UT App 198

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 
Blackmore v. L&D Development

20131177-CA 6 2016 UT App 198

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 
Blackmore v. L&D Development

20131177-CA 7 2016 UT App 198

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 
Blackmore v. L&D Development

20131177-CA 8 2016 UT App 198

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) 
Blackmore v. L&D Development

20131177-CA 9 2016 UT App 198

(‚*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<)
Blackmore v. L&D Development

20131177-CA 10 2016 UT App 198

¶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 

 

(<continued)

the trial court’s denial of the motion for judgment 

notwithstanding the verdict on the issue of abandonment, we 

need not reach issues related to Blackmore’s evidence on 

damages. See Eldridge v. Farnsworth, 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.
Blackmore v. L&D Development

20131177-CA 11 2016 UT App 198

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 
Blackmore v. L&D Development

20131177-CA 12 2016 UT App 198

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. 
Blackmore v. L&D Development

20131177-CA 13 2016 UT App 198

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. 
Blackmore v. L&D Development

20131177-CA 14 2016 UT App 198

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 
Blackmore v. L&D Development

20131177-CA 15 2016 UT App 198

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<)
Blackmore v. L&D Development

20131177-CA 16 2016 UT App 198

¶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 

 

(<continued)

Blackmore’s motion for judgment notwithstanding the verdict 

focused on whether there was a basis in the evidence for the jury 

to conclude that Blackmore had abandoned the contract, this

argument about Shadow Canyon’s acquiescence is not 

preserved, and we therefore do not consider it. See 438 Main St. 

v. Easy Heat, Inc., 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‛).
Blackmore v. L&D Development

20131177-CA 17 2016 UT App 198

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 
Blackmore v. L&D Development

20131177-CA 18 2016 UT App 198

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 
Blackmore v. L&D Development

20131177-CA 19 2016 UT App 198

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).
Blackmore v. L&D Development

20131177-CA 20 2016 UT App 198

¶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 
Blackmore v. L&D Development

20131177-CA 21 2016 UT App 198

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).
Blackmore v. L&D Development

20131177-CA 22 2016 UT App 198

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).