The Appellate Group

Black Diamond v. Big Cottonwood

Black Diamond v. Big Cottonwood, 2020 UT App 90 (Christiansen Forster, J.)


A landowner owned a lot and a water share in that lot. He signed over the water share to Kincaid, and Big Cottonwood issued a new water share certificate to Kincaid. The landowner thereafter defaulted on his mortgage and Lot 25 was sold to Black Diamond. Black Diamond was unsuccessful in getting water to the lot. Black Diamond sued Big Cottonwood and Kincaid. But the district court granted summary judgment to Kincaid, struck Black Diamond’s untimely supplemental disclosures, and granted summary judgment to Big Cottonwood with respect to damages. The Utah Court of Appeals affirmed, holding:

  • The district court correctly granted summary judgment in favor of Kincaid. Kincaid was a successor in interest in the lot’s water share, even though the certificate was newly issued and, therefore, newly numbered. The water share held by Kincaid was the same water share held by the previous owners of Lot 25.
  • The district court did not exceed its discretion in striking Black Diamond’s supplemental disclosures. Black Diamond’s supplemental disclosures asserted two alternative methods of valuation, neither of which was disclosed prior.
  • Black Diamond’s failure to timely disclose its theory of damages prejudiced Big Cottonwood. Big Cottonwood could not be expected to devote time and resources to discovery regarding undisclosed damages theories and computations based on conjecture that Black Diamond might like to pursue them down the road.
  • The district court did not err in granting Big Cottonwood’s motion for summary judgment with respect to damages. Black Diamond purchased Lot 25 without a water share. It has not demonstrated that it suffered any damages as a result of Big Cottonwood’s breach.

Read the full court opinion