Burningham v. Westgate Resorts, Ltd.

2013 UT App 244, 317 P.3d 445, 745 Utah Adv. Rep. 9, 2013 WL 5569110, 2013 Utah App. LEXIS 243
CourtCourt of Appeals of Utah
DecidedOctober 10, 2013
Docket20120469-CA
StatusPublished
Cited by8 cases

This text of 2013 UT App 244 (Burningham v. Westgate Resorts, Ltd.) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burningham v. Westgate Resorts, Ltd., 2013 UT App 244, 317 P.3d 445, 745 Utah Adv. Rep. 9, 2013 WL 5569110, 2013 Utah App. LEXIS 243 (Utah Ct. App. 2013).

Opinion

*447 BENCH, Senior Judge:

11 Westgate Resorts, Ltd. (Westgate) appeals from the district court's entry of summary judgment in favor of Jeff Burningham in Burningham's action for the return of $89,900 that he had paid to Westgate as a deposit on the purchase of a condominium unit. We affirm.

BACKGROUND

T2 In 2006, Burningham and Westgate entered into a real estate purchase contract (the REPC) whereby Burningham agreed to purchase a Park City condominium unit from Westgate for $899,000. Pursuant to the REPC, Burningham made a 10% deposit of $89,900, which was to be retained by West-gate as liquidated damages if Burningham defaulted. As the 2007 closing date approached, real estate market conditions worsened, and Burningham refused to close. A dispute arose between the parties as to whether Burningham was entitled to are-fund of the deposit, with Burningham alleging that Westgate had made misrepresentations to fraudulently induce him to enter into the REPC.

3 The parties spent several months negotiating in an attempt to resolve the deposit dispute without litigation. Burningham proposed to settle the matter by allowing West-gate to retain $80,000 of the deposit and return the rest, but Westgate took the position that it was entitled to the entire deposit and declined Burningham's offer. Burning, ham then asked Westgate to sell him the condominium unit for a substantially reduced price, and Westgate agreed.

{ 4 In September 2010, the parties settled their dispute by executing a second contract (the Agreement) for the sale of the condominium unit, this time for the reduced purchase price of $462,500. The only deposit contemplated by the Agreement was the $89,900 that Burningham had previously paid Westgate under the REPC. The Agreement designated the $89,900 as the "Initial Deposit" and stated its due date as "Already deposited." The Agreement purported to resolve all outstanding issues between the parties arising under the REPC and stated that it was "wholly integrated and shall supersede any and all previous and current understandings and agreements between the Buyer and Seller." The Agreement also expressly abrogated the REPC, stating that the Agreement "replaces in its entirety a previous purchase and sale agreement entered into between Buyer and Seller with respect to a unit."

1 5 Unlike the REPC, the Agreement contained a provision granting Burningham the right to terminate the Agreement in his sole discretion merely by giving notice to West-gate within seven days of the Agreement's effective date. Paragraph 38.1 of the Agreement, entitled "Buyer's Due Diligence," stated,

Buyer, in its sole discretion, may terminate this Agreement within seven (7) days of the Effective Date (as defined in Paragraph 44 of this Agreement) by delivering written notice to Seller.... If Buyer timely terminates this Agreement under this Section 39.1,[ 2 ] the deposit(s) paid shall be returned to Buyer; thereupon, Buyer shall be released from all further obligations under this Agreement, except as specifically set forth herein.

Burningham exercised this termination option by giving timely written notice to West-gate. However, Westgate refused to return Burningham's deposit, contending that neither party had intended to provide Burning ham the unilateral right to cancel the Agreement and recover the full $89,900 originally deposited under the REPC.

16 Burningham sued Westgate for the return of the deposit, and Westgate brought counterclaims arguing mutual mistake and seeking declaratory relief under the Agreement. - Burningham moved for summary judgment, arguing that his entitlement to the deposit pursuant to paragraph 38.1 of the Agreement was clear as a matter of law. Westgate opposed the motion, arguing that the parties' mutual intent in executing the Agreement was that the $89,900 be treated as a nonrefundable credit towards the purchase price of the condominium unit.

*448 17 Westgate argued that Burningham's release of all his claims under the REPC evidenced his intent to forfeit the deposit. Westgate also submitted a declaration from its sales agent who had negotiated the Agreement. The sales agent's declaration stated that it was Westgate's understanding that both parties intended "that Westgate would retain Burningham's deposit under [the REPC] as liquidated damages, but would also reduce the price of the [condominium unit] in an amount equal to the forfeited deposit, subject to closing." The sales agent based this conclusion on his "discussions and interactions" with Burningham leading up to the execution of the Agreement.

18 The district court granted Burning-ham's motion for summary judgment. In its summary judgment order, the district court identified multiple undisputed facts, including the existence of paragraph 88.1's termination and refund provisions. The district court then concluded that the Agreement was an integrated contract, that it unambiguously identified the $89,900 as the "deposit," and that it unambiguously provided for the return of that deposit to Burningham in the event that he timely terminated the Agreement. The district court also concluded that there were no cireumstances such as fraud or mistake that would require the court to consider Westgate's extrinsic evidence-ie., the sales agent's declaration-despite the Agreement's unambiguous language. Accordingly, the district court determined that Westgate had breached the Agreement as a matter of law and awarded Burningham judgment for $89,900 plus interest and attorney fees pursuant to the Agreement.

1 9 Westgate filed a motion for new trial in the district court, arguing that the district court had erred in failing to consider extrinsic evidence because Westgate had raised a claim of mutual mistake and because paragraph 88.1's reference to "this Section 39.1" constituted a serivener's error. The district court denied Westgate's motion, concluding that the sales agent's declaration failed to create a fact question on mutual mistake, as opposed to a unilateral mistake by Westgate. The district court also concluded that the reference to the nonexistent section 39.1 was an "obvious typographical error" and that Westgate had presented no evidence that the deposit-refund language in the last sentence of paragraph 38.1 was intended to be triggered by any other actual or proposed termination language. Westgate appeals.

ISSUES AND STANDARDS OF REVIEW

T10 Westgate argues that the district court erred in granting summary judgment to Burningham because there were material fact questions as to the parties' intent on the refundability of the $89,900. - Specifically, Westgate argues that evidence of mutual mistake, serivener's error, and the lack of a meeting of the minds each raise a material fact question on the parties' intent so as to preclude summary judgment. "An appellate court reviews a trial court's 'legal conclusions and ultimate grant or denial of summary judgment' for correctness and views 'the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.'" Wolf Mountain Resorts, LC v. ASC Utah, Inc., 2011 UT App 425, ¶ 8, 268 P.3d 872 (quoting Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600). "A motion for summary judgment may not be granted if ... there is a factual issue as to what the parties intended." Id.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 UT App 244, 317 P.3d 445, 745 Utah Adv. Rep. 9, 2013 WL 5569110, 2013 Utah App. LEXIS 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burningham-v-westgate-resorts-ltd-utahctapp-2013.