Thatcher v. Lang

2020 UT App 38
THE UTAH COURT OF APPEALS
M ELANIE M ADSEN THATCHER ,
Appellee and Cross-appellant,
v.
M ICHAEL LANG,
Appellant and Cross-appellee.
Opinion
No. 20180009-CA
Filed March 12, 2020
Fifth District Court, St. George Department
The Honorable G. Michael Westfall
No. 120500520
Karra J. Porter, Kristen C. Kiburtz, and,
J.D. Lauritzen, Attorneys for Appellee and
Cross-appellant
Bryan J. Pattison and Elijah L. Milne, Attorneys for
Appellant and Cross-appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 	This is a dispute about a $1.8 million real estate purchase
contract (Contract) gone sour. After the purchase fell through,
the trial court ruled that (1) Michael Lang (Buyer) was not
entitled to specific performance, (2) Melanie Madsen Thatcher
(Seller) was entitled to have title quieted in her favor, (3) Seller
was not entitled to liquidated damages, and (4) Buyer could
recover a portion of the principal and interest payments he made
to Seller under a theory of unjust enrichment. We affirm on the
issues of specific performance and liquidated damages, but
reverse and remand on the issues of quiet title and unjust
enrichment.

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BACKGROUND1
¶2 	This 	dispute 	arises 	from 	a 	real 	estate 	transaction
concerning approximately nineteen acres of land located 	in
Springdale, Utah (Property). In February 2006, Buyer and Seller
entered into an option agreement (Option) granting Buyer the
exclusive right to purchase the Property. In May 2006, Buyer
exercised the Option, and the parties entered into the Contract
wherein Buyer agreed to buy, and Seller agreed to sell, the
Property for $1,800,000 (Purchase Price). The Purchase Price
was 	originally 	payable 	as 	follows: 	$50,000 	non-refundable
option payment to be applied as principal; $100,0002 due on
May 1, 2006; $400,000 due on July 5, 2006; $600,000 due on
January 5, 2007; and $650,000 due at closing on or before January
5, 2008.
1. “On appeal from a bench trial, findings of fact shall not be set
aside unless clearly erroneous, and . . . we relate the facts
accordingly, granting due deference to the trial court’s resolution
of factual disputes.” Armed Forces Ins. Exch. v. Harrison, 2003 UT
14, ¶ 2, 70 P.3d 35 (cleaned up).
2. The Option designated the $50,000 and $100,000 payments as
non-refundable. However, in an addendum to the Option, only
the $50,000 payment was designated as non-refundable—not the
$100,000 payment. The Contract similarly designates the $50,000
option 	payment 	as 	non-refundable, 	but 	not 	the 	$100,000
payment. The Contract further provides, “The terms of the
Option . . . have been merged herein and to the extent any terms
or 	conditions 	of 	the 	Option 	. 	. 	. 	conflict 	or 	are 	otherwise
inconsistent with this [Contract], the terms of this [Contract]
shall control.” Thus, because the refundability designation of the
$100,000 is inconsistent between the Option and the Contract,
the Contract governs and the $100,000 payment does not carry
the non-refundable designation.

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20180009-CA 	3 	2020 UT App 38
¶3 	The 	Contract 	contained 	specific 	provisions 	governing
default by either party. In the event of Seller’s default, Buyer’s
contractual remedy was provided by section 4.3 of the Contract
(Seller Default Clause):
4.3 	Seller 	Default. 	Upon 	thirty 	(30) 	days 	prior
notification in writing by Buyer to Seller of any
material breach of the representations, warranties
and covenants of Seller set forth in this Section 4 or
elsewhere in this Agreement, Seller, at Seller’s own
expense, shall cure or remedy any such breach of
such representations, warranties and covenants. If
Seller 	fails 	within 	thirty 	(30) 	days 	following
Buyer’s notice thereof to cure or otherwise remedy
the breach, Buyer may terminate this Agreement
upon notice to Seller. With respect to any cloud on
title that may be cured by payment of cash at
Closing, Seller shall have until Closing to cure such
cloud. In such event, any sums paid by Buyer to
Seller shall be returned to Buyer except for the
initial $50,000 payment referenced in Section 1.2(a).
Nothing 	contained 	in 	this 	Section 	shall 	be
construed 	to 	require 	Buyer 	to 	postpone 	the
Closing, or to limit or preclude the recovery by
Buyer against Seller of any sums for damages to
which 	Buyer 	may 	lawfully 	be 	entitled, 	or 	the
exercise 	by 	Buyer 	of 	any 	equitable 	rights 	or
remedies, 	including, 	without 	limitation, 	the
remedy of specific performance, to which Buyer
may lawfully be entitled by reason of any material
breach of any of the representations, warranties or
covenants of Seller set forth in this Agreement.
Conversely, in the event of Buyer’s default, Seller’s contractual
remedy was provided by section 4.4 of the Contract (Buyer
Default Clause):

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4.4 	Buyer 	Default. 	Seller 	may 	terminate 	this
Agreement by giving written notice to Buyer if
Buyer materially breaches any covenant or other
obligation of Buyer under this Agreement and fails
to cure such breach within thirty (30) days after
written notice from Seller is received by Buyer
specifying 	such 	breach. 	If 	Buyer 	fails 	to 	make
payment on or before any deadline provided for
herein after the expiration of thirty (30) day grace
period, 	all 	payment 	previously 	made 	shall 	be
forfeited to Seller as liquidated damages.
¶4 	In December 2006, the parties amended the Contract. At
the time, Buyer had paid the first $550,000, less $12,500 due to a
misunderstanding 	between 	the 	parties. 	The 	amendment
required Buyer to pay the delinquent $12,500 plus $125,000—
both to be applied to the Purchase Price—by January 5, 2007. A
final payment of $1,125,000 would be due by the original closing
date of January 7, 2008. In return for Seller excusing the third-
scheduled 	payment 	of 	$600,000, 	Buyer 	also 	agreed 	to 	pay
$101,250 	in 	interest—amounting 	to 	9% 	interest 	on 	the
outstanding Purchase Price. Buyer paid Seller the agreed-upon
installment and interest payments, leaving a principal balance of
$1,125,000 due on or before January 7, 2008.
¶5 	On September 13, 2007, the parties amended the Contract
again. This amendment provided that (1) the closing date could
be delayed up to five years, until January 10, 2013 (Effective
Closing 	Date); 	(2) 	Buyer 	was 	required 	to 	make 	principal
payments 	of 	$50,000—due 	within 	ten 	days 	of 	signing 	the
amendment—and $75,000—due by December 23, 2007; and (3)
beginning January 10, 2008, Buyer would make $10,000 monthly
interest payments until he closed on the Property. The parties
executed 	the 	amendment, 	and 	Buyer 	paid 	the 	$50,000 	and
$75,000 	principal 	payments—leaving 	a 	principal 	balance 	of
$1,000,000 due on or before closing.

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¶6 	Buyer struggled to stay current on the monthly interest
payments. In September 2010, Buyer’s interest payment was a
week late. He was late again the following month, at which time
he secured a loan. From the loan, he used $40,000 to pay the
delinquent October 2010 interest payment and prepay the next
three months. But by October 2011, Buyer was behind on interest
payments again.
¶7 	On December 5, 2011, Seller sent Buyer a written notice of
default (First Notice). Seller’s First Notice explained that Buyer
was behind on interest payments, property taxes, and other
assessments which were his responsibility under the Contract.
Specifically, the First Notice stated,
This is a notice of breach and request to cure all
breaches . . . including payment 	in full 	of all
Washington County taxes and other assessments
past 	due 	and 	owing 	on 	[the 	Property]. 	Public
information 	on 	the 	taxes 	due 	. 	. 	. 	is 	attached
herewith.
You 	are 	currently, 	once 	again, 	late 	on 	your
monthly 	payment. 	. 	. 	. 	This 	includes 	city 	and
county assessments. . . .
In 	addition, 	Seller 	requests 	reimbursement 	for
water, sewer and other city assessments she paid
during 	2006–2008 	which 	were 	Buyer’s
responsibility to pay. An invoice of payments and
dates will follow.
Please 	note 	that 	you 	are 	currently 	in 	default
pursuant to Clause 11 of the Option now merged
with [the Contract] and Clause 4.4 of [the Contract]
on scheduled payment and nearing the thirtieth
(30th) day of delinquency.

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Buyer 	attempted 	to 	negotiate 	an 	extension 	on 	the 	overdue
payments, but Seller refused. Strapped for cash, Buyer obtained
a second loan. With those funds in hand, Buyer timely cured the
defaults identified in the First Notice.
¶8 	As 	of 	February 	2, 	2012, 	Buyer 	was 	current 	on 	all
payments due under the Contract, and he was planning to
secure financing that would enable him to close on the Property.
On February 9, 2012, Buyer’s attorney wrote Seller asking that
she be prepared to close on the Property by March 10, 2012. On
February 21, 2012, Buyer again contacted Seller, stating that he
had the required amount of “money together”3 and wanted to
close by March 15, 2012. Seller responded that she disagreed
with 	Buyer 	about 	the 	total 	amount 	due 	at 	closing 	but
nonetheless indicated that she would be willing to close anytime
before March 8, 2012, because she planned to leave the country
on that date. Buyer was unable to secure financing by March 8,
2012; Seller left the country, and the parties agreed to close at
some point after her return.
¶9 	Over the ensuing months, the parties quibbled about the
total amount due at closing. Then, on April 23, 2012, Buyer
informed his attorney, who in turn informed Seller, that if Buyer
did not receive certain accounting information from Seller by the
following day, he would “start[] every legal procedure possible”
and that Seller “would not believe the damages if she did not
comply with his demands.” The following day, Seller initiated a
3. Whether Buyer actually had the “money together” for closing
was hotly contested. However, because Buyer’s failure to timely
make interest payments under the Contract undermined his
claim for specific performance, infra ¶¶ 24–25, his ability or
willingness to tender in 2012, or at any other time, is not a
determinative 	factor 	as 	to 	whether 	the 	trial 	court 	properly
denied specific performance.

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lawsuit against Buyer, incorrectly alleging that Buyer had “not
been current since October 10, 2011,” and requested that the
court quiet title to the Property in her favor (Lawsuit-1). Seller
never served Buyer with Lawsuit-1.4
¶10 	Despite their respective posturing, the parties continued
to 	work 	toward 	a 	closing. 	However, 	a 	closing 	tentatively
scheduled for April 26, 2012, fell through because Buyer “never
tendered payment of the amount he claimed was due, . . . was
behind on his monthly payments, . . . had not yet completed due
diligence 	items, 	. 	. 	. 	and 	. 	. 	. 	was 	involved 	in 	litigation”
concerning the zoning designation of the Property. Another
tentative closing, scheduled for May 4, 2012, fell through because
Buyer did not tender the amount due by that date.
¶11 	On July 1, 2012, Seller mailed a second notice of default
(Second Notice) to Buyer stating,
As you are aware, you are now, and have been for
many 	months, 	in 	default 	and 	breach 	of 	the
[C]ontract for purchase of [the Property].
This 	is 	not 	your 	first 	notice, 	and 	you 	have
previously received written notice pursuant to the
[C]ontract.
Although you have defaulted, I expected to hear
from you concerning my willingness to allow you
to cure the default, but I have not.
4. The trial court would later rule that “[t]he filing of [Lawsuit-1]
was not a repudiation of the [C]ontract or a breach of the same
but was, instead, a misguided effort to secure jurisdiction in
Utah” and was in response to Buyer’s threat to initiate legal
action.

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Buyer did not make any payments or respond to the Second
Notice.
¶12 	On August 13, 2012, Seller mailed a notice of forfeiture to
Buyer. Therein, Seller indicated that she believed that Buyer had
failed to cure within thirty days of receiving the Second Notice,
and therefore the Contract was terminated and he needed to
remove his notice of interest and any liens or lis pendens
associated with the Property.
¶13 	On 	August 	28, 	2012, 	Seller 	filed 	the 	current 	action
(Lawsuit-2) and requested, among other things, that the trial
court quiet title to the Property in her favor. Buyer filed a
counterclaim for breach of contract, requesting that the court
order 	specific 	performance 	and, 	alternatively, 	for 	unjust
enrichment, requesting that the court order Seller to return all
principal payments ($800,000) and interest payments ($671,250)
to Buyer.
¶14 	Importantly, during this time period, Buyer withheld
interest 	and 	other 	payments 	due 	under 	the 	Contract. 	In
fact, 	Buyer 	did 	not 	make 	any 	interest 	payments 	to 	Seller
after 	February 	2012, 	and 	the 	court 	found 	that 	“[Buyer’s]
failure to tender any further payments to [Seller] . . . was
not 	reasonable” 	and 	that 	“some 	of 	[Buyer’s] 	written
communications indicate that he was deliberately withholding
payments 	as 	leverage 	to 	get 	[Seller] 	to 	give 	him 	certain
information.”
¶15 	In November and December 2015, the court held a seven-
day bench trial. The court initially ruled that Seller committed
the first material breach—on the ground that Seller’s actions
prevented Buyer from obtaining financing—and ordered specific
performance of the Contract. The parties subsequently filed
various motions to alter or amend the court’s findings and
conclusions.

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20180009-CA 	9 	2020 UT App 38
¶16 	In 	considering 	the 	parties’ 	post-trial 	motions, 	the
court 	reviewed 	the 	evidence 	and 	exhibits 	and 	determined
that its prior findings and conclusions should be amended.
Specifically, 	the 	court 	stated, 	“In 	reaching 	its 	previous
[f]indings 	and 	[c]onclusions, 	the 	court 	overlooked 	[an]
exhibit” 	demonstrating 	that 	for 	Buyer 	to 	obtain 	the
necessary 	financing 	to 	close, 	“a 	recent 	appraisal 	showing
$2,450,000 	on 	[the 	Property]” 	was 	required. 	The 	court
further 	found 	that 	“although 	[Buyer] 	had 	obtained 	an
appraisal 	(dated 	January 	10, 	2012) 	showing 	the 	requisite
value 	for 	[the 	Property], 	the 	value 	shown 	on 	the 	first
appraisal was based in part on [the Property] being zoned
for commercial use.” (Cleaned up.) Thus, where Buyer “had . . .
lost the favorable commercial rezoning for [the Property], . . .
this court cannot determine that . . . [Buyer] would have been
able to obtain financing.”
¶17 	In 	its 	amended 	conclusions 	of 	law, 	the 	court 	ruled
that “[Buyer] not only failed to tender the principal amount
which 	he 	knew 	was 	due, 	he 	failed 	to 	tender 	any 	interest
payments 	that 	he 	knew 	were 	due 	until 	the 	deadline 	for
his 	performance 	in 	January 	2013. 	His 	failure 	to 	tender
anything, 	under 	the 	circumstances 	of 	this 	case, 	precludes”
his request for specific performance. And “[a]lthough [Buyer]
has 	argued 	that 	[Seller’s] 	actions 	prevented 	and 	excused
his tender . . . the court cannot agree.”
¶18 	Based 	on 	its amended 	findings, 	the 	court 	ruled 	that
(1) neither party could recover under their claims for breach
of contract; (2) Buyer was not entitled to specific performance;
(3) 	Seller’s 	Second 	Notice 	was 	deficient, 	and 	therefore 	she
could 	not 	terminate 	the 	Contract 	and 	retain 	all 	previously
made 	principal 	payments 	as 	liquidated 	damages; 	and
(4) 	Buyer 	was 	entitled 	to 	recover 	$800,000 	in 	principal
payments from Seller under a theory of unjust enrichment.

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20180009-CA 	10 	2020 UT App 38
¶19 	Both parties appeal.5
ISSUES AND STANDARDS OF REVIEW
¶20 	Four issues are raised on appeal, two by Buyer and two
by Seller. First, Buyer claims that the trial court erred in denying
specific performance of the Contract. “Specific performance is a
remedy of equity . . . and accordingly, considerable latitude of
discretion is allowed in determination as to whether it shall be
granted and what judgment should be entered in respect thereto;
and ruling thereon should not be upset on appeal unless it
clearly appears that [the court] has abused [its] discretion.” Carr
v. Enoch Smith Co., 781 P.2d 1292, 1294 (Utah Ct. App. 1989)
(cleaned up).
¶21 	Second, 	Buyer 	contends 	that 	the 	trial 	court 	erred 	in
quieting title in favor of Seller. “Determination of the proper
scope of a quiet title action presents a legal question that we
review for correctness.” Haynes Land & Livestock Co. v. Jacob
Family Chalk Creek, LLC, 2010 UT App 112, ¶ 8, 233 P.3d 529; see
also Salt Lake City v. Silver Fork Pipeline Corp., 2000 UT 3, ¶ 18, 5
P.3d 1206 (“A quiet title action requires the application of a rule
of law to decide ownership of the property in question.”),
5. Neither party has challenged the court’s amended findings of
fact, 	nor 	has 	either 	challenged 	the 	propriety 	of 	the 	court
amending 	its 	findings 	and 	conclusions, 	which 	essentially
reversed 	the 	court’s 	prior 	ruling 	and 	order 	for 	specific
performance. 	Further, 	the 	court 	indicated 	that 	its 	amended
findings 	and 	conclusions 	overruled 	the 	prior 	findings 	and
conclusions with exception only to the procedural history. Thus,
our review of this matter is limited to the facts and conclusions
as stated in the trial court’s amended order. See Bailey–Allen Co.
v. Kurzet, 945 P.2d 180, 185–86 (Utah Ct. App. 1997).

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20180009-CA 	11 	2020 UT App 38
overruled on other grounds by Jensen v. Jones, 2011 UT 67, 270 P.3d
425.
¶22 	Third, Seller claims that the trial court erred in ruling that
the Second Notice to Buyer was deficient and in deciding in turn
to 	deem 	the 	Contract 	terminated 	and 	not 	to 	enforce 	the
liquidated damages provision under the Buyer Default Clause.
“‘[Q]uestions of contract interpretation not requiring resort to
extrinsic evidence are matters of law, which we review for
correctness.’” Fort Pierce Indus. Park Phases II, III & IV Owners
Ass'n v. Shakespeare, 2016 UT 28, ¶ 15, 379 P.3d 1218 (quoting
Fairbourn Commercial, Inc. v. American Housing Partners, Inc., 2004
UT 54, ¶ 6, 94 P.3d 292).
¶23 	Fourth, 	Seller 	contends 	that 	the 	trial 	court 	erred 	in
granting 	Buyer relief 	under 	a 	theory of unjust 	enrichment.
“Claims based on equitable doctrines are mixed questions of fact
and law. Accordingly, we defer to a trial court’s factual findings
unless there is clear error but review its legal conclusions for
correctness.” Cottonwood Improvement Dist. v. Qwest Corp., 2013
UT App 24, ¶ 2, 296 P.3d 754 (cleaned up).
ANALYSIS
I. Specific Performance
¶24 	As a general rule, a party seeking specific performance
“must make a tender of his own agreed performance in order to
put the other party in default.” PDQ Lube Center, Inc. v. Huber,
949 P.2d 792, 799 (Utah Ct. App. 1997) (cleaned up); see also
Century 21 All W. Real Estate & Inv. Inc. v. Webb, 645 P.2d 52, 56
(Utah 1982). However, “‘an action for specific performance may
also be maintained if the plaintiff presents an excuse for his
failure to make such payment or tender and avers his ability,
readiness and willingness to pay the contract amount.’” PDQ
Lube Center, Inc., 949 P.2d at 799 (quoting Reed v. Alvey, 610 P.2d

Thatcher v. Lang
20180009-CA 	12 	2020 UT App 38
1374, 1379 (Utah 1980)). Importantly, even if a party could
hypothetically “surmount the no tender hurdle” to be granted
specific performance, that party “must have clean hands . . . .
That is, he must take care to discharge his own duties under the
contract.” Carr v. Enoch Smith Co., 781 P.2d 1292, 1295 (Utah Ct.
App. 1989) (cleaned up).
¶25 	Here, 	the 	trial 	court 	denied 	Buyer’s 	request 	for
specific 	performance 	because 	Buyer 	had 	tainted 	hands.
Among other things, Buyer stopped making interest payments
in 	February 	2012—prior 	to 	the 	filing 	of 	both 	Lawsuit-1
and Lawsuit-2—and never made a single payment thereafter.
And while Buyer argues that he was excused from tendering
the 	outstanding 	principal 	due 	to 	Seller’s 	actions, 	he 	does
not 	address, 	discuss, 	or 	justify 	his 	failure 	to 	make 	the
interest payments as they became due. Even if Buyer could
persuade 	us 	that 	he 	was 	excused 	from 	tendering 	the
outstanding principal, he has failed to show that he otherwise
discharged his duties under the Contract and is entitled to an
award of specific performance. Id.; see also Fischer v. Johnson, 525
P.2d 45, 46 (Utah 1974). Thus, we conclude that the trial court
did not exceed its discretion in denying Buyer’s claim for specific
performance.
II. Quiet Title
¶26 	Generally, “to succeed in an action to quiet title to real
estate, a plaintiff must prevail on the strength of his own claim to
title and not on the weakness of a defendant’s title or even its
total lack of title.” Collard v. Nagle Constr., Inc., 2002 UT App 306,
¶ 18, 57 P.3d 603 (cleaned up); see also WDIS, LLC v. Hi-Country
Estates Homeowners Ass'n, 2019 UT 45, ¶ 42 n.73, 449 P.3d 171
(“One seeking to quiet title must allege title, entitlement to
possession, and that the estate or interest claimed by others is
adverse or hostile to the alleged claims of title or interest.”
(cleaned up)).

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¶27 	Here, the trial court made no findings or conclusions
concerning 	Seller’s 	claim 	to 	title. 	If 	the 	court’s 	quiet 	title
judgment 	were 	now 	before 	us 	for 	review 	and 	definitive
resolution, the absence of required findings and conclusions
about Seller’s claim to title would likely necessitate remand for
those findings and conclusions to be made. Hill v. Estate of Allred,
2009 UT 28, ¶ 59, 216 P.3d 929 (“Failure of the trial court to make
findings on all material issues is reversible error.” (cleaned up));
Interstate Income Props., Inc. v. La Jolla Loans, Inc., 2011 UT App
188, ¶ 13, 257 P.3d 1073. But in the posture of this appeal and
given 	our 	remand 	for 	the 	court’s 	further 	consideration 	of
remedies and the status of the parties’ contract, the question of
quieting title is premature. Seller’s entitlement to have her title
quieted as against Buyer will largely be a function of the trial
court’s resolution of those other matters on remand. If, for
example, the court determines that Buyer’s contractual rights are
at an end, then findings, conclusions, and a judgment quieting
title in favor of Seller would likely follow rather automatically.
If, however, the court determines that Buyer has continued
contractual rights that could culminate in Buyer’s acquiring the
Property after all, a quiet title determination would turn on
whether Buyer performed or failed to perform his obligations
under the revitalized contract. Thus, we reverse and remand on
this issue for further proceedings.
III. Liquidated Damages
¶28 	Turning 	to 	Seller’s 	appeal, 	she 	argues 	that 	the 	trial
court erred in ruling that the Second Notice to Buyer was
deficient 	and 	in 	concluding 	in 	turn 	that 	she 	was 	not
entitled 	to 	retain 	Buyer’s 	principal 	payments 	as 	liquidated
damages. Alternatively, Seller argues that even if the Second
Notice was deficient, the liquidated damages provision is self-
executing and did not require that she provide written notice to
Buyer of his failure to make timely payment. We examine both
arguments.

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A. 	Notice 	and 	termination 	are 	prerequisites 	to 	recover
liquidated damages.
¶29 	The Buyer Default Clause contains two sentences:
Seller 	may 	terminate 	this 	[Contract] 	by 	giving
written 	notice 	to 	Buyer 	if 	Buyer 	materially
breaches any covenant or other obligation of Buyer
under this [Contract] and fails to cure such breach
within thirty (30) days after written notice from
Seller is received by Buyer specifying such breach
[(Termination Sentence)]. If Buyer fails to make
payment on or before any deadline provided for
herein after the expiration of thirty (30) day grace
period, 	all 	payment 	previously 	made 	shall 	be
forfeited 	to 	Seller 	as 	liquidated 	damages 	[(LD
Sentence)].
¶30 	Seller argues that the Termination Sentence and the LD
Sentence are autonomous. In other words, Seller argues that the
LD Sentence is self-executing and therefore no notice of breach
or termination of the Contract is required to retain Buyer’s
principal 	payments 	as 	liquidated 	damages 	if 	a 	subsequent
payment is late. Conversely, Buyer argues that the sentences are
related and that Seller was required to satisfy requirements of
the Termination Sentence to trigger the liquidated damages
remedy. We agree with Buyer.
¶31 	“As with any contract, we determine what the parties
have agreed upon by looking first to the plain language within
the four corners of the document.” Peterson & Simpson v. IHC
Health Services, Inc., 2009 UT 54, ¶ 13, 217 P.3d 716 (cleaned up).
“When interpreting the plain language, we look for a reading
that 	harmonizes 	the 	provisions 	and 	avoids 	rendering 	any
provision 	meaningless.” 	Id. 	(cleaned 	up). 	“Harmonizing
conflicting or apparently ambiguous contract language before

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20180009-CA 	15 	2020 UT App 38
concluding 	that 	provisions 	are 	actually 	ambiguous 	is 	an
important 	step 	in 	the 	hierarchy 	of 	rules 	for 	contract
interpretation.” Gillmor v. Macey, 2005 UT App 351, ¶ 19, 121
P.3d 57. Accordingly, we “must first attempt to harmonize all of
the contract’s provisions and all of its terms when determining
whether the plain language of the contract is ambiguous.” Id.
(cleaned up). “To harmonize the provisions of a contract, we
examine the entire contract and all of its parts in relation to each
other and give a reasonable construction of the contract as a
whole to determine the parties’ intent.” Id. (cleaned up).
¶32 	In isolation, the LD Sentence may appear to be self-
executing. But that sentence does not exist in isolation; rather,
it 	is 	an 	integrated 	part 	of 	the 	two-sentence 	Buyer 	Default
Clause. Properly harmonizing the Termination Sentence and
LD Sentence shows that the parties’ intended purpose of the
first 	is 	to 	operate 	as 	a 	prerequisite 	for 	the 	second. 	Most
obvious is that the two sentences are combined together in
the 	Buyer 	Default 	Clause. 	This 	construction 	is 	not 	merely
coincidental. 	The 	original 	Option, 	expressly 	acknowledged
by 	and 	appended 	to 	the 	Contract, 	contained 	a 	liquidated
damages provision but did not contain a termination provision.
Thus, it is reasonable to conclude that the parties not only
intended to add the Termination Sentence into the Contract, but
that the parties intended to add the provision exactly where and
how they did.6
6. As discussed, supra ¶ 2 n.2, the Contract provides, “The terms
of the Option . . . have been merged herein and to the extent any
terms or conditions of the Option . . . conflict or are otherwise
inconsistent with this [Contract], the terms of this [Contract]
shall control.” Under the controlling Contract, the Buyer Default
Clause plainly is operative. Accordingly, we conclude that the
existence of a self-executing liquidated damages clause in the
(continued…)

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20180009-CA 	16 	2020 UT App 38
¶33 	Next, the LD Sentence expressly references a thirty-day
grace 	period; 	and 	other 	than 	the 	immediately 	preceding
Termination 	Sentence, 	there 	are 	no 	other provisions 	in 	the
Contract that delineate a thirty-day grace period. Accordingly, it
is reasonable to conclude that the parties intended to connect the
two sentences vis-à-vis the reference to the thirty-day grace
period.
¶34 	Further, reading the two in tandem gives effect to “all of
the [C]ontract’s provisions and all of its terms.” See Selvig v.
Blockbuster Enters., LC, 2011 UT 39, ¶ 23, 266 P.3d 691 (emphasis
added) (cleaned up). In the event that Buyer is delinquent, Seller
has two options: (1) declare the Contract terminated, including
her obligation to transfer the Property, and retain the principal
payments as liquidated 	damages for Buyer’s breach, 	or 	(2)
choose not to terminate the Contract, in which case she may still
retain the principal payments, just as she would have had there
been 	no 	breach, 	but 	she 	must 	also 	eventually 	transfer 	the
Property after all the payments have been made. In other words,
if Seller does not terminate the Contract, she is already entitled
to retain the principal payments, but her obligation to transfer
the Property remains. Thus, it is only the termination of the
Contract that triggers the LD Sentence, and to terminate the
Contract proper notice must be given.
¶35 	Accordingly, we conclude that when the two sentences at
issue are properly harmonized, Buyer’s interpretation provides a
clear and precise understanding to the Buyer Default Clause,
gives logical meaning and effect to the two sentences, and
resolves 	any 	conflict, 	without 	having 	to 	resort 	to 	extrinsic
(…continued)
Option does not lend support to Seller’s position that the LD
Sentence in the Contract is also self-executing.

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20180009-CA 	17 	2020 UT App 38
evidence 	to 	ascertain 	the 	intent 	of the 	parties. 	See 	Peterson
& Simpson, 2009 UT 54, ¶¶ 13, 19.
B. 	Seller’s Second Notice was deficient.
¶36 	Next, Seller argues that her Second Notice satisfied the
Termination Sentence, thereby triggering the LD Sentence. But
again, we disagree. The Termination Sentence provides that
sufficient notice to terminate the Contract requires a material
breach by Buyer and that “written notice from Seller is received
by Buyer specifying such breach.” (Emphasis added.) While the
parties disagree about what the phrase “specifying such breach”
means, any reasonable reading of the Termination Sentence,
under a plain language analysis, requires that some specific
breach be identified. And here there is nothing. The Second
Notice from Seller to Buyer states, “As you are aware, you are
now, and have been for many months, in default and breach of
the [C]ontract for purchase of [the Property]. This is not your
first notice, and you have previously received written notice
pursuant 	to 	the 	[C]ontract.” 	And 	“[a]lthough 	you 	have
defaulted, 	I 	expected 	to 	hear 	from 	you 	concerning 	my
willingness to allow you to cure the default, but I have not.”
¶37 	Simply put, this Second Notice does not specify Buyer’s
alleged 	breach(es). 	It 	contains 	no 	specific 	reference 	to 	any
particular delinquent principal payment, interest payment, or
tax payment. Nor does it explain or describe any amount—much
less an overdue amount—that Buyer needed to pay in order to
cure. Indeed, the Second Notice notes only that Buyer had
“previously received written notice” of his “default and breach”
in the First Notice. Buyer, however, cured the breaches listed in
the First Notice. Thus, reference to the First Notice did not
provide Buyer with specific notice of any subsequent breach(es),
and therefore Buyer was not given an opportunity to cure after
receiving notice of default (as no specific breach was listed). We
therefore conclude that under the plain language of the Contract,

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20180009-CA 	18 	2020 UT App 38
the Second Notice did not terminate the Contract or trigger the
LD Sentence.7
IV. Unjust Enrichment
¶38 	Next, Seller argues that the trial court erred in permitting
Buyer to advance and succeed on his unjust enrichment claim.
Because we cannot ascertain the ultimate legal basis of the trial
court’s decision, we conclude it is necessary to remand this issue
for the court’s clarification. The court in its conclusions cites
caselaw, a Restatement, and American Law Reports (A.L.R.), and
it seems to conclude that one, or all of these distinct legal
7. Seller cites Commercial Real Estate Investment, LC v. Comcast of
Utah II, Inc., 2012 UT 49, ¶ 38, 285 P.3d 1193 (holding that
“liquidated damages clauses should be reviewed in the same
manner as other contractual provisions”), arguing that the trial
court erred in applying a “heightened level of judicial scrutiny to
the liquidated damages provision.” As an initial matter, Seller’s
argument misses the mark because the trial court did not reach
enforceability of the LD Sentence; rather, it determined that the
Termination Sentence was not satisfied. The court did, however,
apply 	a 	“strict 	compliance” 	standard 	to 	the 	Termination
Sentence. See Adair v. Bracken, 745 P.2d 849, 852 (Utah Ct. App.
1987) (“In order to forfeit a purchaser’s interest under a uniform
real estate contract, the seller must comply strictly with the
notice 	provisions 	of 	the 	contract.” 	(cleaned 	up)). 	However,
without directly deciding whether the court’s application of
“strict compliance” to the Termination Sentence was erroneous,
our conclusion—that Seller’s Second Notice is deficient without
requiring 	strict 	compliance—proves 	fatal 	to 	Seller’s 	claim
because 	she 	cannot 	show 	that 	any 	perceived 	error 	was
prejudicial. See Utah R. Civ. P. 61. Where notice failed without
requiring strict compliance, it would likewise fail under a more
restrictive application.

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20180009-CA 	19 	2020 UT App 38
authorities, supports its imposition of an equitable remedy. The
legal authorities include distinct legal theories, however, and we
have determined that the theories either do not apply in these
circumstances, or are unsupported by the court’s underlying
findings.
A. 	Unjust enrichment as a quasi-contract theory does not
apply here.
¶39 	“The doctrine of unjust enrichment is designed to provide
an equitable remedy where one does not exist at law.” Selvig v.
Blockbuster Enters., LC, 2011 UT 39, ¶ 30, 266 P.3d 691 (cleaned
up). “Therefore, where an express contract covering the subject
matter of the litigation exists, recovery for unjust enrichment is
not available.” Id. (cleaned up).
¶40 	In this case, the Contract—which neither party contends
is unenforceable—governed the purchase and conveyance of the
Property, 	which 	is 	the 	subject 	matter 	of 	this 	dispute.
Accordingly, both Seller and Buyer are barred from recovering
under the quasi-contract theory of unjust enrichment (for acts
arising from this transaction). Id.; see also Mann v. American W.
Life Ins. Co., 586 P.2d 461, 465 (Utah 1978) (“Recovery in quasi
contract is not available where there is an express contract
covering the subject matter of the litigation.”); accord United
States Fid. & Guarantee Co. v. United States Sports Specialty Ass’n,
2012 UT 3, ¶ 11, 270 P.3d 464; Ashby v. Ashby, 2010 UT 7, ¶ 14,
227 P.3d 246; AGTC Inc. v. CoBon Energy LLC, 2019 UT App 124,
¶ 22, 447 P.3d 123. While the trial court acknowledged that
this 	was 	the 	law 	when 	dismissing 	Buyer’s 	promissory
estoppel 	claim, 	it 	nevertheless 	ruled 	that 	“[s]ince 	the
conditions necessary for the enforcement of the [LD Sentence]
are not met here, the court concludes that the [Contract] should
be treated as one lacking such a provision” and therefore,
Buyer’s “unjust enrichment claim is viable.” This conclusion was
erroneous.

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20180009-CA 	20 	2020 UT App 38
¶41 	Even if a contract does not provide an express remedy—
or, as is the case here, the LD Sentence was not triggered8—it
does not follow that a party has no legal remedies flowing from
a breach of an express contract. See Ashby, 2010 UT 7, ¶ 15. It also
does not follow that equitable remedies should then somehow
come into play. Here, it is undisputed both that the Contract
governs the subject matter of this litigation and that the Contract
is enforceable. Therefore, the trial court erred in permitting
Buyer to advance a claim for unjust enrichment under these
facts, and we cannot affirm the trial court’s conclusion on this
basis.
B. 	The trial court’s other theories of “unjust restitution” are
not supported.
¶42 	It appears obvious that the trial court was trying to legally
justify its ultimate conclusion that principal payments should be
returned to Buyer. And while we are able to affirm on any basis
apparent in the record, Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d
1158, we cannot do so here because the trial court’s factual
findings 	and 	conclusions 	on 	the 	issue 	are 	insufficient 	and
incomplete, see Jensen v. Jensen, 2009 UT App 1, ¶ 8, 203 P.3d 1020
(“To withstand appellate review, the trial court’s findings of fact
must show that the court’s judgment or decree follows logically
from, and is supported by, the evidence. The findings should be
sufficiently detailed and include enough 	subsidiary facts to
disclose the steps by which the ultimate conclusion on each
factual 	issue 	was 	reached.” 	(cleaned 	up)). 	Here, 	there 	are
8. We note that the LD Sentence in the Buyer Default Clause—
which 	the 	court 	“read 	out” 	of 	the 	Contract—was 	Seller’s
remedy, not Buyer’s. Buyer’s express contractual remedy was
provided for by the Seller Default Clause, which remained in
force even when the trial court read the LD Sentence out of the
Contract.

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20180009-CA 	21 	2020 UT App 38
numerous aspects of the trial court’s legal conclusions that do
not logically flow from its factual findings.
¶43 	For example, although the court concluded that Seller is
not 	entitled 	to 	retain 	the 	principal 	payments 	as 	liquidated
damages on the ground that she did not provide Buyer proper
written notice and an opportunity to cure his alleged breaches,
such a conclusion does not—by itself—address which party is
entitled to the principal payments where Buyer was in breach
but Seller did not properly invoke the LD Sentence.
¶44 	Citing Foxley v. Rich, 	99 P. 	666 (Utah 1909), and 	its
progeny, Seller argues that a buyer in default cannot normally
recover payments where the seller stands ready and able to
comply with the terms of the contract. Without deciding the
issue, we note that the trial court in this case did not make
findings or conclusions sufficient to determine whether Foxley
and the related cases apply to these facts. Specifically, the court
did not make a finding of fact, nor is it apparent from the record,
that Seller was willing to sell the Property to Buyer at the time
she filed Lawsuit-2 or at any time thereafter. See id. at 671.
¶45 	Lastly, neither party has addressed the implications of the
closing deadline having passed without either party tendering
performance, see New York Ave. LLC v. Harrison, 2016 UT App
240, ¶ 44, 391 P.3d 268, nor did the trial court consider these
implications because it resolved the parties’ dispute through
Buyer’s equitable claim.
¶46 	As indicated, the trial court cites the A.L.R. to support its
legal conclusion that Buyer could recover its principal payments
under 	an 	unjust 	enrichment 	theory. 	See 	James 	O. 	Pearson,
Annotation, Modern Status of Defaulting Vendee’s Right to Recover
Contractual Payments Withheld by Vendor as Forfeited, 4 A.L.R. 4th
993 § 2 (1981). The Utah cases cited by this A.L.R., however, deal
exclusively with unconscionability of enforcing forfeiture or

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liquidated damages provisions. E.g., Soffe v. Ridd, 659 P.2d 1082,
1084 (Utah 1983) (“We affirm the trial court’s conclusion that
enforcing the liquidated damages provision in this case would
result in an arbitrary penalty against the buyers which would be
grossly excessive and disproportionate to the loss sustained by
seller.”), abrogated by Commercial Real Estate Inv., LC v. Comcast of
Utah II, Inc., 2012 UT 49, 285 P.3d 1193; Johnson v. Carman, 572
P.2d 371, 373 (Utah 1977) (“Although we do not purport to lay
down 	any 	specific 	percentage 	which 	will 	be 	considered
unconscionable, to allow the seller to retain the $34,596.10 paid
by 	buyer 	when 	seller’s 	actual 	damages 	amount 	to 	only
$25,650.00 would be grossly excessive and disproportionate to
any possible loss.” (cleaned up)), abrogated by Commercial Real
Estate Inv., LC, 2012 UT 49; Fullmer v. Blood, 546 P.2d 606, 609
(Utah 	1976) 	(“Determination 	of 	the 	question 	of
unconscionableness of a forfeiture of amounts paid is one which
also depends on the circumstances.”); Weyher v. Peterson, 399
P.2d 438, 439 (Utah 1965) (“The pertinent issue is whether the
forfeiture of all past payments on the premises as provided in
the contract unconscionably burdened [the] defendant.”). But it
is 	not 	apparent 	from 	this 	record 	that 	the 	parties 	argued
unconscionability below—nor have they argued on appeal that
enforcement (or non-enforcement) of the Contract would be
unconscionable. Importantly, the trial court made no findings
sufficient to support a theory of unconscionability. Thus, even
though 	we 	conclude 	that 	Buyer’s 	unjust 	enrichment 	quasi-
contract claim cannot stand as a basis on which to ground a
remedy 	of 	restitution, 	we 	cannot 	determine 	whether
enforcement (or non-enforcement) of this Contract may have
been 	unconscionable—which 	potentially 	could 	justify 	an
equitable remedy—without adequate findings or clear analysis
indicating that the trial court is anchoring its ultimate conclusion
in this legal theory.
¶47 	On remand, the trial court should reevaluate the parties’
actions or lack of actions—including the passing of the Effective

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Closing Date without either party tendering performance. The
court should also reassess legal remedies that may flow from
those actions in light of the Contract.
CONCLUSION
¶48 	As to Buyer’s appeal, we conclude that the trial court did
not err in denying specific performance. But because the court
did not apply the proper legal standard, it did erroneously quiet
title in favor of Seller. Next, as to Seller’s appeal, the court did
not err in ruling that Seller’s Second Notice was deficient and in
denying therefore her claim for liquidated damages. The court
did err, however, in awarding Buyer damages under a theory of
unjust enrichment. Accordingly, as this appeal now leaves a
number of aspects unresolved, including the legal remedies, if
any, available to the parties flowing from failure(s) to perform
under 	the 	Contract, 	we 	remand 	this 	matter 	for 	additional
proceedings not inconsistent with this opinion.9
9. We do not mean to imply that any trial or evidentiary hearing
will need to take place on remand, but instead we anticipate that
additional 	arguments 	may 	need 	to 	be 	entertained 	and
supplemental 	findings 	and 	conclusions 	entered 	by 	the 	trial
court.