Syme v. Symphony Group

2018 UT App 212
THE UTAH COURT OF APPEALS
A L S YME AND M ARTHA S YME,
Appellants,
v.
S YMPHONY GROUP LLC,
Appellee.
Opinion
No. 20170531-CA
Filed November 8, 2018
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 160901978
Richard H. Reeve, Attorney for Appellants
Robert E. Mansfield and Megan E. Garrett, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 	Al and Martha Syme met with Symphony Group LLC
to discuss the construction of a custom home. The parties signed
a 	contract, 	but 	the 	Symes 	cancelled 	it 	before 	construction
began. 	Symphony, 	however, 	retained 	the 	Symes’ 	earnest
money 	and 	construction 	deposits. 	The 	Symes 	sued 	to
recover both deposits, and Symphony moved for summary
judgment, which the district court granted. The Symes appeal.
We affirm in part, reverse in part, and remand for further
proceedings.

Syme v. Symphony Group
20170531-CA 	2 	2018 UT App 212
BACKGROUND1
¶2 	In the spring of 2015, the Symes met with representatives
of Symphony about the construction of a new, custom home in
Layton, 	Utah. 	The 	parties 	signed 	a 	written 	contract 	(the
Agreement) on June 1, which set forth the basic details of the
house Symphony was to construct, including its location, price,
and floor plan. Some of the details, such as the color and type of
brick, countertops, and floor coverings, were left to be selected in
future meetings. The Agreement also set forth the obligations of
each party and provided for specific remedies in the event of a
breach.
¶3 	As part of the house’s purchase price, the Symes agreed to
pay Symphony an earnest money deposit of $2,000 (the Earnest
Money) and a construction deposit of $43,000 or $48,000 (the
Construction Deposit).2 The Symes delivered the Earnest Money
to Symphony when they signed the Agreement. They delivered
a $48,000 Construction Deposit to Symphony at a subsequent
“Structural Review Meeting.”3
1. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (quotation simplified).
2. The Agreement states that the Construction Deposit was to be
$43,000, but in the summary judgment briefing and on appeal
both parties refer to a $48,000 Construction Deposit.
3. We note an ambiguity in the Agreement regarding the timing
of the Construction Deposit. In one provision, the Agreement
required 	the 	deposit 	to 	be 	paid 	at 	the 	“Structural 	Review
Meeting.” In another provision, the Agreement required the
deposit to be paid at the “Color Selection Meeting.” The Symes
(continued…)

Syme v. Symphony Group
20170531-CA 	3 	2018 UT App 212
¶4 	Regarding the house’s financing, the Agreement required
the Symes “to receive written evidence of loan pre-approval
within 	ten 	(10) 	days 	from” 	Symphony’s 	acceptance 	of 	the
Agreement, “or such longer period as [Symphony], in its sole
discretion may allow.” The same provision stated that if the
Symes 	failed 	“timely 	to 	provide 	such 	loan 	approval 	to
[Symphony],” 	then 	Symphony 	could 	elect 	to 	terminate 	the
Agreement. If Symphony elected to terminate the Agreement
under this provision, the Agreement required Symphony to
return the Earnest Money to the Symes unless they were in
default.4
¶5 	Another provision in the Agreement required the Symes
to deliver to Symphony a loan pre-approval letter “prior to or
at” the “Color Selection Meeting”—a meeting the Symes were
required to attend at Symphony’s “reasonable request.” If the
Symes failed to deliver the loan pre-approval letter as required
by this provision, Symphony could, “in its sole and reasonable
discretion,” 	deem 	the 	Symes 	“in 	default” 	and 	enforce 	its
remedies 	“as 	allowed 	by 	[the] 	Agreement 	and 	Utah 	law,
including but not limited to, [Symphony’s] retention of [the]
Earnest Money and Construction Deposit.”
¶6 	The Color Selection Meeting never took place. According
to the Symes, they “waited in vain” for Symphony to “follow
(…continued)
contend that they provided the Construction Deposit at the
Structural Review Meeting only because Symphony told them
“it was conditionally required at that point.” We need not
resolve this ambiguity and express no opinion on the timing of
the payment.
4. The Agreement also required the Symes “to pursue [loan]
application diligently.” If the Symes failed to apply for a loan, a
liquidated damages clause allowed Symphony to terminate the
Agreement and retain the Earnest Money.

Syme v. Symphony Group
20170531-CA 	4 	2018 UT App 212
through on [the Color Selection Meeting]” or “request [the
pre-approval letter].”
¶7 	Before construction started or any other meetings were
held, the Symes sent a letter to Symphony through their attorney
purporting to cancel the Agreement. The Symes conceded in the
letter that they would have to forfeit their $2,000 Earnest Money
but requested the return of their Construction Deposit. Because
the Symes did not deliver the pre-approval letter and “failed to
finalize other preconstruction selections at the Color Selection
Meeting,” 	Symphony 	refused 	to 	return 	the 	Construction
Deposit.
¶8 	The Symes brought suit for the return of the Earnest
Money and Construction Deposit, seeking a declaration that no
contract existed and, alternatively, seeking damages for breach
of contract and breach of the implied covenant of good faith and
fair dealing. Symphony moved for summary judgment on each
claim.
¶9 	The 	district 	court 	granted 	Symphony’s 	motion. 	It
concluded that there was an enforceable contract between the
parties and determined that the Symes would be unable to prove
their breach of contract claim because the Symes themselves
breached the Agreement by failing to provide the pre-approval
letter “within 10 days of acceptance of the contract.” The court
reasoned that “[e]ven if the [Color Selection Meeting] never took
place, [the Symes] were still required by the contract to provide
the pre-approval letter.” The court also 	concluded 	that the
Symes would be unable to prove their implied covenant of good
faith and fair dealing claim. At the heart of that claim was the
Symes’ 	contention 	that 	the 	liquidated 	damages 	clause
Symphony 	relied 	on 	to 	retain 	the 	Earnest 	Money 	and
Construction Deposit was unconscionable. The court concluded
that 	“expert 	testimony 	would 	be 	required” 	to 	establish
unconscionability and that the Symes would be unable to prove

Syme v. Symphony Group
20170531-CA 	5 	2018 UT App 212
their 	claim 	because 	they 	had 	conceded 	they 	“would 	be
precluded from offering expert testimony at trial.”5 Thus, the
court entered final judgment in favor of Symphony. The Symes
timely appeal.
ISSUE AND STANDARD OF REVIEW
¶10 	The Symes’ arguments on appeal all flow from the district
court’s 	summary 	judgment 	decision. 	Summary 	judgment 	is
appropriate “if the moving party shows that there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law.” Utah R. Civ. P. 56(a). “An
appellate court reviews a district 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.”
ZB, NA v. Crapo, 2017 UT 12, ¶ 11, 394 P.3d 338 (quotation
simplified).
ANALYSIS
I. The Enforceability of the Agreement
¶11 	The Symes first contend that the district court erred in
granting 	summary 	judgment 	to 	Symphony 	on 	their 	claim
for declaratory relief because there were disputed facts material
to the question of whether a contract was formed. In support,
they make three related arguments: first, that the Agreement is
5. 	In 	its 	summary 	judgment 	motion, 	Symphony 	sought 	to
exclude the Symes from offering expert testimony because the
time to disclose experts had passed under rule 26(a)(4) of the
Utah Rules of Civil Procedure. In response, the Symes admitted
that the deadlines to designate experts had expired and asserted
that expert testimony was unnecessary.

Syme v. Symphony Group
20170531-CA 	6 	2018 UT App 212
too indefinite to be enforced; second, that the parties never
intended the Agreement to be the final agreement; and finally,
that the Agreement is ambiguous. We address each argument in
turn.
A. 	Contract Formation
¶12 	The Symes assert that the Agreement is too indefinite to
be an enforceable contract because it is “silent as to much of the
work 	that 	[was] 	to 	be 	performed 	by 	Symphony.” 	Without
specifying 	“exterior 	materials,” 	“interior 	finishes,” 	and 	the
“types of countertops, cabinets, shingles, lighting fixtures, or
appliances” that were to be used in the construction of their
house, 	the 	Symes 	assert 	that 	the 	Agreement 	“cannot 	be
performed.”
¶13 	“Whether a contract exists between parties is ordinarily a
question of law . . . .” Cea v. Hoffman, 2012 UT App 101, ¶ 9, 276
P.3d 1178. “A binding contract exists where it can be shown that
the parties had a meeting of the minds as to the integral features
of the agreement and that the terms are sufficiently definite as to
be capable of being enforced.” ACC Capital Corp. v. Ace West
Foam 	Inc., 	2018 	UT 	App 	36, 	¶ 	12, 	420 	P.3d 	44 	(quotation
simplified). “A contract may be enforced even though some
contract terms may be missing or left to be agreed upon, but if
the essential terms are so uncertain that there is no basis for
deciding whether the agreement has been kept or broken, there
is no contract.” Nielsen v. Gold’s Gym, 2003 UT 37, ¶ 12, 78 P.3d
600 (quotation simplified).
¶14 	Here, the Agreement is capable of being enforced because
it 	includes 	all 	the 	essential 	terms 	of 	a 	valid 	contract. 	The
Agreement was signed by both the Symes and Symphony, it
listed the specific price of the property and the address, and it
set forth additional terms regarding the work and the parties’
relationship and respective obligations. While some contract
terms, such as the color of the countertops and other materials
selections, were “left to be agreed upon,” see id. (quotation

Syme v. Symphony Group
20170531-CA 	7 	2018 UT App 212
simplified), this fact does not demonstrate that there was no
meeting of the minds on the contract’s essential terms. Rather,
the parties expressly contemplated that additional selections
would be made, and they agreed on the process for making
those selections.6 Thus, the Agreement includes sufficient detail
as to be “capable of being enforced,” and the district court did
not err in concluding there was a valid contract. See ACC Capital,
2018 UT App 36, ¶ 12 (quotation simplified).
B. 	The Parties’ Intentions
¶15 	The Symes relatedly argue that the Agreement “was not
intended, by itself, to be a final contract between the parties” and
that the district court failed to recognize the existence of a factual
dispute about the parties’ intentions. In support, they again
highlight that the Agreement contemplated future meetings and
they refer to unsigned documents, such as additional exhibits
and design addenda that, once completed, would “finalize the
contract between the Symes and Symphony.” Anticipating these
future meetings and documents, the Symes assert that they “did
not intend for the [Agreement] to serve as the contract with
Symphony and considered themselves as being still engaged in
the contract formation process.” We are not persuaded.
¶16 	The Symes’ arguments regarding the parties’ intentions
largely 	rehash 	their 	argument 	that 	the 	contract 	was 	too
indefinite to be enforced and needed more details. See supra Part
I.A. As explained, the parties agreed to the “essential terms” of
the Agreement, and the anticipation of future meetings to select
6. The Agreement provided default terms for the construction,
and the Symes were able to select options and upgrades from
among Symphony’s offerings, subject to Symphony’s approval.
The Symes therefore could select from a finite universe of
options, but the house would be constructed based on the
default 	terms 	absent 	further 	selections 	with 	Symphony’s
approval.

Syme v. Symphony Group
20170531-CA 	8 	2018 UT App 212
finishes does not demonstrate that the parties did not intend the
Agreement 	to 	be 	enforceable. 	The 	Agreement 	set 	forth 	the
parties’ obligations and their remedies in the event of a breach.
That the parties anticipated future activities as set forth in the
Agreement does not demonstrate an intent that the obligations
they undertook were unenforceable.7 See Barker v. Francis, 741
P.2d 548, 551 (Utah Ct. App. 1987) (“It is not necessary . . . that
the contract itself contain all the particulars of the agreement.
The crucial factor is that the parties agreed on the essential
elements of the contract.”); see also Leopold v. Kimball Hill Homes
Fla., Inc., 842 So. 2d 133, 136–38 (Fla. Dist. Ct. App. 2003)
(determining that a contract for a custom house was enforceable
because, while “the buyer [and seller] had the right to make
modifications 	to 	the 	plans 	as 	construction 	proceeded,” 	the
parties “did in fact have a meeting of the minds as to the
essential terms of the contract”); Augusta Homes, Inc. v. Feuerstein,
No. COA08-1456, 2009 WL 2501399, at *4–6 (N.C. Ct. App. Aug.
18, 	2009) 	(similar). 	See 	generally 	Restatement 	(Second) 	of
Contracts § 34 cmt. a (Am. Law Inst. 1981) (“If the agreement is
otherwise sufficiently definite to be a contract, it is not made
invalid by the fact that it leaves particulars of performance to be
specified by one of the parties.”).
C. 	Ambiguity
¶17 	The 	Symes 	contend 	that 	the 	district 	court 	erred 	in
granting summary judgment on the Symes’ contract formation
claim 	because, 	they 	argue, 	the 	Agreement 	is 	“facially
7. The Symes also argue that the district court failed to properly
account for the alleged dispute created by Al Syme’s declaration
that 	the 	Symes 	and 	Symphony 	“never 	fully 	finalized 	all
components 	of 	the 	[Agreement].” 	But 	Al 	Syme’s 	assertion
simply 	mirrors 	the 	arguments 	made 	and 	addressed 	above,
namely, that because certain materials selections remained to be
made under the Agreement, the Agreement was incomplete and
unenforceable.

Syme v. Symphony Group
20170531-CA 	9 	2018 UT App 212
ambiguous” 	and 	thus 	“ambiguous 	as 	to 	the 	intent 	of 	the
parties.”8 The Symes’ argument fails for two reasons.
¶18 	First, we disagree that the Agreement is ambiguous in the
way 	the 	Symes 	assert. 	The 	Symes’ 	ambiguity 	argument 	is
premised on their contention that the Agreement “contains a
facial ambiguity as to the [construction] completion deadline.” In
one 	provision, 	Symphony 	is 	allowed 	“180 	days 	from 	the
commencement of [excavation] on the home” to substantially
complete 	construction. 	In 	another provision, 	the 	Agreement
provides that Symphony “shall make a reasonable effort to have
the House substantially complete . . . within eight (8) months
after” issuance of a building permit. The Symes assert these
provisions create a facial ambiguity as to the completion date for
construction and argue that “[t]o resolve the issue of ambiguity
of intent, the district court would need to hear and receive
factual evidence, which it was precluded from doing in the
context of a motion for summary judgment.”
¶19 	These 	two 	provisions 	do 	not 	create 	ambiguity. 	“A
contractual term or provision is ambiguous if it is capable of
more than one reasonable interpretation because of uncertain
meanings of terms, missing terms, or other facial deficiencies.”
Daines v. Vincent, 2008 UT 51, ¶ 25, 190 P.3d 1269 (quotation
8. 	Symphony 	contends 	that 	the 	issue 	of 	ambiguity 	is
unpreserved. 	They 	assert 	that 	“[t]he 	Symes 	never 	briefed
ambiguity 	in 	their 	opposition 	to 	Symphony’s 	[motion 	for
summary judgment]” and therefore failed to preserve the issue.
While 	the 	Symes’ 	memorandum 	in 	opposition 	to 	summary
judgment was short and did not discuss ambiguity, the Symes’
attorney at the hearing did reference the “facial inconsistency
within 	the 	document 	itself” 	and 	discussed 	the 	provisions
regarding 	the 	two 	construction 	deadlines. 	Therefore, 	we
conclude the issue is preserved and reach the Symes’ argument
on the merits. See generally True v. Utah Dep’t of Transp., 2018 UT
App 86, ¶¶ 23–30, 427 P.3d 338.

Syme v. Symphony Group
20170531-CA 	10 	2018 UT App 212
simplified). “Harmonizing conflicting or apparently ambiguous
contract language before 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. “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. 	(quotation
simplified). And harmonizing the two provisions here is simple:
Symphony was given 8 months from the issuance of a building
permit 	and 	180 	days 	(or 	6 	months) 	from 	excavation 	to
“substantially complete” the house. The Symes do not explain
how these provisions are inconsistent or otherwise ambiguous. It
seems to us entirely possible that both deadlines could 	be
honored by securing a building permit and then, within two
months, beginning excavation.
¶20 	Second, even if we were to discern some facial ambiguity
in these two provisions, the Symes do not explain how that
ambiguity would undermine the finality of the Agreement in its
entirety. Instead, the Symes merely assume that an ambiguity in
the terms of the Agreement relating to a construction deadline
demonstrates an ambiguity as to the parties’ overall intent
regarding the finality and enforceability of the Agreement. We
fail to see the connection. If there were an ambiguity as to the
construction deadline, a court would take extrinsic evidence as to
the deadline—that is, did the parties mean eight months or six
months. See, e.g., Holladay Bank & Trust v. Gunnison Valley Bank,
2014 UT App 17, ¶¶ 22–23, 319 P.3d 747 (concluding that a
contract was ambiguous “regarding the allocation of collateral
proceeds” 	and 	remanding 	to 	the 	district 	court 	to 	consider
extrinsic evidence “as to the parties’ intent with regard to the
distribution of the proceeds” (emphasis added)). It would not
become a basis to deem the entire Agreement unenforceable.
Thus, we conclude that the two provisions are not necessarily
ambiguous, and even if they were, the ambiguity would not
undermine the Agreement’s overall enforceability.

Syme v. Symphony Group
20170531-CA 	11 	2018 UT App 212
¶21 	In sum, we conclude that the Agreement is sufficiently
clear and capable of being enforced. Accordingly, the district
court did not err in granting summary judgment on the Symes’
declaratory judgment claim.
II. The Alleged Breach of Contract
¶22 	The Symes next contend that summary judgment on their
breach of contract claim was inappropriate because, assuming
there was an enforceable contract, a factual dispute existed about
whether 	the 	Symes 	breached 	the 	Agreement 	by 	failing 	to
provide Symphony with the loan pre-approval letter. The Symes
argue that the district court disregarded the fact that the Symes
“waited in vain” for Symphony and that Symphony “never
followed 	through 	with 	or 	completed 	the 	Color 	Selection
Meeting.” (Quotation simplified.) Not only did the district court
disregard these facts, according to the Symes, but the court “also
failed to draw inferences from them” in the Symes’ favor. The
Symes assert that the district court “could have reasonably
inferred that the Symes were not in breach because the [Color
Selection 	Meeting] 	never 	occurred 	and, 	thus, 	the 	time 	for
submittal of the pre-approval letter never arrived.” Under this
view 	of 	the 	facts, 	the 	Symes 	argue 	that 	they 	were 	not 	in
breach and could have proven that Symphony breached the
Agreement.
¶23 	To 	prove 	a 	breach 	of 	contract 	claim, 	a 	party 	must
demonstrate its own performance of the contract. Bair v. Axiom
Design, LLC, 2001 UT 20, ¶ 14, 20 P.3d 388 (“The elements of a
prima 	facie 	case 	for 	breach 	of 	contract 	are 	(1) 	a 	contract,
(2) performance by the party seeking recovery, (3) breach of the
contract by the other party, and (4) damages.”), abrogated on other
grounds as recognized in A.S. v. R.S., 2017 UT 77, 416 P.3d 465.
“Whether a party performed under a contract or breached a
contract is a question of fact.” iDrive Logistics LLC v. IntegraCore
LLC, 2018 UT App 40, ¶ 43, 424 P.3d 970. And as stated, at the
summary judgment stage we “view[] the facts and all reasonable
inferences drawn therefrom in the light most favorable to the

Syme v. Symphony Group
20170531-CA 	12 	2018 UT App 212
nonmoving party.” ZB, NA v. Crapo, 2017 UT 12, ¶ 11, 394 P.3d
338 (quotation simplified).
¶24 	It 	is 	undisputed 	that 	the 	Symes 	did 	not 	deliver 	the
pre-approval letter to Symphony. But it is also undisputed that
the Color Selection Meeting had not yet occurred. Viewing the
facts and the reasonable inferences drawn therefrom in the light
most favorable to the Symes, Symphony never followed through
with the Color Selection Meeting and never otherwise requested
the pre-approval letter. And the district court’s conclusion that
“[e]ven if the [Color Selection Meeting] never took place, [the
Symes] were still required by the [Agreement] to provide the
pre-approval letter” is contradicted by the Agreement itself,
which provides that the Symes had until the Color Selection
Meeting—which never occurred—to deliver the pre-approval
letter.
¶25 	The district court appears to have conflated the Symes’
obligation to deliver the pre-approval letter to Symphony at
the 	Color Selection 	Meeting 	with 	their 	obligation 	to 	receive
written 	evidence 	of 	loan 	pre-approval 	within 	ten 	days 	of
Symphony’s acceptance of the Agreement. The Symes have
not disputed that they never applied for a loan, but under the
Agreement that failure would amount to a forfeiture of only
the Earnest Money. For Symphony to keep the Construction
Deposit, as relevant here, the Symes would have to fail to deliver
the pre-approval letter by the Color Selection Meeting. And
the Symes could not possibly have failed to deliver the pre-
approval letter by the Color Selection Meeting because that
meeting never occurred, and (according to the Symes) its non-
occurrence was Symphony’s fault. Thus, viewing the facts in
the 	light 	most 	favorable 	to 	the 	Symes, 	the 	court 	erred 	in
determining 	that 	the 	Symes, 	having 	not 	delivered 	the 	pre-
approval letter, could not prove that Symphony breached the
Agreement by retaining the Construction Deposit. Therefore,
summary judgment in favor of Symphony on that basis was
inappropriate.

Syme v. Symphony Group
20170531-CA 	13 	2018 UT App 212
¶26 	Having rejected the conclusion that the Symes’ failure to
deliver the pre-approval letter barred their breach of contract
action, we turn to Symphony’s request to affirm the district court
on an alternative basis. Symphony argues that the district court
concluded not only that the Symes failed to perform but that
they 	“have 	not 	shown 	that 	[Symphony] 	. 	. 	. 	breached 	the
[Agreement].” Because the Symes have not addressed “this
second, and conclusive, basis” for the dismissal of their breach of
contract 	claim, 	Symphony 	argues 	that 	the 	district 	court’s
decision 	should 	still 	be 	affirmed. 	But 	the 	grounds 	for 	this
alternative basis are unclear. The district court did not discuss
the undisputed facts or the relevant legal authority behind its
conclusory statement that the Symes “have not shown that
[Symphony] . . . breached the contract.” Instead, the statement
appears as an aside, meant apparently for emphasis, to its
primary conclusion that the Symes breached the Agreement by
not delivering the pre-approval letter. Having concluded that the
district court’s reasoning was erroneous, and “unable to discern”
any other “legal or . . . factual basis for the district court’s
dismissal 	on 	this 	ground,” 	we 	decline 	to 	affirm 	on 	this
alternative basis and remand for further proceedings. See Vander
Veur v. Groove Entm’t Techs., 2018 UT App 148, ¶ 37 (quotation
simplified), petition for cert. filed, Sept. 10, 2018 (No. 20180730).
III. Good Faith and Fair Dealing
¶27 	Finally, the Symes contend that the district court erred in
dismissing their claim for breach of the implied covenant of
good 	faith 	and 	fair 	dealing. 	In 	their 	complaint, 	the 	Symes
asserted that, among other things, the Agreement’s liquidated
damages clause violates the covenant of good faith and fair
dealing because it is unconscionable. In resisting the district
court’s grant of summary judgment on this claim, the Symes
raise two arguments on appeal. First, they argue that “summary
judgment was the inappropriate place for the court to even try to
address . . . unconscionability.” Second, they argue that the
district court incorrectly assumed that expert testimony was
required to establish unconscionability.

Syme v. Symphony Group
20170531-CA 	14 	2018 UT App 212
¶28 	We conclude the Symes have not carried their burden of
persuasion on appeal on these arguments. “It is well established
that an appellate court will decline to consider an argument that
a party has failed to adequately brief.” CORA USA LLC v. Quick
Change Artist LLC, 2017 UT App 66, ¶ 2, 397 P.3d 759 (quotation
simplified). To satisfy its burden of persuasion, an appellant
must provide “reasoned analysis” on how the district court
erred and “may not simply dump the burden of argument and
research on the appellate court.” Hi-Country Estates Homeowners
Ass’n v. Jesse Rodney Dansie Living Trust, 2015 UT App 218, ¶ 5,
359 P.3d 655 (quotation simplified).
¶29 	On their first argument, the Symes provide no authority
for the proposition that the question of unconscionability can
never be decided on summary judgment. Instead, they claim that
the facts presented and “an analysis of the outcome of [the]
Agreement . . . should have been sufficient for the district court
to postpone its analysis of substantive unconscionability to a fact
finding hearing.” While the Symes point generally to documents
in the record, they do no more to develop the argument. Without
pointing to some authority and developing their argument based
on 	that 	authority, 	the 	Symes 	cannot 	meet 	their 	burden 	of
persuasion on appeal.
¶30 	Similarly, on their second argument, the Symes assert in a
single conclusory paragraph that the district court “erred in
determining that expert opinion was required.” The district
court grounded its decision to require expert testimony on the
supreme court’s opinion in Commercial Real Estate Investment, LC
v. Comcast of Utah II, Inc., 2012 UT 49, 285 P.3d 1193. There, the
court 	explained 	that 	determining 	the 	substantive
unconscionability of a liquidated damages clause requires an
examination of “the mores and business practices of the time
and 	place” 	of 	the 	contract. 	Id. 	¶ 	44 	(quotation 	simplified).
Because the Symes stipulated that “they would be precluded
from 	offering 	expert 	testimony 	at 	trial,” 	the 	district 	court
concluded that without an expert to testify about the relevant
“mores and business practices,” the Symes would “have no way

Syme v. Symphony Group
20170531-CA 	15 	2018 UT App 212
of 	proving 	that 	the 	liquidated 	damages 	clause 	is
unconscionable.” 	Other 	than 	arguing 	that 	“part 	of 	the
unconscionability 	analysis 	could 	proceed 	without 	expert
opinion,” the Symes make no reasoned analysis of the district
court’s decision. Therefore, we conclude that the Symes have not
carried their burden of persuasion on appeal, and we will not
reverse the district court on this basis.
CONCLUSION
¶31 	We 	conclude 	that 	the 	Agreement 	is 	a 	valid 	and
enforceable contract and the district court did not err in granting
summary judgment on the Symes’ claim for declaratory relief.
We also conclude that the Symes have not carried their burden
of persuasion on their argument that the court erred in granting
summary judgment on their implied covenant of good faith and
fair dealing claim. Accordingly, we affirm the district court’s
decisions with regard to the Symes’ claim for declaratory relief
and their alternative claim for breach of the implied covenant of
good faith and fair dealing. But we agree with the Symes that
summary 	judgment 	on 	their 	breach 	of 	contract 	claim 	was
inappropriate. 	We 	therefore 	reverse 	the 	grant 	of 	summary
judgment on that claim and remand for further proceedings
consistent with this opinion.