POHLMAN, Judge
Opinion 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. ORME and RYAN 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.
BACKGROUND
"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 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). 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." their claim because they had conceded they "would be precluded from offering expert testimony at trial." Thus, the court entered final judgment in favor of Symphony. The Symes timely appeal.
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.
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 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.
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.
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.
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 ¶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.
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.
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.
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. --------
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 ¶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. 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.