Regal Realsource v. Enlaw

2024 UT App 95

THE UTAH COURT OF APPEALS

REGAL REALSOURCE LLC,
Appellant,
v.
ENLAW LLC,
Appellee.

Opinion
No. 20230368-CA
Filed July 11, 2024

Fifth District Court, St. George Department
The Honorable Eric A. Ludlow
No. 220500134

Troy L. Booher, LaShel Shaw, Reid W. Lambert, and
Ellen H. Welch, Attorneys for Appellant
Jeremy C. Reutzel and Ryan M. Merriman,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1 Enlaw LLC (Enlaw) and Regal RealSource LLC (Regal)
entered into a real estate purchase contract (the REPC) in which
Enlaw agreed to sell Regal 19.46 acres of undeveloped land (the
Property). Some time later, however, Enlaw came to believe that
the REPC was unenforceable, and it informed Regal that it would
not sell the Property to Regal. In response, Regal filed this lawsuit,
seeking specific performance of the REPC, and recorded a lis
pendens on the Property.

¶2 The district court eventually entered a series of rulings
unfavorable to Regal. Chiefly, the court determined—on
summary judgment—that the REPC is unenforceable, and on the
Regal RealSource v. Enlaw

basis of that determination ordered Regal to remove the lis
pendens. Regal now appeals those rulings, asserting that the
district court erred in determining, as a matter of law, that the
REPC is unenforceable, and that it erred in ordering the lis
pendens removed. We find merit in some of Regal’s arguments,
and we therefore reverse some of the court’s rulings and remand
the case for further proceedings.

BACKGROUND 1

¶3 Enlaw is a real estate development company that owns
approximately 570 acres of land in Washington County, and it is
currently in the process of developing this land into a community
known as Black Desert. About 300 of these acres—including the
Property—are located within the boundaries of Santa Clara, Utah
(the City). The Black Desert community is planned to include “a
golf course, a luxury hotel, spa, retail, restaurants, outdoor
recreational space, and medium density residential units.” Part of
Enlaw’s development plan is to “sell portions of the [land] to other
developers,” who would then become partners with Enlaw in
developing Black Desert.

¶4 Regal is one of these other developers. In 2019, Regal
informed Enlaw that it was interested in purchasing a portion of
the Black Desert land and that it wanted to build “about 200
single-family homes” that it would “own and rent to the public.”
It specifically explained to Enlaw that being allowed to build
approximately 200 units was essential to its project, even if that
might require seeking approval from the City for “an increased
density allowance.” After negotiation, Regal and Enlaw entered
into the REPC in July 2019. Under the terms of the REPC, Regal

1. “When evaluating the propriety of summary judgment on
cross-motions for summary judgment, we view the facts and any
reasonable inferences to be drawn therefrom in the light most
favorable to the losing party.” Bloom Master Inc. v. Bloom Master
LLC, 2019 UT App 63, n.1, 442 P.3d 1178 (quotation simplified).

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was to purchase “approximately 19.46 acres” of Enlaw’s
undeveloped Black Desert land—the Property—for $4,378,500.

¶5 But the parties also agreed, in an addendum (Addendum
1) signed the same day as the REPC, that Enlaw—which was
otherwise responsible for developing the roads inside Black
Desert—would shift the responsibility for development of part of
one of the roads to Regal, in exchange for a reduction in the
purchase price of the Property. In relevant part, Addendum 1
provides as follows:

[Regal] will obtain multiple bids for the installation
of the road and other improvements including
utilities required by local government, utility
companies, and other services agencies (Santa Clara
City, etc.) to the Property line at the locations and
capacities determined by the engineer and the city
approved plan. The Purchase Price will be reduced
by the cost to complete these improvements. The
selection of contractor, the bid amount and the
reduction in Purchase Price will be mutually agreed
upon by both [Regal] and [Enlaw] prior to the end
of the due diligence period. [Regal] will be
responsible for these improvements after closing.

¶6 The REPC also contained provisions allowing Regal to
undertake “due diligence” regarding the Property. Not only was
Enlaw required to make “seller disclosures,” but Regal was also
given time, at its option and among other things, to obtain surveys
and geotechnical reports regarding the Property. The parties also
agreed, in Addendum 1, that Enlaw would “assist [Regal] to . . .
receive any and all necessary entitlement approvals, including but
not limited to a recordable plat and development agreement, for
the Property.” And they agreed that Regal’s due diligence period
“shall be extended as needed to obtain these things,” but that the
period could not “exceed 12 months from the date on which”
Enlaw provided its seller disclosures.

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¶7 Following execution of the REPC and Addendum 1, Enlaw
provided its seller disclosures, completing delivery of those
documents by November 2019. And Regal set about attempting to
obtain the “necessary entitlement approvals” for the Property,
including approval for the 200-unit density it claimed it needed
for its project to make financial sense. At the time the REPC was
signed, Enlaw did not yet have approval from the City for the
overarching Black Desert development. City officials apparently
informed Regal that it would not be able to obtain approval for
any specific project on the Property until there was an agreement
in place governing the larger Black Desert development.

¶8 In September 2020, with the one-year-after-seller-
disclosure deadline approaching and Regal still unable to obtain
the approvals it needed, the parties decided to extend the
deadline for closing their transaction. Specifically, they agreed—
in another addendum (Addendum 2)—to “extend the Seller
Disclosure Deadline Date to that certain date on which [the City]
gives final approval of Buyer’s development project including,
without limitation, an executed development agreement for the
Property (the ‘Entitlements’).” (Emphasis added.) In Addendum
2, the parties defined the term “Buyer” as Regal. And they agreed
that the new closing date would be “45 days after the receipt of
the Entitlements.”

¶9 About a year later, in September 2021, Enlaw finally
obtained approval from the City for a master development
agreement (the MDA) covering the entire Black Desert
development. One provision of the MDA specifically discusses
the Property: it states that the Property is “designated for medium
density residential” and “can be developed to a density of eight
(8) dwelling units per acre, for a total of approximately 133 units.”
However, the provision also stated that a developer “may seek
approval of a density bonus of up to fifty percent . . . for a
maximum of approximately two hundred (200) dwelling units,”
with approval of any such “bonus” being “subject to the
conditions set forth in” the City’s ordinances.

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¶10 Regal learned of the City’s approval of the Black Desert
MDA in October 2021. At that point, Regal “resubmitted its site
plans” for the Property to the City and began the process of asking
the City to approve a development on the Property with a higher
density. In January 2022, Regal was eventually able to obtain
conditional approval for construction of 199 units on the Property.
But this “density bonus” was subject to one final condition: the
City’s approval of a “1-lot subdivision” plat.

¶11 By this time, however, Enlaw had already informed
Regal—in November 2021—that it would not sell the Property to
Regal. In Enlaw’s view, the City’s approval of the MDA in
September had triggered the 45-day closing deadline set forth in
Addendum 2, and Regal had not been in a position to close on the
transaction within 45 days of the MDA’s approval. As a result,
Enlaw told Regal that it considered Regal to be in breach of the
REPC’s terms, and that it would be “re-listing the Property
immediately and seeking other alternatives.” In keeping with this
position, Enlaw refused to assist Regal in obtaining the City’s
approval of a 1-lot subdivision plat, and it specifically refused to
provide a landowner signature that the City apparently requires
as a prerequisite for any such approval.

¶12 In February 2022, Regal initiated the instant lawsuit, suing
Enlaw for declaratory relief and specific performance of the
REPC. In Regal’s view, the start of the 45-day closing period set
forth in Addendum 2 was to be triggered not by approval of
Enlaw’s overarching MDA but, instead, by the City’s approval of
Regal’s specific development project, an eventuality that, as Regal
sees it, has not happened yet. Under this interpretation, Regal is
not yet under any obligation to close on the transaction, and it will
not be under any such obligation until the City makes a final
decision on its density bonus request. Accordingly, in its
complaint Regal sought “[d]eclaratory judgment that the REPC
remains in full force and effect, and that Enlaw’s purported
termination of the REPC based on a closing deadline of November
15, 2021, is invalid under the terms of the REPC.” Furthermore,
Regal alleged that Enlaw had materially breached the REPC and,

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because an “award of damages would be an inadequate remedy,”
Regal asked for “a judgment ordering specific performance” that
would require Enlaw to “complete the sale of the Property to
Regal on the terms set forth in the REPC and its addenda.” The
day after it filed its complaint, Regal recorded a notice of lis
pendens against the Property.

¶13 Enlaw responded with an answer and counterclaim,
seeking declaratory relief and removal of the lis pendens, and
seeking damages and attorney fees based on its view that Regal’s
lis pendens was “groundless.” Enlaw further maintained that the
REPC was unenforceable, but in the event that the court found it
to be an enforceable agreement, it asserted alternative claims
against Regal for breach of contract.

¶14 Following the filing of Enlaw’s answer and counterclaim,
the parties exchanged initial disclosures and some limited written
discovery. But before any depositions were taken and well before
the expiration of the fact discovery period, Enlaw filed a motion
to release the lis pendens, primarily arguing that the lis pendens
was improper because it was based on an unenforceable contract.
Enlaw also asserted that, even if the REPC were enforceable,
Regal’s desired remedy—specific performance—was unavailable
in any event because the REPC was not sufficiently clear and
definite. Regal opposed the release of the lis pendens, and in
addition filed a motion seeking partial summary judgment on
three discrete points: (1) that the REPC—and particularly its price
term, including the price reduction for construction of the road—
was sufficiently definite to be specifically enforced; (2) that the
term “Entitlements,” as used in Addendum 2, referred to final
approval of Regal’s specific project and not to approval of the
overarching Black Desert development; and (3) that “receipt of the
Entitlements,” as used in Addendum 2, had not yet occurred.
Enlaw opposed Regal’s motion and filed its own motion for
partial summary judgment, seeking an order declaring that the
REPC was unenforceable.

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¶15 After full briefing on the motions, the district court
held oral argument. At the conclusion of the hearing, the court
made no ruling but, instead, instructed each side to submit
proposed orders that encapsulated the rulings they wished the
court to enter. Both sides soon submitted competing proposed
orders.

¶16 About a month later, the court signed Enlaw’s
proposed orders, apparently verbatim, thus granting
Enlaw’s motion for release of the lis pendens and motion for
partial summary judgment, while denying Regal’s motion
for partial summary judgment. The court agreed with Enlaw that
the REPC was “unenforceable because it lack[ed] material terms.”
In particular, the court determined that the price-
reduction provision in Addendum 1 was not sufficiently clear,
because it contained “no clear mechanism for determining
the price without further bargaining between the parties” and
because it did not specify what “other improvements”
would need to be included in the road-construction bids. And the
court denied Regal’s competing motion for partial summary
judgment because it determined that there existed unresolved
factual issues “regarding the meaning of the term ‘Entitlements,’”
as used in Addendum 2, and regarding the existence of
consideration for Enlaw’s agreement, in Addendum 2, to extend
the closing period. In its ruling regarding the lis pendens motion,
the court also determined that specific performance was
unavailable in any event; this determination was based on the
court’s assessment that the “REPC’s price term” is “too vague for
specific performance” because it is not “free from doubt,
vagueness, or ambiguity.” And in that same ruling, the court
ruled that Regal had “failed to timely close on the Property”
because “the term ‘Entitlements’” as used in Addendum 2
referred to Enlaw’s MDA rather than to any approval of Regal’s
specific project.

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¶17 Following entry of the court’s rulings, Regal asked this
court for permission to take an interlocutory appeal from those
rulings, and we granted that request.2

ISSUES AND STANDARDS OF REVIEW

¶18 In this appeal, Regal challenges the district court’s rulings
on the cross-motions for partial summary judgment, as well as the
court’s order compelling release of the lis pendens. We review the
court’s summary judgment rulings for correctness. Shree Ganesh,
LLC v. Weston Logan, Inc., 2021 UT 21, ¶ 11, 491 P.3d 885. Under
this standard, we “give no deference to the district court’s legal
conclusions and consider whether the court correctly decided that
no genuine issue of material fact existed.” Id. (quotation
simplified). Similarly, we review for correctness a district court’s
“interpretation and application of the lis pendens statutes.”
Walker v. Zeus Land Holdings LLC, 2021 UT App 9, ¶ 13, 482 P.3d
268, cert. denied, 496 P.3d 717 (Utah 2021). The district court’s
rulings also involve its interpretation of the REPC, and “[w]e
review a district court’s interpretation of a contract for
correctness.” Brady v. Park, 2019 UT 16, ¶ 29, 445 P.3d 395.

ANALYSIS

¶19 Enlaw’s main argument—endorsed by the district court—
is that the REPC is “unenforceable because it lacks material
terms.” But in its briefing on appeal, Enlaw makes a related
subsidiary argument, also endorsed by the district court (in its lis
pendens ruling): that the REPC, even if otherwise enforceable, “is
too vague for specific performance” because it is not “free from
doubt, vagueness, or ambiguity.” Regal challenges the district
court’s endorsement of these arguments, as well as the court’s
order commanding it to release the lis pendens, and we address

2. Regal also successfully took steps to obtain a stay of the district
court’s rulings pending the outcome of this appeal.

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the merits of Regal’s challenges later in this opinion. But before
doing so, we first discuss the legal principles that govern
questions related to contractual ambiguity and enforceability,
especially as those principles are applied in cases where one party
seeks an order of specific performance.

I. Legal Principles Regarding Contractual Ambiguity,
Enforceability, and Specific Performance

A. Contractual Ambiguity and Enforceability

¶20 The “overriding principle” of contractual interpretation is
that “the intentions of the parties are controlling.” Ocean 18 LLC
v. Overage Refund Specialists LLC (In re Excess Proceeds from
Foreclosure of 1107 Snowberry St.), 2020 UT App 54, ¶ 21, 474 P.3d
481 (quotation simplified). “The best indication of the parties’
intent is the language they chose to use in the contract,” Compton
v. Houston Cas. Co., 2017 UT 17, ¶ 17, 393 P.3d 305, and courts
therefore begin their interpretive analysis by looking to the
language of the contract, and in doing so they “examine the entire
contract and all of its parts in relation to each other,” Ocean 18,
2020 UT App 54, ¶ 21 (quotation simplified). If the plain language
of the contract is clear and unambiguous, then “the contract may
be interpreted as a matter of law, without resort to parol
evidence.” Id. ¶ 22 (quotation simplified).

¶21 If, however, the language of the contract is ambiguous, that
does not necessarily mean that the contract is unenforceable for
vagueness. See Plateau Mining Co. v. Utah Div. of State Lands
& Forestry, 802 P.2d 720, 725–26 (Utah 1990) (reversing a district
court’s ruling that a contract was “ambiguous and therefore
unenforceable,” and stating that the court “should not have held
[the contract] unenforceable because it is ambiguous”); 17 C.J.S.
Contracts § 60 (2024) (stating that “[t]he use of language, the
application of which is uncertain, does not necessarily prevent the
existence of a valid contract,” and that “[i]f a court is able to
ascertain the intent of the parties using the proper rules of
construction and principles of equity, then the contract is

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sufficiently definite and certain to be enforceable”). In most cases,
the presence of ambiguity simply signals that additional litigation
and analysis is required; at that point, interpretation of the
contract—and ascertaining the parties’ intent—becomes a
question of fact instead of a question of law. See Ocean 18, 2020 UT
App 54, ¶¶ 22, 29. A court attempting to interpret an ambiguous
contract should admit and examine “parol evidence of the parties’
intentions.” Id. ¶ 29 (quotation simplified); see also Plateau Mining,
802 P.2d at 726 (stating that, before declaring the contract
unenforceable for alleged vagueness, the district “court should
have received evidence to determine the meaning of the terms” of
the contract). In some such cases, where the extrinsic evidence “is
so one-sided that a reasonable factfinder could reach but one
conclusion” about the parties’ intentions, interpretation of an
ambiguous contract can still occur “as a matter of law at the
summary judgment stage.” Ocean 18, 2020 UT App 54, ¶ 29. But
in other cases—where extrinsic evidence points materially in both
directions—a question of fact regarding the parties’ intent will
remain to be decided by the factfinder after trial. Id.

¶22 While garden-variety ambiguity regarding the meaning of
contractual language will not render a contract so vague as to be
unenforceable, exceptional situations do arise in which the
contract in question is simply too uncertain to enforce. After all,
“a meeting of the minds on the integral features of an agreement
is essential to the formation of a contract,” and “an agreement
cannot be enforced if its terms” remain indefinite even after
examination of parol evidence. See Nielsen v. Gold’s Gym, 2003 UT
37, ¶ 11, 78 P.3d 600 (quotation simplified); see also id. ¶ 12 (stating
that a contract is unenforceable “if the essential terms are so
uncertain that there is no basis for deciding whether the
agreement has been kept or broken” (quotation simplified)). If the
parties reached agreement on the material terms of a contract but
simply chose to use imprecise language to memorialize that
agreement, the contract is ambiguous but enforceable once a
factfinder makes a ruling, after considering extrinsic evidence, on
the intended meaning of the ambiguous terms. See Plateau Mining,
802 P.2d at 725 (“Failure to resolve an ambiguity by determining

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the parties’ intent from parol evidence is error.”). On the other
hand, a contract, to be enforceable, must be definite enough that a
court can “enforce [it] according to the parties’ intentions; if those
intentions are impenetrable, or never actually existed, there can
be no contract to enforce.” Nielsen, 2003 UT 37, ¶ 12; see also 17
C.J.S. Contracts § 51 (2024) (stating that a contract is enforceable
“unless the promises are so indefinite that a court cannot
determine what the parties intended”).

¶23 Even contracts that are missing seemingly important terms
are not necessarily unenforceable. See Reed v. Alvey, 610 P.2d 1374,
1378 (Utah 1980) (“There is no principle of equity that demands
all the terms of the contract must be set forth in the written
agreement.”); see also Nielsen, 2003 UT 37, ¶ 12 (“A contract may
be enforced even though some contract terms may be missing or
left to be agreed upon . . . .” (quotation simplified)). In some cases,
missing terms can be “supplied by law, presumption or custom,”
and where this is the case, the “contract will not fail for
indefiniteness.” Bill Barrett Corp. v. YMC Royalty Co., 918 F.3d 760,
767 (10th Cir. 2019) (quotation simplified); see also Reed, 610 P.2d
at 1378 (stating that contracts can be enforced if their “uncertainty
relates to matters which the law makes certain or complete by
presumption, rule or custom and usage”); Electrical Contractors,
Inc. v. Westwater Farms, LLC, 2016 UT App 60, ¶ 11, 370 P.3d 949
(holding a contract to be enforceable despite the lack of a specific
description of the services to be provided, because custom
dictated that “any services that would normally be performed by
a general contractor or an electrical contractor on a project such as
the one at issue would be included in the contracted services”).
And courts sometimes “read into” contracts a “reasonable” time
provision in situations where the parties failed to specify a time
frame for performance. See, e.g., Ferris v. Jennings, 595 P.2d 857, 860
(Utah 1979).

¶24 It is sometimes said that contracts that amount to mere
“agreements to agree are generally unenforceable because they
leave open material terms for future consideration, and the courts
cannot create these terms for the parties.” Harmon v. Greenwood,

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596 P.2d 636, 639 (Utah 1979) (quotation simplified); see also Ohio
Calculating, Inc. v. CPT Corp., 846 F.2d 497, 501 (8th Cir. 1988)
(stating that “agreements to negotiate” are generally “deemed
unenforceable because they provide neither a basis for
determining the existence of a breach nor for giving an
appropriate remedy”). But even a contract containing an
“agreement to agree” is “not per se unenforceable,” and will be
enforced if it “includes sufficiently definite terms and conditions
regarding the essential terms of the contract.” GeoNan Props., LLC
v. Park-Ro-She, Inc., 2011 UT App 309, ¶ 10, 263 P.3d 1169
(quotation simplified); see also 25 Williston on Contracts § 67:4 (4th
ed. 2024) (noting that “the mere fact that a contract, definite in
material respects, contains some terms which are subject to
further negotiation” will not prevent its enforcement).

¶25 In particular, contracts are not per se unenforceable if the
parties—rather than setting forth a specific price term or a specific
description of the property covered by the contract—include in
the contract a method by which that term will be computed or
ascertained in the future. See Plateau Mining, 802 P.2d at 726 (“An
agreement is not unenforceable for lack of definiteness of price or
amount if the parties specify a practicable method by which the
amount can be determined by the court without any new
expression by the parties themselves.” (quotation simplified)); see
also Syme v. Symphony Group LLC, 2018 UT App 212, ¶ 14, 437 P.3d
576 (concluding that a contract was enforceable, despite the fact
that “some contract terms . . . were left to be agreed upon,”
because “the parties expressly contemplated that additional
selections would be made, and they agreed on the process for
making those selections” (quotation simplified)); Coulter & Smith,
Ltd. v. Russell (Coulter & Smith II), 1999 UT App 55, ¶ 15, 976 P.2d
1218 (holding that a contract for purchase of an unspecified
number of lots was enforceable, because the agreement contained
“a definite method to determine the land description without
further agreement by the parties: Coulter was to develop the lots
according to Sandy City’s annexation and zoning requirements”).
In the construction industry, for example, contracts in which the
parties agree to a “cost-plus” price term are not per se

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unenforceable due to lack of a specific contract price, because such
contracts “provide a clear method for calculating the price once
the work [is] completed.” Electrical Contractors, 2016 UT App 60,
¶ 11; see also I-D Elec. Inc. v. Gillman, 2017 UT App 144, ¶ 28, 402
P.3d 802 (concluding that a contract was enforceable, despite the
lack of a specific price term, because the contractor’s “general
practice was to use a cost-plus payment system”), cert. denied, 412
P.3d 1255 (Utah 2018).

¶26 In the end, questions of contractual enforceability often
boil down to whether the contract, construed as a whole, is merely
ambiguous—a problem that can usually be resolved by resort to
extrinsic evidence—or whether the contracting parties have
wholly failed to reach agreement on “essential terms.” See New
York Life Ins. Co. v. K N Energy, Inc., 80 F.3d 405, 409 (10th Cir. 1996)
(“If essentials are unsettled, and no method of settlement is agreed
upon, there is no contract. If the writing leaves the agreement of
the parties vague and indefinite as to an essential element thereof,
it is not a contract and cannot be made one by parol.” (quotation
simplified)). In many cases, a court will not be able to conclusively
determine, before examining relevant extrinsic evidence
(including custom and usage), that a contract is unenforceable as
a matter of law due to the absence of essential terms. See Nielsen,
2003 UT 37, ¶ 13. Parol evidence will often shed light on the
parties’ intentions, including the meaning of ambiguous terms
and whether an agreement was reached at all on ostensibly
missing material terms. Moreover, “whether or not [a] missing
term [is] essential to the contract requires an examination of the
entire agreement and the circumstances under which the
agreement was entered into.” Id. (quotation simplified); see also
Restatement (Second) of Contracts § 131 cmt. g (Am. L. Inst. 1981)
(“What is essential depends on the agreement and its context and
also on the subsequent conduct of the parties, including the
dispute which arises and the remedy sought.”); 37 C.J.S. Frauds,
Statute of § 131 (2024) (stating that “in a contract for sale of real
estate, there is no definitive list of essential terms” because
“essential terms vary[] widely according to the nature and
complexity of each transaction”).

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B. Specific Performance

¶27 The legal principles we have described so far apply in all
contract cases, regardless of whether the remedy sought is
damages for breach of the contract or specific performance of the
terms of the contract. But where the remedy sought is specific
performance, the party seeking to enforce the contract must
demonstrate a different—and in some respects higher—degree of
contractual definiteness in order to succeed. See Brown’s Shoe Fit
Co. v. Olch, 955 P.2d 357, 365 (Utah Ct. App. 1998) (“We recognize
that in some cases, although the terms of a contract are not certain
enough to be specifically performed, the terms may be certain
enough to provide the basis for calculating damages.”).

¶28 Specific performance is “a court-ordered remedy that
requires precise fulfillment of a legal or contractual obligation.”
Specific performance, Black’s Law Dictionary (11th ed. 2019). It is
“an equitable remedy that lies within the court’s discretion to
award whenever the common-law remedy is insufficient, either
because damages would be inadequate or because the damages
could not possibly be established.” Id.; see also Thatcher v. Lang,
2020 UT App 38, ¶ 20, 462 P.3d 397 (“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
. . . .” (quotation simplified)).

¶29 Because specific performance is a remedy that, by
definition, involves a court ordering a party to take certain
actions, a specific performance remedy is available only where
“the terms of the contract are sufficiently certain to provide a basis
for an appropriate order.” See Restatement (Second) of Contracts
§ 362 (Am. L. Inst. 1981). The sort of certainty sufficient for specific
performance is something less than absolute certainty. See 81A
C.J.S. Specific Performance § 29 (2024) (“In order to warrant a decree
of specific performance thereof, a contract must be clear, definite,
and certain, but absolute certainty is not required.”); see also 25
Williston on Contracts § 67:4 (4th ed. 2024) (“[I]t is clear that

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absolute certainty regarding every aspect of the contract is not
required in order that a decree of specific performance be issued
. . . .”). The necessity of being able to compose a useful order of
specific performance is the reason some situations might exist in
which the terms of the contract are “certain enough to provide the
basis for the calculation of damages but not certain enough to
permit the court to frame an order of specific performance or an
injunction and to determine whether the resulting performance is
in accord with what has been ordered.” Brown’s Shoe, 955 P.2d at
365 n.8 (quotation simplified).

¶30 Under Utah law, a contract is sufficiently certain for
specific performance if the parties have “reached agreement and
committed themselves on the major aspects of the transaction,”
even though there might be uncertainty with regard to some of
the “incidental details” of the transaction. See Kier v. Condrack, 478
P.2d 327, 330 (Utah 1970); see also Reed v. Alvey, 610 P.2d 1374, 1379
(Utah 1980) (stating that courts should “not allow” uncertainty
regarding “incidental details . . . to deny specific performance”).
And our supreme court has stated that the rule requiring a
contract to be “sufficiently definite” before specific performance
may be ordered is intended to be used “to protect a party from an
injustice, and not as a weapon with which to perpetrate an
injustice” or “to renege on the bargain.” Kier, 478 P.2d at 330.

¶31 As specifically applicable here, our supreme court has also
made clear that the presence of run-of-the-mill contractual
ambiguity—even with regard to essential contract terms—will
not operate to categorically preclude a specific performance
remedy; instead, courts should deal with the presence of
contractual ambiguity in specific-performance cases in more or
less the same way they deal with ambiguity in damages cases. See
Reed, 610 P.2d at 1377. On this topic, the court stated as follows:

Before specific performance will be employed by the
courts to enforce a contract[,] the terms of the
agreement must be reasonably certain so the parties
know what is required of them, and definite enough

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that the courts can delineate the intent of the
contracting parties. In reviewing the written
agreement evidencing the contract, and any
ambiguity inherent in the language used, extrinsic
evidence may be considered by the court to
delineate the intent of the parties and the
enforceability of the contract. Thus, courts are
provided a means by which they can look beyond
the terms found in the written agreement to
ascertain the intent of the contracting parties. If from
this examination of the transaction the courts
determine the actual contract is certain and the
obligation and rights of the parties defined, then
they may employ their equitable powers to enforce
the contract via specific performance.

Id. (quotation simplified). The court specifically authorized
district courts, even in specific performance cases, to look not only
to “extrinsic evidence” but also to things like “presumption, rule
or custom and usage” in resolving “uncertainty” created by
contractual ambiguity. See id. at 1377–78. And in a different case,
the court noted that, in assessing the “definiteness” of a contract
for purposes of specific performance, district courts may take into
account the fact “that the parties to a contract are obliged to
proceed in good faith to cooperate in performing the contract in
accordance with its expressed intent.” Ferris v. Jennings, 595 P.2d
857, 859 (Utah 1979). In that same case, the court also noted that,
for contracts that omit a time-of-payment term, district courts
may, where appropriate, “read into such contracts an obligation
of payment within a time ‘reasonable’ in the context of the
transaction and circumstances of the parties.” Id. at 860.

¶32 Our supreme court has followed this procedure in several
cases in which specific performance was requested and in which
the contracts in question had serious ambiguities regarding
material terms. For instance, in Reed, the contract in question was
for the sale of real property located at the “corner of Hillview and

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Ninth East.” 610 P.2d at 1377. The contract offered no further
description of the property to be sold, and the district court
determined that the contract was therefore “too vague,
incomplete and ambiguous to be capable of enforcement by a
decree of specific performance.” Id. Our supreme court reversed,
because after examination of the extrinsic evidence unearthed by
the parties, it was apparent that “everyone connected with the
deal knew what land was involved.” Id. at 1378. The court
concluded that “the ambiguous nature of the terms used in the
written agreement when viewed in light of the extraneous
evidence presented at trial does not render the contract
unenforceable or defeat an action for specific performance.” Id.;
see also Hackford v. Snow, 657 P.2d 1271, 1276 (Utah 1982)
(determining that a contract providing for the sale of real property
“described as ‘Neola, (420 acre Hackford Farm), Uintah County,
State of Utah’” was potentially enforceable and “sufficient to
admit extrinsic evidence to aid in determining the parties’
intentions,” and rejecting one party’s argument that the contract
“did not describe the subject property with sufficient certainty as
to justify specific performance”); Jacobson v. Cox, 202 P.2d 714, 721
(Utah 1949) (rendering a similar holding with regard to a contract
for the sale of “certain leased land up in the old field, now under
fence above the Spring Branch Ditch”).

¶33 Enlaw contends—and the district court ruled—that
specific performance is unavailable unless the contract’s language
is completely free of vagueness and ambiguity. In support of this
proposition, Enlaw relies on language from one of our cases, a
memorandum decision from 2011. See Tooele Assocs. Ltd. P’ship v.
Tooele City, 2011 UT App 36, ¶ 2, 251 P.3d 835 (stating that “for a
court to order specific performance, ‘[t]he contract must be free
from doubt, vagueness, and ambiguity, so as to leave nothing to
conjecture or to be supplied by the court’” (quoting Pitcher v.
Lauritzen, 423 P.3d 491, 493 (Utah 1967)). However, the quoted
language in Tooele Associates, see id., comes from a Utah Supreme
Court opinion that predates Reed, a case in which our supreme
court made clear that the presence of garden-variety ambiguity is
no bar to an order of specific performance, see Reed, 610 P.2d at

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1377. Moreover, later in the same year that we issued Tooele
Associates, we clarified that even “an agreement to agree”—a
document that, by definition, contains a certain amount of
ambiguity and uncertainty—could be “specifically enforced” as
long as it “included sufficiently definite terms and conditions.”
GeoNan Props., LLC v. Park-Ro-She, Inc., 2011 UT App 309, ¶ 10, 263
P.3d 1169 (quotation simplified). And even in Tooele Associates
itself, we stated that a contract is definite enough to be specifically
enforced if it is “sufficiently certain as to its terms so that the court
may enforce it as actually made by the parties.” 2011 UT App 36,
¶ 2 (quotation simplified).

¶34 We therefore take this opportunity to clarify that the
equitable remedy of specific performance remains potentially
available even if the language of the contract in question is not
completely free from all doubt, vagueness, or ambiguity. Courts
in specific performance cases may use the usual tools of
contractual interpretation—including examination of extrinsic
evidence—to try to resolve facial ambiguity. See Reed, 610 P.2d at
1377. And after examining the language of the contract, viewed in
tandem with available extrinsic evidence and things like
presumption, rule, custom, and usage, a court may order specific
performance if it determines that the contract is definite enough
to facilitate composition of an accurate, meaningful court order
that reflects “the intent of the contracting parties,” see id. at 1377–
78, and that is “certain enough” to allow the court to “determine
whether the resulting performance is in accord with what has
been ordered,” see Brown’s Shoe, 955 P.2d at 365 n.8 (quotation
simplified); see also 81A C.J.S. Specific Performance § 29 (2024)
(stating that “absolute certainty is not required” for specific
performance; that courts often look to “relevant extrinsic
evidence,” even in specific performance cases; and that “specific
performance may be decreed even though a contract is uncertain
or incomplete in some respects if the uncertainty or
incompleteness relates to matters that the law makes certain or
complete by presumption, rule, or custom and usage”); 25
Williston on Contracts § 67:4 (4th ed. 2024) (stating that specific
performance does not require “absolute certainty regarding every

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aspect of the contract,” and that “the mere fact that a contract,
definite in material respects, contains some terms which are
subject to further negotiation will not bar a decree for specific
performance”); 19 Am. Jur. 3d Proof of Facts 543 § 6 (2024) (stating
that “the law favors the carrying out of contracts if a court can
possibly construe the terms to ascertain the parties’ intentions,”
and that, in order to obtain specific performance, “it is not
necessary to answer every possible question about the contract”
and “[i]t is sufficient if enough is known that the intent of the
parties as to fundamental terms can be ascertained with
reasonable certainty”).

II. Regal’s Challenges to the District Court’s Rulings

¶35 With these legal principles in mind, we now turn to Regal’s
specific challenges to the district court’s rulings. First, we address
Regal’s assertion that the court erred in determining, as a matter
of law, that the REPC’s price provisions are too uncertain to
enforce. Second, we address Regal’s assertion that the court erred
in determining that Regal had not timely tendered performance
of its obligations under the REPC. And third, we address Regal’s
assertion that the court erred in ordering the lis pendens removed.
For the reasons discussed, we find merit—at least to some
extent—in all of Regal’s challenges.

A. The REPC’s Price Provisions

¶36 All parties agree that Enlaw agreed to sell the Property to
Regal for a total price of $4,378,500, and no party contends that
there is any ambiguity in the provision setting forth the ultimate
price to be paid for the Property. But Enlaw asserts—and the
district court ruled—that the REPC’s price-reduction provision in
Addendum 1 is, as a matter of law, too uncertain to be enforceable
at all, let alone enforced by an order of specific performance. Regal
takes an entirely different position, and asserts that the price-
reduction provision is, as a matter of law, entirely enforceable,
even by an order of specific performance. In keeping with these
positions, both sides moved for summary judgment in their favor

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on the question of whether the REPC’s price provisions, construed
together, were sufficiently definite to be enforced by an order of
specific performance, and the district court granted Enlaw’s
motion and denied Regal’s. In our view, neither of the summary
judgment motions should have been granted on this point at this
stage of the proceedings, because the REPC’s price provisions are
facially ambiguous and are at least potentially definite enough to
be enforceable, depending on the extent to which Regal’s
disputed assertions about the parties’ intentions are found to be
supported by the still-developing factual record.

¶37 We agree with Enlaw about this much: some of the
language of the price-reduction provision is facially ambiguous
and therefore potentially uncertain in its meaning. In the first
sentence of the price-reduction provision, the parties agreed that
Regal would obtain bids “for the installation of the road and other
improvements including utilities required by local government,
utility companies, and other services agencies (Santa Clara City,
etc.) to the Property line at the locations and capacities
determined by the engineer and the city approved plan.” This
language contains several potential ambiguities. For instance,
nowhere in the REPC is the identity of “the road” ever specified.
But the parties are apparently in agreement that this failure to
describe the actual stretch of road Regal was agreeing to construct
does not render the REPC unenforceable; indeed, both sides now
acknowledge that the parties’ original intent—although not stated
expressly in the REPC—is that Regal would be responsible for the
construction of part of “Red Mountain Drive.” See generally, e.g.,
Reed v. Alvey, 610 P.2d 1374, 1378 (Utah 1980) (holding that facial
ambiguity regarding the description of the real property subject
to the contract does not preclude specific performance of a
contract where extrinsic evidence revealed that “everyone
connected with the deal knew what land was involved”).

¶38 But while any ambiguity regarding the identity of “the
road” has apparently been taken care of, Enlaw maintains that
uncertainty remains regarding the “other improvements” that
Regal agreed to construct along with the road. Regal responds by

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acknowledging that the REPC does not specify which “other
improvements” are to be built along with the road, but it asserts
that the REPC does provide a method by which those
improvements will later be identified. The language of the price-
reduction provision states that the “improvements” in question
are the ones that will be “required by local government, utility
companies, and other services agencies . . . at the locations and
capacities determined by the engineer and the city approved
plan.” As Regal sees it, the City and other governing entities will
dictate—by setting forth specifications that will eventually be
included in engineering plans and an approved plat—how the
road is to be built, including the “improvements” they require to
be built along with it. And Regal asserts that this is exactly what
the parties agreed to: Regal would be responsible for building the
road, including “other improvements,” to specifications dictated
to it by regulating entities. We agree with Regal that such an
agreement—assuming that this was the parties’ agreement, a
point on which the district court has not yet rendered any factual
finding—is not too vague or uncertain to enforce, because it
includes a definite method by which the identity of the
“improvements” will eventually be ascertained, without the
necessity of further negotiation between the parties. See Coulter
& Smith II, 1999 UT App 55, ¶ 15, 976 P.2d 1218 (holding that a
contract for purchase of an unspecified number of lots was
enforceable, because the agreement contained “a definite method
to determine the land description without further agreement by
the parties: Coulter was to develop the lots according to Sandy
City’s annexation and zoning requirements”).

¶39 Enlaw also perceives fatal uncertainty in the final sentence
of the price-reduction provision. In that sentence, the parties
agreed that “[t]he selection of contractor, the bid amount and the
reduction in Purchase Price will be mutually agreed upon by both
Buyer and Seller prior to the end of the due diligence period.” As
Enlaw sees it, this language is a quintessential agreement to agree
because, in Enlaw’s interpretation, it requires further negotiation
and requires the parties to “mutually agree[]” on the “reduction
in Purchase Price.” Enlaw analogizes to our opinion in Bloom

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Master Inc. v. Bloom Master LLC, in which we held unenforceable a
contract in which the parties did not agree to any actual terms for
repayment of a loan, but instead agreed that repayment would be
“dependent upon the continued success of the [planter product]”
and therefore “the principal amount, rates of interest, maturity
date and other terms and conditions [would] be reviewed on an
annual basis.” 2019 UT App 63, ¶ 4, 442 P.3d 1178. We concluded
that the contract in question was an unenforceable “agreement to
agree because it anticipates some future agreement regarding
modification of myriad contractual terms and because there is no
clear mechanism for determining the modification.” Id. ¶ 20.

¶40 Regal, on the other hand, resists Enlaw’s contention that
any further negotiation is required here. Regal points out that the
parties clearly agreed that the reduction in purchase price will be
“the cost to complete” the road and the “other improvements,”
and it asserts that there exists a clear mechanism for determining
the amount of that reduction: Regal will obtain construction bids,
using the specifications provided to it in a plat approved by the
regulating entities, and the parties must then simply review those
bids and select one. As Regal sees it, once a bid is chosen, the rest
will fall into place in cascading fashion: “when a bid is accepted
one thereby chooses the contractor, and the amount of the bid is
the reduction in the purchase price.” Regal thus analogizes to
cases in which parties agreed, in a contract, to allow a later-
selected third party to determine a material term of the contract,
such as the purchase price of property after an appraisal. See
Turley v. Childs, 2022 UT App 85, ¶¶ 38–39, 515 P.3d 942
(determining that a contract was enforceable even though it left
the purchase price to be determined by a “third appraiser” who
would be appointed by two other appraisers, one chosen by each
side); see also Coulter & Smith II, 1999 UT App 55, ¶ 15. And it
argues that, for instance, arbitration clauses are not unenforceable
simply because the parties agree to select an arbitrator later, at the
time a dispute arises.

¶41 In our view, Regal has the better of this argument. The
REPC contains a clear agreed-upon methodology for ascertaining

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the amount of the purchase price reduction, and nothing about
this process renders the REPC too uncertain to be enforceable.
This case is therefore much more like Turley and Coulter & Smith
II than it is like Bloom Master, where the parties had completely
failed to identify any process—other than future negotiation—to
arrive at the loan repayment terms.

¶42 To be sure, future complications could conceivably arise
with the execution of the agreed-upon methodology. Enlaw
wonders what might happen if it does not wish to use any of the
contractors from whom Regal solicits bids, or if the parties cannot
agree on a contractor. These are contingencies that certainly have
not happened yet, and in our view are unlikely to happen; if they
do happen, the parties can then revisit questions of enforceability
or other contractual defenses (such as impossibility). We agree
with Regal that the mere possibility of such contingencies arising
in the future does not render the REPC unenforceable from the
outset. And we note that the parties will each be obligated, by the
covenant of good faith and fair dealing implied by force of law
into every contract, “to proceed in good faith to cooperate in
performing the contract in accordance with its expressed intent.”
See Ferris v. Jennings, 595 P.2d 857, 859 (Utah 1979); see also Young
Living Essential Oils, LC v. Marin, 2011 UT 64, ¶ 8, 266 P.3d 814
(stating that “the parties to a contract cannot feasibly anticipate all
possible contingencies nor reasonably resolve how they would
address them in writing,” and that the implied covenant has a role
to play in filling such gaps).

¶43 Finally, we reject Enlaw’s assertion that the possibility of
selection of a “cost-plus” bid—or the possibility of post-closing
change-order amendments to a fixed-price bid—renders the
REPC too indefinite to enforce as a matter of law. As Enlaw sees
it, the REPC requires that the “reduction in Purchase Price . . . be
mutually agreed upon . . . prior to the end of the due diligence period.”
(Emphasis added.) And it asserts that, if a “cost-plus” bid is
selected for construction of the road, or if change-order
amendments are made to a fixed-price bid after closing, the
parties will not know the exact amount of the price reduction at

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closing and, instead, will have to wait until completion of
construction for that amount to finally be ascertained. This
argument is unpersuasive, at least at this stage of the litigation.

¶44 It is quite probable—and not inconsistent with the
language of the REPC—that the parties intended for there to be
some sort of true-up accounting to be had following completion
of the road construction and that they did not intend for ordinary
construction-contract uncertainty about final price to be an
obstacle to enforceability. After all, regardless of whether a cost-
plus or a fixed-price bid is chosen, it is very likely that the eventual
cost of construction will not match, to the penny, the price of the
original bid. In light of this reality, post-construction true-ups are
quite common in the construction industry; they occur in every
cost-plus situation and in many fixed-price situations. 2A Bruner
& O’Connor on Construction Law § 6:98 (2023) (noting that with a
“fixed price contract” a contractor “receives one fixed price for
performing the work,” but this is still typically “subject to certain
possible price adjustments for changed conditions, or changes or
delays imposed by the owner”). Indeed, Regal asserts that such
adjustments are not at odds with the potentially ambiguous
language of the REPC, which stipulates that the purchase price
reduction will be “the cost to complete” the road construction, but
which also contemplates a bid-approval process to arrive at that
exact amount. As Regal sees it, what must be “mutually agreed
upon . . . prior to the end of the due diligence period” isn’t
necessarily an exact dollar amount but, rather, selection of a bid,
which—regardless of whether it is a cost-plus bid or a fixed-price
bid—will have a specific built-in procedure for accounting for
post-closing adjustments in bid price. Regal also points out that,
under the REPC, it is obligated to pay exactly $4,378,500 one way
or the other, with part of that sum going to Enlaw for the Property
and part going to the contractor eventually selected for the road
construction; it asserts that, in an attempt to provide for post-
closing adjustments, some amount of money could be placed in
an escrow account at closing, with the distribution of those funds
to be made later after the total construction price is finalized.

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¶45 Regal’s interpretation of the REPC—to potentially allow
post-closing adjustments to the total construction cost—is a
reasonable one and should not have been foreclosed on summary
judgment before completion of discovery and before findings
have been made regarding the parties’ intent. The concerns raised
by Enlaw about post-closing adjustments are therefore not a
basis—at least not at this procedural stage—for a determination
that the REPC is too uncertain to be enforced.

¶46 For all of these reasons, we conclude that the district court’s
ruling—made as a matter of law on summary judgment before the
completion of fact discovery—that the REPC is too vague and
uncertain to specifically enforce was erroneous. Regal advances a
reasonable interpretation that, if eventually supported by
extrinsic evidence, could lead to enforcement of the price
provisions of the REPC. We therefore agree with Regal that the
district court erred by granting Enlaw’s motion for summary
judgment regarding enforceability of the REPC’s price provisions,
and we reverse that determination. But given the procedural stage
this case was in when the summary judgment motions were filed,
we stop short of concluding that Regal is entitled to summary
judgment in its favor, and we therefore affirm the court’s denial
of Regal’s summary judgment motion on this point. 3

3. On appeal, Regal also argued that we could sever the price-
reduction provision from the rest of the REPC, an action it
contends would obviate any questions of uncertainty and
ambiguity. See generally Sosa v. Paulos, 924 P.2d 357, 363 (Utah
1996) (“In Utah, contract provisions are severable if the parties
intended severance at the time they entered into the contract and
if the primary purpose of the contract could still be accomplished
following severance.”). In response, Enlaw asserts that Regal did
not preserve a severability argument in the district court. Because
we conclude that the court erred in determining, as a matter of
law, that the REPC was unenforceable, we need not reach the
severability issue. Nothing in this opinion prevents the parties
from further exploring severability issues on remand.

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B. The REPC’s Closing Deadline

¶47 Second, Regal challenges the district court’s
determination—made in its ruling on Enlaw’s motion to remove
the lis pendens—that Regal had not timely tendered performance
of its obligations under the REPC. In this vein, Regal also takes
issue with the court’s denial of the final two requests for relief
made in its own motion for partial summary judgment, in which
it asked the court to conclude, as a matter of law based on the
REPC’s plain language, that the term “Entitlements” as used in
Addendum 2 refers to approval of Regal’s specific project for the
Property and not to approval of Enlaw’s overarching MDA, and
that Regal has not yet received the contemplated Entitlements. We
largely agree with Regal.

¶48 First, we agree with Regal that—as a matter of plain
language—the term “Entitlements” as used in Addendum 2 refers
to approval of Regal’s specific project and not to the MDA. In
Addendum 2, the parties defined “Buyer” as Regal and “Seller”
as Enlaw. The parties then agreed to extend the REPC’s “Seller
Disclosure Deadline Date” to the “date on which [the City] gives
final approval of Buyer’s development project including, without
limitation, an executed development agreement for the Property
(the ‘Entitlements’).” (Emphasis added.) We need not proceed
beyond the plain language of the REPC in order to conclude that
this provision—and the term “Entitlements”—unambiguously
refers to approval of Regal’s smaller “development project” on the
Property and not to Enlaw’s larger, overarching Black Desert
MDA. See Ocean 18 LLC v. Overage Refund Specialists LLC (In re
Excess Proceeds from Foreclosure of 1107 Snowberry St.), 2020 UT
App 54, ¶¶ 21–22, 474 P.3d 481 (stating that contractual
interpretation begins with examination of the contract’s plain
language, and that if the plain language of the contract is clear and
unambiguous, then “the contract may be interpreted as a matter
of law, without resort to parol evidence” (quotation simplified)).

¶49 To be sure, the Property is part of what is covered in the
MDA; that document even contains provisions specifically aimed

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at the Property. But we reject Enlaw’s assertion that Addendum 2
refers to the MDA. As an initial matter, the MDA is aimed at
obtaining approval for the larger Black Desert project, not Regal’s
smaller project on the Property, and Addendum 2 clearly
references approval of Regal’s development project. It would
strain the language beyond recognition to construe “approval of
Buyer’s development project” to mean approval of Enlaw’s MDA.
(Emphasis added.) If the parties had intended for the deadline in
Addendum 2 to be triggered by approval of the MDA, they could
have chosen language indicating that the deadline was triggered
by the City’s approval of “Enlaw’s” or “Seller’s” development
project. But they didn’t.

¶50 Moreover, the MDA did not afford Regal “final approval”
for any particular project on the Property. (Emphasis added.)
Instead, it merely stated that the Property is “designated for
medium density residential” and could potentially “be developed
to a density of eight (8) dwelling units per acre, for a total of
approximately 133 units.” It allowed for the possibility that a
project built there might contain additional density, authorizing
developers to “seek approval of a density bonus of up to fifty
percent . . . for a maximum of approximately two hundred (200)
dwelling units,” with approval of any such “bonus” being
“subject to the conditions set forth in” the City’s ordinances. Thus,
even if by some stretch the words “Buyer’s development project”
could refer to the entire Black Desert project, the MDA in any
event did not give final approval for any specific “development
project” on the Property. Thus, we conclude—as a matter of law—
that Addendum 2 refers to eventual “final approval” of Regal’s
specific project, and not to the MDA.

¶51 Because Addendum 2’s closing deadline is unambiguously
triggered only by “final approval” of “Buyer’s development
project,” that deadline was therefore not triggered by the City’s
September 2021 approval of the MDA. Accordingly, it follows that
the district court erred by concluding that, merely because Regal
failed to close within 45 days of the City’s approval of the MDA,
“Regal failed to timely close on the Property.”

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¶52 Enlaw resists this conclusion by making two arguments,
neither of which is persuasive. First, it argues that Addendum 2
fails for lack of consideration, asserting that Enlaw gave no
consideration for agreeing to extend the REPC’s closing deadline.
“Under contract law, courts will not ordinarily inquire into the
adequacy of consideration unless it is so insufficient or illusory as
to render enforcement of the contract unconscionable.” JENCO LC
v. SJI LLC, 2023 UT App 151, ¶ 43, 541 P.3d 321 (quotation
simplified). Here, Addendum 2 was supported by sufficient
consideration. By agreeing to extend the deadline, Enlaw was—at
least temporarily—able to satisfy Regal’s complaints about
Enlaw’s delays in obtaining the MDA, and it meant that Enlaw
did not have to seek out another party willing to purchase the
Property that was also willing to develop the road. Furthermore,
the REPC originally provided that Regal would have “60 calendar
days” after the trigger date (then, the conclusion of the due
diligence period) to close on the Property, but Addendum 2—to
Enlaw’s benefit—shortened that to “45 days” from the new
trigger date (receipt of the Entitlements). We therefore conclude
that Addendum 2 is supported by adequate consideration, and
that the district court was incorrect to suggest otherwise.

¶53 Second, Enlaw asserts that Regal’s interpretation of
Addendum 2—that the closing deadline is 45 days after eventual
approval of its own development project on the Property—runs
afoul of the rule against perpetuities. 4 That rule exists “to insure

4. On appeal, the parties each referenced the common-law rule
against perpetuities. But our legislature has codified the rule
against perpetuities, see Utah Code § 75-2-1203(1), and in so doing
it made clear that the old common-law version of the rule no
longer applies, id. § 75-2-1208 (“The common law rule against
perpetuities does not apply in this state.”). The main difference
between the statutory version and the common-law version is the
length of time that must elapse before a property interest is
deemed invalid. Under the common-law version, the relevant
time period was “twenty-one years after some life in being at the
(continued…)

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that property is reasonably available for development by
forbidding restraints that keep property from being used for a
lengthy period of time.” 70 C.J.S. Perpetuities § 11 (2024); see also
Coulter & Smith, Ltd. v. Russell (Coulter & Smith I), 966 P.2d 852, 856
(Utah 1998). To that end, the rule states that “[a] nonvested
property interest is invalid unless within 1,000 years after the
interest’s creation the interest vests or terminates.” Utah Code
§ 75-2-1203(1). In essence, Enlaw asserts that, under Regal’s
interpretation of the REPC, the closing deadline is triggered by an
eventuality—approval of Regal’s specific project—which might
never come, and it argues that this interpretation could cause the
Property to remain in limbo for a very long time after execution
of the REPC, thus violating the rule against perpetuities.

¶54 But this problem is averted rather easily by implication of
a “reasonable time” provision into Addendum 2, an action courts
routinely take in cases where “a contract fails to specify a time of
performance.” Coulter & Smith I, 966 P.2d at 858; see also Holt v.
Holt, 2024 UT App 6, ¶ 20, 543 P.3d 214 (“Our principles of
contract interpretation . . . provide that if a contract fails to specify
a time of performance the law implies that it shall be done within
a reasonable time under the circumstances . . . .” (quotation
simplified)). Indeed, “a contract should first be interpreted by
utilizing the ordinary rules of contract construction before
applying the rule against perpetuities.” Coulter & Smith I, 966 P.2d
at 857. In this case, the 45-day closing deadline will be triggered
by “final approval” of Regal’s “development project,” an
eventuality that must occur within a reasonable time. What

creation of the interest.” Coulter & Smith, Ltd. v. Russell (Coulter
& Smith I), 966 P.2d 852, 856 (Utah 1998). Under the statutory
version, the relevant time period is “1,000 years after the interest’s
creation.” Utah Code § 75-2-1203(1). Our conclusion—that
implication of a “reasonable time” provision into Addendum 2
almost certainly renders the rule against perpetuities irrelevant—
is the same regardless of which version of the rule applies here.
Accordingly, in our analysis we reference the codified version of
the rule, which was in effect at all relevant times.

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constitutes a reasonable time under the circumstances is a
question of fact. See New York Ave. LLC v. Harrison, 2016 UT App
240, ¶ 35, 391 P.3d 268 (“What constitutes a reasonable time is
necessarily a fact-intensive question that depends upon the
subject-matter, the nature of the act to be performed, and the
situation of the parties . . . .” (quotation simplified)), cert. denied,
393 P.3d 283 (Utah 2017). So, unless a factfinder later determines
that a “reasonable time” in this situation is something longer than
one thousand years from the time the REPC was executed, the
REPC does not run afoul of the rule against perpetuities.

¶55 Finally, we note the limitations of our holding in this
section of our opinion. We conclude, as a matter of law, that
Addendum 2’s closing deadline is unambiguously triggered only
by “final approval” of “Buyer’s development project,” and that
the deadline was therefore not triggered by the City’s September
2021 approval of the MDA. We therefore reverse the district
court’s determination—made in its lis pendens ruling—that,
merely because Regal failed to close on the transaction within 45
days of the City’s approval of the MDA, “Regal failed to timely
close on the Property.” We therefore also reverse, in part, the
court’s denial of Regal’s motion for partial summary judgment,
and we grant Regal part of the relief it sought in that motion,
namely, that the term “Entitlements,” as used in Addendum 2,
refers to “final approval” of Regal’s “development project” and
does not refer to the MDA.

¶56 But we stop short of ordering reversal of the district court’s
denial of Regal’s request, on summary judgment, for a declaration
that Regal’s receipt of the “Entitlements,” as that term is used in
Addendum 2, has not yet occurred. While there are no
ambiguities in Addendum 2 with regard to whose project’s
approval triggers the 45-day closing deadline, the district court
correctly perceived ambiguities in Addendum 2 with regard to
exactly what documents must be approved by the City in order to
trigger that deadline. Addendum 2 indicates that “final approval”
of Regal’s project might “includ[e] . . . an executed development
agreement for the Property,” but Addendum 1 indicates that

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Regal will also be seeking approval of a “recordable plat.” In our
view, the REPC is not entirely clear as to exactly what document
or documents need to be approved by the City in order to trigger
the 45-day closing deadline. Because further fact questions remain
to be decided on this point in order to clear up this ambiguity, we
are unable to ascertain, as a matter of law, whether that deadline
has or has not yet expired, and on that basis we affirm the district
court’s denial, at this procedural stage, of Regal’s third request for
relief in its motion for partial summary judgment.

C. The Lis Pendens Ruling

¶57 Finally, Regal challenges the follow-on ruling that, because
the REPC was unenforceable as a matter of law, the lis pendens
Regal recorded against the Property was improper and should be
removed. Regal asserts that the district court’s lis pendens ruling
was simply a function of its summary judgment ruling regarding
enforceability, and it posits that, if that ruling is vacated, then the
lis pendens ruling must also be vacated. We agree.

¶58 On a basic level, a lis pendens is a “notice, recorded in the
chain of title to real property,” that “warn[s] all persons that
certain property is the subject matter of litigation, and that any
interests acquired during the pendency of the suit are subject to
its outcome.” Lis pendens, Black’s Law Dictionary (11th ed. 2019).
Under Utah law, when an action has been filed that “affects the
title to, or the right of possession of, real property,” any of the
involved parties “may file a notice of pendency of action.” Utah
Code § 78B-6-1303(1)(a). That notice will be ordered released if a
court determines that the party who filed it is unable to establish
“the validity of the real property claim that is the subject of the
notice.” Id. § 78B-6-1304(2)(b). It made sense, then, for the district
court to order the lis pendens removed once it had ruled that the
REPC was unenforceable and that Regal would therefore be
unable to obtain title to or possession of the Property.

¶59 But we have now reversed the court’s ruling that Regal’s
specific performance claim is invalid and have thereby

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reinvigorated that claim, which is a cause of action that
unquestionably implicates “title to” the Property. See id. § 78B-6-
1303(1)(a). Accordingly, there is once again a valid basis for Regal
to maintain a lis pendens against the Property, and therefore no
current legal basis upon which a court can order the lis pendens
removed. In summary, as long as Regal’s specific performance
claim remains alive, Regal has the right to have the notice of lis
pendens kept on record. We therefore reverse the district court’s
order commanding Regal to remove the lis pendens. 5

CONCLUSION

¶60 The district court correctly denied part of Regal’s motion
for partial summary judgment, because fact questions regarding
the intent of the parties remain to be litigated and determined
with regard to interpretation of the REPC’s price reduction
provision and with regard to which documents, exactly, must be
approved in order to trigger Addendum 2’s 45-day closing
deadline. To that extent, we affirm the rulings of the district court.

¶61 But the district court erred by declaring, as a matter of law
at this stage of the litigation, that the REPC’s price provisions are

5. Regal argues that our reversal of some of the district court’s
rulings entitles it to attorney fees under the REPC, which provides
that “[i]n any action arising out of this Contract, the prevailing
party shall be entitled to costs and reasonable attorney’s fees.”
This request is premature. At this time, we have no basis for
awarding attorney fees or for providing instruction that attorney
fees should be awarded. Whether any party will be entitled to
attorney fees is a matter for the district court to determine, in the
first instance, when this litigation is concluded. Crank v. Utah Jud.
Council, 2001 UT 8, ¶ 44 n.18, 20 P.3d 307 (“The question of
entitlement to fees at the trial court level has not yet been
determined. Thus, any appropriate award of attorney fees on
appeal is dependent upon that determination and should be
assessed by the district court on remand.”).

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too vague and indefinite to support an order of specific
performance. The court also erred by determining that
Addendum 2’s closing deadline had been triggered by the City’s
approval of Enlaw’s MDA; we hold, as a matter of law, that it had
not. Based on these conclusions, we reverse the district court’s
grant of Enlaw’s motion for partial summary judgment, and
thereby reinstate, pending further litigation, Regal’s claim for
specific performance of the REPC. We also reverse the court’s
denial of Regal’s motion for partial summary judgment, as
concerns its second request for relief—its assertion that the 45-day
closing deadline was not triggered by the City’s approval of the
MDA—and we remand this matter with instructions to grant
Regal’s motion in this particular respect. Furthermore, and also
based on these conclusions, we reverse the court’s decision to
order Regal to release the lis pendens.

¶62 We therefore remand the case to the district court for
further proceedings, consistent with this opinion, aimed at
resolving the remaining ambiguities in the REPC according to the
parties’ original contracting intentions.

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