Pera v. Glide Transportation

2025 UT App 167

THE UTAH COURT OF APPEALS

WALTER PERA, RYAN PERA, AND ALLEN TRENT HAMBLIN,
Appellees,
v.
GLIDE TRANSPORTATION CO., GEORGE GOATES, AND KATIE GOATES,
Appellants.

Opinion
No. 20240221-CA
Filed November 20, 2025

Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 220900778

John A. Snow and Alan S. Mouritsen,
Attorneys for Appellants
Brandon T. Crowther, Attorney for Appellees

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 George Goates, Katie Goates, and Glide Transportation Co.
(collectively, Buyers) entered into a purchase agreement with
Walter Pera, Ryan Pera, and Allen Hamblin (collectively, Sellers)
to purchase a company. As part of this transaction, Buyers signed
two promissory notes that set out payment schedules for future
payments.

¶2 Under a set of circumstances described below, Buyers later
made a series of payments that were either late or lower than the
amount set forth in the promissory notes. Sellers subsequently
sued, alleging breach of contract and breach of the covenant of
good faith and fair dealing, and they also claimed that Buyers’
payments were subject to a higher default interest rate that was
set forth in the promissory notes. In response, Buyers asserted that
Pera v. Glide Transportation

Sellers had waived their right to apply the default interest rate or,
alternatively, that they should be equitably estopped from doing
so. Buyers also claimed that they were entitled to an offset due to
a tax problem. Following a bench trial, the district court ruled in
favor of Sellers on the waiver and equitable estoppel issues, and
it further ruled that Buyers had not proven that they were
damaged by the alleged tax problem.

¶3 Buyers now appeal. For the reasons set forth below, we
first conclude that the district court committed legal error when it
rejected Buyers’ waiver and equitable estoppel defenses, so we
remand for further consideration of those issues. Next, we affirm
the court’s conclusion that Buyers did not prove any damages
relating to the alleged tax problem.

BACKGROUND 1

The Contract

¶4 In March 2016, Buyers and Sellers entered into a contract
(the Contract) under which Buyers agreed to purchase RTW
Management, LLC (the Company). During negotiations, Sellers
hired a broker to help set the purchase price, and Sellers gave the
broker access to the Company’s finances and information. The
parties eventually agreed to a purchase price of $2.5 million, with
$2 million paid up front and $500,000 to be paid under a payment
plan that was set forth in two promissory notes. Each of the three
Buyers signed individual and substantively identical promissory
notes.

1. “On appeal from a bench trial, we view and recite the evidence
in the light most favorable to the trial court’s findings; we present
additional evidence only as necessary to understand the issues on
appeal.” State v. Sparling, 2024 UT App 59, n.1, 549 P.3d 86
(quotation simplified), cert. denied, 554 P.3d 1096 (Utah 2024).

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¶5 Under the first promissory note (which was titled and will
be referred to here as Note One), the three Buyers each agreed to
pay a principal sum of $128,333 in quarterly payments of $8,420,
and those payments were due on the “18th day of every third
month” beginning two years after closing. Buyers also agreed to
pay interest at a rate of 6% per annum. Payments under the
second promissory note (which was titled and will be referred to
here as Note Two) were to be paid in increments of $1,687. Those
payments were due on “the 18th day of every third month with
the first payment being due June 18, 2016,” again with an interest
rate of 6% per annum, and the total principal amount that was due
per buyer under Note Two was $38,333.

¶6 Each note contained a default interest provision stating
that, after a “failure to make any payment, any unpaid principal
shall accrue interest” at the rate of 21% per annum. Each note also
contained a nonwaiver provision stating that “[n]o failure or
delay by [Sellers] in exercising [Sellers’] rights under this Note
shall be a waiver of such rights.”

¶7 Finally, the Contract included a provision (the Offset
Provision) that allowed Buyers to claim an offset against Sellers.
That provision stated,

Buyer[s] shall have the right, but not the obligation,
to set off and apply against the [notes] the amount
of any claims arising from Sellers’ breach of any
provisions of this [Contract]. Prior to setting off the
amount of any claims made by Buyer[s] against
Sellers, Buyer[s] shall provide Sellers written notice
of [their] intent to set off such amounts. Buyer[s]
must be able to document the breach and provide
proof of the damages and the amount, which
[Sellers] shall have the opportunity to dispute
and/or resolve.

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Buyers’ Initial Late Payments

¶8 As noted, Buyers were required to make their first
payment on Note Two on June 18, 2016. When that deadline
passed without payment, Sellers contacted Buyers and reminded
them that the payment was “due on the 18th of June.” 2 Buyers
responded, “Since we closed on the first, I have it scheduled . . . to
go out on the 30th and be in your accounts on the first and
planned to do that every three months. Let me know if this is OK
with you?” Sellers did not directly respond to this email, and
Buyers made their first payment on July 1, 2016. Buyers
subsequently made numerous other late payments under Note
Two. Out of the twenty-two payments that Buyers ultimately
made pursuant to Note Two over the course of nearly five and a
half years, seventeen were late. In January 2018, Sellers sent an
email to Buyers about a payment they missed on Note Two in
December 2017, stating, “As of today, the payment has not been
received, and I could declare you in default.”

¶9 On March 12, 2018, Sellers emailed Buyers informing them
that, in their view, payments on Note One (which, as indicated,
were subject to an initial two-year deferral) would be “due on the
18th.” Buyers responded, “Thanks for the reminder. Except for
the last payment I was late on, I pay just before the end of the
month. We may have signed some paperwork mid-month, but we
closed on the [C]ontract at the end of March, so if it is OK with
you guys, I’ll keep that end-of-quarter payment schedule.” Buyers

2. As explained above, there were three Buyers and three Sellers,
and each side acted collectively in their transactions and dealings
with the other. Most of the communications we discuss from this
point forward were between individuals—usually (though not
always) Walter Pera and George Goates, who seem to have acted
as the primary spokespersons for the two sides. For narrative ease,
we’ll continue to refer to the communications collectively (i.e., as
occurring between Buyers and Sellers), though we won’t change
the first-person pronouns that were sometimes used within the
individual communications.

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made their first payment on Note One on March 30, 2018. Sellers
replied to the March 12 email three months later, stating, “[T]he
payment date for the notes is on the 18th. If you choose to pay . . .
after that date, then it is considered late.”

Buyers Claim an Offset and Continue Making Late Payments

¶10 On March 27, 2018—which, as noted, was shortly before
they made their first payment on Note One—Buyers sent Sellers
an email claiming that they were “entitled to offset . . . damages”
due to an alleged issue they had discovered with the Company’s
finances. Buyers said that they had recently concluded that Sellers
had not paid $29,516 that they believed was owed in taxes and
workers’ compensation premiums in 2015. (For simplicity, we’ll
typically refer to this as a “tax problem” moving forward.) Buyers
asserted that this had allowed Sellers to artificially inflate the
value of the Company by that same amount during negotiations.
Buyers then asserted that because they had used a multiple of 3.91
times cash flow to value the Company, they had overpaid and the
sales price should have been $115,407 lower. Invoking the Offset
Provision from the contract, Buyers then claimed that this alleged
tax problem constituted a breach of the Contract, and they
accordingly asserted that they were entitled to now reduce their
quarterly payments on Note One to offset these damages. Buyers
included a revised amortization schedule that reflected what they
believed they owed and should now pay, and acting pursuant to
that schedule, Buyers unilaterally reduced their quarterly
payments on Note One from $8,420 to $5,809.17.

¶11 Through counsel, Sellers responded to Buyers’ email on
May 4, 2018. Sellers first denied that they even owed the claimed
taxes and premiums, and they then asserted that, in any event,
Buyers’ claimed damages were “merely hypothetical.” Sellers
stated that while they would “apply [Buyers’ partial] payment,
and any future partial payments,” they did “not thereby waive
the right to full and complete payment, . . . as well as any other
rights or remedies” they might have under the Contract.

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¶12 Beginning March 30, 2018, Buyers paid $5,809.17 in
quarterly payments on Note One, and they paid that amount for
each payment. As they had done with Note Two, Buyers also
made several late payments on Note One. Out of the fifteen
payments that they ultimately made on Note One, eleven were
late.

¶13 In September 2018, after receiving a late payment on Note
One, Sellers emailed Buyers the following:

[P]lease be advised that the monthly amount due on
[Note One] is $8,420.39, and the amount received is
short $2,611.22. I would like to point out the
payment of $5,809.17 was received one day late, on
September 19, 2018. While I will apply the partial
payment to the balance due on [Note One], I do not
thereby waive your obligation to pay the full
amount due by the deadline of [the] 18[th] day of
the quarter due, or waive any fees, penalties, rights,
or claims of any kind related to failure to pay the full
amount due.

¶14 This email marked the beginning of a string of similar
emails Sellers sent to Buyers over the span of three years
reminding Buyers about the payment due dates, inquiring about
Buyers’ late payments, and reiterating that Sellers’ acceptance of
any late or partial payments did not waive Buyers’ obligation to
make timely and full payments or Sellers’ ability to assess “fees,
penalties, rights, or claims of any kind.”

¶15 On October 21, 2020, Sellers sent yet another email to
Buyers accepting their late payment on Note Two and their partial
and late payment on Note One. This time, they closed the email
by stating, “With this notice I am declaring that your loans are and
have been in default with default interest being applied.” A year
later, Sellers emailed Buyers about a late payment and warned
them, “If there isn’t a payment in my account by the close of
business on October 18, 2021[,] I will be forced into going on

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another route. You are in default.” Buyers stopped making
payments on both notes in October 2021.

The Litigation

¶16 Sellers filed suit against Buyers in February 2022, alleging
breach of contract and breach of the implied covenant of good
faith and fair dealing. In their answer, Buyers asserted several
affirmative defenses, including “promissory estoppel and/or
equitable estoppel,” as well as “waiver, release, laches, and
unclean hands.” In addition, again referencing the tax problem,
Buyers claimed that Sellers had “provid[ed] materially
misleading and inaccurate financial statements and tax returns,”
and they accordingly asserted that they were entitled to offset the
amounts owed by the amount of the claimed tax obligations.

¶17 The case went to a two-day bench trial in October 2023. All
three Sellers and one of the Buyers testified at trial.

¶18 During trial, the issue of waiver was repeatedly discussed
in testimony and argument. On redirect examination of Walter
Pera (who, as noted, was one of the Sellers), for example, the
following exchange occurred between Pera and Sellers’ counsel:

Q. [N]ote [O]ne has a waiver of presentment;
correct?

A. That is correct.

Q. And a non-waiver provision; is that correct?

A. That is correct.

Q. Okay. And . . . did you ever tell [Buyers] that you
were waiving either of these provisions?

A. No.

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Q. Did you ever tell [Buyers] that you were waiving
your right to be paid on the 18th of the month?

A. No.

Q. Did you ever tell [them] you were waiving your
right to be paid the full amount without an offset?

A. No.

¶19 On another occasion, Sellers’ counsel cross-examined
George Goates, who was one of the Buyers, about the waiver
issue, during which the following exchange occurred:

Q. [D]id [Sellers] ever state to you that they were
waiving their right to be paid on the 18th?

A. No, they didn’t waive their—they didn’t state
that they waive their right to be paid on the 18th, no.

Q. Did they ever state to you that they were waiving
this nonwaiver provision in the promissory notes?

A. I mean that’s not kind of how people talk in the
course of business, but—

Q. Sure, sure, I understand. So they did not is the
answer?

A. That’s correct.

¶20 During closing arguments, Buyers asserted both waiver
and estoppel. At one point, for example, their counsel stated,

At a minimum, [Sellers] waive[d] their right to
charge default interest from June 2016 through
January of 2018 by failing to charge it. And the
Court[] should estop [Sellers] from charging default

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interest from . . . January 2018 through October 2020,
because they said they could declare [Buyers] in
default but never did.

¶21 In addition to waiver and estoppel, the parties also
litigated the question of whether Buyers were entitled to claim an
offset based on the tax problem. On direct examination, George
Goates (who, again, was one of the Buyers) testified that Buyers
had valued the Company at the multiple of 3.91 times the “cash
flow.” When Buyers’ counsel asked Goates to explain “how [he]
came to have an understanding about the basis for the offset,”
Sellers’ counsel objected. Sellers’ counsel asserted that while
Goates could testify about “his understanding” of the multiple,
any testimony about the ramifications of this on “a tax question”
could only be provided by “an expert witness.” In response,
Buyers’ counsel asserted that they did not need a tax expert “to
opine on the law” relating to tax obligations. Resolving the
objection, the district court stated, “I don’t think I buy into the
notion that every question on law is outside the realm of experts.”
But it then observed that “[t]ax, in particular[,] is often a
subject . . . [that is] typically presented through expert
testimony.” With respect to Goates, however, the court ruled that
he could “talk about what he came to understand.” In subsequent
testimony, Goates testified that he had personally “created” the
3.91 multiple and that Buyers had subsequently used it to
calculate the offset they were allegedly entitled to, but he also
admitted that he didn’t “recall where [he] came up” with the 3.91
number. In the course of their case, Buyers did not subsequently
call an expert to discuss the issue of whether Sellers owed the
alleged taxes and premiums.

¶22 At the close of trial, the district court issued a written ruling
in Sellers’ favor. The court concluded that Buyers had breached
the Contract by making late payments on Note Two, as well as by

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under-paying on Note One. 3 The court further concluded that
Sellers were entitled to damages and that those damages included
interest at the higher default interest rate.

¶23 In its ruling, the court rejected Buyers’ assertion that Sellers
had either waived or should be estopped from seeking damages
based on Buyers’ late or reduced payments. Addressing these
issues, the court’s full ruling was as follows:

This case is governed entirely by the written
documents. The parties did not strictly adhere to
their writings, but in the absence of mistake or
modification, the written documents and their
terms control. The parties are all business people
and they are capable of reading these documents
just as they are capable of providing amortization
schedules and the like. The parties did not
consistently apply the terms of [Note One], but it is
the written terms that control here.

The parties are at arms’ length, are not
fiduciaries to each other, and do not have any
independent duty, aside from contractual duties, to

3. Although the court agreed that payments on Note One were
due on the 18th of each month, it concluded that under various
provisions of the Contract, the two-year deferral for Note One
meant that the first payment was due on June 18, 2018, not March
18, 2018. As a result, although Buyers had repeatedly paid after
the 18th of each month, the court concluded that each of their
payments on Note One was “technically early until payments
stopped” in October 2021. Thus, with respect to Note One, the
court did not conclude that Buyers had breached based on late
payments, but it instead only concluded that Buyers had breached
based on under-payments.

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provide notice to the other parties as to their legal
positions regarding payments under [Note One].

The Court does not believe that there is any
evidence to support that [Sellers] had a scheme to
lure [Buyers] into a default position or to exploit
[Buyers] to obtain more for [the Company] than
they were promised.

¶24 Finally, on the question of whether Buyers were entitled to
an offset based on the tax problem, the court rejected Buyers’
claim on two grounds. First, the court ruled that the question of
whether Sellers actually owed the taxes or premiums was “a
matter for expert testimony,” and it then ruled that because
Buyers had not called an expert, they had not carried their burden
on this issue. Second, the court ruled that, even setting the expert
witness problem aside, Buyers had failed to show that they had
been damaged by Sellers’ alleged failure to pay the taxes or
premiums. The court observed that although “multiples” can be
used to value a company, they “are not set in stone,” and it further
observed that the 3.91 multiple that was asserted here did “not
necessarily control the value of” the Company. To the contrary,
the court viewed this as a “unilateral valuation method” belatedly
asserted by Buyers, or, in other words, as a “back door way of
valuing” the Company. Absent additional proof, it concluded that
Buyers had not carried their burden of proving damages.

ISSUES AND STANDARDS OF REVIEW

¶25 On appeal, Buyers first argue that the district court erred
in concluding that the doctrines of waiver and estoppel did not
apply to this case. “Whether a contractual right has been waived
presents a mixed question of law and fact,” and “whether the trial
court employed the proper standard of waiver presents a legal
question which is reviewed for correctness.” Neeshan v.
Ravonsheed, 2024 UT App 175, ¶ 10, 561 P.3d 708 (quotation
simplified). “The actions or events allegedly supporting waiver

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are factual in nature and should be reviewed as factual
determinations, to which we give a trial court deference.” Id.
(quotation simplified). “The issue of whether equitable estoppel
has been proven is a classic mixed question of fact and law,” and
when reviewing such a claim, “we grant the district court’s
decision a fair degree of deference when we review whether the
requirements of the law of estoppel have been satisfied.” South
Weber City v. Cobblestone Resort LLC, 2022 UT App 63, ¶ 14, 511
P.3d 1207 (quotation simplified). 4

¶26 Buyers next argue that the district court erred in
concluding that they were not entitled to an offset. “Whether a

4. As noted, Buyers asserted both equitable estoppel and
promissory estoppel below. In their appellate briefs, however,
they repeatedly refer to “estoppel” without any qualifier.
Reviewing their briefing, we note that in their procedural history,
Buyers say that they raised the “affirmative defenses of equitable
estoppel and waiver” below, but they make no mention of
promissory estoppel anywhere in their opening or reply briefs.
Moreover, in their arguments, Buyers repeatedly cite and discuss
a treatise that is focused on principles of equitable estoppel, but
they make no similar arguments about promissory estoppel.
Our supreme court has explained that “equitable estoppel
and promissory estoppel” are “distinct legal principles,” with
equitable estoppel acting as “a defense,” and promissory estoppel
acting as a “cause of action in most instances.” Youngblood v. Auto-
Owners Ins. Co., 2007 UT 28, ¶ 12, 158 P.3d 1088. In this sense,
“promissory estoppel is a sword, and equitable estoppel is a
shield.” Id. ¶ 19 (quotation simplified).
Buyers were the defendants in the case below—they’re
being sued for breach of contract—and they raised their estoppel
theories as a defense to Sellers’ claims. In light of both the nature
of their appellate briefing and the nature of the two doctrines, we
understand Buyers to now only be attacking the court’s rejection
of their equitable estoppel defense. Moving forward, we’ll thus
only consider whether the district court erred in rejecting Buyers’
equitable estoppel defense.

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party performed under a contract or breached a contract is a
question of fact, and the district court’s fact findings enjoy a high
degree of deference and will be overturned only when clearly
erroneous.” Globe Contracting LLC v. Hour, 2025 UT App 98, ¶ 32,
575 P.3d 235 (quotation simplified).

ANALYSIS

I. Waiver and Equitable Estoppel

¶27 Much of the litigation below was focused on whether the
doctrines of waiver or equitable estoppel applied in this case. At
the close of the bench trial, the district court rejected Buyers’
waiver and equitable estoppel claims, concluding that “[t]his case
is governed entirely by the written documents” and that “the
written terms” of those documents therefore “control.” As we
understand it, the court’s view was that because the parties had
agreed to a written contract, and because there had been no
express modification of that contract, these doctrines could not
provide Buyers with the requested relief. We disagree with the
court’s view of how these doctrines operate in contexts such as
this one.

¶28 The district court was entirely correct to note that Buyers
were invoking the doctrines of waiver and equitable estoppel
against the backdrop of a valid contract. But unlike the district
court, we don’t believe that the existence of that contract settles
the question of whether these doctrines could apply. To the
contrary, when these doctrines are invoked in a situation like this
one, they each presuppose that there is an outstanding contractual
obligation, but the question then becomes whether something else
has happened that should now prevent one party from enforcing
its rights under that contract.

¶29 With regard to waiver, for example, we recently explained
that “waiver is an intentional relinquishment of a known right,”
and we further explained that “to constitute waiver, there must

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be an existing right, benefit or advantage, a knowledge of its
existence, and an intention to relinquish it.” Neeshan v. Ravonsheed,
2024 UT App 175, ¶ 12, 561 P.3d 708 (emphases added, quotation
otherwise simplified). In this sense, the waiver doctrine
presupposes that there was indeed “a right”—which could, of
course, be created by contract—and the question then becomes
whether one party has somehow relinquished its right to enforce
that right. See, e.g., id.; see also Mounteer Enters., Inc. v. Homeowners
Ass’n for the Colony at White Pine Canyon, 2018 UT 23, ¶ 17, 422 P.3d
809 (“A party may establish waiver only where there is an
intentional relinquishment of a known right.” (quotation
simplified)). As a result, and contrary to the conclusion of the
district court, we conclude that the existence of a written contract
in this case did not foreclose the potential applicability of the
waiver doctrine.

¶30 So too with respect to equitable estoppel. Our supreme
court has recognized that “equitable estoppel can be a defense to
a contract claim,” though it requires proof of several “elements
unrelated to the elements of contract.” Howick v. Salt Lake City
Corp., 2018 UT 20, ¶ 14, 424 P.3d 841. “Equitable estoppel reflects
circumstances where it is not fair for a party to represent facts to
be one way to get the other to agree, and then change positions
later to the other’s detriment.” Youngblood v. Auto-Owners Ins. Co.,
2007 UT 28, ¶ 15, 158 P.3d 1088 (emphases added). In Iota, LLC v.
Davco Management Co., for example, we considered an appeal in
which the defendant in a breach of contract case had asserted, as
a defense, that the plaintiff’s conduct satisfied the elements of
equitable estoppel. See 2012 UT App 218, ¶¶ 2–9, 26–30, 284 P.3d
681. Thus, contrary to the view of the district court, the existence
of a contract alone did not prevent Buyers from asserting
equitable estoppel as a defense to Sellers’ breach of contract
claims.

¶31 This leaves the question of what to do next. Because the
district court concluded that these doctrines were unavailable to
Buyers as a matter of law, the court did not then resolve any
factual questions relating to these doctrines. But controlling

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caselaw has made it clear that both doctrines turn, in no small
measure, on factual determinations.

¶32 With respect to waiver, for example, we recently held that
for both express and implied waiver, “the intent to relinquish a
right must be distinct.” Neeshan, 2024 UT App 175, ¶ 13 (quotation
simplified). This requirement of distinctness “ensures that waiver
will not be found from any particular set of facts unless it was
clearly intended.” Id. (quotation simplified). Of some note, we
held that “the intent question is intensely fact dependent, turning
on whether the totality of the circumstances warrants the
inference of relinquishment.” Id. (quotation simplified). What’s
more, in the face of an antiwaiver clause (such as was present in
this case), the party asserting waiver “must establish a clear intent
to waive both the antiwaiver clause and the underlying contract
provision.” Mounteer, 2018 UT 23, ¶ 21 (quotation simplified); see
also AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 28, 496
P.3d 76. In considering that question, a court may find that
“affirmative conduct” from a party was “sufficient to establish a
party’s intent to waive an antiwaiver provision and, by extension,
a written waiver requirement.” AL-IN Partners, 2021 UT 42, ¶ 30.

¶33 With respect to equitable estoppel, the question of whether
it “has been proven is a classic mixed question of fact and law.”
South Weber City v. Cobblestone Resort LLC, 2022 UT App 63, ¶ 14,
511 P.3d 1207 (quotation simplified). We’ve recognized that
equitable estoppel “is highly fact-sensitive.” Atlas Van Lines, Inc.
v. Dinosaur Museum, 2016 UT App 30, ¶ 10, 368 P.3d 121 (quotation
simplified). And we’ve further recognized that “the fact-intensive
nature” of this doctrine is the very reason that appellate courts
grant the district court “broader discretion in applying the law to
the facts” when ruling on equitable estoppel claims. Volonte v.
Domo, Inc., 2023 UT App 25, ¶ 28, 528 P.3d 327 (quotation
simplified).

¶34 For example, one of the elements of equitable estoppel is
reasonable reliance. See, e.g., Fitzgerald v. Spearhead Invs., LLC, 2021
UT 34, ¶ 18, 493 P.3d 644. And “reasonable reliance is generally a

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factual matter within the province of the finder of fact.” Co-
Diagnostics Inc. v. HuKui Tech. Inc., 2025 UT App 74, ¶ 27, 571 P.3d
1178 (quotation simplified); see also Timothy v. Keetch, 2011 UT App
104, ¶ 10, 251 P.3d 848 (noting that “reasonable reliance is
generally a factual matter, within the province of the finder of
fact,” though also noting that “in some cases it can be decided as
a matter of law”). Moreover, equitable estoppel also requires a
showing of prejudice or harm. See, e.g., UMIA Ins., v. Saltz, 2022
UT 21, ¶ 37, 515 P.3d 406; Mounteer, 2018 UT 23, ¶ 33. This, too,
would naturally contemplate some fact finding by a district court.

¶35 As discussed, however, we have no findings from the
district court relating to the various factual questions that are
implicated by these two doctrines. And “without adequate
findings of fact, there can be no meaningful appellate review.”
Anderson v. Thompson, 2008 UT App 3, ¶ 42, 176 P.3d 464
(quotation simplified). In this sense, we “are mindful that we are
a court of review, not of first view.” Richmond v. Bateman, 2024 UT
App 103, ¶ 31, 554 P.3d 341 (quotation simplified). Given all this,
because the district court’s rejection of these claims was based on
a legal error, and because the court did not resolve pending
factual questions relating to these two doctrines and then consider
the legal standards in light of those findings, we have no basis for
ruling on these doctrines either way. We accordingly remand with
instructions for the district court to determine in the first instance
whether waiver and equitable estoppel apply. Because the matter
already went to trial, the court should rely upon the evidence that
was previously submitted in making its factual findings and legal
conclusions on these two doctrines, and neither party should be
permitted to submit any additional evidence.

II. Offset

¶36 As noted, Buyers claimed that Sellers “provid[ed]
materially misleading and inaccurate financial statements and tax
returns” relating to alleged tax and workers’ compensation
obligations. They then claimed that this triggered a provision in
the Contract that allowed them to claim an offset if Sellers had

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Pera v. Glide Transportation

“breach[ed]” “any provisions” of the Contract. They accordingly
claimed that they were entitled to an offset that would reduce
their obligations. The district court rejected this claim on two
grounds: first, it concluded that expert testimony was required on
this issue, and second, it concluded that Buyers had not proven
damages. Because we agree with the district court on the second
ground, we need not consider the first.

¶37 “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.”
Richards v. Cook, 2013 UT App 250, ¶ 7, 314 P.3d 1040 (quotation
simplified). A party that is asserting breach “is required to prove
both the fact of damages and the amount of damages.” Stevens-
Henager College v. Eagle Gate College, 2011 UT App 37, ¶ 16, 248
P.3d 1025. “To prove the amount of damages, the plaintiff must
produce evidence that rises above speculation and provides a
reasonable, even though not necessarily precise, estimate of
damages.” Sunridge Dev. Corp. v. RB & G Eng’g, Inc., 2013 UT App
146, ¶ 13, 305 P.3d 171 (quotation simplified). A party therefore
“has the burden to produce a sufficient evidentiary basis to
establish the fact of damages and to permit the trier of fact to
determine with reasonable certainty the amount of those
damages.” Stevens-Henager, 2011 UT App 37, ¶ 16 (quotation
simplified). Indeed, this well-established legal burden was
reflected in the Offset Provision of the Contract itself, which
specifically required Buyers to provide “proof of the damages and
the amount” in order to claim an offset.

¶38 Under the circumstances of this case, Buyers could in
theory have claimed that the IRS had alerted them to the tax
problem and demanded payment—and, thus, that they were
damaged because of an unexpected tax bill. But Buyers never
asserted that the IRS had ever tried collecting on these amounts.
Instead, what Buyers asserted was that the sales price for the
Company was based on a 3.91 multiple applied to the Company’s
cash flow. In Buyers’ view, because Sellers had failed to pay the
required taxes and premiums, Sellers had essentially

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Pera v. Glide Transportation

overreported their cash flow during negotiations—and, thus, that
Sellers had obtained a higher sales price than was warranted.

¶39 But in addressing and rejecting this claim, the district court
found that Buyers had not carried their burden of proving that
they were damaged in this regard. The court found that multiples
are highly variable and “are not set in stone,” and the court further
found that there was “no testimony” establishing that the 3.91
multiple pointed to by Buyers “necessarily control[led]” the
valuation of the Company. The court then concluded that Buyers’
claim that the sales price was mathematically tied to a multiple of
3.91 times cash flow was an attempt to “re-do the parties’ deal,”
but that on the evidence presented, the court “just [couldn’t] find
a value that would justify” that damages claim.

¶40 Reviewing the record, we see ample evidence that backed
up the court’s ruling. At trial, Walter Pera, one of the Sellers,
testified that the purchase price of $2.5 million was determined by
Sellers’ hired broker based on “a lot of due diligence,” and Pera
further testified that it was not “tied to any multiple of earnings.”
Additionally, George Goates, one of the Buyers, testified that he
“created” the 3.91 multiple but that he didn’t “recall where [he]
came up” with that number. Of particular note, Goates admitted
that Sellers “never agreed to value the business based on that
multiple.” Finally, Pera testified that Sellers simply weren’t
“willing to sell for less than the $2.5 million,” thus suggesting that
from their end, the sales price was not tied to any particular
valuation based on the 3.91 multiplier times cash flow.

¶41 Given this, we see no basis for overturning the district
court’s determination that Buyers had failed to prove they were
actually damaged by the alleged tax problem. As a result, we
affirm the court’s rejection of Buyers’ claim that they were entitled
to an offset.

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Pera v. Glide Transportation

CONCLUSION

¶42 We reverse the district court’s conclusion that Buyers were
not entitled to assert waiver or equitable estoppel, and we remand
with directions for the court to resolve those issues in the first
instance based on the evidence presented at trial. We affirm the
court’s decision that Buyers were not entitled to an offset.

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