Syme v. Symphony Grp. LLC

2018 UT App 212

THE UTAH COURT OF APPEALS

AL SYME AND MARTHA SYME,
Appellants,
v.
SYMPHONY GROUP LLC,
Appellee.

Opinion
No. 20170531-CA
Filed November 8, 2018

Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 160901978

Richard H. Reeve, Attorney for Appellants
Robert E. Mansfield and Megan E. Garrett, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

POHLMAN, Judge:

¶1 Al and Martha Syme met with Symphony Group LLC
to discuss the construction of a custom home. The parties signed
a contract, but the Symes cancelled it before construction
began. Symphony, however, retained the Symes’ earnest
money and construction deposits. The Symes sued to
recover both deposits, and Symphony moved for summary
judgment, which the district court granted. The Symes appeal.
We affirm in part, reverse in part, and remand for further
proceedings.
Syme v. Symphony Group

BACKGROUND 1

¶2 In the spring of 2015, the Symes met with representatives
of Symphony about the construction of a new, custom home in
Layton, Utah. The parties signed a written contract (the
Agreement) on June 1, which set forth the basic details of the
house Symphony was to construct, including its location, price,
and floor plan. Some of the details, such as the color and type of
brick, countertops, and floor coverings, were left to be selected in
future meetings. The Agreement also set forth the obligations of
each party and provided for specific remedies in the event of a
breach.

¶3 As part of the house’s purchase price, the Symes agreed to
pay Symphony an earnest money deposit of $2,000 (the Earnest
Money) and a construction deposit of $43,000 or $48,000 (the
Construction Deposit). 2 The Symes delivered the Earnest Money
to Symphony when they signed the Agreement. They delivered
a $48,000 Construction Deposit to Symphony at a subsequent
“Structural Review Meeting.” 3

1. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (quotation simplified).

2. The Agreement states that the Construction Deposit was to be
$43,000, but in the summary judgment briefing and on appeal
both parties refer to a $48,000 Construction Deposit.

3. We note an ambiguity in the Agreement regarding the timing
of the Construction Deposit. In one provision, the Agreement
required the deposit to be paid at the “Structural Review
Meeting.” In another provision, the Agreement required the
deposit to be paid at the “Color Selection Meeting.” The Symes
(continued…)

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¶4 Regarding the house’s financing, the Agreement required
the Symes “to receive written evidence of loan pre-approval
within ten (10) days from” Symphony’s acceptance of the
Agreement, “or such longer period as [Symphony], in its sole
discretion may allow.” The same provision stated that if the
Symes failed “timely to provide such loan approval to
[Symphony],” then Symphony could elect to terminate the
Agreement. If Symphony elected to terminate the Agreement
under this provision, the Agreement required Symphony to
return the Earnest Money to the Symes unless they were in
default. 4

¶5 Another provision in the Agreement required the Symes
to deliver to Symphony a loan pre-approval letter “prior to or
at” the “Color Selection Meeting”—a meeting the Symes were
required to attend at Symphony’s “reasonable request.” If the
Symes failed to deliver the loan pre-approval letter as required
by this provision, Symphony could, “in its sole and reasonable
discretion,” deem the Symes “in default” and enforce its
remedies “as allowed by [the] Agreement and Utah law,
including but not limited to, [Symphony’s] retention of [the]
Earnest Money and Construction Deposit.”

¶6 The Color Selection Meeting never took place. According
to the Symes, they “waited in vain” for Symphony to “follow

(…continued)
contend that they provided the Construction Deposit at the
Structural Review Meeting only because Symphony told them
“it was conditionally required at that point.” We need not
resolve this ambiguity and express no opinion on the timing of
the payment.

4. The Agreement also required the Symes “to pursue [loan]
application diligently.” If the Symes failed to apply for a loan, a
liquidated damages clause allowed Symphony to terminate the
Agreement and retain the Earnest Money.

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through on [the Color Selection Meeting]” or “request [the
pre-approval letter].”

¶7 Before construction started or any other meetings were
held, the Symes sent a letter to Symphony through their attorney
purporting to cancel the Agreement. The Symes conceded in the
letter that they would have to forfeit their $2,000 Earnest Money
but requested the return of their Construction Deposit. Because
the Symes did not deliver the pre-approval letter and “failed to
finalize other preconstruction selections at the Color Selection
Meeting,” Symphony refused to return the Construction
Deposit.

¶8 The Symes brought suit for the return of the Earnest
Money and Construction Deposit, seeking a declaration that no
contract existed and, alternatively, seeking damages for breach
of contract and breach of the implied covenant of good faith and
fair dealing. Symphony moved for summary judgment on each
claim.

¶9 The district court granted Symphony’s motion. It
concluded that there was an enforceable contract between the
parties and determined that the Symes would be unable to prove
their breach of contract claim because the Symes themselves
breached the Agreement by failing to provide the pre-approval
letter “within 10 days of acceptance of the contract.” The court
reasoned that “[e]ven if the [Color Selection Meeting] never took
place, [the Symes] were still required by the contract to provide
the pre-approval letter.” The court also concluded that the
Symes would be unable to prove their implied covenant of good
faith and fair dealing claim. At the heart of that claim was the
Symes’ contention that the liquidated damages clause
Symphony relied on to retain the Earnest Money and
Construction Deposit was unconscionable. The court concluded
that “expert testimony would be required” to establish
unconscionability and that the Symes would be unable to prove

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their claim because they had conceded they “would be
precluded from offering expert testimony at trial.” 5 Thus, the
court entered final judgment in favor of Symphony. The Symes
timely appeal.

ISSUE AND STANDARD OF REVIEW

¶10 The Symes’ arguments on appeal all flow from the district
court’s summary judgment decision. Summary judgment is
appropriate “if the moving party shows that there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law.” Utah R. Civ. P. 56(a). “An
appellate court reviews a district court’s legal conclusions and
ultimate grant or denial of summary judgment for correctness
and views the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”
ZB, NA v. Crapo, 2017 UT 12, ¶ 11, 394 P.3d 338 (quotation
simplified).

ANALYSIS

I. The Enforceability of the Agreement

¶11 The Symes first contend that the district court erred in
granting summary judgment to Symphony on their claim
for declaratory relief because there were disputed facts material
to the question of whether a contract was formed. In support,
they make three related arguments: first, that the Agreement is

5. In its summary judgment motion, Symphony sought to
exclude the Symes from offering expert testimony because the
time to disclose experts had passed under rule 26(a)(4) of the
Utah Rules of Civil Procedure. In response, the Symes admitted
that the deadlines to designate experts had expired and asserted
that expert testimony was unnecessary.

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too indefinite to be enforced; second, that the parties never
intended the Agreement to be the final agreement; and finally,
that the Agreement is ambiguous. We address each argument in
turn.

A. Contract Formation

¶12 The Symes assert that the Agreement is too indefinite to
be an enforceable contract because it is “silent as to much of the
work that [was] to be performed by Symphony.” Without
specifying “exterior materials,” “interior finishes,” and the
“types of countertops, cabinets, shingles, lighting fixtures, or
appliances” that were to be used in the construction of their
house, the Symes assert that the Agreement “cannot be
performed.”

¶13 “Whether a contract exists between parties is ordinarily a
question of law . . . .” Cea v. Hoffman, 2012 UT App 101, ¶ 9, 276
P.3d 1178. “A binding contract exists where it can be shown that
the parties had a meeting of the minds as to the integral features
of the agreement and that the terms are sufficiently definite as to
be capable of being enforced.” ACC Capital Corp. v. Ace West
Foam Inc., 2018 UT App 36, ¶ 12, 420 P.3d 44 (quotation
simplified). “A contract may be enforced even though some
contract terms may be missing or left to be agreed upon, but if
the essential terms are so uncertain that there is no basis for
deciding whether the agreement has been kept or broken, there
is no contract.” Nielsen v. Gold’s Gym, 2003 UT 37, ¶ 12, 78 P.3d
600 (quotation simplified).

¶14 Here, the Agreement is capable of being enforced because
it includes all the essential terms of a valid contract. The
Agreement was signed by both the Symes and Symphony, it
listed the specific price of the property and the address, and it
set forth additional terms regarding the work and the parties’
relationship and respective obligations. While some contract
terms, such as the color of the countertops and other materials
selections, were “left to be agreed upon,” see id. (quotation

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simplified), this fact does not demonstrate that there was no
meeting of the minds on the contract’s essential terms. Rather,
the parties expressly contemplated that additional selections
would be made, and they agreed on the process for making
those selections. 6 Thus, the Agreement includes sufficient detail
as to be “capable of being enforced,” and the district court did
not err in concluding there was a valid contract. See ACC Capital,
2018 UT App 36, ¶ 12 (quotation simplified).

B. The Parties’ Intentions

¶15 The Symes relatedly argue that the Agreement “was not
intended, by itself, to be a final contract between the parties” and
that the district court failed to recognize the existence of a factual
dispute about the parties’ intentions. In support, they again
highlight that the Agreement contemplated future meetings and
they refer to unsigned documents, such as additional exhibits
and design addenda that, once completed, would “finalize the
contract between the Symes and Symphony.” Anticipating these
future meetings and documents, the Symes assert that they “did
not intend for the [Agreement] to serve as the contract with
Symphony and considered themselves as being still engaged in
the contract formation process.” We are not persuaded.

¶16 The Symes’ arguments regarding the parties’ intentions
largely rehash their argument that the contract was too
indefinite to be enforced and needed more details. See supra Part
I.A. As explained, the parties agreed to the “essential terms” of
the Agreement, and the anticipation of future meetings to select

6. The Agreement provided default terms for the construction,
and the Symes were able to select options and upgrades from
among Symphony’s offerings, subject to Symphony’s approval.
The Symes therefore could select from a finite universe of
options, but the house would be constructed based on the
default terms absent further selections with Symphony’s
approval.

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finishes does not demonstrate that the parties did not intend the
Agreement to be enforceable. The Agreement set forth the
parties’ obligations and their remedies in the event of a breach.
That the parties anticipated future activities as set forth in the
Agreement does not demonstrate an intent that the obligations
they undertook were unenforceable. 7 See Barker v. Francis, 741
P.2d 548, 551 (Utah Ct. App. 1987) (“It is not necessary . . . that
the contract itself contain all the particulars of the agreement.
The crucial factor is that the parties agreed on the essential
elements of the contract.”); see also Leopold v. Kimball Hill Homes
Fla., Inc., 842 So. 2d 133, 136–38 (Fla. Dist. Ct. App. 2003)
(determining that a contract for a custom house was enforceable
because, while “the buyer [and seller] had the right to make
modifications to the plans as construction proceeded,” the
parties “did in fact have a meeting of the minds as to the
essential terms of the contract”); Augusta Homes, Inc. v. Feuerstein,
No. COA08-1456, 2009 WL 2501399, at *4–6 (N.C. Ct. App. Aug.
18, 2009) (similar). See generally Restatement (Second) of
Contracts § 34 cmt. a (Am. Law Inst. 1981) (“If the agreement is
otherwise sufficiently definite to be a contract, it is not made
invalid by the fact that it leaves particulars of performance to be
specified by one of the parties.”).

C. Ambiguity

¶17 The Symes contend that the district court erred in
granting summary judgment on the Symes’ contract formation
claim because, they argue, the Agreement is “facially

7. The Symes also argue that the district court failed to properly
account for the alleged dispute created by Al Syme’s declaration
that the Symes and Symphony “never fully finalized all
components of the [Agreement].” But Al Syme’s assertion
simply mirrors the arguments made and addressed above,
namely, that because certain materials selections remained to be
made under the Agreement, the Agreement was incomplete and
unenforceable.

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ambiguous” and thus “ambiguous as to the intent of the
parties.” 8 The Symes’ argument fails for two reasons.

¶18 First, we disagree that the Agreement is ambiguous in the
way the Symes assert. The Symes’ ambiguity argument is
premised on their contention that the Agreement “contains a
facial ambiguity as to the [construction] completion deadline.” In
one provision, Symphony is allowed “180 days from the
commencement of [excavation] on the home” to substantially
complete construction. In another provision, the Agreement
provides that Symphony “shall make a reasonable effort to have
the House substantially complete . . . within eight (8) months
after” issuance of a building permit. The Symes assert these
provisions create a facial ambiguity as to the completion date for
construction and argue that “[t]o resolve the issue of ambiguity
of intent, the district court would need to hear and receive
factual evidence, which it was precluded from doing in the
context of a motion for summary judgment.”

¶19 These two provisions do not create ambiguity. “A
contractual term or provision is ambiguous if it is capable of
more than one reasonable interpretation because of uncertain
meanings of terms, missing terms, or other facial deficiencies.”
Daines v. Vincent, 2008 UT 51, ¶ 25, 190 P.3d 1269 (quotation

8. Symphony contends that the issue of ambiguity is
unpreserved. They assert that “[t]he Symes never briefed
ambiguity in their opposition to Symphony’s [motion for
summary judgment]” and therefore failed to preserve the issue.
While the Symes’ memorandum in opposition to summary
judgment was short and did not discuss ambiguity, the Symes’
attorney at the hearing did reference the “facial inconsistency
within the document itself” and discussed the provisions
regarding the two construction deadlines. Therefore, we
conclude the issue is preserved and reach the Symes’ argument
on the merits. See generally True v. Utah Dep’t of Transp., 2018 UT
App 86, ¶¶ 23–30, 427 P.3d 338.

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simplified). “Harmonizing conflicting or apparently ambiguous
contract language before concluding that provisions are actually
ambiguous is an important step in the hierarchy of rules for
contract interpretation.” Gillmor v. Macey, 2005 UT App 351, ¶ 19,
121 P.3d 57. “To harmonize the provisions of a contract, we
examine the entire contract and all of its parts in relation to each
other and give a reasonable construction of the contract as a
whole to determine the parties’ intent.” Id. (quotation
simplified). And harmonizing the two provisions here is simple:
Symphony was given 8 months from the issuance of a building
permit and 180 days (or 6 months) from excavation to
“substantially complete” the house. The Symes do not explain
how these provisions are inconsistent or otherwise ambiguous. It
seems to us entirely possible that both deadlines could be
honored by securing a building permit and then, within two
months, beginning excavation.

¶20 Second, even if we were to discern some facial ambiguity
in these two provisions, the Symes do not explain how that
ambiguity would undermine the finality of the Agreement in its
entirety. Instead, the Symes merely assume that an ambiguity in
the terms of the Agreement relating to a construction deadline
demonstrates an ambiguity as to the parties’ overall intent
regarding the finality and enforceability of the Agreement. We
fail to see the connection. If there were an ambiguity as to the
construction deadline, a court would take extrinsic evidence as to
the deadline—that is, did the parties mean eight months or six
months. See, e.g., Holladay Bank & Trust v. Gunnison Valley Bank,
2014 UT App 17, ¶¶ 22–23, 319 P.3d 747 (concluding that a
contract was ambiguous “regarding the allocation of collateral
proceeds” and remanding to the district court to consider
extrinsic evidence “as to the parties’ intent with regard to the
distribution of the proceeds” (emphasis added)). It would not
become a basis to deem the entire Agreement unenforceable.
Thus, we conclude that the two provisions are not necessarily
ambiguous, and even if they were, the ambiguity would not
undermine the Agreement’s overall enforceability.

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¶21 In sum, we conclude that the Agreement is sufficiently
clear and capable of being enforced. Accordingly, the district
court did not err in granting summary judgment on the Symes’
declaratory judgment claim.

II. The Alleged Breach of Contract

¶22 The Symes next contend that summary judgment on their
breach of contract claim was inappropriate because, assuming
there was an enforceable contract, a factual dispute existed about
whether the Symes breached the Agreement by failing to
provide Symphony with the loan pre-approval letter. The Symes
argue that the district court disregarded the fact that the Symes
“waited in vain” for Symphony and that Symphony “never
followed through with or completed the Color Selection
Meeting.” (Quotation simplified.) Not only did the district court
disregard these facts, according to the Symes, but the court “also
failed to draw inferences from them” in the Symes’ favor. The
Symes assert that the district court “could have reasonably
inferred that the Symes were not in breach because the [Color
Selection Meeting] never occurred and, thus, the time for
submittal of the pre-approval letter never arrived.” Under this
view of the facts, the Symes argue that they were not in
breach and could have proven that Symphony breached the
Agreement.

¶23 To prove a breach of contract claim, a party must
demonstrate its own performance of the contract. Bair v. Axiom
Design, LLC, 2001 UT 20, ¶ 14, 20 P.3d 388 (“The elements of a
prima facie case for breach of contract are (1) a contract,
(2) performance by the party seeking recovery, (3) breach of the
contract by the other party, and (4) damages.”), abrogated on other
grounds as recognized in A.S. v. R.S., 2017 UT 77, 416 P.3d 465.
“Whether a party performed under a contract or breached a
contract is a question of fact.” iDrive Logistics LLC v. IntegraCore
LLC, 2018 UT App 40, ¶ 43, 424 P.3d 970. And as stated, at the
summary judgment stage we “view[] the facts and all reasonable
inferences drawn therefrom in the light most favorable to the

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nonmoving party.” ZB, NA v. Crapo, 2017 UT 12, ¶ 11, 394 P.3d
338 (quotation simplified).

¶24 It is undisputed that the Symes did not deliver the
pre-approval letter to Symphony. But it is also undisputed that
the Color Selection Meeting had not yet occurred. Viewing the
facts and the reasonable inferences drawn therefrom in the light
most favorable to the Symes, Symphony never followed through
with the Color Selection Meeting and never otherwise requested
the pre-approval letter. And the district court’s conclusion that
“[e]ven if the [Color Selection Meeting] never took place, [the
Symes] were still required by the [Agreement] to provide the
pre-approval letter” is contradicted by the Agreement itself,
which provides that the Symes had until the Color Selection
Meeting—which never occurred—to deliver the pre-approval
letter.

¶25 The district court appears to have conflated the Symes’
obligation to deliver the pre-approval letter to Symphony at
the Color Selection Meeting with their obligation to receive
written evidence of loan pre-approval within ten days of
Symphony’s acceptance of the Agreement. The Symes have
not disputed that they never applied for a loan, but under the
Agreement that failure would amount to a forfeiture of only
the Earnest Money. For Symphony to keep the Construction
Deposit, as relevant here, the Symes would have to fail to deliver
the pre-approval letter by the Color Selection Meeting. And
the Symes could not possibly have failed to deliver the pre-
approval letter by the Color Selection Meeting because that
meeting never occurred, and (according to the Symes) its non-
occurrence was Symphony’s fault. Thus, viewing the facts in
the light most favorable to the Symes, the court erred in
determining that the Symes, having not delivered the pre-
approval letter, could not prove that Symphony breached the
Agreement by retaining the Construction Deposit. Therefore,
summary judgment in favor of Symphony on that basis was
inappropriate.

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¶26 Having rejected the conclusion that the Symes’ failure to
deliver the pre-approval letter barred their breach of contract
action, we turn to Symphony’s request to affirm the district court
on an alternative basis. Symphony argues that the district court
concluded not only that the Symes failed to perform but that
they “have not shown that [Symphony] . . . breached the
[Agreement].” Because the Symes have not addressed “this
second, and conclusive, basis” for the dismissal of their breach of
contract claim, Symphony argues that the district court’s
decision should still be affirmed. But the grounds for this
alternative basis are unclear. The district court did not discuss
the undisputed facts or the relevant legal authority behind its
conclusory statement that the Symes “have not shown that
[Symphony] . . . breached the contract.” Instead, the statement
appears as an aside, meant apparently for emphasis, to its
primary conclusion that the Symes breached the Agreement by
not delivering the pre-approval letter. Having concluded that the
district court’s reasoning was erroneous, and “unable to discern”
any other “legal or . . . factual basis for the district court’s
dismissal on this ground,” we decline to affirm on this
alternative basis and remand for further proceedings. See Vander
Veur v. Groove Entm’t Techs., 2018 UT App 148, ¶ 37 (quotation
simplified), petition for cert. filed, Sept. 10, 2018 (No. 20180730).

III. Good Faith and Fair Dealing

¶27 Finally, the Symes contend that the district court erred in
dismissing their claim for breach of the implied covenant of
good faith and fair dealing. In their complaint, the Symes
asserted that, among other things, the Agreement’s liquidated
damages clause violates the covenant of good faith and fair
dealing because it is unconscionable. In resisting the district
court’s grant of summary judgment on this claim, the Symes
raise two arguments on appeal. First, they argue that “summary
judgment was the inappropriate place for the court to even try to
address . . . unconscionability.” Second, they argue that the
district court incorrectly assumed that expert testimony was
required to establish unconscionability.

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¶28 We conclude the Symes have not carried their burden of
persuasion on appeal on these arguments. “It is well established
that an appellate court will decline to consider an argument that
a party has failed to adequately brief.” CORA USA LLC v. Quick
Change Artist LLC, 2017 UT App 66, ¶ 2, 397 P.3d 759 (quotation
simplified). To satisfy its burden of persuasion, an appellant
must provide “reasoned analysis” on how the district court
erred and “may not simply dump the burden of argument and
research on the appellate court.” Hi-Country Estates Homeowners
Ass’n v. Jesse Rodney Dansie Living Trust, 2015 UT App 218, ¶ 5,
359 P.3d 655 (quotation simplified).

¶29 On their first argument, the Symes provide no authority
for the proposition that the question of unconscionability can
never be decided on summary judgment. Instead, they claim that
the facts presented and “an analysis of the outcome of [the]
Agreement . . . should have been sufficient for the district court
to postpone its analysis of substantive unconscionability to a fact
finding hearing.” While the Symes point generally to documents
in the record, they do no more to develop the argument. Without
pointing to some authority and developing their argument based
on that authority, the Symes cannot meet their burden of
persuasion on appeal.

¶30 Similarly, on their second argument, the Symes assert in a
single conclusory paragraph that the district court “erred in
determining that expert opinion was required.” The district
court grounded its decision to require expert testimony on the
supreme court’s opinion in Commercial Real Estate Investment, LC
v. Comcast of Utah II, Inc., 2012 UT 49, 285 P.3d 1193. There, the
court explained that determining the substantive
unconscionability of a liquidated damages clause requires an
examination of “the mores and business practices of the time
and place” of the contract. Id. ¶ 44 (quotation simplified).
Because the Symes stipulated that “they would be precluded
from offering expert testimony at trial,” the district court
concluded that without an expert to testify about the relevant
“mores and business practices,” the Symes would “have no way

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of proving that the liquidated damages clause is
unconscionable.” Other than arguing that “part of the
unconscionability analysis could proceed without expert
opinion,” the Symes make no reasoned analysis of the district
court’s decision. Therefore, we conclude that the Symes have not
carried their burden of persuasion on appeal, and we will not
reverse the district court on this basis.

CONCLUSION

¶31 We conclude that the Agreement is a valid and
enforceable contract and the district court did not err in granting
summary judgment on the Symes’ claim for declaratory relief.
We also conclude that the Symes have not carried their burden
of persuasion on their argument that the court erred in granting
summary judgment on their implied covenant of good faith and
fair dealing claim. Accordingly, we affirm the district court’s
decisions with regard to the Symes’ claim for declaratory relief
and their alternative claim for breach of the implied covenant of
good faith and fair dealing. But we agree with the Symes that
summary judgment on their breach of contract claim was
inappropriate. We therefore reverse the grant of summary
judgment on that claim and remand for further proceedings
consistent with this opinion.

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