Pomodoro v. Hillside

Pomodoro Partnership fka
Pomodoro Limited Partners
dba Pomodoro Restaurant,
Plaintiff and Appellant,

v.

Hillside Plaza, LTD, dba Hillside Plaza Properties;
and John Does I through XX,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981277-CA

F I L E D
June 17, 1999
  1999 UT App 196 -----

Third District, Salt Lake Department
The Honorable Stephen L. Henriod

Attorneys:
Peter N. Ennenga, Robert M. Taylor, and Thomas E. Lowe, Salt Lake for Appellant
Matthew G. Bagley and Scott O. Mercer, Salt Lake City, for Appellees

-----

Before Judges Bench, Billings, and Jackson.

JACKSON, Judge:

Summary judgment is proper solely when no genuine issue of material fact exists and the movant deserves judgment as a matter of law. See Gildea v. Guardian Title Co., 970 P.2d 1265, 1269 (Utah 1998). We review the trial court's grant of summary judgment for correctness, without deference to its legal conclusions. See id.

"An optionee is to be held to strict, exact compliance with the provisions and restrictions of an option." Geisdorf v. Doughty, 972 P.2d 67, 70 (Utah 1998). However, in certain circumstances, "deviation from strict compliance may be equitably excused." Id. at 71.

It is undisputed that Pomodoro did not strictly comply with contractual terms in trying to exercise its option. Even so, Pomodoro argues its noncompliance should be equitably excused. We have reviewed the record, including the contracts, letters, and affidavits, and conclude they do not raise an issue of material fact regarding Pomodoro's equitable excuses. In particular, Brian Morton's affidavit supporting Pomodoro's response to Hillside's summary judgment motion does not affirmatively aver concrete statements or actions of either party that support the existence of equitable excuses. The affidavit is rife with vague language about Morton's/Pomodoro's beliefs regarding Hillside's impressions and what Morton/Pomodoro was "led to believe" by Hillside. It does not specify any actual statements or actions by Hillside's agents that supported Morton's/Pomodoro's beliefs. Pomodoro thus did not meet its burden on summary judgment.

Moreover, the facts and arguments in this case are comparable to those found in two Utah Supreme Court cases: Geisdorf, 972 P.2d at 68; I.X.L. Furniture & Carpet Installment House v. Berets, 32 Utah 454, 91 P. 279 (Utah 1907). In both those cases, the supreme court demanded strict compliance with the terms of lease options and rejected equitable arguments such as those made by Pomodoro here. See Geisdorf, 972 P.2d at 71-74; I.X.L., 91 P. at 283.

Accordingly, we conclude the trial court correctly granted summary judgment to Hillside. Affirmed.
 
 
 

______________________________
Norman H. Jackson, Judge

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WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Judith M. Billings, Judge