Canyon Country v. Moyle

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Canyon Country Realty,
Coldwell Banker/Arches Realty,
George Copeland, and Sharon Copeland,
Plaintiffs and Appellees,

v.

Nelson Moyle,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 980239-CA

F I L E D
August 31, 2000 2000 UT App 251 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
Leslie W. Slaugh, Provo, for Appellant
J. Stephen Russell, Moab, for Appellees

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Before Judges Jackson, Bench, and Billings.

BENCH, Judge:

Appellant Moyle first challenges the trial court's determination that he accepted the Copelands' offer to purchase the Canyon Country Bed and Breakfast (B&B). He contends that instead of accepting the offer, he actually made a counteroffer, which he later withdrew. We disagree. When Moyle added the language to the purchase and sale agreement excluding the personal sports equipment, he merely clarified what the Copelands had already excluded from their offer. Moyle's acceptance did not vary from the material terms of the Copelands' offer, and thus, a contract was formed. See Nunley v. Westates Casing Services, Inc., 1999 UT 100,¶27, 989 P.2d 1077 (providing acceptance of offer must "'unconditionally assent to all material terms presented in the offer'") (citation omitted). Moreover, Moyle, a licensed real estate agent himself, indicated his intent to accept the offer when he checked the box labeled "acceptance," instead of "counteroffer." The trial court therefore correctly determined that Moyle's additional language was "superfluous and of no impact to the accepted offer since the [Copelands] had not offered to purchase the excepted items," and that the contract was breached when Moyle failed to "close the transaction and transfer the property."

Because we affirm the trial court's summary judgment in favor of the Copelands on the breach of contract claim, we must affirm the judgment in favor of Canyon Country Realty and Coldwell Banker/Arches Realty awarding them real estate commissions, costs, attorney fees, and interest on the judgment. The trial court also properly determined that the interest rate on the judgment would be 7.468% from the time of the judgment until paid. See Utah Code Ann. § 15-1-4(3)(b) (Supp. 2000) (providing "postjudgment interest rate in effect at the time of the judgment shall remain the interest rate for the duration of the judgment").

Moyle next argues that by not presenting evidence of the value of the telephone number used in connection with the B&B, the Copelands failed to prove their damages. We agree. The Copelands concede that the contract to purchase the B&B did not include the telephone number, which had already been published in annual trade publications and was a major means of obtaining customers. However, when attempting to establish damages, the Copelands' valuation witness, Randy Day, testified that the value of the B&B was $250,000, including the telephone number. The Copelands admittedly presented no evidence of the value of the telephone number, which would need to be deducted from the overall value of the B&B to prove a damage amount. See, e.g., Atkin Wright & Miles v. Mountain States Tel., 709 P.2d 330, 336 (Utah 1985) (providing proof of loss of gross income alone, without also providing proof of loss of net income, "is insufficient foundation for proof of amount of damages"); see also id. (stating that when proving damages, there must be evidence "that rises above speculation and provides a reasonable, even though not necessarily precise, estimate of damages"). Accordingly, we reverse the trial court's determination awarding the Copelands $50,000 in benefit-of-the-bargain damages.(1)

Although successful in proving breach, the Copelands' failure to prove damages means there is no prevailing party.

Moyle and the Copelands must therefore bear their own attorney fees.

Affirmed in part and reversed in part.
 
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Judith M. Billings, Judge

1. In view of this disposition, we need not address Moyle's argument that Randy Day should have been precluded from testifying regarding the fair market value of the property.