Doyle v. Newby Buick, Oldsmobile, Pontiac, GMC, Suzuki, Inc.

Doyle v. Newby Buick, Oldsmobile, Pontiac, GMC, Suzuki, Inc., Case No. 971718-CA, F iled October 1, 1998. IN THE UTAH COURT OF APPEALS ----ooOoo----   MEMORANDUM DECISION (Not For Official Publication)   Edward D. Doyle, Plaintiff and Appellee, v. Newby Buick, Oldsmobile, Pontiac, GMC, Suzuki, Inc., Defendant and Appellant.   Case No. 971718-CA   F I L E D (October 1, 1998)   -----  

Fifth District, St. George Department

The Honorable G. Rand Beacham

Attorneys: Ronald W. Thompson and Stephen H. Urquhart, St. George, for Appellant

Christopher W. Edwards, Hurricane, for Appellee -----  

Before Judges Davis, Bench, and Billings.

BENCH, Judge:

Appellant argues that the trial court's sua sponte consideration of the validity of the parties' substitute agreement was improper. It is well established that the "'burden is always on the party, who alleges a contract and seeks to enforce it, to prove its existence.'" Kershaw v. Tracy Collins Bank & Trust Co., 561 P.2d 683, 685 (Utah 1977) (citation omitted). Our review of the record shows that the trial court did not raise a new issue regarding the validity of the substitute agreement. The substitute agreement provided, on its face, that the buyer's order was not a binding contract. Based on documents and testimony entered at trial, the court properly concluded that "the clear language of defendant's order form disclaims any binding obligation and no other documentation was presented to prove any binding obligation upon plaintiff." Because the parties canceled their first agreement and did not thereafter enter into any binding obligation, the trial court appropriately entered a judgment restoring the parties to their pre-contract positions. See Robert Langston, Ltd. v. McQuarrie, 741 P.2d 554, 557 (Utah Ct. App. 1987) (holding that "once the trial court rescinded the contract, it was . . . obligated to return the parties to their pre-contract position, if possible").

We therefore affirm the trial court's judgment.
 
 
 
 

Russell W. Bench, Judge -----

WE CONCUR:
 
 
 
 

James Z. Davis,

Presiding Judge
 
 
 
 

Judith M. Billings, Judge