King v. Seiner Chevrolet Case

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King v. Jerry Seiner Chevrolet, Inc. Filed June 17, 1999 IN THE UTAH COURT OF APPEALS
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John A. King and Tonia King,
Appellants and Cross-appellees,

v.

Jerry Seiner Chevrolet, Inc., a corporation;
and Universal Underwriters Insurance Company, a corporation,
Appellees and Cross-appellants.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981328-CA

F I L E D
June 17, 1999
  1999 UT App 193 -----

Third District, Salt Lake Department
The Honorable Glenn Iwasaki

Attorneys:
Anthony R. Martineau and Ray G. Martineau, Salt Lake City, for Appellants
David S. Cook, Bountiful, Russell Hathaway and John L. McCoy, Salt Lake City, for Appellees

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Before Judges Greenwood, Billings, and Orme.

BILLINGS, Judge:

Appellants, in large part, assail the trial court's findings of fact. However, Appellants have not successfully overcome the trial court's key finding that Appellee, in its dealings with Appellant, had no intent to deceive Appellants. As a result, the trial court correctly concluded that Appellants failed to prove a violation of the Utah Consumer Sales Practices Act (UCSPA), see Utah Code Ann. § 13-11-4(2) (1992). We further cannot say the trial court erred in determining that Appellees' acts were neither unconscionable or a breach of warranty under the Uniform Commercial Code, see Utah Code Ann. § 70A-1-102 et seq., or the UCSPA, based upon the well-supported findings of the trial court. We also affirm the trial court's refusal to award attorney fees to Appellants as they failed to prevail on any of the claims alleged in their complaint.

Lastly, we conclude that the trial court's sua sponte recission of the contract of warranty based on mutual mistake was not error. "A mutual mistake occurs when both parties, at the time of contracting, share a misconception about a basic assumption or vital fact upon which they based their bargain." Robert Langston, Ltd. v. McQuarrie, 741 P.2d 554, 557 (Utah Ct. App. 1987). The trial court found that the parties were both mistaken as to the condition of the vehicle at the time of sale. "Mutual mistake of fact makes a contract voidable, and is a basis for equitable rescission." Id. (citation omitted). In this case, we conclude the trial court acted within its discretion in rescinding the warranty agreement in view of its adequately supported findings concerning mutual mistake.(1) Affirmed.
 
 
 

______________________________
Judith M. Billings, Judge

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WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

______________________________
Gregory K. Orme, Judge

1. We do not consider several of Appellants' claims because they were not presented to the trial court. Instead, these claims were raised for the first time on appeal. Issues raised for the first time on appeal will generally not be considered. See Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996).