Geothermal v. Far West

----ooOoo----

The Geothermal Company,
a Nevada corporation,
Plaintiff and Appellant,

v.

Far West Capital, Inc.,
a Utah corporation;
and Steamboat Development Corporation,
a Nevada corporation,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000348-CA

F I L E D
May 3, 2001 2001 UT App 140 -----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
David C. Wright, Salt Lake City, for Appellant
Mary Anne Q. Wood and Kathryn Balmforth, Salt Lake City, for Appellees

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Before Judges Greenwood, Bench, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

Appellant brings several claims on appeal,(1) all relating to a set of documents drafted during 1994 and 1995, although appellant was not moved to sue to vindicate its "rights" until 1999. Upon review of the original agreement signed by the parties, along with its subsequent written modifications, we conclude that the agreement, even as modified, specifically allowed for unilateral termination by either party. Pending appellant's performance, the documents formed a non-binding "agreement to agree." Appellees duly exercised their right to terminate, and thus the claims premised on a contract theory fail as a matter of law.

Appellant additionally brings quasi-contract claims. To prove a contract implied in law or on a claim of unjust enrichment, appellant must show, among other things, that appellees received a benefit "under circumstances that would make it unjust for the defendant to retain the benefit without paying for it." Bailey-Allen Co. v. Kurzet, 945 P.2d 180, 189 (Utah Ct. App. 1997) (citations omitted). Even if appellant conveyed actual benefits on appellee, which seems doubtful, justice does not require that appellees pay appellant the value of such benefits where (1) the right of each side to unilaterally terminate was clear and (2) the agreement expressly provided that, upon termination, each side would bear its own costs and expenses.

The somewhat limited oral modification theory urged on appeal, and focusing on the alleged offer to substitute $300,000 in cash for other performance by appellant, is raised for the first time on appeal and is not the oral contract theory set forth in the original complaint. "As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346. We therefore decline to consider this issue.(2)

Affirmed.
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 

______________________________
Russell W. Bench, Judge

1. We note that appellant has new counsel on appeal.

2. Appellant raises an argument about the covenant of good faith and fair dealing, but such a claim was not pleaded in the complaint. A fraud claim was pleaded, but its dismissal has not been challenged on appeal.