2020 UT App 43
THE UTAH COURT OF APPEALS
SCOTT ANDERSON TRUCKING INC.,
Appellee,
v.
NIELSON CONSTRUCTION,
Appellant.
Opinion
No. 20180274-CA
Filed March 19, 2020
Seventh District Court, Castle Dale Department
The Honorable Douglas B. Thomas
No. 160700026
Joseph C. Rust, Attorney for Appellant
Stevan R. Baxter, Michael D. Lichfield, and Chase
Ames, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
POHLMAN, Judge:
¶1 Nielson Construction (Buyer) appeals the district court’s
summary judgment in favor of Scott Anderson Trucking Inc.
(Seller) on Seller’s breach of contract claim. After Seller told
Buyer that it would sell a product for $25 per ton and that it had
12,000 to 15,000 tons available, Buyer emailed Seller, saying that
Buyer “will need 12000 tons of [the product] at 20% for the
project [and] will pay [Seller] $25.00 a ton.” Buyer contends that
the district court erred in determining that Buyer and Seller had
an enforceable contract, that Buyer had not repudiated the
contract, and that the contract was not a requirements contract.
We affirm.
Scott Anderson Trucking v. Nielson Construction
BACKGROUND 1
¶2 Buyer is a road builder that was hired to perform paving
work on Gooseberry Road (the Gooseberry Project). For this
project, Buyer required rotomill, which is recycled asphalt that
can be combined with new asphalt for paving.
¶3 Seller is a trucking company that hauls and sometimes
supplies construction materials like rotomill. Around the same
time that Buyer needed rotomill for the Gooseberry Project,
Seller had a pile of rotomill on its property that had been
removed from Buyer’s previous project site.
¶4 In 2013, Buyer’s representative and paving manager,
Bobby Peirce, spoke with Seller’s principal, Scott Anderson,
about acquiring rotomill for the Gooseberry Project (the First
Conversation). During the First Conversation, Peirce asked
Anderson if Seller was interested in selling Buyer the pile of
rotomill. Peirce also asked how much rotomill was available.
Anderson explained that Seller “had somewhere between 12,000
and 15,000 tons remaining in the pile” and that it would sell the
rotomill to Buyer for $25 per ton. In response, Peirce said that he
“would have to review that price . . . with [Buyer’s]
management.”
¶5 In December 2013, Peirce and Anderson spoke again (the
Second Conversation). During the Second Conversation, Peirce
told Anderson that “the price of $25 a ton was acceptable to
[Buyer].” On December 31, 2013, Peirce emailed Anderson (the
Email), stating,
1. “When evaluating the propriety of summary judgment on
cross-motions for summary judgment, we view the facts and any
reasonable inferences to be drawn therefrom in the light most
favorable to the losing party.” Flowell Elec. Ass’n v. Rhodes Pump,
LLC, 2015 UT 87, ¶ 8, 361 P.3d 91.
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Scott
There is 60000 tons of Asphalt on the Gooseberry
Project we will need 12000 tons of Rotomill at 20%
for the project will pay you $25.00 a ton. If there is
more than that we may back haul some to
Huntington thanks Bob.
The Email did not contain any conditions on the purchase
related to the quality of rotomill, and Peirce did not
subsequently communicate to Seller any different terms.
¶6 Buyer knew the location of Seller’s pile of rotomill, knew
that it came from Buyer’s previous project, and had ample
opportunity to inspect it. Yet Buyer did not view the rotomill
until, at the earliest, the spring of 2015—at least sixteen months
after the Email.
¶7 On September 12, 2015, Buyer started laying asphalt on
the Gooseberry Project using rotomill from another source.
Around that time, Peirce called Anderson to state that Buyer was
rejecting Seller’s rotomill because it was “faded or bleached and
it’s got lumps in it.” Peirce had viewed Seller’s stockpile of
rotomill from his car and used that inspection as the basis for
Buyer’s rejection. After Buyer rejected Seller’s rotomill, there was
no market for it in the area.
¶8 Seller then sued Buyer for breach of contract. Both sides
moved for summary judgment. In its motion, Buyer contended
that the alleged contract between Buyer and Seller was indefinite
and “too vague to enforce” and that Buyer was entitled to
judgment as a matter of law. Seller opposed Buyer’s motion,
arguing that the “amount of rotomill and purchase price of the
rotomill are clear, definite, and enforceable contract terms.” In
arguing that summary judgment instead should be granted in its
favor, Seller further asserted that the undisputed facts showed
that Buyer “breached a clear, definite, and enforceable contract
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for the sale of rotomill, damaging [Seller]” in the amount of
$300,000. Buyer opposed Seller’s motion by arguing, in part, that
even if a contract existed, Buyer rightfully terminated the
contract when Peirce rejected the rotomill.
¶9 The district court agreed with Seller. It first determined
“as a matter of law that there was, in fact, a contract between the
parties pursuant to which [Buyer] agreed to purchase 12,000 tons
of rotomill from [Seller] at $25 per ton.” The court next
determined that the contract did not fail for indefiniteness
because the contract “specifically states the quantity requested,
the parties knew, at all relevant times, where the product was
and where it came from, and [Buyer] agreed to pay $25 per ton
for 12,000 tons.” The court further ruled that the contract lacked
conditions about the quality of Seller’s rotomill and that Buyer
had not included “any condition precedent . . . or reserved any
conditions.”
¶10 On the question of whether Buyer rightfully terminated
the contract, the district court concluded that Buyer “took too
long as a matter of law to repudiate the contract.” The court
reasoned that the Uniform Commercial Code, as adopted by
Utah, required Buyer to “inspect the goods sooner than 16–18
months after agreeing to purchase the rotomill.” It explained
that Buyer’s “first indication” to Seller in the spring of 2015 that
Buyer was not “abiding by the terms of the contract” came too
late, especially when Buyer “could have looked at the pile before
and after the contract was formed but failed to do so.” As a
result, the court determined that Buyer “did not reject or
repudiate the contract for rotomill within a reasonable time” and
that any alleged rejection of rotomill by Buyer was “ineffective.”
¶11 The court then ruled that Buyer’s breach of contract was
“evident on September 12, 2015 when it moved forward on the
Gooseberry Project without the rotomill” from Seller. The court
thus granted summary judgment to Seller. And because Buyer
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was contractually obligated to pay a principal amount of
$300,000 under the contract, the court awarded Seller $300,000,
plus interest.
¶12 After the court announced its oral ruling but before it
entered its written ruling, Buyer delivered a letter and a $300,000
check to Seller. Buyer’s December 18, 2017 letter stated,
Enclosed with this letter is a check made payable to
[Seller] in the amount of $300,000, reflecting the
amount of the principal sum found owing by
[Buyer] to [Seller]. We are making this payment
while awaiting a final judgment for the purpose of
abating interest. In making this partial payment,
[Buyer] fully and completely reserves its right of appeal
and specifically relies on Utah Res. Int’l Inc. v. Mark
Techs. Corp., 2014 UT 59, ¶ 33, 342 P.3d 761. As
soon as there is a final judgment, it is the intention
of our client to pay whatever sum is found
remaining owing by the court and to also remove
the 12,000 tons of the [rotomill] in question. Once
again, this will all be done to avoid any further
monetary obligations to [Seller] during the
pendency of the appeal we will file as soon as there
is a final judgment entered by the court.
(Emphasis added.) Seller responded with a letter acknowledging
that it understood that Buyer “desires to both satisfy any
judgment entered against it and maintain its appeal rights.” But
Seller’s letter warned Buyer that it could not do both: “[Buyer]
may either satisfy the judgment in full, as it has represented it
will, and waive its appeal rights pursuant to Utah law, or
appeal.” Seller cashed the check.
¶13 In a subsequent order, the district court ruled that Buyer’s
$300,000 payment “[was] properly applied first to the amount of
prejudgment interest owing as of the date paid with the
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remaining balance then applied to the principal.” In so ruling,
the court acknowledged the December 18, 2017 letter, in which
Buyer “asserted that the payment was not a waiver of [its]
appellate rights.” 2
¶14 The district court then entered its written judgment in
favor of Seller. At that point, Buyer still owed $68,137.05. Buyer
filed a notice of appeal.
¶15 Days later, on April 10, 2018, Buyer tendered $68,137.05 to
Seller. In a letter, Buyer stated, “We tender that amount to avoid
further interest running during the pendency of the appeal
[Buyer] has now filed. In making such a partial payment, [Buyer]
fully and completely reserves its right of appeal . . . .” Seller
responded that “this acceptance of tender does not waive
[Seller’s] right . . . to object to the appeal.” Seller eventually filed
a satisfaction of judgment with the district court. Buyer did not
object to that filing.
ISSUES AND STANDARDS OF REVIEW
¶16 On appeal, Buyer contends that the district court erred in
granting summary judgment in favor of Seller on its breach of
contract claim. Buyer raises several arguments in support. First,
Buyer argues that no binding contract was created. Second,
Buyer argues that to the extent a binding contract existed, it was
mutually rescinded or properly repudiated by Buyer. Third, and
in the alternative, Buyer argues that even if there was a binding
contract, the district court erred in determining that Buyer
agreed to purchase 12,000 tons of rotomill instead of only the
amount actually required for the Gooseberry Project.
2. In a footnote of the written order, the district court observed
that “[t]he issue of whether [Buyer’s] right to appeal has been
preserved is not properly before this court to decide.”
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¶17 Summary judgment is appropriate when there is “no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a).
“We review a district court’s grant of summary judgment for
correctness, giving no deference to its conclusions of law.”
Flowell Elec. Ass’n v. Rhodes Pump, LLC, 2015 UT 87, ¶ 8, 361 P.3d
91. “Whether a contract exists between parties is ordinarily a
question of law, reviewed for correctness.” Cea v. Hoffman, 2012
UT App 101, ¶ 9, 276 P.3d 1178.
ANALYSIS
I. Seller’s Procedural Arguments
¶18 Before considering the merits of Buyer’s challenge to the
district court’s judgment, we must first address Seller’s
contention that procedural hurdles preclude our consideration of
the merits of Buyer’s appeal. First, Seller contends that this
appeal should be dismissed as moot. Second, Seller contends
that because Buyer did not preserve certain issues, this court
should not address them.
A. Mootness
¶19 Seller first contends that because Buyer “fully satisfied”
the district court’s monetary judgment against it, Buyer “waived
its right to appeal and its appeal should be dismissed as moot.”
Buyer responds that “in making and [tendering] payments, there
was always a clear statement that the payments . . . [were made]
only to avoid additional costs, but fully reserving the right of
appeal.” Buyer therefore asserts that this appeal should not be
dismissed because Seller “knew the moment it received the
$300,000 check that [Buyer] planned on appealing and was
making the payment simply to avoid ongoing interest.” We
agree with Buyer.
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¶20 The Utah Supreme Court addressed this issue in Utah
Resources International, Inc. v. Mark Technologies Corp., 2014 UT 59,
342 P.3d 761. There, the court stated the general rule that “if a
judgment is voluntarily paid, which is accepted, and a judgment
satisfied, the controversy has become moot and the right to
appeal is waived.” Id. ¶¶ 29, 31 (cleaned up). In other words,
generally, “voluntary payment of a judgment waives one’s right
to appeal.” Id. ¶ 33.
¶21 Yet the court recognized an exception to the rule. It
clarified that “where a judgment debtor’s intention of preserving
his right to appeal is made to appear clearly on the record, he
does not waive his right to appeal.”3 Id. (cleaned up). Applying
this exception, the court concluded that the appeal in Utah
Resources was not moot given that the appellant “expressly
reserved its right to appeal.” Id. ¶ 2. The appellant conveyed this
intent by, for example, delivering payment with a letter stating
that “it did not intend to waive its current appeal and that it was
paying only to abate interest and reduce the threat of
postjudgment enforcement proceedings.” 4 Id. ¶ 23; see also
3. Seller appears to read this clarification as applying only to
partially satisfied judgments and not to, as here, fully satisfied
judgments. Though the facts of Utah Resources involved a
partially satisfied judgment, we do not read its holding as so
limited. See Utah Res. Int’l, Inc. v. Mark Techs. Corp., 2014 UT 59,
¶¶ 29–33, 342 P.3d 761. After all, the supreme court took the
opportunity to clarify the law on the issue only because the
appellant, who had partially satisfied the judgment, expressed
concern that it may waive its right to appeal by satisfying the
judgment in full. Id. ¶ 28.
4. In Utah Resources, the supreme court observed that “a
judgment creditor who accepts the benefits of a judgment shifts
the burden of risk to the judgment debtor, because the risk of
(continued…)
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Gardiner v. Anderson, 2018 UT App 167, ¶ 15 n.10, 436 P.3d 237
(“[A]lthough Tenant paid the fees, he did so under protest and is
therefore not precluded from appealing the district court’s order
with respect to the propriety of those fees.”); Checketts v.
Providence City, 2018 UT App 48, ¶ 24 n.6, 420 P.3d 71 (noting
that the appellants “paid the award ‘under protest’” and
explaining that “because [they] made their objection clear on the
record, they did not waive their right to appeal the district
court’s award of attorney fees and costs by paying it in advance
of [the appellate court’s] decision”).
¶22 We follow the exception in Utah Resources here. Because
Buyer’s “intention of preserving [its] right to appeal [was] made
to appear clearly on the record,” Buyer did not waive its right to
appeal. See Utah Res., 2014 UT 59, ¶ 33 (cleaned up). Similar to
the appellant in Utah Resources, Buyer tendered payment to
Seller with letters stating that the payments were for the purpose
of “abating interest” and that “[i]n making such a partial
payment, [Buyer] fully and completely reserves its right of
appeal.” Both letters became part of the record, and in one of the
district court’s orders, the court acknowledged Buyer’s assertion
that its “payment was not a waiver of [its] appellate rights.”
Buyer’s express statements, made contemporaneously with its
tender, evidenced Buyer’s intent to preserve its right to appeal.
As a result, Buyer did not waive its right to appeal by paying the
(…continued)
recovery now falls on the judgment debtor if the judgment is
overturned on appeal.” Id. ¶ 29 n.30. In arguing that this case is
moot and that Seller would be “severely prejudice[d]” by
allowing Buyer to satisfy the judgment and preserve its right to
appeal, Seller largely downplays this benefit of having accepted
Buyer’s payments, as well as the value to Seller of having the
money available for its own use during the pendency of the
appeal.
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judgment, and this appeal is not moot. See id. ¶ 25 (concluding
that an appellant did not waive its rights to appeal when it
voluntarily made a partial payment of a judgment and it
“expressly reserved its right to appeal throughout the
proceedings”).
B. Preservation
¶23 Next, we consider whether Buyer’s arguments are
preserved for review. “To preserve an issue for appeal the issue
must be presented to the trial court in such a way that the trial
court has an opportunity to rule on that issue.” Salt Lake City v.
Josephson, 2019 UT 6, ¶ 12, 435 P.3d 255 (cleaned up). The
preservation analysis does not “turn on the use of magic words
or phrases,” In re Baby Girl T., 2012 UT 78, ¶ 38, 298 P.3d 1251,
but the party must sufficiently raise the issue “to a level of
consciousness before the trial court,” Josephson, 2019 UT 6, ¶ 12
(cleaned up). “When a party fails to raise and argue an issue in
the trial court, it has failed to preserve the issue, and an appellate
court will not typically reach that issue absent a valid exception
to preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443.
Notwithstanding, a lower court’s decision “to take up a question
. . . conclusively overcomes any objection that the issue was not
preserved for appeal because the issue has consciously been
addressed by the court.” Neese v. Utah Board of Pardons & Parole,
2017 UT 89, ¶ 16, 416 P.3d 663 (cleaned up).
¶24 Seller contends that Buyer did not preserve the following
arguments: (1) that no contract was formed, (2) that any contract
was mutually rescinded by the parties, and (3) that the alleged
agreement was a requirements contract. We conclude that the
second issue was not preserved but that the first and third issues
were.
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1. Contract Formation
¶25 The district court affirmatively took up and decided the
question of contract formation. Although in its written
memoranda Buyer had assumed the existence of a contract for
purposes of summary judgment, the court raised the issue sua
sponte. It began oral argument on the competing summary
judgment motions by asking the parties to focus on whether
there was a contract. After considering both parties’ arguments
on the issue, the court ruled that a contract was established.
Because the court consciously addressed the issue, we conclude
that the issue is preserved. See id.
2. Mutual Rescission
¶26 Buyer did not argue the theory of mutual rescission to the
district court in its summary judgment briefing. And unlike the
issue of contract formation, the district court did not raise the
issue sua sponte at the summary judgment hearing.
Consequently, the issue was not presented to the district court in
such a way that it had the opportunity to rule on it, and we will
not consider it further. See Josephson, 2019 UT 6, ¶ 12; Johnson,
2017 UT 76, ¶ 15.
3. Requirements Contract
¶27 On the issue of whether the alleged contract was a
requirements contract, Buyer’s summary judgment briefing
sufficiently presented the issue to the district court in such a way
that the court had an opportunity to rule on it. Generally, a
“requirements contract” is “a contract in which a buyer promises
to buy and a seller to supply all the goods or services that a
buyer needs during a specified period.” Salt Lake City Corp. v. Big
Ditch Irrigation Co., 2011 UT 33, ¶ 45 n.11, 258 P.3d 539 (cleaned
up).
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¶28 Though Buyer did not use the precise term “requirements
contract,” Buyer did argue on summary judgment that to the
extent a contract existed, “it was clearly tied to the Gooseberry
[P]roject” and that because the government reduced the
“quantities of rotomill allowed” on the Gooseberry Project (to
lower than 12,000 tons of asphalt), “there can be no contract for a
quantity greater tha[n] that actually used on the job.” Buyer also
argued that the Email “expressly mentions the requirements of
the Gooseberry Project” and that “the price and quantity terms
of the Purported Contract were conditioned on the timing and
needs of the Gooseberry Project.” In response, Seller disputed
that the Email “ma[de] any reference to the ‘requirements’” of
the project, and it disputed the suggestion that the sale had
“contingencies related to the Gooseberry Project.”
¶29 These arguments raised before the district court the issue
of how much rotomill Buyer was required to buy under the
contract. Because Buyer argued at summary judgment that the
contract was for only the amount of rotomill used on the
Gooseberry Project, it gave the court the opportunity to rule on
whether the contract was a requirements contract. And the court
necessarily rejected that argument when it ruled that the contract
obligated Buyer to purchase 12,000 tons of rotomill. Under these
circumstances, we conclude that Buyer adequately preserved the
issue of whether the contract was a requirements contract.
¶30 Having resolved Seller’s procedural arguments, we now
turn to the merits of Buyer’s issues properly presented for
review.
II. Buyer’s Arguments on Appeal
¶31 We address three issues raised by Buyer in challenging
the district court’s judgment. First, Buyer contends that an
enforceable contract did not exist. Second, Buyer contends that it
properly repudiated the alleged contract in timely fashion.
Third, Buyer contends in the alternative that even if there was a
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binding contract, the contract was a requirements contract,
limiting its liability to the amount of rotomill actually used on
the Gooseberry Project.
¶32 An appellant’s brief must “explain, with reasoned
analysis supported by citations to legal authority and the record,
why the party should prevail on appeal.” Utah R. App. P.
24(a)(8). To satisfy this requirement, a “party must cite the legal
authority on which its argument is based and then provide
reasoned analysis of how that authority should apply in the
particular case.” Bank of Am. v. Adamson, 2017 UT 2, ¶ 13, 391
P.3d 196. Further, an appellant must address and show error in
the basis for the district court’s decision. Miller v. West Valley
City, 2017 UT App 65, ¶ 20, 397 P.3d 761. “An appellant that fails
to devote adequate attention to an issue is almost certainly going
to fail to meet its burden of persuasion.” Adamson, 2017 UT 2,
¶ 13.
¶33 We first conclude that Buyer has not satisfied its burden
of establishing error in the district court’s decision regarding the
existence of the contract and Buyer’s claimed repudiation. We
then conclude that the district court did not err in determining
that the contract here was not a requirements contract.
A. Existence of a Contract
¶34 Buyer contends that the district court erred in
determining that Buyer and Seller had an enforceable contract as
a matter of law. In particular, Buyer asserts that because “no
specific quantities [of rotomill] were discussed” in the First
Conversation and Second Conversation, Buyer’s Email—that
referenced the specific amount of 12,000 tons—constituted the
first offer or a counteroffer, which Seller never responded to or
accepted. Buyer thus concludes that “no contract came into
existence.”
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¶35 Where, as here, a contract involves the sale of goods, the
Uniform Commercial Code (UCC) provides the governing
standards for contract formation. See generally Utah Code Ann.
§§ 70A-2-101 to -807 (LexisNexis 2009). Indeed, Buyer
acknowledged in its summary judgment briefing that “[t]he
parties in this case seem to agree that the UCC applies.”
¶36 The contract formation provisions of the UCC include
section 2-204, which provides that a “contract for sale of goods
may be made in any manner sufficient to show agreement,
including conduct by both parties which recognizes the existence
of such a contract.” Id. § 70A-2-204(1). Section 2-204 also
provides that “[e]ven though one or more terms are left open a
contract for sale does not fail for indefiniteness if the parties
have intended to make a contract and there is a reasonably
certain basis for giving an appropriate remedy.” Id.
§ 70A-2-204(3). Further, when an underlying agreement is
established under section 2-204, section 2-207 may apply. See
Herm Hughes & Sons, Inc. v. Quintek, 834 P.2d 582, 584 (Utah Ct.
App. 1992). Under section 2-207, “[a] definite and seasonable
expression of acceptance or a written confirmation which is sent
within a reasonable time operates as an acceptance even though
it states terms additional to or different from those offered or
agreed upon, unless acceptance is expressly made conditional on
assent to the additional or different terms.” Utah Code Ann.
§ 70A-2-207(1).
¶37 In challenging the court’s decision, Buyer maintains that
because the Email referenced the specific amount of 12,000 tons,
the Email was either (1) the “first offer” or (2) a counteroffer. But
Buyer has not carried its burden of persuasion on either theory.
¶38 We reach this conclusion on Buyer’s first argument
because its opening and reply briefs do not address the contract
formation provisions of the UCC even though Seller consistently
presented UCC-specific arguments both before the district court
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and this court. Buyer’s second argument that the Email was
merely a counteroffer similarly relies exclusively on common
law rules without consideration of the relevant UCC provisions.
¶39 Simply put, Buyer has not grappled with the UCC’s
governing standards on contract formation and has not provided
reasoned analysis based on relevant legal authority. See
Adamson, 2017 UT 2, ¶ 13. By overlooking the UCC and citing
only caselaw on the formation of contracts generally, Buyer does
not explain how the UCC’s standards apply to the facts of this
case. Buyer thus has not developed an argument sufficient to
carry its burden of persuasion, and we cannot say that the
district court erred in determining that Buyer and Seller had an
enforceable contract as a matter of law.
B. Repudiation
¶40 Buyer next argues that to the extent a binding contract
existed, Buyer properly repudiated it. We again conclude that
Buyer has not met its burden of persuasion.
¶41 In determining that Buyer’s repudiation theory failed as a
matter of law, the district court reasoned that Buyer “had an
obligation under the Uniform Commercial Code as adopted by
Utah to inspect the goods sooner than 16–18 months after
agreeing to purchase the rotomill” and that Buyer “could have
looked at the pile [of rotomill] before and after the contract was
formed but failed to do so.” Given that it took at least sixteen
months after the contract was formed for Buyer to indicate that it
would not abide by the contract, the court determined that Buyer
“took too long as a matter of law to repudiate the contract.”
¶42 Under the UCC, “[r]ejection of goods must be within a
reasonable time after their delivery or tender” and rejection “is
ineffective unless the buyer seasonably notifies the seller.” Utah
Code Ann. § 70A-2-602(1) (LexisNexis 2009) (emphasis added).
And “[w]here a tender has been accepted, . . . the buyer must
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within a reasonable time after he discovers or should have
discovered any breach notify the seller of breach or be barred
from any remedy.” Id. § 70A-2-607(3)(a) (emphasis added).
¶43 On appeal, Buyer does not devote adequate attention to
the issue of the timeliness of its rejection. It instead focuses its
briefing on showing that it had good cause to terminate the
contract. And although it cites legal authority on the question of
good cause, Buyer does not cite any authority on the issue of
whether its rejection was timely. Nor does Buyer show that any
particular authority on timeliness should apply to the facts of
this case. As a result, Buyer has not demonstrated error in the
district court’s reasoning and has not met its burden to show
error in the court’s decision. See Adamson, 2017 UT 2, ¶ 13; Miller,
2017 UT App 65, ¶ 20.
C. Type of Contract
¶44 Buyer alternatively argues that even if there was a
binding contract, the district court erred in determining that the
contract was for 12,000 tons of rotomill. According to Buyer, the
contract was, at most, a “requirements contract.” In so arguing,
Buyer claims that because the Email “used conditional phrasing”
and “identif[ied] the expected quantity of asphalt and the
expected percentage of [rotomill] to asphalt,” the “contract
amount is limited to that which was used on the [Gooseberry]
Project.” Buyer concludes that the court therefore should have
limited Seller’s judgment to that amount, “namely, 6,825 tons.”
We disagree.
¶45 A “requirements contract” is generally defined as “‘[a]
contract in which a buyer promises to buy and a seller to supply
all the goods or services that a buyer needs during a specified
period.’” Salt Lake City Corp. v. Big Ditch Irrigation Co., 2011 UT
33, ¶ 45 n.11, 258 P.3d 539 (quoting Requirements Contract, Black’s
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Law Dictionary (8th ed. 2004)); 5 see also Utah Code Ann.
§ 70A-2-306(1) (LexisNexis 2009) (“A term which measures the
quantity by the output of the seller or the requirements of the
buyer means such actual output or requirements as may occur in
good faith, except that no quantity unreasonably
disproportionate to any stated estimate or in the absence of a
stated estimate to any normal or otherwise comparable prior
output or requirements may be tendered or demanded.”).
¶46 Like the district court, we do not read the Email as Buyer
promising to buy only the rotomill that it actually required for
the Gooseberry Project. The Email to Seller stated,
There is 60000 tons of Asphalt on the Gooseberry
Project we will need 12000 tons of Rotomill at 20% for
the project will pay you $25.00 a ton. If there is
more than that we may back haul some to
Huntington thanks Bob.
(Emphasis added.) Even though Seller understood from the
Email that Buyer would use 12,000 tons of rotomill on the
Gooseberry Project and the Email contained the formula for
Buyer’s calculation, the Email’s plain language did not
communicate that Buyer was agreeing to purchase only that
quantity of rotomill that it would ultimately need for the
Gooseberry Project. Rather, it stated that Buyer “will need 12000
tons of Rotomill,” thereby establishing 12,000 tons as the set
quantity of rotomill. The Email suggested that “if there is more
than [12,000 tons, Buyer] may back haul some” rotomill. But it
did not ask for something less than 12,000 tons in the event that
less rotomill was actually required for the Gooseberry Project.
5. The definition is the same in the 11th edition. Requirements
Contract, Black’s Law Dictionary (11th ed. 2019).
20180274-CA 17 2020 UT App 43
Scott Anderson Trucking v. Nielson Construction
We therefore reject Buyer’s argument that the contract was a
requirements contract.
CONCLUSION
¶47 We first conclude that this appeal is not moot and that
Buyer’s mutual rescission argument is unpreserved. On the
preserved issues, we conclude that Buyer has not established
error in the district court’s determinations that Buyer and Seller
had a binding contract and that Buyer took too long as a matter
of law to repudiate the contract. Finally, we conclude that the
district court did not err in determining that the contract was not
a requirements contract. Accordingly, we affirm.
20180274-CA 18 2020 UT App 43
Scott Anderson Trucking v. Nielson Construction
Combined Opinion