Thatcher v. Lang

2020 UT App 38

THE UTAH COURT OF APPEALS

MELANIE MADSEN THATCHER,
Appellee and Cross-appellant,
v.
MICHAEL LANG,
Appellant and Cross-appellee.

Opinion
No. 20180009-CA
Filed March 12, 2020

Fifth District Court, St. George Department
The Honorable G. Michael Westfall
No. 120500520

Karra J. Porter, Kristen C. Kiburtz, and,
J.D. Lauritzen, Attorneys for Appellee and
Cross-appellant
Bryan J. Pattison and Elijah L. Milne, Attorneys for
Appellant and Cross-appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1 This is a dispute about a $1.8 million real estate purchase
contract (Contract) gone sour. After the purchase fell through,
the trial court ruled that (1) Michael Lang (Buyer) was not
entitled to specific performance, (2) Melanie Madsen Thatcher
(Seller) was entitled to have title quieted in her favor, (3) Seller
was not entitled to liquidated damages, and (4) Buyer could
recover a portion of the principal and interest payments he made
to Seller under a theory of unjust enrichment. We affirm on the
issues of specific performance and liquidated damages, but
reverse and remand on the issues of quiet title and unjust
enrichment.
 Thatcher v. Lang

BACKGROUND 1

¶2 This dispute arises from a real estate transaction
concerning approximately nineteen acres of land located in
Springdale, Utah (Property). In February 2006, Buyer and Seller
entered into an option agreement (Option) granting Buyer the
exclusive right to purchase the Property. In May 2006, Buyer
exercised the Option, and the parties entered into the Contract
wherein Buyer agreed to buy, and Seller agreed to sell, the
Property for $1,800,000 (Purchase Price). The Purchase Price
was originally payable as follows: $50,000 non-refundable
option payment to be applied as principal; $100,000 2 due on
May 1, 2006; $400,000 due on July 5, 2006; $600,000 due on
January 5, 2007; and $650,000 due at closing on or before January
5, 2008.

1. “On appeal from a bench trial, findings of fact shall not be set
aside unless clearly erroneous, and . . . we relate the facts
accordingly, granting due deference to the trial court’s resolution
of factual disputes.” Armed Forces Ins. Exch. v. Harrison, 2003 UT
14, ¶ 2, 70 P.3d 35 (cleaned up).

2. The Option designated the $50,000 and $100,000 payments as
non-refundable. However, in an addendum to the Option, only
the $50,000 payment was designated as non-refundable—not the
$100,000 payment. The Contract similarly designates the $50,000
option payment as non-refundable, but not the $100,000
payment. The Contract further provides, “The terms of the
Option . . . have been merged herein and to the extent any terms
or conditions of the Option . . . conflict or are otherwise
inconsistent with this [Contract], the terms of this [Contract]
shall control.” Thus, because the refundability designation of the
$100,000 is inconsistent between the Option and the Contract,
the Contract governs and the $100,000 payment does not carry
the non-refundable designation.

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 Thatcher v. Lang

¶3 The Contract contained specific provisions governing
default by either party. In the event of Seller’s default, Buyer’s
contractual remedy was provided by section 4.3 of the Contract
(Seller Default Clause):

4.3 Seller Default. Upon thirty (30) days prior
notification in writing by Buyer to Seller of any
material breach of the representations, warranties
and covenants of Seller set forth in this Section 4 or
elsewhere in this Agreement, Seller, at Seller’s own
expense, shall cure or remedy any such breach of
such representations, warranties and covenants. If
Seller fails within thirty (30) days following
Buyer’s notice thereof to cure or otherwise remedy
the breach, Buyer may terminate this Agreement
upon notice to Seller. With respect to any cloud on
title that may be cured by payment of cash at
Closing, Seller shall have until Closing to cure such
cloud. In such event, any sums paid by Buyer to
Seller shall be returned to Buyer except for the
initial $50,000 payment referenced in Section 1.2(a).
Nothing contained in this Section shall be
construed to require Buyer to postpone the
Closing, or to limit or preclude the recovery by
Buyer against Seller of any sums for damages to
which Buyer may lawfully be entitled, or the
exercise by Buyer of any equitable rights or
remedies, including, without limitation, the
remedy of specific performance, to which Buyer
may lawfully be entitled by reason of any material
breach of any of the representations, warranties or
covenants of Seller set forth in this Agreement.

Conversely, in the event of Buyer’s default, Seller’s contractual
remedy was provided by section 4.4 of the Contract (Buyer
Default Clause):

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 Thatcher v. Lang

4.4 Buyer Default. Seller may terminate this
Agreement by giving written notice to Buyer if
Buyer materially breaches any covenant or other
obligation of Buyer under this Agreement and fails
to cure such breach within thirty (30) days after
written notice from Seller is received by Buyer
specifying such breach. If Buyer fails to make
payment on or before any deadline provided for
herein after the expiration of thirty (30) day grace
period, all payment previously made shall be
forfeited to Seller as liquidated damages.

¶4 In December 2006, the parties amended the Contract. At
the time, Buyer had paid the first $550,000, less $12,500 due to a
misunderstanding between the parties. The amendment
required Buyer to pay the delinquent $12,500 plus $125,000—
both to be applied to the Purchase Price—by January 5, 2007. A
final payment of $1,125,000 would be due by the original closing
date of January 7, 2008. In return for Seller excusing the third-
scheduled payment of $600,000, Buyer also agreed to pay
$101,250 in interest—amounting to 9% interest on the
outstanding Purchase Price. Buyer paid Seller the agreed-upon
installment and interest payments, leaving a principal balance of
$1,125,000 due on or before January 7, 2008.

¶5 On September 13, 2007, the parties amended the Contract
again. This amendment provided that (1) the closing date could
be delayed up to five years, until January 10, 2013 (Effective
Closing Date); (2) Buyer was required to make principal
payments of $50,000—due within ten days of signing the
amendment—and $75,000—due by December 23, 2007; and (3)
beginning January 10, 2008, Buyer would make $10,000 monthly
interest payments until he closed on the Property. The parties
executed the amendment, and Buyer paid the $50,000 and
$75,000 principal payments—leaving a principal balance of
$1,000,000 due on or before closing.

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 Thatcher v. Lang

¶6 Buyer struggled to stay current on the monthly interest
payments. In September 2010, Buyer’s interest payment was a
week late. He was late again the following month, at which time
he secured a loan. From the loan, he used $40,000 to pay the
delinquent October 2010 interest payment and prepay the next
three months. But by October 2011, Buyer was behind on interest
payments again.

¶7 On December 5, 2011, Seller sent Buyer a written notice of
default (First Notice). Seller’s First Notice explained that Buyer
was behind on interest payments, property taxes, and other
assessments which were his responsibility under the Contract.
Specifically, the First Notice stated,

This is a notice of breach and request to cure all
breaches . . . including payment in full of all
Washington County taxes and other assessments
past due and owing on [the Property]. Public
information on the taxes due . . . is attached
herewith.

You are currently, once again, late on your
monthly payment. . . . This includes city and
county assessments. . . .

In addition, Seller requests reimbursement for
water, sewer and other city assessments she paid
during 2006–2008 which were Buyer’s
responsibility to pay. An invoice of payments and
dates will follow.

Please note that you are currently in default
pursuant to Clause 11 of the Option now merged
with [the Contract] and Clause 4.4 of [the Contract]
on scheduled payment and nearing the thirtieth
(30th) day of delinquency.

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 Thatcher v. Lang

Buyer attempted to negotiate an extension on the overdue
payments, but Seller refused. Strapped for cash, Buyer obtained
a second loan. With those funds in hand, Buyer timely cured the
defaults identified in the First Notice.

¶8 As of February 2, 2012, Buyer was current on all
payments due under the Contract, and he was planning to
secure financing that would enable him to close on the Property.
On February 9, 2012, Buyer’s attorney wrote Seller asking that
she be prepared to close on the Property by March 10, 2012. On
February 21, 2012, Buyer again contacted Seller, stating that he
had the required amount of “money together” 3 and wanted to
close by March 15, 2012. Seller responded that she disagreed
with Buyer about the total amount due at closing but
nonetheless indicated that she would be willing to close anytime
before March 8, 2012, because she planned to leave the country
on that date. Buyer was unable to secure financing by March 8,
2012; Seller left the country, and the parties agreed to close at
some point after her return.

¶9 Over the ensuing months, the parties quibbled about the
total amount due at closing. Then, on April 23, 2012, Buyer
informed his attorney, who in turn informed Seller, that if Buyer
did not receive certain accounting information from Seller by the
following day, he would “start[] every legal procedure possible”
and that Seller “would not believe the damages if she did not
comply with his demands.” The following day, Seller initiated a

3. Whether Buyer actually had the “money together” for closing
was hotly contested. However, because Buyer’s failure to timely
make interest payments under the Contract undermined his
claim for specific performance, infra ¶¶ 24–25, his ability or
willingness to tender in 2012, or at any other time, is not a
determinative factor as to whether the trial court properly
denied specific performance.

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 Thatcher v. Lang

lawsuit against Buyer, incorrectly alleging that Buyer had “not
been current since October 10, 2011,” and requested that the
court quiet title to the Property in her favor (Lawsuit-1). Seller
never served Buyer with Lawsuit-1. 4

¶10 Despite their respective posturing, the parties continued
to work toward a closing. However, a closing tentatively
scheduled for April 26, 2012, fell through because Buyer “never
tendered payment of the amount he claimed was due, . . . was
behind on his monthly payments, . . . had not yet completed due
diligence items, . . . and . . . was involved in litigation”
concerning the zoning designation of the Property. Another
tentative closing, scheduled for May 4, 2012, fell through because
Buyer did not tender the amount due by that date.

¶11 On July 1, 2012, Seller mailed a second notice of default
(Second Notice) to Buyer stating,

As you are aware, you are now, and have been for
many months, in default and breach of the
[C]ontract for purchase of [the Property].

This is not your first notice, and you have
previously received written notice pursuant to the
[C]ontract.

Although you have defaulted, I expected to hear
from you concerning my willingness to allow you
to cure the default, but I have not.

4. The trial court would later rule that “[t]he filing of [Lawsuit-1]
was not a repudiation of the [C]ontract or a breach of the same
but was, instead, a misguided effort to secure jurisdiction in
Utah” and was in response to Buyer’s threat to initiate legal
action.

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 Thatcher v. Lang

Buyer did not make any payments or respond to the Second
Notice.

¶12 On August 13, 2012, Seller mailed a notice of forfeiture to
Buyer. Therein, Seller indicated that she believed that Buyer had
failed to cure within thirty days of receiving the Second Notice,
and therefore the Contract was terminated and he needed to
remove his notice of interest and any liens or lis pendens
associated with the Property.

¶13 On August 28, 2012, Seller filed the current action
(Lawsuit-2) and requested, among other things, that the trial
court quiet title to the Property in her favor. Buyer filed a
counterclaim for breach of contract, requesting that the court
order specific performance and, alternatively, for unjust
enrichment, requesting that the court order Seller to return all
principal payments ($800,000) and interest payments ($671,250)
to Buyer.

¶14 Importantly, during this time period, Buyer withheld
interest and other payments due under the Contract. In
fact, Buyer did not make any interest payments to Seller
after February 2012, and the court found that “[Buyer’s]
failure to tender any further payments to [Seller] . . . was
not reasonable” and that “some of [Buyer’s] written
communications indicate that he was deliberately withholding
payments as leverage to get [Seller] to give him certain
information.”

¶15 In November and December 2015, the court held a seven-
day bench trial. The court initially ruled that Seller committed
the first material breach—on the ground that Seller’s actions
prevented Buyer from obtaining financing—and ordered specific
performance of the Contract. The parties subsequently filed
various motions to alter or amend the court’s findings and
conclusions.

20180009-CA 8 2020 UT App 38
 Thatcher v. Lang

¶16 In considering the parties’ post-trial motions, the
court reviewed the evidence and exhibits and determined
that its prior findings and conclusions should be amended.
Specifically, the court stated, “In reaching its previous
[f]indings and [c]onclusions, the court overlooked [an]
exhibit” demonstrating that for Buyer to obtain the
necessary financing to close, “a recent appraisal showing
$2,450,000 on [the Property]” was required. The court
further found that “although [Buyer] had obtained an
appraisal (dated January 10, 2012) showing the requisite
value for [the Property], the value shown on the first
appraisal was based in part on [the Property] being zoned
for commercial use.” (Cleaned up.) Thus, where Buyer “had . . .
lost the favorable commercial rezoning for [the Property], . . .
this court cannot determine that . . . [Buyer] would have been
able to obtain financing.”

¶17 In its amended conclusions of law, the court ruled
that “[Buyer] not only failed to tender the principal amount
which he knew was due, he failed to tender any interest
payments that he knew were due until the deadline for
his performance in January 2013. His failure to tender
anything, under the circumstances of this case, precludes”
his request for specific performance. And “[a]lthough [Buyer]
has argued that [Seller’s] actions prevented and excused
his tender . . . the court cannot agree.”

¶18 Based on its amended findings, the court ruled that
(1) neither party could recover under their claims for breach
of contract; (2) Buyer was not entitled to specific performance;
(3) Seller’s Second Notice was deficient, and therefore she
could not terminate the Contract and retain all previously
made principal payments as liquidated damages; and
(4) Buyer was entitled to recover $800,000 in principal
payments from Seller under a theory of unjust enrichment.

20180009-CA 9 2020 UT App 38
 Thatcher v. Lang

¶19 Both parties appeal. 5

ISSUES AND STANDARDS OF REVIEW

¶20 Four issues are raised on appeal, two by Buyer and two
by Seller. First, Buyer claims that the trial court erred in denying
specific performance of the Contract. “Specific performance is a
remedy of equity . . . and accordingly, considerable latitude of
discretion is allowed in determination as to whether it shall be
granted and what judgment should be entered in respect thereto;
and ruling thereon should not be upset on appeal unless it
clearly appears that [the court] has abused [its] discretion.” Carr
v. Enoch Smith Co., 781 P.2d 1292, 1294 (Utah Ct. App. 1989)
(cleaned up).

¶21 Second, Buyer contends that the trial court erred in
quieting title in favor of Seller. “Determination of the proper
scope of a quiet title action presents a legal question that we
review for correctness.” Haynes Land & Livestock Co. v. Jacob
Family Chalk Creek, LLC, 2010 UT App 112, ¶ 8, 233 P.3d 529; see
also Salt Lake City v. Silver Fork Pipeline Corp., 2000 UT 3, ¶ 18, 5
P.3d 1206 (“A quiet title action requires the application of a rule
of law to decide ownership of the property in question.”),

5. Neither party has challenged the court’s amended findings of
fact, nor has either challenged the propriety of the court
amending its findings and conclusions, which essentially
reversed the court’s prior ruling and order for specific
performance. Further, the court indicated that its amended
findings and conclusions overruled the prior findings and
conclusions with exception only to the procedural history. Thus,
our review of this matter is limited to the facts and conclusions
as stated in the trial court’s amended order. See Bailey–Allen Co.
v. Kurzet, 945 P.2d 180, 185–86 (Utah Ct. App. 1997).

20180009-CA 10 2020 UT App 38
 Thatcher v. Lang

overruled on other grounds by Jensen v. Jones, 2011 UT 67, 270 P.3d
425.

¶22 Third, Seller claims that the trial court erred in ruling that
the Second Notice to Buyer was deficient and in deciding in turn
to deem the Contract terminated and not to enforce the
liquidated damages provision under the Buyer Default Clause.
“‘[Q]uestions of contract interpretation not requiring resort to
extrinsic evidence are matters of law, which we review for
correctness.’” Fort Pierce Indus. Park Phases II, III & IV Owners
Ass'n v. Shakespeare, 2016 UT 28, ¶ 15, 379 P.3d 1218 (quoting
Fairbourn Commercial, Inc. v. American Housing Partners, Inc., 2004
UT 54, ¶ 6, 94 P.3d 292).

¶23 Fourth, Seller contends that the trial court erred in
granting Buyer relief under a theory of unjust enrichment.
“Claims based on equitable doctrines are mixed questions of fact
and law. Accordingly, we defer to a trial court’s factual findings
unless there is clear error but review its legal conclusions for
correctness.” Cottonwood Improvement Dist. v. Qwest Corp., 2013
UT App 24, ¶ 2, 296 P.3d 754 (cleaned up).

ANALYSIS

I. Specific Performance

¶24 As a general rule, a party seeking specific performance
“must make a tender of his own agreed performance in order to
put the other party in default.” PDQ Lube Center, Inc. v. Huber,
949 P.2d 792, 799 (Utah Ct. App. 1997) (cleaned up); see also
Century 21 All W. Real Estate & Inv. Inc. v. Webb, 645 P.2d 52, 56
(Utah 1982). However, “‘an action for specific performance may
also be maintained if the plaintiff presents an excuse for his
failure to make such payment or tender and avers his ability,
readiness and willingness to pay the contract amount.’” PDQ
Lube Center, Inc., 949 P.2d at 799 (quoting Reed v. Alvey, 610 P.2d

20180009-CA 11 2020 UT App 38
 Thatcher v. Lang

1374, 1379 (Utah 1980)). Importantly, even if a party could
hypothetically “surmount the no tender hurdle” to be granted
specific performance, that party “must have clean hands . . . .
That is, he must take care to discharge his own duties under the
contract.” Carr v. Enoch Smith Co., 781 P.2d 1292, 1295 (Utah Ct.
App. 1989) (cleaned up).

¶25 Here, the trial court denied Buyer’s request for
specific performance because Buyer had tainted hands.
Among other things, Buyer stopped making interest payments
in February 2012—prior to the filing of both Lawsuit-1
and Lawsuit-2—and never made a single payment thereafter.
And while Buyer argues that he was excused from tendering
the outstanding principal due to Seller’s actions, he does
not address, discuss, or justify his failure to make the
interest payments as they became due. Even if Buyer could
persuade us that he was excused from tendering the
outstanding principal, he has failed to show that he otherwise
discharged his duties under the Contract and is entitled to an
award of specific performance. Id.; see also Fischer v. Johnson, 525
P.2d 45, 46 (Utah 1974). Thus, we conclude that the trial court
did not exceed its discretion in denying Buyer’s claim for specific
performance.

II. Quiet Title

¶26 Generally, “to succeed in an action to quiet title to real
estate, a plaintiff must prevail on the strength of his own claim to
title and not on the weakness of a defendant’s title or even its
total lack of title.” Collard v. Nagle Constr., Inc., 2002 UT App 306,
¶ 18, 57 P.3d 603 (cleaned up); see also WDIS, LLC v. Hi-Country
Estates Homeowners Ass'n, 2019 UT 45, ¶ 42 n.73, 449 P.3d 171
(“One seeking to quiet title must allege title, entitlement to
possession, and that the estate or interest claimed by others is
adverse or hostile to the alleged claims of title or interest.”
(cleaned up)).

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 Thatcher v. Lang

¶27 Here, the trial court made no findings or conclusions
concerning Seller’s claim to title. If the court’s quiet title
judgment were now before us for review and definitive
resolution, the absence of required findings and conclusions
about Seller’s claim to title would likely necessitate remand for
those findings and conclusions to be made. Hill v. Estate of Allred,
2009 UT 28, ¶ 59, 216 P.3d 929 (“Failure of the trial court to make
findings on all material issues is reversible error.” (cleaned up));
Interstate Income Props., Inc. v. La Jolla Loans, Inc., 2011 UT App
188, ¶ 13, 257 P.3d 1073. But in the posture of this appeal and
given our remand for the court’s further consideration of
remedies and the status of the parties’ contract, the question of
quieting title is premature. Seller’s entitlement to have her title
quieted as against Buyer will largely be a function of the trial
court’s resolution of those other matters on remand. If, for
example, the court determines that Buyer’s contractual rights are
at an end, then findings, conclusions, and a judgment quieting
title in favor of Seller would likely follow rather automatically.
If, however, the court determines that Buyer has continued
contractual rights that could culminate in Buyer’s acquiring the
Property after all, a quiet title determination would turn on
whether Buyer performed or failed to perform his obligations
under the revitalized contract. Thus, we reverse and remand on
this issue for further proceedings.

III. Liquidated Damages

¶28 Turning to Seller’s appeal, she argues that the trial
court erred in ruling that the Second Notice to Buyer was
deficient and in concluding in turn that she was not
entitled to retain Buyer’s principal payments as liquidated
damages. Alternatively, Seller argues that even if the Second
Notice was deficient, the liquidated damages provision is self-
executing and did not require that she provide written notice to
Buyer of his failure to make timely payment. We examine both
arguments.

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 Thatcher v. Lang

A. Notice and termination are prerequisites to recover
liquidated damages.

¶29 The Buyer Default Clause contains two sentences:

Seller may terminate this [Contract] by giving
written notice to Buyer if Buyer materially
breaches any covenant or other obligation of Buyer
under this [Contract] and fails to cure such breach
within thirty (30) days after written notice from
Seller is received by Buyer specifying such breach
[(Termination Sentence)]. If Buyer fails to make
payment on or before any deadline provided for
herein after the expiration of thirty (30) day grace
period, all payment previously made shall be
forfeited to Seller as liquidated damages [(LD
Sentence)].

¶30 Seller argues that the Termination Sentence and the LD
Sentence are autonomous. In other words, Seller argues that the
LD Sentence is self-executing and therefore no notice of breach
or termination of the Contract is required to retain Buyer’s
principal payments as liquidated damages if a subsequent
payment is late. Conversely, Buyer argues that the sentences are
related and that Seller was required to satisfy requirements of
the Termination Sentence to trigger the liquidated damages
remedy. We agree with Buyer.

¶31 “As with any contract, we determine what the parties
have agreed upon by looking first to the plain language within
the four corners of the document.” Peterson & Simpson v. IHC
Health Services, Inc., 2009 UT 54, ¶ 13, 217 P.3d 716 (cleaned up).
“When interpreting the plain language, we look for a reading
that harmonizes the provisions and avoids rendering any
provision meaningless.” Id. (cleaned up). “Harmonizing
conflicting or apparently ambiguous contract language before

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 Thatcher v. Lang

concluding that provisions are actually ambiguous is an
important step in the hierarchy of rules for contract
interpretation.” Gillmor v. Macey, 2005 UT App 351, ¶ 19, 121
P.3d 57. Accordingly, we “must first attempt to harmonize all of
the contract’s provisions and all of its terms when determining
whether the plain language of the contract is ambiguous.” Id.
(cleaned up). “To harmonize the provisions of a contract, we
examine the entire contract and all of its parts in relation to each
other and give a reasonable construction of the contract as a
whole to determine the parties’ intent.” Id. (cleaned up).

¶32 In isolation, the LD Sentence may appear to be self-
executing. But that sentence does not exist in isolation; rather,
it is an integrated part of the two-sentence Buyer Default
Clause. Properly harmonizing the Termination Sentence and
LD Sentence shows that the parties’ intended purpose of the
first is to operate as a prerequisite for the second. Most
obvious is that the two sentences are combined together in
the Buyer Default Clause. This construction is not merely
coincidental. The original Option, expressly acknowledged
by and appended to the Contract, contained a liquidated
damages provision but did not contain a termination provision.
Thus, it is reasonable to conclude that the parties not only
intended to add the Termination Sentence into the Contract, but
that the parties intended to add the provision exactly where and
how they did. 6

6. As discussed, supra ¶ 2 n.2, the Contract provides, “The terms
of the Option . . . have been merged herein and to the extent any
terms or conditions of the Option . . . conflict or are otherwise
inconsistent with this [Contract], the terms of this [Contract]
shall control.” Under the controlling Contract, the Buyer Default
Clause plainly is operative. Accordingly, we conclude that the
existence of a self-executing liquidated damages clause in the
(continued…)

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 Thatcher v. Lang

¶33 Next, the LD Sentence expressly references a thirty-day
grace period; and other than the immediately preceding
Termination Sentence, there are no other provisions in the
Contract that delineate a thirty-day grace period. Accordingly, it
is reasonable to conclude that the parties intended to connect the
two sentences vis-à-vis the reference to the thirty-day grace
period.

¶34 Further, reading the two in tandem gives effect to “all of
the [C]ontract’s provisions and all of its terms.” See Selvig v.
Blockbuster Enters., LC, 2011 UT 39, ¶ 23, 266 P.3d 691 (emphasis
added) (cleaned up). In the event that Buyer is delinquent, Seller
has two options: (1) declare the Contract terminated, including
her obligation to transfer the Property, and retain the principal
payments as liquidated damages for Buyer’s breach, or (2)
choose not to terminate the Contract, in which case she may still
retain the principal payments, just as she would have had there
been no breach, but she must also eventually transfer the
Property after all the payments have been made. In other words,
if Seller does not terminate the Contract, she is already entitled
to retain the principal payments, but her obligation to transfer
the Property remains. Thus, it is only the termination of the
Contract that triggers the LD Sentence, and to terminate the
Contract proper notice must be given.

¶35 Accordingly, we conclude that when the two sentences at
issue are properly harmonized, Buyer’s interpretation provides a
clear and precise understanding to the Buyer Default Clause,
gives logical meaning and effect to the two sentences, and
resolves any conflict, without having to resort to extrinsic

(…continued)
Option does not lend support to Seller’s position that the LD
Sentence in the Contract is also self-executing.

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 Thatcher v. Lang

evidence to ascertain the intent of the parties. See Peterson
& Simpson, 2009 UT 54, ¶¶ 13, 19.

B. Seller’s Second Notice was deficient.

¶36 Next, Seller argues that her Second Notice satisfied the
Termination Sentence, thereby triggering the LD Sentence. But
again, we disagree. The Termination Sentence provides that
sufficient notice to terminate the Contract requires a material
breach by Buyer and that “written notice from Seller is received
by Buyer specifying such breach.” (Emphasis added.) While the
parties disagree about what the phrase “specifying such breach”
means, any reasonable reading of the Termination Sentence,
under a plain language analysis, requires that some specific
breach be identified. And here there is nothing. The Second
Notice from Seller to Buyer states, “As you are aware, you are
now, and have been for many months, in default and breach of
the [C]ontract for purchase of [the Property]. This is not your
first notice, and you have previously received written notice
pursuant to the [C]ontract.” And “[a]lthough you have
defaulted, I expected to hear from you concerning my
willingness to allow you to cure the default, but I have not.”

¶37 Simply put, this Second Notice does not specify Buyer’s
alleged breach(es). It contains no specific reference to any
particular delinquent principal payment, interest payment, or
tax payment. Nor does it explain or describe any amount—much
less an overdue amount—that Buyer needed to pay in order to
cure. Indeed, the Second Notice notes only that Buyer had
“previously received written notice” of his “default and breach”
in the First Notice. Buyer, however, cured the breaches listed in
the First Notice. Thus, reference to the First Notice did not
provide Buyer with specific notice of any subsequent breach(es),
and therefore Buyer was not given an opportunity to cure after
receiving notice of default (as no specific breach was listed). We
therefore conclude that under the plain language of the Contract,

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the Second Notice did not terminate the Contract or trigger the
LD Sentence. 7

IV. Unjust Enrichment

¶38 Next, Seller argues that the trial court erred in permitting
Buyer to advance and succeed on his unjust enrichment claim.
Because we cannot ascertain the ultimate legal basis of the trial
court’s decision, we conclude it is necessary to remand this issue
for the court’s clarification. The court in its conclusions cites
caselaw, a Restatement, and American Law Reports (A.L.R.), and
it seems to conclude that one, or all of these distinct legal

7. Seller cites Commercial Real Estate Investment, LC v. Comcast of
Utah II, Inc., 2012 UT 49, ¶ 38, 285 P.3d 1193 (holding that
“liquidated damages clauses should be reviewed in the same
manner as other contractual provisions”), arguing that the trial
court erred in applying a “heightened level of judicial scrutiny to
the liquidated damages provision.” As an initial matter, Seller’s
argument misses the mark because the trial court did not reach
enforceability of the LD Sentence; rather, it determined that the
Termination Sentence was not satisfied. The court did, however,
apply a “strict compliance” standard to the Termination
Sentence. See Adair v. Bracken, 745 P.2d 849, 852 (Utah Ct. App.
1987) (“In order to forfeit a purchaser’s interest under a uniform
real estate contract, the seller must comply strictly with the
notice provisions of the contract.” (cleaned up)). However,
without directly deciding whether the court’s application of
“strict compliance” to the Termination Sentence was erroneous,
our conclusion—that Seller’s Second Notice is deficient without
requiring strict compliance—proves fatal to Seller’s claim
because she cannot show that any perceived error was
prejudicial. See Utah R. Civ. P. 61. Where notice failed without
requiring strict compliance, it would likewise fail under a more
restrictive application.

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authorities, supports its imposition of an equitable remedy. The
legal authorities include distinct legal theories, however, and we
have determined that the theories either do not apply in these
circumstances, or are unsupported by the court’s underlying
findings.

A. Unjust enrichment as a quasi-contract theory does not
apply here.

¶39 “The doctrine of unjust enrichment is designed to provide
an equitable remedy where one does not exist at law.” Selvig v.
Blockbuster Enters., LC, 2011 UT 39, ¶ 30, 266 P.3d 691 (cleaned
up). “Therefore, where an express contract covering the subject
matter of the litigation exists, recovery for unjust enrichment is
not available.” Id. (cleaned up).

¶40 In this case, the Contract—which neither party contends
is unenforceable—governed the purchase and conveyance of the
Property, which is the subject matter of this dispute.
Accordingly, both Seller and Buyer are barred from recovering
under the quasi-contract theory of unjust enrichment (for acts
arising from this transaction). Id.; see also Mann v. American W.
Life Ins. Co., 586 P.2d 461, 465 (Utah 1978) (“Recovery in quasi
contract is not available where there is an express contract
covering the subject matter of the litigation.”); accord United
States Fid. & Guarantee Co. v. United States Sports Specialty Ass’n,
2012 UT 3, ¶ 11, 270 P.3d 464; Ashby v. Ashby, 2010 UT 7, ¶ 14,
227 P.3d 246; AGTC Inc. v. CoBon Energy LLC, 2019 UT App 124,
¶ 22, 447 P.3d 123. While the trial court acknowledged that
this was the law when dismissing Buyer’s promissory
estoppel claim, it nevertheless ruled that “[s]ince the
conditions necessary for the enforcement of the [LD Sentence]
are not met here, the court concludes that the [Contract] should
be treated as one lacking such a provision” and therefore,
Buyer’s “unjust enrichment claim is viable.” This conclusion was
erroneous.

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 Thatcher v. Lang

¶41 Even if a contract does not provide an express remedy—
or, as is the case here, the LD Sentence was not triggered8—it
does not follow that a party has no legal remedies flowing from
a breach of an express contract. See Ashby, 2010 UT 7, ¶ 15. It also
does not follow that equitable remedies should then somehow
come into play. Here, it is undisputed both that the Contract
governs the subject matter of this litigation and that the Contract
is enforceable. Therefore, the trial court erred in permitting
Buyer to advance a claim for unjust enrichment under these
facts, and we cannot affirm the trial court’s conclusion on this
basis.

B. The trial court’s other theories of “unjust restitution” are
not supported.

¶42 It appears obvious that the trial court was trying to legally
justify its ultimate conclusion that principal payments should be
returned to Buyer. And while we are able to affirm on any basis
apparent in the record, Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d
1158, we cannot do so here because the trial court’s factual
findings and conclusions on the issue are insufficient and
incomplete, see Jensen v. Jensen, 2009 UT App 1, ¶ 8, 203 P.3d 1020
(“To withstand appellate review, the trial court’s findings of fact
must show that the court’s judgment or decree follows logically
from, and is supported by, the evidence. The findings should be
sufficiently detailed and include enough subsidiary facts to
disclose the steps by which the ultimate conclusion on each
factual issue was reached.” (cleaned up)). Here, there are

8. We note that the LD Sentence in the Buyer Default Clause—
which the court “read out” of the Contract—was Seller’s
remedy, not Buyer’s. Buyer’s express contractual remedy was
provided for by the Seller Default Clause, which remained in
force even when the trial court read the LD Sentence out of the
Contract.

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 Thatcher v. Lang

numerous aspects of the trial court’s legal conclusions that do
not logically flow from its factual findings.

¶43 For example, although the court concluded that Seller is
not entitled to retain the principal payments as liquidated
damages on the ground that she did not provide Buyer proper
written notice and an opportunity to cure his alleged breaches,
such a conclusion does not—by itself—address which party is
entitled to the principal payments where Buyer was in breach
but Seller did not properly invoke the LD Sentence.

¶44 Citing Foxley v. Rich, 99 P. 666 (Utah 1909), and its
progeny, Seller argues that a buyer in default cannot normally
recover payments where the seller stands ready and able to
comply with the terms of the contract. Without deciding the
issue, we note that the trial court in this case did not make
findings or conclusions sufficient to determine whether Foxley
and the related cases apply to these facts. Specifically, the court
did not make a finding of fact, nor is it apparent from the record,
that Seller was willing to sell the Property to Buyer at the time
she filed Lawsuit-2 or at any time thereafter. See id. at 671.

¶45 Lastly, neither party has addressed the implications of the
closing deadline having passed without either party tendering
performance, see New York Ave. LLC v. Harrison, 2016 UT App
240, ¶ 44, 391 P.3d 268, nor did the trial court consider these
implications because it resolved the parties’ dispute through
Buyer’s equitable claim.

¶46 As indicated, the trial court cites the A.L.R. to support its
legal conclusion that Buyer could recover its principal payments
under an unjust enrichment theory. See James O. Pearson,
Annotation, Modern Status of Defaulting Vendee’s Right to Recover
Contractual Payments Withheld by Vendor as Forfeited, 4 A.L.R. 4th
993 § 2 (1981). The Utah cases cited by this A.L.R., however, deal
exclusively with unconscionability of enforcing forfeiture or

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liquidated damages provisions. E.g., Soffe v. Ridd, 659 P.2d 1082,
1084 (Utah 1983) (“We affirm the trial court’s conclusion that
enforcing the liquidated damages provision in this case would
result in an arbitrary penalty against the buyers which would be
grossly excessive and disproportionate to the loss sustained by
seller.”), abrogated by Commercial Real Estate Inv., LC v. Comcast of
Utah II, Inc., 2012 UT 49, 285 P.3d 1193; Johnson v. Carman, 572
P.2d 371, 373 (Utah 1977) (“Although we do not purport to lay
down any specific percentage which will be considered
unconscionable, to allow the seller to retain the $34,596.10 paid
by buyer when seller’s actual damages amount to only
$25,650.00 would be grossly excessive and disproportionate to
any possible loss.” (cleaned up)), abrogated by Commercial Real
Estate Inv., LC, 2012 UT 49; Fullmer v. Blood, 546 P.2d 606, 609
(Utah 1976) (“Determination of the question of
unconscionableness of a forfeiture of amounts paid is one which
also depends on the circumstances.”); Weyher v. Peterson, 399
P.2d 438, 439 (Utah 1965) (“The pertinent issue is whether the
forfeiture of all past payments on the premises as provided in
the contract unconscionably burdened [the] defendant.”). But it
is not apparent from this record that the parties argued
unconscionability below—nor have they argued on appeal that
enforcement (or non-enforcement) of the Contract would be
unconscionable. Importantly, the trial court made no findings
sufficient to support a theory of unconscionability. Thus, even
though we conclude that Buyer’s unjust enrichment quasi-
contract claim cannot stand as a basis on which to ground a
remedy of restitution, we cannot determine whether
enforcement (or non-enforcement) of this Contract may have
been unconscionable—which potentially could justify an
equitable remedy—without adequate findings or clear analysis
indicating that the trial court is anchoring its ultimate conclusion
in this legal theory.

¶47 On remand, the trial court should reevaluate the parties’
actions or lack of actions—including the passing of the Effective

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Closing Date without either party tendering performance. The
court should also reassess legal remedies that may flow from
those actions in light of the Contract.

CONCLUSION

¶48 As to Buyer’s appeal, we conclude that the trial court did
not err in denying specific performance. But because the court
did not apply the proper legal standard, it did erroneously quiet
title in favor of Seller. Next, as to Seller’s appeal, the court did
not err in ruling that Seller’s Second Notice was deficient and in
denying therefore her claim for liquidated damages. The court
did err, however, in awarding Buyer damages under a theory of
unjust enrichment. Accordingly, as this appeal now leaves a
number of aspects unresolved, including the legal remedies, if
any, available to the parties flowing from failure(s) to perform
under the Contract, we remand this matter for additional
proceedings not inconsistent with this opinion. 9

9. We do not mean to imply that any trial or evidentiary hearing
will need to take place on remand, but instead we anticipate that
additional arguments may need to be entertained and
supplemental findings and conclusions entered by the trial
court.

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