(dissenting):
¶ 42 I cannot agree there was an accord and satisfaction in this case. While there was a bona fide dispute over the new rental rate and the Dishingers may well have tendered their payments with the thought it was in full satisfaction of what was due, there is no finding that Potter accepted the payments in full satisfaction nor any basis in the evidence to conclude that she did so. On the contrary, the Dishingers and Potter had exchanged letters indicating very different views of what constituted the "then prevailing rental rate." Nothing suggests either side thereafter acceded to the view of the other or that they reached a compromise. On the contrary, within days of accepting the Dishingers' check, Potter sent the Dishingers a default notice stating what she believed the shortfall to be. A couple of weeks later, the Dishingers filed their declaratory judgment action acknowledging there was a dispute between the parties and asking the court to resolve it-not claiming there had been a dispute between the parties that had been resolved by accord and satisfaction and asking the court to enforce the accord.
¶ 43 Applicable law does not require anything inconsistent with the expectations of the parties, as shown by their conduct. The "New Base Rent" notation, apparently made in the "For " space on the front of the check, clearly does not satisfy the UCC's requirement that "the instrument or an accompanying written communication contain|{ ] a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim." Utah Code Ann. § 70A-8-311(2) (1997) (emphasis added). In addition, cases relied on by the majority are inappo-site. In both Marton Remodeling v. Jensen, 706 P.2d 607 (Utah 1985), and Cove View Excavating & Construction Co. v. Flynn, 758 P.2d 474 (Utah Ct.App.1988), unlike in this case, the checks evidencing the accord and satisfaction contained actual restrictive endorsement provisions. See Marton Remodeling, 706 P.2d at 608 ("Endorsement hereof constitutes full and final satisfaction of any and all claims. ..."); Cove View, 758 P.2d at 476 (check contained "prot. in full" language on front of check and this restrictive endorsement language on back of check: "payment in full for all labor and materials to 6/26/84"). In Estate Landscape & Snow Removal Specialists, Inc. v. Mountain States Telephone & Telegraph Co., 844 P.2d 322 (Utah 1992), a detailed letter made it clear that the check could be accepted only as full payment. See id. at 8324-25.
¶ 44 As a matter of law, the facts in this case do not establish an accord and satisfaction. The jury recognized this and went on to find that the prevailing rental rate was $25 per square foot and that the Dishingers owed this to Potter under their contract. Does this mean the Dishingers unlawfully detained the premises, subjecting them to treble damages? It does not. Potter, in her "notice to pay rent or quit," demanded payment of a sum well in excess of what she was entitled to contractually. The jury found the prevailing rate was $25, but she had demanded payment of $30. The invalid demand renders the notice completely ineffective to place the Dishingers in a state of unlawful detain-er.
¶ 45 When the dust settles in this case, the proper result emerges with reasonable clarity. The Dishingers did not owe as much as Potter thought they did, but they owed more than they thought they did. There was no accord and satisfaction, so they are liable for the shortage. On the other hand, Potter had no right to demand payment of an amount to which she was not entitled, so she may not have the lesser amount to which she was actually entitled trebled, nor is she entitled to any other relief specially available under the unlawful detainer statute. Clearly, then, there is no prevailing party here-each side won a little and lost a little-so neither side is entitled to an award of attorney fees.
¶ 46 On remand, I would simply have the trial court amend its judgment to reflect the foregoing.