(concurring in part and dissenting in part):
I concur with the majority opinion on the issues affecting Central Utah Title. I respectfully dissent, however, from the majority’s determination that there was sufficient evidence to support the trial court’s finding that Strong made a knowing misrepresentation. The majority states that because Strong knew that lot nine was the proposed site for the power plant and was never told that the plant would not be constructed, he knowingly misrepresented that the plant would not be built on the property. However, the majority disregards evidence of what Strong knew about the status of the project at the time of his alleged misrepresentation, through a series of conversations with city officials. The majority specifically fails to consider a conversation between Robinson, the city engineer, and Strong prior to the Newman transaction, in which Robinson told Strong that if Strong was able to sell lot nine, he should do so and the city would then pro-*999eeed with the plant on an alternative site. There is no evidence in the record to support the contention that Strong knew anything different than what he told Ruiz and Schuhman on the telephone prior to Schuh-man paying the earnest money.
Robinson first approached Strong in 1988 about the possibility of constructing the power plant on lot nine. Robinson testified that at that time the city was not “to the point of detail design to even buy land. We didn’t know if the funding would be there. We just talked conceptually about it.” Both Robinson and Strong testified that in the following months they spoke periodically and Robinson gave Strong status reports about the city’s plans. Although, as the majority points out, Robinson never ¿old Strong that the plant would not come to fruition, it was clear that construction was uncertain. Robinson told Strong that there were contingencies in addition to obtaining funding that must be met before the project could begin.
Strong testified that in the summer of 1989, before he listed the property for sale, he and Robinson had a conversation in which Robinson told him the funding had not yet been approved and the city was still reviewing the feasibility of the project. Strong told Robinson that he had “had opportunities to sell the lots, and lot nine, in particular, and [Robinson] said, ‘If you have an opportunity to do that, all I can tell you is to go ahead and do it, and if we have a project, we’ll locate it off the subject property.’ ” Strong testified that on more than one occasion prior to the Newman transaction, Robinson told Strong that the project would be moved off his property to another site. Robinson did not refute or dispute Strong’s description of those conversations. Strong listed the property and on August 2, 1989, the Newmans, through Schuhman, offered to buy it.
As late as spring of 1990, several months after the Newmans’ closing, the city was still unable to proceed with the project because its feasibility was still in question, plans had not been prepared, and funding had not been approved.
All the testimony at trial is consistent that Strong believed that no power plant would be built on lot nine if he sold it. The city did not have a firm location for the plant and had not finalized funding or feasibility for the project at the time of the sales transaction with the Newmans. In fact, the city administrator, Vern Fisher, originally told Schuhman after the closing that the power plant would likely not be located on the Newmans’ property. Schuh-man testified as follows:
SCHUHMAN: [Fisher said] that the power plant may not have been on that lot, and it would be either across the creek and it would be no problem and that [the Newmans’] property, that they wouldn’t even hear it. There would be water flowing through the creek and everything would be fine.
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DEFENSE COUNSEL: Now, in your conversation, if I understood what you said now, you explained that he said that the project would be removed across the stream to some other property? SCHUHMAN: Yes.
DEFENSE COUNSEL: He told you that. SCHUHMAN: That’s what he said he thought. He wasn’t sure.
DEFENSE COUNSEL: He wasn’t sure. And so the project, according to that conversation, would not be built on the property that your parents were purchasing from the Green River Motel; is that right?
SCHUHMAN: Right. He assured me of that fact. So I felt gratified that they had purchased the property and there would be no power plant.
Strong’s statement, as found by the trial court, that the plant would not be built on the property was consistent not only with what he knew at the time, but also with the knowledge of city officials bearing responsibility for the power plant project and, therefore, in a better position to know the actual facts. The trial court used Strong’s statement that the plant would not be built on the property and linked it to a finding that the Newmans would not have completed their purchase if they had known the *1000plant would be built on or near the property. Yet there is no finding that Strong made any representation, whether true or not, about the possibility of a power plant near the property. There was no evidence to refute the truth of Strong’s statement, as he knew the truth to be, that the plant would not be built on the property. It was not until later, when Fisher told Schuhman that the plant would be piped underground, that the Newmans decided they did not want the property.
Schuhman and the Newmans had the burden of proving by clear and convincing evidence that Strong knew the power plant would be constructed on the property when he told Schuhman and Ruiz that it would not be. There is no evidence that shows Strong knew anything different than what he told Ruiz and Schuhman or that he knowingly made a misrepresentation. Therefore, I would reverse.