(concurring in part and dissenting in part):
¶ 24 I concur in the analysis of Parts I and III of the majority opinion. However, I respectfully dissent from the majority's reversal of the trial court's abandonment determination in Part II and therefore dissent from Part IV as well, I do not agree with the majority's determination that Watkins's negotiation of the return of deposit check was not an intentional relinquishment of his contractual rights. See supra ¶ 19.
125 The contracts entered into between the parties gave Watkins a right to purchase two of the subject cars contingent upon allocation of the cars to Henry Day. However, "[a] contract may be [abandoned] by acts or conduct of the parties inconsistent with the continued existence of the contract." Harris v. IES Assocs., Inc., 2003 UT App 112, ¶37, 69 P.3d 297 (second alteration in original) (internal quotation marks omitted). In this case, both parties undertook acts inconsistent with the continued existence of the contracts.1
T26 Henry Day acted inconsistently with the contracts when it refunded the deposit Watkins gave as security for the performance of the contracts. Watkins acted inconsistently when he accepted the return of his deposit and negotiated the deposit check. These actions demonstrate the parties' unequivocal expressions of an intent to abandon the contracts. If Watkins, after receiving the refund check and letter from Henry Day indicating its desire to abandon the contracts, wanted to maintain rights under the contracts, he should not have taken actions that were inconsistent with the continued existence of the contracts. Instead of either seeking a clarification or asserting ongoing rights, Watkins negotiated the deposit check. The result was that both parties acted as if the contracts had been rescinded.
T27 Watkins's negotiation of the deposit check indicated his agreement to "walk away" from the deal and abandon the contracts. By negotiating the returned deposit check, Watkins released Henry Day of its obligation to sell any future allocation of the subject cars to Watkins and Henry Day relinquished its right to enforce purchase at the manufacturer's suggested retail price (MSRP) of the cars if they were allocated to Henry Day. The issuance of the deposit check and Watkins's negotiation of the check without any visible attempt to claim continuing rights demonstrated an unequivocal representation of intent to abandon the contracts. See generally Lucky Seven Rodeo Corp. v. Clark, 755 P.2d 750, 753 (Utah Ct.App.1988) (stating that abandonment is the intentional relinquishment of one's right in the contract). Because Watkins abandoned the contracts, I would not permit Watkins to enforce the sale of the subject cars pursuant to those contracts. Likewise, if the situation were reversed and Henry Day was attempting to enforce the sale of the subject cars, for example if the market value dropped significantly below MSRP before delivery of the cars to Henry Day, I would not likewise permit Henry Day to enforce the contracts.
€ 28 I also do not agree with the majority opinion that Watkins could not have relinquished his rights because Watkins was unaware, after Henry Day's negative representation regarding allocation, that there *536remained a possibility that Henry Day would receive an allocation of the subject cars if the dealership received a sales award. See supra ¶19. Under the contracts, Watkins had a contingent right to purchase the subject cars regardless of how likely or unlikely the possibility of Henry Day's allocation might be at any given time throughout the duration of the contracts. Henry Day's desire to abandon the contracts based on its own belief that it would not receive an allocation did nothing to change Watkins's contingent contractual rights. Thus, the parties' beliefs regarding the probability that Henry Day would receive an allocation of the subject cars is irrelevant. At the time Watkins received the refund check, he had a contingent right to purchase the subject cars if later allocated to Henry Day. Watkins, however, relinquished his contractual rights when he negotiated the return of deposit check.
129 Accordingly, I would affirm the trial court's abandonment determination.
. - It is possible that the parties' actions of mutual abandonment of the contracts in this case may amount to a manifestation of mutual assent to rescind the contracts. See generally Forsyth v. Pendleton, 617 P.2d 358, 361 (Utah 1980) (per curiam) ("[When the intent to abandon by one party is coupled with the equal intention of the other party, such mutual abandonment may under certain circumstances, be found to constitute rescission of the contract.").