Baxter v. Saunders Outdoor Advertising, Inc.

DAVIS, Judge

(dissenting):

¶18 I agree with the legal analysis of the majority opinion. I disagree, however, with the majority's interpretation of the single lease sentence, on which the entire analysis is based, providing that the agreement was "subject to" Saunders obtaining the approval for the advertising signs. I believe that the plain meaning of the "subject to" language is that the parties' obligations under the lease are contingent or conditional upon an event that may or may not happen. See Webster's Ninth New Collegiate Dictionary 1174 (1986) (defining the word "subject" as "contingent on or under the influence of some later action"). The plain meaning of that language imposes no duty on Saunders to obtain the approval on which the lease was conditioned. Nor do I believe that the implied covenant of good faith and fair dealing can be used to impose such a duty-a duty to which the parties did not expressly agree in their written lease. See Oakwood Vill. LLC v. Albertsons, Inc., 2004 UT 101, ¶ 45, 104 P.3d 1226 ("While a covenant of good faith and fair dealing inheres in almost every contract, some general principles limit the seope of the covenant.... First, this covenant cannot be read to establish new, independent rights or duties to which the parties did not agree ex ante. Second, this covenant cannot create rights and duties inconsistent with express contractual terms. Third, this covenant cannot compel a [party to a contract] to exercise a contractual right 'to its own detriment for the purpose of benefitting another party to the contract' Finally, we will not use this covenant to achieve an outcome in harmony with the court's sense of justice but inconsistent with the express terms of the applicable contract." (citations omitted)). Thus, I would affirm the trial court's grant of summary judgment in favor of Saunders.