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Sean A. Monson (7261) Daniel K. Brough (10283) BENNETT TUELLER JOHNSON & DEERE Attorneys for Defendant Chad Haber
3165 East Millrock Drive, Suite 500 salt Lake ciry, utah 84121 Telephone: (801) 438-2000
IN THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY, STATE OF UTAH ***,F*'l.t
)
CHzuS DEARING
Plaintiff,
)
) ) ) ) ) ) )
vs.
CHAD HABER Defendant. {.
STATE OF SOUTH DAKOTA
AFFIDAVIT OF CHAD HABER
) )
,1. ,1.
*
Case No. 070906058
Judge Kate A. Toomey
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) :SS
)
I, CHAD HABER, having been duly swom upon oath, depose and state as follows: 1
.
I am over twenty-one (21) years of age, and I am competent to testifu to the
matters set forth in this Affidavit.
2.
I possess firsthand knowledge
3.
I am the Defendant in the above-captioned action.
4.
On November 29,2005, Plaintiff Chris Dearing ("Dearing"), the Plaintiff in the
as to the matters set
forth in this Affidavit.
above-captioned action, brought a document entitled "Agreement between Chad Haber
& Chris
n
e
Dearing" (the "Agreement") for me to execute. Prior to being presented with the Agreement by Dearing, I had not seen the Agreement, A true and correct copy of that Agreement is attached to this Affidavit as Exhibit
5.
1.
Dearing had previously loaned me $200,000.00 (the "Funds") for my use in
purchasing four real properly lots located in Hunicane, Utah (the "Lots").
6.
Dearing drafted the Agreement. I did not contribute in any way to the drafting
of
the Agreement, nor to the negotiation of its terms.
6.
At no time did Dearing and I agree, either orally or in writing, that I would
reimburse the Funds to her
if I did not obtain
and convey the Lots to Dearing on or prior to a
particular date. In fact, Dearing and I never explicitly defined a time period by which I would obtain the Lots, or when my obligation to reimburse the Funds would trigger.
7.
Furthermore, at no time did Dearing and I agree, either orally or in writing, as to
the interest rate that would govern any payment obligation on my part, nor did we agree as to the amount of costs, points, or fees for which I would reimburse her.
8.
At no time did Dearing and I agree, either orally or in writing, that the terms of
any promissory note by which she obtained any loan for the Funds would be incorporated into the Agreement.
9.
On September 8, 2006, I issued a check to Zions
the lender of the funds that Dearing used to pay for the lots in
2
Bank-which I understood to be
question-in the amount of
-
-
$2,225.37 (the "Check"). A true and correct copy of the Check is attached to this Affidavit as
Exhibit 2.
I0.
I issued the Check with the sole purpose of preserving goodwill between me and
Dearing, as well as our business relationship. I did not issue the check as an acknowledgement that reimbursement of any Funds was due under the Agreement, that a particular interest rate
applied to any reimbursement of the Funds, or that I was obligated to reimburse Dearing for any
particular amount in fees, costs, or points.
DATED tnis ZStayof August, 2007.
o o{*
SUBSCRIBED AND SWORN TO before me by Chad Haber this
4"'
day of August,
2007.
-2 D6m3 ootrAtD GArffrS.
ttEy
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tct
louh Dofdo
or1
7
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CERTIFICATE OF SERVICE I certiff that on
the6\
day of August, 2007, I caused that a true and correct copy of the
foregoing AFFIDAVIT OF CHAD HABER to be served via U.S. Mail, first class postage prepaid, upon the following:
Mark S. Swan, Esq. SWAN LAW FIRM, PLLC 2240 South 5370 West West Valley City, UT 84120 Att orney for Plaintiff Chris Dearing
T
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L'i A. Monson (7261) Daniel K. Brough (i0283) BENNETT TUELLER JOHNSON & DEERE Attorneys for Defendant Chad Haber 3165 East Millrock Drive, Suite 500 salt Lake city, utah 84121 Telephone: (801) 438-2000 Sean
IN THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COIJNTY, STATE OF UTAH ,F**,f**d<
) )
CHRIS DEARING
) ) ) )
Plaintiff, vs.
CHAD HABER Defendant. ,F** Pursuant to Utah Rule of
) ) ) ) )
MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Case No. 070906058
Judge Kate A. Toomey
* * {.
,1.
Civil Procedure 7(c)(1), Defendant Chad Haber ("Haber")
submits this Memorandum in Opposition to the Motion for Summary Judgment filed by Plaintiff Chris Dearing ("Dearing").
INTRODUCTION Dearing gave Haber $200,000.00 (the "Payment") for his use in purchasing four real property lots located in Hurricane, Utah (the "Lots"). According to Dearing, Haber was to either use those funds to purchase the Lots and then convey them to Dearing, or refund the money
if
he
could not purchase the Lots. After making the Payment, Dearing drafted and presented a written agreement (the "Agreement") to Haber for his signature. That Agreement, however, failed to
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ir
speciry how long Haber had to procure and convey the Lots to Dearing, stating only that he must do so "as soon as [the Lots] become available," and that he must repay the S200,000.00
"[i]f
[the] Lots do not come through." Moreover, although the Agreement specifies that some interest rate governs Haber's purported repayment obligation,
it does not speciS that rate. Finally,
although the Agreement specifies that Haber must repay fees, costs, and points, it does not specify the amount, nor does it provide a formula for calculating that amount.
Dearing now seeks summary judgment on her breach of contract claim against Haber. However, the Agreement's failure to specifr Haber's deadline for procuring and conveying the Lots to Dearing makes the Agreement unenforceable. Further, even
if the Agreement were valid,
it is impossible to determine whether Haber has breached the Agreement. The Agreement lacks several material terms and is therefore void for lack of mutual assent. Alternatively, even
if the
Agreement is enforceable, it is ambiguous, and issues of material fact exist regarding those ambiguous terms. For those reasons, this Court should deny Dearing's motion for summary
judgment. RESPONSE TO DEARING'S STATEMENT OF FACTS Pursuant to Utah Rule of Civil Procedure 7(c)(3)(B), Haber responds to Dearing's statement of facts as follows:
1.
Dearine Statement of Fact 1: In November,2005 Defendant Chad Haber
contacted Plaintiff with a proposal to invest money with him for the purposes of purchasing four
n
a
Hurricane, Utah lots to be identified by Defendant. Defendant promised to Plaintiff that he could acquire the lots for
Plaintifffor the sum of $200,000.00.
Response: Haber asserts that the facts alleged in paragraph
1
of Dearing's statement of
facts are immaterial to a determination of summary judgment in this case.
2.
Dearinq Statement of Fact 2: Defendant required Plaintiff to pay the sum of
$200,000.00 up front so that Defendant could acquire the Hurricane, Utah lots. (See Affrdavit
of
Christine Dearing, Paragraph 4). Resoonse: Haber asserts that the facts alleged in paragraph 2 of Dearing's statement
of
facts are immaterial to a determination of summary judgment in this case.
3.
Dearins Statement of tr'act 3: To document the transaction the Defendant and
Plaintiffentered into a Loan Agreement wherein Defendant agreed to repay the sum of $200,000.00
if
he could not deliver title to four Hurricane, Utah
Agreement is attached hereto as Exhibit
"A"
lots. A copy of the Loan
and incorporated herein by this reference. (See
Affidavit of Christine Dearing, Paragraph 5). Response: Haber disputes the allegations set forth in paragraph 3 of Dearing's statement of facts. The purported Agreement fails to specifr how much time Haber had to procure and deliver title to the Lots before any obligation to repay the $200,000.00 arose. See Aff. of Chad Haber (the "Haber Affidavit") fl 4, attached as Exhibit A hereto; see also Loan Agreement, a true and correct copy of which is attached to the Haber
Affidavit
as
Exhibit 1. Moreover, the parties
never agreed to any such time frame. See Exhibit A, Haber Affidavit fl
6. That is a material-
a
n
crucial-term, and its absence makes
indeed,
the Agreement unenforceable due to a lack
of
mutual assent. Even if the terms missing from the Agreement were not material, the Agreement is still ambiguous: not only does it fail to specifr a time period for repayment, but it also fails to
specify a specific interest rate governing the repayment and it omits the amount of fees, costs, and points for which Haber would be responsible, and even a formula for calculating those
important figures. See Exhibit A, Haber Agreement tlti 6_8 & Exhibit 1 (Agreement). And Haber and Dearing never agreed as to the time Haber had to procure and deliver the Lots, the interest rate that would govern .my repayment, or the fees, costs, and points for which Haber
would be responsible if he did not procrue and deliver the Lots. See Exhibit A, Haber Affidavit llfl
G8.
Thus, even if the Agreement is somehow enforceable, any repayment obligation on
Haber's part is unclear.
4. will
Dearins Statement of Fact 4: The Loan Agreement provides that Defendant
also pay Plaintiff interest, costs, fees, and points. (See
Affidavit of Christine Dearing,
Paragraph 6).
Response: Haber disputes the allegations set forth in paragraph 4 of Dearing's statement of facts. As noted in Haber's response to paragraph 3 of Dearing's statement of facts, no enforceable agreement exists between Haber and Dearing. As also noted in that response, although the Agreement mentions the repayment of interest at a specific rate, it fails to specify that rate. See Exhibit A, Haber Affidavit fl 7 & Exh.
I (Agreement). The Agreement similarly
fails to specify the amount of costs, fees, and points to be repaid, nor does it present a
a
r\
mechanism or formula for calculating that amount. See
id.
The Agreement is ambiguous as a
matter of law regarding the repayment of interest, fees, costs, and points.
5.
Dearins Statement of Fact 5: The purpose of the language in the Loan
Agreement for Defendant to pay interest, costs, fees and points was to compensate Plaintiff for the cost of borrowing the $200,000.00 from Zions First National Bank which was used to advance the $200,000.00 to Defendant. (See
Affidavit of Christine Dearing, Paragraph 7).
Response: Haber asserts that the facts alleged in paragraph 5 of Dearing's statement of facts are immaterial to a determination of summary judgment in this case. Further,
Dearing and Haber never agreed on any terms regarding interest, costs, fees, and points. See
Exhibit A, Haber Affidavit tf 7.
6.
Dearing Statement of Fact 6: Attached hereto as Exhibit "B" and incorporated
herein by this reference is a copy of the Promissory Note entered into by Plaintiff and Kyle L. Dearing, Plaintiff s husband, with Zions First National Bank in the sum of $202,775.00. This Promissory Note netted after the loan fees 5200,000.00. A copy of the check from Zions First
National Bank is attached hereto as Exhibit "C" and incorporated herein by this reference. (See
Affidavit of Christine Dearing, Paragraph 8). Response: Haber asserts that the facts alleged in paragraph 6 of Dearing's statement of facts are immaterial to a determination of summary judgment in this case.
t
n
7
.
Dearine Statement of Fact 7: The Promissory Note with Zions First National
Bank provides for a variable rate of interest beginning with an initial rute of 9Yo per annum and adjusting regularly thereafter. (See Affidavit of Christine Dearing, Paragraph 9).
Response: Haber asserts that the facts alleged in paragraph 7 of Dearing's statement
of
facts are immaterial to a determination of summary judgment in this case.
8.
Dearinq Statement of Fact 8: Defendant acknowledged that the Zions
obligation was the basis of the interest, fees and costs as Defendant made a payment directly to Zions Bank on this loan on the Zions Bank Promissory Note September 8, 2006. Proof of this payment is attached hereto as Exhibit
"D"
and incorporated herein by this reference. (See
Affrdavit of Christine Dearing, Paragraph l0). Response: Haber disputes the atlegations set forth in paragraph 8 of Dearing's statement of facts. Haber did issue a check to Zions Bank ("Zions") on September 8,2006, in the amount of $2,225.37 (the "september 8 Check"). A true and correct copy of the September 8 Check is attached to the Haber
Affidavit
as
Exhibit 2. However, Haber did not issue the September
8
Check as an acknowledgment that the promissory note between Dearing, her husband, and Zions (the "Note") determined the amount of interest, fees, costs, and point for which Haber would be responsible under the Agreement if he did not procure and deliver the Lots. Rather, Haber issued the September 8 Check to Zions for the sole purpose of preserving goodwill between him and Dearing, as well as their business relationship. See Exhibit A, Haber Affrdavit'!f 10. Indeed, although the Note specifies a monthly payment of $2,072.14, the September 8 Check was in the
n
,1
amount of $2,225.37. See Note, a true and correct copy of which is attached hereto as Exhibit B.
Clearly, if Haber had intended to acknowledge that the Note governed any repayment obligation on his part, he would have issued the September 8 Check in the monthly amount specified in the
Note.
9.
Dearins Statement of Fact 9: Defendant has failed and refused to turn over title
to the four Hurricane building lots and has failed and refused to repay the $200,000.00 under the terms of the loan agreement. (See Affidavit of Christine Dearing, Paragraph 11).
Response: Haber disputes the allegations set forth in paragraph 9 of Dearing's statement of facts. As explained in Haber's response to paragraph 3 of Dearing's statement of facts, no enforceable agreement exists between Haber and Dearing. Alternatively, as fruther explained in that response, the Agreement is ambiguous with respect to Haber's time for performance, the interest rate governing repayment, and the amount of fees, costs, and points for which Haber is
responsible. See Exhibit A, Haber Affidavit !f 4 & Exh.
10.
I (Agreement).
Dearins Statement of Fact 10: There is currently due and owing under the loan
agreement between Plaintiff and Defendant the principal sum of $200,000.00 as of November
29,2005, plus accrued interest on the principal balance thereafter in accordance with the variable rate of interest as charged by Zions Bank on the Zions Bank Promissory
Note. (See Affidavit of
Christine Dearing, Paragraph 12). Response: Haber disputes the allegations set forth in paragraph 10 of Dearing's statement of facts. As noted in Haber's response to paragraph 3 of Dearing's statement of facts,
r\
t1
no enforceable agreement exists between Haber and Dearing. Alternatively, as frrrther explained
in that response, the Agreement is ambiguous with respect to Haber's time for performance, the interest rate governing repayment, and the amount of fees, costs, and points for which Haber is
responsible. See Exhibit A, Haber Affrdavit fl 4 & Exh. 1 (Agreement). Haber's obligation to repay the $200,000.00,
if
any, is undefined by the Agreement.
STATEMENT OF ADDITIONAL MATERIAL FACTS
1.
Dearing drafted the Agreement without any input from Haber. Haber had not
even seen the Agreement prior to the time that Dearing presented it to him. See Exhibit A, Haber
Affidavit tTtl4, 6.
ANALYSIS Summary judgment should only be granted
"if
the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the afftdavits,
if
any, show that there is no
genuine issue as to any material fact and that the moving parry is entitled to matter of
law."
See Utah R.
a
judgment as a
Civ. P. 56(c); Davis v. Cent. Utah Counseling Ctr.,2006UT 52,
n30,147 P.3d 390. It is well established that "[s]ummary judgment procedure is generally considered a drastic remedy, requiring strict compliance with the rule authorizing
v. Dewsnup ,851 P.2d 1178, 1181 (Utah 1993). With respect to issues of fact,
it."
See
"[i]t only
Timm
takes
n
.!
a
one sworn statement under oath to dispute the averments on the other side of the controversy and create an issue of
fact." Holbrook Co. v. Adams, 542 P.2d l9l,
193 (Utah 1975).
The Agreement is the crux of Dearing's motion for summary judgment. In its entirety,
it
provides as follows:
I Chad Haber agree to give Cluis Dearing 4 Hurricane building pads as soon as they become available. This is in exchange for $200,000.00 cash received via check on lll29/05.
If lots do not come through parties agree to exchange other property lots or Chad will reimburse Chris the full loan amount plus associated costs, fees, points & interest. See
Exhibit A, Haber Affidavit tl4 & Exhibit I (Agreement). The Agreement suffers from at
least two fatal flaws that preclude summary judgment. First, the Agreement lacks a material
term-specifically, it fails to define the time frame within which Haber must procure and convey the interest Lots to Dearing. The absence of that material term demonstrates a lack of mutual assent between Haber and Dearing and makes the Agreement unenforceable. Second, in the
alternative, even if the Agreement is enforceable, the Agreement is ambiguous and material issues of fact exist as to the parties' intentions with respect to the Agreement. Those two flaws are brought into sharper
relief by the fact that it was Dearing that drafted the Agreement without
any input from Haber. See id.
11114,
6. Thus, any ambiguity in the Agreement must
against Haber. See Ellsworth v. Am. Arbitration Ass'n,2006UT 77,
'lT
be construed
17, 148 P.3d 983 (noting
that "[a]ny ambiguity in a contract is to be construed against the drafter" of the contract).
n
I.
q
SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THE AGREEMENT IS UNENFORCEABLE AND VOID FOR LACK OF MUTUAL ASSENT. Dearing's motion for summary judgment turns on the Agreement's enforceability. In
tum, the Agreement's enforceability turns on whether it includes all necessary material terms. Although "a contract may be enforced even though some contract terms may be missing or left to be agreed upon . . .
if the essential terms are
so uncertain that there is no basis
for deciding
whether the agreement has been kept or broken. there is no contract." See Neilsen v. Gold's
Gym,2003 UT 37,n12,78 P.3d 600 (emphasis added) (intemal quotation marks omitted).
A
lack of definite material terms in a contract means that the contract is not the product of mutual assent between the parties and therefore unenforceable. See Sachs v. Lesser,2007 UT '11
App 169,
18, 163 P.3d 662 (noting that "[a] binding contract can exist only where there has been mutual
assent by the parties," and that a contract is enforceable "only set forth
ifthe obligations ofthe parties
are
with sufficient definiteness that it can be performed" (internal quotation marks
omitted)). To determine whether missing or vague contract terms are material, the Court must examine "the entire agreement and the circumstances under which the agreement was entered
into."
See Neilsen, 2003
UT
37,n8
(intemal quotation marks omitted).
The closest analogue to the Agreement--or at least Dearing's recitation of the purported terms of the Agreement-is a broker's agreement: Dearing claims that she gave Haber $200,000.00 for Haber's use in purchasing the Lots, and upon purchasing the Lots, Haber would convey them to Dearing or refund the $200,000.00. The Utah Court of Appeals has noted that "a
l0
n
description of the perfonnance required of the . . . broker" is a material term of a broker's
agreement. See Sachs, 2007 UT App 169, !f 19. Here, the Agreement does not define the performance required of Haber.
All the Agreement
does is require Haber to purchase the Lots
"as soon as they become available." See Exhibit A, Haber Affidavit fl 4
& Exh. I (Agreement).
Any obligation on Haber's part to repay the S200,000.00 is triggered only if the "lots do not come through." See
id.
There is no definiteness whatsoever to any of Haber's obligations under
the Agreement. Indeed, pursuant to the Agreement, Haber may never have to perform those
obligations at
all. And
there was no oral agreement between Haber and Dearing regarding any
deadline by which Haber must procure and convey the Lots, or reimburse the $200,000.00. See id.
tl6.
Essentially, the only rule governing Haber's performance is that he must perform when
is possible to do
it
so. It is impossible to determine whether Haber has breached the Agreement.
The Agreement lacks a material term and is therefore void for lack of mutuality. See Neilsen, 2003
uT 37,nD. Dearing relies on the Utah Court of Appeals' decision in The Cantamar.
L.L.C. v.
Champagne,2006 UT App 321,142 P.3d 140 (Utah Ct. App. 2006), to argue that when a contract fails to specifu a time for performance, courts impute a requirement that performance must be completed within a reasonable time. In so arguing, Dearing misreads Cantamar. There, the Court held that "the law
will require payment to be made within a reasonable time" after
nonoccrurence of a specified event, but only
if "the trial court determines that there was n!
condition precedent and that the pa(ies intended that . . . repayment of the Note would be
l1
-1
,A
absolute and fixed upon" the occurrence ofthe specified event "as merely a conven
repaymenl." See id.'!f 17 (emphasis added). Put differently, a requirement that bonowed funds must be repaid within a reasonable time after nonoccurrence of a specified event is imputed into an otherwise silent contract only
if
the bonowed ftrnds could conceivably be repaid at any time
or, in other words, if the specified event was not a condition precedent to the obligation arising under the contract. Conversely,
if
an obligation to repay depends upon a legitimate condition
precedent, the nonoccurrence of that condition precedent excuses performance. See Cantamar,
2006 UT App 321, fl 16. Here, Haber plainly was not free to repay the $200,000.00 at any time he chose. It is undisputed that Dearing gave Haber the $200,000.00 explicitly for his use in acquiring the Lots. See
Exhibit A, Haber Affidavit ![ 5. Had Haber immediately repaid that amount, the entire
purpose of the Payment would have been frustrated. The event specified in the namely, that repayment must occur
"[i]f
Agreement-
[the] lots do not come throug["-1tr74s clearly a
condition precedent to any obligation arising for Haber to retum the $200,000.00. The Agreement specified----or at least attempted to specify-a time for repayment. See id. fl 4
&
Exhibit I (Agreement) (noting that repayment would occur "[i]f lots do not come through"). The condition precedent contained in the Agreement-that the $200,000.00 be repaid if the not come
through"-is
so vague that
"[]ots
do
it is impossible to determine whether it has been satisfied,
or the Agreement breached. Thus, rather than impute a reasonableness requirement, the Court should hold the Agreement void for lack of mutuality. See E.D. Lacey Mills v. Keith, 359
t2
41
rq
S.E.2d 148,754 (Ga. Ct. App. 1987) (concluding that a condition precedent that party would sell stock at a given price "once plaintiffbecame profitable" created "a condition precedent which is so vague and indefinite the contract is unenforceable").
In sum, the Agreement lacks a material term: neither the Agreement nor the parties specified any deadline by which Haber must procure and convey the Lots to Dearing. Without such a term,
it is impossible to tell whether Haber has breached the Agreement. That material
term demonstrates a lack of mutual assent between Haber and Dearing; the parties' intentions are "impenetrable," and the Agreement is unenforceable.
See
Neilsen,2003 UT
37 ,
fl 12 (noting that
if the intentions of parties to a contract are "impenetrable," the contract is unenforceable). Dearing is therefore not entitled to judgment as a matter of law, and her summary judgment motion should be denied.
IL
SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THE AGREEMENT IS AMBIGUOUS AND ISSUES OF MATERIAL FACT REGARDING ITS MEANING EXIST. Even
if
the terms missing from the Agreement are not material, however, Dearing
cannot prevail on summary judgment because the Agreement is ambiguous and issues
still
of
material fact regarding the Agreement's meaning exist.l See WebBank v. Am. Gen. Annuity Serv. Com., 2OOZUT
88,n22,54 P.3d 1139 (noting that
I
a
"motion for summary judgment may
The difference between a contract that is unenforceable because it lacks material terms and a contract that is merely ambiguous is the materiality of its missing or vague terms. See Fairbourn Commercial.Inc. v. Am. Housing Partners. Inc.2004 UT 54,11 10,94 P.3d 292 (noting that a contract may be facially ambiguous due to "missing terms"). 13
F
not be granted
if
,r1
a legal conclusion is reached that an ambiguity exists in the contract and there is
a factual issue as to what the parties
intended"). Leaving aside the issue of the materiality of its
missing terms, the Agreement is indisputably ambiguous. It is well established that
*[a] contract
provision is ambiguous if it is capable of more than one reasonable interpretation because
of
uncertain meanings of terms, missinq terms, or other facial deficiencies." See Fairbourn,2004 TJT 54,!f
l0 (internal quotation marks omitted). It is undisputed that the Agreement lacks
a
provision delineating Haber's deadline for procuring and conveying the Lots to Dearing. It is also undisputed that although the Agreement states that some particular interest rate should
govern Haber's obligation, it does not say what that rate
is. Moreover, it is undisputed that
although the Agreement states that Haber would be obligated for fees, costs, and points in the event that he cannot procure the Lots, it does not specify an amount. Those missing terms are a
facial deficiency that, leaving aside their materiality, render the Agreement ambiguous as a matter of
law.
See
id.; see also Winegar v. Froerer Corp.. 813 P.2104, 108 (Utah 1991)
("Whether ambiguity exists in a contract is a question of law."). Issues of material fact exist regarding the parties' intentions with respect to those
ambiguous points. First, Dearing concedes that she and Haber never agreed upon a deadline by
which he must procure and convey the lots to Dearing. Instead, she argues that a reasonableness requirement should be read into the contract. As demonstrated above, however, no such requirement can be imputed. In any event, Haber has presented evidence that the parties did not
14
,t\
rq
agree on how much time Haber would have to procure and convey the Lots, whether a
"reasonable" time or
not.
See
Exhibit A, Haber Affrdavit tf 6.
Second, Dearing contends that the interest rate governing Haber's repayment is either the 9%o rate
specified in the Note or, if the Agreement indeed specifies no rate, the l|Yo rate
specified in Utah Code section 15-1-1(2). See Utah Code Ann. $
15-l-l(2) ("Unless parties to a
lawful contract specifr a different rate of interest, the legal rate of interest for the loan or forbearance of any money, goods, or chose in action shall be l0o/o per annum."). In contrast, Haber has presented evidence that he and Dearing never reached any agreement regarding the
governing interest rate. See Exhibit A, Haber Affidavit fl 7. Moreover, contrary to Dearing's contention that Haber's issuance of the September 8 Check demonstrates his acknowledgment that the terms of the Note govem his repayment obligation, Haber has presented evidence that he issued the September 8 Check to preserve goodwill between him and Dearing as well as their business relationship, not to acquiesce in the terms of the Note, which was between Dearing, her
husband, and Zions. See id. !f 10. The fact that the September 8 Check was for $2,225 .37 ,
wllle
the monthly payment required under the Note is $2,072.14, further demonstrates that Haber did
not intend the September 8 Check as an acknowledgement and acceptance of the Note's terms.
If he had intended to acquiesce in the Note's terms, he would have conformed the September
8
Check to the Note's specified monthly payment amount. Compare Exhibit A, Haber Affidavit !] 9
& Exhibit 2 (September 8 Check) with Exhibit B, Note. Issues of material fact as to the
applicable interest rate therefore exists, precluding summary judgment.
l5
t
A
Finally, Dearing does not even attempt to present evidence demonstrating the amount of fees, costs, and points that Haber purportedly must pay, nor does she attempt to present any
evidence demonstrating an agreed-upon formula for calculating those expenditures. In short, even
if the Agreement is not void for lack of mutual assent, it is ambituous. Because the
Agreement is ambiguous, and issues of material fact exist regarding its ambiguous points,
making summary judgment inappropriate.
CONCLUSION The Agreement Dearing seeks to enforce does not specify how much time Haber had to procure and convey the Lots to Dearing. Without that material term, it is impossible to tell whether Haber has breached the Agreement, and the Agreement is therefore void for lack
of
mutual assent. Alternatively, even if the Agreement's many missing terms are not material, those material terms render the Agreement ambiguous. Because issues of material fact regarding those ambiguous terms exist, summary judgment is inappropriate. Either way, this Court should
deny Dearing's motion for summary judgment'
DATED this
6t
day of August, 2007.
BENNETT TUELLER JOHNSON & DEERE
Attorneys for Defendant Chad Haber
16
