2019 UT App 198

THE UTAH COURT OF APPEALS

NETDICTATION LLC AND ANITA KARAN,

Appellants,

v.

ANGELA RICE AND NRT COMMERCIAL UTAH LLC,

Appellees.

Amended Opinion*

No. 20180334-CA

Filed December 5, 2019

Third District Court, Salt Lake Department

The Honorable Todd M. Shaughnessy

No. 120905273

Donald L. Dalton, Attorney for Appellants

Stephen W. Whiting and David N. Jardine, Attorneys

for Appellee Angela Rice

Joseph M. Stultz and Daniel C. Dansie, Attorneys for 

Appellee NRT Commercial Utah LLC

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

ORME, Judge:

¶1 This appeal arises from a poorly constructed provision 

of a promissory note that was attached to a larger, 

integrated contract. The first issue is a question of contract 

interpretation. The district court ruled in plaintiff Angela Rice’s 

favor, granting her partial summary judgment and reserving 

 

* This amended opinion replaces the opinion issued November 

29, 2019, NetDictation, LLC v. Rice, 2019 UT App 192. Footnote 8 

has been revised to correct a misstatement.
NetDictation, LLC v. Rice

20180334-CA 2 2019 UT App 198

for a bench trial the determination of what constituted “a 

reasonable time under the circumstances” for payment. 

Defendant NetDictation, LLC appeals the court’s grant of 

partial summary judgment, which we affirm. The second 

issue arises out of NetDictation’s cross-complaint against Rice’s 

business broker, defendant NRT Commercial Utah, LLC,

which does business as Coldwell Banker Commercial LLC 

(Coldwell Banker). NetDictation alleged that Coldwell Banker 

breached the limited duty it owed to NetDictation by 

imperfectly conveying NetDictation’s concerns about the 

provision of the promissory note at issue to NetDictation’s 

attorneys, who drafted it. The district court granted Coldwell 

Banker’s motion for summary judgment, which ruling we 

likewise affirm.

BACKGROUND1

¶2 On December 30, 2011, NetDictation and Anita Karan 

(collectively, NetDictation) entered into an Asset Purchase and 

Sale Agreement (the APSA) to purchase a medical transcription 

business, Accu-Write, Inc., from Rice.2 Coldwell Banker brokered 

the transaction, representing Rice. 

 

1. “In reviewing a district court’s grant of summary judgment, 

we view the facts and all reasonable inferences drawn therefrom 

in the light most favorable to the nonmoving party and recite the 

facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,

328 P.3d 880 (quotation simplified).

2. Anita Karan was not a party to the APSA but guaranteed 

NetDictation’s obligations and signed the contract on 

NetDictation’s behalf. 
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Rice’s Claim Against NetDictation

¶3 Section 1.3 of the APSA listed the purchase price as 

$98,000, of which NetDictation was to pay $5,000 as a deposit, 

$20,000 as a down payment, and the remaining $73,000 at 

closing. NetDictation was to deliver the $73,000 to Rice in the 

form of “two executed promissory notes,” one in the amount of 

$25,000 (the $25,000 Note) and the other in the amount of $48,000 

(the $48,000 Note). Both notes were attached as exhibits to the 

APSA. The APSA also contained an integration clause, which 

provided that the APSA (with its attached schedules and 

exhibits) “sets forth the entire understanding of the parties” and 

“supersedes all prior oral or written agreements, instruments

and understandings.” 

¶4 The $25,000 Note stated that it was to be paid in “[a] 

balloon payment . . . due and payable to [Rice] on or before April 

1, 2012.” The $48,000 Note, on the other hand, contained a more 

complex repayment structure. NetDictation was to make 

payment on the note in monthly installments over a 24-month 

period, the amount of which varied depending on Accu-Write’s 

post-sale income. The $48,000 Note provided the following 

method of calculating the monthly payment, hereinafter referred 

to as the Payment Provision:

FOR VALUE RECEIVED, NetDictation, LLC . . . , 

hereby irrevocably promises and agrees to pay to 

the order of [Rice] . . . the principal sum of Forty 

Eight Thousand Dollars ($48,000.00) . . . all in 

accordance with the terms and conditions set forth 

below.

 1. Monthly payments, in the amount of 

Thirty-Five Percent (35%) of the monthly income of 

[Accu-Write], . . . based on the following formula:
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20180334-CA 4 2019 UT App 198

 1.1. Fifty Thousand Dollars ($50,000.00) down 

payment divided by Twenty Four (24) months 

equals Two Thousand Eighty Three Dollars and 

Thirty Three Cents ($2,083.33) down payment 

adjustment. The average monthly income is Eleven 

Thousand Six Hundred Sixty Six Dollars 

($11,666.00) multiplied by Thirty Five Percent 

(35%) equals Four Thousand Eighty Three Dollars 

and Thirty One Cents ($4,083.31) minus Two 

Thousand Eight[y] Three Dollars and Thirty Three 

Cents ($2,083.33) down payment adjustment comes 

to One Thousand Nine Hundred Ninety Nine 

Dollars and Ninety Eight Cents ($1,999.98) per 

month for Twenty Four (24) Months. This payment

will be adjusted accordingly if the monthly income 

of [Accu-Write] increases or decreases.

¶5 The $48,000 Note further provided that in the event of 

NetDictation’s default, Rice “may at [her] sole option consider 

the entire unpaid principal balance and accrued but unpaid 

interest . . . at once . . . due and payable without notice,” and that 

“all amounts owing and past due hereunder, including without 

limitation principal (whether by acceleration or in due course), 

interest, late fees and other charges, shall, if permitted by

applicable law, bear interest at the rate of twelve percent (12%) 

per annum both before and after judgment.”

¶6 Following closing, Accu-Write did not maintain its past 

profitability. For that reason, up until the initiation of the current 

lawsuit, no payments came due on the $48,000 Note pursuant to 

the Payment Provision. Nevertheless, NetDictation made 

payments totaling $3,376.25 on the $48,000 Note in January, 

February, and March of 2012. 

¶7 By April 2012, the parties’ relationship had deteriorated

due to Accu-Write’s poor performance, and NetDictation ceased 

making payments on either note in June. Rice subsequently filed 
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suit in August, alleging that NetDictation still owed $4,000 on 

the $25,000 Note that had come due in April and that 

NetDictation had failed to pay the monthly installments on the 

$48,000 Note in April, May, June, and July.3

¶8 Rice and NetDictation filed cross-motions for summary 

judgment. The primary issue was whether NetDictation’s duty 

to pay the $48,000 obligation was contingent on Accu-Write’s 

profitability.4 Rice argued that because the APSA provided for a 

fixed purchase price of $98,000, the $48,000 Note also 

represented a fixed amount, of which only the installment 

payment amounts were variable based on profitability, not the 

ultimate liability on the note. And to the extent the full amount 

was not satisfied by the end of the note’s 24-month term, Rice 

argued, quoting Watson v. Hatch, 728 P.2d 989 (Utah 1986), that 

“the law implies that [the time of performance] is to be done 

within a reasonable time under the circumstances.” See id. at 990. 

NetDictation, on the other hand, contended that $50,000 of the 

$98,000 purchase price was fixed—consisting of the $5,000 

deposit, the $20,000 down payment, and the $25,000 Note—but 

that the balance reflected in the $48,000 Note, was “explicitly 

variable” under the terms of the Payment Provision. 

¶9 The district court granted Rice’s motion for summary 

judgment “in part.” The court stated that the APSA, 

 

3. Rice eventually conceded that payments on the $48,000 Note

had not yet come due based on Accu-Write’s failure to maintain 

its past profitability but argued that the note nonetheless came 

due in June 2012, on the theory of anticipatory repudiation.

4. The 24-month payment period contemplated by the Payment 

Provision had ended by the time the parties filed their summary 

judgment motions. Payment had never come due under the 

provision’s formula.
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20180334-CA 6 2019 UT App 198

“particularly Paragraph 1.3. and sub-paragraphs thereunder in 

conjunction with the Promissory Notes . . . reflected an absolute 

and fixed purchase amount.” Although noting that “the 

payment terms of the $48,000 Promissory Note are undoubtedly 

problematic,” and “it is difficult . . . to understand why they 

were drafted the way they were,” the court nevertheless 

concluded that the note “reflected $48,000 defined as a principal 

sum,” and “indicate[d] it was for a fixed amount” when read in 

conjunction with its other provisions—for example, those

providing that the note “is transferable and allows prepayment.” 

But because “[t]he $48,000 Promissory Note does not contain a 

payment schedule or balloon provision” in the event “the gross 

monthly income of [Accu-Write was] not sufficient to warrant a 

monthly payment during the 24 month period,” the court 

concluded that “no payments would have been due until a 

reasonable time after the end of that period.” The court 

accordingly granted Rice partial summary judgment, reserving 

for trial the determination of what constituted “a reasonable 

time under the circumstances” for the balance of the $48,000 

Note to become due.

¶10 Following a bench trial, the district court awarded Rice 

the principal sum due on the $48,000 Note, interest on that 

amount, a $2,400 late fee, interest on the late fee, and $1,433.65 in 

costs,5 totaling $76,224.49.6

 

5. Although the district court awarded costs to Rice, it denied her 

motion for attorney fees.

6. The district court did not award Rice any amount on the 

$25,000 Note. The court credited the $3,376.25 in premature 

payments on the $48,000 Note toward the $4,000 that remained 

owing on the $25,000 Note, and NetDictation tendered $854.54 

(representing the remaining $623.75 plus interest) to Rice 

(continued...)
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20180334-CA 7 2019 UT App 198

NetDictation’s Cross-claim Against Coldwell Banker

¶11 Approximately one month after the district court partially 

granted Rice’s motion for summary judgment, NetDictation filed 

a cross-complaint against Coldwell Banker,

7 alleging that 

Coldwell Banker had “breached its duty of due, professional 

care to” NetDictation. Specifically, Rice and NetDictation had 

agreed to “arrange to have an Attorney prepare closing 

documents to consummate the transaction.” To that end, 

Coldwell Banker arranged for a law firm (Law Firm)8 to 

 

(...continued)

sometime during the course of litigation. Because the record 

includes transcripts only of limited portions of the bench trial, it 

is unclear what the court determined to be a reasonable time for 

the $48,000 Note to come due, but that specific issue is not before 

us.

7. Rice had named Coldwell Banker as a defendant. Her claims 

against Coldwell Banker were conditioned on her interpretation 

of the $48,000 Note being rejected by the court, whereupon she 

intended to hold Coldwell Banker responsible for any loss. 

Following the court’s summary judgment ruling in her favor, 

Rice and Coldwell Banker stipulated to a dismissal of her claims 

against it.

8. NetDictation also asserted claims against Law Firm in its 

cross-complaint. Following a bench trial, the district court 

entered a judgment dismissing NetDictation’s claims against 

Law Firm, which decision NetDictation likewise appealed. But 

NetDictation and Law Firm settled soon after NetDictation filed 

its notice of appeal, and this court accordingly granted their 

stipulated motion to dismiss NetDictation’s appeal from the 

judgment in favor of Law Firm.
NetDictation, LLC v. Rice

20180334-CA 8 2019 UT App 198

represent NetDictation in the transaction and to draft the APSA

and promissory notes in accordance with the “Offer for Purchase 

and Sale of Assets” agreement (the Offer to Purchase), which

both parties had signed and which had the Payment Provision 

attached as an addendum. Although Coldwell Banker retained 

Law Firm to represent NetDictation in the transaction, Law Firm 

never directly communicated with NetDictation. Instead, 

Coldwell Banker apparently took it upon itself to act as an 

intermediary for all communication between Law Firm and 

NetDictation.

¶12 Law Firm drafted the closing documents and sent them to 

Coldwell Banker, who forwarded them to NetDictation for 

review. In response, referring to the Payment Provision of the 

$48,000 Note, NetDictation emailed Coldwell Banker raising the 

following concern:

The document makes no mention of the way the 

“earn out” will be paid. As it stands now it seems 

to indicate that I owe the entire money on the day 

of closing. To be honest . . . , I feel like I want to use 

my own attorney to draft this since I just 

completed a deal this summer. Thoughts? 

¶13 Instead of forwarding the email verbatim to Law Firm, 

Coldwell Banker informed Law Firm of NetDictation’s concerns 

in a separate email, on which it copied NetDictation, stating, 

“With reference to [the $48,000] Note will you include the 

guidelines for payment I sent to you in the [Offer to Purchase] as 

an exhibit? It outlines how payments will be calculated and 

paid.” Law Firm replied, but only to Coldwell Banker: “I believe 

I typed the provision almost verbatim into [the $48,000 Note].” 

Coldwell Banker then communicated to NetDictation that the 

Payment Provision, as it appeared in the addendum to the Offer 

to Purchase, had been incorporated into the $48,000 Note. 

Nonetheless, NetDictation notified Coldwell Banker a few days 
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20180334-CA 9 2019 UT App 198

later that it had forwarded the closing documents to another 

attorney for review. Although NetDictation later raised other 

concerns about the APSA draft, it did not raise before closing 

any further issues concerning the Payment Provision as it 

appeared in the $48,000 Note. 

¶14 Soon after filing its answer to NetDictation’s 

cross-complaint, Coldwell Banker moved the court for summary 

judgment. It argued that because it acted exclusively as Rice’s 

agent, it did not owe a fiduciary duty to NetDictation, much less 

the “duty to second guess the legal work product of [Law Firm] 

who had the exclusive duty to produce the closing documents 

that reflected the true terms of the subject transaction.” Instead, 

quoting Hermansen v. Tasulis, 2002 UT 52, 48 P.3d 235, Coldwell 

Banker stated that its “only dut[y] to NetDictation w[as] to be 

‘honest, ethical and competent,’” see id. ¶ 22, which it fulfilled 

“by providing the Offer [to Purchase] containing all terms of the 

subject transaction to [Law Firm] for use in drafting the 

[APSA].” Although NetDictation conceded that Coldwell Banker 

did not owe it a fiduciary duty, it argued “that Coldwell Banker 

failed to communicate to [Law Firm] exactly and precisely what 

deal was reached between the parties and/or NetDictation’s 

concerns with the documents prepared.” 

¶15 The district court granted Coldwell Banker’s motion for 

summary judgment. The court concluded that “[a]s a broker 

representing [Rice] in the transaction, Coldwell Banker (a 

non-attorney) had no duty to explain to [Law Firm] the meaning 

of the terms in the written agreement, or the broker’s subjective 

understanding of the deal reached between NetDictation and 

Rice” when it delivered to Law Firm the negotiated and signed 

Offer to Purchase containing the Payment Provision and 

integration clause. The court also ruled that Coldwell Banker did 

not breach any duty to be honest, ethical, and competent in its 

dealings with NetDictation when it summarized NetDictation’s 

concern about the Payment Provision instead of forwarding the 
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20180334-CA 10 2019 UT App 198

email verbatim to Law Firm. The court stated that “the most that 

can be said of Coldwell Banker’s summary of NetDictation’s 

e-mail is that it imperfectly communicated NetDictation’s 

concern; but this miscommunication, even if it rises to the level 

of a miscommunication, is not so dishonest and deliberately 

misleading that it can be said to violate the limited duty a broker 

owes to [a] party it does not represent.” Furthermore, “because 

NetDictation was copied on the email to [Law Firm], it had an 

opportunity to correct any misstatement or otherwise object to 

Coldwell Banker’s rephrasing of its question.”

¶16 The court accordingly dismissed NetDictation’s 

cross-claim against Coldwell Banker. NetDictation subsequently 

filed a motion for reconsideration, which the district court 

denied. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶17 NetDictation raises two issues on appeal. It first argues 

that the district court erred in granting summary judgment to 

Rice because the APSA did not unambiguously support Rice’s 

interpretation of the Payment Provision. It next contends that the 

district court erroneously granted summary judgment to 

Coldwell Banker because conflicting evidence warranted a trial. 

“We review a district court’s decision granting summary 

judgment for correctness, viewing the facts and all reasonable 

inferences drawn therefrom in the light most favorable to the 

nonmoving party.” Mind & Motion Utah Invs., LLC v. Celtic Bank 

Corp., 2016 UT 6, ¶ 15, 367 P.3d 994 (quotation simplified). 

“Summary judgment is appropriate when there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Id. (quotation simplified). As to

the first issue, “[t]he interpretation of a contract is a legal 

question, which we . . . review for correctness.” Id. And as to the 

second issue, because NetDictation does not assert that the 
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20180334-CA 11 2019 UT App 198

existence of undisputed material facts precluded summary 

judgment, “our review is limited to determining whether the 

district court correctly applied the summary judgment standard 

in light of the undisputed material facts.” Essential Botanical 

Farms, LC v. Kay, 2011 UT 71, ¶ 12, 270 P.3d 430 (quotation 

simplified). 

ANALYSIS

I. Interpretation of the APSA

¶18 “A motion for summary judgment may not be granted 

if . . . an ambiguity exists in the contract and there is a factual 

issue as to what the parties intended.” Peterson v. Sunrider Corp., 

2002 UT 43, ¶ 14, 48 P.3d 918 (quotation simplified). But “[i]f the 

language of the contract is unambiguous, the intention of the 

parties may be determined as a matter of law based on the 

language of the agreement.” Id. ¶ 18. 

¶19 A contract is not ambiguous “simply because one party 

seeks to endow [terms] with a different interpretation according 

to his or her own interests.” Mind & Motion Utah Invs., LLC v. 

Celtic Bank Corp., 2016 UT 6, ¶ 24, 367 P.3d 994 (quotation

simplified). Rather, “a contractual term or provision is 

ambiguous if it is capable of more than one reasonable 

interpretation because of uncertain meanings of terms, missing 

terms, or other facial deficiencies.” Glenn v. Reese, 2009 UT 80, 

¶ 10, 225 P.3d 185 (quotation simplified). Additionally, because 

“it is axiomatic that a contract should be interpreted so as to 

harmonize all of its provisions and all of its terms,” courts must 

first attempt to do so when determining whether a contract is 

facially ambiguous. Gillmor v. Macey, 2005 UT App 351, ¶ 19, 121 

P.3d 57 (quotation simplified). This involves “examin[ing] the 

entire contract and all of its parts in relation to each other and 
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20180334-CA 12 2019 UT App 198

giv[ing] a reasonable construction of the contract as a whole to 

determine the parties’ intent.” Id. (quotation simplified).

¶20 NetDictation contends that because section 1.3 of the 

APSA “apparently” provided a fixed and unconditional 

purchase price, it could not be harmonized with the “earn-out”9

language of the $48,000 Note. The district court therefore “had to 

imply an obligation for payment” of the $48,000 Note in the 

event the principal remained unpaid at the end of the 24-month 

period. But this, by the very nature of the missing term, “meant 

that the agreement was ambiguous.” “Otherwise,” NetDictation

argues, “there would have been no need for the trial court to 

imply a term for payment of the $48,000 obligation that did not 

exist,” and summary judgment was therefore improper. We 

disagree.

¶21 Although NetDictation correctly cites DCH Holdings, LLC 

v. Nielsen, 2009 UT App 269, 220 P.3d 178, for the proposition 

that “[a]mbiguity may be found when a contract is missing an 

essential term,” id. ¶ 10, we disagree with its contention that the 

district court “impl[ied] an obligation for payment” of the 

$48,000 Note beyond the 24-month period. Having reviewed the 

APSA and the $48,000 Note in their entirety, we conclude that 

the district court did not imply an obligation for payment 

because the plain language of the documents unambiguously 

reflects a fixed, unconditional purchase price of $98,000, which

necessarily includes payment in full of the $48,000 Note. In other 

 

9. NetDictation characterizes the Payment Provision as an 

earn-out, which “is a contractual provision stating that the seller 

of a business is to obtain additional compensation in the future if 

the business achieves certain financial goals, which are usually 

stated as a percentage of gross sales or earnings.” Sandra Lim, 

Earnout, Investopedia, https://www.investopedia.com/terms/e/

earnout.asp [https://perma.cc/YQV7-LNNC].
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20180334-CA 13 2019 UT App 198

words, the court did not imply a payment obligation where none 

otherwise existed. Rather, it implied a due date for a payment 

obligation where none had otherwise been provided.

¶22 NetDictation argues that the Payment Provision of the 

$48,000 Note conditions payment of the $48,000 obligation on 

Accu-Write’s performance within the 24-month period. But the 

significance NetDictation accords the Payment Provision directly 

conflicts with provisions of the APSA and $48,000 Note. Section 

1.3 of the APSA indicates that the parties intended the $98,000 

purchase price, which necessarily includes the $48,000 Note, to 

be fixed and unconditional. Section 1.3 of the APSA states, “In 

consideration for the transfer of [Accu-Write], at the Closing, 

[NetDictation] shall deliver to [Rice] the purchase price of 

$98,000.00,” of which NetDictation was to deliver $73,000 at 

closing in the form of “two executed promissory notes.” Section 

1.3 is entirely silent as to the purchase price itself being variable, 

as NetDictation’s interpretation of the Payment Provision would 

have it be.

¶23 Even more telling are certain provisions within the

$48,000 Note. The note states, “NetDictation . . . hereby 

irrevocably promises and agrees to pay to the order of [Rice] . . . 

the principal sum of Forty Eight Thousand Dollars ($48,000.00) 

(the Principal Sum), together with interest thereon (if any) and 

other fees in connection therewith.” The note then states that it is 

to be repaid “all in accordance with the terms and conditions set 

forth below.” In addition to the Payment Provision, the $48,000 

Note includes an acceleration clause that provides that in the 

event of NetDictation’s default, “the Holder may at its sole 

option consider the entire unpaid principal balance and accrued 

but unpaid interest hereunder at once . . . due and payable 

without notice.” 

¶24 The purchase price stated in section 1.3 of the APSA and 

the $48,000 Note’s reference to the $48,000 obligation as “the 
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20180334-CA 14 2019 UT App 198

Principal Sum,” along with the note’s acceleration clause, cannot 

be harmonized with NetDictation’s position on the Payment 

Provision. In addition to that position contradicting the $98,000 

purchase price provided in section 1.3, the $48,000 Note refers to 

the obligation as a “principal sum,” which NetDictation 

“irrevocably promise[d] and agree[d] to pay.” Such language, 

especially in the absence of any express indication of the $48,000 

Note’s variable nature anywhere else in the contract, strongly 

suggests the sums represented fixed, unconditional amounts.

Moreover, acceleration of the $48,000 Note upon NetDictation’s 

default would be impossible if the obligation were anything but 

a set, unconditional amount. NetDictation has not provided a

satisfactory explanation as to how the $48,000 “principal sum” 

could be accelerated if the effect of the Payment Provision was to 

condition not just the timing of payment but the ultimate 

liability for the note on Accu-Write’s future profitability.10 And 

 

10. NetDictation’s explanation is limited to a single sentence. 

After quoting the acceleration clause, NetDictation argues that 

“there could have been payments due during the 24-month term 

of the note, which would have constituted the ‘unpaid principal 

balance.’” In other words, NetDictation argues that the provision 

could provide for a scheme which, upon NetDictation’s default, 

would limit Rice’s, or any subsequent holder’s, demand for 

payment to only the past-due balance. In effect, NetDictation 

contends that the provision is not an acceleration clause. 

 We disagree with NetDictation’s interpretation. An 

acceleration clause is “[a] loan-agreement provision that requires 

the debtor to pay off the balance sooner than the due date if some 

specified event occurs, such as failure to pay an installment.” 

Acceleration Clause, Black’s Law Dictionary 14 (10th ed. 2014) 

(emphasis added). See also Acceleration, Black’s Law Dictionary 

14 (10th ed. 2014) (defining “acceleration” as “[t]he act or process 

of quickening or shortening the duration of something, such as 

(continued...)
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20180334-CA 15 2019 UT App 198

we cannot readily conceive of a way in which to harmonize the 

note’s acceleration clause with NetDictation’s interpretation of 

the Payment Provision. See Munford v. Lee Servicing Co., 2000 UT 

App 108, ¶ 18, 999 P.2d 23 (“Provisions which are apparently 

conflicting are to be reconciled and harmonized, if possible, by 

reasonable interpretation so that the entire agreement can be 

given effect.”) (quotation simplified).

¶25 But the Payment Provision can be harmonized with the 

APSA and the other provisions of the $48,000 Note, thereby 

avoiding a conclusion of ambiguity. See Gillmor v. Macey, 2005 

UT App 351, ¶ 19, 121 P.3d 57 (“Harmonizing conflicting or 

apparently ambiguous contract language before concluding that 

provisions are actually ambiguous is an important step in the 

hierarchy of rules for contract interpretation.”). Specifically, 

interpreting the $48,000 obligation to be for a fixed, 

unconditional sum with variable monthly payments based on 

Accu-Write’s income during the 24-month period avoids the 

problems that arise under NetDictation’s interpretation of the 

Payment Provision.

 

(...continued)

payments”). That is exactly what this clause requires. Further, 

section 7 of the $48,000 Note explicitly states that the parties 

intended the obligation to be subject to acceleration. It provides, 

with our emphasis, that in the event of NetDictation’s default, 

“all amounts owing and past due hereunder, including without 

limitation principal (whether by acceleration or in due course), 

interest, late fees and other charges, shall . . . bear interest at the 

rate of twelve percent (12%) per annum both before and after 

judgment.” In light of section 7 expressly contemplating possible 

acceleration of the $48,000 Note, we reject NetDictation’s 

suggestion that the relevant provision is not an acceleration 

clause.
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20180334-CA 16 2019 UT App 198

¶26 NetDictation contends that such an interpretation 

nonetheless compels the conclusion of ambiguity because the 

court still had “to imply a term for payment of the $48,000 

obligation that did not exist” if the obligation remained unpaid 

at the end of the 24-month term. See id. ¶ 18 (declining “to accept 

an interpretation of [an agreement] that creates new ambiguities 

and requires the crafting of new provisions”). But courts may, in 

“limited situations,” read essential missing terms into a contract 

when those terms “are necessarily involved in the contractual 

relationship such that it may be said that the parties must have 

intended them and failed to express them only because of sheer 

inadvertence or because they are too obvious to have needed 

expression.” New York Ave. LLC v. Harrison, 2016 UT App 240, 

¶ 31, 391 P.3d 268 (quotation simplified). And implying a 

reasonable time for performance when no time for performance 

is expressly stated is a familiar example of this precept.

¶27 “An implied reasonable time limit is as much a part of the 

agreement as those terms that are expressed,” and it has long 

been recognized “that if a contract fails to specify a time of 

performance the law implies that it shall be done within a 

reasonable time under the circumstances.” Coulter & Smith, Ltd. 

v. Russell, 966 P.2d 852, 858 (Utah 1998). For that reason, the 

failure of the parties to include a provision in the $48,000 Note 

addressing the time frame within which NetDictation was to 

satisfy the obligation that remained at the conclusion of the 

24-month period was not an essential term missing from the note 

and therefore did not create an ambiguity.11

 

11. To be sure, “when a contract specifically states the time for its 

performance, it is plain error to allow it to be performed within a 

reasonable time.” New York Ave. LLC v. Harrison, 2016 UT App 

240, ¶ 32, 391 P.3d 268 (quotation simplified). But this is not the 

situation before us. Although the $48,000 Note contemplated a 

(continued...)
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20180334-CA 17 2019 UT App 198

¶28 Accordingly, we affirm the district court’s grant of partial 

summary judgment to Rice.12

II. Duty to Be Honest, Ethical, and Competent

¶29 Although “not occupying a fiduciary relationship with 

prospective purchasers, a real estate agent[13] hired by the vendor 

 

(...continued)

24-month term for installment payments, for the reasons 

explained in ¶¶ 20–27 of this opinion, that provision was limited 

to prescribing the time within which the payments could be 

varied depending on Accu-Write’s monthly income. The 

24-month term did not represent the time within which the 

$48,000 obligation was to be satisfied, if at all, although it 

certainly would have been possible for the sum to be fully paid 

within that time had Accu-Write’s profitability warranted it.

12. Rice seeks attorney fees incurred on appeal. “A party entitled 

by contract or statute to attorney fees below and that prevails on 

appeal is entitled to fees reasonably incurred on appeal.” Cougar 

Canyon Loan, LLC v. Cypress Fund, LLC, 2019 UT App 47, ¶ 19, 

440 P.3d 884 (quotation simplified). Although Rice prevails on 

appeal, we deny her request on the ground that the district court 

declined to award her attorney fees below.

13. In Reperex, Inc. v. Coldwell Banker Commercial, 2018 UT 51, 428 

P.3d 1082, our Supreme Court recently expressed doubt as to 

whether business brokers, as was Coldwell Banker’s role in this 

transaction, share the same duty as real estate brokers because 

“[t]he two roles obviously differ in some respects.” Id. ¶ 37. But 

apart from concluding that “a business broker should be held at 

least to [the] standard” of not “misrepresent[ing] material 

information to a buyer,” the Court “le[ft] for another day the 

(continued...)
NetDictation, LLC v. Rice

20180334-CA 18 2019 UT App 198

is expected to be honest, ethical, and competent and is 

answerable at law for his or her statutory duty to the public.” 

Hermansen v. Tasulis, 2002 UT 52, ¶ 22, 48 P.3d 235 (quotation 

simplified). NetDictation contends that the district court erred in 

granting Coldwell Banker summary judgment because “there 

was sufficient evidence of Coldwell Banker’s ‘dishonesty’ and 

‘incompetence’ to send the cross claim to trial.” We address each 

theory in turn.

A. Dishonesty

¶30 NetDictation’s contention of dishonesty is almost wholly 

focused on Coldwell Banker’s “recharacteriz[ation]” of 

NetDictation’s email.14 Following its review of a draft of the 

 

(...continued)

question of the full extent of the standard of care owed by a 

business broker.” Id. ¶ 38. 

 Although our Supreme Court issued Reperex approximately 

one month before NetDictation filed the initial brief in this 

appeal, neither party argues that Coldwell Banker’s duty was 

anything other than to be honest, ethical, and competent in its 

dealings with NetDictation. Because neither party contends that 

the duty owed by business brokers differs in any way from that 

owed by real estate brokers, we apply that standard to this case 

without addressing the extent to which the two duties might 

actually differ, if at all.

14. NetDictation, referencing the deposition testimony of one of 

Coldwell Banker’s agents, suggests that Coldwell Banker’s 

alleged dishonesty was motivated by “an interest to protect its

commission, and a desire to avoid contact with attorneys who 

could ‘blow up the deal.’” The district court expressly rejected

NetDictation’s allegation, finding that it did not accurately 

reflect the agent’s deposition testimony. Although the agent 

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NetDictation, LLC v. Rice

20180334-CA 19 2019 UT App 198

APSA and attached promissory notes prepared by Law Firm, 

NetDictation emailed Coldwell Banker requesting that the 

Payment Provision, which had been included in the Offer to 

Purchase as an attachment, be included in the $48,000 Note:

The document makes no mention of the way the 

“earn out” will be paid. As it stands now it seems 

to indicate that I owe the entire money on the day 

of closing. 

Coldwell Banker replied that it would instruct Law Firm to 

include a provision reflecting the guidelines set forth in the 

attachment to the Offer to Purchase. Coldwell Banker also 

emailed Law Firm, copying NetDictation on the communication, 

requesting that Law Firm include the Payment Provision in the 

$48,000 Note:

With reference to [the $48,000] Note will you 

include the guidelines for payment I sent to you in 

the [Offer to Purchase] as an exhibit? It outlines 

how payments will be calculated and paid. 

Law Firm replied that it had included “the provision almost 

verbatim into [the $48,000 Note].” 

¶31 NetDictation argues that “by re-framing [its] question, 

Coldwell Banker kept [Law Firm] from looking at whether the 

 

(...continued)

acknowledged that “he is always concerned about the attorneys 

‘blowing up a deal,’” hence his usual practice of being “copied 

on emails of this nature,” the agent “denied that he had any 

motivation to ‘filter communications’ to protect his 

commission.” NetDictation does not argue that the existence of 

disputed material facts precluded the court’s summary 

judgment order. 
NetDictation, LLC v. Rice

20180334-CA 20 2019 UT App 198

[Payment Provision] language of the [$48,000] Note harmonized 

with Section 1.3 of the APSA.” NetDictation contends that by 

doing so, Coldwell Banker “secret[ed] known material defects.” 

See Hermansen, 2002 UT 52, ¶ 23 (“[W]hen real estate 

professionals undertake to secret known material defects, they 

breach their duty to be honest, ethical, and competent and are 

liable for their actions.”). Even assuming that the legal 

implications of the Payment Provisions amount to a “material 

defect,” it is unclear how NetDictation’s email would have

prompted Law Firm to ensure that the Payment Provision did 

not contradict section 1.3 any more than did Coldwell Banker’s 

email. NetDictation’s concern, as expressed in the email, appears 

to have been limited to ensuring that it remained clear that 

payment of the $48,000 obligation was not immediately due 

upon closing and made no mention of the obligation itself being 

contingent on Accu-Write’s post-sale earnings.15

¶32 And Coldwell Banker did no more than instruct Law Firm

to incorporate the exhibit attached to the Offer to Purchase into 

the $48,000 Note. Karan’s signature on the Offer to Purchase 

evidences NetDictation’s prior approval of the exhibit that 

would later become the Payment Provision. Coldwell Banker’s 

email did not direct Law Firm to alter the pre-approved 

provision in any way. To the contrary, Law Firm included “the 

provision almost verbatim into [the $48,000 Note].” 

¶33 Furthermore, even after Law Firm had included the 

Payment Provision in the body of the $48,000 Note, NetDictation 

engaged other attorneys to review the contract and did not 

raise any further concerns regarding the Payment Provision.

 

15. For this same reason, we reject NetDictation’s contention that 

Coldwell Banker handled the transaction incompetently when it 

summarized NetDictation’s email rather than forwarding it 

verbatim to Law Firm.
NetDictation, LLC v. Rice

20180334-CA 21 2019 UT App 198

If the Payment Provision’s failure to reflect NetDictation’s 

alleged intent to condition payment of the $48,000 Note on AccuWrite’s performance escaped the review of licensed attorneys, 

Coldwell Banker’s agent, a non-attorney, certainly cannot be 

expected to have understood the deficiency—a prerequisite of 

concealing it.

¶34 NetDictation’s assertion that Coldwell Banker “secret[ed] 

known material defects” is further undermined by Coldwell 

Banker’s copying of NetDictation on its email to Law Firm, 

thereby giving NetDictation an opportunity to clarify if Coldwell 

Banker had imperfectly relayed NetDictation’s concerns. 

Although NetDictation contends that it “did not recognize the 

recipients of the email as the attorneys engaged by Coldwell 

Banker,” the focus in determining whether Coldwell Banker was 

honest in its dealings with NetDictation is on Coldwell Banker’s 

subjective beliefs. Cf. Hermansen, 2002 UT 52, ¶ 22 (stating that a 

purchaser can recover from a real estate agent only when “the 

agent had both the duty to disclose and knowledge of the defects”) 

(emphasis added) (quotation otherwise simplified). NetDictation 

has not provided any evidence that the agent had reason to 

know that NetDictation would not recognize the purpose of the 

email based on its content and to whom it was addressed.16

 

16. NetDictation asserts that an agent of Coldwell Banker 

“admitted at trial that he knew NetDictation” mistakenly 

believed that Law Firm represented Coldwell Banker and not 

NetDictation. NetDictation does not cite the record in support of 

this assertion, and our review of the record has not revealed 

such an admission. Instead, following this assertion, 

NetDictation immediately pivots to the agent’s testimony that he 

“believe[d]” he notified NetDictation that he had engaged Law 

Firm to represent NetDictation, referring to the response as 

“some vague effort to claim” that he had done so. 

(continued...)
NetDictation, LLC v. Rice

20180334-CA 22 2019 UT App 198

¶35 For these reasons, although Coldwell Banker’s role as an

intermediary between NetDictation and Law Firm appears 

ill-advised, under the facts of this case Coldwell Banker did not 

breach its limited duty to be honest in its dealings with 

NetDictation, a non-client. 

B. Incompetence

¶36 In arguing that Coldwell Banker “incompetently handled 

the transaction for both parties,” NetDictation contends that 

Coldwell Banker violated a provision of the Utah Administrative 

Code, which provides:

An individual licensee may not . . . propose, 

prepare, or cause to be prepared a document, 

agreement, settlement statement, or other device 

that the licensee knows or should know does not 

reflect the true terms of the transaction. 

Utah Admin. Code R162-2f-401b(4)(a) (2011). Even assuming 

chapter 2f, entitled “Real Estate Licensing and Practice Rules,” 

 

(...continued)

 In the absence of such an admission in the record, we need 

not address whether NetDictation is entitled to rely on the 

agent’s subsequent trial testimony when challenging the district 

court’s grant of summary judgment to Coldwell Banker, which 

resulted in the dismissal of NetDictation’s claims against it. Cf. 

Normandeau v. Hanson Equip., Inc., 2009 UT 44, ¶ 15, 215 P.3d 152 

(“[W]hen new material facts emerge at trial that change the 

nature of the [denial of summary judgment], parties then have 

an obligation to reraise the issue at trial in order to preserve it for 

appeal.”).
NetDictation, LLC v. Rice

20180334-CA 23 2019 UT App 198

governs business brokers,17 see supra note 13, NetDictation’s 

argument is unavailing. 

¶37 NetDictation asserts that “[t]here is sufficient evidence 

that [Coldwell Banker’s agent] may have known the APSA did 

not reflect the true terms of the transaction,” but it does not 

discuss any such evidence. Although NetDictation, the 

non-moving party, is entitled to have “the facts and all 

reasonable inferences drawn therefrom” viewed “in the light 

most favorable” to its position, Ockey v. Club Jam, 2014 UT App 

126, ¶ 9, 328 P.3d 880 (quotation simplified), it is unreasonable to 

infer that Coldwell Banker’s agent, a non-attorney, knew that the 

Payment Provision did not comport with the interpretation 

NetDictation allegedly intended—especially when such 

deficiency escaped the detection of licensed attorneys and when 

the provision reflected almost verbatim the addendum 

NetDictation had reviewed, approved, and necessarily professed 

to understand by signing the Offer to Purchase. Coldwell Banker 

therefore did not violate rule R162-2f-401b(4)(a) of the Utah 

Administrative Code, if it even applies, and cannot be deemed to 

have been incompetent on that ground.

 

17. The sale of Accu-Write did not involve real estate but was 

limited to the transfer of “100% of the outstanding stock, all 

goodwill, trademarks and intellectual [property], trade names, 

telephone numbers, customer lists, transferable permits and 

licenses, signs, and other intangible assets” to NetDictation. Had 

the sale involved the transfer of any real property, it would 

strengthen NetDictation’s position that the above-quoted 

administrative rule applied to Coldwell Banker. See Reperex Inc. 

v. Child, Van Wagoner & Bradshaw, 2017 UT App 25, ¶ 40, 392 P.3d 

905 (“[A]t least where . . . the business being sold includes real 

property, the standard of care for business brokers is not lower 

than the standard of care for real estate brokers.”).
NetDictation, LLC v. Rice

20180334-CA 24 2019 UT App 198

CONCLUSION

¶38 Having reviewed the APSA and the $48,000 Note in their 

entirety, although noting that the contract is hardly a model of 

precision in legal drafting, we conclude that the district court did 

not err in granting partial summary judgment in Rice’s favor.

We also affirm the court’s subsequent grant of summary 

judgment to the business broker, Coldwell Banker, on the 

grounds that it was neither dishonest nor incompetent in its 

dealings with NetDictation, a non-client.