2018 UT App 40

THE UTAH COURT OF APPEALS

IDRIVE LOGISTICS LLC,

Appellee,

v.

INTEGRACORE LLC,

Appellant.

Amended Opinion1

No. 20150857-CA

Filed March 15, 2018

Fourth District Court, Provo Department

The Honorable Fred D. Howard

No. 130400386

Jeffery S. Williams, Edwin C. Barnes, Aaron D. 

Lebenta, and Bryan L. Quick, Attorneys 

for Appellant

David R. Parkinson, Christopher B. Sullivan, and 

Ronald F. Price, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Amended Opinion, in 

which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

concurred.

MORTENSEN, Judge:

¶1 iDrive Logistics LLC contracted with IntegraCore LLC to

provide IntegraCore with services designed to optimize its 

 

1. This Amended Opinion replaces the Opinion in Case No. 

20150857-CA issued on December 7, 2017. Paragraphs 69 and 70 

have been revised to specifically address issues IntegraCore 

raised in a petition for rehearing, and we hereby grant the 

petition to that limited extent. See Utah R. App. P. 35(j). The 

petition for rehearing is denied in all other respects.
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shipping and transportation costs. iDrive sued IntegraCore for 

breach of the agreement and IntegraCore counterclaimed. Both 

iDrive and IntegraCore alleged breach of contract and breach of 

the covenant of good faith and fair dealing. On competing 

motions for partial summary judgment, the district court 

concluded that iDrive performed under the contract and 

IntegraCore did not. Accordingly, the court granted summary 

judgment in favor of iDrive and denied IntegraCore’s motion for 

summary judgment. IntegraCore, on interlocutory appeal, 

challenges those decisions. We affirm in part and reverse in part.

BACKGROUND

¶2 This saga of business contractual dysfunction began when 

iDrive and IntegraCore entered into a 2009 agreement. Soon 

thereafter, each claimed the other had breached the agreement 

and the impasse was resolved by way of a new agreement in 

2010. Another dispute arose shortly thereafter that was resolved 

by yet a third agreement in 2011 (the Agreement)—the subject of 

this interlocutory appeal. Once again each side claims breach 

and so the complicated history of the Agreement and the parties’ 

attempts to operate under the Agreement must be understood.

The Parties

¶3 IntegraCore is a logistics company that provides supply 

chain management, warehousing, packaging, and distribution 

services to its clients. iDrive is a consulting firm that uses its 

industry expertise to help reduce its clients’ shipping costs.

The Lawsuit

¶4 iDrive filed this action in March 2013, alleging, among 

other things, (1) “IntegraCore failed to flow all significant 

logistics decisions through iDrive”; (2) “IntegraCore failed to 

timely provide iDrive with information regarding changes in its 

arrangements with Carriers”; (3) “IntegraCore failed to 
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20150857-CA 3 2018 UT App 40

compensate iDrive for changes in its arrangements with Carriers 

as required by the terms of [the Agreement]”; and (4) 

“IntegraCore diverted USPS shipments that were required to be 

made on the iDrive negotiated USPS contract, and instead 

secretly and without iDrive’s knowledge or consent made those 

shipments using a different USPS contract rate.”

¶5 IntegraCore filed an answer and counterclaim in May 

2013, raising claims of breach of contract and breach of the 

implied covenant of good faith and fair dealing based on 

“iDrive’s failure to fulfill its contractual obligations as Vice 

President . . . of Logistics for IntegraCore and to provide pricing 

optimization services for IntegraCore.”

The Agreement

¶6 Even though the parties had experienced significant 

difficulties, or perhaps because of them, the Agreement provides

for substantial entanglement between the two entities. Of note is 

a requirement in the Agreement that iDrive’s president, or 

another mutually agreed upon person, be appointed as vice 

president of logistics at IntegraCore. The obligations for iDrive’s 

designee as the vice president of logistics were to spend two

days in IntegraCore’s operations learning logistics practices; help 

recruit a director of logistics; provide recommendations for 

logistics changes; work directly with carriers regarding carrier 

agreements, services, and changes; conduct two additional visits 

over the next two quarters after the Agreement was executed;

and monitor transportation cost trends.

¶7 The Agreement further outlines the “pricing optimization 

services” that iDrive contracted to provide to IntegraCore, 

referred to in the Agreement as CUSTOMER:

As VP of logistics, iDrive will also manage the 

contract negotiation/optimization process with 

Carrier(s), as well as the contract maintenance 
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process, on CUSTOMER’S behalf. This process 

includes collecting and analyzing CUSTOMER’S 

current parcel shipping data, pricing and Carrier 

contracts; establishing negotiation parameters with 

the CUSTOMER; issuing Request For Proposals 

(RFP) to the Carriers; collecting and analyzing the 

Carriers’ responses to the RFP; negotiating pricing, 

terms and conditions with the Carriers; presenting 

analysis on Carrier proposals to the CUSTOMER. 

Final selection of a Carrier(s) is the CUSTOMER’S 

decision.

Although the final selection of carriers rests with IntegraCore, 

the Agreement also provides that “[a]ll significant logistics 

decisions will flow through iDRIVE for review.”

¶8 The Agreement also contains a compensation provision, 

which includes when and how iDrive’s compensation was to be

calculated and paid:

iDRIVE shall receive a retainer of two thousand 

one hundred and eighty-five dollars ($2,185) per 

month for seven (7) months beginning February 1, 

2011. iDRIVE shall receive thirty-eight percent 

(38%) of savings that the CUSTOMER derives from 

iDRIVE’S optimization service. All improvements 

made to any of CUSTOMER’s contract(s) with 

Carrier(s) between the signature date on this 

Agreement and the end of the Agreement term are 

considered to be the result of iDRIVE’S 

optimization service. For the purposes of 

calculating savings from iDRIVE’S optimization 

efforts with the Carrier(s), iDRIVE and 

CUSTOMER agree that CUSTOMER’S current 

rates, incentives and terms will be used as the 

benchmark. CUSTOMER’S benchmark data will be 

used as the basis for calculating savings 
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attributable to iDRIVE’S Pricing Optimization 

service.

¶9 Compensation is also addressed in two other sections of 

the Agreement—the “General” section and the “Agreement 

Term” section. The General section states,

Savings attributed to iDRIVE’S contract negotiation 

with the carriers will be determined by comparing 

incentives currently being offered to CUSTOMER 

under the contract(s) from the Carrier(s) in effect 

on the date of this Agreement, less the new 

incentives achieved from the Carrier(s) after the 

date hereof and will be calculated based on 

CUSTOMER’S actual shipping data.

The Agreement Term section states, “Any new Carrier 

agreement signed by CUSTOMER during a period of 3 years 

after the execution date of this agreement shall be deemed to be 

based on iDRIVE’s optimization efforts, whether negotiated 

directly with the Carrier(s) by iDRIVE, CUSTOMER or any other 

party[.]”2

¶10 The Agreement further provides that “iDrive operates as 

an independent contractor and agent, not as an employee of” 

IntegraCore. The term of the Agreement is for three years. The 

Agreement defines the term “carriers” as including United 

Parcel Service (UPS), Federal Express (FedEx), United States 

Postal Service (USPS), DHL International (DHL), and “any other 

identified local, regional, national, or international carriers.”

 

2. The compensation provision, “General” provision, and 

“Agreement Term” provision are worded differently but are 

materially identical; each section provides that new carrier 

agreements signed after the execution of the Agreement were to 

be used to calculate iDrive’s commissions.
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¶11 The Agreement also contains an integration clause and an 

exculpatory clause. The integration clause provides:

This Agreement, including the Attachments hereto 

and iDRIVE policies referenced herein, constitutes 

the entire Agreement between iDRIVE and 

CUSTOMER concerning the subject hereof and 

supersedes all prior and contemporaneous 

Agreements between the parties, whether written 

or oral. This Agreement may not be waived, 

repealed, altered or amended in whole or in part 

except by an instrument in writing executed by 

authorized representatives of each of the parties.

The exculpatory clause provides, in part:

Notwithstanding anything else in this Agreement 

or otherwise, iDRIVE will not be liable with respect 

to any subject matter of this Agreement under any 

contract, negligence, strict liability or other legal or 

equitable theory (I) for any amounts or (II) for any 

punitive, special, incidental or consequential 

damages or lost data or (III) for costs of 

procurement of substitute goods, technology or 

services or (IV) for loss or corruption of data or 

interruption of use.

The History of Performance/Non-performance

¶12 IntegraCore appointed Stephen Chase (iDrive President)

as IntegraCore’s vice president of logistics. In January 2011, 

Shaun Rothwell (iDrive CEO), sent Ted Broman (IntegraCore 

CEO) a resume for Thad Haderlie (Director of Logistics), whom 

IntegraCore then hired as its director of logistics.

¶13 iDrive President spent two days in meetings at 

IntegraCore’s office in February 2011. Included in those various 
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meetings were meetings between iDrive President, Director of 

Logistics, and representatives from UPS and FedEx. Despite the 

Agreement’s requirement that iDrive President make at least 

two additional visits, he did not visit IntegraCore’s office again 

after the February 2011 meetings. Also in February 2011, iDrive 

sent a memorandum to IntegraCore analyzing IntegraCore’s 

agreements with UPS and FedEx and outlining strategies for 

improving IntegraCore’s contracts with these carriers.

¶14 Between February 2011 and May 2011, iDrive President

communicated with a representative from FedEx and a 

representative from UPS on multiple occasions. During these 

communications, iDrive President discussed the respective 

carriers’ contracts with IntegraCore. The FedEx representative 

indicated to iDrive President that IntegraCore’s shipping 

volumes with FedEx did not merit a change to IntegraCore’s 

agreement with FedEx.

¶15 In May 2011, iDrive President emailed a memorandum to 

the UPS representative requesting price adjustments and

requesting that UPS provide a proposal to change surcharges 

and discounts offered to IntegraCore. Whether this request 

constitutes a Request for Proposal (RFP), which the Agreement 

required iDrive to submit as part of its pricing optimization 

services, is disputed. The UPS representative testified that she 

interpreted the email as requesting “incentive changes” rather 

than an RFP because the request lacked the formality normally 

present in an RFP.3 The UPS representative acknowledged that 

the memorandum indeed requested improvements on UPS 

pricing for IntegraCore and specifically requested a proposal in 

response. In June 2011, the UPS representative sent an email to 

iDrive President informing him that “based upon the 

 

3. In contrast, the FedEx representative testified generally about 

RFPs, saying that an RFP can be very simple and “can come in 

the form of any mode of communication.”
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characteristics of [IntegraCore’s] business, . . . [UPS] would not 

be making any changes to their current agreement.”

¶16 Around the same time, Director of Logistics requested

that iDrive CEO, not iDrive President, be Director of Logistics’s 

point of contact between himself and iDrive. As a result, iDrive 

CEO had several meetings with Director of Logistics, some of 

which took place at IntegraCore.4 Accordingly, iDrive stepped 

back to allow Director of Logistics to “run point” on those 

negotiations.

¶17 In July 2011, after Director of Logistics missed a regularly 

scheduled phone call with iDrive, iDrive President asked 

Director of Logistics for an in-person meeting between Director 

of Logistics and an iDrive employee to receive an update on the 

status of Director of Logistics’s progress with UPS and FedEx

regarding the requested price adjustments. In October 2011, 

iDrive President sent another email to Director of Logistics

requesting to “catch up” on any progress with UPS and FedEx 

and offering to help facilitate progress.

¶18 Director of Logistics stated that, in October or November 

2011, he informed IntegraCore CEO that he was going to contact 

UPS and FedEx to see if there were any negotiations occurring 

on IntegraCore’s contracts. The UPS representative testified that,

in the “first . . . five or ten days of October,” she had a 

conversation with Director of Logistics in which he asked, “My 

contract is three years old, c’mon my business has grown 

 

4. iDrive President, iDrive CEO, and an iDrive employee also 

testified that Director of Logistics informed iDrive that he would 

take the lead in the negotiations with UPS. IntegraCore disputes 

this fact but, other than making legal arguments and pointing 

out different dates that the witnesses testified that Director of 

Logistics made the request, IntegraCore does not point to any 

facts directly contradicting that the request was made.
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substantially, what can you do about that?” Director of 

Logistics’s request resulted in a new UPS contract effective at the 

end of October 2011. While IntegraCore timely paid iDrive the 

retainer amount, it did not compensate iDrive for any savings 

realized under its new UPS contract.

¶19 IntegraCore did not complain to iDrive about its 

performance in 2011 or 2012. After October 2011, iDrive 

continued to perform auditing services under the Agreement 

through July 2013.

¶20 IntegraCore also continued to use iDrive’s USPS account 

to ship packages between October 2011 and August 2013. 

However, in early 2012, IntegraCore began using a different 

account operated by Move Method, another shipping broker, to 

ship items via USPS. IntegraCore did not inform iDrive of its 

decision to use the Move Method account, nor did IntegraCore 

CEO believe he needed to involve iDrive to determine which 

account to use. IntegraCore claims the underlying carrier 

contract with USPS was unaffected by a change of use of the 

account. When iDrive CEO asked Director of Logistics about the 

decreased volumes in USPS shipments, Director of Logistics

mischaracterized the situation, telling iDrive CEO that the 

decrease resulted from customers pulling their USPS volumes 

from IntegraCore.

The Partial Summary Judgment Rulings

¶21 Both parties filed motions for partial summary judgment. 

iDrive filed a motion for partial summary judgment on its claims 

of breach of contract and breach of good faith and fair dealing, 

excluding its claims pertaining to the USPS contracts from its 

motion. IntegraCore sought summary judgment in its favor on 

iDrive’s motion and also sought summary judgment on iDrive’s 

USPS contract claims. iDrive also moved for partial summary 

judgment against IntegraCore’s breach of contract and breach of 

good faith and fair dealing counterclaims.
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¶22 The district court heard argument and issued its rulings 

from the bench. Those rulings were memorialized in three 

orders. When IntegraCore objected to the form of the orders, the 

district court issued an eleven-page ruling clarifying the court’s 

earlier decisions. In the first order, the district court granted 

iDrive’s motion regarding breach of contract and breach of the 

covenant of good faith and fair dealing arising from the 2011 

UPS Agreement.5 The district court determined that IntegraCore 

had breached the Agreement by negotiating and entering into 

the October 2011 carrier contract with UPS in secret and by 

failing to remit thirty-eight percent of the savings that had been 

realized by entering into the new contract. The district court 

determined that no genuine issues of material fact existed, 

explaining that the Agreement precludes IntegraCore from 

entering into any agreement with any carrier without iDrive’s 

knowledge and that IntegraCore did not respond to iDrive’s 

inquiries about IntegraCore’s contact with UPS and did not 

otherwise involve iDrive in the discussions that lead to the new 

UPS contract. The district court further determined that the 

Agreement “unambiguously requires [IntegraCore] to pay 

[iDrive] for 38% of savings achieved with any new carrier 

agreement entered into during the term of [the Agreement], 

regardless of whether [iDrive] participates in the negotiation of 

such new agreement.” (Emphasis in original.)

¶23 Specifically responding to IntegraCore’s assertion that 

iDrive failed to perform under the Agreement, the district court

stated: “[T]he Court finds[6]that as of the date of [IntegraCore’s]

 

5. The district court made no distinction and provided no 

separate analysis between the breach of contract and breach of 

the covenant of good faith and fair dealing, and therefore we 

treat them as combined or redundant in this decision.

6. Of course, on summary judgment the district court was not 

actually making findings of fact from disputed evidence. Any 

(continued...)
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breaches of contract in October, 2011, iDrive had either 

performed, or was in the process of performing, as required by 

the terms of [the Agreement].” The district court further rejected 

IntegraCore’s defense for its nonperformance because the 

Agreement “did not provide that time was of the essence for 

performance,” that IntegraCore “was . . . obligated to provide 

notice to [iDrive]” if it “believed that time had expired for 

[iDrive] to perform,” and that IntegraCore “continued to accept 

[iDrive’s] performance . . . long after [IntegraCore] now asserts it 

had a known excuse for nonperformance.” Thus, the district 

court concluded that IntegraCore’s failure to provide notice and 

its continued acceptance of performance constituted 

independent bases “to reject IntegraCore’s argument of lack of

performance.”

¶24 In the second order, the district court granted iDrive’s 

motion for partial summary judgment on IntegraCore’s 

counterclaims for breach of contract and breach of the covenant 

of good faith and fair dealing. Incorporating its ruling on 

iDrive’s claim against IntegraCore, the district court concluded 

that IntegraCore breached the Agreement. The district court 

further determined, “Under the first to breach rule, 

[IntegraCore’s] breaches of [the Agreement] relieved [iDrive] of 

further obligations . . . and [IntegraCore’s] claims are barred for 

this independent reason.” The court also concluded that, as of 

October 2011, iDrive had “performed, or was in the process of 

performing” under the Agreement.

 

(...continued)

dispute of material fact would have required the court to deny 

the summary judgment motion to which the factual dispute 

pertained. Despite its choice of verb, the district court was 

merely stating its conclusions as to what the undisputed 

evidence showed.
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¶25 As an independent and alternative basis upon which to 

grant summary judgment, the district court concluded that “the 

language in the liability limitation [section of the Agreement] is 

unambiguous and bars [IntegraCore’s] counterclaims for breach 

of contract and breach of the covenant of good faith and fair 

dealing.”

¶26 Next, in the district court’s third order, the court denied 

IntegraCore’s cross-motion for partial summary judgment on 

iDrive’s contract claims, incorporating “the same rationale set 

forth in the Order Granting [iDrive’s] Motion for Partial 

Summary Judgment Regarding Breach of Contract and Breach of 

Covenant of Good Faith.” Although IntegraCore had expressly 

raised the issue of iDrive’s breach of contract claims related to 

using an alternative account to facilitate an underlying USPS 

contract, the district court’s order is silent on that issue.

¶27 Finally, the district court issued a ruling on IntegraCore’s 

objection to the form of the orders wherein it also clarified its 

previous rulings. In that order, the district court made clear that 

“[t]he question of causation in connection with damages was not 

ruled on” and that “[c]ausation needs to be proven along with 

damages at trial.” Further, while explaining its interpretation of 

the word “derives,” a term found in the compensation 

provisions of the Agreement, the court stated, “Since all 

agreements entered into by IntegraCore are deemed to be the 

work of iDrive, the Court reads the Agreement as allowing 

iDrive to collect 38% of savings from all contract improvements 

regardless of whether or not iDrive actually performed optimization 

services.” (Emphasis added.) And explaining its conclusions 

regarding iDrive’s performance of its obligations as 

IntegraCore’s vice president of logistics, the court pointed out

that iDrive “made visits” and that “the purposes of the 

additional visits were fulfilled.” As to the USPS account issue the 

district court stated:
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20150857-CA 13 2018 UT App 40

iDrive’s claim with respect to USPS damages was 

not raised as part of its motion for summary 

judgment. IntegraCore filed a motion for summary 

judgment incorporating a claim related to USPS. 

IntegraCore’s motion for summary judgment was 

denied, effectively preserving the issue for future 

litigation and trial.

¶28 IntegraCore filed a petition for interlocutory appeal from 

the summary judgment orders and the order on IntegraCore’s 

objection to the form of the summary judgment orders, which 

we granted.

ISSUES AND STANDARDS OF REVIEW

¶29 The issue before us is whether the district court correctly 

granted iDrive’s motions for partial summary judgment and 

denied IntegraCore’s motion for partial summary judgment. The 

primary questions presented by this appeal are (1) whether the 

district court correctly interpreted the Agreement between the 

parties, refusing to consider external evidence of the parties’ 

intent, and (2) whether disputed material facts exist that 

preclude summary judgment on the various motions.

¶30 “Questions of contract interpretation which are confined 

to the language of the contract itself are questions of law, which 

we review for correctness.” Mellor v. Wasatch Crest Mutual Ins. 

Co., 2009 UT 5, ¶ 7, 201 P.3d 1004. “An appellate court reviews a 

[district] court’s legal conclusions and ultimate grant or denial of 

summary judgment for correctness, and views the facts and all 

reasonable inferences drawn therefrom in the light most 

favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, 

¶ 6, 177 P.3d 600 (citations and internal quotation marks 

omitted). Summary judgment should be granted only “if the 

moving party shows that there is no genuine dispute as to any 

material fact and the moving party is entitled to judgment as a 
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matter of law.” Utah R. Civ. P. 56(a). “[I]t is not true that once 

both parties move for summary judgment the court is bound to 

grant it to one side or another.” Diamond T Utah, Inc. v. Travelers 

Indem. Co., 441 P.2d 705, 706 (Utah 1968). “Rather, cross-motions 

[for summary judgment] may be viewed as involving a 

contention by each movant that no genuine issue of fact exists 

under the theory it advances, but not as a concession that no 

dispute remains under the theory advanced by its adversary.” 

Wycalis v. Guardian Title of Utah, 780 P.2d 821, 825 (Utah Ct. App. 

1989).

ANALYSIS

I. Interpretation of the Agreement

¶31 As a preliminary matter, it is necessary to bring 

IntegraCore’s contentions into focus. IntegraCore frames its 

appeal by asserting that the district court concluded that iDrive 

was not required to perform at all under the contract. 

IntegraCore misapprehends the district court’s ruling; the 

district court did not rule that the Agreement allowed iDrive to 

do nothing. In actuality, the district court expressly held that 

iDrive “either performed or was in the process of performing its 

pricing optimization obligations,” and this was the basis of the 

court’s ruling on whether iDrive performed under the contract.7

 

7. In its ruling on IntegraCore’s objections to the form of its 

summary judgment orders, the district court listed the questions 

that IntegraCore submitted and provided clarification on each 

one. Each time IntegraCore asked for clarification on iDrive’s 

obligations, the court responded that iDrive “had either 

performed, or was in the process of performing, as required by 

the terms of [the Agreement],” or that iDrive had “fulfilled its 

obligations.” When directly asked about iDrive’s obligations, the 

(continued...)
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Thus, the district court did not relieve iDrive from any duty to 

perform.

¶32 Instead, the district court applied a plain-reading analysis 

to a fully integrated contract. As referenced above, the district 

court interpreted the compensation clause of the Agreement, 

which provides:

iDRIVE shall receive a retainer of two thousand 

one hundred and eighty-five dollars ($2,185) per 

month for seven (7) months beginning February 1, 

2011. iDrive shall receive thirty-eight percent (38%) 

of savings that the CUSTOMER derives from 

iDRIVE’S optimization service. All improvements 

made to any of CUSTOMER’s contract(s) with 

Carrier(s) between the signature date on this Agreement 

and the end of the Agreement term are considered to be 

the result of iDRIVE’S optimization service. For the 

purposes of calculating savings from iDRIVE’S 

optimization efforts with the Carrier(s), iDRIVE 

and CUSTOMER agree that CUSTOMER’S current 

rates, incentives and terms will be used as the 

benchmark. CUSTOMER’S benchmark data will be 

used as the basis for calculating savings 

attributable to iDRIVE’S Pricing Optimization 

service.

(Emphasis added.)

¶33 The district court focused on two sentences in this 

provision. The first provides that iDrive will receive thirty-eight 

percent of “savings” that IntegraCore “derives” from iDrive’s 

 

(...continued)

district court never stated that iDrive was under no obligation to 

perform.
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optimization services. Second, in calculating “savings” from 

iDrive’s efforts “[a]ll” improvements to IntegraCore’s Carrier 

contract “are considered to be the result of iDRIVE’S 

optimization service.” The district court construed these 

provisions to mean that, during the term of the Agreement, if 

IntegraCore experienced any savings on Carrier contracts, those 

savings would be deemed to have been derived from iDrive’s 

services whether or not the savings actually were the result of

iDrive’s efforts.

¶34 While explaining its interpretation of the word “derives,” 

the district court stated, “Since all agreements entered into by 

IntegraCore are deemed to be the work of iDrive, the Court 

reads the Agreement as allowing iDrive to collect 38% of savings 

from all contract improvements regardless of whether or not iDrive 

actually performed optimization services.” (Emphasis added.) The 

district court’s explanation of the term “derives” says nothing of 

iDrive’s overall obligations to perform under the Agreement but 

demonstrates that iDrive’s compensation is calculated from all 

savings during the term of the Agreement, not only savings that 

are the clear result of iDrive’s services. The district court did not 

thereby relieve iDrive of its duties to perform under the contract, 

and IntegraCore’s insistence on appeal that the district court did 

so is needlessly distracting. Because the district court did not 

relieve iDrive of the obligation to perform, we decline to 

consider IntegraCore’s arguments that are premised on that 

interpretation.8

 

8. These arguments are that iDrive owed fiduciary obligations, 

that the district court should have entertained evidence of the 

parties’ intent for the Agreement, and that the court’s 

interpretation rendered the optimization provisions illusory. 

IntegraCore incorporates its fiduciary-duties argument 

elsewhere in its appeal, which we address below. See infra 

¶¶ 68–70.
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¶35 Even so, embedded within IntegraCore’s misapprehension 

of the district court’s ruling is the general contention that the 

Agreement must be understood to mean that iDrive is paid only 

for contract improvements that it clearly generated through its 

performance and that we must consider the parties’ after-the-fact 

testimony to understand the intent of the parties. We disagree 

and see no error in the district court’s interpretation of the 

Agreement.

¶36 “In interpreting a contract, we look to the writing itself to 

ascertain the parties’ intentions, and we consider each contract 

provision . . . in relation to all of the others, with a view toward 

giving effect to all and ignoring none.” WebBank v. American Gen. 

Annuity Service Corp., 2002 UT 88, ¶ 18, 54 P.3d 1139 (omission in 

original) (brackets, citation, and internal quotation marks 

omitted). “If the language within the four corners of the contract 

is unambiguous, the parties’ intentions are determined from the 

plain meaning of the contractual language, and the contract may 

be interpreted as a matter of law.” Id. ¶ 19 (citation and internal 

quotation marks omitted). No ambiguity exists where “the 

language of the contract . . . [is] not susceptible to contrary, 

tenable interpretations.” See Daines v. Vincent, 2008 UT 51, ¶ 30, 

190 P.3d 1269 (citation and internal quotation marks omitted). 

“When the existence of a contract and the identity of its parties 

are not in issue and when the contract provisions are clear and 

complete, the meaning of the contract can appropriately be 

resolved by the court on summary judgment.” Morris v. 

Mountain States Tel. & Tel. Co., 658 P.2d 1199, 1201 (Utah 1983).

¶37 Determining which terms fall within the four corners of 

the contract is a straightforward task when a contract contains 

an integration clause, as is the case here. As our supreme court 

explained in Daines:

Consistent with our line of contract analysis cases, 

we first determine whether or not [the contract] 

constitutes an integrated agreement before 
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considering whether the evidence offered by [a 

party] supports a finding of facial ambiguity.

2008 UT 51, ¶ 22. The Daines court further explained that 

extrinsic evidence “is not admissible on the question of 

integration where the contract at issue contains a clear 

integration clause.” Id. (quoting Tangren Family Trust v. Tangren, 

2008 UT 20, ¶ 19, 182 P.3d 326). The Agreement in this case 

contains a clear integration clause. Thus, any arguments 

regarding ambiguity are properly limited to the construction of 

ambiguous terms used in the integrated contract.

¶38 The Agreement imposes obligations on iDrive. These 

obligations include managing contract negotiations and 

optimization processes with carriers, performing auditing 

services, analyzing IntegraCore’s shipping data, issuing RFPs to 

carriers, working with IntegraCore’s designee as vice president 

of logistics and so forth. The Agreement also explains what 

triggers iDrive’s compensation:

All improvements made to any of CUSTOMER’s 

contract(s) with Carrier(s) between the signature 

date on this Agreement and the end of the 

Agreement term are considered to be the result of 

iDRIVE’S optimization service.

Similar language appears in two other places in the four-page 

agreement. The “Agreement Term” provision states,

Any new Carrier agreement signed by 

CUSTOMER during a period of 3 years after the 

execution date of this agreement shall be deemed 

to be based on iDRIVE’s optimization efforts, 

whether negotiated directly with the Carrier(s) by 

iDRIVE, CUSTOMER or any other party.

The “General” provision term states,
iDrive Logistics v. IntegraCore

20150857-CA 19 2018 UT App 40

Savings attributed to iDRIVE’S contract negotiation 

with the carriers will be determined by comparing 

incentives currently being offered to CUSTOMER 

under the contract(s) from the Carrier(s) in effect 

on the date of this Agreement, less the new 

incentives achieved from the Carrier(s) after the 

date hereof.

The Agreement could not be more clear; during the Agreement 

term, no matter how a new carrier agreement came into being 

that new carrier agreement’s existence would be “deemed” 

and/or “considered” the result of iDrive’s services. In retrospect 

these provisions appear quite prescient.

¶39 IntegraCore fails to show how iDrive’s obligations and 

the payment terms under the Agreement are incompatible or 

ambiguous, which would necessitate the analysis of evidence

outside of the four corners of the document. IntegraCore’s 

argument ignores the scenario where iDrive does perform its 

obligations and IntegraCore still finds its way into a new carrier 

contract without iDrive’s involvement. Under that scenario, the 

Agreement unambiguously provides, in multiple provisions, 

that iDrive will be paid for that contract improvement. Likewise, 

the fact that a surprise carrier contract is considered “the result 

of iDRIVE’S optimization service” does not itself mean that 

iDrive can shirk its duty to perform; IntegraCore could challenge 

iDrive’s right to commissions if iDrive signed the Agreement, 

went AWOL for the contract term, and subsequently claimed a 

right to commissions on new carrier contracts created during the 

term of the Agreement. IntegraCore’s interpretation effectively 

changes multiple key terms of the Agreement that are otherwise 

internally consistent and therefore is not a “tenable” 

interpretation. See Daines, 2008 UT 51, ¶ 30 (citation and internal 

quotation marks omitted).

¶40 Instead of highlighting an actual contractual ambiguity, 

IntegraCore argues that this interpretation is at odds with the 
iDrive Logistics v. IntegraCore

20150857-CA 20 2018 UT App 40

intentions of the parties as reflected by their after-the-fact 

testimony. However, as explained above, supra ¶ 37, where the 

court is faced with an integrated document, IntegraCore’s 

arguments about extrinsic evidence are limited to construing 

contractual ambiguity. Consequently, having determined that 

there is no contractual ambiguity within the four corners of the 

Agreement, evidence of the parties’ intentions otherwise is 

simply irrelevant.

¶41 In light of the plain language of the Agreement, we see no 

error in the district court’s interpretation.

II. Partial Summary Judgment Rulings

¶42 We now turn to the district court’s other partial summary 

judgment determinations.

¶43 “The court shall grant summary judgment if the moving 

party shows that there is no genuine dispute as to any material 

fact and the moving party is entitled to judgment as a matter of 

law.” Utah R. Civ. P. 56(a). Whether a party performed under a 

contract or breached a contract is a question of fact. See Saunders 

v. Sharp, 793 P.2d 927, 930–31 (Utah Ct. App. 1990), remanded on 

other grounds, 806 P.2d 198 (Utah 1991) (per curiam). We view 

“the facts and all reasonable inferences drawn therefrom in the 

light most favorable to the nonmoving party.” Orvis v. Johnson, 

2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation 

marks omitted). Our supreme court has explained,

In determining whether a factual dispute exists, we 

apply an objective standard. The objective standard 

asks whether reasonable jurors, properly 

instructed, would be able to come to only one 

conclusion, or if they might come to different 

conclusions, thereby making summary judgment 

inappropriate. But where there could be no 

reasonable difference of opinion on a question of 
iDrive Logistics v. IntegraCore

20150857-CA 21 2018 UT App 40

fact in light of the available evidence, the decision 

is one of law for the trial judge or for an appellate 

court.

Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 20, 390 P.3d 314

(brackets, citations, and internal quotation marks omitted).

¶44 Here, IntegraCore and iDrive both filed motions for 

partial summary judgment, each claiming that the other had 

breached the Agreement. The district court made clear that 

“[t]he question of causation in connection with damages was not 

ruled on” and that “[c]ausation needs to be proven along with 

damages at trial.” Therefore, our analysis is limited to the 

Agreement and whether it can be said that the terms were 

performed as a matter of law.

A. iDrive’s Motion Regarding Breach Arising from the 

October 2011 UPS Agreement

¶45 iDrive’s initial motion was quite focused. iDrive sought 

partial summary judgment on its claim that IntegraCore had 

breached the Agreement by entering into the October 2011 UPS 

agreement. The district court concluded that, under the 

Agreement, IntegraCore “is precluded from entering into any 

agreement with any carrier without [iDrive’s] knowledge, 

review and input[.]” Accordingly, the district court first 

determined that IntegraCore breached the Agreement by 

negotiating and entering into the October 2011 carrier contract 

with UPS in secret. Secondly, the court also determined that 

IntegraCore breached the Agreement by failing to remit thirtyeight percent of the savings that had been realized by entering 

into the new contract.

¶46 In addition to raising the contract-interpretation 

argument as outlined above, which we reject, supra Part I, 

IntegraCore also raised other defenses. IntegraCore asserted that 

iDrive had failed to perform and therefore was precluded from 
iDrive Logistics v. IntegraCore

20150857-CA 22 2018 UT App 40

claiming breach. “[P]erformance by the party seeking recovery” 

is an essential element for a breach of contract claim. Bair v. 

Axiom Design, LLC, 2001 UT 20, ¶ 14, 20 P.3d 388. As part of its 

failure-to-perform assertion, IntegraCore maintained that 

iDrive’s time to perform had expired. The district court rejected 

these defenses and we examine these conclusions in five parts.

¶47 First, we examine the district court’s conclusion that 

“iDrive had either performed, or was in the process of 

performing, as required by the terms of [the Agreement].”

Second, we review the district court’s conclusion that, since the 

contract did not provide that time was of the essence,

IntegraCore could not raise a timeliness defense. Third, we 

review the district court’s determination that, if IntegraCore had 

believed that iDrive was in breach, IntegraCore could not claim a 

breach until a demand for performance had been made. Fourth, 

we analyze the district court’s conclusion that IntegraCore’s 

defense of nonperformance was lost by continuing to accept 

ongoing partial performance. And fifth, we examine other 

arguments IntegraCore made in relation to iDrive’s summary 

judgment motion on iDrive’s claim that warrant discussion.

1. The District Court’s Determination That iDrive Performed 

or Was in the Process of Performing

¶48 As noted above, the Agreement provides certain 

obligations that iDrive is required to perform, including issuing 

RFPs to carriers, spending two days with IntegraCore learning 

its procedures, negotiating with carriers, and providing auditing 

services. Supra ¶ 6. We note here that the facts argued in 

conjunction with these obligations are material facts because 

they are essential to determine whether obligations are 

performed in a claim for breach of contract.9 See Alliant 

 

9. This is not to say that any disputed fact that is determinative 

of iDrive’s performance of some obligation under the Agreement 

(continued...)
iDrive Logistics v. IntegraCore

20150857-CA 23 2018 UT App 40

Techsystems, Inc. v. Salt Lake County Board of Equalization, 2012 UT 

4, ¶ 31, 270 P.3d 441 (“A disputed fact is material if it affects the 

rights or liabilities of the parties.” (citation and internal 

quotation marks omitted)); Bair, 2001 UT 20, ¶ 14 (noting that 

“performance by the party seeking recovery” and “breach of the 

contract by the other party” are elements of a breach of contract 

claim).

¶49 First, whether iDrive issued any RFPs to any carriers is a 

disputed fact. IntegraCore argues that iDrive never issued any 

RFPs to any carriers, noting specifically the UPS representative’s 

testimony that she never received an RFP from anyone on behalf 

of IntegraCore, and that the email she received from iDrive 

President could not be characterized as an RFP but was instead 

“a request for incentive changes.” This testimony alone made 

this issue a disputed one. See Lucky Seven Rodeo Corp. v. Clark, 755 

P.2d 750, 752 (Utah Ct. App. 1988) (“One sworn statement under 

oath is all that is needed to dispute the averments on the other 

side of the controversy and create an issue of fact, precluding the 

entry of summary judgment.”). The UPS representative 

 

(...continued)

is necessarily a material breach of the Agreement. See Cross v. 

Olsen, 2013 UT App 135, ¶ 27, 303 P.3d 1030 (“A rescission is not 

warranted by a mere breach of contract not so substantial and 

fundamental as to defeat the object of the parties in making the 

agreement.” (citation and internal quotation marks omitted)). 

Further, to conclude on summary judgment that any particular 

failure to perform constitutes a material breach is also 

problematic because it is a question of fact that is generally 

resolved by a factfinder. See id. ¶ 29 (“Whether a breach of a 

contract constitutes a material breach is a question of fact . . . . 

Therefore, the issue will ordinarily be resolved by the fact finder, 

and summary judgment should be granted with great caution.” 

(brackets, citations, and internal quotation marks omitted)).
iDrive Logistics v. IntegraCore

20150857-CA 24 2018 UT App 40

acknowledged that the email from iDrive President was a 

request for improvements on UPS pricing for IntegraCore and 

specifically asked for a proposal in response to that request,

essentially saying that the request was the functional equivalent

of an RFP.10 This testimony is conflicting and it cannot be said 

that “reasonable jurors, properly instructed, would be able to 

come to only one conclusion” regarding whether an RFP was 

issued. See Heslop v. Bear River Mutual Ins. Co., 2017 UT 5, ¶ 20,

390 P.3d 314 (citation and internal quotation marks omitted). 

Therefore, whether iDrive performed this obligation is a 

disputed material fact, which should have precluded summary 

judgment.

¶50 Similarly, the district court erred under the summary 

judgment standard when it concluded that the undisputed facts 

showed that iDrive performed its obligation to ensure iDrive 

President, in his capacity as IntegraCore’s vice president of 

logistics, conducted the required visits. The Agreement required 

iDrive President to initially visit for two days to learn 

IntegraCore’s operations and to make two additional visits to 

IntegraCore over the following two quarters from the date the 

Agreement was executed. It is undisputed that iDrive President

spent two days at IntegraCore. It is also undisputed that iDrive 

President did not visit IntegraCore again. However, iDrive 

argues that it “acquiesced” to IntegraCore’s request that iDrive

CEO be the primary contact between IntegraCore and iDrive. 

And it is undisputed that iDrive, through iDrive CEO, had 

“several in-person meetings with [Director of Logistics], 

including some that took place at IntegraCore’s facility.”

¶51 Viewing these facts and reasonable inferences in a light 

favorable to IntegraCore, we conclude that a reasonable juror 

 

10. Also, the FedEx representative testified that an RFP can be 

very simple and “can come in the form of any mode of 

communication.”
iDrive Logistics v. IntegraCore

20150857-CA 25 2018 UT App 40

could consider the facts here and determine that because iDrive 

President did not make the visits, iDrive failed to perform this 

term of the contract. The district court’s finding that someone 

from iDrive “made visits” and that “the purposes of the 

additional visits were fulfilled” does not comport with longestablished standards on summary judgment. All of the factual 

disputes related to this question should have been construed

against iDrive and in favor of IntegraCore. In reality, the district 

court made factual findings on materiality and substantial 

performance that it should not have made. At a minimum, the 

district court failed to construe the factual disputes against 

iDrive.

¶52 Next, it is unclear whether iDrive’s direct contact with 

carriers fulfilled its obligation to “negotiat[e] pricing, terms and 

conditions” with them. While there is undisputed evidence 

showing communications between iDrive President, on behalf of 

IntegraCore, and both UPS and FedEx discussing pricing on 

carrier contracts, IntegraCore has presented evidence from the 

UPS representative that she never negotiated with anyone. 

IntegraCore further contends that iDrive’s last attempt to 

communicate with carriers was in May 2011, which arguably 

shows a lack of effort. And while iDrive’s lack of effort may have 

been completely justified, based on carrier responses or working 

through IntegraCore’s own employees who contacted carriers,

concluding that iDrive fulfilled its obligation to negotiate with 

carriers as a matter of law involved weighing facts to come to a 

firm conclusion.11 These facts show a dispute as to whether 

 

11. The parties disagree whether the Agreement permitted

Director of Logistics to “run point” on and be the main contact 

for negotiations with carriers, and whether IntegraCore properly 

asserts admissions made by iDrive as part of a dismissed fraud 

claim. We need not decide the merits of these arguments to settle 

the questions on appeal but reference them only to demonstrate 

that Director of Logistics’s request to take the lead in 

(continued...)
iDrive Logistics v. IntegraCore

20150857-CA 26 2018 UT App 40

iDrive negotiated with carriers pursuant to the Agreement, and 

we cannot say that “reasonable jurors, properly instructed, 

would be able to come to only one conclusion.” See Heslop, 2017 

UT 5, ¶ 20 (citation and internal quotation marks omitted). 

Therefore, whether iDrive negotiated pricing, terms, and 

conditions with carriers is a disputed material fact.

¶53 Thus, the rulings of the district court based on the 

determinations above were in error because material issues of 

fact precluded the entry of partial summary judgment.

2. The District Court’s Determination That IntegraCore 

Cannot Raise a Timeliness Defense

¶54 The district court also ruled that, because there is no 

specific time mentioned in the Agreement by which iDrive was 

required to perform, iDrive could not have breached the 

Agreement unless IntegraCore demanded performance. This 

analysis fails for two reasons. First, the Agreement does contain 

a time requirement as it pertains to one obligation. The 

Agreement states that, in addition to spending two days learning 

current logistics practices and operations at IntegraCore, iDrive

President (or a mutually agreed upon person) was required to 

conduct two additional visits “over the next 2 quarters.”

(Emphasis added.) The Agreement was signed by iDrive 

President on January 13, 2011. As a result, the two additional 

visits should have occurred sometime in 2011. If anything, the 

evidence appears to be undisputed that the two additional visits 

 

(...continued)

negotiations, that iDrive’s communications to Director of 

Logistics on the progress with carriers, and that IntegraCore’s 

testimony that Director of Logistics was not qualified to 

negotiate with carriers, are other examples of disputed facts 

about whether iDrive performed under the Agreement, which 

should have precluded summary judgment.
iDrive Logistics v. IntegraCore

20150857-CA 27 2018 UT App 40

did not happen within the required timeframe. At a minimum, 

performance on this issue is disputed.

¶55 Second, the fact that there is no time specified when 

performance was to be completed does not itself mean that the 

conflict at hand can be summarily dismissed. “[T]he settled rule 

is 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.” New York Avenue LLC v. Harrison, 2016 UT App 

240, ¶ 32, 391 P.3d 268 (citation and internal quotation marks 

omitted). Even assuming IntegraCore was required to make a 

demand for performance, the court still would have needed to 

determine that iDrive could perform within a reasonable time. 

“And because what constitutes a reasonable time is necessarily a 

fact-intensive question,” we conclude that “the district court 

erred in granting summary judgment.” See id. ¶ 35 (brackets, 

citation, and internal quotation marks omitted).

3. The District Court’s Determination That No Breach May 

Occur Where No Demand for Performance Was Made

¶56 The district court further concluded that, because there 

was no provision in the Agreement stating a date by which 

iDrive must perform, IntegraCore was “obligated to provide 

notice to [iDrive]” of its belief that the time for performance had 

passed to “allow a reasonable time for performance before 

unilaterally deciding to consider [the Agreement] void.” In 

support of its conclusion, the district court cited principles 

articulated in Gammon v. Bunnell, 64 P. 958 (Utah 1900). 

However, the language relied on by the district court is dicta and 

the case is distinguishable and does not apply to iDrive’s burden 

on its own claims.

¶57 Gammon involved a contract for the sale of real property. 

Id. at 958. The plaintiff/purchaser paid the title holder $1 and 

took possession of the land. Id. The deed was placed in escrow 

with an escrow instruction that upon the grantor’s death $300 
iDrive Logistics v. IntegraCore

20150857-CA 28 2018 UT App 40

would be paid to grantor’s designee. Id. The escrow instructions 

then provided that the designee would deliver a receipt and 

when that receipt was presented to the escrow agent, the deed 

would be released by the escrow agent to the purchaser. Id. A 

fine plan indeed, except that when the $300 was tendered to the 

designee, she rejected the tender and refused to give a receipt. 

See id. at 959. The purchaser sued for quiet title in addition to 

other relief not identified by the Gammon court. Id. at 958–59.

¶58 The question presented was whether the purchaser’s 

complaint stated a claim upon which relief could be granted. Id. 

at 959. The Gammon court held that the purchaser’s complaint 

did state a claim, that the purpose of the escrow was to ensure 

the designee was paid, and that, when the tender was made, the 

purchaser had a right to the deed. Id. When discussing the 

general duties of an escrow agent, in dicta the Gammon court 

stated, “If no date is fixed for the delivery or performance of the 

contract, a reasonable time is intended, and no default can attach 

until after a demand and failure or refusal to perform.” Id. There 

is, however, no reference to any assertion that the purchaser did 

not act with all diligence. Therefore, this statement made in 

passing does not constitute the holding in Gammon and the 

decision is not applicable here. Further, Gammon is 

distinguishable as it pertained to an escrow arrangement and 

concerned a real property transaction, not a general contract 

such as in this case.12

 

12. iDrive points us to sister state authorities for similar 

propositions. Yet these cases actually undermine iDrive’s 

position. These cases are distinguishable for the same reason as 

Gammon—they explicitly state their holdings apply to real estate 

transactions. For example, in ADC Orange, Inc. v. Coyote Acres, 

Inc., 857 N.E.2d 513 (N.Y. Ct. App. 2006), the court applied its 

analysis to “contracts of this type” and “contracts of this kind,”

meaning contracts for the sale of real property. Id. at 514, 516. 

(continued...)
iDrive Logistics v. IntegraCore

20150857-CA 29 2018 UT App 40

¶59 Moreover, and most importantly, on its own claims,

iDrive bears the burden of showing it performed under the 

Agreement to succeed on its breach of contract claim. See Bair v. 

Axiom Design, LLC, 2001 UT 20, ¶ 14, 20 P.3d 388. iDrive cannot 

hide behind the dicta of Gammon and claim that iDrive is 

relieved of proving an element of its claim because IntegraCore 

did not demand performance. As a result, Gammon does not 

control, and consequently, we are left with the fact question of 

whether a reasonable period had passed wherein iDrive should 

have performed. This is an issue that should be left to a 

factfinder and partial summary judgment should not have been 

based thereon. See New York Avenue, 2016 UT App 240, ¶ 35.

 

(...continued)

The court held, consistent with New York Avenue LLC v. Harrison, 

2016 UT App 240, ¶ 32, 391 P.3d 268, that performance must 

occur within a reasonable time (a fact question) or if a party 

wishes to impose a certain date by which performance must 

occur, then demand must be made—not that no breach occurs if 

no demand for performance has been made. See ADC Orange, 

857 N.E.2d at 516. Similarly, in Command Security Corp. v. Moffa, 

84 So. 3d 1097 (Fla. Dist. Ct. App. 2012), also involving the 

limited circumstances of a real estate escrow transaction, the 

court held, again consistent with New York Avenue, that where a 

contract does not make time of the essence the parties would 

have a reasonable time to perform. See id. at 1099. The Moffa

court explained that time can be of the essence when it is 

expressly called for in the contract, or in a number of other 

circumstances, including where express notice is given to the 

alleged defaulting party. But again, that is not the question 

which is presented in this case. Instead, a fact question remains 

about whether iDrive’s efforts, whatever they may or may not 

have been, were undertaken within a reasonable time.
iDrive Logistics v. IntegraCore

20150857-CA 30 2018 UT App 40

4. The District Court’s Determination That IntegraCore Is 

Barred from Asserting a Defense of Nonperformance

¶60 IntegraCore challenges the district court’s ruling that 

IntegraCore was barred from asserting that it was excused from 

performance under the Agreement. The district court ruled, “The 

fact that [IntegraCore] continued to accept [iDrive’s] 

performance under [the Agreement], long after [IntegraCore] 

now asserts it had a known excuse for nonperformance, bars 

[IntegraCore] from asserting a breach of contract by [iDrive.]” 

The district court relied on H.B. Zachry Co. v. Travelers Indemnity

Co., 391 F.2d 43 (5th Cir. 1968), which states, “When the 

promisor on a contract not already fully performed on either 

side continues his performance in spite of a known excuse for 

nonperformance, he loses his defense of nonperformance.” Id. at 

48.

¶61 IntegraCore argues that the district court erred because 

(1) waiver is a fact-based question and generally inappropriate 

on summary judgment, and (2) the Agreement is divisible and 

the shipping and auditing services that continued long after 

IntegraCore asserted the Agreement was breached are “not at 

issue.”

¶62 First, it is true that “[w]aiver is an intensely fact 

dependent question.” McCleve Props., LLC v. D. Ray Hult Family 

Ltd. P’ship, 2013 UT App 185, ¶ 9, 307 P.3d 650 (citation and 

internal quotation marks omitted). However, summary 

judgment is appropriate “if the moving party shows that there is 

no genuine dispute as to any material fact and the moving party 

is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). 

IntegraCore does not dispute that it continued to accept auditing 

services from iDrive under the Agreement. Therefore, this fact, 

which the district court relied on to determine that IntegraCore 

continued to accept the benefit of the Agreement after it now 

claims the Agreement was breached, is not disputed. Because the 

facts surrounding IntegraCore’s continued acceptance of iDrive’s 
iDrive Logistics v. IntegraCore

20150857-CA 31 2018 UT App 40

services are undisputed, the general contention that summary 

judgment is usually inappropriate for fact intensive questions is 

not enough to demonstrate that the district court erred.

¶63 Instead of challenging the facts showing IntegraCore’s 

continued acceptance of performance under the Agreement, 

IntegraCore argues that the facts relied upon by the district court 

should not have been considered because the Agreement is 

divisible. Although IntegraCore argued to the district court that 

“the audit services are separate from the pricing optimization 

services,” the district court did not rule on whether the 

Agreement is divisible. “Whether a contract is divisible depends 

on the intent of the parties at the time they entered the contract.” 

Estate Landscape & Snow Removal Specialists, Inc. v. Mountain 

States Tel. & Tel. Co., 844 P.2d 322, 328 (Utah 1992). “A divisible 

contract is in legal effect, independent agreements about 

different subjects though made at the same time.” In re Payless 

Cashways, 203 F.3d 1081, 1085 (8th Cir. 2000) (citation and 

internal quotation marks omitted). If the Agreement is divisible, 

as IntegraCore argues, IntegraCore could maintain that its 

acceptance of auditing and shipping services do not show that it 

treated iDrive as though no breach had occurred under the 

pricing optimization services provision, as the district court 

concluded. See Prospero Assocs. v. Burroughs Corp., 714 F.2d 1022, 

1026 (10th Cir. 1983) (examining divisibility to determine 

whether the breach of different provisions in a contract gave rise 

to distinct claims). Because the district court did not address 

whether the Agreement is divisible, we remand the issue to the 

district court.

¶64 Additionally, “[o]nly a material breach will excuse further 

performance by the non-breaching party.” Cross v. Olsen, 2013 

UT App 135, ¶ 26, 303 P.3d 1030. “Whether a breach of a contract 

constitutes a material breach is a question of fact . . . . Therefore, 

the issue will ordinarily be resolved by the factfinder, and 

summary judgment should be granted with great caution.” Id. 

¶ 29 (brackets, citations, and internal quotation marks omitted).
iDrive Logistics v. IntegraCore

20150857-CA 32 2018 UT App 40

¶65 By concluding that IntegraCore may not assert a defense 

of nonperformance, the district court essentially concluded that, 

even if iDrive breached under the optimization services 

provision, that breach was “not so substantial and fundamental 

as to defeat the object of the parties in making the agreement.” 

See id. ¶ 28 (citation and internal quotation marks omitted). But 

to reach such a conclusion the district court impermissibly 

construed the facts against IntegraCore and made a factual 

finding on materiality. Because the district court “appears not to 

have examined the issue through the lens of the foregoing 

standards,” the district court “erred in granting summary 

judgment on the factual question of material breach.” See id. 

¶ 30. Consequently, we also remand this issue to the district 

court.

5. IntegraCore’s Additional Arguments

¶66 We next discuss two remaining contentions: 

(1) IntegraCore’s additional claims of breach by iDrive that the

district court did not address and (2) the district court’s ruling 

that, despite IntegraCore’s argument otherwise, iDrive owed 

fiduciary duties to IntegraCore in fulfilling its contractual 

obligations.

¶67 First, IntegraCore claims additional breaches by iDrive 

that the district court did not address. IntegraCore claims that 

besides UPS and FedEx, iDrive never contacted any other 

carriers, including USPS and DHL, both of which were explicitly 

identified in the Agreement. Additionally, IntegraCore asserts 

that iDrive ceased contacting both UPS and FedEx in the spring

of 2011. Thus, at a minimum there appears to be a disputed fact 

whether iDrive performed, or was in the process of performing, 

under the Agreement. As to each and every claim of breach by 

either iDrive or IntegraCore, assuming the breach exists, there 

remains a fact question as to whether each breach was 

material—an intensely fact-based question typically submitted to 

a factfinder. See Cross, 2013 UT App 135, ¶ 29.
iDrive Logistics v. IntegraCore

20150857-CA 33 2018 UT App 40

¶68 Second, IntegraCore argued to the district court that 

iDrive, whose designee served as vice president of logistics for 

IntegraCore and as an “agent” as stated in the Agreement, owed 

IntegraCore fiduciary duties in fulfilling its obligations under 

the Agreement. The district court did not include any ruling on 

this point in its original orders, but did state in its ruling and 

clarification on IntegraCore’s objection to the orders that “[t]he 

Court noted at oral argument . . . that iDrive did not owe 

IntegraCore fiduciary duties. . . . While an officer or director of a 

corporation may owe fiduciary duties to that corporation,

iDrive’s obligations to IntegraCore are limited to those 

enumerated in the Agreement.” We are directed to no further 

analysis of this issue in the district court’s written rulings or in 

the transcript at oral argument.

¶69 As noted, the original orders granting summary judgment 

were silent on the issue of potential fiduciary duties. 

Nevertheless, in its clarifying ruling, the district court did state 

that no fiduciary duty exists. The district court in no way 

indicated how the existence or nonexistence of fiduciary duties

would have altered its analysis on the ultimate issues before it 

on partial summary judgment. And because we perceive that 

this issue may arise on remand at trial or in further motion 

practice, we choose to address the issue here. See State v. Low, 

2008 UT 58, ¶ 61, 192 P.3d 867.

¶70 Although the analysis is meager, the district court appears 

to have concluded that the mere existence of a contract between 

the parties precluded the possibility that fiduciary duties existed. 

However, as acknowledged in Orlando Millenia, LC v. United Title 

Services of Utah, Inc., 2015 UT 55, 355 P.3d 965, contractual duties 

might be supplemented by fiduciary duties. See id. ¶ 40 n.5. 

Officers of a company may owe fiduciary duties to the entity 

they serve. See Stevensen 3rd East, LC v. Watts, 2009 UT App 137, 

¶ 32, 210 P.3d 977. Likewise, agents may owe a fiduciary duty to 

their principals. See Eagar v. Burrows, 2008 UT 42, ¶ 25, 191 

P.3d 9. Given our supreme court’s recognition in Orlando that 
iDrive Logistics v. IntegraCore

20150857-CA 34 2018 UT App 40

contractual duties might coexist with fiduciary duties, the bare 

analysis of the district court here was insufficient. To the extent 

that the district court’s analysis relies upon this faulty premise, 

the district court is reversed, and the issue of the existence of a 

fiduciary duty and its application in this case is remanded for a

more thorough consideration by the district court.

B. IntegraCore’s Motion for Partial Summary Judgment on 

iDrive’s Breach of Contract Claim

¶71 We similarly conclude that IntegraCore was not entitled 

to summary judgment on iDrive’s breach of contract claim. 

IntegraCore’s motion involves the same facts analyzed above, 

but on IntegraCore’s motion we instead view all facts and 

inferences in a light most favorable to iDrive—the nonmoving 

party. See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.

¶72 We cannot say that a reasonable juror could not conclude 

that iDrive submitted an RFP to UPS. As explained above, even 

though the UPS representative said she never received an RFP, 

so denominated, from iDrive, the UPS representative also said 

that she received a request from iDrive President asking that 

IntegraCore’s contracts be evaluated and requesting that she 

respond with a proposal. Supra ¶ 15. A reasonable juror could 

conclude that, despite its apparent informality, iDrive President

sent UPS an RFP. Therefore, this fact is disputed and precludes 

summary judgment on IntegraCore’s motion. See Heslop, 2017 

UT 5, ¶ 20.

¶73 Likewise, a reasonable juror could conclude that iDrive 

fulfilled its contractual obligation to spend two additional days 

at IntegraCore. Although iDrive President made no additional 

visits himself, iDrive CEO visited multiple times in iDrive 

President’s place, apparently at IntegraCore’s insistence. Because 

“reasonable jurors, properly instructed,” could not “come to 

only one conclusion” here, see id. (citation and internal quotation 
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20150857-CA 35 2018 UT App 40

marks omitted), IntegraCore was not entitled to summary 

judgment on this issue.

¶74 Next, whether iDrive negotiated pricing, terms, and 

conditions with carriers is a disputed material fact that precludes 

summary judgment on IntegraCore’s motion. There is 

undisputed evidence showing communications between iDrive 

President, on behalf of IntegraCore, and both UPS and FedEx 

that discuss pricing on carrier contracts. Even recognizing 

IntegraCore’s arguments and evidence to the contrary, while 

viewing the facts in the most favorable light to iDrive, we 

conclude that “reasonable jurors, properly instructed, . . . might 

come to different conclusions, thereby making summary 

judgment inappropriate.” See id. (citation and internal quotation 

marks omitted).

¶75 Finally, we conclude here, as we did above, that the 

absence of a specified time for performance in the Agreement 

makes the question of performance unsuitable for summary 

judgment. Supra ¶ 59. Even if iDrive had not performed any of 

its obligations, the lack of a contracted time for performance 

must be “reasonable . . . under the circumstances.” New York Ave. 

LLC v. Harrison, 2016 UT App 240, ¶ 32, 391 P.3d 268. “[B]ecause 

what constitutes a reasonable time is necessarily a fact-intensive 

question,” id. ¶ 35 (brackets, citation, and internal quotation 

marks omitted), and because “reasonable jurors . . . might come 

to different conclusions,” see Heslop, 2017 UT 5, ¶ 20 (citation and 

internal quotation marks omitted), we conclude that the district 

court properly denied IntegraCore’s motion.

C. IntegraCore’s Motion for Partial Summary Judgment on 

the USPS Account

¶76 As part of its motion for partial summary judgment, 

IntegraCore argued that iDrive’s contract claims with respect to 

IntegraCore’s use of Move Method’s USPS account failed as a 

matter of law. The USPS contract claims were not included in the 
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20150857-CA 36 2018 UT App 40

district court’s original orders. In its ruling on IntegraCore’s 

objection to the orders the district court said, “IntegraCore’s 

motion for summary judgment was denied, effectively 

preserving the [USPS contract] issue for future litigation and 

trial.” On appeal, iDrive asserts, as the district court observed,

that “iDrive did not move for summary judgment regarding its 

USPS-related claims.” That is not the point. While it is true 

iDrive did not move for summary judgment regarding its USPS 

claims, IntegraCore did. IntegraCore’s initial motion identified a 

number of ways that IntegraCore claimed iDrive’s breach of 

contract claim failed as a matter of law. Among those reasons, 

clearly identified, was that “iDrive’s claim that IntegraCore 

breached the contract at issue by switching its [USPS] account 

from iDrive to a new broker fails as a matter of law because the 

contract at issue does not require IntegraCore to use iDrive’s 

USPS account.” Accordingly, the issue of the USPS account was 

squarely before the district court. Although the district court’s 

lack of analysis on this issue is troubling, we nevertheless affirm 

the denial of summary judgment. “When reviewing a decision 

made on one ground, we have the discretion to affirm the 

judgment on an alternative ground if it is apparent in the 

record.” Madsen v. Washington Mutual Bank FSB, 2008 UT 69, 

¶ 26, 199 P.3d 898 (emphasis omitted).

¶77 IntegraCore argues that it is entitled to summary 

judgment on this issue because iDrive’s USPS claim “is not 

supported by the terms of the Agreement.”13 While it is true 

there is no provision that says IntegraCore must use the USPS 

 

13. IntegraCore goes on to argue several other theories to 

challenge the district court’s denial of summary judgment on 

iDrive’s USPS contract claims. Those theories are based on the 

premise that iDrive would need to prove an oral modification of 

the contract for the claim to survive. Because we affirm the 

district court’s denial without presuming an oral modification to 

the contract, we do not reach those arguments.
iDrive Logistics v. IntegraCore

20150857-CA 37 2018 UT App 40

service, the Agreement also states that “[a]ll significant logistics 

decisions will flow through iDRIVE for review.” iDrive alleges, 

and IntegraCore does not dispute, that IntegraCore 

incrementally diminished its use of iDrive’s USPS account in 

favor of another broker’s USPS account during the term of the 

Agreement and without notifying iDrive. At the very least, it is 

an open question whether IntegraCore’s switch to another 

broker account for its USPS shipments constitutes a “significant 

logistical decision[]”; there is no provision requiring IntegraCore 

to use iDrive’s USPS account and Move Method is not a “carrier” 

as defined in the Agreement, but choosing which broker account 

to use is a logistical decision that, as iDrive argues, potentially 

affects savings. Because reasonable jurors, properly instructed, 

could conclude that such a change is a significant logistical 

decision requiring iDrive’s involvement, summary judgment 

was inappropriate. See Heslop v. Bear River Mutual Ins. Co., 2017 

UT 5, ¶ 20, 390 P.3d 314. Therefore, we affirm the district court’s 

denial of this motion.

D. Summary Judgment on IntegraCore’s Breach of Contract 

Claim14

¶78 The district court granted summary judgment in favor of 

iDrive on IntegraCore’s counterclaim for breach of contract. 

First, the court ruled that based upon its reasoning in its ruling 

in favor of iDrive on its principal claims, the same reasoning 

would apply to entitle iDrive to partial summary judgment on 

IntegraCore’s counterclaims. The district court’s analysis did not 

end there. The district court also ruled for an “independent 

reason” that, under the first to breach rule, iDrive was relieved 

 

14. Again, in the second order, the district court made no 

distinction and provided no separate analysis between the 

breach of contract and breach of the covenant of good faith and 

fair dealing. We therefore treat them as combined or redundant 

in this decision. See supra ¶ 22 note 5.
iDrive Logistics v. IntegraCore

20150857-CA 38 2018 UT App 40

of the obligation to perform. As a third basis upon which to 

grant partial summary judgment, the district court stated:

Finally, [the Agreement] . . . expressly and 

unambiguously precludes [IntegraCore] from 

asserting contract-based claims for damages 

against [iDrive]:

Notwithstanding anything else in this 

Agreement or otherwise, iDRIVE will not be 

liable with respect to any subject matter of 

this Agreement under any contract, 

negligence, strict liability or other legal or 

equitable theory (1) for any amounts . . . .

The Court finds that the language in the liability 

limitation is unambiguous and bars [IntegraCore’s] 

counterclaims for breach of contract and breach of 

the covenant of good faith and fair dealing in this 

case.

¶79 IntegraCore completely ignores this exculpatory clause of 

the Agreement, which was expressly the basis of the district 

court’s conclusion. Surprisingly, iDrive also does not mention 

the exculpatory provision or the court’s reliance thereon in its 

brief. Where an appellant fails to address the basis of the district 

court’s ruling, we reject the challenge. Golden Meadows Props., LC 

v. Strand, 2010 UT App 257, ¶ 17, 241 P.3d 375. Therefore, we 

affirm the district court’s grant of partial summary judgment on 

IntegraCore’s counterclaim for breach of contract in favor of 

iDrive.

CONCLUSION

¶80 For the foregoing reasons, we affirm in part and reverse in 

part and remand for further proceedings consistent with this 

opinion. We see no error in the district court’s interpretation of 
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20150857-CA 39 2018 UT App 40

the Agreement and affirm the district court’s ruling in that 

regard. However, the district court erred in granting partial 

summary judgment in favor of iDrive on its claim that 

IntegraCore breached the Agreement because disputed material 

facts exist regarding the question of performance. Likewise, we 

conclude that IntegraCore was not entitled to summary 

judgment on iDrive’s breach of contract claim. Further, we 

affirm the district court’s denial of IntegraCore’s motion for 

partial summary judgment on iDrive’s claims in regard to the 

USPS shipping account because reasonable jurors could 

conclude that IntegraCore’s actions amounted to a significant 

logistical decision that required iDrive’s input. Finally, because 

IntegraCore failed to address the district court’s ruling based on 

the exculpatory clause of the Agreement, we affirm the court’s 

grant of partial summary judgment in favor of iDrive on 

IntegraCore’s counterclaim. We remand to the district court for 

further proceedings consistent with this opinion.