2018 UT App 133



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

R ICHARD H ARDY , Appell ant ,
v. J EREMY M ONTGOMERY AND J ULIE M ONTGOMERY , Appell ees

.

Opinion
N o. 20160148

- CA Filed June 28, 2018

Seventh District Court, Price Department The Honorable George M. Harmond
No. 140700039

Tyler A. Woodworth

, Attorney for Appellant

Shane Clifford

, Attorney for Appellee s

J UDGE M ICHELE M. C HRISTIANSEN authored th is Opinion

, in which J UDGES G REGORY K. O RME and R YAN M. H ARRIS concurred

.

CHRISTIANSEN

, Judge :

¶1 Richard Hardy appeals from the trial court’s order awarding judgment in favor of Jeremy Montgomery and Julie Montgomery (collectively, the Montgomerys). We affirm in part, vacate in part, and remand for further proceedings.

BACKGROUND

¶2 Hard y owned a home in Helper, Utah. In late 2012 or early 2013, Hardy listed the ho me for sale with Bridge Realty. Before the home sold, Hardy met the Montgomerys, who were interested in buying the home. Hardy wanted to sell his home to the Mon tgomerys, but he did not want to pay a real esta te commission to Bridge Realty. To avoid paying the commission,Hardy v. Montgomery

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- CA 2 2018 UT App 133 the parties agreed that the Montgomerys would lease the home from Hardy with an option to purchase the home after Hardy’s listing agreem ent with Bridge Realty expired. Hardy retained an attorney, who drafted a lease a greement (the Lease Agreement). Attached to the Lease Agreement was a r eal e state p urchase

c ontract (the REPC) a nd a s eller f inancing a ddendum. The Lease Agreement provided that the Montgomerys would pay $700 in rent plus $100 in “additional rent” to reimburse Hardy for property taxes and insurance. The Lease Agreement contained a
“Non

- Waiver” provision, which stated in part, “No failure of Landlord to enforce any term hereof shall be deemed a waiver, nor shall any acceptance of a partial payment of rent be deemed a waiver of Landlord’s right to the full amount thereof.” Most relevant here, the Lease Agreement contained an “Option to Purchase” provision, which stated:

Provided Tenant i s not in default hereunder, Tenant shall have the right to purchase (“Option”) the Premises for the Purchase Price of $126, 775.00, (“Purchase Price”) at any time after September 15, 2013 and before the end of the Term of the Lease. As consideration for the Option, Tenant shall pay Landlord, a non

- refundable option payment of $7,000.00 (“Option Payment”), payable on or before the beginning of the Term, which shall be applied to the Purchase Price and shall be counted

to ward the Earnest Money Deposit. In the event the Tenant exercises the Option to purchase the Premises, Tenant shall execute a Promissory Note for the balance remaining on the Purchase Price, after the Option Payment has been applied, and the parties shall close the transaction, as outlined in [ the REPC] , attached hereto as Exhibit “A”, together with its applicable amendments, and addenda.Hardy v. Montgomery

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- CA 3 2018 UT App 133 The REPC stated that the $7,000 was an earnest money deposit and that Hardy, as the seller, would provide financing for the remaining balance of the purchase p rice.

¶3 The parties signed the Lease Agreement on April 17, 2013

. The parties did not sign the REPC at that time. Hardy declined to sign the REPC because he allegedly had an “uneasy feeling” about selling the home to the Montgomerys. Nevertheless, the Montgo merys delivered a $7,000 check to Hardy as consideration for t he option to purchase the home. Pursuant to the terms of the REPC, Hardy was required to “deposit the Earnest Money into [a] Brokerage Real Estate Trust Account” within four days of receipt. Ins tead, Hardy deposited the $7,000
into his personal checking account.

¶4 The Montgomerys paid $700 per month in rent from May
2013 to October 2013; the Montgomerys never paid the $100 in additional rent fo r property taxes and insurance. Hardy never mentioned t he Montgomerys’ failure to pay the $100 in additional rent n or advised them that this amounted to a default of the Lease Agreement.

¶5 In July 2013, Hardy and Jeremy Montgomery spoke on the phone, and Hardy indicated that he no longer wished to sel l the house to the Montgomerys. Thereafter, in September 2013, Hardy’s attorney sent a letter to the Montgomerys. The letter stated, in relevant part, that the Montgomerys still had “the ability to exercise [the] option to purchase the residence,” but that Hardy was “not interested in financing the purchase of the property” based on the Montgomerys’ late rent paymen ts in May, June, and July 2013. The letter claimed that Hardy had no obligation to finance the purchase of the p roperty because the REPC was “never execute d or signed” and because the Lease Agreement provided that “the entire agreement is contained in the lease agreement and any additional agreement must beHardy v. Montgomery

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- CA 4 2018 UT App 133 signed by all of the parties.” The letter also alerted the Montgomerys that they were in default bas ed on their late rent payments and stated that it gave Hardy “the option to terminate the entire agreement at his discretion if [the Montgomerys] fail[ed] to remedy the breach of contract by paying all associated late fees and damages within 7 days of this notice.” The letter did not mention the fact that the Montgomerys had not been paying the full amount

— $800

— in rent and additional rent

. The Montgomerys stopped paying rent in October 2013 but stayed in the home until th e second week of February 2014.

¶6 Hard y sued the Montgomerys in May 2014, alleging breach of contract, unjust enrichment, conversion, and breach of the implied covenant of good faith and fair dealing. More specifically, Hardy claimed that the Montgomerys (1) violated the terms of the Lease Agr eement and that the REPC and Seller Financing Addendum “should be ignored” ; (2) owed rent in the total amount of $800 per month, not $700 per month ; (3) owed late fees and liquidated damages ; (4) owed Hardy damages for the sale opportunities Hardy had to f orgo from May 2013 through March 2014 because of the Montgomerys’ occupancy and claimed rights ; and (5) owed Hardy damages for missing personal property.

¶7 The Montgomerys filed an answer and counterclaim

, alleging that (1) the REPC was incorporated into , an d was a part of, the Lease Agreement ; (2) Hardy anticipatorily repudiated the option provision in the Lease Agreement ; (3) Hardy was unjustly enriched based on his anticipatory repudiation

, and the $7,000 Hardy received should be offset against anything th e Montgomerys owed Hardy ; (4) Hard y provided no evidence of any lost sales opportunities for the home ; and (5) Hardy provided no evidence regarding alleged da mages to his personal property.Hardy v. Montgomery

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- CA 5 2018 UT App 133 ¶8 The trial court held a benc h trial on October 2, 2015. In its written findings of fact and conclusions of law, the trial court determined that the Lease Agreement “clearly integrates the REPC and seller financing addendum into the Lease and the REPC is dated the same date as the Lease.” Regarding waiver, the c ourt determined that “Hardy never told the Montgomerys that the rental payment was in the wrong amount” and that the September 2013 letter from Hardy’s attorney did not demand the additional $100 per month “even though the letter details other
amounts owin g and references se veral provisions of the Lease.” Thus, the court determined, “Hardy intentionally waived the right to collect the addition al $100.00 each month in rent.” The court further determined that the Montgomerys’ June and Octob er rent payments ha d been late. Applying the Lease Agreement’s late

- fee and liquidated

- damages provision, the court determined that the Montgomerys owed $140 in late fees

an d $2,420 in liquidated damages. The court rejected Hardy’s claim that he had lost potential sales of t he home, finding that Hardy was “merely speculating that he may have been able to sell the house .” The court also rejected Hardy’s claims that “the Montgomerys kept or lost certain items of personal prope rty [Hardy] left in the house.”

¶9 The court further de termined that Hardy had anticipatorily repudiated the option agreement and that the Montgomerys had the right to cure their default and exercise the option. More s pecifically, the court determined that Hardy’s refusal to sign the REPC, while “not amounting to an anticipatory repudiation at that point, . . . clearly indicated Hardy was having second thoughts about financing the property.” The court observed that in his July 2013 phone call with Jeremy Montgomery, Hardy had “confirmed he would not sell the pr operty to [the] Montgomerys

. ” The court also observed that in his September 2013 letter, wherein Hardy purported to give the Montgomerys a seven

- day period to cure their default,Hardy v. Montgomery

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- CA 6 2018 UT App 133 Hardy confirmed he would not finance the sale of the property. The court conc luded that Hardy’s decision not to sign the REPC, his July 2013 phone call , and his September 2013 letter “all amount[ed] to an anticipatory repudiation.” Based on Hardy’s anticipatory breach, the court determined that Hardy would be unjustly enriched if h e were allowed to keep the full $7,000. After calculating Hardy’s damages and offsetting them from the $7,000, the trial court entered jud gment against Hardy for $1,990. Hardy appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Hardy raises several arguments on appeal . First, he contends that he “could not anticipatorily repudiate the option agreement on which the Mont gomerys had already defaulted.” The trial court’s “ [f] indings of fact, whether based on oral or other evidence , must not be set aside unless clearly erro neous, and the reviewing court must give due regard to the trial court’s opportunity to judge the credibility of the witnesses.” Utah R. Civ. P. 52(a)(4). We review the trial court’s conclusions of law for

correctness. Drazich v. Lasson , 964 P.2d 324, 326 (Utah Ct. App. 1998).

¶11 Second, Hardy contends that “[t]he REPC is immaterial because the Montgomerys never performed the necessary conside ration to exercise the option.” In a related argument, he contends that “[t]he parties did not intend for t he terms of the REPC to apply.” Again, we will not set aside the trial court’s findings of fact unless they are clearly erroneous, and we “ give due regard to the trial court’s opportunity to judge the credibility of the witnesses.” Utah R. Civ. P. 52(a)(4).

¶12 Third, Hardy contends that he “did not waive his righ t to collect additional rents.” Whether a contractual right has been waived presents a mixed question of law and fact

. See ASC Utah,Hardy v. Montgomery

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- CA 7 2018 UT App 133 Inc. v. Wolf Mountain Resorts, LC , 2010 UT 65, ¶ 11, 245 P.3d 184. “[W]hether the trial court employed the proper standard of waiver presents a legal question which is reviewed for correctness, but the actions or events allegedly supporting waiver are factual in nature and should be reviewed as factual determinations, to which we g ive a [trial] court deference.” Pledger v. Gillespie , 1999 UT 54, ¶ 16, 982 P.2d 572.

¶13 Fourth, Hardy conten ds that the trial court incorrectly calculated l ate fees and liquidated d amage s

. “ [ T ] he adequacy of a damage award is a factual question and we will n ot reverse the trial court’s findings unless they are clearly erroneous.” Tech Center 2000, LLC v. Zrii, LLC , 2015 UT App 281, ¶ 5, 363 P.3d 566 ( alteration in original ) (citation and internal quotation marks omitted) ; see also Utah R. Civ. P. 52(a)(4).

¶14 Fi fth, Hardy contends that he “is entitled to collect
exp enses and his attorney’s fees.” “Whether attorney fees are recoverable in an action is a question of law, which we review for correctness.” I

- D Elec. Inc. v. Gillman , 2017 UT App 144, ¶ 13
, 402 P.3d 802 (citation and internal quotation marks omitted).

ANALYSIS

I. Anticipatory Repudiation

¶15 Hardy first argues on appeal that the trial court erred in ruling that the Montgomerys ’ alleged default in not timely paying the amount that Hardy considered to be the f ull rent did not constitute a breach of the agreement

. Hardy contends that he “could not anticipatorily repudiate the option agreement on which the Mont gomerys had already defaulted.” We disagree.

¶16 Here, the trial court concluded that Hardy’s decision not

t o sign the REPC, his July 2013 phone call with JeremyHardy v. Montgomery

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- CA 8 2018 UT App 133 Montgomery, and his September 2013 letter “all amount[ed] to an anticipatory repudiation.” The court then observed that, both at the time of Hardy’s July 2013 phone call and his September 2013 letter, t he Montgomerys “were not current with all financial obligations ” and that the Lease Agreement allowed the Montgomerys “to exercise the option to purchase pursuant to the REPC at any time from September 15, 2013 through the end of the lease period, April 20 14, if they were not in default.” The

court ultimately determined:

It could be argued that the option terminated upon the Montgomerys’ default. But a default only suspends the non

- defaulting party’s performance until it is discharged when the default amoun ts to

a total breach. Though the Lease [Agreement]

. . . defines a default, the Lease [Agreement] is silent as to the right to cure the default but also does not preclude it. Although the right to exercise the option was suspended by their breach, the
Mont gomerys had the right to cure the default, exercise the option and purchase the house pursuant to the REPC. Hardy’s anticipatory repudiation breached the option agreement.

¶17 “An anticipatory breach occurs when a party to an executory contract manifests a pos itive and unequivocal intent not to render performance when the time fixed for performance is due.” Kasco Services Corp. v. Benson , 831 P.2d 86, 89 (Utah 1992). “ The other party can immediately treat the anticipatory repudiation as a breach, or it can cont inue to treat the contract as operable and urge performance without waiving any right to sue for that repudiation.” Id.

¶18 Jeremy Montgomery testified at trial that in July 2013 Hardy told him over the phone that he no longer wished to sel lHardy v. Montgomery

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- CA 9 2018 UT App 133 the house to the Montgomerys. Moreover, the September 2013 letter from Hardy’s attorney stated that the Montgomerys still had “the ability to exercise an option to purchase the residence,” but that Hardy was no longer “interested in financing the purchase of this property” based on the Montgomerys’ late rent
paymen ts in May, June, and July 2013. The letter further stated that Hardy bore “no contractual (or other) obligation to finance the purchase of the property,” that the REPC “was neve r executed or signe d,” and that the Lease Agreement “clearly states that the entire agreement is contained in the lease agreement and any additional agreements must be signed by all of the parties.” T he letter also informed the Montgomerys that they were in “material breach” of the Lease Agreement and provided that Hardy had “the option to terminate the entire agreement at his discretion if [the Montgomerys] fail[ed] to remedy the breach of contract by paying all associated late fees and damages within 7 days of this notice .” (Emphases added.)

¶19 We conclude that Hard y’s statements to Jeremy Montgomery in July 2013, and Hardy’s statements in the September 2013 letter that he was “not interested in financing the purchase of this property” and that the Montgomerys would need to “fi nd financing to purchase the property” constituted an anticipatory breach of the option agreement contained within the Lease Agreement

. Although the Montgomerys were in default based on their failure to pay the accrued late fees, we ultimately agree with t he trial court that the Montgomerys had the right to cure their default and that their “right to exercise the option was [only] suspended by their breach.” As the trial court correctly observed, the Lease Agreement is silent as to the right to cure, but it also does not preclude the Montgome rys from curing their default. Before sending the September 20 13 letter, Hardy never informed the Montgomerys that they were in default. Rather, in the same September 2013 letter in which Hardy first informed the Montgom erys they were in default

, heHardy v. Montgomery

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- CA 10 2018 UT App 133 also informed them he was no longer going to provide financing for the purchase of the house. Importantly, h owever, Hardy also stated in the letter that he had “the option to terminate the entire agreement at his discretion if [the Montgomerys] fail[ed] to remedy the breach of contract by paying all associated late fees and damages within 7 days of this notice .” (Emphasis added.) Essentially, Hardy gave the Montgomerys a seven

- day period in which to cure their default before he would terminate the agreement. B y simultaneously reneging on his obligation to provide financing, Hardy failed to give the Montgomerys a reasonable opportunity to cure their default. In other words, Hardy should have actually given the Montgomerys the sev en

- day period to cure that he provided in his September 2013 letter before he reneged on his obligation to provide financing.

¶20 T he Lease Agreement states , in relevant part, “Provided Tenant is not in default hereunder, Tenant shall have the right to purchas e (‘Option’) the Premises for the Purchase Price of $126, 775.00, (‘Purchase Price’) at any time after September 15, 2013 and before the end of the Term of the Lease .” (Emphasis added.) Although Hardy correctly observes that the Lease Agreement allowed him to “immediately terminate [the] Agreement” based on the Montgomerys’ default, Hardy never sought to terminate the agreement before he reneged on his obligation to provide financing. Hardy did not seek to terminate the agreement in the September 2013 letter . Instead, he explicitly stated that he would give the Montgomerys an opportunity to cure their default before he would terminate the agreement. Consequently , the Montgomerys should have been able to exercise the option so long as they cured their default within seven days of Hardy’s letter. B ecause Hardy reneged on his obligation to provide financing before giving the Montgomerys the chance to cure, we conclude that the trial court did not err when it determined that Hardy anticipatorily breached the option agreement.Hardy v. Montgomery

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- CA 11 2018 UT App 133 II. The REPC

¶21 Hardy contends that “[t]he REPC is immaterial because the Montgomerys never performed the necessary conside ration to exercise the option.” We are not persuaded. As previously discussed, Hardy’s anticipatory breach e ffectively precluded the Montgomerys from exercising their option to purchase the home after they had paid $7,000 to Hardy as consideration for that option. Hardy backed out of providing financing before he sought to terminate either the Lease Agreement or the REPC. 1

¶22 Hardy also contends that “[t]he parties did not intend for

t he terms of the REPC to apply.” According to Hardy, “[s]ince all the parties are in agreement that they did not intend for the REPC to be binding, [he] could not anticipatorily repudia te an obligation to finance the purchase of the property.”

¶23 In the trial court, Hardy argued that “the parties ag reed the REPC was not binding.” The trial court rejected this argument, stating that it “did not hear testimony or receive other

e vidence of any such agreement.” The court further determined that the Lease Agreement “clearly integrates the REPC and seller financing addendum into the Lease” and that “the REPC and addendum are p art of the Lease.” We agree with the trial court that the REPC and s elle r f inancing a ddendum were incorporated into the Lease Agreement.

¶24 T he Lease Agreement provides,

Provided Tenant is not in default hereunder, Tenant shall have the right to purchase (“Option”) the Premises for the Purchase Price of $126,775.00,

1

. This was also the reasoning for the trial court’s conclusion that “Hardy was unjustly en riched for the full $7,000.00.”Hardy v. Montgomery

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- CA 12 2018 UT App 133 (“Purchase Price”) at any time after September 15, 2013 and before the end of the Term of the Lease. As consideration for the Option, Tenant shall pay Landlord, a non

- refundable option payment of $7,000.00 (“Option Payment”), payable on or before the begin ning of the Term, which shall be applied to the Purchase Price and shall be counted toward the Earnest Money Deposit. In the event the Tenant exercises the Option to purchase the Premises, Tenant shall execute a Promissory Note for the balance remaining on the Purchase Price, after the Option Payment has been applied, and the parties shall close the transaction, as outlined in [ the REPC] , attached hereto as Exhibit “A”, together with its applicable amendments, and addenda.

Based on the foregoing provision
, we agree with the trial court that the REPC and s eller f inancing a ddendum were incorporated
into , and were a part of, the Lease Agreement. See generally Peterson & Simpson v. IHC Health Services, Inc. , 2009 UT 54, ¶ 15, 217 P.3d 716 (“Incorporation by refe rence requires that the reference . . . be clear and unequivocal, and alert the non

drafting party that terms from another document are being incorporated.” (omission in original) (citation and internal quotation marks omitted)).

¶25 Regarding the REPC’s bindi ng effect, Hardy cites his trial testimony and testimony from the Montgomerys indicating that the parties did not intend for the REPC to be binding unless and until the Montgomerys exercised th e option to purchase the house. W hether an agreement is a bindi ng contract is to be determined like any other issue of contract interpretation

— from all four corners of the agreement. Café Rio, Inc. v. Larkin

- Gifford

Overton, LLC , 2009 UT 27, ¶ 25 , 207 P.3d 1235 . Under the parol evidence rule, only if a written contract is ambiguous concerningHardy v. Montgomery

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- CA 13 2018 UT App 133 a specific matter in the agreement do facts and circumstances existing prior to and contemporaneously with its execution become relevant to clarify the intent and purpose of the contract in that regard

. See Tangren Family T rust v. Tangren
, 2008 UT 20, ¶ 11
, 182 P.3d 326. Parol evidence is not relevant for the purpose of varying and nullifying a written contract’s clear and positive provisions. Id. Stated another way, the parol evidence rule excludes from evidence any oral te stimony that would tend to add to, subtract from, or alter the terms of a clear and unambiguous written contract

. Id.

¶26 Here, the plain language of the Lease Agreement and the REPC are clear and unambiguous and demonstrate that the parties intended the REPC to be binding in the event the option was exercised

. 2 The Lease Agreement provided that if the Montgomerys exercised the option to purchase the house, “the parties shall close the transaction, as outlined in [ the REPC]

, attached hereto as Exhibit ‘ A ’ , toge ther with its applicable amendments, and addenda.” We have already determined that the REPC and s eller f inancing a ddendum were thereby incorporated into the Lease Agreement, and the REPC and s eller
f inancing a ddendum outlined that Hardy, as the seller, wou ld provide financing. Thus, we agree with the trial court’s determination that the parties’ trial testimony could not

contra dict their written agreement.

¶27 Moreover
, Hardy’s anticipatory breach precluded the Montgomerys from exercising the option to purchase the home.

2

. It is true that there is a difference between an option contract and a purchase contract. But as long as the optionee has given sufficient consideration, the optionor cannot withdraw from the

co ntract during the time set forth in the agreement. See Coulter
& Smith, Ltd. v . Russell , 966 P.2d 852, 859 (Utah 1998).Hardy v. Montgomery

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- CA 14 2018 UT App 133 Despite the fact that the Lease Agreement provided that the $7,000 would be “non

- refundable

, ” the trial court determined that because Hardy “foreclosed the Montgomerys [’] exercise of the option by his repudiation,” Hardy would be unjustly enrich ed if he were all owed to retain the full $7,000. It is telling that Hardy does not directly cha llenge the trial court’s unjust

enrichment decision in his opening brief. Rather, he argues only that the Lease Agreement provided that the $7 ,000 would be
“non

- refundable.”

¶28 It is worth noting that Hardy contends in his reply brief that

, based upon the Montgomerys’ de fault, the “Buyer Default” provision of the REPC allowed him to cancel the REPC and retain the e arnest m oney d ep osit as liquidated damages.
Howe ver, Hardy did not treat the $7,000 as an earnest money deposit pursuant to the terms of the REPC, which required him to “deposit the Earnest Money into [a] Brokerage Real Estate Trust Account” within four days of receipt. I nstead

, he treated the $7,000 as an option payment and deposited it into his personal checking account. Additionally , Hardy did not terminate the REPC ; he merely withdre w his promise to provide seller financing as outlined in the REPC. Thus, the “Buyer Default” provision of the REPC does not help Hardy. Moreover, as a general matter, Hardy cannot selectively apply the terms of the REPC, i.e., he cannot persuasively argue in his opening brief that the REPC does not apply and also argue in his reply brief that selective terms of the REPC (t hose favorable to him) do apply.

¶29 In sum, we agree with the trial court’s determination that Hardy was bound by the term s of the Lease Agreement and the REPC to provide financing, and that he anticipatorily breached that agreement when he told the Montgomer ys he did not want to sell them the house and told them he would no longer provide financing before he gave the Montgomerys a chance to cure theirHardy v. Montgomery

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- CA 15 2018 UT App 133 default (within the time period to cure he provided in his September 2013 letter) and then exercise their opt ion

.

III. Waiver

¶30 Hardy contends that he did not waive his rig ht to collect additional rents.

¶31 The L ease Agreement provides that the Montgomerys were required to pay $700 per month in rent, along with “additional rent ” of $100 per month “to reimburse [Hardy] for the estimated property taxes and insurance.” The Montgomerys failed to pay the additional $100 for the entirety of the lease. 3

¶32 Also relevant here, the Lease Agreement , under a provision entitled “ NON

- WAIVER ,” pr ovides that “ [n] o failure of Landlord to enforce any term hereof shall be deemed a waiver, nor shall any acceptance of a partial payment of rent be deemed a waiver of Landlord’s right to the full amount thereof. ”

¶33 In deciding whether Hardy waived the monthl y $100 in additional rent, the trial court observed that “Hardy never told the Montgomerys that the rental payment was in the wrong amount” and that the September 2013 letter from Hardy’s attorney did not demand the additional $100 per month “even though t he letter details other amounts owing and references

se veral provisions of the Lease.” Based on these facts, the trial court concluded that Hardy had “intentionally waived the right to collect the addition al $100.00 each month in rent.”

3

. In its written findings, t he trial court observed that the Montgomerys had testified that Hardy told them they did not have to pay th e $100 per month until they purchased the house

, but the cou rt never made any determination about the credibility of that testimony.Hardy v. Montgomery

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- CA 16 2018 UT App 133 ¶34 “ A waiver is the in tentional r elinquishment of a known right. To constitute a waiver, there must be an existing right, benefit or advantage, a knowledge of its existence, and an intention to relinquish it. ” Soter’s, Inc. v. Deseret Fed. Sav. & Loan Ass’ n , 857 P.2d 935, 9 37 ( Utah 1993) (citation and internal quotation marks omitted). “[T]he intent to relinquish a right must be distinct.” Id. at 942. “[M]ere silence is not a waiver unless there is some duty or obligation to speak.” Id. at 940 (citation and internal quotation marks omitted). “Under this legal standard, a fact finder need only determine whether the totality of the circumstances warrants the inference of relinquishment.” Id. at 942 (citation and internal quotation marks
omi tted). “While a no

- waiver provision is one element to be considered in analyzing whether waiver has occurred, it is not determinative.” ASC Utah, Inc. v. Wolf Mountain Resorts, LC , 2010 UT 65, ¶ 37, 245 P.3d 184; see also Living Scriptures, Inc. v. Kudlik

, 890 P.2d 7, 10 n.5 (Utah Ct. App. 1995) (observing that rather than viewing a nonwaiver provision as a complete bar to a finding of waiver, “the best approach is to view the existence of an antiwaiver provision as merely one factor to consider in determin ing whether a party has waived its rights under the agreement”).

¶35 The trial transcript indicates that the nonwaiver provision of the Lease Agreement was brought to the trial court’s attention during trial. First, Jeremy Montgomery read the nonwaiver provisi on f rom the stand during trial. Second, in closing argument, Hardy’s counsel observed, “[Hardy] didn’t give them
a notice of default, but there is a waive r clause in the contract that says Mr. Hardy can ex ercise his rights at any time.” However, the trial court did not explicitly address the nonwaiver provision in its findings. Given that a nonwaiver provision is a

“ factor

. . . in determining whether a party has waived its rights under the agreement ,” Living Scriptures
, 890 P.2d at 10 n.5 , the trial court should have addressed the effect of the nonwaiverHardy v. Montgomery

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- CA 17 2018 UT App 133 provision on this issue. It is impossible for us to discern whether the trial court overlooked the nonwaiver provision altogether or simply determined that the other evidence indicating waiver outweighed th e nonwaiver provision.

¶36 Based on the foregoing, we vacate the waiver portion of the trial court’s decision and remand for a reconsideration of the
issue
, includ ing the entry of explicit findings regarding the nonwaiver provision of the Lease Agreement.

IV. Late Fees and Liquidated Damages

¶37 Hardy contends that “[l]ate fees and damage s were calculated incorrectly.” The resolution of the waiver issue discussed above directly relates to Hardy’s arguments regarding the trial court’s calculation of late fees a nd liquid ated damages.
T he Lease Agreement provides,

Rents that are more than five days late are subject to a late fee of 10% of the total monthly installment. If the rental installment is paid after the 10th, Tenant agrees to pay an additional $10.00 per day as li quidated damages from the 10th until all rent, penalties, cleaning and/or damage charges, utility bills, fines and late fees are paid in full

.

¶38 The trial court determined that the Montgomerys’ only late payments occurre d in June and October 2013. Because th e trial court determined that Hardy had waived the additional monthly rent of $100, the court calculated the late fee amount with reference to $700 per month, resulting in $140 in late fees (10% of $700 = $70 x 2 months = $140). Upon resolution of the
waiv er issue dealt with in P art III , this amount may need to be recalculated with reference to $800 per month in rent.Hardy v. Montgomery

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- CA 18 2018 UT App 133 ¶39 In addition, Hardy argues that because the Montgomerys never paid the $800 called for by the Lease Agreement, the trial

court was “incorrect in determining that the Montgomerys were only lat e for June and October’s rent.” According to Hardy, the Montgomerys “should be responsible for late fees for every

mont h of the lease agreement.” This argument may be persuasive if Hardy prevails on the waiv er issue. Therefore, in light of our remand for additional findings with respect to waiver, the trial court should accordingly reevaluate late fees and liquidated damages.

V. Attorney Fees

¶40 Hardy contends that he “is entitled to collect exp enses and his attorn ey’s fees.” The trial court declined to award either party attorney fees, observing that “each party prevailed only on

ce rtain aspects of their claims.”

¶41 T he Lease Agreement provides, “Should it become necessary for Landlord to employ an attorney to enforce any of the conditions or covenants hereof, including the collection of rentals or gaining possession of the Premises, Tenant agrees to pay all expenses so incurred, includin g a reasonable attorney’s fee.”

¶42 “In Utah, attorney fees are awardable only if auth orized by statute or by contract.” Wing v. Code
, 2016 UT App 230, ¶ 12,
387 P. 3 d 601 (citation and internal quotation marks omitted). “Under Utah’s Reciprocal Fee Statute, courts may award attorney fees to the prevailing party of a contract dispute so long as the contract provided for the award of attorney fees to at least one of the parties.” Id. More specifically, Utah’s Reciprocal Fee Statute provides, “ A court may award costs and attorney fees to either party that prevails in a civil action based upon any promissory note, written contract, or other writing

. . . when theHardy v. Montgomery

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- CA 19 2018 UT App 133 provisions of the promissory note, written contract, or other

wr iting allow at least one party to recover attorney fees. ” U tah Code Ann. § 78B

- 5

- 826 (LexisNexis 2012)

.

¶43 Hardy asserts that “[s]ince only [h is] claims are justified,

. . . reciprocity of attorney’s fees does not apply and [he] should be entitled to collect his expenses and a reasonable attorney’s fee. ” However, the trial court determined that “each party prevailed only on certain aspects of their claims,” and we have affirmed several of the trial court’s decisions. Moreover, a trial court may weigh competing claims and decide that neither party is entitled to an award of attorney fees. Cf. Anderson
& Karrenberg v. Warnick , 2012 UT App 275, ¶ ¶ 13

− 14, 289 P.3d 600. Accordingly, we conclude that the trial court did not err in declining to award either party atto rney fees below.

¶44 Hardy also asserts that his “attorney fees should include fees [he] incurred as a result of having to bring this matte r before the court of appeals.” Likewise, the Montgomerys assert that they should be awarded their attorney fees and cost s associated with Hardy’s appeal. In view of our affirmance of the trial court’s decision not to award either party attorney fees incurred below, w e decline both parties’ invitation s to award attorney fees incurred on appeal. 4

4

. In light of our discussion in footnote 5, infra , regarding Hardy’ s intemperate briefing, Hardy is fortunate we are not assessing the Montgomerys’ attorney fees against him. See Utah R. App. P. 24(i) (“The court on motion or on its own initiative may strike or disregard a brief that contains burdensome, irrelevant, immater ial, or scandalous matter, and the court may assess an appropriate sanction including attorney fees for the violation.”).Hardy v. Montgomery

20160148

- CA 20 2018 UT App 133 CONCLUSION

¶45 Hardy was bound by the Lease Agreement and the REPC to finance the sale of the home

, and we agree with the trial court that his renunciation of that promise constituted an anticipatory breach. However, we vacate the trial court’s decision as to whether Hardy waived his ri ght to collect additional rents and remand for further findings on this issue and for possible re

evaluation and re

- calculation of late fees and liquidated damages. Finally, we decline to award attorney fees to either party on appeal. 5

5

. We note that Hardy’s opening brief contains several disrespectful and offensive statements directed toward the trial

court , includi ng (1) “the lower court is either clueless, completely negligent . . . , or it bears significant bias against Hardy,” and (2) “the lower court was at a minimum derelict in its duties” and was “significantly confuse d and erratic in its findings.” We caution Hardy’s counsel that “personal attacks on the integrity of judges of this or any other court or statements that are generally disrespectful of the judiciary or ascribe improper motives to a court or judges ‘ overstep[] the bounds of appropriate appellate a dvocacy, ’ and may subject [counsel] to sanctions that can include, among other things, striking the filings in which they appear” or asse ssing attorney fees

. Bryner v. Department of Public Safety , 2016 UT App 199, ¶ 6, 382 P.3d 1078 ( per curiam) ( first alt eration in original) ( quoting Peters v. Pine Meadow Ranch Home Ass’n , 2007 UT 2, ¶ 8, 151 P.3d 962 ) ; see also
Peters , 2007 UT 2, ¶ ¶ 20 , 23 ( striking the petitioners’ briefs, assessing the respondent’s attorney fees against the petitioners’ counsel, and observing that, “ [e] ven where a lawyer’s unprofessionalism or incivility does not warrant sanctions, it often will nevertheless diminish his or her effectiveness”); Utah (continued...)Hardy v. Montgomery

20160148

- CA 21 2018 UT App 133 (...continued) R. Prof’l Conduct 8.2(a) (“A lawye r shall not make a public statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or a candidate for election or appointment to judicial o ffice.”). Hardy’s reply brief also alleges that the Montgomerys acted in “bad faith ” and made a “ conscientious decision

. . . to mislead this Court.” Standard 1 of the Utah Standards of Professionalism and Civility states, in relevant part, that “lawyers s hall treat all other counsel, parties, judges, witnesses and other participants in all proceedings in a courteous and dignified manner. ” Standard 3 of the Utah Standards of Profe ssionalism and Civility states, Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries. Neither written submissions nor oral presentations sho uld disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under controlling substantive law. We stop short, in this case, of striking Hardy’s brief or otherwise sanctioning cou nsel, but we direct counsel to refrain from making such comments in future filings.