2018 UT App 133

THE UTAH COURT OF APPEALS

RICHARD HARDY,

Appellant,

v.

JEREMY MONTGOMERY AND JULIE MONTGOMERY,

Appellees.

Opinion

No. 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 Appellees

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in 

which JUDGES GREGORY K. ORME and RYAN M. HARRIS 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 Hardy owned a home in Helper, Utah. In late 2012 or 

early 2013, Hardy listed the home 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 Montgomerys, but he did not want to pay a real estate 

commission to Bridge Realty. To avoid paying the commission, 
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20160148-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 agreement with Bridge Realty expired. Hardy retained an 

attorney, who drafted a lease agreement (the Lease Agreement). 

Attached to the Lease Agreement was a real estate purchase 

contract (the REPC) and a seller financing addendum. 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 is 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 

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.
Hardy v. Montgomery

20160148-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 price.

¶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 

Montgomerys delivered a $7,000 check to Hardy as 

consideration for the 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. Instead, 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 for property taxes and insurance. Hardy never 

mentioned the Montgomerys’ failure to pay the $100 in 

additional rent nor 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 sell 

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 payments in 

May, June, and July 2013. The letter claimed that Hardy had no 

obligation to finance the purchase of the property because the 

REPC was “never executed or signed” and because the Lease 

Agreement provided that “the entire agreement is contained in 

the lease agreement and any additional agreement must be
Hardy v. Montgomery

20160148-CA 4 2018 UT App 133

signed by all of the parties.” The letter also alerted the 

Montgomerys that they were in default based 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 the second week of February 2014.

¶6 Hardy 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 Agreement 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 forgo 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, and 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 the 

Montgomerys owed Hardy; (4) Hardy provided no evidence of 

any lost sales opportunities for the home; and (5) Hardy 

provided no evidence regarding alleged damages to his personal 

property.
Hardy v. Montgomery

20160148-CA 5 2018 UT App 133

¶8 The trial court held a bench 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 court 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 owing and references several provisions of the Lease.” 

Thus, the court determined, “Hardy intentionally waived the 

right to collect the additional $100.00 each month in rent.” The 

court further determined that the Montgomerys’ June and 

October rent payments had been late. Applying the Lease 

Agreement’s late-fee and liquidated-damages provision, the 

court determined that the Montgomerys owed $140 in late fees 

and $2,420 in liquidated damages. The court rejected Hardy’s 

claim that he had lost potential sales of the 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 property 

[Hardy] left in the house.”

¶9 The court further determined that Hardy had 

anticipatorily repudiated the option agreement and that the 

Montgomerys had the right to cure their default and exercise the 

option. More specifically, 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 property 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

20160148-CA 6 2018 UT App 133

Hardy confirmed he would not finance the sale of the property. 

The court concluded 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 he were allowed to keep the full $7,000. 

After calculating Hardy’s damages and offsetting them from the 

$7,000, the trial court entered judgment 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 Montgomerys 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 erroneous, 

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 

consideration to exercise the option.” In a related argument, he 

contends that “[t]he parties did not intend for the 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 right 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

20160148-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 give a [trial] court deference.” 

Pledger v. Gillespie, 1999 UT 54, ¶ 16, 982 P.2d 572.

¶13 Fourth, Hardy contends that the trial court incorrectly 

calculated late fees and liquidated damages. “[T]he adequacy of 

a damage award is a factual question and we will not 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 Fifth, Hardy contends that he “is entitled to collect 

expenses 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 full rent did 

not constitute a breach of the agreement. Hardy contends that he 

“could not anticipatorily repudiate the option agreement on 

which the Montgomerys had already defaulted.” We disagree.

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

to sign the REPC, his July 2013 phone call with Jeremy 
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20160148-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, the 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 2014, 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 amounts 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 

Montgomerys 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 positive 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 continue 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 sell 
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20160148-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 

payments 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 never 

executed or signed,” 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.” The 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 Hardy’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 “find 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 the 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 Montgomerys from 

curing their default. Before sending the September 2013 letter, 

Hardy never informed the Montgomerys that they were in 

default. Rather, in the same September 2013 letter in which

Hardy first informed the Montgomerys they were in default, he 
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20160148-CA 10 2018 UT App 133

also informed them he was no longer going to provide financing 

for the purchase of the house. Importantly, however, 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. By 

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 seven-day period to cure that he 

provided in his September 2013 letter before he reneged on his 

obligation to provide financing.

¶20 The Lease Agreement states, in relevant part, “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, (‘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. Because 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

20160148-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 consideration 

to exercise the option.” We are not persuaded. As previously 

discussed, Hardy’s anticipatory breach effectively 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 

the 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 repudiate an 

obligation to finance the purchase of the property.”

¶23 In the trial court, Hardy argued that “the parties agreed 

the REPC was not binding.” The trial court rejected this 

argument, stating that it “did not hear testimony or receive other 

evidence 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 part of the Lease.” We agree with the trial court 

that the REPC and seller financing addendum were incorporated 

into the Lease Agreement.

¶24 The 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 enriched for the full $7,000.00.”
Hardy v. Montgomery

20160148-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 beginning 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 seller financing addendum 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 reference requires that the 

reference . . . be clear and unequivocal, and alert the nondrafting party that terms from another document are being 

incorporated.” (omission in original) (citation and internal 

quotation marks omitted)).

¶25 Regarding the REPC’s binding 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 the option to purchase the 

house. Whether an agreement is a binding contract is to be 

determined like any other issue of contract interpretation—from 

all four corners of the agreement. Café Rio, Inc. v. Larkin-GiffordOverton, LLC, 2009 UT 27, ¶ 25, 207 P.3d 1235. Under the parol 

evidence rule, only if a written contract is ambiguous concerning 
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20160148-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 Trust 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 testimony 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’, together with its applicable 

amendments, and addenda.” We have already determined that 

the REPC and seller financing addendum were thereby 

incorporated into the Lease Agreement, and the REPC and seller 

financing addendum outlined that Hardy, as the seller, would 

provide financing. Thus, we agree with the trial court’s 

determination that the parties’ trial testimony could not 

contradict 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 

contract during the time set forth in the agreement. See Coulter 

& Smith, Ltd. v. Russell, 966 P.2d 852, 859 (Utah 1998).
Hardy v. Montgomery

20160148-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 

enriched if he were allowed to retain the full $7,000. It is telling

that Hardy does not directly challenge the trial court’s unjustenrichment 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’ default, the “Buyer Default” 

provision of the REPC allowed him to cancel the REPC and 

retain the earnest money deposit as liquidated damages.

However, 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. Instead, 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 withdrew 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 (those favorable to him) do 

apply.

¶29 In sum, we agree with the trial court’s determination that 

Hardy was bound by the terms of the Lease Agreement and the 

REPC to provide financing, and that he anticipatorily breached 

that agreement when he told the Montgomerys 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 their 
Hardy v. Montgomery

20160148-CA 15 2018 UT App 133

default (within the time period to cure he provided in his 

September 2013 letter) and then exercise their option.

III. Waiver

¶30 Hardy contends that he did not waive his right to collect 

additional rents.

¶31 The Lease 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,” provides 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 monthly $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 the letter details other amounts owing and references 

several provisions of the Lease.” Based on these facts, the trial 

court concluded that Hardy had “intentionally waived the right 

to collect the additional $100.00 each month in rent.”

 

3. In its written findings, the trial court observed that the 

Montgomerys had testified that Hardy told them they did not 

have to pay the $100 per month until they purchased the house, 

but the court never made any determination about the credibility

of that testimony.
Hardy v. Montgomery

20160148-CA 16 2018 UT App 133

¶34 “A waiver is the intentional relinquishment 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, 937 (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 

omitted). “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 

determining 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

provision from 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 waiver clause in the contract 

that says Mr. Hardy can exercise 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 nonwaiver
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20160148-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 the 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, including 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 damages 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 and liquidated damages. 

The 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 liquidated 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 occurred in June and October 2013. Because the 

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 

waiver issue dealt with in Part III, this amount may need to be 

recalculated with reference to $800 per month in rent.
Hardy v. Montgomery

20160148-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 late for June and October’s rent.” According to Hardy, the 

Montgomerys “should be responsible for late fees for every 

month of the lease agreement.” This argument may be 

persuasive if Hardy prevails on the waiver 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 expenses 

and his attorney’s fees.” The trial court declined to award either 

party attorney fees, observing that “each party prevailed only on 

certain aspects of their claims.”

¶41 The 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, including a reasonable attorney’s 

fee.”

¶42 “In Utah, attorney fees are awardable only if authorized 

by statute or by contract.” Wing v. Code, 2016 UT App 230, ¶ 12, 

387 P.3d 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 the 
Hardy v. Montgomery

20160148-CA 19 2018 UT App 133

provisions of the promissory note, written contract, or other 

writing allow at least one party to recover attorney fees.” Utah 

Code Ann. § 78B-5-826 (LexisNexis 2012).

¶43 Hardy asserts that “[s]ince only [his] 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 attorney fees below.

¶44 Hardy also asserts that his “attorney fees should include 

fees [he] incurred as a result of having to bring this matter before 

the court of appeals.” Likewise, the Montgomerys assert that 

they should be awarded their attorney fees and costs 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, we decline both parties’ invitations 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, immaterial, 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 right to collect additional rents and 

remand for further findings on this issue and for possible reevaluation 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, including (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 confused 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 advocacy,’ and may subject [counsel] to 

sanctions that can include, among other things, striking the 

filings in which they appear” or assessing attorney fees. Bryner v. 

Department of Public Safety, 2016 UT App 199, ¶ 6, 382 P.3d 1078 

(per curiam) (first alteration 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 lawyer 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 office.”).

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 shall 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 

Professionalism 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 should 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 counsel, but we direct counsel to refrain from 

making such comments in future filings.