Case No. 20030829-CA.Utah Court of Appeals.
Filed July 9, 2004. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, The Honorable Stephen L. Henriod.
G. Brent Smith, Salt Lake City, for Appellant.
Steven E. McCowin, Salt Lake City, for Appellees.
Before Judges Billings, Greenwood, and Orme.
MEMORANDUM DECISION
ORME, Judge:
We have determined that “[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument.” Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under applicable law.
“Summary judgment is appropriate only if the evidence demonstrates `that there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'” GuardianTitle Co. of Utah v. Mitchell, 2002 UT 63, ¶ 12, 54 P.3d 130 (quoting Utah R. Civ. P. 56(c)). “In reviewing a summary judgment, we accord no deference to the trial court and review its ruling for correctness.”Price Dev. Co. v. Orem City, 2000 UT 26, ¶ 9, 995 P.2d 1237.
We conclude that a settlement agreement was entered into as a matter of law. “A definite and seasonable expression of acceptance or a written confirmation . . . operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms.” Utah Code Ann. § 70A-2-207(1) (2001). Here, Appellees’ acceptance in the telephone conversation with Appellant was not conditioned on Appellees’ acknowledgment of Brown’s written response, nor was Appellant’s requested signature confirming his agreement “expressly made” a condition of Appellees’ acceptance of the settlement offer made by Appellant. Id. Moreover, the Brown acceptance did not significantly alter any of the material terms of the offer. See Cal Wadsworth Constr.v. City of St. George, 898 P.2d 1372, 1376 (Utah 1995). Appellant’s three-year delay in objecting to the color of the gazebo’s roof conclusively demonstrates that color was not a material term. Likewise, the difference in dimensions, while only a matter of a few inches in any event, is easily explained as a mere difference in how the measurements were taken. Therefore, the trial court was correct in recognizing a valid settlement agreement as a matter of law, see Reedeker v. Salisbury, 952 P.2d 577, 582 (Utah Ct.App. 1998), and the trial court’s enforcement of the agreement was proper because Appellant failed to demonstrate that Appellees were in breach of the agreement.
Appellant’s argument that the trial court erred in dismissing his other claims similarly lacks merit. First, Appellant stated in his November 9th letter to Appellees that the settlement agreement would “totally resolve this issue,” and, by so stating, Appellant agreed that the settlement agreement would resolve all claims against Appellees. Second, Appellant failed to preserve his Utah Consumer Protection Act claims before the trial court and therefore lost his right to assert them now. SeeBrookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. Third, duress requires (1) “`an improper threat by the other party that [(2)] leaves the victim no reasonable alternative.'” Andreiniv. Hultgren, 860 P.2d 916, 921 (Utah 1993) (quoting Restatement (Second) of Contracts § 175(1) (1981)). In the present case, neither element is met.
Finally, we refuse to disturb the trial court’s award of attorney fees to Appellees even though judgment was entered for Appellant, against which the fees were offset. While it is true that “a court has inherent equitable power to award reasonable attorney fees when it deems appropriate in the interest of justice and equity[,]” Rohan v. Boseman, 2002 UT App 109, ¶ 34, 46 P.3d 753 (internal quotations and citations omitted), cert. denied, 59 P.3d 603 (Utah 2002), the award in this case is readily sustainable pursuant to Utah Code Ann. § 78-27-56 (2002).
Affirmed.
WE CONCUR: Judith M. Billings, Presiding Judge, and Pamela T. Greenwood, Judge.