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Show PAGE TUESDAY, DECEMBER 18. 1973 THE DAILY RECORD FOUR In The Supreme Court Of The State Of Utah in that tie had failed to pay the $3, 300 on July 1, or five days thereafter. Mr. Blake was informed that if he did not remedy the default within five days after receiving the notice, Mrs. Lee was exercising her right to declare a forfeiture and consider herself released. On September 12, 1972, Mrs. Lee by letter notified Mr. Blake that he had failed to pay the $3, 300 after notice of default, and that she was declaring his payments forfeited, his right to a conveyance terminated, as provided in the contract. memorandum in opposition to summary judgment did not create an issue requiring trial. They merely repeated the sequence of events prior to the execution of the uniform real estate contract, which did not create an issue which must be resolved by a trial to determine .the legal rights of the parties. : court erred in granting Mrs. Lee's the of all for counterclaim forfeiture payments made under the terms of the uniform real estate contract as liquidated damages. Blakes contend that there was no evidence to establish that Mrs. Lee had sustained any damages; and, therefore, the forfeiture provision as liquidated damages in the contract was per fee unconscionable and a penalty without proof that the payments retained bore a substantial relationship to damages sustained. The Blakes urge that Plaintiffs' complaint waW filed on June 30, 1972, although it is confusing. Evidently their theory was that the earnest money receipt had been subsequently modified by an oral agreement, which provided the Blakes would make the house payments of the vendor in the sum of $159 per month and the vendor would occupy the premises for one year, Blakes claimed that they had paid thereunder seven house payments totaling $1,113 and a $14 water assessment. They claimed that they were subsequently informed that since they had not fulfilled the obligations in the earnest money receipt, the contract was unenforceable and the sums they had paid were forfeited. Blakes alleged that tney were inaucea to enter into a real esrate contract on way it, I'iTt. Blakes urged that the earnest, money receipt as modified by the oral agreement was a valid and enforceable contract, and they pleaded for specific performance thereof. Plaintiff Clegg sought his real estate commission based on the viability of the earnest money receipt. Blakes t it be applied on sought judgment for the seven payments of $159 the under earnest the purchase money money receipt. Blakes further sought to have the uniform real estate contract declared null and void. Plaintiffs did not raise this issue in their pleadings, although the question of. forfeiture was set forth in defendant's counterclaim. Plaintiffs offered no affidavits in opposition to summary judgment setting forth facts supporting their claim. This court will not consider an issue raised for the first time on appeal. Orderly procedure requires that a party must present his entire case and his theory or theories to the trial court, and he cannot thereafter urge a different theory in an attempt to prolong litigation. Plaintiffs' contention that a vendor must prove his actual damages he is permitted to retain under a forfeiture provision of a real estate the payments of a' defaulting vendee is not the law in this jurisdiction. or-tha- ' Finally, plaintiffs contend that defendant is not entitled to an award of attorney's fees, since defendant sought to avoid and not to enforce the contract. Plaintiffs, the Blakes, in their second cause of action alleged that through false and fraudulent representations they were induced to enter the highly disadvantageous uniform real estate contract. They sought punitive damages for $10,000. In the third cause of action, plaintiff Clegg alleged that defendant intentionally delayed the preparation of a contract to support the earnest money receipt for the purposd and intent to defraud him of his real estate commission. Clegg sought judgment for 6 of the purchase price of $26, 800. In response to defendant's counterclaim, Mr. Blake asserted as Plaintiffs' contention is without merit, since paragraph 21 of the uniform real estate contract specifically provided for attorney's fer for the nondefaulting party, while pursuing any remedy provided under the contract or by the statutes of the state' of Utah. The judgment of the trial court is affirmed. defendant. a defense that he had entered into the uniform real estate contract under duress and as a result of false representations. Mr. Blake denied that he was in default and claimed that he had paid defendant $5, 427, which should be credited to his account. F. Henri Henriod, Justice A. H. Ellett, Justice pressly understood and agreed that there were no representations, convenants, or agreements with reference to the property except for those specifically set forth or attached to the agreement. In addition, defendant cited the exhibits and deposition of Mr. Blake, which indicated that there was no fraud or duress practiced on him to induce him to execute the contract. Mr. Blake had, in fact, by letter, specifically released defendant from any further liability in connection with any payment made or with negotiations which had taken place. Furthermore, Janna Blake, alone, executed the earnest money receipt. The depositions and exhibits clearly evidenced the fact that Blakes, either together or individually, were never ready, willing, and able purchasers; therefore, Clegg was not entitled to his real estate commission. Defendant urged that the plaintiffs' second and third causes of action should be dismissed for their failure to plead fraud with particularity as required under Rule 9 (b), U. R.C.P. The depositions of the Blakes clearly indicated that there was no factual basis to support the allegations of fraud. The documentary evidence presented by defendant fully supported her counterclaim. Plaintiffs offered no counteraffidavits in opposition to the motion for summary judgment, but relied upon their allegations of fraudulent misrepresentations in their complaint. R. L. Tuckett, Justice - 56 (e), U. R.C.P. , United American Life Insurance Company v. Willey, 1. I agree with the affirmance of the ruling of the trial court that there is no triable issue as to fraud in the inducement of the contract. However, t do not agree that the trial court was justified in granting summary judgment as to other issues. I avoid burdening this lone dissent and the printed page with any extensive recitation of plaintiffs' claims as to the facts upon which they sought to enforce their right to purchase the property. But, as will appear from the main opinion, these points are salient: that there were extended negotiations between the parties concerning the purchase of the home of Mrs. Lee; that quite different from the usual case of the forfeiture of a real estate purchase contract, she remained in the possession of her home, and meanwhile accepted payments aggregating over $5,000; that in seeking forfeiture she relies on notices of only five days, and reciting forfeiture to be an already accomplished fact; and served after the commencement of this action. . .When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his plead ig, but his response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if,aggrogriate, shall be entered against him. A matter may be determined on summary judgment upon facts given in a oarty's deposition. Under Rule 56 (e), U. R.C.P., an adverse party may not relv on mere allegations or denials in his pleadings, but he must set forth the facts showing that there is a genuine issue as to a material fact for trial. . . This is a case in equity. It may well be that upon a trial of the issues, the trier of facts would find the defendant's actions to be unreasonable and arbitrary, and refuse to enforce the forfeiture. See Wingets v. Bitters, 28 Utah 2d 231, 500 P. 2d 60. Consequently, I think there are disputed issues of fact which should have been tried. Glen Krinke etux to Vivaldino Taroco etal Speck Constructo Melvin M Ahrens John E Cameron Jr K Markland For any . etux to Milton Douglas Wagstaff etux Btrtfeidf th effteb. Dictate iSyour ldfea, notaMM rtport " 395 Norelco 95 in pocket Call or visit: a y0ur,; adth TRUC-TO-UF-K M Pistole etux to Joseph 0 Clark etux 396 L Stephen Richards Jr etux to Pul R Green etux fsfetor, Mslar, at any tbn. be moffe confidant, .'inoce efficient Dwane SOUNlj 132-001- 3 to Steven Douglas A to Collins Warren Prud Fed Savings Rose Pechina etal 457 Lucille 458 Florence Caldwell Gaddis to Jennie Robbins Nelson Joseph D Bleazard etux to Roger Williams etux 463 413 Price etux to Heber Clark Passey etux 452 Jennie to Charles T Harrington Max Young etux to Ray G A Nelson Robert George etux to Robert etux Bolman George Bolman Larry D Brimhall etux to Roger L Reynolds etux 493 Bangerter to Robert Douglas Boyd 444 476 Hendrickson Enterprises Pappas etux Rebel Enterprises Inc to IMC Mint Corp 397 KEY BUSINESS MACHINES INC. P.O. Pm 132 21 Kstesy Avtnus Salt Lafca City, Utah Milt TMaphom HOI) 439 Bell Mountain Corp to Rick Warner Ford 441 Alice P Haycock 443 Brent Johanson etux to Bruce R Curtis etux 483 440 to Yukio Kachi etux Morse A Comstock etux 381 Jack L etux to Frank Joseph Hill etux to Arne etux 394 Herbert 428 Warranty Deeds 390 Warranty Deeds I 6 The statements in Mr. Blake's deposition refuted his allegations of fraud and misrepresentation; therefore, plaintiffs could not rely on their plead- ings to avoid summary judgment. The other facts cited by p aintiffs in their etux Utah 2d 279, 285, 'e provides: tion 21 444 P. 2d 755 (1968). 2. F.M.A. Financial Corporation v. Build, Inc., 17 Utah 2d 80, 85, 404 P. 2d 670 (1965). 3. Simpson v. General Motors Corp. , 24 Utah 2d 301, 303, 470 P. 2d 399 (1970). 4. Jensen v. Nielsen, 26 Utah 2d 96, 485 P. 2d 673 (19711. Plaintiffs cite the allegations in their pleadings to substantiate their claim. Rule Costs are awarded to WE CONCUR: In her motion for summary judgment, defendant urged that the earnest money receipt of July, 1971, and the alleged subsequent oral modifications were merged into the written uniform real estate contract executed by Mr. Blake on May 12, 1972. This latter agreement provided that the parties ex- On appeal, plaintiffs urge the trial court erred in granting summary judgment on the ground that there were numerous issues of fact in conflict. the-tria- l etux Lynn Taylor United Homes Inc to Leonard Blaine Openshaw etux 496 503 Jean to Viola Carlos B S Nelson etal Bartley K Curtis etux to Karl J Curtis 512 etux 515 Julia Julia W W Ross Ross etal to Larry S Linnell etux to Clayton Hutcheon etux 519 |