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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 38561 BUKU PROPERTIES, LLC, an Idaho limited ) liability company, ) ) Plaintiff-Respondent, ) ) v. ) ) RAOEL H. CLARK and JANET C. CLARK, ) husband and wife; ANGUS JERRY ) PETERSON and BETTY JEAN PETERSON, ) husband and wife, ) ) ) Defendants-Appellants. _______________________________________ )

Rexburg, November 2012 Term 2012 Opinion No. 152 Filed: December 21, 2012 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Jefferson County. The Honorable Dane H. Watkins, Jr., District Judge. The judgment of the district court is affirmed. Dunn Law Offices, PLLC, Rigby, for appellants. Robin D. Dunn argued. Holden, Kidwell, Hahn & Crapo, PLLC, Idaho Falls, for respondent. DeAnne Casperson argued. _____________________ J. JONES, Justice. This is an appeal from the district court's grant of summary judgment in favor of Buku Properties, LLC. Buku initiated this lawsuit to recover earnest money deposits from Raoel and Janet Clark and Jerry and Betty Peterson (collectively "Appellants"), after two codependent land sale contracts involving Buku and Appellants failed to close. We affirm. I. FACTUAL AND PROCEDURAL HISTORY In 2007, Buku entered into two separate but codependent 1 land sale contracts with the Clarks and the Petersons for the purchase of adjacent real properties. The Clark contract was executed on August 30, 2007 and provided that Buku would pay $1,044,075.18 for the Clarks'
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The Clark contract expressly conditions the sale on the Petersons also selling to Buku. Likewise, the Peterson contract expressly conditions the sale on the Clarks selling to Buku.

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80.17 acres. The Clark contract required Buku to deposit $25,000 in earnest money, which was to "be refundable until closing." The Peterson contract was also executed on August 30, 2007, and provided that Buku would pay $980,000 for the Petersons' 73.0 acres. The Peterson contract required Buku to deposit $327,000 in earnest money, of which $317,000 was "fully refundable until closing." Closing for both properties was to be on or before December 21, 2007. At the time the parties entered into the land sale contracts, the properties were zoned R-1, which allowed for a minimum density of one acre lots. However, after the contracts were executed, but prior to closing, the Jefferson County Planning and Zoning Commission began discussions to change the R-1 designation of the properties to R-5, which mandates a five acre minimum density. While conducting its due diligence, Buku discovered the County's plan to change the zoning designation of the properties. Aware of the potential re-zoning, Buku sent Appellants proposed addenda to the land sale contracts on December 18, 2007, seeking to extend the review period and closing date due to concerns about zoning and financing. Attorney Robin Dunn, representing Appellants, responded to the proposed addenda in a letter dated December 19, 2007. The letter stated that Appellants "expect performance on this contract and desire to complete the sale pursuant to the terms of the agreement" and that if Buku did not close on December 21, Appellants would "declare the contract in default, keep the proceeds placed as earnest money and either sue for the balance or sue for specific performance." The closing date passed without any further action by either Buku or Appellants. The bank financing Buku's purchase of the properties, The Bank of Commerce, also became aware of the potential re-zoning of the properties. On January 3, 2008, the Bank sent Buku a letter stating that Buku's loan was only "conditionally approved," and that, if the property were re-zoned R-5, the property value would be decreased. The bank stated that in order to fund the loan it "must receive verification from Jefferson County that this property will remain zoned R-1 Residential." Buku sent Appellants' counsel a letter on June 17, 2008, demanding that all of the earnest money, except for the non-refundable $10,000 from the Peterson contract, be returned. When none of the earnest money was returned, Buku brought suit on November 6, 2008, alleging three causes of action: (1) return of earnest money under contract; (2) conversion; and, (3) unjust enrichment. Additionally, Buku requested prejudgment interest on the earnest money and attorney fees. Appellants filed a counterclaim with their answer, asserting seven claims: (1) specific

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performance; (2) breach of contract; (3) unjust enrichment; (4) estoppel; (5) promissory estoppel/unjust enrichment; (6) Consumer Protection Act violations; and, (7) attorney fees. In the latter part of 2009, the parties filed cross-motions for summary judgment. On January 27, 2010, the district court issued its Memorandum Decision, concluding that the sale contracts were unambiguous and enforceable but declining to grant summary judgment on the complaint or equitable counterclaims because of conflicting evidence as to the post-closing actions of the parties. The court did grant summary judgment against Appellants on their Idaho Consumer Protection Act claim. Following the conduct of discovery by the parties, Buku again moved for summary judgment in November of 2010. The district court issued a Memorandum Decision on February 3, 2011 (Second Memorandum Decision), finding the sale contracts unambiguous and enforceable and determining that Buku was entitled to summary judgment. Concurrently, the court issued a judgment stating, "Buku's Motion for Summary Judgment is granted. Buku's Motion to Strike is denied." Appellants filed an appeal to this Court on February 17, 2011, but we issued an order suspending the appeal on the basis that it was premature since the district court had not yet issued a final judgment complying with the requirements of I.R.C.P. 54(a). On February 22, 2008, Buku filed a cost memorandum, seeking $ 27,093.61 in attorney fees and $724.82 in costs, which the district court granted. On April 29, 2011, the district court entered its final judgment. Thereafter, Appellants timely filed an Amended Notice of Appeal. II. ISSUES ON REVIEW I. II. III. IV. V. VI. VII. Is the Buyer's Obligations clause of the land sale contracts ambiguous? Did Buku breach the terms of the land sale contracts? Did the district court err by improperly considering parol evidence? Did the district court improperly dismiss Appellants' counterclaims? Did the district court improperly rely on I.C.

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