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Young v. Olsen, Case No. 990343-CA, Filed June 29, 2000

IN THE UTAH COURT OF APPEALS ----ooOoo---Robert K. Young and Wynn P. Young, Plaintiffs and Appellants, v. Edwin Donald Olsen; Jay Donald Olsen; Scott Douglas Olsen;Larry Patterson; and Patterson Construction, Inc., Defendants and Appellees. MEMORANDUM DECISION (Not For Official Publication) Case No. 990343-CA FILED June 29, 2000

2000 UT App 197 ----Sixth District, Manti Department The Honorable David Mower Attorneys: Douglas L. Neeley, Ephraim, for Appellants Karen M. Siirola, Lehi, and Ronald G. Russell, Salt Lake City, for Appellees ----Before Judges Jackson, Bench, and Orme. ORME, Judge: The trial court refused to require specific performance of an oral agreement to buy approximately ten acres of real property. The trial court, after finding the right to enforce the original contract had been waived, stated: There was testimony which, if believed, would lead to the conclusion that the Youngs and [Olsens] made another separate agreement, the terms of which were as follows. Youngs could withdraw the money being held by the escrow agent and return it to the bank in order to reduce the amount of interest they were paying. In the meantime, [Olsens] would clear the liens and then the sale would close. The evidence regarding this "agreement" was conflicting. Even if believed, the "agreement" is too vague and open-ended to be enforceable. We see no error in the trial court's conclusion that Youngs' withdrawal of their purchase money from escrow, without some express agreement to the contrary, would signal their abandonment of the contract or a waiver of their rights thereunder. Even if we were to assume that the trial court would have found there was a subsequent agreement which allowed Youngs to withdraw their money from escrow pending Olsens clearing their title--a question which the court left open in its memorandum decision--and even if we were to assume the trial court erred in holding the oral agreement was not sufficiently clear to be enforceable, we still could not reverse the trial court and order specific performance of the contract. Utah Code Ann.

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