New York Ave. LLC v. Harrison , 827 Utah Adv. Rep. 42 ( 2016 )


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    2016 UT App 240
    THE UTAH COURT OF APPEALS
    NEW YORK AVE. LLC,
    Appellee and Cross-appellant,
    v.
    DAVID D. HARRISON AND JAN C. HARRISON,
    Appellants and Cross-appellees.
    Opinion
    No. 20140719-CA
    Filed December 8, 2016
    Fourth District Court, Provo Department
    The Honorable David N. Mortensen
    No. 090402295
    Jason D. Boren, Emily L. Wegener, and Jackie
    Bosshardt, Attorneys for Appellants
    and Cross-appellees
    David D. Jeffs and Kevin D. Jeffs, Attorneys for
    Appellee and Cross-appellant
    JUDGE STEPHEN L. ROTH authored this Opinion, in which SENIOR
    JUDGE PAMELA T. GREENWOOD concurred. 1 JUDGE GREGORY K.
    ORME concurred in the result, with opinion.
    ROTH, Judge:
    ¶1    New York Ave. LLC (NYA) entered into a real estate
    purchase contract to purchase twenty acres of undeveloped land
    from Defendants David D. and Jan C. Harrison (the Harrisons).
    The contract provided NYA sole discretion to extend the closing
    by paying a monthly extension payment, which NYA paid
    1. Senior Judge Pamela T. Greenwood sat by special assignment
    as authorized by law. See generally Utah R. Jud. Admin. 11-
    201(6).
    New York Ave. v. Harrison
    monthly for nearly two years beyond the agreed-upon
    settlement deadline. Eventually, the Harrisons informed NYA
    that it was in breach of contract for failing to close within a
    reasonable time and proposed a firm closing date some months
    later. NYA asserted that the Harrisons had breached the contract
    by demanding that NYA close the purchase in derogation of its
    right to extend. This case ensued, with the parties asking the
    court, among other things, to interpret the contract and
    determine whether either party had breached it. In addition,
    during the litigation, the Harrisons refused to accept NYA’s
    tender of an extension payment, claiming that it was conditional.
    NYA then asserted that the Harrisons’ refusal of the tender was
    itself a breach of the contract.
    ¶2     The district court granted partial summary judgment in
    NYA’s favor, concluding that NYA had unlimited discretion
    under the contract to extend the settlement deadline, that NYA
    had not breached the contract by failing to close, and that the
    Harrisons had breached the contract by failing to accept the
    tendered extension payment. The court subsequently granted
    partial summary judgment in the Harrisons’ favor on the issue
    of damages, limiting NYA to actual rather than liquidated
    damages, and limiting NYA’s recovery of attorney fees. Each
    side appeals the district court’s ruling. We reverse and remand
    for further proceedings.
    BACKGROUND
    ¶3     The Harrisons own over twenty acres of undeveloped real
    property (the Property) in Springville, Utah. Hoping to fund
    their retirement, in November 2006 the Harrisons entered into a
    real estate purchase contract with NYA, which planned a
    residential development. NYA agreed to purchase the Property
    for $3 million, with an earnest money deposit of $10,000. The
    parties executed two addenda to the contract—Addendum 1,
    signed along with the contract itself on November 10, 2006, and
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    Addendum 2, signed on November 22, 2006. The real estate
    purchase contract and the two addenda form the complete
    contract between the parties (together, the REPC), 2 which
    became effective with the signing of Addendum 2.
    ¶4     Under the REPC, the Harrisons were required to provide
    Seller Disclosures to NYA within fourteen days of the “fully
    executed contract,” including a “property condition disclosure,”
    “a copy of any leases affecting the Property,” and “evidence of
    any water rights and/or water shares.” NYA then had the right
    to cancel the REPC, in the event of any one of a number of
    contingencies, no later than the “Due Diligence Deadline,”
    specified as “90 days from date of the fully executed contract.” If
    NYA did not cancel the contract or deliver written objections by
    the deadline, NYA would “be deemed to have approved the
    Property” and any contingencies to the enforceability of the
    REPC would be “deemed waived.” The Harrisons agreed that
    between acceptance of the REPC and closing they would not,
    without the “prior written consent” of NYA, modify any existing
    leases or enter into any new ones, make “substantial alterations
    or improvements to the Property,” or further encumber the
    Property financially. They also agreed to continue to cover any
    costs or expenses associated with the Property during that time,
    such as taxes, assessments, and utilities. The REPC provided that
    “time is of the essence” and that “performance under each
    Section . . . which references a date shall absolutely be required
    by 5:00 PM Mountain Time on the stated date[s].”
    ¶5    Of particular importance to this appeal are the provisions
    governing the Settlement Deadline, the date by which the parties
    were to be prepared to complete the sale and finalize purchase of
    the Property. Addendum 1 provided that the Settlement
    2. Except where the context indicates otherwise, we refer to the
    complete agreement as the REPC.
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    Deadline was “to be 180 days from the date of the fully executed
    contract” (i.e., 180 days from November 22, 2006). Central to this
    appeal, the REPC also provided that NYA “may choose, at [its]
    sole discretion, to pay an additional amount of non-refundable
    earnest money to continue the contract monthly after the
    settlement deadline” and that any such payment would “be a
    credit towards the purchase price at closing.” Initially, the
    monthly extension payment was set at $12,500. However,
    Addendum 2 altered the details of the settlement extension
    provision by lowering the monthly extension payment to $6,250
    and moving the initial Settlement Deadline “until after the
    harvest season 2007 which will be October 31, 2007.” The REPC
    did not specify any limit on the number of times NYA could
    extend the Settlement Deadline.
    ¶6      In January 2007, NYA informed the Harrisons that it had
    encountered a problem connecting the Property to the
    Springville City sewer system. As a result, NYA stated that it
    would not “be able to develop the property until mid-2008 at the
    earliest.” NYA also indicated that, in spite of the logistical
    problem, it still “want[ed] to continue the contract as it [was]
    currently written” and that on October 31, 2007, it would “start
    making the monthly [settlement extension] payments . . . until
    [it] close[d] on the property, which [would] be when the sewer
    trunk line [was] installed and [it] [could] get the necessary
    approvals from the city to develop.” In September 2007, NYA
    sent another letter to the Harrisons, notifying them that it had
    found a potential work-around to the sewer line issue and again
    stating that it would begin making the settlement extension
    payments in October, which it did.
    ¶7    In early 2008, Springville City denied NYA’s proposed
    sewer line alternative. At that point, NYA deemed that it “had
    exhausted all [its] options” and that it was “through working on
    [developing the Property] until the sewer was available.” NYA
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    continued to make settlement extension payments throughout
    2008 and into the summer of 2009.
    ¶8     In the summer of 2008, however, the Harrisons informed
    NYA that they did not want to wait any longer to close on the
    Property, and in December the parties began discussions about
    options for terminating the contract. They did not reach a
    resolution, and in March 2009, the Harrisons’ attorney sent a
    letter to NYA asserting that even though the REPC did not
    contain an “outside Settlement Date,” it was “unreasonable to
    interpret the extension provision in the REPC as allowing the
    Buyer to extend the Settlement indefinitely.” Rather, according
    to counsel, “when a contract fails to specify a time by which a
    certain act must be performed, [the] law implies that the act
    must be done within a reasonable time under the
    circumstances,” and, as it had been over sixteen months “since
    the original Settlement Deadline, . . . any reasonable time for
    closing ha[d] already passed.” The letter explained that, while
    the Harrisons viewed NYA’s “failure to close as a breach of the
    implied covenant of good faith and fair dealing,” they were still
    “willing to close on or before August 5, 2009.” The Harrisons
    requested that NYA contact them to discuss a final Settlement
    Deadline.
    ¶9     In June 2009, NYA sued the Harrisons for rescission,
    breach of contract, and a declaratory judgment regarding the
    obligations of both parties under the REPC. The Harrisons
    counterclaimed for breach of contract and breach of the covenant
    of good faith and fair dealing, claiming that NYA had failed to
    close on the purchase of the Property within a reasonable time.
    NYA continued to make extension payments in June and July
    2009, which the Harrisons accepted.
    ¶10 On August 31, 2009, the last day of the then-current
    extension, NYA’s counsel sent the Harrisons another extension
    payment along with a letter that, among other things, explained
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    in some detail NYA’s understanding of the REPC. Specifically,
    NYA explained that the agreement to purchase the Property had
    been “based on the assumption that it could be developed as
    single family residential that would maximize the development
    potential of the land” and stated that “[t]he ability to postpone
    closing on the property until it could be developed to its
    maximum potential was crucial to [NYA].” NYA asserted that
    “[w]ith the lack of sewer capabilities, and through further
    information . . . that showed insufficient storm drainage
    capacity, the property could not (at the time) be developed to its
    maximum potential.” And according to NYA, the Settlement
    Deadline could be extended at its option “to allow for the
    property to be developed to its full potential,” including “sewer
    line extension installed to the property, storm drainage readily
    available, and [the] property being economically feasible to
    develop under zoning ordinances of Springville [C]ity and
    existing market conditions.” The letter then stated,
    By negotiating this $6,250 check, you are agreeing
    with my client that it is entitled under the REPC to
    make these payments in order to postpone closing
    in accordance with the express terms of the REPC
    until it is economically feasible to move forward
    with a residential development of the property . . . .
    ¶11 The Harrisons refused to accept the August 2009
    extension payment, informing NYA that they considered NYA’s
    letter and the payment to be an “attempt to modify the terms of
    the [REPC]” by conditioning the negotiation of the check on
    NYA’s      “unilateral  and    unexpressed    intentions   and
    ‘understandings.’” Nonetheless, the Harrisons’ letter also
    advised NYA that even though the tendered payment was being
    returned, the Harrisons would “continue to accept monthly
    payments so long as [NYA] withdr[ew] [its] inappropriate
    conditions.” NYA made no further extension payments.
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    ¶12 Both parties moved for summary judgment on the issue
    of liability for breach of contract. On June 14, 2012, the district
    court granted partial summary judgment in NYA’s favor and
    denied the Harrisons’ cross-motion. The court determined,
    among other things, that the unambiguous terms of the contract
    entitled NYA to extend the Settlement Deadline “so long as valid
    tender of the extension payment was made” and that the August
    31, 2009 letter and check constituted a valid tender that the
    Harrisons were required to accept. The court concluded that the
    Harrisons breached the REPC by refusing to accept NYA’s
    tender of the extension payment. 3 NYA subsequently filed a
    motion for summary judgment on the issues of damages and
    attorney fees, which the district court partially granted. The
    court determined that under the default provision of the REPC,
    NYA had failed to elect liquidated damages and had instead,
    “by virtue of litigating the matter up to the threshold of trial,”
    elected to “pursue other remedies available at law,” namely,
    actual damages. It also awarded NYA prejudgment interest from
    the date of the Harrisons’ breach in 2009 and granted NYA’s
    request for attorney fees, but it reduced the fee award on the
    basis that some of the requested fees were unreasonable. The
    total judgment awarded to NYA was $286,495.75, which
    included damages, prejudgment interest, attorney fees, and
    court costs.
    ¶13 The Harrisons appeal the district court’s summary
    judgment ruling finding them in breach of contract, and NYA
    cross-appeals the district court’s summary judgment ruling
    regarding damages and fees.
    3. The district court also determined that the Harrisons had not
    anticipatorily breached when they had asserted in March 2009
    that NYA was in default and demanded that closing occur on or
    before August 5, 2009. Neither party appeals this ruling.
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    ISSUES
    ¶14 The Harrisons argue, in essence, that the district court
    erred in two respects. First, the Harrisons assert that the court
    wrongly interpreted the REPC to allow NYA to exercise its
    discretion to extend the closing indefinitely rather than closing
    the purchase within a reasonable time. 4 Second, they claim the
    court erred when it determined that NYA’s August 31, 2009
    payment was a valid tender and argue that NYA breached the
    REPC by failing to close on the purchase of the Property after its
    conditional attempt to extend the Settlement Deadline failed.
    ¶15 In the cross-appeal, NYA argues that while the district
    court correctly ruled that the Harrisons breached the REPC by
    failing to accept the August 2009 extension payment, the court
    erred in determining that NYA elected to pursue actual damages
    rather than liquidated damages, in reducing NYA’s attorney
    fees, and in running prejudgment interest from the date of the
    Harrisons’ breach in 2009 rather than from the date of each
    extension payment.
    ¶16 Because resolution of NYA’s cross-appeal necessarily
    depends on our resolution of the Harrisons’ appeal, we first
    consider whether the district court erred in determining that the
    Harrisons breached the REPC. We begin by addressing whether
    the district court erred in concluding that the REPC permitted
    NYA to indefinitely extend the closing date for purchase of the
    4. The Harrisons also assert that NYA breached the covenant of
    good faith and fair dealing through its repeated extensions of the
    settlement, because by continuing to extend the settlement NYA
    exercised its discretion in a way that deprived them of the
    benefit of their bargain. However, as explained below, see infra
    ¶ 54, we do not reach this argument.
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    Property and then address the effect of NYA’s August 2009
    tender of the extension payment.
    ANALYSIS
    I. Reasonable Time for Performance
    ¶17 The central contention on appeal is whether the REPC’s
    provision that allowed NYA to “choose, at [its] sole discretion,”
    to extend the Settlement Deadline on a monthly basis permitted
    NYA to extend the closing date indefinitely. If the REPC cannot
    be interpreted to permit NYA to extend the closing date
    indefinitely, then the question becomes whether a reasonable
    time to close the purchase can be implied.
    ¶18 The district court concluded that the REPC “does not
    expressly limit the number of extension payments . . . so long as
    the $6,250 extension payment is timely made,” noting that “the
    number of times that the extensions payment may be made . . . is
    in NYA’s sole discretion.” The court also concluded that the
    REPC included a specific time for performance; it noted that “the
    parties explicitly agreed . . . that the settlement deadline would
    be October 31, 2007” and that the parties had also agreed that
    NYA could make a monthly payment to extend “the settlement
    deadline to the end of the following month.” Thus, the court
    reasoned that under the terms of the REPC, the settlement would
    either be October 31, 2007, the baseline Settlement Deadline, or
    at the end of the last month thereafter for which NYA paid an
    extension fee. The court concluded that “[p]lacing a limit on the
    number of extension payments allowed would be reforming the
    contract and thereby rewriting the parties’ agreement.” On that
    basis, it denied the Harrisons’ motion for summary judgment on
    their claims of breach and instead concluded that the Harrisons
    had breached the REPC.
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    ¶19 The Harrisons argue that the district court erred by
    concluding that the REPC provided NYA the right to “extend
    the closing deadline indefinitely by making an Extension
    Payment,” because that interpretation permitted NYA to
    “exercise its discretion in a way that deprived the Harrisons of
    the benefit of the parties’ bargain—the sale of the Property.”
    Specifically, the Harrisons contend that interpreting the REPC to
    permit NYA absolute discretion to extend the closing
    indefinitely would, taken to its logical conclusion, allow “NYA
    to pay $6,250 per month interest-free until it pa[id] off the
    Property in approximately forty years.” (Emphasis omitted.) In
    essence, the Harrisons assert that it would turn the purchase
    contract into an “indefinite-term option contract” or “interest-
    free seller-financed purchase,” and that “such an interpretation
    [was] far outside the contemplation of the parties when they
    entered the REPC.”
    ¶20 The Harrisons also argue that the court erred in
    concluding that the contract included a definite closing date.
    According to the Harrisons, even though the REPC provided
    that settlement would take place on October 31, 2007, or at the
    end of the last month that NYA paid an extension fee, the REPC
    did not “include the essential term of how many extensions are
    permitted under the contract”; consequently, the contract
    provided no definite time for closing. Thus, they assert, the court
    should have implied a reasonable one.
    A.     NYA’s Discretion To Extend the Closing
    ¶21 The “cardinal rule” in contract interpretation “is to give
    effect to the intentions of the parties” as they are expressed in the
    plain language of the “contract itself.” G.G.A., Inc. v. Leventis, 
    773 P.2d 841
    , 845 (Utah Ct. App. 1989); see also Equine Assisted Growth
    & Learning Ass’n v. Carolina Cas. Ins. Co., 
    2011 UT 49
    , ¶ 13, 
    266 P.3d 733
    . In this regard, we construe a contract to give effect to
    the “object and purpose of the parties in making the agreement.”
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    Anderson v. Great E. Cas. Co., 
    168 P. 966
    , 968 (Utah 1917) (citation
    and internal quotation marks omitted). “A construction which
    contradicts the general purpose of the contract . . . is presumed
    to be unintended by the parties.” Home Sav. & Loan v. Aetna Cas.
    & Sur. Co., 
    817 P.2d 341
    , 366 (Utah Ct. App. 1991) (omission in
    original) (citation and internal quotation marks omitted); see also
    Restatement (Second) of Contracts § 202(1) (Am. Law Inst. 1981)
    (stating that “if the principal purpose of the parties is
    ascertainable it is given great weight”). And with the principal
    purpose in mind, we also interpret the contract as a whole, see
    Aetna, 
    817 P.2d at 367
    , “consider[ing] each contract provision . . .
    in relation to all of the others, with a view toward giving effect to
    all and ignoring none,” Green River Canal Co. v. Thayn, 
    2003 UT 50
    , ¶ 17, 
    84 P.3d 1134
     (omission in original) (citation and internal
    quotation marks omitted).
    ¶22 In this case, neither party disputes that the overarching
    purpose of the REPC was the purchase of the Harrisons’
    property by NYA. As NYA notes, “NYA, as buyer, and
    Harrisons, as sellers, entered into [the REPC] to purchase 20.27
    acres of real property located in Springville, Utah.”
    Fundamentally, the REPC was designed to enable the Harrisons
    to convey the Property to NYA in exchange for $3 million.
    Indeed, even the title of the REPC—Real Estate Purchase
    Contract For Land—clearly expresses this objective. To enable
    that central goal, the REPC obligated NYA to timely settle and
    close the purchase. To that end, the REPC provided deadlines for
    the three major events tracing the path toward consummation of
    the contract—Seller Disclosures, Due Diligence, and Settlement
    Deadline. In particular, following the Seller Disclosures, the
    REPC provided that the Property would “be deemed approved”
    by NYA and “the contingencies referenced [earlier in the
    agreement], including but not limited to any financing
    contingency, shall be deemed waived by [NYA]” unless NYA
    canceled or objected to the contract before the Due Diligence
    Deadline. Thereafter, the purchase was to be completed “on the
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    Settlement Deadline . . . or on a date upon which the Buyer and
    Seller agree to in writing.” In other words, once the Due
    Diligence Deadline passed, NYA became unconditionally
    obligated to purchase the Property for the agreed-upon price, an
    obligation that could only be fulfilled by proceeding to closing of
    the purchase by paying $3 million to the Harrisons in exchange
    for an appropriate conveyance. Thus, before the Due Diligence
    Deadline, NYA’s obligation to purchase the Property was
    essentially contingent, but once that deadline passed, the
    obligation became contractually absolute.
    ¶23 Viewed in this light, NYA’s option to extend the
    Settlement Deadline from month to month at its discretion must
    be read as a grant of discretion subsidiary to, and not ultimately
    in derogation of, NYA’s primary obligation to complete the
    purchase of the Property by paying the purchase price to the
    Harrisons. In other words, the extension provision necessarily
    contemplates that closing of the purchase will occur, a purpose
    that would at some point be essentially abrogated if the
    Settlement Deadline could be postponed indefinitely based only
    upon NYA’s shifting development timeline. At some point, as
    that timeline extended month after month and year after year,
    the core purpose of the REPC, which from the Harrisons’
    perspective was to receive the purchase price in a lump sum in
    return for conveyance of the Property, would have been
    defeated and the contract would have transformed into a long-
    term, interest-free seller financing arrangement.
    ¶24 And the provisions of the REPC read as a whole support
    the conclusion that NYA’s discretion to extend the Settlement
    Deadline was not unbounded. For example, the two addenda
    addressed NYA’s fundamental obligation to close the Property
    purchase by clarifying certain of the REPC’s provisions. As we
    have discussed, Addendum 1, among other things, provided
    specific deadlines for each of the three major contractual events
    the REPC outlined—Seller Disclosure, Due Diligence, and
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    Settlement Deadline. In particular, the Settlement Deadline was
    “to be 180 days from the date of the fully executed contract,”
    which was November 22, 2006. Addendum 2 likewise dealt with
    contractually important dates; it extended the Settlement
    Deadline to a different date certain, “until . . . October 31, 2007.”
    And while Addendum 1 included the proviso that NYA, “at [its]
    sole discretion, [may choose] to pay an additional amount of
    non-refundable earnest money to continue the contract monthly
    after the settlement deadline,” the language of the proviso
    tethered the extension payments to the actual closing of the
    purchase: the “additional money . . . will be a credit towards the
    purchase price at closing.” (Emphasis added.) In other words, for
    the extension payments to become what the language of the
    contract affirms that they were meant to be—payments part and
    parcel of and counted toward the ultimate purchase price—the
    closing of the purchase needed to occur. Thus, while the
    language of the extension provision itself was tied only to NYA’s
    discretion and was therefore nominally open-ended, by
    specifying one date certain after another as the Settlement
    Deadline—with extensions limited to one month at a time—the
    structure of the contract suggests that the parties did not
    contemplate that the closing date would extend indefinitely.
    ¶25 In addition, the plain language of the extension provision
    itself, when compared to other provisions of the contract,
    suggests that the provision was intended to support the
    transactional purpose of the REPC, not to permit NYA to
    abrogate the contract’s purpose through endlessly repeated
    postponements of the closing. Each of the three major events
    along the timeline leading to closing—Seller Disclosures, Due
    Diligence, and Settlement Deadline—is articulated in mandatory
    language; each states that either the Buyer or the Seller “shall”
    perform some action. For example, the REPC provides that “[n]o
    later than the Seller Disclosure Deadline . . . , Seller shall provide
    to Buyer . . . the ‘Seller Disclosures’”; that “[n]o later than the
    Due Diligence Deadline . . . Buyer shall: (a) complete all of
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    Buyer’s Due Diligence, and (b) determine if the results of Buyer’s
    Due Diligence are acceptable to Buyer”; and that “Settlement
    shall take place on the Settlement Deadline . . . or on a date upon
    which Buyer and Seller agree in writing.” See Mind & Motion
    Utah Invs., LLC v. Celtic Bank Corp., 
    2016 UT 6
    , ¶ 27, 
    367 P.3d 994
    (noting in the context of interpreting the “plain and ordinary
    meaning” of terms in a contract that the word “shall,” as defined
    in Black’s Law Dictionary, means “‘a duty to,’ ‘is required to,’ or
    ‘mandatory’” (quoting Shall, Black’s Law Dictionary (9th ed.
    2009)); see also Board of Educ. of Granite School Dist. v. Salt Lake
    County, 
    659 P.2d 1030
    , 1035 (Utah 1983) (explaining that the
    word “shall” is “usually presumed mandatory”); Kennecott
    Copper Corp. v. Salt Lake County, 
    575 P.2d 705
    , 706 (Utah 1978)
    (noting that mandatory directions involve “the essence of the
    thing to be done”); cf. Southwick v. Southwick, 
    2011 UT App 222
    ,
    ¶ 13, 
    259 P.3d 1071
     (noting in the context of statutes that
    “[f]actors to be considered in [the] determination [of whether a
    provision is mandatory] include whether the provision affects
    substantial rights and whether the provision is necessary to
    effectuate the [legislature’s] intent”).
    ¶26 Here, each event—the Seller Disclosures, Due Diligence
    Deadline, and Settlement Deadline—was designed to propel the
    parties along a path that incrementally satisfied conditions of
    performance. In contrast, the language of the extension provision
    suggests that the occurrence of an extension is not part of the
    “essence” of the contract. See Kennecott Copper Corp., 575 P.2d at
    706 (“Generally those directions which are not of the essence of
    the thing to be done, . . . and by the failure to obey no prejudice
    will occur to those whose rights are protected . . . , are not
    commonly considered mandatory.”). Rather than creating a
    certain performance obligation for either party, the extension
    provision merely provides that NYA “may choose, at [its] sole
    discretion, to pay an additional amount of non-refundable
    earnest money to continue the contract monthly after the
    settlement deadline.” (Emphasis added.) See May, Black’s Law
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    New York Ave. v. Harrison
    Dictionary (10th ed. 2014) (defining “may” as “[t]o be permitted
    to” and “[t]o be a possibility”); cf. Neff v. Neff, 
    2011 UT 6
    , ¶ 67,
    
    247 P.3d 380
     (noting in a statutory context that the word “may”
    connotes discretion). At the very least, the inclusion of the word
    “may” suggests that neither party intended the extension
    provision to override the contract’s mandatory obligations—that
    is, if NYA never exercised its discretion to extend the settlement,
    the core obligations contained in the REPC, consummating the
    sale and purchase of the Property, would remain in force.
    ¶27 Thus, even though the parties disagree on the legal effect
    of NYA’s discretion to extend the closing, it is clear from the
    language of the contract as a whole that the REPC’s primary
    purpose was to sell the Property to NYA and that NYA’s
    obligation to complete the purchase of the Property became
    unconditional once NYA allowed the Due Diligence Deadline to
    pass without exercising its right to cancel. As a result, NYA was
    obligated to close the purchase of the Property regardless of
    whether it exercised its discretion to extend the closing or not.
    See Home Sav. & Loan v. Aetna Cas. & Sur. Co., 
    817 P.2d 341
    , 366–
    67 (Utah Ct. App. 1991) (explaining that “[a] construction which
    contradicts the general purpose of the contract . . . is presumed
    to be unintended by the parties” (omission in original) (citation
    and internal quotation marks omitted)). It necessarily follows
    that, while NYA could defer the closing on a month-to-month
    basis, it could not do so indefinitely, because unlimited
    extensions could ultimately permit NYA to defeat the primary
    purpose of the REPC.
    ¶28 In so concluding, we acknowledge that the parties
    negotiated NYA’s discretion to extend the closing and that, by
    agreeing to it, both parties undoubtedly contemplated that
    extension of the closing for some period of time beyond the
    October 31, 2007 Settlement Deadline was allowable. But while
    NYA was provided “sole discretion” to decide whether to
    extend the closing, interpreting the REPC to allow NYA to
    20140719-CA                     15               
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    New York Ave. v. Harrison
    extend closing indefinitely improperly permits NYA to “use[] its
    discretion for a reason . . . beyond the risks assumed by the party
    claiming the breach.” See Markham v. Bradley, 
    2007 UT App 379
    ,
    ¶ 34, 
    173 P.3d 865
     (emphasis omitted) (citation and internal
    quotation marks omitted). Nowhere in the contract did the
    parties manifest an agreement that would permit NYA to
    unilaterally alter the fundamental nature of the contract, not to
    mention its actual value, by indefinitely postponing its
    obligation to close on the purchase of the Property. Indeed, such
    an interpretation could allow NYA to impose upon the
    Harrisons what, in practical effect, would amount to an interest-
    free, seller-financing obligation that could in theory extend for
    up to forty years. Not only that, such a reading would also
    significantly dilute the actual value over time of the $3 million
    purchase price, during which time the Harrisons would also
    remain obligated to pay taxes and other expenses associated
    with the Property. Such a result seems very far from what the
    parties could have intended under any reasonable reading of the
    REPC as a whole. Cf. 
    id.
     (“The good faith performance doctrine
    . . . permit[s] the exercise of discretion for any purpose . . .
    reasonably within the contemplation of the parties. A contract
    thus would be breached . . . if a party uses its discretion for a
    reason outside the contemplated range—a reason beyond the
    risks assumed by the party claiming the breach.” (citation and
    internal quotation marks omitted)); Ted R. Brown & Assocs., Inc.
    v. Carnes Corp., 
    753 P.2d 964
    , 970 (Utah Ct. App. 1988) (“It is
    fundamental that every contract imposes a duty on the parties to
    exercise their contractual rights and perform their contractual
    obligations reasonably and in good faith.”).
    ¶29 Accordingly, we conclude that the district court
    incorrectly interpreted the contract to permit NYA to extend the
    closing indefinitely. Because NYA may not extend the closing
    indefinitely, we now consider whether, as the Harrisons
    contend, the closing was required to occur within a reasonable
    time.
    20140719-CA                    16               
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    New York Ave. v. Harrison
    B.    Closing Within a Reasonable Time
    ¶30 As a corollary to its conclusion that there was no limit to
    the number of times NYA could exercise the option to extend the
    Settlement Deadline, the district court determined that the REPC
    included unambiguous language that provided a specific time
    for settlement—the Settlement Deadline (October 31, 2007) plus
    however many one-month extensions NYA chose to exercise.
    Relying on Watson v. Hatch, 
    728 P.2d 989
     (Utah 1986), which
    states that a “court may allow a contract to be performed within
    a reasonable time only when the contract is silent as to the time
    for its performance,” id. at 990, the district court accordingly
    concluded that the REPC could not be interpreted to require
    closing of the purchase transaction to occur within a reasonable
    time.
    ¶31 In limited situations, a court may read a term into a
    contract that “is essential to a determination of [the parties’]
    rights and duties” and that “is reasonable in the circumstances.”
    Restatement (Second) of Contracts § 204 (Am. Law Inst. 1981).
    But additional “terms are to be implied in contract, not because
    they are reasonable—although it is clear that they must indeed
    be reasonable—but because they are necessarily involved in the
    contractual relationship” such that “it may be said that the
    parties must have intended them and failed to express them only
    because of sheer inadvertence or because they are too obvious to
    have needed expression.” 11 Williston on Contracts § 31:7 (4th
    ed. 2016). Accordingly, when a court reads terms into a contract,
    it generally does so to “protect the express covenants or
    promises of the contract,” Oakwood Village LLC v. Albertsons, Inc.,
    
    2004 UT 101
    , ¶ 29, 
    104 P.3d 1226
     (citation and internal quotation
    marks omitted), and to “prevent a party’s promise from being
    performable merely at the whim of the promisor,” Markham,
    
    2007 UT App 379
    , ¶ 23 (citation and internal quotation marks
    omitted).
    20140719-CA                    17               
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    New York Ave. v. Harrison
    ¶32 Pertinent to the question here, “the settled rule is that if a
    contract fails to specify a time of performance the law implies
    that it shall be done within a reasonable time under the
    circumstances.” Coulter & Smith, Ltd. v. Russell, 
    966 P.2d 852
    , 858
    (Utah 1998). In contrast, as the district court recognized, “[w]hen
    a contract specifically states the time for its performance, it is
    plain error to allow it to be performed within a reasonable time.”
    Watson, 728 P.2d at 990. Here, the REPC “fails to specify a time of
    performance.” Coulter & Smith, 966 P.2d at 858.
    ¶33 We have already concluded that the parties expressly
    covenanted to complete the Property purchase and that the
    extension provision cannot fairly be read to subvert that
    essential promise between the parties by permitting unlimited
    extensions. See supra ¶¶ 21–28. We also acknowledge that the
    REPC provided an explicit Settlement Deadline—October 31,
    2007—and that it unambiguously provided that each extension
    payment would extend the settlement to the end of the following
    month. Thus, every time NYA made an extension payment, the
    Settlement Deadline was extended to the end of the following
    month. See Café Rio, Inc. v. Larkin-Gifford-Overton, LLC, 
    2009 UT 27
    , ¶ 25, 
    207 P.3d 1235
     (explaining that “[w]here the language
    within the four corners of the contract is unambiguous, the
    parties’ intentions are determined from the plain meaning of the
    contractual language” (citation and internal quotation marks
    omitted)). But those terms do not limit the number of times NYA
    may extend month-to-month. In other words, while the REPC
    identifies the original Settlement Deadline and specifies that
    each extension payment will extend the date thirty days, the end
    date for the extensions—the date on which the purchase of the
    Property must finally occur—is not specified.
    ¶34 Thus, we agree with the Harrisons that even if the REPC
    provides that the Settlement Deadline will be at the end of the
    month following the latest extension payment, because it does
    not limit the number of extension payments, the REPC does not
    20140719-CA                    18               
    2016 UT App 240
    New York Ave. v. Harrison
    specify a particular closing date. Instead, once NYA exercised its
    discretion to extend the Settlement Deadline for the first time,
    there was no explicit language in the REPC to prevent NYA from
    continuing to extend the closing on a month-to-month basis for
    however long it chose to do so, something we have decided the
    REPC does not permit without limitation. As a consequence,
    while the express terms of the contract may relate to the time for
    NYA’s performance, and while they may even be unambiguous
    and explicit as far as they go, the REPC does not provide a date
    by which NYA must perform its core obligation to complete the
    purchase of the Property. See Coulter & Smith, 966 P.2d at 858.
    ¶35 We therefore conclude that the REPC does not contain a
    specific time for performance and, consequently, “the law
    implies that it shall be done within a reasonable time under the
    circumstances.” See id.; see also Markham v. Bradley, 
    2007 UT App 379
    , ¶ 24, 
    173 P.3d 865
     (stating that “because no standard has
    been expressly set forth in the REPC, the imposition of a
    standard of objective reasonableness does not run afoul of the
    express contract terms”). And because “[w]hat constitutes a
    reasonable time” is necessarily a fact-intensive question that
    “depends upon the subject-matter, the nature of the act to be
    performed, and the situation of the parties,” Salt Lake City v.
    State, 
    125 P.2d 790
    , 793 (Utah 1942), we accordingly conclude
    that the district court erred in granting summary judgment to
    NYA on this issue, see Cook Assocs., Inc. v. Utah School &
    Institutional Trust Lands Admin., 
    2010 UT App 284
    , ¶ 28, 
    243 P.3d 888
     (noting that factual issues are “generally inappropriate for
    decision as a matter of law”).
    ¶36 Having determined that the district court erred when it
    determined that the REPC included a specific time for
    performance of closing the purchase of the Property, we now
    consider the court’s ruling on the legal effect of the Harrisons’
    rejection of NYA’s August 2009 tender of an extension payment.
    20140719-CA                    19               
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    New York Ave. v. Harrison
    II. Tender of the August 2009 Extension Payment
    ¶37 The district court ruled that NYA’s August 31, 2009
    extension payment was a valid tender and that the Harrisons
    breached the REPC by refusing to accept it. In particular, the
    court reasoned that the tender was not conditional because the
    letter accompanying the payment “only contained conditions
    that NYA already had a right to insist upon based on the REPC”
    provision for extensions of the Settlement Deadline at NYA’s
    sole discretion. The court concluded that “NYA’s letter to the
    Harrisons noting its reasons for making the Extension Payments
    was a display of its discretion.” And because the letter
    accompanying NYA’s August 2009 extension payment merely
    “required the Harrisons to acknowledge rights that the contract
    had already granted to NYA,” the court determined that the
    tender was not improperly conditional and that the “Harrisons
    therefore breached the contract by refusing the valid tender.”
    A.    The Tender Payment
    ¶38 The Harrisons argue that the August 31, 2009 extension
    payment was not a valid tender because it “was conditioned on
    the Harrisons’ acceptance of NYA’s interpretation of the REPC.”
    We agree.
    ¶39 The letter that accompanied the August 31, 2009 extension
    payment stated NYA’s position that Addendum 2 had extended
    the Settlement Deadline and reduced the amount of the
    extension payments “based on the understanding that it could
    take several years before this deal could be closed.” It then went
    on to state other reasons for NYA’s position that the REPC gave
    it the ability to extend the Settlement Deadline beyond what the
    Harrisons had asserted was reasonable, including, in essence,
    that (1) the price to be paid for the Property “was based on the
    assumption that it could be developed as single family
    residential that would maximize development potential of the
    land” and “the ability to postpone closing until it could be
    20140719-CA                    20               
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    New York Ave. v. Harrison
    developed to its maximum potential was crucial to [NYA]”; (2)
    the parties had agreed in Addendum 2 to extend the Settlement
    Deadline and reduce the amount of the extension payments “in
    part to account for the fact that . . . it might be some time before
    the property could be developed”; and (3) developing the
    Property “to its full potential” included the extension of
    Springville City’s sewer line to the Property and ensuring “storm
    drainage readily available,” neither of which had been
    accomplished, as well as reaching a point where the “property
    [was] economically feasible to develop under zoning ordinances
    . . . and existing market conditions,” which was not yet the case. 5
    The letter then specifically stated,
    By negotiating this $6,250 check, you are agreeing
    with my client that it is entitled under the REPC to
    make these payments in order to postpone closing
    in accordance with the express terms of the REPC
    until it is economically feasible to move forward
    with a residential development of the property . . . .
    (Emphasis added.)
    ¶40 “A tender, to be good, must be free from any condition
    which the tenderer does not have a right to insist upon.” Sieverts
    v. White, 
    273 P.2d 974
    , 976 (Utah 1954); see also 74 Am. Jur. 2d
    Tender § 22 (2016) (explaining that “to be valid as a tender, an
    offer to pay to satisfy an obligation must be unconditional” and
    that an unconditional tender is one “that is coupled either with
    no conditions or only with conditions upon which the tendering
    5. We note that the letter does not make any claim that NYA was
    entitled to extend the Settlement Deadline indefinitely. Rather, it
    seems to describe what it considers to be a reasonable basis for
    exercising its discretion to continue to extend the time for
    closing.
    20140719-CA                     21               
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    New York Ave. v. Harrison
    party has a right to insist”). In other words, “[t]he tender cannot
    impose on the other party a new condition or requirement not
    already imposed by the contract. If the law were otherwise, one
    could use a tender to compel the other party to comply with new
    contractual terms.” Kelley v. Leucadia Fin. Corp., 
    846 P.2d 1238
    ,
    1243 (Utah 1992) (citations and internal quotation marks
    omitted); accord PDQ Lube Center, Inc. v. Huber, 
    949 P.2d 792
    , 800
    n.13 (Utah Ct. App. 1997) (“The prohibition against conditional
    tender forbids the tendering party from adding new
    noncontractual conditions or requirements for receiving the
    tender.”).
    ¶41 Here, the REPC does not expressly incorporate any of the
    “understandings” that NYA asserted in its August 31, 2009
    letter. In particular, there is no mention in the REPC (1) that the
    purchase price was based on valuing the Property as though it
    could be developed as single family residential; (2) that the
    parties had agreed to reduce payments for extension of the
    Settlement Deadline because it was understood “it might be
    some time before the property could be developed”; or (3) that
    there was no obligation on NYA’s part to close on the purchase
    until it was “economically feasible” to develop the Property in
    light of the availability of utilities, NYA’s ability to comply with
    zoning ordinances, or “existing market conditions” favorable to
    development. Certainly, the “economic feasibility” of NYA’s
    development plans was nowhere incorporated into the REPC as
    a condition of closing. And given the express language of the
    REPC that unequivocally obligates NYA to purchase the
    Property once the Due Diligence Deadline has passed, NYA’s
    requirement that the Harrisons acknowledge such a condition
    requires them to cede their ability to realize the full economic
    benefit of their bargain under the REPC to NYA’s “sole
    discretion.” Cf. Hepburn & Dundas v. Auld, 5 U.S. (1 Cranch) 321,
    332 (1803) (suggesting that plaintiffs’ demands that the
    defendant release all claims and demands before accepting
    plaintiffs’ performance under an agreement was not acceptable
    20140719-CA                     22               
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    New York Ave. v. Harrison
    where the agreement did not contain a stipulation that the
    release of defendant’s claims against plaintiffs was a condition
    precedent to plaintiffs’ performance).
    ¶42 Further, NYA has failed to persuade us that its
    interpretation of the extension provision as permitting it
    limitless discretion to extend the settlement is reasonable. In
    particular, NYA has failed to persuade us that the discretion
    afforded it under the extension provision permitted it to extend
    the settlement for any reason and for an unlimited number of
    times. At some point in time, regardless of the reasons, further
    postponement of closing would become inimical to the REPC’s
    fundamental purpose of accomplishing the sale and purchase of
    the Property. And the understandings that NYA stated in its
    tender letter required the Harrisons to accept a premise that the
    plain language of the REPC does not support—that under the
    REPC the feasibility of the Property’s economic development
    was an absolute condition precedent to NYA’s obligation to
    consummate the purchase.
    ¶43 Moreover, we have also determined that NYA was
    required to close the sale within a reasonable time under the
    circumstances. However, NYA’s letter attempted to impose
    upon the Harrisons its unilateral view of what constituted a
    reasonable time for closing. Indeed, the letter required the
    Harrisons to concede that NYA alone had the authority to
    determine when the state of economic feasibility had been
    reached, based on a number of conditions not expressly
    addressed in the REPC. But the determination of what point in
    time NYA was required to close is a factually intensive
    determination that takes into account the circumstances of both
    parties. See Salt Lake City v. State, 
    125 P.2d 790
    , 793 (Utah 1942)
    (“What constitutes a reasonable time depends upon the subject-
    matter, the nature of the act to be performed, and the situation of
    the parties.”). While the understandings expressed by NYA in its
    letter might ultimately be relevant to the determination of a
    20140719-CA                    23               
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    New York Ave. v. Harrison
    reasonable time to close the purchase, those understandings
    cannot conclusively define a reasonable time in the context of the
    yet unresolved competing interests of both parties. Regardless of
    the discretion the extension provision afforded NYA, the
    determination of a reasonable time must take into account not
    just NYA’s concerns, but also the Harrisons’. See 
    id.
    ¶44 And importantly, at the time of the disputed tender, the
    interpretation of the extension provision was a matter of
    legitimate dispute between the parties, one that had yet to be
    adjudicated. By the end of August 2009, the parties were already
    several months into litigation about the interpretation of the
    extension provision and whether NYA had breached by failing
    to close within a reasonable time. In June 2009, NYA had filed a
    complaint asking for rescission of the contract because there had
    not been a meeting of the minds about “whether the [Harrisons]
    can limit the number of times that [NYA] extends the settlement
    deadline,” and the Harrisons had countered in July 2009 with
    claims that NYA had already breached the REPC by not closing
    on the purchase of the Property within a reasonable time.
    Certainly, at the time NYA tendered the payment, its
    interpretation of the extension provision amounted to essentially
    a litigation position, however meritorious it might prove to be in
    the future. Thus, there is merit to the Harrisons’ contention that,
    had they accepted the payment, conditioned as it was, they
    would have essentially capitulated mid-litigation to NYA’s
    interpretation of a disputed provision of the contract. Cf. 86 C.J.S.
    Tender § 26 (2016) (“[A] tender, the acceptance of which requires
    the abandonment of the creditor’s position, is not a valid
    tender.”). And this is especially true where the Harrisons
    countered NYA’s invalid tender with a written undertaking to
    continue accepting the extension payments (presumably until
    the dispute was resolved in court) so long as the payments were
    offered unconditionally, as they had been up to the time of
    NYA’s August tender.
    20140719-CA                     24               
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    New York Ave. v. Harrison
    ¶45 For these reasons, NYA’s demand that the Harrisons
    agree that NYA was not obligated to close until it determined
    that the zoning ordinances, market conditions, and other
    circumstances aligned to produce “economic feasibility” made
    NYA’s tender of the extension payment conditional and
    therefore invalid. Accordingly, we conclude that the district
    court erred when it determined that the August 31, 2009 tender
    was valid and that the Harrisons breached the REPC by refusing
    to accept it.
    B.    The Legal Effect of the Invalid Tender Payment
    ¶46 Because NYA’s August 31, 2009 tender was invalid and
    NYA chose not to make an unconditional tender in response to
    the Harrisons’ invitation, the REPC’s Settlement Deadline
    became fixed. The REPC explicitly stated that each extension
    payment extended the Settlement Deadline by only one month.
    Thus, because the August 31, 2009 tender was invalid, the last
    legally effective extension payment was made in July 2009,
    which extended the Settlement Deadline to the end of August
    2009.
    ¶47 The Harrisons argue that to continue the REPC past
    August 2009, “NYA was required to continue to make Extension
    Payments under the REPC” after the August 2009 payment was
    rejected and that their failure to accept the disputed extension
    payment “did not excuse NYA’s subsequent non-performance”
    in light of their continued willingness to accept unconditional
    extension payments. As a result, the Harrisons ask us to
    determine that NYA has breached the REPC “by failing to
    purchase the Property or make Extension payments” once the
    Settlement Deadline became fixed.
    ¶48 But NYA’s failure to make an additional valid extension
    payment after the failed August 31, 2009 tender does not on its
    face appear to breach the contract—after all, NYA had a choice
    under the REPC whether to extend the deadline and was not
    20140719-CA                   25               
    2016 UT App 240
    New York Ave. v. Harrison
    required to do so. Instead, as we have discussed, the result of
    failing to make further extension payments was simply to
    establish a fixed date for the Settlement Deadline.
    ¶49 And in this regard, the REPC allocated to each party
    certain tasks to be completed by the Settlement Deadline in
    order for closing of the purchase to occur. For example, the
    REPC provides that “‘[s]ettlement’ shall occur only when all” of
    certain specified events have occurred; among them, “(a) Buyer
    and Seller have signed and delivered to each other . . . all
    documents required by this Contract”; (b) “any monies required
    to be paid by Buyer . . . have been delivered by Buyer to Seller or
    to the escrow/closing office”; and (c) “any monies required to be
    paid by Seller under these documents have been delivered by
    Seller to Buyer or to the escrow/closing office.” The REPC also
    provides that the purchase will be “considered closed when
    Settlement has been completed, and when all of the following
    have been completed: (i) the proceeds of any new loan have been
    delivered by the Lender to Seller . . . [, and] (ii) the applicable
    Closing documents have been recorded in the office of the
    county recorder.” Because the district court determined that the
    Harrisons were in breach for failure to accept NYA’s tender, it
    did not determine whether any of the required settlement events
    had occurred by the August 2009 Settlement Deadline. Rather, it
    seems likely that the day had come and gone without the
    accomplishment of the tasks the REPC required and that the sale
    and purchase of the Property did not close as the contract
    contemplated.
    ¶50 Neither party has addressed on appeal the potential legal
    implications of the Settlement Deadline having passed without
    the required events having been performed. Nor did the district
    court consider the implications of this outcome, because it
    resolved the parties’ competing claims by deciding that the
    Harrisons had breached by not accepting the tendered extension
    payment. But we are not in a position to determine on appeal the
    20140719-CA                    26               
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    New York Ave. v. Harrison
    consequences for either party under the REPC of the Settlement
    Deadline having passed without the tasks required by the REPC
    having been accomplished and, ultimately, without the sale and
    purchase of the Property having closed.
    ¶51 In addition, as the Harrisons point out, it is significant
    that at the time the Settlement Deadline became fixed, the parties
    were embroiled in litigation involving competing claims that the
    REPC was unenforceable or had already been breached. For
    example, NYA had requested in its complaint that the REPC be
    rescinded entirely because the parties did not have a meeting of
    the minds regarding the legal effect of the extension provision; it
    had also asserted that the Harrisons had “anticipatorily or
    actually breached the REPC by, among other things, demanding
    that [NYA] close on the Property on or before August 5, 2009.”
    The Harrisons, for their part, had counterclaimed that NYA had
    breached the REPC and the covenant of good faith and fair
    dealing by failing to close in a reasonable time. These claims as
    well as the rights and liabilities of each party pertaining to the
    extension provision had yet to be adjudicated as of August 31,
    2009.
    ¶52 Moreover, the conclusions we have reached earlier in this
    decision have undone the major premise undergirding the
    district court’s summary judgment ruling—namely, that the
    REPC gave NYA the right to extend the Settlement Deadline an
    unlimited number of times for any reason it chose and the
    corollary that the Harrisons were obligated to accept any timely
    proffer of a tender payment NYA made. On remand, the district
    court will therefore be required to substantially reevaluate the
    legal effect of the parties’ actions in light of our decision.
    ¶53 For these reasons, although the Harrisons have requested
    that we find NYA in breach of the REPC for failing to purchase
    the Property once the Settlement Deadline became fixed and
    then passed, we conclude that it is premature for us to address
    20140719-CA                    27               
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    New York Ave. v. Harrison
    whether the passing of the Settlement Deadline after NYA’s
    failed August 2009 tender had the effect of putting NYA in
    breach of the REPC, leaving that question for the parties and the
    court on remand.
    III. The Parties’ Other Claims
    ¶54 Because we conclude that the district court erred when it
    determined that (1) NYA was entitled to extend the closing
    indefinitely; (2) the REPC included a specific time for closing;
    and (3) the August 31, 2009 tender was valid and the Harrisons
    breached by not accepting it, we do not reach the parties’ other
    claims on appeal. We also do not reach NYA’s cross-appeal
    arguments regarding election of damages, additional attorney
    fees, and prejudgment interest; those claims are necessarily
    dependent on the resolution of the case below on remand. And
    because the district court will be required to reevaluate the
    parties’ claims of breach, we do not reach the Harrisons’ other
    claims—namely that NYA itself breached the REPC by violating
    the covenant of good faith and fair dealing and by not making
    additional unconditional extension payments or closing on the
    Property.
    CONCLUSION
    ¶55 For the reasons discussed above, we reverse the district
    court’s summary judgment rulings and vacate the final
    judgment awarding damages and fees to NYA. We remand this
    case for further proceedings consistent with this opinion.
    ORME, Judge (concurring in the result):
    ¶56 I agree with my colleagues’ bottom line, but I disagree
    with much of their analysis. Thus, I join in the mandate of
    20140719-CA                   28               
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    New York Ave. v. Harrison
    reversal with remand, but I get there from a quite different
    perspective.
    ¶57 While my colleagues’ urge to rescue the Harrisons from
    their bad bargain is understandable, the district court was
    absolutely correct in interpreting the contract in accordance with
    its plain meaning: NYA had the contractual right to extend the
    closing date from month-to-month, without limits other than
    those resulting from the exercise of its own business judgment
    about when would be the best time to close the sale and
    commence development, upon payment of a stated amount. At
    least in retrospect, this was not a great arrangement from the
    standpoint of the Harrisons, who would have been better off
    with a provision limiting the number of times that NYA could
    extend the time for closing by paying that amount, or providing
    that it was a convenience fee only and would not be credited to
    the purchase price, or having the amount go up by $1000 per
    month. But they insisted upon none of those provisions in the
    course of negotiation and thus are stuck with their bargain. And
    the bargain itself is, perhaps, not all that unreasonable. After all,
    they wanted to sell the land to fund their retirement, and the
    monthly closing-postponement fee provided a reliable source of
    income pending NYA’s eventual purchase, even as they
    continued to reap the benefits of the land’s traditional
    agricultural use. (Clearly, they would have been better off with
    the larger stream of income that would have been available had
    they not agreed to reduce the monthly payments by half. Again,
    though, that was their decision.)
    ¶58 Turning to the next principal issue, I part ways with the
    district court and essentially agree with the position ultimately
    taken by my colleagues, although not all of their analysis. While
    in my view NYA was free to keep paying the monthly amount to
    extend the closing date, it had no right to condition the last
    payment it tendered on the Harrisons’ acceptance of the self-
    serving points made in the letter accompanying its check. Thus,
    20140719-CA                     29               
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    New York Ave. v. Harrison
    the Harrisons were free to reject the conditional tender. When
    NYA did not follow up with unconditional payment of the
    monthly amount, NYA became obligated to close by a date
    certain, as specified in the REPC.
    ¶59 It seems to me that when that date came and went
    without NYA tendering the purchase price, NYA breached. But I
    recognize the case may well be more complicated than that, so I
    have no problem with remanding to let the district court sort out
    what, exactly, should happen now. See Halladay v. Cluff, 
    739 P.2d 643
    , 645 n.5 (Utah Ct. App. 1987) (“Trial courts are in a much
    better position to evaluate an entire case, including its nuances
    and undisclosed pitfalls, than an appellate court. It is for this
    reason that where, as in this case, all possible ramifications of a
    decision on appeal may not be readily apparent, a case will be
    remanded for such proceedings as are appropriate in view of the
    guidance offered in the opinion.”). But at a big picture level, it
    seems to me that while NYA won a battle—it is right that it had
    the option of extending the closing date from month to month—
    it loses the war. Why? Because it failed to continue making those
    payments after its improperly conditioned tender was
    appropriately rejected by the Harrisons, following which it failed
    to tender the balance due, thereby materially breaching the
    contract.
    20140719-CA                    30               
    2016 UT App 240