Burningham v. Westgate Resorts, Ltd., 317 P.3d 445

In 2006 Burningham paid an $89,900 (10%) deposit under a REPC to purchase a Park City condo from Westgate; closing did not occur and the parties disputed entitlement to the deposit.
After negotiations, parties executed a new Agreement in September 2010 reducing the purchase price to $462,500 and identifying the $89,900 as the "Initial Deposit" (due date: "Already deposited").
The Agreement was integrated, expressly superseded and abrogated the REPC, and included Paragraph 38.1 giving Buyer a unilateral seven‑day termination right; it stated that if Buyer timely terminated under the (mis‑numbered) section the "deposit(s) paid shall be returned to Buyer."
Burningham timely exercised the seven‑day termination and demanded return of $89,900; Westgate refused, claiming the parties intended the $89,900 to be a nonrefundable credit/forfeited deposit under the prior REPC.
Burningham sued for return; district court granted summary judgment for Burningham, finding the Agreement unambiguous and entitling him to the refund; Westgate appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Mutual mistake (refund term)	Burningham: Agreement language is clear; no mutual mistake	Westgate: Extrinsic evidence (sales agent decl.) shows both parties intended deposit nonrefundable, so mutual mistake exists	No mutual mistake; sales agent's declaration showed only Westgate's unilateral belief, not Burningham's intent; summary judgment proper
Scrivener's error ("this Section 39.1")	Burningham: Typo; paragraph plainly refers to itself and refunds deposit	Westgate: Reference shows drafting error — extrinsic evidence must be considered to correct intent	Not a material issue: no extrinsic evidence that parties intended reference to a different provision; court treated it as obvious typographical error
Meeting of the minds (meaning of "deposit(s) paid")	Burningham: Agreement clearly designates $89,900 as Initial Deposit refundable in listed circumstances	Westgate: Parties never agreed that $89,900 was a refundable "deposit paid" rather than an "already deposited" nonrefundable credit	Meeting of the minds found as a matter of law: Agreement unambiguous and controlled; Westgate's contrary belief contradicted written terms
Entitlement to summary judgment	Burningham: Unambiguous contract language entitles him to return of $89,900; no triable issues	Westgate: Extrinsic evidence raises triable factual issues on intent, mistake, scrivener's error	Summary judgment affirmed for Burningham; no genuine issue of material fact precluded judgment

Wolf Mountain Resorts, LC v. ASC Utah, Inc., 268 P.3d 872 (Utah Ct. App.) (summary judgment improper if factual issue exists about parties' intent)
West One Trust Co. v. Morrison, 861 P.2d 1058 (Utah Ct. App.) (mutual mistake may permit rescission or reformation of integrated agreements)
The Cantamar, LLC v. Champagne, 142 P.3d 140 (Utah Ct. App.) (definition of mutual mistake)
United States Fid. & Guar. Co. v. United States Sports Specialty Ass'n, 270 P.3d 464 (Utah) (meeting of the minds shown by written policy/contract)
John Call Eng'g, Inc. v. Manti City Corp., 743 P.2d 1205 (Utah) (examining written contract to determine meeting of the minds)
McCleve Props., LLC v. D. Ray Hult Family Ltd. P'ship, 307 P.3d 650 (Utah Ct. App.) (affidavit of party intent insufficient to create fact question against unambiguous writing)
Daines v. Vincent, 190 P.3d 1269 (Utah) (interpretation must be reasonably supported by contract language)
ASC Utah, Inc. v. Wolf Mountain Resorts, LC, 245 P.3d 184 (Utah) (sophisticated parties charged with knowledge of contract terms)
Robertson's Marine, Inc. v. I4 Solutions, Inc., 223 P.3d 1141 (Utah Ct. App.) (prevailing party awarded appellate attorney fees when previously awarded fees below)