Cross v. Olsen, 303 P.3d 1030

Lake Forest Properties LLC and Colco Development, Inc. sue for indemnification under a Settlement Agreement after prior litigation involving a water purchase dispute.
Cross settled with Defendants in the Lake Forest Action; the Settlement Agreement included an Indemnity Provision, a Release Provision, a Notification Provision, and a Confidentiality Provision with narrow exceptions.
Cross disclosed terms through statements in the Lake Forest Action and later filed the present case not under seal.
Cross assigned his interest in the present litigation to Lake Forest after judgment was entered in the Lake Forest Action.
The trial court granted Defendants summary judgment, holding that Cross’s breaches of the Confidentiality Provision excused Defendants’ performance under the Indemnity Provision.
The court did not resolve all issues regarding the timing of breaches or potential separate breaches of the Notification Provision.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Cross’s disclosures breached the Confidentiality Provision.	Lake Forest argues Cross’s disclosures were either non-identifying or within permissible scope.	Defendants contend Cross disclosed the existence of the indemnity and confidentiality terms and the provision itself.	Cross breached by disclosing confidentiality terms; but indemnity existence was excluded from Confidentiality Provision.
Whether the first breach rule excused Defendants’ performance.	Lake Forest asserts any breach was not a material, first breach that excuses performance.	Defendants rely on first breach rule to excuse future performance after Cross’s breaches.	The trial court erred in concluding material breach; remand for factual materiality analysis.

Saunders v. Sharp, 840 P.2d 796 (Utah Ct. App. 1992) (material breach requires substantial and important impact on contract)
State v. Robison, 147 P.3d 448 (Utah 2006) (appellate review of contract terms and breach standards)
Jackson v. Rich, 499 P.2d 279 (Utah 1972) (mutual dependence prerequisite for excuse of performance)