Opinion
Case No. 20040307-CA.
Filed March 10, 2005. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, The Honorable Sandra Peuler.
John W. Holt and Donald J. Winder, Salt Lake City, for Appellant.
Mark R. Gaylord and Jason D. Boren, Salt Lake City, for Appellee.
Before Judges Billings, Bench, and Davis.
MEMORANDUM DECISION
The trial court granted Plaintiff Ken Brailsford's motion for summary judgment, holding that pursuant to the relevant written agreements between the parties, Defendant Blaine P. Fetter guaranteed to pay for the cost of the restaurant's make-up air and exhaust system. "[A] motion for summary judgment may not be granted if a legal conclusion is reached that an ambiguity exists in the contract" because "the intent of the parties becomes a question of fact." WebBank v. American Gen. Annuity Serv. Corp., 2002 UT 88, ¶ 22, 54 P.3d 1139 (alteration in original) (quotations and citations omitted). "A contract is ambiguous if it is unclear, omits terms, has multiple meanings, or is not plain to a person of ordinary intelligence and understanding."Utah Farm Bureau Ins. Co. v. Crook, 1999 UT 47, ¶ 6, 980 P.2d 685. We conclude that when the Lease Agreement and the Guaranty of Certain Lease Obligations Agreement (the Guaranty) are read together, it is unclear whether the parties intended for Fetter to guarantee payment for the make-up air and exhaust system. We therefore reverse the summary judgment so the trial court can determine the parties' intent from extrinsic evidence. See WebBank, 2002 UT 88 at ¶ 19 (stating that when there is an ambiguity in a contract, the court must look at extrinsic evidence to determine the parties' intent).
Second, Fetter asserts that he is entitled to an offset for additional expenses he incurred. Fetter pleaded this offset defense in his Answer to the Amended Complaint and therefore it may be considered by the trial court on remand.
Third, Fetter argues that Brailsford cannot recover under the Guaranty because the make-up air and exhaust system was surrendered to the landlord when the lease was terminated. Fetter contends that the purported surrender and acceptance of the leased property relieves him of any obligation under the Guaranty. Unlike Fetter's claim for an offset, he did not plead the surrender and acceptance defense in his Answer to the Amended Complaint and, therefore, the defense may not be considered based on the current pleadings. See Valley Bank Trust Co. v. Wilken, 668 P.2d 493, 493-94 (Utah 1983) (holding that a failure to raise an affirmative defense in the pleadings constitutes a waiver); see also Timm v. Dewsnup, 921 P.2d 1381, 1389 (Utah 1996) (stating that the trial court has discretion as to whether to grant a motion to amend the pleadings).
We therefore reverse the summary judgment and remand the case for further proceedings.
WE CONCUR: Judith M. Billings, Presiding Judge, James Z. Davis, Judge.