Opinion
Case No. 20020486-CA.
Filed November 14, 2003. (Not For Official Publication)
Appeal from the Third District, Silver Summit Department, The Honorable Robert K. Hilder.
George Weinstein, Park City, Appellant Pro Se.
Thomas L. Howard, Park City, for Appellees.
Before Judges Jackson, Davis, and Orme.
MEMORANDUM DECISION
We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R.App.P. 29(a)(3). Moreover, the appeal is readily resolved under well-settled principles of applicable law.
Summary judgment is appropriate only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Utah R.Civ.P. 56(c). See Guardian Title Co. v. Mitchell, 2002 UT 63, ¶ 12, 54 P.3d 130. "In reviewing a summary judgment, we accord no deference to the trial court and review its ruling for correctness." Price Dev. Co. v. Orem City, 2000 UT 26, ¶ 9, 995 P.2d 1237.
The trial court correctly determined that "the permission requirement [in the CCRs]," "[l]ike all contractual conditions, obligations, or covenants, . . . is subject to the implied covenant of good faith and fair dealing." See, e.g., Prince v. Bear River Mut. Ins. Co., 2002 UT 68, ¶ 27, 56 P.3d 524 ("Under Utah law, 'an implied covenant of good faith and fair dealing generally inheres [in] all contractual relationships.'") (quoting Rawson v. Conover, 2001 UT 24, ¶ 44, 20 P.3d 876) (alteration in original); Wood v. Utah Farm Bureau Ins. Co., 2001 UT App 35, ¶ 23, 19 P.3d 392 ("Parties to a contract must exercise their contractual rights in good faith."). In the context of this case, we agree with the trial court that the covenant of good faith and fair dealing means that Appellant's permission may not be unreasonably withheld. See Cook v. Zions First Nat'l Bank, 919 P.2d 56, 60 (Utah Ct.App.) ("When one party to a contract retains power or sole discretion in an express contract, it must exercise that discretion reasonably and in good faith."), cert. denied, 925 P.2d 963 (Utah 1996).
In limited circumstances, bad faith is so apparent that it is appropriate to decide the issue as a matter of law. Cf. Prince, 2002 UT 68 at ¶ 36 (affirming grant of summary judgment where trial court properly concluded that defendant "did not breach the covenant of good faith and fair dealing as a matter of law"); Olympus Hills Shopping Ctr., Ltd. v. Smith's Food Drug Ctrs., Inc., 889 P.2d 445, 451-52, 458 (Utah Ct.App. 1994) (noting that the "essence of [the] covenant of good faith and fair dealing is objectively reasonable conduct," but stating that when "reasonable minds could differ as to whether [a party to a contract] acted in bad faith," the issue should be decided by the fact finder), cert. denied, 899 P.2d 1231 (Utah 1995). In most cases, however, "whether there has been a breach of good faith and fair dealing is a factual issue, generally inappropriate for decision as a matter of law." Republic Group, Inc. v. Won-Door Corp., 883 P.2d 285, 291 (Utah Ct.App. 1994). See Berube v. Fashion Ctr., Ltd., 771 P.2d 1033, 1047 (Utah 1989) ("The scope of the covenant of good faith and fair dealing is determined by the factual setting in which it is formed.").
In this case, the trial court concluded that the reason Appellant withheld his permission was because he wanted to use Appellees' property to exercise his dog. While we agree that it is unreasonable to withhold permission for such a purpose, it is also true that there was evidence to the contrary as concerns the reason Appellant withheld permission. Resolving this dispute of fact is inappropriate at the summary judgment stage. See Utah R.Civ.P. 56(c).
"[I]n the interest of judicial economy and providing guidance to the parties and the trial court," State v. Fisk, 966 P.2d 860, 861 (Utah Ct.App. 1998), we address a related issue likely to surface on remand. Appellant argues that he necessarily did not act in bad faith because Appellees never actually requested his permission to build the fence. Generally, permission cannot be characterized as unreasonably withheld if such permission was never sought, but it is also true that "'the law does not require one to do a vain or useless thing.'" Carr v. Enoch Smith Co., 781 P.2d 1292, 1295 (Utah Ct.App. 1989) (citation omitted). Thus, in general contract law, such a rule "'excuses the making of a formal tender which would otherwise be required, where it is reasonably plain and clear that if made, such a tender would be an idle ceremony and of no avail.'"Id. at 1295 (citation omitted). See Shields v. Harris, 934 P.2d 653, 655 (Utah Ct.App. 1997). If, after an examination of the nature of the relationship between the parties, it becomes evident that Appellant would not have granted his permission regardless of Appellees' manner of asking, it may well be that Appellees' failure to formally request permission is of little consequence in analyzing the reasonableness of Appellant's consistently expressed opposition to the fence. See Brown v. Moore, 973 P.2d 950, 954 (Utah 1998) ("In determining whether a party has breached the covenant of good faith and fair dealing, we are not limited to an examination of the express contractual provisions; we will also consider the course of dealings between the parties.").
For the reasons stated above, we reverse the trial court's grant of summary judgment and remand the case for such further proceedings as may now be appropriate. Because Appellant has yet to prevail in this action, his request for attorney fees is premature and is accordingly denied.
Moreover, it is far from certain that Appellant would be entitled to attorney fees in any event. See Smith v. Batchelor, 832 P.2d 467, 473 (Utah 1992) ("It is the general rule that pro se litigants should not recover attorney fees for successful litigation.").
WE CONCUR: Norman H. Jackson, Presiding Judge, and James Z. Davis, Judge.