opinions/mds/ingram061605.htm 18:15:43 GMT --> Ingram v. Kitts

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IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Ed Ingram dba Ed Ingram Construction,

Plaintiff and Appellant,

v.

Brian Kitts, et al.,

Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030604-CA
 

F I L E D
(June 16, 2005)
 

2005 UT App 271

 

-----

Third District, Silver Summit Department, 010500400

The Honorable Bruce Lubeck

Attorneys: Scott B. Mitchell, Salt Lake City, for Appellant

Darren K. Nelson and E. Paul Wood, Salt Lake City, for Appellees

-----

Before Judges Bench, Greenwood, and Thorne.

GREENWOOD, Judge:

    Plaintiff Ed Ingram dba Ed Ingram Construction appeals the trial court's order declining to award him statutory damages pursuant to the parties' settlement agreement (the Settlement Agreement). We reverse and remand.

    The Settlement Agreement is a contract. See In re Estate of Flake, 2003 UT 17,28, 71 P.3d 589 (noting an enforceable settlement agreement is a contract); see also Musick v. Department of Educ., 339 F.3d 1365, 1369 (Fed Cir. 2003) ("A settlement agreement is a contract . . . ."). "[Q]uestions of contract interpretation not requiring resort to extrinsic evidence are matters of law, which we review for correctness." Fairbourn Commer., Inc. v. American Hous. Partners, Inc., 2004 UT 54,6, 94 P.3d 292 (alteration, quotations, and citation omitted).

    Plaintiff argues that the trial court erred when it precluded him from recovering statutory damages(1) after Defendants breached the Settlement Agreement. Paragraph 11(b) of the Settlement Agreement states that "[i]n the event [Defendants] fail to pay [Plaintiff] the Settlement Amount . . . [Plaintiff] shall be entitled to Judgment against [Defendants] as prayed for in the Amended Complaint, less sums paid by [Defendants] to the date of entry of judgment."

    Based on this language, once Defendants breached the Settlement Agreement, Plaintiff was entitled to the relief he prayed for in his amended complaint. See Royal Res., Inc. v. Gibralter Fin. Corp., 603 P.2d 793, 796 (Utah 1979) (honoring the parties' agreement "whereby[, notwithstanding the doctrine of election of remedies,] plaintiff was permitted to take judgment against [one defendant], and in the event of no recovery, to then proceed against [the other two defendants] individually."). Furthermore, Plaintiff states in his brief that his amended complaint seeks only actual damages totaling $54,790.04, which includes the dishonored check amounts and statutory damages as provided in Utah Code section 7-15-1(7)(b)(vi). See Utah Code Ann. 7-15-1(7)(b)(vi) (Supp. 2004). We therefore conclude that the Settlement Agreement entitles Plaintiff to recover statutory damages as sought in Count Four of his amended complaint.(2)

    Finally, Plaintiff argues that the trial court erred by concluding that Plaintiff's right to recover compensatory damages constituted "payment made prior to entry of judgment" under the Settlement Agreement, thereby precluding damages with regard to Defendants' dishonored instruments. It is clear, however, that this provision provides credit to Defendants for any payments made prior to entry of judgment as agreed to in the Settlement Agreement.

    Accordingly, we reverse the trial court's ruling and remand for proceedings consistent with this decision.

______________________________

Pamela T. Greenwood, Judge

-----

WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

William A. Thorne Jr., Judge

1. The statutory damages sought are pursuant to Utah Code section 7-15-1(7). See Utah Code Ann. 7-15-1(7)(b)(vi) (Supp. 2004) (providing where a negotiable instrument is dishonored, in addition to the check amount, the holder is entitled to recover statutory damages "(A) equal to the greater of: (I) $100; or (II) triple the check amount; and (B) not to exceed the check amount plus $500.").

2. Because we have determined that, here, contract principles allow recovery of both compensatory and statutory damages, we need not reach the election of remedies issue.

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opinions/mds/ingram061605.htm 18:15:43 GMT -->