United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER DENYING  MOTION IN
LIMINE RE DAMAGES CALCULATION
Nuffer United States District Judge.
Cropper Medical, Inc. dba 3D FootPrints (“Cropper
Medical”) has filed a motion in limine (the
“Motion in Limine”) seeking to cap plaintiff
SolutionStream, LLC's (“SolutionStream”)
contract damages at $14, 311. Cropper Medical offered by letter
to pay this amount to SolutionStream in exchange for
SolutionStream acknowledging satisfaction of Cropper
Medical's obligation and dismissing this case. Cropper
Medical argues in the Motion in Limine that, under Utah's
tender rule,  SolutionStream is precluded from objecting
to $14, 311 as the amount of the debt because SolutionStream
rejected Cropper Medical's offer without reasoning or a
counterproposal. SolutionStream opposes the Motion in Limine,
arguing that Cropper Medical made only a settlement offer,
which does not constitute a tender. Because the tender rule does
not apply, the Motion in Limine is denied.
Utah law, which applies in this case,  if someone turns
away a payment of an obligation, or “tender, ”
without explanation for why the payment is insufficient, the
recipient loses the payment as well as the right to object to
the amount of the payment. This tender rule is codified in
Utah Code § 78B-5-802. Utah courts have explained that
tender of payment on a contract is only valid if it is
“(1) timely, (2) made to the person entitled to
payment, (3) unconditional, (4) an offer to pay the amount of
money due, and (5) coupled with an actual production of the
money or its equivalent.” SolutionStream argues that
Cropper Medical cannot satisfy the first, third, or fourth
elements of the test because Cropper Medical's offer was
untimely, conditional, and for less than the amount
letter from Cropper Medical to SolutionStream dated January
8, 2018 (the “January Letter”) was not a tender,
even though it is labeled as a “tender of
payment.” Although the timeliness of Cropper
Medical's offer cannot be resolved on the briefing,
the January Letter otherwise falls short of a tender. The
January Letter, which was sent during ongoing litigation
about Cropper Medical's payment obligation to
SolutionStream, expressly declines to acknowledge any debt.
Instead, Cropper Medical offers to pay a portion of the full
obligation SolutionStream claimed in its invoices based on
Cropper Medical's contested reasons for a
reduction. Based on the January Letter, if
SolutionStream will accept the reduced payment and dismiss
its lawsuit, then Cropper Medical will make the
payment. The January Letter therefore was neither
unconditional nor for “the amount of money
due.” Although not raised in the briefing, the
January Letter gives no indication that payment or its
equivalent was included with the letter,  which is also
required for a tender on a contract.
January Letter does not provide a basis for capping
SolutionStream's damages on the Motion in Limine. Cropper
Medical's liability, and the amount of
SolutionStream's damages, if any, remain in dispute.
IT IS HEREBY ORDERED that the Motion in Limine is DENIED.
 Motion in Limine Re Contract Damages,
docket no. 10, filed January 24, 2018.
 Id. at 2.
 Utah Code § 78B-5-802.
 Plaintiff's Memorandum Opposing
Defendant's Motion in Limine Re Damages
(“Opposition”), docket no. 15, ...