District Court, Provo Department The Honorable Darold J.
McDade No. 160400282
Brett Fugate and Michael R. Anderson, Attorneys for
Richard J. Armstrong, Attorney for Appellees.
Kate A. Toomey authored this Opinion, in which Judges Gregory
K. Orme and Ryan M. Harris concurred.
Rozalind Murphy and her daughter Nicole Radford
(collectively, Buyers) appeal the district court's grant
of summary judgment in favor of Sean Whalen and Flip Avenue,
LLC (collectively, Sellers), contending the court erred in
determining as a matter of law that Buyers failed to present
sufficient evidence of damages. We agree with Buyers that
they were able to produce evidence of damages. We therefore
reverse the district court's award of summary judgment in
favor of Sellers and remand for further proceedings.
Buyers "became interested in purchasing and
'flipping' real property" and purchased from
Sellers three properties (the Properties) in Detroit,
Michigan. According to the Real Estate Purchase Contract (the
Contract), Buyers paid $103, 000 for the Properties. After
purchasing the Properties, Buyers hired "a real estate
agent to inspect [the Properties] who said they were all in
very poor condition, one had been flooded, and one was
occupied by a squatter." Buyers filed a complaint
against Sellers,  alleging fraud, negligent
misrepresentation, constructive trust, and unjust enrichment.
According to Buyers, Sellers represented that the Properties
were "'turn-key' rental properties," that
they would supply "instant cash flow," and that
they were valued higher than the price Sellers were asking.
They claimed that they learned, after inspection, "one
of the houses was worthless, and the other two (2) were worth
about $2, 500 each." To mitigate their damages, Buyers
sold the Properties for a total of $22, 000. Their complaint
claimed that they reasonably relied on Sellers'
representations about the Properties and that they sustained
damages exceeding $100, 000.
Following discovery, Sellers filed a motion for summary
judgment. Among other things, Sellers argued that all of
Buyers' claims for relief were "barred" because
they "failed to prove damages." The district court
granted summary judgment in favor of Sellers, basing its
decision solely on its conclusion that Buyers "produced
no evidence of their damages."
Buyers appeal and contend the district court erred when it
granted summary judgment in favor of Sellers because there
were genuine issues of material fact with regard to whether
they sustained damages.
Summary judgment is appropriately granted "if the moving
party shows that there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as
a matter of law." Utah R. Civ. P. 56(a). When the
district court grants summary judgment, "we review de
novo whether the record shows that there is no genuine issue
as to any material fact and that the moving party is entitled
to judgment as a matter of law/' Dillon v. Southern
Mgmt. Corp. Ret. Trust, 2014 UT 14, ¶ 21, 326 P.3d
656 (quotation simplified), and recite "all facts and
fair inferences drawn from the record in the light most
favorable to the nonmoving party," Poteet v.
White, 2006 UT 63, ¶ 7, 147 P.3d 439.
To recover damages, the party must prove both the "fact
of damages" and the "amount of damages."
Atkin Wright & Miles v. Mountain States Tel. &
Tel. Co., 709 P.2d 330, 336 (Utah 1985). To prove the
"fact of damages," the party must "do more
than merely give rise to speculation that damages in fact
occurred" and instead must provide evidence that
"give[s] rise to a reasonable probability that the
[party] suffered damage[s]." Id. "[T]he
standard for determining the amount of damages is not so
exacting as the standard for proving the fact of
damages/' but "there still must be evidence that
rises above speculation and provides a reasonable, even
though not necessarily precise, estimate of damages."
Here, the district court granted summary judgment in favor of
Sellers based solely on its conclusion that Buyers
"produced no evidence of their damages." The court
referred to Murphy's deposition testimony in which she
stated she did not "have any evidence of how much or
whether the purchase price that [they] paid for [the
Properties] was fraudulently inflated." Although
Buyers' damages evidence may have flaws that may be
explored on remand, Buyers have nevertheless demonstrated
they suffered a loss between the amount for which they
purchased the Properties and the amount they received upon
selling them. Buyers asserted in their complaint that the
Properties' values were significantly lower than what
Sellers represented they were and lower even than the price
Buyers paid for them. Buyers purchased the Properties for
$103, 000and, about six months later, resold them
for $22, 000. They presented to the district court the sales
contract for the resale of the Properties for $22, 000,
supporting their claim of damages. This was sufficient
evidence to overcome a grant of summary judgment to Sellers
based solely on the court's determination there was an
absence of evidence of damages.
We conclude that Buyers presented evidence of both the fact
and the amount of damages. We therefore reverse the district
court's grant of summary judgment in favor of Sellers and