Wing v. Still Standing Stable , 387 P.3d 605 ( 2016 )

2016 UT App 229THE UTAH COURT OF APPEALS
HILARY WING, TIM SHEA, ASPENWOOD REAL ESTATE
CORPORATION, AND ELITE LEGACY CORPORATION,
Appellees,
v.
STILL STANDING STABLE LLC,
Appellant.
Opinion
No. 20130768-CA
Filed November 17, 2016
Second District Court, Ogden Department
The Honorable Noel S. Hyde
The Honorable Michael D. Lyon
No. 060906802
Robert J. Fuller, Attorney for Appellant
Robert R. Wallace, L. Miles LeBaron, and Dallin T.
Morrow, Attorneys for Appellees
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.
VOROS, Judge:
¶1 In this opinion we address one of four appeals arising
from a single lawsuit over a failed real estate deal. 1 The lawsuit
involves a dispute over a real estate sales commission. On one
hand are a real estate brokerage and related individuals
(Plaintiffs); on the other, the property sellers.
1. The other three appeals are discussed in Elite Legacy Corp. v.
Schvaneveldt, 2016 UT App 228 (addressing case 20130746-CA and
20140978-CA) and Wing v. Code, 2016 UT App 230 (addressing
case 20130854-CA).
Wing v. Still Standing Stable
¶2 In this appeal, Still Standing Stable LLC (Still Standing)
challenges the trial court’s pretrial dismissal of Still Standing’s
three counterclaims against real estate agent Tim Shea and
related parties. Still Standing contends, first, that Shea owed and
subsequently breached fiduciary duties running to Still
Standing; second, that Plaintiffs’ negligent conduct and
misrepresentations damaged Still Standing; and third, that
newly discovered evidence demonstrates that Plaintiffs lacked
standing to sue and thus that the court lacked subject matter
jurisdiction. The trial court rejected all of Still Standing’s claims
on the ground that its damages were caused by its own conduct,
not Plaintiffs’. We affirm.
BACKGROUND 2
¶3 A more complete statement of the background facts
common to all four related appeals is set forth in Elite Legacy
Corp. v. Schvaneveldt, 2016 UT App 228. Here, we recite a few of
the more salient facts from that opinion along with pertinent
facts not recited in that opinion.
¶4 This case involves a parcel of property in Weber County,
Utah (the Property). Still Standing purchased the Property from
the State of Utah School and Institutional Trust Lands
Administration (SITLA). At that time, SITLA informed Still
Standing that “there is likely no access” to the Property and that
SITLA was “not guaranteeing access.” 3
2. When reviewing a trial court’s rulings on a summary
judgment motion, we recite the facts and inferences in the light
most favorable to the nonmoving party. Poteet v. White, 2006 UT
63, ¶ 7, 147 P.3d 439.
3. In an earlier appeal arising from this same litigation, our
supreme court did not disturb a trial court finding that no access
(continued…)
20130768-CA 2 2016 UT App 229Wing v. Still Standing Stable
¶5 After Still Standing purchased the Property, Cathy Code,
Chuck Schvaneveldt’s wife, advertised it for sale. Tim Shea, a
real estate agent, approached Still Standing through
Schvaneveldt and Code about some potential buyers (Buyers). 4
Shea was employed by Aspenwood Real Estate Corporation
(and later its successor, Elite Legacy Corporation). Shea and
Schvaneveldt entered into a For Sale by Owner Commission and
Agency Disclosure Agreement (the FSBO). 5
(…continued)
existed to the Property. See Still Standing Stable, LLC v. Allen, 2005
UT 46, ¶¶ 2, 5, 122 P.3d 556.
4. Schvaneveldt is the sole member of Still Standing Stable LLC,
the entity which owned the Property at issue. Though not
precisely accurate, we refer to Still Standing, Code, and
Schvaneveldt collectively as Sellers.
5. Difficulty in pinning down the parties to various documents—
as well as the lawsuit itself—plagues this litigation. For example,
the FSBO, the Real Estate Purchase Contract, and the seller
disclosure form all name different sellers. All remaining
litigation concerns various parties’ rights and duties under the
FSBO. In Elite Legacy Corp. v. Schvaneveldt, 2016 UT App 228, we
affirmed the judgment of the trial court that Schvaneveldt bears
personal liability for the real estate sales commission, because
Schvaneveldt did not sign the FSBO in his representative
capacity. So it might seem inconsistent for us to refer to Still
Standing as a seller in this appeal. However, because the parties
have not asked us to resolve any potential inconsistency, we
decide the issues as presented by the named parties in each
appeal. In any event, our reference to Still Standing here does
not affect our decision that Schvaneveldt has failed to establish
that he was not personally liable under the FSBO. See id. ¶ 74.
20130768-CA 3 2016 UT App 229Wing v. Still Standing Stable
¶6 As further explained in Elite Legacy Corp. v. Schvaneveldt,
2016 UT App 228, the FSBO contained a brokerage fee clause
requiring Schvaneveldt to pay a commission if Sellers
“accept[ed] an offer from [Buyers].” That brokerage fee became
“immediately . . . due and payable” “[i]f the sale or exchange
[was] prevented by default of the Seller.” “Default” referred to
default on the Real Estate Purchase Contract (the REPC) entered
into between Buyers and one or more of the Sellers. Among
other requirements, the REPC required Buyers to deposit $25,000
in earnest money; required Sellers to “convey good and
marketable title to Buyer at Closing by general warranty deed”;
and imposed a 15-day seller-disclosure deadline, a 60-day due-
diligence deadline, and a 90-day settlement deadline ahead of
closing.
¶7 Initially, Buyers and Sellers each fulfilled their REPC
obligations. Buyers deposited $25,000 earnest money with
Aspenwood and Sellers made the required disclosures. In the
disclosures, Sellers admitted that the property lacked access
from a public road, but stated that there was “direct access to the
Property through . . . [a] Private Easement.” As the closing date
approached, Buyers became increasingly concerned about the
lack of insurable access to the Property. But they did not object
to the seller disclosures during the 60-day “due diligence”
window.
¶8 Before closing, Sellers’ attorney called Buyers’ attorney to
inform him that Sellers would be conveying the Property by
special warranty deed, not by general warranty deed as called
for in the REPC, and that Sellers’ escrow and closing instructions
would specify that the conveyance would be by special warranty
deed. Buyers’ attorney responded that a special warranty deed
“might be okay if I can get a title policy that’s going to guarantee
[Buyers] access.” But by the time of closing, no title insurance
company—including the one hired by Sellers—was willing to
20130768-CA 4 2016 UT App 229Wing v. Still Standing Stable
offer a policy that guaranteed access to the Property. The deal
fell through when Buyers did not appear at closing.
¶9 At around the same time that Shea and Schvaneveldt
were dealing with the Property in Weber County, they entered
into a separate agreement regarding property in Salt Lake
County. 6 As part of that deal, Shea entered into a Confidential
Disclosure Agreement with Still Standing and Stake Center
Locating Inc., another LLC operated by Schvaneveldt. Still
Standing was listed alongside Stake Center as a party in the first
paragraph of the Confidential Disclosure Agreement, but only
Stake Center was listed as the “Discloser” above the signature
line. The Confidential Disclosure Agreement was signed only by
Stake Center’s Corporate Vice President; Schvaneveldt, Still
Standing’s sole member, did not sign the Confidential Disclosure
Agreement.
¶10 Finally, Buyers’ attorney claimed he sent principal broker
Hilary Wing a copy of a letter warning Buyers that “the Seller
lied about the access,” and that Sellers’ actions constituted a
“default” and an “outright fraud.” Wing did not pass the letter
along to Sellers.
ISSUES AND STANDARD OF REVIEW
¶11 Still Standing challenges the trial court’s grant of
summary judgment, which disposed of all of its counterclaims.
¶12 First, Still Standing contends that, as a matter of law, Shea
breached the Confidential Disclosure Agreement and his
fiduciary duties as a real estate agent generally when he
(1) failed to communicate Buyers’ concerns about access to
6. Shea had previously acted as Schvaneveldt’s real estate agent
on other properties.
20130768-CA 5 2016 UT App 229Wing v. Still Standing Stable
Sellers, and (2) failed to disclose information about access to
Sellers.
¶13 Second, Still Standing contends that, based on Shea’s
“breaches and misrepresentations, [Still Standing] was led to
believe that it was contracting with a cash buyer,” and Shea’s
“failure to communicate material information made a bad
situation worse, causing damages to [Still Standing].”
¶14 Finally, Still Standing contends that “the summary
disposition of all of [Sellers’] claims should be reversed . . . in
light of the misrepresentations Seller discovered after its claims
were dismissed.” Those misrepresentations, Still Standing
claims, show that “none of the plaintiffs . . . had standing to
sue . . . for a commission.”
¶15 We review a trial court’s legal conclusions and ultimate
grant or denial of summary judgment for correctness and view
the facts and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party. Jones & Trevor
Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 9, 284 P.3d 630.
ANALYSIS
I. Breach of Fiduciary Duty
¶16 Still Standing first contends that Shea breached his
fiduciary duty by not disclosing material information about
Buyers—specifically, that in the course of the deal Buyers had
begun to think that Schvaneveldt “was not telling us the truth.”
Breach of a fiduciary duty for nondisclosure requires proof of
three elements: (1) the existence of a fiduciary duty to disclose,
(2) knowledge of the information, and (3) failure to disclose the
information. Gilbert Dev. Corp. v. Wardley Corp., 2010 UT App
361, ¶ 20, 246 P.3d 131.
20130768-CA 6 2016 UT App 229Wing v. Still Standing Stable
¶17 Much of Still Standing’s briefing on this point reads like a
memorandum directed to a trial court; that is, it focuses on the
elements of his claim rather than on the ruling of the trial court.
Our role as an appellate court is not to adjudicate the merits of a
litigant’s claims in the first instance but “review of specific
rulings made by the trial court.” Law v. Smith, 98 P. 300, 305
(Utah 1908). Accordingly, we begin our analysis with the trial
court’s ruling.
¶18 The trial court’s ruling did not adjudicate the elements of
Still Standing’s claim for breach of fiduciary duty outlined
above. Instead, it concluded that, even assuming such a breach
occurred, Still Standing could not demonstrate that the breach
caused its damages. Still Standing’s damages, the court
concluded, resulted from its refusal to convey the Property by
general warranty deed or by special warranty deed with a
guarantee of access:
[I]t strains credulity to think that somebody
would fork over four million [dollars] without a
general warranty deed or at least some kind of a
guarantee under a special warranty deed that there
would be an access. . . .
Even if Shea and Re/Max acted improperly
in some way as Still Standing suggests, the simple
truth is that the actions of Shea and Re/Max did not
cause the transaction to fail; therefore, Still
Standing cannot prove that [it was] damaged in
any way by the actions of Shea or Re/Max.
As a result, even if Shea did not fulfill some
duty owed to Still Standing or even if Shea made
some misrepresentation to Still Standing, all of Still
Standing’s claims fail because it cannot prove that
Shea and Re/Max caused any damage to Still
Standing. The transaction failed because Still
20130768-CA 7 2016 UT App 229Wing v. Still Standing Stable
Standing could not guarantee an access to the
property. That’s the bottom line.
¶19 Although Still Standing argues at length that “Shea and
Re/Max acted improperly in some way,” our review is confined
to the trial court’s ruling against Still Standing on causation as a
matter of law. As stated by the court in the passage quoted
above, and as explained at greater length in our opinion in Elite
Legacy Corp. v. Schvaneveldt, 2016 UT App 228, ¶ 63–65, Sellers
defaulted by refusing to convey the Property by general
warranty deed as required by the REPC. But Still Standing’s
brief on appeal does not even mention the general warranty
deed issue. Because Still Standing “fails to address the basis of
the district court’s ruling, we reject this challenge.” See Golden
Meadows Props. LC v. Strand, 2010 UT App 257, ¶ 17, 241 P.3d
375.
¶20 That said, the underlying problem—indeed, the stated
reason Still Standing refused to convey by general warranty
deed—was, as the trial court identified, lack of access. Still
Standing disputes this, stating that it “has always maintained
there was access to the property.” Still Standing may in fact have
always maintained that the property was not landlocked. But the
evidence to the contrary was overwhelming. In addition, in the
course of this litigation, at least two title insurance companies—
including one hired by Still Standing—have examined the
property’s title, but none has been willing to insure access.
¶21 The REPC required Sellers to convey the Property by
general warranty deed; Sellers announced they would convey by
special warranty deed; Buyers agreed to accept a special
warranty deed only on condition that insurable access was
guaranteed; but Sellers never fulfilled this condition. On appeal,
Still Standing acknowledges none of this evidence. So again,
because Still Standing “fails to address the basis of the district
20130768-CA 8 2016 UT App 229Wing v. Still Standing Stable
court’s ruling,” we reject its challenge to that ruling. See Golden
Meadows Props., 2010 UT App 257, ¶ 17.
II. Negligence and Misrepresentation
¶22 Still Standing next contends that, based on Shea’s
“breaches and misrepresentations, [Still Standing] was led to
believe it was contracting with a cash buyer,” and that Shea’s
“failure to communicate material information made a bad
situation worse, causing damages to [Still Standing].”
¶23 As Still Standing acknowledges, and as explained above,
the trial court did not adjudicate every aspect of these claims,
but instead rejected them on the ground that Still Standing could
not prove causation. Still Standing could not prove causation,
the court concluded, because Sellers breached the REPC by
refusing to convey the Property by warranty deed.
¶24 On appeal, again, Still Standing does not address the
general warranty deed issue at all. It does address access,
arguing that Plaintiffs produced no evidence “that any notice
was given to Sellers’ side during the due diligence period
demanding an ‘access guarantee’ or ‘access insurance.’” But the
record shows that Buyers’ willingness to accept something other
than a general warranty deed was conditional. Buyers’
representative testified in his deposition that Sellers’ attorney
called him “right around the time of closing saying that we want
to execute a special warranty deed which doesn’t guarantee us
access . . . And I said, well, that might be okay if I can get a title
policy that’s going to guarantee me access, and they wouldn’t do
that either.” 7 Sellers did not dispute this testimony below. And it
was key to the trial court’s ruling. 8
7. The difference between a special warranty deed and a general
warranty deed “is that grantors of special warranty deeds ‘only
promise that no title defects have arisen or will arise due to the
(continued…)
20130768-CA 9 2016 UT App 229Wing v. Still Standing Stable
¶25 Because Still Standing “fails to address the basis of the
district court’s ruling,” we reject its challenge to that ruling. See
Golden Meadows Props. LC v. Strand, 2010 UT App 257, ¶ 17, 241
P.3d 375.
III. Plaintiffs’ Standing and the Court’s Jurisdiction
¶26 Finally, Still Standing contends that “the summary
disposition of all of Sellers’ claims should be reversed . . . in light
of the misrepresentations Sellers discovered after [their] claims
were dismissed.” Those misrepresentations, Still Standing
argues, show that “none of the plaintiffs . . . had standing to
sue . . . for a commission.” 9
¶27 We reject this claim on two grounds. First, it fails to
identify the ruling of the trial court appealed from. Based on the
arguments advanced in the companion case Elite Legacy Corp. v.
(…continued)
acts or omissions of the grantor,’ whereas grantors of general
warranty deeds promise to defend ‘all claims.’” Mason v.
Loveless, 2001 UT App 145, ¶ 12, 24 P.3d 997 (quoting,
respectively, David A. Thomas, 11 Thompson on Real Property,
§ 94.07(b)(2)(i), at 81–82 (David A. Thomas ed., Supp.2000) and
Richard R. Powell, Powell on Real Property § 81A.06(2)(d)(iii), at
81A-122-23) (emphases omitted).
8. In the trial court proceedings, Sellers did not dispute the
factual accuracy of this exchange.
9. This argument relies on the same post-trial evidence at issue in
Sellers’ standing arguments set forth in two of the other appeals
surrounding this dispute—case 20130746-CA and 20140978-CA.
See Elite Legacy Corp. v. Schvaneveldt, 2016 UT App 228, ¶¶ 24, 50–
55.
20130768-CA 10 2016 UT App 229Wing v. Still Standing Stable
Schvaneveldt, 2016 UT App 228, we assume this claim relates to
the trial court’s denial of a rule 60(b) motion. For reasons
explained in that opinion and many other cases, rule 60(b)
motions, especially those filed well after the conclusion of trial,
present a host of legal issues. See, e.g., Yknot Global Ltd. v. Stellia
Ltd., 2016 UT App 132, 379 P.3d 36, petition for cert. filed August
25, 2016 (No. 20160697). Because Still Standing does not identify
the ruling appealed from or deal with the issues it presents, we
reject this claim. “Briefs must contain reasoned analysis based
upon relevant legal authority. An issue is inadequately briefed
when the overall analysis of the issue is so lacking as to shift the
burden of research and argument to the reviewing court.” State
v. Sloan, 2003 UT App 170, ¶ 13, 72 P.3d 138 (citation and internal
quotation marks omitted). “Utah courts routinely decline to
consider inadequately briefed arguments.” State v. Davie, 2011
UT App 380, ¶ 16, 264 P.3d 770 (citation and internal quotation
marks omitted).
¶28 Second, Still Standing’s third claim of error in this appeal
is legally identical to Schvaneveldt’s first claim of error in Elite
Legacy Corp. v. Schvaneveldt, 2016 UT App 228, which we rejected.
Accordingly, we reject Still Standing’s claim here for the reasons
explained in that case. See 2016 UT App 228, ¶¶ 32–55.
CONCLUSION
¶29 For the foregoing reasons, the judgment of the trial court
is affirmed.
20130768-CA 11 2016 UT App 229