Hilary Wing, Tim Shea, Aspenwood Real Estate Corporation, and Elite Legacy Corporation, Appellees,
Still Standing Stable LLC, Appellant.
District Court, Ogden Department The Honorable Noel S. Hyde
The Honorable Michael D. Lyon No. 060906802
J. Fuller, Attorney for Appellant
R. Wallace, L. Miles LeBaron, and Dallin T. Morrow, Attorneys
J. Frederic Voros Jr. authored this Opinion, in which Judges
Gregory K. Orme and Kate A. Toomey concurred.
In this opinion we address one of four appeals arising from a
single lawsuit over a failed real estate deal. 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.
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.
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.
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
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).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).
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.
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"
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 offer a policy that guaranteed access to the
Property. The deal fell through when Buyers did not appear at
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. 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
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." ...