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Wing v. Code

Court of Appeals of Utah

November 17, 2016

Hilary Wing, Appellant,
v.
Cathy Code, Appellee.

         Second District Court, Ogden Department The Honorable Noel S. Hyde The Honorable Michael D. Lyon No. 060906802

          L. Miles LeBaron and Dallin T. Morrow, Attorneys for Appellant

          Karra J. Porter and Phillip E. Lowry, Attorneys for Appellee

          Judge J. Frederic Voros Jr. authored this Opinion, in which Judges Gregory K. Orme and Kate A. Toomey concurred.

          OPINION

          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.

         ¶2 In this appeal, Hilary "Skip" Wing, a principal broker for Aspenwood Real Estate Corporation and its successor, Elite Legacy Corporation, challenges a trial court ruling ordering him to pay defendant Cathy Code's attorney fees. We affirm.

         BACKGROUND

         ¶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 Plaintiffs in this action sued to recover a real estate sales commission owed (they believed) under a For Sale By Owner Agreement (the FSBO). They originally named Still Standing Stable LLC (Still Standing) as the only defendant but later added Charles Schvaneveldt and Code. The original plaintiffs were identified as Tim Shea and Re/Max Elite, an assumed name. Early in the litigation, Code, Charles Schvaneveldt, and Still Standing (the Defendants) repeatedly argued that, without a principal broker, Plaintiffs lacked standing to sue. In response, Wing-a licensed principal broker-and two corporations joined as Plaintiffs. Defendants thereafter temporarily abandoned those standing arguments.

         ¶5 The court determined on summary judgment that Plaintiffs had earned a commission but allowed the case to proceed to trial on the question of who owed the commission. Before trial, the court, without objection from Schvaneveldt or Code, dismissed Still Standing from the case. At the close of evidence, Code moved for a directed verdict, which was granted. These rulings left Schvaneveldt as the last remaining defendant, and the jury found that he owed the commission.

         ¶6 Having prevailed at trial, Code sought, and the court granted, an award of attorney fees under the FSBO. Next, the trial court addressed who owed the fees. Wing maintained that he was not personally liable, because he had never claimed to be a party to the FSBO. Instead, he became a plaintiff solely to cure any standing defect. But the trial court ruled that because Wing "asserted a cause of action against Ms. Code based upon the FSBO, and because Ms. Code prevailed on that cause of action, Mr. Wing, like the other plaintiffs, is liable for Ms. Code's attorney fees."

         ¶7 The trial court explained that "[t]he reasons that Plaintiffs chose to add Mr. Wing as a party in this action . . . are immaterial. Mr. Wing must accept the natural consequences of naming himself as a plaintiff." The court also relied on the fact that Wing had sought and received an attorney fee award under the very provision of the FSBO he later maintained did not apply to him. Wing appeals.

         ISSUES AND STANDARDS OF REVIEW

         ¶8 Wing challenges the trial court's ruling that he, along with the other plaintiffs, was personally liable to pay Code's attorney fees. He raises three claims of error with respect to the ruling.

         ¶9 First, he contends that he cannot be personally liable under the Reciprocal Fee Statute and the FSBO because he "was not a party to the FSBO and never asserted that he was a party to it." Second, he contends that he was involved in the lawsuit in a representative capacity only. Third, he contends that he should not be personally liable for attorney fees under the FSBO because Utah law does not allow him to seek attorney fees under the FSBO.

         ¶10 A trial court's decision whether the Reciprocal Fee Statute applies to a request for attorney fees is a question of law reviewed for correctness. Bilanzich v. Lonetti, 2007 UT 26, ¶¶ 9- 10, 160 P.3d 1041. Interpretation of a contract is likewise a question of law ...


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