District Court, Ogden Department The Honorable Noel S. Hyde
The Honorable Michael D. Lyon No. 060906802
Miles LeBaron and Dallin T. Morrow, Attorneys for Appellant
J. Porter and Phillip E. Lowry, Attorneys for Appellee
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, 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.
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.
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.
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.
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."
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
AND STANDARDS OF REVIEW
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.
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.
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