Wing v. Still Standing Stable

2016 UT App 229
THE UTAH COURT OF APPEALS
HILARY WING, TIM S HEA, A SPENWOOD R EAL ESTATE
C ORPORATION , AND ELITE LEGACY C ORPORATION ,
Appellees,
v.
S TILL S TANDING S TABLE 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. F REDERIC VOROS JR . authored this Opinion, in which
JUDGES GREGORY K. O RME and K ATE 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
20130768-CA 	2 	2016 UT App 229
¶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.
BACKGROUND2
¶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…)

Wing v. Still Standing Stable
20130768-CA 	3 	2016 UT App 229
¶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.

Wing v. Still Standing Stable
20130768-CA 	4 	2016 UT App 229
¶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

Wing v. Still Standing Stable
20130768-CA 	5 	2016 UT App 229
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.

Wing v. Still Standing Stable
20130768-CA 	6 	2016 UT App 229
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.

Wing v. Still Standing Stable
20130768-CA 	7 	2016 UT App 229
¶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

Wing v. Still Standing Stable
20130768-CA 	8 	2016 UT App 229
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

Wing v. Still Standing Stable
20130768-CA 	9 	2016 UT App 229
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…)

Wing v. Still Standing Stable
20130768-CA 	10 	2016 UT App 229
¶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.

Wing v. Still Standing Stable
20130768-CA 	11 	2016 UT App 229
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.