2021 UT 42 

IN THE

SUPREME COURT OF THE STATE OF UTAH

AL-IN PARTNERS, LLC, BRADLEY DIXON

Appellees, 

v. 

LIFEVANTAGE CORPORATION, 

Appellant.

No. 20190565 

Heard April 14, 2021 

Filed August 12, 2021 

On Interlocutory Appeal 

Third District, Salt Lake 

The Honorable Andrew H. Stone 

No. 170907711 

Attorneys: 

Gregory M. Saylin, Brittany J. Merrill, Salt Lake City, for appellant 

JUSTICE PETERSEN authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE HIMONAS, and JUSTICE PEARCE joined. 

JUSTICE PETERSEN, opinion of the Court: 

INTRODUCTION 

¶1 An independent distributor sued a wellness company for 

breach of contract, claiming that the company had waived the 

provision upon which it later relied to terminate the distributor’s 

contract. The distributor alleged that the company effected the 

waiver through express oral statements and conduct. The 

company moved to dismiss, arguing that because the contract 

contained both an antiwaiver provision and a requirement that 

any waiver be in writing, anything less was insufficient as a 

matter of law to waive a provision of the contract. The district 

court denied the motion and the company filed this interlocutory 

appeal. 
AL-IN PARTNERS, LLC V. LIFEVANTAGE

Opinion of the Court

2 

¶2 A contracting party alleging waiver must show the other 

party intentionally waived both the underlying provision and any 

applicable antiwaiver provisions. Here, the distributor’s allegation 

of an express oral waiver was legally sufficient to defeat a motion 

to dismiss. We affirm. 

BACKGROUND1

¶3 In 2009, Plaintiff Bradley Dixon, his wife Shelly, and their 

friends Corey and Denise Ray became some of the first 

independent distributors of products from LifeVantage, a multilevel marketing company that “manufactures wellness products 

which it markets and sells to consumers through a network of 

independent distributors.” Like all independent distributors, 

Dixon entered into the LifeVantage Distributor Application and 

Agreement (the Agreement), which incorporated the company’s 

policies and procedures (the P&Ps). 

¶4 Relevant here, the Agreement permitted an independent 

distributor to own only one distributorship (the individual 

distributorship provision). And any breach of the Agreement 

could result in LifeVantage terminating the contract. 

¶5 The Agreement also contained an antiwaiver provision, 

which stated that: 

The company never gives up its right to insist on 

compliance with the Agreement . . . . No failure of 

LifeVantage to exercise any right or power under the 

Agreement or to insist upon strict compliance by an 

Independent Distributor with any obligation or 

provision of the Agreement, and no custom or 

practice of the parties at variance with the terms of 

the Agreement[] shall constitute a waiver of 

LifeVantage’s right to demand exact compliance 

with the Agreement. 

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1 On appeal from a motion to dismiss, “we accept the factual 

allegations in the complaint as true and interpret those facts, and 

all reasonable inferences drawn therefrom, in a light most 

favorable to the plaintiff as the nonmoving party.” Olguin v. 

Anderton, 2019 UT 73, ¶ 4 n.3, 456 P.3d 760 (citation omitted). 
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Opinion of the Court 

3 

¶6 Further, the Agreement specified that any waiver could 

be effected “only in writing by an authorized officer of the 

Company” (the written waiver requirement). 

¶7 Bradley Dixon owned Distributorship 101982 and Corey 

Ray owned Distributorship 101987. Despite Distributorship 

101987 being “organized under Ray’s name,” Dixon and Ray 

worked jointly to develop its “downline” and the pair focused all 

of their efforts on it. They shared equally in the profits. Within one 

year of this operation, LifeVantage recognized Dixon and Ray as 

“elite distributors” and presented them with “Certificates of 

Accomplishment.” Dixon and Ray were featured as co-owners of 

Distributorship 101987 in at least three separate issues of Prosper

magazine, which “LifeVantage funds or otherwise uses as a 

marketing tool.” LifeVantage sent Dixon to train lower-level 

distributors at “events across the globe” and “awarded both 

Dixon and Ray for Distributorship 101987’s success with 

vacation[s] and a new Jeep Wrangler.” Dixon’s individual 

distributorship never achieved “elite status.” 

¶8 In 2013, Ray and Dixon formed AL-IN Partners, LLC 

(AL-IN), which they each owned in equal parts. They decided to 

assign ownership of Distributorship 101987 to their new 

partnership. So Dixon, who was a member of LifeVantage’s 

Advisory Board Committee, approached LifeVantage CEO Doug 

Robinson, Vice President of Sales Ryan Thompson, and Chief 

Compliance Officer Ed Merchant at a LifeVantage board meeting 

to discuss ownership of Distributorship 101987. Because of the 

individual distributorship provision, “Dixon discussed with 

Robinson, Thompson, and Merchant how he could acquire an 

ownership interest in Distributorship 101987 as a member of 

[AL-IN] while remaining in compliance” with the P&Ps. Dixon 

suggested he relinquish ownership in his individual 

distributorship, but Robinson and Thompson “both affirmatively 

stated that Dixon need not transfer” that ownership “before 

formally acquiring an ownership interest in Distributorship 

101987.” Thompson told Dixon that he and Ray need only 

complete a Distributorship Name Change Form to transfer 

ownership of Distributorship 101987 to AL-IN. They did so, and 

LifeVantage approved the form and modified the account to 

remove Ray’s name and list AL-IN as the owner of 

Distributorship 101987. 

¶9 After LifeVantage approved the name change form, it 

began paying commissions from Distributorship 101987 to AL-IN. 
AL-IN PARTNERS, LLC V. LIFEVANTAGE

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And “LifeVantage continued to announce and promote Dixon and 

Ray as partners in Distributorship 101987 at trainings, 

conventions, meetings, and other public forums.” 

¶10 But in 2016, LifeVantage terminated Distributorship 

101987, citing a violation of the individual distributorship 

provision. Shortly thereafter, pursuant to an agreement with 

LifeVantage, Ray ended his ownership in AL-IN and was 

reinstated as a distributor for the company. This left Dixon as the 

sole owner of AL-IN. LifeVantage then stopped paying 

Distributorship 101987’s commissions to AL-IN and channeled 

the commissions to Ray. 

¶11 Dixon and AL-IN (collectively, AL-IN) sued LifeVantage, 

seeking a declaratory judgment that LifeVantage had waived its 

right to enforce the individual distributorship provision and that 

it improperly terminated Distributorship 101987 because of this 

waiver. AL-IN also alleged breach of contract, breach of the 

covenant of good faith and fair dealing, and promissory estoppel. 

¶12 LifeVantage moved to dismiss, contending, among other 

things, that the breach of contract and declaratory judgment 

claims failed as a matter of law because AL-IN did not plead facts 

sufficient to establish that LifeVantage waived the individual 

distributorship provision. Specifically, LifeVantage pointed to the 

Agreement’s antiwaiver provision and written waiver 

requirement. And it argued that because AL-IN’s complaint did 

not assert the existence of any writing by a company officer 

waiving the individual distributorship provision, the allegations 

in the complaint were “plainly insufficient . . . to amount to 

waiver.” 

¶13 In opposition, AL-IN asserted that it “pled allegations 

from which a fact finder could determine that under the totality of 

the circumstances, LifeVantage both expressly and impliedly 

waived its right to enforce” the individual distributorship 

provision. And it argued that the antiwaiver provision “is simply 

one factor in the totality of the circumstances analysis” to 

determine whether LifeVantage waived that provision. 

¶14 Shortly after briefing was complete on the motion to 

dismiss, we issued Mounteer Enterprises, Inc. v. Homeowners Ass’n 

for the Colony at White Pine Canyon, 2018 UT 23, 422 P.3d 809, 

which LifeVantage submitted to the district court as supplemental 

authority. In Mounteer, we held in the context of an implied 

waiver that “a party asserting waiver in the face of an antiwaiver 

clause must establish ‘a clear intent to waive both the [antiwaiver] 
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Opinion of the Court 

5 

clause and the underlying contract provision.’” Id. ¶ 21 (alteration 

in original) (citation omitted). LifeVantage argued that, because 

AL-IN made “no reference to the antiwaiver provisions” in its 

complaint, it had “failed to allege an adequate factual basis” for 

waiver of these provisions and thus could not state a claim for 

breach of contract or declaratory judgment. 

¶15 After oral argument, the district court granted the motion 

to dismiss as to AL-IN’s claims for breach of the covenant of good 

faith and fair dealing and promissory estoppel, but denied it as to 

the claims for breach of contract and declaratory judgment. In its 

oral ruling, the court recognized that “Mounteer establishes a 

fairly high burden of proof for plaintiffs seeking to prove waiver 

of a provision and separately to prove waiver of the antiwaiver 

provisions; and for that matter, in this case, to prove waiver of the 

requirement that any waiver be made in writing by an officer.” 

But the court noted that “Mounteer also appears to draw a 

distinction between sins of omission and sin[s] of commission.” 

So, because AL-IN alleged “affirmative conduct by officers of 

LifeVantage . . . that [Dixon] didn’t have to divest himself . . . [of 

his] individual distributorship and could maintain joint 

ownership of another distributorship,” the court concluded that 

the complaint was sufficient to defeat the motion to dismiss as to 

the breach of contract and declaratory judgment claims. 

¶16 We granted LifeVantage’s petition for interlocutory 

appeal. We exercise jurisdiction under Utah Code section 78A-3-

102(3)(j). 

STANDARD OF REVIEW 

¶17 The issue before us is whether the district court erred 

when it denied LifeVantage’s motion to dismiss with respect to 

the breach of contract and declaratory judgment claims. “A ruling 

on a motion to dismiss presents a legal question that we review 

for correctness, affording no deference to the district court’s 

decision.” Turner v. Staker & Parson Cos., 2012 UT 30, ¶ 7, 284 P.3d 

600. 

ANALYSIS 

¶18 Before we proceed to the merits of this question, we must 

address the fact that Appellee AL-IN did not file a brief or 

otherwise appear in this interlocutory appeal. So, we discuss as an 

initial matter how this affects our resolution of this case. 

¶19 An appellee’s failure to file a brief does not amount to an 

automatic default and consequent reversal of the lower court. 
AL-IN PARTNERS, LLC V. LIFEVANTAGE

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6 

“[W]e do not view the failure to file a brief as a confession of error 

on the part of the appellee.” State v. Sorbonne, 2020 UT App 48, 

¶ 16 n.3, 462 P.3d 409. But when an appellee fails to present us 

with any argument, an appellant need only establish “a prima facie

showing of a plausible basis for reversal.” Paxman v. King, 2019 

UT 37, ¶ 7, 448 P.3d 1199; see also Broderick v. Apartment Mgmt. 

Consultants, L.L.C., 2012 UT 17, ¶¶ 18–21, 279 P.3d 391 (reversing 

summary judgment because the appellee “failed to address [the 

appellants’] arguments,” leaving the appellants’ claims 

“unrebutted”). This is a lower standard than the typical burden of 

persuasion on appeal. See Utah Dep’t of Transp. v. Coalt, Inc., 2020 

UT 58, ¶ 45, 472 P.3d 942. 

¶20 However, despite AL-IN’s nonappearance, LifeVantage 

has not persuaded us that there is a plausible basis to reverse the 

district court here. LifeVantage argues that it is impossible to 

orally waive an antiwaiver provision with a written waiver 

requirement. Indeed, it asserts that even an express oral waiver of 

the individual distributor provision and the written waiver 

requirement itself would be insufficient to waive those provisions 

under the Agreement. It contends that a waiver can be 

accomplished only “in writing by an authorized officer of the 

Company,” as provided in the written waiver requirement. And it 

argues that the district court erred in denying its motion to 

dismiss because AL-IN’s complaint contained no allegation of a 

written waiver. 

¶21 LifeVantage essentially argues that its written waiver 

requirement is unwaivable. But we have made clear that the 

parties to a contract may choose to waive any provision of their 

agreement. See Dillman v. Massey Ferguson, Inc., 369 P.2d 296, 298 

(Utah 1962) (“[P]arties to written contracts may modify, waive or 

make new terms regardless of provisions in the contracts to the 

contrary.” (citation omitted)). “Even an antiwaiver provision is 

subject to waiver.” Mounteer Enters., Inc. v. Homeowners Ass’n for 

the Colony at White Pine Canyon, 2018 UT 23, ¶ 20, 422 P.3d 809. 

Indeed, even a contract subject to the statute of frauds can be 

modified by oral agreement.2 Likewise, there is no basis for us to 

__________________________________________________________ 

2 See Salt Lake City Corp. v. Big Ditch Irrigation Co., 2011 UT 33, 

¶ 48, 258 P.3d 539 (recognizing a “narrow exception” to the 

requirement that modification of a contract subject to the statute 

of frauds be in writing “where a party has changed position by 

(continued . . .) 
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Opinion of the Court 

7 

legally restrict the parties to an agreement from choosing to waive 

a written waiver requirement. Rather, the question is whether the 

non-breaching party has intentionally relinquished the right to 

insist on a written waiver. 

¶22 In general, waiver is an equitable remedy employed to 

“prevent[] a ‘waiving party from lulling the other party into a 

belief that strict compliance with a contractual duty will not be 

required’ and then enforcing its contractual rights upon default.” 

Mounteer, 2018 UT 23, ¶ 18 (citation omitted). But “[c]ourts do not 

lightly consider a contract provision waived.” Id. ¶ 17. To 

establish the existence of a waiver, there must be “an ‘intentional 

relinquishment of a known right,’” which can be either express or 

implied. Id. (citation omitted). So, only where “the otherwisebreaching party can show that the other party intentionally 

waived its rights under the contract, noncompliance with the 

relevant provision will not be construed as a breach.” Id. ¶ 18. 

¶23 However, when the contract at issue contains an 

antiwaiver provision, “[t]he calculus changes.” Id. ¶ 19. This is 

because “[a]n antiwaiver provision embodies the agreement 

between the parties—an agreement that specifically prohibits the 

mere failure to enforce a contractual right as being construed as 

waiver of that right.” Id. ¶ 22. To allow “waiver where the party 

has not clearly waived the antiwaiver provision would undo this 

agreement and would ‘beg[] the question of validity of the nonwaiver clause.’” Id. (alteration in original) (citation omitted). An 

antiwaiver provision provides “flexibility” to the parties “in 

enforcing their rights under the contract . . . without ‘result[ing] in 

a complete and unintended loss of its contract rights if it later 

decides that strict performance is desirable.’” Id. ¶ 19 (second 

alteration in original) (citation omitted). 

¶24 But we have made clear that both an antiwaiver 

provision and the requirement that any waiver be in writing are 

waivable. In Calhoun v. Universal Credit Co., the plaintiff bought a 

 

performing an oral modification so that it would be inequitable to 

permit the other party to found a claim or defense on the original 

agreement as unmodified” (citation omitted)); Allen v. Kingdon, 

723 P.2d 394, 396–97 (Utah 1986) (same); see also White v. Fox, 665 

P.2d 1297, 1301 (Utah 1983); Bamberger Co. v. Certified Prods., Inc., 

48 P.2d 489, 491–92 (Utah 1935). 
AL-IN PARTNERS, LLC V. LIFEVANTAGE

Opinion of the Court

8 

car, and the note was assigned to Universal Credit Company. 146 

P.2d 284, 285 (Utah 1944). The contract required payments to be 

made on time and stated that any default could result in 

immediate repossession of the vehicle. Id. at 286. There was also 

an antiwaiver provision that required any waiver to be “evidenced 

by writing signed by the parties.” Id. (emphasis added). Calhoun 

made every payment late. Id. at 285. After about a year, he 

contacted Universal to let it know he was joining the army and 

wanted to discuss the contract. Id. An adjuster for Universal told 

Calhoun “that he might have time to make some disposition of 

the automobile so that he could get his equity out of it.” Id. But a 

few days later, the adjuster directed Universal to repossess the 

vehicle. Id. Calhoun sued for breach of contract, alleging the 

adjuster orally waived strict compliance with the contract. Id. The 

district court agreed, finding Universal guilty of conversion. Id. at 

285–86. 

¶25 Universal appealed, making the same argument that 

LifeVantage makes here: that “as a matter of law, there can be no 

waiver of strict compliance unless it be in writing.” Id. at 286. We 

disagreed, stating that a waiver made intentionally and 

knowingly by an agent of a company who had apparent authority 

to do so is binding on the company—even where there is a 

provision in the contract “that no waiver is to become effective 

unless made by some particular officer . . . and unless indorsed on 

the policy.” Id. at 286–88. Thus, the adjuster’s express statements to 

Calhoun effectively waived the underlying provision, the 

antiwaiver provision, and the written waiver clause. Id. at 288. 

¶26 LifeVantage argues that Calhoun is not dispositive here 

because our recent decision in Mounteer established a new, higher 

burden for parties alleging waiver of a contractual provision in 

the face of an antiwaiver provision. But this is a misreading of 

Mounteer. 

¶27 In Mounteer, Mounteer Enterprises, Inc. was hired by a 

homeowners’ association (HOA) to provide snow removal 

services. 2018 UT 23, ¶ 1. The contract between the parties 

required Mounteer to maintain at least $7 million in insurance 

coverage. Id. ¶ 5. Failure to do so permitted the HOA to, among 

other things, “immediately terminate the contract.” Id. ¶ 6. The 

contract also provided “that the HOA’s failure to notice a 

deficiency in Mounteer’s insurance coverage cannot be construed 

as a waiver of the insurance provision.” Id. ¶ 2. Mounteer 

obtained only $5 million in insurance coverage and sent the HOA 
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9 

certificates of insurance showing the $5 million policy. Id. ¶ 7. The 

HOA continued to pay “Mounteer for its services despite this 

deficiency.” Id. After an unrelated disagreement between the 

parties, the HOA cancelled the contract, citing Mounteer’s 

deficient insurance policy. Id. ¶ 8. Mounteer sued for breach of 

contract, arguing that by accepting the certificates of insurance 

showing only $5 million in coverage and by paying Mounteer, the 

HOA waived the insurance policy provision of the contract. Id.

¶ 9. The jury agreed and found the HOA liable for breach of the 

contract. Id. ¶ 12. 

¶28 We reversed, holding that to establish waiver of a 

contractual provision where the contract contains an antiwaiver 

clause, the party must show not only clear intent to waive the 

underlying provision, but also the intent to waive the antiwaiver 

provision. Id. ¶ 15. Applying this rule, we determined that the 

HOA had not waived the antiwaiver provision “because the 

failure to insist on performance after breach is entirely consistent 

with the rights set out in the antiwaiver provision—rights of 

flexibility that often benefit the otherwise-breaching party.” Id.

¶ 24. We concluded that a finding of waiver in such circumstances 

would thus “render the antiwaiver provision meaningless.” Id.

Indeed, the contract explained that the precise conduct which 

Mounteer claimed was a waiver could not be construed as such. 

Id. ¶ 6. So the HOA’s failure to insist on Mounteer’s performance 

was “entirely compatible with the antiwaiver clause.” Id. ¶ 26. 

¶29 We went on to explain that an express waiver was 

sufficient to waive both “the underlying provision and the 

antiwaiver provision.” Id. ¶¶ 4, 23, 25. And we cited to Calhoun for 

this proposition. Id. ¶ 23. We also distinguished the HOA’s failure 

to act from a party’s affirmative conduct, which “can be viewed as 

sufficient to establish a reasonable basis for the conclusion that a 

party intends to . . . waive[] the antiwaiver provision[].” Id. ¶ 28; 

see also ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2010 UT 65, 

¶ 34, 245 P.3d 184 (determining that the defendant’s active 

participation in litigation waived the parties’ contractual 

arbitration agreement). 

¶30 Accordingly, Mounteer did not diminish Calhoun’s 

holding that an express oral waiver suffices to waive both the 

underlying provision and the antiwaiver provision of a contract, 

even when the contract contains an additional requirement that 

waivers must be in writing. Mounteer, 2018 UT 23, ¶ 23. And we 

reaffirm this holding today. Further, affirmative conduct may be 
AL-IN PARTNERS, LLC V. LIFEVANTAGE

Opinion of the Court

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sufficient to establish a party’s intent to waive an antiwaiver 

provision and, by extension, a written waiver requirement. See id.

¶ 28. 

¶31 LifeVantage argues that, in the presence of a written 

waiver requirement, validation of an express oral waiver violates 

our conclusion in Mounteer that “if the specific language of the 

antiwaiver clause expressly precludes parties from construing 

certain conduct as a waiver of contractual rights, courts must 

enforce this provision as part of the parties’ agreement.” Id. ¶ 19. 

We agree that in the face of an antiwaiver provision, “a party 

cannot waive a contractual right merely by failing to enforce the 

provision establishing that right.” Id.

¶32 But that is not what AL-IN alleges. AL-IN alleged in its 

complaint that Dixon approached the CEO, Vice President of 

Sales, and Chief Compliance Officer of LifeVantage to discuss 

how he could acquire an ownership interest in Distributorship 

101987 as a member of AL-IN and remain in compliance with the 

P&Ps. He offered to relinquish his personal distributorship so that 

he would have an ownership interest in only one distributorship. 

But he was told expressly that he did not need to do so. Further, 

he was told that to effectuate his joint ownership of 

Distributorship 101987—notably, the second distributorship in 

which he would own an interest—he and Ray need only complete 

a Distributor Name Change Form. Importantly, he was not told 

that before he could own an interest in two distributorships, he 

needed to obtain a written waiver from an authorized officer of 

the company.3

¶33 This is unlike the “failure to insist on performance after 

breach” in Mounteer—which we found to be “entirely consistent 

with the rights set out in the antiwaiver provision.” Id. ¶ 24. Here, 

AL-IN alleges that LifeVantage officers expressly told Dixon he 

did not need to give up his personal distributorship in order to 

obtain an interest in a second distributorship. In other words, ALIN alleges that the LifeVantage officers did not merely fail to 

enforce the individual distributorship provision. Instead, AL-IN’s 

complaint says the officers expressly told Dixon he could hold an 

__________________________________________________________ 

3 AL-IN alleged additional affirmative conduct in accord with 

these facts. 
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Opinion of the Court 

11 

interest in two distributorships without mention of a written 

waiver. 

¶34 Accordingly, the district court correctly determined that 

AL-IN alleged sufficient facts to survive a motion to dismiss. And 

LifeVantage has not persuaded us that there is a plausible basis to 

reverse the district court. 

CONCLUSION 

¶35 Parties to a contract may choose to waive any provision 

of the contract. However, the party alleging waiver must show 

that the other party intentionally waived both the underlying 

provision and any applicable antiwaiver provisions. Here, the 

district court correctly denied LifeVantage’s motion to dismiss 

AL-IN’s breach of contract and declaratory judgment claims 

because AL-IN’s complaint alleged facts that, taken as true, were 

sufficient to infer that LifeVantage waived the individual 

distributorship provision, the antiwaiver provision, and the 

written waiver requirement. 

¶36 We affirm.