2016 UT App 229

THE UTAH COURT OF APPEALS

HILARY WING, TIM SHEA, ASPENWOOD REAL ESTATE 

CORPORATION, AND ELITE LEGACY CORPORATION,

Appellees,

v.

STILL STANDING STABLE 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. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGES GREGORY K. ORME and KATE 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 duediligence 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.