2016 UT App 230

THE UTAH COURT OF APPEALS

HILARY WING,

Appellant,

v.

CATHY CODE,

Appellee.

Opinion

No. 20130854-CA

Filed November 17, 2016

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.

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. Still Standing Stable LLC, 2016 UT 

App 229 (addressing case 20130768-CA).
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¶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.
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20130854-CA 3 2016 UT App 230

¶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
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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 reviewed for correctness. Shiozawa v. Duke, 2015 

UT App 40, ¶ 24, 344 P.3d 1174.

ANALYSIS

I. Party Status

¶11 Wing first contends that he cannot be personally liable for 

Code’s attorney fees because he “was not a party to the FSBO 

and never asserted that he was a party to it.”

¶12 “In Utah, attorney fees are awardable only if authorized 

by statute or by contract.” Dixie State Bank v. Bracken, 764 P.2d 

985, 988 (Utah 1988). Here, Plaintiffs asserted a claim for breach 

of the FSBO. Section 8 of the FSBO grants attorney fees to the 

prevailing party:

8. ATTORNEY FEES. Except as provided in Section 

7 [dispute resolution via mediation], in any action 

or proceeding arising out of this Commission 

Agreement involving the Seller and/or the 

Company, the prevailing party shall be entitled to 

reasonable attorney fees and costs.

Under Utah’s Reciprocal Fee Statute, courts may award attorney 

fees to the prevailing party of a contract dispute so long as the 

contract provided for the award of attorney fees to at least one of 

the parties:

A court may award costs and attorney fees to 

either party that prevails in a civil action based 

upon any promissory note, written contract, or 

other writing executed after April 28, 1986, when 

the provisions of the promissory note, written 
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20130854-CA 5 2016 UT App 230

contract, or other writing allow at least one party to 

recover attorney fees.

Utah Code Ann. § 78B-5-826 (LexisNexis 2012). Our supreme 

court has held that “an action is ‘based upon’ a contract under 

the statute if a ‘party to the litigation assert[s] the writing's 

enforceability as basis for recovery.’” Hooban v. Unicity Int’l, Inc., 

2012 UT 40, ¶ 22, 285 P.3d 766 (alteration in original) (quoting 

Bilanzich, 2007 UT 26, ¶ 15). That condition results when a 

litigant “rested his claims in the district court on a right to 

enforce the [contract]” even if he is ultimately “deemed a 

stranger to the contract” with “no rights to enforce it or 

obligations under it.” Id. ¶¶ 22, 24.

¶13 Wing contends that he cannot be personally liable for 

Code’s attorney fees because, unlike the losing party in Hooban, 

he “has never asserted that he was a party to a contract.”

However, the trial court based its fee award against Wing on the 

fact that Wing “added himself as a plaintiff” to this lawsuit. 

And, as the trial court explained, Wing sought and won an 

attorney fee award against Schvaneveldt under the very 

provision he argues does not apply to him:

Mr. Wing cannot receive all of the benefits of the 

FSBO without accepting all of the risks associated 

with that agreement. Here, Mr. Wing successfully 

pursued an action against the defendant 

[Schvaneveldt], and based on the very attorney 

fees provision he now seeks to avoid liability for, 

recovered attorney fees against [Schvaneveldt]. 

Allowing Mr. Wing to both recover fees from Mr. 

Schvaneveldt and avoid liability for Ms. Code’s 

attorney fees would be incongruous.

In seeking fees against Schvaneveldt, Wing’s counsel argued, 

“We think [Wing] gets them because statutorily, he’s allowed to 

enforce that contract,” and, “[Wing] is, in fact, a party, able to 
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20130854-CA 6 2016 UT App 230

enforce the FSBO . . . .” Thus, Wing was a party to a cause of 

action based solely on a contract, prevailed in that cause of 

action, and was awarded attorney fees under the very contract 

provision he now claims does not apply to him.

¶14 We conclude that Wing’s position is weaker, not stronger, 

than Hooban’s. Like Hooban, Wing “rested his claims in the 

district court on a right to enforce the [contract]”; but whereas 

Hooban was ultimately ruled to have “no rights to enforce” that 

contract, Wing did successfully enforce the contract and was 

awarded attorney fees under it. See Hooban, 2012 UT 40, ¶¶ 22, 

24. Accordingly, we affirm the ruling of the trial court on this 

issue.

II. Representative Capacity

¶15 Wing next contends that he was involved in the suit in a 

representative capacity only. He argues that both the record and 

the trial court’s findings establish that he “was not personally 

involved.”

A. The Record

¶16 Wing, a principal broker, was added as a plaintiff to this 

lawsuit in response to Defendants’ assertion that none of the 

entities named as plaintiffs was qualified to sue for a 

commission under section 61-2f-409 of the Utah Code. 

Subsection (2)(b) of that statute seems to indicate that only a 

principal broker may sue to recover a real estate commission:

An action for the recovery of a fee, commission, or 

other compensation may only be instituted and 

brought by the principal broker with whom a sales 

agent or associate broker is affiliated.

Utah Code Ann. § 61-2f-409(2)(b) (LexisNexis 2011). But see Id. 

§ 61-2f-409(1)(b)(iii) (stating that a person may bring an action 

for the recovery of a commission if the person is “an entity that, 
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20130854-CA 7 2016 UT App 230

under the records of the Division of Real Estate, is affiliated with 

a principal broker”).

¶17 Wing does not argue that section 409’s requirement may 

be satisfied by a broker suing solely in a representative capacity.2

He does not point to any legal document identifying him as 

acting solely in a representative capacity. And he does not claim 

that he was identified in the case caption or elsewhere in the 

pleadings as suing solely in his representative capacity. Rather, 

he supports his argument merely by citing his own deposition 

testimony where he stated that he was not seeking any personal 

money from the lawsuit.

¶18 But Wing has not shown that the legal question of 

whether a litigant is suing in a personal capacity or a 

representative capacity may be resolved simply by asking him, 

even under oath. Furthermore, Code cites numerous statements 

on the record from Wing’s counsel asserting that Wing was to 

personally receive the first $10,000 of any recovery and thus “has 

a stake” in the lawsuit and a “dog in this fight.” In short, Wing 

has not demonstrated that the record establishes that he sued 

Defendants in a representative capacity only.

B. The Trial Court’s Findings

¶19 Wing contends that the trial court’s findings establish that 

he sued in a representative capacity only. On a motion for 

clarification, the trial court did appear to rule that Wing’s role 

was representative only:

[T]o the extent that [Wing] is identified as a party 

in these proceedings, or as the holder of any 

claims, that identification is [Wing], in his 

representative capacity, as principal broker for the 

 

2. Nor do we express an opinion on that question.
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20130854-CA 8 2016 UT App 230

brokerage, or as an agent or representative of the 

brokerage, and does not represent his individual 

and personal ownership of those claims.

However, Code argues that this ruling had a limited scope, 

specifically, that it dealt with Wing’s role only as a judgment 

creditor, not as a judgment debtor. And in oral argument on 

appeal, counsel for Wing acknowledged that this ruling did not 

implicate Wing’s status as a judgment debtor.

¶20 For this reason, we conclude that the quoted finding does 

not bear on the question on appeal, namely, whether Wing 

personally owes the judgment entered against him. Wing’s claim 

of error based on that finding accordingly fails.

III. The FSBO

¶21 Finally, Wing 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.

¶22 In support of his claim, Wing relies on Fericks v. Lucy Ann 

Soffe Trust, 2004 UT 85, 100 P.3d 1200. Fericks does not control the 

present case. Fericks held that a seller’s real estate agent may not 

recover attorney fees under the fee provision of a real estate 

purchase agreement. The supreme court reasoned that “an 

agency relationship with a principal to a contract does not give 

the agent the authority to enforce a contractual term for the 

agent’s own benefit.” Id. ¶ 24. But here, the attorney fee 

provision at issue appears in the FSBO, not the REPC. And 

Plaintiffs, including Wing, sued as principals to enforce their 

rights under the FSBO.

¶23 Wing also argues that he should not be personally liable 

for Code’s attorney fees because he “was added to the case only 

to bolster Elite Legacy’s and Aspenwood’s claim to standing.” 

He explains that he became a plaintiff only to put a stop to 
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20130854-CA 9 2016 UT App 230

Defendants’ repeated standing motions, not because section 61-

2f-409 actually required the broker—as opposed to the 

brokerage—to bring suit. Thus, he reasons, it would be “unjust” 

to hold him personally liable.

¶24 Because Wing did in fact join the lawsuit as a plaintiff, we 

need not decide whether Wing’s presence as a plaintiff was 

essential to satisfy section 61-2f-409. But we agree with the trial 

court that “[t]he reasons that Plaintiffs chose to add Mr. Wing as 

a party to this action . . . are immaterial. Mr. Wing must accept 

the natural consequences of naming himself a plaintiff.”

¶25 Finally, Wing acknowledges that Code should receive an 

award of attorney fees as a prevailing party, just as Plaintiffs 

received an award of attorney fees under the same provision of 

the FSBO against Schvaneveldt. But he argues that it is unfair to 

leave him on the hook for Code’s fees when he “will never 

collect a dime” of the fee award against Schvaneveldt, because

the latter “award goes exclusively” to the corporate plaintiffs.

¶26 Wing relies on an inconsistency created by the October 

2014 ruling of the trial court. That ruling in effect treats Wing as 

a representative for purposes of collecting the fee award from 

Schvaneveldt. However, as Wing’s counsel has acknowledged, 

the court explicitly limited its ruling to Wing’s role as a 

judgment creditor, stating, “There is no ruling with respect to 

Mr. Wing’s status as a judgment debtor.” While we might 

disagree with the trial court’s ruling that created this 

inconsistency, Wing has shown no legal reason to resolve the 

inconsistency in favor of his representative capacity rather than 

in favor of his personal capacity, and we see none. We therefore 

decline to do so.

IV. Attorney Fees on Appeal

¶27 Code seeks an award of attorney fees on appeal on the 

ground that the FSBO awards attorney fees to the prevailing 
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20130854-CA 10 2016 UT App 230

party. When under a contractual fee provision “a party is 

entitled to attorney fees below and prevails on appeal, that party 

is also entitled to fees reasonably incurred on appeal.” Utah 

Transit Auth. v. Greyhound Lines, Inc., 2015 UT 53, ¶ 64, 355 P.3d 

947. Code received attorney fees below and has prevailed on 

appeal. Accordingly, we award Code reasonable fees incurred in 

connection with this appeal in an amount to be determined by 

the trial court.

CONCLUSION

¶28 For the foregoing reasons, the judgment of the trial court 

is affirmed and the case is remanded for a determination of 

Code’s reasonable attorney fees.