2016 UT App 228

THE UTAH COURT OF APPEALS

ELITE LEGACY CORPORATION, ASPENWOOD REAL 

ESTATE CORPORATION, AND HILARY WING,

Appellees,

v.

CHARLES SCHVANEVELDT,

Appellant.

Opinion

Nos. 20130746-CA and 20140978-CA

Filed November 17, 2016

Second District Court, Ogden Department

The Honorable Noel S. Hyde

The Honorable Michael D. Lyon

No. 060906802

Karra J. Porter and Phillip E. Lowry, Attorneys

for Appellant

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 two 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 two appeals are discussed in Wing v. Code, 2016 UT 

App 230 (addressing case 20130854-CA) and Wing v. Still Standing 

Stable LLC, 2016 UT App 229 (addressing case 20130768-CA).
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 2 2016 UT App 228

¶2 In case 20140978-CA, appellant Charles Schvaneveldt, one 

of the sellers, challenges the denial of his motion under rule 

60(b) of the Utah Rules of Civil Procedure. That motion sought 

to vacate the judgment below on the ground that Plaintiffs lacked 

standing to bring or maintain the action. In case 20130746-CA, 

Schvaneveldt challenges Plaintiffs’ standing, the trial court’s 

ruling that Plaintiffs earned the commission, and the trial court’s 

denial of his summary judgment motion seeking to avoid 

personal liability for the commission. We affirm on all issues in 

both appeals.

BACKGROUND

The Parties

¶3 Because of the case’s complicated record and lengthy 

history, we begin by identifying the relevant parties and nonparties on appeal.

¶4 Plaintiffs are all related to a company originally known as 

Aspenwood Real Estate Corporation. Aspenwood was a real 

estate brokerage company doing business as “Re/Max Elite.”

Hilary “Skip” Wing and others founded Aspenwood, and Wing 

at times acted as its principal broker. Tim Shea worked for

Aspenwood as a real estate agent. Elite Legacy Corporation has

since subsumed Aspenwood. We refer to these parties

collectively as Plaintiffs.

¶5 The defendants are all related to the property sellers. 

Charles “Chuck” Schvaneveldt is the sole member of Still 

Standing Stable LLC (Still Standing). Cathy Code is 

Schvaneveldt’s wife. Still Standing owned the property in 

question and, Schvaneveldt claims, contracted with Shea in the 

For Sale By Owner Agreement. For ease of reference—though 

not precisely accurate—we refer to Code, Schvaneveldt, and Still 

Standing collectively as Sellers.
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 3 2016 UT App 228

History of Aspenwood and Re/Max Elite

¶6 In 2004, Wing and Dale Quinlan—at that time both 

licensed principal brokers—together with other individuals

bought a real estate brokerage called Aspenwood Real Estate 

Corporation. To align their new brokerage with the national 

Re/Max real estate franchise, Quinlan submitted a “DBA 

application” and registered the assumed name “Re/Max Elite” 

with the Utah Division of Corporations and Commercial Code

(the Division). Quinlan listed himself as the registered agent and 

checked a box indicating that he—not Aspenwood—was the 

“applicant/owner” of the assumed name. Quinlan, Wing, and 

the other owners appear to have jointly operated the 

Aspenwood brokerage under the name Re/Max Elite until July 

2005, when Quinlan surrendered his broker license. Although 

Quinlan remained listed as Re/Max Elite’s registered agent, he

no longer played any role in the management of Aspenwood. 

Instead, Wing assumed management of Aspenwood.

Aspenwood continued to conduct business under the assumed 

name Re/Max Elite.

¶7 In March 2006 the Division transferred the Re/Max Elite 

assumed name from Quinlan to Aspenwood. It did so based on a 

transfer letter from Quinlan. The parties disagree as to whether 

Quinlan’s signature on the letter is authentic. Plaintiffs maintain 

that Quinlan made the change. They rely on the declaration of a 

company officer stating that “Dale Quinlan . . . was tasked by the 

[Aspenwood] Board of Directors to . . . (1) ensur[e] that 

Aspenwood, and not Dale Quinlan only, owned the dba RE/MAX 

Elite . . . and (2) mak[e] Shane Thorpe the registered agent.” 

Sellers maintain that Quinlan’s signature on the letter was 

forged. They rely on a forensic report finding that “it is highly 

probable” that the transfer letter was a cut-and-paste forgery.

The Division later invalidated the transfer.
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 4 2016 UT App 228

The Property

¶8 In 1998, Still Standing purchased 170 acres of property in 

Weber County (the Property) from the State of Utah School and 

Institutional Trust Lands Administration (SITLA). Still Standing 

purchased the Property with notice from SITLA that “there is 

likely no access” and that SITLA was “not guaranteeing access to 

the property.” Four years later, Still Standing sued three of the 

Property’s adjoining landowners in an attempt to gain access

across the landowners’ parcels, which separated the Property 

from the nearest public road. Still Standing lost the lawsuit and 

was unable to secure road access to the Property.

2

¶9 After the lawsuit, Still Standing purchased an unrelated

five-acre strip of property located on the opposite side of the 

public road (the Strip). Although the Strip bordered the Property 

and contained an easement, that easement did not connect to 

any public road and thus did not provide access to the Property. 

During the underlying litigation, at least two title insurance

companies—including one hired by Sellers—examined the 

Property, but no title company was willing to issue a policy 

insuring access.

 

2. In that lawsuit, the trial court found that Still Standing 

purchased the Property “without making any attempt to 

determine whether there was any legal access” and brought its 

action “knowing it had no legal right of ingress/egress to its 

land-locked property.” The court ultimately ruled that Still 

Standing’s “filing [was] totally frivolous and without factual or 

legal basis or merit.” On appeal, the Utah Supreme Court 

reversed the trial court’s award of attorney fees because bad faith 

had not been established; Still Standing did not “challenge the 

trial court’s conclusion that its case was without merit.” See Still 

Standing Stable, LLC v. Allen, 2005 UT 46, ¶¶ 8, 17, 122 P.3d 556.
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 5 2016 UT App 228

The FSBO and the REPC

¶10 In January 2006 Cathy Code advertised the Property for 

sale by owner in a local newspaper. Tim Shea, a real estate agent 

employed by Aspenwood, expressed interest on behalf of a 

buyer. After visiting the Property with Schvaneveldt and Code,

Shea sent Sellers a For Sale by Owner Commission Agreement 

and Agency Disclosure Agreement (the FSBO) and, on behalf of 

potential buyers (Buyers), sent Sellers the first Real Estate 

Purchase Contract (the First REPC).

¶11 Both contracts were drafted using standard printed forms.

Sellers submitted a counteroffer to the First REPC. Sellers signed 

the FSBO and sent it back to Shea. The two-page FSBO listed 

“Re/Max Elite (Layton Branch)” as the “company”; “Tim Shea” 

as the authorized agent for the company; and “Chuck and Cathy 

Code” as “the seller.” Shea signed the FSBO above the 

“company” line, and Code signed the FSBO above the “Sellers’

Signature” line. Among other provisions, the FSBO contained a 

brokerage-fee clause, a seller-disclosures clause, an attorney-fee 

clause, and an integration clause.

¶12 This litigation centers on the FSBO’s brokerage-fee clause. 

That clause sets forth the terms of the real estate commission 

agreement:

2. BROKERAGE FEE. The Seller agrees to pay the 

Company, irrespective of agency relationship(s), as 

compensation for services, a Brokerage Fee in the 

amount of $____ or 3% of the acquisition price of 

the Property, if the Seller accepts an offer from 

Emmett Warren and or Assigns (the “Buyer”), or 

anyone acting on the Buyer’s behalf, to purchase or 

exchange the Property. The Seller agrees that the 

Brokerage Fee shall be due and payable, from the 

proceeds of the Seller, on the date of recording of 
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 6 2016 UT App 228

closing documents for the purchase or exchange of 

the Property by the Buyer or anyone acting on the 

Buyer’s behalf. If the sale or exchange is prevented 

by default of the Seller, the Brokerage Fee shall 

immediately be due and payable to the Company.

After Sellers’ counteroffer to the First REPC lapsed, Shea 

forwarded to Sellers a second offer in the form of another Real 

Estate Purchase Contract—the REPC relevant to this appeal (the 

REPC). Schvaneveldt accepted the second offer by signing and 

returning the REPC to Shea. Schvaneveldt checked the 

“ACCEPTANCE OF OFFER TO PURCHASE” box, signed his 

name above the “Sellers’ Signature” line, and printed his name 

above the “Sellers’ Name (PLEASE PRINT)” line.3 The REPC 

 

3. The copy of the REPC in the record on appeal shows all of this 

information. However, Schvaneveldt claims that the copy in the 

record does not accurately reflect the original. On page six of the 

record copy, Schvaneveldt’s first name, “Chuck,” is irregularly 

placed on the left margin of the page, outside of the provided 

blank space. Schvaneveldt argues that he wrote “member” in the 

“unexplained white space” remaining after his name. He 

suggests that the word “member” was “whited out,” 

presumably by Shea or someone else at Aspenwood. The trial 

court barred Schvaneveldt from mentioning that the original 

was not produced, and Schvaneveldt did not preserve a 

challenge to this ruling, nor has he appealed it. Thus, we do not 

address it. See Pratt v. Nelson, 2007 UT 41, ¶ 14, 164 P.3d 366

(“Generally, in order to preserve an issue for appeal . . . the issue 

must be specifically raised.” (citations and internal quotation

marks omitted)). Moreover, even assuming Schvaneveldt did 

write “member” next to his name, the FSBO—not the REPC—is 

the operative contract between Plaintiffs and Schvaneveldt. The 

REPC controls the rights and obligations running between 

Buyers and Sellers, who have settled their dispute.
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 7 2016 UT App 228

required Buyers to deposit $25,000 in earnest money. It required 

Sellers to “convey good and marketable title to Buyer[s] at 

Closing by general warranty deed.” And it imposed a 15-day 

seller-disclosure deadline, a 60-day due-diligence deadline, and

a 90-day settlement deadline ahead of closing.

¶13 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 did not have

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 duediligence window.

¶14 Before closing, Sellers’ attorney called Buyers’ attorney to 

inform him that Sellers would be conveying the Property by

special warranty deed rather than by general warranty deed; 

Sellers’ escrow and closing instructions also specified 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 one hired by Sellers—was willing to offer a policy 

insuring access to the Property. Buyers did not appear at closing.

Pretrial Proceedings

¶15 After the deal fell through, Re/Max Elite brought an 

interpleader action to determine who was entitled to the earnest 

money it was holding. Re/Max Elite then filed a cross-complaint

seeking a sales commission from Still Standing—and later,

Schvaneveldt and Code—under the FSBO’s brokerage-fee 

provision. Sellers counterclaimed. Sellers argued—in eight
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 8 2016 UT App 228

pretrial motions—that no named plaintiff had standing to sue. 

Sellers filed six motions under the Assumed Name Statute and 

two motions under the Real Estate Licensing and Practices Act. 

In each motion, Sellers’ central argument asserted that only 

Re/Max Elite’s principal broker, Wing—and not its agent, Shea—

could sue to recover the commission under Utah law. In support, 

Sellers submitted a summary judgment motion asserting that 

Wing was Re/Max Elite’s principal broker.

¶16 In response, Aspenwood, Elite Legacy, and Wing joined 

Re/Max Elite in the action as additional plaintiffs to the lawsuit

to cure any alleged standing deficiency. After Plaintiffs added 

Wing, Sellers abandoned their standing arguments until after 

trial.

¶17 Both parties filed a flurry of additional pretrial motions. 

In February 2010 Schvaneveldt moved for summary judgment, 

seeking a ruling that he could not be personally liable for the 

sales commission. Schvaneveldt asserted that he was involved in 

the sale only as a representative for Still Standing. He was not

personally liable, he argued, because the blank line on the REPC

reserved for the property name was filled in with the words 

“Land LLC Still Standing Stables.” Plaintiffs opposed the motion 

and argued that Schvaneveldt was personally liable because he 

signed the REPC and because the FSBO listed him (along with 

Code) as a seller. The court denied Schvaneveldt’s motion 

because the FSBO listed Schvaneveldt—not Still Standing—as 

the seller.

¶18 In March 2010, Plaintiffs moved for partial summary 

judgment, seeking a ruling that Plaintiffs had earned a 

commission under the FSBO as a matter of law. Plaintiffs argued 

that Sellers became obligated to pay a commission the moment 

Sellers accepted an offer—the words used by the FSBO. And 

Sellers accepted an offer, Plaintiffs argued, as soon as they 

signed the REPC with Buyers. Sellers responded that Plaintiffs 
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 9 2016 UT App 228

had not brought a “ready, willing, and able” buyer, that the sale 

was to be a cash transaction, and that Shea had altered the REPC 

after signing to conceal the deal’s cash transaction status. The

trial court granted the motion, ruling that Plaintiffs had earned a 

commission because Sellers had accepted an offer from Buyers.

The court explained that any alleged changes to the REPC were a 

red herring.

¶19 In February 2011 Plaintiffs again moved for summary 

judgment on the commission claim and on all of Sellers’

counterclaims. In March 2011 Still Standing filed a cross-motion 

for summary judgment, alleging that a breach of Plaintiffs’

fiduciary duties had caused the sale to fail. The trial court heard 

oral arguments on the motions. The court first ruled that the sale

failed due to Sellers’ failure to guarantee Buyers’ access to the 

Property by providing a general warranty deed or other 

assurance of access:

[I]t is undisputed that the lack of a guaranteed 

access was the sole reason . . . that the transaction 

failed. . . . [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.

In light of this ruling, the trial court dismissed Still Standing’s 

fiduciary-duty claims against Plaintiffs on the ground that 

Sellers’ refusal to convey by general warranty deed—prompted 

by concerns about access and not any breach of fiduciary duty—

caused the deal to fail.

¶20 After the trial court dismissed the fiduciary-duty claims 

and ruled that Plaintiffs had earned the commission, the only

question left for trial was which party was responsible to pay 

that commission.
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 10 2016 UT App 228

Trial

¶21 In a pretrial hearing with both sides present, the trial 

court suggested that Still Standing could not be liable for the 

commission and thus should be dismissed to avoid confusing 

the jury. Plaintiffs agreed to release Still Standing so long as 

liability would be determined between Schvaneveldt and Code 

at trial. The trial court proposed a jury instruction stating that 

Still Standing was not liable and that the jury must look only to 

Schvaneveldt and Code for liability. Schvaneveldt and Code did 

not object to this instruction. Before agreeing to Still Standing’s 

dismissal, Plaintiffs reiterated that they would accept the 

instruction only if Schvaneveldt and Code would agree not to

argue that Still Standing was the liable party. Again, 

Schvaneveldt and Code did not object.

¶22 Trial proceeded and Schvaneveldt and Code did not 

mention Still Standing, with one exception: Schvaneveldt argued 

that he had signed “Member” next to his name on the REPC,

indicating that he signed in a representative capacity for Still 

Standing. When Plaintiffs objected, the court suggested bringing 

Still Standing back into the case. Schvaneveldt’s counsel 

proposed instructing the jury to disregard the testimony.4

Plaintiffs agreed to Schvaneveldt’s solution, and the court 

instructed the jury accordingly. At the close of evidence, 

Schvaneveldt and Code both moved for a directed verdict; the 

court granted Code’s motion but denied Schvaneveldt’s. This 

ruling left Schvaneveldt as the only remaining potentially liable 

 

4. At oral argument on appeal, Schvaneveldt’s appellate counsel

argued that Schvaneveldt’s trial counsel objected to Still 

Standing’s dismissal from the case. However, our review of the 

record shows that Schvaneveldt’s trial counsel did not object as 

the trial court sought input on Still Standing’s dismissal.
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 11 2016 UT App 228

party. The jury entered a verdict against Schvaneveldt, awarding 

damages of $30,000.

¶23 Plaintiffs moved for a new trial, arguing that the damage 

award was inadequate because it did not amount to the 3%

commission the court had previously ruled Plaintiffs had

earned. Rather than granting a new trial, the court increased the 

judgment to $130,875—3% of the REPC sales price. The court 

also awarded Plaintiffs attorney fees and interest. The court 

entered a total judgment in the amount of $362,485.96 against 

Schvaneveldt. Schvaneveldt also moved for a new trial on 

multiple grounds, including that “[Schvaneveldt] should have 

been allowed to raise the misconduct of Re/Max and Tim Shea,” 

that “Tim Shea’s lawyer violated [Schvaneveldt’s] attorney-client 

privilege,” and “cumulative errors.” The trial court denied the

motion on all grounds.

Post-trial Litigation Concerning Plaintiff’s Standing

¶24 In the months following trial, Schvaneveldt filed several 

rule 60(b) motions.5 Each relied on evidence that, Schvaneveldt 

argued, showed that the assumed name Re/Max Elite was

registered to Dale Quinlan, making him the only person with 

standing to sue for the FSBO commission. That evidence

includes the following:

• documents from the Division showing that Quinlan had 

registered the assumed name “Re/Max Elite” with himself 

as the registered agent;

• an affidavit from Quinlan averring that he had no 

recollection of transferring the assumed name to 

 

5. Following Schvaneveldt’s lead, we treat them as a single 

motion for purposes of our analysis.
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 12 2016 UT App 228

Aspenwood and that he never transferred to Aspenwood 

his alleged rights to the FSBO commission earnings;

• an “Expert Forgery Report” opining that it was “highly 

probable” that the letter requesting the assumed name

registration be transferred from Quinlan to Aspenwood 

was a forgery; and

• a document from the State of Utah showing that the 

Re/Max Elite assumed name had been re-registered to 

Quinlan in December 2013 because of the probable 

forgery.

Combined, the post-trial evidence directly contested the 

previously uncontested trial testimony of Wing and Shea that 

Wing, as Re/Max Elite’s principal broker, had standing to bring 

the commission claim on behalf of Plaintiffs.

¶25 Plaintiffs argued that the post-trial evidence should be 

excluded as untimely. They also presented post-trial evidence of 

their own in the form of the affidavit of Shane Thorpe, one of the 

owners of Aspenwood. Thorpe’s affidavit averred that 

Aspenwood, not Quinlan, owned the assumed name; that 

Quinlan was tasked with registering the assumed name to

Aspenwood and making Thorpe the registered agent; and that 

Quinlan prepared several letters designed to make clear that 

Aspenwood, not Quinlan, owned the assumed name.

¶26 In addition, while the motions were pending, Quinlan 

agreed to dismiss Re/Max Elite’s claim to the commission and 

transferred the assumed name Re/Max Elite to Still Standing for 

$500.

¶27 Schvaneveldt’s rule 60(b) motion sought to vacate the 

judgment on the ground that no named plaintiff had standing to 

sue for the commission and thus that the court lacked subject 

matter jurisdiction. Schvaneveldt argued that the post-trial 
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 13 2016 UT App 228

evidence showed that at all relevant times Quinlan, not Wing, 

was the registered broker for Aspenwood. Schvaneveldt relied 

on subparagraphs (4) (void judgment), (5) (discharge of 

judgment), and (6) (any other reason) of rule 60(b), but not 

subparagraph (2) (newly discovered evidence).

¶28 The court denied the motion. It cited several grounds for 

its ruling. First, it ruled that the post-trial evidence was untimely

because Schvaneveldt provided no reasons why the evidence

could not have been discovered earlier in the litigation. And 

without the post-trial evidence, standing and jurisdiction were 

proper. Second, it ruled that Sellers had abandoned their earlier 

standing challenge once Wing was added as a plaintiff. Third, it 

ruled that the post-trial evidence at most showed only that the 

assumed name Re/Max Elite was transferred to Wing a short 

time after the FSBO and REPC were signed, not that Quinlan did 

not assign the claims at some other time.

ISSUES

¶29 Schvaneveldt raises three issues on appeal. First, he 

contends that the trial court erred in denying his rule 60(b) 

motion based on lack of standing.

¶30 Second, he contends that the trial court erred in granting 

summary judgment and ruling that Plaintiffs had earned a 

commission pursuant to the FSBO agreement.

¶31 Third, he contends that “the trial court erred in ruling as a 

matter of law that any liability of Schvaneveldt was in his 

personal capacity” and not his representative capacity “as a 

member of the LLC.”
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 14 2016 UT App 228

ANALYSIS

I. Standing

A. Rule 60(b)

¶32 Schvaneveldt contends that the trial court erroneously 

denied his rule 60(b) motion. The motion argued that Plaintiffs 

lacked standing to sue for recovery of the sales commission 

under the FSBO. In Schvaneveldt’s view, because the FSBO listed 

Re/Max Elite as the brokerage, only Re/Max’s principal broker 

could bring an action to recover a sales commission. And, he 

asserts, although Wing took over as principal broker after 

Quinlan’s departure, “Wing was never assigned any interest in 

the Re/Max Elite dba, which Quinlan continued to own.” 

According to Schvaneveldt, Quinlan was the only person who 

could sue for a commission: “In short, the principal broker 

statute significantly narrows the class of individuals who might 

seek a real estate commission. The dba statute narrows that class 

even further, in this case, down to one person: Dale Quinlan.”6

Schvaneveldt contends that “Plaintiffs cannot cure the standing 

defect . . . because . . . Still Standing Stable has now acquired 

both the Re/Max Elite dba and all rights of its former owner, 

Dale Quinlan.” Thus, Schvaneveldt argues, “Plaintiffs lack 

standing to maintain this action against the Defendants.”

¶33 Plaintiffs respond that this argument relies on controverted 

evidence that the trial court properly refused to receive; that in 

any event, Aspenwood and not Quinlan (who by then had left 

 

6. Schvaneveldt does not argue that Wing was not a principal 

broker in his own right or that Aspenwood was not a legitimate 

legal entity in its own right. In other words, had Aspenwood 

signed the FSBO rather than “Re/Max Elite,” standing would not 

be a concern.
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 15 2016 UT App 228

the real estate business) contracted with Schvaneveldt; that any 

pleading problem may be cured by amending the complaint; 

that if Quinlan held the assumed name, he held it only as an 

Aspenwood’s agent, on behalf of Aspenwood; and that the trial 

court acted within its discretion in denying Schvaneveldt’s rule 

60(b) motion.

¶34 “A denial of a motion to vacate a judgment under rule 

60(b) is ordinarily reversed only for an abuse of discretion.”

Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶ 8, 100 P.3d 1211

(citation and internal quotation marks omitted). “However, when 

a motion to vacate a judgment is based on a claim of lack of 

jurisdiction, the district court has no discretion: if jurisdiction is 

lacking, the judgment cannot stand without denying due process 

to the one against whom it runs.” Id. (citation and internal 

quotation marks omitted). “Therefore, the propriety of the 

jurisdictional determination, and hence the decision not to 

vacate, becomes a question of law upon which we do not defer 

to the district court.” Id. (citation and internal quotation marks 

omitted).

¶35 Rule 60(b) lists various grounds on which the court may 

relieve a party from a final judgment or order:

On motion and upon just terms, the court may 

relieve a party or its legal representative from a 

judgment, order, or proceeding for the following 

reasons: (1) mistake, inadvertence, surprise, or 

excusable neglect; (2) newly discovered evidence 

which by due diligence could not have been 

discovered in time to move for a new trial under 

Rule 59(b); (3) fraud (whether previously called 

intrinsic or extrinsic), misrepresentation or other 

misconduct of an opposing party; (4) the judgment 

is void; (5) the judgment has been satisfied, 

released, or discharged, or a prior judgment upon 
Elite Legacy Corporation v. Schvaneveldt

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which it is based has been reversed or vacated, or it 

is no longer equitable that the judgment should 

have prospective application; or (6) any other 

reason that justifies relief.

Utah R. Civ. P. 60(b) (2015).7 Schvaneveldt requested relief under 

subparagraph (4), that the judgment was void; subparagraph (5), 

that the judgment had been released, discharged, or otherwise 

settled; and subparagraph (6), that the catch-all provision

applied.

1. Rule 60(b)(6)

¶36 Rule 60(b)(6) provides that the court may relieve a party 

from a judgment for any reason that justifies relief but is not 

included in subparagraphs (1) through (5). Id. R. 60(b)(6). As 

“the residuary clause of rule 60(b),” subsection (6) embodies 

three requirements: “First, that the reason be one other than those 

listed in subdivisions (1) through ([5]); second, that the reason 

justify relief; and third, that the motion be made within a 

reasonable time.” Laub v. South Central Utah Tel. Ass’n, 657 P.2d 

1304, 1306–07 (Utah 1982). Moreover, rule 60(b)(6) “should be 

very cautiously and sparingly invoked by the Court only in 

unusual and exceptional instances.” Id. at 1307–08 (citation and 

internal quotation marks omitted).

 

7. We cite to the version of the rule in effect at the time the 

motion was filed under the principle that we “apply the law as it 

exists at the time of the event regulated by the law in question. 

Thus, if a law regulates a breach of contract or a tort, we apply 

the law as it exists when the alleged breach or tort occurs—i.e., 

the law that exists at the time of the event giving rise to a cause 

of action.” State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829. 

“Similarly, if the law regulates a motion to intervene, we apply 

the law as it exists at the time the motion is filed.” Id.
Elite Legacy Corporation v. Schvaneveldt

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¶37 The trial court rejected Schvaneveldt’s subparagraph (6) 

claim on the ground that “there has not been a proper showing 

of any separate basis for relief under [subparagraph] (6).” On 

appeal, Schvaneveldt does not adequately challenge this ruling. 

He argues cursorily that perhaps Plaintiffs’ actions “do not 

precisely constitute fraud as contemplated under rule 60(b)(3), or 

do not precisely render the judgment void under rule 60(b)(4), or 

do not precisely extinguish the judgment under rule 60(b)(5). But 

they are certainly a basis to vacate the judgment under the 

equitable principles enumerated under the rule.”

¶38 This explanation falls short of demonstrating that the 

circumstances of this case are so unusual and exceptional that 

the trial court abused its discretion in rejecting Schvaneveldt’s

claim under subparagraph (6).

2. Rule 60(b)(5)

¶39 Rule 60(b)(5) provides that the court may relieve a party 

from a judgment on a showing that “the judgment has been 

satisfied, released, or discharged, or a prior judgment upon 

which it is based has been reversed or vacated, or it is no longer 

equitable that the judgment should have prospective 

application.” Utah R. Civ. P. 60(b)(5). The trial court rejected 

Schvaneveldt’s subparagraph (5) claim on the ground that 

Schvaneveldt had submitted insufficient evidence that Quinlan 

owned the claim against Schvaneveldt and thus had legal 

authority to settle or release the judgment. The idea that Quinlan

owned the claims against Schvaneveldt was, the court concluded, 

“a construct” that had only “occurred after trial.”

¶40 On appeal, Schvaneveldt argues that subparagraph (5) 

applies to the current case “where through assignment the claim 

is extinguished through merger.” Schvaneveldt asserts, “It is 

inequitable to enforce a judgment that no longer applies.” As 

legal support, Schvaneveldt cites Lamoreaux v. Black Diamond 
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 18 2016 UT App 228

Holdings, LLC, 2013 UT App 32, ¶¶ 20–22, 296 P.3d 780. Thus, 

Schvaneveldt argues that it is no longer equitable that the 

judgment should have prospective application.

¶41 “To begin, the court’s power of equity is only to be 

applied under the rule when highly significant changes alter the 

landscape of a judgment—for instance, ‘subsequent legislation, a 

change in the decisional law, or a change in the operative facts.’” 

Utah Res. Int’l, Inc. v. Mark Techs. Corp., 2014 UT 60, ¶ 28, 342 

P.3d 779 (quoting 11 Charles Alan Wright & Arthur Miller, 

Federal Practice & Procedure § 2863 (3d ed. 2014) (further footnote

material omitted)). “And ‘the burden will be high on those 

seeking relief on this ground as they must demonstrate 

extraordinary circumstances justifying relief.’” Id. (quoting 

Wright & Miller, § 2863).

¶42 Given the substantial burden facing a movant in cases 

such as this, we conclude that the trial court did not abuse its 

discretion in rejecting Schvaneveldt’s claim under rule 60(b)(5). 

Schvaneveldt has not shown that his claim is grounded in 

equity. He asserts that the only person entitled to sue for the real 

estate commission on the FSBO is Dale Quinlan. But Quinlan 

had nothing to do with the FSBO. Even Schvaneveldt does not 

claim that Quinlan knew about the Property, the transaction, or 

the FSBO, let alone that Quinlan introduced Buyers to Sellers. 

Shea, an employee of Aspenwood, contacted Schvaneveldt, 

signed the FSBO, and introduced Buyers to the Property. True, 

he wrote “Re/Max Elite” rather than “Aspenwood” on the FSBO. 

But no evidence, controverted or otherwise, suggests that by 

doing so Shea intended to name Quinlan rather than 

Aspenwood as the brokerage. Had he simply listed his 

employer’s legal name rather than what he believed—correctly, 

Aspenwood argues—to be its assumed name, this issue would 

never have arisen. It has arisen only because of a claimed filing 

error with the Division. The issue is thus grounded in a technical 

legal argument, not equity: Schvaneveldt does not claim that in 
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20140978-CA 19 2016 UT App 228

fairness, because Quinlan did the work, he should receive the 

commission. Accordingly, the trial court did not abuse its 

discretion in denying Schvaneveldt’s rule 60(b)(5) motion.8

3. Rule 60(b)(4)

¶43 Rule 60(b)(4) provides that the court may relieve a party 

from a judgment on a showing that the judgment is void. Utah 

R. Civ. P. 60(b)(4). The trial court rejected Schvaneveldt’s 

subparagraph (4) claim because it found unpersuasive 

Schvaneveldt’s contention that Quinlan, “has at all times been 

the real party in interest, and is the only party that has the right 

to proceed.”

¶44 “Normally, the district court’s denial of a rule 60(b) 

motion is reviewed for abuse of discretion.” Migliore v. Livingston 

Fin., LLC, 2015 UT 9, ¶ 25, 347 P.3d 394. “But the district court 

has no discretion with respect to a void judgment because the 

determination that a judgment is void implicates the court’s 

jurisdiction.” Id. “Accordingly, the propriety of [the] jurisdictional 

determination, and hence the decision not to vacate, becomes a 

question of law upon which we do not defer to the district 

court.” Id. (alteration in original) (citation and internal quotation 

marks omitted).

¶45 However, “we narrowly construe the concept of a void 

judgment in the interest of finality.” Id. ¶ 26. A “judgment is 

 

8. We recognize that we are affirming on a legal ground that 

varies somewhat from that articulated by the trial court. A 

reviewing court may affirm the judgment appealed from “if it is 

sustainable on any legal ground or theory apparent on the 

record, even though such ground or theory differs from that 

stated by the trial court.” Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 

P.3d 1225 (citation and internal quotation marks omitted).
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20140978-CA 20 2016 UT App 228

void under rule 60(b)(4) if the court that rendered it lacked 

jurisdiction of the subject matter or parties, or the judgment was 

entered without the notice required by due process.” Id. (citation 

and internal quotation marks omitted).

¶46 Schvaneveldt contends that the judgment is void because 

the trial court lacked subject matter jurisdiction; that the trial 

court lacked subject matter jurisdiction because Plaintiffs lacked 

standing to sue for the commission they claimed they earned

under the FSBO; that all Plaintiffs lacked standing to sue because 

none of them were the registered owners of the assumed name 

“Re/Max Elite,” which appears on the FSBO; and that only a 

registered owner can bring suit under Utah’s Assumed Name 

Statute.

¶47 The Assumed Name Statute prohibits a person or entity 

who conducts business under an assumed name, without having 

registered with the Division, from suing in the courts of this 

state:

Any person who carries on, conducts, or transacts 

business under an assumed name without having 

complied with the provisions of this chapter, and 

until the provisions of this chapter are complied 

with:

(1) shall not sue, prosecute, or maintain any 

action, suit, counterclaim, cross complaint, 

or proceeding in any of the courts of this 

state; and

(2) may be subject to a penalty in the form of 

a late filing fee determined by the division 

director in an amount not to exceed three 

times the fees charged under Section 42-2-7 

and established under Section 63J-1-504.
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20140978-CA 21 2016 UT App 228

Utah Code Ann. § 42-2-10 (LexisNexis 2014). For reasons 

explained above, Schvaneveldt maintains that Quinlan, not any 

of the Plaintiffs, “complied with the provisions of this chapter” 

to become the registered owner of the assumed name “Re/Max 

Elite.” And he has since transferred that assumed name to Still 

Standing, so that Plaintiffs cannot cure the flaw in their standing.

Thus, according to Schvaneveldt, the trial court lacked subject 

matter jurisdiction:

Rule 60(b)(4) provides for relief from a judgment 

that is void. Standing is a matter of subject matter 

jurisdiction. A judgment entered by a court that 

lacks subject matter jurisdiction is not merely 

voidable. . . . See Van Der Stappen v. Van Der 

Stappen, 815 P.2d 1335 (Utah Ct. App. 1991). Here, 

the Plaintiffs lacked standing, and thus the court 

lacked subject matter jurisdiction.

(Parenthetical omitted.)

¶48 Plaintiffs offer several arguments in response. For 

example, they argue that trial evidence supported a finding that 

Aspenwood had standing; that the court was entitled to reject 

evidence presented for the first time nearly a year after trial; that 

Plaintiffs presented post-trial evidence refuting Schvaneveldt’s 

post-trial evidence; that any failure to comply with the Assumed 

Name Statute may be cured and in any event did not mislead 

Schvaneveldt; that any standing defect could have been cured by 

amending the complaint or reforming the FSBO and REPC; and 

that public policy does not allow final judgments to be vacated 

based on untimely evidence.

¶49 We reject Schvaneveldt’s contention for a different reason. 

Schvaneveldt’s analysis assumes that failure to comply with the 

Assumed Name Statute is jurisdictional because it denies a party 

standing. This assumption, though plausible, is legally incorrect.
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20140978-CA 22 2016 UT App 228

¶50 Standing is a threshold “jurisdictional requirement that 

must be satisfied before a court may entertain a controversy 

between two parties.” Jones v. Barlow, 2007 UT 20, ¶ 12, 154 P.3d 

808 (citation and internal quotation marks omitted). Under the 

traditional test for standing, a party must meet three 

requirements:

First, the party must assert that it has been or will 

be adversely affected by the [challenged] actions. 

Second, the party must allege a causal relationship 

between the injury to the party, the [challenged] 

actions and the relief requested. Third, the relief 

requested must be “substantially likely to redress 

the injury claimed.”

Hogs R Us v. Town of Fairfield, 2009 UT 21, ¶ 8, 207 P.3d 1221 

(alterations in original) (citation and internal quotation marks 

omitted).

¶51 “However, standing is not the same as legal capacity to 

sue.” U.S. Bank, NA v. Kosterman, 2015 IL App (1st) 133627, ¶ 8, 

39 N.E.3d 245 (citation and internal quotation marks omitted). 

“A plaintiff has standing when it is personally aggrieved, 

regardless of whether it is acting with legal authority; a party 

has capacity when it has the legal authority to act, regardless of 

whether it has a justiciable interest in the controversy.” Nootsie, 

Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 

(Tex. 1996); see also Quad Cities Waterkeeper v. Ballegeer, 84 

F. Supp. 3d 848, 858 (C.D. Ill. 2015). Thus, for example, minors, 

though they may have standing, “have no legal capacity to sue.” 

Lee v. Gaufin, 867 P.2d 572, 578 (Utah 1993).

¶52 Here, Schvaneveldt does not challenge Plaintiffs’

traditional standing: he does not contest that Shea signed the 

FSBO; that he acted on behalf of his employer; that Aspenwood

employed Shea; or that Shea brought Buyers to the deal, so that 
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20140978-CA 23 2016 UT App 228

if a commission was in fact due, Shea and Aspenwood, not 

Quinlan, did the work to earn it. Rather, Schvaneveldt 

challenges Shea and Aspenwood’s capacity to sue for the 

commission under the Assumed Name Statute. Accordingly, the 

question before us is whether a plaintiff’s lack of capacity to sue 

under the Assumed Name Statute deprives the court of 

jurisdiction. The answer is that it does not.

¶53 We have held that a plaintiff’s failure to comply with the 

Assumed Name Statute does not render a complaint “a complete 

nullity so as to deprive the trial court of jurisdiction to consider 

the motion to amend the complaint.” Graham v. Davis County 

Solid Waste Mgmt. & Energy Recovery Special Service Dist., 1999 UT 

App 136, ¶ 15, 979 P.2d 363. And we have applied that principle 

in this very context. In Shields v. Santana, 2000 UT App 298U, the 

defendant contended that (1) the “complaint was void because 

[the plaintiff] conducted business under an unregistered, 

assumed name; and (2) the trial court lacked subject matter 

jurisdiction over his claims pursuant to Utah Code Ann. § 42-2-

10 (1999).” Id. para. 1. We held that “[t]his fact did not deprive 

the trial court of subject matter jurisdiction, nor did it make the 

complaint a nullity on its face.” Id. We pointed out that the 

Assumed Name Statute “addresses the capacity to sue, and lack 

of capacity is an affirmative defense,” which may be 

“waived . . . by failing to bring it before the trial court.” Id. (citing

Utah R. Civ. P. 8(c), 9(a)(1)); see also Wall Inv. Co. v. Garden Gate 

Distrib., Inc., 593 P.2d 542, 544 (Utah 1979) (stating that a 

plaintiff’s “failure to comply with the assumed name statute 

does not disqualify it as a plaintiff in this suit”).

¶54 Because failure to comply with the Assumed Name 

Statute affects a plaintiff’s capacity to sue, not its standing, the 

failure is not jurisdictional. Because it is not jurisdictional, it does 

not render the resulting judgment void. Accordingly, 

Schvaneveldt’s claim in case number 20140978-CA that Plaintiffs 
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20140978-CA 24 2016 UT App 228

here failed to comply with the Assumed Name Statute does not 

provide a basis for relief from the judgment under rule 60(b)(4).9

¶55 In case 20130746-CA, Schvaneveldt asserts a nearly 

identical standing argument. But rather than appealing from a 

specific ruling as in case 20140978-CA, he argues that Plaintiffs 

lack standing, that standing is jurisdictional, and that subject 

matter jurisdiction may be raised at any time. We reject that 

claim for the reasons discussed above: namely, that Plaintiffs’

alleged failure to comply with the Assumed Name Statute does 

not deprive the court of subject matter jurisdiction and thus may 

not be raised at any time.10

II. The Commission

¶56 Schvaneveldt next contends that “the trial court erred in 

taking from the jury the question of whether a commission had 

been earned.” This is a challenge to the trial court’s ruling that 

Plaintiffs earned a commission as a matter of law. “An appellate 

court reviews a trial court’s legal conclusions and ultimate grant 

 

9. Because the question is not before us, we express no opinion 

on whether a plaintiff’s lack of standing renders a judgment void 

and thus vulnerable to attack under rule 60(b)(4). We do note 

that the issue has never been decided in Utah, although it has 

arisen twice. See Henshaw v. Estate of King, 2009 UT App 388U; 

Gardiner v. York, 2010 UT App 108, 233 P.3d 500.

10. Again, we recognize that we are affirming on a legal ground 

that varies somewhat from that articulated by the trial court. We 

do so on the principle that a reviewing court may affirm the 

judgment appealed from “if it is sustainable on any legal ground 

or theory apparent on the record, even though such ground or 

theory differs from that stated by the trial court.” Dipoma, 2001 

UT 61, ¶ 18 (citation and internal quotation marks omitted).
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20140978-CA 25 2016 UT App 228

or denial of summary judgment for correctness, and views the 

facts and all reasonable inferences drawn therefrom in the light 

most favorable to the nonmoving party.” Orvis v. Johnson, 2008 

UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks 

omitted).

¶57 Schvaneveldt contends that “the trial court erred in taking 

from the jury the question of whether a commission had been 

earned.” Schvaneveldt advances three arguments in support of 

this contention. First, he argues that Plaintiffs were “required to 

show seller default under the FSBO.” Second, he argues that 

“[t]here was no basis upon which the trial court could find 

‘default of the seller’ as a matter of law.” Lastly, he argues that if 

Plaintiffs needed to show only that they had procured a “ready, 

willing, able, and accepted” buyer, issues of fact precluded

summary judgment.

¶58 Plaintiffs respond that “the trial court correctly ruled that 

a commission had been earned.” Plaintiffs advance five 

arguments in support of their position. First, they argue that 

Schvaneveldt “became obligated to pay a commission the 

moment he accepted an offer to purchase the property.” Second, 

they argue that the broker’s commission “did not depend on the 

Buyer’s or Sellers’ subsequent performance.” Third, they argue 

that no dispute exists regarding whether Schvaneveldt accepted 

an offer. Fourth, they argue that Schvaneveldt’s “default caused 

the transaction to fail.” And finally, they argue that Buyers were

“ready, willing, and able to purchase the property.”

¶59 The trial court concluded as a matter of law that Plaintiffs 

had earned a commission. First, the trial court ruled that Plaintiffs 

earned the commission because Sellers accepted the Buyers offer. 

The court further referred to its previous ruling that the sale 

failed because Sellers failed to provide insurable access by means 

of a general warranty deed or a special warranty deed with 

guaranteed access:
Elite Legacy Corporation v. Schvaneveldt

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20140978-CA 26 2016 UT App 228

[I]t is undisputed that the lack of a guaranteed 

access was the sole reason . . . that the transaction 

failed. . . . [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.

¶60 The general rule in Utah is that “a real estate broker is 

entitled to its commission when it has procured a buyer who is 

ready, willing and able and who is accepted by the seller.” 

Fairbourn Comm., Inc. v. American Housing Partners, Inc., 2004 UT 

54, ¶ 7, 94 P.3d 292 (citation and internal quotation marks 

omitted). However, the parties are free to establish a different 

rule by contract. Id. ¶ 8. Accordingly, we begin our analysis with 

the contract at issue: the FSBO.

¶61 The FSBO’s brokerage-fee paragraph contains at least 

three terms relevant to the question of whether a fee was earned. 

The first requires a seller to accept an offer from a named buyer,

the second specifies when the fee is “due and payable,” and the 

third provides that if the seller defaults the fee is immediately 

due and payable:

2. BROKERAGE FEE. The Seller agrees to pay the 

Company, irrespective of agency relationship(s), as 

compensation for services, a Brokerage Fee in the 

amount of $____ or 3% of the acquisition price of 

the Property, if the Seller accepts an offer from 

Emmett Warren and or Assigns (the “Buyer”), or

anyone acting on the Buyer’s behalf, to purchase or 

exchange the Property. The Seller agrees that the 

Brokerage Fee shall be due and payable, from the 

proceeds of the Seller, on the date of recording of 

closing documents for the purchase or exchange of 

the Property by the Buyer or anyone acting on the 
Elite Legacy Corporation v. Schvaneveldt

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20140978-CA 27 2016 UT App 228

Buyer’s behalf. If the sale or exchange is prevented by 

default of the Seller, the Brokerage Fee shall immediately 

be due and payable to the Company. 

(Emphasis added.) The parties disagree about whether, absent 

seller default, the sale must close to trigger the brokerage-fee 

provision. But the final sentence quoted above makes clear that a 

commission was owed if Sellers defaulted on the REPC.

¶62 As stated above, the court ruled that Sellers breached the 

REPC by failing to provide “a general warranty deed or at least 

some kind of a guarantee under a special warranty deed that 

there would be an access.” Paragraph 10.1 of the REPC provides 

that Sellers “will convey good and marketable title to Buyer at 

Closing by general warranty deed.” Again, the parties agree that 

Sellers had informed Buyers that they would not be conveying

title by general warranty deed.11

¶63 That Sellers refused to convey title by general warranty 

deed when the REPC required a general warranty deed would 

seem to resolve the breach question. But in his opening brief 

Schvaneveldt argues that he “had proposed a special warranty 

deed, and Buyers had stated a willingness to accept it.” 

However, the record shows that Buyers’ willingness to accept 

 

11. 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 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).
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something less than a general warranty deed was conditional. 

Buyers’ attorney 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.”12 We agree with the trial court that this exchange 

put Sellers on notice that a special warranty deed was not 

acceptable to Buyers absent additional guarantees that Sellers 

could not provide.

¶64 In his reply brief, Schvaneveldt takes another run at the 

warranty deed issue. He argues that “a general warranty deed 

was not required in order to furnish marketable title.” That may 

be true, but the REPC required conveyance by general warranty 

deed. Schvaneveldt then argues that “the court did not rule that 

failure to provide a general warranty deed was a seller breach.” 

But as quoted above, the court identified Sellers’ failure to 

provide a general warranty deed as a reason the sale failed. 

Although the trial court focused on lack of access, that lack of 

access apparently motivated Sellers’ refusal to convey the 

Property by general warranty deed, and that refusal breached

the REPC. Finally, Schvaneveldt argues that “buyers had waived 

the general warranty deed condition.” But, as explained above, 

the waiver was conditional, and Sellers could not satisfy the 

condition. No title insurance company—including one hired by 

Sellers—was willing to insure access to the property.13

 

12. In the trial court proceedings, Sellers did not dispute the 

factual accuracy of this exchange.

13. Sellers had prior notice from SITLA that the Property did not 

have access from a public road. See Still Standing Stable, LLC v. 

Allen, 2005 UT 46, ¶¶ 2, 5, 122 P.3d 556. Despite this notice, 

Sellers still claimed in their seller disclosures—incorporated into 

(continued...)
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20140978-CA 29 2016 UT App 228

¶65 Of course, Sellers might have rendered the condition 

moot by agreeing to convey title by general warranty deed as 

required by the REPC. By not doing so, they defaulted under the 

REPC. That default triggered the commission provision of the 

FSBO, causing the brokerage commission to be

“immediately . . . due and payable.” We thus affirm the trial 

court on this issue.14

 

(...continued)

the REPC—that access existed to the Property. See supra note 2. 

Thus, even if Sellers had avoided default by providing Buyers

with a general warranty deed, Sellers may have defaulted given 

their seller disclosure that there was “direct access to the 

Property through . . . [a] Private Easement”—allegedly, the strip 

of land that Still Standing had purchased on the opposite side of 

the closest public road. However, despite Sellers’ repeated

claims that access exists, the Utah Supreme Court found no 

access and at least two separate title insurance companies—

including one hired by Sellers—had examined the Property and 

none had been willing to insure access.

14. Schvaneveldt argued in his reply brief and in oral argument 

that “Plaintiffs did not contend that failure to provide a general 

warranty deed was the basis for seller default”; that “the court 

didn’t attempt to rule on that”; that there was “no opportunity 

for trial counsel in this case to oppose it or defend against it” by, 

for example, submitting a declaration from Schvaneveldt’s real 

estate counsel; and that “they can’t just spring that on appeal.” 

That is not how we read the record.

During the summary judgment hearing, Plaintiffs’ 

counsel stated as an undisputed fact that “the REPC said 

[Sellers] will convey title by a general warranty deed and they 

wouldn’t convey title by a general warranty deed, they kept 

saying they were going to use a special [warranty] deed and that 

(continued...)
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III. Schvaneveldt’s Personal Liability

¶66 Finally, Schvaneveldt contends that “the trial court erred 

in ruling as a matter of law that any liability of Schvaneveldt was 

in his personal capacity.”

¶67 We are hampered in our review of this claim of error 

because, as Plaintiffs observe, “it is unclear which ruling or 

rulings Schvaneveldt is appealing.” Schvaneveldt’s brief states

 

(...continued)

was a red flag to the buyers.” Plaintiffs’ counsel argued that this 

fact alone “would be sufficient for summary judgment.” 

Furthermore, in questioning Schvaneveldt’s counsel, the court 

asked whether it was “the prerogative of a buyer to spurn a 

special warranty deed if he feels insecure and say, the only 

condition to purchasing this property is a general warranty 

deed?” Schvaneveldt’s counsel responded, “Yeah, . . . he could 

say that, yes.” The court replied, “And didn’t he do that?” 

Thereupon, the court and counsel discussed the exchange 

between Buyers’ attorney and Sellers’ attorney concerning the 

general and special warranty deeds. Schvaneveldt’s counsel did 

not claim to be surprised by this line of argument or request the 

opportunity to supplement the record with a declaration from 

Schvaneveldt’s real estate counsel, but argued the point on the 

basis of the undisputed record as it then existed. He stated his 

belief “that [the] proposed switch to those deeds is irrelevant.” 

But Plaintiffs’ counsel persisted: “Concerning the warranty deed, 

the REPC clearly states in Paragraph 10 that the buyer agrees 

that they will provide a warranty deed, [a] general warranty 

deed.” And, as quoted in the text, the trial court relied explicitly 

on the general warranty deed requirement in its ruling. In sum, 

the claim that Sellers breached the REPC by refusing to provide 

a general warranty deed was in play at the trial court and thus is 

fair game on appeal.
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that the trial court “erred in denying [his] motion for summary 

judgment on this ground,” but his argument does not identify in 

the record the ruling he challenges. See Utah R. App. P. 24(a)(9). 

Plaintiffs suggest that “it appears that [Schvaneveldt] is 

appealing the trial court’s order dated August 13, 2010.” We 

proceed on that assumption and reject as inadequately briefed 

any challenge to any other ruling.

¶68 The August 13, 2010 ruling of the trial court denied 

Schvaneveldt’s motion for summary judgment. That motion had 

sought dismissal of all claims against Schvaneveldt and Code 

individually. The court observed that the FSBO “identifies 

‘[Charles Schvaneveldt] and Cathy Code’ as the seller and 

provides that the seller will pay a commission fee to Re/Max

Elite. The agreement does not indicate that these individuals 

were acting in a representative capacity.” The court therefore 

concluded that Plaintiffs had “presented sufficient evidence that 

Mr. Schvaneveldt and Ms. Code are personally liable to 

withstand a motion for summary judgment.” “An appellate 

court reviews a trial court’s legal conclusions and ultimate grant 

or denial of summary judgment for correctness, and views the 

facts and all reasonable inferences drawn therefrom in the light 

most favorable to the nonmoving party.” Orvis v. Johnson, 2008 

UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks 

omitted).

¶69 The Utah Revised Limited Liability Company Act 

indicates that “no organizer, member, manager, or employee of a 

company is personally liable . . . for a debt, obligation, or liability 

of the company.” Utah Code Ann. § 48–2c–601 (LexisNexis 

2007). However, “where an agent has signed a contract in a 

personal capacity, that is, executed it in a manner clearly 

indicating that the liability is his alone . . . he must fulfill.” Daines 

v. Vincent, 2008 UT 51, ¶ 40, 190 P.3d 1269 (alteration in original) 

(citation and internal quotation marks omitted).
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¶70 And “it is generally agreed that the determination of the 

liability of the signer depends upon the construction of a written 

contract.” Starley v. Deseret Foods Corp., 74 P.2d 1221, 1223 (Utah 

1938) (citation and internal quotation marks omitted); see also

Daines, 2008 UT 51, ¶ 40; Orlob v. Wasatch Mgmt., 2001 UT App 

287, ¶ 10, 33 P.3d 1078.

15 An agent “can be held personally liable 

for a signed contract only if he executed the contract ‘in a 

manner clearly indicating that the liability was his alone.’”

Daines, 2008 UT 51, ¶ 40 (quoting Starley, 74 P.2d at 1223). 

However, “for an agent to be relieved from personal liability 

upon a negotiable instrument executed by him within the scope 

of his authority, he must not only name his principal but must 

express by some form of words that the writing is the act of the 

principal, although done by the hand of the agent.” Starley, 74 

P.2d at 1223 (citation and internal quotation marks omitted).

¶71 Here, Plaintiffs base their claim for a commission on the 

FSBO. The FSBO does not express by any form of words that the 

writing is the act of Schvaneveldt’s principal, Still Standing. In 

fact, the FSBO does not mention Still Standing. Based on these 

facts alone, we cannot say that the trial court erred in rejecting 

Schvaneveldt’s claim that, as a matter of law, only Still Standing, 

and not Schvaneveldt, was obligated by the FSBO to pay any 

commission found to be owing.

¶72 Schvaneveldt argues that “the facts and law show that 

[he] was acting as a member of the LLC,” even though he was

listed on the FSBO as a seller. His argument relies on the REPC, 

which identifies “the property” as “Land LLC Still Standing 

 

15. In Starley the principal was a corporation, but our supreme 

court has (as noted above) applied Starley to a case where the 

principal was a limited liability company. See Daines v. Vincent, 

2008 UT 51, ¶ 40, 190 P.2d 1269 (citing Starley v. Deseret Foods 

Corp., 74 P.2d 1221, 1223 (Utah 1938)).
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Stables,” and the seller disclosure form, which identifies the 

property owner as “Still Standing Stables, LLC.” Schvaneveldt 

also argues that the word “member” originally followed his 

signature on the REPC.

¶73 None of this evidence undermines the trial court’s ruling. 

Plaintiffs are suing to enforce the FSBO, so it—not the REPC—is 

the operative document. Furthermore, the REPC does not list 

Still Standing as the seller, nor do the words “Still Standing 

Stable” appear anywhere near Schvaneveldt’s signature on the 

REPC. The REPC does state that if the buyer or seller is an entity, 

“the person executing this Contract on its behalf warrants his or 

her authority to do so and to bind Buyer and Seller.” This term 

might suggest that Schvaneveldt signed in his representative 

capacity if the REPC named an entity as the seller, but it does 

not. The Sellers’ disclosure statement does name Still Standing as 

the seller, but Schvaneveldt’s signature does not purport to be in 

a representative capacity, and the name of the LLC does not 

appear anywhere near his signature in the disclosure statement.

16

IV. Attorney Fees on Appeal

¶74 Plaintiffs request an award of attorney fees on appeal on 

the ground that the FSBO awards attorney fees to the prevailing 

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 

 

16. Schvaneveldt also argues, “Alternatively, Schvaneveldt’s tort 

claims against Shea and Wing should be reinstated.” However, 

because these tort claims (negligence and breach of fiduciary 

duties) are the subject of a separate case—20130768-CA—and are 

only addressed in two pages in Schvaneveldt’s brief in this case, 

they are addressed in that opinion. See Wing v. Still Standing 

Stable LLC, 2016 UT App 229.
Elite Legacy Corporation v. Schvaneveldt

20130746-CA and 

20140978-CA 34 2016 UT App 228

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

947. Plaintiffs received attorney fees below and have prevailed 

on appeal. Accordingly, we award Plaintiffs their reasonable fees 

incurred in connection with this appeal in an amount to be 

determined by the trial court.

CONCLUSION

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

is affirmed and the case remanded for a determination of 

Plaintiffs’ reasonable attorney fees incurred on appeal.