387 P.3d 601
Utah Ct. App.2016Background
- Plaintiffs (Aspenwood/Elite and principal broker Hilary “Skip” Wing) sued to recover a real estate sales commission under a For Sale By Owner Agreement (FSBO); defendants included sellers Cathy Code and Charles Schvaneveldt.
- Wing was added as a plaintiff after defendants repeatedly challenged plaintiffs’ standing for lacking a principal broker.
- On summary judgment the court found a commission was earned; prior to trial Still Standing Stable LLC was dismissed; at trial Code obtained a directed verdict and was dismissed as a defendant; the jury found Schvaneveldt owed the commission.
- Code, as a prevailing party, sought attorney fees under the FSBO’s fee clause; the trial court awarded fees and held Wing personally liable for Code’s fees.
- Wing argued on appeal he was not personally liable because (1) he was not a party to the FSBO, (2) he only appeared in a representative capacity, and (3) Utah law (Fericks) bars recovery of contract fees by an agent; he also pointed to an inconsistency where he recovered fees from Schvaneveldt but would not personally collect them.
- The court affirmed: Wing’s litigation posture and fee recovery under the FSBO made him subject to reciprocal fee liability; the representative-capacity argument failed on the record; the court remanded to determine reasonable appellate fees.
Issues
| Issue | Wing's Argument | Code's Argument | Held |
|---|---|---|---|
| Whether Wing can be personally liable for Code’s attorney fees under the FSBO and Utah’s Reciprocal Fee Statute | Wing: He was never a party to the FSBO and thus cannot be liable | Code: Wing asserted and enforced claims based on the FSBO and even sought/obtained fees under it, so reciprocal liability applies | Court: Held Wing enforced the FSBO and obtained fees, so Reciprocal Fee Statute and FSBO fee clause make him liable |
| Whether Wing sued only in a representative capacity (so not personally liable) | Wing: He acted only to cure standing defects and did not seek personal recovery | Code: Record shows Wing had a personal stake and counsel sought personal recovery for Wing | Court: Record and pleadings do not support purely representative status; trial-court finding limiting Wing’s role was narrow and doesn’t defeat personal liability |
| Whether Fericks bars Wing from seeking or being liable for fees under the FSBO because he was an agent | Wing: Fericks precludes an agent from recovering contract attorney fees | Code: Fericks involved a different contract (purchase agreement) and an agent enforcing a third-party contract; here Wing sued as a principal under the FSBO | Court: Fericks does not control; plaintiffs sued as principals under the FSBO, so Wing may seek and be subject to fees |
| Whether appellant should escape fee liability because he won fee award against Schvaneveldt but will not personally receive it | Wing: It’s inequitable to hold him liable when he won fees that effectively go to corporations | Code: Wing voluntarily joined as plaintiff and must accept consequences of that status | Court: Equity argument rejected; no legal basis to treat Wing as a debtor for fees differently than as a creditor; affirmed liability |
Key Cases Cited
- Hooban v. Unicity Int’l, Inc., 285 P.3d 766 (Utah 2012) (contract-based claim can trigger reciprocal fee statute when a party asserts enforceability of the writing)
- Bilanzich v. Lonetti, 160 P.3d 1041 (Utah 2007) (standard for Reciprocal Fee Statute application explained)
- Dixie State Bank v. Bracken, 764 P.2d 985 (Utah 1988) (attorney fees are available only by statute or contract)
- Fericks v. Lucy Ann Soffe Trust, 100 P.3d 1200 (Utah 2004) (agent cannot enforce a contract term for the agent’s own benefit in certain contexts)
- Utah Transit Auth. v. Greyhound Lines, Inc., 355 P.3d 947 (Utah 2015) (prevailing party under contractual fee clause may recover appellate fees)