Posner v. Equity Title Ins. Agency, Inc.

Decision Date27 November 2009
Docket NumberNo. 20090058-CA.,20090058-CA.
Citation222 P.3d 775,2009 UT App 347
PartiesMichael C. POSNER, Plaintiff and Appellant, v. EQUITY TITLE INSURANCE AGENCY, INC., a New Jersey corporation; and NRT, Inc., a New Jersey corporation dba Coldwell Banker Residential Brokerage, Defendants and Appellees.
CourtUtah Court of Appeals

Catherine A. James, Mountain Green; and David E. Ross II, Park City, for Appellant.

David M. Bennion, Salt Lake City; and David W. Overholt and Robert A. Ponte, South Jordan, for Appellees.



GREENWOOD, Presiding Judge:

¶ 1 Michael C. Posner appeals the trial court's separate grants of summary judgment in favor of Equity Title Insurance Agency, Inc. (Equity) and NRT, Inc., dba Coldwell Banker Residential Brokerage (Coldwell), alleging that the trial court committed various errors in dismissing Equity and Coldwell from Posner's suit relating to the sale of real property owned by Posner. We affirm.


¶ 2 In 2002, Posner, a Florida resident, retained Coldwell—in particular, Coldwell real estate agent Kandis Christoffersen—to list for sale two lots Posner owned in Deer Valley, Utah. To this end, Posner and Coldwell executed a Listing Agreement that detailed the scope of the relationship and included a prevailing party attorney fee provision. Sale of the lots was negotiated with a buyer for a purchase price of $450,000, with Posner agreeing to provide $260,000 in seller financing.1 To ensure payment on his portion of the financing, Posner required the buyer to supply a surety bond for $260,000, which requirement was included in the real estate purchase contract (the REPC) entered into between Posner and the buyer. The REPC, however, included no further details regarding the bond provider or the bond itself, requiring simply that the bond be "secured in second position."

¶ 3 Posner hired Equity to act as his escrow agent at the closing of the transaction. The buyer was represented by another title company. Posner signed the necessary closing documents and returned to his home in Florida. Five days later, the buyer supplied to his escrow agent the documents required of him to close the sale. Included among these was a document entitled "Financial Guarantee" issued by American Natural Resources Corporation and purporting to guarantee payment of the $260,000 financed by Posner in the event the buyer defaulted.2 That same day, the buyer's title company delivered these documents, including the Financial Guarantee, to Equity. Equity, in turn, sent the documents to Christoffersen, who acknowledged receipt thereof in a telephone conversation that day. Two days later, Christoffersen informed Equity that she had spoken with Posner, and that Posner had approved the Financial Guarantee and instructed her to have Equity complete the closing. Equity closed the transaction that day.

¶ 4 After the closing, the buyer failed to make any payments to Posner. Seeking to recover the money he was owed, Posner made demands of the third-party guarantor under the Financial Guarantee. These demands proved futile. Posner then filed suit against Equity and Coldwell, asserting that each had breached a fiduciary duty to Posner and further asserting that Equity was negligent. Equity requested and was granted summary judgment against Posner because, as the trial court determined, Equity had simply followed the instructions of Posner's agent, Christoffersen. Posner and Coldwell participated in court-ordered mediation that ended unsuccessfully. Following this mediation, Coldwell filed a motion for summary judgment that was denied.

¶ 5 Moving the case forward, the trial court entered an Amended Scheduling Order establishing deadlines for completion of fact discovery and expert witness designation as October 13, 2006, and December 12, 2006, respectively.3 Through interrogatories dated July 26, 2006, Coldwell had requested that Posner identify any expert witnesses he intended to call at trial. Posner responded to the interrogatories but did not identify Gage Froerer as an expert he intended to call. On December 26, 2006, approximately two weeks after expiration of the deadline, Posner filed an unsigned Rule 26(a)(3) Designation of Expert Witness Gage Froerer. See Utah R. Civ. P. 26(a)(3) (providing procedures for the disclosure of expert testimony).

¶ 6 More than a year later, following expiration of all deadlines in the Amended Scheduling Order and a significant period of inactivity, the trial court ordered Posner to show cause as to why the case should not be dismissed for failure to prosecute. Posner certified that he was ready to immediately proceed to trial. Rather than dismissing the case, the trial court determined the final pretrial and trial schedules and set a jury trial for three days in June 2008. In mid-March 2008, Coldwell filed two motions in limine: one to exclude the testimony and report of Froerer, and one to exclude various documents Posner allegedly produced after expiration of the fact discovery deadline. The trial court agreed with Coldwell that the subject documents and expert witness designation were produced after expiration of the respective deadlines established in the Amended Scheduling Order, with no adequate justification for their tardiness. Further determining that Coldwell would suffer prejudice if the documents or testimony were allowed at trial, the trial court granted both of Coldwell's motions in limine, excluding the documents and expert witness testimony.

¶ 7 Coldwell then moved for summary judgment on the ground that, due to the complexity of the real estate transaction at issue, expert testimony was required to prove that Coldwell, through Christoffersen, breached a fiduciary duty owed to Posner. The trial court agreed with Coldwell that the subject transaction was "complex[] and ... unusual," and thus held "that expert testimony is necessary for [Posner] to satisfy the required elements of his claim for breach of fiduciary duty." Because the testimony and report of Posner's sole expert had been excluded, the trial court granted summary judgment in favor of Coldwell. The trial court then awarded Coldwell its reasonable attorney fees and costs pursuant to the Listing Agreement. Posner appeals.


¶ 8 Posner argues that the trial court erred in granting summary judgment in favor of Equity because material issues of fact exist and Equity was not entitled to judgment as a matter of law because Christoffersen lacked authority to act on Posner's behalf to allow the closing by Equity to take place. Posner also argues that, based on the undisputed material facts, Coldwell was not entitled to judgment as a matter of law because expert testimony is not required to establish a breach of fiduciary duty. 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." Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation marks omitted). Posner further asserts that the trial court's grant of Coldwell's summary judgment motion was based on the trial court's decision to exclude the testimony of Posner's designated expert witness, which decision Posner claims to be an abuse of discretion. However, Utah law mandates that a trial court exclude an expert witness report disclosed after expiration of the established deadline unless the trial court otherwise chooses to exercise its equitable discretion. See Utah R. Civ. P. 37(f). In this case, because the trial court chose not to exercise its discretion, our review of its decision to exclude the testimony of Posner's expert is both for correctness and abuse of discretion. See id.; Rukavina v. Sprague, 2007 UT App 331, ¶ 8, 170 P.3d 1138.

¶ 9 With respect to Coldwell, Posner further asserts that the trial court erred in awarding Coldwell its attorney fees pursuant to the Listing Agreement, asserting that he did not sue for breach of the Listing Agreement and that his claims against Coldwell sounded in tort law. Whether attorney fees should be awarded in a particular case is a question of law, reviewed for correctness. See Valcarce v. Fitzgerald, 961 P.2d 305, 315 (Utah 1998).

I. Summary Judgment

¶ 10 Posner asserts that the trial court erred in granting summary judgment to both Equity and Coldwell, albeit for different reasons. Summary judgment is appropriately granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c).

A. Posner's Claims Against Equity

¶ 11 Posner argues that the trial court's grant of summary judgment in favor of Equity was error because there were disputed issues of material fact surrounding events at the closing. Specifically, Posner identifies several facts he disputed before the trial court, each of which fall into one of two general contentions: (1) that neither Equity nor Coldwell had the Financial Guarantee prior to the closing, and (2) that Christoffersen's verbal approval of the closing was not based on Posner's informed consent because Posner was not provided with a copy of the Financial Guarantee prior to the closing. We disagree with Posner that either of these contentions preclude summary judgment because the record fails to support existence of genuine disputed material issues of fact.4

¶ 12 With respect to Posner's first factual contention, the trial court was presented with testimony of Equity's agent, Helen Smith, that she received the Financial Guarantee from the buyer's title company on or about August 28, 2002, and either faxed or hand-delivered it to Christoffersen on or about the same day. Furthermore,...

To continue reading

Request your trial
25 cases
  • Hale v. Big H Constr., Inc.
    • United States
    • Utah Court of Appeals
    • October 12, 2012
    ...suffer loss if an agency relationship is not found. Luddington v. Bodenvest Ltd., 855 P.2d 204, 209 (Utah 1993); Posner v. Equity Title Ins. Agency, Inc., 2009 UT App 347, ¶ 18, 222 P.3d 775. “Thus, an analysis of apparent authority focuses on the acts of the principal from a third party's ......
  • Spafford v. Granite Credit Union
    • United States
    • Utah Court of Appeals
    • November 25, 2011
    ...also gives a trial court discretion to employ an alternative sanction ‘in addition to or in lieu of’ exclusion.” Posner v. Equity Title Ins. Agency, Inc., 2009 UT App 347, ¶ 23, 222 P.3d 775 (quoting Utah R. Civ. P. 37(f)). The trial court also has discretion to determine “whether good caus......
  • Reperex Inc. v. Child, Van Wagoner & Bradshaw
    • United States
    • Utah Court of Appeals
    • February 9, 2017
    ...was not necessary because the breach was within the "common knowledge and experience" of the jury. Compare Posner v. Equity Title Ins. Agency, Inc. , 2009 UT App 347, ¶¶ 21–22, 222 P.3d 775, abrogated on other grounds by Coroles v. State , 2015 UT 48, ¶ 23, 349 P.3d 739, with White v. Jepps......
  • Pyper v. Reil
    • United States
    • Utah Court of Appeals
    • October 18, 2018
    ...courts have explained that "the core of the escrow agent’s fiduciary duty is to follow the escrow instructions," Posner v. Equity Title Ins. Agency, Inc. , 2009 UT App 347, ¶ 19, 222 P.3d 775 (quotation simplified), abrogated on other grounds by Coroles v. State , 2015 UT 48, 349 P.3d 739, ......
  • Request a trial to view additional results
1 books & journal articles
  • Utah Standards of Appellate Review - Third Edition
    • United States
    • Utah State Bar Utah Bar Journal No. 23-5, October 2010
    • Invalid date
    ...(7) Whether the trial court properly enforced a scheduling order. See Posner v. equity Title Ins. Agency, Inc., 2009 UT App 347, ¶ 23, 222 P.3d 775. (8) Whether the trial court properly imposed discovery sanctions. See Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 35, 215 P.3d 933; SFR, Inc.......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT