This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 51
IN THE
SUPREME COURT OF THE STATE OF UTAH
REPEREX, INC., BRAD BALL, and DAVID BALL,
Respondents and Cross-Petitioners,
v.
COLDWELL BANKER COMMERCIAL, DUANE BUSH,
CHILD, VAN WAGONER & BRADSHAW PLLC,
and J. RUSSTON BRADSHAW,
Petitioners and Cross-Respondents.
No. 20170354
Filed September 18, 2018
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Todd M. Shaughnessy
No. 110916924
Attorneys:
J. Spencer Ball, Salt Lake City, for respondents and cross-petitioners
Joseph M. Stultz, Salt Lake City, for petitioners and
cross-respondents Coldwell Banker Commercial and Duane Bush
Tyler S. Foutz, Salt Lake City, Shane W. Norris, Midvale,
for petitioners and cross-respondents
Child, Van Wagoner & Bradshaw PLLC and J. Russton Bradshaw
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the court, in
which JUSTICE HIMONAS, JUSTICE PEARCE, JUSTICE PETERSON, and
JUDGE DAVIS joined.
Having recused himself, CHIEF JUSTICE DURRANT does not participate
herein; DISTRICT JUDGE LYNN W. DAVIS sat.
REPEREX v. COLDWELL BANKER COMMERCIAL
Opinion of the Court
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Reperex, Inc. bought a business in a deal brokered by
Coldwell Banker Commercial. After the purchased business failed,
Reperex sued Coldwell and Bradshaw, an accounting firm, for fraud,
negligent misrepresentation, and breach of fiduciary duty. All of the
claims against Coldwell were dismissed before trial. The negligent
fraud and breach of fiduciary duty claims against Bradshaw were
likewise dismissed. The remaining fraud claim went to trial, where
Bradshaw prevailed.
¶2 Reperex appealed. The court of appeals affirmed as to
Bradshaw but reversed as to Coldwell. Coldwell and Reperex filed
cross-petitions for certiorari. We granted both petitions.
¶3 The first question presented in Coldwell’s petition is
whether Coldwell can be held liable despite a nonreliance clause in
Coldwell’s contract with Reperex. We determine that the nonreliance
clause protects Coldwell from representations that it passed along
from May’s (the company Reperex purchased), but not from
misrepresentations that Coldwell made independently. And we
uphold the enforceability of this provision despite Reperex’s public
policy challenge to it. The second question presented by Coldwell is
whether expert testimony was required to sustain Reperex’s breach
of fiduciary duty claim. We hold that it was not required because the
misrepresentations alleged by Reperex were clearly material.
¶4 Reperex’s cross-petition also raises two issues. The first
concerns the question whether Reperex has a basis to assert a claim
against Bradshaw under Utah Code section 58-26a-602, a statute that
limits claims against CPAs to those in “privity of contract” or that
can establish the applicability of the general requirement of privity.
We affirm the court of appeals’ decision that Reperex failed to
establish a basis for overcoming the protections available to
Bradshaw under this statute. The second question in Reperex’s cross-
petition is whether Reperex was entitled to a jury instruction on
nondisclosure fraud. The court of appeals affirmed the district
court’s refusal to give such an instruction on the ground that Utah
Code section 58-26a-602 “occupies the field” and forecloses a duty of
disclosure by not expressly prescribing one. We reverse on this issue
and remand for a determination of whether Bradshaw owed Reperex
a duty under the common law.
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Opinion of the Court
I
¶5 Reperex, Brad Ball, and David Ball (collectively, “Reperex”)
purchased a company called May’s Custom Tile in a transaction that
was brokered by Coldwell Banker Commercial and Duane Bush
(collectively, “Coldwell”). Coldwell represented both Reperex and
May’s seller, Steve May, in a “dual agency capacity.”
¶6 In the course of the transaction, an accounting firm called
Child, Van Wagoner & Bradshaw1 provided some financial
information to Reperex about May’s. May’s had previously hired
Bradshaw to prepare its tax returns. And when another party had
considered buying May’s, Bradshaw had agreed to share the
company’s tax returns with that potential buyer. So when Reperex
was looking into buying the company, May’s asked Bradshaw to
share “similar documents” with Reperex. Bradshaw allowed
Reperex to look through those documents at its office in a due
diligence meeting. The details of that interaction are disputed.
¶7 At some point after the purchase, May’s went out of
business. Reperex sued Coldwell, alleging various nondisclosures
and misrepresentations. First, some of the financial statements
Coldwell gave Reperex indicated that May’s profits in 2006 were
over $300,000. But according to Reperex, the actual profits for that
year were only $74,000—a fact that Bradshaw had mentioned to
Coldwell over email. Second, when Reperex asked whether May’s
had commingled funds with a sister business, Coldwell said it hadn’t
even though Bradshaw had told Coldwell earlier that in fact there
had been a “lot of intercompany mingling.” Third, Coldwell failed to
inform Reperex that one of May’s clients, which accounted for
40percent of its business, had gone bankrupt the year before. Fourth,
Coldwell told Reperex that it would take the company 90 days to
acquire the license they needed to run the business, when it actually
took three years to qualify. On these facts Reperex asserted claims
for fraud, negligent misrepresentation, and breach of fiduciary duty
against Coldwell.
¶8 Reperex asserted the same three claims against Bradshaw. It
alleged that Bradshaw had provided “attestation services” to
Reperex and that it had made several misrepresentations at the due
_____________________________________________________________
1 The firm acted primarily through J. Russton Bradshaw. We refer
to the person and the firm collectively as “Bradshaw.”
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Opinion of the Court
diligence meeting. Bradshaw contests most of these basic facts and
asserts that it simply handed over documents and gave mostly
noncommittal answers to the questions that Reperex asked at the
meeting. Bradshaw denies that it provided “attestation services” or
that there was an agreement to provide such services.
¶9 Coldwell moved for judgment on the pleadings, asserting
that it was immune from liability because Reperex had disclaimed
any reliance on Coldwell’s representations. The contract between
Coldwell and Reperex included an acknowledgment that Reperex
was “relying on its own inspection of the involved business and the
representations of the Seller and not of [Coldwell] and/or any of its
agents or employees” with regard to any material facts about the
business. The agreement also included an acknowledgment that
Coldwell had not “verified the representations of the Seller, and
should any representations be untrue, Buyer agrees to look solely to
Seller for relief and to indemnify [Coldwell] . . . and hold them
harmless in connection with all losses and damages caused to Buyer
thereby.” Reperex argued in response that this provision was
effectively a disclaimer of liability for fraud, making it void as
against public policy.
¶10 The district court granted judgment on the pleadings as to
the fraud and negligent misrepresentations claims, but denied the
motion as to the breach of fiduciary duty claim. In disposing of the
fraud and negligent fraud claims, the court relied on an unpublished
court of appeals opinion called Ruf, Inc. v. Icelandic Investments, Inc.,
1999 UT App. 103, 1999 WL 33244779. In that case, the court of
appeals held that releases like the one in this case are distinguishable
from releases from liability for fraud, because they merely “define[]
roles.” Id. at *1 n.1. It reasoned that such provisions don’t permit
fraud—by disclaiming the essential element of reliance they instead
render the plaintiff unable to prove fraud. Id. at *1.
¶11 At the close of expert discovery, Coldwell moved for
summary judgment on the remaining breach of fiduciary duty claim.
It argued that the claim failed as a matter of law because Reperex
had not designated the requisite experts to establish the elements of
that claim. The district court agreed and granted summary
judgment.
¶12 Bradshaw moved for summary judgment on the claims
against it as well. In so doing Bradshaw relied on Utah Code section
58-26a-602, which states generally that a CPA cannot be liable “to
persons with whom they are not in privity of contract for civil
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Opinion of the Court
damages resulting from acts, omissions, decisions, or other conduct
in connection with professional services performed by that [CPA].”
The statute also recognizes two exceptions: one for fraud claims and
another where there is a writing indicating an intent to rely on the
CPA’s representations. UTAH CODE § 58-26a-602(1) & (2).
¶13 Bradshaw argued that this statute precludes liability, as
Reperex was not in privity of contract or able to establish either
exception. The district court agreed that Reperex could not show that
it was in privity or that the writing exception was satisfied. It
accordingly granted summary judgment on the negligent
misrepresentation and breach of fiduciary duty claims. In light of the
fraud exception, however, the district court allowed the fraud claim
against Bradshaw to go to trial. Before trial, Reperex asked for a jury
instruction addressing fraudulent nondisclosure—a theory of relief
that requires a showing of the existence of a duty of disclosure. The
district court declined to give the instruction on the basis of its
determination (as to negligent misrepresentation) that Bradshaw did
not owe Reperex a duty. And the jury subsequently ruled in
Bradshaw’s favor on the fraud claim.
¶14 Reperex appealed the dismissal of its claims against
Coldwell. It also appealed the dismissal of its claims against
Bradshaw and the denial of the request for a jury instruction on
fraudulent nondisclosure.
¶15 The court of appeals affirmed as to the claims against
Bradshaw but reversed as to the claims against Coldwell. As to
Bradshaw, the court of appeals agreed with the district court that no
privity had been established and that there was no writing sufficient
to establish the writing exception. It also affirmed the district court’s
refusal to give a jury instruction on fraudulent nondisclosure.
¶16 On the claims against Coldwell, the court of appeals
concluded that the nonreliance clause did not preclude Reperex’s
claims for fraud and negligent misrepresentation. It first identified
circumstances in which a contract provision of this sort could be
unenforceable on public policy grounds—as where a contract is
procured by fraud in the inducement, or purports to insulate “a
person against his own fraud.” Reperex Inc. v. Child, Van Wagoner &
Bradshaw, 2017 UT App 25, ¶ 22, 392 P.3d 905 (citing Miller v.
Celebration Mining Co., 2001 UT 64, ¶ 10, 29 P.3d 1231; Lamb v.
Bangart, 525 P.2d 602, 608 (Utah 1974)). And it held that Reperex had
asserted claims for relief that “could reasonably support a finding”
in its favor on these grounds. Id., ¶ 28.
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Opinion of the Court
¶17 The court of appeals also reversed the district court’s
summary dismissal of the fiduciary duty claim. It held that the
details surrounding Coldwell’s actions were not so complex that
expert testimony was needed in order to establish a breach of
fiduciary duty. It stated that “the complexity of the claim, not the
complexity of the transaction, determines whether expert testimony
is required.” Id., ¶ 50. And it concluded that the fact pattern at issue
presented a simple enough case of nondisclosure and materiality
that experts were not needed.
¶18 Coldwell filed a petition for certiorari and Reperex filed a
cross-petition. We granted both petitions.
II
¶19 Coldwell challenges the court of appeals’s decisions (a)
reversing the district court’s dismissal of Reperex’s fraud and
negligent misrepresentation claims under a “nonreliance” provision
of the parties’ contract, and (b) reversing the dismissal of Reperex’s
fiduciary duty claims on the basis of Reperex’s failure to designate
an expert witness. Reperex, for its part, contends that the court of
appeals erred (a) in affirming the dismissal of Reperex’s claims
against Bradshaw under the terms of Utah Code section 58-26a-602,
and (b) in affirming the district court’s decision refusing to give a
jury instruction on fraudulent nondisclosure. We consider each
argument in turn.
A. The Enforceability and Applicability of the Nonreliance Provision
¶20 Coldwell first challenges the court of appeals’s decision
reversing the dismissal of Reperex’s fraud and negligent
misrepresentation claims on a motion for judgment on the pleadings.
Our review of this decision is de novo. DIRECTV v. Utah State Tax
Comm’n, 2015 UT 93, ¶ 11, 364 P.3d 1036 (“In reviewing a decision on
a motion for judgment on the pleadings, we yield no deference to the
district court’s analysis.”).
¶21 Coldwell’s motion for judgment on the pleadings was based
on a “nonreliance” provision in a contract entered into between
Reperex and Coldwell. The provision in question states as follows:
Buyer hereby acknowledges that Buyer is relying on its
own inspection of the involved business and the
representations of the Seller and not of COLDWELL
BANKER COMMERCIAL and/or any of its agents or
employees with regards to the prior operating history
of the business, the value of the assets being purchased
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Opinion of the Court
and all other material facts of Seller in completing the
transaction as evidenced by the Agreement for
Purchase and Sale together with its attachments. Buyer
further acknowledges that neither COLDWELL
BANKER COMMERCIAL nor any of its agents and/or
employees have verified the representations of the
Seller, and should any representations be untrue, Buyer
agrees to look solely to Seller for relief and to
indemnify COLDWELL BANKER COMMERCIAL, its
agents and employees and hold them harmless in
connection with all losses and damages caused to
Buyer thereby.
(Emphasis added.)
¶22 The district court dismissed Reperex’s claims under this
provision. It held that the provision was enforceable and sufficient to
foreclose Reperex’s claims. The court of appeals reversed. It
reinstated Reperex’s claims on the ground that Reperex had pleaded
facts that, “if proven, could reasonably support a finding that the
non-reliance provision” would be unenforceable on public policy
grounds. 2017 UT 25, ¶ 28.
¶23 Coldwell challenges that decision on certiorari. It complains
that the court of appeals misread the terms of the nonreliance
provision. And it claims that the provision, when properly
construed, is both enforceable and sufficient to insulate Coldwell
from liability to Reperex.
¶24 We agree with Coldwell’s threshold point. We think the
nonreliance clause is narrower than the court of appeals allowed.
And we deem this provision enforceable to the extent it applies. We
nonetheless affirm the judgment of the court of appeals—its reversal
of the district court’s judgment on the pleadings—because we find
that Reperex has stated claims that are not covered by the terms of
the nonreliance provision.
¶25 The provision in question disclaims any reliance of Reperex
on Coldwell for “the representations of the Seller.” For such
representations the contract clarifies that Coldwell has not
performed any verification. And it establishes that Reperex agrees to
“look solely to the Seller for relief” and must hold Coldwell
“harmless.”
¶26 Reperex has identified no basis in our case law for striking
down this nonreliance provision on public policy grounds. Our cases
have established that a party may not insulate itself from liability for
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Opinion of the Court
its “own fraud” in a provision of a contract. See Lamb, 525 P.2d at
608. But this contract provision does not purport to do that. It simply
clarifies the parties’ roles in this contractual relationship—with
Coldwell acting only as a conduit for representations from the seller,
and the buyer agreeing to look only to the seller as to the accuracy of
any of those representations. And we see nothing in our case law, or
in the arguments advanced by Reperex, for a decision striking down
this sort of clause on public policy grounds.
¶27 Reperex’s principal argument is its (understandable)
concern about the effects of a contractual license for a party to
engage in fraud “with absolute impunity.” But the nonreliance
provision at issue does not provide such a license. Again, it simply
defines the roles of parties to the contract—by clarifying that
Coldwell is not expected to “verif[y]” the accuracy of information it
receives from the seller, and by stating that Reperex will look only to
the seller if the information that Coldwell passes along is “untrue.”
¶28 We hold that this provision is enforceable as far as it goes.
We find no basis in the public policy or law of the State of Utah that
would foreclose the parties from limiting Coldwell’s role in this
transaction, or from limiting Reperex’s recourse to the seller in the
event that Coldwell happens to pass along false information it
receives from the seller.
¶29 We also clarify, however, that this is not enough to sustain
the dismissal of Reperex’s fraud and negligent misrepresentation
claims. Reperex appears to have accused Coldwell of more than just
acting as a conduit for the seller’s representations. It seems to be
alleging that Coldwell committed its own fraud—by strategically
curating information given to it by the seller (intentionally passing
along only select information that would be misleading if viewed in
isolation), with the goal of inflating the value of the business and
inducing the buyer to close the purchase.2 That sort of conduct is not
_____________________________________________________________
2 Reperex seems to have pleaded and argued in support of this
sort of claim in the proceedings below and briefing in our court. In
its Opposition to the Motion for Judgment on the Pleadings, for
example, Reperex asserted that “Bush, [Coldwell] and the Seller all
purposely withheld information they knew would show the falsity
of their representations during the entire due diligence of the [ ]
company by [Reperex].” And in its brief to our court, Reperex
claimed that Coldwell “concealed and filtered from [Reperex]
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Opinion of the Court
covered by the nonreliance provision. The provision, as noted,
simply disclaims any reliance of Reperex on Coldwell for “the
representations of the Seller” and clarifies that Reperex must “look
solely to the Seller for relief.” But this does not speak to Coldwell’s
liability for its own fraud. And we accordingly hold that Reperex can
state a claim against Coldwell for any acts of strategically curating
false information in what it passed along to Reperex.
¶30 We leave another issue open on remand: whether Coldwell
made a fraudulent representation in the contract itself when it
represented to Reperex that it had not “verified the representations
of the Seller.” Reperex raises that possibility in response to
Coldwell’s motion for judgment on the pleadings, and again before
both the court of appeals and this court. The court of appeals
appeared to agree with Reperex. It noted in passing that Reperex
could prove that the nonreliance clause was “procured by fraud” on
remand.
¶31 We affirm that holding. Our cases establish that a “release
will be voidable if it was an integral part of a scheme to defraud,”
Ong Int’l (USA) Inc. v. 11th Ave. Corp., 850 P.2d 447, 453 (Utah 1993),
or in other words that a contract may be rendered unenforceable by
proof of reliance on fraud in the inducement, see Miller v. Celebration
Mining Co., 2001 UT 64, ¶ 10, 29 P.3d 1231. Reperex did not plead
such a claim, but it did raise the argument when Coldwell
disclaimed liability under the nonreliance clause. We do not
determine whether Reperex’s claim is properly raised or what the
essential company data that . . . [May’s] gave to Coldwell. They
knowingly filtered out data which would have shown [Reperex] that
the data Coldwell gave to [Reperex] was false, and that Coldwell
knew it was false.” (Emphasis in original.) These allegations would
appear to escape the terms of the parties’ contract. To the extent
these allegations establish a ground for concluding that Coldwell
engaged in its own fraud, and was not just a conduit for information
provided to it by the seller, Reperex may have stated a claim that can
survive the motion for judgment on the pleadings.
Unfortunately Reperex does not make clear which of its
allegations against Coldwell arise out of independent
misrepresentations, and which are based on representations that
were made by the seller and passed along by Coldwell. We leave any
necessary clarification of this point to the court and the parties on
remand.
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Opinion of the Court
effect of its argument would be. We leave those questions for the
court on remand. But we do hold that Reperex has done enough to
survive Coldwell’s attempt to repudiate this theory of relief on its
motion for judgment on the pleadings.
¶32 We uphold Reperex’s right to assert that Coldwell engaged
in its own fraud in strategically curating the information that it
passed along to Reperex. And we affirm the reversal of the judgment
on the pleadings because we conclude that Reperex has pleaded a
claim for relief that escapes the terms of the parties’ nonreliance
clause. We also leave open the question of whether Coldwell made a
misrepresentation in the contract, and whether such a
misrepresentation might sustain a finding of fraud in the
inducement sufficient to render the nonreliance clause
unenforceable.
B. The Need for Expert Testimony on Reperex’s Fiduciary Duty
Claim
¶33 Coldwell also challenges the court of appeals’ decision
reversing the dismissal of Reperex’s fiduciary duty claim. This claim
was dismissed on summary judgment. And our review again is de
novo. See Bahr v. Imus, 2011 UT 19, ¶ 16, 250 P.3d 56.
¶34 Coldwell moved for summary judgment on the ground that
expert testimony was necessary to establish the elements of its
breach of fiduciary duty claim, including the applicable standard of
care and whether it was breached.3 In granting this motion the
district court first concluded that Coldwell owed Reperex a fiduciary
duty. Then it concluded that Reperex’s claim for breach of such a
duty could not survive without expert testimony—testimony
necessary “to assist a jury in determining whether [Coldwell’s]
conduct satisfied the applicable standard” of care.
¶35 The court of appeals reversed. It accepted the existence of a
fiduciary duty—a point not appealed by Coldwell. See Reperex, 2017
UT App 25, ¶¶ 35–36. And it endorsed the notion that a business
broker owes a duty that “is not lower than the standard of care for
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3 In its initial motion for summary judgment Coldwell also
asserted that the breach of fiduciary duty claim was foreclosed by
the nonreliance clause in the contract. But the parties have not
briefed that question and it is accordingly not presented for our
decision.
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real estate brokers”—a duty that would require the business broker
to “deal fairly and honestly; be honest, ethical, and competent; and
not misrepresent, either affirmatively or by omission, their client’s
financial condition or ability to perform.” Id. ¶ 40 (citing Hermansen
v. Tasulis, 2002 UT 52, ¶¶ 20, 22, 48 P.3d 235; Gilbert Dev. Corp. v.
Wardley Corp., 2010 UT App 361, ¶ 24, 246 P.3d 131). The court of
appeals reversed the decision of the district court, however, on the
ground that the claim of breach in this case was a matter “‘within the
common knowledge and experience’ of the jury,” and thus did not
require expert testimony. Id. ¶ 50.
¶36 We affirm the court of appeals on this latter point. And we
do so without reaching the threshold question of the precise nature
and extent of a business broker’s fiduciary duty to a buyer. Instead
we simply conclude, as did the court of appeals, that Reperex’s
claims of breach are not sufficiently complex or esoteric to require
expert testimony. And we therefore affirm the reversal of the
decision dismissing Reperex’s fiduciary duty claim on summary
judgment.
¶37 The threshold question of the applicable standard of care of
a business broker is an important one. Yet it is not resolved in our
case law. And the parties’ briefs provide no clear basis for a
comprehensive statement of the governing standard of care. We are
unpersuaded, without more, of the basis for assuming that a
business broker has the same duty as a real estate broker. The two
roles obviously differ in some respects. And we deem it unwise to
simply assume that the business broker bears the same duty as a real
estate broker.
¶38 We could remedy this deficiency by ordering supplemental
briefing. But we see no need to do so here because we find no basis
for any reasonable ground for a difference of opinion on the core
duty at issue here—the duty not to misrepresent material
information to a buyer. Surely a business broker should be held at
least to that standard; no party has identified any basis for a contrary
conclusion. So we accept that duty for the purpose of deciding this
case, while leaving for another day the question of the full extent of
the standard of care owed by a business broker.
¶39 That leads to the core basis for Coldwell’s motion for
summary judgment—the assertion that Reperex’s claim for breach of
fiduciary duty required expert testimony. The need for expert
testimony is a matter sensitive to context. “[T]he question of the need
for expert testimony turns on the nature of the standard to be
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addressed by the jury.” Gables at Sterling Vill. Homeowners Ass’n, Inc.
v. Castlewood-Sterling Vill. I, LLC, 2018 UT 04, ¶ 59, 417 P.3d 95. Thus:
Fiduciary duties may sometimes, but will not always,
implicate the type of technical matters that would lie
beyond the capacity of an ordinary juror. This means
that expert testimony will be required in the breach of
fiduciary duty context to explain standard of care and
breach issues where the average person has little
understanding of the duties owed by particular trades
or professions. This testimony may be unnecessary,
however, if the professional task is so common or the alleged
breach is so egregious that specialized knowledge is not
required to conclude that the conduct fell below the applicable
standard of care, whatever that standard might be.
Accordingly, the question of whether expert testimony
is required will necessarily occur on a case by case basis
....
Id. ¶ 60 (emphasis added). The case-by-case analysis of commonness
or egregiousness is ultimately a judgment call. And there will be
hard cases on the margins. But this is not such a case.
¶40 The materiality analysis in this case is straightforward.
Reperex alleges that Coldwell represented that the seller had earned
$310,000 in cash sales in one year when the correct figure was
$74,000. By this account the seller’s actual income was about four
times less than advertised. That is an egregious disparity. And we
think the materiality of such a disparity is a matter within the
common understanding of a lay person, not a matter of expertise
requiring technical knowledge.
¶41 The same goes for Reperex’s allegations that Coldwell failed
to disclose the bankruptcy of a major customer (one accounting for
about 40 percent of the ongoing sales income of the business) and
represented that a necessary business license could be obtained in
three months, when the actual duration was three years. We
conclude that a lay person could find that these alleged
misrepresentations are material without the need for technical input
from an expert. And we affirm the court of appeals’ decision
reversing summary judgment on this basis.
¶42 Reperex also asserts that Coldwell told Reperex that there
was no commingling of funds between May’s and a sister company,
after Bradshaw had told Coldwell that “there was a lot of
intercompany commingling.” This is not as obviously material as the
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other facts alleged. But we are persuaded that no expert testimony
was required to establish this claim (though it might have been
advisable to use one). Reperex specifically asked whether there had
been intercompany mingling—which is evidence that that question
was material to its decision. And a lay juror is capable of inferring
that commingling of finances between two businesses has the
potential to significantly alter an evaluation of that business.
¶43 Coldwell urges us to reverse the court of appeals under the
theory that the issues here are “too complex for the average juror” to
understand without expert testimony. In its briefing and at oral
argument, Coldwell argued in general terms that this transaction
was highly complex. It pointed to the “hundreds of pages of
financial records” provided to Reperex, and the fact that “[s]killed
professionals were required in order to find a buyer, negotiate the
terms of the sale, and close the transaction.” We don’t doubt that this
transaction contained elements that were beyond the understanding
of a lay juror. But where Reperex has alleged misrepresentations that
are clearly material, Coldwell needs to do more than gesture vaguely
at the complexity of the transaction to prove otherwise.
¶44 If Coldwell had shown that the discrepancies in its
representations were due to the application of two contrary but
accepted principles of accounting, perhaps it could have rebutted
Reperex’s assertions and demonstrated that experts were needed.
But there are no such arguments in its brief. And when pressed at
oral argument, Coldwell fell back only on unspecified complexities.
¶45 The alleged misrepresentations identified by Reperex thus
appear to be simple and straightforward. And Coldwell fails to
identify any relevant point of expertise that would have been needed
to allow a lay jury to unravel them. We thus affirm the court of
appeals’ determination that no expert was needed to sustain
Reperex’s breach of fiduciary duty claim.
C. Dismissal of Reperex’s Claims Under Utah Code Section 58-26-602
¶46 Reperex challenges the court of appeals’ decision upholding
the dismissal of Reperex’s claims under Utah Code section 58-26a-
602. The district court dismissed Reperex’s claims on Bradshaw’s
motion for summary judgment. The court of appeals affirmed. Our
review is de novo. See Bahr v. Imus, 2011 UT 19, ¶ 16, 250 P.3d 56.
¶47 Utah Code section 58-26a-602 states a general rule that CPAs
are liable only to those with whom they are in “privity of contract.”
It also prescribes two exceptions to that general rule. Id. § 58-26a-
602(1)&(2). Reperex asserts that it was both in privity with
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Bradshaw and that it qualifies for the two statutory exceptions. We
disagree and affirm.
1. Privity
¶48 Reperex is not a party to a contract with Bradshaw. The only
contract at issue is one entered into between Bradshaw and May’s.
This is fatal to Reperex’s claim to “privity of contract.” A person is in
privity with another when the two are parties to the same contract.
See Privity, BLACK'S LAW DICTIONARY (10th ed. 2014) (defining
“privity of contract” as “[t]he relationship between the parties to a
contract, allowing them to sue each other but preventing a third
party from doing so”).
¶49 Reperex nonetheless claims privity on the basis of its alleged
status as a third-party beneficiary of the contract between Bradshaw
and May’s. This is a plausible argument. Some courts have treated
third-party beneficiary status as a basis for establishing privity. See
13 WILLISTON ON CONTRACTS § 37:1, 1 & n.13 (4th ed. 2018). We reject
that position, however, in light of the contrary view—of third-party
beneficiary status as an exception to the requirement of privity. See id.
(noting that “[d]epending on the particular jurisdiction, the third
party beneficiary doctrine either dispenses with the need for privity
or asserts that privity, by virtue of the party’s status as a third party
beneficiary, in fact exists”). This latter view seems best to comport
with the way the term privity has been used in Utah. See Walker Bank
& Tr. Co. v. First Sec. Corp., 341 P.2d 944, 946 (Utah 1959) (noting that
a party can be liable to a beneficiary who was harmed by its actions
“despite [the] lack of privity between them”); Rio Algom Corp. v.
Jimco Ltd., 618 P.2d 497, 506 (Utah 1980) (distinguishing third-party
beneficiaries from the parties to a contract).
¶50 We accordingly hold that a third-party beneficiary is not a
party with privity under Utah Code section 58-26a-602. It is a third
party that sometimes qualifies for an exception to the general rule
that only parties in privity have a right to sue for breach of contract.
¶51 Utah Code section 58-26a-602 does not recognize such an
exception. The statutory exceptions (discussed below) are different.
We do not “infer substantive terms into the text that are not already
there.” Berrett v. Purser & Edwards, 876 P.2d 367, 370 (Utah 1994). So
the lack of a third-party beneficiary exception in the statute is fatal to
Reperex’s first argument.
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2. The Writing Exception
¶52 Section 58-26a-602(2) makes an exception to the general
requirement of privity for:
[O]ther acts, omissions, decisions, or conduct, if the
person performing the professional services: (a) knew
that a primary intent of the client was for the
professional services to benefit or influence the
particular person seeking to establish liability; and (b)
identified in writing to the client that the professional
services performed on behalf of the client were
intended to be relied upon by the particular person
seeking to establish liability.
UTAH CODE § 58-26a-602. The parties have referred to this as the
“writing exception.” The court of appeals found that Reperex had
failed to establish the applicability of this exception. It considered a
series of emails between Bradshaw and Coldwell but concluded that
Reperex had failed to show that any of them ever “mention[ed]”
Reperex or indicated an intent that Reperex “rely on” Bradshaw’s
accounting services. Reperex Inc. v. Child, Van Wagoner & Bradshaw,
2017 UT App 25, ¶¶ 61-62, 392 P.3d 905. The court of appeals also
analyzed “financial documents” that Bradshaw had provided for
Reperex’s consideration at a “due diligence meeting.” Id. ¶ 63. But it
again concluded that these documents failed to “mention[]” Reperex.
Id. And it held that “the writing exception” failed on that basis. Id.
¶ 63.
¶53 We agree with the court of appeals’ bottom-line conclusion
and affirm its determination that Reperex failed to establish a basis
for the writing exception. But we see a more fundamental, threshold
problem with Reperex’s argument. And we affirm on the basis of
this problem.
¶54 The writing exception speaks not only to the contents of the
requisite writing but also to its author and recipient. Thus, the
statute requires more than just an accountant’s knowledge “that a
primary intent of the client was for the professional services to
benefit or influence the particular person seeking to establish
liability” and more than just a writing indicating “that the
professional services performed on behalf of the client were intended
to be relied upon by the particular person seeking to establish
liability.” UTAH CODE § 58-26a-602(2). The statute also specifies that
the writing must be from “the person performing the professional
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Opinion of the Court
services . . . to the client.” Id. Reperex has identified no such
documents. That alone is fatal to Reperex’s argument.
¶55 Reperex points to emails between Bradshaw and Coldwell.
These emails were not sent to the client, May’s,4 and they thus fail
the threshold requirement of Utah Code section 58-26a-602(2)(b). The
emails, moreover, were sent with another purchaser in mind—and
months before Reperex came into the picture. So they cannot
possibly establish that they are meant to be relied on by Reperex, the
“particular person seeking to establish liability” here. UTAH CODE
§ 58-26a-602(2)(b).
¶56 Reperex claims that it should somehow be able to piggyback
on these documents because Bradshaw was asked to provide
“similar documents” and services to Reperex as it did to the prior
prospect. But the plain language of section 58-26a-602(2)(b)
precludes this theory. The emails fail to support the writing
exception.
¶57 Reperex also points to financial documents provided by
Bradshaw for review at the “due diligence meeting.” It insists that
these documents “strongly served as a loud statement” that
Bradshaw understood that Reperex would rely on Bradshaw’s work
product. But the writing exception is not triggered by loud
statements; it is triggered by writings from an accountant to a client.
So any document provided by Bradshaw to Reperex cannot sustain
the writing exception. Because Reperex points only to the emails and
the documents Bradshaw gave to it, its claim to the writing exception
fails.
¶58 Reperex cites Reynolds v. Bickel, 2013 UT 32, 307 P.3d 570, in
support of its contrary conclusion. It says that Reynolds allows the
writing exception to be sustained on the basis of a “nexus” among a
range of writings. And it insists that there is a “nexus” among
_____________________________________________________________
4 Bradshaw states in passing in its briefing that the client “would
have been May’s.” The court of appeals apparently agreed. Reperex,
2017 UT App 25, ¶ 61 (“Here, [Bradshaw] did not identify in one or a
series of writings to the Seller [May’s] that anyone intended
[Reperex] to rely on his services.”). Because Reperex makes no
argument to the contrary, we assume that May’s was the client, and
that the relevant writing had to be from Bradshaw to May’s. Reperex
has pointed us to no such document.
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Opinion of the Court
documents here that “all together show that [Reperex] expected to
rely on Bradshaw for his attestation services at the due diligence
meeting[] and that Bradshaw knew that this was a due diligence
meeting for which [Reperex] would rely on as a due diligence
meeting.”
¶59 We find no support for Reperex’s position in Reynolds. That
case involved twenty-five emails and eleven spreadsheets that
passed between the accountant and the client. Reynolds, 2013 UT 32,
¶ 13. And “each spreadsheet mentioned Mr. Reynolds by name five
times.” Id. This was the core basis for our holding in Reynolds. We
held that the writing requirement was satisfied when the writings
were “considered together as a memorandum . . . [because] there
[was] a nexus between them.” Id. ¶ 17 (citing Machan Hampshire
Props., Inc. v. W. Real Estate & Dev. Co., 779 P.2d 230, 234 (Utah Ct.
App. 1989).
¶60 The problem in Reynolds was only that there was “no single
writing” that “explicitly” set forth the accountant’s intent that a third
party rely on the accountant’s work product. Id. ¶ 15. In endorsing
the applicability of the writing exception in that case we did not
dispense with the requirement of a writing from the accountant to
the client. We explained only that “one or more writings, not all of
which are authored by” the accountant “may be considered together as
a memorandum if there is a nexus between them.” Id. ¶ 17 (emphasis
added).
¶61 By statute, the writing exception clearly requires at least
some writing by the accountant to the client. No such writing is
identified by Reperex here. We affirm the court of appeals on that
basis.
3. The Fraud Exception
¶62 Section 58-26a-602(1) provides another exception to the
general requirement of privity. This provision states that a CPA may
be liable (despite a lack of privity) for “acts, omissions, decisions, or
conduct that constitute fraud or intentional misrepresentations.”
UTAH CODE § 58-26a-602(1).
¶63 The viability of this exception was not litigated below—not
in the district court and not in the court of appeals. That is because
Bradshaw never invoked the statutory protection of Utah Code
section 58-26a-602(1) with regard to Reperex’s claims for fraud. And
that alone is a sufficient ground for us to avoid this issue on appeal.
¶64 Bradshaw has asked us to conclude that Reperex cannot
invoke the fraud exception for its claim for nondisclosure fraud. It
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Opinion of the Court
asserts that nondisclosure fraud does not fit within the terms of the
statute. We are dubious of that argument. The exception, after all,
encompasses all “acts, omissions, decisions, or conduct that constitute
fraud.” UTAH CODE § 58-26a-602(1). And nondisclosure is a theory of
fraud arising from omissions in the face of a duty of disclosure. See
Part II.D below. For that reason it would appear that Reperex has a
basis for asserting its claim for nondisclosure fraud under the terms
of the statute (assuming it has a basis for such a claim—an issue we
take up below).
¶65 We need not resolve this issue, however, because Bradshaw
failed to invoke the protections of section 58-26A-602(1) in the
proceedings below. This statute sets forth a defense that was
Bradshaw’s burden to raise. And we decline to address a defense
that was neither advanced by the defendant nor decided by the court
whose decision we are reviewing.
D. Refusal to Give Nondisclosure Fraud Instruction
¶66 Reperex also challenges the decision affirming the denial of
its request for a jury instruction on fraudulent nondisclosure.
Nondisclosure can amount to fraud only in the face of a duty to
disclose. Yazd v. Woodside Homes Corp., 2006 UT 47, ¶ 10, 143 P.3d
283. And the district court declined to give an instruction on
nondisclosure fraud on the basis of a lack of a duty of disclosure on
Bradshaw’s part—a decision that the district court said it had
already made in dismissing Reperex’s claim for negligent
misrepresentation.
¶67 The court of appeals affirmed the district court’s
determination that no such duty existed. It did so on the ground that
the legislature “ha[d] occupied the field” by “craft[ing] a statute
adopting the general rule that accountants owe no duty to those with
whom they are not in privity and defining with considerable
precision the exceptions to that general rule.” Reperex, 2017 UT App
25, ¶ 71. Because the statute does not prescribe a duty of disclosure
for accountants to parties not in privity with them the court of
appeals concluded that the legislature must have meant to foreclose
any such duty. And it affirmed the district court’s refusal to give the
nondisclosure fraud jury instruction on this basis.
¶68 We disagree with the premise of court of appeals’ decision.
We do not read section 58-26a-602(1) to “occup[y] the field” in a
manner preempting the possibility of a common law duty of
disclosure. We read the statute to incorporate the common law of
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Opinion of the Court
fraud—and to import any duties arising out of the common law into
the statute.
¶69 The statute speaks of “acts, omissions, decisions, or conduct
that constitute fraud or intentional misrepresentations.” UTAH CODE
§ 58-26a-602(1). Fraud is not defined in the act. So we interpret the
statutory reference to “acts, omissions, decisions, or conduct that
constitute fraud” as an incorporation of the common law on these
issues. See Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (“When
the legislature ‘borrows terms of art in which are accumulated the
legal tradition and meaning of centuries of practice, it presumably
knows and adopts the cluster of ideas that were attached to each
borrowed word in the body of learning from which it was taken.’”
(quoting Morissette v. United States, 342 U.S. 246, 263(1952)).
¶70 That conclusion opens the door to the possibility that
Bradshaw owed a duty of disclosure to Reperex. Whether such a
duty attaches in these circumstances is a question for the common
law of fraud.
¶71 That question is a legal one. Yazd, 2006 UT 47, ¶ 13. It
depends on the “structure and dynamics of the relationship between
the parties.” Id. ¶ 15. At times the duty analysis is straightforward.
Certain relationships categorically give rise to duties of disclosure.
But in other cases the relevant “relationship” is defined by the nature
of the interaction between the parties, rather than an identifiable
legal relationship.5 In such cases, the duty analysis is fact-intensive.
¶72 The record before us does not paint a clear picture of the
relationship between Reperex and Bradshaw. We know that the
parties were not in privity. But it is possible that the details of the
transaction between the parties could give rise to a duty of
disclosure for Bradshaw. That question would turn on some
underlying questions of fact. To determine whether this is a
relationship sustaining a duty we would need to know precisely
what services Bradshaw performed, the content of all the
_____________________________________________________________
5 This court has previously stated that the existence of a duty
depends on a “multitude of life circumstances.” Yazd, 2006 UT 47,
¶ 16. This fuzzy standard does not provide much (if any)
predictability to the parties or transparency for the court. We
welcome briefing in future cases about how this standard might be
clarified in a manner that would make it more workable.
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Opinion of the Court
communications between the parties, and the extent to which
Reperex relied on Bradshaw to provide the information it needed.
¶73 In the briefs filed in this court Reperex and Bradshaw offer
very different versions of the events in question. For that reason we
are not in a position to resolve the duty question on the briefing and
the record before us. We therefore remand this issue to the court of
appeals with the instruction to either make a legal determination of
duty on the facts before it, or to reverse and remand to the district
court, where the facts giving rise to a duty could be established.
III
¶74 On Coldwell’s petition, we qualify the court of appeals’s
holding on the nonreliance clause in this case: Coldwell is liable for
any independent fraudulent representations but is immune from
liability for any actions it took as a pure conduit of information from
May’s, regardless of whether it knew that the information was
accurate. We remand for proceedings consistent with this standard.
And we affirm the court of appeals as to the expert testimony issue.
¶75 On Reperex’s cross-petition, we affirm the court of appeals
on the issues of privity and the writing exception. But we disagree
with the premise of its decision as to the nondisclosure fraud claim
and remand for a determination of whether a Bradshaw owed a duty
to disclose.
20