Krueger v. Seed Capital Investments - Breach Claims Affirmed

Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

April 16, 2026 Get Citation Alerts Download PDF Add Note

Krueger v. Seed Capital Investments

Court of Appeals of Utah

• Citations: 2026 UT App 58

• Docket Number: Case No. 20240011-CA

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (79.1K)

• PDF

Combined Opinion

2026 UT App 58

THE UTAH COURT OF APPEALS

CHERISH KRUEGER AND KYLE THOMPSON,
Appellants,
v.
SEED CAPITAL INVESTMENTS LLC, WASATCH REALTY LLC,
HEIDI STAPEL, AND DAVID STAPEL,
Appellees.

Opinion
No. 20240011-CA
Filed April 16, 2026

Third District Court, West Jordan Department
The Honorable Matthew Bates
No. 220900527

LaShel Shaw, Attorney for Appellants
Thomas J. Burns, Attorney for Appellees

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

OLIVER, Judge:

¶1 Cherish Krueger and Kyle Thompson (the Kruegers)1
entered into a lease agreement with Seed Capital Investments
LLC (Seed Capital) that provided the Kruegers with the option to
purchase the leased property (the Property). The Kruegers were
unable to close on the purchase of the Property prior to the
agreement’s deadline. When Seed Capital refused to complete the
sale after the deadline had passed, the Kruegers sued Seed
Capital, Wasatch Realty LLC, Heidi Stapel, and David Stapel
(collectively, Appellees). The Kruegers alleged multiple causes of

1. Both appellants and appellees referred to Krueger and Thompson collectively as “the Kruegers” in their briefing, so we do likewise. Krueger v. Seed Capital

action, including claims for breach of contract against Seed
Capital and breach of fiduciary duty against Heidi and David. 2
The district court granted summary judgment to Appellees on the
breach of fiduciary duty claim, and after a bench trial, the district
court concluded the Kruegers had also failed to prove their breach
of contract claim.

¶2 On appeal, the Kruegers challenge both rulings. They
assert the evidence attached to Appellees’ motion for summary
judgment created a genuine dispute of material fact. And they
argue Seed Capital breached the contract by repudiating the
parties’ agreement. We disagree and affirm the district court.

BACKGROUND 3

The Lease Agreement with Option for Purchase

¶3 In May 2020, the Kruegers engaged Heidi—a licensed real
estate broker and the owner and principal broker of Wasatch
Realty LLC—as a real estate agent to assist them in purchasing a
house. The Kruegers located the Property and wished to purchase
it. Heidi assisted them in drafting a Real Estate Purchase Contract

1. Because Heidi Stapel and David Stapel share a surname, we
   refer to them by their given names, with no disrespect intended
   by the apparent informality.

2. We recite the facts pertaining to Appellees’ motion for summary
   judgment “in the light most favorable to the non-moving party.”
   Magleby Cataxinos & Greenwood, PC v. Schnibbe, 2024 UT 43, n.1,
   562 P.3d 679 (cleaned up). As for the facts related to the bench
   trial, “we recite the facts from the record in the light most
   favorable to the findings of the trial court and present conflicting
   evidence only as necessary to understand issues raised on
   appeal.” Hillam v. Hillam, 2024 UT App 102, n.2, 554 P.3d 1137
   (cleaned up).

20240011-CA 2 2026 UT App 58
Krueger v. Seed Capital

(the REPC), and the seller accepted the Kruegers’ $375,000 offer
on the Property.

¶4 Unfortunately, the Kruegers struggled to obtain traditional
mortgage financing prior to the deadline under the REPC.
Hearing of their struggles, Heidi offered to finance the Kruegers’
purchase of the Property, stating in a text that she and her
husband, David, would provide the Kruegers with a loan. The
Kruegers accepted Heidi’s offer.

¶5 A few days before closing, Heidi learned from her lender
that she would be unable to obtain the home equity line of credit
with which she intended to finance the purchase of the Property
unless she was purchasing it herself. Heidi contacted the Kruegers
and explained the situation. As a solution, Heidi offered to
purchase the Property and then lease it back to the Kruegers. The
Kruegers agreed, executing an addendum to the REPC that
substituted David’s company, Seed Capital, as the buyer for the
Property.

¶6 The Kruegers and Seed Capital then executed a lease
agreement, which included an option for the Kruegers to
purchase the Property by February 15, 2021 (the Option
Agreement). The Option Agreement provided that the Kruegers
would pay Seed Capital $20,000 in option money, $10,650 in
interest fees, and $3,043 per month in rent, with a portion of the
monthly rent treated as additional option money. The purchase
price for the Property was set at $375,000, with all option money
credited against the purchase price at closing. Seed Capital then
purchased the Property. The Kruegers moved in shortly thereafter
and began paying rent to Seed Capital.

The Amended Option Agreement

¶7 While the Kruegers exercised their option immediately by
providing Seed Capital with the requisite notice of intent to
purchase the Property, they ultimately did not purchase the

20240011-CA 3 2026 UT App 58
Krueger v. Seed Capital

Property by February 15, 2021. Pursuant to the Option
Agreement, the Kruegers’ lease then “converted to a month-to-
month tenancy.”

¶8 The Kruegers subsequently retained an attorney and
negotiated an addendum to the Option Agreement (the Amended
Option Agreement) that extended their lease and the time to
purchase the Property to November 30, 2021, for a purchase price
of $445,000. The Amended Option Agreement “provided a grace
period in the event that [the Kruegers’] lenders or appraisers did
not complete their tasks” by November 30, but it stated, “In no
event shall the closing be extended beyond December 6, 2021 or
the [Amended Option Agreement] shall terminate and [Seed
Capital] shall have the sole remedy of taking possession of the
Property and retaining the [$20,000 option] [m]oney as liquidated
damages.”

¶9 The Kruegers obtained financing to purchase the Property,
but their lender “mistakenly prepared loan documents for
$435,000, rather than the [required] $445,000.” The Kruegers
contacted Heidi and asked if they could close for $435,000 and pay
the additional $10,000 outside of closing. Heidi texted in response,
“Hey, we can’t do it. . . . [B]ecause Dave and I are both [real estate]
agents we can’t have dual contracts. It’s illegal for us.” Heidi also
texted that she “talk[ed] to the general real [estate] attorney with
the board of realtors and they said that there’s no way to legally
. . . take money outside of the closing.”

¶10 On December 4, 2021, the Kruegers texted Heidi,

They are fixing everything. Trying to have docs to
title Monday morning because [we] leave the
country Monday morning for a week. If they aren’t
quick []enough[,] [s]igning may not be done till
Monday the 13th with us being out of the country
till Monday on vacation. I am having them rush
everything tho[ugh].

20240011-CA 4 2026 UT App 58
Krueger v. Seed Capital

On December 6, the Kruegers left the country on vacation and
“[n]either they nor Seed Capital appeared at their respective title
companies to close the sale.” The sale was not closed by the end
of the day on December 6, 2021, as required by the Amended
Option Agreement.

The Lawsuits

¶11 On December 12, 2021, David posted a “No Cause Notice
to Vacate” on the Property’s front door. It demanded the Kruegers
vacate the Property “no later than January 31, 2022,” and
described the penalties for unlawful detainer of the Property.
Several days later, the Kruegers emailed Heidi stating they signed
the closing documents and asking Heidi to complete the sale of
the Property. Seed Capital did not complete the sale, and the
Kruegers filed suit against Appellees in January 2022.

¶12 The Kruegers asserted multiple causes of action, including,
as relevant to this appeal, breach of fiduciary duty and breach of
contract. The Kruegers alleged that Heidi and David owed a
fiduciary duty to them and breached that duty in a variety of
ways. The Kruegers also alleged that Seed Capital anticipatorily
breached the Amended Option Agreement by refusing to
perform.

¶13 Shortly thereafter, Seed Capital filed an unlawful detainer
action against the Kruegers because the Kruegers did not vacate
the Property by the January 31 deadline.

The Motion for Partial Summary Judgment

¶14 Appellees moved for partial summary judgment (the
Motion) on several of the Kruegers’ claims, including breach of
fiduciary duty. Appellees argued that even assuming Heidi and
David owed the Kruegers a fiduciary duty and assuming the duty
was breached, the Kruegers could not show “evidence of damage
proximately caused by the assumed breach” for three reasons.

20240011-CA 5 2026 UT App 58
Krueger v. Seed Capital

First, the Kruegers’ transfer of their purchase interest to Seed
Capital did not damage the Kruegers because “their effort to
purchase the Property failed prior to them agreeing to substitute
Seed [Capital].” Second, under the Option Agreement, the
Kruegers needed to both signal their intent to exercise their
option, which they did, and then obtain financing and close on the
Property prior to February 15, 2021, which they did not do. And
third, the Kruegers hired counsel to negotiate the terms of the
Amended Option Agreement, which “retained multiple terms of
the Option [Agreement].” Because the Kruegers sought to enforce
the Amended Option Agreement, they eliminated “any avenue”
to “suggest that they were damaged by some alleged fiduciary
breach.”

¶15 The Kruegers filed a memorandum in opposition (the
Opposition) and disputed many of Appellees’ statements of fact.
But the Opposition did not include any evidence of damages
caused by Heidi and David’s alleged breach of fiduciary duty.
Nor did the Opposition include any “separate statement of
additional material[] facts in dispute.” Utah R. Civ. P. 56(a)(2). In
“purport[ing] to dispute most of the facts,” the Kruegers “often
did not provide any citations.” While the Kruegers occasionally
cited documents attached to the Motion, they more frequently
cited their own complaint or described purported pieces of
evidence that would dispute a fact. Yet none of this purported
evidence was attached to the Opposition; indeed, the Opposition
“did not have any evidence or anything attached to it
whatsoever.”

¶16 After a hearing on the Motion, the court concluded that the
Kruegers had “failed to properly dispute the material statements
of fact that were provided in the [Motion].” The court concluded
the Kruegers had an obligation “to come forth with some evidence
to show that they had been damaged” and that Heidi and David’s
breach of fiduciary duty “was the proximate cause of that
damage” but had failed to do so. With the material facts thus

20240011-CA 6 2026 UT App 58
Krueger v. Seed Capital

undisputed, the court granted summary judgment to Appellees
on the Kruegers’ claim for breach of fiduciary duty.

The Bench Trial

¶17 The Kruegers’ remaining claims, including their breach of
contract claim, were subsequently tried together with Seed
Capital’s unlawful detainer action in a consolidated bench trial.
The court found the Kruegers did not tender payment for the
Property to Seed Capital by the December 6 deadline and “did not
sign any of the documents necessary to settle and close the sale of
the [Property] until December 13.” As to Heidi’s texts about not
taking money outside closing, the court found that “[s]he was
merely explaining that she believed that it was illegal for a real
estate agent to sign closing documents that listed a transaction
price that differed from the price actually paid.”

¶18 The district court concluded the Kruegers had “failed to
prove a breach of contract claim” because Heidi’s “texts were not
a repudiation” of the Amended Option Agreement and because
the Kruegers “did not perform their obligations under the
[Amended Option Agreement], or at least tender performance.”
The court also concluded that the Kruegers were liable for
unlawful detainer because their tenancy had expired, a notice
terminating the lease and demanding they quit the Property had
been posted, and they had failed to vacate. The court then
awarded judgment in favor of Appellees.

ISSUES AND STANDARDS OF REVIEW

¶19 The Kruegers first assert the district court erred in granting
summary judgment on their breach of fiduciary duty claim. “We
review a district court’s grant of summary judgment for
correctness, giving no deference to the district court’s legal
conclusions.” Musselman v. Keele, 2024 UT App 143, ¶ 12, 559 P.3d
64 (cleaned up).

20240011-CA 7 2026 UT App 58
Krueger v. Seed Capital

¶20 The Kruegers next assert the district court erred in
concluding Seed Capital did not anticipatorily repudiate the
Amended Option Agreement. A district court’s conclusion as to
whether a party has anticipatorily repudiated a contract is a
mixed question of law and fact. See Hardy v. Montgomery, 2018 UT
App 133, ¶ 10, 428 P.3d 78. We will not set aside the district court’s
findings of fact “unless clearly erroneous,” and we review the
district court’s “conclusions of law for correctness.” Id. (cleaned
up).

ANALYSIS

I. Fiduciary Duty

¶21 “Breach of fiduciary duty claims generally require proof of
four elements: the existence of a fiduciary relationship . . . ; breach
of the fiduciary duty; causation, both actual and proximate; and
damages.” Gables at Sterling Vill. Homeowners Ass’n, Inc. v.
Castlewood-Sterling Vill. I, LLC, 2018 UT 04, ¶ 52, 417 P.3d 95. The
Kruegers contend that the district court erred in granting
summary judgment to Appellees on this claim because the
evidence showed there were disputed material facts.

¶22 Summary judgment is appropriate when “the moving
party shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of
law.” Utah R. Civ. P. 56(a). But on an issue where the moving
party will not bear the burden of proof at trial, a burden-shift
occurs:

On claims for which it will not carry the burden of
proof at trial, the moving party may demonstrate its
entitlement to judgment as a matter of law by
pointing to an absence of evidence establishing one
or more of the elements of the plaintiff’s claim. Once
the moving party does so, to defeat summary

20240011-CA 8 2026 UT App 58
Krueger v. Seed Capital

judgment the non-moving party, who bears the
burden of proof at trial, must produce affirmative
evidence, beyond mere reliance on the pleadings,
showing that there is a genuine issue for trial.

Pioneer Home Owners Ass’n v. TaxHawk Inc., 2019 UT App 213,
¶ 30, 457 P.3d 393 (cleaned up).

¶23 Here, the Kruegers bore the ultimate burden of proving
their breach of fiduciary duty claim. In the Motion, Appellees
argued that, even assuming Heidi and David owed the Kruegers
a fiduciary duty and had breached that duty, the Kruegers “ha[d]
no evidence that they suffered any damage as a result of the
alleged breach.” At that point, the burden shifted to the Kruegers
to “set forth specific facts” demonstrating “a genuine issue for
trial” on causation and damages. Salo v. Tyler, 2018 UT 7, ¶ 25, 417
P.3d 581 (cleaned up). The Kruegers failed to do so.

¶24 On summary judgment, “the fact statements of the moving
and opposing memoranda constitute the constellation of facts to
be considered by the district court.” Warrick v. Property Rsrv. Inc.,
2018 UT App 197, ¶ 9, 437 P.3d 439; see also Utah R. Civ. P. 56(c)(3).
“Those same facts are to be considered by the reviewing court on
appeal.” Warrick, 2018 UT App 197, ¶ 9. “And while a nonmovant
has the ability to controvert a movant’s factual statement by
presenting to the district court contrary inferences to be made
from the objective facts, to do so properly the nonmovant is
required to specifically state the inference to be made.” Jessup v.
Five Star Franchising LLC, 2022 UT App 86, ¶ 30, 515 P.3d 466
(cleaned up).

¶25 Here, as noted by the district court, the Opposition “did
not properly dispute any of the material facts asserted by
[Appellees].” And it did not include “a separate statement of
additional material[] facts in dispute” supported by “citing to
particular parts of materials in the record.” Utah R. Civ. P.
56(a)(2), (c)(1)(A). In the argument section of the Opposition, the

20240011-CA 9 2026 UT App 58
Krueger v. Seed Capital

Kruegers included a single line identifying their damages as
“earnest money, down payments[,] and over one hundred
thousand dollars in direct amortized payments.” But even if we
were to credit this as a statement of fact, it was not accompanied
by a citation to any evidence. Nor did the Kruegers make any
attempt to explain the causal relationship between these alleged
damages and any breach of a fiduciary duty.

¶26 Despite this total failure to cite any evidence regarding
causation and damages, the Kruegers allege that summary
judgment was inappropriate because “the evidence attached to
[Appellees’] own motion showed the Kruegers were injured by
the Stapels’ self-dealing,” thus creating a material factual dispute.
While it is true that summary judgment may not be entered
“[w]here the moving affidavit shows on its face that there is a
material issue of fact,” Frisbee v. K & K Constr. Co., 676 P.2d 387,
390 (Utah 1984), the Kruegers have “failed to identify any instance
where [Appellees’] moving affidavit shows on its face that there is
a material issue of fact that would preclude summary judgment,”
Koerber v. Mismash, 2015 UT App 237, ¶ 24, 359 P.3d 701 (emphasis
added) (cleaned up). Here, on its face, Appellees’ evidence shows
that the Kruegers contracted to pay various amounts of money in
exchange for certain benefits—such as the right to occupy the
Property and obtain the option to purchase it. If the Kruegers
wished the district court to draw other inferences from Appellees’
evidence, they were “required to specifically state the inference to
be made.” Jessup, 2022 UT App 86, ¶ 30 (cleaned up). They did not
do so.

¶27 For these reasons, we affirm the district court’s grant of
summary judgment on the Kruegers’ breach of fiduciary duty
claim.

II. Repudiation of the Amended Option Agreement

¶28 The Kruegers next allege the district court erred in
concluding that Seed Capital did not repudiate the Amended

20240011-CA 10 2026 UT App 58
Krueger v. Seed Capital

Option Agreement. They argue that by refusing to accept a
cashier’s check for part of the purchase price, Seed Capital
repudiated the contract. We disagree.

¶29 As a general rule, anticipatory repudiation occurs “when a
party to an executory contract manifests a positive and
unequivocal intent not to render performance when the time fixed
for performance is due.” Hardy v. Montgomery, 2018 UT App 133,
¶ 17, 428 P.3d 78 (cleaned up). “In most cases, in order for
anticipatory breach to occur, the repudiating party must have
communicated, by word or conduct, unequivocally,
unconditionally, and positively, its intention not to perform.”
Jessup v. Five Star Franchising LLC, 2022 UT App 86, ¶ 36, 515 P.3d
466 (cleaned up). In this context, the import of a party’s
communication of its intention not to perform is judged
objectively. For example, this court has previously cited the
Restatement (Second) of Contracts for the proposition that “[i]n
order to constitute a repudiation, a party’s language must be
sufficiently positive to be reasonably interpreted to mean that the
party will not or cannot perform.” Restatement (Second) of
Contracts § 250 cmt. b (A.L.I. 1981) (emphasis added); see also
Jessup, 2022 UT App 86, ¶ 36 (citing Restatement (Second) of
Contracts § 250 cmt. b); Scott v. Majors, 1999 UT App 139, ¶ 15, 980
P.2d 214 (same).

¶30 Here, the Kruegers assert the district court erroneously
concluded that Heidi’s text messages—stating she could not
accept $10,000 outside of closing—did not amount to a
repudiation of the Amended Option Agreement. 4 They argue that
“[n]othing in the parties’ contracts precluded the Kruegers from

1. On the record before us, it is unclear whether Heidi had the authority to repudiate on behalf of Seed Capital. But since neither Heidi nor Seed Capital argues to the contrary, we assume, without deciding, that Heidi was properly acting on Seed Capital’s behalf.

20240011-CA 11 2026 UT App 58
Krueger v. Seed Capital

paying a portion of the Property’s price directly to [Seed Capital]
by cashier’s check” and that by refusing to accept a cashier’s
check, Seed Capital “wrongfully state[d] that [it would] not
perform at all unless the other party consent[ed] to a modification
of the contract.” (Quoting Scott, 1999 UT App 139, ¶ 15 (emphasis
omitted).)

¶31 The Amended Option Agreement provided that “any
monies required to be paid . . . (except for the proceeds of any new
loan)” could be delivered “to the other party, or to the
escrow/closing office, in the form of cash, wire transfer, cashier’s
check, or other form acceptable to the escrow/closing office.”
However, there is no language in the Amended Option
Agreement indicating that such other monies were permitted to
be paid outside of closing. At trial, Heidi testified she had
previously attended closings where a cashier’s check was used to
pay for part of the purchase price, but it was always reflected in
the associated documents. Heidi also testified this was not what
the Kruegers had proposed; they had instead offered to provide
the $10,000 outside of closing.

¶32 The district court found Heidi’s testimony credible and
found that the Kruegers “asked [Heidi] whether they could close
for $435,000 and give her the additional $10,000 outside of
closing.” The district court further found that Heidi’s text
messages were “merely explaining that she believed that it was
illegal for a real estate agent to sign closing documents that listed
a transaction price that differed from the price actually paid.”
Based on these factual findings, the court concluded Heidi’s texts
“were not a repudiation” of the Amended Option Agreement. 5

1. Although the district court categorized this conclusion as a finding of fact, “an ostensible finding of fact that is actually a conclusion of law will be treated as a conclusion of law.” Brown v. (continued…)

20240011-CA 12 2026 UT App 58
Krueger v. Seed Capital

¶33 As a reviewing court, we will only disturb the district
court’s factual findings if they are “clearly erroneous”—that is, “if
they are in conflict with the clear weight of the evidence, or if this
court has a definite and firm conviction that a mistake has been
made.” Henshaw v. Henshaw, 2012 UT App 56, ¶ 10, 271 P.3d 837
(cleaned up). Here, the district court reviewed Heidi’s texts,
“assessed [her] demeanor[,] and considered [her] . . . testimony in
light of the proceedings as a whole.” Staszkiewicz v. Thomas, 2024
UT App 183, ¶ 20, 562 P.3d 723, cert. denied, 568 P.3d 260 (Utah
2025). The district court’s factual findings regarding Heidi’s texts
were not “in conflict with the clear weight of the evidence,” nor
are we convinced a mistake was made. Henshaw, 2012 UT App 56,
¶ 10. Thus, we conclude the court’s factual findings were not
clearly erroneous.

¶34 We next review the district court’s legal conclusion—that
Heidi’s texts did not amount to a repudiation of the Amended
Option Agreement—for correctness. See Hardy v. Montgomery,
2018 UT App 133, ¶ 10, 428 P.3d 78. And here, we cannot say
Heidi’s refusal to take payment for an amount not reflected in the
closing documents—even if the method of payment was
otherwise permitted by the Amended Option Agreement—could
be “reasonably interpreted” as an “unequivocal” or
“unconditional” statement that Seed Capital would not or could
not perform under the contract. Id.

¶35 Heidi’s texts lacked the explicit, unequivocal nature of a
repudiation. 6 See supra ¶ 29. And while a statement of intention

City of Fruit Heights, 2023 UT App 39, ¶ 19, 529 P.3d 361 (cleaned
up).

1. There are times when “a party’s conduct is not sufficiently positive to amount to a repudiation under the usual standard, but it is enough to give the other party reasonable grounds to believe (continued…)

20240011-CA 13 2026 UT App 58
Krueger v. Seed Capital

“not [to] perform at all unless the other party consents to a
modification of the contract” can indeed constitute a repudiation,
Scott v. Majors, 1999 UT App 139, ¶ 15, 980 P.2d 214 (cleaned up),
Heidi’s refusal to accept payment outside of closing cannot
reasonably be interpreted as demanding modification of the
Amended Option Agreement.

¶36 Accordingly, we agree with the district court that the
Kruegers did not prove Seed Capital repudiated the Amended
Option Agreement.

CONCLUSION

¶37 The district court did not err when it granted summary
judgment to Appellees on the Kruegers’ claim of breach of
fiduciary duty, nor did it err in concluding the Kruegers had not
proved their breach of contract claim at trial. We thus affirm the
district court’s rulings.

that it will breach by nonperformance.” Jessup v. Five Star
Franchising LLC, 2022 UT App 86, ¶ 37, 515 P.3d 466 (cleaned up).
In such cases, the other party may demand “adequate assurance
of performance.” Id. Failure to provide adequate assurance may
then constitute repudiation of the contract. Id. Here, the Kruegers
have not argued that they made a demand for adequate
assurance. Therefore, we do not consider whether they had
reasonable grounds to do so or whether Heidi provided adequate
assurance of performance.

20240011-CA 14 2026 UT App 58