AL-IN Partners, LLC v. LifeVantage, 2021 UT 42 (Petersen, J.)
An independent distributor sued a wellness company for breach of contract, arguing that the company had waived, through oral statements and conduct, a provision that it later relied on to terminate the distributor’s contract. The company moved to dismiss on the basis that the contract had an antiwaiver provision and a requirement that any waiver be in writing. The district court denied the motion, and the company filed an interlocutory appeal. The Utah Supreme Court affirmed, holding:
- Parties to a contract may waive any provision of their agreement, including an antiwaiver provision or requirement of written waiver. The question is whether the non-breaching party intentionally relinquished the right to insist on a written waiver. Here, the distributor alleged sufficient facts on this point to overcome the motion to dismiss.
- OF NOTE (APPELLATE PROCEDURE): The distributor (appellee) did not file a brief or otherwise appear in the interlocutory appeal. Nonetheless, an appellee’s failure to file a brief does not result in an automatic default and reversal of the lower court. An appellant must still establish a prima facie showing of a plausible basis for reversal, which the company failed to do in this case.