2017 UT App 162
THE UTAH COURT OF APPEALS
TOTAL RESTORATION INC.,
Appellant,
v.
VERNON MERRITT AND SANDRA MERRITT,
Appellees.
Opinion
No. 20160374-CA
Filed August 24, 2017
Third District Court, Silver Summit Department
The Honorable Kara Pettit
No. 090500905
Dana T. Farmer, Attorney for Appellant
Vernon Merritt and Sandra Merritt, Appellees Pro Se
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
STEPHEN L. ROTH and DAVID N. MORTENSEN concurred.1
ORME, Judge:
¶1 This case involves a mechanic’s lien that, while invalid,
was not wrongful. The lien claimant appeals the trial court’s
order that denied its request for attorney fees and awarded costs
to the homeowners. We affirm in part and reverse in part.
¶2 In 2008, the home of Vernon and Sandra Merritt was
damaged by flooding after a pipe in their sprinkler system burst.
The Merritts’ property manager contacted Total Restoration Inc.,
1. Judge Stephen L. Roth participated in this case as a member of
the Utah Court of Appeals. He retired from the court before this
decision issued.
Total Restoration v. Merritt
which performed flood-remediation work on the home. Total
Restoration was never paid for its services.
¶3 Total Restoration recorded a mechanic’s lien against the
Merritts’ home and eventually sued to foreclose. The Merritts
counterclaimed, alleging breach of contract, wrongful lien, and
abuse of lien right. The trial court held that Total Restoration’s
lien was valid. On a prior appeal, we reversed, concluding that
Total Restoration’s lien was invalid because “[t]he work Total
Restoration performed . . . amount[ed] to no more than flood-
remediation and minor repairs that [were] not lienable under the
mechanics’ lien statute.” Total Restoration, Inc. v. Merritt, 2014 UT
App 258, ¶ 13, 338 P.3d 836. We remanded so the trial court
could reconsider the Merritts’ counterclaims, which it had
dismissed as a result of its conclusion that Total Restoration’s
lien was valid. Id. ¶ 17.
¶4 On remand, in considering the Merritts’ wrongful lien
counterclaim, the trial court determined that the lien, while
invalid, was not wrongful. Specifically, the trial court concluded
that Total Restoration’s lien was plausible because it was
recorded before this court issued All Clean, Inc. v. Timberline
Properties, 2011 UT App 370, 264 P.3d 244, in which we
concluded that basic flood-remediation work is not lienable
under the mechanic’s lien statute. See id. ¶¶ 17–19. The trial court
declined to award Total Restoration its attorney fees and instead
awarded costs—but not attorney fees—to the Merritts under rule
34 of the Utah Rules of Appellate Procedure. Total Restoration
appeals.
¶5 Total Restoration raises two arguments on appeal. First,
Total Restoration contends that the trial court erred in its
application of the Wrongful Lien Act. “We review questions of
statutory interpretation for correctness, granting no deference to
the district court’s decision.” Carter v. University of Utah Med.
Center, 2006 UT 78, ¶ 8, 150 P.3d 467.
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Total Restoration v. Merritt
¶6 Second, Total Restoration argues that the trial court
erroneously awarded costs to the Merritts pursuant to rule 34 of
the Utah Rules of Appellate Procedure. “The interpretation of a
rule of procedure is a question of law that we review for
correctness.” Arbogast Family Trust v. River Crossings, LLC, 2010
UT 40, ¶ 10, 238 P.3d 1035 (citation and internal quotation marks
omitted).
¶7 Total Restoration argues that the Wrongful Lien Act
“permits a lien filer to recover attorney’s fees if the [challenged]
lien is not wrongful.” But the operative language of the attorney-
fee provision speaks in terms of validity rather than
wrongfulness. As the trial court correctly observed, the
Wrongful Lien Act provides that “[i]f the court determines that
the claim of lien is valid, the court shall dismiss the petition and
may award costs and reasonable attorney’s fees to the lien
claimant.” Utah Code Ann. § 38-9-205(5)(c) (LexisNexis 2014)
(emphasis added). Because recovering attorney fees requires a
lien that is valid, as opposed to one that is merely not wrongful,
and because we have already determined that Total
Restoration’s lien is invalid, see Total Restoration, Inc. v. Merritt,
2014 UT App 258, ¶ 17, 338 P.3d 836, Total Restoration does not
qualify for a discretionary award of attorney fees under the
Wrongful Lien Act.
¶8 Total Restoration’s argument assumes that the attorney-
fee provisions of the Wrongful Lien Act operate in binary
fashion, i.e., that one side or the other will be entitled to attorney
fees depending on whether or not the lien is wrongful.2 In
2. At least one of our prior decisions seems to reflect our
uncritical acceptance of the position advanced by the parties in
that case and our careless application there of Total Restoration’s
same assumption. In Bay Harbor Farm, LC v. Sumsion, 2014 UT
App 133, 329 P.3d 46, we reversed the trial court’s order
(continued…)
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Total Restoration v. Merritt
actuality, the act envisions three scenarios, the third of which is
typified by this case.
¶9 First, a lien may be valid and, necessarily, not wrongful.
In that event, the court may award fees to the lien claimant. See
Utah Code Ann. § 38-9-205(5)(c) (“If the court determines that
the claim of lien is valid, the court shall dismiss the petition and
may award costs and reasonable attorney’s fees to the lien
claimant.”).
¶10 Second, a lien may be wrongful, and—necessarily—
invalid. In that scenario, the petitioner is entitled to an award of
attorney fees. See id. § 38-9-205(5)(a) (“If, following a hearing, the
court determines that the recorded document is a wrongful lien,
the court shall issue an order declaring the wrongful lien void ab
initio, releasing the property from the lien, and awarding costs
and reasonable attorney fees to the petitioner.”).
¶11 Third, as in this case, a lien may be invalid but not
wrongful. In that event, there is no basis in the statute for an
award of fees to either side. The lien claimant is not entitled to
attorney fees because the lien was not valid. See id. § 38-9-
(…continued)
nullifying an attorney’s lien as wrongful and instructed that “the
district court ‘shall dismiss the petition and may award costs and
reasonable attorney’s fees to [the lien claimant.]’” Id. ¶ 16
(quoting Utah Code Ann. § 38-9-7(5)(c) (LexisNexis 2010)). In
retrospect, the authorization to consider a fee award was
premature, given that the validity of the lien had not yet been
determined. See id. ¶¶ 11, 13 n.3, 14–15. In the context of the
discussion that follows in the instant opinion, see infra ¶¶ 9–11, it
was not yet clear whether the lien at issue in Bay Harbor fell into
the first (valid and not wrongful) or third (invalid but not
wrongful) category.
20160374-CA 4 2017 UT App 162
Total Restoration v. Merritt
205(5)(c). The petitioner is not entitled to a fee award because the
lien was not wrongful. See id. § 38-9-205(5)(a). In the
circumstance of a lien that is invalid but not wrongful, each side
bears its own attorney fees. Thus, the trial court did not err in
refusing to consider an award to Total Restoration of its claimed
attorney fees.
¶12 Total Restoration also contends that the trial court
erroneously awarded the Merritts their costs incurred in the
prior appeal. Rule 34 of the Utah Rules of Appellate Procedure
instructs that “[a] party claiming costs shall, within 15 days after
the remittitur is filed with the clerk of the trial court, serve upon
the adverse party and file with the clerk of the trial court an
itemized and verified bill of costs.” Utah R. App. P. 34(d). Here,
the Merritts did not submit their bill of costs until close to ten
months after the remittitur was filed with the court clerk.
Accordingly, the Merritts were not eligible to receive an award
of their costs. See Price-Orem Inv. Co. v. Rollins, Brown & Gunnell,
Inc., 784 P.2d 475, 484 (Utah Ct. App. 1989) (declaring a party
ineligible to receive costs after filing the bill of costs close to five
months after the deadline prescribed by rule 34), overruled on
other grounds by Smith v. Fairfax Realty, Inc., 2003 UT 41, ¶ 23 n.7,
82 P.3d 1064. We therefore reverse the trial court’s award of costs
to the Merritts.
20160374-CA 5 2017 UT App 162