concurring in part and dissenting in part:
I concur in the majority opinion with the exception of section two. I write separately (1) to express my concern with the majority’s determination that the term “expenses,” as used in Utah Code Ann. § 13-7-4(d) (1992), includes attorney fees, and (2) to challenge the majority’s creation of a “frivolousness” standard of review for the award of expenses under section 13-7-4(d).
In Utah, attorney fees are awardable only when authorized by statute or contract. Baldwin v. Burton, 850 P.2d 1188, 1198 (Utah 1993); Dixie State Bank v. Bracken, 764 P.2d 985, 988 (Utah 1988); Turtle Management, Inc. v. Haggis Management, Inc., 645 P.2d 667, 671 (Utah 1982); see also 20 *263Am.Jur.2d Costs § 72 (1965) (noting that at common law there is no right to recover attorney fees .from opponent absent statute, rule, or express agreement between parties). In the case at bar, the statute states that a prevailing defendant “may be awarded all actual and necessary expenses incurred in defending such action, as determined and approved by the court having jurisdiction.” Utah Code Ann. § 13-7-4(d) (1992) (emphasis added). Because the statute does not specifically provide for attorney fees and the majority opinion has not adequately demonstrated why we should abandon the general view that expenses do not include attorney fees and broadly interpret the phrase “all actual and necessary expenses” to encompass them, I would not interpret section 13-7-4(d) to include attorney fees.
First, such an interpretation marks a clear break with well-settled precedent in which this court has affirmed the award of attorney fees only when such award has been based on specific words providing for them in either the statute or the contract in question. See, e.g., Baldwin, 850 P.2d at 1198-99 (awarding attorney fees under Utah Code Ann. § 78-27-56 (1992), which provides that in civil actions, “the court shall award reasonable attorney’s fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought in good faith” (emphasis added)); AAA Fencing Co. v. Raintree Dev. & Energy Co., 714 P.2d 289, 292-93 (Utah 1986) (awarding attorney fees under Utah Code Ann. § 38-1-18 (1988), which provides for the award of “a reasonable attorneys’ fee” to the successful party in an action to enforce a mechanic’s hen); Petty Inv. Co. v. Miller, 576 P.2d 883, 884 (Utah 1978) (same); Palombi v. D & C Builders, 22 Utah 2d 297, 300-01, 452 P.2d 325, 327-28 (1969) (same); Dixie, 764 P.2d at 988 (awarding attorney fees “only in accordance with the terms of the contract”); Trayner v. Cushing, 688 P.2d 856, 858 (Utah 1984) (same); L & M Corp. v. Loader, 688 P.2d 448, 450 (Utah 1984) (same); Turtle Management, 645 P.2d at 671 (same); Stubbs v. Hemmert, 567 P.2d 168, 171 (Utah 1977) (same). Moreover, we have consistently refused to affirm attorney fee awards to any extent greater than the parties have expressly provided for. See, e.g., Cottonwood Mall Co. v. Sine, 830 P.2d 266, 268-70 (Utah 1992) (limiting attorney fees awarded to three kinds of legal work specifically provided for in lease); Utah Farm Prod. Credit Ass’n v. Cox, 627 P.2d 62, 66 (Utah 1981) (distinguishing between fees which would be allowable under contract and those which would not); Kidman v. White, 14 Utah 2d 142, 144, 378 P.2d 898, 899 (1963) (disallowing attorney fees on basis of no express provision for such in contract).
Second, absent specific statutory language, we have not read the use of terms similar to expenses, such as “costs,” to include an award of attorney fees. See, e.g., Wallis v. Thomas, 632 P.2d 39, 43 (Utah 1981) (awarding costs to plaintiff, but remanding for determination of attorney fees); Cluff v. Culmer, 556 P.2d 498, 499 (Utah 1976) (holding attorney fees not allowable as costs); Alexander Dawson, Inc. v. Hydroponics, Inc., 535 P.2d 1251, 1251 (Utah 1975) (same); see also Tholen v. Sandy City, 849 P.2d 592, 595-96 (Utah Ct.App.) (holding that phrase “[cjosts of collection as approved by the governing body or required by law” in Utah Code Ann. § 17A-3-322 (1991) does not include award of attorney fees), cert. denied, 860 P.2d 943 (Utah 1993); accord Hicks v. Lloyd’s Gen. Ins. Agency, Inc., 763 P.2d 85, 86 (Okla.1988); Lanes v. O’Brien, 746 P.2d 1366, 1374 (Colo.Ct.App.1987). It follows that we should likewise interpret “expenses” to not include attorney fees. See 20 Am. Jur.2d Costs § 72 (1965) (“The term ‘costs’ or ‘expenses’ as used in a statute is not understood ordinarily to include attorneys’ fees.”). This is especially true in light of the fact that the legislature has time and time again used the term “attorney fees” to expressly authorize such an award and has also explicitly distinguished attorney fees from other costs and expenses of litigation. See, e.g., Utah Code Ann. § 7-15-l(3)(c) (Supp. 1993) (person issuing bad check is liable for “all costs of collection, including all court costs and reasonable attorneys’ fees”); Utah Code Ann. § 13-11-17.5 (1992) (specifically providing for attorney fees to prevailing enforcing authority under Utah Consumer Sales Practices Act); Utah Code Ann. § 38-*2641-17 (1988) (subcontractor enforcing mechanic’s hen shall have costs awarded “including ... reasonable attorney’s fee”); Utah Code Ann. § 57-1-32 (1994) (specifically providing for attorney fees in action to recover balance due on obligation for which trust deed given as security); Utah Code Ann. § 76-10-1605(8) (Supp.1993) (allowing recovery of “reasonable expenses incurred because of the defense against [a racketeering claim], including a reasonable attorney’s fee ” (emphasis added)); Utah Code Ann. § 78-11-10 (1992) (specifically providing for counsel fees to prevailing party as allowed by court in action brought against law enforcement officer); Utah Code Ann. § 78-27-56(1) (1992) (when action is without merit and brought in bad faith, “court shall award reasonable attorney’s fees to a prevailing party”); Utah Code Ann. § 78-27-56.5 (1992) (specifically providing for attorney fees at court’s discretion in civil action when written contract so provides); Utah Code Ann. § 78-34-16 (1992) (specifically affording full reimbursement to condemnee “for all reasonable and necessary expenses actually incurred ... including attorneys fees ” (emphasis added)); Utah Code Ann. § 78-34-19(2) (1992) (specifically allowing for “all reasonable and necessary expenses actually incurred by the con-demnee including attorney fees ” (emphasis added)). In view of the Utah legislature’s practice of specifically using the term “attorney fees” when such an award is authorized, the lack of the express term “attorney fees” within section 13-7-4(d) is dispositive that the legislature did not intend an award of attorney fees under that section.
Third, Utah decisions have consistently treated “expenses” and “attorney fees” as distinct. This court has previously held:
It is undoubtedly true that an attorney, by virtue of his employment, has implied authority to incur such expenses as may be reasonable, proper, and necessary to the conduct of his client’s business; and if the attorney advances money for such costs, he is entitled to be reimbursed therefor, separately and apart from his fee for services.
Skeen n Peterson, 113 Utah 483, 494, 196 P.2d 708, 713 (1948) (emphasis added); see also Cabrera v. Cottrell, 694 P.2d 622, 624 (Utah 1985) (refusing to allow an award of attorney fees or expenses); Howe v. Professional Manivest, Inc., 829 P.2d 160, 165 (Utah Ct.App.) (concluding that “[Utah Rule of Civil Procedure] 54(d)(2) does not apply to expenses or attorney fees” (emphasis added)), cert. denied, 843 P.2d 1042 (Utah 1992).
The majority reasons that if attorney fees are not included, the available award of expenses would be limited to costs of a mere ten dollars and that would be inconsistent with the legislative history. However, either now or in the future, other recoverable expenses may be incurred in bringing an action under the act. Rather than strain the meaning of “expenses” to include attorney fees, it seems better policy to award attorney fees only when so specified by the legislature, court rule, or private agreement.
Lastly, to rule that courts can award attorney fees when not specifically authorized by statute, rule, or contract would allow for the award of attorney fees whenever a statute or contract provides for one side to pay expenses, even when such attorney fees were not contemplated. The majority opinion sets a dangerous precedent in this regard. Therefore, I do not join in the majority’s opinion that the term “expenses” as used in section 13-7-4(d) includes attorney fees, but would hold that because that section does not specifically provide for an award of attorney fees, such award was improper here. For the reasons stated above, I concur in the majority’s determination that the trial court improperly awarded attorney fees to defendant Newspaper Agency Corporation.
However, I dissent from the majority’s opinion that court costs are likewise not awardable. Utah Code' Ann. § 13 — 7—4(d) (1992) states:
Any business establishment or place of public accommodation or enterprises regulated by the state charged with maintaining a public nuisance in violation of this act, which is determined or found not to be in violation of this act, may be awarded all actual and necessary expenses incurred in defending such action, as determined and approved by the court having jurisdiction of the matter.
*265Thus, under the plain language of this section,1 the decision to award expenses rests with the discretion of the trial court. Expenses related to defending a cause of action clearly include court costs. See, e.g., Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1098 (5th Cir.1982) (holding that “expenses” includes costs), rev’d on other grounds, International Woodworkers of Am. v. Champion Int’l Corp., 790 F.2d 1174 (5th Cir.1986); In re Olliff, 258 Ga. 157, 366 S.E.2d 289, 289 (1988) (holding that “expenses” refers to “costs”); Head v. Savage, Minn., 255 N.W.2d 32, 38 (Minn.1977) (holding that “costs” and “expenses” are to considerable degree synonymous). Because the statute uses the permissive term “may,” the trial court has considerable discretion is determining which expenses are “actual and necessary.” Cf. Canyon Country Store v. Bracey, 781 P.2d 414, 420 (Utah 1989) (holding that use of word “may” in Utah Rule of Civil Procedure 49 indicates grant of discretion to trial court); Nelson v. Trujillo, 657 P.2d 730, 731 (Utah 1982) (applying same analysis to Utah Rule of Civil Procedure 59(a)(6)); accord Boyle v. National Union Fire Ins. Co., 866 P.2d 595, 598 (Utah Ct.App.1993). Accordingly, this court should review the trial court’s award of court costs for an abuse of discretion, not under a judicially legislated “frivolousness” standard. See Canyon Country Store, 781 P.2d at 420; Nelson, 657 P.2d at 731. Since the ten dollar filing fee awarded here was plainly essential to the defense of the law suit, it cannot be said that the award of such costs constituted an abuse of discretion. Therefore, I would affirm the award of the court costs in this case.
HOWE, J., concurs in the concurring and dissenting opinion of RUSSON, J.. The majority asserts that the language of section 13-7-4(d) is ambiguous as justification for launching into an unnecessary and questionable reading of that section's legislative history. I see nothing ambiguous in the language “[ajny business ... which is found not to be in violation of this act, may be awarded all actual and necessary expenses incurred in defending such action, as determined ... by the court having jurisdiction of the matter.” Utah Code Arm. § 13-7-4(d) (1992) (emphasis added).
Because the language of that section is plain and unambiguous, it is improper to “look beyond the same to divine legislative intent." Brinkerhoff v. Forsyth, 779 P.2d 685, 686 (Utah 1989); accord Allisen v. American Legion Post No. 134, 763 P.2d 806, 809 (Utah 1988).