(concurring in part and dissenting in part):
[ 23 I concur with the analysis in sections I and II but dissent from the majority's decision to award Robertson attorney fees incurred on appeal. Because Robertson did not receive attorney fees as the prevailing party below, I would not award it attorney fees on appeal.
{24 "An award of [attorney] fees on appeal requires both a fee award below and success in the appellate court." Holladay Towne Cir., LLC v. Brown Family Holdings, LC, 2008 UT App 420, ¶25, 198 P.3d 990 (citing Valcarce v. Fitzgerald, 961 P.2d 805, 319 (Utah 1998) ("[Wlhen a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal." (internal quotation marks omitted)), cert. granted, 207 P.8d 482 (Utah 2009). The determination of "[which party is the prevailing party" for purposes of awarding attorney fees is within "the sound discretion of the trial court" because "the trial court is in a better position [to determine] which party is the prevailing party" and requires the "flexibility to handle cireum-stances where both, or neither, parties may be considered to have prevailed." R.T. Niel-son Co. v. Cook, 2002 UT 11, 125, 40 P.3d 1119. Consequently, an appellate court's decision to award attorney fees on appeal relies upon the trial court's discretionary determination of which party was the prevailing party below. See generally Crank v. Utah Judicial Council, 2001 UT 8, § 44 n. 18, 20 P.3d 307 ("We find no basis for awarding any attorney fees on appeal at this time.... The question of entitlement to fees at the trial court level has not yet been determined. Thus, any appropriate award of attorney fees on appeal is dependent upon that determination and should be assessed by the district court on remand." (citing Valcaree, 961 P.2d at 819)).
25 Here, the majority concludes that "the district court did not exceed its discretion in simply ordering each party to bear its own fees" because "this case presents 'cireum-stances where both, or neither, parties may be considered to have prevailed"" Supra {16 (quoting R.T. Nielson Co., 2002 UT 11, 125, 40 P.3d 1119). Yet the majority then awards Robertson attorney fees on appeal, reasoning that "the district court could just as well have declared each party to have prevailed in defending against the other's breach of contract claims and awarded offsetting fees to both" parties. Supra 119. This reasoning relies on what the district court could have done and overlooks what the district court actually did in the exercise of its discretion. As a result, the majority simultaneously defers to the district court's discretion yet then substitutes its own judgment in place of the district court's discretionary de*1148termination of who prevailed. Unless the majority can conclude that the district court abused its discretion in determining that Robertson was the prevailing party below, it should not award Robertson attorney fees on appeal.
126 Accordingly, I respectfully dissent in part.