District Court, West Jordan Department The Honorable Bruce C.
Lubeck No. 140415183
D. Gilmore, Attorney for Appellant.
B. Parry and Joshua R. Dunyon, Attorneys for Appellee.
J. Frederic Voros Jr. authored this Opinion, in which Judges
Stephen L. Roth and Michele M. Christiansen concurred.
The principal question posed by this appeal concerns which
party prevailed at trial and thus can claim the benefit of a
contractual attorney fee provision. Express Recovery Services
Inc., assignee of All Pro Appliance Service Inc., sued Daniel
Paul Olson on a debt arising from an employment agreement
between Olson and All Pro. Olson counterclaimed seeking a
setoff (but no net damage award). Neither party proved its
claims at trial. The trial court awarded no attorney fees,
reasoning that neither party had prevailed. Olson contends on
appeal that he prevailed at trial because he achieved his
optimal outcome: zero recovery. We agree. We accordingly
vacate the trial court's order declining to award
attorney fees and remand the case for a determination of a
reasonable fee award.
All Pro hired Olson as an appliance service technician in
September 2011. The employment agreement contained a
liquidated damages provision requiring Olson to reimburse All
Pro for training costs if he was terminated within two years
after he completed his training. Within the two-year period,
All Pro and Olson parted company.
Hoping to recoup the training costs, All Pro assigned its
rights under the employment agreement to Express Recovery, a
debt collector. Express Recovery sued Olson for breach of
contract, seeking $10, 348.25 in damages for training costs
and other amounts allegedly owed. Olson counterclaimed for
breach of contract and unjust enrichment, seeking a setoff of
approximately $1, 600 for amounts allegedly owed. Olson did
not, however, seek a net recovery.
After a bench trial, the court ruled that Express Recovery
had failed to prove its breach of contract claim and that
Olson had failed to prove his counterclaims. Both parties
requested attorney fees under a provision in the employment
agreement entitling the prevailing party to attorney fees and
costs. The trial court denied attorney fees to both parties.
Olson appeals, seeking attorney fees incurred in the trial
court and on appeal.
AND STANDARDS OF REVIEW
Olson contends that the trial court abused its discretion
when it failed to name him as the prevailing party.
"'Whether attorney fees are recoverable in an action
is a question of law, which we review for
correctness.'" Anderson & Karrenberg v.
Warnick, 2012 UT App 275, ¶ 8, 289 P.3d 600
(quoting Valcarce v. Fitzgerald, 961 P.2d
305, 315 (Utah 1998) (plurality opinion)). We "review
the trial court's determination as to who was the
prevailing party under an abuse of discretion standard."
R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40
Olson's main contention on appeal is that the trial court
abused its discretion "when it failed to name [him] the
prevailing party and award him his reasonable costs and
attorney fees in accordance with the contract." Express
Recovery responds that the trial court "did not abuse