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Express Recovery Services Inc. v. Olson

Court of Appeals of Utah

April 27, 2017

Express Recovery Services Inc., Appellee,
v.
Daniel Paul Olson, Appellant.

         Third District Court, West Jordan Department The Honorable Bruce C. Lubeck No. 140415183

          Grant D. Gilmore, Attorney for Appellant.

          Edwin B. Parry and Joshua R. Dunyon, Attorneys for Appellee.

          Judge J. Frederic Voros Jr. authored this Opinion, in which Judges Stephen L. Roth and Michele M. Christiansen concurred.

          OPINION

          VOROS, Judge.

         ¶1 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.

         BACKGROUND

         ¶2 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.

         ¶3 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.

         ¶4 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.

         ISSUE AND STANDARDS OF REVIEW

         ¶5 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 P.3d 1119.

         ANALYSIS

         ¶6 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 ...


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