District Court, Silver Summit Department The Honorable Kara
Pettit No. 090500905
T. Farmer, Attorney for Appellant.
Merritt and Sandra Merritt, Appellees Pro Se.
Gregory K. Orme authored this Opinion, in which Judges
Stephen L. Roth and David N. Mortensen concurred.
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.
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., which performed flood-remediation work on the home.
Total Restoration was never paid for its services.
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.
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 lien able 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.
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.
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
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.
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. In actuality, the act envisions three
scenarios, the third of which is typified by this case.
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 ...