Jordan Const v. Fed Nat Mort , 2017 UT 28 ( 2017 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 28IN THE
SUPREME COURT OF THE STATE OF UTAH
JORDAN CONSTRUCTION, INC.,
Appellant,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Appellee.
No. 20160474
Filed May 22, 2017
On Direct Appeal
Fourth District, American Fork
The Honorable Christine S. Johnson
No. 080104364
Attorneys:
Darrel J. Bostwick, Jeffery J. Owens, Salt Lake City, for appellant
Alexander Dushku, Peter C. Schofield, Justin W. Starr,
Adam D. Wahlquist, Salt Lake City, for appellees
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE HIMONAS, and
JUSTICE PEARCE joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 This case concerns a general contractor’s attempt to recover
on a mechanic’s lien. Scott Bell, an employee of Jordan Construction,
Inc., hired Jordan Construction as the general contractor to build a
new home on property that he owned (the Property). Several months
after the start of construction, Mr. Bell secured long-term financing
and executed a trust deed on the Property. Mr. Bell then failed to pay
Jordan Construction the full amount due for its work. When the
home was nearly finished, Jordan Construction discovered that Mr.
JORDAN CONSTR. v. FNMA
Opinion of the Court
Bell had been misusing company funds and terminated him. Mr. Bell
responded by suing Jordan Construction. Jordan Construction in
turn recorded a mechanic’s lien and lis pendens on the Property and
counterclaimed for breach of contract, embezzlement, and
foreclosure of the mechanic’s lien. Jordan Construction chose not to
name the holder of the trust deed at that time.
¶ 2 While the suit was pending, Jordan Construction discovered
that some subcontractors had not been paid for their work on the
Property. Nearly nine months after the completion of construction,
Jordan Construction filed an amendment to its notice of mechanic’s
lien to include the additional amounts owed to the subcontractors.
Jordan Construction then obtained summary judgment on its
counterclaims against Mr. Bell, applied for a writ of execution, and
took steps to initiate a sheriff’s sale of the Property.
¶ 3 Meanwhile, Mr. Bell had defaulted on his mortgage. The
trust deed holder conducted a non-judicial foreclosure sale, and
Federal National Mortgage Association (FNMA)1 purchased the
trustee’s deed. FNMA then filed a motion asking the district court to
quash the writ of execution and halt the sheriff’s sale because neither
it, nor its predecessor in interest, had been named in this action.
Over Jordan Construction’s objection, the district court quashed the
writ and halted the sale. Jordan Construction then filed a third-party
complaint against FNMA, asserting that its mechanic’s lien had
priority over FNMA’s trustee’s deed.
¶ 4 Having been brought in as a party to this action, FNMA
then prevailed on a series of motions before the district court. Jordan
Construction asserts on appeal that the district court erred in those
decisions. First, the district court concluded that FNMA is not bound
by the judgment rendered against Mr. Bell earlier in the case under
either the lis pendens or the doctrine of res judicata. Second, the court
ruled that Jordan Construction’s amended notice of lien—which
nearly doubled the amount claimed—was untimely. Third, it ruled
that, under the 2008 Utah Code, Jordan Construction was not
entitled to recover prejudgment interest on its mechanic’s lien claim.
In all, FNMA, by obtaining these rulings, whittled down the amount
that Jordan Construction had sought in its third-party complaint—
$336,568.66—to $126,956.92, the amount listed on the face of the
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1 At some point during the proceedings below, Bank of American
Fork was substituted for FNMA. We refer to FNMA for convenience,
as the parties have done in their briefs.
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original lien. FNMA then stipulated to the payment of $126,956.92.
The district court concluded that FNMA was the successful party
and awarded it attorney fees under the mechanic’s lien statute, a
decision which Jordan Construction also challenges on appeal.
¶ 5 We affirm the district court’s ruling as to each issue.
Background
¶ 6 This case evolved in two phases. We first discuss the
procedural facts involved in the first phase, where Jordan
Construction asserted and prevailed on its counterclaims against Mr.
Bell. We then discuss the second phase, where FNMA was brought
into this action as a third-party defendant.
¶ 7 In 2006, Jordan Construction was hired by its employee, Mr.
Bell, to be the general contractor on the construction of his new
home. Construction on the home began in October 2006. Mr. Bell
obtained long-term financing on January 31, 2008, executing a trust
deed that encumbered the Property with the trustee’s right to sell the
property in case of default.
¶ 8 Near the end of construction, in October 2008, Jordan
Construction discovered that Mr. Bell had been embezzling from the
company and terminated his employment. The next month, Mr. Bell
and his brother, Todd Bell, brought suit against Jordan Construction
alleging, among other things, breach of contract. In December 2008,
Jordan Construction recorded a Notice of Mechanic’s Lien in the
amount of $126,956.92 for its work on Mr. Bell’s home.2 It then
counter-claimed for breach of contract, unjust enrichment,
promissory estoppel, conversion, and foreclosure of its mechanic’s
lien, simultaneously recording a lis pendens on the Property. It did
not, however, name the holder of the trust deed as a party to the
action.
¶ 9 In the months after the suit was filed, Jordan Construction
continued to investigate Mr. Bell’s activities, discovering that he
“kept few receipts and records demonstrating how many of the
subcontractors were paid.” Jordan Construction’s principal, Wesley
Lewis, had to perform a detailed accounting to determine how much
Jordan Construction owed to subcontractors for work done on the
Property, a task that was complicated by Mr. Bell’s failure to keep
accurate records. This accounting revealed a total of $232,976.81. In
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2This notice was amended shortly after it was filed to correct a
minor procedural error not relevant here.
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JORDAN CONSTR. v. FNMA
Opinion of the Court
July 2009, Jordan Construction amended its notice of mechanic’s lien
to reflect its newly calculated amount.
¶ 10 Several months after the amendment, in January 2010,
Jordan Construction moved for partial summary judgment on all of
its claims against Mr. Bell. Mr. Bell did not oppose the motion, and
the court granted it in February 2010. Although Jordan Construction
had requested summary judgment on the mechanic’s lien claim in its
motion, the court’s February 2010 order did not mention that claim,
an oversight the court did not correct until nearly eighteen months
later.
¶ 11 In June 2010, the court entered an order containing its
findings of fact and conclusions of law regarding Jordan
Construction’s counterclaims against Mr. Bell, but this order again
made no mention of the mechanic’s lien claim. Additionally, Jordan
Construction still had not joined the holder of the trust deed to this
action. Two months later, Jordan Construction sought permission
from the district court to file a third-party complaint against the trust
deed holder, but it did not serve that complaint.
¶ 12 Meanwhile, Mr. Bell had defaulted on the promissory note
that was secured by the trust deed on the Property. FNMA
purchased the trustee’s deed at a non-judicial foreclosure sale on
October 1, 2010. Jordan Construction later applied for a writ of
execution in January 2011. As part of the application for this writ,
Jordan Construction served on FNMA a “Checklist for Writ of
Execution for Judgment Debtor and Persons with an Interest in the
Property,” “Notice of Execution and Exemptions,” and a “Reply and
Request for Hearing form.” FNMA did not file a reply or request a
hearing.
¶ 13 Jordan Construction did not immediately act on the writ,
but instead moved in June 2011 to amend the court’s order granting
partial summary judgment against Mr. Bell to include the mechanic’s
lien foreclosure claim. The court, recognizing that its original order
should have included the mechanic’s lien claim, granted the motion
in July 2011 and modified its findings of fact and conclusions of law
in August 2011 to include that claim. Jordan Construction then
requested that the Utah County Sheriff notice a proposed foreclosure
sale of the Property, which was set for September 14, 2011.
¶ 14 FNMA then took its first action in this proceeding—it filed a
motion to quash the writ and halt the sale. The court granted this
request, and Jordan Construction then sought and was granted
permission to file a third-party complaint against FNMA. This
complaint against FNMA, the beginning of the second phase of this
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case, contained only a single claim for declaratory relief. That claim
sought a declaration that FNMA was bound by the findings of fact
and conclusions of law entered against Mr. Bell earlier in the case.
The district court granted FNMA’s motion to dismiss the complaint
because it concluded FNMA was not bound by its earlier ruling.
Jordan Construction then amended its complaint, this time asserting
the same declaratory relief claim and a mechanic’s lien claim against
FNMA. The district court again dismissed the declaratory relief
claim, but it allowed the mechanic’s lien claim to go forward.
¶ 15 After fact discovery, FNMA filed a number of motions for
partial summary judgment. We discuss these motions, and the
district court’s rulings on them, in some detail because Jordan
Construction challenges the district court’s resolution of these
motions on this appeal, and also because they are relevant for
determining which party was “successful” in this action for attorney
fee purposes.
¶ 16 FNMA first sought a ruling that it was not liable for attorney
fees incurred in connection with the judgment rendered against Mr.
Bell. Second, it argued that it was not bound by the judgment
rendered against Mr. Bell earlier in the action. Third, it contended
that Jordan Construction’s second amended notice of lien, filed in
July 2009 to add the amounts it paid to subcontractors, was untimely
because it was filed more than 180 days after the certificate of
occupancy was issued in October 2008. Finally, it sought a ruling
that Jordan Construction was not entitled to prejudgment interest on
its mechanic’s lien claim brought under the 2008 Utah Code. Jordan
Construction filed its own motion for summary judgment, arguing
that FNMA was bound by the rulings entered against Mr. Bell and
that its lien had priority over FNMA’s interest.
¶ 17 The district court denied Jordan Construction’s motion
seeking a declaration that FNMA was bound by rulings entered
against Mr. Bell, and it granted all of FNMA’s motions except the
one regarding the timeliness of the lien amendment. The court
denied summary judgment on the timeliness of the lien because
Jordan Construction had raised a new argument at oral argument—
that a newly discovered certificate of occupancy was issued in June
2011. This newly discovered certificate contradicted an admission
that Jordan Construction had made earlier in the litigation, which
stated
Request No. 2: Admit that Scott Bell began occupying
the Property in October 2007.
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JORDAN CONSTR. v. FNMA
Opinion of the Court
Response: Admit that Scott Bell occupied the property
pursuant to a temporary occupancy permit beginning
in October 2007. However, construction on his home
was not yet finished, no final inspection had been
completed and no permanent occupancy permit had
been issued until October 2008.
¶ 18 Based on this newly discovered certificate, Jordan
Construction brought a motion for partial summary judgment
arguing that the timeliness of the lien should be decided based on
the certificate issued in 2011. FNMA filed its own motion arguing
that summary judgment should be granted on the basis of Jordan
Construction’s admission that a certificate of occupancy was issued
in October 2008. Jordan Construction then moved to withdraw the
admission. The court denied Jordan Construction’s motions to
withdraw the admission and for summary judgment, and granted
FNMA’s motion, ruling that the second amendment to the lien was
untimely.
¶ 19 The court also denied Jordan Construction’s motion for
summary judgment regarding the validity and priority of the
original lien, because it found that there were genuine issues of
material fact as to whether Jordan Construction materially
abandoned construction for a time, which would sever the relation
back of its lien. Rather than go through the expense of a trial on the
priority issue, FNMA stipulated to the entry of judgment in the
amount of the original mechanic’s lien, $126,956.92.
¶ 20 FNMA then sought its attorney fees as the “successful”
party in an action to enforce a mechanic’s lien.3 Jordan Construction
also argued that it was the “successful” party and requested its
attorney fees. The district court concluded that FNMA was the
successful party because it prevailed on virtually every disputed
issue and successfully reduced Jordan Construction’s recovery to
approximately 38% of the amount it originally sought in the third-
party complaint.
¶ 21 Jordan Construction now appeals. It asserts that the district
court erred in 1) quashing the writ of execution and halting the
sheriff’s sale; 2) concluding that FNMA is not bound by the partial
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3 Under Utah Code section 38-1-18(1) (2008), the “successful
party” in an action to enforce a mechanic’s lien “shall be entitled to
recover a reasonable attorneys’ fee, to be fixed by the court, which
shall be taxed as costs in the action.”
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summary judgment rendered against Mr. Bell in the first phase of
this case; 3) concluding that Jordan Construction’s second amended
notice of lien was untimely; 4) concluding that prejudgment interest
is not available on a mechanic’s lien claim under the 2008 Utah Code;
and 5) concluding that FNMA was the “successful” party below. We
have jurisdiction under Utah Code section 78A-3-102(3)(j).
Issues and Standards of Review
¶ 22 This case presents five issues for our review. The first issue
is whether the district court erred in quashing the writ of execution
and halting the sheriff’s sale. We review a district court’s decision to
reconsider an earlier decision for an abuse of discretion.4
¶ 23 The second issue is whether the district court erred in
concluding that neither the lis pendens nor the doctrine of res judicata
require that FNMA be bound by the partial summary judgment
entered against Mr. Bell. This issue presents a question of law, which
we review for correctness.5
¶ 24 The third issue is whether the district court erred in
concluding that Jordan Construction’s second amended notice of
mechanic’s lien was untimely. “An appellate court reviews a trial
court’s ‘legal conclusions and ultimate grant or denial of summary
judgment’ for correctness, and views ‘the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party.’”6
¶ 25 One component of the third issue is whether the district
court erred in refusing to permit Jordan Construction to withdraw its
admission that a certificate of occupancy was issued for the Property
in October 2008. The standard of review for amendment or
withdrawal of admissions is a two-step, “‘conditional’ discretionary
standard.”7 Rule 36(c) of the Utah Rules of Civil Procedure provides
that a district court “may permit withdrawal or amendment” if two
requirements are met: 1) “presentation of the merits of the action will
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4 IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 27, 196
P.3d 588.
5 Press Publ’g, Ltd. v. Matol Botanical Int’l, Ltd., 2001 UT 106, ¶ 19,
37 P.3d 1121.
6 Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations omitted).
7 Langeland v. Monarch Motors, Inc., 952 P.2d 1058, 1060 (Utah
1998).
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JORDAN CONSTR. v. FNMA
Opinion of the Court
be promoted,” and 2) “withdrawal or amendment will not
prejudice” the party who requested the admission. We review the
question of whether these two threshold requirements have been
satisfied under “a somewhat more exacting standard of review” than
simple abuse of discretion.8 If the threshold requirements are met,
we then review the court’s decision to grant the motion to withdraw
or amend and will “reverse[] only upon a finding of abuse of
discretion, i.e., if there is no reasonable basis for the decision.”9
¶ 26 The fourth issue is whether the district court erred in
concluding that prejudgment interest is unavailable under the 2008
version of the mechanic’s lien statute. “A trial court’s decision to
grant or deny prejudgment interest presents a question of law which
we review for correctness.”10
¶ 27 The fifth issue is whether the district court erred in
concluding that FNMA was the “successful” party in this action for
attorney fee purposes. We review the district court’s determination
of who is successful in these circumstances for an abuse of
discretion.11
Analysis
¶ 28 The first question we must address is whether the district
court erred in quashing the writ of execution and halting the sheriff’s
sale. Jordan Construction argues that FNMA waived its right to
challenge the writ of execution by failing to file a request for hearing
as provided in Utah Rule of Civil Procedure 64E. We reject this
argument because the district court had discretion, under Utah Rule
of Civil Procedure 54(b) and the law of the case doctrine, to revisit its
earlier decision to issue the writ of execution. FNMA’s decision not
to file a request for hearing on the issuance of the writ did not
deprive the district court of that discretion. The district court
therefore did not abuse its discretion in quashing the writ and
halting the sale.
¶ 29 We next explain that FNMA is not bound by the order
entered against Mr. Bell under either the doctrine of res judicata or
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8 Id. at 1061.
9 Id.
10 Smith v. Fairfax Realty, Inc., 2003 UT 41, ¶ 16, 82 P.3d 1064(citation omitted).
11 R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119.
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the lis pendens. Jordan Construction argues that FNMA, which had
notice of—but chose not to intervene in—the litigation against Mr.
Bell, is bound by the interlocutory order granting partial summary
judgment entered against him. This argument is based on Jordan
Construction’s assertion that FNMA is Mr. Bell’s successor-in-
interest to the Property because FNMA purchased the Property that
Mr. Bell previously owned. In Jordan Construction’s view, FNMA
and Mr. Bell are in privity, and, as a result, FNMA took the property
subject to the existing judgment that had been entered against Mr.
Bell. But even assuming that FNMA was Mr. Bell’s successor, which
FNMA disputes, neither res judicata nor the recording of the lis
pendens requires that FNMA be bound by the ruling entered against
Mr. Bell, because that order was interlocutory. Under our precedent
regarding the “law of the case” doctrine, a district court has broad
discretion to revisit earlier rulings before a case has proceeded to a
final judgment. The district court thus properly concluded that
FNMA is not bound by the order granting partial summary
judgment against Mr. Bell.
¶ 30 We then turn to Jordan Construction’s second amended
notice of lien, and we affirm the district court’s judgment that the
notice was untimely. In reaching this conclusion, we reject Jordan
Construction’s three arguments on this point. First, Jordan
Construction argues that the district court erred in denying its
request to withdraw its admission that a certificate of occupancy was
issued in October 2008. We conclude that the district court had
discretion to deny this request because FNMA would have been
prejudiced by the long delay between the admission and the request
to withdraw. Second, Jordan Construction argues that the doctrine of
equitable tolling should be applied to toll the time for filing an
amended notice of lien. We reject this argument as unpreserved.
Finally, Jordan Construction argues that the relation back doctrine
should apply to its second amended notice of lien, such that the
amended notice should be treated as though filed on the date of its
original notice of lien. We reject this argument because the
legislature, through the mechanic’s lien statute, has crafted a careful
scheme that balances multiple interests, and for us to apply the
relation back doctrine where the legislature has not provided for it
would frustrate that scheme.
¶ 31 We then turn to the question of whether prejudgment
interest is available on a mechanic’s lien claim under the 2008
version of the Utah Code, which did not specifically provide for
prejudgment interest. We affirm the district court’s conclusion that
prejudgment interest is unavailable. Because mechanic’s liens are
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JORDAN CONSTR. v. FNMA
Opinion of the Court
creatures of statute, we have held that the value of items the
legislature did not provide in those statutes cannot be claimed on the
face of a mechanic’s lien. As a logical extension of that conclusion,
the overall recovery available in a mechanic’s lien action, like the
amount claimable in a notice of lien, is limited to the items expressly
provided by the statute. We thus presume the legislature’s omission
of prejudgment interest was intentional and conclude that it is not
available in a mechanic’s lien action under the 2008 Utah Code.
¶ 32 Finally, we assess whether the district court abused its
discretion in concluding that FNMA was the successful party for
attorney fee purposes. We find no abuse of discretion because Jordan
Construction sought an amount almost three times greater than what
it ultimately recovered, and FNMA prevailed on virtually every
motion throughout this litigation. We agree with the district court
that it would be contrary to common sense to conclude that Jordan
Construction was “successful” given these circumstances. The
district court thus did not abuse its discretion. We address each issue
in turn.
I. The District Court Did Not Err in Quashing the Writ of Execution
and Halting the Sheriff’s Sale
¶ 33 Jordan Construction argues that the district court erred in
quashing the writ of execution. The Utah Rules of Civil Procedure
provide the process for obtaining and challenging writs. Under rule
64(e)(1), “[a]ny person claiming an interest in the property [that is
the subject of a writ] has the same rights and obligations as the
[party against whom judgment has been entered] with respect to the
writ.” If a person claiming an interest in the property is “named by
the plaintiff and served with the writ and accompanying papers,”
then that person “shall exercise those rights and obligations within
the same time allowed” the party against whom judgment has been
entered.12 For writs of execution, one such right is the right to “reply
to [a] writ and request a hearing,” which “shall be filed and served
within 14 days after service of the writ and accompanying papers.”13
Reading these two rules together, a person claiming an interest in
property that is the subject of a writ of execution who wishes to
exercise the right to reply and request a hearing on the writ must file
and serve such a reply and request for hearing “within 14 days after”
being served with “the writ and accompanying papers.”
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12 UTAH R. CIV. P. 64(e)(1).
13 UTAH R. CIV. P. 64E(d)(1).
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¶ 34 Jordan Construction argues that FNMA, as a “person
claiming an interest” in the Property, had an obligation to “exercise
[its] rights . . . within the same time allowed” Mr. Bell, the party
against whom judgment had been entered in the first phase of this
case. Jordan Construction asserts that, under these procedural rules,
FNMA had only 14 days from the date it was served with the writ
during which it could object to the writ. The parties do not dispute
that FNMA did not file or serve a reply or request for hearing within
that time. Jordan Construction argues that this “fail[ure] to follow
procedural rules” deprived the district court of “discretion” to revisit
its earlier decision to issue the writ.
¶ 35 We disagree. As an initial matter, Jordan Construction has
cited no authority that a district court lacks discretion to quash a writ
of execution where an interested person challenges that writ more
than 14 days after receiving it. To the contrary, the general rule is
that a district court has discretion to revisit any prior decision in a
case before the entry of a final judgment.14 But in any event, we need
not decide the waiver question here because we conclude the district
court in this case had discretion to revisit this writ because it was
procedurally deficient. Rule 64E(a) provides that “[a] writ of
execution is available to seize property in the possession or under
the control of the defendant following entry of a final judgment or order
requiring the delivery of property or the payment of money.”15 The
writ in this case was issued in January 2011, before final judgment
had been entered. At that point in the litigation, as Jordan
Construction concedes, Mr. Bell’s claims, as well as his brother’s
claims, against Jordan Construction remained pending, and none of
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14 UTAH R. CIV. P. 54(b) (“[A]ny order or other decision, however
designated, that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties does not end the action as
to any of the claims or parties, and may be changed at any time
before the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.” (emphasis added)); IHC
Health Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 27, 196 P.3d 588(“While a case remains pending before the district court prior to any
appeal, the parties are bound by the court’s prior decision, but the
court remains free to reconsider that decision.”).
15 UTAH R. CIV. P. 64E(a) (emphasis added).
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Opinion of the Court
Jordan Construction’s counterclaims had been certified as final
under Utah Rule of Civil Procedure 54(b).16
¶ 36 So even in the absence of FNMA’s request, the district court
would have been within its discretion to quash the writ because the
writ never should have been issued. Because there had not been a
“final judgment,” a writ of execution was not available under these
circumstances, and the district court could have revisited its decision
to grant the writ for that reason alone.17 The fact that FNMA called
the court’s attention to other reasons for quashing the writ does not
deprive the district court of authority to revisit a decision that it
would otherwise have discretion to reconsider. We therefore reject
Jordan Construction’s argument and hold that the district court did
not abuse its discretion in quashing the writ and halting the sheriff’s
sale.
II. The District Court Correctly Concluded that FNMA Is Not
Bound by the Interlocutory Order Entered Against Mr. Bell by
Either the Recording of the Lis Pendens or the Doctrine of Res Judicata
¶ 37 Jordan Construction argues that because FNMA purchased
the Property that Mr. Bell previously owned, FNMA is Mr. Bell’s
successor-in-interest, and FNMA should therefore be bound by the
judgment entered against Mr. Bell in the early stages of this case. It
makes two arguments in support of this claim. First, it argues that
the lis pendens recorded at the outset of this suit put FNMA on notice
that it was buying the Property subject to the outcome of the
litigation, and second, that the doctrine of res judicata prevents
FNMA from re-litigating the order entered against Mr. Bell. We
reject both arguments because the case had not proceeded to a final
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16 See UTAH R. CIV. P. 54(b) (“When an action presents more than
one claim for relief—whether as a claim, counterclaim, cross claim,
or third party claim—and/or when multiple parties are involved,
the court may enter judgment as to one or more but fewer than all of
the claims or parties only if the court expressly determines that there
is no just reason for delay.”).
17 FNMA also argues that it had no obligation to file a request for
hearing because, at the time of the application for writ of execution,
the underlying order that supported the application for writ did not
mention the mechanic’s lien claim. We do not reach this question
because we conclude the district court had the discretion to revisit its
earlier ruling based on the procedural deficiency of the writ.
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judgment when FNMA requested the district court to revisit its
earlier rulings.18
A. The Recording of the Lis Pendens Does Not Require that FNMA Be
Bound by the Interlocutory Order Entered Against Mr. Bell
¶ 38 The parties agree on the general legal effect that follows the
recording of a lis pendens. “The recording of a lis pendens provides
constructive notice to all persons that the rights and interests in the
property at issue are controverted. One who purchases property
subject to a lis pendens acquires only the grantor’s interest therein,
as determined by the outcome of the litigation.”19 But the parties
here dispute what the “outcome of the litigation” means. In FNMA’s
view, it means a final judgment on the merits.20 In Jordan
Construction’s view, it means “the judgment against [Mr.] Bell
insofar as it applies to the property in question.” Jordan
Construction’s argument is that FNMA was required to intervene in
the litigation before the district court entered its order against Mr.
Bell, and because it did not, it is bound by that “outcome.” We agree
with FNMA.
¶ 39 Jordan Construction provides no explanation for why the
“outcome of the litigation” should include an interlocutory order.
That is, it provides no reasoning for why FNMA was required to
intervene in the litigation before the judgment against Mr. Bell was
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18 As noted below, FNMA disputes the notion that it is Mr. Bell’s
successor-in-interest. See infra ¶ 38 n.20, ¶ 42 n.24. We do not address
these alternative arguments because, even assuming FNMA is Mr.
Bell’s successor-in-interest, the district court did not err in
concluding that FNMA was not bound by the earlier order entered
against Mr. Bell.
19 Timm v. Dewsnup, 921 P.2d 1381, 1392 (Utah 1996).
20 FNMA also makes a second argument: that a lis pendens affects
only a property interest that is “the subject of pending litigation,”
and that only Mr. Bell’s interest—and not the trust deed holder’s
interest—was the “subject of the litigation” because Jordan
Construction did not name the trust deed holder in its mechanic’s
lien foreclosure action. See Bagnall v. Suburbia Land Co., 579 P.2d 914,
916 (Utah 1978). We do not reach this question, because we conclude
that, in any event, FNMA is bound only by the outcome of the
litigation.
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Opinion of the Court
entered. We conclude that one who purchases property subject to a
lis pendens is bound only by a final judgment rendered against the
seller, but if the purchaser acquires the property while the litigation
remains pending, we see no reason why that purchaser should not
be entitled to ask the court to revisit its earlier interlocutory rulings
against its predecessor in interest.
¶ 40 Having decided that a lis pendens binds purchasers only to a
final judgment, and not to interlocutory rulings, the question then is
whether the judgment rendered against Mr. Bell was final. As noted
above, it was not. Mr. Bell’s and his brother’s claims against Jordan
Construction had not yet been resolved. And there was no 54(b)
certification of Jordan Construction’s counterclaims against Mr.
Bell.21 In the absence of a final judgment, the district court did not
abuse its discretion in granting FNMA’s request that it revisit its
earlier interlocutory rulings.
¶ 41 In sum, FNMA is bound only by the outcome of the
litigation, and the litigation here had not progressed to an outcome
at the time FNMA asked the district court to revisit its order.
Therefore, the lis pendens does not bind FNMA to the interlocutory
order entered against Mr. Bell in the first phase of this case. We next
discuss why, for a similar reason, res judicata does not bind FNMA.
B. The Doctrine of Res Judicata Does Not Require that FNMA Be Bound
by the Interlocutory Order Entered Against Mr. Bell
¶ 42 Jordan Construction argues that the district court erred in
concluding that FNMA is not bound under the doctrine of res
judicata by the judgment rendered against Mr. Bell.22 This doctrine
promotes judicial efficiency and consistency by preventing re-
litigation of issues and claims already resolved in a final judgment
on the merits between the same parties or their privies.23 Jordan
_____________________________________________________________
21 See supra ¶ 35.
22 The doctrine of res judicata includes two species: issue
preclusion and claim preclusion. Oman v. Davis Sch. Distr., 2008 UT
70, ¶ 28, 194 P.3d 956. Jordan Construction does not specify which it
is claiming applies here. Ultimately, the distinction does not matter
for this case, because both types require a final judgment in an
earlier proceeding.
23 See id. (noting that the doctrine’s purposes “include
‘(1) preserving the integrity of the judicial system by preventing
inconsistent judicial outcomes; (2) promoting judicial economy by
preventing previously litigated issues from being relitigated; and
(Continued)
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Construction’s argument fails because this doctrine does not apply
given that there had not yet been a final judgment at the time that
FNMA entered this case.24
¶ 43 Jordan Construction concedes that both claim and issue
preclusion require a “final judgment on the merits in [a] previous
action.”25 It argues, however, that what is a “final judgment” for res
judicata purposes is different than what is a “final judgment” in other
contexts, for example for appeal purposes. In its view, “[t]he two
concepts are not necessarily tied together.” It argues that because the
district court decided “all issues relating to the property” between
Jordan Construction and Mr. Bell, this constitutes a “final judgment
on the merits” for res judicata purposes.
¶ 44 There is simply no support for the premise that “final
judgment” means something different for res judicata purposes than
its well-established meaning for purposes of an appeal. To the
contrary, Jordan Construction’s interpretation of “final judgment”
would likely sow confusion and is inconsistent with our procedural
rules and other areas of our caselaw. First, rule 54(b) of the Utah
Rules of Civil Procedure provides that “any order or other decision,
however designated . . . may be changed at any time before the entry
of judgment adjudicating all the claims and the rights and liabilities
of all the parties.”26 Second, we have a specific doctrine that deals
with a district court’s discretion to revisit interlocutory rulings
before the entry of final judgment: the “law of the case” doctrine. We
have said that “[w]hile a case remains pending before the district
court prior to any appeal, the parties are bound by the court’s prior
(3) protecting litigants from harassment by vexatious litigation.’”
(citation omitted)).
24 FNMA also argues that res judicata is inapplicable because
FNMA was not in privity with Mr. Bell. We do not reach this issue
because our conclusion that there had been no final judgment is
dispositive.
25 Jones, Waldo, Holbrook & McDonough v. Dawson, 923 P.2d 1366,
1370 (Utah 1996) (issue preclusion); Mack v. Utah State Dep’t of
Commerce, Div. of Sec., 2009 UT 47, ¶ 29, 221 P.3d 194 (claim
preclusion).
26 UTAH R. CIV. P. 54(b) (emphasis added).
15
JORDAN CONSTR. v. FNMA
Opinion of the Court
decision, but the court remains free to reconsider that decision.”27 It
would thus be inconsistent with our law of the case doctrine to hold
that a district court is barred, under res judicata principles, from
revisiting issues it has decided earlier in the same case before
entering a final judgment.
¶ 45 We conclude that the res judicata doctrine’s requirement of a
“final judgment” does not include an interlocutory ruling within the
course of a single proceeding. Rather, “final judgment” has the same
meaning as that term does for purposes of appeal. As discussed
above, the district court’s order granting partial summary judgment
against Mr. Bell was not final because other claims remained
pending in the case, and no rule 54(b) certification had been issued.28
The district court thus correctly concluded that the doctrine of res
judicata does not bind FNMA under these circumstances.
III. The District Court Did Not Err in Concluding that
Jordan Construction’s Second Amended Notice of
Mechanic’s Lien Was Untimely
¶ 46 The parties agree that the timeliness of the second amended
notice of mechanic’s lien turns on the date a certificate of occupancy
was issued for the Property. Under the statute, a party has 180 days
from that date to file its notice of lien.29 It is undisputed that Jordan
Construction filed its second amended notice of lien in July 2009,
more than 180 days after October 2008. Jordan Construction makes
three arguments in support of its claim that its second amended
notice was nevertheless timely. First, it argues that the district court
abused its discretion in refusing to permit Jordan Construction to
withdraw its admission that a certificate of occupancy was issued in
October 2008. Second, it argues that equitable tolling principles
apply to toll the time for amending its notice of mechanic’s lien.
Finally, it argues that the relation back doctrine should apply, such
that the second amended notice of mechanic’s lien should be treated
_____________________________________________________________
27 IHC Health Servs., Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 27, 196
P.3d 588.
28 See supra ¶ 35.
29 The statute requires that a notice of lien be filed within 180 days
of “final completion of the original contract,” which the parties agree
in this case means “the date of issuance of a permanent certificate of
occupancy by the local government entity having jurisdiction over
the construction project.” UTAH CODE § 38-1-7(1) (2008).
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as though filed on the date the notice of lien was originally filed.
None of these arguments has merit.
A. The District Court Did Not Abuse Its Discretion in Refusing to Permit
Jordan Construction to Withdraw Its Admission that a Certificate of
Occupancy Was Issued in October 2008
¶ 47 Jordan Construction admitted in response to a discovery
request that the issuance of a certificate of occupancy—the key date
for the timeliness of the notice of lien—occurred in October 2008. The
admission stated:
Request No. 2: Admit that Scott Bell began occupying
the Property in October 2007.
Response: Admit that Scott Bell occupied the property
pursuant to a temporary occupancy permit beginning
in October 2007. However, construction on his home
was not yet finished, no final inspection had been
completed and no permanent occupancy permit had
been issued until October 2008.
¶ 48 After discovering a certificate of occupancy issued by Provo
City in June 2011, Jordan Construction sought to withdraw its
admission. The district court denied its request. Rule 36(c) of the
Utah Rules of Civil Procedure provides the framework for requests
to withdraw an admission: A district court “may permit withdrawal
or amendment” if two requirements are met: 1) “presentation of the
merits of the action will be promoted,” and 2) “withdrawal or
amendment will not prejudice” the party who requested the
admission. Because the presence of those threshold requirements is a
prerequisite for a court to allow withdrawal or amendment, their
presence or absence is subject to “a somewhat more exacting
standard of review” than simple abuse of discretion.30 After
considering the threshold requirements, this court then reviews the
district court’s decision to grant or deny the motion to withdraw or
amend, and will “reverse[] only upon a finding of abuse of
discretion, i.e., if there is no reasonable basis for the decision.”31
¶ 49 First, the district court concluded that allowing withdrawal
would not promote presentation of the merits of the action. We need
_____________________________________________________________
30 Langeland v. Monarch Motors, Inc., 952 P.2d 1058, 1061 (Utah
1998).
31 Id.17
JORDAN CONSTR. v. FNMA
Opinion of the Court
not reach this issue because we conclude that the district court’s
prejudice determination was correct, and therefore it had discretion
to deny Jordan Construction’s request to withdraw.32
¶ 50 Second, to determine whether “a party will be prejudiced by
the withdrawal of an admission,” we ask “whether the party is now
any less able to obtain the evidence required to prove the matter
which was admitted than he would have been at the time the
admission was made.”33 There are a number of grounds to support
the conclusion that FNMA would now have greater difficulty
obtaining evidence to prove that the issuance of a certificate of
occupancy occurred in October 2008. Jordan Construction’s
admission was filed February 1, 2013. It did not seek to withdraw its
admission until April 6, 2015. As FNMA points out, this date was
“26 months after making the admission, more than a year after fact
discovery closed, and six-and-a-half years after the case was
originally filed.” Perhaps most problematic is that Jordan
Construction was provided a copy of the 2011 certificate of
occupancy in July 2013, and yet still did not seek to withdraw its
admission until nearly two years later, long after the close of fact
discovery.
¶ 51 Because Jordan Construction had admitted that a certificate
of occupancy was issued in October 2008, FNMA took no steps in
discovery to ascertain the date the certificate of occupancy was
issued. We agree with the district court that, if withdrawal were
permitted at this late stage, “FNMA would be left attempting to
depose witnesses in order to confirm” that a certificate had been
issued many years earlier, a fact that “it seems unlikely that any
witness would be equipped” to address. The district court properly
_____________________________________________________________
32 Jordan Construction also argues that it should have been
allowed to withdraw its admission because the facts it admitted
were not necessary to answer the request for admission, and, in its
view, rule 36 does not allow for “additional explanation or qualified
admissions.” But the rule is phrased broadly, in that it provides that
“[a]ny matter admitted under this rule is conclusively established
unless the court on motion permits withdrawal or amendment of the
admission.” UTAH R. CIV. P. 36(c) (emphasis added). There is nothing
in the rule that prohibits a party from making a broader admission
than is technically called for by the request for admission. We
conclude that parties offer overly broad admissions at their peril.
33 Langeland, 952 P.2d at 1063 (citation omitted).
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concluded that FNMA would be prejudiced by Jordan
Construction’s long delay in seeking withdrawal of its admission,
and therefore properly rejected Jordan Construction’s request to
withdraw the admission.
B. Jordan Construction Did Not Preserve the Issue of Whether Principles of
Equitable Tolling Apply to Its Amended Notice of Mechanic’s Lien
¶ 52 Jordan Construction next argues that principles of equitable
tolling should be applied to toll the statutory deadline for filing a
notice of mechanic’s lien. We decline to address this argument
because it was not raised before the district court.
¶ 53 “As a general rule, we ‘will not consider an issue unless it
has been preserved in the court below.’”34 Jordan Construction
makes no response to FNMA’s assertion that this issue was
unpreserved. In the proceedings below, Jordan Construction’s
memorandum in opposition to FNMA’s motion on the timeliness of
the second amended lien contains arguments regarding only
substantial compliance, res judicata, and relation back. We are unable
to find the equitable tolling issue preserved in the record, and we
therefore decline to address this argument.
C. The Relation Back Doctrine Does Not Apply to Amendments to
Notices of Mechanic’s Liens
¶ 54 Jordan Construction finally argues that its notice of
mechanic’s lien was timely under the doctrine of “relation back.” To
support this argument, Jordan Construction invokes Utah Rule of
Civil Procedure 15(c), which permits subsequent pleadings to relate
back to the date of the initial pleading in certain circumstances.35
Jordan Construction argues that the “rationale” of this rule should be
applied to statutory deadlines for filing mechanic’s lien notices. In its
view, because the rules of civil procedure allow for amended
pleadings to relate back to the date of filing the initial pleading in
certain circumstances, amendments to mechanic’s lien notices should
_____________________________________________________________
34 VCS, Inc. v. Countrywide Home Loans, Inc., 2015 UT 46, ¶ 33, 349
P.3d 704 (citation omitted).
35 See UTAH R. CIV. P. 15(c) (2016) (“Whenever the claim or defense
asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth in the
original pleading, the amendment relates back to the date of the
original pleading.”).
19
JORDAN CONSTR. v. FNMA
Opinion of the Court
similarly relate back to the date of original filing whenever those
circumstances are met.
¶ 55 We reject this argument. Jordan Construction provides no
authority supporting the proposition that the rationale underlying
rule 15(c) can be applied to mechanic’s lien notices. Unlike rule 15(c),
the mechanic’s lien statute is silent regarding relation back of
amendments. It provides that “a person claiming benefits under this
chapter shall file . . . a written notice to hold and claim a lien within”
the statutory timeline.36 “[O]ur general rule is that we will ‘give
effect to omissions in statutory language’ by presuming them to be
purposeful.”37 Because mechanic’s liens are peculiarly creatures of
statute, they are particularly unsuited for uncodified exceptions to
statutory deadlines.38 To hold that amendments made after the
statutory deadline relate back to the date of initial filing would be to
infer a substantive term not provided by the legislature, which
would frustrate the carefully balanced scheme it chose to implement.
Instead, to gain the benefits of the statute, a party must comply with
its terms.39 We thus hold that, in the absence of a statutory term so
providing, the relation back doctrine has no application to
mechanic’s lien notice deadlines.
¶ 56 In sum, the district court did not err in concluding that the
second amended notice of lien was untimely. We next turn to the
issue of prejudgment interest.
IV. The District Court Did Not Err in Concluding that Prejudgment
Interest Is Unavailable Under the 2008 Version of the
Mechanic’s Lien Statute
¶ 57 Jordan Construction argues that the district court erred in
concluding that it was not entitled to prejudgment interest on its
_____________________________________________________________
36 UTAH CODE § 38-1-7(1)(a)(i) (2008).
372 Ton Plumbing, L.L.C. v. Thorgaard, 2015 UT 29, ¶ 47, 345 P.3d
675 (citation omitted).
38 See id. ¶ 32 (“[W]e presume ‘that the expression of one [term]
should be interpreted as the exclusion of another,’ and will not ‘infer
substantive terms into the text that are not already there.’” (second
alteration in original) (citations omitted)).
39See AAA Fencing Co. v. Raintree Dev. & Energy Co., 714 P.2d 289,
291 (Utah 1986) (per curiam) (“[C]ompliance with the statute is
required before a party is entitled to the benefits created by the
statute.”).
20
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mechanic’s lien claim arising under the 2008 Utah Code. We affirm
the district court and hold that prejudgment interest is not available
on mechanic’s lien claims brought under this version of the statute.40
¶ 58 Jordan Construction argues that a mechanic’s lien action fits
within our caselaw describing when prejudgment interest is
available. “[W]e have stated that prejudgment interest may be
proper when ‘the loss ha[s] been fixed as of a definite time and the
amount of the loss can be calculated with mathematical accuracy in
accordance with well-established rules of damages.’”41 Jordan
Construction relies on this statement of our common law rule for the
availability of prejudgment interest to argue that prejudgment
interest is available on mechanic’s lien claims, despite statutory
silence on the issue. But this argument overlooks the unique nature
of mechanic’s liens and our precedent describing them as being
creatures of statute.
¶ 59 First, the only prejudgment interest cases cited by Jordan
Construction are also breach of contract cases that do not address a
mechanic’s lien claim untethered to a breach of contract.42 Because
the contractual claims at issue in these cases entitled the prevailing
party to prejudgment interest, these cases did not make a distinction
between the availability of prejudgment interest based on a breach of
_____________________________________________________________
40 We note that the mechanic’s lien statute was amended in 2012
to expressly provide for prejudgment interest. UTAH CODE § 38-1a-
309 (2012). The parties dispute the relevance of this amendment to
the availability of prejudgment interest. As is typical in cases
involving subsequent legislative amendment, one party contends the
amendment clarified the law, and the other contends that it changed
the law. We need not delve into this question here because we
consider other sources of authority sufficient to determine that
prejudgment interest was unavailable under the 2008 Utah Code.
41 Iron Head Constr., Inc. v. Gurney, 2009 UT 25, ¶ 11, 207 P.3d 1231(second alteration in original) (citation omitted).
42 E.g., id. ¶ 3 (“Iron Head filed both a mechanic’s lien against the
Gurneys’ home and a suit alleging breach of contract, unjust
enrichment, and quantum meruit, and requesting foreclosure of the
mechanic’s lien.”); Lignell v. Berg, 593 P.2d 800, 809 (Utah 1979) (“In
contract cases, certainly, interest on amounts found to be due in
judicial proceedings is recovery to which the creditor is entitled as a
matter of law.”).
21
JORDAN CONSTR. v. FNMA
Opinion of the Court
contract claim and based on a mechanic’s lien claim. These cases are
thus unhelpful to the ultimate resolution of the issue before us.
Moreover, Jordan Construction has not cited any cases outside of
this jurisdiction where prejudgment interest was awarded on a
mechanic’s lien claim even though the applicable statute—like
Utah’s—is silent on prejudgment interest.
¶ 60 Second, we are dealing with mechanic’s liens, which we
have said are “statutory creatures unknown to the common law.” 43
Given that these statutes create rights unknown to the common law,
the scope of the rights created are coextensive with what is provided
for by statute. In 2 Ton Plumbing, L.L.C. v. Thorgaard, we recognized
this principle in holding that a lien claimant’s notice of lien was
invalid where it included items not specifically recognized by statute
as being the subject of a mechanic’s lien.44 There we said that
“[w]hen interpreting statutory text, we presume ‘that the expression
of one [term] should be interpreted as the exclusion of another,’” and
we “will not ‘infer substantive terms into the text that are not already
there.’ ‘[W]e assume, absent a contrary indication, that the
legislature used each term advisedly . . . [and] seek to give effect to
omissions in statutory language by presuming all omissions to be
purposeful.’”45
¶ 61 Jordan Construction argues that 2 Ton’s holding spoke only
to what amounts a party may validly list on the face of its lien and
that we did not address what is ultimately recoverable in an action
to enforce the lien. While that may be true, the principle underlying
our decision in that case compels its extension to the present case.
The extent of overall recovery available on a mechanic’s lien claim,
just like the amount that can be validly listed on the lien itself, can be
no broader than what is provided for by statute. In 2 Ton, we stated
that “where the statute fails, courts cannot create rights” and “[a]
lien created solely by statute depends on the terms of the statute.”46
¶ 62 This conclusion is supported by the fact that the legislature
has elsewhere delineated what is ultimately recoverable in a
_____________________________________________________________
AAA Fencing Co. v. Raintree Dev. & Energy Co., 714 P.2d 289, 291
43
(Utah 1986) (per curiam).
44 2015 UT 29, ¶ 43, 345 P.3d 675.
45 Id. ¶ 32 (second, third, fourth, and fifth alterations in original)
(citations omitted).
46 Id. ¶ 21 (citations omitted).
22
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mechanic’s lien claim beyond the amount listed on the face of the
lien. For example, the legislature specifically provided that attorney
fees are recoverable in an action to recover on the lien.47 While it
specifically provided for attorney fees, it did not provide that
prejudgment interest is recoverable in the action. The principle that
underlies our 2 Ton decision is that what is left unsaid in the
mechanic’s lien statute is not available for recovery in a mechanic’s
lien action.
¶ 63 Finally, other jurisdictions, which we cited with approval in
2 Ton, have also reached the conclusion that where prejudgment
interest is not specifically enumerated as recoverable in a mechanic’s
lien claim, it is unrecoverable.48
¶ 64 We therefore affirm the district court and conclude that
prejudgment interest is unavailable on a mechanic’s lien claim under
the 2008 Utah Code.
V. The District Court Did Not Abuse Its Discretion in Concluding
that FNMA Was the Successful Party in this Action for
Attorney Fee Purposes
¶ 65 Jordan Construction argues that it was an abuse of
discretion for the district court to conclude that FNMA was the
“successful”49 party in the proceedings below. Utah Code section 38-
1-18(1) (2008) provides that the “successful party” in an action to
enforce a mechanic’s lien “shall be entitled to recover a reasonable
_____________________________________________________________
47 UTAH CODE § 38-1-18(1) (2008).
48 See Nat’l Lumber Co. v. United Cas. & Sur. Ins. Co., 802 N.E.2d 82,
88 (Mass. 2004) (statutory interest not available on mechanic’s lien
claim because “the nature of the [] action is in rem, to enforce a lien”
and therefore does not involve “contractual obligations”); Artsmith
Dev. Grp., Inc. v. Updegraff, 868 A.2d 495, 497 (Pa. Super. Ct. 2005)
(holding that trial court properly denied claim for interest “because
the mechanics’ lien statute . . . does not authorize a lien for these
amounts” and noting that “[i]tems other than labor and materials are
more properly sought in an action for breach of the construction
contract, if that contract authorizes recovery of interest”).
49 We have treated the inquiry of who is a “successful party”
under this statute as synonymous with the issue of who is a
“prevailing party” in other contexts, A.K. & R. Whipple Plumbing &
Heating v. Guy, 2004 UT 47, ¶ 19, 94 P.3d 270, and we continue to
treat the terms synonymously here.
23
JORDAN CONSTR. v. FNMA
Opinion of the Court
attorneys’ fee, to be fixed by the court, which shall be taxed as costs
in the action.” We have directed lower courts to “use their common
sense in deciding whether a party was ‘successful’ in bringing or
defending against a mechanic’s lien enforcement action.”50 We
specifically cautioned against considering only “the net judgment in
the case” and stressed the importance of “’looking at the amounts
actually sought and then balancing them proportionally with what
was recovered.’”51 The district court followed this instruction
precisely in concluding that FNMA was the successful party. We
therefore find no abuse of discretion.52
¶ 66 Jordan Construction makes only one argument: in its view,
it was “successful” because it recovered the amount on the face of its
original lien, $126,956.92. The premise of this argument is that
because FNMA stipulated to the payment of some amount toward a
mechanic’s lien claim, Jordan Construction was “successful” on that
claim. But this argument is inconsistent with our precedent. As this
case shows, a party can ultimately recover some amount on a
mechanic’s lien claim, but still not be “successful” in the action.
¶ 67 For example, a similar argument was made in A.K. & R.
Whipple Plumbing and Heating v. Guy.53 There, we declined to adopt
“a rigid rule that would deprive trial courts of their power to apply
their discretion and common sense to this issue, and would require a
trial court to award fees to whichever party emerged with a net
judgment, no matter how insignificant.”54 We concluded that “[s]uch
a result is not required by the statute.”55 But that’s essentially what
Jordan Construction asks for here: a rigid application of a rule that
would mean, because Jordan Construction obtained some amount of
recovery on its mechanic’s lien claim, it therefore was “successful”
on that claim. We reject this approach.
¶ 68 Consistent with our precedent, the district court issued a
detailed analysis of the “common sense” approach it applied in
determining FNMA to be the successful party. The court conceded
_____________________________________________________________
50 Id. ¶ 26.
51 Id. (citation omitted).
52 See R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119.
53 2004 UT 47, 94 P.3d 270.
54 Id. ¶ 25.
55 Id.
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that if Jordan Construction had, from the outset, sought to enforce
only its original lien and recovered the amount that it did here, it
would undoubtedly have been the successful party. But that is not
what happened. Here, Jordan Construction’s third-party complaint
against FNMA alleged that it was entitled to recover $336,568.66 at
the sheriff’s sale of the Property. In the end, it recovered just over
one-third of that amount. Thus, between a total victory for Jordan
Construction and a total victory for FNMA, the amount recovered
was closer to a total victory for FNMA.
¶ 69 Moreover, the court noted that Jordan Construction lost on
almost all of the disputed issues that were resolved on motion before
the court. FNMA successfully 1) quashed the writ of execution, 2)
moved to dismiss the first third-party complaint, 3) moved to
dismiss one of the two claims in the amended third-party complaint,
and 4) whittled down the amount on the mechanic’s lien claim to
$126,956.92 through a number of motions for partial summary
judgment. Jordan Construction lost motion after motion, and in the
end it achieved what the district court called a “pyrrhic” victory. The
district court was correct that it would “strain[] logic” to conclude
that Jordan Construction should recover its fees here; instead, FNMA
was the “comparative victor.”
¶ 70 We agree with the district court’s analysis. A district court
has discretion to view the entire course of proceedings and assess
whether a party who achieved some amount of recovery on a
mechanic’s lien claim was “successful” on that claim or not. We
accordingly affirm on this issue.
VI. FNMA Is Entitled to Reasonable Attorney Fees
Incurred on Appeal
¶ 71 FNMA requests its attorney fees for this appeal. “[W]hen a
party is entitled to attorney fees below and prevails on appeal, that
party is ‘also entitled to fees reasonably incurred on appeal.’”56 As
discussed above, the district court awarded attorney fees to FNMA
for being the “successful” party in the action to foreclose on the
mechanic’s lien. Because we affirm the district court, we conclude
that FNMA is entitled to attorney fees for this appeal. We remand
this case to the district court for an award of attorney fees reasonably
incurred on this appeal.
_____________________________________________________________
56 Dillon v. S. Mgmt. Corp. Ret. Trust, 2014 UT 14, ¶ 61, 326 P.3d 656(citation omitted).
25
JORDAN CONSTR. v. FNMA
Opinion of the Court
Conclusion
¶ 72 We affirm the district court on all grounds. The district court
had discretion to quash the writ of execution and halt the sheriff’s
sale because it was merely reconsidering a prior ruling, which is well
within a district court’s discretion. The district court correctly
concluded that FNMA is not bound by the interlocutory order
entered against Mr. Bell. Jordan Construction has failed to show that
the district court erred in concluding its second amended notice of
mechanic’s lien was untimely. The district court had discretion to
deny Jordan Construction’s request to withdraw its admission; the
doctrine of relation back does not apply to mechanic’s lien statutory
deadlines; and the issue of equitable tolling was not preserved. The
district court also correctly concluded that prejudgment interest is
not available on mechanic’s lien claims under the 2008 version of the
statute, because that statute does not specifically provide for such
interest. And finally, we find no abuse of discretion in the district
court’s conclusion that FNMA was the successful party for attorney
fee purposes. We accordingly affirm and remand for the district
court to determine the appropriate fee award.
26