Maxwell Masonry v. North Ridge , 2022 UT App 109 ( 2022 )

2022 UT App 109THE UTAH COURT OF APPEALS
MAXWELL MASONRY RESTORATION & CLEANING LLC,
Appellee,
v.
NORTH RIDGE CONSTRUCTION INC.,
Appellant.
Opinion
No. 20200924-CA
Filed September 1, 2022
Third District Court, Silver Summit Department
The Honorable Richard E. Mrazik
No. 180500153
Trevor J. Lee, Attorney for Appellant
M. Darin Hammond, Attorney for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER and SENIOR JUDGE
KATE APPLEBY concurred. 1
TENNEY, Judge:
¶1 North Ridge Construction Inc. (North Ridge) is a general
contractor, and in 2017, North Ridge entered into a subcontract
with Maxwell Masonry Restoration & Cleaning LLC (Maxwell)
for Maxwell to perform masonry work on one of its projects. The
project experienced some delays, and when the project was finally
completed, the two companies had a disagreement about how
much North Ridge owed Maxwell.
¶2 Maxwell later sued North Ridge, asking for more than
$250,000 in damages. North Ridge counterclaimed, asking for
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
Maxwell v. North Ridge
more than $36,000 in damages. At the close of a bench trial several
years later, the district court ruled in favor of each side on one of
its claims. The court awarded Maxwell $18,537 in damages on its
successful claim, and it awarded North Ridge $16,750 in damages
on its successful claim, thus resulting in a net judgment for
Maxwell of $1,787.
¶3 The sole issue before us has to do with North Ridge’s
request for an award of attorney fees. North Ridge contended that
it was entitled to its attorney fees as the “prevailing party.” But
the district court concluded that neither party had prevailed, so it
denied North Ridge’s request. North Ridge now appeals that
determination, and for the reasons set forth below, we agree with
North Ridge that it was indeed the prevailing party. We therefore
reverse and remand with instructions for the district court to
determine and award the attorney fees that North Ridge
reasonably incurred below and on appeal.
BACKGROUND
The Railyard Restoration Project
¶4 In early 2017, the city of Evanston, Wyoming, hired North
Ridge to be the general contractor for a restoration project on a
historic railyard building. North Ridge later entered into a
subcontract with Maxwell. In that subcontract, Maxwell agreed to
perform “masonry restoration, cleaning and sealing, interior
wood cleaning, sanding and sealing” for the project. (Quotation
simplified.) The parties agreed that the “project finish date”
would be October 24, 2017. 2
2. Although the work took place in Wyoming, Maxwell and North
Ridge both have Utah as their principal place of business, and
they also agreed in the subcontract that “[a]ll arbitration and
litigation proceedings shall take place in Summit County, State of
Utah.”
20200924-CA 2 2022 UT App 109Maxwell v. North Ridge
¶5 North Ridge agreed to pay Maxwell a “fixed lump sum of
$394,241.00 (‘Contract Sum’) in periodic payments as draws
[were] submitted and approved for the value of the work
performed.” (Quotation simplified.) North Ridge’s “actual receipt
of payment” from the city was “an express condition precedent to
[North Ridge’s] payment obligation to [Maxwell]”—i.e., North
Ridge was not obligated to pay Maxwell until it received payment
from the city.
¶6 The parties also agreed that Maxwell was entitled to
payment for “extra work,” but only if there was a “written change
order.” They further agreed that “[i]f [Maxwell] perform[ed] extra
work without a written order, [Maxwell] shall be deemed to have
waived any claim for compensation for such work.” Of
particular note for this appeal, the subcontract provided that if
“the parties [became] involved in litigation or arbitration with
each other arising out of [the subcontract] or other performance
thereof . . . the prevailing party [would] be fully compensated for
the cost of its participation in such proceedings,” including
attorney fees.
¶7 Maxwell began work on the project in March 2017, and
North Ridge made periodic payments to it as the project
progressed. To receive these payments, Maxwell would submit a
pay application to North Ridge along with a signed lien release,
after which North Ridge would pay Maxwell. During the first few
months, there were some change orders for additional work that
Maxwell performed, thereby increasing the overall amount that
North Ridge owed Maxwell for its work on the project.
¶8 Starting sometime around July 2017 and continuing for the
next several months, Maxwell “performed tasks it believed were
beyond the scope of work under the Subcontract.” Maxwell
believed that those tasks were “extra work” as defined in the
subcontract, but it did not submit change orders for those tasks.
As a result, it did not receive compensation for the alleged “extra
work” that it completed during those months.
20200924-CA 3 2022 UT App 109Maxwell v. North Ridge
¶9 By September, the parties realized that Maxwell would not
be able to complete its work by the October 2017 finish date. To
give Maxwell more time, the city agreed to extend the deadline to
November 27, 2017.
¶10 North Ridge had largely finished its work on the project by
November 2017, but Maxwell’s work was still incomplete. That
month, the city issued a Certificate of Substantial Completion to
North Ridge, which included a punch list “comprised largely of
work Maxwell had not yet started or had done inadequately.” 3
¶11 In December 2017, Maxwell informed North Ridge that it
believed it had completed its duties. It also submitted invoices for
tasks that it had already completed. Those tasks included work
that Maxwell claimed was outside the scope of the subcontract but
that North Ridge had allegedly asked it to perform. Maxwell also
contended that it was under “time constraints” that prevented it
from previously submitting change orders and that North Ridge
had “waived” the change order provision of the subcontract. In
response, North Ridge contended that this work was within the
scope of the subcontract, meaning that Maxwell was not entitled
to additional compensation. North Ridge also insisted that it had
never waived the change order requirement.
¶12 In February 2018, representatives from North Ridge,
Maxwell, and the city met at the railyard to conduct a final
walkthrough. After the walkthrough, North Ridge and the city
“signed off on Maxwell’s work as complete, accepting the
project.”
¶13 North Ridge’s project manager participated in the
walkthrough, and he had a final pay application and payment
check ready for Maxwell. The city was still retaining a portion of
3. A “punch list” is “a list of usually minor tasks to be completed
at the end of a project.” Punch list, Merriam-Webster Online,
https://www.merriam-webster.com/dictionary/punch%20list
[https://perma.cc/56KP-SGXY].
20200924-CA 4 2022 UT App 109Maxwell v. North Ridge
its payment to North Ridge, however, so North Ridge did not
include the retained amount in the final payment check to
Maxwell. 4 But Maxwell’s owner still believed that Maxwell had
completed additional work on the project for which it was entitled
to additional payment. He became “agitated” as a result, and he
refused to speak with North Ridge’s project manager. Because of
this, North Ridge’s project manager “did not feel comfortable
providing [Maxwell’s owner] with the pay application and
check,” so as a result, Maxwell did not sign the pay application or
receive its final payment that day.
¶14 North Ridge emailed Maxwell a few days later, explaining
that North Ridge would put Maxwell’s check in the mail as soon
as Maxwell signed the pay application. Maxwell refused to sign
the pay application, however, instead “demand[ing] additional
payment beyond the Subcontract’s total amount.” Maxwell’s
owner later conceded that he refused to sign the pay application
because “he did not want to jeopardize the lawsuit he planned to
file.”
Pretrial Litigation
¶15 In April 2018, Maxwell filed a complaint against North
Ridge. It asserted four causes of action: breach of contract, breach
of an implied-in-fact contract, unjust enrichment, and breach of
the implied covenant of good faith and fair dealing.
¶16 Maxwell initially sought $251,308.38 from North Ridge. Of
that amount, $186,084.67 represented work that Maxwell alleged
was “additional work outside the scope of the Subcontract.” The
remaining $65,223.71 represented the balance of the subcontract
and approved change orders. This $65,223.71 came from (1) an
$18,537.40 final payment that North Ridge was withholding
because Maxwell would not sign the pay application and
4. North Ridge claimed below that the city retained the funds
because of Maxwell’s suit, but the district court made no findings
about why the city retained the funds.
20200924-CA 5 2022 UT App 109Maxwell v. North Ridge
(2) retainage funds (totaling almost $47,000) that the city was
withholding and that North Ridge therefore was not yet
obligated to pay to Maxwell under the terms of the parties’
subcontract.
¶17 North Ridge responded to the suit with an answer and a
counterclaim. The counterclaim asserted causes of action for
breach of contract and breach of the implied covenant of good
faith and fair dealing, and North Ridge also requested “fees and
costs incurred in defending this action and attempting to enforce”
the subcontract. North Ridge asserted that Maxwell delayed
completion of the project by not finishing its work until February
2, 2018, which was 67 days after the extended deadline of
November 27, 2017. North Ridge initially sought $36,621 in
damages, but it later elected to instead seek damages under the
subcontract’s liquidated damages provision. That provision
provides that “[s]hould [Maxwell’s] actions cause a delay in the
project beyond the scheduled completion date, liquidated
damages will be assessed against the subcontract in the amount
relative to the actual delay.” And it further provides that
“[l]iquidated damages on this project are assessed at $250.00 per
day.” North Ridge’s decision to seek liquidated damages thus
reduced its claimed damages to $16,750 ($250 x 67). 5
¶18 The parties participated in almost a year of discovery.
During discovery, the parties deposed representatives from
Maxwell, North Ridge, and the city. North Ridge also filed
various motions in limine regarding the evidence and arguments
that might be presented at trial, several of which were granted.
The district court later found that Maxwell abandoned $40,211 of
its claimed damages before trial “[i]n response to” North Ridge’s
motions.
5. Nothing in the record explains why North Ridge elected to seek
liquidated damages instead of the higher amount that it had
originally sought.
20200924-CA 6 2022 UT App 109Maxwell v. North Ridge
Bench Trial
¶19 The case proceeded to a three-day bench trial. At the close
of Maxwell’s case, North Ridge moved for a judgment on
partial findings under rule 52(e) of the Utah Rules of Civil
Procedure. The court granted North Ridge’s motion in part,
“dismissing Maxwell’s claims for unjust enrichment and
breach of the implied covenant in their entirety, and Maxwell’s
breach of implied-in-fact contract in part.” But the court
allowed Maxwell’s breach of contract claim to proceed “as it
relate[d] to the amount outstanding under the Subcontract’s
express terms.”
¶20 After North Ridge presented its case, the court issued its
decision through written findings of fact and conclusions of law.
There, the court first dismissed “the remainder of Maxwell’s claim
for breach of an implied-in-fact contract” because it found that
“Maxwell failed to show North Ridge waived the Subcontract’s
change order provision.” But the court determined that North
Ridge had breached the subcontract when it “failed to pay
Maxwell $18,537.40.” On this, the court found that Maxwell had
not accepted payment because North Ridge had conditioned
payment on “Maxwell’s execution of . . . pay applications that
included lien release provisions.” The court then concluded that
the subcontract did “not provide for receipt of a lien release as a
precondition of payment.” The court accordingly concluded that
North Ridge had breached the subcontract “with respect to the
$18,537.40” by improperly conditioning Maxwell’s payment “on
the execution by Maxwell of a lien release.” As to North Ridge’s
counterclaim, the court determined that Maxwell had breached
the subcontract “by delaying” the renovation and was therefore
“liable for $16,750 in liquidated damages.”
Attorney Fees Ruling
¶21 In addition to damages, North Ridge sought attorney fees
based on the provision in the subcontract under which the
20200924-CA 7 2022 UT App 109Maxwell v. North Ridge
“prevailing party” would be entitled to its fees. 6 Assessing this
request in light of the verdict, the court first analyzed how much
each party had recovered on its claims as compared to how much
each party had initially sought. The court explained that Maxwell
had “recovered $65,223.71” of its initial request for $251,308.38,
which the court concluded “represents a 26% success rate for
Maxwell, with North Ridge defeating 74% of Maxwell’s initial
claims.” It then explained that North Ridge had “recovered
$16,750” of its initial claim for $36,621, which the court concluded
“represents a 46% success rate for North Ridge on its
counterclaim, with Maxwell defeating 54% of North Ridge’s
counterclaim.”
¶22 The court next looked at the case “through the lens of the
net judgment awarded.” On this, the court concluded that
Maxwell was “the comparative victor, inasmuch as the $18,537.40
awarded under Maxwell’s breach of contract claim is greater than
the $16,750 awarded to North Ridge.”
¶23 With these metrics in mind, the court then sought to
determine which party (if any) had ultimately “prevailed.” The
court opined,
When viewed through the lens of which party more
closely achieved a total victory, North Ridge is the
comparative victor, inasmuch as it defeated a higher
percentage of the opposing party’s claims and
recovered a higher percentage of its own claims. But
the percentage differences are not extreme. Indeed,
Maxwell still recovered 26% of its initial damages
claim, and North Ridge recovered only 46% of its
initial damages counterclaim.
6. In its proposed findings of fact and conclusions of law, Maxwell
asserted that neither party had prevailed. As such, it asserted that
“an award of attorney fees [was] not appropriate.”
20200924-CA 8 2022 UT App 109Maxwell v. North Ridge
The court thus concluded that neither party was the “comparative
victor,” so it “declare[d] a draw.” As a result, it did not award
either party its attorney fees.
¶24 North Ridge later moved to amend the court’s findings of
fact and conclusions of law under rule 52(b) of the Utah Rules of
Civil Procedure. In its motion, North Ridge contended that it did
not breach the subcontract because it “had a contractual basis to
withhold payment based on Maxwell’s failure to submit an
approved pay application.” (Quotation simplified.) North Ridge
further argued that “even under the current findings,” it was the
prevailing party and thus entitled to its attorney fees. (Quotation
simplified.)
¶25 The court denied North Ridge’s motion. It explained that
North Ridge had “not shown sufficiently or persuasively that the
parties’ Subcontract . . . allowed [North Ridge] to condition
payment of draws upon execution of lien releases by [Maxwell].”
Regarding the prevailing party ruling, the court concluded that it
“correctly declared a draw” and that North Ridge’s “arguments
to the contrary [were] unpersuasive.”
¶26 In its final judgment, the court “awarded judgment” to
Maxwell “on its claim for breach of contract . . . in the amount of
$18,537.40.” And it “awarded judgment” to North Ridge “on its
counterclaim for breach of contract . . . in the amount of $16,750.”
¶27 North Ridge appeals.
ISSUE AND STANDARD OF REVIEW
¶28 North Ridge challenges the district court’s denial of its
request for attorney fees, arguing that it was entitled to attorney
fees because it was the prevailing party. “Whether the district
court applied the correct legal standard is a question of law, which
we review for correctness.” Wihongi v. Catania SFH LLC, 2020 UT
App 109, ¶ 7, 472 P.3d 308 (quotation simplified). “But whether a
20200924-CA 9 2022 UT App 109Maxwell v. North Ridge
party is the prevailing party in an action is a decision left to the
sound discretion of the trial court and reviewed for an abuse of
discretion.” Id. (quotation simplified).
ANALYSIS
¶29 North Ridge challenges the district court’s denial of its
request for attorney fees on two primary fronts. First, North Ridge
argues that the district court committed several “factual and
legal” “input errors” that improperly altered the monetary
amounts the court used as the baseline for its prevailing party
determination. If those errors are corrected, North Ridge
contends, it becomes clear that the court abused its discretion.
Second, North Ridge argues that, even without the alleged input
errors, the court still abused its discretion when it determined that
neither party prevailed.
¶30 We first address the input question, and we conclude that
the court did commit one key input error. Correcting that error,
we then review the court’s prevailing party determination.
A. Input Error 7
¶31 When determining which party prevailed, our supreme
court has “stressed the importance of looking at the amounts
actually sought and then balancing them proportionally with
what was recovered.” Jordan Constr., Inc. v. Federal Nat’l Mortgage
Ass’n, 2017 UT 28, ¶ 65, 408 P.3d 296 (quotation simplified).
Consistent with this directive, the court below considered the
amount that each party sought and recovered, as well as each
7. North Ridge contends that the alleged input errors were
“threshold legal error[s]” to which we owe no deference. (Quoting
Northgate Village Dev. LC v. Orem City, 2018 UT App 89, ¶ 14, 427
P.3d 391.) We need not decide whether this is true, however,
because even under the more deferential standard, we would still
conclude that the district court erred.
20200924-CA 10 2022 UT App 109Maxwell v. North Ridge
party’s “success rate,” i.e., the percentage of claimed damages that
it recovered. The court viewed the relevant amounts as follows:
Amount Amount Success Rate
Sought Recovered
Maxwell $251,308.38 $65,223.71 26%
North Ridge $36,621 $16,750 46%
¶32 On appeal, North Ridge argues that the court erred by
using $65,223.71 as the amount that Maxwell recovered. We agree.
¶33 Below, the “parties stipulated that North Ridge ultimately
owes Maxwell the amount of $65,333.00 for work performed
under the Subcontract.” This amount represented (1) an
$18,537.40 final payment that North Ridge was withholding
because Maxwell would not sign a pay application and (2) a
$46,795.60 retainage that the city was withholding. 8
¶34 In its findings of fact at the close of the bench trial, the court
determined that “North Ridge breached paragraph 2.1 of the
Subcontract with respect to the $18,537.40 due and owing to
Maxwell.” And in the accompanying order, the court awarded
Maxwell “judgment in the amount of $18,537.40.” The final
judgment likewise “awarded judgment” to Maxwell “in the
amount of $18,537.40.”
¶35 North Ridge does not contest that it owes Maxwell
$18,537.40. Rather, its point of contention has to do with whether
the remaining $46,795.60 should have been included in Maxwell’s
recovery for purposes of the attorney fees calculation. On this,
North Ridge correctly points out that the court never concluded
that North Ridge had breached the subcontract by not paying the
8. There is a $109.29 difference between the amount the court used
as Maxwell’s recovery ($65,223.71) and the amount that the
parties stipulated North Ridge ultimately owed to Maxwell
($65,333). Neither party has argued that the difference is
significant or relevant, so we don’t consider it further.
20200924-CA 11 2022 UT App 109Maxwell v. North Ridge
$46,795.60. Instead, as noted, that money was being withheld by
the city, and as also noted, North Ridge’s subcontract with
Maxwell provided that North Ridge’s “actual receipt of payment”
from the city was “an express condition precedent to [North
Ridge’s] payment obligation to [Maxwell].” Thus, this portion of
the $65,223.71 had not yet become due by the time of Maxwell’s
suit, and it wouldn’t become due until the city released the
retainage funds to North Ridge. This is presumably why the
court’s final judgment did not ultimately include that amount in
its award.
¶36 Because of this, we agree with North Ridge that the court
erred by including the $46,795.60 in its assessment of what
Maxwell “recovered.” See Jordan Constr., 2017 UT 28, ¶ 65
(quotation simplified). Although past Utah cases have not
explicitly defined the term “recovered” in this specific context, the
most relevant authority suggests that the term refers to the
amount that the district court awarded in the judgment in the
case. See, e.g., Olsen v. Lund, 2010 UT App 353, ¶ 3, 246 P.3d 521(equating the “awarded damages” with the amount that the party
“recovered”). This understanding also comports with the term’s
typical legal usage. See Recover, Black’s Law Dictionary (11th ed.
2019) (defining “recover” as “obtain[ing] (a judgment) in one’s
favor”). And this makes sense. If the attorney fees question turns
on a determination of which party “prevailed,” and if that
determination turns on a comparative analysis of how much each
party obtained from the other as a result of the suit, it would make
little sense to consider amounts that were not awarded pursuant
to the judgment itself.
¶37 Here, the district court determined that North Ridge
breached the subcontract by not paying Maxwell $18,537.40, and
it accordingly awarded Maxwell a judgment of $18,537.40. Thus,
for the purposes of this attorney fees analysis, the court also
should have concluded that Maxwell “recovered” only
$18,537.40—not the $65,223.71 that it instead used in its
calculations.
20200924-CA 12 2022 UT App 109Maxwell v. North Ridge
¶38 Maxwell pushes back, however, contending that the
district court “rightfully used $65,223.71 as the amount recovered
because that amount was never paid and still has not been paid.”
And to be sure, the parties did “stipulate[] that North Ridge
ultimately owes Maxwell the amount of $65,333.00.” But again,
the court only determined that North Ridge breached the
subcontract by not paying $18,537.40 of that $65,333, and it only
awarded judgment to Maxwell in the amount of $18,537.40. The
court did not determine that North Ridge breached the
subcontract by withholding the retainage, and the retainage was
not reflected in the court’s judgment. For purposes of the
prevailing party analysis, the court should not have included
amounts that were not awarded to Maxwell. As a result,
$46,795.60 should not have been included in Maxwell’s recovery.
¶39 Because of this error, we agree with North Ridge that the
court should not have used $65,223.71 as Maxwell’s recovery.
Instead, Maxwell only recovered $18,537.40. And if the court had
used the correct recovery amount, the relevant amounts and
corresponding success rates would have instead been:
Amount Amount Success Rate
Sought Recovered
Maxwell $251,308.38 $18,537.40 7%
North Ridge $36,621 $16,750 46%
As this chart indicates, the court’s input error was therefore
significant because it incorrectly raised Maxwell’s success rate by
nineteen percentage points. 9
9. North Ridge asserts two additional input errors. We need not
address them, however, because our resolution of this particular
input error is enough to support our conclusion that the district
court abused its discretion when it determined that neither party
prevailed.
20200924-CA 13 2022 UT App 109Maxwell v. North Ridge
B. Prevailing Party Analysis
¶40 With the correct amounts in mind, we turn to the district
court’s prevailing party analysis.
¶41 Courts should use “common sense” when determining
which party, if any, prevailed. A.K. & R. Whipple Plumbing
& Heating v. Guy, 2004 UT 47, ¶ 11, 94 P.3d 270. The analysis
should be “flexible and reasoned” and not guided by “rigid”
rules. Id. ¶ 26; see also Express Recovery Services Inc. v. Olson, 2017
UT App 71, ¶ 10, 397 P.3d 792.
¶42 In some past cases, courts focused heavily on which party
won the “net judgment.” See, e.g., Mountain States Broad. Co. v.
Neale, 783 P.2d 551, 557 (Utah Ct. App. 1989). But our supreme
court has more recently “cautioned against considering only the
net judgment,” instead “stress[ing] the importance of looking at
the amounts actually sought and then balancing them
proportionally with what was recovered.” Jordan Constr., 2017 UT
28, ¶ 65 (quotation simplified). And we have likewise stated that
the “focus should be on which party had attained a comparative
victory, considering what a total victory would have meant for
each party and what a true draw would look like.” Olsen, 2010 UT
App 353, ¶ 8 (quotation simplified); see also Express Recovery
Services, 2017 UT App 71, ¶ 10. “Comparative victory—not
necessarily a shutout—is all that is required.” 10 Olsen, 2010 UT
App 353, ¶ 12.
10. The Utah Supreme Court has articulated a list of what
“[a]ppropriate considerations for the trial court would include” in
a prevailing party analysis. R.T. Nielson Co. v. Cook, 2002 UT 11,
¶ 25, 40 P.3d 1119 (explaining that courts might consider, for
example, “the number of claims, counterclaims, cross-claims, etc.,
brought by the parties,” as well as “the dollar amounts attached
to and awarded in connection with the various claims”). But the
supreme court has not always explicitly invoked that list, see, e.g.,
(continued…)
20200924-CA 14 2022 UT App 109Maxwell v. North Ridge
¶43 Because this analysis “depends, to a large measure, on the
context of each case,” “it is appropriate to leave this determination
to the sound discretion of the [district] court.” R.T. Nielson Co. v.
Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119. But even so, a district court’s
discretion is not unlimited. Indeed, we have reversed prevailing
party determinations in several cases in which we concluded that,
based on the circumstances at issue, there was an abuse of
discretion. See, e.g., Express Recovery Services, 2017 UT App 71,
¶ 19; Olsen, 2010 UT App 353, ¶¶ 14–15; Mountain States Broad. Co.,
783 P.2d at 556–69.
¶44 In this case, the district court first recognized that Maxwell
won “the net judgment” because “the $18,537.40 awarded under
Maxwell’s breach of contract claim is greater than the $16,750
awarded to North Ridge.” The court then acknowledged that
“[w]hen viewed through the lens of which party more closely
achieved a total victory, North Ridge is the comparative victor,
inasmuch as it defeated a higher percentage of the opposing
party’s claims and recovered a higher percentage of its own
claims.” But the court still concluded that “neither party” was
ultimately “the comparative victor,” so it “declare[d] a draw.”
This was because “Maxwell recovered a greater absolute amount,
but a lower percentage of its initial demand,” as well as because
“North Ridge defeated the majority of Maxwell’s claims, but
recovered only half of its own claimed damages, and ultimately
recovered fewer dollars than Maxwell.” The court also pointed
out that even though North Ridge “defeated a higher percentage
Jordan Constr., Inc. v. Federal Nat’l Mortgage Ass’n, 2017 UT 28,
¶¶ 65–70, 408 P.3d 296, and we understand it to be a helpful tool,
not a required list that courts must mechanically apply. Moreover,
although the parties’ arguments and the court’s analysis in this
case both included consideration of some of the factors, the parties
and the court did not ultimately focus on that list either. We
accordingly review the district court’s analysis without explicitly
applying the list of considerations set forth in R.T. Nielson.
20200924-CA 15 2022 UT App 109Maxwell v. North Ridge
of the opposing party’s claims,” “the percentage differences are
not extreme.”
¶45 We agree with the court’s assessments that Maxwell won
the net judgment and that North Ridge “defeated a higher
percentage of the opposing party’s claims and recovered a higher
percentage of its own claims.” But we disagree with the court’s
ultimate conclusion that “neither party is the comparative victor.”
After reviewing the amounts involved and how the litigation
unfolded, we instead conclude that North Ridge was the
comparative victor and that the district court abused its discretion
by concluding otherwise.
¶46 A central component of the district court’s determination
was that the difference between 26% (Maxwell’s success rate) and
46% (North Ridge’s success rate) was “not extreme.” Even
assuming that’s true, 26% was not the accurate number to use for
Maxwell’s success rate. As explained above, Maxwell was
successful on only 7% of its claimed damages. And we regard the
difference between 7% and 46% as being significant—Maxwell
recovered less than one tenth of its claimed damages, while North
Ridge recovered almost half of its claimed damages. 11
11. With respect to these percentages and the related concept of
the parties’ respective success rates, Maxwell contends that North
Ridge cannot be the prevailing party because its success rate was
not comparable to that of the prevailing party in Olsen v. Lund,
2010 UT App 353, 246 P.3d 521. We disagree with Maxwell’s
account of Olsen and the import of that case to our analysis here.
In Olsen, a home buyer sued the seller for $23,831.98 but
recovered only $754.77. See id. ¶ 3. The buyer accordingly had a
success rate of 3%, while the seller had a success rate of 97%. See
id. ¶ 13. When the seller moved for attorney fees, the district court
declared a draw, but we reversed on appeal, concluding that the
seller was the prevailing party. See id. ¶ 17. Maxwell argues that
North Ridge’s success rate of 46% is so distant from the seller’s
(continued…)
20200924-CA 16 2022 UT App 109Maxwell v. North Ridge
¶47 The import of all this becomes even more pronounced
when the “amounts actually sought” are balanced
“proportionally with what was recovered.” Jordan Constr., 2017
UT 28, ¶ 65 (quotation simplified); cf. Olsen, 2010 UT App 353, ¶ 7
(recognizing that a “party that makes an outrageous claim and
then receives only a fraction of what it demanded—though the net
judgment winner—will not likely be deemed the successful
party” (quotation simplified)).
¶48 Again, Maxwell sought $251,308.38 in damages, but it only
recovered $18,537.40. By contrast, North Ridge sought $36,621,
and it recovered $16,750—only $1,787.40 less than Maxwell. As
illustrated in the chart below, this means that while the parties
recovered similar amounts, Maxwell failed to recover on a much
higher percentage of its claims:
success rate of 97% that the district court here could not have
abused its discretion by declaring a draw. But contrary to its
apparent suggestion, Olsen didn’t purport to establish a baseline
rule under which anything short of the percentages involved in
that case must categorically fail.
In any event, Maxwell also overlooks a key difference
between this case and Olsen: unlike the seller in Olsen, North
Ridge counterclaimed in this case. So when we state that North
Ridge had a success rate of 46%, we are referring to the amount it
recovered on its own claims. Conversely, the 97% in Olsen
represented only the amount of the other party’s damages that the
seller defeated. See id. ¶¶ 3, 13. Here, if we considered only
Maxwell’s claims, North Ridge would have a 93% success rate
because Maxwell succeeded on only 7% of its claims—
percentages that are similar to those that led us to reverse in Olsen.
See id. ¶ 13. Our reasoning in Olsen therefore does not preclude us
from concluding that the court in this case abused its discretion.
20200924-CA 17 2022 UT App 109Maxwell v. North Ridge
Thus, while Maxwell made a large demand, it ultimately
recovered “only a fraction” of that after trial. Olsen, 2010 UT App
353, ¶ 7 (quotation simplified). This strongly suggests that the
court abused its discretion by declaring a draw.
¶49 Further, the “context of the lawsuit considered as a whole”
sheds additional light on the parties’ relative success. See R.T.
Nielson, 2002 UT 11, ¶ 25. Before presenting its case, North Ridge
had several victories that allowed it to reduce Maxwell’s claimed
damages. For example, Maxwell abandoned $40,211 of its
damages in response to North Ridge’s motions in limine.
Likewise, at the close of Maxwell’s case at trial, North Ridge filed
a rule 52(e) motion, and in ruling on that motion, the district court
dismissed two of Maxwell’s claims in their entirety and dismissed
a third in part. By contrast, Maxwell’s successes were
underwhelming. Although the court only awarded North Ridge
$16,750 of its initially claimed $36,621, nothing in the record
suggests that Maxwell was responsible for North Ridge not
recovering the full $36,621. Rather, North Ridge elected to seek
liquidated damages, thus voluntarily reducing its claimed
damages from the original $36,621 to $16,750. So Maxwell cannot
claim total responsibility for North Ridge’s failure to receive the
amount it initially claimed. And with regard to the amount that
20200924-CA 18 2022 UT App 109Maxwell v. North Ridge
Maxwell recovered, North Ridge never disputed that it owed
Maxwell $18,537.40; rather, North Ridge contended that it was
permitted to withhold that amount until Maxwell signed the final
pay application. Although Maxwell had to file suit to recover this
money without signing the pay application, what it ultimately
recovered was an amount that North Ridge had agreed all along
that Maxwell would eventually receive.
¶50 North Ridge’s comparative victory becomes even more
clear when “considering what a total victory would have meant
for each party and what a true draw would look like.” Olsen, 2010
UT App 353, ¶ 8 (quotation simplified). Here, a total victory for
Maxwell would have been recovering $251,308.38 with North
Ridge recovering nothing. And a total victory for North Ridge
would have been recovering $36,621 with Maxwell recovering
nothing. A “true draw”—dividing the judgment equally—would
have been a $107,343.69 net judgment in Maxwell’s favor. See id.As the number line below indicates, the actual net judgment of
$1,787.40 was far from a draw, and North Ridge was much closer
to a “total victory”:
¶51 Thus, while it’s true that North Ridge didn’t achieve a
“shutout,” it’s also true that it didn’t need a shutout to be entitled
to its attorney fees. Id. ¶ 12. Again, what it needed was a
“[c]omparative victory.” Id. After considering the pronounced
disparities between what each side sought and what each side
ultimately recovered, we think it’s clear that North Ridge was
20200924-CA 19 2022 UT App 109Maxwell v. North Ridge
indeed the prevailing party and that the district court exceeded its
discretion by concluding otherwise. 12
C. Attorney Fees on Appeal
¶52 North Ridge also requests its attorney fees incurred on
appeal. “A provision for payment of attorney fees in a contract
includes attorney fees incurred by the prevailing party on appeal
as well as at trial, if the action is brought to enforce the contract.”
Id. ¶ 16 (quotation simplified). We accordingly award North
Ridge its attorney fees reasonably incurred on appeal. See generally
Equitable Life & Cas. Ins. Co. v. Ross, 849 P.2d 1187, 1194 (Utah Ct.
App. 1993) (explaining that even though contractual attorney fees
are “a matter of legal right,” they “must be reasonable and
supported by adequate evidence”).
CONCLUSION
¶53 After considering the amount that each party sought and
was then awarded, as well as how close each party was to a total
victory, we conclude that the district court abused its discretion
by declaring a draw. North Ridge was the comparative victor, and
it is thus entitled to its reasonable attorney fees. We accordingly
reverse, and we also remand with instructions for the district
court to determine the reasonable attorney fees that North Ridge
incurred below and on appeal.
12. We note that both this number line and the bar graph provided
above are modeled after charts that North Ridge provided in its
briefing. We thank counsel for this helpful assistance.
20200924-CA 20 2022 UT App 109