Busico v. Carver

2023 UT App 162
THE UTAH C OURT OF APPEALS
A LEXANDRA B USICO, LOUISE BUSICO,
JOE BUSICO, AND E. A NN BUSICO,
Appellants and Cross-appellees,
v.
PAIGE C ARVER AND PHIPPS INCORPORATED DBA C OMPLETE
C ONSTRUCTION ,
Appellees and Cross-appellants.
Opinion
No. 20210847-CA
Filed December 29, 2023
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 190902484
Stephen K. Christiansen, Heidi K. Gordon, and Ryan
R. Bolander, Attorneys for Appellants and
Cross-appellees
Chase B. Ames, Nathan D. Anderson, and Michael D.
Lichfield, Attorneys for Appellees and
Cross-appellants
JUDGE R YAN D. T ENNEY authored this Opinion, in which J UDGES
DAVID N. M ORTENSEN and JOHN D. LUTHY concurred.
TENNEY, Judge:
¶1 	In late 2018, Joe and Ann Busico contracted with Complete
Construction to repair some damage that had been done to a
condo they owned. After Complete Construction began its work,
the Busicos became dissatisfied and terminated the contract. The
Busicos later sued Complete Construction, raising several causes
of action relating to breach of contract. Complete Construction
counterclaimed, raising a contract claim of its own, as well as a
claim seeking to foreclose on a construction lien that it had filed

Busico v. Carver
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on the condo.0F
1 The case was ultimately decided by the district
court after a bench trial. Of note, the court ruled in the Busicos’
favor on the lien foreclosure claim, but it denied their request for
attorney fees incurred defending against that particular claim.
The court also ruled in Complete Construction’s favor on the
competing contract claims filed by the parties.
¶2 	Both parties have now appealed. In their appeal, the
Busicos challenge the district court’s denial of their request for the
attorney fees they incurred defending against the lien foreclosure
claim. In its cross-appeal, Complete Construction challenges the
court’s 	denial 	of 	its 	lien 	foreclosure 	claim, 	and 	Complete
Construction also challenges the court’s denial of its request for
attorney fees relating to certain pretrial motions.
¶3 	As explained below, we affirm most of the court’s ruling
on the lien foreclosure claim, though we do reverse one aspect of
it. As a result of that reversal, we reverse the court’s ruling on the
Busicos’ request for attorney fees on the lien foreclosure claim,
and we remand that issue for further consideration in light of
principles 	set 	forth 	below. 	Finally, 	we 	reject 	Complete
Construction’s challenge to the denial of its request for fees
relating to certain pretrial motions.
1. “In years past, construction liens were commonly referred to as
‘mechanic’s liens,’ and many of the older cases cited herein use
this terminology. Today’s statutory language, however, speaks in
terms of ‘construction liens.’ . . . In this opinion, therefore, when
speaking in our own voice, we use the term ‘construction lien’
instead of ‘mechanic’s lien,’ but where older cases use the term
‘mechanic’s lien’ we make no effort to alter their terminology.”
Vineyard Props. of Utah LLC v. RLS Constr. LLC, 2021 UT App 144,
¶ 17 n.2, 505 P.3d 65.

Busico v. Carver
20210847-CA 	3 	2023 UT App 162
BACKGROUND
Complete Construction’s Work and Construction Lien
¶4 	Joe and Ann Busico own a condo in Salt Lake City, and
Joe’s mother Louise has an ownership interest in the condo as
well. In 2018, Alexandra Busico (who is Joe and Ann’s daughter)
began leasing the condo from her parents and grandmother.
¶5 	On September 5, 2018, Alexandra returned home after
work and discovered that a sewer backup had caused raw sewage
to flood onto the condo’s floors. Alexandra soon submitted a
homeowner’s claim to the insurer. On September 20, Alexandra
received a letter from the insurer denying coverage because, in the
company’s 	view, 	the 	backup 	was 	excluded 	under 	the
homeowner’s policy.
¶6 	On September 27, the Busicos contacted Paige Carver.
Carver owns and helps run Complete Construction, a company
that specializes in “insurance rebuilds[,] repairs,” and “remodels”
for residential projects. As part of her role, Carver typically made
“the initial contact with the new claims,” after which she acted as
the 	“go-between 	between 	the 	insurance 	company 	and 	the
homeowner or business.” The Busicos contacted Carver because
they had used Complete Construction on a project a few years
earlier.
¶7 	On 	September 	27 	or 	28, 	Carver 	met 	with 	Ann 	and
Alexandra at the condo and did a walk-through to assess the
damage. At the conclusion of this walk-through, Carver told Ann
and Alexandra that she thought the Busicos had a “really good
shot” at getting the insurance company to cover the necessary
repairs. She explained that the first step would be to get a plumber
to certify where the clog in the sewage line was that had caused
the backup, because this would help Carver determine whether
the homeowners’ association or, instead, the Busicos’ insurer
would be responsible for the damage. She explained that the next

Busico v. Carver
20210847-CA 	4 	2023 UT App 162
step would be to “get everything disinfected and cleaned” before
any repair work could start.
¶8 	The next day, Carver arranged for a plumber to come out
to the condo, and the plumber soon completed the necessary
work. Although the Busicos were responsible for paying the
plumber (because they had not yet officially hired Complete
Construction), Complete Construction paid the invoice in an
attempt to move the project along. Around the same time, the
Busicos personally removed some of the flooring, baseboards, and
carpeting from the condo.
¶9 	On October 4, Complete Construction submitted a bid to
the Busicos for the proposed project, estimating the cost to be
$11,106.88. On October 31, Joe, Ann, Alexandra, and Carver met
with a claims adjuster from the insurance company at the condo.
Complete Construction submitted a bid to the Busicos’ insurer
later that day. On November 2, the Busicos’ insurance company
agreed to cover Complete Construction’s repair work on the
condo. 	That 	same 	day, 	Alexandra 	directed 	Complete
Construction to begin work.
¶10 	On November 5, Carver sent a subcontractor to the condo
with instructions to “sanitize [the] floors and hopefully . . . get to
the kitchen sink.” Alexandra went to the condo that night.
Although she didn’t “see any evidence of any construction,” she
noticed that someone had “started some carpet removal in the
bedroom and the closet area” and that items had been “moved
around in the kitchen underneath the sink.” Between November
6 and 20, the subcontractor returned to the condo several times to
continue its work. During this period, its workers “pressure steam
clean[ed]” some of the flooring in the condo and also used a
“hospital grade disinfectant” to sanitize the areas that had been
impacted by the sewage backup.
¶11 	On 	November 	20, 	Complete 	Construction 	purchased
flooring materials that Alexandra had personally selected to

Busico v. Carver
20210847-CA 	5 	2023 UT App 162
replace the damaged flooring in the condo. The next day, a
Complete Construction crew began installing the new flooring.
¶12 	Between November 21 and November 30, the Busicos
expressed 	frustration 	with 	various 	aspects 	of 	Complete
Construction’s work. Much of their unhappiness was about
baseboards—Alexandra didn’t want baseboards installed, but
Complete Construction believed that baseboards were necessary
with the kind of flooring that Alexandra had selected and that not
installing baseboards would void the warranty. During this same
period, 	the 	Busicos 	also 	complained 	about 	Complete
Construction’s work on other issues, including some wiring and
electrical issues, issues relating to the flooring installation, and
issues relating to drywall repair and removal.
¶13 	On the morning of November 30, Complete Construction
filed a preliminary lien notice with the Utah State Construction
Registry. That same day, Alexandra returned to the condo during
her lunch break and became unhappy with some work that had
been done by Complete Construction’s crew. Alexandra arranged
for another construction company to come to the condo that day
to 	survey the 	project 	and 	provide 	a 	second 	opinion. 	After
consulting with this second company, Alexandra contacted the
city “to find out if a permit had been filed,” explaining that she
had been told by the second company that “a permit should have
been filed” before performing some of the work that had been
done. The city told her that no permit had been filed. Alexandra
then had a locksmith change the locks on the doors so that
Complete Construction would no longer have access to the condo.
After doing so, Alexandra texted a picture of the removed locks
to Complete Construction, faulted Complete Construction for not
obtaining permits, and instructed Complete Construction to
“come remove the flooring” that it had installed. Complete
Construction’s 	supervisor 	understood 	this 	text 	as 	being
Alexandra’s way of terminating Complete Construction from the
project. At trial, Alexandra confirmed that by sending this text,
she was indeed intending to terminate the contract.

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20210847-CA 	6 	2023 UT App 162
¶14 	After receiving Alexandra’s text, Complete Construction
contacted Joe and Ann and expressed its view that a permit wasn’t
required for the kind of work it had performed, as well as its view
that the flooring had been installed correctly. But the Busicos still
insisted that Complete Construction “make arrangements for the
floor to be removed.” On December 6, Complete Construction
returned to the condo and removed the flooring that it had
installed. Complete Construction subsequently issued an invoice
to the Busicos requesting payment of $8,499.15 for the work that
it had performed on the project. The Busicos declined to pay
Complete Construction, and on January 24, 2019, Complete
Construction filed a notice of a construction lien.
The Busicos’ Complaint and Complete Construction’s Counterclaim
¶15 	On March 26, 2019, the Busicos filed a complaint against
Complete Construction, pleading causes of action for breach of
contract, intentional or negligent misrepresentation, slander of
title, and a violation of the Utah Consumer Sales Practices Act.
The Busicos sought damages relating to the delays in the project
and costs of repair, damages for emotional distress they had
allegedly suffered, and damages relating to slander of title and
harm to their credit. In total, the Busicos sought $44,726 in
damages, plus “exemplary damages in amounts to be determined
by the Court, plus costs of suit and attorneys fees.”
¶16 	On April 22, the Busicos’ counsel received an email from
an attorney informing them that “Complete Construction [was] in
the process of retaining” him and requesting a stipulation to
extend the deadline to respond to the complaint by a few weeks.
Upon receiving this email, the Busicos’ counsel quickly filed a
motion with the court asking for a default judgment.
¶17 	On April 24, the district court entered a default certificate
in accordance with the Busicos’ motion. Later that day, however,
Complete Construction filed an opposition to the motion for
default judgment. There, Complete Construction asserted that the
Busicos had failed to serve Complete Construction properly, and

Busico v. Carver
20210847-CA 	7 	2023 UT App 162
it also informed the court that it had told the Busicos’ counsel of
its attorney’s pending representation before the Busicos had filed
their motion for a default judgment.
¶18 	On April 30, Complete Construction filed an answer and a
counterclaim. In its answer, Complete Construction raised a
number of defenses to the Busicos’ claims, including that the
Busicos had failed to state a claim upon which relief could be
granted, as well as that the claims were barred by such doctrines
as waiver, estoppel, and unclean hands. In its counterclaim,
Complete Construction pleaded three causes of action: (1) a lien
foreclosure claim “pursuant to Utah Code Ann. sections 38-1a-706
and 707”; (2) a breach of contract claim; and (3) an unjust
enrichment claim. Complete Construction’s lien foreclosure claim
requested 	“a 	decree 	of 	foreclosure 	enforcing 	[Complete
Construction’s] lien and foreclosing [the Busicos’] interests” in the
condo, as well as an order requiring that the condo be sold and
that the court then “apply the sales proceeds to reduce and/or
satisfy the debt” of $8,499.15 and a $135 lien recording fee.
Complete Construction also requested an order permitting it “to
augment any judgment it obtain[ed] herein to include the amount
of reasonable costs and attorney fees incurred by [Complete
Construction] 	in 	obtaining, 	enforcing, 	and 	preserving 	the
judgment.”
¶19 	The Busicos responded by filing a motion to strike the
answer and counterclaim, arguing that Complete Construction
had “failed to answer” the complaint “within the time period
required by the Rules.” At a hearing in May 2019, the district court
“set aside” the earlier default judgment for “good cause shown.”
¶20 	Many months of litigation then ensued, during which
Complete Construction prevailed on a number of disputes. For
example, the district court sided with Complete Construction in a
dispute about Complete Construction’s statement of discovery
issues, and the court also awarded Complete Construction the
attorney fees it had incurred in connection with that dispute
(though it reserved the question of how much it would award

Busico v. Carver
20210847-CA 	8 	2023 UT App 162
relating to that dispute). Later, the court denied two motions that
the Busicos had filed requesting summary judgment against
Complete Construction on its lien foreclosure claim. Later still, the
court granted Complete Construction’s request to dismiss most of
the Busicos’ damages claims, ruling that the Busicos had failed to
timely provide any “methodology for calculating their alleged
damages.” The only category of damages that the district court
allowed 	to 	proceed 	to 	trial 	was 	damages 	for 	“repair 	and
replacement,” a category for which the Busicos were seeking just
$3,871. The Busicos subsequently obtained new counsel, and
through 	new 	counsel, 	the 	Busicos 	tried 	serving 	Complete
Construction with supplemental damages disclosures. But the
court later granted Complete Construction’s request to strike
portions of the supplemental filing.1F
2
¶21 	The district court held a two-day bench trial in June 2021.
Shortly before trial, Complete Construction filed a pretrial brief in
which it asserted that, in light of the court’s rulings limiting the
Busicos’ damages claims, the “only remaining claim” from the
Busicos that could be litigated at trial was their breach of contract
claim. The Busicos did not file a pretrial brief of their own, and
they did not dispute this characterization at trial. Indeed, they
agreed with it. At the outset of his closing argument, for example,
the 	Busicos’ 	counsel 	informed 	the 	court 	that 	there 	were
“essentially two claims at issue in this case. The first is competing
claims for damages under the parties’ agreement” (an apparent
reference to the breach of contract claims), and “the second is the
defendants’ claim for lien foreclosure.”2F
3 (Emphasis added.)
2. In a filing that Complete Construction submitted around this
time, Complete Construction noted that the Busicos’ original
counsel had recently been disbarred. Cf. Matter of Discipline of
Steffensen, 2021 UT 1, 481 P.3d 468.
3. Something similar occurred in Zazzetti v. Prestige Senior Living
Center LLC, 2022 UT App 42, 509 P.3d 776, cert. denied, 525 P.3d
(continued…)

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20210847-CA 	9 	2023 UT App 162
¶22 	At the close of trial, the court issued an oral ruling that was
soon followed by a written decision. In the written decision, the
court first ruled against the Busicos on the contract claim that they
had filed against Complete Construction. The court ruled that the
Busicos 	had 	“not 	provide[d] 	sufficient 	testimony 	or 	other
evidence that any of the alleged material breaches constituted a
material breach of contract,” nor had the Busicos met “their
burden of proof as to any of the alleged property damages.” The
court thus dismissed the Busicos’ breach of contract claim with
prejudice.
¶23 	Turning to Complete Construction’s counterclaims, the
court ruled in Complete Construction’s favor on its breach of
contract 	claim 	against 	the 	Busicos 	and 	awarded 	Complete
Construction 	$8,499.15 	in 	damages. 	The 	district 	court 	then
dismissed Complete Construction’s unjust enrichment claim with
prejudice “as a result of Complete Construction prevailing on its
breach of contract claim.”3F
4
¶24 	But the court ruled against Complete Construction on its
lien foreclosure claim. The court relied on Utah Code section 38-
1a-501(1)(a), under which a contractor must file a preliminary
notice of a lien within 20 days of when it “commences providing
construction work on the real property.” In the court’s view, there
1260 (Utah 2022). As in this case, a party there failed to advance
some of its claims at trial, and the party likewise did not claim on
appeal that the court had erred in not ruling on them. Id. ¶ 38 n.5.
As a result, we “assume[d], for purposes of [the] appeal,” that the
party had “abandoned” those “claims sometime prior to trial.” Id.
We make a similar assumption here.
4. “Unjust enrichment is designed to provide an equitable remedy
where one does not exist at law. Therefore, if a legal remedy is
available, such as breach of an express contract, the law will not
imply the equitable remedy of unjust enrichment.” AGTC Inc. v.
CoBon Energy LLC, 2019 UT App 124, ¶ 19, 447 P.3d 123 (quotation
simplified).

Busico v. Carver
20210847-CA 	10 	2023 UT App 162
was “no question that some portion of the work Complete
Construction performed was lienable where there was physical
alteration or attachment” to the condo. But the court also noted
that 	under 	Utah 	Code 	section 	38-1a-102(11)(b), 	the 	term
“construction work” includes any “scheduling” and “estimating”
that 	is 	“involved 	in 	constructing, 	altering, 	or 	repairing 	an
improvement.” The court found that Complete Construction had
“estimated the project on October 4, 2018, and started scheduling
the project on November 2, 2018.” As a result, it concluded that
the preliminary notice that Complete Construction had filed on
November 30 was untimely.
¶25 	With respect to that same claim, the court also addressed
Complete Construction’s assertion that it could alternatively
recover for some of its work under “the five-day savings rule” set
forth in Utah Code section 38-1a-501(1)(c). In the court’s view,
“there was insufficient evidence of what lienable work included
in Complete Construction’s invoice was performed on or after the
fifth day after the preliminary notice was filed.” The court thus
dismissed Complete Construction’s lien foreclosure claim with
prejudice.
Competing Motions for Attorney Fees
¶26 	After the district court entered its ruling, the parties filed
competing motions for attorney fees. Complete Construction
sought to establish the amount of attorney fees that it had
previously been awarded on the discovery dispute. Complete
Construction also asked the court to invoke its “inherent and
equitable power” and award it the attorney fees it had incurred in
defeating certain “vexatious and oppressive motions and claims.”
Among others, Complete Construction referred to the Busicos’
attempt to obtain a default judgment despite having received
notice that Complete Construction had obtained representation,
as well as the Busicos’ assertion of various claims against multiple
defendants who had only tenuous connections to the case.

Busico v. Carver
20210847-CA 	11 	2023 UT App 162
¶27 	For their part, the Busicos requested attorney fees under
Utah Code section 38-1a-707(1), which states that “in any action
brought to enforce any lien under this chapter[,] the successful
party shall be entitled to recover reasonable attorney fees.” In the
Busicos’ view, because they had prevailed on both aspects of the
lien foreclosure claim (i.e., the main claim and the alternative
claim under the savings statute), they were the “successful party
on the lien foreclosure claim” and were entitled to the attorney
fees they had incurred in litigating it.
¶28 	After additional litigation relating to the attorney fee
issues, the court issued its decision. The court first awarded
Complete Construction $2,198 in fees relating to the earlier
dispute about the statement of discovery issues. But the court then
denied 	Complete 	Construction’s 	request 	for 	attorney 	fees
incurred in defeating the Busicos’ earlier motions. The court
agreed that the Busicos’ prior counsel had litigated the case
“overly aggressively” with respect to various motions and that
the court had been forced to spend its “time dealing with things
like 	defaulting 	represented 	parties, 	striking 	answers 	and
counterclaim that had no basis in law whatsoever.” Even so, the
court noted that it had awarded Complete Construction $2,198 in
attorney fees in conjunction with the dispute over the statement
of discovery issues, and it further noted that at least “some of that
amount” was related to Complete Construction’s response to the
same motions at issue in the fee request. The court “decline[d] to
exercise [its] discretion to go beyond” that, stating that the $2,198
was “as far as” the court would “go in terms of a fee award.”
¶29 	Turning to the Busicos’ claim for attorney fees on the lien
foreclosure claim, the court started by addressing the question of
whether the Busicos were indeed the “successful party.” To
answer that question, the court concluded that it should apply the
“flexible and reasoned approach” outlined in I-D Electric v.
Gillman, 	2017 	UT 	App 	144, 	¶ 	42, 	402 	P.3d 	802 	(quotation
simplified). The portion of I-D Electric relied on by the district
court calls for courts to “consider the net judgment in the case and
the 	amounts 	actually 	sought, 	and 	then 	balance 	them

Busico v. Carver
20210847-CA 	12 	2023 UT App 162
proportionally 	with 	what 	was 	recovered.” 	Id. 	(quotation
simplified). It further calls for consideration of “common sense
factors” such as the
(1) contractual language, (2) the number of claims,
counterclaims, cross-claims, etc., brought by the
parties, (3) the importance of the claims relative to
each other and their significance in the context of the
lawsuit considered as a whole, and (4) the dollar
amounts attached to and awarded in connection
with the various claims.
Id. (quotation simplified). Applying this test, the court first
concluded that all of the claims and counterclaims at issue in this
case “related to work performed at the property that was the
subject of the lien,” and it then opined that the “claims were
overly litigated as a result of the tactics undertaken by” the
Busicos’ former counsel—including the initial default request,
which, in the court’s view, had “no legitimate basis.” The court
also noted that it had rejected the Busicos’ various claims on either
summary judgment or at trial and that it had ruled in Complete
Construction’s favor on its contract claim. In light of the litigation
results as a whole, the court determined that the Busicos “were
not the ‘successful’ parties” and accordingly denied their motion
for attorney fees.
ISSUES AND STANDARDS OF REVIEW
¶30 	As noted, this case involves both an appeal from the
Busicos and a cross-appeal from Complete Construction, and the
issues raised in the appeal and cross-appeal are intertwined. For
analytical reasons, we’ll address them in the following order and
under the following standards of review.
¶31 	First, in its cross-appeal, Complete Construction raises two
challenges to the district court’s dismissal of its lien foreclosure

Busico v. Carver
20210847-CA 	13 	2023 UT App 162
claim: Complete Construction first argues that its preliminary
notice was timely, and second, it alternatively argues that it was
entitled to at least some relief under the savings statute. “We
review the trial court’s interpretation of the mechanics’ lien
statute for correctness,” Total Restoration, Inc. v. Merritt, 2014 UT
App 258, ¶ 7, 338 P.3d 836, and its “factual findings for clear
error,” Reeve & Assocs., Inc. v. Tanner, 2015 UT App 166, ¶ 14, 355
P.3d 232.
¶32 	Second, in their appeal, the Busicos challenge the court’s
denial of their request for attorney fees relating to their defense
on 	the 	lien 	foreclosure 	claim. 	“Whether 	attorney 	fees 	are
recoverable in an action is a question of law, which we review for
correctness.” Martin v. Kristensen, 2019 UT App 127, ¶ 31, 450 P.3d
66 (quotation simplified). However, “we review the trial court’s
determination as to who was the prevailing party under an abuse
of discretion standard.” Id. (quotation simplified).
¶33 	Finally, in its cross-appeal, Complete Construction argues
that the district court “erred in denying Complete Construction’s
request for attorney fees incurred in defending against” the
Busicos’ “vexatious and oppressive motions.” We review this
decision for an abuse of discretion. See Jensen v. Bowcut, 892 P.2d
1053, 1055 (Utah Ct. App. 1995).
ANALYSIS
I. Complete Construction’s Lien Foreclosure Claim
¶34 	Complete Construction argues that the district court erred
in ruling that its preliminary notice was untimely, as well as in
ruling that the savings statute did not apply. As explained in Part
I(A), we disagree with Complete Construction’s assertion that its
preliminary notice was timely filed, but as explained in Part I(B),
we agree with Complete Construction on its argument relating to
the savings statute.

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20210847-CA 	14 	2023 UT App 162
A. 	Complete Construction’s Preliminary Notice
¶35 	When a contractor claims that it was not paid for its work,
the Utah construction lien statutes allow the contractor to place a
lien on the property the contractor “worked on in the amount of
the unpaid labor or resources contributed.” Zion Village Resort LLC
v. Pro Curb U.S.A. LLC, 2020 UT App 167, ¶ 24, 480 P.3d 1055; see
generally Utah Code §§ 38-1a-101 to -805. But this statutory scheme
imposes an initial requirement under which any “person who
desires to claim a construction lien on real property” must “file a
preliminary notice” with the Utah State Construction Registry “no
later than 20 days after the day on which the person commences
providing construction work on the real property.” Utah Code
§ 38-1a-501(1)(a).
¶36 	Before 	2011, 	the 	statute 	stated 	that 	“[c]ontractors,
subcontractors, 	and 	all 	persons 	performing 	any 	services 	or
furnishing or renting any materials or equipment used in the
construction, alteration, or improvement of any building or
structure or improvement to any premises in any manner” could
file a lien upon the property in question. Id. § 38-1-3 (2010). In a
2011 	amendment, 	the 	legislature 	expanded 	the 	definitions
subsection, providing additional clarity and broadening the scope
of what is lienable under this statutory scheme. See Mechanics’
Liens Amendments, ch. 339, § 2, 2011 Utah Laws 1955, 1956
(amending Utah Code § 38-1-2, now codified at Utah Code § 38-
1a-102). This amended definitions subsection now stated that for
these purposes, the term “[c]onstruction service” meant
(a) . . . to provide labor, material, or equipment for
the purpose and during the process of constructing,
altering, or repairing an improvement; and
(b) includes the scheduling, estimating, staking,
supervising, 	managing, 	materials 	testing,
inspection, 	observation, 	and 	quality 	control 	or
assurance 	involved 	in 	constructing, 	altering, 	or
repairing an improvement.

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20210847-CA 	15 	2023 UT App 162
Id. The legislature has made a few additional changes to the
statute in ensuing years. But since 2012, the statute has been
consistent on what has now been referred to as “construction
work.” The current version states that the term
(a) means labor, service, material, or equipment
provided for the purpose and during the process of
constructing, altering, or repairing an improvement;
and
(b) 	includes 	scheduling, 	estimating, 	staking,
supervising, 	managing, 	materials 	testing,
inspection, 	observation, 	and 	quality 	control 	or
assurance 	involved 	in 	constructing, 	altering, 	or
repairing an improvement.
Utah Code § 38-1a-102(11).
¶37 	As 	noted, 	the 	district 	court 	focused 	on 	the 	words
“scheduling” and “estimating” from section 38-1a-102(11)(b),
concluding that because Complete Construction had “estimated
the project on October 4, 2018, and started scheduling the project
on November 2, 2018,” the preliminary notice that it filed on
November 30 was untimely.
¶38 	In their briefing and again at oral argument, the parties
spent much effort debating whether the court’s conclusions about
the scheduling and estimating components of this case were
correct. Complete Construction relies on this court’s decision in
Pentalon Construction, Inc. v. Rymark Properties, LLC, where we said
that “work” under these statutes “must be of the type that a
person using reasonable diligence in examining the property
would be able to see it and be on notice that lienable work was
underway.” 2015 UT App 29, ¶ 10, 344 P.3d 180 (quotation
simplified). Complete Construction asks us to adopt this as
something of an overarching framework that would apply to all
of the terms listed in the statute’s definition of “construction
work.” In Complete Construction’s view, giving standalone force

Busico v. Carver
20210847-CA 	16 	2023 UT App 162
to 	the 	terms 	“scheduling” 	and 	“estimating” 	without 	also
requiring some work on the ground would create absurdities—
such as requiring a contractor to file a preliminary notice after
even an initial phone call with a prospective client, a rule that
Complete Construction believes might overwhelm the system. By
contrast, the Busicos ask us to take the terms “scheduling” and
“estimating” at face-value—though, perhaps in recognition of the
same potential absurdities identified by Complete Construction,
the Busicos suggested at oral argument that these terms might
become operative only after the parties have entered into a
contract.
¶39 	This presents a potentially thorny question of statutory
interpretation. But we ultimately need not decide whether the
district 	court 	erred 	in 	relying 	on 	the 	“scheduling” 	and
“estimating” components of the statute in this case. This is so
because the preliminary notice filed by Complete Construction
was untimely under different language from the same subsection
that does plainly apply.
¶40 	As 	noted, 	the 	definitions 	subsection 	states 	that
“construction 	work” 	“means 	labor, 	service, 	material, 	or
equipment provided for the purpose and during the process of
constructing, altering, or repairing an improvement.” Utah Code
§ 38-1a-102(11)(a) (emphasis added). In ordinary usage, the term
“repair” means to “put something that is damaged, broken, or not
working correctly, back into good condition or make it work
again,”4F
5 or to “remedy” or “restore to sound condition after
damage or injury.”5F
6
¶41 	Here, the district court accepted Alexandra’s testimony
“that 	cleaning 	and 	disinfection 	of 	the 	Condo 	by 	Complete
5 . Repair, Cambridge Dictionary, https://dictionary.cambridge.or
g/us/dictionary/english/repair [https://perma.cc/4ES4-GFHH].
6 	. Repair, American Heritage Dictionary, https://ahdictionary.co
m/word/search.html?q=repair [https://perma.cc/3TRK-9PGJ].

Busico v. Carver
20210847-CA 	17 	2023 UT App 162
Construction’s subcontractor . . . began on November 5, 2018.”
And with respect to those disinfection efforts, the subcontractor
testified that his workers used a “hospital grade disinfectant” to
disinfect areas of the condo “that had been impacted by the
Category 3 water” from the sewage backup. Other testimony also
established that on November 5, 2018, Complete Construction’s
subcontractor “started some carpet removal” in the condo and
“removed the remaining parquet flooring” under the stove range.
Testimony further established that the subcontractor’s workers
“removed the toe kicks from the [kitchen] cabinets to inspect for
water underneath them” and that the subcontractor “pressure
steam clean[ed]” the concrete floors in the condo.
¶42 	We conclude that this work qualified as construction work
for purposes of this statute. By removing damaged flooring and
then 	spraying 	various 	surfaces 	down 	with 	high-grade
disinfectant, 	Complete 	Construction 	was 	attempting 	to
ameliorate the damage done by the sewage backup, thus putting
the condo back into good condition and restoring it to its
previously habitable state. By doing so, Complete Construction
was 	therefore 	providing 	“labor” 	and 	“service” 	“during 	the
process of . . . repairing” the condo, which was enough to
constitute construction work under Utah Code section 38-1a-
102(11).
¶43 	Complete Construction has not disputed that this work
was done by the subcontractor or that it began on November 5,
nor has Complete Construction argued that work done by the
subcontractor couldn’t be attributed to it for purposes of this
statutory 	scheme. 	Cf. 	id. 	§ 	38-1a-501(1)(b) 	(noting 	that 	“a
preliminary notice is effective as to all construction work that the
person filing the notice provides to the construction project under
a single original contract, including construction work that the
person provides to more than one supervisory subcontractor
under that original contract”). Instead, Complete Construction
argues 	that 	the 	work 	described 	above 	“did 	not 	constitute
construction work” because it was “remedial” in nature. And to
be clear, this argument does find some support in past Utah cases.

Busico v. Carver
20210847-CA 	18 	2023 UT App 162
In one case, for example, we held that “ordinary maintenance,”
“minor repairs,” and “cleanup work” are not lienable, whereas
“improvement” work on a property is. All Clean, Inc. v. Timberline
Props., 2011 UT App 370, ¶¶ 15–16, 264 P.3d 244 (quotation
simplified). In another, our supreme court held that “ordinary
maintenance or cleanup work does not serve as a basis for
‘tacking’ so as to fix an earlier lien date . . . for labor and materials
supplied.” Calder Bros. Co. v. Anderson, 652 P.2d 922, 924 (Utah
1982) (quotation simplified).
¶44 	But the cases that Complete Construction relies on for this
argument were based on versions of the statute that predate the
2011 amendment described above. Complete Construction points
to no case holding that this rule still applies under the version of
the 	statute 	that 	post-dates 	the 	2011 	amendment. 	As 	noted,
however, 	the 	2011 	amendment 	added 	“repairing” 	to 	the
definition of “construction work.” And we have no difficulty
concluding that the acts in question here—tearing up damaged
flooring and then disinfecting damaged and infected surfaces—
qualify as repairs. Because of this, we conclude that it qualified as
“construction work” for purposes of this statute.
¶45 	The 	remaining 	question, 	then, 	is 	whether 	Complete
Construction’s preliminary notice was timely. It was not. Again,
Complete Construction was required to file its preliminary lien
notice within 20 days of beginning construction work, and
construction work began by November 5, 2018. But Complete
Construction didn’t file its notice until November 30. Because this
was outside the 20-day window, the district court therefore did
not err in concluding that the preliminary notice was untimely. It
therefore 	committed no 	error 	in 	dismissing 	that 	portion of
Complete Construction’s lien foreclosure claim.
B. 	Savings Statute
¶46 	Utah Code section 38-1a-501(1)(c)(i) contains what the
parties have referred to as a “savings statute.” Under its terms, a
“person who desires to claim a construction lien on real property

Busico v. Carver
20210847-CA 	19 	2023 UT App 162
but fails to file a timely preliminary notice . . . may . . . file a
preliminary notice with the registry after the period specified in
Subsection (1)(a).” Id. But a “person who files a preliminary notice
under Subsection (1)(c)(i) may not claim a construction lien for
construction work the person provides to the construction project
before the date that is five days after the preliminary notice is
filed.” Id. § 38-1a-501(1)(c)(ii).
¶47 	Complete Construction argued below that, even if its
preliminary notice was untimely under the initial 20-day rule, it
was entitled to at least some relief under the savings statute. The
district court disagreed, however, simply concluding that “there
was insufficient evidence of what lienable work included in
Complete Construction’s invoice was performed on or after the
fifth day after the preliminary notice was filed.” The court
provided no further explanation for this portion of its ruling.
Complete Construction challenges that ruling in its cross-appeal,
and we agree with Complete Construction on this point.
¶48 	As noted, Complete Construction filed its preliminary
notice 	on 	November 	30, 	2018. 	Under 	the 	savings 	statute,
Complete Construction would therefore have a claim for any
construction work that it performed five days or more after that
date. At trial, Joe Busico and Paige Carver both agreed that on
December 6, 2018—which is more than five days from November
30, 2018—Complete Construction returned to the condo and
removed the flooring that it had previously installed. In their
briefs to us on appeal, the Busicos do not dispute that this work
occurred on that date. Instead, the Busicos affirmatively agree that
“Complete 	Construction’s 	crew 	removed 	flooring 	from 	the
Busicos’ Condo on December 6, 2018.”
¶49 	Again, the statute in question defines “construction work”
as including “labor, service, material, or equipment provided for
the purpose and during the process of constructing, altering, or
repairing an improvement.” Id. § 38-1a-102(11)(a) (emphasis
added). The term “alter” is understood as meaning “to make

Busico v. Carver
20210847-CA 	20 	2023 UT App 162
different without changing into something else.”6F
7 The act in
question here is removing previously installed flooring from a
home. 	We 	have 	no 	difficulty 	concluding 	that 	Complete
Construction altered this condo when it removed flooring that
had previously been installed in it.
¶50 	The Busicos nevertheless suggest that under All Clean, Inc.,
2011 UT App 370, ¶ 14, construction work must “add value” to be
lienable. From this, the Busicos argue that “undo[ing] what was
done” to a property does not “add value.” But All Clean, Inc., was
decided under the previous version of the statute. As noted, the
legislature amended the statute in 2011, and we’ve concluded that
the work in question qualified under the current version of the
statute.7F
8
7 . Alter, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/alter [https://perma.cc/ZK7Y-BCPY].
8. In any event, we don’t read All Clean, Inc., as mandating a
different result. In that opinion, we said that while “minor repair
work is not an improvement for purposes of the mechanics’ lien
statute, . . . more significant repairs are.” All Clean, Inc. v.
Timberline Props., 2011 UT App 370, ¶ 15 n.4, 264 P.3d 244. And by
“more significant,” we included “any change to or replacement of
either fixtures or structural components.” Id. As indicated, the
work in question here did indeed include the replacement of
“structural 	components” 	(namely, 	the 	previously 	installed
flooring), so it would qualify.
Regardless, even under the Busicos’ own framing of the
events, this work did add value. The Busicos instructed Complete
Construction 	to 	remove 	this 	flooring 	because 	the 	Busicos
apparently wanted to replace it—either with similar flooring that
was installed differently, or, perhaps, with different flooring
altogether. Either way, the Busicos thought this flooring needed
to be removed so that they could have someone else install
flooring that conformed to their desires. Removing this flooring
(continued…)

Busico v. Carver
20210847-CA 	21 	2023 UT App 162
¶51 	Given 	this, 	we 	reverse 	the 	district 	court’s 	denial 	of
Complete Construction’s claim under the savings statute, and we
remand for a determination of the value of the construction work
that was performed five days or more after the November 30
preliminary notice.
II. The Busicos’ Request for Attorney Fees on the Lien
Foreclosure Claim
¶52 	After the district court dismissed Complete Construction’s
lien foreclosure claim, the Busicos requested the attorney fees that
they had incurred defending against it. The Busicos relied on Utah
Code 	section 	38-1a-707(1), 	which 	states that 	“in 	any 	action
brought to enforce any lien under this chapter[,] the successful
party shall be entitled to recover reasonable attorney fees, to be
fixed by the court, which shall be taxed as costs in the action.” In
considering 	this 	request, 	the 	court 	applied 	a 	“flexible 	and
reasoned approach,” under which it considered the parties’
relevant successes on the litigation as a whole, including various
pretrial motions, as well as the parties’ ultimate successes (or lack
thereof) on the causes of action in the Busicos’ complaint and the
causes 	of 	action 	in 	Complete 	Construction’s 	counterclaim.
Viewing the case globally, the court determined that the Busicos
“were not the ‘successful’ parties,” and it thus denied their motion
for attorney fees. In their appeal, the Busicos now challenge that
denial, arguing that the court was required by statute to award
them the fees in question.8F
9
thus added value to their condo by allowing them to complete
their plans for the condo.
9 . 	Complete 	Construction 	initially 	argues that 	the 	Busicos’
argument was unpreserved. We disagree. In their motion, the
Busicos claimed they were “entitled” to attorney fees, and at oral
argument on that motion, they emphasized what they saw as the
“mandatory nature” of the statutory provision in question.

Busico v. Carver
20210847-CA 	22 	2023 UT App 162
¶53 	We have now reversed the district court on the savings
statute issue, so we have necessarily changed one piece of the
court’s “successful party” calculus on attorney fees. And we’ve
also remanded for the district court to consider that issue anew.
We nevertheless note here that the Busicos have challenged the
analytical framework that the district court used earlier on two
particular fronts: first, the Busicos argue that the court should
have limited its analysis to considering who prevailed on the lien
foreclosure claim, as opposed to also considering the parties’
successes on the other claims; and second, the Busicos argue that
because it was “manifestly obvious” that they had prevailed on
the lien foreclosure claim, the court should not have applied the
“flexible and reasoned approach” at all. Because both of these
arguments have been fully briefed and argued in this appeal, and
because both will likely impact the court’s analysis of this attorney
fee issue on remand, we address them. See State v. James, 819 P.2d
781, 795 (Utah 1991) (“Issues that are fully briefed on appeal and
are likely to be presented on remand should be addressed by this
court.”).
A. 	Successful Party
¶54 	Utah Code section 38-1a-707(1) states that “in any action
brought to enforce any lien under this chapter[,] the successful
party shall be entitled to recover reasonable attorney fees, to be
fixed by the court, which shall be taxed as costs in the action.” The
parties have differing views about the scope of a “successful
party” analysis under this statute. In the Busicos’ view, a court
should only look to the parties’ successes “relating directly to the
specific mechanic’s lien at issue,” and a court should not “allow
other 	claims 	to 	override 	the 	mechanic’s 	lien 	decision.” 	In
Complete Construction’s contrasting view, a court can more
broadly consider the parties’ successes on claims that “aris[e]
from the same underlying facts.” Having reviewed the controlling
caselaw, we conclude that the answer lies somewhere in between.
¶55 	In some (if not many) circumstances, a court’s analysis of
who the “successful party” is for purposes of an attorney fee

Busico v. Carver
20210847-CA 	23 	2023 UT App 162
provision will require an assessment of the parties’ relative
successes in the case as a whole. See, e.g., R.T. Nielson Co. v. Cook,
2002 UT 11, ¶ 25, 40 P.3d 1119 (evaluating “the number of claims”
and their relative importance “in the context of the lawsuit
considered as a whole”); Olsen v. Lund, 2010 UT App 353, ¶ 8, 246
P.3d 521 (stating that “the focus should be on which party had
attained a comparative victory” (quotation simplified)). And this
is often so where the request for attorney fees is based on a
provision that turns on who the “successful party” was without
any particular qualification.9F
10
¶56 	But the provision in question here does have an internal
qualification. Again, it states that “in any action brought to enforce
any lien under this chapter[,] the successful party shall be entitled to
recover reasonable attorney fees.” Utah Code § 38-1a-707(1)
(emphasis added). It’s true that the term “action” is sometimes
understood to refer to the case as a whole, as opposed to a
particular cause of action or claim. See, e.g., Action, Black’s Law
Dictionary (11th ed. 2019) (noting that “the terms action and suit
are nearly if not quite synonymous” (quotation simplified)). Even
so, the term “action” in this statute is immediately followed by the
phrase “brought to enforce any lien under this chapter.” Utah
Code § 38-1a-707(1). The meaning of “brought to enforce any lien”
seems plain enough on its face. And under our statutory scheme,
the adjoining limitation—“under this chapter”—would refer to an
action that is brought under chapter 1a of Title 38. Thus, the plain
language of this statute seems to contemplate that the “successful
party” analysis is limited in some sense to parties’ successes
relating to the lien litigation itself.
10. Many attorney fee provisions use the term “prevailing party”
instead. See, e.g., R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 7, 40 P.3d
1119; Westmont Mirador LLC v. Shurtliff, 2014 UT App 184, ¶ 5, 333
P.3d 369. For purposes of analyses such as this one, our supreme
court has concluded that the terms are “interchangeabl[e].” A.K.
& R. Whipple Plumbing & Heating v. Guy, 2004 UT 47, ¶ 19, 94 P.3d
270.

Busico v. Carver
20210847-CA 	24 	2023 UT App 162
¶57 	When considering this provision, our courts have indeed
interpreted it in something of a restrictive manner. But they still
haven’t gone as far as the Busicos suggest. Our supreme court
examined this question in A.K. & R. Whipple Plumbing & Heating
v. Guy, 2004 UT 47, 94 P.3d 270. There, Whipple (a plumbing
subcontractor) had a dispute with Aspen (a general contractor)
concerning work that Whipple had performed on a property. See
id. ¶¶ 2–3. Whipple filed a lien foreclosure action, after which
Aspen counterclaimed seeking damages for Whipple’s “allegedly
negligent HVAC work” on that same property. Id. ¶ 3. The district
court eventually ruled in both sides’ favor on certain aspects of
their claims, with the result being a net judgment to Aspen of
$527. See id. When Aspen then requested attorney fees under the
attorney fee provision from the mechanic’s lien statute, the district
court concluded that the case was a draw and declined the
request. See id. ¶ 4.
¶58 	Aspen appealed, and when the case ultimately arrived at
the supreme court, one of the questions at issue was the scope of
the “successful party” analysis under this statute. The supreme
court answered that question as follows:
We emphasize, however, that a court should look
only 	to 	the 	parties’ 	claims 	and 	counterclaims
relating directly to the specific mechanic’s lien at
issue. Stated another way, when assessing which
party is the “successful party” under the mechanic’s
lien 	statute, 	a 	court 	should 	confine 	itself 	to
consideration of only those claims relating directly
to 	both 	the 	particular 	property 	on 	which 	the
mechanic’s lien action is asserted and the particular
work on which the mechanic’s lien action is based.
Id. ¶ 17 n.5. Notably, when the supreme court applied this
framework to the dispute at issue, the court took into account both
the lien foreclosure action filed by Whipple and the counterclaims
from Aspen that “relat[ed] directly to the mechanic’s lien action

Busico v. Carver
20210847-CA 	25 	2023 UT App 162
on that property.” Id. Even though Aspen’s counterclaims were
for “allegedly negligent HVAC work,” id. ¶¶ 2–3, the court still
considered Aspen’s success on those claims in its analysis of who
the 	successful 	party 	was 	for 	purposes 	of 	this 	attorney 	fee
provision. See id. ¶¶ 27–28.
¶59 	We offered additional clarification on this provision in
Ellsworth Paulsen Construction Co. v. 51-SPR, LLC, 2006 UT App
353, 	144 	P.3d 	261. 	There, 	we 	recognized 	that 	“under 	the
mechanic’s lien statute,” a party “is not entitled to attorney fees
incurred in pursuing its nonlien claims which were completely
separate.” Id. ¶ 47 (quotation simplified). But we then recognized
that attorney fees relating to a “breach of contract claim” at issue
in the case were “so inextricably tied to the mechanic’s lien claim”
that it warranted “grouping these fees together.” Id. We explained
that “it almost goes without saying that a breach of contract claim
is typically such an integral part of a mechanic’s lien claim that a
party cannot pursue such a claim without also proving the
existence of a contract, a payment due under the contract, and a
breach of that contract by nonpayment.” Id.
¶60 	Our supreme court later reinforced this overall construct in
Jordan Construction, Inc. v. Federal National Mortgage Association,
2017 UT 28, 408 P.3d 296. There, the court was again confronted
with a “successful party” question under this same statutory
provision. See id. ¶¶ 65–70. In considering the question before it,
the supreme court did not strictly confine itself to the parties’
successes on the lien foreclosure action alone. The court noted that
one of the parties (FNMA) had successfully defended itself
against a separate claim for “declaratory relief” that had been filed
by 	the 	other 	party 	(Jordan 	Construction). 	Id. 	¶ 14. 	That
declaratory relief action had sought to bind FNMA to findings of
fact and conclusions of law that had been entered against yet
another party in earlier portions of the case that involved claims
for “breach of contract, unjust enrichment, promissory estoppel,
conversion, and foreclosure of [a] mechanic’s lien.” Id. ¶¶ 8, 11,
14. Thus, even though litigation on that declaratory relief claim
was separate from litigation on the mechanic’s lien claim, the

Busico v. Carver
20210847-CA 	26 	2023 UT App 162
supreme court still considered FNMA’s success on the declaratory
relief claim as part of its determination of who the “successful
party” was for purposes of the attorney fee provision from the
mechanic’s lien statute. See id. ¶¶ 69–70.
¶61 	Given all this, we disagree with the Busicos’ assertion that
the successful party analysis in this case should be strictly limited
to the parties’ successes on the lien foreclosure claim alone. True,
the district court does not have unfettered license on remand to
consider any and all litigation between these parties. But the court
may consider the parties’ successes on any “claims relating
directly to both the particular property on which the mechanic’s
lien action is asserted and the particular work on which the
mechanic’s lien action is based.” A.K. & R. Whipple Plumbing
& Heating, 2004 UT 47, ¶ 17 n.5. And in doing so, the court may
consider 	the 	parties’ 	successes 	on 	any 	claims 	that 	were
“inextricably tied to the mechanic’s lien claim,” which would
include, among others, litigation on any breach of contract claim
that was linked to the lien. Ellsworth Paulsen Const. Co., 2006 UT
App 353, ¶ 47.
B. 	Flexible and Reasonable Approach
¶62 	The next question is the extent to which the so-called
“flexible and reasoned” approach to the attorney fee question
applies to this case.
¶63 	In A.K. & R. Whipple Plumbing & Heating, our supreme
court held that the “successful party” determination is not limited
to which party received the “net judgment.” 2004 UT 47, ¶ 26.
Rather, the court adopted a “flexible and reasoned approach,”
under which courts “use their common sense in deciding whether
a party was ‘successful’ in bringing or defending against a
mechanic’s lien enforcement action.” Id. Under this approach,
courts consider “the net judgment in the case and the amounts
actually sought,” and courts then “balance them proportionally
with what was recovered.” I-D Elec. Inc. v. Gillman, 2017 UT App

Busico v. Carver
20210847-CA 	27 	2023 UT App 162
144, 	¶ 42, 	402 	P.3d 	802 	(quotation 	simplified). 	Courts 	also
“consider[] common sense factors,” such as
(1) the contractual language, (2) the number of
claims, counterclaims, cross-claims, etc., brought by
the parties, (3) the importance of the claims relative
to each other and their significance in the context of
the lawsuit considered as a whole, and (4) the dollar
amounts attached to and awarded in connection
with the various claims.
Id. (quotation simplified).
¶64 	As noted by the Busicos, we’ve held that a district court
need not employ the flexible and reasoned approach if it is
“manifestly 	obvious 	which 	party 	was 	the 	successful 	one.”
EDSA/Cloward, LLC v. Klibanoff, 2008 UT App 284, ¶ 14, 192 P.3d
296 	(quotation 	simplified); 	accord 	Westmont 	Mirador 	LLC 	v.
Shurtliff, 2014 UT App 184, ¶ 11, 333 P.3d 369; Giles v. Mineral Res.
Int’l, Inc., 2014 UT App 37, ¶ 10, 320 P.3d 684. In their arguments
to us, the parties disagree about whether it should have been
manifestly obvious to the district court that the Busicos had
prevailed. But those arguments were responsive to a prior world
in which the district court had ruled in the Busicos’ favor on both
aspects of the lien foreclosure claim. We’ve now reversed the
district court’s ruling on the savings statute aspect of that claim,
and under the resultant posture of this case, we don’t regard it as
being manifestly obvious who the successful party was for
purposes of this fee request.
¶65 	In other contexts, we’ve recognized that because “the
identity of the prevailing party depends, to a large measure, on
the context of each case, . . . the district court is in a better position”
than an appellate court to decide whether a party should receive
its fees. North Fork Meadows Owners Ass’n, Inc. v. Dove, 2023 UT
App 107, ¶ 23, 537 P.3d 258 (quotation simplified); accord Utah
Transit Auth. v. Greyhound Lines, Inc., 2015 UT 53, ¶ 58, 355 P.3d
947. The same would be true with respect to a “successful party”

Busico v. Carver
20210847-CA 	28 	2023 UT App 162
analysis from the mechanic’s lien statute. On remand, the district
court should therefore employ the flexible and reasoned approach
to determine whether the Busicos are entitled to their attorney
fees.10F
11
III. Complete Construction’s Request for Attorney Fees under
the District Court’s Inherent and Equitable Power
¶66 	“In Utah, attorney fees are awardable only if authorized by
statute or by contract.” Silva v. Silva, 2018 UT App 210, ¶ 26, 437
P.3d 593 (quotation simplified). “However, in the absence of a
statutory 	or 	contractual 	authorization, 	a 	court 	has 	inherent
equitable power to award reasonable attorney fees when it deems
it appropriate in the interest of justice and equity.” Stewart v. Utah
Public Service Comm’n, 885 P.2d 759, 782 (Utah 1994), superseded on
other grounds by Utah Code § 78B-5-825.5, as recognized in Laws v.
Grayeyes, 2021 UT 59, ¶¶ 50, 54, 498 P.3d 410. This “power is part
of the original authority of the chancellor to do equity in a
particular situation.” Hughes v. Cafferty, 2004 UT 22, ¶ 21, 89 P.3d
148 (quotation simplified). And “courts have exercised that
inherent power in several categories of cases, such as when a
party acts in bad faith, vexatiously, wantonly, or for oppressive
reasons.” Silva, 2018 UT App 210, ¶ 26 (quotation simplified).
¶67 	In its cross-appeal, Complete Construction invokes this
power and argues that the district court abused its discretion by
denying Complete Construction’s request for attorney fees that it
incurred 	in 	defending 	against 	the 	Busicos’ 	“vexatious 	and
oppressive motions.” Before answering that question, we first
note some disagreement between the parties about whether this
11. The Busicos also requested the attorney fees they’ve incurred
on appeal, but this request was premised on their assertion that
they were entitled to fees under the court’s previous rulings on
the lien foreclosure action. Because we have reversed one aspect
of the district court’s ruling, and because we have also remanded
for reconsideration of the attorney fee question, we deny this
request.

Busico v. Carver
20210847-CA 	29 	2023 UT App 162
power was available to the district court at all. Again, Stewart held
that this equitable power exists “in the absence of a statutory or
contractual authorization.” 885 P.2d at 782 (emphasis added). The
Busicos point out that Utah Code section 78B-5-825(1) states that
in “civil actions, the court shall award reasonable attorney fees to
a prevailing party if the court determines that the action or
defense to the action was without merit and not brought or
asserted in good faith.” In the Busicos’ view, this statute “covers
exactly the same subject matter” that’s at issue in Complete
Construction’s motion for attorney fees. From this, the Busicos
argue that the court lacked any equitable power to grant these fees
in 	this 	circumstance. 	Complete 	Construction, 	however, 	sees
things differently. It notes that the Busicos have not pointed to any
authority holding that section 78B-5-825 “preempt[s]” a court’s
inherent 	equitable 	authority 	to 	award 	fees. 	In 	Complete
Construction’s view, the equitable power does not require the
absence of a contractual or statutory right, but instead “operates
outside” any contractual or statutory authorization.
¶68 	We see no definitive answer to this question in the cases. In
one unpublished case, we did suggest that a district court’s
inherent equitable power was unavailable where a particular
statutory attorney fee provision “clearly applie[d].” See In re
A.B.W., 2004 UT App 101U, para. 2 n.1. But in another case, we
considered a request to invoke our “inherent equitable power to
award fees in the interest of justice and equity” alongside a
request for fees under rule 33 of the Utah Rules of Appellate
Procedure, even though we regarded our disposition of the two
requests as being “similar.” Petrzelka v. Goodwin, 2020 UT App 34,
¶¶ 50–52, 461 P.3d 1134 (quotation simplified). And in yet another
case, we considered a request for fees based on our equitable
authority, and we did so despite the fact that the claim was based
on allegedly bad faith litigation. See Rehn v. Christensen, 2017 UT
App 21, ¶¶ 30–35, 392 P.3d 872.
¶69 	Moreover, it’s true that Stewart suggested that this power
exists “in the absence of a statutory or contractual authorization,”
885 P.2d at 782—a framing that seemingly implies that the

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20210847-CA 	30 	2023 UT App 162
inherent equitable power does not exist if there is statutory or
contractual authorization for the attorney fee awards. But in
support for this proposition, Stewart pointed to Hall v. Cole, 412
U.S. 1 (1973). See Stewart, 885 P.2d at 782. In Hall, however, the
United States Supreme Court framed things in a slightly different
way, 	stating 	that 	“although 	the 	traditional 	American 	rule
ordinarily 	disfavors the 	allowance 	of 	attorneys’ 	fees in 	the
absence of statutory or contractual authorization, federal courts,
in the exercise of their equitable powers, may award attorneys’
fees when the interests of justice so require.” 412 U.S. at 4–5
(emphases 	added, 	quotation 	otherwise 	simplified). 	Hall’s
“although . . . may” framing arguably suggests that a court’s
inherent equitable power is separate from any statutory or
contractual authorization.
¶70 	But we ultimately need not decide whether the Busicos or
Complete Construction are correct about this. Assuming for sake
of argument only that the district court could invoke its inherent
equitable power in this case despite the existence of the seemingly
similar statute, we still see no basis for overturning the court’s
decision not to do so. Again, a court’s decision to award (or not
award) fees under its inherent equitable power is discretionary.
See Rehn, 2017 UT App 21, ¶ 32. And a court that is tasked with
“making an equitable award of fees” under this power “is
concerned not with a party’s legal entitlement to an award, but
with the equities.” Id. (quotation simplified).
¶71 	In 	modern 	litigation, 	attorney 	fees 	are 	very 	often
awardable through statute, rule, or contractual agreement. Given
this, we assume that it will be the rare case where a party
successfully 	obtains 	attorney 	fees 	under 	a 	court’s 	equitable
power. And given the deferential nature of our review, it will be
a decidedly rare case where an appellate court will reverse a trial
court’s decision declining to employ those powers—particularly
if an award of attorney fees was potentially in play through some
other mechanism and fees were not ultimately awarded.

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20210847-CA 	31 	2023 UT App 162
¶72 	Here, Complete Construction argues that the Busicos acted
in a “vexatious and oppressive” manner during the litigation.
Complete Construction’s argument is phrased broadly; but in its
briefing to us, Complete Construction focuses on the Busicos’
motion for default judgment and their motion to strike Complete
Construction’s 	answer 	and 	counterclaim. 	In 	Complete
Construction’s view, these filings “had no legal basis and only
served to delay the adjudication of the parties’ respective claims.”
¶73 	It’s true that the district court expressed some concern
about 	these 	very 	motions. 	In 	its 	ruling 	on 	Complete
Construction’s request for attorney fees, the court observed that
the Busicos’ prior counsel had taken an “overly aggressive[]”
litigation position with respect to these motions, and it noted that
it had been forced to spend its “time dealing with things like
defaulting represented parties, striking answers and counterclaim
that had no basis in law whatsoever.” But the court still declined
to grant Complete Construction’s request for attorney fees. The
court noted that it had already awarded Complete Construction
$2,198 in attorney fees in conjunction with the dispute over the
statement of discovery issues, and it further noted that at least
“some of that amount” was related to Complete Construction’s
response to the same motions at issue here. The court then
“decline[d] to exercise [its] discretion to go beyond” that, stating
that the $2,198 award was “as far as” the court would “go in terms
of a fee award.”
¶74 	An “abuse of discretion occurs only if it can be said that no
reasonable person would take the view adopted by the district
court,” 	and 	our 	review 	of 	such 	discretionary 	decisions 	is
“necessarily context specific.” State v. Edwards, 2023 UT App 23,
¶ 15, 	527 	P.3d 	826 	(quotation 	simplified). 	While 	the 	court
acknowledged that the motions in question were not meritorious,
the question before it wasn’t confined to the merits of the motions
alone. Rather, the question before it was whether “justice and
equity” should cause it to award attorney fees, see Stewart, 885
P.2d at 782, a question that naturally encompassed both these
motions and even the litigation as a whole. The court was in a far

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20210847-CA 	32 	2023 UT App 162
better position than we are to assess this, and we see no basis for
second-guessing the court’s decision. Simply put, even if the court
could have awarded fees under this equitable power, it was not
required to do so under these circumstances. We therefore reject
Complete Construction’s challenge to this decision.
CONCLUSION
¶75 	For the reasons set forth above, we affirm the district
court’s conclusion that the preliminary notice was untimely, but
we reverse its conclusion that Complete Construction was not
entitled to relief under the savings statute. We also reverse the
district court’s denial of the Busicos’ request for attorney fees
relating to the lien foreclosure action, and we remand for further
consideration of that request in light of the principles expressed
above. Finally, we affirm the district court’s denial of Complete
Construction’s request for attorney fees under the court’s inherent
equitable power.