2020 UT App 109

THE UTAH COURT OF APPEALS

VAUGHN ERIC WIHONGI,

Appellant,

v.

CATANIA SFH LLC, CAPITAL REALTY GROUP LLC,

AND NICHOLAS SANONE,

Appellees.

Opinion

No. 20180800-CA

Filed July 30, 2020

Third District Court, Salt Lake Department

The Honorable Su Chon

No. 160903287

Troy L. Booher, Beth E. Kennedy, Dick J. Baldwin, 

and Engels Tejeda, Attorneys for Appellant

Benson L. Hathaway, Ryan R. Beckstrom, and 

Analise Q. Wilson, Attorneys for Appellees

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN

concurred.

HAGEN, Judge:

¶1 Vaughn Eric Wihongi sued to recover a commission owed 

to him pursuant to a contract between himself and Catania SFH 

LLC (Catania). Catania counterclaimed for breach of contract

and conversion, claiming Wihongi never returned $25,000 

Catania gave to him. The district court entered summary 

judgment in favor of Catania on its counterclaim, and a jury 

ultimately awarded Wihongi $99,929 on his breach of contract 

claim. Because the governing contract required an award of

attorney fees to the prevailing party, Wihongi moved for 

attorney fees after the close of trial. The district court ruled that 
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neither Wihongi nor Catania was the prevailing party and 

declined to award fees. Wihongi appeals, arguing he was the 

prevailing party. Because we determine that the district court 

acted within its discretion, we affirm.

BACKGROUND

¶2 In 2010, Wihongi and Catania entered into a contract 

under which Wihongi would locate foreclosed properties, 

purchase them on behalf of Catania, renovate them, and then sell 

them for a profit. Pursuant to this contract, Catania ensured

that Wihongi had a $25,000 cashier’s check at all times so that 

he would be able to make purchases as properties became 

available. After a property was sold, Catania would receive 

a 20% preferred rate of return on invested capital, and 

the remaining profits would be split between the parties, with 

30% going to Wihongi and 70% to Catania. In 2013, this contract 

was modified so that Catania would receive a 12% preferred rate 

of return on invested capital and the remaining profits would be 

split evenly.

¶3 In 2010, Wihongi purchased one such property (the Millar 

property) on behalf of Catania. The previous owner continued to 

reside in the Millar property and paid Catania rent until he was 

able to buy it back in 2016, generating a total profit of $210,000, 

not including revenue from the rental payments. However, 

Wihongi never received a commission for the sale.

¶4 Wihongi filed a complaint seeking $105,000 in 

commission, equal to half of the $210,000 profit from the sale of 

the Millar property. Wihongi’s complaint alleged breach of 

contract, breach of the implied covenant of good faith and fair 

dealing, promissory estoppel, and unjust enrichment. In 

response, Catania filed a counterclaim, claiming breach of 

contract and the contract’s implied covenant of good faith and 
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fair dealing and conversion, alleging that Wihongi failed to 

return a $25,000 cashier’s check given to him by Catania. 

Wihongi then amended his complaint to include a claim for 

intentional interference with economic relations against Nicholas

Sanone, Catania’s designated broker and principal broker for 

Wihongi, based on many of the same facts as his claim against 

Catania. Wihongi sought punitive damages from Sanone. 

Wihongi also amended his complaint to increase the damages 

sought against Catania from $105,000 to $244,000, his theory 

being that the Millar property’s rental income should have been 

included in his commission.

¶5 The district court entered summary judgment in favor of 

Catania on its breach of contract counterclaim for the $25,000 

cashier’s check, but Wihongi’s contract claims against Catania 

and his tort claim against Sanone proceeded to a four-day jury 

trial.1 The court granted a directed verdict in favor of Sanone on 

the claim against him. The jury ultimately concluded that 

Catania breached the contract and awarded Wihongi damages 

totaling $99,929. The jury also found that Catania breached the 

implied covenant of good faith and fair dealing but awarded no 

additional damages for that breach.

¶6 The contract between Wihongi and Catania contained the 

following attorney fee provision:

In the event of a dispute between the parties 

arising under this Agreement, the prevailing party 

in such dispute shall be entitled to recover its costs, 

including reasonable attorney fees, from the other 

party.

 

1. Wihongi’s alternative claims for unjust enrichment and 

promissory estoppel were voluntarily dismissed prior to trial.
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Wihongi filed a motion to recover his attorney fees, arguing that 

he was the prevailing party and entitled to fees because he

prevailed on his contract claims. The district court ultimately 

determined that neither party prevailed and declined to award 

attorney fees. Wihongi appeals.

ISSUE AND STANDARDS OF REVIEW

¶7 The question before this court is whether the district court 

erred in ruling that neither party was the prevailing party under 

the contract’s attorney fee provision. “Whether the district court 

applied the correct legal standard is a question of law, which we 

review for correctness.” KB Squared LLC v. Memorial Bldg. LLC, 

2019 UT App 61, ¶ 18, 442 P.3d 1168 (cleaned up). But “whether 

a 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.” Vanderwood v. Woodward, 2019 UT App 140, ¶ 13, 449 

P.3d 983 (cleaned up).

¶8 Wihongi argues that “‘[s]ince the right [to attorney fees in 

this case] is contractual, the court does not possess the same 

equitable discretion to deny attorney’s fees.’” (Quoting Express 

Recovery Services Inc. v. Olson, 2017 UT App 71, ¶ 8, 397 P.3d 792

(cleaned up)). While we agree that the court was legally required 

to award attorney fees to the prevailing party under the terms of 

the contract, the question of which party prevailed “depends, to 

a large measure, on the context of each case, and, therefore, it is 

appropriate to leave this determination to the sound discretion 

of the trial court.” R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 

P.3d 1119. Even where a contract provides that a prevailing 

party “shall be entitled” to fees, it is still possible that neither 

party should be deemed to have prevailed “in litigation where 

both parties obtained mixed results.” See Neff v. Neff, 2011 UT 6, 

¶ 70, 247 P.3d 380 (addressing mandatory language in attorney 

fee statute). “We therefore review the trial court’s determination 
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as to who was the prevailing party under an abuse of discretion 

standard.”2 R.T. Nielson, 2002 UT 11, ¶ 25.

ANALYSIS

¶9 In determining which party has prevailed in a lawsuit for 

purposes of awarding attorney fees, “district courts are advised 

to consider relevant factors while not abandoning their common 

sense.” Grove Bus. Park LC v. Sealsource Int’l LLC, 2019 UT App 

76, ¶ 49, 443 P.3d 764 (cleaned up). The factors relevant to that 

determination are: “(1) the language of the attorney fee 

provision, (2) the number of claims brought by the parties, (3) 

the importance of each claim relative to the others and their 

significance considering the lawsuit as a whole, and (4) the 

amounts awarded on the various claims.” Id. In conducting this 

“flexible and reasoned approach,” A.K. & R. Whipple Plumbing 

& Heating v. Guy, 2004 UT 47, ¶ 26, 94 P.3d 270, our supreme 

court has “specifically cautioned against considering only the net 

judgment in the case and stressed the importance of looking at 

the amounts actually sought and then balancing them 

proportionally with what was recovered.” Jordan Constr., Inc. v. 

Federal Nat'l Mortgage Ass'n, 2017 UT 28, ¶ 65, 408 P.3d 296. This 

approach “will permit a case-by-case evaluation by the trial 

court, and flexibility to handle circumstances where both, or 

 

2. Of course, there may be instances where the parties define the 

term “prevailing party,” and in those cases, the court must apply 

the contractual language as written. See, e.g., Beckman v. Cybertary 

Franchising LLC, 2018 UT App 47, ¶¶ 67–84, 424 P.3d 1016. But 

Utah courts have repeatedly afforded discretion to prevailing 

party determinations based on contractual attorney fee 

provisions where that term is undefined. See, e.g., Utah Transit 

Auth. v. Greyhound Lines, Inc., 2015 UT 53, ¶ 58, 355 P.3d 947.
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neither, parties may be considered to have prevailed.” R.T. 

Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119.

¶10 “Accordingly, it is possible that, in litigation where both 

parties obtain mixed results, neither party should be deemed to 

have prevailed for purposes of awarding attorney fees.” Neff v. 

Neff, 2011 UT 6, ¶ 70, 247 P.3d 380. Here, the district court 

determined that this was such a case. In reaching that 

conclusion, the court acknowledged the net judgment and 

considered each of the four factors our supreme court has 

identified as relevant to the prevailing party analysis.

¶11 First, the court noted that the contractual language 

showed “that the prevailing party is entitled to recover its 

reasonable attorneys’ fees,” but that the contract otherwise did 

not “discuss how that is determined.”

¶12 As to the second factor, the court noted that while 

Wihongi asserted five claims, two of his claims were pled in the 

alternative and were not dismissed on the merits, and his fifth 

claim against Sanone was dismissed via directed verdict.3

 

3. Although Wihongi assumes that “[t]he district court was 

technically correct that [Wihongi] asserted five claims and 

Catania asserted two,” we note that Wihongi’s fifth claim against 

Sanone for intentional interference with economic relations 

should not have been included in that count because Sanone was 

not a party to the contract containing the attorney fee provision. 

See Express Recovery Services Inc. v. Olson, 2017 UT App 71, ¶ 11, 

397 P.3d 792 (“[W]here the parties request attorney fees pursuant 

to a contract, only claims based on or related to that contract 

figure into the prevailing-party analysis.”). But counting the 

claim against Sanone did not affect the district court’s prevailing 

party analysis because, as Wihongi acknowledges, the court 

“does not appear to have given those numbers any significance.”
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Although Wihongi prevailed on his two remaining claims, “no 

damages were awarded for the breach of the covenant of good 

faith and fair dealing.” Therefore, the court concluded that 

Wihongi “prevailed on one claim with an award of damages.” 

Catania brought two counterclaims and similarly “prevailed on 

one counterclaim with an award of damage.”

¶13 The court next weighed the “importance of the claims and 

their significance against each other.” The court noted that the 

“claims [we]re interrelated because they ar[o]se from the same 

contract.” Because both parties prevailed on their breach of 

contract claims, the court concluded that the claims were

“equally weighted.”

¶14 Finally, as to the last factor, the court considered the 

amount of damages Wihongi sought in comparison to the 

amount he recovered. The court found that Wihongi sought 

damages of $244,000 and recovered $99,929. In comparison, 

Catania recovered on one of its two counterclaims, but recovered 

the full amount it sought in damages—$25,000. The court stated 

that “a total victory [for Catania] would have been return of the 

$25,000 and defeat of all of [Wihongi’s] pled claims.”

¶15 The court also acknowledged the limitations of the net 

judgment rule and considered the amounts actually sought 

balanced proportionally with what was recovered. The court 

concluded that Wihongi’s “net judgment after paying [Catania] 

is $74,929 which would be 31% of the total amount claimed. This 

appears to be a draw for both parties.” Based on this analysis, 

the court determined that neither party could be considered the 

prevailing party and, therefore, declined to award attorney fees.

¶16 Wihongi contends that the district court’s prevailing party 

analysis was flawed in three respects. First, he asserts that the 

court erred by determining that Wihongi’s and Catania’s claims 

were “equally weighted.” Second, Wihongi asserts that the court 
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erred when it found that he “sought $244,000 in damages, rather 

than the $105,000 he asked the jury” to award him. This error, 

Wihongi contends, “skewed [the court’s] analysis of the 

comparative victories.” Lastly, Wihongi argues that the court 

abused its discretion by ignoring the relative culpability of the 

parties. He asserts that culpability is “a dispositive factor in the 

prevailing party analysis,” and that culpability, rather than 

damages, dictates the result of that analysis. We address each 

argument in turn.

A. “Equally Weighted”

¶17 First, Wihongi challenges the district court’s conclusion 

that Wihongi’s and Catania’s claims were “equally weighted.”

Wihongi argues that because his damages claim “was four times 

greater than Catania’s, the reason the lawsuit was filed, the 

central issue in the case, and the only issue presented to the 

jury,” the court’s statement was erroneous. Wihongi also 

complains that the court “provided no explanation for this 

puzzling ruling.”

¶18 Because the determination of which party prevailed 

“depends, to a large measure, on the context of each case,” we 

recognize that “the [district] court is in a better position than we 

are as an appellate court to decide which party is the prevailing 

party.” R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119. 

This is especially true where, as here, a case involves 

counterclaims, a series of pretrial motions, and legal theories that 

evolved over the course of the multi-year litigation. See, e.g., 

Airport Park Salt Lake City LP v. 42 Hotel SLC LLC, 2016 UT App 

137, ¶ 29, 378 P.3d 117 (declining to make the prevailing party 

determination in a case which involved a “complex course of 

events,” the settlement of the majority of the parties’ claims 

before trial, and “reservation of the attorney-fees issue,” 

recognizing that “the district court is better positioned to 

determine whether one party truly prevailed”).
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¶19 Here, the court noted that both parties had successfully 

asserted claims arising under the same contract. Wihongi 

agrees that, “in effect, each party asserted only one claim—

[Wihongi] sought his commission, and Catania sought the return 

of its cashier’s check.” But, he argues, Catania’s claim was 

relatively “minor” because it amounted to only 25% of

Wihongi’s commission and “was disposed of on summary 

judgment after a single round of briefing.” Catania counters that 

such an approach “would have a court ignore the parties’ efforts 

put into discovery, motion practice, and other pretrial aspects 

of the case and punish parties that prevail as a matter of law 

before trial.”

¶20 We agree with Catania that in weighing the relative 

importance of the claims, the district court must consider the 

entire life of the litigation, including what portion of the 

litigation was consumed by discovery and pretrial motion 

practice on the various claims resolved before trial and whether 

the unsuccessful claims required a significant investment of time 

and resources over and above that which was required to prevail 

on the successful claims. Having presided over the entire course 

of the litigation, the district court was in the best position to 

determine “the importance of each claim relative to the others 

and their significance considering the lawsuit as a whole.” See

Grove Bus. Park LC v. Sealsource Int’l LLC, 2019 UT App 76, ¶ 49, 

443 P.3d 764.

¶21 Although the district court did not make detailed factual 

findings to support its conclusion that the claims were “equally 

weighted,” Wihongi has not argued that the district court’s 

findings are legally insufficient, nor has he requested a remand 

for entry of supplemental findings. And the court’s ruling is 

sufficiently detailed to “enable meaningful appellate review.”

See Neff v. Neff, 2011 UT 6, ¶ 61, 247 P.3d 380 (cleaned up). A 

district court’s findings of fact must “permit an appellate court 

to evaluate the reasonableness of the . . . court’s decision in the 
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light of the rules [the Utah Supreme Court has] set forth for 

determining attorney fees awards.” Id. ¶ 62. Here, the ruling 

“adequately sets forth reasoning that accounts for the various 

factors we require courts to examine when awarding attorney 

fees in cases, like this one, where opposing parties obtain mixed 

results.” See id. ¶ 63. Having undertaken the correct analysis, the 

court’s conclusion that the parties’ claims were “equally 

weighted” is a determination entitled to deference on appeal. 

Because the district court is better positioned to consider the 

“whole scope of litigation” in determining whether either party 

prevailed, see id. ¶ 5, we defer to the court’s assessment of the 

relative importance of the claims.

B. Damages Sought

¶22 Wihongi next argues that only “the amount actually 

sought at trial” should be considered in weighing the damages 

sought and recovered. Specifically, Wihongi contends that the 

district court should have used the $105,000 figure that he 

sought in his initial complaint and requested at trial, rather than 

the $244,000 figure sought in his amended complaint. Although 

Wihongi cites cases that base the prevailing party analysis on the 

“at-trial demand,” see First Sw. Fin. Services v. Sessions, 875 P.2d 

553, 554 (Utah 1994); Olsen v. Lund, 2010 UT App 353, ¶ 13, 246 

P.3d 521, those cases do not squarely address this issue and do 

not hold that damage claims abandoned or otherwise resolved 

before trial are irrelevant to the prevailing party analysis.

Moreover, our supreme court rejected a similar argument in Neff 

v. Neff, 2011 UT 6, 247 P.3d 380, where one party cited “as the 

basis of his victory the fact that he obtained all of the relief he 

ultimately requested at trial—after he had reduced his million 

dollar-plus damages request to a mere request for nominal 

damages.” Id. ¶ 73.

¶23 In arguing that his recovery should be measured against 

the $105,000 in damages sought in his original complaint and at 
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trial, rather than the $244,000 demand in his amended 

complaint, Wihongi contends that the $244,000 figure was 

sought “only temporarily, as a result of Catania’s insistence that 

only the strict terms of the 2010 contract governed [his] claims.” 

But the amended complaint was the operative document on 

which subsequent discovery, pre-trial motions, and trial 

preparation were based. The district court was in the best 

position to assess whether the inflated demand for damages was 

attributable solely to Catania’s changing tactics, as Wihongi 

suggests, or whether Catania successfully avoided liability for 

more than double the amount of damages as a result of its 

pretrial litigation efforts. Given the district court’s familiarity 

with the intricacies of the case and the history of the litigation, 

we defer to its determination that the $244,000 sought in the 

amended complaint is the relevant figure for assessing the 

parties’ comparative victories.

¶24 Relatedly, Wihongi challenges the district court’s

conclusion that Wihongi’s net judgment represented only 31% of 

the damages sought. Having determined that the district court 

acted within its discretion by treating the demand in the 

amended complaint as the starting point for damages, we see no 

error in the court’s calculation. Once the $99,929 recovered by 

Wihongi is offset by the $25,000 recovered by Catania, Wihongi’s 

net judgment of $74,929 represents approximately 31% of the 

$244,000 damages sought in his amended complaint.

¶25 Wihongi further argues that even if the court’s calculation 

is correct, “a 31% recovery is not a basis to find that [Wihongi] 

did not prevail.” As Wihongi correctly points out, “a party who 

recovers only a percentage of his claimed damages can 

nonetheless be the prevailing party.” But “[t]he hallmark for 

determining which party has prevailed is not whether one party 

has recovered money in an absolute sense, but whether the trial 

court’s decision about who prevailed was based on an approach 

that was flexible and reasoned.” Neff, 2011 UT 6, ¶ 70. Here, the 
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district court did not base its conclusion solely on the fact that 

Wihongi’s net recovery represented only 31% of the damages 

claimed in the amended complaint. See Grove Bus. Park LC v. 

Sealsource Int’l LLC, 2019 UT App 76, ¶ 51, 443 P.3d 764 (noting 

that, “[a]lthough the comparison of [a party’s] award to its claim 

is a relevant factor under the prevailing party analysis,” it 

“cannot be weighed in isolation”). Rather, the district court’s 

“analysis was flexible and reasoned and proceeded from the 

common-sense perspective we have asked trial courts to employ 

in resolving issues like this one.” See Neff, 2011 UT 6, ¶ 74. 

Having employed the correct analysis, the district court’s 

ultimate conclusion that neither party prevailed is not outside 

the bounds of its discretion.

C. Culpability

¶26 Finally, Wihongi argues “that the court ignored Catania’s 

culpability, a dispositive factor in the prevailing party analysis.” 

Relying on Brown v. Richards, 840 P.2d 143 (Utah Ct. App. 1992), 

and First Southwestern Financial Services v. Sessions, 875 P.2d 553 

(Utah 1994), Wihongi argues that “’[i]t is the determination of 

culpability, not the amount of damages, that determines who is 

the prevailing party.’” See Sessions, 875 P.2d at 556 (quoting

Brown, 840 P.2d at 155). But Wihongi has not cited a single 

appellate decision in the last twenty-five years that discussed 

culpability in the context of a prevailing party analysis. More 

importantly, the proposition that any one factor is dispositive 

runs counter to the common-sense, factor-based approach 

consistently applied by Utah courts in the years since those cases 

were decided. The district court properly applied the legal 

standard articulated in Utah’s most recent appellate case law, 

which is not driven by the parties’ relative culpability.

¶27 That is not to say that a district court cannot consider 

culpability as one of many relevant factors bearing on which 

party prevailed. Categorically excluding such a factor would be 
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contrary to the flexible and reasoned approach our supreme 

court has adopted. See A.K. & R. Whipple Plumbing & Heating v. 

Guy, 2004 UT 47, ¶ 26, 94 P.3d 270 (leaving “it to the trial courts’ 

discretion to decide which additional common sense 

perspectives are most appropriate to consider in future cases”). 

But we see no error in failing to address a factor that the relevant 

case law last mentioned over twenty-five years ago, particularly 

where the question of culpability was not as one-sided as 

Wihongi suggests. Both parties alleged that the other breached 

the contract, and both recovered damages on their respective 

claims. The fact that Catania’s counterclaim was “disposed of on 

summary judgment after a single round of briefing” might even

suggest that Wihongi’s culpability for failing to return the 

$25,000 cashier’s check was more clear-cut than Catania’s 

culpability for refusing to pay the commission. At the very least, 

the determination that both parties breached the contract does 

not establish that Catania was the only culpable party. Therefore, 

even if it had factored in culpability, the district court would not

have exceeded the limits of its discretion in finding that the 

result was “a draw.”

¶28 Where the district court undertakes the correct legal 

analysis, we afford ample discretion to its ultimate 

determination regarding the prevailing party. “The reason that

we defer to the trial court’s judgment, and reverse a trial court’s 

attorney fees determination only if the trial court exceeds the 

bounds of its discretion, is that the trial court is in a better 

position than appellate courts to decide which party is the 

prevailing party.” Neff v. Neff, 2011 UT 6, ¶ 71, 247 P.3d 380

(cleaned up). Here, we conclude that the district court “acted 

within the bounds of its discretion when it denied [Wihongi’s] 

motion for attorney fees because the court employed the 

necessary flexible and reasoned approach to awarding fees in 

a case where opposing parties each obtain mixed results.” See

id ¶ 59.
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CONCLUSION

¶29 Having applied the correct legal standard, the district 

court did not exceed its discretion in finding that neither party 

prevailed for purposes of the contract’s attorney fee provision. 

Therefore, we affirm the denial of Wihongi’s motion for attorney 

fees.