2023 UT App 67

THE UTAH COURT OF APPEALS

CRAIG R. VIERIG,

Appellee,

v.

SARAH A. THERRIAULT,

Appellant.

Amended Opinion*

No. 20210258-CA

Filed June 15, 2023

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 190907944

Steven G. Loosle, Attorney for Appellant

Troy L. Booher, Beth E. Kennedy, and 

Taylor P. Webb, Attorneys for Appellee

JUDGE RYAN D. TENNEY authored the lead opinion, in which 

JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred. 

JUDGE GREGORY K. ORME authored a separate opinion, in which 

JUDGE JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1 In 2011, Craig Vierig gave Sarah Therriault a trust deed (the 

Trust Deed) to secure a $200,000 debt. Years later, Vierig sued 

Therriault, seeking to invalidate both the Trust Deed and the 

* This amended opinion replaces the opinion that was originally 

issued on April 13, 2023. The text of the original opinion is 

unchanged, but we have now added additional analysis at the end 

to address arguments raised by the appellee in a rehearing 

petition. The separate opinion authored by Judge Orme (and 

joined by Judge Luthy) was issued in conjunction with the 

original opinion and is unaffected by the additional analysis.
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underlying debt. The district court granted Therriault’s motion 

for summary judgment, thereby upholding the validity of both. 

As part of this same case, Therriault counterclaimed, asserting

that the debt was now due and that she was entitled to foreclose 

on the property to collect on it. But the court granted Vierig’s 

request for summary judgment against the counterclaim, ruling 

that the debt was not yet due and that Therriault was not entitled 

to foreclose on the property.

¶2 Neither party has appealed the summary judgment ruling

that went against them. Instead, this appeal only concerns 

Therriault’s request for attorney fees. Therriault’s request was 

based on a provision in the Trust Deed that obligated Vierig to 

pay “all” of Therriault’s “costs and expenses of collection.” In 

Therriault’s view, this provision applies to the attorney fees she 

incurred while litigating the validity of the Trust Deed and those 

that she incurred prosecuting her counterclaim. The district court 

rejected both requests as a matter of law. As explained below, we 

first conclude that the fee provision was ambiguous as to whether 

Therriault could collect the fees she incurred defending the 

validity of the Trust Deed. Because it was ambiguous in this 

respect, its interpretation presents a question of fact that the 

district court should decide after receiving evidence of the parties’ 

intent. We accordingly reverse that aspect of the court’s ruling. As 

to the fees that Therriault incurred prosecuting her counterclaim, 

however, we conclude that there’s no ambiguity and that 

Therriault is not entitled to collect on those fees. We accordingly 

affirm that portion of the court’s ruling.

BACKGROUND

¶3 Craig Vierig and Sarah Therriault were in a romantic 

relationship from about 2000 through 2013. In October 2011, 

Vierig executed the Trust Deed in favor of Therriault, wherein he

gave Therriault a security interest in real property that he owned.

The Trust Deed stated that it was “for the purpose of securing 

payment of the indebtedness evidenced by a promissory 
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20210258-CA 3 2023 UT App 67

note . . . in the principal sum of $200,000.00, payable to 

[Therriault].”

¶4 In 2019, Vierig sued Therriault, alleging that “[n]o 

Promissory Note was ever executed, and no debt is owed to” her. 

Vierig accordingly sought (1) a declaratory judgment that 

Therriault had “no right, title, claim, or interest to the subject 

property” and (2) a quiet title decree “removing the offending 

Trust Deed from the subject property.” 

¶5 Therriault filed an answer and counterclaim. In her 

counterclaim, Therriault alleged that the parties had agreed for 

the $200,000 to “be paid upon the sale or refinancing of the 

property pledged as security or upon the death of Vierig.”

Although neither event had yet happened, Therriault alleged that 

Vierig had now anticipatorily “repudiated the Debt” by filing his 

suit. From this, Therriault sought (1) a declaratory judgment that 

the $200,000 was “due and owing,” as well as (2) an order 

requiring “that the [p]roperty be sold, and the proceeds be 

applied to the Debt.”

¶6 The parties filed competing motions for summary 

judgment, and the district court held a hearing on those motions.

The court entered an order granting Therriault’s motion for 

summary judgment against Vierig’s suit, thus concluding that the 

debt was valid and the Trust Deed was enforceable. Though that 

order touched on Therriault’s counterclaim, it did not fully 

resolve her arguments about anticipatory repudiation or her 

requests for relief. In response to a request for clarification from 

Therriault, the court subsequently issued a second order in which 

it rejected Therriault’s assertion that Vierig had anticipatorily 

“repudiated the Debt.” There, the court ruled that “since the Trust 

Deed is NOT due until the [p]roperty is sold or [Vierig] dies, he is 

not breaching the same and has not repudiated it by asking the 

Court to interpret the document[,] and therefore, there is no[t] an 

anticipatory repudiation.” The court accordingly denied her 

request for foreclosure on the property.
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20210258-CA 4 2023 UT App 67

¶7 In addition to the litigation about the competing motions 

for summary judgment, the parties litigated the question of 

whether Therriault was entitled to attorney fees. The Trust Deed 

contained a provision (the Fee Provision) under which Vierig was 

obligated “to pay all costs and expenses of collection (including 

Trustee’s and attorney’s fees in event of default in payment of the 

indebtedness secured hereby).” Relying on that provision, 

Therriault requested attorney fees for her efforts “defending the 

Complaint and prosecuting the Counterclaim,” arguing that they 

were “inextricably interwoven and both fall within the scope of 

fees and costs of ‘collection.’”

¶8 The court later issued a decision denying the request for 

attorney fees. In the court’s view, the Fee Provision “limits the 

award of attorney fees to default in payment of indebtedness.”

The court concluded that “[b]ecause the indebtedness is not yet 

due, and there has been no default, no attorney fees are proper.”

The court thus specifically rejected Therriault’s argument that she 

was entitled to fees incurred while defending the validity of the 

Trust Deed and debt. On this, the court opined that “costs and 

attorney fees are distinguishable,” and since Therriault was “not 

‘collecting’ anything, the attorney fees are not taxed as costs.”

¶9 Neither party appealed the court’s rulings on the 

competing summary judgment motions. Therriault, however,

timely appealed the court’s denial of her request for attorney fees.

ISSUE AND STANDARD OF REVIEW

¶10 Therriault argues that the district court erred when it 

concluded that she was not entitled to recover her attorney fees 

under the Fee Provision. “Whether attorney fees are recoverable 

is a question of law which we review for correctness.” Anderson v. 

Doms, 1999 UT App 207, ¶ 9, 984 P.2d 392. “But where a 

contractual term or provision is ambiguous as to what the parties 

intended, the question becomes a question of fact to be 
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20210258-CA 5 2023 UT App 67

determined by the fact-finder.” Brady v. Park, 2019 UT 16, ¶ 53, 445 

P.3d 395.

ANALYSIS 

¶11 Therriault argues that she was entitled to the attorney fees 

she incurred (1) defending the validity of the debt and the Trust 

Deed and (2) prosecuting her counterclaim. Our decision 

proceeds in three parts. In Part A, we set forth the governing 

framework. In Part B, we conclude that both sides have put forth 

reasonable interpretations of the Fee Provision with respect to the 

fees Therriault incurred defending the validity of the debt and the 

Trust Deed. Because of this, we remand that question for further 

development and decision. Finally, in Part C, we conclude that 

there is no ambiguity with respect to the fees Therriault incurred 

prosecuting her counterclaim. Instead, with respect to those fees, 

we affirm the district court’s ruling. 

A. Framework

¶12 “As a general rule, attorney fees are recoverable only if 

authorized by contract or statute.” Anderson & Karrenberg v. 

Warnick, 2012 UT App 275, ¶ 9, 289 P.3d 600. Here, Therriault does 

not argue that she was entitled to attorney fees by statute; rather, 

she argues that she was entitled to attorney fees by contract—i.e., 

under the Fee Provision from the Trust Deed. As noted, that 

provision obligated Vierig “to pay all costs and expenses of 

collection (including Trustee’s and attorney’s fees in event of 

default in payment of the indebtedness secured hereby).”

¶13 “If the legal right to attorney fees is established by contract, 

Utah law clearly requires the court to apply the contractual 

attorney fee provision and to do so strictly in accordance with the 

contract’s terms.” Hahnel v. Duchesne Land, LC, 2013 UT App 150, 

¶ 16, 305 P.3d 208 (quotation simplified). “Under basic rules of 

contract interpretation, courts first look to the writing alone to 

determine its meaning and the intent of the contracting parties.” 
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20210258-CA 6 2023 UT App 67

Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 44, 201 P.3d 966. 

“If the language within the four corners of the contract is 

unambiguous, the parties’ intentions are determined from the 

plain meaning of the contractual language, and the contract may 

be interpreted as a matter of law.” Id. (quotation simplified). “But 

where a contractual term or provision is ambiguous as to what the 

parties intended, the question becomes a question of fact to be 

determined by the fact-finder.” Brady v. Park, 2019 UT 16, ¶ 53, 445 

P.3d 395. 

¶14 A “provision of a contract is not rendered ambiguous by 

the bare existence of competing interpretations of it.” West Valley 

City v. Bret W. Rawson, P.C., 2021 UT 16, ¶ 28, 489 P.3d 191. 

Instead, a provision is ambiguous “if it is capable of more than 

one reasonable interpretation because of uncertain meanings of 

terms, missing terms, or other facial deficiencies.” Brady, 2019 UT 

16, ¶ 54 (quotation simplified). A “reasonable interpretation is an 

interpretation that cannot be ruled out, after considering the 

natural meaning of the words in the contract provision in context 

of the contract as a whole, as one the parties could have 

reasonably intended.” Id. ¶ 55. “If both sides advance 

interpretations” of the provision “that are plausible and 

reasonably supported by the document’s language,” then the 

provision is deemed ambiguous, “even if neither party actually 

uses that label to describe” it. Ocean 18 LLC v. Overage Refund 

Specialists LLC (In re Excess Proceeds from Foreclosure of 1107 

Snowberry St.), 2020 UT App 54, ¶ 25, 474 P.3d 481.

¶15 When confronted with an ambiguous contractual 

provision, “we seek to resolve the ambiguity by looking to 

extrinsic evidence of the parties’ intent.” Brady, 2019 UT 16, ¶ 56

(quotation simplified). A “determination of the parties’ intent 

based on extrinsic evidence is a factual determination that should 

be made by the fact-finder.” Id. If “extrinsic evidence does not 

reveal the intent of the parties, a district court should then, and 

only then, resolve the ambiguity against the drafter.” Id.

(quotation simplified); see also Gillmor v. Macey, 2005 UT App 351, 

¶ 38 n.16, 121 P.3d 57 (referring to “the doctrine of construing 
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20210258-CA 7 2023 UT App 67

ambiguities in a contract against the drafter” as “a kind of 

tie-breaker” that is “used as a last resort by the fact-finder” if the 

“receipt and consideration of all pertinent extrinsic evidence has 

left unresolved what the parties actually intended” (quotation 

simplified)).

¶16 Consistent with this, if a district court interprets a 

contractual provision as a matter of law but an appellate court 

later reverses and concludes that the provision is ambiguous, the 

proper result is a “remand to allow the fact-finder to determine 

the parties’ intent with respect to [the] issues.” Northgate Vill. Dev., 

LC v. Orem City, 2014 UT App 86, ¶ 39, 325 P.3d 123; see also 

Beckman v. Cybertary Franchising LLC, 2018 UT App 47, ¶ 83, 424 

P.3d 1016; Hemingway v. Construction by Design Corp., 2015 UT 

App 10, ¶ 17, 342 P.3d 1135. And of note, Utah’s appellate courts 

have followed this same procedure when the provision at issue is

an attorney fee provision. See, e.g., Bret W. Rawson, P.C., 2021 UT 

16, ¶¶ 28, 30 (considering the parties’ “competing views” on a 

contractual obligation to pay attorney fees, finding ambiguity, 

and declining “to resolve this question on the current record and 

instead remand[ing] for further proceedings on this issue”); 

Beckman, 2018 UT App 47, ¶¶ 76, 83 (determining the attorney fee 

provision was “ambiguous in this context” and “remand[ing] this 

issue to the trial court to consider extrinsic evidence to determine 

its meaning”). 

B. Fees Incurred Litigating the Validity of the Debt and the 

Trust Deed 

¶17 As noted, the district court ruled that Therriault was not 

entitled to any fees under the Fee Provision. Notably, it did so 

without any reference to any evidence of the parties’ intent. In this 

sense, the court seems to have regarded the Fee Provision as being 

an unambiguous provision that could be interpreted as a matter 

of law. Given this, the question is whether both sides have put 

forward reasonable interpretations of the Fee Provision. If they 

have, it becomes a question of fact that must be determined based 

on extrinsic evidence of the parties’ intent. We conclude that this 
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20210258-CA 8 2023 UT App 67

is so with respect to the fees Therriault incurred defending the 

validity of the debt and the Trust Deed.

1. Vierig’s Interpretation

¶18 The Fee Provision states that Vierig must “pay all costs and 

expenses of collection (including Trustee’s and attorney’s fees in 

event of default in payment of the indebtedness secured hereby).”

Vierig focuses on the term “collection.” “Utah courts have a long 

history of relying on dictionary definitions to determine plain 

meaning.” Cook v. Department of Com., 2015 UT App 64, ¶ 13, 347 

P.3d 5 (quotation simplified). Of note, some dictionaries suggest 

that the term “collection” refers to the receipt of funds. See, e.g.,

Collect, Merriam-Webster1(defining the term “collect” as “to claim 

as due and receive payment for”); Collection, Cambridge 

Dictionary2(defining “collection” as “the act of collecting 

money”). Consistent with this understanding of the term 

“collection,” Black’s Law Dictionary defines the phrase “costs of 

collection” as referring to “[e]xpenses incurred in receiving

payment of a note; esp., attorney’s fees incurred in the effort to 

collect a note.” Costs of collection, Black’s Law Dictionary (11th ed. 

2019) (emphasis added). In light of this, Vierig argues that there is 

a meaningful difference between fees that Therriault incurred 

while litigating the question of whether the debt and the Trust 

Deed were valid (which would not be compensable), and fees that 

she might separately incur when seeking to collect on the debt

once it’s due in what would commonly be referred to as a 

“collection action” (which would be compensable). 

¶19 We note that some courts have recognized this very 

difference in similar cases. The Second Circuit’s decision in Jackson 

v. Oppenheim, 533 F.2d 826 (2d Cir. 1976), is illustrative. There, a 

1. https://www.merriam-webster.com/dictionary/collect [https://

perma.cc/4H9S-RKP3].

2. https://dictionary.cambridge.org/us/dictionary/english/collecti

on [https://perma.cc/Y5WA-6JGE].
Vierig v. Therriault

20210258-CA 9 2023 UT App 67

man (Seller) sold another man (Buyer) shares in a company. Id. at 

828. The overall sale was effectuated through two promissory 

notes (each for half the shares), and each note contained language 

stating that if it was “placed with an attorney for collection,”

Buyer was required to “pay all costs of collection, including, but 

not limited to, counsel fees.” Id. at 828, 830. Buyer later sued, 

seeking to invalidate the sale based on alleged violations of 

federal securities laws during the transaction. Id. at 831. The 

district court ruled against Buyer on that claim, as did the Second 

Circuit. Id. at 828–30.

¶20 Importantly for our purposes, the district court in Jackson 

also awarded attorney fees to Seller as “costs of collection,” but 

the Second Circuit reversed that portion of the decision. Id. at 827, 

830–31. The court explained that “some language more express 

than ‘costs of collection’ should have been employed to have 

placed [Buyer] on notice that he was undertaking to protect 

[Seller] from costs incurred in defending a separate claim 

regarding validity of the underlying sale transaction under the 

federal securities laws.” Id. at 831. The court also concluded that 

“the note in no manner suggested liability for fees for defending 

the federal security law claim merely because [Seller] might 

counterclaim for collection on the notes.” Id.

¶21 Other courts have followed this approach. In Zimmerman v. 

First Production Credit Ass’n, 412 N.E.2d 216, 217 (Ill. App. Ct. 

1980), for example, the maker of a note sought declaratory 

judgment that it was not liable on the note. Though the district 

court rejected the maker’s claim, it also held that the payee was 

not entitled to attorney fees under a provision that stated that if 

the note was “placed in the hands of an attorney for collection, or 

suit is brought, on the same or any portion thereof,” the maker 

was obligated to “pay reasonable attorneys’ fees, reasonable 

expenses incurred by the holder or its attorneys in collection and 

costs of collection.” Id. (quotation simplified). The appellate court 

later affirmed the denial of the fee request, explaining that “[h]ad 

the original suit . . . been brought by [the] defendant for its 

collection, the provision in regard to attorneys’ fees would have 
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20210258-CA 10 2023 UT App 67

entitled it to reasonable fees.” Id. “But that suit was not a suit to 

collect nor was the note placed in the hands of an attorney for 

collection.” Id. And in light of this, the court held that “[s]trictly 

construed, the note makes no provision for payment of attorney’s 

fees.” Id.

¶22 A Missouri court reached the same outcome in 

German-American Bank v. Martin, 107 S.W. 1108 (Mo. Ct. App. 

1908). In the course of a probate case, the administrator of an 

estate unsuccessfully argued that a promissory note for a debt 

owed by the deceased to a bank was “invalid.” Id. at 1109. The 

bank then tried to collect the attorney fees that it had incurred 

while defending the validity of the note. Id. The district court 

denied that request, and the bank appealed. Id. On appeal, the 

Missouri Court of Appeals affirmed the denial of the fee 

request. Id. The court relied on the promissory note’s language, 

which stated that if it was “not paid at maturity [the payee] was 

to pay reasonable expense for collection, including an attorney’s 

fee.” Id. Because the “services rendered [by the attorney] were in 

a collateral proceeding, and not in direct effort to collect the note,” 

the court held that the note’s language did not allow recovery. Id. 

Instead, the court opined that attorney fees would only be 

awardable “if the note was not paid at maturity” and the plaintiff 

was “put to the expense of compelling its collection by the 

assistance of an attorney.” Id.

¶23 These principles and these cases support Vierig’s view of 

how to interpret the Fee Provision. In short, since the term 

“collection” is sometimes understood to narrowly refer to efforts 

to receive money, and since some courts have held that litigation 

about the validity of an underlying debt is distinct from litigation 

in a collection action seeking to actually recover the owed money, 

Vierig can reasonably argue that the Fee Provision does not allow 

Therriault to recover these fees.
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20210258-CA 11 2023 UT App 67

2. Therriault’s Interpretation

¶24 But Therriault advances a reasonable interpretation of her 

own. Therriault first notes that the Fee Provision didn’t just entitle 

her to “costs of collection.” Rather, it entitled her to “all costs and 

expenses of collection.” (Emphasis added.) As Therriault points 

out, the inclusion of the word “all” at the outset of this phrase at 

least arguably suggests that the parties intended for the ensuing 

phrase to be interpreted expansively. See, e.g., World Peace 

Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 260 

(Utah 1994) (noting, in a statutory interpretation case, that the 

“use of the word ‘all’ indicates that [the statute] takes an inclusive, 

rather than an exclusive, approach to expenses”).3

¶25 In addition, Therriault points out that the key phrase from 

this provision isn’t just “costs of collection”; rather, it’s “costs and 

expenses of collection.” (Emphasis added.) It’s of course true that 

the term “costs” sometimes carries a particular legal meaning, and 

it’s also true that “costs” are sometimes distinguished from 

“attorney fees.” See, e.g., Alpha Partners Inc. v. Transamerica Inv. 

Mgmt., LLC, 2006 UT App 331, ¶ 42, 153 P.3d 714 (noting that 

“costs” include “filing fees, service of the complaint, jury and 

witness fees, deposition transcripts, and copy costs for trial 

exhibits,” but that “[t]here is a distinction to be understood 

between the legitimate and taxable ‘costs’ and other ‘expenses,’ of 

3. We acknowledge that World Peace Movement of America v. 

Newspaper Agency Corp., 879 P.2d 253 (Utah 1994), interpreted a 

statute rather than a contract. But whether interpreting a statute 

or a contract, we start with a plain language analysis. Compare id. 

at 259 (“When faced with a question of statutory construction, we 

look first to the plain language of the statute.” (quotation 

simplified)), with Giusti v. Sterling Wentworth Corp., 2009 UT 2, 

¶ 44, 201 P.3d 966 (“Under basic rules of contract interpretation, 

courts first look to the writing alone to determine its meaning and 

the intent of the contracting parties.”). In light of this, we see no 

basis for viewing the potential importance of the word “all” to 

such an interpretation any differently based on that distinction.
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20210258-CA 12 2023 UT App 67

litigation which may be ever so necessary, but are not properly 

taxable as costs” (quotation simplified)); Redevelopment Agency of 

Salt Lake City v. Daskalas, 785 P.2d 1112, 1123–24 (Utah Ct. App. 

1989) (noting that statutory language referring to “all reasonable 

and necessary expenses” is “far more inclusive than the term 

‘costs’”); cf. Christensen v. Christensen, 2018 UT App 53, ¶ 13 n.4, 

420 P.3d 106 (listing “attorney fees” and “costs” separately

(quotation simplified)).

¶26 Even so, the term “expense” doesn’t carry this same 

potentially narrow baggage. In its ordinary usage, the term 

“expense” commonly refers to a “financial burden or outlay” or 

“something expended to secure a benefit or bring about a result.”

Expense, Merriam-Webster.4 As a result, the inclusion of the term 

“expense” in the Fee Provision at least arguably expands the 

universe of things that Vierig was obligated to cover. And Utah 

case law has suggested as much. See, e.g., World Peace Movement, 

879 P.2d at 260 (suggesting that the expense of hiring an attorney 

to defend an action “certainly falls into” the statutory phrase 

“actual and necessary expenses”); Davidson v. Munsey, 80 P. 743, 

744 (Utah 1905) (comparing the term “costs,” which has a 

“defined and well-understood meaning,” with the term 

“expenses,” which “is not so restricted, and may include[] items 

of expenditure in the prosecution of an action or proceeding,”

including “a reasonable attorney’s fee”). 

¶27 Beyond this, Therriault points to the parenthetical. As 

noted, the Fee Provision states that Vierig must pay Therriault’s 

“costs and expenses of collection (including Trustee’s and 

attorney’s fees in event of default in payment of the indebtedness 

secured hereby).” (Emphasis added.) The district court and Vierig 

both view this parenthetical as a limitation—i.e., one that restricts 

the recoverable fees to those stemming directly from a default. But 

in our view, the word “including” arguably (if not persuasively) 

suggests otherwise. The word “including” naturally means “to 

4. https://www.merriam-webster.com/dictionary/expense [https:

//perma.cc/59N5-LZEU]. 
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20210258-CA 13 2023 UT App 67

take in or comprise as a part of a whole or group.” Include, 

Merriam-Webster5(emphasis added). In legal contexts, 

“including” is “routinely construed as introducing a nonexclusive, exemplary list,” which “is of course the obvious, 

ordinary sense of the word.” Graves v. North E. Services, Inc., 2015 

UT 28, ¶ 53, 345 P.3d 619.6 Applied here, this meaning suggests 

that the items in the parenthetical are not meant to be exclusive. 

Thus, given that this parenthetical was attached to the phrase “all 

costs and expenses of collection,” the natural implication of this 

parenthetical is that there are some situations aside from default in 

which Therriault would still incur “costs and expenses of 

collection.” And in such situations, the Fee Provision obligates 

Vierig to pay these costs and expenses.

¶28 What would such a situation look like? One situation 

would be this one: if Vierig preemptively sought to invalidate the 

debt as a means of preventing Therriault from collecting on it, any 

costs or expenses that Therriault incurred while defending the 

debt’s validity could arguably be seen as a component of the 

collection efforts themselves. 

¶29 Of note, a number of courts have agreed with this approach 

when considering “costs of collection” fee provisions. The Eighth 

Circuit’s decision in Duryea v. Third Northwestern National Bank of 

Minneapolis, 606 F.2d 823 (8th Cir. 1979), is illustrative. There, a 

bank sued a man (Duryea) in state court to collect on a loan that 

was secured by a promissory note. Id. at 824. Duryea then sued 

the bank in federal court, arguing that the loan violated federal 

law. Id. In the federal suit, the bank counterclaimed for the loan 

5. https://www.merriam-webster.com/dictionary/including [http

s://perma.cc/PYN6-SMSL].

6. We note that Graves v. North Eastern Services, Inc., 2015 UT 28, 

¶ 53, 345 P.3d 619, analyzed the word “including” in a statutory 

context, as opposed to a contractual analysis like the one at issue 

here. As indicated above in footnote 3, however, we regard this 

distinction as being irrelevant to the question before us.
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20210258-CA 14 2023 UT App 67

amount plus costs of collection, including attorney fees. Id. The 

federal district court rejected Duryea’s claims, sided with the bank

on its counterclaim, and then awarded the bank its attorney 

fees. Id. On appeal, Duryea argued that the bank was only entitled 

to the attorney fees it incurred while prosecuting its counterclaim,

reasoning that those were the only costs that it “directly incurred 

in collecting the note.” Id. at 826. But the Eighth Circuit disagreed, 

concluding that because it was “necessary” for the bank to defend 

against Duryea’s attack on the debt “in order to collect on the 

note,” the attorney fees that it “incurred in defending against”

Duryea’s suit were properly regarded as “a ‘cost of collection’ as 

that term is used in the note.” Id. (quotation simplified).

¶30 Other courts have reached this same conclusion in similar 

cases. See, e.g., Jaeger v. Canadian Bank of Com., 327 F.2d 743, 746

(9th Cir. 1964) (upholding an award that included fees 

attributable to a creditor’s defense against a debtor’s counterclaim 

because the party had “to dispose of the counter-claim in order to 

secure judgment on its note”); Finalco, Inc. v. Roosevelt, 3 Cal. Rptr. 

2d 865, 869 (Cal. Ct. App. 1991) (“California law is settled that a 

borrower’s obligation to pay attorneys’ fees incurred in the 

collection of the note includes attorneys’ fees incurred in 

defending against a challenge to the underlying validity of the 

obligation.”); Casey v. Cohan, 740 So. 2d 59, 63 (Fla. Dist. Ct. App. 

1999) (concluding that attorney fees incurred defending against a 

recission counterclaim were a “cost of collection,” reasoning that 

to “collect on the note,” the debtor “had to defeat the 

counterclaim”); Covich v. Chambers, 397 N.E.2d 1115, 1123 (Mass. 

App. Ct. 1979) (holding that “fees attributable to the defense of 

the rescission and cancellation actions were properly awarded 

under the terms of the note because the successful resistance of 

these claims was intrinsic to establishing a default on the note as 

a predicate for its collection”); Williamson v. Tucker, 615 S.W.2d 

881, 892 (Tex. Civ. App. 1981) (holding that fees attributable to a 

rescission-based counterclaim were compensable because, if the 

creditor had not successfully challenged the attempt to rescind, he 

“would have lost his right to collect the note”); Wright v. Doolin, 

607 A.2d 1137, 1140 (Vt. 1992) (upholding an award of attorney 
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fees stemming from a counterclaim because “[d]efending against 

the counterclaim was necessary in order to collect the debt 

owed”).

¶31 We acknowledge that many (though not all) of the 

above-cited cases involved the creditor’s defense against a 

counterclaim by the debtor—i.e., situations in which the creditor

initially filed suit to collect on the debt, but the debtor then filed a 

counterclaim seeking to invalidate the debt. And that’s of course 

different from what happened here, where it was Vierig who filed 

his declaratory judgment and quiet title suit in the first instance. 

But while Vierig suggests that this sequencing matters, this is at 

least arguably the proverbial distinction without a difference.

Consider the two scenarios back-to-back:

• Scenario A: The creditor sues to collect on the debt. In 

response to that suit, the debtor files a counterclaim 

seeking to invalidate the debt, thus forcing the creditor 

to defend against that claim to collect on the debt.

• Scenario B: The debtor first sues for a judicial 

declaration that the debt is invalid, thus forcing the 

creditor to defend against that claim to ever collect on 

the debt. After the debtor’s suit is filed, the creditor sues 

to collect on the debt. 

¶32 In Scenario A, the debtor’s claim about the validity of the 

debt is reactive; in Scenario B, the debtor’s claim about the validity 

of the debt is preemptive. But in both scenarios, the debtor’s 

efforts are directed at the same end: preventing the creditor from 

collecting on the debt. And in both scenarios, the creditor has no 

choice but to defend against the claim for the same reason: to 

preserve the creditor’s right to “collect on the note.” Duryea, 606 

F.2d at 826 (quotation simplified). If the creditor’s ability to 

receive attorney fees for these efforts turned on who filed the first 

suit, parties could “coerce settlement” by “winning the ‘race to the 

courthouse,’” thereby “rendering the ‘cost of collection’ provision 
Vierig v. Therriault

20210258-CA 16 2023 UT App 67

of little value, apparently contrary to what the parties to the note 

intended.” Id. (quotation simplified).

¶33 The basic point of Therriault’s position is this: because a 

creditor cannot collect on an invalid debt, a creditor’s response to 

the debtor’s attempt to invalidate a debt is “inextricably 

intertwined” with any effort to collect on it. Finalco, 3 Cal. Rptr. 

2d at 869. Here, for example, if and when Therriault does collect 

on the debt—which, under the unchallenged summary judgment 

ruling she received on Vierig’s suit, she’ll be entitled to do when 

Vierig either sells the property, refinances it, or dies—there will 

be a direct through-line connecting this very litigation to her 

recovery of owed money, because the latter could not have 

occurred without the former. Because of this, the Fee Provision 

can reasonably be interpreted to allow Therriault to recover those 

attorney fees. 

* * *

¶34 This brings us back to where we started. Again, “where a 

contractual term or provision is ambiguous as to what the parties 

intended, the question becomes a question of fact to be 

determined by the fact-finder.” Brady, 2019 UT 16, ¶ 53. And a 

provision is ambiguous if both sides present reasonable 

interpretations that favor their positions. Id. ¶ 54. With respect to 

the potential applicability of the Fee Provision to the fees 

Therriault incurred while defending the validity of the debt, both 

sides have indeed advanced reasonable interpretations, so we 

accordingly remand for the district court to determine the parties’ 

intent in the first instance. See, e.g., Noel v. James, 2022 UT App 33, 

¶ 13, 507 P.3d 832 (“When confronted with questions of fact, this 

court will only rule as a matter of law if the evidence is so clear 

and persuasive that all reasonable minds would find one way. 

Otherwise, remand is appropriate to allow the district court to 

make that determination.” (quotation simplified)).
Vierig v. Therriault

20210258-CA 17 2023 UT App 67

C. Fees Incurred Prosecuting the Counterclaim 

¶35 As noted, Therriault also asked for fees that she incurred 

while prosecuting her counterclaim, but the district court denied 

that request. On appeal, Therriault claims that those are also 

recoverable as “costs and expenses of collection” because she 

“substantially prevailed on her counterclaim.” In her view, she 

substantially prevailed on the counterclaim because the 

counterclaim was “necessary to respond” to Vierig’s “attempt to 

set aside the Trust Deed” and recognize “its validity and the 

underlying debt.”

¶36 But we disagree with Therriault’s assertion that she 

“substantially prevailed on her counterclaim.” In his own initial 

suit, Vierig asserted that “[n]o Promissory Note was ever 

executed, and no debt is owed to” her. Based on this assertion, 

Vierig asked the court to invalidate the Trust Deed. Because of

this, it wasn’t at all “necessary” for Therriault to file a 

counterclaim in order to argue that the debt or the Trust Deed 

were valid. Rather, any such arguments were already a necessary 

part of any defense to Vierig’s suit.

¶37 What Therriault added to the litigation in the counterclaim 

was her assertion that Vierig had allegedly “repudiated the debt”

by filing his suit, as well as her claims that she was accordingly 

entitled to (1) “an order from this Court providing that the Debt 

is due and owing” and (2) an order “providing that the Property 

be sold.” But in its ruling following Therriault’s request for 

clarification, the district court squarely rejected these claims, 

concluding that Vierig “has not repudiated [the debt] by asking 

the Court to interpret the document” and that “the Trust Deed is 

NOT due until the Property is sold or [Vierig] dies.” As noted, 

Therriault has not appealed that decision.

¶38 We held above that the Fee Provision can reasonably be 

construed to allow Therriault to recover the attorney fees she 

incurred defending the validity of the debt and the Trust Deed. 

Again, this is so because there’s at least plausibly a direct line 
Vierig v. Therriault

20210258-CA 18 2023 UT App 67

between that effort and any future collection on the debt. But this 

is not so with respect to the fees Therriault incurred prosecuting 

her counterclaim. The only result of that litigation was the court’s 

rejection of her attempt to prematurely collect on the debt. 

Because that attempt failed, it will not directly lead to the 

collection of any money that she’s owed. And because of this, we 

see no plausible interpretation of the Fee Provision under which 

Therriault would be entitled to the fees she incurred in that failed 

effort. We accordingly affirm the district court’s rejection of that 

request.

CONCLUSION

¶39 We reverse the district court’s rejection of Therriault’s 

request for attorney fees relating to the litigation over the validity 

of the debt and the Trust Deed. Because both parties have 

advanced a reasonable interpretation of the Fee Provision as it 

relates to those fees, its applicability to them presents a fact 

question that should be decided by the district court after 

receiving evidence of the parties’ intent. But we affirm the district 

court’s rejection of Therriault’s request for attorney fees incurred 

prosecuting her counterclaim. With respect to those fees, we see 

no basis under the Fee Provision for awarding Therriault fees that 

she incurred in that failed effort. 

¶40 We accordingly remand to the district court for further 

proceedings consistent with this opinion.7

7. In addition to arguing that she’s entitled to the attorney fees she 

incurred below, Therriault requests the attorney fees she incurred 

on appeal. In Therriault’s view, when “attorney fees are 

recoverable, a party is also entitled to recover the fees incurred in 

establishing the right to fees.” As discussed above, however, we 

haven’t concluded that Therriault has “the right to fees.” Rather, 

we’ve remanded for further factual development and then a 

(continued...)
Vierig v. Therriault

20210258-CA 19 2023 UT App 67

ON PETITION FOR REHEARING

¶41 After we issued the above opinion, Vierig filed a petition 

for rehearing. There, he argued that we should not have reached 

the question of whether the Fee Provision was ambiguous because 

(A) Therriault did not preserve an ambiguity argument below 

and (B) Therriault did not argue ambiguity in her briefing on 

appeal. We called for a response. Having considered the 

arguments of the parties on these questions, we decline to disturb 

our original opinion. 

A. Preservation

¶42 Vierig first claims that Therriault did not preserve an 

argument that the Fee Provision was ambiguous. While we 

acknowledge the potential complexity of this issue, we 

nevertheless conclude that Therriault’s arguments were sufficient 

to preserve an ambiguity argument. 

decision by the district court, and we’ve done so on only some 

(but not all) of the fees that Therriault has requested. 

Moreover, in support of her request for appellate fees, 

Therriault cites Express Recovery Services Inc. v. Olson, 2017 UT 

App 71, ¶ 20, 397 P.3d 792, and Brown v. David K. Richards & Co., 

1999 UT App 109, ¶ 29, 978 P.2d 470. But the cited cases and 

passages all turn on whether the party prevailed on appeal. 

Therriault has not argued or provided any authority establishing 

that she would still be deemed the prevailing party on appeal if 

we remand for further fact-finding and decision on just some of 

her requested fees. Without adequate briefing on this front, we 

have no basis for concluding that Therriault is the prevailing party 

on appeal. We accordingly decline her request for appellate fees. 

See Utah R. App. P. 24(a)(9) (requiring a party requesting attorney 

fees on appeal to “state the request explicitly and set forth the 

legal basis for an award”); cf. Gore v. Grant, 2015 UT App 113, ¶ 32, 

349 P.3d 779.
Vierig v. Therriault

20210258-CA 20 2023 UT App 67

¶43 “When a party fails to raise and argue an issue in the trial 

court, it has failed to preserve the issue, and an appellate court 

will not typically reach that issue absent a valid exception to 

preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. “An 

issue is preserved by presenting it to the trial court in such a way 

that the trial court has an opportunity to rule on that issue.” Fort 

Pierce Indus. Park Phases II, III, & IV Owners Ass’n v. Shakespeare, 

2016 UT 28, ¶ 13, 379 P.3d 1218 (quotation simplified).

¶44 Of note, “[i]ssues must be preserved, not arguments for or 

against a particular ruling on an issue raised below.” Gressman v. 

State, 2013 UT 63, ¶ 45, 323 P.3d 998 (emphasis in original). By 

contrast, “new arguments, when brought under a properly 

preserved issue or theory, do not require an exception to 

preservation.” True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 32, 

427 P.3d 338 (emphasis in original, quotation otherwise 

simplified). Though it’s sometimes perhaps a touch opaque, the 

conceptual dividing line here is “between new ‘issues’ (like 

distinct claims or legal theories) and new ‘arguments’ in support 

of preserved issues (such as the citation of new legal authority).” 

Hand v. State, 2020 UT 8, ¶ 6, 459 P.3d 1014; see also True, 2018 UT 

App 86, ¶ 42 (referring to an issue as an assertion that is “based 

upon an entirely different analytical framework”).

¶45 In the proceedings below, Vierig and Therriault each 

presented the district court with a competing interpretation of the 

Fee Provision, and each side’s proposed interpretation largely 

tracked the version we recounted above in our original opinion. 

In his rehearing petition, Vierig focuses on the fact that Therriault 

did not then argue that the Fee Provision was ambiguous, but that 

she only asked the district court to conclude that she was entitled 

to relief as a matter of law. And for his part, Vierig proceeded 

similarly. Like Therriault, Vierig didn’t argue that the provision 

was ambiguous; rather, Vierig asked the court to accept his 

interpretation as a matter of law. As discussed above in our 

opinion, the district court sided with Vierig, ruling that Therriault 

was not entitled to fees under the Fee Provision, and it did so

without taking any evidence of the parties’ intent.
Vierig v. Therriault

20210258-CA 21 2023 UT App 67

¶46 For purposes of Vierig’s argument about preservation, 

then, the question is this: did Therriault’s assertion that she was 

entitled to her attorney fees under the Fee Provision also 

“present[]” an ambiguity argument to the district court and give 

the court the “opportunity to rule” on the issue of whether the 

provision was ambiguous? Fort Pierce, 2016 UT 28, ¶ 13 (quotation 

simplified). We think it did. 

¶47 A provision “is ambiguous if it is capable of more than one 

reasonable interpretation because of uncertain meanings of terms, 

missing terms, or other facial deficiencies.” Brady v. Park, 2019 UT 

16, ¶ 54, 445 P.3d 395 (quotation simplified). A “reasonable 

interpretation is an interpretation that cannot be ruled out, after 

considering the natural meaning of the words in the contract 

provision in context of the contract as a whole, as one the parties 

could have reasonably intended.” Id. ¶ 55. As we recognized 

above, it is settled in Utah that if “both sides advance 

interpretations of [a contract] that are plausible and reasonably 

supported by the document’s language, then the document is 

ambiguous, even if neither party actually uses that label to describe 

the document.” Ocean 18 LLC v. Overage Refund Specialists LLC (In 

re Excess Proceeds from Foreclosure of 1107 Snowberry St.), 2020 UT 

App 54, ¶ 25, 474 P.3d 481 (emphasis added). 

¶48 Our decision in Ocean 18 largely answers the preservation 

question raised by Vierig in his rehearing petition. There, Ocean 

18 appealed a district court’s determination that it had no interest 

in a trust deed. Id. ¶ 17. In recounting the procedural history of 

the case, we first noted that the district court had not taken any 

evidence or made any factual findings on the question of how to 

interpret the trust deed, but that the court had instead ruled on 

the basis of the parties’ briefing and arguments alone. Id. 

Although “neither the parties nor the court framed it this way,” 

we concluded that by doing so, the district court had “in essence 

. . . made a summary judgment ruling in which it determined, as 

a matter of law and undisputed fact, that Ocean 18 had no interest 

in” the trust deed. Id. (quotation simplified). We accordingly 

reviewed Ocean 18’s challenge to that ruling under the 
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20210258-CA 22 2023 UT App 67

“well-settled” standard of review for summary 

judgment: correctness. Id.

¶49 Turning to the question of how to interpret the trust deed, 

we noted that “one of the first questions a court must consider in 

interpreting a contract is whether the contract is ambiguous.” Id.

¶ 23. Describing the proceedings below, we noted that the parties 

had “advance[d] differing positions” as to the trust deed’s 

“clarity,” presenting the district court with “diametrically 

opposed interpretations” of it and the “associated documents.” Id.

¶ 24. We then noted that “neither side expressly argued” to the 

district court that the trust deed was “ambiguous,” nor did either 

side use “any variant of the word ‘ambiguous’” in its appellate 

briefing. Id. But we nevertheless concluded that the trust deed was 

ambiguous. On this, we noted that “[p]arties do not need to use 

the word ‘ambiguous’ in order for a court to determine that a 

document is indeed ambiguous.” Id. ¶ 25. And because “both 

sides” in the case had “espouse[d] interpretations” of the trust 

deed that were “plausible and reasonably supported by its 

language,” we concluded that it was ambiguous, even though 

“neither party actually use[d] that label to describe the 

document.” Id. We stressed that this is “indeed . . . the very 

definition of contractual ambiguity.” Id. (quotation simplified).

¶50 In Lane Myers Construction, LLC v. National City Bank, 2014 

UT 58, 342 P.3d 749, a plurality of our supreme court proceeded 

similarly. There, the plurality considered whether a district court 

had properly dismissed claims “as a matter of law” based on the 

“face” of written agreements. Id. ¶ 29 (plurality opinion). Of note, 

both parties had moved for summary judgment and, “in so 

moving, asserted a lack of ambiguity” and “a right to judgment in 

theirfavor as a matter of law.” Id. ¶ 36 (emphasis added). But even 

so, the plurality saw “nothing in the parties’ arguments in the 

district court that foreclose[d] a remand for further proceedings” 

if the supreme court concluded that the agreements were instead 

ambiguous. Id. The plurality emphasized that a “party’s mere 

contention that there are no issues of material fact—a contention 

made every time a party moves for summary judgment—is beside 
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20210258-CA 23 2023 UT App 67

the point.” Id. (emphasis omitted). Instead, it concluded that a 

court “must make [its] own independent assessment,” and if, on that 

independent assessment, a court finds “ambiguity,” it must then 

“also determine that summary judgment was not called for, and 

that further proceedings are necessary.” Id. ¶ 37 (emphasis 

added).8

¶51 The question posed by Vierig’s rehearing petition, then, is 

how such cases fit with the preservation rule. The answer is that 

when a party asserts that it is entitled to relief under a contractual 

provision as a matter of law, that assertion necessarily has built 

into it (and thus preserves) the underlying assertion that the 

party’s proposed interpretation is, at minimum, “plausible and 

reasonably supported by the document’s language.” Ocean 18,

2020 UT App 54, ¶ 25. After all, the party couldn’t be entitled to 

relief if its interpretation were implausible and unreasonable. By 

asking the court to adopt its interpretation of the contract, the 

party is thereby also giving the court the opportunity to rule that 

the contract is ambiguous if the court considers the other side’s 

proposed interpretation and concludes that it is plausible and 

reasonable too.

¶52 Put differently, if one side proposes Interpretation A and 

the other side proposes Interpretation B, the court does not have 

8. The plurality opinion discussed above was authored by Justice 

Lee and joined by Justice Parrish. Chief Justice Durrant concurred 

in the result but differed as to the underlying legal elements of the 

claim at issue. See Lane Myers Constr., LLC v. National City Bank, 

2014 UT 58, ¶¶ 39–47, 342 P.3d 749 (Durrant, C.J., concurring). But 

despite his disagreement about the case’s proper legal contours, 

Chief Justice Durrant still agreed that under either the plurality’s 

legal approach or his, “it is clear that there are factual issues that 

preclude summary judgment.” Id. ¶ 47. Thus, even though both 

parties had “asserted a lack of ambiguity,” id. ¶ 36 (plurality 

opinion), three justices of the supreme court still concluded that 

the documents were ambiguous and that the case should be 

remanded as a result.
Vierig v. Therriault

20210258-CA 24 2023 UT App 67

to consider any “distinct claim[] or legal theor[y],” Hand, 2020 UT 

8, ¶ 6, to conclude that the provision is ambiguous. Rather, if the 

court concludes that Interpretations A and B are both plausible

and reasonable, the contractual term is ambiguous. Again, this is 

the “very definition of contractual ambiguity,” Ocean 18, 2020 UT 

App 54, ¶ 25. And of note, the court would reach that ambiguity 

conclusion based on the exact claims and legal theories that were 

just presented to it by the parties themselves. 

¶53 So here, it’s true that Therriault didn’t argue below that the 

Fee Provision was ambiguous. But she did argue that she was 

affirmatively entitled to fees under the Fee Provision, and as 

we’ve set forth above, we think that argument was plausible and 

reasonable. By making that argument, Therriault presented the 

court with the issue of whether she was entitled to fees under the 

Fee Provision, and she likewise gave the court the opportunity to 

conclude that, even if she wasn’t entitled to judgment as a matter 

of law, Vierig wasn’t either. But if the court concluded that neither 

party was entitled to judgment as a matter of law, the only 

permissible outcome would be further consideration of the 

question in light of extrinsic evidence of what the parties 

intended. 

¶54 Because of all this, we conclude that the issue of whether 

Therriault is entitled to fees under the Fee Provision was 

preserved, and that because it was, the district court also had the 

opportunity to rule on the issue of whether the Fee Provision was 

ambiguous. The ambiguity argument was therefore sufficiently 

preserved to allow us to reach it on appeal.9

9. In his rehearing petition, Vierig argues that our recent decision 

in Larson v. Stauffer, 2022 UT App 108, 518 P.3d 175, establishes 

that an ambiguity argument must be preserved. We read Larson 

differently. There, two neighbors (the Larsons and the Stauffers) 

had a disagreement about the placement of the Larsons’ backyard 

shed. Id. ¶ 2. After some period of dispute, the parties agreed to a 

(continued...)
Vierig v. Therriault

20210258-CA 25 2023 UT App 67

settlement that required the Larsons to move the shed “within six 

months.” Id. ¶ 5 (quotation simplified). In a subsequent lawsuit, 

the Stauffers claimed that the Larsons had breached this provision 

by not moving the shed “within six months of signing” the 

settlement. Id. ¶ 10 (quotation simplified). In response, the 

Larsons claimed that the settlement was “ambiguous regarding 

the date the shed had to be removed.” Id. ¶ 11. But the district 

court agreed with the Stauffers, concluding that the settlement 

“unambiguously required the Larsons to have removed the shed 

within six months of signing.” Id. ¶ 14 (quotation simplified).

On appeal, we considered whether the Larsons’ failure to 

timely move the shed constituted a failure to “substantially 

perform[]” under the settlement. Id. ¶¶ 21–28. In a footnote to that 

discussion, we pointed out that the Larsons had separately argued 

on appeal that it was “at least ambiguous whether the six-month 

deadline began to run from the date of signing versus the date the 

Stauffers moved their fence ‘to facilitate the necessary 

modifications’ to the shed.” Id. ¶ 21 n.3. But we then stated that 

“the Larsons did not make this argument in the district court, so 

it [was] unpreserved.” Id. 

In Vierig’s view, this passage stands for the proposition 

that an ambiguity argument itself must be preserved. But it’s 

unclear whether this is what Larson actually said. Again, in 

recounting the procedural history of the case, we made it clear 

that the Larsons had raised an ambiguity argument “regarding 

the date the shed had to be removed.” Id. ¶ 11. Despite this, we 

nevertheless thought that there was something about this 

additional ambiguity argument that they had not preserved 

below. In this light, the thing that we identified as having been 

added on appeal was the assertion that the settlement was 

ambiguous because the six month period began running from 

“the date the Stauffers moved their fence,” id. ¶ 21 n.3, an 

assertion about the proper starting point that had previously been 

unmentioned in our opinion.

Properly understood, Larson thus stands for the 

proposition that a party’s proposed interpretation of a contract 

(continued...)
Vierig v. Therriault

20210258-CA 26 2023 UT App 67

B. Therriault’s Brief on Appeal

¶55 Vierig next argues that, preservation aside, we also 

shouldn’t have reached the question of whether the Fee Provision 

was ambiguous because Therriault didn’t argue ambiguity in her 

brief. We disagree with Vierig here too.

¶56 Vierig correctly points out that Therriault did not argue 

ambiguity in her brief. But she did argue that the “issue before 

this Court is whether the trial court erred in declining to award 

[Therriault] her attorney fees and costs,” that the “trial court erred 

in concluding that the phrase ‘all costs and expenses of collection’ 

does not include [her] attorney fees and costs,” and that the “fees 

and costs incurred in prosecuting [her] counterclaim also clearly 

fall within the scope of ‘costs and expenses of collection.’” And in 

the Conclusion of her brief, she asked us to “reverse the trial 

court’s refusal to award fees and costs and remand for a 

determination of [her] allowable fees and costs.”

¶57 True, the reason Therriault gave us for “revers[ing] the trial 

court’s refusal to award fees and costs” was that she thought she 

was affirmatively entitled to relief herself. But by arguing that she

must be preserved below and that a party can’t offer a new one 

for the first time on appeal. But this is decidedly not what 

happened here, where Therriault consistently argued below and 

on appeal that the Fee Provision covers the attorney fees she 

incurred while defending against Vierig’s attempt to invalidate 

the debt and the Trust Deed.

In any event, if it’s true that our conclusion in this appeal 

is in tension with Larson, a contrary conclusion would be in 

tension with Ocean 18 and Lane Myers. Faced with these two 

options, we conclude that the better rule is the one we’ve laid out 

above: when a party asks a court to affirmatively adopt its 

interpretation of a contract, this request preserves an argument 

that the contract should instead be regarded as ambiguous if the 

court concludes that the other party offers a plausible and 

reasonable interpretation too.
Vierig v. Therriault

20210258-CA 27 2023 UT App 67

was entitled to relief under the Fee Provision, Therriault 

necessarily also argued that Vierig’s contrary interpretation of it 

wasn’t correct.

¶58 In our original opinion, we essentially gave Therriault half 

of what she was requesting. At her request, we reversed the 

district court’s decision to interpret the Fee Provision in Vierig’s 

favor as a matter of law; even so, however, we declined to also 

conclude that she was entitled to summary judgment herself. But 

our decision not to order summary judgment in Therriault’s favor 

wasn’t the result of anything that Therriault didn’t argue. Rather, 

it was the result of something that Vierig did argue in response. 

Namely, in his brief, Vierig gave us a plausible and reasonable 

interpretation of his own. Once we saw the plausibility in both 

sides’ positions, this compelled us to conclude that the Fee 

Provision was ambiguous based on the arguments that had been 

presented to us in the briefs. Again, this is the “very definition of 

contractual ambiguity.” Ocean 18, 2020 UT App 54, ¶ 25. 

¶59 Of note, we were confronted with a similar dynamic in 

Beckman v. Cybertary Franchising LLC, 2018 UT App 47, 424 P.3d 

1016. There, both parties on appeal likewise contended that the 

document at issue was “unambiguous and must be read in 

support of their respective positions.” Id. ¶ 76. Although both 

sides “advocate[d] different ways” to interpret the clause in 

question, we concluded that the “plain language does not 

obviously support either alternative.” Id. ¶ 83. Because of that 

conclusion, we “remand[ed] this issue to the trial court to consider 

extrinsic evidence to determine its meaning.” Id.

¶60 The same result is warranted here too. In her arguments 

below and again on appeal, Therriault raised the issue of whether 

she is entitled to her attorney fees under the Fee Provision. While 

Therriault hasn’t persuaded us that her interpretation of that 

provision is correct as a matter of law, she has persuaded us that 

Vierig’s interpretation isn’t correct as a matter of law either.

Because of that, the provision is by definition ambiguous, which 

is why we’re reversing the district court’s decision. 
Vierig v. Therriault

20210258-CA 28 2023 UT App 67

¶61 For these reasons, we decline to reverse our original 

opinion on either of the grounds identified by Vierig in his 

rehearing petition.

ORME, Judge (concurring specially):

¶62 I concur fully in the lead opinion. I write separately to 

address a concern I know practitioners will have when they read 

paragraphs 15, 16, 34, and 39.

¶63 Experience suggests that it is not likely there will be a 

wealth of extrinsic evidence bearing on the parties’ intent with 

respect to the provision in question. It is much more likely that 

boilerplate language was rather uncritically used. And if there is 

no relevant, admissible evidence of the parties’ actual intent, the 

tie-breaker will come into play and the provision will be 

construed against the drafter. See Gillmor v. Macey, 2005 UT App 

351, ¶ 38 n.16, 121 P.3d 57, cert. denied, 126 P.3d 772 (Utah 2005). 

Notwithstanding the likelihood of that scenario, realistically 

speaking, the parties must first have their opportunity to present 

whatever pertinent evidence they might have. This court cannot 

jump over that step and construe the provision against the drafter 

on the assumption, likely though it is, that there will be no 

admissible evidence bearing on the parties’ intent in agreeing to 

this provision.