2017 UT App 162

THE UTAH COURT OF APPEALS

TOTAL RESTORATION INC.,

Appellant,

v.

VERNON MERRITT AND SANDRA MERRITT,

Appellees.

Opinion

No. 20160374-CA

Filed August 24, 2017

Third District Court, Silver Summit Department

The Honorable Kara Pettit

No. 090500905

Dana T. Farmer, Attorney for Appellant

Vernon Merritt and Sandra Merritt, Appellees Pro Se

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES

STEPHEN L. ROTH and DAVID N. MORTENSEN concurred.

1

ORME, Judge:

¶1 This case involves a mechanic’s lien that, while invalid, 

was not wrongful. The lien claimant appeals the trial court’s 

order that denied its request for attorney fees and awarded costs 

to the homeowners. We affirm in part and reverse in part.

¶2 In 2008, the home of Vernon and Sandra Merritt was 

damaged by flooding after a pipe in their sprinkler system burst. 

The Merritts’ property manager contacted Total Restoration Inc., 

 

1. Judge Stephen L. Roth participated in this case as a member of 

the Utah Court of Appeals. He retired from the court before this 

decision issued.
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20160374-CA 2 2017 UT App 162

which performed flood-remediation work on the home. Total 

Restoration was never paid for its services.

¶3 Total Restoration recorded a mechanic’s lien against the 

Merritts’ home and eventually sued to foreclose. The Merritts 

counterclaimed, alleging breach of contract, wrongful lien, and 

abuse of lien right. The trial court held that Total Restoration’s 

lien was valid. On a prior appeal, we reversed, concluding that 

Total Restoration’s lien was invalid because “[t]he work Total 

Restoration performed . . . amount[ed] to no more than floodremediation and minor repairs that [were] not lienable under the 

mechanics’ lien statute.” Total Restoration, Inc. v. Merritt, 2014 UT 

App 258, ¶ 13, 338 P.3d 836. We remanded so the trial court 

could reconsider the Merritts’ counterclaims, which it had 

dismissed as a result of its conclusion that Total Restoration’s 

lien was valid. Id. ¶ 17.

¶4 On remand, in considering the Merritts’ wrongful lien 

counterclaim, the trial court determined that the lien, while 

invalid, was not wrongful. Specifically, the trial court concluded 

that Total Restoration’s lien was plausible because it was 

recorded before this court issued All Clean, Inc. v. Timberline 

Properties, 2011 UT App 370, 264 P.3d 244, in which we 

concluded that basic flood-remediation work is not lienable 

under the mechanic’s lien statute. See id. ¶¶ 17–19. The trial court 

declined to award Total Restoration its attorney fees and instead 

awarded costs—but not attorney fees—to the Merritts under rule 

34 of the Utah Rules of Appellate Procedure. Total Restoration 

appeals.

¶5 Total Restoration raises two arguments on appeal. First, 

Total Restoration contends that the trial court erred in its 

application of the Wrongful Lien Act. “We review questions of 

statutory interpretation for correctness, granting no deference to 

the district court’s decision.” Carter v. University of Utah Med.

Center, 2006 UT 78, ¶ 8, 150 P.3d 467.
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20160374-CA 3 2017 UT App 162

¶6 Second, Total Restoration argues that the trial court 

erroneously awarded costs to the Merritts pursuant to rule 34 of 

the Utah Rules of Appellate Procedure. “The interpretation of a 

rule of procedure is a question of law that we review for 

correctness.” Arbogast Family Trust v. River Crossings, LLC, 2010 

UT 40, ¶ 10, 238 P.3d 1035 (citation and internal quotation marks 

omitted).

¶7 Total Restoration argues that the Wrongful Lien Act

“permits a lien filer to recover attorney’s fees if the [challenged]

lien is not wrongful.” But the operative language of the attorneyfee provision speaks in terms of validity rather than 

wrongfulness. As the trial court correctly observed, the 

Wrongful Lien Act provides that “[i]f the court determines that 

the claim of lien is valid, the court shall dismiss the petition and 

may award costs and reasonable attorney’s fees to the lien 

claimant.” Utah Code Ann. § 38-9-205(5)(c) (LexisNexis 2014) 

(emphasis added). Because recovering attorney fees requires a 

lien that is valid, as opposed to one that is merely not wrongful, 

and because we have already determined that Total 

Restoration’s lien is invalid, see Total Restoration, Inc. v. Merritt, 

2014 UT App 258, ¶ 17, 338 P.3d 836, Total Restoration does not 

qualify for a discretionary award of attorney fees under the 

Wrongful Lien Act.

¶8 Total Restoration’s argument assumes that the attorneyfee provisions of the Wrongful Lien Act operate in binary 

fashion, i.e., that one side or the other will be entitled to attorney 

fees depending on whether or not the lien is wrongful.2In 

 

2. At least one of our prior decisions seems to reflect our 

uncritical acceptance of the position advanced by the parties in 

that case and our careless application there of Total Restoration’s 

same assumption. In Bay Harbor Farm, LC v. Sumsion, 2014 UT 

App 133, 329 P.3d 46, we reversed the trial court’s order 

(continued...)
Total Restoration v. Merritt

20160374-CA 4 2017 UT App 162

actuality, the act envisions three scenarios, the third of which is 

typified by this case.

¶9 First, a lien may be valid and, necessarily, not wrongful. 

In that event, the court may award fees to the lien claimant. See 

Utah Code Ann. § 38-9-205(5)(c) (“If the court determines that 

the claim of lien is valid, the court shall dismiss the petition and 

may award costs and reasonable attorney’s fees to the lien 

claimant.”).

¶10 Second, a lien may be wrongful, and—necessarily—

invalid. In that scenario, the petitioner is entitled to an award of 

attorney fees. See id. § 38-9-205(5)(a) (“If, following a hearing, the 

court determines that the recorded document is a wrongful lien, 

the court shall issue an order declaring the wrongful lien void ab 

initio, releasing the property from the lien, and awarding costs 

and reasonable attorney fees to the petitioner.”).

¶11 Third, as in this case, a lien may be invalid but not 

wrongful. In that event, there is no basis in the statute for an 

award of fees to either side. The lien claimant is not entitled to 

attorney fees because the lien was not valid. See id. § 38-9-

 

(...continued)

nullifying an attorney’s lien as wrongful and instructed that “the 

district court ‘shall dismiss the petition and may award costs and 

reasonable attorney’s fees to [the lien claimant.]’” Id. ¶ 16 

(quoting Utah Code Ann. § 38-9-7(5)(c) (LexisNexis 2010)). In 

retrospect, the authorization to consider a fee award was 

premature, given that the validity of the lien had not yet been 

determined. See id. ¶¶ 11, 13 n.3, 14–15. In the context of the 

discussion that follows in the instant opinion, see infra ¶¶ 9–11, it 

was not yet clear whether the lien at issue in Bay Harbor fell into

the first (valid and not wrongful) or third (invalid but not 

wrongful) category.
Total Restoration v. Merritt

20160374-CA 5 2017 UT App 162

205(5)(c). The petitioner is not entitled to a fee award because the 

lien was not wrongful. See id. § 38-9-205(5)(a). In the 

circumstance of a lien that is invalid but not wrongful, each side 

bears its own attorney fees. Thus, the trial court did not err in 

refusing to consider an award to Total Restoration of its claimed 

attorney fees.

¶12 Total Restoration also contends that the trial court

erroneously awarded the Merritts their costs incurred in the 

prior appeal. Rule 34 of the Utah Rules of Appellate Procedure 

instructs that “[a] party claiming costs shall, within 15 days after 

the remittitur is filed with the clerk of the trial court, serve upon 

the adverse party and file with the clerk of the trial court an 

itemized and verified bill of costs.” Utah R. App. P. 34(d). Here, 

the Merritts did not submit their bill of costs until close to ten 

months after the remittitur was filed with the court clerk. 

Accordingly, the Merritts were not eligible to receive an award 

of their costs. See Price-Orem Inv. Co. v. Rollins, Brown & Gunnell, 

Inc., 784 P.2d 475, 484 (Utah Ct. App. 1989) (declaring a party

ineligible to receive costs after filing the bill of costs close to five 

months after the deadline prescribed by rule 34), overruled on 

other grounds by Smith v. Fairfax Realty, Inc., 2003 UT 41, ¶ 23 n.7, 

82 P.3d 1064. We therefore reverse the trial court’s award of costs 

to the Merritts.