2023 UT App 43

THE UTAH COURT OF APPEALS

FERNWOOD PLACE LC,

Appellant,

v.

LAYTON PARTNERS HOLDINGS LP

AND TARANTINO PROPERTIES INC.,

Appellees.

Opinion

No. 20210568-CA

Filed April 27, 2023

Second District Court, Farmington Department

The Honorable David M. Connors

No. 210700109

Douglas M. Durbano, Richard A. Bednar, and 

John E. Keiter, Attorneys for Appellant

Scott O. Mercer, Scott S. Bridge, and J. Adam Knorr, 

Attorneys for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS

concurred.

MORTENSEN, Judge:

¶1 A holding company recorded a lien against real property 

owned by a developer. While disputing the lien as wrongful, the 

developer nevertheless paid the demanded amount. The holding 

company released the lien. About three-and-a-half years later, the 

developer sued, asserting a single claim of money damages for 

wrongful lien. The district court dismissed the complaint as timebarred. Arguing that it had seven years to bring the claim, the 

developer appeals. We affirm.
Fernwood Place v. Layton Partners Holdings

20210568-CA 2 2023 UT App 43

BACKGROUND

¶2 From 2015 through 2017, LPH1 was the manager of a 

subdivision in Layton, Utah. Fernwood Place LC (Fernwood) 

owned real property in that subdivision.

¶3 In 2017, Fernwood completed the construction of an 

apartment complex in the subdivision and was scheduled to close 

on the sale of that complex on June 3. But on June 2, LPH recorded

a notice of lien against Fernwood with the county. The lien 

demanded just over $20,000 for unpaid maintenance fees and 

other charges. To avoid a delay in the sale of the apartment

complex, Fernwood paid the balance demanded in the notice of 

lien but reserved the right to assert a claim for wrongful lien 

against LPH. LPH released the lien in August 2017.

¶4 In February 2021, Fernwood filed a complaint asserting a 

single cause of action—“Wrongful Lien”—against LPH. 

Fernwood’s complaint asserted that LPH “caused a wrongful lien 

to be recorded” that “was groundless and contained material 

misstatements concerning the scope of maintenance allegedly 

provided to the [s]ubdivision and the amount allegedly owed by 

Fernwood.” As relief, Fernwood sought (1) a finding that LPH 

“caused a wrongful lien to be recorded against Fernwood’s real 

property,” (2) “[a]n award of actual and treble damages” in an 

amount of at least $10,000, (3) “[a]n award of reasonable 

attorneys’ fees and costs,” and (4) further relief as the district court 

deemed “just and proper.” Fernwood did not seek to have the lien 

nullified, because it had long since been released. 

1. In 2016, Layton Partners Holdings LP notified Fernwood Place 

LC that “property accounting functions” would be handled “in 

house” by its “sister company,” Tarantino Properties Inc. For 

convenience, we refer to Layton Partners Holdings LP and 

Tarantino Properties Inc. collectively as “LPH.”
Fernwood Place v. Layton Partners Holdings

20210568-CA 3 2023 UT App 43

¶5 LPH moved the district court to dismiss the complaint, 

arguing that the applicable limitation period was three years and 

that the complaint was therefore filed too late. See Utah Code 

§ 78B-2-305(4) (“An action may be brought within three years . . . 

for a liability created by the statutes of this state, other than for a 

penalty or forfeiture under the laws of this state, except where in 

special cases a different limitation is prescribed by the statutes of 

this state . . . .”). LPH also asked the court for an award of attorney 

fees and costs because Fernwood “would have recovered attorney 

fees and costs if successful in this litigation.” 

¶6 In opposition to the motion, Fernwood argued that “[t]he 

Wrongful Lien Act[2] permits a property owner to bring an action 

against a ‘lien clamant’ who ‘causes a wrongful lien to be recorded 

in the office of the county recorder against real property.’” (Citing 

id. § 38-9-203(1).) Fernwood noted that the Utah Code defines 

“lien claimant” as “a person claiming an interest in real property 

who offers a document for recording or filing with any county 

recorder in the state asserting a lien, or notice of interest, or other 

claim or interest in certain real property,” see id. § 38-9-102(4), and 

argued that the applicable limitation period was seven years, see

2. At oral argument before this court, Fernwood argued that its 

complaint should not be so narrowly construed as to assert only a 

cause of action under the Wrongful Lien Act. But Fernwood’s 

memorandum opposing the motion to dismiss is unambiguous in 

asserting that the only cause of action is under that act, going so 

far as to cite Utah Code section 38-9-203 as the source of the cause 

of action. And as already noted, Fernwood’s complaint identified 

the cause of action only as a wrongful lien, albeit without citing 

the statute. Moreover, the relief Fernwood sought in its complaint 

tracked the very language of the statute describing civil liability 

for recording a wrongful lien. See infra ¶ 12. Thus, there is no 

indication—apart from Fernwood’s later assertion—that 

Fernwood’s cause of action was for anything other than recording 

a wrongful lien.
Fernwood Place v. Layton Partners Holdings

20210568-CA 4 2023 UT App 43

id. § 78B-2-207(1) (“An action, defense, or counterclaim to an 

action based upon title to the property or entitlement to the rents 

or profits from the property shall be brought . . . not later than 

seven years after the act on which it is based . . . .”).

¶7 After briefing and oral argument, the district court granted 

LPH’s motion. Specifically, the court concluded that Fernwood’s 

claim for wrongful lien damages did “not affect title to real 

property or relate to rents or profits of real property to invoke the 

seven-year statute of limitations under” Utah Code section 78B-2-

207 and that Fernwood’s claim related “solely to monetary 

damages under” Utah Code section 38-9-203. Accordingly, the 

court determined that Fernwood’s “claims [were] subject to a 

three-year statute of limitations” applicable to actions based on 

liabilities created by statute. See id. § 78B-2-305(4). Noting that 

LPH had released the notice of lien in August 2017, the court 

concluded that Fernwood’s February 2021 complaint was timebarred. The court ordered that the parties bear their own attorney 

fees. Fernwood appealed the court’s ruling. LPH, however, did 

not cross-appeal the denial of its claim for attorney fees.

¶8 Fernwood then sought relief from judgment under rule 

60(b) of the Utah Rules of Civil Procedure, arguing that the court’s 

determination that a three-year limitation period applied was 

inconsistent with Utah precedent. Alternatively, it asked the court 

for leave to amend its complaint to add additional causes of 

action. Fernwood cited two cases to support its position that the 

appropriate statute of limitations was seven years: Turpin v. Cox, 

No. 140400253 (Utah 4thDist., Aug. 20, 2015) (a Utah state district 

court case), and Bay Harbor Farm, LC v. Sumsion, 2014 UT App 133, 

329 P.3d 46. The district court denied the rule 60(b) motion, noting 

that the cases Fernwood cited were “not on point” because “[i]n 

both cases, the liens at issue were still in effect when the 

complaints were filed” but here the lien had been “released 

shortly after it was placed.” And because the lien had been 

removed long before Fernwood’s complaint was filed, the court 
Fernwood Place v. Layton Partners Holdings

20210568-CA 5 2023 UT App 43

explained that Fernwood’s claim did not affect “title to the 

property or entitlement to the rents or profits from the property,”

a necessary condition for application of the seven-year limitation

period. (Quoting Utah Code § 78B-2-207.) Instead, Fernwood’s 

claim was “solely for money damages” related to the period when 

the lien was in place, making it subject to the three-year limitation

period. The court also denied the motion for leave to amend, 

stating that it lacked jurisdiction owing to the pendency of the 

appeal. Fernwood has not appealed the denial of its motions for 

relief from judgment or for leave to amend.

ISSUE AND STANDARD OF REVIEW

¶9 The sole issue on appeal is whether the district court erred 

in determining that Fernwood’s cause of action was subject to a 

three-year statute of limitations instead of a seven-year statute of 

limitations.3 We review “the application of a statute of limitations

3. During oral argument before this court, Fernwood attempted to 

introduce additional issues related to constitutional law and 

statute-of-limitations claims sounding in contract. Fernwood did 

not present these issues for consideration by the lower court, and 

they are not mentioned in Fernwood’s briefs. “Parties are required

to raise and argue an issue in the trial court in such a way that the

court has an opportunity to rule on it. A failure to preserve an 

issue in the trial court generally precludes a party from arguing 

that issue in an appellate court, absent a valid exception.” State v.

Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (cleaned up). Fernwood 

has not argued an exception to the preservation requirement; 

accordingly, we decline to further consider these newly 

introduced issues.

For its part, LPH requests attorney fees and costs on 

appeal, arguing that “because [Fernwood] would have recovered 

attorney fees and costs if successful in the underlying litigation, 

(continued...)
Fernwood Place v. Layton Partners Holdings

20210568-CA 6 2023 UT App 43

for correctness.” Daniels v. Deutsche Bank Nat’l Trust, 2021 UT App 

105, ¶ 25, 500 P.3d 891 (cleaned up).4

and could have requested appellate fees and costs” on appeal, this 

court “should award attorney fees and costs to [LPH] for 

succeeding in defending this appeal.” But LPH did not crossappeal the district court’s separate ruling denying its claim for

attorney fees, and so we decline to award them on appeal. See 

Evans v. Nielsen, 2015 UT App 65, ¶ 22, 347 P.3d 32 (“The district 

court expressly denied attorney fees below, ordering the parties 

to bear their own costs. [The appellee] has not challenged that 

decision on appeal. Therefore, we decline to grant attorney fees 

on appeal.”).

4. For some time, various judges on this court have been using the 

parenthetical “(cleaned up)” to enhance the readability of our 

opinions. See State v. Cady, 2018 UT App 8, ¶ 9 n.2, 414 P.3d 974,

cert. denied, 421 P.3d 439 (Utah 2018). Our opinions also employ 

the parenthetical “(quotation simplified),” which is identical in 

meaning to “(cleaned up).” See In re K.W., 2018 UT App 44, ¶ 15 

n.3, 420 P.3d 82. Both parentheticals indicate the omission of 

internal quotation marks, brackets, ellipses, emphases, internal 

citations, and footnote signals in published sources, as well as the 

traditional parenthetical notation referencing a prior case or cases 

being quoted. Ellipses indicate all other omissions. We also use 

these parentheticals to make unbracketed changes to 

capitalization. Apart from capitalization, alterations to words in 

the source are indicated by brackets.

These parentheticals are powerful editing tools because 

they make legal writing less tedious, more streamlined, and more 

concise. But their appeal begets a temptation to misuse them. And 

we acknowledge that we have, at times, ventured too far by using 

them with (1) quotations from unpublished sources not readily 

available to the public (namely, briefs, lower court documents, 

(continued...)
Fernwood Place v. Layton Partners Holdings

20210568-CA 7 2023 UT App 43

ANALYSIS

¶10 In this case, we are asked to determine which statute of 

limitations applies to a claim for damages proceeding from a

wrongful lien when the lien in question has been released. 

¶11 Fernwood asserts that its cause of action concerns title to 

property, and on that basis, it asserts that the applicable limitation 

period is seven years:

An action, defense, or counterclaim to an action 

based upon title to the property or entitlement to the 

rents or profits from the property shall be brought 

. . . not later than seven years after the act on which 

it is based . . . .

Utah Code § 78B-2-207(1).5 But LPH argues that Fernwood’s cause 

of action does not concern title to property and, instead, is based 

and transcripts) and (2) quotations of parenthetical language from 

cases citing other cases. To be more transparent and precise, we 

intend to limit our employment of these parentheticals to the 

circumstances identified in the above paragraph, and we expect 

practitioners who choose to employ these devices to abide by 

these same strictures. So that consistency of use might be 

achieved, the publishers of The Bluebook may wish to adopt rules 

similar to those proffered by Jack Metzler. See Jack Metzler,

Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 154–55 

(2017).

5. In a true quiet title action, there is no statute of limitations. See

In re Hoopiiaina Trust, 2006 UT 53, ¶ 27, 144 P.3d 1129 (“When a 

party asserts a quiet title claim in which that party merely requests 

that the court adjudicate the validity of an opponent’s adverse or 

hostile claim to property to which the party already holds title, no 

statute of limitations applies.”).
Fernwood Place v. Layton Partners Holdings

20210568-CA 8 2023 UT App 43

on a liability created by state statute. On that basis, LPH asserts 

that the applicable limitation period is three years:

An action may be brought within three years . . . for 

a liability created by the statutes of this state, other 

than for a penalty or forfeiture under the laws of this 

state, except where in special cases a different 

limitation is prescribed by the statutes of this state 

. . . .

Id. § 78B-2-305(4).

¶12 In our view, LPH has the better of the argument. This 

determination is driven by the remedy Fernwood sought in its 

complaint. Fernwood did not bring a claim to nullify a lien, a 

remedy that is available both under the wrongful lien statute, see

id. § 38-9-205(1) (“A record interest holder of real property against 

which a wrongful lien is recorded may petition the district court 

in the county in which the document is recorded for summary 

relief to nullify the wrongful lien.”), as well as at common law, see 

Esther M. Mertz Trust v. Fox Meadow Partners, 288 A.D.2d 338, 340 

(N.Y. App. Div. 2001) (stating that an action “to set aside a 

recorded instrument relating to real property” “could have been 

maintained at common law”). Fernwood could not have brought 

such a claim at the time it filed its complaint, because by then there 

was no longer any lien to nullify. It is undisputed that LPH 

released the lien a few months after it was recorded and after 

Fernwood had paid the amount demanded. Instead of seeking to 

nullify a lien, Fernwood sought an award of treble damages

pursuant to Utah’s wrongful lien statute.6 The nature of 

6. Treble damages for a wrongful lien is a liability that does not 

exist but for the statute. This liability does not exist in a common 

law nullification action. See Esther M. Mertz Trust v. Fox Meadow

Partners, 288 A.D.2d 338, 339–40 (N.Y. App. Div. 2001).
Fernwood Place v. Layton Partners Holdings

20210568-CA 9 2023 UT App 43

Fernwood’s cause of action is revealed by the relief it sought. 

Fernwood’s complaint stated,

LPH . . . [is] liable to Fernwood for actual and treble 

damages (which shall be no less than $10,000) and 

for reasonable attorneys’ fees and costs for causing 

a wrongful lien to be recorded against [Fernwood’s 

property in the subdivision].

This language closely tracks the statutory language establishing a 

cause of action and civil liability concerning damages for 

recording a wrongful lien: 

A person is liable to the record owner of real 

property for $10,000 or for treble actual damages, 

whichever is greater, and for reasonable attorney 

fees and costs, who records or causes to be recorded 

a wrongful lien in the office of the county recorder 

against the real property, knowing or having reason 

to know that the document . . . is a wrongful lien . . . .

Utah Code § 38-9-203(3). Thus, the damages that Fernwood 

requested mirror the very liability created by statute—namely,

“treble actual damages (which shall be no less than $10,000)”—for 

recording a wrongful lien. This statutory liability, unless 

otherwise specified, has a limitation period of three years. See id.

§ 78B-2-305(4).

¶13 The seven-year statute of limitations sought by Fernwood 

and prescribed by Utah Code section 78B-2-207 cannot apply here 

because Fernwood did not ask for relief “based upon title to the 

property or entitlement to the rents or profits from the property.” 

Id. § 78B-2-207(1). The title to the property or entitlement to rents 

or profits from the property were simply not at play in 

Fernwood’s claim. What was at play were the damages that 

Fernwood claims to have suffered as a result of the allegedly 

wrongful lien that LPH recorded against the property. And while 
Fernwood Place v. Layton Partners Holdings

20210568-CA 10 2023 UT App 43

the damages Fernwood sought admittedly stemmed from its 

interest in the property, that remedy was not—nor could have 

been—based on the title to the property. The title simply was not 

in dispute—at least after LPH released the lien. In other words, 

the outcome of Fernwood’s cause of action (if it had been allowed 

to proceed) would have in no way impacted the property rights 

of any party because no title dispute was on the table.

¶14 In sum, the damages that Fernwood sought—even though 

they were related to the property—do not somehow turn its cause 

of action into a lien-nullification action accompanied by a sevenyearlimitation period. Instead, Fernwood’s cause of action started 

as and remained a claim seeking damages under a liability created 

by the statutes of this state, and it therefore fell under the threeyear statute of limitations. Accordingly, we find no error in the 

district court’s determination that Fernwood’s claim was timebarred.

CONCLUSION

¶15 Having determined that the district court correctly applied 

a limitation period of three years to Fernwood’s claim of damages 

for an alleged wrongful lien, we affirm.