Olsen v. Lund
246 P.3d 521
Utah Ct. App.2010Background
- Buyers sued Sellers for fifteen breaches of the Real Estate Purchase Contract (REPC).
- At trial, Buyers recovered $754.77 on claims totaling $23,831.98 (about 3%).
- Trial court denied attorney fees to both sides.
- Sellers offered to pay Buyers’ fees to dismiss and refile in small claims; offer rejected; Rule 68 offer of judgment for $5,000 was also rejected.
- Court held REPC prevailing party clause entitles fees; appellate reversal awarded fees to Sellers for trial and on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who is the prevailing party for attorney fees | Buyers prevail on some claims, net recovery low. | Sellers defeated 97% of claims; not a draw; prevailing party. | Sellers are prevailing parties for fees. |
| How to determine prevailing party (net judgment vs comparative victory) | Net recovery should determine, at least partially. | Comparative victory-based approach required. | Court used a flexible, comparative-victory approach; Sellers prevailed. |
| Award of fees on appeal | Fees only for trial. | Contract allows fees incurred on appeal. | Sellers are entitled to fees on appeal as prevailing party. |
Key Cases Cited
- Mountain States Broad. Co. v. Neale, 783 P.2d 551 (Utah Ct.App.1989) (flexible approach to prevailing party; net judgment as starting point but not mechanical)
- A.K. & R. Whipple Plumbing & Heating v. Guy, 2004 UT 47, 94 P.3d 270 (Utah) (consider amounts sought vs recovered to determine comparative victory)
- J. Pochynok Co. v. Smedsrud, 116 P.3d 353 (Utah 2005) (illustrates comparative victory concept and possible non-draw outcomes)
- Occidental/Nebraska Fed. Sav. Bank v. Mehr, 791 P.2d 217 (Utah Ct.App.1990) (defendants prevailed despite small monetary recovery relative to plaintiff’s claim)
- Drezga v. Doctors' Co., 2009 UT 60, 218 P.3d 598 (Utah) (attorney fees awardable only as statute or contract allows; starts with prevailing party rule)