Vierig v. Therriault, 532 P.3d 568

In 2011 Craig Vierig gave Sarah Therriault a trust deed securing a $200,000 obligation; the deed required the debt to be paid on sale/refinance of the property or upon Vierig’s death.
The Trust Deed contains a fee clause obligating 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).”
In 2019 Vierig sued for declaratory relief and quiet title, alleging no promissory note and no debt; Therriault counterclaimed that the debt was due (asserting anticipatory repudiation) and sought foreclosure.
The district court granted summary judgment holding the Trust Deed and debt valid, but later denied Therriault’s anticipatory-repudiation/foreclosure request and denied her attorney-fee claim under the fee clause.
Therriault appealed only the denial of attorney fees; she sought fees for (a) defending the debt/Trust Deed and (b) prosecuting her counterclaim.
The Court of Appeals held the fee clause ambiguous as to fees defending the debt/Trust Deed (remand for factfinding), but unambiguous as to fees for the failed counterclaim (affirmed denial).

Issue	Plaintiff's Argument (Therriault)	Defendant's Argument (Vierig)	Held
Whether the Trust Deed’s fee clause covers attorney fees incurred defending the validity of the debt and Trust Deed	The clause’s broad language—“all costs and expenses of collection” (and inclusion of “including…attorney’s fees”)—reasonably covers fees defending an attack on the debt because such defense is integral to eventual collection	“Collection” refers to acts to receive payment; fees defending a separate validity challenge are not costs of collection absent clearer language	Ambiguous: both sides’ interpretations are reasonable; remanded to district court to decide intent based on extrinsic evidence
Whether the clause covers fees Therriault incurred prosecuting her counterclaim (seeking immediate payment/foreclosure)	Those fees are recoverable because they were part of efforts to secure payment and she substantially prevailed on related litigation	Counterclaim was unnecessary to defend against Vierig’s suit; the counterclaim sought premature collection and failed, so its fees are not collection costs	Not recoverable: clause does not cover fees for Therriault’s failed attempt to prematurely collect; affirm denial

Brady v. Park, 445 P.3d 395 (Utah 2019) (contractual ambiguity converts interpretation to fact question; use extrinsic evidence)
Ocean 18 LLC v. Overage Refund Specialists LLC (In re Excess Proceeds from Foreclosure of 1107 Snowberry St.), 474 P.3d 481 (Utah Ct. App. 2020) (parties need not label a contract “ambiguous”; competing plausible interpretations create ambiguity)
Jackson v. Oppenheim, 533 F.2d 826 (2d Cir. 1976) (“costs of collection” did not cover fees defending a separate validity claim absent clearer notice)
Duryea v. Third Northwestern Nat’l Bank of Minneapolis, 606 F.2d 823 (8th Cir. 1979) (defenses to attacks on validity can be collection costs when necessary to preserve right to collect)
Lane Myers Constr., LLC v. Nat’l City Bank, 342 P.3d 749 (Utah 2014) (on summary judgment courts must independently assess ambiguity and remand if factual development is needed)
Beckman v. Cybertary Franchising LLC, 424 P.3d 1016 (Utah Ct. App. 2018) (attorney-fee provision ambiguous; remand for extrinsic evidence)
Hahnel v. Duchesne Land, LC, 305 P.3d 208 (Utah Ct. App. 2013) (court enforces contractual attorney-fee provisions strictly)
Finalco, Inc. v. Roosevelt, 3 Cal. Rptr. 2d 865 (Cal. Ct. App. 1991) (borrower’s obligation to pay collection attorneys’ fees includes fees defending challenges to validity)