Vierig v. Therriault
Vierig v. Therriault, 2023 UT App 36 (Tenney, J.)
Vierig and Therriault sued each other over a debt secured by a trust deed. After the district court granted Vierig’s summary judgment against Therriault’s counterclaim, Therriault requested attorney fees under a provision in the trust deed that obligated Vierig to pay “all” of Therriault’s “costs and expenses of collection” of the debt. The district court rejected Therriault’s request as a matter of law. The Court of Appeals affirmed in part and reversed and remanded in part, explaining:
- The district court should receive extrinsic evidence and interpret the “costs and expenses” provision as a question of fact because that provision was ambiguous about whether Therriault could collect attorney fees for defending the validity of the trust deed.
- The district court did not err in denying Therriault attorney fees for litigating her counterclaim.
- Concurrence: In the likely event that no “relevant, admissible” extrinsic evidence exists about the parties’ intent related to the “costs and expenses” provision, the court will construe the evidence against the drafter. A court cannot, however, skip that step without giving the parties a chance to present that evidence.
- Practice Tip: To collect attorney fees on appeal, a party must also separately argue that she is the prevailing party on appeal. Without adequate briefing on that front, the court of appeals will decline a request for appellate fees.