Opinion
20210847-CA
12-29-2023
Alexandra Busico, Louise Busico, Joe Busico, and E. Ann Busico, Appellants and Cross-appellees, v. Paige Carver and Phipps Incorporated dba Complete Construction, Appellees and Cross-appellants.
Stephen K. Christiansen, Heidi K. Gordon, and Ryan R. Bolander, Attorneys for Appellants and Cross-appellees Chase B. Ames, Nathan D. Anderson, and Michael D. Lichfield, Attorneys for Appellees and Cross-appellants
Third District Court, Salt Lake Department The Honorable Andrew H. Stone No. 190902484
Stephen K. Christiansen, Heidi K. Gordon, and Ryan R. Bolander, Attorneys for Appellants and Cross-appellees
Chase B. Ames, Nathan D. Anderson, and Michael D. Lichfield, Attorneys for Appellees and Cross-appellants
Judge Ryan D. Tenney authored this Opinion, in which Judges David N. Mortensen and John D. Luthy concurred.
OPINION
TENNEY, Judge:
¶1 In late 2018, Joe and Ann Busico contracted with Complete Construction to repair some damage that had been done to a condo they owned. After Complete Construction began its work, the Busicos became dissatisfied and terminated the contract. The Busicos later sued Complete Construction, raising several causes of action relating to breach of contract. Complete Construction counterclaimed, raising a contract claim of its own, as well as a claim seeking to foreclose on a construction lien that it had filed on the condo. The case was ultimately decided by the district court after a bench trial. Of note, the court ruled in the Busicos' favor on the lien foreclosure claim, but it denied their request for attorney fees incurred defending against that particular claim. The court also ruled in Complete Construction's favor on the competing contract claims filed by the parties.
"In years past, construction liens were commonly referred to as 'mechanic's liens,' and many of the older cases cited herein use this terminology. Today's statutory language, however, speaks in terms of 'construction liens.' . . . In this opinion, therefore, when speaking in our own voice, we use the term 'construction lien' instead of 'mechanic's lien,' but where older cases use the term 'mechanic's lien' we make no effort to alter their terminology." Vineyard Props. of Utah LLC v. RLS Constr. LLC, 2021 UT App 144, ¶ 17 n.2, 505 P.3d 65.
¶2 Both parties have now appealed. In their appeal, the Busicos challenge the district court's denial of their request for the attorney fees they incurred defending against the lien foreclosure claim. In its cross-appeal, Complete Construction challenges the court's denial of its lien foreclosure claim, and Complete Construction also challenges the court's denial of its request for attorney fees relating to certain pretrial motions.
¶3 As explained below, we affirm most of the court's ruling on the lien foreclosure claim, though we do reverse one aspect of it. As a result of that reversal, we reverse the court's ruling on the Busicos' request for attorney fees on the lien foreclosure claim, and we remand that issue for further consideration in light of principles set forth below. Finally, we reject Complete Construction's challenge to the denial of its request for fees relating to certain pretrial motions.
BACKGROUND
Complete Construction's Work and Construction Lien
¶4 Joe and Ann Busico own a condo in Salt Lake City, and Joe's mother Louise has an ownership interest in the condo as well. In 2018, Alexandra Busico (who is Joe and Ann's daughter) began leasing the condo from her parents and grandmother.
¶5 On September 5, 2018, Alexandra returned home after work and discovered that a sewer backup had caused raw sewage to flood onto the condo's floors. Alexandra soon submitted a homeowner's claim to the insurer. On September 20, Alexandra received a letter from the insurer denying coverage because, in the company's view, the backup was excluded under the homeowner's policy.
¶6 On September 27, the Busicos contacted Paige Carver. Carver owns and helps run Complete Construction, a company that specializes in "insurance rebuilds[,] repairs," and "remodels" for residential projects. As part of her role, Carver typically made "the initial contact with the new claims," after which she acted as the "go-between between the insurance company and the homeowner or business." The Busicos contacted Carver because they had used Complete Construction on a project a few years earlier.
¶7 On September 27 or 28, Carver met with Ann and Alexandra at the condo and did a walk-through to assess the damage. At the conclusion of this walk-through, Carver told Ann and Alexandra that she thought the Busicos had a "really good shot" at getting the insurance company to cover the necessary repairs. She explained that the first step would be to get a plumber to certify where the clog in the sewage line was that had caused the backup, because this would help Carver determine whether the homeowners' association or, instead, the Busicos' insurer would be responsible for the damage. She explained that the next step would be to "get everything disinfected and cleaned" before any repair work could start.
¶8 The next day, Carver arranged for a plumber to come out to the condo, and the plumber soon completed the necessary work. Although the Busicos were responsible for paying the plumber (because they had not yet officially hired Complete Construction), Complete Construction paid the invoice in an attempt to move the project along. Around the same time, the Busicos personally removed some of the flooring, baseboards, and carpeting from the condo.
¶9 On October 4, Complete Construction submitted a bid to the Busicos for the proposed project, estimating the cost to be $11,106.88. On October 31, Joe, Ann, Alexandra, and Carver met with a claims adjuster from the insurance company at the condo. Complete Construction submitted a bid to the Busicos' insurer later that day. On November 2, the Busicos' insurance company agreed to cover Complete Construction's repair work on the condo. That same day, Alexandra directed Complete Construction to begin work.
¶10 On November 5, Carver sent a subcontractor to the condo with instructions to "sanitize [the] floors and hopefully . . . get to the kitchen sink." Alexandra went to the condo that night. Although she didn't "see any evidence of any construction," she noticed that someone had "started some carpet removal in the bedroom and the closet area" and that items had been "moved around in the kitchen underneath the sink." Between November 6 and 20, the subcontractor returned to the condo several times to continue its work. During this period, its workers "pressure steam clean[ed]" some of the flooring in the condo and also used a "hospital grade disinfectant" to sanitize the areas that had been impacted by the sewage backup.
¶11 On November 20, Complete Construction purchased flooring materials that Alexandra had personally selected to replace the damaged flooring in the condo. The next day, a Complete Construction crew began installing the new flooring.
¶12 Between November 21 and November 30, the Busicos expressed frustration with various aspects of Complete Construction's work. Much of their unhappiness was about baseboards-Alexandra didn't want baseboards installed, but Complete Construction believed that baseboards were necessary with the kind of flooring that Alexandra had selected and that not installing baseboards would void the warranty. During this same period, the Busicos also complained about Complete Construction's work on other issues, including some wiring and electrical issues, issues relating to the flooring installation, and issues relating to drywall repair and removal.
¶13 On the morning of November 30, Complete Construction filed a preliminary lien notice with the Utah State Construction Registry. That same day, Alexandra returned to the condo during her lunch break and became unhappy with some work that had been done by Complete Construction's crew. Alexandra arranged for another construction company to come to the condo that day to survey the project and provide a second opinion. After consulting with this second company, Alexandra contacted the city "to find out if a permit had been filed," explaining that she had been told by the second company that "a permit should have been filed" before performing some of the work that had been done. The city told her that no permit had been filed. Alexandra then had a locksmith change the locks on the doors so that Complete Construction would no longer have access to the condo. After doing so, Alexandra texted a picture of the removed locks to Complete Construction, faulted Complete Construction for not obtaining permits, and instructed Complete Construction to "come remove the flooring" that it had installed. Complete Construction's supervisor understood this text as being Alexandra's way of terminating Complete Construction from the project. At trial, Alexandra confirmed that by sending this text, she was indeed intending to terminate the contract.
¶14 After receiving Alexandra's text, Complete Construction contacted Joe and Ann and expressed its view that a permit wasn't required for the kind of work it had performed, as well as its view that the flooring had been installed correctly. But the Busicos still insisted that Complete Construction "make arrangements for the floor to be removed." On December 6, Complete Construction returned to the condo and removed the flooring that it had installed. Complete Construction subsequently issued an invoice to the Busicos requesting payment of $8,499.15 for the work that it had performed on the project. The Busicos declined to pay Complete Construction, and on January 24, 2019, Complete Construction filed a notice of a construction lien.
The Busicos' Complaint and Complete Construction's Counterclaim
¶15 On March 26, 2019, the Busicos filed a complaint against Complete Construction, pleading causes of action for breach of contract, intentional or negligent misrepresentation, slander of title, and a violation of the Utah Consumer Sales Practices Act. The Busicos sought damages relating to the delays in the project and costs of repair, damages for emotional distress they had allegedly suffered, and damages relating to slander of title and harm to their credit. In total, the Busicos sought $44,726 in damages, plus "exemplary damages in amounts to be determined by the Court, plus costs of suit and attorneys fees."
¶16 On April 22, the Busicos' counsel received an email from an attorney informing them that "Complete Construction [was] in the process of retaining" him and requesting a stipulation to extend the deadline to respond to the complaint by a few weeks. Upon receiving this email, the Busicos' counsel quickly filed a motion with the court asking for a default judgment.
¶17 On April 24, the district court entered a default certificate in accordance with the Busicos' motion. Later that day, however, Complete Construction filed an opposition to the motion for default judgment. There, Complete Construction asserted that the Busicos had failed to serve Complete Construction properly, and it also informed the court that it had told the Busicos' counsel of its attorney's pending representation before the Busicos had filed their motion for a default judgment.
¶18 On April 30, Complete Construction filed an answer and a counterclaim. In its answer, Complete Construction raised a number of defenses to the Busicos' claims, including that the Busicos had failed to state a claim upon which relief could be granted, as well as that the claims were barred by such doctrines as waiver, estoppel, and unclean hands. In its counterclaim, Complete Construction pleaded three causes of action: (1) a lien foreclosure claim "pursuant to Utah Code Ann. sections 38-1a-706 and 707"; (2) a breach of contract claim; and (3) an unjust enrichment claim. Complete Construction's lien foreclosure claim requested "a decree of foreclosure enforcing [Complete Construction's] lien and foreclosing [the Busicos'] interests" in the condo, as well as an order requiring that the condo be sold and that the court then "apply the sales proceeds to reduce and/or satisfy the debt" of $8,499.15 and a $135 lien recording fee. Complete Construction also requested an order permitting it "to augment any judgment it obtain[ed] herein to include the amount of reasonable costs and attorney fees incurred by [Complete Construction] in obtaining, enforcing, and preserving the judgment."
¶19 The Busicos responded by filing a motion to strike the answer and counterclaim, arguing that Complete Construction had "failed to answer" the complaint "within the time period required by the Rules." At a hearing in May 2019, the district court "set aside" the earlier default judgment for "good cause shown."
¶20 Many months of litigation then ensued, during which Complete Construction prevailed on a number of disputes. For example, the district court sided with Complete Construction in a dispute about Complete Construction's statement of discovery issues, and the court also awarded Complete Construction the attorney fees it had incurred in connection with that dispute (though it reserved the question of how much it would award relating to that dispute). Later, the court denied two motions that the Busicos had filed requesting summary judgment against Complete Construction on its lien foreclosure claim. Later still, the court granted Complete Construction's request to dismiss most of the Busicos' damages claims, ruling that the Busicos had failed to timely provide any "methodology for calculating their alleged damages." The only category of damages that the district court allowed to proceed to trial was damages for "repair and replacement," a category for which the Busicos were seeking just $3,871. The Busicos subsequently obtained new counsel, and through new counsel, the Busicos tried serving Complete Construction with supplemental damages disclosures. But the court later granted Complete Construction's request to strike portions of the supplemental filing.
In a filing that Complete Construction submitted around this time, Complete Construction noted that the Busicos' original counsel had recently been disbarred. Cf. Matter of Discipline of Steffensen, 2021 UT 1, 481 P.3d 468.
¶21 The district court held a two-day bench trial in June 2021. Shortly before trial, Complete Construction filed a pretrial brief in which it asserted that, in light of the court's rulings limiting the Busicos' damages claims, the "only remaining claim" from the Busicos that could be litigated at trial was their breach of contract claim. The Busicos did not file a pretrial brief of their own, and they did not dispute this characterization at trial. Indeed, they agreed with it. At the outset of his closing argument, for example, the Busicos' counsel informed the court that there were "essentially two claims at issue in this case. The first is competing claims for damages under the parties' agreement" (an apparent reference to the breach of contract claims), and "the second is the defendants' claim for lien foreclosure." (Emphasis added.)
Something similar occurred in Zazzetti v. Prestige Senior Living Center LLC, 2022 UT App 42, 509 P.3d 776, cert. denied, 525 P.3d 1260 (Utah 2022). As in this case, a party there failed to advance some of its claims at trial, and the party likewise did not claim on appeal that the court had erred in not ruling on them. Id. ¶ 38 n.5. As a result, we "assume[d], for purposes of [the] appeal," that the party had "abandoned" those "claims sometime prior to trial." Id. We make a similar assumption here.
¶22 At the close of trial, the court issued an oral ruling that was soon followed by a written decision. In the written decision, the court first ruled against the Busicos on the contract claim that they had filed against Complete Construction. The court ruled that the Busicos had "not provide[d] sufficient testimony or other evidence that any of the alleged material breaches constituted a material breach of contract," nor had the Busicos met "their burden of proof as to any of the alleged property damages." The court thus dismissed the Busicos' breach of contract claim with prejudice.
¶23 Turning to Complete Construction's counterclaims, the court ruled in Complete Construction's favor on its breach of contract claim against the Busicos and awarded Complete Construction $8,499.15 in damages. The district court then dismissed Complete Construction's unjust enrichment claim with prejudice "as a result of Complete Construction prevailing on its breach of contract claim."
"Unjust enrichment is designed to provide an equitable remedy where one does not exist at law. Therefore, if a legal remedy is available, such as breach of an express contract, the law will not imply the equitable remedy of unjust enrichment." AGTC Inc. v. CoBon Energy LLC, 2019 UT App 124, ¶ 19, 447 P.3d 123 (quotation simplified).
¶24 But the court ruled against Complete Construction on its lien foreclosure claim. The court relied on Utah Code section 38-1a-501(1)(a), under which a contractor must file a preliminary notice of a lien within 20 days of when it "commences providing construction work on the real property." In the court's view, there was "no question that some portion of the work Complete Construction performed was lienable where there was physical alteration or attachment" to the condo. But the court also noted that under Utah Code section 38-1a-102(11)(b), the term "construction work" includes any "scheduling" and "estimating" that is "involved in constructing, altering, or repairing an improvement." The court found that Complete Construction had "estimated the project on October 4, 2018, and started scheduling the project on November 2, 2018." As a result, it concluded that the preliminary notice that Complete Construction had filed on November 30 was untimely.
¶25 With respect to that same claim, the court also addressed Complete Construction's assertion that it could alternatively recover for some of its work under "the five-day savings rule" set forth in Utah Code section 38-1a-501(1)(c). In the court's view, "there was insufficient evidence of what lienable work included in Complete Construction's invoice was performed on or after the fifth day after the preliminary notice was filed." The court thus dismissed Complete Construction's lien foreclosure claim with prejudice.
Competing Motions for Attorney Fees
¶26 After the district court entered its ruling, the parties filed competing motions for attorney fees. Complete Construction sought to establish the amount of attorney fees that it had previously been awarded on the discovery dispute. Complete Construction also asked the court to invoke its "inherent and equitable power" and award it the attorney fees it had incurred in defeating certain "vexatious and oppressive motions and claims." Among others, Complete Construction referred to the Busicos' attempt to obtain a default judgment despite having received notice that Complete Construction had obtained representation, as well as the Busicos' assertion of various claims against multiple defendants who had only tenuous connections to the case.
¶27 For their part, the Busicos requested attorney fees under Utah Code section 38-1a-707(1), which states that "in any action brought to enforce any lien under this chapter[,] the successful party shall be entitled to recover reasonable attorney fees." In the Busicos' view, because they had prevailed on both aspects of the lien foreclosure claim (i.e., the main claim and the alternative claim under the savings statute), they were the "successful party on the lien foreclosure claim" and were entitled to the attorney fees they had incurred in litigating it.
¶28 After additional litigation relating to the attorney fee issues, the court issued its decision. The court first awarded Complete Construction $2,198 in fees relating to the earlier dispute about the statement of discovery issues. But the court then denied Complete Construction's request for attorney fees incurred in defeating the Busicos' earlier motions. The court agreed that the Busicos' prior counsel had litigated the case "overly aggressively" with respect to various motions and that the court had been forced to spend its "time dealing with things like defaulting represented parties, striking answers and counterclaim that had no basis in law whatsoever." Even so, the court noted that it had awarded Complete Construction $2,198 in attorney fees in conjunction with the dispute over the statement of discovery issues, and it further noted that at least "some of that amount" was related to Complete Construction's response to the same motions at issue in the fee request. The court "decline[d] to exercise [its] discretion to go beyond" that, stating that the $2,198 was "as far as" the court would "go in terms of a fee award."
¶29 Turning to the Busicos' claim for attorney fees on the lien foreclosure claim, the court started by addressing the question of whether the Busicos were indeed the "successful party." To answer that question, the court concluded that it should apply the "flexible and reasoned approach" outlined in I-D Electric v. Gillman, 2017 UT App 144, ¶ 42, 402 P.3d 802 (quotation simplified). The portion of I-D Electric relied on by the district court calls for courts to "consider the net judgment in the case and the amounts actually sought, and then balance them proportionally with what was recovered." Id. (quotation simplified). It further calls for consideration of "common sense factors" such as the
(1) contractual language, (2) the number of claims, counterclaims, cross-claims, etc., brought by the parties, (3) the importance of the claims relative to each other and their significance in the context of the lawsuit considered as a whole, and (4) the dollar amounts attached to and awarded in connection with the various claims.Id. (quotation simplified). Applying this test, the court first concluded that all of the claims and counterclaims at issue in this case "related to work performed at the property that was the subject of the lien," and it then opined that the "claims were overly litigated as a result of the tactics undertaken by" the Busicos' former counsel-including the initial default request, which, in the court's view, had "no legitimate basis." The court also noted that it had rejected the Busicos' various claims on either summary judgment or at trial and that it had ruled in Complete Construction's favor on its contract claim. In light of the litigation results as a whole, the court determined that the Busicos "were not the 'successful' parties" and accordingly denied their motion for attorney fees.
ISSUES AND STANDARDS OF REVIEW
¶30 As noted, this case involves both an appeal from the Busicos and a cross-appeal from Complete Construction, and the issues raised in the appeal and cross-appeal are intertwined. For analytical reasons, we'll address them in the following order and under the following standards of review.
¶31 First, in its cross-appeal, Complete Construction raises two challenges to the district court's dismissal of its lien foreclosure claim: Complete Construction first argues that its preliminary notice was timely, and second, it alternatively argues that it was entitled to at least some relief under the savings statute. "We review the trial court's interpretation of the mechanics' lien statute for correctness," Total Restoration, Inc. v. Merritt, 2014 UT App 258, ¶ 7, 338 P.3d 836, and its "factual findings for clear error," Reeve & Assocs., Inc. v. Tanner, 2015 UT App 166, ¶ 14, 355 P.3d 232.
¶32 Second, in their appeal, the Busicos challenge the court's denial of their request for attorney fees relating to their defense on the lien foreclosure claim. "Whether attorney fees are recoverable in an action is a question of law, which we review for correctness." Martin v. Kristensen, 2019 UT App 127, ¶ 31, 450 P.3d 66 (quotation simplified). However, "we review the trial court's determination as to who was the prevailing party under an abuse of discretion standard." Id. (quotation simplified).
¶33 Finally, in its cross-appeal, Complete Construction argues that the district court "erred in denying Complete Construction's request for attorney fees incurred in defending against" the Busicos' "vexatious and oppressive motions." We review this decision for an abuse of discretion. See Jensen v. Bowcut, 892 P.2d 1053, 1055 (Utah Ct. App. 1995).
ANALYSIS
I. Complete Construction's Lien Foreclosure Claim
¶34 Complete Construction argues that the district court erred in ruling that its preliminary notice was untimely, as well as in ruling that the savings statute did not apply. As explained in Part I(A), we disagree with Complete Construction's assertion that its preliminary notice was timely filed, but as explained in Part I(B), we agree with Complete Construction on its argument relating to the savings statute.
A. Complete Construction's Preliminary Notice
¶35 When a contractor claims that it was not paid for its work, the Utah construction lien statutes allow the contractor to place a lien on the property the contractor "worked on in the amount of the unpaid labor or resources contributed." Zion Village Resort LLC v. Pro Curb U.S.A. LLC, 2020 UT App 167, ¶ 24, 480 P.3d 1055; see generally Utah Code §§ 38-1a-101 to -805. But this statutory scheme imposes an initial requirement under which any "person who desires to claim a construction lien on real property" must "file a preliminary notice" with the Utah State Construction Registry "no later than 20 days after the day on which the person commences providing construction work on the real property." Utah Code § 38-1a-501(1)(a).
¶36 Before 2011, the statute stated that "[c]ontractors, subcontractors, and all persons performing any services or furnishing or renting any materials or equipment used in the construction, alteration, or improvement of any building or structure or improvement to any premises in any manner" could file a lien upon the property in question. Id. § 38-1-3 (2010). In a 2011 amendment, the legislature expanded the definitions subsection, providing additional clarity and broadening the scope of what is lienable under this statutory scheme. See Mechanics' Liens Amendments, ch. 339, § 2, 2011 Utah Laws 1955, 1956 (amending Utah Code § 38-1-2, now codified at Utah Code § 38-1a-102). This amended definitions subsection now stated that for these purposes, the term "[c]onstruction service" meant
(a). . . to provide labor, material, or equipment for the purpose and during the process of constructing, altering, or repairing an improvement; and
(b) includes the scheduling, estimating, staking, supervising, managing, materials testing, inspection, observation, and quality control or assurance involved in constructing, altering, or repairing an improvement.Id. The legislature has made a few additional changes to the statute in ensuing years. But since 2012, the statute has been consistent on what has now been referred to as "construction work." The current version states that the term
(a) means labor, service, material, or equipment provided for the purpose and during the process of constructing, altering, or repairing an improvement; and
(b) includes scheduling, estimating, staking, supervising, managing, materials testing, inspection, observation, and quality control or assurance involved in constructing, altering, or repairing an improvement.Utah Code § 38-1a-102(11).
¶37 As noted, the district court focused on the words "scheduling" and "estimating" from section 38-1a-102(11)(b), concluding that because Complete Construction had "estimated the project on October 4, 2018, and started scheduling the project on November 2, 2018," the preliminary notice that it filed on November 30 was untimely.
¶38 In their briefing and again at oral argument, the parties spent much effort debating whether the court's conclusions about the scheduling and estimating components of this case were correct. Complete Construction relies on this court's decision in Pentalon Construction, Inc. v. Rymark Properties, LLC, where we said that "work" under these statutes "must be of the type that a person using reasonable diligence in examining the property would be able to see it and be on notice that lienable work was underway." 2015 UT App 29, ¶ 10, 344 P.3d 180 (quotation simplified). Complete Construction asks us to adopt this as something of an overarching framework that would apply to all of the terms listed in the statute's definition of "construction work." In Complete Construction's view, giving standalone force to the terms "scheduling" and "estimating" without also requiring some work on the ground would create absurdities- such as requiring a contractor to file a preliminary notice after even an initial phone call with a prospective client, a rule that Complete Construction believes might overwhelm the system. By contrast, the Busicos ask us to take the terms "scheduling" and "estimating" at face-value-though, perhaps in recognition of the same potential absurdities identified by Complete Construction, the Busicos suggested at oral argument that these terms might become operative only after the parties have entered into a contract.
¶39 This presents a potentially thorny question of statutory interpretation. But we ultimately need not decide whether the district court erred in relying on the "scheduling" and "estimating" components of the statute in this case. This is so because the preliminary notice filed by Complete Construction was untimely under different language from the same subsection that does plainly apply.
¶40 As noted, the definitions subsection states that "construction work" "means labor, service, material, or equipment provided for the purpose and during the process of constructing, altering, or repairing an improvement." Utah Code § 38-1a-102(11)(a) (emphasis added). In ordinary usage, the term "repair" means to "put something that is damaged, broken, or not working correctly, back into good condition or make it work again," or to "remedy" or "restore to sound condition after damage or injury."
Repair, Cambridge Dictionary, https://dictionary.cambridge.or g/us/dictionary/english/repair [https://perma.cc/4ES4-GFHH].
Repair, American Heritage Dictionary, https://ahdictionary.co m/word/search.html?q=repair [https://perma.cc/3TRK-9PGJ].
¶41 Here, the district court accepted Alexandra's testimony "that cleaning and disinfection of the Condo by Complete Construction's subcontractor . . . began on November 5, 2018." And with respect to those disinfection efforts, the subcontractor testified that his workers used a "hospital grade disinfectant" to disinfect areas of the condo "that had been impacted by the Category 3 water" from the sewage backup. Other testimony also established that on November 5, 2018, Complete Construction's subcontractor "started some carpet removal" in the condo and "removed the remaining parquet flooring" under the stove range. Testimony further established that the subcontractor's workers "removed the toe kicks from the [kitchen] cabinets to inspect for water underneath them" and that the subcontractor "pressure steam clean[ed]" the concrete floors in the condo.
¶42 We conclude that this work qualified as construction work for purposes of this statute. By removing damaged flooring and then spraying various surfaces down with high-grade disinfectant, Complete Construction was attempting to ameliorate the damage done by the sewage backup, thus putting the condo back into good condition and restoring it to its previously habitable state. By doing so, Complete Construction was therefore providing "labor" and "service" "during the process of . . . repairing" the condo, which was enough to constitute construction work under Utah Code section 38-1a-102(11).
¶43 Complete Construction has not disputed that this work was done by the subcontractor or that it began on November 5, nor has Complete Construction argued that work done by the subcontractor couldn't be attributed to it for purposes of this statutory scheme. Cf. id. § 38-1a-501(1)(b) (noting that "a preliminary notice is effective as to all construction work that the person filing the notice provides to the construction project under a single original contract, including construction work that the person provides to more than one supervisory subcontractor under that original contract"). Instead, Complete Construction argues that the work described above "did not constitute construction work" because it was "remedial" in nature. And to be clear, this argument does find some support in past Utah cases. In one case, for example, we held that "ordinary maintenance," "minor repairs," and "cleanup work" are not lienable, whereas "improvement" work on a property is. All Clean, Inc. v. Timberline Props., 2011 UT App 370, ¶¶ 15-16, 264 P.3d 244 (quotation simplified). In another, our supreme court held that "ordinary maintenance or cleanup work does not serve as a basis for 'tacking' so as to fix an earlier lien date . . . for labor and materials supplied." Calder Bros. Co. v. Anderson, 652 P.2d 922, 924 (Utah 1982) (quotation simplified).
¶44 But the cases that Complete Construction relies on for this argument were based on versions of the statute that predate the 2011 amendment described above. Complete Construction points to no case holding that this rule still applies under the version of the statute that post-dates the 2011 amendment. As noted, however, the 2011 amendment added "repairing" to the definition of "construction work." And we have no difficulty concluding that the acts in question here-tearing up damaged flooring and then disinfecting damaged and infected surfaces- qualify as repairs. Because of this, we conclude that it qualified as "construction work" for purposes of this statute.
¶45 The remaining question, then, is whether Complete Construction's preliminary notice was timely. It was not. Again, Complete Construction was required to file its preliminary lien notice within 20 days of beginning construction work, and construction work began by November 5, 2018. But Complete Construction didn't file its notice until November 30. Because this was outside the 20-day window, the district court therefore did not err in concluding that the preliminary notice was untimely. It therefore committed no error in dismissing that portion of Complete Construction's lien foreclosure claim.
B. Savings Statute
¶46 Utah Code section 38-1a-501(1)(c)(i) contains what the parties have referred to as a "savings statute." Under its terms, a "person who desires to claim a construction lien on real property but fails to file a timely preliminary notice . . . may . . . file a preliminary notice with the registry after the period specified in Subsection (1)(a)." Id. But a "person who files a preliminary notice under Subsection (1)(c)(i) may not claim a construction lien for construction work the person provides to the construction project before the date that is five days after the preliminary notice is filed." Id. § 38-1a-501(1)(c)(ii).
¶47 Complete Construction argued below that, even if its preliminary notice was untimely under the initial 20-day rule, it was entitled to at least some relief under the savings statute. The district court disagreed, however, simply concluding that "there was insufficient evidence of what lienable work included in Complete Construction's invoice was performed on or after the fifth day after the preliminary notice was filed." The court provided no further explanation for this portion of its ruling. Complete Construction challenges that ruling in its cross-appeal, and we agree with Complete Construction on this point.
¶48 As noted, Complete Construction filed its preliminary notice on November 30, 2018. Under the savings statute, Complete Construction would therefore have a claim for any construction work that it performed five days or more after that date. At trial, Joe Busico and Paige Carver both agreed that on December 6, 2018-which is more than five days from November 30, 2018-Complete Construction returned to the condo and removed the flooring that it had previously installed. In their briefs to us on appeal, the Busicos do not dispute that this work occurred on that date. Instead, the Busicos affirmatively agree that "Complete Construction's crew removed flooring from the Busicos' Condo on December 6, 2018."
¶49 Again, the statute in question defines "construction work" as including "labor, service, material, or equipment provided for the purpose and during the process of constructing, altering, or repairing an improvement." Id. § 38-1a-102(11)(a) (emphasis added). The term "alter" is understood as meaning "to make different without changing into something else." The act in question here is removing previously installed flooring from a home. We have no difficulty concluding that Complete Construction altered this condo when it removed flooring that had previously been installed in it.
Alter, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/alter [https://perma.cc/ZK7Y-BCPY].
¶50 The Busicos nevertheless suggest that under All Clean, Inc., 2011 UT App 370, ¶ 14, construction work must "add value" to be lienable. From this, the Busicos argue that "undo[ing] what was done" to a property does not "add value." But All Clean, Inc., was decided under the previous version of the statute. As noted, the legislature amended the statute in 2011, and we've concluded that the work in question qualified under the current version of the statute.
In any event, we don't read All Clean, Inc., as mandating a different result. In that opinion, we said that while "minor repair work is not an improvement for purposes of the mechanics' lien statute, . . . more significant repairs are." All Clean, Inc. v. Timberline Props., 2011 UT App 370, ¶ 15 n.4, 264 P.3d 244. And by "more significant," we included "any change to or replacement of either fixtures or structural components." Id. As indicated, the work in question here did indeed include the replacement of "structural components" (namely, the previously installed flooring), so it would qualify. Regardless, even under the Busicos' own framing of the events, this work did add value. The Busicos instructed Complete Construction to remove this flooring because the Busicos apparently wanted to replace it-either with similar flooring that was installed differently, or, perhaps, with different flooring altogether. Either way, the Busicos thought this flooring needed to be removed so that they could have someone else install flooring that conformed to their desires. Removing this flooring thus added value to their condo by allowing them to complete their plans for the condo.
¶51 Given this, we reverse the district court's denial of Complete Construction's claim under the savings statute, and we remand for a determination of the value of the construction work that was performed five days or more after the November 30 preliminary notice.
II. The Busicos' Request for Attorney Fees on the Lien Foreclosure Claim
¶52 After the district court dismissed Complete Construction's lien foreclosure claim, the Busicos requested the attorney fees that they had incurred defending against it. The Busicos relied on Utah Code section 38-1a-707(1), which states that "in any action brought to enforce any lien under this chapter[,] the successful party shall be entitled to recover reasonable attorney fees, to be fixed by the court, which shall be taxed as costs in the action." In considering this request, the court applied a "flexible and reasoned approach," under which it considered the parties' relevant successes on the litigation as a whole, including various pretrial motions, as well as the parties' ultimate successes (or lack thereof) on the causes of action in the Busicos' complaint and the causes of action in Complete Construction's counterclaim. Viewing the case globally, the court determined that the Busicos "were not the 'successful' parties," and it thus denied their motion for attorney fees. In their appeal, the Busicos now challenge that denial, arguing that the court was required by statute to award them the fees in question.
Complete Construction initially argues that the Busicos' argument was unpreserved. We disagree. In their motion, the Busicos claimed they were "entitled" to attorney fees, and at oral argument on that motion, they emphasized what they saw as the "mandatory nature" of the statutory provision in question.
¶53 We have now reversed the district court on the savings statute issue, so we have necessarily changed one piece of the court's "successful party" calculus on attorney fees. And we've also remanded for the district court to consider that issue anew. We nevertheless note here that the Busicos have challenged the analytical framework that the district court used earlier on two particular fronts: first, the Busicos argue that the court should have limited its analysis to considering who prevailed on the lien foreclosure claim, as opposed to also considering the parties' successes on the other claims; and second, the Busicos argue that because it was "manifestly obvious" that they had prevailed on the lien foreclosure claim, the court should not have applied the "flexible and reasoned approach" at all. Because both of these arguments have been fully briefed and argued in this appeal, and because both will likely impact the court's analysis of this attorney fee issue on remand, we address them. See State v. James, 819 P.2d 781, 795 (Utah 1991) ("Issues that are fully briefed on appeal and are likely to be presented on remand should be addressed by this court.").
A. Successful Party
¶54 Utah Code section 38-1a-707(1) states that "in any action brought to enforce any lien under this chapter[,] the successful party shall be entitled to recover reasonable attorney fees, to be fixed by the court, which shall be taxed as costs in the action." The parties have differing views about the scope of a "successful party" analysis under this statute. In the Busicos' view, a court should only look to the parties' successes "relating directly to the specific mechanic's lien at issue," and a court should not "allow other claims to override the mechanic's lien decision." In Complete Construction's contrasting view, a court can more broadly consider the parties' successes on claims that "aris[e] from the same underlying facts." Having reviewed the controlling caselaw, we conclude that the answer lies somewhere in between.
¶55 In some (if not many) circumstances, a court's analysis of who the "successful party" is for purposes of an attorney fee provision will require an assessment of the parties' relative successes in the case as a whole. See, e.g., R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 25, 40 P.3d 1119 (evaluating "the number of claims" and their relative importance "in the context of the lawsuit considered as a whole"); Olsen v. Lund, 2010 UT App 353, ¶ 8, 246 P.3d 521 (stating that "the focus should be on which party had attained a comparative victory" (quotation simplified)). And this is often so where the request for attorney fees is based on a provision that turns on who the "successful party" was without any particular qualification.
Many attorney fee provisions use the term "prevailing party" instead. See, e.g., R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 7, 40 P.3d 1119; Westmont Mirador LLC v. Shurtliff, 2014 UT App 184, ¶ 5, 333 P.3d 369. For purposes of analyses such as this one, our supreme court has concluded that the terms are "interchangeabl[e]." A.K. & R. Whipple Plumbing & Heating v. Guy, 2004 UT 47, ¶ 19, 94 P.3d 270.
¶56 But the provision in question here does have an internal qualification. Again, it states that "in any action brought to enforce any lien under this chapter[,] the successful party shall be entitled to recover reasonable attorney fees." Utah Code § 38-1a-707(1) (emphasis added). It's true that the term "action" is sometimes understood to refer to the case as a whole, as opposed to a particular cause of action or claim. See, e.g., Action, Black's Law Dictionary (11th ed. 2019) (noting that "the terms action and suit are nearly if not quite synonymous" (quotation simplified)). Even so, the term "action" in this statute is immediately followed by the phrase "brought to enforce any lien under this chapter." Utah Code § 38-1a-707(1). The meaning of "brought to enforce any lien" seems plain enough on its face. And under our statutory scheme, the adjoining limitation-"under this chapter"-would refer to an action that is brought under chapter 1a of Title 38. Thus, the plain language of this statute seems to contemplate that the "successful party" analysis is limited in some sense to parties' successes relating to the lien litigation itself.
¶57 When considering this provision, our courts have indeed interpreted it in something of a restrictive manner. But they still haven't gone as far as the Busicos suggest. Our supreme court examined this question in A.K. & R. Whipple Plumbing & Heating v. Guy, 2004 UT 47, 94 P.3d 270. There, Whipple (a plumbing subcontractor) had a dispute with Aspen (a general contractor) concerning work that Whipple had performed on a property. See id. ¶¶ 2-3. Whipple filed a lien foreclosure action, after which Aspen counterclaimed seeking damages for Whipple's "allegedly negligent HVAC work" on that same property. Id. ¶ 3. The district court eventually ruled in both sides' favor on certain aspects of their claims, with the result being a net judgment to Aspen of $527. See id. When Aspen then requested attorney fees under the attorney fee provision from the mechanic's lien statute, the district court concluded that the case was a draw and declined the request. See id. ¶ 4.
¶58 Aspen appealed, and when the case ultimately arrived at the supreme court, one of the questions at issue was the scope of the "successful party" analysis under this statute. The supreme court answered that question as follows:
We emphasize, however, that a court should look only to the parties' claims and counterclaims relating directly to the specific mechanic's lien at issue. Stated another way, when assessing which party is the "successful party" under the mechanic's lien statute, a court should confine itself to consideration of only those claims relating directly to both the particular property on which the mechanic's lien action is asserted and the particular work on which the mechanic's lien action is based.Id. ¶ 17 n.5. Notably, when the supreme court applied this framework to the dispute at issue, the court took into account both the lien foreclosure action filed by Whipple and the counterclaims from Aspen that "relat[ed] directly to the mechanic's lien action on that property." Id. Even though Aspen's counterclaims were for "allegedly negligent HVAC work," id. ¶¶ 2-3, the court still considered Aspen's success on those claims in its analysis of who the successful party was for purposes of this attorney fee provision. See id. ¶¶ 27-28.
¶59 We offered additional clarification on this provision in Ellsworth Paulsen Construction Co. v. 51-SPR, LLC, 2006 UT App 353, 144 P.3d 261. There, we recognized that "under the mechanic's lien statute," a party "is not entitled to attorney fees incurred in pursuing its nonlien claims which were completely separate." Id. ¶ 47 (quotation simplified). But we then recognized that attorney fees relating to a "breach of contract claim" at issue in the case were "so inextricably tied to the mechanic's lien claim" that it warranted "grouping these fees together." Id. We explained that "it almost goes without saying that a breach of contract claim is typically such an integral part of a mechanic's lien claim that a party cannot pursue such a claim without also proving the existence of a contract, a payment due under the contract, and a breach of that contract by nonpayment." Id.
¶60 Our supreme court later reinforced this overall construct in Jordan Construction, Inc. v. Federal National Mortgage Association, 2017 UT 28, 408 P.3d 296. There, the court was again confronted with a "successful party" question under this same statutory provision. See id. ¶¶ 65-70. In considering the question before it, the supreme court did not strictly confine itself to the parties' successes on the lien foreclosure action alone. The court noted that one of the parties (FNMA) had successfully defended itself against a separate claim for "declaratory relief" that had been filed by the other party (Jordan Construction). Id. ¶ 14. That declaratory relief action had sought to bind FNMA to findings of fact and conclusions of law that had been entered against yet another party in earlier portions of the case that involved claims for "breach of contract, unjust enrichment, promissory estoppel, conversion, and foreclosure of [a] mechanic's lien." Id. ¶¶ 8, 11, 14. Thus, even though litigation on that declaratory relief claim was separate from litigation on the mechanic's lien claim, the supreme court still considered FNMA's success on the declaratory relief claim as part of its determination of who the "successful party" was for purposes of the attorney fee provision from the mechanic's lien statute. See id. ¶¶ 69-70.
¶61 Given all this, we disagree with the Busicos' assertion that the successful party analysis in this case should be strictly limited to the parties' successes on the lien foreclosure claim alone. True, the district court does not have unfettered license on remand to consider any and all litigation between these parties. But the court may consider the parties' successes on any "claims relating directly to both the particular property on which the mechanic's lien action is asserted and the particular work on which the mechanic's lien action is based." A.K. & R. Whipple Plumbing & Heating, 2004 UT 47, ¶ 17 n.5. And in doing so, the court may consider the parties' successes on any claims that were "inextricably tied to the mechanic's lien claim," which would include, among others, litigation on any breach of contract claim that was linked to the lien. Ellsworth Paulsen Const. Co., 2006 UT App 353, ¶ 47.
B. Flexible and Reasonable Approach
¶62 The next question is the extent to which the so-called "flexible and reasoned" approach to the attorney fee question applies to this case.
¶63 In A.K. & R. Whipple Plumbing & Heating, our supreme court held that the "successful party" determination is not limited to which party received the "net judgment." 2004 UT 47, ¶ 26. Rather, the court adopted a "flexible and reasoned approach," under which courts "use their common sense in deciding whether a party was 'successful' in bringing or defending against a mechanic's lien enforcement action." Id. Under this approach, courts consider "the net judgment in the case and the amounts actually sought," and courts then "balance them proportionally with what was recovered." I-D Elec. Inc. v. Gillman, 2017 UT App 144, ¶ 42, 402 P.3d 802 (quotation simplified). Courts also "consider[] common sense factors," such as
(1) the contractual language, (2) the number of claims, counterclaims, cross-claims, etc., brought by the parties, (3) the importance of the claims relative to each other and their significance in the context of the lawsuit considered as a whole, and (4) the dollar amounts attached to and awarded in connection with the various claims.Id. (quotation simplified).
¶64 As noted by the Busicos, we've held that a district court need not employ the flexible and reasoned approach if it is "manifestly obvious which party was the successful one." EDSA/Cloward, LLC v. Klibanoff, 2008 UT App 284, ¶ 14, 192 P.3d 296 (quotation simplified); accord Westmont Mirador LLC v. Shurtliff, 2014 UT App 184, ¶ 11, 333 P.3d 369; Giles v. Mineral Res. Int'l, Inc., 2014 UT App 37, ¶ 10, 320 P.3d 684. In their arguments to us, the parties disagree about whether it should have been manifestly obvious to the district court that the Busicos had prevailed. But those arguments were responsive to a prior world in which the district court had ruled in the Busicos' favor on both aspects of the lien foreclosure claim. We've now reversed the district court's ruling on the savings statute aspect of that claim, and under the resultant posture of this case, we don't regard it as being manifestly obvious who the successful party was for purposes of this fee request.
¶65 In other contexts, we've recognized that because "the identity of the prevailing party depends, to a large measure, on the context of each case, . . . the district court is in a better position" than an appellate court to decide whether a party should receive its fees. North Fork Meadows Owners Ass'n, Inc. v. Dove, 2023 UT App 107, ¶ 23, 537 P.3d 258 (quotation simplified); accord Utah Transit Auth. v. Greyhound Lines, Inc., 2015 UT 53, ¶ 58, 355 P.3d 947. The same would be true with respect to a "successful party" analysis from the mechanic's lien statute. On remand, the district court should therefore employ the flexible and reasoned approach to determine whether the Busicos are entitled to their attorney fees.
The Busicos also requested the attorney fees they've incurred on appeal, but this request was premised on their assertion that they were entitled to fees under the court's previous rulings on the lien foreclosure action. Because we have reversed one aspect of the district court's ruling, and because we have also remanded for reconsideration of the attorney fee question, we deny this request.
III. Complete Construction's Request for Attorney Fees under the District Court's Inherent and Equitable Power
¶66 "In Utah, attorney fees are awardable only if authorized by statute or by contract." Silva v. Silva, 2018 UT App 210, ¶ 26, 437 P.3d 593 (quotation simplified). "However, in the absence of a statutory or contractual authorization, a court has inherent equitable power to award reasonable attorney fees when it deems it appropriate in the interest of justice and equity." Stewart v. Utah Public Service Comm'n, 885 P.2d 759, 782 (Utah 1994), superseded on other grounds by Utah Code § 78B-5-825.5, as recognized in Laws v. Grayeyes, 2021 UT 59, ¶¶ 50, 54, 498 P.3d 410. This "power is part of the original authority of the chancellor to do equity in a particular situation." Hughes v. Cafferty, 2004 UT 22, ¶ 21, 89 P.3d 148 (quotation simplified). And "courts have exercised that inherent power in several categories of cases, such as when a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons." Silva, 2018 UT App 210, ¶ 26 (quotation simplified).
¶67 In its cross-appeal, Complete Construction invokes this power and argues that the district court abused its discretion by denying Complete Construction's request for attorney fees that it incurred in defending against the Busicos' "vexatious and oppressive motions." Before answering that question, we first note some disagreement between the parties about whether this power was available to the district court at all. Again, Stewart held that this equitable power exists "in the absence of a statutory or contractual authorization." 885 P.2d at 782 (emphasis added). The Busicos point out that Utah Code section 78B-5-825(1) states that in "civil actions, the court shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith." In the Busicos' view, this statute "covers exactly the same subject matter" that's at issue in Complete Construction's motion for attorney fees. From this, the Busicos argue that the court lacked any equitable power to grant these fees in this circumstance. Complete Construction, however, sees things differently. It notes that the Busicos have not pointed to any authority holding that section 78B-5-825 "preempt[s]" a court's inherent equitable authority to award fees. In Complete Construction's view, the equitable power does not require the absence of a contractual or statutory right, but instead "operates outside" any contractual or statutory authorization.
¶68 We see no definitive answer to this question in the cases. In one unpublished case, we did suggest that a district court's inherent equitable power was unavailable where a particular statutory attorney fee provision "clearly applie[d]." See In re A.B.W., 2004 UT App 101U, para. 2 n.1. But in another case, we considered a request to invoke our "inherent equitable power to award fees in the interest of justice and equity" alongside a request for fees under rule 33 of the Utah Rules of Appellate Procedure, even though we regarded our disposition of the two requests as being "similar." Petrzelka v. Goodwin, 2020 UT App 34, ¶¶ 50-52, 461 P.3d 1134 (quotation simplified). And in yet another case, we considered a request for fees based on our equitable authority, and we did so despite the fact that the claim was based on allegedly bad faith litigation. See Rehn v. Christensen, 2017 UT App 21, ¶¶ 30-35, 392 P.3d 872.
¶69 Moreover, it's true that Stewart suggested that this power exists "in the absence of a statutory or contractual authorization," 885 P.2d at 782-a framing that seemingly implies that the inherent equitable power does not exist if there is statutory or contractual authorization for the attorney fee awards. But in support for this proposition, Stewart pointed to Hall v. Cole, 412 U.S. 1 (1973). See Stewart, 885 P.2d at 782. In Hall, however, the United States Supreme Court framed things in a slightly different way, stating that "although the traditional American rule ordinarily disfavors the allowance of attorneys' fees in the absence of statutory or contractual authorization, federal courts, in the exercise of their equitable powers, may award attorneys' fees when the interests of justice so require." 412 U.S. at 4-5 (emphases added, quotation otherwise simplified). Hall's "although . . . may" framing arguably suggests that a court's inherent equitable power is separate from any statutory or contractual authorization.
¶70 But we ultimately need not decide whether the Busicos or Complete Construction are correct about this. Assuming for sake of argument only that the district court could invoke its inherent equitable power in this case despite the existence of the seemingly similar statute, we still see no basis for overturning the court's decision not to do so. Again, a court's decision to award (or not award) fees under its inherent equitable power is discretionary. See Rehn, 2017 UT App 21, ¶ 32. And a court that is tasked with "making an equitable award of fees" under this power "is concerned not with a party's legal entitlement to an award, but with the equities." Id. (quotation simplified).
¶71 In modern litigation, attorney fees are very often awardable through statute, rule, or contractual agreement. Given this, we assume that it will be the rare case where a party successfully obtains attorney fees under a court's equitable power. And given the deferential nature of our review, it will be a decidedly rare case where an appellate court will reverse a trial court's decision declining to employ those powers-particularly if an award of attorney fees was potentially in play through some other mechanism and fees were not ultimately awarded.
¶72 Here, Complete Construction argues that the Busicos acted in a "vexatious and oppressive" manner during the litigation. Complete Construction's argument is phrased broadly; but in its briefing to us, Complete Construction focuses on the Busicos' motion for default judgment and their motion to strike Complete Construction's answer and counterclaim. In Complete Construction's view, these filings "had no legal basis and only served to delay the adjudication of the parties' respective claims."
¶73 It's true that the district court expressed some concern about these very motions. In its ruling on Complete Construction's request for attorney fees, the court observed that the Busicos' prior counsel had taken an "overly aggressive[]" litigation position with respect to these motions, and it noted that it had been forced to spend its "time dealing with things like defaulting represented parties, striking answers and counterclaim that had no basis in law whatsoever." But the court still declined to grant Complete Construction's request for attorney fees. The court noted that it had already awarded Complete Construction $2,198 in attorney fees in conjunction with the dispute over the statement of discovery issues, and it further noted that at least "some of that amount" was related to Complete Construction's response to the same motions at issue here. The court then "decline[d] to exercise [its] discretion to go beyond" that, stating that the $2,198 award was "as far as" the court would "go in terms of a fee award."
¶74 An "abuse of discretion occurs only if it can be said that no reasonable person would take the view adopted by the district court," and our review of such discretionary decisions is "necessarily context specific." State v. Edwards, 2023 UT App 23, ¶ 15, 527 P.3d 826 (quotation simplified). While the court acknowledged that the motions in question were not meritorious, the question before it wasn't confined to the merits of the motions alone. Rather, the question before it was whether "justice and equity" should cause it to award attorney fees, see Stewart, 885 P.2d at 782, a question that naturally encompassed both these motions and even the litigation as a whole. The court was in a far better position than we are to assess this, and we see no basis for second-guessing the court's decision. Simply put, even if the court could have awarded fees under this equitable power, it was not required to do so under these circumstances. We therefore reject Complete Construction's challenge to this decision.
CONCLUSION
¶75 For the reasons set forth above, we affirm the district court's conclusion that the preliminary notice was untimely, but we reverse its conclusion that Complete Construction was not entitled to relief under the savings statute. We also reverse the district court's denial of the Busicos' request for attorney fees relating to the lien foreclosure action, and we remand for further consideration of that request in light of the principles expressed above. Finally, we affirm the district court's denial of Complete Construction's request for attorney fees under the court's inherent equitable power.