Hogs Can Get Slaughtered on Fees in Utah if Their Claim is Too Greedy


By Tyson J. Prisbrey and Mark O. Morris of Snell & Wilmer LLP
Published in the Fall 2022 Under Construction newsletter

Construction contracts generally provide that the loser in a construction dispute must pay the attorneys’ fees of the prevailing party. But construction contracts, by their nature, can lead to outcomes in which it is hard to determine who comes out on top of a dispute. Parties’ misconceptions about the leverage they have with attorneys’ fees clauses, and false senses of strength, often lead to mistakes in being overly aggressive in litigation that ultimately leads to disappointing, inefficient, and surprising resolutions. Of course, every litigant wants to maximize its recovery or minimize its outlay in a construction dispute. But if a litigant shoots for the moon, and ultimately recovers only a small percentage of those damages, a court could easily find that the litigant was not, comparatively, the prevailing party.

The recent decision by the Utah Court of Appeals in Maxwell Masonry Restoration & Cleaning, LLC v. North Ridge Construction, Inc., 2022 UT App 109 is instructive. Maxwell, the masonry subcontractor for a project, filed a complaint against the general contractor, North Ridge, alleging breach of contract, breach of the implied covenant, and various tort claims related to the subcontract agreement. Maxwell sought over $250,000 in damages, most of which was for work outside the scope of the subcontract. North Ridge responded with counterclaims of its own, initially seeking $36,621 in damages, but later electing to only seek liquidated damages in the amount of $16,750.

After nearly a year of discovery and motion practice, the court dismissed the lion’s share of Maxwell’s damage claims, ultimately finding that North Ridge breached the subcontract with respect to the $18,537.40 withheld from the final payment. It also found, however, that Maxwell had breached the subcontract by delaying the work, making it liable for $16,750 in liquidated damages. Maxwell was also entitled to $47,000 in retainage, which was not really in dispute.

The trial court then analyzed which party prevailed for purposes of an attorney’s fee award. The court explained that Maxwell “recovered” $65,223.71 of its initial request of $251,308.38, which the court determined was a 26 percent success rate. The $47,000 in retainage was part of that math. It also explained that North Ridge “recovered” $16,750 of what it initially claimed of $36,621, a 46 percent success rate. The court also analyzed which party was the “comparative victor”, concluding that Maxwell’s award was greater than North Ridge’s award. With those metrics, the trial court reasoned that because the total damages awarded were close, and because the success rate percentage difference was “not extreme,” neither party was the prevailing party, and it was a “draw”. Thus, the trial court awarded no attorneys’ fees.

On appeal, the Utah Court of Appeals found that the district court erred by concluding that Maxwell “recovered” $65,223.71 for purposes of its prevailing party analysis because, of the $65,223.71, Maxwell did not “recover” the retainage funds because they were not included in the amount the district court awarded in the judgment. Thus Maxwell “recovered” only $18,537.40. Maxwell recovered only seven percent (not 26 percent as the district court concluded), whereas North Ridge’s success rate was 46 percent. The court found the difference between these two rates significant. Having found that the district court erred in Maxwell’s recovery metric, the court of appeals found that the district court exceeded its discretion by concluding that there was no prevailing party, and found that North Ridge was the prevailing party. The Utah Court of Appeals noted that North Ridge had several victories with motions in limine that limited Maxwell’s damages claims and a successful Rule 52(a) motion during trial that dismissed all but one of Maxwell’s claims, whereas Maxwell’s victories were far less impactful. Lastly, the court examined North Ridge’s comparative victory considering what a total victory would have meant for each party: total victory for Maxwell would be recovering $251,308.38, while total victory for North Ridge would be recovering only $36,621. With North Ridge recovering nearly half the total amount of its total victory, it was much closer to a total victory than Maxwell’s recovery.

The lesson: Be realistic about the demands you make, and take into account your own exposure.

Tyson J. Prisbrey is an Associate with Snell & Wilmer. He focuses his practice in complex commercial and corporate litigation, including litigation in construction law, corporate governance, and general contractual disputes. He can be reached at or 801.257.1815.


Mark O. Morris is a Partner with Snell & Wilmer. He has a very diverse practice, accumulating over 35 years’ experience in general commercial litigation, including handling cases in the areas of construction law, real estate, securities, legal malpractice, employment, professional liability, trade secrets, general business disputes and defense of class action matters. He can be reached at or 801.257.1904.