author: WILKINS, Justice:

text:
    2004 UT 42
    Ronnie Lee GARDNER, Plaintiff and Appellant, v. Hank GALETKA, Warden of the Utah State Prison, Defendant and Appellee.
    No. 20010875.
    Supreme Court of Utah.
    May 28, 2004.
    Rehearing Denied May 26, 2004.

      James C. Bradshaw, Salt Lake City, and Andrew Parnés, Ketchum, ID, for plaintiff.
    Mark L. Shurtleff, Att’y Gen., Thomas B. Brunker, Asst. Att’y Gen., Salt Lake City, for defendant.
   AMENDED OPINION

WILKINS, Justice:

¶ 1 Plaintiff Ronnie Lee Gardner appeals the district court’s dismissal of his second petition for post-conviction relief. We affirm, holding that Gardner’s claim is proeedurally barred by the Post-Conviction Remedies Act (the “PCRA” or the “Act”). See Utah Code Ann. §§ 78-35a-101 to -106 (2002).

FACTUAL AND PROCEDURAL HISTORY

¶ 2 For a complete recitation of the underlying facts of this case, see Gardner v. Holden, 888 P.2d 608, 612-13 (Utah 1994) (Gardner II). In October 1985, Gardner was convicted of first degree murder, attempted first degree murder, aggravated kidnapping, escape, and possession of a dangerous weapon by an incarcerated person. At the close of the evidence, the district court instructed the jury on the requisite elements of first degree murder. In its instruction, the district court noted that the jury could only find Gardner guilty of this offense if it concluded beyond a reasonable doubt that he committed an “intentional” or “knowing” killing.

¶ 3 However, in its separate mens rea instruction, the district court misdefined the term “knowingly.” In pertinent part, the erroneous instruction reads as follows:

A person engages in conduct:
2. “Knowingly” when he is aware of the nature of his conduct, or the existing circumstances, or is aware that his conduct is reasonably certain to cause the result.

(Emphasis added.) Although Gardner’s defense counsel had previously submitted an alternative definition of “knowingly,” neither of his attorneys objected to the district court’s instruction. As stated above, the jury convicted Gardner of first degree murder and, after a separate penalty hearing, sentenced him to death.

¶ 4 On direct appeal, Gardner raised eighteen challenges to his conviction and sentence, including two separate claims of instructional error — neither of which pertained to the “knowingly” instruction. In State v. Gardner, this court affirmed his conviction and death sentence. 789 P.2d 273, 288 (Utah 1989) (Gardner I). One year later, in 1990, Gardner filed his first post-conviction petition in the district court and alleged sixteen grounds for relief, including ineffective assistance of both trial and appellate counsel. With respect to his ineffective assistance of trial counsel claim, Gardner identified sixteen specific acts or omissions, but did not include any challenge to the “knowingly” instruction. Regarding his ineffective assistance of appellate counsel claim, Gardner alleged nine errors in his representation. Again, however, he raised no objection to the correctness of the “knowingly” instruction. Although the district court initially ruled that Gardner was entitled to a new penalty hearing and direct appeal, this court reversed and reaffirmed his conviction and capital sentence. Gardner II, 888 P.2d at 611, 623.

¶ 5 In January 1997, Gardner filed a petition for writ of habeas corpus in the United States District Court for the District of Utah. In the federal petition, he presented twenty-two challenges to his conviction and sentence, including ineffective assistance of trial and appellate counsel, but omitted for the third time any claim related to the “knowingly” instruction. It was not until August 1999, over two years into the federal proceeding, that Gardner first argued that his appellate counsel performed deficiently by failing to attack the “knowingly” instruction. After accepting written submissions and hearing argument, the federal district court declined to determine whether this new claim was proeedurally barred under Utah law. Instead, it directed Gardner to file a second post-conviction petition in state court to exhaust the claim, allowed him to amend his federal habeas corpus petition to include the claim, and agreed to hold that portion of the federal petition in abeyance pending state court resolution.

¶ 6 Upon the filing of Gardner’s second post-conviction petition, the State moved for summary judgment on grounds of procedural bar. Specifically, the State argued that the Post-Conviction Remedies Act precluded Gardner from asserting a new claim of ineffective assistance of appellate counsel because a challenge to the “knowingly” instruction “could have been, but was not, raised in a previous request for post-conviction relief.” Utah Code Ann. § 78-35a-106(1)(d) (2002). The district court denied the State’s motion, ruling that the PCRA incorporated the pre-Act common law procedural bar rules and that, pursuant to those rules, Gardner had demonstrated sufficient “good cause” to justify substantive review of his claim. The State then moved for summary judgment on the merits. Applying Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the district court concluded that Gardner could not establish a reasonable probability that, but for his counsel’s failure to challenge the erroneous “knowingly” instruction, the outcome on direct appeal would have been different. As such, the district court found that Gardner had not demonstrated prejudice and granted the State’s motion. Gardner now appeals.

STANDARD OF REVIEW

¶ 7 “We review an appeal from an order dismissing or denying a petition for post-conviction relief for correctness without deference to the lower court’s conclusions of law.” Rudolph v. Galetka, 2002 UT 7, ¶ 4, 43 P.3d 467.

ANALYSIS

¶ 8 Although the district court granted the State’s motion for summary judgment on the merits, we note that this court may affirm the denial of Gardner’s petition for post-conviction relief on the alternative ground that his claim is proeedurally barred. See Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (“It is well settled that an appellate court may affirm the judgment appealed from ‘if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action ....’” (quoting Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225) (further citation omitted)). In accordance with this prerogative, we hold that Gardner’s ineffective assistance of appellate counsel claim is foreclosed by the Post-Conviction Remedies Act. See Utah Code Ann. §§ 78-35a-101 to -106 (2002).

I. POST-CONVICTION REMEDIES ACT

¶ 9 In 1996, the legislature enacted the PCRA to “establish[] a substantive legal remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies.” Id. § 78-35a-102(1). By the plain language of section 78-35a-106, the Act purports to replace our common law post-conviction procedural bar jurisprudence with a statutory restriction on successive claims. Id. § 78-35a-106. Of particular importance in the instant case, the PCRA mandates that:

(1) A person is not eligible for relief under this chapter upon any ground that:
(d) was raised or addressed in any previous request for post-conviction relief or could have been, but was not, raised in a previous request for post-conviction relief.

Id. § 78-35a-106(1)(d) (emphasis added).

¶ 10 Citing this section, the State asserts that Gardner’s current posUconviction petition is precluded because his ineffective assistance of appellate counsel claim could have been, but was not, brought in his first post-conviction proceeding. The State emphasizes that the erroneous “knowingly” instruction became part of the record in 1985, and that the information Gardner relies on to support his present claim was available to him when he filed his initial post-conviction petition in 1990. Thus, the State contends that the PCRA bars Gardner’s claim.

¶ 11 In response, Gardner argues that the district court correctly incorporated the pre-1996 common law post-conviction procedural bar rules into the Act. Prior to the enactment of the PCRA, our case law permitted merits review of claims raised for the first time in successive post-conviction proceedings upon a showing of “good cause.” See Hurst v. Cook, 777 P.2d 1029, 1036-37 (Utah 1989). In Hurst, this court articulated five factors that constitute sufficient “good cause” to allow the filing of successive post-conviction petitions. Id. at 1037. Those factors are:

(1) the denial of a constitutional right pursuant to new law that is, or might be, retroaetive[;] (2) new facts not previously known which would show the denial of a constitutional right or might change the outcome of the trial[;] (3) the existence of fundamental unfairness in a conviction[;] (4) the illegality of a sentence[;] or (5) a claim overlooked in good faith with no intent to delay or abuse the writ.

Id. (citations and footnotes omitted).

¶ 12 As noted above, the district court first determined that the Act inherently includes the common law procedural bar rules, and then found that Gardner established “good cause” under the third and fifth Hurst factors; namely, “the existence of fundamental unfairness in a conviction” and “a claim overlooked in good faith with no intent to delay or abuse the writ.” Id. We disagree with the district court’s wholesale integration of the Hurst factors into the PCRA, and hold that Gardner’s ineffective assistance of appellate counsel claim is procedurally barred by the plain language of the Act.

¶ 13 A straightforward application of section 78-35a-106(1)(d) to the facts of this ease supports this conclusion. Because the present petition was filed on May 12, 2000, nearly four years after the Act’s effective date of July 1, 1996, the PCRA controls. A thorough examination of Gardner’s first post-conviction petition, filed in 1990, reveals sixteen separate challenges to his conviction and sentence, including sixteen alleged errors committed by trial counsel and nine alleged defects in appellate counsel’s representation. Yet, despite the undisputed presence of the erroneous “knowingly” instruction in the record, Gardner made no reference to it in his extensive list of claims. Indeed, Gardner first questioned the correctness of the “knowingly” instruction nearly fourteen years after his 1985 conviction, after omitting it entirely from his direct appeal, his first post-conviction petition, and his original federal habeas corpus petition. Therefore, section 78-35a-106(1)(d) of the Act bars merits review of Gardner’s claim, since his assertion of ineffective assistance of appellate counsel based upon their failure to challenge the “knowingly” instruction “could have been, but was not, raised in a previous request for post-conviction relief.” Utah Code Ann. § 78-35a-106(1)(d) (emphasis added).

II. COMMON LAW PROCEDURAL BAR RULES

¶ 14 With the 1996 passage of the PCRA, only two of the five “good cause” factors enumerated in Hurst remain uncodified. The Act impliedly includes the first Hurst factor, “the denial of a constitutional right pursuant to [retroactive] new law,” since a claim predicated on fresh jurisprudence could clearly not have been raised in a prior post-conviction petition. 777 P.2d at 1037; see Utah Code Ann. § 78-35a-106(1)(d). Likewise, the Act also provides for relief on the basis of “newly discovered material evidence,” thereby incorporating the second Hurst factor. See id. § 78-35a-104(1)(e). Finally, the fourth Hivrst factor is codified in Utah Rule of Criminal Procedure 22(e), which empowers the court to “correct an illegal sentence, or a sentence imposed in an illegal manner, at any time.” Consequently, the only Hurst default exceptions that have not been addressed by the legislature are “the existence of fundamental unfairness in a conviction” and “a claim overlooked in good faith with no intent to delay or abuse the writ.” 777 P.2d at 1037.

¶ 15 As an initial matter, we emphasize that, despite the statutory enactment of the majority of the Hurst factors, all five common law exceptions retain their independent constitutional significance and may be examined by this court in our review of post-conviction petitions. However, given that the PCRA and rule 22(e) of the Utah Rules of Criminal Procedure effectively embody the Hurst exceptions pertaining to retroactive new law, newly-discovered evidence, and illegal sentences, we will typically defer to the legislature unless these fundamental safeguards are repealed or otherwise restricted.

¶ 16 With respect to the third and fifth Hurst factors—“the existence of fundamental unfairness in a conviction” and “a claim overlooked in good faith with no intent to delay or abuse the writ”—we need not reach the question of their application to Gardner’s claim. It is absurd to suggest that any reasonable juror could find that Gardner was aware that he was firing a loaded handgun into his victim’s face from a.short distance away, but was not reasonably certain that his action would cause death. In order to reach analysis under the Hurst factors, a claim must be facially plausible. Gardner’s is not, so we do not reach such an analysis. The plain language of section 78-35a-106(1)(d) renders Gardner’s claim proeedurally barred and we need not further examine whether the third and fifth Hurst factors apply.

¶ 17 Consequently, to the degree that the PCRA purports to erect an absolute bar to this court’s consideration of successive post-conviction petitions, it suffers from constitutional infirmities. As we noted in Hurst, the power to review post-conviction petitions “[qjuintessentially ... belongs to the judicial branch of government” pursuant to article VIII of the Utah Constitution. 777 P.2d at 1033; see Utah Const. art. VIII, § 3 (“The Supreme Court shall have original jurisdiction to issue all extraordinary writs and ... power to issue all writs and orders necessary for the exercise of the Supreme Court’s jurisdiction or the complete determination of any cause.”). As such, “the legislature may not impose restrictions which limit [post-conviction relief] as a judicial rule of procedure, except as provided in the constitution.” Julian v. State, 966 P.2d 249, 253 (Utah 1998).

¶ 18 While we do not disagree with the legislature’s enactment of the PCRA—which, of course, embodies the popular will—and generally afford deference to its decisions, we nevertheless will continue to exercise our constitutionally vested authority where appropriate. Our state constitution is designed to prevent the unlawful, improper incarceration or execution of innocent individuals and, for that reason, we uphold the continued viability of the Hurst “good cause” exceptions. Under appropriate circumstances we will fulfill our duty to carefully consider the issues presented. By preserving the “good cause” exceptions we imply no lack of deference to the legislature, but rather recognize, and emphasize, our solemn responsibility to safeguard “one of the most important of all judicial tools for the protection of individual liberty.” Hurst, 777 P.2d at 1034.

CONCLUSION

¶ 19 We affirm the decision of the district court, although on different grounds. We hold that Gardner’s ineffective assistance of appellate counsel claim, premised upon his attorneys’ failure to challenge the “knowingly” instruction and brought for the first time in a second post-conviction petition, is procedurally barred by the plain language of section 78-35a-106(l)(d) of the Post-Conviction Remedies Act since it could have been, but was not, raised in his original post-conviction proceeding. Affirmed.

¶ 20 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Justice WILKINS’ opinion.

      . The instructional flaw stems from the use of the word "or” instead of "and.” As a result, the jury could have convicted Gardner of first degree murder by finding only that he was aware of the nature of his conduct (firing a loaded handgun into his victim’s face from a short distance away) without also determining, as required by law, that he was "reasonably certain” that his actions would cause death.

      . A partial survey reveals that the Act's preclusion provision is similar to the majority of post-conviction statutes from other jurisdictions. See, e.g., Alaska Stat. § 12.72.020 (2003); Ariz. R.Crim. P. 32.2; Ark. R.Crim. P. 37.2; Del. R.Crim. P. 61; Ga.Code Ann. § 9-14-51 (2002); Haw. R. Penal P. 40; Idaho Code § 19-2719 (2003); Kan. Stat. Ann. § 60-1507 (2003); Okla. Stat. tit. 22, § 1086 (2003); 42 Pa. Cons.Stat. § 9543 (2003); Wis. Stat. § 974.06 (2003); Wyo. Stat. Ann. § 7-14-103 (2003).

      . Although we decide this case solely on procedural bar grounds and do not reach the merits, we note that Gardner would face a difficult task in persuading this court that he knowingly fired a loaded handgun into the face of his victim from approximately one foot away but was not aware that his conduct was "reasonably certain” to cause death.

      . Although the federal district court has not certified the question, the State nevertheless urges us to determine whether the common law procedural bar rules in effect in 1990, when Gardner failed to challenge the "knowingly” instruction in his first post-conviction proceeding, would preclude his current ineffective assistance of appellate counsel claim. We decline this invitation.


source: Caselaw Access Project

author: WILKINS, Associate Chief Justice:

license: Public Domain

text:
    2004 UT 46
    STATE of Utah, Plaintiff and Petitioner, v. David HITTLE, Defendant and Respondent.
    No. 20020504.
    Supreme Court of Utah.
    June 11, 2004.
    Mark L. Shurtleff, Att’y Gen., Kris C. Leonard, Asst. Att’y Gen., Salt Lake City, for plaintiff.
    Margaret P. Lindsay, Provo, for defendant.
   WILKINS, Associate Chief Justice:

¶ 1 The State of Utah petitioned this court for a writ of certiorari to review the court of appeals’ reversal of the district court’s denial of defendant David Hittle’s motion to withdraw his guilty plea. We reverse.

FACTUAL AND PROCEDURAL HISTORY

¶2 On April 7, 2000, David Hittle was charged with two counts of criminal nonsupport — one class A misdemeanor and one third degree felony — pursuant to Utah Code section 76-7-201. See Utah Code Ann. § 76-7-201 (2003). Thirteen days later, on April 20, Hittle entered into a plea bargain with the State in which he agreed to plead guilty to the class A misdemeanor in exchange for the dismissal of the third degree felony and the creation of a payment schedule to satisfy his outstanding child support obligations. During the plea colloquy, the district court informed Hittle that the entry of a guilty plea entailed the waiver of certain constitutional rights, and proceeded to enumerate those rights. However, in advising Hittle that he was waiving “the right to a speedy public trial before an impartial jury,” as is required by rule 11(e)(3) of the Utah Rules of Criminal Procedure, the district court departed from the requirements of the rule by omitting the word “speedy.” See Utah R.Crim. P. 11(e)(3). Furthermore, the word “speedy” was not included in the “Jury Trial” section of the accompanying plea affidavit signed by Hittle and incorporated into the record. Finally, no additional evidence indicates that Hittle was otherwise advised of his right to a “speedy” trial.

¶ 3 Nearly one month after the hearing, Hittle filed a motion to withdraw his guilty plea on grounds that his counsel provided ineffective assistance. After review, the district court denied the motion. Hittle then appealed to the court of appeals, where he argued for the first time that the district court’s failure to inform him of his right to a “speedy” trial under rule 11(e)(3) rendered his subsequent guilty plea unknowing and involuntary. See State v. Hittle, 2002 UT App 134, ¶ 1, 47 P.3d 101. The court of appeals agreed, holding that the district court’s omission of the word “speedy” satisfied the three-part test for plain error. Id. at ¶¶ 6, 7, 9, 11. As such, it reversed the district court’s denial of Hittle’s motion to withdraw his guilty plea and remanded the case. Id. at ¶ 11. The State then petitioned this court for a writ of certiorari, which we granted.

STANDARD OF REVIEW

¶4 “On certiorari, we review the decision of the court of appeals, not the decision of the trial court. In doing so, this court adopts the same standard of review used by the court of appeals: questions of law are reviewed for correctness, and the trial court’s factual findings are reversed only if clearly erroneous.” State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995) (internal citation omitted). In the context of rule 11 colloquies, the “ultimate question of whether the trial court strictly complied with constitutional and procedural requirements for entry of a guilty plea is a question of law that is reviewed for correctness.” State v. Benvenuto, 1999 UT 60, ¶ 10, 983 P.2d 556 (internal quotation omitted).

ANALYSIS

¶ 5 In State v. Dean, also issued today, we held that the omission of the words “speedy” and “impartial” during a rule 11 plea colloquy did not meet the plain error standard, as the error was neither obvious nor harmful. See Dean, 2004 UT 63, ¶¶ 15-23, 95 P.3d 276. Because the facts of this case are nearly identical to those of Dean, the same reasoning applies. Consequently, we hold that the district court’s failure to include the word “speedy” in its recitation of Hittle’s right to “a speedy public trial before an impartial jury” does not rise to the level of plain error.

CONCLUSION

¶ 6 We reverse and remand to the court of appeals for resolution of Hittle’s remaining rule 11 challenges and ineffective assistance of counsel claim. Reversed and remanded for further proceedings consistent with this opinion.

¶ 7 Chief Justice DURHAM, Justice PARRISH, Justice NEHRING, and Judge JUDKINS concur in Associate Chief Justice WILKINS’ opinion.

¶ 8 Having disqualified himself, Justice DURRANT does not participate herein; District Judge CLINT S. JUDKINS sat.

      . In addition, Hittle asserted that the district court committed other rule 11 violations during the plea colloquy, and also renewed his initial claim of ineffective assistance of counsel. Hittle, 2002 UT App 134 at n. 1, 47 P.3d 101. However, since the court of appeals based its decision on the district court's omission of the word "speedy,” it did not address Hittle’s other challenges. Id.


author: DURHAM, Chief Justice:

text:
    2004 UT 47
    A.K. & R. WHIPPLE PLUMBING AND HEATING, Plaintiff and Respondent, v. Thomas D. GUY and Aspen Construction, a Utah corporation, Defendants and Petitioners.
    No. 20020495.
    Supreme Court of Utah.
    June 11, 2004.

      Steven B. Wall, Salt Lake City, for plaintiff.
    Joseph M. Chambers, Logan, for defendants.
   DURHAM, Chief Justice:

INTRODUCTION

¶ 1 Thomas D. Guy (Guy) and Aspen Construction (Aspen) were defendants in a mechanic’s lien foreclosure action brought by A.K. & R. Whipple Plumbing and Heating (Whipple). We granted Guy and Aspen’s petition for certiorari review of the court of appeals’ decision affirming the trial court’s award of no attorney fees in connection with this case. They urge us to find that the trial court’s application of a so-called “flexible and reasoned approach” to determining the “successful party” pursuant to section 38-1-18 of the Utah Code wrongly led the trial court to find that Guy and Aspen were not the “successful parties” in this dispute. Because of the trial court’s reasoning, it found that Guy and Aspen were not entitled to attorney fees, even though they won a net judgment of $527 and Whipple did not win everything it sought through its mechanic’s lien. We affirm.

BACKGROUND

¶ 2 Guy, a homeowner, hired Aspen, a general contractor, to coordinate construction projects on three different properties. Aspen hired Whipple to perform heating, ventilation and air conditioning (HVAC) work, plumbing work, and other services on the properties. Problems arose with the HVAC system on one of the properties, known as the Thayne’s Canyon property. Because of these problems, Aspen terminated Whipple’s services and refused further payment until Whipple fixed the HVAC system. Whipple then filed mechanic’s lien foreclosure actions on all three properties, and Aspen counterclaimed for damages based on the defective HVAC system. The three mechanic’s lien actions were consolidated for trial.

¶ 3 Two of the lien foreclosure actions are not at issue in this case. Rather, it is the third, largest mechanic’s lien for Whipple’s work on the Thayne’s Canyon property that is at issue. Although the exact amount of this lien is disputed, we have determined that it was $30,641.35. Aspen, in turn, claimed $25,000 in damages based on Whipple’s allegedly negligent HVAC work on the Thayne’s Canyon property. Whipple II, 2002 UT App 73 at ¶ 20, 47 P.3d 92. Based on that $25,000 counterclaim, the trial court awarded Aspen a $7,000 “offset for damages based on [Whipple’s] deficient work.” After calculating the consequences of the parties’ respective wins and losses on their competing claims, the trial court awarded a net judgment to Aspen in the amount of $527. Id.

¶ 4 Notwithstanding its finding that Aspen should receive $527, the trial court held that Aspen was not a “successful party” pursuant to section 38-1-18 of the Utah Code. The trial court found, and the court of appeals agreed, that “where the net recovery is only $527, ... this is essentially a ‘draw.’ ” Id. (internal quotation omitted). The court of appeals in Whipple II based its decision on the “flexible and reasoned” approach set forth in Mountain States Broadcasting Co. v. Neale, 783 P.2d 551, 557 (Utah Ct.App.1989) (mem. decision on petition for reh’g) (Mountain States II) (internal quotation omitted), and followed in Occidental/Nebraska Federal Savings Bank v. Mehr, 791 P.2d 217 (Utah Ct.App.1990). See Whipple II, 2002 UT App 73 at ¶¶ 15-19, 47 P.3d 92.

¶ 5 Aspen argues that the flexible and reasoned approach is inapplicable to this case, and that instead we should interpret section 38-1-18’s term “successful party” as requiring application of a straight “net judgment” rule for determining the successful party. The net judgment rule requires the court to consider only which party recovered a net judgment, and award attorney fees to that party. See Mountain States II, 783 P.2d at 557-58. Because Aspen received a net judgment of $527, and Whipple failed to recover some of what it sought under its Thayne’s Canyon mechanic’s lien, Aspen argues that it was the “successful party” with respect to that lien.

STANDARD OF REVIEW

¶ 6 When reviewing attorney fee decisions that involve questions of law, we review for correctness. Robertson v. Gem Ins. Co., 828 P.2d 496, 499 (Utah Ct.App.1992). This is also the standard we apply when construing statutes. Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997).

ANALYSIS

¶ 7 Although courts have inherent equitable power to award attorney fees when justice or equity requires, Stewart v. Utah Pub. Serv. Comm’n, 885 P.2d 759, 782 (Utah 1994), attorney fees are typically recoverable only if an applicable statute or contract so provides. Id.; Mountain States Broad. Co. v. Neale, 776 P.2d 643, 648 (Utah Ct.App.1989) (Mountain States I), clarified by Mountain States Broad. Co. v. Neale, 783 P.2d 551 (Utah Ct.App.1989) (mem. decision on petition for reh’g) (Mountain States II). Section 38-1-18 of the Utah Code states:

Except as provided in Section 38-11-107, in any action brought to enforce any lien under this chapter the successful party shall be entitled to recover a reasonable attorneys’ fee, to be fixed by the court, which shall be taxed as costs in the action.

Utah Code Ann. § 38-1-18 (1997). By its use of the word “shall,” the provision mandates that the successful party be allowed to recover reasonable attorney fees. Richards v. Sec. Pac. Nat’l Bank, 849 P.2d 606, 612 (Utah Ct.App.1993). Thus, courts do not have discretion to decide whether to award reasonable attorney fees to the “successful party.” Reeves v. Steinfeldt, 915 P.2d 1073, 1079 (Utah Ct.App.1996). The court of appeals has correctly stated that a “successful party includes one who successfully enforces or defends against a lien action.” Kurth v. Wiarda, 1999 UT App 335, ¶ 9, 991 P.2d 1113.

¶ 8 The instant ease requires us to decide whether section 38-1-18’s use of the term “successful party” precludes a trial court from finding that, under circumstances such as those in this case, neither party was actually “successful,” and therefore neither party is entitled to attorney fees. Reasoning that the term “successful party” is essentially synonymous with the term “prevailing party,” Whipple II, 2002 UT App 73 at ¶¶ 11-12, 47 P.3d 92, the court of appeals held that a trial court should apply a “flexible and reasoned” approach to determining which party was successful. Id. at ¶¶ 16, 18-19. This approach is based on the court of appeals’ reasoning in Mountain States II, which was not a mechanic’s lien case, but rather one involving a contractual attorney fees provision that included the term “prevailing party.” Mountain States I, 776 P.2d at 648. The court of appeals followed the flexible and reasoned approach it announced in Mountain States II in the subsequent ease of Occidental/Nebraska Federal Savings Bank v. Mehr, 791 P.2d 217 (Utah Ct.App.1990).

I. MOUNTAIN STATES II

¶ 9 Mountain States II involved a dispute over the purchase of radio stations. Mountain States I, 776 P.2d at 645. The contract governing the purchase included an attorney fees provision providing, in pertinent part: “In the event of commencement of suit by either party to enforce the provisions of this Agreement, the prevailing party shall be entitled to receive attorneys’ fees and costs as a court may adjudge reasonable in addition to any other relief granted.” Id. at 648. The Mountain States trial court found that both sides had prevailed to some extent, so it awarded both sides their full attorney fees. Id. at 645. Both sides argued before the court of appeals, however, that the attorney fees provision in the purchase contract contemplated only one “prevailing party,” and, predictably, each side claimed to be the prevailing party. Id. at 648.

¶ 10 In Mountain States I, the court of appeals found that there could be only one prevailing party, despite the fact that the trial judge had awarded both parties money damages for claims arising from the same transaction. Id. Furthermore, the court of appeals held that prevailing party status was determined by the identity of the party receiving the net judgment. Id. at 649. The court acknowledged, however, that

[t]he determination of a “prevailing party” becomes even more complicated in cases involving multiple claims and parties ... and where the ultimate award of money damages does not adequately represent the actual success of the parties under the peculiar posture of the case. These cases demonstrate the need for a flexible and reasoned approach to deciding in particular cases who actually is the prevailing party.

Id. at 649 n. 7 (citations omitted).

¶ 11 Mountain States II was the court of appeals’ memorandum decision on a petition for rehearing filed by Mountain States. 783 P.2d at 557. Mountain States had not received a net judgment in Mountain States I, and it was therefore not the “prevailing party” under the court’s initial application of the net judgment rule. Mountain States argued that it was nevertheless the real prevailing party because throughout the trial it had claimed that it was entitled to an offset, and it ultimately did prove its entitlement to the offset. Id. Furthermore, Mountain States argued that its opponent — a party named NBA — was the non-prevailing party, because NBA had contended Mountain States deserved no offset, but an offset was nonetheless awarded. Id. The appellate court cogently explained why a strict application of an unmodified net judgment rule could create absurd results:

Mountain States suggests that the absurdity of our reliance on the “net judgment” rule in a case like this is shown by the fact that if it had proven offsets totaling even $1.00 less than the amount otherwise due under the note, despite a near-total victory for Mountain States the net judgment would still be in favor of NBA and strict application of the net judgment rule would leave NBA the prevailing party. Mountain States’ point is well-taken. On the other hand, carrying its own position to an equivalent extreme works an equally untenable result: If Mountain States had shown its entitlement to an offset of only $1.00, under its view it would be the prevailing party since it had claimed an offset in an amount to be proved and proved one.

Id. Having thus explained why a simplistic, mechanical application of either the net judgment rule or Mountain States’ approach could create absurd results, the Mountain States II court emphasized

the need for a flexible and reasoned approach to deciding in particular cases who actually is the prevailing party.... [Nothing in our opinion should be taken to suggest that the net judgment rule can be mechanically applied in all cases, although it will usually be at least a good starting point.

Id. (internal quotation omitted). Implicit in this ruling is the notion that courts should not ignore common sense when deciding which party prevailed. The court therefore used the net judgment rule as a starting point, and considered the question of which party had prevailed from “two additional perspectives.” Id. at 558.

¶ 12 The two additional perspectives the court considered both focused on determining “comparative victory” rather than simply which party won the net judgment. Id. The court explained that the main dispute between the parties centered on a $30,000 payment. Id. NBA argued that Mountain States owed NBA the entire $30,000, while Mountain States argued that it was entitled to at least $30,000 in offsets, and therefore owed NBA nothing. Id. “Total victory for Mountain States would have been its proving entitlement to all $30,000. Total victory for NBA would have been its proving Mountain States was entitled to nothing. A ‘draw1 would have been a decision dividing the $30,000 equally.” Id. As it turned out, however, NBA won four times the amount that Mountain States won. Id.

¶ 13 The other perspective the court used to determine which party prevailed focused on the party that won a greater percentage of the amount it had claimed in damages or offsets. Thus, the court explained that depending on how NBA’s punitive damage claim was calculated, NBA recovered between thirty-three percent (33%) and sixty percent (60%) of the damages it had sought. Id. Mountain States, on the other hand, won only nine percent (9%) of what it had sought. Id. Viewing the outcome of the trial from these two vantage points, the court found that NBA won an overall victory, and was therefore the “prevailing party.” Id.

¶ 14 We believe that Mountain States II’s common sense “flexible and reasoned” approach was correctly applied to the interpretation of contractual “prevailing party” language. Occidental/Nebraska strongly supports this conclusion. That case, unlike Mountain States II, involved a statutory “prevailing party” attorney fees provision. See 791 P.2d at 221 (citing Utah Code Ann. § 57-1-32 (1986)). The plaintiff claimed $600,000 in damages, but only recovered $7,300 — a sum that the defendants had stipulated to owing early in the litigation. Id. at 222. Based on the flexible and reasoned approach, the court was able to find that the defendants, not the plaintiff, were the prevailing party. Id.

¶ 15 The instant case involves the term “successful party” as used in the context of a mechanic’s lien action, rather than the “prevailing party” language construed in Mountain States II. We therefore examine whether Mountain States II’s flexible and reasoned approach should be applied to cases involving the “successful party” term in section 38-1-18 of the Utah Code.

II. CONSISTENCY OF THE “FLEXIBLE AND REASONED” APPROACH WITH UTAH CODE ANNOTATED SECTION 38-1-18

¶ 16 Section 38-1-18 of the Utah Code is a lien statute, while Mountain States II concerned an attorney fees provision in a contract. Consequently, we should adopt the “flexible and reasoned” approach from Mountain States II only if it is consistent with the purposes of section 38-1-18.

¶ 17 As a preliminary matter, we note that the legislature has not defined the term “successful party” as it is used in section 38-1-18. See Utah Code Ann. §§ 38-1-1 to -29 (2001 & Supp.2003). We can find no case law construing the term “successful party” in light of circumstances like those in this case, where both parties have won and lost some of their competing claims arising from the same underlying facts. Aspen has cited several cases dealing with section 38-1-18, but none of them actually support its position.

¶ 18 A representative example is Aspen’s repeated emphasis on our decision in Palombi v. D & C Builders, 22 Utah 2d 297, 452 P.2d 325, 327-28 (1969). Aspen asserts that Palombi forecloses the result Whipple seeks in this case. Aspen’s argument, however, is unsupported by the language of Palombi, which focuses only on the issue of whether one who successfully defends against a mechanic’s lien could be a successful party under the statute: “the statute confers the benefit [of receiving attorney fees] not only on the one who asserts the lien but upon the ‘successful party[,]’ in this instance the plaintiff, who defended against the lien.” Id. at 327. Palombi says nothing about whether a court can find that there was no “successful party” in a case where both parties won and lost on parts of their competing claims, while one party received a comparatively small net judgment. The same is also true of the other cases Aspen cites.

¶ 19 What the case law does reveal is that Utah appellate courts have routinely used the terms “successful party” and “prevailing party” interchangeably. See, e.g., Cobabe v. Crawford, 780 P.2d 834, 835 n. 1 (Utah Ct.App.1989). Likewise, Black’s Law Dictionary treats the terms “successful party” and “prevailing party” as synonyms. Whipple II, 2002 UT App 73 at ¶ 11, 47 P.3d 92 (citing Black’s Law Dictionary 1145 (7th ed.1999)). Significantly, both this court and the court of appeals have used the terms interchangeably even in the context of mechanic’s lien cases. See ProMax Dev. Corp. v. Raile, 2000 UT 4, 998 P.2d 254; J.V. Hatch Constr., Inc. v. Kampros, 971 P.2d 8 (Utah Ct.App.1998). Thus, we are satisfied that Mountain States II’s “flexible and reasoned” approach should not be unavailable in this case simply by virtue of the fact that it is based on the term “prevailing party” rather than “successful party.”

¶20 Aspen concedes that Utah appellate courts have often used the terms “successful party” and “prevailing party” interchangeably. Aspen argues, however, that even when using the terms interchangeably, we have always referred to and applied a historical legal standard in which no draw was possible. This is one of Aspen’s key arguments, because if true, it means that we have historically employed a legal standard that permits no finding of a draw even in cases with no clear winner. The existence of such precedent, in light of stare decisis, would strongly militate against affirming the court of appeals in this case.

¶ 21 Aspen cites two cases in support of this argument: ProMax Development and J.V. Hatch Construction. We have examined both cases, and conclude that despite Aspen’s assertions, the courts in both cases had no reason to consider the issue of whether section 38-1-18 permits a court to find a draw, with no “successful party” entitled to attorney fees. Rather, the main issue in ProMax Development was whether there had been sufficient evidence of an accord and satisfaction to justify the defendants’ victory in the mechanic’s lien foreclosure action. 2000 UT 4 at ¶ 17, 998 P.2d 254. The defendants apparently had no counterclaims in the case, id. at ¶ 2-9, and won a complete and unequivocal victory on the accord and satisfaction issue. Id. at ¶ 33. Thus, far from thoughtfully applying some “historical legal standard” that permits no finding of a draw under appropriate circumstances, the court had no reason to consider the issue at all.

¶ 22 The same is true with J.V. Hatch Construction. The main issue there was whether a successful mechanic’s lien claimant’s prima facie case for attorney fees required proof that the claimant had properly mailed notice of the lien to the defendant. 971 P.2d at 11-12. The court held that such proof was not required as part of the claimant’s case for attorney fees, and that instead it was the defendant’s burden to show that attorney fees were precluded by the hen claimant’s failure to properly mail notice of the lien. Id. As in ProMax Development, but unlike the instant case, there was no indication that each party had sued the other and partially won and lost. The identity of the “successful” or “prevailing” party was not remotely at issue. Our review of these and other cases confirms that we have never previously applied any standard that precludes a finding of a draw in a situation like the one before us.

¶ 23 The next issue is whether the flexible and reasoned approach is consistent with section 38-1-18 of the Utah Code. Aspen argues that it is not consistent because Mountain States II was based on a contractual “prevailing party” attorney fees provision, while mechanic’s lien cases such as this one involve a “very specific statutory framework mandated by the legislature.” While this is a distinction, Aspen provides no meaningful analysis explaining why the flexible and reasoned approach is incompatible with the statutory framework. The court of appeals, on the other hand, concluded that “application of our ‘prevailing party’ jurisprudence to section 38-1-18 does not detract from its objective.” Whipple II, 2002 UT App 73, ¶ 12, 47 P.3d 92. We agree.

¶ 24 If Utah’s mechanic’s lien is a “statutory creature[ ],” AAA Fencing Co. v. Raintree Dev. & Energy Co., 714 P.2d 289, 291 (Utah 1986) (per curiam), then section 38-1-18 is one of that creature’s sharper claws. The purpose of the mechanic’s lien is to protect those whose labor or materials have enhanced the value of property. Id. Section 38-1-18 strengthens that protection by ensuring that someone who successfully uses a mechanic’s lien to enforce a payment obligation for such enhancement will not ultimately bear the legal costs of that enforcement action. It also functions as a penalty for one who wrongly fails to pay for enhancement to his property. Simultaneously, it has the effect of discouraging abuse of the lien process by creating a strong disincentive for a would — be litigant to wrongly inflict a mechanic’s lien on a property owner whose property was not actually enhanced. See also Utah Code Ann. § 38-1-25 (2001) (“Abuse of lien right-Penalty”). Theoretically, therefore, it should reduce the number of mechanic’s liens that are filed, and encourage property owners against whom such liens are rightfully filed to keep attorney fees low by settling quickly. At the same time, section 38-1-18 should also discourage the filing of frivolous and unsupportable mechanic’s liens, because a mechanic’s lien plaintiff who is not successful must pay the defendant’s attorney fees.

¶25 The question, then, is whether the flexible and reasoned approach to determining which — if any — party was successful defeats the self-evident purposes of section 38-1-18. We believe that it furthers, rather than hinders, the statute’s objectives. It ensures that only parties that are genuinely “successful” according to the trial court’s common sense logic will be able to extract their attorney fees from their opponents. Aspen seeks a rigid rule that would deprive trial courts of their power to apply their discretion and common sense to this issue, and would require a trial court to award fees to whichever party emerged with a net judgment, no matter how insignificant. Such a result is not required by the statute.

¶ 26 Instead, we agree with the court of appeals, in this case and Mountain States II, that rigid application of the net judgment rule can result in unreasonable awards of attorney fees. We also agree that trial courts should, as permitted by statute and other applicable law, use their common sense in deciding whether a party was “successful” in bringing or defending against a mechanic’s lien enforcement action. See Whipple II, 2002 UT App 73 at ¶ 19, 47 P.3d 92. This approach requires not only consideration of the significance of the net judgment in the ease, but also “looking at the amounts actually sought and then balancing them proportionally with what was recovered.” Id. at ¶ 19 (citing Stichting Mayflower v. Newpark Res., 917 F.2d 1239, 1248 n. 9 (10th Cir.1990) (“We think the district court should attempt to weigh the relative success of the parties[’] ... claims if it can find a reasoned basis for doing so.”)). Depending on the unique circumstances of a given case, it will often — but not necessarily always — make sense for the trial court to analyze the issue using the same kinds of “additional perspectives” that the Mountain States II court employed. Our review of the case law persuades us that in the great majority of eases, the flexible and reasoned approach will identify a clearly successful party that is genuinely entitled to receive attorney fees. However, because we are adopting a “flexible and reasoned” approach, we leave it to the trial courts’ discretion to decide which additional common sense perspectives are most appropriate to consider in future cases.

III. APPLICATION OF THE FLEXIBLE AND REASONED APPROACH TO THIS CASE

¶ 27 Having decided that it is appropriate to apply the flexible and reasoned approach to the instant case, we turn our attention to whether the court of appeals correctly affirmed the trial court’s application of that approach. The trial court explained its primary reason for awarding no attorney fees as follows:

The Court feels where plaintiff was claiming roughly $13,000 on the Thayne’s Canyon property (allowing for the $17,000 already paid), and where defendant was claiming roughly $25,000 in damages for the negligence of the plaintiff, and further where the net recovery is only $527, the Court is of the opinion that this is essentially a “draw” and no attorney’s fees should be awarded. The Appellate Courts in our state have acknowledged that the “net recovery rule” is essentially a starting point and need not be applied strictly under all circumstances.

¶28 Although lacking in detail, the trial court’s explanation of its rationale is adequate because it demonstrates that the court correctly considered common sense factors in addition to the net judgment. It is apparent from the trial court’s reasoning that it believed Aspen’s net recovery of only two percent (2%) of its claimed damages was insufficient to make it the “successful party.”

¶29 As noted above, Aspen insists that both the trial court and the court of appeals mistakenly believed that Whipple sought only $13,000, when it appears that Whipple actually sought $30,641.35. See supra note 3. Nevertheless, the trial court’s conclusion is bolstered by the fact that Whipple was not completely defeated in its attempt to foreclose the Thayne’s Canyon mechanic’s lien. One of the recurring themes in Aspen’s briefing is that ‘Whipple was not successful in obtaining a mechanic’s lien foreclosure as to the Thayne[’]s Canyon property.” That statement is misleading, however, because while Whipple did not win one hundred percent (100%) of what it claimed under the Thayne’s Canyon mechanic’s lien, it did win much of what it sought, including the largest single element of that lien: the plumbing work. Whipple claimed $14,158 for plumbing work, and won $12,158 after the court deducted $2,000 in offsets. Additionally, Whipple claimed and recovered $10,200 for the value of “sewer laterals” that it added to the property. Finally, Whipple recovered $100 of the $780 it sought for backhoe services at the Thayne’s Canyon property. Thus, Whipple prevailed on over $24,000 of the approximately $30,000 in claims under the Thayne’s Canyon mechanic’s lien.

¶ 30 There is a lot more to this story than just the net judgment or the fact that Whipple did not recover everything that it sought through its mechanic’s lien. Aspen had only partial success defending itself from Whipple’s claimed mechanic’s lien on the Thayne’s Canyon property, and it also had only partial success on its counterclaim for negligence. Whipple likewise had only partial success, both in seeking to foreclose its mechanic’s lien and in defending itself from Aspen’s counterclaims. The mere fact that, once the dust settled, Aspen walked away with a net judgment of $527, does not convince us that Aspen was the “successful party” as we interpret that term in section 38-1-18 of the Utah Code. Thus, we find that the court of appeals correctly affirmed the trial court’s finding of a draw in this case.

CONCLUSION

¶ 31 The court of appeals correctly affirmed the trial court’s interpretation of the term “successful party” in section 38-1-18. The term is synonymous with the term “prevailing party” as construed in non-mechanic’s lien cases, and neither the language of Utah’s mechanic’s lien statute nor the self-evident purposes of section 38-1-18 preclude application of the flexible and reasoned approach to determining which, if any, party is entitled to an award of attorney fees. The common sense rationale supporting the Mountain States II and Occidental/Nebraska cases is sound, and absent a legislative mandate to the contrary, we see no reason why it should not be applied in the context of section 38-1-18.

¶32 Moreover, the flexible and reasoned approach was correctly applied in this case. The net judgment Aspen received was very small in relation to both parties’ competing claims, and Aspen won less than one-third of what it sought on its counterclaim. Whipple was largely, though not wholly, successful, both in foreclosing its mechanic’s lien on the Thayne’s Canyon property, and in defending itself against Aspen’s counterclaim. The court of appeals, after using the net judgment as a starting point, carefully weighed the relative success of the parties on their competing claims, balancing the amounts each party sought with the amounts each party recovered. The court of appeals thus correctly applied the flexible and reasoned approach to determining the successful party under section 38-1-18 of the Utah Code. Affirmed.

¶ 33 Associate Chief Justice WILKINS, Justice DURRANT, Justice PARRISH, and Justice NEHRING concur in Chief Justice DURHAM’S opinion.

      . For the sake of simplicity and consistency with the lower court decisions in this case, our decision refers to Aspen alone when discussing defendants and their arguments.

      . Whipple prevailed on these two lien foreclosure actions and the trial court ruled that Whipple, as the "successful party” pursuant to section 38-1-18 of the Utah Code, was entitled to the attorney fees allocable to these liens. Guy and Aspen did not seek review of these judgments, and they are not at issue in this case.

      . The trial court and the court of appeals both believed that $13,000 was the amount of the lien, once $17,000 already paid by Aspen was taken into account. A.K. & R. Whipple Plumbing & Heating v. Guy, 2002 UT App 73, ¶ 20, 47 P.3d 92 (Whipple II). Aspen protests that this is a mathematical error, and that the actual amount of Whipple's lien was $30,641.35. In response, Whipple argues for yet another figure as the amount of its Thayne's Canyon lien: $23,780.55. Whipple bases this argument on its unsupported assertion in its brief that the $6,660.80 discrepancy between Whipple’s figure and Aspen's figure stems from Aspen's erroneous inclusion of a claim for relocating a municipal water line that was never part of the Thayne's Canyon lien.
      Based upon the parties' apparent agreement that the court of appeals and the trial court were mistaken, and based upon our own review of the record and the exhibits attached to Aspen's briefs, we conclude that Whipple's mechanic’s lien sought more than the $13,000 figure that the courts below used. Furthermore, because Whipple has failed to point us to a part of the record demonstrating that the municipal water line relocation claim was not part of the Thayne's Canyon lien or that Whipple had raised this argument below, we use Aspen's figure of $30,641.35. We point out, however, that given the analysis that follows in this opinion, the $6,660.80 discrepancy does not affect the outcome of the case.

      . While this is the version of section 38-1-18 that is controlling for the purposes of this case, the legislature amended it in 2001 primarily by adding two additional subsections. See Utah Code Ann. § 38-1-18 (2001).

      . 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.
      In this case, because Aspen’s appeal concerned only Whipple's mechanic’s lien action with respect to the Thayne's Canyon property, we confine our analysis to those Aspen counterclaims relating directly to the mechanic's lien action on that property. However, if Aspen’s appeal had concerned Whipple’s other two foreclosure actions or involved counterclaims not directly related to the work that was the basis for Whipple's mechanic's lien claim on the Thayne's Canyon property, application of the flexible and reasoned approach would remain the same. Any recovery by Aspen with respect to other properties or other unrelated work on the Thayne's Canyon property would be irrelevant in determining which party was the “successful party” under the mechanic's lien statute.

      . This section of the Utah Code provides:
      (1) Any person entitled to record or file a lien under Section 38-1-3 is guilty of a class B misdemeanor who intentionally causes a claim of lien against any property, which contains a greater demand than the sum due to be recorded or filed:
      (a) with the intent to cloud the title;
      (b) to exact from the owner or person liable by means of the excessive claim of lien more than is due; or
      (c) to procure any unjustified advantage or benefit.
      (2) In addition to any criminal penalties under Subsection (1), a person who violates Subsection (1) is liable to the owner of the property or an original contractor or subcontractor who is affected by the lien for the greater of:
      (a) twice the amount by which the wrongful lien exceeds the amount actually due; or
      (b) the actual damages incurred by the owner of the property.
      Utah Code Ann. § 38-1-25 (2001).


text:
    2004 UT 51
    LKL ASSOCIATES, INC., Plaintiff, v. Ann M. FARLEY; Janet Heidt; James E. Caruso; William Jackson; Jillian Anderson; Guy G. Berryessa; Flagstar Bank, FSB; Approved Financial Corp.; Wells Fargo Home Mortgage, Inc.; Advance Mortgage Corporation; Superior Insulation Co.; Western Wholesale Flooring; Anderson Lumber Company; Superior Plumbing and Heating, Inc.; JM Mechanical/Service Experts; Aqua Balance, Inc.; Rob Chlarson; Dennis Skiby; and John Does 1 through 20, Defendants and Appellee. Superior Insulation Co., Inc., Third-Party Plaintiff, v. CraCar Construction Company; Peter Van Veldhuizen; and Charlene Van Veldhuizen, Third-Party Defendants and Appellant, v. Curt G. Hood; Jennifer C. Smith; Kimcee Mcanally; M.S. Thirty, LLC; Richard Silliman; Shelly A. Silliman; Stephen J. Johanson; Janyce L. Johanson; James Welzien; Robert G. Stanley; John F. Guertin; Harry R. Bruestle; Susan Bruestle; James G. Sumner; Ann E. Sumner; Charles H. Seebock and Joy C. Seebock, Trustees of the Seebock Family Trust; Carey C. Logsdon; Craig R. Hellmers; Bear Hollow Village, LLC; Darrel E. White; Beth Ellen White; Douglas Robinson; Constance Robinson; Howard E. Butt; Patricia M. Butt; Ted Yarborough; John Scott Lewis; Andrew Manilla; Laurence Franciose; and John Does 21 through 240, Third-Party Defendants and Appellee.
    No. 20020626.
    Supreme Court of Utah.
    June 22, 2004.

      Bryan H. Booth, Clark B. Fetzer, Salt Lake City, for CraCar Construction Company.
    Ronald G. Russell, James Ahlstrom, Salt Lake City, for Ann M. Farley and Curt G. Hood.
   WILKINS, Associate Chief Justice:

¶ 1 CraCar Construction Company (“Cra-Car”), a third-party defendant, appeals the trial court’s grant of summary judgment to a number of condominium owners who were defendants in an action brought by LKL Associates, Inc. (“LKL”) to foreclose mechanic’s liens against the individual condominiums. CraCar argues that the trial court incorrectly applied Utah Code sections 38-11-102(20) and -107(1) (2001), which prohibit the filing of certain mechanic’s liens on “residences,” as defined therein. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 The defendant condominium owners purchased individual units in a ten-unit condominium building that was part of an even larger development. The developer of the condominium project was the now-insolvent Bear Hollow Village, LLC (“Bear Hollow”), which hired CraCar to be the general contractor on the project. In turn, CraCar hired many subcontractors in its construction of the development. Bear Hollow sold some of the condominium units without paying CraCar. CraCar and its subcontractors then filed mechanic’s liens against the condominiums, with some of the subcontractors later initiating actions to foreclose their liens. CraCar was named as a third-party defendant by two of those subcontractors.

¶ 3 The owners of individual condominium units filed motions for summary judgment on grounds that the mechanic’s liens filed against their property were improper under portions of the Residence Lien Restriction and Lien Recovery Fund Act (“Lien Restriction Act” or the “Act”), Utah Code Ann. §§ 38-11-102(20) and -107(1) (2001), because the condominium units constitute “residences.” Under certain circumstances, the Act provides that no mechanic’s lien may be maintained against a “residence.” Id. § 38-11-107(1). For purposes of applying the protection afforded by the Act, “residence” is given a specific, narrow definition. “ ‘Residence’ means an improvement to real property used or occupied, to be used or occupied as, or in conjunction with, a primary or secondary detached single-family dwelling or multifamily dwelling up to two units.” Id. § 38-11-102(20). CraCar and its subcontractors opposed the motions because they believed the units did not qualify as “residences” under the Act.

¶ 4 The trial court granted the unit owners’ motions for summary judgment, reasoning that the units were “residences” under the Lien Restriction Act because of the character of their ownership. The trial court concluded that this determination was compelled by various provisions of the Condominium Ownership Act and the principle of statutory construction that mandates the avoidance of unconstitutional interpretations. CraCar appeals, renewing the arguments it made below.

ANALYSIS

I. STANDARD OF REVIEW

¶ 5 We review the trial court’s grant of summary judgment for correctness. Prince, Yeates & Geldzahler v. Young, 2004 UT 26, ¶10, 94 P.3d 179. The facts are undisputed and CraCar’s appeal hinges on questions of statutory interpretation, which are also properly reviewed for correctness. Bearden v. Croft, 2001 UT 76, ¶ 5, 31 P.3d 537.

II. LIEN RESTRICTION ACT

¶ 6 An owner of a residence, as defined by the Lien Restriction Act, is protected from mechanic’s liens filed by a person or entity with whom the owner did not directly contraet. Utah Code Ann. § 38-11-107(1) (2001). A “[residence” is “an improvement to real property used or occupied, to be used or occupied as, or in conjunction with, a primary or secondary detached single-family dwelling or multifamily dwelling up to two units.” Id. § 38-11-102(20). The trial court believed that this definition of “residence” was broad enough to encompass the condominium units on which the liens in this case were filed. We disagree. A single unit of a ten-unit building is neither a detached single-family dwelling, nor a multifamily dwelling of two or fewer units.

¶7 Statutes are to be construed according to their plain language. Dick Simon Trucking, Inc. v. Utah State Tax Comm’n, 2004 UT 11, ¶ 17, 84 P.3d 1197. This court also interprets statutes to give meaning to all parts, and avoids rendering portions of the statute superfluous. Labelle v. McKay Dee Hosp. Ctr., 2004 UT 15, ¶ 16, 89 P.3d 113. Applying these rules to the statutory language quoted above, it is apparent that no reasonable reading of the language in question supports the trial court’s holding.

¶ 8 Section 38-11-102(20) clearly defines “residences” as only detached single-family dwellings or multifamily dwellings containing up to, but not more than, two units. The condominium owners argue that the statute does not necessarily identify specific properties for protection, but, rather, suggests that a certain character of ownership is to be protected. Given that they own only single units within the development, they argue that they are entitled to the protections of section 38-11-107(1). While their argument might represent good policy, the statutory language clearly limits the Act’s protections to either the typical single-family home, or a duplex. In order for this court to accept the owners’ position and affirm the trial court, we would be forced to ignore a clear statutory mandate and render the definition chosen by the legislature meaningless. Accordingly, we hold that the condominium units in this case, located in a building containing ten units, do not qualify for the protections of the Lien Restriction Act.

¶ 9 The owners argue that their construction of the Act is compelled by the maxim that a court should avoid a statutory interpretation that may be unconstitutional. See, e.g., American Fork City v. Pena-Flores, 2002 UT 131, ¶ 9, 63 P.3d 675 (noting that where more than one statutory interpretation is plausible, a court should avoid potentially unconstitutional interpretations). However, the owners ignore the fact that this rule is only applied if the different interpretations of the statute are plausible. Their proposed interpretation of section 38-11-102(20) is completely implausible. Two simply does not mean ten, and detached does not mean attached. The owners own single-family dwellings attached to nine other units. Therefore, we need not apply this rule of construction in this case.

III. CONDOMINIUM OWNERSHIP ACT

¶ 10 The Condominium Ownership Act, Utah Code Ann. §§ 57-8-1 to -36 (2000 & Supp.2003), contains provisions applicable to condominium developments, which apply notwithstanding a conflicting provision of law. Id. § 57-8-35(1). Therefore, if any part of the Condominium Ownership Act conflicts with the above interpretation of the Lien Restriction Act, we must apply the Condominium Ownership Act. The trial court concluded that section 57-8-19 of the Condominium Ownership Act, which provides for the creation of liens on condominium units, and section 57-8-27, which governs the taxation of units, required that the units in this case be treated as single-family dwellings under the Lien Restriction Act. However, the cited sections compel no such result.

¶ 11 Section 57-8-19 comes nearest to providing the protection the owners seek, but it stops short. It allows liens or other encumbrances to be filed against condominium units “in the same manner and under the same conditions in every respect as liens or encumbrances may arise or be created upon or against any other separate parcel of real property subject to individual ownership.” Id. § 57-8-19(1). Read in isolation, this section could be viewed as affording the owners the protection they seek. However, when the remaining portion of the section is read, it is clear that section 57-8-19 does not override the definition of “residence” in the Lien Restriction Act, but merely recognizes and resolves one of the unique problems of condominium ownership.

¶ 12 Typically, condominium owners own an individual unit and an undivided fractional interest in common areas. The existence of other units and common areas might, without clarification, allow the filing of liens against an entire project for work done on individual units and common areas, thus jeopardizing innocent owners’ interests. Section 57-8-19 addresses this problem by declaring that individual units are to be treated separately for lien purposes. Thus, one property owner is protected from the other owners’ non-payment. The very same subsection the owners cite also contains a provision stating that, under certain circumstances, each owner has consented to work or services performed in common areas. Id. Read as a whole, section 57-8-19 merely clarifies the procedure for filing liens against condominium units, which have unique characteristics. It does not alter the definition of “residence” found in the Lien Restriction Act.

¶ 13 Likewise, section 57-8-27 does not require that the owners’ units be deemed “residences.” This section merely addresses a condominium’s status for tax purposes. It declares that each unit and the accompanying fractional interest in common areas is to be taxed as a separate parcel. Id. § 57-8-27(1). Thus, coupled with section 57-8-35(1), which treats condominium developments as subdivisions, each unit is given a separate parcel number and pays separate property taxes, so that no owner is punished for the non-payment of taxes by another. Nothing in the Lien Restriction Act conflicts with this approach to taxation.

CONCLUSION

¶ 14 The trial court’s grant of summary judgment is reversed because neither the Lien Restriction Act nor the Condominium Ownership Act prevents the filing of mechanic’s liens under these circumstances, when a condominium is part of a ten-unit development. Reversed and remanded for proceedings consistent with this opinion.

¶ 15 Justice DURRANT, Justice NEHRING, Judge TAYLOR, and Judge BOHLING concur in Associate Chief Justice WILKINS’ opinion.

¶ 16 Having disqualified themselves, Chief Justice DURHAM and Justice PARRISH do not participate herein; District Judge JAMES R. TAYLOR and District Judge WILLIAM B. BOHLING sat.

      . We use "duplex” to describe so-called "twin-homes” and other variations of a duplex.

      . We do not reach the question of whether the statute is actually unconstitutional because the owners have not separately challenged its constitutionality, nor has the trial court considered and ruled on the issue.