Globe Contracting v. Hour

2025 UT App 98

THE UTAH COURT OF APPEALS

GLOBE CONTRACTING LLC,
Appellee,
v.
RAYMOND R. HOUR, KIMBERLY TAING, HOUR TAING ENTERPRISE
LLC, AND HOUR CHIROPRACTIC CLINIC INC.,
Appellants.

Opinion
No. 20240058-CA
Filed July 3, 2025

Third District Court, Salt Lake Department
The Honorable Coral Sanchez
No. 170900003

Jeffrey T. Colemere, Tamara J. Hauge, and
Emily Adams, Attorneys for Appellants
Benjamin S. Ruesch, Tony G. Jones,
Travis Dunsmoor, and Jeannette Barney,
Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1 Dr. Raymond Hour and Globe Contracting LLC (Globe)
entered into a contract in which Globe agreed to construct an
office building for Hour’s chiropractic clinic. After Hour failed to
make the last three payments that were due under the contract,
Globe sued, raising several causes of action relating to breach of
contract. Hour counterclaimed, asserting that Globe had breached
the contract first—and, as a result, that Hour had been justified in
not continuing to pay Globe for its work. At the close of a bench
trial, the district court ruled that Hour had breached the contract
and that he had no justification for doing so. In its findings of fact
Globe Contracting v. Hour

and conclusions of law, the district court awarded Globe
damages. And after several months of posttrial litigation, the
court ordered Hour to pay prejudgment interest, costs, and
attorney fees.

¶2 Hour raises several issues on appeal. For the reasons set
forth below, we rule as follows:

• First, we affirm the district court’s determinations that
Hour was liable for breach of contract (and the other
associated claims).

• Second, we affirm the district court’s calculation of
Globe’s damages.

• Third, we reverse the district court’s awards of
prejudgment interest and costs to Globe, and we remand
for further proceedings on those awards.

• Finally, we reverse the district court’s award of attorney
fees to Globe, and we remand for further proceedings on
that award.

BACKGROUND 1

Contract and Dispute

¶3 Hour is a chiropractor, and Globe is a licensed general
contractor. In October 2015, Hour and Globe agreed to a contract
under which Globe would construct an office building for Hour’s

1. “On appeal from a bench trial, we view and recite the evidence
in the light most favorable to the trial court’s findings; we present
additional evidence only as necessary to understand the issues on
appeal.” Bountiful City v. Sisch, 2023 UT App 141, n.1, 540 P.3d
1164 (quotation simplified).

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chiropractic clinic. Under the terms of the contract, Hour was to
pay Globe $650,000 “subject to additions and deductions for
written change orders.” Hour was required to pay Globe through
monthly “progress payments” that were due 30 days after Globe
sent Hour an application for payment, and Globe’s applications
for payment were to be sent “on or before the 30th day of each
month for labor and materials delivered to the jobsite during the
month.”

¶4 The contract stated that the monthly progress payments
could be “withheld” under four delineated circumstances:

1. Work is found defective and not remedied;

2. [Globe] does not make prompt and proper
payments to subcontractor;

3. [Globe] does not make prompt and proper
payments for labor, materials, or equipment
furnished;

4. Another contractor is damaged by an act for
which [Globe] is responsible.

¶5 The contract provided that construction was to “begin
within seven (7) days after issuance of building permit,” that work
was to “be substantially completed two-hundred and ten (210)
days after issuance of building permit,” and that “[a]ny request
for additional days [was to] be treated as a request for a change
order, and must be in writing before it will be considered by”
Hour. The contract further provided that the “times stated in” the
contract could be “extended by a change order” by Hour or when
Globe was “delayed in work progress by changes ordered, . . .
weather, . . . or other causes beyond [Globe’s] control or which
justif[ied] the delay.”

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¶6 The contract also stated that if Globe “default[ed] in
performances of any provision” from the contract “or fail[ed] to
carry out the construction in accordance with the provision of the
contract documents,” Hour was entitled to “terminate” the
contract “on thirty (30) days written notice to” Globe, or to instead
not terminate the contract but “make good the deficiency of which
the default consists, and deduct the cost from the progress
payment then or to become due to” Globe. Finally, the contract
contained an attorney fee provision, which stated that if “any
action is filed in relation to this Agreement, the unsuccessful party
in the action shall pay to the successful party, in addition to all the
sums that either party may be called on to pay, a reasonable sum
for the successful party’s attorney fees.”

¶7 The city issued a building permit on December 1, 2015. As
a result, a construction expert later testified at trial (and no party
has disputed on appeal) that, under the contract’s 210-day
provision, construction was expected to begin on December 7,
2015, and be “substantially completed” by July 5, 2016. In late 2015
and early 2016, however, there were construction delays caused
by “abnormally cold weather,” “rain fall and subsequent mud,”
and the discovery of “[c]oncealed debris” on the building site.

¶8 On June 7, 2016, Hour, through his attorney, sent a letter to
Globe stating that “as of this time, it is apparent that there is no
way the work can be completed by [the required] date.” Hour
informed Globe that he was giving “notice pursuant to the
contract that [Globe was] in default” and that he was also giving
“30 days notice of his termination of the contract.” On July 18,
2016, Hour’s attorney sent another letter to Globe stating that
because “the building [was] not substantially completed within
two hundred and ten days as required” by the contract, Globe was
“in default” and the contract was “no longer binding on . . .
Hour.”

¶9 But although these letters spoke of “termination,” Hour
later informed Globe that he would give it “till the end of

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September” to complete the project. 2 Moreover, during
construction, “Hour initiated 24 changes” to the project, “most of
which were substantial changes that affected the finished portions
of construction and were initiated after the date of Hour’s 30-day
notice to terminate” the contract “for lack of progress,” and at
least some of which were requested after the July 2016 letter.

¶10 Hour made timely payments for the first seven progress
payments, the seventh of which was linked to the June pay
application. But Hour did not make the eighth, ninth, or tenth
progress payments, which were due, respectively, at the end of
August, September, and October. Even though Hour stopped
paying, Globe continued with its construction work until the end
of September 2016.

¶11 On September 22, 2016, Hour notified Globe that he was
dissatisfied with the quality of the workmanship. On September
28, 2016, Hour terminated the contract. As of September 28,
however, both Hour and a new contractor that he had hired to
take over the project believed that the project “was substantially
complete.” The next day, the city performed a “scheduled”
inspection for temporary occupancy. The building did not pass
the inspection because, among other reasons, the stairwell doors
were not fire rated.

Complaint, Counterclaim, and Pretrial Litigation

¶12 In January 2017, Globe sued Hour, asserting a number of
claims. Those relevant to this appeal were claims for breach of
contract, breach of warranty, unjust enrichment, lien foreclosure,
breach of implied covenant of good faith and fair dealing, and

2. Hour has taken a similar view on appeal, agreeing that, after
the June and July letters, he “gave Globe an additional three
months—until September 2016—to finish” the project, and
further asserting that he finally “terminated” the contract on
September 28, 2016.

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intentional interference with contractual relations. In connection
with these claims, Globe requested damages, prejudgment and
postjudgment interest, and attorney fees. Globe filed the
complaint in the Third District Court, and it originally did so pro
se. A few months after Globe filed its complaint, attorneys who
were based in southern Utah filed a notice of appearance, and
those attorneys represented Globe throughout the ensuing several
years of litigation (and have continued to do so up through this
appeal). 3

¶13 Hour filed an answer that included a counterclaim against
Globe. In his answer, Hour asserted that he was justified in not
paying Globe—indeed, for even “terminat[ing] . . . the contract”—
because Globe itself had committed “material breaches of the
contract.” Hour elaborated on these assertions in his
counterclaim, alleging there that Globe had breached the contract
by, among other things, “failing to complete the work on the
project within 210 days[] without good cause,” performing
substandard and defective work, “hiring subcontractors who
were not licensed to do the work and/or not qualified for the work
they were hired” to do, and “failing to pay several of its
subcontractors who worked on the project.”

3. Under settled principles, a corporation is not entitled to “self-
representation because corporations are artificial entities that are
not allowed to represent themselves in court.” Hartford Leasing
Corp. v. State, 888 P.2d 694, 700 (Utah Ct. App. 1994); see also Tracy-
Burke Assocs. v. Department of Emp. Sec., 699 P.2d 687, 688 (Utah
1985) (“It has long been the law of this jurisdiction that a corporate
litigant must be represented in court by a licensed attorney.”);
CoBon Energy, LLC v. AGTC, Inc., 2011 UT App 330, ¶ 9 n.1, 264
P.3d 219. But Globe’s initial violation of this rule seems to have
been cured in short order.

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¶14 After a series of pretrial rulings, the case went to a bench
trial on the claims and counterclaims listed above. 4

¶15 At the close of discovery, and pursuant to court order, the
parties submitted direct examinations of their witnesses in written
form in early March 2020. Trial was scheduled to occur at the end
of March 2020, but it was delayed for nearly three years due to the
COVID-19 pandemic. A several-day bench trial was eventually
held in February and March 2023, at which time the parties were
able to cross-examine and then examine, on redirect, the witnesses

4. By way of background, there were several additional parties
and claims that did not make it to trial. These included the
following:
• Along with Globe, two individuals—Matthew Barlow and
Damir Alijagic—were listed as plaintiffs on the complaint.
Before trial, the district court dismissed all of the claims
asserted by Barlow and Alijagic in their individual
capacities.
• In addition to suing Hour, the plaintiffs sued Kimberly
Taing, Hour Taing Enterprise LLC, and Hour Chiropractic
Clinic Inc. With one exception, the district court dismissed
all of the claims against these additional defendants before
trial. The exception was the unjust enrichment claim,
which proceeded to trial against all of the defendants.
• Finally, this case was initially consolidated with a separate
construction lien case between Hour and Globe that also
involved one of Globe’s subcontractors. Before trial, the
district court granted summary judgment on behalf of
Globe, and no party has challenged that ruling in this
appeal.
Although the case involved, at various times, the additional
parties we’ve just identified, the parties on appeal have
consistently referred to the two sides as “Globe” and “Hour.”
We’ll follow suit throughout this opinion.

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whose direct examinations had been submitted years earlier in
written form.

¶16 As part of its submissions in 2020, Globe submitted a direct
examination of Matthew Barlow, who was Globe’s president and
a managing member. 5 In that written examination, Barlow stated
that he had previously filed a construction lien on the project for
$55,533.17, and that, at the time, Globe seemed to have intended
for this to reflect the amount that Globe believed that Hour still
owed to Globe. Before trial resumed in 2023, however, Globe
submitted a damages exhibit that requested $61,901.92 in
damages. During a hearing, Hour’s counsel explained that the
two sides had “talked about” certain “change orders” and had
accordingly “changed” certain numbers by way of “stipulation[].”
In a posttrial filing, Globe explained that while it had been
preparing for the 2023 trial, it had become aware of “certain
change orders that were either undisputed or not properly
accounted for” in the earlier estimate of damages, thus resulting
in the change.

Trial and Ruling

¶17 As indicated, the district court heard several days of
testimony in the spring of 2023. The court subsequently issued
findings of fact and conclusions of law. There, the court concluded
that Hour had breached the contract by “withholding payment on
the July 2016, August 2016, and September 2016 pay
applications.” The court further concluded that this was a
“material breach,” reasoning that in “construction contracts, no
other breach is more material to contractors than the unjustified
nonpayment to contractors and suppliers.”

¶18 The court then concluded that Hour’s nonpayments were
“not justified under the [c]ontract or Utah law.” At trial, Hour’s

5. As noted, Barlow was originally listed as a plaintiff, but the
court dismissed his individual claims before trial.

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principal contention was that, as of July 2016, he was justified in
not paying because of Globe’s delays. But the court rejected this
contention for two main reasons. First, the court noted that the
contract had set forth four reasons that would allow Hour to
withhold payments but that delays were not one of them, and the
court saw no other provision in the contract that allowed him to
“withhold payment due to time delay.” And the court declined to
infer that time was of the essence for purposes of this contract
given that, among other things, there was no “time is of the
essence” provision in the contract, and because, until the June
2016 letter, “Hour had not communicated to Globe that it was
imperative for the work to be substantially completed within 210
days.” Second, the court also held that, even if timeliness could be
viewed as a material requirement under the contract, the delays
that had occurred at the time that Hour stopped paying were
attributable to both weather and “change orders by Hour,” those
delays “were not the fault of Globe,” and “the date of substantial
completion was extended to November 29, 2016”—which was
well past the point at which Hour had breached the contract by
stopping his payments.

¶19 The court also addressed Hour’s contention that he was
justified in no longer paying because of defects in Globe’s
workmanship. The court specifically found that the
workmanship issues Hour pointed to at trial did not
actually “arise until September 22, 2016, months after Hour
decided to withhold payment,” that Hour had not notified Globe
of his complaints until September 22, and that Hour believed the
project “was substantially complete by September 28.” The court
further found that, even if the alleged problems did “require[]
correction,” Hour had not given Globe the opportunity to remedy
them as contemplated by the contract. 6 The court accordingly
concluded that the problems Hour identified “could not have

6. As noted, the contract allowed Hour to withhold payment if
work was “found defective and not remedied.” (Emphasis added.)

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been a basis for Hour withholding the progress payments in
earlier months.”

¶20 Given these determinations, the court concluded that Hour
was not justified in withholding payments. And for similar
reasons, the court also concluded that Hour had breached the
covenant of good faith and fair dealing.

¶21 Finally, the court determined that Globe’s claimed
damages were “reasonable,” awarded Globe $61,901.92 in
damages, held that Globe was entitled to foreclose on the property
based on its construction lien, and ruled that Globe was “entitled
to an award of reasonable attorney fees and costs as provided by
the [c]ontract and Utah Statute.”

Posttrial Litigation on Liability and Damages

¶22 Hour filed several posttrial motions and objections. In a
motion to alter or amend the court’s findings and conclusions,
Hour challenged the court’s conclusions that he was liable for
breach of contract and of the covenant of good faith and fair
dealing, arguing, among other things, that Globe had performed
defective work before Hour withheld any progress payments and
that Hour had given Globe notice and time to correct the defective
work in September 2016. Hour also argued that he was justified
in withholding progress payments due to Globe’s failure to pay
subcontractors. Hour additionally argued that the court’s
damages award was contrary to the evidence—namely, Barlow’s
initial testimony stating that Globe’s damages were only
$55,533.17.

¶23 At a hearing on Hour’s motion, Globe argued that Hour
was attempting to “relitigate issues” that “were already ruled on
by the [c]ourt.” And it further argued that none of the court’s
findings “were clearly erroneous.” The court took the “motion[]
under advisement,” and it later issued a brief written ruling
denying Hour’s motion to alter or amend. In doing so, it simply

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stated that it was “adopt[ing] the arguments made at the hearing
. . . and the briefing submitted by the parties.”

Posttrial Litigation on Prejudgment Interest, Attorney Fees, and Costs

¶24 After the court issued its initial findings of fact and
conclusions of law, Globe filed a proposed judgment that
included an award of prejudgment interest pursuant to Utah
Code section 15-1-1. (As indicated earlier, the complaint itself had
likewise requested an award of prejudgment interest.)

¶25 Globe also filed separate requests for both attorney fees
and costs. In support of the request for attorney fees, Globe
explained that it was seeking fees for “the legal work performed
for the successful litigation for (1) breach of contract, (2) breach of
warranty, (3) lien foreclosure, and (4) breach of implied covenant
of good faith and fair dealing.” Globe also included an attorney
fee affidavit that detailed the billing rates of the attorneys
involved and the time that each attorney spent on various tasks.
Of some note for this appeal, that affidavit (and, by extension, the
request) included many entries for travel time from southern Utah
to court proceedings in northern Utah where the trial was held. In
this application, Globe requested $72,066.00 in attorney fees.

¶26 In the request for costs, Globe asserted that it was entitled
to costs under rule 54 of the Utah Rules of Civil Procedure. In an
accompanying affidavit of costs, Globe’s attorneys itemized and
requested costs associated with filing fees, expert witness and
mediator fees, subpoena service, and transcripts, and they also
itemized and requested costs for such things as food for the
attorneys, flights, a VRBO housing rental, and other travel
expenses for the attorneys. Altogether, Globe sought $32,179.97 in
costs.

¶27 Without awaiting a response from Hour, the court issued a
judgment that awarded Globe the prejudgment interest, attorney
fees, and costs that it had requested.

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Globe Contracting v. Hour

¶28 Hour promptly objected. He first argued that there was no
basis for awarding prejudgment interest under either Utah Code
section 15-1-1 or the contract. Hour also argued that the attorney
fee request was unreasonable because, among other things, it
contained duplicative entries, asked for fees relating to motions
that Globe did not prevail on, and requested fees for time that the
attorneys had spent traveling. Hour also argued that “[w]here the
parties’ evidentiary submissions in support of a request for
attorney fees are deficient, so will be the court’s evaluation of
those fees.” (Quoting Foote v. Clark, 962 P.2d 52, 56 (Utah 1998).)
Finally, with respect to costs, Hour argued that the request was
improper because it asked for costs that are not allowable under
rule 54 of the Utah Rules of Civil Procedure.

¶29 Globe soon filed a detailed response to Hour’s objections.
As part of this response, Globe added an additional justification
for its requests for prejudgment interest, attorney fees, and costs—
namely, that these were all justified under Utah Code section 13-
8-5, which Globe broadly contended was applicable to “all
construction contracts relating to construction work or
improvements.” 7 (Quoting Utah Code § 13-8-5(2)(a).) Relying on
this statute, Globe “revised” its earlier request for prejudgment
interest and now sought the higher interest rate that it contended
was awardable under section 13-8-5. With respect to costs, Globe
argued that even if costs were limited under rule 54, the court had
“sound discretion” to award additional costs under section 13-8-
5. And with respect to attorney fees, Globe contended that it was
entitled to attorney fees under both the parties’ contract and the
“statute,” in an apparent reference to section 13-8-5. Finally, Globe
contended that its request for attorney fees—including fees
associated with travel time—was reasonable.

7. In a subsequent filing, Globe said that, while preparing this
response, it had “discovered” that its earlier request for
prejudgment interest had inadvertently been based on section 15-
1-1, as opposed to section 13-8-5.

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¶30 The parties then engaged in substantial litigation about the
prejudgment interest, attorney fees, and costs issues. In the course
of this litigation, the parties took starkly contrasting views of
whether section 13-8-5 applied to this case: Hour argued that the
statute did not apply because Globe had not complied with
certain requirements set forth therein, while Globe argued that it
did apply and was in fact “created to deter the exact harm
suffered by Globe.”

¶31 The court held a hearing on the various outstanding
motions. It subsequently issued a short order stating that it was
ruling in Globe’s favor based on “the arguments made at the
hearing” and in “the briefing.” The court later issued an amended
judgment that expressly awarded prejudgment interest pursuant
to section 13-8-5, seemed to link the award of attorney fees and
costs to that statute as well, and now included additional time that
Globe’s attorneys had spent litigating the posttrial motions. This
award included the following:

• $61,901.92 in damages;

• $108,798.14 in prejudgment interest;

• $98,531.00 in attorney fees; and

• $32,179.97 in costs.

ISSUES AND STANDARDS OF REVIEW

¶32 On appeal, Hour first argues that the district court erred in
concluding that he breached the contract when he stopped paying
the progress payments. As detailed below, the arguments
presented on appeal involve the interpretation of the contract and
a review of the district court’s findings regarding the alleged
breaches. “The interpretation of a contract is a question of law,
which we review for correctness, giving no deference to the ruling

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Globe Contracting v. Hour

of the district court.” Richman & Richman LLC v. Redmond, 2023 UT
App 158, ¶ 18, 542 P.3d 130 (quotation simplified). “Whether a
party performed under a contract or breached a contract is a
question of fact,” iDrive Logistics LLC v. IntegraCore LLC, 2018 UT
App 40, ¶ 43, 424 P.3d 970, and the district court’s fact findings
“enjoy a high degree of deference” and will be “overturned only
when clearly erroneous,” Randolph v. State, 2022 UT 34, ¶ 18, 515
P.3d 444 (quotation simplified).

¶33 Second, Hour argues that the district court’s damages
calculation was not supported by the evidence. “The award of
damages is a factual determination that we review for clear error.”
Saleh v. Farmers Ins. Exch., 2006 UT 20, ¶ 29, 133 P.3d 428.

¶34 Third, Hour argues that the district court erred in
determining that Globe was entitled to prejudgment interest and
costs. As a general matter, a district court’s “decision to award
prejudgment interest presents a question of law which we review
for correctness.” Encon Utah, LLC v. Fluor Ames Kraemer, LLC, 2009
UT 7, ¶ 11, 210 P.3d 263 (quotation simplified). As indicated, the
awards of both prejudgment interest and costs were based on the
court’s conclusion that Utah Code section 13-8-5 applied.
“Matters of statutory construction are questions of law that are
reviewed for correctness.” Id. (quotation simplified). 8

8. Costs awards are generally “reviewed under an abuse of
discretion standard.” Jensen v. Sawyers, 2005 UT 81, ¶ 140, 130 P.3d
325 (quotation simplified). But “legal errors, such as the incorrect
interpretation of a statute or the application of an improper legal
standard, are usually an abuse of discretion,” Hillam v. Hillam,
2024 UT App 102, ¶ 26, 554 P.3d 1137 (quotation simplified), and
it’s axiomatic that legal errors are reviewed for correctness, see
ASC Utah, Inc. v. Wolf Mountain Resorts, LC, 2013 UT 24, ¶ 23, 309
P.3d 201. As discussed below, we conclude that the costs award
in this case was based on an incorrect interpretation of a statute,
(continued…)

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¶35 Finally, Hour argues that the district court awarded Globe
unreasonable attorney fees. As our supreme court has explained:

Attorney fees are awarded only when authorized by
statute or by contract. The award of attorney fees is
a matter of law, which we review for correctness.
However, a trial court has broad discretion in
determining what constitutes a reasonable fee, and
we will consider that determination against an
abuse-of-discretion standard. The standard of
review on appeal of the amount of a trial court’s
award of attorney fees is patent error or clear abuse
of discretion.

Jensen v. Sawyers, 2005 UT 81, ¶ 127, 130 P.3d 325 (quotation
simplified).

ANALYSIS

I. Breach of Contract

¶36 As noted, Globe sued Hour for breach of contract, and
Hour then counterclaimed, asserting that he was justified in
stopping payments by Globe’s own breaches of the contract. At
the close of trial, the district court ruled in Globe’s favor.

¶37 On appeal, Hour does not challenge the district court’s
finding that he did not pay the “July 2016, August 2016, and
September 2016 pay applications,” nor does he challenge its
conclusion that, without justification, his nonpayments would
have been a “material breach” of the contract. Instead, as he did

as opposed to a discretionary decision about how much in costs
to award under an applicable rule, so we regard the portion of the
ruling that we’re reviewing as being one that’s initially reviewed
for correctness.

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below, Hour argues that he was justified in his nonpayments
because of Globe’s own breaches of the contract. More
specifically, Hour claims that by the time he stopped paying,
Globe had already breached in four ways: (A) performing
defective work; (B) failing to timely pay subcontractors; (C) failing
to timely complete the project; and (D) hiring an unlicensed
subcontractor.

¶38 As indicated, “defective” work and failing to make
“prompt and proper payments” to subcontractors were two of the
four conditions set forth in the contract that would allow Hour to
“withhold” the progress payments. The remaining two
justifications that Hour advances on appeal (not timely
completing the project and hiring an unlicensed subcontractor)
were not included in that list. As a result, Hour invokes what has
sometimes been referred to as the “first breach rule.” Under that
rule, “when one party materially breaches a provision of a
contract, the other party’s subsequent failure to perform a specific
obligation is excused if the promises are mutually dependent.”
Larson v. Stauffer, 2022 UT App 108, ¶ 26, 518 P.3d 175 (quotation
simplified); see also Cross v. Olsen, 2013 UT App 135, ¶ 25, 303 P.3d
1030 (“Under the first breach rule a party first guilty of a
substantial or material breach of contract cannot complain if the
other party thereafter refuses to perform.” (quotation simplified)).
Hour thus argues that because “the undisputed evidence shows
Globe breached first,” he was entitled to stop paying his
obligations under the contract.

A. Defective Work

¶39 Hour first argues that Globe breached the contract “by
performing noncompliant and defective work.” But the court took
evidence on this very issue throughout trial. In its ruling, the court
found that the workmanship issues Hour pointed to at trial did
not “arise until September 22, 2016, months after Hour decided to
withhold payment,” that Hour had not notified Globe of his
complaints until that same date, and that Hour still believed the

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project “was substantially complete by September 28.” The court
further found that, even if the alleged problems did “require[]
correction,” “Hour never gave Globe the ability to correct any
problems” related to the allegedly defective work “and therefore
was not justified in withholding the progress payments” on this
basis.

¶40 Hour challenges these findings on appeal, pointing to
evidence that, in his view, shows that the work was defective
before he stopped payments and that he gave Globe the
opportunity to remedy it. But in advancing these challenges, Hour
does not first marshal the evidence supporting the court’s
findings, much less account for that evidence. “A party
challenging a district court’s factual findings on appeal bears a
heavy burden of persuasion in demonstrating that the court’s
findings are clearly erroneous.” Pankhurst v. Pankhurst, 2022 UT
App 36, ¶ 15, 508 P.3d 612 (quotation simplified). The marshaling
obligation is properly understood as “a natural extension of an
appellant’s burden of persuasion.” State v. Nielsen, 2014 UT 10,
¶¶ 40–41, 326 P.3d 645, superseded by statute on other grounds as
recognized in State v. Richins, 2025 UT 10, 568 P.3d 1046. And a
party that is challenging a fact finding “will almost certainly fail
to carry its burden of persuasion on appeal if it fails to marshal
and respond to evidence or authority that could sustain the
decision under review.” In re Discipline of LaJeunesse, 2018 UT 6,
¶ 28, 416 P.3d 1122 (quotation simplified).

¶41 This was a complicated case that raised a host of fact-
intensive issues and resulted in a lengthy record. Because Hour
failed to comply with his marshaling obligations, we conclude
that he failed to satisfy his burden of persuading us that, in light
of the whole record (as opposed to the evidence that supported
his view of things), the findings recounted above were clearly
erroneous. And accepting those findings as true, we see no basis
for concluding that, on account of defective workmanship, Hour
was justified in withholding payment for the July pay application
or those that followed, given that evidence shows that the issues

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did not arise until later and Hour had not provided Globe with
the opportunity to remedy the problems. We therefore reject this
claim.

B. Payment to Subcontractors

¶42 Under the contract, Globe was required to “provide and
pay for all labor, materials, . . . and other services necessary for the
proper completion of work on the project in accordance with the
contract documents.” As indicated, one of the four conditions by
which Hour could withhold progress payments was a failure by
Globe to “make prompt and proper payments” to a subcontractor.
On appeal, Hour argues that Globe breached the contract by
failing to pay some of its subcontractors, thus justifying his
decision to stop paying.

¶43 As an initial matter, we note that the district court did not
specifically find, in its findings of fact and conclusions of law, that
Globe had not breached in this regard. But even so, “unstated
findings can be implied” if “it is reasonable to assume” that the
district court “actually considered the controverted evidence and
necessarily made a finding to resolve the controversy, but simply
failed to record the factual determination it made.” In re A.S., 2024
UT App 52, ¶ 20 n.6, 548 P.3d 181 (quotation simplified), cert.
denied, 554 P.3d 988 (Utah 2024); see also State v. Stewart, 2019 UT
39, ¶ 27, 449 P.3d 59 (noting that the supreme court has
“occasionally endorsed the propriety of a regime” in which an
appellate court may “assume that the trier of facts found facts in
accord with its decision despite the absence of express findings of
fact” (quotation simplified)). Here, it is reasonable to assume that
the district court impliedly found that Globe did not breach in this
regard. After all, Hour pleaded this issue in his counterclaim and
presented evidence on it at trial. At the close of trial, the district
court resolved the case through its mutually reinforcing
conclusions that (1) Hour breached and (2) Hour’s breach was not
justified by any breach from Globe. Moreover, after Hour again
raised the issue relating to nonpayment of subcontractors in his

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posttrial motion to amend, Globe’s response was that Hour was
attempting to “relitigate issues” that “were already ruled on by
the [c]ourt.” When the district court later denied that motion, it
did so based on its decision to “adopt[] the arguments” from the
parties. From all this, we think it clear enough that the district
court impliedly found that Globe did not breach by failing to pay
subcontractors.

¶44 So viewed, the record does not support Hour’s assertion
that he was justified in stopping payments based on any failure
by Globe to pay a subcontractor. To the contrary, the evidence
presented at trial showed that one of the particular subcontractors
in question didn’t even send an invoice for its work until August
24, 2016, and it further showed that Globe would have paid this
subcontractor out of the payment that was due to it at the end of
August, which, again, Hour never made. As Globe succinctly puts
it in its brief, it could not “pay subcontractors when Hour did not
pay Globe.” And it further shows that Globe did pay the other
subcontractors identified by Hour.

¶45 We therefore see no basis for concluding that, at the time
that Hour stopped paying, Globe had already materially breached
the contract by not paying any of the subcontractors.

C. Timely Completion

¶46 Hour next argues that by the time he stopped paying,
Globe had materially breached the contract by not timely
completing the building. As indicated, this seems to have been
the principal argument Hour made at trial. But at the close of
trial, the court rejected this argument for two reasons: first, it
held that Globe was not required to complete the project by July
2016, particularly given that time was not of the essence for
purposes of this contract; second, the court held that even if time
was of the essence, Globe had not violated its obligations at the
time that Hour stopped paying because the delays were
attributable to both weather and Hour’s own actions (namely,

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Hour’s change orders). We see no basis for overturning either
determination.

¶47 First, Hour challenges the court’s conclusion that time was
not of the essence for purposes of this contract. Hour
acknowledges that there was no such clause in the contract. But
he nevertheless points out that in Barker v. Francis, our supreme
court held that, even without such a clause, “the circumstances
surrounding the transaction can imply that the parties intended
timeliness of performance to be of paramount concern.” 741 P.2d
548, 552 (Utah 1987).

¶48 It’s not clear to us that Barker is as applicable here as Hour
claims it is. Barker involved a real estate purchase contract. Id. at
550. And we have since distinguished several time-of-the-essence
cases, in part, by noting that, like Barker, they involved the
“limited circumstances of a real estate escrow transaction.” iDrive
Logistics LLC v. IntegraCore LLC, 2018 UT App 40, ¶ 58 n.12, 424
P.3d 970. Hour has not pointed to any authority that arose outside
of the context of real estate contracts that allowed courts to imply
that time was of the essence.

¶49 Moreover, some authorities suggest that courts generally
do not imply that time was of the essence in the particular context
of construction contracts. See, e.g., 13 Am. Jur. 2d Building and
Construction Contracts § 49 (2025) (“As a general rule, time is not
of the essence of a building or construction contract in the absence
of a provision in the contract making it so; the mere statement of
a date in such a contract does not make time of the essence.”). As
explained by one respected treatise, because “[d]elays are
common in construction and building contracts for many
reasons,” “time is not ordinarily of the essence of a building or
construction contract,” and “[t]his rule holds true even where the
parties have expressly agreed to a specific time of performance in
their contract and even, according to some courts, where there is
a nonnegotiated boilerplate clause in the contract providing that

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time is of the essence.” 15 Williston on Contracts § 46:7 (4th ed.
2024).

¶50 Regardless, we have no need here to definitively determine
whether it can ever be legally possible to imply, from
circumstances alone, that time was of the essence for a particular
construction contract. This is so because we see no basis for
reversing the district court’s conclusion that it was not of the
essence here. Hour points to two circumstances that, in his view,
made time of the essence: (1) testimony suggesting that the lease
for the office building that he was using during the construction
was set to expire in October 2016, and (2) testimony that the
contractor he hired to replace Globe was aware of his anticipated
October 2016 move-in date. But Hour points to no testimony or
evidence showing that Globe was aware that Hour had to move
out of his prior building by October 2016, let alone testimony
showing that Globe was aware of this when the parties negotiated
the contract. Without such testimony or evidence, we see no basis
for concluding that there was a meeting of the minds on this
implied term. And in light of this, we cannot conclude that the
district court erred when it declined to recognize this as an
implied term.

¶51 Second, we also see no basis for reversing the district
court’s conclusion that, even if the 210-day provision could be
interpreted as a material provision, Globe did not breach
its obligations. As noted, with regard to the 210-day provision,
the contract expressly provided that Globe’s timing
obligations could be “extended by a change order” by Hour,
or instead when Globe was “delayed in work progress by
changes ordered” or by “weather.” In its ruling, the court
expressly held that, at the time that Hour stopped paying, the
delays in the project were attributable to both weather and
“change orders by Hour,” these delays “were not the fault of
Globe,” and “the date of substantial completion was extended to
November 29, 2016.”

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¶52 Hour challenges these determinations on appeal. But in
doing so, he fails to marshal the evidence supporting the court’s
findings about the weather delays—indeed, although this was
one of the district court’s express justifications for rejecting Hour’s
timing-related argument, the word “weather” appears just a
single time in Hour’s opening brief, and when it does, it’s in a
passing reference to the court’s ruling. Hour also fails to marshal
the evidence showing that Globe’s delays were attributable to his
own change orders. Regardless, we note that, marshaling
problems aside, there was evidence to support both
determinations. At trial, there was testimony and evidence about
the weather associated delays, including “abnormally cold
weather below freezing” in December and January that
“prevent[ed] work” on nine days, as well as “rain fall and
subsequent mud in January to April [that] delayed the
construction 21 working days.” There was also substantial
testimony about Hour’s change orders during the project,
including, of note, in June and July 2016. In addition, Globe also
called a construction expert at trial, who opined that based on the
various delays, which were “outside of [Globe’s] control,” the
revised substantial completion date for construction was
“November 29, 2016.” The district court appears to have credited
this testimony.

¶53 As a result, on the basis of this record and the arguments
presented to us, we are not persuaded that the court erred in its
determination that, at the time Hour stopped paying, Globe was
justified in the delays and therefore had not breached the contract.

D. Unlicensed Subcontractor

¶54 Under one of the terms of the contract, Globe “agree[d] not
to employ for work on the project any person unfit or without
sufficient skill to perform the job for which he or she was
employed.” At trial, the district court heard evidence that one of
the subcontractors who worked on the project did not “have a
license at the time of the construction.” The court also heard

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evidence suggesting that this subcontractor previously had a
“license for 20 years,” but the license had “expired” at some prior
point, and the court further heard evidence that Globe discovered
this “a little bit after” the work in question had been performed.

¶55 As with the issue relating to the nonpayment of
subcontractors, the district court did not specifically address this
in its findings of fact and conclusions of law. But for the same
reasons given above relating to that issue, we think it reasonable
to assume that the court impliedly found that Globe did not
breach in this regard. Again, the issue was tried and submitted to
the court, and the court’s ruling was premised on the reinforcing
notions that Hour had breached but Globe did not.

¶56 Contrary to the assertions advanced by Hour on appeal, we
see no basis for overturning the court’s implied determination
that Globe did not breach in this regard. This is so for two reasons.

¶57 First, we see no indication from this contract that this was
a breach. As indicated, the clause in question did not require all
subcontractors to have a “license.” Rather, it prohibited Globe
from employing subcontractors who were “unfit” and “without
sufficient skill.” Those terms were not further defined, and Hour
has not pointed to any evidence suggesting that the parties ever
agreed that these terms referred to a subcontractor’s licensing
status. If Hour had wanted to insist that all subcontractors must
be “licensed,” he could have negotiated that as a term of the
contract. Because he didn’t, “we decline to read such language
into the contract now.” Airstar Corp. v. Keystone Aviation LLC, 2022
UT App 73, ¶ 57, 514 P.3d 568; see also Bakowski v. Mountain States
Steel, Inc., 2002 UT 62, ¶ 19, 52 P.3d 1179 (“We will not make a
better contract for the parties than they have made for
themselves.”).

¶58 Second, we also note that the first breach rule is not
triggered by just any breach of the contract. Rather, it becomes
operative when the other party is “guilty of a substantial or

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material breach of contract,” Cross, 2013 UT App 135, ¶ 25
(quotation simplified), and “the promises are mutually
dependent,” Larson, 2022 UT App 108, ¶ 26 (quotation simplified).

¶59 On appeal, Hour points to a provision in the Utah
Construction Trades Licensing Act that requires contractors to be
licensed. And he likewise points to our decision in State v. Bohne,
where, in conjunction with a criminal prosecution of a contractor
for operating without a license, we held that the “legislative
purpose for the Construction Trades Licensing Act is to protect
the public from inept and financially irresponsible builders.” 2001
UT App 11, ¶ 11, 18 P.3d 514 (quotation simplified). We have no
quarrel here with the propositions that contractors and
subcontractors alike must comply with applicable licensing rules
and that any failure to do so can subject them to applicable
penalties. But this appeal does not involve a challenge to the
subcontractor’s licensing status, nor does it involve any discipline
that was or should have been imposed on Globe for unwittingly
employing an unlicensed subcontractor. Rather, this is an appeal
from a breach of contract action, and the more particular question
in front of us is whether it was somehow a material breach of the
contract for Globe to employ an unlicensed subcontractor.

¶60 While the record on this is somewhat sparse, it does
indicate that Hour was not even aware of the problem with the
subcontractor’s license until after he had stopped paying, and
while the record indicates that the subcontractor’s license had
lapsed, it does not indicate that this was due to some problem of
skill (as opposed to being for something like nonpayment of fees).
Having considered the matter, it seems to us that if the work
performed by the subcontractor was substandard in some
important way, this could have supported a claim of material
breach for defective work. As discussed above, however, Hour
has not persuaded us that there were any such problems of
workmanship at the time that he stopped paying. And Hour has
not separately persuaded us that the licensing status of the
subcontractors itself was so important to the parties that it would

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be a material breach of the contract for Globe to employ an
unlicensed subcontractor (even if the subcontractor was
otherwise providing capable work), particularly where the parties
didn’t think to include any language about the licensing status of
the subcontractors in the contract at all. Nor has he persuaded us
that his obligation to pay the monthly progress payments was in
any way “mutually dependent” on any unspoken understanding
that the subcontractors would have active licenses (as opposed to
simply being fit and capable of performing the work for which
they had been hired).

¶61 We therefore decline to reverse the judgment on this basis.
And because we have rejected each of Hour’s other challenges to
the court’s conclusion that he was liable for breach of contract, we
affirm that decision. 9

II. Damages

¶62 Hour next challenges the damages award, arguing that it
was flawed in two respects: first, Hour claims that Globe did not
lay a sufficient foundation for the revised estimate that it
submitted during the 2023 portion of the trial; and second, Hour
claims that there was insufficient evidence to support the ultimate
award. We disagree on both fronts.

¶63 First, Hour claims that the revised damages estimate was
inadmissible under rule 1006 of the Utah Rules of Evidence
because Globe did not call “a competent witness to establish the

9. Hour also argues that the district court erred in concluding that
he breached the covenant of good faith and fair dealing. In doing
so, Hour repeats the same arguments he made relating to the
breach of contract claim. Put differently, Hour simply contends
that because he did not breach the contract, he likewise did not
breach the covenant of good faith and fair dealing either. We reject
this argument for the same reasons that we rejected Hour’s
arguments relating to the breach of contract itself.

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necessary foundation for the summary and the underlying
records.” (Quoting Sunridge Dev. Corp. v. RB & G Eng’g, Inc., 2013
UT App 146, ¶ 20, 305 P.3d 171.) But as noted above, Hour’s
counsel affirmatively stipulated that Globe could submit the
revised estimate at trial. And in context, it seems that the point of
this stipulation was to relieve Globe of the necessity of going
through certain steps such as calling a foundational witness. Hour
has provided us with no legal basis for relieving him of this
stipulation. In light of it, we reject his assertion that Globe was
required to call a foundational witness before submitting the
revised damages estimate.

¶64 Second, Hour argues that, even if the revised estimate
could be submitted, the district court erred in basing its damages
award on it. Hour claims that Globe’s submission was nothing
more than an “incomplete estimate of costs.” By contrast, he
claims that he provided the court with “reasonably certain” lists
of “expenses” and “offsets.” In his view, because his evidence was
more precise than Globe’s, the court should have based the
damages award on his evidence, not Globe’s.

¶65 But as we’ve recently explained, “a district court can rely
on estimates in awarding damages if the estimate is the most
direct, practical and accurate method that can be employed.”
Capozzoli v. Madden, 2024 UT App 176, ¶ 29, 561 P.3d 727
(quotation simplified). Moreover, in cases like this one, our
appellate courts have recognized that the district court is
empowered to decide what evidence to accept and what amount
is necessary to make the plaintiff whole. See, e.g., Bevan v. J.H.
Constr. Co., 669 P.2d 442, 444 (Utah 1983) (“[T]he general rule of
damages . . . arms the trial court with the discretion to place the
litigants as nearly as possible in the position they would have
enjoyed had the contract not been breached.”); Wagstaff v. Remco,
Inc., 540 P.2d 931, 934 (Utah 1975) (“The fact that [the defendant]
may have actually spent the money on some of these accounts for
labor and materials does not necessarily compel a finding that it
is entitled to reimbursement therefor. It is only entitled to

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Globe Contracting v. Hour

reimbursement, and offset on the account, for whatever the trial
court believed upon competent evidence was the reasonable and
necessary amount for such labor and materials.”); see also
Yelderman v. Yelderman, 669 P.2d 406, 408 (Utah 1983) (noting that
“it is within the province of the fact finder to believe those
witnesses or evidence it chooses”); Knowlton v. Knowlton, 2023 UT
App 16, ¶¶ 59 n.13, 63, 525 P.3d 898 (noting that a district court
“is in the superior position to assess the weight of evidence” and,
in the context of a domestic case, affording discretion to district
courts in deciding which valuation of property to accept). And we
again note that the “award of damages is a factual determination
that we review for clear error.” Saleh v. Farmers Ins. Exch., 2006 UT
20, ¶ 29, 133 P.3d 428.

¶66 Here, the parties clearly disagreed about how much Globe
should be awarded in damages. But, by virtue of the stipulation,
Globe’s revised damages estimate was admissible. With that in
evidence, Hour has provided us with no persuasive support for
his assertion that the district court could not choose to credit it.
We therefore are not persuaded that the damages award was
clearly erroneous.

III. Prejudgment Interest and Costs

¶67 In its amended judgment, the district court awarded Globe
both prejudgment interest and costs pursuant to Utah Code
section 13-8-5. Hour now challenges those awards. In our view,
section 13-8-5 was inapplicable to this case, so we reverse those
awards and remand for further proceedings consistent with our
directions below. 10

10. The court initially awarded both costs and attorney fees “as
provided by the [c]ontract and Utah Statute.” As will be discussed
in Part IV, there was a basis in the contract for an award of
attorney fees, so we separately address the attorney fee award
(continued…)

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Globe Contracting v. Hour

A. The Section 13-8-5 Scheme

¶68 Utah Code section 13-8-5 has received very little treatment
in the caselaw. It has been cited in only two decisions, both of
which came from federal district courts (and one of which was
unpublished). See Industrious Service Group, Inc. v. Henry F.
Teichmann, Inc., No. 23-cv-00389, 2023 WL 6444049, at *1 (D. Utah
Oct. 3, 2023); Cross Marine Projects, Inc. v. Morton Salt, Inc., 396 F.
Supp. 3d 1037, 1039 (D. Utah 2019). It has not yet been cited by
any Utah appellate decision.

¶69 But having considered the matter here, we conclude that
this statute simply does not apply in this case and therefore could
not be used as the legal justification for an award of either
prejudgment interest or costs. To explain why, we think it
instructive to first discuss how this statute operates as a whole.
After all, when we interpret a statutory provision, we do so “in
light of its linguistic, structural, and statutory context,” and we
also consider the provision “in the context of the overall statutory
scheme.” Utah Am. Energy Inc. v. Labor Comm’n, 2021 UT App 33,
¶ 15, 484 P.3d 1195 (quotation simplified); see also Orten v. Utah
County, 2024 UT App 132, ¶ 28, 558 P.3d 900 (noting that “when
interpreting statutory schemes, Utah courts often apply the
whole-text canon, which calls on the judicial interpreter to
consider the entire text, in view of its structure and of the physical
and logical relation of its many parts” (quotation simplified)).

¶70 Section 13-8-5 applies to “all construction contracts relating
to construction work or improvements entered into on or after
July 1, 1999,” between various kinds of construction-related
entities. Utah Code § 13-8-5(2)(a). And the statute is largely

there. But because there was not a provision in the contract
entitling either party to an award of costs, Globe’s request for the
costs award needed to instead be justified by either a statute or a
rule. As indicated, the only statute the court ultimately pointed to
in support of the costs award was Utah Code section 13-8-5.

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structured around provisions from contracts relating to “retention
proceeds”—that term or some variant thereof appears repeatedly
throughout the statute, and as a function of both substance and
even grammar, it’s the lynchpin to understanding the statute’s
various terms. Of note, the term “retention proceeds” is
statutorily defined in subsection 13-8-5(1)(i) as being the “money
earned by a contractor or subcontractor but retained by the owner
or public agency pursuant to the terms of a construction contract
to guarantee payment or performance by the contractor or
subcontractor of the construction contract.” Id. § 13-8-5(1)(i)
(emphases added).

¶71 Section 13-8-5 has eleven subparts. For purposes of
understanding why this statute is inapplicable to this case, the key
parts of the scheme are these:

• Subsection (3) places certain limits on the amount of
retention proceeds that can be withheld—namely, the
“total retention proceeds withheld may not exceed 5% of
the total construction price.” Id. § 13-8-5(3)(b).

• Subsection (4) states that if “payment on a contract . . . is
retained or withheld . . . as retention proceeds, it shall be
placed in an interest-bearing account and accounted for
separately from other amounts paid under the contract.”
Id. § 13-8-5(4)(a). Subsection (4) then states that the
interest accrued on these retention proceeds must be “for
the benefit of the contractor and subcontractors” and
must be “paid after the project is completed and accepted
by the owner.” Id. § 13-8-5(4)(b)(i)–(ii). And it further
states that the retention proceeds and interest “are
considered to be in a constructive trust for the benefit of
the contractor and subcontractors who have earned the
proceeds.” Id. § 13-8-5(4)(d)(i).

• Subsection (5) states that “[a]ny retention proceeds
retained or withheld pursuant to this section and any

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Globe Contracting v. Hour

accrued interest shall be released pursuant to a billing
statement from the contractor” within 45 days of certain
defined events relating to the completion of the project.
Id. § 13-8-5(5).

• Subsection (7) states that the billing statement referred to
in subsection (5) must “include documentation of lien
releases or waivers.” Id. § 13-8-5(7).

• Finally, subsection (10)—which is the provision that the
district court ultimately invoked below—states that “[i]n
any action for the collection of the retained proceeds
withheld and retained in violation of this section, the
successful party is entitled to: (i) attorney fees; and
(ii) other allowable costs.” Id. § 13-8-5(10)(a).

¶72 Taken as a whole, section 13-8-5 thus sets forth a detailed
scheme under which, pursuant to the terms of a construction
contract, a party can retain certain funds, in certain amounts,
under certain delineated circumstances, and for the specific
purpose of guaranteeing performance by the other side. This
statute then contemplates that these retained funds will be released
to the contractor once work is completed. In this sense, this statute
essentially sets forth something of an escrow scheme for
construction contracts. Indeed, the title of the statute itself refers
to the creation of an “interest-bearing escrow account.” 11

11. “We recognize that the title of a statute is not part of the text
of a statute, and absent ambiguity, it is generally not used to
determine a statute’s intent.” Clean Harbors Env’t Services v. Labor
Comm’n, 2019 UT App 52, ¶ 14 n.2, 440 P.3d 916 (quotation
simplified). That said, even if a statute is not ambiguous, courts
will sometimes note the title of a statute when it “is entirely
consistent with the plain meaning of the text.” Id. In such a
circumstance, the title essentially functions as something of a
(continued…)

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B. The Applicability of Section 13-8-5 to This Case

¶73 Again, the district court awarded prejudgment interest and
costs under Utah Code section 13-8-5(10). In the parties’ initial
briefs on appeal, each party claimed that the other party failed to
take certain steps required by this statute. In his opening brief,
Hour faulted Globe for not providing him with “a complete
billing statement containing ‘lien releases or waivers’” as required
by section 13-8-5(7). In its responsive brief, Globe asserted that it
wasn’t required to submit a billing statement (or the
accompanying lien releases and waivers) because Hour had
“retained” more money than he was allowed under subsection
(3), and, perhaps more importantly, because Hour never put the
money in an interest-bearing account as required by subsection
(4). In his reply brief, Hour did not claim that Globe was mistaken
on these assertions; instead, Hour accepted them, and he then
asserted that these collective failures illustrate why Globe has “no
claim to prejudgment interest” or costs under this statute at all.
As discussed, this was the view Hour took below as well.

¶74 We agree with Hour that the statute did not apply to the
claims at issue in this case. Globe’s position seems to assume that
this statute is operative whenever a party to a construction-related
contract stops paying the contractor. But the plain language and
structure of the statute both belie this broad assertion. Instead,
they show that this statute is targeted at something more specific.
As discussed, this statute applies when money that is “earned by
a contractor” is “retained” in specifically defined amounts
“pursuant to the terms of a construction contract” in order “to
guarantee payment or performance,” when the owner places that
money in a specific kind of account that functions as a
“constructive trust for the benefit of the contractor,” and when it’s

corroborative data point. Here, we believe that the reference in the
title of this statute to an “interest-bearing escrow account” is
corroborative of the various provisions from the statutory text
that we’ve laid out.

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Globe Contracting v. Hour

contemplated that this money will be “released” to the contractor
at the conclusion of the project pursuant to a defined process that
includes billing statements and lien releases or waivers. Id. § 13-8-
5(1)(i), (3), (4)(a), (4)(d)(i), (5), (7). When this kind of contractual
provision relating to the retention of funds has been invoked, and
there is a subsequent “action for the collection of the retained
proceeds withheld and retained in violation of this section,” the
statute allows the “successful party” to receive an award of
prejudgment interest, attorney fees, and costs. Id. § 13-8-5(10)(a)–
(b).

¶75 But no party has alleged that any of these predicates
occurred here. When Hour stopped paying the monthly progress
payments, he didn’t purport to “retain” the proceeds “pursuant
to the terms of the construction contract,” nor did he ever put the
“earned” monies into an interest-bearing account that would be
for the benefit of Globe once the project was completed. Rather, at
all relevant times in this case, Hour informed Globe of his intent
to terminate the contract. He initially did so in both the June and
July 2016 letters. And while he then apparently changed his mind
and gave Globe until September, he then officially “terminated”
the contract at the end of that month. It seems to be for precisely
this reason that Globe never submitted billing statements
accompanied by lien releases and waivers—Globe wouldn’t have
thought it needed to do so, because Hour had never claimed that
he was retaining funds pursuant to this statutory scheme at all.
Instead, Hour’s position had simply been that he could terminate
the contract because Globe had already breached it. Simply put,
terminating a contract outright is not the same thing as putting
funds into an escrow account pursuant to a process that is defined
by contract and regulated by statute for the purpose of ensuring
continued performance under the continued existence of that
contract.

¶76 We therefore agree with Hour’s assertion that the kinds of
claims that were litigated in this case weren’t covered by the
scheme set forth in section 13-8-5. Rather, because the claims that

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were litigated were essentially traditional breach of contract
claims, the remedies that Globe received when it prevailed
needed to be based on some source of authority other than this
statute.

¶77 As a result, the district court erred when it awarded
prejudgment interest and costs under section 13-8-5. We therefore
vacate those awards and remand with instructions for the district
court to determine, in the first instance, whether Globe is entitled
to prejudgment interest and costs under some other applicable
source of authority. 12

IV. Attorney Fees

¶78 In its initial ruling, the district court awarded Globe
$98,531.00 as “an award of reasonable attorney fees . . . as

12. In conjunction with the costs portion of the award, the parties
spent much effort in the briefing addressing the question of
whether some of the expenses that seem to have been included in
the court’s order can be awarded as costs pursuant to Utah Code
section 13-8-5(10)(a)(ii). These included expenses relating to,
among other things, food, travel, and hotels. But we’ve now
concluded that this statute was inapplicable, so we’ve vacated
that award.
In its brief, Globe also argues that it is entitled to costs
pursuant to rule 54(d) of the Utah Rules of Civil Procedure. We
leave it up to the district court to determine, on remand, whether
and to what extent costs will be awarded under that rule. In doing
so, the court should pay attention to the “distinction between
legitimate and taxable costs and other expenses of litigation which
may be ever so necessary, but are not taxable as costs.” Stevensen
3rd East, LC v. Watts, 2009 UT App 137, ¶ 62, 210 P.3d 977
(quotation simplified); see also id. ¶ 63 (“Costs are defined as those
fees which are required to be paid to the court and to witnesses,
and for which the statutes authorize to be included in the
judgment.” (quotation simplified)).

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provided by the [c]ontract and Utah Statute.” It’s unclear which
statute the court was referring to when it issued this initial ruling.
While Globe has subsequently justified that award based on Utah
Code section 13-8-5(10), we’ve now held that section 13-8-5 is
inapplicable.

¶79 But as noted by the court, the contract itself also provided
for an award of attorney fees, stating that “[i]f any action is filed
in relation to this Agreement, the unsuccessful party in the action
shall pay to the successful party, in addition to all the sums that
either party may be called upon to pay, a reasonable sum for the
successful party’s attorney fees.” Based on this contractual
language, the court therefore had a proper basis for awarding a
“reasonable sum” in attorney fees. See Capozzoli, 2024 UT App 176,
¶ 48 (“In Utah, attorney fees are awarded only if authorized by
statute or contract. If provided for by contract, attorney fees are
awarded in accordance with the terms of the contract.” (quotation
simplified)). To the extent that this award was based on the
contractual language, Hour now challenges the award on two
bases. We disagree with Hour’s first contention, but we agree in
part with his second, so we accordingly remand on a limited basis.

¶80 First, Hour argues that the court erred by awarding
attorney fees that were based on time that Globe’s attorneys spent
litigating “unsuccessful motions, claims, causes of action and
regarding dismissed defendants.” But this assertion is at odds
with the record. In a sworn affidavit that was filed in support of
the application for attorney fees, one of Globe’s attorneys detailed
the work performed by the various attorneys at the firm in
conjunction with this case. Of note, this affidavit stated that the
attorney fee request included “detailed descriptions of the time
spent on, and the legal worked performed, for the successful
litigation for (1) breach of contract, (2) breach of warranty, (3) lien
foreclosure, and (4) breach of implied covenant of good faith and
fair dealing.” (Emphasis added.) On its face, the assertion that
Globe was requesting fees for the “successful litigation” suggests
that Globe was indeed limiting its request to fees incurred for the

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successful parts of the litigation. Moreover, counsel then provided
several pages of charts that contained itemized entries. Hour has
not pointed to any entry that appears linked to any unsuccessful
motion. On the basis of the record and arguments presented to us,
we see no basis for concluding that the attorney fee award was
improperly based on time spent litigating unsuccessful motions,
claims, causes of action or against dismissed defendants. See
generally Brown v. David K. Richards & Co., 1999 UT App 109, ¶ 19,
978 P.2d 470 (“We have awarded fees to a prevailing party even
though some of the fees may not have been incurred on strictly
compensable issues, because proof of the compensable and non-
compensable claims overlapped.”).

¶81 Hour’s second argument has to do with attorney fees that
were awarded for travel time. As noted above, after Globe filed
suit in the Third District, it hired attorneys who were located in
southern Utah, and those attorneys then litigated the case
throughout. In the aforementioned attorney fee affidavit, Globe
requested fees for, among other things, time that its attorneys
spent traveling. Without differentiating between the various
items listed in the affidavit, the district court awarded the
requested fees, concluding that the fee request was “reasonable.”
On appeal, however, Hour argues that it was unreasonable for the
court to award fees associated with travel time, given that Globe
“voluntarily chose” to hire attorneys who lived several hours
away from the site of the litigation.

¶82 At the outset, we note that a district court “has broad
discretion in determining what constitutes a reasonable fee, and
we will consider that determination against an abuse-of-
discretion standard.” Jensen v. Sawyers, 2005 UT 81, ¶ 127, 130 P.3d
325 (quotation simplified); see also Freight Tec Mgmt. Group Inc. v.
Chemex Inc., 2021 UT App 92, ¶ 20, 499 P.3d 894 (“The calculation
of reasonable attorney fees is in the sound discretion of the trial
court . . . .” (quotation simplified)). But there has been little Utah
appellate authority that has addressed the particular question of
whether there are limits to a district court’s discretion to award

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fees based on an attorney’s travel time. The one Utah case that
addressed travel time at all is Strohm v. ClearOne Communications,
Inc., 2013 UT 21, 308 P.3d 424. There, our supreme court affirmed
an attorney fee award that included travel time for out-of-town
attorneys, albeit at a “25 percent reduction.” Id. ¶ 59. Without
much elaboration, the supreme court suggested that while such
an award falls within the discretion of the district court, a district
court should account for work “actually performed” as well as
any other “circumstances which require consideration of
additional factors.” Id. (quotation simplified).

¶83 Surveying the legal landscape, we see no definitive rule
from other jurisdictions that have considered whether it’s
appropriate to include an attorney’s travel time in an attorney fee
award, particularly when one party chose to retain non-local
counsel. Some courts and authorities have allowed travel time to
be included simply on a showing that it would be “reasonable.”
See, e.g., Apple Corps. Ltd. v. International Collectors Society, 25 F.
Supp. 2d 480, 499 (D.N.J. 1998); 35B C.J.S. Federal Civil Proc. § 1359
(2025). This comports with other authority suggesting that this
kind of decision is best left to the discretion of the district court.
See, e.g., Texas Mutual Ins. Co. v. DeJaynes, 590 S.W.3d 654, 670 (Tex.
App. 2019). Some cases, however, have cautioned that travel time
for non-local counsel should be awarded at a reduced rate. See,
e.g., Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir. 1990); Maceira
v. Pagan, 698 F.2d 38, 40 (1st Cir. 1983); Clark v. Phillips, 965 F.
Supp. 331, 336 (N.D.N.Y. 1997). By contrast, some other courts
have held that it would be inappropriate to award travel time for
non-local counsel absent a showing of “special circumstances,”
such as proof that competent local counsel could not be obtained.
See Hahamovitch v. Hahamovitch, 133 So.3d 1062, 1063 (Fla. Dist. Ct.
App. 2014). And some courts have permitted such an award, but
only on a showing that this is consistent with the practice norm
from the local community. See, e.g., Planned Parenthood of Central
N.J. v. Attorney Gen. of State of N.J., 297 F.3d 253, 267–68 (3d Cir.
2002).

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¶84 Given the lack of Utah authority on this question, we
think it appropriate to offer some additional guidance. A party
is entitled to hire counsel of its choice, and whenever a
retained attorney is required to travel to court, the time the
attorney spends traveling is time that the attorney is spending on
the client’s behalf—and not, presumably, working for some other
paying client. On this basic level, this seems to be why our
supreme court in Strohm contemplated that a district court’s
discretion to award attorney fees includes the discretion to
include travel time.

¶85 But we also believe that if a party voluntarily chooses to
hire non-local counsel who lives and practices some distance
away, this may alter the district court’s calculus as to whether it
would still be reasonable to charge the other party for that travel
time as part of an attorney fee award. On the one hand, the party
who hired non-local counsel may have had compelling reasons
for hiring this attorney over others who were closer to the court,
such as subject-matter specialty, a longstanding relationship, or
perhaps even some favorable adjustment in the billing rates. On
the other hand, we also see some potential merit to Hour’s
suggestion that, depending on the circumstances and the strength
of those justifications, it may be unfair to compel a party to foot
the bill when the other side chooses to hire a non-local attorney
who then must spend many hours of billable time traveling to and
from court.

¶86 Given the number of potential considerations that are in
play in such a decision, this seems to be the kind of decision
that is best left to the discretion of the district court. A
district court is better equipped than an appellate court to
determine whether the party’s decision to employ non-local
counsel was reasonable under the particular circumstances, and
the district court is likewise better equipped to determine whether
the attorney’s rates for travel time should be charged in full or, as
was the decision of the district court in Strohm, at some reduced
rate.

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¶87 With this as the backdrop, we accordingly disagree with
Hour’s assertion that it was categorically unreasonable for the
district court in this case to have awarded travel time as part of
the attorney fee award. As indicated, our supreme court’s
decision in Strohm places this kind of decision within the district
court’s discretion.

¶88 In addition to challenging the court’s ability to make this
determination, however, Hour also argues that the district court
did not provide a sufficient explanation for why it thought it was
reasonable to award attorney fees for travel time in these
circumstances. In this sense, Hour is challenging the adequacy of
the court’s explanation for this award. 13 Having reviewed the
court’s rulings, we see no clear explanation for why the court
believed it was reasonable under the circumstances to require
Hour to pay attorney fees associated with travel time, particularly
given that Globe hired attorneys who lived several hours away
from the district in which the case had been filed. In light of the
concerns expressed above, we think it appropriate to require a
district court to offer at least some explanation for such a decision
when the other party has opposed this kind of request. Such an
explanation is warranted, in part, because it facilitates the
appellate court’s review if the other party makes a reasonableness
challenge akin to the one advanced by Hour in this appeal.

¶89 Because we see no explanation from the court that would
allow us to review this decision for reasonableness, we reverse the
attorney fee award and remand with instructions for the district
court to give an explanation for this portion of the attorney fee
award. In so doing, we stress that our decision should not be

13. Globe has not argued in response that the inadequacy portion
of Hour’s claim was unpreserved, nor has it meaningfully
responded to the inadequacy argument itself. Instead, Globe’s
argument was simply that the court’s decision was reasonable.

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interpreted as preemptively putting our thumb on the scale either
way. 14

14. Globe requests attorney fees incurred on appeal pursuant to
rule 24(a)(9) of the Utah Rules of Appellate Procedure. “As a
general matter, when a party who received attorney fees below
prevails on appeal, the party is also entitled to fees reasonably
incurred on appeal.” Elder v. Elder, 2024 UT App 68, ¶ 32, 550 P.3d
488 (quotation simplified); see also Maxwell Masonry Restoration
& Cleaning LLC v. North Ridge Constr. Inc., 2022 UT App 109, ¶ 52,
518 P.3d 164 (“A provision for payment of attorney fees in a
contract includes attorney fees incurred by the prevailing party
on appeal as well as at trial, if the action is brought to enforce the
contract.” (quotation simplified)).
As discussed above, Globe has prevailed on the portions of
this appeal relating to the contract and to the damages award.
Globe is therefore entitled to an award of attorney fees it incurred
in those portions of this appeal. But in Parts III and IV, we have
reversed the court’s decisions relating to prejudgment interest
and the fairly substantial costs and attorney fee awards. It’s
unclear whether the district court will award a similar costs award
on remand, and additional proceedings may result in some
change to the attorney fee award as well. In light of these
reversals, we conclude that Globe is not entitled to an award of
appellate fees relating to those issues. See, e.g., Diversified Striping
Sys. Inc. v. Kraus, 2022 UT App 91, ¶ 103, 516 P.3d 306 (“Because
the Kraus Parties were awarded attorney fees below but prevailed
only in part on appeal, they are entitled to only those appellate
attorney fees associated with the issues on which they have
prevailed. We remand for the district court to calculate those
reasonable fees.”); Macris v. Sevea Int’l, Inc., 2013 UT App 176,
¶ 53, 307 P.3d 625 (“We therefore award Macris partial attorney
fees on appeal. Because Macris prevailed only in part on appeal,
we remand to the trial court for a determination of the appropriate
(continued…)

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CONCLUSION

¶90 We affirm the district court’s conclusion that Hour
breached the contract, including the covenant of good faith and
fair dealing, as well as the court’s award of damages. We vacate
the court’s awards of prejudgment interest, costs, and attorney
fees to Globe, and we remand for further proceedings on these
issues that are consistent with this opinion.

amount of attorney fees and costs incurred with respect to the
issues on which he was successful on the appeal.”). On remand,
the district court should accordingly award Globe only the
attorney fees that it reasonably incurred in the portions of the
appeal on which it prevailed.

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