Pentalon Construction, Inc. v. Rymark Properties, LLC
344 P.3d 180
Utah Ct. App.2015Background
- The case asks whether near-complete excavation for a building foundation qualifies as commencement to do work under the Utah Mechanic's Lien Act, affecting lien priority over a recorded FDIC deed.
- Pentalon Construction had begun excavation May 8, 2008, and spent over 213 hours excavating and installing geotextile fabric before FDIC’s predecessor recorded its trust deed.
- The district court held that this excavation did not constitute commencement, giving FDIC priority over Pentalon’s lien.
- Pentalon, Granite Construction Company, and Wimmer Electric appealed, seeking priority based on commencement to do work.
- The court held that the excavation constituted commencement, reversing the district court and remanding for further proceedings.
- Procedural issues about evidentiary rulings and alternative grounds for affirmance were discussed but deemed not ripe or not reached on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does near-complete excavation constitute commencement to do work? | Pentalon argues excavation put a prudent lender on notice of lienable work. | FDIC contends partial excavation is not notice of lienable work and thus not commencement. | Yes; near-complete excavation constitutes commencement. |
| Are the district court’s evidentiary and reconsideration rulings ripe for appellate review? | Pentalon urges review of stricken affidavits and reconsideration to aid fee determinations. | FDIC contends those rulings were properly discretionary and not ripe. | Not ripe for review. |
| Can the appellate court affirm on alternative grounds not reached below? | N/A (not framed for Pentalon as an alternative basis for relief). | FDIC seeks affirmation on alternative theories (non-owner-instigated work, estoppel). | The court declines to affirm on alternative grounds not apparent on the record. |
Key Cases Cited
- Calder Bros. Co. v. Anderson, 652 P.2d 922 (Utah 1982) (mechanics’ liens priority; remedial purpose; notice to lien claimants)
- Klibanoff II, 192 P.3d 296 (Utah Ct. App. 2008) (visible on-site work required to alert lenders; excavation as commencement)
- Klibanoff I, 122 P.3d 646 (Utah Ct. App. 2005) (on-site notice and commencement; photograph evidence considered)
- Ketchum, Konkel, Barrett, Nickel & Austin v. Heritage Mountain Dev. Co., 784 P.2d 1217 (Utah Ct. App. 1989) (surveying and soil testing do not constitute commencement)
- Western Mortgage Loan Corp. v. Cottonwood Construction Co., 424 P.2d 437 (Utah 1967) (visible on-site construction; notice theory for commencement)
- Klibanoff II, 192 P.3d 296 (Utah Ct. App. 2008) (see above (duplicate entry for clarity))