Zion Village Resort v. Pro Curb USA

2020 UT App 167THE UTAH COURT OF APPEALS
ZION VILLAGE RESORT LLC,
Appellee,
v.
PRO CURB U.S.A. LLC AND PACIFIC COAST SUPPLY LLC,
Appellants.
Opinion
Nos. 20190736-CA and 20190831-CA
Filed December 17, 2020
Fifth District Court, St. George Department
The Honorable Eric A. Ludlow
No. 190500078
David W. Hunter, Nathan K. Fisher, and William A.
Allen, Attorneys for Appellant Pro Curb U.S.A. LLC
Bryan H. Booth, Attorney for Appellant
Pacific Coast Supply LLC
Matthew D. Ekins and Dayton L. Hall,
Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and DIANA HAGEN concurred.
HARRIS, Judge:
¶1 Two contractors who performed work on a condominium
development filed construction liens against the property,
alleging that they had not been fully paid for their work. The
owner of the development—Zion Village Resort LLC (Zion
Village)—filed petitions to nullify the liens, and the district court
granted those petitions, concluding that the contractors had
failed to file proper preliminary notices regarding their liens.
The contractors each filed separate appeals, which we consider
together in this opinion. With regard to the appeal filed by Pro
Zion Village v. Pro Curb U.S.A.
Curb U.S.A. LLC dba Pro Landscape U.S.A. (Pro Landscape), we
reverse on all issues, including attorney fees, and remand for
entry of judgment and computation of an award of attorney fees
in favor of Pro Landscape. With regard to the appeal filed by
Pacific Coast Supply LLC (Pacific Coast), we dismiss part of that
appeal and affirm the district court’s order nullifying Pacific
Coast’s construction liens. We also affirm the district court’s
determination that Zion Village is entitled to recover attorney
fees and costs from Pacific Coast, but we reverse one minor
aspect of the court’s attorney fee award to Zion Village, and
remand for an adjustment of that award.
BACKGROUND
¶2 Both Pro Landscape and Pacific Coast were hired to work
on the construction of a condominium development known as
Zion Village Resort and Townhomes (the Development). As
envisioned, upon completion, the Development is to include
twenty-three multi-unit residential buildings as well as a
community clubhouse and pool area. At issue here are three of
those buildings: Building 5, Building 6, and Building 7. Each
building contains four separate units, each of which is referred to
as a “lot” and identified by its own specific parcel number. 1 Both
Pro Landscape and Pacific Coast were contracted to work on,
and did work on, the construction of Buildings 5, 6, and 7, as
well as the clubhouse and pool area. At the time these
contractors were hired and performed at least some of their
work, the real property in question was owned by Zion Village.
1. Building 5 contains Lots 17 through 20; Building 6 contains
Lots 21 through 24; and Building 7 contains Lots 25 through 28.
Each lot is assigned a parcel number; for instance, Lot 17 is
assigned parcel number H-ZIVT-1-17; Lot 18 is assigned parcel
number H-ZIVT-1-18, and so on.
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Preliminary Notices
¶3 Under Utah law, any “person who desires to claim a
construction lien on real property” must file a “preliminary
notice . . . no later than 20 days after” the person starts working
on the property. See Utah Code Ann. § 38-1a-501(1)(a)
(LexisNexis 2018). As discussed more fully below, a preliminary
notice must include certain information, including the “name,
address, telephone number, and email address of the person
providing the construction work,” as well as one of four listed
means of identifying the specific piece of real property to which
the eventual lien will attach. See id. § 38-1a-501(1)(h)(i), (vii). Both
Pro Landscape and Pacific Coast filed certain preliminary notices
within twenty days of starting their work.
¶4 Pro Landscape’s four preliminary notices listed the
correct parcel numbers for the four lots contained within
Building 5. Under the line “Person Furnishing Labor, Service,
Equipment, or Material,” the notices listed “Chad Hansen,” and
provided an address, email address, and telephone number.
Under the line provided for “comments,” the notices stated that
the “services [were] provided by Pro Curb USA LLC DBA Pro
Landscape USA.”
¶5 Pacific Coast’s four preliminary notices identified “Pacific
Supply” 2 as the entity performing the work, and listed an
address, email address, and telephone number as required. The
notices attempted to identify, by parcel number, the property to
which they attached: two of the notices listed “H-ZIVT-1” as the
relevant property, which is an incomplete parcel designation not
2. The full business name of Pacific Coast is Pacific Coast Supply,
LLC, and the record indicates that, for business purposes, it
sometimes refers to itself as Pacific Supply, but it has referred to
itself in the pleadings and briefings as Pacific Coast.
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referring to any particular lot; one of the notices referred only to
Lot 18 contained within Building 5; and the fourth notice listed
Lots 5 through 8, which are contained within Building 2, and
unconnected to Buildings 5, 6, or 7.
Construction Liens
¶6 After performing work on the Development, both Pro
Landscape and Pacific Coast believed that they had not been
paid in full. In keeping with this belief, both recorded
construction liens against various parts of the Development. As
relevant here, in November 2018, Pro Landscape recorded four
liens, 3 one against each lot in Building 5, and therein indicated
that it sought to recover $119,668.00 ($29,917.00 against each lot
contained within Building 5). In November and December 2018,
Pacific Coast recorded three liens, none of which were recorded
against the properties referred to in its preliminary notices.
Specifically, Pacific Coast’s liens were filed against parcel
number “H-ZIVT-1-CLUBHOUSE AND POOL AREA,” and
against all lots contained within Buildings 6 and 7; those liens
stated that Pacific Coast sought to recover $68,907.89 ($11,331.29
against the clubhouse and pool area, $38,095.12 against Building
6, and $19,481.48 against Building 7).
¶7 In the meantime, Zion Village appears to have sold seven
of the eight lots in Buildings 5 and 6 on various dates on or
before January 23, 2019, and it sold the eighth lot in March 2019.
At some point prior to October 2019, ownership of the
Development’s common areas—including the clubhouse and
3. Pro Landscape also recorded construction liens against
Buildings 6 and 7, but later released those liens voluntarily some
two months prior to Zion Village’s filing the petition to nullify.
Consequently, only Pro Landscape’s four liens pertaining to
Building 5 are relevant to our analysis here.
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pool area—was transferred to the Development’s homeowner
associations. Zion Village asserts, however, that at some point it
acquired assignments, from the new owners of some of the lots
at issue, of any legal claims and defenses related to the
construction liens at issue here.
Zion Village’s Petition to Nullify
¶8 In early February 2019, and as amended in April 2019,
Zion Village filed a petition to nullify the construction liens that
had been recorded by both Pro Landscape (against Building 5)
and Pacific Coast (against Buildings 6 and 7, and against the
clubhouse and pool area). See Utah Code Ann. § 38-1a-805(1)
(LexisNexis 2018) (allowing “[a]n owner of an interest in a
project property” to “petition the district court . . . for summary
relief to nullify” a construction lien). In its petition, Zion Village
alleged that it was the owner of all of the real property in
question. Zion Village asserted that the construction liens
recorded by Pro Landscape and Pacific Coast were invalid
because neither contractor had filed valid preliminary notices as
required by statute. 4 In its petition, Zion Village requested an
“expedited hearing,” pursuant to section 38-1a-805(4)(b) of the
Utah Code, “to determine whether the liens [were] invalid.”
¶9 Just a few days after the petition was filed, the district
court held an expedited hearing. At the conclusion of the
hearing, the court took the matter under advisement, and later
issued a written ruling nullifying all four of Pro Landscape’s
liens on the ground that Pro Landscape had not filed any
4. Zion Village also advanced a second claim that the liens were
“wrongful liens” as that term is defined by Utah’s wrongful lien
statute, see generally Utah Code Ann. §§ 38-9-101 to -305
(LexisNexis 2018), but the court dismissed that claim, and Zion
Village has not appealed that portion of the court’s ruling.
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preliminary notices. The court determined that the notices on
which Pro Landscape relied had been “filed by Chad Hansen,
not Pro Landscape,” and that the notices had therefore
“neglect[ed] to include such basic information as the identity of
the actual lien claimant.” The court also ordered Pro Landscape
to pay Zion Village’s reasonable attorney fees and costs.
¶10 With regard to Pacific Coast, the court—after the
expedited hearing—issued an initial order nullifying its liens,
but the parties later stipulated to setting that order aside and
allowing Zion Village to file an amended petition to nullify.
After holding a second hearing and considering Zion Village’s
amended petition, the district court ruled in a subsequent order,
dated April 20, 2019, that all three of Pacific Coast’s construction
liens were invalid because Pacific Coast “did not file the
requisite preliminary notices.” The court determined that “[t]he
notices offered by Pacific [Coast] state parcel numbers that do
not exist or are materially incomplete.” The court ordered Pacific
Coast to pay Zion Village’s reasonable attorney fees and costs.
Pacific Coast did not appear at either of the two hearings at
which the court considered the validity of the preliminary
notices, and it made no argument that Zion Village’s petition
should be dismissed on the basis that it no longer owned the real
property in question.
Attorney Fee Awards
¶11 Zion Village later filed documentation in an effort to
quantify its attorney fee award. It asserted that its total fees and
costs incurred to date in the case, against Pro Landscape and
Pacific Coast combined, were $23,523.50. Nevertheless, it sought
an award of over $17,000 against Pacific Coast and an award of
over $13,000 against Pro Landscape, asserting that both
defendants were “jointly and severally liable” for certain fees
incurred early in the case, which Zion Village believed were
applicable to its claims against both defendants. The court
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granted Zion Village the relief it requested, ordering Pro
Landscape—in a judgment dated July 30, 2019—to pay
attorney fees and costs in the amount of $13,324.73 and
ordering Pacific Coast—in a judgment dated September 23,
2019—to pay attorney fees and costs in the amount of $17,079.40,
making the parties jointly and severally liable for part of the
fees. The court later augmented the award in light of fees
and costs incurred in connection with post-judgment motions
(discussed below), allowing Zion Village to recover an
additional $6,322.50 from Pacific Coast and an additional
$12,112.19 from Pro Landscape. Pro Landscape filed a notice of
appeal on August 29, 2019.
Pacific Coast’s Post-Judgment Motions
¶12 After the district court’s initial rulings, Pacific Coast filed
a motion, pursuant to rule 54(b) of the Utah Rules of Civil
Procedure, requesting that the court revise its decision and
order. In its motion, Pacific Coast argued that the governing
statute allows a court to make only “a single factual
determination—whether a preliminary notice was filed,” and
noted that Pacific Coast had filed preliminary notices, even if
some of the information contained in those notices was
incomplete or inaccurate. Accordingly, Pacific Coast asserted
that the court’s ruling nullifying its liens was incorrect. On
September 15, 2019, after a hearing, the court entered an order
denying Pacific Coast’s motion.
¶13 Shortly thereafter, on October 3, 2019, Pacific Coast filed a
notice of appeal, challenging five of the district court’s “rulings
and orders”: the March 8 and April 20 orders granting Zion
Village’s petition to nullify the liens; the September 15 order
denying Pacific Coast’s rule 54(b) motion; the September 23
order granting Zion Village’s motion for attorney fees and costs;
and the September 23 attorney fee judgment. Pacific Coast never
filed a second or amended notice of appeal.
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¶14 A few weeks later, on October 25, 2019, Pacific Coast filed
another post-judgment motion, this one pursuant to rule 60(b) of
the Utah Rules of Civil Procedure. In that motion, Pacific Coast
asserted, for the first time, that Zion Village had not been the
owner of the property referred to in Pacific Coast’s liens at the
time Zion Village filed its petitions to nullify those liens. On
January 10, 2020, after a hearing, the district court issued an
order denying the motion, ruling that Pacific Coast had “not
presented a basis for relief sufficient to” justify setting aside the
court’s order nullifying the liens, and that it had “not presented
a meritorious defense.”
¶15 After obtaining its first judgment against Pacific Coast,
Zion Village asked the district court to issue a writ of execution
directing a sheriff or constable to seize some of Pacific Coast’s
property in order to facilitate a sale of that property to satisfy
Zion Village’s judgment. The specific property that Zion Village
wanted to make subject to a writ of execution was “[a]ny and all
of Pacific Coast[’s] legal claims, asserted or unasserted, relating
to or arising from the Zion Village Resort Project . . . , including
legal claims in” the pending action. The court granted the
request and issued a writ of execution, authorizing a sheriff or
constable to seize Pacific Coast’s claims against Zion Village. A
few days later, the writ of execution was served on Pacific Coast,
and thereby its legal claims against Zion Village were “conveyed
to” Zion Village for the purposes of sale. However, no sale of
those claims has yet taken place because Pacific Coast, by
posting a supersedeas bond, obtained an order from the district
court staying all efforts to enforce Zion Village’s judgment
against Pacific Coast during the pendency of this appeal.
ISSUES AND STANDARDS OF REVIEW
¶16 Pro Landscape and Pacific Coast both appeal, raising
several issues for our review. Other than attorney fees, Pro
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Landscape brings one issue to our attention: it challenges the
district court’s decision, following the expedited hearing, to
nullify its construction liens after determining that Pro
Landscape had not filed valid preliminary notices. Utah
appellate courts have not yet had occasion to identify the
standard of review to be applied when reviewing a district
court’s nullification of a construction lien via an “expedited
proceeding” under section 38-1a-805 of the Utah Code. The
relevant statutory provisions authorize district courts to
“schedule an expedited hearing” to consider a properly filed
petition to nullify a lien, but the statute does not specify whether
the court may consider live testimony at any such hearing. See
Utah Code Ann. § 38-1a-805(4)(b), (5), (6) (LexisNexis 2018). We
conclude that, at least in cases in which the court does not hear
live testimony during the expedited hearing, we should review a
district court’s decision following that hearing for correctness,
with no deference afforded to the court’s decision.
¶17 In situations where a district court makes a decision based
not on live testimony but instead on documentary evidence, oral
argument, and statutory interpretation, the district court is in no
better position to make that decision than an appellate court is.
See State v. Levin, 2006 UT 50, ¶ 20, 144 P.3d 1096 (stating that “a
single [district] judge is in an inferior position to determine what
the legal content of a legal concept should be whereas a panel of
appellate judges, with their collective experience and their
broader perspective, is better suited to that task” (quotation
simplified)). In this case, the district court made its
determination by examining copies of the liens and preliminary
notices filed by Pro Landscape and comparing those documents
to the statutory requirements. All of the evidence the district
court considered is in the appellate record; the court’s decision
was not based on “credibility determinations, the direct
observation of witness testimony, [or] other evidence not fully
captured in a written appellate record.” See Sawyer v. Department
of Workforce Services, 2015 UT 33, ¶ 13, 345 P.3d 1253; see also
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Amundsen v. University of Utah, 2019 UT 49, ¶ 19 n.5, 448 P.3d
1224 (“With respect to whether rulings based solely on
documentary evidence generally receive deference on appeal,
Utah law appears to lean toward correctness review.”). And in
one similar context—reviewing district court decisions, made
after a “summary proceeding,” see Utah Code Ann. § 38-9-205(3),
(4) (LexisNexis 2018), about whether a lien is a “wrongful lien”
under section 38-9-102 of the Utah Code—we review for
correctness. See, e.g., Lindstrom v. Custom Floor Covering Inc., 2017
UT App 141, ¶ 8, 402 P.3d 171; Pratt v. Pugh, 2010 UT App 219,
¶ 7, 238 P.3d 1073. Accordingly, we conclude that, in this case,
we should afford the district court’s lien nullification decision no
deference, and review it for correctness.
¶18 With regard to Pacific Coast’s appeal, we address four
issues, aside from attorney fees. First, we address—and reject—
the arguments made by Zion Village in its motion for summary
disposition, in which it asserted that Pacific Coast’s appeal had
been rendered moot, or entirely subject to dismissal, based on
certain subsequent events. We deferred a ruling on the issues
raised in the motion for summary disposition until full
consideration of the appeal, and Zion Village presses these
issues in its brief. These issues present questions of law that we
review in the first instance. See State v. Legg, 2018 UT 12, ¶ 7, 417
P.3d 592 (“Appellate courts review the issue of mootness de
novo.” (quotation simplified)).
¶19 Second, we address Pacific Coast’s argument that the
district court erred by even considering whether its preliminary
notices complied with applicable statutory requirements; Pacific
Coast contends that, under the statutory provisions governing
the expedited proceedings that follow the filing of a petition to
nullify a construction lien, a district court may consider only
whether a preliminary notice was or was not filed, and may not
examine the substance of the document. See Utah Code Ann.
§ 38-1a-805(6). This issue hinges on whether the district court
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properly interpreted the relevant statute. “We review questions
of statutory interpretation for correctness, affording no deference
to the district court’s legal conclusions.” State v. Outzen, 2017 UT
30, ¶ 5, 408 P.3d 334 (quotation simplified).
¶20 Third, although Pacific Coast does not challenge the
district court’s ultimate decision, on the merits, that its
preliminary notices did not identify the same property listed in
its construction liens, for purposes of logical continuity we
briefly address that decision.
¶21 Fourth, Pacific Coast challenges the district court’s denial
of its rule 60(b) motion. However, after oral argument in this
case, we became aware of a potential issue with our appellate
jurisdiction to consider this challenge, and we asked the parties
for supplemental briefing addressing the jurisdictional issue.
Appellate courts “have an independent obligation to ensure that
we have jurisdiction over all matters before us,” and if we
determine that we lack appellate jurisdiction with regard to a
particular issue, “we must dismiss” the appeal of that issue.
Trapnell & Assocs., LLC v. Legacy Resorts, LLC, 2020 UT 44, ¶ 31,
469 P.3d 989 (quotation simplified). Questions about appellate
jurisdiction are “question[s] of law.” Id. ¶ 29. And because we
determine that we lack appellate jurisdiction over this part of
Pacific Coast’s appeal, we do not address the merits of the
district court’s decision to deny the rule 60(b) motion.
¶22 Finally, both Pro Landscape and Pacific Coast ask us to
reverse the district court’s awards of attorney fees against them.
Under applicable statutory provisions, Zion Village is entitled to
an award of “costs and reasonable attorney fees” if “the court
determines that the . . . construction lien is invalid,” see Utah
Code Ann. § 38-1a-805(7)(a), but the lien claimants are entitled to
an award of “costs and reasonable attorney fees” if “the court
determines that the . . . construction lien is valid,” see id. § 38-1a-
805(8)(a). The identity of the party to whom an award of
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attorney fees is owed thus depends on the outcome of the
proceeding, and on the outcome of the merits of this appeal.
However, a court’s decision regarding the reasonableness of an
attorney fee award is reviewed deferentially, for “patent error or
clear abuse of discretion.” Faust v. KAI Techs., Inc., 2000 UT 82,
¶ 12, 15 P.3d 1266 (quotation simplified).
ANALYSIS
I. Pro Landscape’s Appeal
¶23 In its appeal, Pro Landscape asserts that the district court
erred in concluding that it had not filed any preliminary notices,
and erred by, on that basis, nullifying its construction liens. It
asserts that the preliminary notices on which it relies contained
all of the statutorily required information, including “the name,
address, telephone number, and email address of the person
providing the construction work for which the preliminary
notice [was] filed.” See Utah Code Ann. § 38-1a-501(1)(h)(i)
(LexisNexis 2018). We agree with Pro Landscape.
¶24 Utah’s construction lien statute provides contractors with
a remedy when they claim they were not paid for their services,
allowing them to place a lien on properties they have worked on
in the amount of the unpaid labor or resources contributed. See
generally id. §§ 38-1a-101 to -805 (LexisNexis 2018); see also AAA
Fencing Co. v. Raintree Dev. & Energy Co., 714 P.2d 289, 291 (Utah
1986) (per curiam) (“The purpose of the Utah mechanics’ lien
law is to provide protection to those who enhance the value of a
property by supplying labor or materials.”).
¶25 Under Utah law, there is an important prerequisite to
obtaining a valid construction lien: any person wanting to claim
such a lien must first file a preliminary notice with the Utah State
Construction Registry (the Registry) within twenty days of
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commencing construction work. Utah Code Ann. § 38-1a-
501(1)(a). Among other required information, a preliminary
notice must include “the name, address, telephone number, and
email address of the person providing the construction work for
which the preliminary notice is filed.” Id. § 38-1a-501(1)(h)(i).
¶26 In the preliminary notices on which Pro Landscape relies,
“Chad Hansen” is listed as the “Person Furnishing Labor,
Service, Equipment or Material,” but then, in the “Comments”
section, the notices state that the “services [were] provided by
Pro Curb USA LLC DBA Pro Landscape USA.” Zion Village
argues that, because Chad Hansen rather than Pro Landscape is
listed on the line asking for identification of the “Person
Furnishing Labor, Service, Equipment or Material,” the
preliminary notices were statutorily insufficient. We disagree.
¶27 The statute requires only that “the name, address,
telephone number and email address of the person providing
the construction work” be “include[d]” in the preliminary notice;
the statute does not require that the necessary information be set
forth in any particular order or on any particular line. See id.
§ 38-1a-501(1)(h). While Pro Landscape may have set forth the
required information in an unconventional sequence, the
preliminary notices it filed contained all statutorily required
information, including the identity and contact information of
“the person providing the construction work.” The preliminary
notices clearly indicated that the relevant “services [were]
provided by” Pro Landscape. We therefore disagree with the
district court’s conclusion that the notices “neglect[ed] to include
. . . the identity of the actual lien claimant.” 5
5. The construction lien statute mandates the application of a
“substantial compliance” standard, rather than a strict
compliance standard. See Utah Code Ann. § 38-1a-501(2)(a)
(continued…)
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¶28 Zion Village resists this conclusion by pointing to the
practical functioning and purpose of the Registry, which serves
as a central database, allowing interested persons to search for
preliminary notices and other documents by property owner,
contractor, address, and parcel number. See id. § 38-1a-201
(LexisNexis 2018). 6 Zion Village asserts that, when it searched
(…continued)
(LexisNexis 2018) (“[T]he burden is upon the person filing the
preliminary notice to prove that the person has substantially
complied with the requirements of this section.” (emphasis
added)). “Compliance with a few—or even many—provisions of
a detailed statutory scheme is not the measure of substantial
compliance”; rather, substantial compliance with the
construction lien statute “is measured by its potential for harm
or prejudice,” and “[a] defect in compliance may be excused as
insubstantial if it cannot have any meaningful impact on other
parties.” VCS, Inc. v. La Salle Dev., LLC, 2012 UT 89, ¶¶ 36–37, 293
P.3d 290. The district court professed to have applied the
“substantial compliance” standard, yet nevertheless determined
that Pro Landscape’s preliminary notices were “not sufficient to
meet the burden of substantial compliance.” In our view,
however, Pro Landscape’s preliminary notices not only
substantially complied with the statutory requirements, but
strictly complied with them, given that the notices included all
required information, albeit in an unconventional sequence.
6. The Registry is designed to “help[] keep property owners
informed of all parties that supply services, materials and/or
equipment to a construction project on their property.”
SCR Guide > Owners, Utah State Construction Registry,
https://secure.utah.gov/scr/guide/owners.html [https://perma.cc/
5FGT-LYDU]; see also Jim Barber, There’s a New Lien Law in Town:
Are Your Lien Rights Protected?, Utah B.J., Mar.–Apr. 2006, at 46
(stating that the Registry is “a standardized, online system for
(continued…)
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the Registry’s database for preliminary notices filed by Pro
Landscape, none turned up in the search results because “Chad
Hansen” and not Pro Landscape had been listed as the “Person
Furnishing Labor, Service, Equipment or Material.” It asserts
that interested persons should be able to rely on search results
from the Registry’s database, without bearing what it perceives
to be an onerous “burden” of “clicking individually through the
dozens of notices, loans, permits, etc. related to each parcel
number, and reviewing line by line the details of each entry,
including comments.” We are unpersuaded.
¶29 Indeed, as already noted, the relevant statutory
provisions do not require that the necessary information be
listed in any particular order or manner. See id. § 38-1a-501(1)(h).
So long as the statutorily required information is included, the
requirements of the statute are satisfied, regardless of whether a
search of the Registry’s database in any given case is efficient. In
the end, what matters is whether the statutorily required
information is contained in the preliminary notice, and
meaningful assessment of that issue may require examination of
the actual notice itself, rather than just a search results page from
the Registry’s database.
¶30 While it is unfortunate that Zion Village’s database search
suggested that Pro Landscape had not filed any preliminary
notices, our examination of the relevant notices demonstrates
that Pro Landscape did file four proper preliminary notices, each
of which identified the same property later referenced in the
construction liens, and each of which included “the name,
address, telephone number, and email address of the person
(…continued)
filing and managing notices of commencement, preliminary
notices, and notices of completion, thus facilitating compliance
with” the construction lien statute).
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providing the construction work for which the preliminary
notice is filed.” See id. § 38-1a-501(1)(h)(i), (vii). The district court
therefore erred when it determined that Pro Landscape had
failed to file valid preliminary notices, and erred by invalidating
Pro Landscape’s construction liens on that basis.
II. Pacific Coast’s Appeal
A. Zion Village’s Motion for Summary Disposition
¶31 Before turning to the merits of Pacific Coast’s appeal, we
first discuss the issues raised in Zion Village’s motion for
summary disposition of Pacific Coast’s appeal. In that motion,
and again in its briefing, Zion Village makes two arguments for
disposing of the entirety of Pacific Coast’s appeal before
reaching its merits. First, Zion Village argues that, because
Pacific Coast did not file an action to enforce its construction
liens within 180 days after filing its notices of construction liens
(as required by statute), it has “failed to preserve any legal
claim” and has thereby forfeited the right to bring this appeal.
Second, Zion Village asserts that it now owns Pacific Coast’s
legal claims, and seeks dismissal of them on that basis. But on
the record before us, neither argument provides a basis for
summary dismissal of Pacific Coast’s appeal.
¶32 Zion Village correctly points out that, “[i]n order to
enforce a . . . construction lien,” a claimant is obligated to “file an
action to enforce the lien . . . within 180 days after” recording the
lien. See Utah Code Ann. § 38-1a-701(2)(a)(ii) (LexisNexis 2018).
If no such enforcement action is filed within that 180-day
timeframe, the “construction lien is automatically and
immediately void.” Id. § 38-1a-701(4)(a). Pacific Coast recorded
its liens in November and December 2018, and it is undisputed
that Pacific Coast did not file any enforcement action within 180
days of recording the liens. However, Pacific Coast notes that, in
April 2019, before the 180-day period expired, the district court
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granted Zion Village’s petition to nullify its construction liens,
and asserts that it could not have filed an action to enforce liens
that had been nullified by court order. Citing Utah case law,
Pacific Coast asserts that the time period within which it needed
to file any enforcement action was tolled pending appeal of the
district court’s nullification order. See Sittner v. Schriever, 2001 UT
App 99, ¶ 17, 22 P.3d 784 (stating that where “erroneous adverse
judgments procured by the debtor prevented [the lienholder]
from enforcing [the] lien,” the debtor is estopped from asserting
a statute of limitations defense during the time when an adverse
ruling prevents the lienholder from enforcing the lien); see also
Free v. Farnworth, 188 P.2d 731, 734–35 (Utah 1948), superseded by
statute on other grounds as recognized in Gildea v. Wells Fargo Bank,
NA, 2015 UT 11, ¶ 30, 347 P.3d 385. However, it is unclear
whether the principles of estoppel set forth in the cases relied
upon by Pacific Coast apply to the statutory time periods that
govern in the construction lien context. See AAA Fencing Co. v.
Raintree Dev. & Energy Co., 714 P.2d 289, 290–92 (Utah 1986) (per
curiam) (in a different context, declining to apply principles of
estoppel to mechanic’s lien statutory periods).
¶33 But we need not resolve this issue here, because the
matter is not ripe for decision. If and when Pacific Coast files an
enforcement action, 7 the court in that case will need to determine
whether that action was timely filed and, as part of that inquiry,
will need to determine whether the statutory time period was
tolled in this situation. We consider it premature to weigh in on
the timeliness of an enforcement action that has not been, and
may never be, filed. We therefore decline Zion Village’s
invitation to dismiss Pacific Coast’s appeal on this basis.
7. Given our affirmance, infra ¶¶ 37–44, of the district court’s
order nullifying Pacific Coast’s liens, it is extremely unlikely that
any such enforcement action will ever be filed.
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¶34 Next, Zion Village asserts that Pacific Coast lacks
standing because it is no longer in possession of its legal claims,
following service of Zion Village’s writ of execution on those
claims. Under Utah law, where one litigant is a judgment
creditor of its litigation opponent, it is possible for the judgment
creditor to execute upon and purchase its opponent’s legal
claims, and then seek their dismissal. See, e.g., Bradburn v. Alarm
Prot. Tech., LLC, 2019 UT 33, ¶ 15, 449 P.3d 20 (noting that the
defendant “secured a judgment” against the plaintiff, “sought a
writ of execution, held a constable sale, purchased [the
plaintiff’s] choses in action against itself, substituted itself as
plaintiff, and extinguished all claims against itself,” and stating
that this procedure was “authorized”); Applied Med. Techs., Inc. v.
Eames, 2002 UT 18, ¶ 13, 44 P.3d 699 (stating that “a defendant
can purchase claims, i.e., choses in action, pending against itself
and then move to dismiss those claims”). But execution upon
those claims is only the first step in the process; the claims do not
become the property of someone other than their original owner
until purchased by another party at a duly noticed sale.
¶35 In this case, Zion Village has executed upon Pacific
Coast’s legal claims, but it has not yet been able to schedule and
hold a sale of those claims due to the fact that Pacific Coast, by
posting a supersedeas bond, obtained an order from the district
court staying all efforts by Zion Village to enforce its judgment.
As things now stand, Zion Village is holding those claims
pending sale, but neither Zion Village nor any other third party
has yet purchased them. Until someone else purchases them,
those claims remain the property of Pacific Coast. Accordingly,
Zion Village does not yet have the right to substitute itself as
plaintiff and seek dismissal of those claims.
¶36 Thus, Zion Village is not entitled to summary disposition
of Pacific Coast’s appeal, on either asserted ground. We
therefore turn to the merits of that appeal.
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B. The Scope of the Expedited Hearing
¶37 Pacific Coast first asserts that the district court exceeded
its statutory authority by considering, in the context of the
expedited proceeding, the contents of the preliminary notice.
Pacific Coast contends that the relevant statute limits the scope
of a court’s inquiry during an expedited proceeding following
the filing of a petition to nullify, and allows a court to consider
only whether a preliminary notice was filed at all, and thus
forbids it from considering the contents of such notices, and in
particular forbids it from examining whether the notices relate to
the same property as the later-filed liens. The district court found
this argument unpersuasive, and so do we.
¶38 Under relevant statutory provisions, a landowner who
believes that a construction lien claimant has failed to “timely
file a preliminary notice under Section 38-1a-501” “may petition
the district court . . . for summary relief to nullify” the lien. See
Utah Code Ann. § 38-1a-805(1) (LexisNexis 2018). If the petition
is correctly filed, the court “shall schedule an expedited hearing”
to consider whether the “lien is invalid because the lien claimant
failed to file . . . a preliminary notice.” Id. § 38-1a-805(4)(b). “An
expedited proceeding under this section may only determine . . .
whether the lien claimant filed a notice of preconstruction
service or a preliminary notice” and, if not, “whether the lien
claimant’s preconstruction lien or construction lien is valid.” Id.
§ 38-1a-805(6).
¶39 Our “overarching goal,” in interpreting a statute, is
“to implement the intent of the legislature.” See State v.
Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92. In attempting to
ascertain that intent, we start with “the language and structure
of the statute.” Id. “Often, statutory text may not be plain when
read in isolation, but may become so in light of its linguistic,
structural, and statutory context.” Id. (quotation simplified).
“The reverse is equally true: words or phrases may appear
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unambiguous when read in isolation, but become ambiguous
when read in context.” Id. For this reason, “we read the
plain language of the statute as a whole, and interpret its
provisions in harmony with other statutes in the same chapter
and related chapters, avoiding any interpretation which renders
parts or words in a statute inoperative or superfluous in order to
give effect to every word in the statute.” Id. (quotation
simplified).
¶40 Pacific Coast rests its argument on a strict reading of
subsection (6), which states that, in an expedited proceeding, the
court “may only determine whether the lien claimant filed a . . .
preliminary notice” and, if not, whether the lien is invalid on
that basis. See Utah Code Ann. § 38-1a-805(6). We acknowledge
this language, and take Pacific Coast’s point that this section of
the construction lien statute “could have been drafted more
precisely.” But when we consider the statute as a whole, we
reach a different conclusion than Pacific Coast.
¶41 In subsection (1) of the relevant statute, the legislature
set forth the framework for the “summary relief” that may
be sought by filing a petition to nullify a construction lien. See
id. § 38-1a-805(1). As applicable here, such “summary relief”
is available where “the lien claimant did not timely file a
preliminary notice under Section 38-1a-501.” Id. § 38-1a-
805(1)(a)(ii) (emphasis added). In our view, this language
empowers a court to examine the contents of the preliminary
notice when considering a petition to nullify. For instance, the
statute clearly provides for summary relief only if the
preliminary notice is ”timely” filed, suggesting that a court is
expected to assess the timeliness of the preliminary notice,
and not just whether a notice was merely filed. See id. Moreover,
both subsection (1) and subsection (6) direct the court to
compare the lien and the preliminary notice, and assess
whether it was “the lien claimant,” rather than another party,
who filed the relevant preliminary notice. Id. § 38-1a-805(1)(a)(ii),
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(6)(a). As demonstrated above, this inquiry—a form of which
we conducted in connection with Pro Landscape’s appeal, see
supra ¶¶ 23–30—necessarily requires the court to examine the
contents of the preliminary notice. And finally, we note that the
statute requires a court, in considering a petition to nullify, to
assess whether the preliminary notice was filed “under Section
38-1a-501,” see id. § 38-1a-805(1)(a)(ii), which is the section
that sets forth the items that a proper preliminary notice
“shall include,” see id. § 38-1a-501(1)(h). Among the items
required under section 38-1a-501 is some identification of
the property to which the preliminary notice is connected. Id.
§ 38-1a-501(1)(h)(vii). For all of these reasons, after considering
the statute as a whole, we conclude that a court considering
a petition to nullify in an expedited proceeding is not limited
to examining merely whether a preliminary notice has
been filed, but instead has statutory authority to assess
whether the preliminary notice met the requirements of
section 38-1a-501, including whether the notice refers to the
same property identified in the later-filed construction lien.
¶42 And in any event, Pacific Coast’s argument, taken to
its logical conclusion, would lead to absurd consequences.
See Bagley v. Bagley, 2016 UT 48, ¶ 27, 387 P.3d 1000 (stating
that, where a statute can plausibly be read two different
ways, the “absurd consequences canon” may be invoked to
“resolve[ the] ambiguity by choosing the reading that
avoids absurd results” (quotation simplified)). If the
district court were limited to examining merely whether
any preliminary notice was filed, and were forbidden
from examining the contents of the notice to determine
whether the notice had anything to do with the property
that was the subject of the later-filed construction lien, then
a lien claimant could resist a petition to nullify simply by
pointing to a preliminary notice filed with regard to a piece of
property in a different city or county, or even to a blank
preliminary notice containing only the name of the claimant.
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Such an interpretation would be inconsistent with the purpose of
the construction lien statutes generally, see VCS, Inc. v. La Salle
Dev., LLC, 2012 UT 89, ¶ 20, 293 P.3d 290 (opining that Utah’s
“mechanic’s lien statutes are aimed not only at fortifying the
claim-filing system for contractors, but also at assuring clear
notice for property owners and facilitating finality in a field—
real estate transactions—where that policy is paramount”), as
well as with the purpose of the preliminary notice requirement
and the “summary” proceeding put in place to invalidate liens
unconnected to a preliminary notice.
¶43 Accordingly, we conclude that the district court correctly
interpreted the applicable statutes, properly considered the
contents of Pacific Coast’s preliminary notices, and
appropriately did not limit itself to merely considering whether
Pacific Coast had filed any preliminary notice.
C. The Merits of the District Court’s Inquiry
¶44 After considering the contents of Pacific Coast’s
preliminary notices, the district court found them to be
infirm, because the properties identified in the preliminary
notices were either nonexistent or were different than the
properties identified in the later-filed construction liens. As
noted above, among the information that must be included
in a preliminary notice in order for it to be valid is an
identification of the property to which the preliminary notice is
connected. Utah Code Ann. § 38-1a-501(1)(h)(vii). The district
court found, upon examining the preliminary notices submitted
by Pacific Coast, that the notices “state[d] parcel numbers that
do not exist or are materially incomplete.” Pacific Coast does not
challenge the district court’s determination that its preliminary
notices do not properly identify the real property in question,
and therefore we take it as established, for purposes of this
appeal, that the preliminary notices Pacific Coast filed are not
sufficient.
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D. Pacific Coast’s Rule 60(b) Motion
¶45 Instead of challenging the district court’s ruling on its
merits, Pacific Coast makes a different argument. It contends
that, at the time Zion Village filed its petition to nullify Pacific
Coast’s liens, Zion Village no longer owned most of the real
property identified in those liens. But Pacific Coast did not raise
this argument until after the district court had already entered
final judgment in this matter, and it did so in the form of a rule
60(b) motion filed after it had already filed its notice of appeal
from certain specified orders in the underlying case. And after
the district court denied its rule 60(b) motion a few months later,
Pacific Coast never filed a second or amended notice of appeal
purporting to include in this appeal a challenge to the court’s
ruling on the rule 60(b) motion. Nevertheless, in its brief, Pacific
Coast identified its challenge to the court’s rule 60(b) ruling as
one of the issues it wanted to bring to our attention on appeal,
and Zion Village responded to that argument on its merits,
without raising any concerns about appellate jurisdiction.
¶46 After oral argument, we realized that we may not have
appellate jurisdiction to consider Pacific Coast’s challenge to the
district court’s rule 60(b) ruling and, recognizing our
“independent obligation to ensure that we have jurisdiction over
all matters before us,” see Trapnell & Assocs., LLC v. Legacy
Resorts, LLC, 2020 UT 44, ¶ 31, 469 P.3d 989, we requested
supplemental briefing on the question. After reviewing that
supplemental briefing, we conclude that we have no appellate
jurisdiction to consider Pacific Coast’s challenge to the district
court’s ruling on the rule 60(b) motion, and we therefore dismiss
that portion of Pacific Coast’s appeal.
¶47 In order to invoke our appellate jurisdiction, a party must
generally file a notice of appeal within thirty days of the date of
entry of the final order or judgment appealed from. Utah R. App.
P. 4(a). In that notice of appeal, the appellant must “designate
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the judgment or order, or part thereof, appealed from.” See id. R.
3(d). “[R]ule 3(d)’s requirement is jurisdictional.” Jensen v.
Intermountain Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474; see also
In re adoption of B.B., 2017 UT 59, ¶ 106, 417 P.3d 1 (Lee, A.C.J.,
opinion of the court on this issue) (“An order not identified in
the notice of appeal falls beyond our appellate jurisdiction. And
the failure to identify an order is a non-waivable (jurisdictional)
defect.”). On October 3, 2019—within thirty days of entry of final
judgment—Pacific Coast filed a notice of appeal that identified
five different orders from which it was appealing. Through this
filing, Pacific Coast successfully invoked our appellate
jurisdiction to consider its challenges to the orders identified in
the October 3 notice of appeal.
¶48 But at the time it filed its notice of appeal, Pacific Coast
had not yet even filed its rule 60(b) motion, and of course the
court had not issued any ruling thereon. Under applicable rules,
and as a matter of chronology, the October 3 notice of appeal
cannot have properly invoked our appellate jurisdiction to
consider a challenge to any future ruling on an as-yet-unfiled
rule 60(b) motion. Indeed, our appellate rules provide that any
“notice of appeal filed after announcement or entry of judgment,
but before entry of an order disposing of [a rule 60(b) motion],
. . . is effective to appeal only from the underlying judgment,”
and that a party wishing “[t]o appeal from a final order
disposing of a [rule 60(b) motion] . . . must file a notice of appeal
or an amended notice of appeal within the prescribed time
measured from entry of the order.” See Utah R. App. P. 4(b)(2).
Indeed, a court’s “ruling on a rule 60(b) motion culminates in a
separate, appealable order and, thus, may not be included in an
existing appeal because the issues raised in the appeal predated
the ruling on the rule 60(b) motion.” Dennett v. Ferber, 2013 UT
App 209, ¶ 3, 309 P.3d 313 (per curiam) (quotation simplified). In
order to invoke our appellate jurisdiction to review a court’s
decision on a rule 60(b) motion, parties generally “must either
file a separate notice of appeal regarding those orders or, if they
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are entered before the filing of the notice of appeal, at least
specifically mention them in the notice of appeal being taken
from the final judgment.” Wilson v. Sanders, 2019 UT App 126,
¶ 29, 447 P.3d 1240. Thus, an appellate court “lacks jurisdiction
to resolve issues raised in a ruling on a rule 60(b) motion unless
a new notice of appeal has been filed.” Dennett, 2013 UT App
209, ¶ 3; see also Pon v. Brewer, 2020 UT App 99, ¶ 7, 468 P.3d 581(“[I]f a party fails to file an amended notice of appeal after denial
of a rule 60(b) motion, an appellate court lacks jurisdiction to
consider issues raised in that motion.”). In this case, as noted,
Pacific Coast did not file a second or amended notice of appeal
purporting to invoke our appellate jurisdiction to consider its
challenge to the district court’s rule 60(b) decision.
¶49 Pacific Coast recognizes that it failed to file a second or
amended notice of appeal, and acknowledges that we do “not
have jurisdiction to decide any issues from Pacific Coast’s rule
60(b) motion that are subject to preservation and notice of appeal
requirements.” But Pacific Coast asserts that the argument it
raised in its rule 60(b) motion—that Zion Village did not own the
property at the time it filed its petition to nullify—implicates the
district court’s subject-matter jurisdiction to adjudicate the
petition, and thus may be considered at any time in connection
with our “independent obligation” to examine jurisdictional
issues. We see two separate problems with this argument.
¶50 First, while we have an “independent obligation” to
assess our own appellate jurisdiction at any time, see Trapnell,
2020 UT 44, ¶ 31, we do not have free-standing authority—let
alone an obligation—to assess the propriety of the district court’s
exercise of subject-matter jurisdiction, absent a timely appeal.
We are aware of no case in which an appellate court has, sua
sponte or otherwise, agreed to entertain an untimely appeal
merely because that appeal implicates a district court’s subject-
matter jurisdiction. No matter what the underlying issue is,
litigants must file a timely and proper appeal in order for this
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court to have appellate jurisdiction to consider the matter. See In
re adoption of B.B., 2017 UT 59, ¶ 104 (stating that, “[w]hen a court
enters a final order . . . , that order is binding unless and until a
litigant successfully challenges the order’s validity,” and “[t]his
is true even in the context of subject-matter jurisdiction”; and
concluding that appellate courts “do not have power to sua
sponte reconsider the premises of jurisdiction of a final judgment
that has not been collaterally attacked by a litigant”). Pacific
Coast did not mount a timely and proper appeal from the
district court’s decision to deny its rule 60(b) motion, and
therefore it has not properly invoked our appellate jurisdiction
to consider its challenge to the rule 60(b) ruling, regardless of
whether the rule 60(b) motion raised matters implicating the
district court’s subject-matter jurisdiction.
¶51 Second, Pacific Coast misperceives the scope of the term
“subject-matter jurisdiction.” It is precisely because subject-
matter jurisdiction is “special”—and often implicates exceptions
to our rules of preservation and waiver—that “our law has been
careful to cabin” its definition. See id. ¶¶ 128–29; see also id. ¶ 129
(“We limit this concept carefully because an expansive notion of
subject-matter jurisdiction will undermine the basic premises of
our justice system.”). “The concept of subject-matter
jurisdiction” is construed narrowly, and “encompasses (a)
statutory limits on the authority of the court to adjudicate a class
of cases, and (b) timing and other limits on the justiciability of
the proceeding before the court (such as standing, ripeness, and
mootness).” Id. ¶ 121 (quotation simplified).
¶52 Pacific Coast acknowledges that Utah district courts have
authority to adjudicate construction lien cases—the class of case
initiated by Zion Village when it filed its petition to nullify. See
id. ¶ 143 (stating that “in Utah our district courts are courts of
general jurisdiction” and “have general power to hear all matters
civil and criminal so long as they are not excepted in the Utah
Constitution and not prohibited by law” (quotation simplified)).
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Pacific Coast asserts, however, that Zion Village lacked
“statutory standing” to bring its petition because it did not own
the property at the time the petition was filed, and posits that
this type of “standing” implicates subject-matter jurisdiction. But
there is ample case law indicating otherwise.
¶53 The type of “standing” that implicates subject-matter
jurisdiction is “[s]tanding of the constitutional variety,” a
concept that concerns itself with “injury, causation, and
redressability,” see Norris v. Causey, 869 F.3d 360, 366 (5th Cir.
2017), and asks “whether the plaintiff has alleged such a
personal stake in the outcome of the controversy as to warrant
his [or her] invocation” of the court’s jurisdiction “and to justify
exercise of the court’s remedial powers on his [or her] behalf,”
see Warth v. Seldin, 422 U.S. 490, 498–99 (1975) (quotation
simplified). This type of standing inquiry “is not the same as
legal capacity to sue,” Elite Legacy Corp. v. Schvaneveldt, 2016 UT
App 228, ¶ 51, 391 P.3d 222 (quotation simplified), and does not
include questions about whether a plaintiff meets “statutory
prerequisites” for a claim, see In re adoption of B.B., 2017 UT 59,
¶ 124 (stating that any “deficiency in this or any other [statutory]
prerequisite falls outside the traditional scope of subject-matter
jurisdiction”); id. ¶ 156 (stating that “there is no such thing as a
defect in subject-matter jurisdiction that arises only if the court
decides an issue one way”). Indeed, our supreme court has long
held that “[t]he objection that the plaintiff has not legal capacity
to sue, or to maintain or prosecute an action” is “like one that the
plaintiff is not the real party in interest,” and does not implicate
subject-matter jurisdiction but, rather, is an objection “that,
under all of the codes, must be taken at the proper time and in
the proper manner or it will be deemed waived.” See Tooele Meat
& Storage Co. v. Fite Candy Co., 168 P. 427, 428 (Utah 1917); see also
J.B. Colt Co. v. District Court of Fifth Judicial Dist., 269 P. 1017, 1019
(Utah 1928) (stating that an argument that a party does “not
have legal capacity to maintain” an action is an affirmative
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defense that “must be timely taken by demurrer or answer, or
such defense is deemed waived”). 8
¶54 Yet litigants often attempt to mislabel “capacity” or
statutory-prerequisite questions as “standing” concerns. See, e.g.,
Norris, 869 F.3d at 366 (noting that “the ‘standing’ label is also
sometimes placed on [a] real-party-in-interest challenge”); Rideau
v. Keller Indep. Sch. Dist., 819 F.3d 155, 163 n.7 (5th Cir. 2016)
8. Recently, our supreme court appeared to call into question the
concepts set forth in this case law, but stopped short—in that
case, at least—of fully addressing the issue on its merits. See
Estate of Faucheaux v. City of Provo, 2019 UT 41, ¶¶ 24–26, 449
P.3d 112. Until our supreme court officially changes the
landscape, however, we are bound to follow both Schvaneveldt—
as binding court of appeals precedent, see In re adoption of B.N.A.,
2018 UT App 224, ¶ 22, 438 P.3d 10 (stating that “one panel of
this court is bound to follow the previous decisions of another
panel of this court”)—and the older supreme court cases. See
Ortega v. Ridgewood Estates, 2016 UT App 131, ¶ 30, 379 P.3d 18(stating that the court of appeals is “bound by vertical stare
decisis to follow strictly the decisions rendered by the Utah
Supreme Court”). And in any event, we consider Schvaneveldt
and the older supreme court cases not only binding but also
persuasive, as well as jurisprudentially consistent with case law
from other jurisdictions, including the U.S. Supreme Court. See,
e.g., Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S.
118, 128 n.4 (2014) (opining that “statutory standing . . . does not
implicate subject-matter jurisdiction” (quotation simplified));
Norris v. Causey, 869 F.3d 360, 366 (5th Cir. 2017) (holding that a
question whether a plaintiff is the proper party to bring suit is
one of “contractual or statutory standing and does not go to a
court’s subject matter jurisdiction”); Niemi v. Lasshofer, 770 F.3d
1331, 1346 (10th Cir. 2014) (stating that a “statutory standing
argument does not implicate subject-matter jurisdiction”).
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(noting that “the intermingling of standing and capacity issues is
not uncommon”); In re Unger & Assocs., Inc., 292 B.R. 545, 550
(Bankr. E.D. Tex. 2003) (“Frequently, attorneys and courts
confuse the concepts of standing with that of capacity to sue and
with the real party in interest principle.”). But statutory standing
is not jurisdictional:
Despite this cross labeling, there is a key
jurisdictional distinction between a challenge that a
plaintiff lacks [constitutional] standing and one
that she is not the real party in interest. The latter
presents a merits question: who, according to the
governing substantive law, is entitled to enforce
the right? It is thus like contractual or statutory
standing and does not go to a court’s subject matter
jurisdiction.
Norris, 869 F.3d at 366 (quotation simplified); see also Lexmark
Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 n.4
(2014) (opining that “statutory standing . . . does not implicate
subject-matter jurisdiction” (quotation simplified)); cf. In re
adoption of B.B., 2017 UT 59, ¶ 130 n.14 (“We have routinely
rebuffed attempts by litigants to recast merits arguments as
issues of subject-matter jurisdiction.”).
¶55 The argument Pacific Coast raised in its rule 60(b) motion
is that Zion Village cannot meet the statutory prerequisites for
filing a petition to nullify, because at the time it filed its petition
it did not own the real property at issue. See Utah Code Ann.
§ 38-1a-805(1) (stating that “[a]n owner of an interest in a project
property . . . may petition the district court” for lien
nullification). But this argument does not implicate the district
court’s subject-matter jurisdiction. Utah district courts clearly
have jurisdiction to adjudicate the class of cases—petitions to
nullify construction liens—to which this case belongs. See In re
adoption of B.B., 2017 UT 59, ¶ 143. And while Pacific Coast has
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raised an issue of “statutory standing,” the question of whether
Zion Village—or a different potential plaintiff who might
actually own the property—meets the statutory prerequisites for
filing suit is not a question that implicates the district court’s
subject-matter jurisdiction. Thus, even if there were an exception
to appellate filing rules that would enable Pacific Coast to file an
improper or untimely appeal in order to raise challenges to a
district court’s subject-matter jurisdiction, such an exception
would not apply here, because the specific challenge Pacific
Coast raised in its rule 60(b) motion does not implicate the
district court’s subject-matter jurisdiction.
¶56 Accordingly, we lack appellate jurisdiction to consider
Pacific Coast’s challenge to the district court’s denial of the rule
60(b) motion. When we lack appellate jurisdiction, we “retain[]
only the authority to dismiss” the appeal. See Varian-Eimac, Inc.
v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Thus, we
dismiss that part of Pacific Coast’s appeal that seeks to challenge
the district court’s ruling on the rule 60(b) motion. And because
we dismiss that part of Pacific Coast’s appeal, and reject Pacific
Coast’s other arguments on their merits, we affirm the district
court’s order nullifying Pacific Coast’s construction liens.
III. Attorney Fees and Costs
¶57 Both Pro Landscape and Pacific Coast appeal the awards
of attorney fees and costs entered against them. We address the
claim of each appellant separately, in turn.
A. Pro Landscape
¶58 The district court ordered Pro Landscape to pay Zion
Village’s attorney fees and costs based on the statutory provision
stating that, if the court determines that “the construction lien is
invalid,” it “shall issue an order that . . . awards costs and
reasonable attorney fees to the petitioner.” See Utah Code Ann.
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§ 38-1a-805(7)(a)(iv) (LexisNexis 2018). But, for the reasons set
forth, see supra ¶¶ 23–30, the court erred by determining that Pro
Landscape failed to file valid preliminary notices, and erred by
nullifying Pro Landscape’s liens on that basis. It follows
therefrom that we must reverse the court’s order commanding
Pro Landscape to pay Zion Village’s attorney fees and costs.
¶59 But Pro Landscape asks us to go one step further, and
remand with instructions to order Zion Village to pay Pro
Landscape’s attorney fees and costs, pursuant to the statutory
provision requiring a court to “award costs and reasonable
attorney fees to the lien claimant” if the court determines that
“the construction lien is valid.” See id. § 38-1a-805(8)(a)(ii); see
also Federated Cap. Corp. v. Haner, 2015 UT App 132, ¶ 11, 351
P.3d 816 (“In Utah, attorney fees are awardable . . . if authorized
by statute . . . .” (quotation simplified)). This request is well-
taken. The only argument Zion Village made for the invalidity of
Pro Landscape’s construction liens was the one we have here
rejected—that Pro Landscape did not file preliminary notices.
Because we have determined that Pro Landscape did file
preliminary notices that complied with the relevant statutory
provisions, and because Zion Village has made no other
argument for the invalidity of Pro Landscape’s construction
liens, it follows that Pro Landscape’s liens are valid. Zion
Village’s petition to nullify them should be dismissed, and Pro
Landscape is entitled to an award of “costs and reasonable
attorney fees,” including fees incurred on appeal.
B. Pacific Coast
¶60 The district court also ordered Pacific Coast to pay Zion
Village’s attorney fees, based on the same statutory provision.
See Utah Code Ann. § 38-1a-805(7)(a)(iv). We have affirmed the
court’s determination that Pacific Coast’s construction liens were
invalid, and therefore we likewise affirm the district court’s
determination that Pacific Coast should be ordered to pay Zion
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Village’s reasonably incurred attorney fees and costs, including
fees incurred on appeal. See Valcarce v. Fitzgerald, 961 P.2d 305,
319 (Utah 1998) (stating that “when a party who received
attorney fees below prevails on appeal, the party is also entitled
to fees reasonably incurred on appeal” (quotation simplified));
accord Westgate Resorts, Ltd. v. Adel, 2016 UT 24, ¶ 33, 378 P.3d 93.
¶61 But Pacific Coast challenges four different aspects of the
district court’s fee award. The first of Pacific Coast’s arguments
relates to the sufficiency of the district court’s findings to
support the fee awards, which arguments present “question[s] of
law [we] review[] for correctness,” Foote v. Clark, 962 P.2d 52, 55
(Utah 1998), while the other three arguments attack the
reasonableness of particular aspects of the court’s award, which
we review for an abuse of discretion, Faust v. KAI Techs., Inc.,
2000 UT 82, ¶ 12, 15 P.3d 1266. We begin with the issue relating
to the sufficiency of the district court’s findings.
¶62 Pacific Coast first argues that the district court erred by
not requiring Zion Village to allocate its fees between its
successful preliminary notice claim and unsuccessful wrongful
lien claim. A party seeking fees “must categorize the time and
fees expended for (1) successful claims for which there may be
an entitlement to attorney fees, (2) unsuccessful claims for which
there would have been an entitlement to attorney fees had the
claims been successful, and (3) claims for which there is no
entitlement to attorney fees.” Foote, 962 P.2d at 55 (quotation
simplified). But what is most important is that time spent on
either unsuccessful claims or claims for which there is no
entitlement to attorney fees not be included in the fee request;
parties need not take the time to allocate unrecoverable fees
between categories (2) and (3). See Brown v. David K. Richards
& Co., 1999 UT App 109, ¶ 15, 978 P.2d 470 (finding the
claimant’s allocation sufficient because it “set out the time and
fees expended for successful claims for which there was an
entitlement to fees” and “eliminated fees for all non-recoverable”
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claims, even though it “forewent the exercise, perhaps
meaningless in retrospect, of allocating unrecoverable fees
between category (2) and category (3)”).
¶63 Zion Village’s fee application met these standards. The
affidavit filed in support of its fee application averred that
“[f]ees not associated with the prevailing claims have been
adjusted and deducted from the billing statements and are not
included in the amounts stated herein.” Zion Village’s counsel
reiterated to the district court at oral argument regarding the
first fee request that the “adjustment calculation” had been made
to remove fees associated with the unsuccessful wrongful lien
claim. Moreover, the district court made specific findings that
“Zion Village has reduced [its attorney fees] claim as an
adjustment for the unsuccessful claim[] for Wrongful Lien,” and
that “[m]uch of the work performed for the successful claim to
nullify the liens applies to the unsuccessful claim of wrongful
lien.” Pacific Coast contests this finding, but has not carried its
burden of demonstrating error therein. Indeed, Pacific Coast
points to no particular time entry in Zion Village’s fee affidavits
that it believes represents time spent in aid of the unsuccessful
wrongful lien claim. We therefore reject Pacific Coast’s
contention that the district court’s allocation between fees
incurred for successful and unsuccessful claims was inadequate. 9
9. Pacific Coast also asserts that the district court failed to
properly allocate Zion Village’s attorney fees and costs between
the two defendants, and erred by ordering that some of those
fees and costs be paid by both Pacific Coast and Pro Landscape,
jointly and severally. We need no longer reach this issue,
however, because we have reversed the district court’s order
commanding Pro Landscape to pay any of Zion Village’s
attorney fees, and therefore Pro Landscape is no longer
responsible for paying any of Zion Village’s attorney fees.
(continued…)
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¶64 Pacific Coast argues that the district court abused its
discretion in three ways. First, Pacific Coast asserts that it was
error to approve any of the fees Zion Village incurred prior to
March 28, 2019, because on that date Zion Village stipulated to
set aside the district court’s initial order with respect to Pacific
Coast and agreed to file an amended petition against Pacific
Coast. But Pacific Coast cites no authority to support this
assertion, and does not explain why it would be unreasonable to
award fees for any work incurred prior to the court’s first ruling,
even if the parties later stipulated to set it aside; it merely
presents the conclusory assertion that doing so was
unreasonable. Under these circumstances, Pacific Coast has not
carried its burden on appeal to adequately challenge this aspect
of the fee award as an abuse of discretion. See Dale K. Barker Co.
v. Bushnell, 2010 UT App 189, ¶ 15 n.12, 237 P.3d 903 (declining
to address argument that “precomplaint attorney fees should not
be awarded” because the “issue [was] inadequately briefed”).
And in any event we are not persuaded by Pacific Coast’s
conclusory assertion. It seems reasonable to us that Zion Village
would be entitled to attorney fees for at least some of the time it
spent in the initial stages of the case investigating the matter,
preparing its petition, and appearing at the first hearing.
Certainly, Pacific Coast has not persuaded us that the court
abused its discretion in including such time in its fee award.
(…continued)
Nevertheless, we share Pacific Coast’s skepticism regarding the
propriety of ordering two different defendants, defending two
separate claims, to pay fees jointly and severally, especially
where those defendants have not been found jointly and
severally liable on the merits. See Valcarce v. Fitzgerald, 961 P.2d
305, 318 (Utah 1998) (mandating that fee requests be “allocated
as to separate claims and/or parties”); see also Foote v. Clark, 962
P.2d 52, 55 (Utah 1998) (“Claims must also be categorized
according to the various opposing parties.”).
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¶65 Pacific Coast next argues that the district court abused its
discretion by awarding fees incurred for clerical tasks
undertaken by Zion Village. Citing federal cases but no Utah
case law, Pacific Coast asserts that “this type of administrative
and clerical work is part of attorney overhead and is not
properly recoverable,” and recovery is therefore disallowed in
Utah. However, the text of rule 73 explicitly authorizes the
recovery of fees relating to work by paralegal and administrative
staff. See Utah R. Civ. P. 73(c) (requiring that a motion filed to
request a fee award “must be supported by an affidavit or
declaration that reasonably describes the time spent and work
performed, including for each item of work the name, position
(such as attorney, paralegal, administrative assistant, etc.) and
hourly rate of the persons who performed the work, and
establishes that the claimed fee is reasonable” (emphasis
added)). Therefore, the district court did not abuse its discretion
by awarding fees related to administrative and clerical work.
¶66 Finally, Pacific Coast argues that the district court abused
its discretion by allowing Zion Village to recover for
unauthorized costs. Specifically, it challenges the award of
$48.00 in costs for “obtaining a certified copy of an abstract of
judgment and recording that abstract with the county recorder.”
While rule 54(d) does not define “costs,”
[t]he generally accepted rule is that it means 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. There is a
distinction to be understood between the legitimate
and taxable “costs” and other “expenses[]” of
litigation[,] which may be ever so necessary, but
are not properly taxable as costs.
Frampton v. Wilson, 605 P.2d 771, 774 (Utah 1980) (quotation
simplified). In Frampton, the Utah Supreme Court held that
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“certified copies” qualify as ancillary expenses that are “not
properly taxable as costs” that can be requested by a prevailing
party. Id. While the district court can certainly “exercise
reasonable discretion in regard to the allowance of costs,” we
cannot conclude that awarding the costs of making certified
copies falls within that reasonable discretion when our supreme
court has explicitly held to the contrary. See id. at 773–74. Thus,
the district court abused its discretion by considering “certified
copies” to be a recoverable cost.
¶67 In all other respects, however, we affirm the district
court’s award of attorney fees to Zion Village from Pacific Coast.
CONCLUSION
¶68 With regard to Pro Landscape’s appeal, we conclude that
Pro Landscape’s preliminary notices complied with the relevant
statutory requirements, and therefore its construction liens were
valid. Accordingly, we reverse the district court’s order
nullifying Pro Landscape’s construction liens, as well as the
court’s order requiring Pro Landscape to pay attorney fees. We
also conclude that Pro Landscape is entitled to recover fees from
Zion Village, including fees incurred on appeal. We remand for
entry of judgment in favor of Pro Landscape, and for a
quantification of Pro Landscape’s reasonable attorney fees.
¶69 With regard to Pacific Coast’s appeal, we reject Zion
Village’s arguments for summary dismissal of the appeal, but we
agree with Zion Village that the district court properly examined
the substance of the preliminary notices during the expedited
hearing. We also dismiss, for lack of appellate jurisdiction, that
part of Pacific Coast’s appeal in which it asks us to review the
district court’s decision to deny its rule 60(b) motion. We
therefore affirm the district court’s determination that Pacific
Coast’s construction liens were invalid, as well as the court’s
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determination that Zion Village is entitled to recover attorney
fees from Pacific Coast, including fees incurred on appeal.
However, we reverse one minor aspect of the court’s fee award,
and remand for an adjustment of that award.
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