2015 UT App 29

_________________________________________________________

THE UTAH COURT OF APPEALS

PENTALON CONSTRUCTION, INC.; GRANITE CONSTRUCTION COMPANY;

AND WIMMER ELECTRIC, INC.,

Plaintiffs and Appellants,

v.

RYMARK PROPERTIES, LLC, AND

FEDERAL DEPOSIT INSURANCE CORPORATION,

Defendants and Appellee.

Opinion

No. 20130973-CA

Filed February 5, 2015

Second District Court, Ogden Department

The Honorable Ernest W. Jones

No. 090902634

Robert F. Babcock, Jason H. Robinson, D. Scott 

DeGraffenried, Michael D. Zimmerman, Troy L.

Booher, and Clemens A. Landau, Attorneys for 

Appellants Pentalon Construction, Inc. and Granite 

Construction Company

Dana T. Farmer, Attorney for Appellant Wimmer 

Electric, Inc.

David M. Bennion and Alan S. Mouritsen, 

Attorneys for Appellee Federal Deposit

Insurance Corporation

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGE JOHN A. PEARCE concurred. JUDGE JAMES Z. DAVIS

dissented, with opinion.
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VOROS, Judge:

¶1 This case concerns whether the near-complete excavation 

for a building’s foundation constitutes commencement of work 

under a now-repealed provision of the Utah Mechanic’s Lien Act 

(the Act). Under the Act, a mechanic’s lien relates back to the 

date work commenced onsite. Therefore, if other legal 

requirements are met, the mechanic’s lien enjoys priority over 

any encumbrance that attaches after the commencement of work. 

In this case, Pentalon Construction, Inc., had nearly completed

the excavation for a building’s foundation when Barnes Bank—

Federal Deposit Insurance Corporation’s predecessor in 

interest—recorded a trust deed on the property. When a dispute 

over priority arose, the district court ruled that Pentalon’s nearcomplete excavation work did not constitute ‚commencement to 

do work‛ under the statute and therefore that FDIC’s trust deed 

had priority. Pentalon, Granite Construction Company, and 

Wimmer Electric, Inc., (collectively, Claimants) appeal. We 

reverse and remand for further proceedings.

BACKGROUND

¶2 Rymark Properties, LLC, owned property in Ogden, 

Utah. It hired Pentalon as its general contractor to build an auto 

plaza on the property. On May 5, 2008, Pentalon filed a notice of 

commencement in the state construction registry. On May 8, 

2008, Pentalon and its subcontractors began excavating the 

property. Photographs taken May 27, 2008, show geotextile 

fabric lining trenches that cut across the property, along with 

heavy machinery and mounds of dirt scattered throughout. See 

infra Exhibits A, B, & C. The day after these photographs were 

taken, Barnes Bank recorded its trust deed on the property. FDIC 

succeeded to Barnes Bank’s interest.
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¶3 Pentalon later sought to foreclose its mechanic’s lien 

against Rymark, FDIC, and others (collectively, FDIC). Pentalon 

moved for partial summary judgment, asking the district court 

to rule that Pentalon’s partial excavation of the property—the 

work it had completed before FDIC recorded its trust deed—

constituted commencement to do work for purposes of the Act, 

and, therefore, that its lien enjoyed priority over FDIC’s trust 

deed. The court denied Pentalon’s motion. Referencing 

photographs of the property, the court ruled that ‚there is no 

real question of fact here‛ and concluded that Pentalon’s 

excavation ‚is not legal commencement.‛ FDIC then filed its 

own motion for summary judgment. FDIC’s motion argued that 

because Pentalon’s excavation did not constitute commencement 

as a matter of law, ‚Claimants cannot establish an essential 

element of their mechanics’ lien foreclosure claims—i.e., that 

their mechanics’ liens have priority over FDIC’s trust deed.‛ The 

district court agreed that no genuine issue of material fact 

existed and that FDIC was entitled to judgment as a matter of 

law.

ISSUES ON APPEAL

¶4 Claimants first contend that, contrary to the district 

court’s ruling, Pentalon’s nearly completed excavation either 

constituted commencement to do work under the Act as a matter 

of law or, in the alternative, created a genuine issue of material 

fact as to whether Pentalon had commenced work for purposes 

of the Act.

¶5 Claimants also contend that the district court erred in 

striking affidavits submitted with its memorandum in 

opposition to FDIC’s motion for summary judgment and in 

striking its motion for reconsideration.

¶6 FDIC responds that, even assuming the excavation 

constitutes the commencement of work for purposes of the Act, 
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this court should affirm the ruling of the district court on 

alternative grounds.

ANALYSIS

I. Pentalon’s Excavation Constitutes ‚Commencement to 

Do Work.‛

¶7 Claimants contend that the district court erred in ruling as 

a matter of law that Pentalon’s excavation did not constitute 

commencement to do work under the Act, with the result that 

Pentalon’s lien does not enjoy priority. Claimants argue that they

provided ‚evidence sufficient to establish commencement of 

work as a matter of law.‛ FDIC responds that Pentalon’s 

excavation does not ‚amount to commencement‛ under the Act, 

because the work does not ‚put a reasonable observer on notice 

that lienable work was underway.‛

¶8 On appeal, we review a district court’s ‚legal conclusions 

and ultimate grant or denial of summary judgment for 

correctness.‛ Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 

(citation and internal quotation marks omitted).

¶9 Utah Code section 38-1-5 provides the guidelines for 

determining the priority of liens in this case. See Utah Code Ann. 

§ 38-1-5 (LexisNexis 2005).1 That section provides that 

mechanics’ liens generally date back to the commencement of 

work:

 

1. In 2012, this section was amended and renumbered as section 

38-1a-503. See Utah Code Ann. § 38-1a-503 (LexisNexis 2014). 

The code now provides that a lien ‚relates back to, and takes 

effect as of, the time of the first preliminary notice filing.‛ Id.

§ 38-1a-503(1).
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The liens herein provided for shall relate back to, 

and take effect as of, the time of the 

commencement to do work or furnish materials on 

the ground for the structure or improvement, and 

shall have priority over any lien, mortgage or other 

encumbrance which may have attached 

subsequently to the time when the building, 

improvement or structure was commenced, [or] 

work begun . . . .

Id. The Act ‚is remedial in nature and seeks to provide 

protection to laborers and materialmen who have added directly 

to the value of the property of another by their materials or 

labor.‛ Calder Bros. Co. v. Anderson, 652 P.2d 922, 924 (Utah 1982). 

As a result, we construe the phrase ‚commencement to do 

work‛ in favor of lien claimants. Id. ‚Materialmen’s and 

mechanics’ liens resulting from materials furnished or labor 

performed relate back to and attach as of the date of the 

commencement of the first work on the improvement or 

structure involved.‛ Id.

¶10 To constitute commencement of work under the Act, the 

work must be of the type ‚‘that a person using reasonable

diligence in examining the property would be able to see it and 

be on notice that lienable work was underway.’‛ EDSA/Cloward, 

LLC v. Klibanoff (Klibanoff I), 2005 UT App 367, ¶ 22, 122 P.3d 646 

(quoting E.W. Allen & Assocs., Inc. v. FDIC, 776 F. Supp. 1504, 

1509 (D. Utah 1991)). The work must be visible because ‚visible 

evidence of work performed provides notice to any interested 

party that work has commenced.‛ Anderson, 652 P.2d at 924 n.1; 

accord Ketchum, Konkel, Barrett, Nickel & Austin v. Heritage 

Mountain Dev. Co., 784 P.2d 1217, 1221 (Utah Ct. App. 1989). 

When considering on-site visible work, we consider whether ‚all 

the work together . . . may contribute to putting a reasonable 

observer . . . on notice that [lienable] work was underway.‛

EDSA/Cloward, LLC v. Klibanoff (Klibanoff II), 2008 UT App 
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284, ¶ 11, 192 P.3d 296 (alteration and omissions in original) 

(citation and internal quotation marks omitted).

¶11 In general, site preparation does not constitute 

commencement, because it may not put a person using 

reasonable diligence on notice that lienable work is underway. 

For example, in Ketchum, Konkel, Barrett, Nickel & Austin v. 

Heritage Mountain Development Co., 784 P.2d 1217, 1221 (Utah Ct. 

App. 1989), we held that ‚surveying, staking, and soil testing‛ 

do not constitute commencement, because they ‚do not 

constitute a visible on-site improvement.‛Id. at 1228. There, the 

workers performed architectural, engineering, surveying, 

consulting, and planning services for a ski resort. Id. at 1219. 

However, their work did not qualify for priority because ‚the 

mere fact that work was a proper subject of a lien cannot 

establish priority where it does not give notice of 

commencement.‛ Id. at 1227 (citation and internal quotation 

marks omitted).

¶12 In Klibanoff II, 2008 UT App 284, 192 P.3d 296, this court 

determined that surveys, wetlands delineations, groundwater 

monitoring, geotechnical testing, and irrigation work did not 

constitute commencement of work. Id. ¶¶ 10–12. We reasoned 

that because the work did not suggest the existence of an 

‚impending or ongoing construction project on the *p+roperty,‛ 

id. ¶ 12, the work failed ‚to put a prudent lender on notice that 

lienable work was under way,‛ id. ¶ 20.

¶13 Furthermore, in Western Mortgage Loan Corp. v. Cottonwood 

Construction Co., 424 P.2d 437 (Utah 1967), our supreme court 

stressed the requirement of visible on-site construction. Id. at 

439. There, the court determined that off-site general subdivision 

improvements not involving the lot at issue did not constitute 

commencement of work. Id. The court stated that ‚*t+he problem 

is one of notice. The presence of materials on the building site or 

evidence on the ground that work has commenced on a structure 
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or preparatory thereto is notice to all the world that liens may 

have attached.‛ Id.

¶14 Accordingly, the United States District Court for the 

District of Utah has ruled that under Utah law ‚*a+ctual 

excavation for the foundation of a building‛ constitutes 

commencement under the Act because ‚a person 

using reasonable diligence in examining the premises would be 

able to see it and be on notice that lienable work was 

underway.‛ E.W. Allen & Assocs., Inc., 776 F. Supp. at 1509. 

Claimants assert, and FDIC has cited no contrary case, that this 

is the universal rule. See J.R. Harvey, Annotation, What 

Constitutes “Commencement of Building or Improvement” for 

Purposes of Determining Accrual of Mechanic’s Lien, 1 A.L.R.3d 822 

(1965 & Supp. 2013) (collecting more than eighty cases that 

support the proposition that excavation of a foundation or 

basement constitutes commencement); see also Wylie v. Douglas 

Lumber Co., 8 P.2d 256, 257 (Ariz. 1932) (concluding that 

excavation of a foundation is sufficient to constitute 

commencement of work for mechanic’s lien priority); Seracuse 

Lawler & Partners, Inc. v. Copper Mountain, 654 P.2d 1328, 1330–31 

(Colo. App. 1982); Consolidated Lumber Co. v. Northern Lakes 

Constr. of MN, Inc., No. A10-1472, 2011 WL 1545794, at *3 (Minn. 

Ct. App. Apr. 26, 2011); Drilling Serv. Co. v. Baebler, 484 S.W.2d 1, 

9 (Mo. 1972); Robison v. Thatcher, 451 P.2d 863, 864 (Or. 1969).

¶15 Here, Pentalon had nearly completed excavation for the 

foundation of the building when FDIC recorded its trust deed. 

By that time Pentalon had already spent over 213 hours 

excavating the property with heavy machinery and installing 

geotextile fabric. In fact, the excavation trenches appear to 

outline the footprint of a building. Unlike prior cases where we 

have denied priority to lien claimants because they did not 

conduct visible on-site work, here, a ‚prudent lender [would be] 
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on notice that lienable work was under way.‛ See Klibanoff II, 

2008 UT App 284, ¶ 20.

2

¶16 FDIC argues that Pentalon’s work does not constitute 

commencement, because Pentalon had not actually completed 

excavation before FDIC recorded its trust deed. FDIC posits that 

‚partial excavation looks very much like the activities that do 

not amount to commencement under Utah law: clearing land, 

grading land, and general excavation.‛ But here, Pentalon’s 

near-complete excavation consisted of digging trenches for the 

foundation of a building, piling mounds of dirt, and installing 

geotextile fabric. This work does not resemble ‚clearing land, 

grading land, or general excavation.‛ Rather, any person using 

reasonable diligence in examining the property would be able to 

see the work and be on notice that lienable work was under way.

Calder Bros. Co. v. Anderson, 652 P.2d 922, 924 (Utah 1982).

¶17 FDIC, citing a case from Missouri, argues further that 

until excavation of a basement or foundation is complete, a 

reasonable observer would be unable to determine if the work 

constitutes commencement. See H.B. Deal Constr. Co. v. Labor 

Disc. Ctr., Inc., 418 S.W.2d 940, 944, 952 (Mo. 1967). However, the 

case FDIC cites actually holds that ongoing excavation of a 

foundation constitutes work sufficient to place a reasonable 

observer on notice that construction is underway. Id. at 954. The 

rule derived from this holding, the ‚first-spade rule,‛ provides 

 

2. We recognize the apparent circularity in tying when a lien 

attaches to when an observer would observe ‚lienable‛ work. 

We read the phrase ‚lienable work‛ as shorthand for ‚work on 

the ground for the structure or improvement.‛ Utah Code Ann.

§ 38-1-5 (LexisNexis 2005). We thus understand the rule to be 

that the lien attaches when a prudent lender would recognize

that work on the ground for a structure or improvement is under 

way. See Klibanoff II, 2008 UT App 284, ¶ 20, 192 P.3d 296.
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that ‚commencement‛ means ‚the visible commencement of 

actual operations on the ground for the erection of the building 

or the making of the improvement which makes it apparent that 

a building has been commenced or that an improvement is to be 

made.‛ Id. at 951. Claimants rightly point out that FDIC’s 

reading would convert Missouri’s ‚first-spade rule‛ into a ‚lastspade rule.‛ 

¶18 Finally, FDIC maintains that Pentalon’s excavation 

amounted to no more than soil leveling, which, they argue, 

under Utah law does not constitute commencement of work. In 

support of this argument, FDIC offers dicta from our opinion in 

Ketchum: ‚Utah’s position is consistent with the majority of 

jurisdictions which have ruled that . . . leveling the ground . . . 

*does+ not constitute ‘visible’ on-site improvements required to 

establish priority under mechanics’ liens statutes.‛ Ketchum, 

Konkel, Barrett, Nickel & Austin v. Heritage Mountain Dev. Co., 784 

P.2d 1217, 1227 (Utah Ct. App. 1989) (holding that surveying, 

staking, and soil-core sampling did not constitute visible on-site 

improvement and therefore did not constitute commencement of 

work). If we had previously held that leveling the ground did 

not constitute commencement of work, and had Pentalon done 

nothing more than level the ground, this argument might have 

some force. But our caselaw has never drawn this distinction. In 

any event, Pentalon did very nearly the opposite of leveling the 

ground: it dug wide trenches, in distinctive shapes, see infra

Exhibit C, in otherwise level ground. In light of the statutory 

text, the difference matters: while level ground might leave a 

reasonable observer to doubt whether work on a particular 

‚structure or improvement‛ had commenced, excavation in the 

shape of a structure or improvement does not. See Utah Code 

Ann. § 38-1-5 (LexisNexis 2005).

¶19 In conclusion, Pentalon’s nearly completed excavation 

constitutes ‚commencement‛ under the Act because the 

excavation was sufficient ‚to put a prudent lender on notice that 
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lienable work was under way.‛ See Klibanoff II, 2008 UT App 284, 

¶ 20, 192 P.3d 296.

3

II. Pentalon’s Other Contentions Are Not Ripe.

¶20 Pentalon also contends that ‚the district court erred in 

striking evidence Pentalon submitted alongside its opposition to 

FDIC’s motion for summary judgment‛ and that ‚the district 

court erred in striking Pentalon’s motion for reconsideration.‛ 

Pentalon asks us to address these issues on the ground that 

‚they will be relevant to the determination of Pentalon’s 

attorney fee award on remand.‛ Pentalon argues that it ‚should 

be entitled to the attorney fees it incurred in preparing these 

erroneously stricken materials.‛ FDIC responds that ‚the trial 

court acted well within its discretion‛ in ‚declining to grant 

Pentalon’s repetitive motions for reconsideration‛ and in 

striking the evidence it submitted. 

¶21 We decline to address these issues because they are not 

ripe. The ripeness doctrine ‚serves to prevent courts from 

issuing advisory opinions on issues that are not ripe for 

adjudication.‛ Fundamentalist Church of Jesus Christ of Latter-Day 

Saints v. Lindberg, 2010 UT 51, ¶ 40, 238 P.3d 1054 (citation and 

internal quotation marks omitted). A dispute ‚is ripe when a 

conflict over the application of a legal provision [has] sharpened 

into an actual or imminent clash of legal rights and obligations 

between the parties thereto.‛ Bodell Constr. Co. v. Robbins, 2009 

UT 52, ¶ 29, 215 P.3d 933 (alteration in original) (citation and 

internal quotation marks omitted). On the other hand, a dispute 

is not ripe ‚if there exists no more than a difference of opinion 

 

3. Because we rule as a matter of law that Pentalon’s excavation 

work constituted commencement under the Act, we do not 

address Pentalon’s alternative contention that a genuine issue of 

material fact existed.
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regarding the hypothetical application of [a provision] to a 

situation in which the parties might, at some future time, find 

themselves.‛ Id. (alteration in original) (citation and internal 

quotation marks omitted). 

¶22 Here, Pentalon asks us to rule on certain ‚procedural 

decisions . . . because they will be relevant to the determination 

of Pentalon’s attorney fee award on remand.‛ Pentalon asks us 

to do so to set the table for its motion for attorney fees in the trial 

court. But Pentalon has not yet prevailed below, nor filed a 

motion for attorney fees, nor has the trial court denied a fee 

motion. Accordingly, the dispute remains at this stage 

hypothetical. It presents ‚a situation in which the parties might, 

at some future time, find themselves,‛ rather than a conflict 

‚sharpened into an actual or imminent clash of legal rights and 

obligations between the parties.‛ Id. (citation and internal 

quotation marks omitted). We accordingly decline to address the 

propriety of the district court’s procedural orders at this time.

III. We Decline to Affirm the District Court’s Ruling on 

Alternative Grounds.

¶23 In addition to defending the district court’s ruling on 

section 38-1-5, FDIC asks us to affirm the district court’s ruling 

that ‚FDIC’s deed of trust is entitled to priority over Pentalon’s 

mechanic’s lien‛ on two alternative grounds: first, that 

Pentalon’s work ‚was not lienable‛ under the Act, because 

Pentalon did not perform its work ‚at the instance of the owner‛ 

as the Act requires. See Utah Code Ann. § 38-1-3 (LexisNexis 

2005); and second, that Pentalon ‚is estopped from asserting the 

priority of its mechanic’s lien.‛

¶24 Claimants urge this court not to reach these alternative 

grounds. They contend that FDIC ‚stayed further briefing of 

the[se] arguments in the district court.‛ Claimants further argue 

that had FDIC presented the district court with the argument 

that Pentalon’s work was not performed at the instance of the 
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owner, they ‚would have developed a record . . . support*ing+ 

the proposition that it began (and nearly finished) excavating the 

foundation of the project ‘at the instance of the owner.’‛ Finally, 

Claimants maintain that discovery relevant to FDIC’s estoppel 

argument was still in progress when the district court entered 

the order presently on appeal.

¶25 Though we are never obligated to affirm on other 

grounds, this court may choose to affirm the judgment of the 

district court on any legal ground or theory apparent on the 

record:

[A]n appellate court may affirm the judgment 

appealed from if it is sustainable on any legal 

ground or theory apparent on the record, even 

though such ground or theory differs from that 

stated by the trial court to be the basis of its ruling 

or action, and this is true even though such ground 

or theory is not urged or argued on appeal by 

appellee, was not raised in the lower court, and 

was not considered or passed on by the lower 

court.

Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (citation and 

internal quotation marks omitted). ‚Of course, the converse is 

also true: we will not affirm a judgment if the alternate ground 

or theory is not apparent on the record.‛ Francis v. State, 2010 UT 

62, ¶ 19, 248 P.3d 44. To affirm on a ground not apparent on the 

record ‚would invite *each+ party to selectively focus on issues 

below, the effect of which is holding back issues that the 

opposition had neither notice of nor an opportunity to address.‛ 

State v. Montoya, 937 P.2d 145, 149 (Utah Ct. App. 1997). An 

alternative ground is ‚apparent on the record‛ if the record 

contains ‚sufficient and uncontroverted evidence supporting the 

ground or theory to place a person of ordinary intelligence on 

notice that the prevailing party may rely thereon on appeal.‛ Id.

at 149–50. 
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¶26 We decline to reach the alternative theories advocated by 

FDIC as grounds to affirm. FDIC has not demonstrated that 

these claims are ‚apparent on the record.‛ See Bailey, 2002 UT 58, 

¶ 10. Claims are not apparent on the record where, as here, the 

district court’s consideration of the issues was stayed at a stage 

where, Claimants reasonably argue, further record development 

was necessary. Of course, FDIC is free to pursue these theories 

on remand.

CONCLUSION

¶27 Pentalon’s near-complete excavation work constitutes 

commencement of work under section 38-1-5. We therefore 

reverse the district court’s grant of FDIC’s motion for summary 

judgment and its denial of Pentalon’s motion for summary 

judgment and remand the case for further proceedings.
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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DAVIS, Judge (dissenting):

¶28 I agree with the majority’s determination that the district 

court erred in concluding that work had not commenced as a 

matter of law. Accordingly, I concur in reversing the district 

court’s grant of summary judgment in favor of FDIC. However, I 

do not agree with the majority that the question of whether work 

had commenced can be decided as a matter of law under the 

circumstances of this case. Thus, I would affirm the district 

court’s denial of Pentalon’s motion for summary judgment on 

alternative grounds, namely, that disputed issues of material fact 

precluded summary judgment.

¶29 The question of whether ‚a person using reasonable 

diligence in examining the property would be able to see [the 

work] and be on notice that lienable work was underway‛ is a 

question for the factfinder under the circumstances of this case. 

See Klibanoff I, 2005 UT App 367, ¶ 22, 122 P.3d 646 (citation and 

internal quotation marks omitted). Although I do not necessarily 

disagree with the majority’s conclusion that the photographs 

depict lienable work, I do not think that this conclusion may be 

reached as a matter of law. See Utah R. Civ. P. 56(c); Jones v. 

Farmers Ins. Exch., 2012 UT 52, ¶ 8, 286 P.3d 301 (observing that 

‚*a+ genuine issue of fact exists where, on the basis of the fact in 

the record, reasonable minds could differ on whether . . . 

conduct measures up to the required standard‛ and that 

‚summary judgment should be granted only when it clearly 

appears that there is no reasonable probability that the party 

moved against could prevail‛ (citations and internal quotation 

marks omitted)). In reaching its determination, I believe the 

majority has impermissibly entered the realm of factfinding, 

which should be left to the trial court judge or jury.

¶30 Moreover, in light of our reversal of the court’s ruling on 

FDIC’s motion for summary judgment, I am not convinced that 

the district court’s denial of Pentalon’s motion for summary 

judgment is ripe for appeal. The denial of a motion for summary 
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judgment is ‚archetypically non-final‛ because it ‚leave*s+ the 

merits of the case unresolved.‛ Mellor v. Wasatch Crest Mut. Ins., 

2012 UT 24, ¶ 12, 282 P.3d 981; see also Heuser v. Schmittroth, 2002 

UT App 42U, para. 2 (‚The denial of a summary judgment 

motion is not final and appealable because it leaves the case 

pending.‛). Because we have reversed the district court’s grant 

of summary judgment in favor of FDIC, the case is once again 

unresolved. Thus, appeal from the district court’s denial of 

Pentalon’s motion may be more appropriate once the case has 

been resolved on the merits following a trial. See Normandeau v. 

Hanson Equip., Inc., 2009 UT 44, ¶ 15, 215 P.3d 152 (holding that 

the denial of a motion for summary judgment on purely legal 

grounds may be appealed following a trial on the merits).