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Pearson v. Lamb9/9/2005
State Thrift & Loan Co., 798 P.2d 738, 751 n.13, 752 (Utah 1990). Utah courts have thus ruled that failure to timely commence a mechanics' lien foreclosure action and file a lis pendens, like failure to timely notify the state of a claim against it, divests the court of jurisdiction. See, e.g., Interlake Distribs., Inc. v. Old Mill Towne, 954 P.2d 1295, 1297-99 (Utah Ct. App. 1998) (holding that liens were void because plaintiffs failed to file a lis pendens); Diehl Lumber Transp. Inc. v. Mickelson, 802 P.2d 739, 742 (Utah Ct. App. 1990) ("Failure to commence a timely mechanic[s'] lien foreclosure action divests the court of jurisdiction."); AAA Fencing Co. v. Raintree Devel. & Energy Co., 714 P.2d 289, 290-91 (Utah 1986) (holding that an untimely mechanics' lien action is a jurisdictional issue and "forecloses [the parties'] rights").
Comparison between the requirements of section 38-1-11(4)(a) and the UGIA is misplaced also because Utah courts have specifically held that the UGIA is to be "strictly construed," Great W. Cas. Co. v. Utah Dep't of Transp., 2001 UT App 54, , 21 P.3d 240, whereas "substantial compliance with the [Mechanics' Liens Act] is all that is required," Chase v. Dawson, 117 Utah 295, 215 P.2d 390, 390 (1950) (relating to the legal sufficiency of the notice of lien); see also Projects Unlimited, 798 P.2d at 743 ("Utah courts have recognized that substantial compliance with [the Mechanics' Liens Act's] provisions is all that is required."). "Although courts have differing opinions about how liberally to construe provisions within their mechanic[s'] lien statutes, the modern trend is to dispense with arbitrary rules which have no demonstrable value in a particular fact pattern." Projects Unlimited, 798 P.2d at 744 (quotations and citation omitted). Here, Plaintiff substantially complied with the Act, to such an extent that Defendant did not even notice Plaintiff's oversight until May 2004, more than eighteen months after the complaint was filed and more than one month after Defendant stipulated that Plaintiff had "complied with all the statutory procedural requirements for perfecting and foreclosing on a mechanics' lien." Furthermore, Defendant did not allege how the instructions and form affidavit required by section 38-1-11(a) would have conferred any demonstrable value here, but instead argued that such value (or lack thereof) was "irrelevant" and "of no import." Therefore, Plaintiff's failure to adhere to section 38-1-11(4)(a) did not divest the trial court of jurisdiction.
CONCLUSION
Since Plaintiff's failure to adhere to section 38-1-11(4)(a) did not divest the trial court of jurisdiction, we affirm the trial court's Final Order and Judgment in favor of, and its award of reasonable attorney fees and costs below to, Plaintiff. See Utah Code Ann. ยง 38-1-18(1) (2001) (awarding reasonable attorney fees to the "successful party" in a mechanics' lien foreclosure action). Because " he general rule is that when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal," Utah Dep't of Soc. Servs. v. Adams, 806 P.2d 1193, 1197 (Utah Ct. App. 1991), we remand the matter to the district court for calculation of attorney fees reasonably incurred on appeal.
Affirmed and remanded.
James Z. Davis, Judge
I CONCUR:
Gregory K. Orme, Judge
I CONCUR IN THE RESULT:
William A. Thorne Jr., Judge
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