Brigham Young University Law School BYU Law Digital Commons Utah Supreme Court Briefs 1986 Projects Unlimited, Inc. v. Copper State Thrift nda Loan Co., Valley Bank and Trust Co., and Cottonwood Thrift nda Loan Co. : Brief of Appellant Utah Supreme Court Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_sc1 Part of the Law Commons Original Brief Submitted to the Utah Supreme Court; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Robert F. Babcock, Darrel J. Bostwick; Walstad and Babcock; Attorneys for Appellant. Jon C. Heaton; Prince, Yeates, and Geldzahler; Attorneys for Respondents. Recommended Citation Brief of Appellant, Projects Unlimited, Inc. v. Copper State Thrift na d Loan Co., Valley Bank and Trust Co., and Cottonwood Thrift na d Loan Co., No. 860340.00 (Utah Supreme Court, 1986). https://digitalcommons.law.byu.edu/byu_sc1/1228 This Brief of Appellant is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Supreme Court Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. D^ NT BRIEF 45.9 159 DOCKET NO.&C&HO IN THE SUPREME COURTl OF THE STATE OF UTAH PROJECTS UNLIMITED, INC., a Utah corporation, Plaintiff/Appellant, vs. No. 860340 COPPER STATE (THRIFT & LOAN CO., VALLEY BANK fi TRUST CO., and COTTONWOOD THRIFT & LOAN CO. Defendants/Respondents. APPELLANT'S BRIEF Appeal from the Judgment of the Third District Court in and for Salt Lake County The Honorable Judith M. Bi3|lings Robert F. Babcock Darrel J. Bosrwick WALSTAD & BABCOCK 185 South State, Suite 1000 Salt Lake Citi, Utah 84111 Attorneys forjPlaintiff/Appellant Projects Unlimited, Inc. Jon C. Heaton PRINCE YEATES & GELDZAHLER Third Floor MC&NY Plaza 424 East Fifth South Slat lake Cittf, Utah 84111 Attorneys for Defendants/Respondents Copper State Thrift & Loan Co. Valley Bank & Trust Co. Cottonwood Thrift & Loan Co. OCT 217986 Clerk, Supreme Cr. LIST OF PARTIES TO THE PROCEEDING BELOW The following persons and entities are parties to the proceeding below: PROJECTS UNLIMITED, INC., a Utah corporation; BRADSHAW DEVELOPMENT COMPANY, INC., a Utah corporation; COPPER STATE THRIFT & LOAN CO., a Utah corporation; COTTONWOOD THRIFT & LOAN, a Utah corporation; VALLEY BANK AND TRUST COMPANY, a Utah corporation; WESTERN SAVINGS AND LOAN COMPANY, a Utah corpora­ tion; INDICO, a Utah corporation d/b/a INDICO DISTRIBUTING COMPANY; BRENT IVIE ELECTRIC, INC., a Utah corporation; DESERET PACIFIC MORTGAGE, a Utah corporation; SCOTT A. KAFESJIAN; DOUGLAS C. BRADSHAW; HUGO F. DIEDRICH; CAROLYN L. NIELSEN; DENNIS J. BUEHNER; HIGHLAND ORCHARDS, a Utah General Partnership or Joint Venture; HIGHLAND ORCHARDS PARTNERS, LTD., a Utah Limited Part­ nership; and OAK-POINTE DEVELOPMENT, INC., & Utah corporation. - i - TABLE OF CONTENTS LIST OF PARTIES TO THE PROCEEDING BELOW i TABLE OF CONTENTS ii TABLE OF AUTHORITIES CITED iv STATEMENT OF ISSUES ON APPEAL 1 STATEMENT OF FACTS 3 SUMMARY OF ARGUMENT 7 ARGUMENT 10 I. NOTARY CERTIFICATIONS OF MECHANIC'S LIEN VERIFICATIONS ARE VALID WITHOUT STATEMENTS OF THE NOTARY'S PLACE OF RESIDENCE AND COMMISSION EXPIRATION DATE 11 A. THE PROVISIONS OF UTAH CODE ANNOTATED, SECTION 46-1-8 ARE NOT MANDATORY 11 B. NEITHER THE UTAH RECORDING STATUTES NOR THE UTAH MECHANIC'S LIEN STATUTES REQUIRE THAT A NOTARY PUBLIC INCLUDE HIS OR HER RESIDENCE NOR HIS OR HER COMMISSION EXPIRATION DATE IN THE CERTIFICATION OF EITHER A VERIFICATION OR AN ACKNOWLEDGEMENT OF A MECHANIC'S LIEN. 14 1. Utah Code Annotated, Section 46-1-8 (1953) Does Not Apply to the Recording Statutes 15 C. THE HOLDING IN IN RE WILLIAMSON, 43 B.R. 813 (BANK. D. UTAH 1984) IS ERRONEOUS AND IS NOT BINDING ON THIS COURT 17 D. THE STANDARD OF STRICT COMPLIANCE DOES NOT APPLY TO NOTARY PUBLIC CERTIFICATIONS. ... 18 E. THE STRICT APPLICATION OF UTAH CODE ANNOTATED, SECTION 46-1-1 ET SEQ. TO THE VALIDITY OF MECHANIC'S LIENS WOULD BE DEVASTATING TO THE CONSTRUCTION INDUSTRY SINCE MOST OF THE LIENS FILED ARE ON COMMERCIALLY SUPPLIED FORMS WHICH DO NOT CONTAIN BLANKS FOR EITHER THE NOTARY'S RESIDENCE OR THE NOTARY'S COMMISSION EXPIRA­ TION DATE 23 F. SUMMARY 24 II. A MECHANIC'S LIEN CLAIMANT MAY JOIN A PARTY WHO CLAIMS AN INTEREST IN THE SUBJECT PROPERTY UP TO THE TIME OF TRIAL 25 III. THE QUESTION OF WHETHER THERE IS REASONABLE RELIANCE ON A LIEN RELEASE IS NOT ONE THAT CAN BE DECIDED THROUGH A MOTION FOR SUMMARY JUDGMENT. 29 - ii - CONCLUSION 31 ADDENDUM 33 CERTIFICATE OF MAILING 34 - iii - TABLE OF AUTHORITIES CITED AAA Fencing Company v. Raintree Development and Energy Company, 714 P.2d 289 (Utah Jan. 13, 1986) 25, 26 Bowen v. Riverton City, 656 P.2d 434, 436 (Utah 1982) 9 Chase v. Dawson, 117 Utah 295, 215 P.2d 390 (1950) 17 Deseret National Bank v. Kidman, 71 P. 873 (Utah 1903) .... 17 Doxey-Layton v. Clark, 548 P.2d 902 (Utah 1976) 27 Graff v. Boise Cascade Corporation, 660 P.2d 721 (Utah 1983) . 17 Frisbee v. K & K Construction Co., 676 P.2d 387 (Utah 1984). 30 Stahl v. Utah Transit Authority, 618 P.2d 480 (Utah 1980). 11, 18 In re Williamson, 43 B.R. 813 (BANK. D. UTAH 1984) 12, 16, 17, 18 Utah Code Annotated, Section 38-1-1 et seg 16 Utah Code Annotated, Section 38-1-7 (1953 as amended prior to April 29, 1985) 7, 14, 23 Utah Code Annotated, Section 38-1-7 (1953 as amended in 1985) 19 Utah Code Annotated, Section 38-1-11 (1953). 6, 7, 24, 25, 26, 27 Utah Code Annotated, Section 38-1-13 (1953) 24, 26 Utah Code Annotated, Section 46-1-1 et seq 22 Utah Code Annotated, Section 46-1-2 (1953 as amended in 1984) 12, 20 Utah Code Annotated, Section 46-1-8 (1953) 10, 11, 13, 14, 16, 18, 20 Utah Code Annotated, Section 57-1-6 (1953) 15 Utah Code Annotated, Section 57-2-1 (1953) 18 Utah Code Annotated, Section 57-2-5 (1953) 12, 15 Utah Code Annotated, Section 57-2-7 (1953) 18 - iv - Utah Rules of Civil Procedure Rule 15(c) 27 1 Am.Jur. 2d Acknowledgements, Section 55 12 1 Am.Jur. 2d Acknowledgements, Section 57 13 29 A.L.R. 974, s 13 29 A.L.R. 980, s 13 25 A.L.R.2d 1146, Section 28 13 25 A.L.R.2d 1147, Section 33 13 - v - IN THE SUPREME COURT OF THE STATE OF UTAH PROJECTS UNLIMITED, INC., a Utah corporation, Plaintiff/Appellant, vs. No. 860340 COPPER STATE THRIFT & LOAN CO., VALLEY BANK & TRUST CO., and COTTONWOOD THRIFT & LOAN CO. Defendants/Respondents. APPELLANT'S BRIEF STATEMENT OF ISSUES ON APPEAL The following issues are presented on appeal: 1. Does the absence of reference to a notary public's place of residence and commission expiration date from a certification of a mechanic's lifen verification or acknowledgement invalidate the mechanic's lien? 2. Does the rule of strict compliance apply to a notary certification of a mechanic's lien verification and/or acknowledgement or does the rule of substantial compliance apply? 3. Does a notary certification which contains the notary's signature, official title and official seal substantially comply with the certification requirements of the mechanic's lien and recording statutes? _ 1 - 4. Do Utah Code Annotated, Sections 38-1-11 and 38-1-13 (1953) require all parties claiming an interest in real property subject to a mechanic's lien foreclosure to be named as parties defendant within twelve months after completion of the original contract? 5. Does an amendment of a complaint in a mechanic's lien foreclosure action naming additional defendants who have knowledge of the action relate back to the original date of filing of the complaint under Rule 15(c) of the Utah Rules of Civil Procedure? 6. As a matter of law, is there a unity of interest between Valley Bank and Trust Co. and parties named in the original complaint such that an amendment of the original complaint naming Valley Bank would be deemed to relate back to the date of the original complaint? 7. As a matter of law, is the partial release of lien prepared by Defendant Bradshaw and executed by Plaintiff ambiguous on its face such as to allow parole evidence to determine the extent and coverage of said release? 8. As a matter of law, does an unambiguous partial release of lien allow an assumption by the trial court that Cottonwood Thrift & Loan Co. reasonably relied upon said partial release of lien without further inquiry as to the facts and circumstances surrounding such purported reasonable reliance? - 2 - 9. Does a dispute as to a material fact exist as to the meaning and intent of the partial release of lien and the subsequent purported reliance by Cottonwood Thrift & Loan upon said release? STATEMENT OF FACTS This action arises out of the construction of a condominium project in Salt Lake County, State of Utah known as the Highland Orchards Condominium Project. (See Complaint, Record at p.2, and Amended Complaint, Record at p.242). Plaintiff Projects Unlimited was the general contractor and performed work on the project pursuant to two contracts with Defendant Bradshaw Development. (See Complaint, Record at p.2, Amended Complaint, Record at p.242, Affidavit of David Mast, Record at p.487, Affidavit of Phil Hofstetter, Record at p.508, and Memorandum, Record at p.464).