Hutter v. Dig-It, Inc.

1 Utah Code Ann. §§ 38-9a-101 to -205 (2005).
2009 UT 69
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Timothy and Tami Hutter, 	No. 20080077
Plaintiffs and Appellees,
v.
F I L E D
Dig-It, Inc.,
Defendant and Appellant. 	October 27, 2009
---
Second District, Ogden Dep’t
The Honorable Ernest W. Jones
No. 070904374
Attorneys: 	Jeffrey D. Stevens, Salt Lake City, for plaintiffs
Dana T. Farmer, Ogden, for defendant
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	This case arises out of a dispute over the
enforceability of a mechanic’s lien recorded by Dig-It, Inc.,
against property owned by Tim and Tamara Hutter. 	It calls for us
to consider (1) the requirements for filing a notice of
commencement under the 2006 version of section 38-1-31 of the
Utah Code and (2) whether an unenforceable mechanic’s lien is a
wrongful lien subject to nullification under Utah’s Wrongful Lien
Injunction Act. 1
¶2 	We affirm the district court’s determination that,
because Dig-It failed to file a preliminary notice, Dig-It’s
mechanic’s lien is unenforceable, but we reverse the court’s
nullification, under the Wrongful Lien Injunction Act, of Dig-
It’s mechanic’s lien.

2 Utah Code Ann. § 38-1-31(1) (Supp. 2006) (“For a
construction project where a building permit is issued within 15
days after the issuance of the building permit, the local
government entity issuing that building permit shall input the
building permit application and transmit the building permit
information to the database electronically by way of the Internet
or computer modem or by any other means . . . .”).
3 Section 38-1-27(1)(e)(i) defines “designated agent” as
“the third party the Division of Occupational and Professional
Licensing contracts with to create and maintain the State
Construction Registry.”
No. 20080077 	2
BACKGROUND
¶3 	The Hutters are California residents who contracted
with Jeromy’s Homes to build a home in Weber County. 	On May 22,
2006, the Weber County Building Department (“Weber County”)
issued a building permit to Jeromy’s Homes for construction of
the Hutters’ residence.
¶4 	On May 26, 2006, Weber County, pursuant to the
requirements of Utah’s mechanic’s lien statute, 2 faxed a copy of
the building permit to Utah Interactive, the designated agent 3
for Utah’s State Construction Registry. 	Four days later, on May
30, 2006, Utah Interactive entered the information from the
building permit into the Construction Registry. 	Utah Interactive
designated the filing as a notice of commencement and included
all the information entered on the Hutters’ building permit in
its filing. 	But neither the building permit itself, nor Utah
Interactive’s corresponding entry into the Construction Registry,
contained the Hutters’ full California address. 	Despite the fact
that there were blank spaces on the building permit for both the
“Mailing Address” and the “City - Zip” of the property owner,
only the Hutters’ California street address was entered on the
building permit. 	The “City - Zip” blank was left empty.
¶5 	Early in the construction process, Jeromy’s Homes
contracted with Dig-It to do excavating work on the Hutters’
home. 	Dig-It commenced its work on June 5, 2006, and completed
its work on October 20, 2006. 	Dig-It did not file a preliminary
notice of its work on the project. 	Dig-It alleges that Jeromy’s
Homes did not fully pay it for the work performed.
¶6 	On June 6, 2007, Dig-It recorded a mechanic’s lien
against the Hutters’ home, based on its claim that it had not
been fully paid for its work. 	After Dig-It declined the Hutters’
request to voluntarily release its lien, the Hutters filed a

4 State v. Levin, 2006 UT 50, ¶ 26, 144 P.3d 1096.
5 Esquivel v. Labor Comm’n, 2000 UT 47, ¶ 14, 982 P.2d 87.
6 Utah Code Ann. § 38-1-32 (Supp. 2006) (“Except for a
person who has a contract with an owner or an owner-builder, a
subcontrator shall file a preliminary notice with the database
within . . . 20 days after the filing of a notice of
commencement. . . . 	If a person who is required to file a
(continued...)
3 	No. 20080077
Petition for Civil Wrongful Lien Injunction, seeking to nullify
Dig-It’s lien under the Wrongful Lien Injunction Act. 	The
district court granted the Hutters’ petition, concluding that,
because the Hutters had filed an enforceable notice of
commencement, Dig-It’s lien was unenforceable due to its failure
to file a preliminary notice. 	The district court also determined
that Dig-It’s lien was a “wrongful lien” within the meaning of
the Wrongful Lien Injunction Act and granted the Hutters’
petition for nullification. 	Dig-It timely appealed the district
court’s ruling. 	We have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(j) (2008).
STANDARD OF REVIEW
¶7 	Whether a particular notice of commencement is
enforceable is a mixed question of law and fact. 	Since the facts
in this case that are determinative of whether the Hutters’
notice of commencement is enforceable are not complex and do not
depend significantly on the credibility of witnesses, we accord
only a limited degree of deference to the district court’s
findings. 4
¶8 	The question of what constitutes a wrongful lien for
purposes of the Wrongful Lien Injunction Act is a legal question
of statutory interpretation. 	Thus, we review the district
court’s determinations for correctness. 5
ANALYSIS
¶9 	In 2004, the Utah Legislature passed House Bill 136,
which revised the requirements and procedures for recording,
perfecting, and enforcing mechanic’s liens and created an online
database--the Construction Registry--to manage mechanic’s liens
filings. 	According to the statutory scheme, the filing of a
notice of commencement obligates subcontractors to file a
preliminary notice in order to maintain their right to record a
mechanic’s lien. 6 	If an enforceable notice of commencement is

(...continued)
preliminary notice under this chapter fails to file the
preliminary notice, that person may not hold a valid lien under
this chapter.”).
7 Id. § 38-1-31(3) (“If a notice of commencement for a
construction project is not filed within the time set forth in
Subsections 38-1-31(1)(a) and (b), the following do not apply:
(a) Section 38-1-32; and (b) Section 38-1-33.”).
No. 20080077 	4
not filed, however, subcontractors are under no obligation to
file a preliminary notice. 7
¶10 	In this case, the Hutters contend that the transmission
of the building permit information by Weber County and the entry
of the information into the Construction Registry by Utah
Interactive constituted an enforceable notice of commencement and
that Dig-It has no right to maintain a mechanic’s lien on the
Hutters’ home because Dig-It did not file a preliminary notice.
The Hutters also assert that, because Dig-It’s mechanic’s lien is
unenforceable, it qualifies as a “wrongful lien” and was properly
nullified under the Wrongful Lien Injunction Act.
¶11 	Dig-It, in contrast, argues that neither the
transmission of the building permit by Weber County nor the entry
of the permit information into the Construction Registry by Utah
Interactive constituted a notice of commencement because the
statute requires that notices of commencement be filed by
property owners. 	Dig-It further argues that even if the notice
of commencement for the Hutters’ home is deemed to have been
filed by an appropriate party, it is unenforceable because it did
not contain the statutorily required content, the information in
the notice was not verified prior to the filing deadline, and it
was not timely filed since no payment receipt was obtained. 	In
the alternative, Dig-It argues that, even if its mechanic’s lien
is unenforceable, it is not a “wrongful lien” for purposes of the
Wrongful Lien Injunction Act because that act applies only to
common law liens.
¶12 	We begin by evaluating Dig-It’s arguments relating to
the notice of commencement and then turn to the wrongful lien
question.

8 The relevant events in this case took place in 2006 and
are therefore governed by the version of the mechanic’s lien
statute then in effect. 	Since the statute has been substantively
amended a number of times since 2006, we cite to the version in
effect in 2006 unless otherwise noted.
9 Utah Code Ann. § 38-1-31(1)(a)(i) (Supp. 2006).
10 Id.
11 Id. § 38-1-31(1)(b).
5 	No. 20080077
I. 	IN CASES WHERE A BUILDING PERMIT IS ISSUED FOR A CONSTRUCTION
PROJECT, THE ENTRY OF THE BUILDING PERMIT INFORMATION INTO THE
CONSTRUCTION REGISTRY CONSTITUTES A NOTICE OF COMMENCEMENT
¶13 	Section 38-1-31 of the Utah Code 8 outlines the
requirements for notices of commencement and the procedures for
filing them. 	In the event that a building permit is issued for a
construction project, the issuing municipality is required to
“input the building permit application and transmit the building
permit information” to the Construction Registry within 15 days
of the building permit being issued. 9 	The statute provides that
“such information shall form the basis of a notice of
commencement.” 10 	In cases where a building permit is not issued
for a construction project, the statute provides that an
“original contractor or owner-builder may file a notice of
commencement with the database” no later than 15 days after
physical construction has commenced at the building site. 11
¶14 	Dig-It contends that the statutory language should be
read to require that notices of commencement be filed by owner-
builders or original contractors, regardless of whether a
building permit was issued for the project. 	In response, the
Hutters argue that, although the burden to file notices of
commencement rests on owners and original contractors for
projects in which a building permit has not been issued, when a
building permit has been issued the transmission of the building
permit information to the Construction Registry by the issuing
municipality constitutes the filing of a notice of commencement.
¶15 	We begin our analysis by addressing Dig-It’s argument
regarding the relevancy of the 2007 amendments to section 38-1-
31. 	In its opening brief, Dig-It cites to a version of section
38-1-31 that was enacted by the legislature in 2007, after the
relevant events in this case had taken place. 	Although Dig-It
acknowledges that it is the 2006, rather than the 2007, version
of section 38-1-31 that governs this appeal, Dig-It argues that

12 House Floor Debate, H.B. 277S03, 57th Leg., Gen. Sess.
(February 8, 2007) (Statement of Rep. Morely) (emphasis added).
13 State v. Bryant, 965 P.2d 539, 546 (Utah Ct. App. 1998)
(internal quotation marks omitted).
14 See, e.g., D.B. v. State, 925 P.2d 178, 182 n.5 (Utah Ct.
App. 1996) (determining, because of statements found in the
legislative history and the overall structure of the statutory
scheme, that the legislature passed an amendment with the intent
to clarify the law).
No. 20080077 	6
we should view the 2007 amendment of section 38-1-31 as a
clarification of the meaning of the 2006 version.
¶16 	We decline to do so. 	The only evidence that Dig-It
points to in support of its contention that the 2007 amendments
were clarifications rather than substantive changes is the
following statement by Representative Morely:
This bill is a consensus industry bill that
we’ve been working on, we’ve done that . . .
the last year or two in bringing forth just
clarifications or changes that have been
brought out during the course of the year,
particularly concerning the [Construction
Registry]. 	This clarifies time limits on
liens, does not change those limits, just
takes it out of one section and makes
reference to it in another, so it clarifies
it. 	It addresses issues regarding the
enforcement of liens and timing--just
clarifies timing on the filing of
commencement notices and preliminary notices.
It also exempts wage laborers from filing a
preliminary notice and makes some revisions
or clarifications to the Residential Lien
Recovery Fund. 12
While it is true that an amendment to an ambiguous statute “may
indicate a legislative purpose to clarify the ambiguities in the
statute rather than to change the law,” 13 this is not the general
rule, and this view of an amendment should be taken only where
there is a strong indication that clarification was, in fact, the
legislative intent. 14 	Representative Morely’s general statement
that the 2007 amendments were intended to clarify “timing on the
filing of notices of commencement” is too slender a reed upon
which to rest a general conclusion that the 2006 version of the

15 We do note, however, that the legislature again amended
section 38-1-31 in 2009 in a way that appears to be consistent
with our reading of the 2006 version of the statute. 	See Utah
Code Ann. § 38-1-31(1)(a)(i)(A) (Supp. 2009) (“For a construction
project where a building permit is issued to an original
contractor or owner-builder, no later than 15 days after the
issuance of the building permit: 	(I) the local government entity
issuing that building permit shall input the building permit
application and transmit the building permit information to the
database electronically by way of the Internet or computer modem
or by any other means; or (II) the original contractor, owner, or
owner-builder may file a notice of commencement with the database
whether or not a building permit is issued or a notice of
commencement is filed under Subsection (1)(a)(i)(A)(I).”
(emphasis added)). 	However, our holding in this case is not
based in any way on that amendment.
7 	No. 20080077
statute should be construed in accordance with a subsequently
enacted version. 	This is especially true where Dig-It wants us
to read the 2007 amendments as an authoritative statement of the
meaning of the 2006 statute regarding what constitutes a notice
of commencement, even though Representative Morely’s statement
indicates only that the 2007 amendment clarified issues regarding
the timing of notice of commencement filings.
¶17 	We therefore decline to consider the 2007 version of
section 38-1-31 as evidence of the substantive meaning of the
2006 version. 	Instead, we base our analysis solely on the text
of the 2006 version of the statute. 15
¶18 	As it was in effect in 2006, section 38-1-31(1) reads
as follows:
(1)(a)(i) For a construction project where a
building permit is issued, within 15 days
after the issuance of the building permit,
the local government entity issuing that
building permit shall input the building
permit information to the database
electronically by way of the Internet or
computer modem or by any other means and such
information shall form the basis of a notice
of commencement.
. . .
(b) For a construction project where a
building permit is not issued, within 15 days

16 Utah Code Ann. § 38-1-31(1) (Supp. 2006).
17 Id. § 38-1-31(1)(a)(i).
18 Id.
No. 20080077 	8
after commencement of physical construction
work at the project site, the original
contractor shall file a notice of
commencement with the database.
(c) An owner of construction, a lender,
surety, or other interested person may file a
notice of commencement with the designated
agent within the time prescribed by
Subsections (1)(a) and (b). 16
¶19 	Focusing on the “form[s] the basis” 17 language from the
statute, Dig-It contends that the transmission of the building
permit information by Weber County and its subsequent entry into
the Construction Registry by Utah Interactive does not constitute
a notice of commencement. 	According to Dig-It, it would be
inconsistent with the statutory language to hold that the
transmission of the building permit information was itself a
notice of commencement when section 38-1-31 states that the
transmission of the information only “form[s] the basis of a
notice of commencement.” 	Based on this reasoning, Dig-It
concludes that, even though the building permit information may
have been transmitted to the Construction Registry by the issuing
municipality or Utah Interactive, a separate notice of
commencement filing must be made by the owner, original
contractor, or authorized agent.
¶20 	Since there is no dispute that Utah Interactive made a
Construction Registry filing that it designated as a notice of
commencement for the Hutters’ home prior to the 15-day deadline,
Dig-It’s argument boils down to a contention that this filing is
not a notice of commencement simply because it was not made by
the Hutters or their general contractor. 	But the separate filing
urged by Dig-It is clearly not required by the statutory text.
All that the statute requires is that (1) a notice of
commencement filing be timely made and (2) the filing be based on
the building permit information. 18 	It is immaterial whether the
notice of commencement filing is made by the property owner, the
original contractor, the municipality issuing the building
permit, or Utah Interactive. 	No matter which party ultimately
makes the filing, it is still based on the building permit

9 	No. 20080077
information and therefore qualifies as a notice of commencement
according to the statute.
¶21 	In this case, Weber County faxed a copy of the building
permit to Utah Interactive, which subsequently entered the
building permit information into the Construction Registry and
designated it as a notice of commencement. 	We therefore hold
that Utah Interactive’s Construction Registry entry qualified as
a notice of commencement under section 38-1-31(1)(a). 	We now
address Dig-It’s arguments regarding whether this notice of
commencement is enforceable.
II. 	THE NOTICE OF COMMENCEMENT FILED FOR THE HUTTERS’ PROPERTY
IS ENFORCEABLE BECAUSE IT SATISFIES ALL PROCEDURAL REQUIREMENTS
AND CONTAINS ALL THE CONTENT REQUIRED BY STATUTE
¶22 	Dig-It also argues that, even if the Construction
Registry filing by Utah Interactive was filed by the appropriate
party, and therefore qualifies as a notice of commencement, it is
unenforceable because it fails to meet both the procedural and
substantive statutory requirements for notices of commencement.
Specifically, Dig-It contends that the notice is unenforceable
because it does not include all of the statutorily required
content and that, prior to the expiration of the 15-day deadline,
the Hutters neither verified it nor obtained a payment receipt
for the filing.
¶23 	The district court found that the notice of
commencement filed for the Hutters’ home was enforceable in all
respects, and we agree. 	As explained below, we determine that
the Hutters’ notice of commencement satisfies the statutory
content requirements for notices of commencement because it falls
within the building permit exception found in section 38-1-
31(2)(b). 	We also conclude that, in order for a notice of
commencement to be enforceable, there is neither a separate
procedural requirement that the filing be verified nor a
requirement that a payment receipt for the filing be received
within the 15-day deadline.
A. 	When a Building Permit Is Issued for a Construction Project,
the Notice of Commencement Filing Is Required to Contain Only the
Information Actually Entered on the Building Permit
¶24 	Dig-It first contends that the notice of commencement
filed for the Hutters’ home is unenforceable because it does not
contain the content required by statute. 	The district court
found that the notice of commencement contained the stautorily
required content because it fit within the building permit

19 Utah Code Ann. § 38-1-31(2)(a) (Supp. 2006).
No. 20080077 	10
exception in section 38-1-31(2)(b). 	We agree with the district
court’s finding.
¶25 	Section 38-1-31(2)(a) sets out the content requirements
for notices of commencement:
(2)(a) The content of a notice of
commencement shall include the following:
(i) the name and address of the owner of
the project;
(ii) the name and address of the:
(A) original contractor; and
(B) surety providing any payment
bond for the project or if none exists, a
statement that a payment bond was not
required for the work being performed;
(iii)(A) the project address if the
project can be reasonably identified by an
address; or
(B) the name and general
description of the location of the project if
the project cannot be reasonably identified
by an address;
(iv) a general description of the
project; and
(v) the lot or parcel number, and any
subdivision, development, or other project
name, of the real property upon which the
project is to be constructed if the project
is subject to mechanic’s liens. 19
¶26 	In cases where a building permit is issued for a
construction project, the statute contains a qualified exemption
from the section 38-1-31(2)(a) content requirements:
(b) The content of a notice of commencement
need not include all of the items listed in
Subsection (2)(a) if:
(i) a building permit is issued for the
project; and
(ii) all items listed in Subsection
(2)(a) that are available on the building

20 Id. § 38-1-31(2)(b).
11 	No. 20080077
permit are included in the notice of
commencement. 20
¶27 	Dig-It contends that the notice of commencement filing
made by Utah Interactive does not satisfy the content
requirements because it does not include the Hutters’ full
address, in that the city and state are omitted from both the
building permit and the filing made by Utah Interactive. 	The
Hutters dispute that the notice of commencement is unenforceable,
arguing both that it satisfies the full section 38-1-31(2)(a)
content requirements and that the notice qualifies for the
building permit exception to the content requirements. 	We do not
address the parties’ arguments regarding the full content
requirements for notices of commencement because we conclude that
the notice of commencement filed for the Hutters’ property fits
within the building permit exception.
¶28 	Section 38-1-31(2)(a) requires that a notice of
commencement filing include certain information. 	This
requirement ensures that the notice contains sufficient
information to enable subcontractors to locate the notice in the
Construction Registry and correctly attach their preliminary
notices. 	If there were no standard content requirements for
notices of commencement, there would be no guarantee that each
notice would contain the information required for subcontractors
to (1) tell if a notice of commencement filing had been made for
a particular project, thereby activating the subcontractor’s
obligation to file a preliminary notice, or (2) attach their
preliminary notice to the correct Construction Registry filing.
¶29 	But the need for these standard content requirements is
significantly reduced when a building permit has been issued for
a particular construction project. 	Each issued building permit
contains the building permit number, which can be used to search
the Construction Registry for a notice of commencement filed for
the construction project. 	Accordingly, on projects for which a
building permit was issued, the statute relaxes the full content
requirements and requires only that the notice of commencement
contain whatever section 38-1-31(2)(a) information is available
on the building permit. 	If none of the information required by
section 38-1-31(2)(a) is available on the building permit, none
of that information need be included in the notice of
commencement filing for that construction project. 	Conversely,
if all of the section 38-1-31(2)(a) information is available on
the building permit, all of it must be included in the notice of

21 Versluis v. Guar. Nat’l Cos., 842 P.2d 865, 867 (Utah
1992).
22 Webster’s Third New Int’l Dictionary 150 (1986).
No. 20080077 	12
commencement filing in order for the filing to qualify for the
building permit exception.
¶30 	Because a building permit was issued for construction
of the Hutters’ home, the parties agree that the notice of
commencement filing need include only the information required in
section 38-1-31(2)(a) that is “available” on the building permit.
But they dispute the meaning of the word “available.” 	Dig-It
argues that information is available on the building permit if it
is requested on the building permit. 	According to Dig-It, if the
building permit has a place for the entry of any information
required by section 38-1-31(2)(a), that information must be
included in the notice of commencement filing, regardless of
whether it was ever actually entered on the building permit.
Therefore, Dig-It contends that, because the building permit
application for the Hutters’ home had spaces for the applicant to
enter the city and zip code of the property owner, and because
this information was not included in the notice of commencement
filing made by Utah Interactive, the notice of commencement
filing does not qualify for the building permit exception to the
content requirements.
¶31 	The Hutters read the statute differently. 	They contend
that information is only available on the building permit when it
has actually been entered on the building permit. 	Therefore, the
Hutters argue that, so long as all the information required by
section 38-1-31(2)(a) that was actually entered on the building
permit is also included in the Construction Registry notice of
commencement filing, the filing qualifies for the building permit
exception to the content requirements. 	In this case, since all
of the section 38-1-31(2)(a) information that was written on the
building permit was also included in the Construction Registry
filing made by Utah Interactive, the Hutters contend that the
notice of commencement falls within the building permit
exception.
¶32 	We agree with the Hutters’ position. 	When interpreting
a statute, we assume, absent a contrary indication, that the
legislature used each term advisedly according to its ordinary
and usually accepted meaning. 21 	The ordinary meaning of the word
“available” is “capable of use for the accomplishment of a
purpose” or “immediately utilizable.” 22 	Based on this meaning,
information is “available on the building permit” when it is

23 	While our holding does allow for the possibility that a
clerical failure to transfer information from the building permit
to the Construction Registry might result in a notice of
commencement being unenforceable, this is a risk that the statute
allocates to the party seeking to enforce the notice of
commencement. 	The owner or original contractor is always free to
(continued...)
13 	No. 20080077
present or ready for immediate use. 	Information that has
actually been entered on the building permit is available in this
sense; it is present and ready to be put to use. 	Information
that is requested, but not entered, on the building permit is not
available in this same sense. 	Information that is only
requested, but not entered, on the building permit is neither
physically present nor ready for immediate use. 	Thus, the
ordinary meaning of the word “available” supports the Hutters’
interpretation.
¶33 	Dig-It argues that adopting the Hutters’ position could
lead to the absurd result of notices of commencement being
enforced despite having none of the information required by
section 38-1-31(2)(a). 	Dig-It points out that a completely empty
building permit would satisfy the building permit exception under
the Hutters’ rule. 	It is true that reading the word “available”
as the Hutters suggest would allow a notice of commencement
filing with no section 38-1-31(2)(a) information to qualify for
the building permit exception so long as none of the information
required by section 38-1-31(2)(a) was entered on the building
permit itself. 	But it is unlikely that a municipality would
issue a building permit containing none of the information
required by section 38-1-31(2)(a). 	More importantly, however, a
notice of commencement filing based on a building permit with
none of the required information would still allow subcontractors
to search the Construction Registry using the building permit
number, thereby allowing them to locate any notice of
commencement filing based on that building permit and attach
their preliminary notices.
¶34 	Accordingly, we hold that a notice of commencement
qualifies for the building permit exception to the 38-1-31(2)(a)
content requirements so long as all the information required by
section 38-1-31(2)(a) that was actually entered on the building
permit is also included in the Construction Registry notice of
commencement filing. 	Because all of the required information
actually entered on the building permit was also included in the
notice of commencement filing made by Utah Interactive, the
notice of commencement filed for the Hutters’ home satisfies the
content requirements under the building permit exception. 23

(...continued)
check to ensure that the notice of commencement filing made by
the municipality or Utah Interactive accurately reflects the
building permit. 	If an owner declines to ensure the accuracy or
completeness of information entered into the Construction
Registry by a third party, it bears the risk of not being able to
enforce the notice of commencement if the information ultimately
proves inaccurate or incomplete. 	Utah Code Ann. § 38-1-31(5)(a)
(Supp. 2006) (“The burden is upon any person seeking to enforce a
notice of commencement to verify the accuracy of information in
the notice of commencement and prove that the notice of
commencement is filed timely and meets all of the requirements in
this section.”).
No. 20080077 	14
B. 	Post-Filing Verification of the Accuracy of the Information
in a Notice of Commencement Is Not a Prerequisite to Enforcement
¶35 	Dig-It also argues that the notice of commencement
filing by Utah Interactive is unenforceable for the additional
reason that the Hutters failed to verify the information
contained in the filing prior to the filing deadline. 	Although
Dig-It argued this issue before the district court, neither the
court’s memorandum decision nor its final order addressed it.
Nevertheless, since the district court found the notice of
commencement valid and enforceable, it implicitly ruled against
Dig-It on this issue. 	We likewise conclude that Dig-It’s
position is without merit.
¶36 	Dig-It’s argument is based on section 38-1-31(5)(a),
which states as follows:
The burden is upon any person seeking to
enforce a notice of commencement to verify
the accuracy of information in the notice of
commencement and prove that the notice of
commencement is filed timely and meets all of
the requirements in this section.
¶37 	According to Dig-It, the party seeking to enforce a
notice of commencement must verify the correctness of the
information prior to the filing deadline so that subcontractors
will be able to locate the notice of commencement and attach
their preliminary notices. 	Dig-It argues that the “burden to
verify articulated by the Utah Legislature . . . is meaningless
unless: 	(1) verification occurs within the deadline for filing a
notice of commencement; and (2) a notice of commencement is

24 Id. § 38-1-31(5)(a) (“The burden is upon any person
seeking to enforce a notice of commencement to verify the
accuracy of information in the notice of commencement and prove
that the notice of commencement is filed timely and meets all of
the requirements in this section.”).
15 	No. 20080077
unenforceable if the party seeking enforcement fails to prove
that it verified the accuracy of the information.”
¶38 	Contrary to Dig-It’s assertion, the burden to verify is
not meaningless unless it is interpreted to impose a separate
procedural duty of verification. 	Even if the statute is not
interpreted to impose a procedural requirement that the owner log
back into the Construction Registry to check the accuracy of each
notice of commencement filing before the deadline passes, the
statute nonetheless allocates the consequences in the event that
the information found in the notice of commencement is
substantially inaccurate. 	Thus, in the event that a notice of
commencement filed by a municipality issuing a building permit is
inaccurate, section 38-1-31(5) makes clear that it is the person
seeking to enforce the notice, rather than the person that
created the notice, that bears the consequences of the
inaccuracies. 24
¶39 	Accordingly, we hold that the notice of commencement
filed for the Hutters’ home is not invalid simply because the
Hutters did not verify the accuracy of the notice within the 15-
day filing period.
C. 	The Timeliness of a Notice of Commencement for a Project for
Which a Building Permit Is Issued Is Not Determined by the Date a
Payment Receipt Is Received
¶40 	As its final argument for why the Hutters’ notice of
commencement is unenforceable, Dig-It asserts that since no
payment receipt was issued for Utah Interactive’s May 30, 2006
filing, the Hutters are unable to prove that the notice of
commencement was timely filed. 	On this issue, the district court
found that a payment receipt was not required because the notice
of commencement for the Hutters’ home was an alternate method
filing, which does not use a payment receipt to determine the
filing date. 	Again, we agree with the district court’s analysis.
¶41 	Dig-It’s argument is based on rule 156-38b-506, which
was promulgated by the Division of Occupational and Professional
Licensing pursuant to section 38-1-27(2)(e)(ii):

25 Utah Admin. Code r. 156-38b-506 (2006).
26 Utah Code Ann. § 38-1-27(2)(e)(ii) (Supp. 2006).
No. 20080077 	16
The official date of a particular filing
shall be determined as follows:
(1) In the case of an electronic filing, it
shall be the date the Construction Registry
accepts a filing input by the person making
the filing and makes available a payment
receipt to the person making the filing.
(2) In the case of an alternate method
filing, it shall be the date upon which the
designated agent received a filing that was
ultimately accepted into the Construction
Registry including content requirements and
payment. 25
¶42 	Dig-It’s argument fails because the notice of
commencement filing for the Hutters’ home qualifies as an
“alternate method filing,” and the rule specifies that an
alternate method filing is deemed filed on “the date upon which
the designated agent received a filing that was ultimately
accepted into the Construction Registry.” 	Section 38-1-
27(2)(e)(ii) provides that “telefax” is an alternate filing
method. 26 	Since Weber County faxed a copy of the building permit
to Utah Interactive, the date the notice of commencement was
filed is the date the building permit was received by Utah
Interactive. 	In this case, the building permit was issued for
the Hutters’ home on May 22, 2006, and Utah Interactive received
the building permit from Weber County on May 26, well within the
15-day time period in which a notice of commencement could have
been filed for the Hutters’ home. 	Accordingly, we hold that the
notice of commencement for the Hutters’ home was timely filed.
¶43 	Having determined that the Construction Registry filing
made by Utah Interactive constituted a notice of commencement
that was enforceable in all respects, we affirm the district
court’s finding that Dig-It’s failure to file a preliminary
notice rendered its mechanic’s lien unenforceable. 	We now
evaluate whether the district court correctly nullified Dig-It’s
lien under the Wrongful Lien Injunction Act.

27 See Utah Code Ann. §§ 38-9a-201 to -205 (2005).
28 The Wrongful Lien Injunction Act also defines a “wrongful
lien” as a lien made in violation of section 76-6-503.5. 	Id.
§ 38-9a-102. 	Section 76-6-503.5 makes it a crime to file a lien
while “having no objectively reasonable basis to believe [the
filer] has a present and lawful property interest in the property
or a claim on the assets.” 	Id. § 76-6-503.5. 	But in this case
Dig-It clearly has a reasonable basis to believe it has a claim
against the Hutters’ home and the Hutters do not argue otherwise.
The parties’ dispute is not over whether Dig-It had a right to a
mechanic’s lien on the Hutters’ home, but over whether Dig-It has
adequately complied with the statutory requirements to maintain
its lien.
17 	No. 20080077
III. 	EVEN THOUGH DIG-IT’S MECHANIC’S LIEN IS UNENFORCEABLE, THE
LIEN DOES NOT QUALIFY AS A WRONGFUL LIEN FOR PURPOSES OF THE
WRONGFUL LIEN INJUNCTION ACT
¶44 	The district court nullified Dig-It’s lien under the
Wrongful Lien Injunction Act based on its determination that Dig-
It’s lien was “wrongful” because it was unenforceable. 	Dig-It
contends that, even if its mechanic’s lien is unenforceable, it
is not “wrongful” because the definition of a wrongful lien
applicable to the Wrongful Lien Injunction Act excludes all liens
that are created by statute. 	Dig-It argues that because there is
statutory authorization for mechanic’s liens, Dig-It’s lien is
not, by definition, wrongful and therefore is not subject to
nullification under the Wrongful Lien Injunction Act.
¶45 	Given our conclusion that the district court properly
held, based on Dig-It’s failure to file a preliminary notice,
that its lien is unenforceable, we need not reach the question of
whether the district court properly nullified Dig-It’s lien under
the Wrongful Lien Injunction Act. 	Nevertheless, because of the
importance of the issue, we take this opportunity to clarify the
reach of the Wrongful Lien Injunction Act.
¶46 	The Wrongful Lien Injunction Act creates an expedited
procedure for removing wrongful liens. 27 	The Wrongful Lien
Injunction Act borrows its definition of a wrongful lien 28 from
the “definitions” section of the Wrongful Lien Act, which reads
as follows:
(6) “Wrongful lien” means any document that
purports to create a lien or encumbrance on
an owner’s interest in certain real property

29 Utah Code Ann. § 38-9-1(6) (2005).
30 Id. § 38-9-2(3) (“This chapter does not apply to a person
entitled to a lien under Section 38-1-3 who files a lien pursuant
to Title 38, Chapter 1, Mechanic’s Liens.”).
No. 20080077 	18
and at the time it is recorded or filed is
not:
(a) expressly authorized by this chapter or
another state or federal statute;
(b) authorized by or contained in an order or
judgment of a court of competent jurisdiction
in the state; or
(c) signed by or authorized pursuant to a
document signed by the owner of the real
property. 29
Both parties agree that a lien is wrongful if it is not
“expressly authorized by . . . statute.” 	They dispute, however,
the meaning of the phrase “expressly authorized.” 	Dig-It
contends that because the right to file a mechanic’s lien is
granted by statute, all mechanic’s liens--even if they ultimately
prove unenforceable--are expressly authorized by statute and
therefore are not wrongful liens. 	The Hutters counter by arguing
that an unenforceable lien cannot be expressly authorized by
statute since the statute only allows liens to be recorded that
comply with the statutory terms.
¶47 	The Hutters also note that the Wrongful Lien Act
contains a provision that specifically exempts mechanic’s liens
from its operation. 30 	Based on the existence of this exemption,
the Hutters reason that the legislature intended the definition
of “wrongful lien” to include statutorily created liens that
ultimately prove unenforceable. 	The Hutters argue that there
would be no reason to exclude mechanic’s liens from the operation
of the Wrongful Lien Act if the definition of wrongful lien did
not encompass them in the first place. 	And because the Wrongful
Lien Injunction Act only incorporates the definition of “wrongful
lien” from the Wrongful Lien Act and not the provision exempting
mechanic’s liens, the Hutters contend that unenforceable
mechanic’s liens are wrongful liens for purposes of the Wrongful
Lien Injunction Act.
¶48 	Dig-It responds by asserting that the exemption of
mechanic’s liens found in the Wrongful Lien Act exists only to
clarify that the definition of “wrongful lien” was never intended
to encompass liens that were authorized by statute, but rather
was intended to encompass only common law liens.

31 See Foothill Park, LC v. Judston, Inc., 2008 UT App 113,
¶ 19, 182 P.3d 924 (stating, in dicta, that “the [Wrongful Lien
Act] is not so broad as to exempt any filing that purports to
arise under the [mechanic’s] lien statute”).
32 Sachs v. Lesser, 2008 UT 87, ¶ 17, 207 P.3d 1215.
19 	No. 20080077
¶49 	This issue is one of first impression for this court,
although the court of appeals has addressed it in dicta. 31 	Both
parties’ interpretations are plausible readings of the statutory
text. 	And it is not clear from the statute’s structure and other
provisions that one interpretation better reflects the
legislature’s intent than the other. 	When the plain text of a
statute is ambiguous, in that its terms are susceptible to more
than one reasonable interpretation, we may look to legislative
history as an aid to ascertain the intent of the legislature. 32
We conclude that the phrase “expressly authorized by . . .
statute” is ambiguous and therefore turn to the statute’s
legislative history for guidance as to the legislature’s intent.
¶50 	The Wrongful Lien Act was originally enacted by the
legislature in 1985 and was last amended in 1997. 	Senator
Matheson, a sponsor of the original bill, stated that its purpose
was to impose penalties on those filing common law liens on the
property of public officials in retaliation for prosecution.
After making his initial statement, Senator Matheson was
questioned by Senator Carling, who was concerned that the
original bill’s definition of a wrongful lien was too broad for
the bill’s expressed purpose. 	Senator Carling’s question
precipitated the following exchange:
Senator Carling: Mr. President, . . . I
thought this just went to common law liens,
but apparently Senator Matheson, [you’re]
enacting a whole new section and that whole
new section it appears goes to all liens, not
just common law liens and it would go to
rental liens, lessors liens, . . . mechanic’s
liens and the thing that concerns me, I . . .
agree with what you’re trying to do and the
problem that you have but I think that you’re
going further than you intended to go because
somebody might think that they have a valid
lien against somebody, they’re going to file
a lien and it might be determined to be
invalid. 	One of the things that it says
here, uh, they assert a lien and then you

No. 20080077 	20
look at line 27, page 1 it says [“]or is
otherwise invalid,[”] . . . that kind of
covers the whole waterfront, I don’t see a
problem where it says he [“]knows or has
reason to know that the document is forged,
groundless, contains a material misstatement
or false claim,[”] but . . . where we’re
putting even a little bit of negligence in
here I wonder why you need [“]or otherwise
invalid,[”] that seems to be a little too
broad.
Senator Matheson: Now Mr. President, I’d have
no objections to taking that out. 	You know
the purpose of the bill and that’s to cover
all of you . . . [who] might . . . find
yourself in the same position if you resist
what these people are attempting to do.
. . .
Senator Moll: . . . I believe you already
know the purpose of the bill and that is to
take care of . . . the problems raised by
[some groups] in this state . . . where as a
punitive measure if we don’t do it their way
they file what we call common law liens with
recorders who are hard put to know whether
they even file them or whether they have any
liability. . . . 	[I]t addresses only liens
on real property and I suggested some
language to . . . Senator Matheson, . . .
which says in effect, this act shall have no
application to . . . [mechanic’s] or
materialmen’s liens and I believe that that
would clear it up and express the . . .
intent of the body . . . .
. . .
Senator Matheson: Now Mr. President, I’d move
under suspensions of rules [clause] it is
fourteen words that we add the language which
Mr. [Moll] has just said at the end of or
after line 33 on page 1, “This act is not

33 Senate Floor Debate, S.B. 178, 42nd Leg., Gen. Sess.
(February 21, 1985) (statements of Senators Matheson, Carling,
and Moll).
21 	No. 20080077
intended to be applicable to mechanic’s or
materialmen’s liens.” 33
¶51 	Ultimately, as a result of Senator Carling’s concern,
the amendment referenced in the legislative history quoted above
passed and the exemption of mechanic’s liens was added to the
bill.
¶52 	This legislative history makes clear that the
legislature intended that the definition of “wrongful lien”
should encompass only common law liens. 	Therefore, we conclude
that the phrase “not expressly authorized by . . . statute” in
the Wrongful Lien Act does not include statutorily created liens
that ultimately prove unenforceable. 	Because Dig-It filed a
mechanic’s lien, which is expressly authorized by statute, the
lien, though unenforceable for the reasons stated above, is not
wrongful under the Wrongful Lien Injunction Act.
CONCLUSION
¶53 	We affirm the district court’s determination that Dig-
It’s mechanic’s lien is unenforceable due to Dig-It’s failure to
file a preliminary notice. 	We reverse, however, the court’s
nullification of Dig-It’s mechanic’s lien under the Wrongful Lien
Injunction Act. 	We remand to the district court for proceedings
consistent with this opinion.
---
¶54 	Justice Wilkins, Justice Parrish, Justice Nehring, and
Judge Quinn concur in Associate Chief Justice Durrant’s opinion.
¶55 	Having disqualified herself, Chief Justice Durham does
not participate herein; District Judge Anthony B. Quinn sat.