Utah Court of Appeals
When does construction work trigger Utah's preliminary lien notice requirement? Busico v. Carver Explained
Summary
Complete Construction performed sewage backup remediation work at the Busicos’ condo but was terminated before completion. Complete Construction filed a construction lien and counterclaimed for payment while the Busicos sued for breach of contract. The district court ruled the preliminary lien notice was untimely and denied both parties’ attorney fee requests.
Practice Areas & Topics
Analysis
The Utah Court of Appeals’ decision in Busico v. Carver clarifies what activities constitute “construction work” for purposes of triggering the preliminary lien notice requirement under Utah’s construction lien statutes.
Background and Facts
After a sewage backup flooded the Busicos’ condo, they hired Complete Construction for remediation and repairs. Complete Construction’s subcontractors began work on November 5, 2018, performing disinfection with hospital-grade disinfectant, removing damaged carpeting and flooring, and steam cleaning concrete floors. The relationship soured, and the Busicos terminated the contract on November 30. Complete Construction filed its preliminary lien notice that same day and later filed a construction lien seeking $8,499.15.
Key Legal Issues
The central issue was whether Complete Construction’s preliminary notice was timely filed. Utah Code section 38-1a-501(1)(a) requires contractors to file preliminary notice within 20 days of commencing construction work. The court also addressed Complete Construction’s alternative claim under the savings statute, which allows recovery for work performed five days after filing a late notice.
Court’s Analysis and Holding
The court determined that the disinfection and flooring removal work constituted “construction work” under Utah Code section 38-1a-102(11)(a), which includes “labor” and “service” provided “during the process of repairing an improvement.” The court rejected Complete Construction’s argument that such remedial work was mere “cleanup,” noting that the 2011 statutory amendments specifically added “repairing” to the definition. Since work began November 5 but the notice wasn’t filed until November 30, the preliminary notice was untimely. However, the court reversed on the savings statute issue, finding that Complete Construction’s December 6 flooring removal work occurred more than five days after the preliminary notice filing.
Practice Implications
This decision significantly broadens what activities trigger the preliminary notice requirement. Contractors must now consider remedial activities like disinfection, damage assessment, and preparatory work as potentially starting the 20-day clock. The decision also demonstrates the importance of the savings statute as a fallback for contractors who miss the initial deadline, allowing recovery for work performed after the late notice filing.
Case Details
Case Name
Busico v. Carver
Citation
2023 UT App 162
Court
Utah Court of Appeals
Case Number
No. 20210847-CA
Date Decided
December 29, 2023
Outcome
Affirmed in part and Reversed in part
Holding
A contractor’s preliminary lien notice was untimely because construction work began when subcontractors performed disinfection and flooring removal, but the contractor may recover under the savings statute for work performed five days after filing the notice.
Standard of Review
Correctness for interpretation of construction lien statutes; clear error for factual findings; abuse of discretion for attorney fee determinations and inherent equitable power decisions
Practice Tip
When determining the start date for construction lien notice requirements, carefully document all work activities including cleanup, disinfection, and preparatory work that may qualify as ‘repairing’ under Utah Code section 38-1a-102(11).
Need Appellate Counsel?
Lotus Appellate Law handles appeals before the Utah Court of Appeals, Utah Supreme Court, California Court of Appeal, and the United States Court of Appeals for the Tenth Circuit.
Related Court Opinions
About these Decision Summaries
Lotus Appellate Law publishes these summaries to keep practitioners informed — not as legal advice. Each case turns on its own facts. If a decision here is relevant to your matter, we’re happy to discuss it.