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.
Pentalon v. Rymark Properties, LLC.
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under a now-repealed provision of the Utah Mechanic’s Lien Act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 near-
complete 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 ‚last-
spade 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).
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