Boise Cascade Corp. v. Stephens

I respectfully dissent. The main opinion has chosen to treat a factual issue not raised by the pleadings, not ruled upon by the trial court, and not argued here on appeal.

The summary judgment was based upon stipulated facts raising only a law issue of lien priority, i.e., whether or not a lien for *Page 1383 materials furnished subsequent to the execution of a lien waiver relates back in time to the initial delivery on the job site. The parties clearly viewed the contract as one of a continuous nature for the supply and delivery of building materials and we should not assume it may have been otherwise.

The issue presented to this Court merely requires an interpretation of the effect of the clear, unambiguous lien waiver¹ upon the rights of a materialman afforded by statute.²

The right to assert and perfect a mechanic's lien is a statutory privilege which may be exercised or not and hence is subject to waiver.³

In the instant case the waiver was written in clear, unambiguous language, susceptible of a single legal effect, and supported by a valuable consideration, payment. Consequently, it was not subject to being varied by parol,⁴ and there being no further genuine issue of fact, it became a law issue only, allowing for summary judgment.⁵

I would affirm the trial court.

¹ The waiver reads in part as follows: ". . . that in consideration thereof (payment) the undersigned hereby waives, releases and discharges any lien or right to lien the undersigned has or may acquire against said real property."

² U.C.A. 1953, 38-1-5. Priority — Over other encumbrances. — 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, work begun, or first material furnished on the ground; . . . .

³ J.P. Koch, Inc. v. J.C. Penney Co., Utah, 534 P.2d 903 (1975); Dwyer v. Salt Lake City Mfg. Co., 14 Utah 339,47 P. 311 (1896); 53 Am.Jur.2d Mechanic's Liens, Sec. 290.

⁴ Holbrook v. Webster's, Inc., 7 Utah 2d 148, 320 P.2d 661 (1958).

⁵ Rule 56(c) U.R.C.P.