Lane Myers v. National City Bank , 2014 UT 58 ( 2014 )


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  •               This opinion is subject to revision before final
                       publication in the Pacific Reporter
    
                                  
    2014 UT 58
    
    
                                     IN THE
    
         SUPREME COURT OF THE STATE OF UTAH
    
                   LANE MYERS CONSTRUCTION, LLC,
                            Respondent,
                                        v.
        NATIONAL CITY BANK, NATIONAL CITY BANK OF INDIANA,
                            Petitioners.
    
    
                               No. 20121004
                         Filed December 19, 2014
    
              On Certiorari to the Utah Court of Appeals
    
                  Third District, Silver Summit Dep’t
                   The Honorable Bruce C. Lubeck
                            No. 070500707
    
                                  Attorneys:
            Rick L. Sorensen, Salt Lake City, for respondent
        Lincoln Harris, Zachary E. Peterson, Paul P. Burghardt,
                    Salt Lake City, for petitioners
    
     JUSTICE LEE authored the opinion of the Court, in which JUSTICE
    PARRISH joined and in which CHIEF JUSTICE DURRANT and JUSTICE
                      DURHAM each joined in part.
      CHIEF JUSTICE DURRANT filed a concurring opinion, in which
           ASSOCIATE CHIEF JUSTICE NEHRING joined in part.
    JUSTICE DURHAM filed a concurring opinion, in which ASSOCIATE
                CHIEF JUSTICE NEHRING joined in part.
     ASSOCIATE CHIEF JUSTICE NEHRING filed a concurring opinion.
                 LANE MYERS CONSTR. v. NAT’L CITY BANK
                           Opinion of the Court
    
    
       JUSTICE LEE, opinion of the Court:
       ¶1 Dick and Kim Kyker hired Lane Myers Construction to
    build two separate homes. The Kykers secured a construction
    loan through National City Bank, and the bank periodically paid
    Lane Myers on draw request forms that included language
    stating that Lane Myers had no lien on the property. The
    question presented is whether the draw request forms effected an
    enforceable lien waiver under the Utah Mechanics’ Lien Act. 1
       ¶2 The district court entered summary judgment for the
    Kykers and National City, holding that the draw requests were in
    substantial compliance with the Act and thus effected a waiver
    foreclosing Lane Myers’s lien claim. The court of appeals
    reversed. It held that the forms were not in substantial
    compliance with the Act because they failed to incorporate the
    essential elements of the “forms” included in the Act. UTAH CODE
    § 38-1-39(4)(b) (2010).
       ¶3 We reverse and remand. In the circumstances of this case,
    we interpret the Act to require only “a waiver and release that is
    signed by the lien claimant or the lien claimant’s authorized
    agent.” Id. § 38-1-39(2)(a)(i). And we interpret that requirement to
    incorporate the established, term-of-art understanding of the
    elements of a “waiver.” Thus, we view the forms set forth in the
    statute as only a safe harbor, and not a requirement. Under the
    standard as clarified below, however, we decline to affirm entry
    of summary judgment for the Kykers and National City. Instead,
    finding genuine issues of material fact on the current record, we
    remand to the district court for further proceedings.
                                     I
      ¶4 In 2006, Lane Myers agreed to build two homes for Kim
    and Dick Kyker, one in Park City and the other in Oakley.
    Although Lane Myers also asserted a lien against the Oakley
    
    
       1 UTAH CODE §§ 38-1-1 to –40 (2010). The 2010 version of the
    Act is identical to the version that was in place at the time of the
    events in question here, Lane Myers Constr., LLC v. Countrywide
    Home Loans, Inc., 
    2012 UT App 269
    , ¶ 1 n.2, 
    287 P.3d 479
    , and the
    court of appeals elected to cite to that version in its opinion. To
    remain consistent with the court of appeals and for ease of
    reference we also cite to the 2010 version of the Act in this
    opinion.
    
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                          Opinion of the Court
    property, only the facts concerning the Park City home are
    relevant to this appeal.
       ¶5 The Kykers obtained a construction loan from National
    City in order to pay Lane Myers for the construction of the Park
    City home. Lane Myers commenced construction that year, and
    between June 14, 2006, and August 22, 2008, it submitted a total
    of sixteen draw requests to National City. Although Lane Myers
    submitted these draw requests directly to National City, it alleges
    that it did not know the total amount of the construction loan.
    But despite this fact, when it signed each of these draw requests
    Lane Myers certified that the “available proceeds of the loan are
    sufficient to finally and fully complete and pay for completion of
    improvements” and that “no suppliers, subcontractors, laborers,
    or other persons are claiming or are entitled to claim a lien
    against the property securing the loan.”
       ¶6 Although Lane Myers submitted sixteen draw requests,
    National City fully funded only five of them. Lane Myers
    repeatedly asked National City why its requests were being only
    partially funded, and each time National City responded by
    stating that there were either unauthorized cost overages in the
    requests or that, based on an inspection of the property, a full
    disbursement was not warranted. Lane Myers also informed the
    Kykers of the shortages, and the Kykers repeatedly assured Lane
    Myers that they would “take care of it.” In fact, at one point the
    Kykers even sent Lane Myers funds from a different account to
    cover the shortages, but then requested that those funds be
    applied to the Oakley property.
       ¶7 At the time, Lane Myers submitted its fifteenth draw
    request it was owed a balance of $357,560.98. When it received a
    disbursement of just $21,140.60 from National City, it again
    called National City to inquire about the discrepancy. This time,
    National City informed Lane Myers that the only funds left in the
    account were “retainage that National City was holding until a
    certificate of occupancy was issued by the city.” According to
    Lane Myers, this was the first time it realized that the Kykers’
    construction loan would not cover all of the construction costs for
    the Park City home.
       ¶8 Nevertheless, despite being owed over $300,000, Lane
    Myers submitted its sixteenth and final draw request to National
    City on August 22, 2008, for just $105,702.99. National City
    instructed Lane Myers to use the same form for the final draw
    request as it had for the prior requests, but to handwrite “Final
    
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                LANE MYERS CONSTR. v. NAT’L CITY BANK
                          Opinion of the Court
    Draw” at the top of the form, presumably to make the following
    language operative:
          IF THIS IS THE FINAL DRAW I/WE FURTHER
          CERTIFY THAT:
          1. The General Contractor has to date been paid in
             full for all work performed and for all labor,
             materials furnished by the General Contractor
             and all sub-contractors, materialmen, suppliers
             and laborers and that no such sub-contractors,
             suppliers, or materialmen, laborers or other
             persons providing goods and services used in the
             improvements to the property have unpaid
             claims. . . .
          2. That no liens or claims that may result in liens
             exist against the above-described property other
             than as set forth herein.
          3. That the General Contractor has received
             payments          for     all      stages      of
             construction/rehabilitation of the property other
             than the final disbursement.
          4. That the borrower(s) has/have requested, from
             the Lender, final disbursement of the
             construction/rehab funds in order to make final
             payment to the General contractor and that upon
             said disbursement by Lender the General
             Contractor will be paid in full under the
             Construction Contract.
       ¶9 Lane Myers alleges that it had reservations about
    submitting a “final” draw request that would not cover the total
    amount it was owed, but asserts that it did so because (a) the
    Kykers had informed it that they would pay any remaining
    balance after the final draw personally, (b) the Kykers were
    working with a mortgage broker in order to secure the funds to
    do so, and (c) National City explained to Lane Myers that the
    handwritten words “final draw” only referred to “the ‘final
    draw’ of the amounts available for reimbursement from the loan
    and not to a final payment of any amounts that may still be owed
    by the homeowner . . . for costs in excess of the amounts available
    for reimbursement from the loan.” Allegedly in reliance on these
    assurances, Lane Myers signed the request on August 30, 2007,
    and received $105,702.99.
    
    
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                           Opinion of the Court
       ¶10 The Kykers failed to repay Lane Myers as promised,
    however, which resulted in Lane Myers recording a mechanic’s
    lien against the property on November 15, 2007, for $576,366.93.
    Lane Myers then filed suit against the Kykers on December 12,
    2007, seeking both to enforce its lien by foreclosing on the Park
    City home and to recover over $890,000 in damages. Lane Myers
    subsequently amended its complaint to include National City in
    order to establish priority over National City’s trust deed.
      ¶11 The Kykers moved for summary judgment, arguing that
    the draw requests constituted “lien waivers” and that by signing
    them and accepting the funds from the construction loan, Lane
    Myers had waived its right to file a mechanic’s lien. The motion
    was later amended and asserted on behalf of both the Kykers and
    National City. In opposition, Lane Myers did not contest that it
    had signed the draw requests or that it had received funds from
    the loan; instead, it argued that the draw requests were not “lien
    waivers” because they did not “substantially comply” with the
    portion of the Act governing waivers of the right to file a
    mechanic’s lien.
       ¶12 The district court agreed with the Kykers and National
    City and granted their motion, concluding that the draw
    requests “compl[ied] substantially with Utah law” in “effectively
    and clearly, on their face, releas[ing] any claims for work done
    prior to the date of execution.” Accordingly, the district court
    dismissed Lane Myers’s mechanic’s lien claim with prejudice.
    Lane Myers filed a timely appeal.
       ¶13 On appeal, the court of appeals reversed. It interpreted
    the Act to require a lien waiver to be “substantially” in the form
    provided in section 38-1-39(4). Lane Myers Constr., LLC v.
    Countrywide Home Loans, Inc., 
    2012 UT App 269
    , ¶¶ 16–17, 
    287 P.3d 479
    . Thus, although the court viewed the statutory form as a
    “safe harbor for lenders” and not a hard-and-fast requirement of
    the Act, id. ¶ 16, it concluded that “the legislature has indicated
    its intent that a valid waiver and release at least contain each of
    the component parts the form includes, in substance and effect if
    not in the identical language.” Id. ¶ 17.
        ¶14 Ultimately, the court of appeals identified “four distinct
    components” of the statutory form that it deemed “important
    . . . to effectively waive and release lien rights for the benefit of a
    lender” and “to ensure that the contractor is clearly on notice that
    as a consequence of signing the form, he or she is relinquishing
    core protections of the mechanics’ lien act in connection with a
    
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                LANE MYERS CONSTR. v. NAT’L CITY BANK
                          Opinion of the Court
    particular project on specific property.” Id. ¶¶ 18, 19. Those
    elements were (1) “a statement that the document is intended to
    be a waiver and release in accordance with Utah law”; (2)
    “specific information pertinent to the particular lien rights
    subject to waiver and release, including ‘Property Name,’
    ‘Property Location,’ the identity of the ‘[Contractor]’s Customer,’
    ‘Invoice/Payment Application Number,’ and ‘Payment
    Amount’”; (3) “explicit notice to the contractor of the effect that
    signing the release will have on rights otherwise available to it
    under the mechanics’ lien act and the conditions upon which the
    waiver of those rights becomes effective”; and (4) the contractor
    either “represent[s] that all those who might have subordinate
    lien claims have been paid or . . . promise[s] that the funds
    received in exchange for the waiver and release will be used to
    make such payments.” Id. ¶ 18 (first alteration in original).
    Because the draw requests in this case did not “contain all the
    required components of a valid form,” the court of appeals held
    that “Lane Myers did not execute a waiver and release that
    complies with the statute” and thus that “the trial court erred in
    granting summary judgment in favor of National City.” Id. ¶¶ 20,
    21.
       ¶15 National City and the Kykers filed a timely petition for
    certiorari, which we granted. Our review of the issues before us
    is de novo. Torian v. Craig, 
    2012 UT 63
    , ¶ 13, 
    289 P.3d 479
     (“We
    review the district court’s grant of summary judgment for
    correctness.”); Bahr v. Imus, 
    2011 UT 19
    , ¶ 12, 
    250 P.3d 56
     (“[W]e
    have consistently reviewed decisions on summary judgment for
    correctness, according no deference to [the] trial court’s
    analysis.”).
                                    II
       ¶16 The question presented concerns the required content of a
    waiver of a mechanic’s lien under Utah Code section 38-1-39(2).
    Two distinct views were embraced in the courts below. The
    district court held that Lane Myers’s draw requests effected an
    enforceable waiver because they “clearly, on their face, released
    any claims for work done prior to the date of execution.” The
    court of appeals reached a contrary conclusion. It did so on the
    ground that the draw requests failed to incorporate the essential
    elements of the waiver form provided in Utah Code section 38-1-
    39(4).
       ¶17 We read the statute somewhat differently than the court
    of appeals, but also take issue with the breadth of the standard
    
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                           Opinion of the Court
    employed by the district court. In our view, the form set forth in
    Utah Code section 38-1-39(4)(b) and (c) is merely a safe harbor,
    and not a requirement for execution of an effective lien waiver
    under section 38-1-39(2)(a)(i). Thus, we hold that the sole criteria
    for the execution of an effective lien waiver are those set forth in
    section 38-1-39(2)—the execution of a “waiver and release that is
    signed by the lien claimant or the lien claimant’s authorized
    agent,” and the receipt of “payment of the amount identified in
    the waiver and release.” Id. § 38-1-39(2)(a)(i), (b).
       ¶18 That said, we also stop short of categorically endorsing
    the district court’s approach. Specifically, we read the statutory
    requirement of a “waiver and release” to incorporate the
    established elements of the legal concept of a “waiver.” And
    because we see unresolved questions of fact of relevance to that
    concept, we reverse and remand for further proceedings
    consistent with this opinion.
                                      A
       ¶19 The Utah Mechanic’s Lien Act prescribes two sets of
    standards for measuring the sufficiency of a waiver of a statutory
    lien right. First, as a general rule a lien waiver is “enforceable
    only if the lien claimant . . . . executes a waiver and release that is
    signed by the lien claimant or the lien claimant’s authorized
    agent.” UTAH CODE § 38-1-39(2)(a)(i). Second, the statute
    prescribes a separate standard for a waiver that is effected by a
    “restrictive endorsement on a check.” Id. § 38-1-39(2)(a)(ii). For
    that type of waiver the statute requires “a restrictive
    endorsement on a check that is: (A) signed by the lien claimant or
    the lien claimant’s authorized agent; and (B) in substantially the
    same form set forth in Subsection (4)(d).” Id.
       ¶20 The significance of the forms set forth in subsection (4) of
    the Act thus depends on whether or not the waiver in question is
    one provided on a “restrictive endorsement on a check.” For that
    sort of waiver, the statute requires that it be “in substantially the
    same form set forth in Subsection (4)(d).” But for all other
    waivers the statute requires only a “waiver and release that is
    signed by the lien claimant or the lien claimant’s authorized
    agent.” Thus, conformance with the “form set forth in Subsection
    (4)(d)” is not an element of the general rule; this requirement
    applies only to waivers on a “restrictive endorsement on a
    check.”
       ¶21 Nothing in subsection (4) suggests otherwise. The
    language of that subsection is distinctly permissive, not
    
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                 LANE MYERS CONSTR. v. NAT’L CITY BANK
                           Opinion of the Court
    prescriptive. It indicates that a “waiver and release given by a
    lien claimant meets the requirements of this section if it is in
    substantially the form provided in this Subsection (4) for the
    circumstances provided in this Subsection (4).” UTAH CODE § 38-
    1-39(4)(a); see also id. § 38-1-39(4)(b) (for a waiver and release in
    connection with “payment of a progress billing”); id. § 38-1-
    39(4)(c) (same language for waiver and release in connection with
    “payment of a final billing”). The permissive terms of subsection
    (4)—“meets the requirements of this section if it is in
    substantially the form provided”—are unmistakably that of a
    safe harbor, not a prerequisite.
       ¶22 The court of appeals acknowledged the permissive, safe-
    harbor nature of the “precise language” of the forms set forth in
    subsection (4). Lane Myers Constr. LLC v. Countrywide Home Loans,
    Inc., 
    2012 UT App 269
    , ¶ 16, 
    287 P.3d 479
    . But it nonetheless
    concluded that substantial compliance with the forms was a part
    of the “overarching standard for an enforceable waiver and
    release.” Id. ¶ 17. And it accordingly identified “four distinct
    components” of the forms that it deemed “important . . . to
    effectively waive and release lien rights.” Id. ¶¶ 18, 19.
       ¶23 We see no statutory basis for this construct. Subsection (4)
    invokes substantial compliance as a prerequisite to the statutory
    safe harbor, not an element of the threshold standard for
    enforceability of a waiver. And subsection (2) plainly requires
    substantial compliance with the forms only for a waiver in a
    restrictive endorsement on a check. UTAH CODE § 38-1-
    39(2)(a)(ii)(A)–(B). The lack of a parallel requirement in
    subsection (2) for lien waivers generally yields a powerful
    negative inference: Lien waivers generally need not follow the
    forms set forth in subsection (4); substantial compliance with the
    forms is a requirement only for waivers effected by a restrictive
    endorsement on a check. 2
    
    
    
       2   See, e.g., Bailey v. United States, 
    516 U.S. 137
    , 146 (1995)
    (contrasting 18 U.S.C. § 924(d)(1), which provided for forfeiture of
    a firearm when it was “used” or “intended to be used” in certain
    crimes, and § 924(c)(1), which provided for a sentencing
    enhancement for a person who “used” a firearm in a drug
    trafficking crime; interpreting the § 924(c)(1) provision to be
    limited to actual use, while crediting the difference between the
    two provisions and inferring that “Congress intended each of
    [the] terms” of the statute “to have meaning”).
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                                      B
       ¶24 In reaching the contrary conclusion, the court of appeals
    noted that our precedents have long advocated the “broad”
    interpretation of the Mechanics’ Lien Act in furtherance of a
    perceived purpose of the legislature—“‘to protect, at all hazards,
    those who perform the labor and furnish the materials which
    enter into the construction of a building or other improvement.’”
    
    2012 UT App 269
    , ¶ 15 (quoting Sill v. Hart, 
    2007 UT 45
    , ¶ 8, 
    162 P.3d 1099
    ). Lane Myers advances these same points as grounds
    for a ruling in its favor, insisting on a broad construction of the
    Act in furtherance of this purported legislative purpose.
      ¶25 We recently rejected a parallel argument under the
    Workers Compensation Act, in Jex v. Utah Labor Commission, 
    2013 UT 40
    , 
    306 P.3d 799
    . In that case a plaintiff asserting a right to
    workers compensation benefits claimed the benefit of a line of
    cases calling for a liberal construction of the Workers
    Compensation Act in a manner giving claimants the benefit of
    “any doubt” on matters of statutory construction. Id. ¶ 52
    (quoting Salt Lake City Corp. v. Utah Labor Comm’n, 
    2007 UT 4
    ,
    ¶ 16, 
    153 P.3d 179
    ). We rejected that argument in Jex, on terms
    that apply by extension here.
       ¶26 First, our Jex opinion characterized the “dicta” advocating
    resolution of “any doubt” in favor of a claimant as “hyperbole.”
    Id. ¶ 53. Noting that “[t]he judicial process is premised on
    doubt,” we concluded that mere doubt “cannot be enough to
    generate a benefit-of-the doubt presumption in favor of
    coverage.” Id. ¶¶ 53, 54. Thus, in Jex we refined the dicta in our
    past cases, adopting a narrow variation on the liberal
    interpretation standard under which “[t]he benefit of the doubt
    owing to workers’ compensation claimants comes at the back end
    of the litigation—after the judge . . . makes a run at . . . clarifying
    gray areas of law.” Id. ¶ 56. In other words, we clarified that our
    canon of liberal construction was simply a tie-breaker, giving the
    benefit of the doubt to the claimant “[i]n the rare case where [the
    judicial] process yields genuine doubt—in a dead heat without
    an apparent winner.” Id.
      ¶27 We apply and extend that same analysis here. “Our
    hyperbole notwithstanding, it cannot literally be true that” the
    Mechanics’ Lien Act is intended to protect lien claimants “at all
    hazards.” Id. ¶ 53; Lane Myers, 
    2012 UT App 269
    , ¶ 15.
    Realistically, we must acknowledge that this statute, like any
    other, “represent[s] an attempt by the legislature to balance
    
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                LANE MYERS CONSTR. v. NAT’L CITY BANK
                           Opinion of the Court
    competing policy considerations, not to advanc[e] a single
    objective at the expense of all others.” McArthur v. State Farm
    Mut. Auto. Ins. Co., 
    2012 UT 22
    , ¶ 14, 
    274 P.3d 981
     (second
    alteration in original) (internal quotation marks omitted). As
    National City pointed out in its brief, the Act does more than just
    protect lien claimants in every conceivable situation; it balances
    those lien rights with the right to effectively contract away those
    liens in exchange for payment, and the ability of lenders to rely
    on those agreements. And accordingly, we must reserve the
    notion of broad construction for cases of genuine doubt. Having
    resolved that doubt under the language and structure of the
    statute, we find no need for a tie-breaker, and thus no relevance
    for the principle of liberal construction of the Act.
       ¶28 We accordingly reverse the court of appeals. Thus, we
    interpret subsection (2) of the statute to tie the enforceability of a
    general lien waiver to only those elements expressly prescribed
    in that subsection—to the execution of a “waiver and release that
    is signed by the lien claimant or the lien claimant’s authorized
    agent.” UTAH CODE § 38-1-39(2)(a)(i).
                                      C
       ¶29 Our construction of the statute, however, also runs
    counter to the position embraced by the district court. Unlike the
    district court, we do not see a basis for dismissing Lane Myers’s
    lien claims as a matter of law. For us, the enforceability of the
    waiver in question cannot be resolved on the basis of the “face”
    of the draw requests. Lane Myers, 
    2012 UT App 269
    , ¶ 6. Instead
    we see genuine issues of material fact under the principle of
    “waiver” incorporated in the Mechanic’s Lien Act.
       ¶30 The operative terms of the Act make the enforceability of
    a lien waiver contingent on the execution of a “waiver and
    release that is signed by the lien claimant or the lien claimant’s
    authorized agent.” UTAH CODE § 38-1-39(2)(a)(i). In circularly
    conditioning the effectiveness of a “waiver” on the execution of a
    “waiver,” the legislature appears to have embraced a “term of art
    with a widely shared meaning.” Hughes Gen. Contractors, Inc. v.
    Utah Labor Comm’n, 
    2014 UT 3
    , ¶ 14, 
    322 P.3d 712
     (concluding
    that a “circular” statutory definition utilizing a legal term of art—
    “employer”—is understood to adopt a “term of art with a widely
    shared meaning”); see also State v. Bagnes, 
    2014 UT 4
    , ¶ 21, 
    322 P.3d 719
     (interpreting statutory definition of “lewdness,” defined
    
    
    
    
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                            Opinion of the Court
    in circular terms to incorporate “any other act of lewdness,” to
    embrace a “‘widely shared meaning” of the term). 3
       ¶31 We accordingly interpret the statute to incorporate the
    elements of a “waiver” as defined in our settled caselaw. Under
    that caselaw “[a] waiver is the intentional relinquishment of a
    known right.” Soter’s, Inc. v. Deseret Fed. Sav. & Loan Ass’n, 
    857 P.2d 935
    , 942 (Utah 1993). Thus, “[t]o constitute waiver, there
    must be an existing right, benefit or advantage, a knowledge of
    its existence, and an intention to relinquish it.” Id.
       ¶32 This is not to say, as Chief Justice Durrant’s concurrence
    suggests, that the statutory forms are “irrelevant,” infra ¶ 42, or
    should be “ignore[d]” by the courts in applying the statutory
    standard. Infra ¶ 45. The value of the forms as a safe harbor—to
    be used by contracting parties that wish to be certain of their
    position without engaging in litigation—is considerable. And,
    while the focus of the analysis should be on the term-of-art
    understanding of waiver, the forms may still be helpful—in
    providing illustrations and contextual background for the
    assessment of whether the parties intended to execute such a
    waiver. 4
    
    
       3  Although the statute speaks in terms of “waiver and release,”
    UTAH CODE § 38-1-39(2)(a), the term release appears to be a lesser-
    included concept that adds nothing to the notion of waiver. Thus, a
    release is a “relinquishment or concession of a right, title, or
    claim,” BLACK’S LAW DICTIONARY 1403 (9th ed. 2009), whereas
    waiver requires that the relinquishment be of a known right. Soter’s
    Inc. v. Deseret Fed. Sav. & Loan Ass’n, 
    857 P.2d 935
    , 942 (Utah 1993).
    Because any release would also qualify as a waiver, we define the
    statutory requirement in terms of the more stringent standard of
    waiver—of voluntary relinquishment of a known right.
        4  Our recent holding in America West Bank Members, L.C. v.
    State, 
    2014 UT 4
    9, P.3d ___, is not to the contrary. See infra ¶ 39 n.2.
    In that case, we turned to the forms in the Utah Rules of Civil
    Procedure to illustrate the detail necessary to assert the “short and
    plain statement” required to state a claim under rule 8(a),
    concluding that the complaint at hand was materially deficient.
    Am. West Bank, 
    2014 UT 4
    9, ¶ 17. But we did not use the forms to
    glean hard-and-fast requirements that all complaints must meet to
    be viable. Instead we invoked the forms as illustrative of a floor
    for the pleading standard set forth in the rules. See id. And in any
    event, the terms of rule 8(a) are substantially different from those
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                 LANE MYERS CONSTR. v. NAT’L CITY BANK
                           Opinion of the Court
       ¶33 We reverse and remand under this standard, as there are
    genuine issues of material fact precluding summary judgment on
    this record. The terms of the release in the Lane Myers draw
    requests are insufficient by themselves to establish an enforceable
    waiver. 5 To be entitled to judgment as a matter of law, the Kykers
    and National City would also have to establish knowledge of a
    right to a lien and intentional relinquishment of such right.
       ¶34 The element of intent is the “central focus in most waiver
    cases,” as it is the element most often in dispute. Soter’s, 857 P.2d
    at 940. And the intent question is “intensely fact dependent,”
    turning on “whether the totality of the circumstances warrants
    the inference of relinquishment.” Id. at 940, 942 (internal
    quotation marks omitted). Because the draw requests in question
    do not take advantage of the safe harbor provided by the
    statutory forms or bear any other clear indication of an intent to
    waive, we cannot conclusively determine as a matter of law that
    a waiver was intended. And we reverse and remand on that
    basis.
       ¶35 There are genuine issues of fact as to Lane Myers’s intent
    in executing the National City draw requests. As Lane Myers has
    indicated, the text of the draw requests failed to make direct
    reference to any existing lien right, and Lane Myers plausibly
    asserted that it did not intend to relinquish any such right. For
    example, Lane Myers provided parole evidence to “support the
    conclusion that the draw requests were nothing more than
    progress payments,” alleged that the draw requests did not
    constitute a “final expression” of the bargain, and asserted that
    the draw requests were signed as a result of a mutual or
    unilateral mistake. These genuine disputes go to whether Lane
    
    
    of the Mechanic’s Lien Act. The latter employs an established term
    of art from the common law; the former states a vague standard of
    pleading that calls for a resort to forms to illustrate its content.
       5 Summary judgment is appropriate where it is clear from the
    document itself that it is a waiver or release. See Zions First Nat’l
    Bank v. Saxton, 
    493 P.2d 602
    , 603 (Utah 1972) (where the document
    on its face stated that “the payee upon endorsement hereby
    waives and releases all lien or right of lien,” no genuine issues of
    fact precluded summary judgment); Holbrook v. Webster’s Inc., 
    320 P.2d 661
    , 663 (Utah 1958) (summary judgment appropriate where
    a document was “unambiguous[ly]” styled as a “Lien Release”).
    That is not the case here.
    
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                           Cite as: 
    2014 UT 58
                          Opinion of the Court
    Myers intended to waive and release its lien rights when signing
    the draw requests. In light of genuine disputes on these issues,
    we reverse the entry of summary judgment and remand for
    further proceedings.
       ¶36 Unlike Justice Durham, we see nothing in the parties’
    arguments in the district court that forecloses a remand for
    further proceedings on the question of the parties’ intent in
    executing the documents at issue. See infra ¶ 50 (noting that
    National City’s and the Kykers’ motions were based solely on the
    terms of the draw requests and “disclaimed any reliance on
    extrinsic evidence,” and therefore concluding that “the legal
    question presented on appeal is whether the language of the
    draw request, in fact, waives Lane Myers’[s] lien rights”). It is
    true that both National City and the Kykers moved for summary
    judgment, and that both, in so moving, asserted a lack of
    ambiguity in the draw requests and a right to judgment in their
    favor as a matter of law. But we consider the propriety of
    summary judgment de novo, without any deference to the lower
    court. The question before us is accordingly whether there are
    any genuine issues as to material fact and whether the movant
    was entitled to judgment as a matter of law. See UTAH R. CIV. P.
    56. A party’s mere contention that there are no issues of material
    fact—a contention made every time a party moves for summary
    judgment—is beside the point. See Plateau Mining Co. v. Utah Div.
    of State Lands & Forestry, 
    802 P.2d 720
    , 725–26 (Utah 1990)
    (explaining that the “filing of cross-motions for summary
    judgment does not necessarily mean that material issues of fact
    do not exist” and holding that court may deny both motions,
    conclude that both sides are wrong and that a contract is
    ambiguous on its face and requires further proceedings)
    ¶37     Thus, in considering this question, we must make our
    own independent assessment of the parties’ intentions as set
    forth on the face of the relevant documents. If we find the
    governing documents unambiguous we may determine that
    summary judgment should have been entered. But if we find
    ambiguity we may also determine that summary judgment was
    not called for, and that further proceedings are necessary. See id.
    at 725 (“[A] motion for summary judgment may not be granted if
    a legal conclusion is reached that an ambiguity exists in the
    contract and there is a factual issue as to what the parties
    intended.” (alteration in original) (internal quotation marks
    omitted)). That is the basis of our decision here. Because we find
    ambiguity as to the parties’ intentions on the face of the draw
    
                                   13
                  LANE MYERS CONSTR. v. NAT’L CITY BANK
                        C.J. DURRANT, concurring
    
    requests, we hold that there are genuine issues of material fact
    foreclosing summary judgment. And we accordingly remand for
    further proceedings.
                                    III
       ¶38 We reverse and remand on grounds set forth above. In so
    doing, we also reject Lane Myers’s request for attorney fees
    under Utah Code section 38-1-38, as Lane Myers has not (or at
    least not yet) prevailed in an action to enforce a lien. If and when
    either side prevails below, the question of an award of attorney
    fees may then be ripe for consideration, but it is not properly
    presented here.
    
      CHIEF JUSTICE DURRANT, concurring in the result:
       ¶39 We are asked to determine what elements must be
    included in a document in order for it to qualify as a valid
    “waiver and release” under the Mechanics’ Lien Act. In
    answering this question, the majority looks outside the Act to the
    common-law “term-of-art understanding of the elements of a
    ‘waiver.’”1 I would instead look to the Act itself, specifically to
    those elements the legislature has identified through examples
    set forth in the Act as meeting the requirements of a valid waiver
    and release. 2
    
      1   Supra ¶ 3.
      2  This is the approach we recently took in America West Bank
    Members, L.C. v. State when, “for guidance,” we turned to the
    model forms contained in the Utah Rules of Civil Procedure to
    interpret the “short and plain statement” requirement for breach
    of contract claims. 
    2014 UT 4
    9, ¶ 17 (internal quotation marks
    omitted). And we took that approach despite the introductory
    statement in the model forms, which states that “[t]he following
    forms are intended for illustration only.” UTAH R. CIV. P.,
    Appendix of Forms, Introductory Statement. Here the case for
    using the forms as guidance is much stronger because there is no
    such qualifier and the forms are in the text of the statute itself.
    While it is true that our role in interpreting our own rules is
    somewhat different than our role in interpreting a statute, I think
    that in either case there is wisdom in using model forms “[a]s
    exemplars” to guide the court in understanding the scope of an
    otherwise unclear legal standard. See Am. West Bank Members,
    L.C., 
    2014 UT 4
    9, ¶ 17.
                                    14
                            Cite as: 
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                         C.J. DURRANT, concurring
       ¶40 The majority rests its adoption of the term-of-art meaning
    of “waiver” on the ground that the legislature’s definition of the
    term is circular: “In circularly conditioning the effectiveness of a
    ’waiver’ on the execution of a ‘waiver,’ the legislature appears to
    have embraced a ‘term of art with a widely shared meaning.’” 3
    But the definition is circular only if it is assumed that the
    exclusive guidance provided by the legislature as to its intended
    meaning of “waiver and release” is found in subsection (2) of
    section 38-1-39. That is not the case, however. In fact, in
    subsection (4)(a) the legislature has set forth in some detail those
    elements that meet the requirements of section 38-1-39: “A
    waiver and release given by a lien claimant meets the
    requirements of this section if it is in substantially the form
    provided in this Subsection (4) for the circumstance provided in
    this Subsection (4).” The circumstances provided are a “waiver
    and release upon progress payment,” a “waiver and release upon
    final payment,” and a “restrictive endorsement placed on a
    check.”
       ¶41 The majority concludes that the example set forth in
    subsection (4)(d) (restrictive endorsement on a check) is
    mandatory, but designates the examples set forth in subsections
    (4)(b) (conditional waiver and release upon progress payments)
    and 4(c) as mere safe harbors. I agree that the language in
    subsection (2) supports this distinction. But the fact that the 4(b)
    and (c) examples qualify as safe harbors should not make them
    altogether irrelevant to our analysis of what elements the
    legislature intended a waiver and release should include in order
    to qualify as valid in the unique context of the Mechanics’ Lien
    Act. After all, the legislature did explicitly designate each of the
    three examples (or documents in substantially the same form) as
    a waiver and release that “meets the requirements of this
    section.” 4
       ¶42 I would not, as does the majority, effectively deem the
    4(b) and (c) examples irrelevant and simply default to the garden
    variety definition of waiver. At minimum, it seems to me, these
    examples suggest that the legislature intended more in the
    unique mechanic’s lien context. This is consistent with the
    
    
    
    
      3   Supra ¶ 30.
      4   UTAH CODE § 38-1-39(4)(a) (2010).
                                    15
                      LANE MYERS CONSTR. v. NAT’L CITY BANK
                            C.J. DURRANT, concurring
    historical fact that a mechanic’s lien could not be waived at all
    until the Act was amended in 2007. 5
       ¶43 In justifying its decision to look outside the statute for the
    definition of “waiver and release,” the majority relies on our
    recent decision in Hughes General Contractors, Inc. v. Utah Labor
    Commission.6 In that case, we were called upon to interpret the
    term “employer,” which was essentially defined as “one who
    engages employees.” 7 And because the term “employee” was in
    turn defined as “any person suffered or permitted to work by an
    employer,” 8 we concluded that the statute was circular and looked
    to the “legal term-of-art understanding” of the term “employer.”9
    But that approach was appropriate only because the statute
    provided no other indication of what the legislature meant by the
    term “employer.”
       ¶44 This point is well illustrated by the United States
    Supreme Court opinion, Nationwide Mutual Insurance Co. v.
    Darden, 10 which we relied upon in Hughes. At issue in Darden was
    a circumstance almost identical to the one presented in Hughes.
    The Employee Retirement Income Security Act defined
    “employee” in a circular manner, and the Court was asked to
    interpret the term. As we did in Hughes, the Darden Court
    resorted to a definition that relied upon the common law. 11 But it
    did so only because “[the respondent] [did] not cite, and [the
    Court] [did] not find, any provision either giving specific
    guidance to the term’s meaning or suggesting that construing it
    to incorporate traditional agency law principles would thwart the
    congressional design.” 12
    
    
    
    
      5Before the amendment, a contractor’s lien rights could not in
    any way be “varied by agreement.” Id. § 38-1-29 (2006).
      6   
    2014 UT 3
    , ¶¶ 12–15, 
    322 P.3d 712
    .
      7   Id. ¶ 13.
      8   Id. (internal quotation marks omitted).
      9   Id. ¶ 15.
      10   
    503 U.S. 318
    , 323 (1992).
      11   Id.
      12   Id.
    
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                            Cite as: 
    2014 UT 58
                       JUSTICE DURHAM, concurring
       ¶45 Here, we need look no further than subsection (4) to find
    specific guidance on the meaning of the terms “waiver and
    release.” In my view, that the examples in subsections (4)(b) and
    (c) qualify as safe harbors does not give us license to wholly
    ignore them in assessing the legislature’s intended meaning of
    the terms “waiver and release” as used in the Act. We should
    look to the full text of a statute for guidance as to the legislature’s
    intended meaning before defaulting to a common-law term of
    art.
       ¶46 Accordingly, I believe an analysis of the legislature’s
    intended definition of “waiver and release” in the unique context
    of the Mechanics’ Lien Act should be guided by the detailed
    examples the Legislature has provided of documents that meet
    the requirements of the waiver section of the Act. I would
    therefore look to all of the section and, in a way similar to what
    the court of appeals did below, tailor a definition of “waiver and
    release”    that   gives     deference     to    these   examples.
       ¶47 Finally, whether we were to apply the common-law
    meaning of waiver as proposed by the majority or the meaning of
    waiver and release as I believe it to be augmented by the
    legislative examples, it is clear that there are factual issues that
    preclude summary judgment. Accordingly, I concur in the result.
    
    
      JUSTICE DURHAM, concurring in the result:
       ¶48 I agree with the majority’s interpretation of Utah Code
    section 38-1-39 (2010). I also agree that the district court erred
    when it granted summary judgment in favor of the Kykers and
    National City (collectively, National City). But I disagree with the
    majority’s holding that a dispute of material fact precludes
    summary judgment. Instead, I would hold that the summary
    judgment motion at issue in this case squarely presented the legal
    question of whether the language of the draw request constituted
    a waiver of Lane Myers’s statutory right to a mechanics’ lien. In
    my view, the draw request does not waive Lane Myers’s right to
    file a lien, and I would reverse the district court’s order granting
    summary judgment on this legal ground.
           I. WAIVER IS A QUESTION OF LAW IN THIS CASE
      ¶49 Depending on the arguments made by the party asserting
    the doctrine, waiver may be either a question of law or a mixed
    question of law and fact. If a party asserts that a known right has
    been implicitly waived through a course of conduct, waiver is a
    
                                     17
                LANE MYERS CONSTR. v. NAT’L CITY BANK
                       JUSTICE DURHAM, concurring
    fact-intensive mixed question. United Park City Mines Co. v.
    Stichting Mayflower Mountain Fonds, 
    2006 UT 35
    , ¶¶ 21, 25, 
    140 P.3d 1200
    ; Chen v. Stewart, 
    2004 UT 82
    , ¶¶ 20, 23, 
    100 P.3d 1177
    .
    However, if a waiver claim is based upon a writing, and no
    extrinsic evidence of the meaning of ambiguous terms is
    presented, waiver is a question of law that may be resolved on
    summary judgment. See Zions First Nat’l Bank v. Saxton, 
    493 P.2d 602
    , 603 (Utah 1972); Holbrook v. Webster’s Inc., 
    320 P.2d 661
    , 663
    (Utah 1958); see also Kimball v. Campbell, 
    699 P.2d 714
    , 716 (Utah
    1985) (absent extrinsic evidence, the interpretation of a contract is
    a question of law).
       ¶50 Although it may be theoretically possible for a party to
    assert that both a written document and a course of conduct
    contributed to the waiver of a right, that is not the case here.
    National City’s motion for summary judgment was based solely
    upon its assertion that the language in the draw request waived
    Lane Myers’s right to a lien. National City also disclaimed any
    reliance on extrinsic evidence, and argued that Lane Myers’s
    waiver was “clear from the terms contained within [the draw
    request’s] four corners.” Consistent with this argument, the
    district court ruled that the draw request constituted a waiver.
    Because National City understandably chose to assert a purely
    legal ground for summary judgment, and because the district
    court granted summary judgment based upon its interpretation
    of the draw request, the legal question presented on appeal is
    whether the language of the draw request, in fact, waives Lane
    Myers’s lien rights.
       ¶51 Indeed, in the context of mechanics’ liens, all waivers of
    lien rights must be written. The mechanics’ lien statutes in effect
    at the time Lane Myers signed the last draw request stated: “The
    applicability of the provisions of this chapter, including the
    waiver of rights or privileges granted under this chapter, may
    not be varied by agreement.” UTAH CODE § 38-1-29 (2007). 1 In
    other words, the specific waiver provision of the mechanics’ lien
    statute provided the exclusive means of waiving lien rights, and
    the parties could not agree to modify these requirements. This
    waiver provision stated that “[n]otwithstanding Section 38-1-29,
    a written consent given by a lien claimant that waives or limits
    the lien claimant’s lien rights is enforceable.” UTAH CODE § 38-1-
    
    
      1 The current version of this statute may be found at Utah Code
    section 38-1a-105.
    
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                            Cite as: 
    2014 UT 58
                       JUSTICE DURHAM, concurring
    39(2) (2007) (emphasis added). 2 By statute, therefore, it was not
    possible to waive the right to a mechanics’ lien through conduct
    or verbal statements—only a written waiver would suffice.
       ¶52 Therefore, I disagree with the majority’s conclusion that
    the issue of waiver may not be disposed of as a matter of law.
    Supra ¶ 29. Although a claim of implicit waiver through a course
    of conduct, as well as the use of extrinsic evidence to determine
    the meaning of a written document, involve fact-intensive
    inquiries that may very well lead to disputes of material fact
    precluding summary judgment, these types of claims are not
    relevant here. The dispositive issue in this case is whether the
    language of the draw request constitutes a valid written waiver
    of Lane Myers’s lien rights as required by statute. Because this is
    a purely legal question, this court should resolve it.
      II. THE DRAW REQUEST LANGUAGE DOES NOT WAIVE
                  LANE MYERS’S LIEN RIGHTS
       ¶53 The draw request National City required Lane Myers to
    sign before the final disbursement of funds contained a
    declaration that “no liens or claims that may result in liens exist
    against the above-described property” at issue in this appeal.
    This is not a waiver of Lane Myers’s lien rights. Unlike language
    we have previously held adequate to waive mechanics’ lien
    rights,3 the draw request does not proclaim Lane Myers’s
    statutory right to file a mechanics’ lien had been waived or
    
      2  This waiver statute has been renumbered as Utah Code
    section 38-1a-802.
      3  See Zions First Nat’l Bank v. Saxton, 
    493 P.2d 602
    , 603 (Utah
    1972) (“the payee upon endorsement hereby waives and releases
    all lien [sic] or right of lien now existing or that may hereafter
    arise for work or labor performed or materials furnished”
    (internal quotation marks omitted)); Brimwood Homes, Inc. v.
    Knudsen Builders Supply Co., 
    385 P.2d 982
    , 983 (Utah 1963) (“the
    undersigned hereby waives, releases and discharges any lien or
    right to lien the undersigned has or may hereafter acquire against
    said real property” (internal quotation marks omitted)); Holbrook
    v. Webster’s Inc., 
    320 P.2d 661
    , 663 (Utah 1958) (same); see also
    Neiderhauser Builders & Dev. Corp. v. Campbell, 
    824 P.2d 1193
    , 1194
    (Utah Ct. App. 1992) (“the payee . . . waives[,] releases and
    relinquishes all right of lein [sic] or claims payee now has to date
    upon the premises” (second and third alterations in original)
    (internal quotation marks omitted)).
    
                                    19
                  LANE MYERS CONSTR. v. NAT’L CITY BANK
                        A.C.J. NEHRING, concurring
    relinquished. Instead, this language makes an assertion of fact:
    that Lane Myers had no liens or claims that could result in liens
    against the property when the draw request was signed.
    Regardless of whether this declaration of fact is deemed true or
    false, it does not purport to waive Lane Myers’s lien rights.
       ¶54 Therefore, I agree with the majority’s conclusion that the
    draw request is insufficient to establish an enforceable waiver.
    Supra ¶ 33. But I would reverse summary judgment on this legal
    ground as it was the only theory of waiver presented to the
    district court—and, indeed, the only theory permitted in the
    context of mechanics’ liens.
    
    
          ASSOCIATE CHIEF JUSTICE NEHRING, concurring in the result:
    
       ¶55 I concur in the result reached by all of my colleagues:
    summary judgment must be reversed. However, I agree with
    Chief Justice Durrant’s reasoning concerning the relevance of the
    forms contained in Utah Code section 38-1-39(4). Like the Chief
    Justice, I would not “effectively deem the 4(b) and (c) examples
    irrelevant and simply default to the garden variety definition of
    waiver.” 1 Thus, I concur with the Chief Justice’s reasoning.
    However, like Justice Durham, I believe that there is no need for
    further development of the facts concerning the existence of a
    valid waiver. I agree with Justice Durham that the grant of
    summary judgment on behalf of the Kykers should be reversed
    and the summary judgment motion denied on the basis that the
    draw request does not establish an enforceable waiver.
    
    
    
    
      1   Supra ¶ 42.
    
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