Bobby Hill v. JP Antlers

• Court: Colorado Court of Appeals
• Decided: March 27, 2025
• Docket: 24CA1132
• Status: Unpublished

Opinion

24CA1132 Bobby Hill v JP Antlers 03-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1132 El Paso County District Court No. 23CV31012 Honorable Gregory R. Werner, Judge

Bobby Hill Designs, LLC, a Colorado limited liability company,

Plaintiff-Appellant,

v.

JP Antlers, LLC, a Colorado limited liability company,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE SULLIVAN Freyre and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 27, 2025

Mulliken Weiner Berg & Jolivet, P.C., Karl A. Berg, Jr., Olivia M. Urso, Colorado Springs, Colorado, for Plaintiff-Appellant

Linden Kominek, P.C., Vincent L. Linden, Mary Kominek Linden, Colorado Springs, Colorado, for Defendant-Appellee ¶1 Plaintiff, Bobby Hill Designs, LLC, appeals the district court’s

entry of summary judgment in favor of defendant, JP Antlers, LLC,

on its claim to foreclose on its mechanic’s lien. We affirm.

I. Background

¶2 In 2021, JP Antlers agreed to sell the Antlers Hotel in Colorado

Springs (the property) to BP Antlers Residential, LLC, which

intended to convert the property into apartments.1 Around the

same time, Ourmark, LLC retained Bobby Hill Designs to provide

specified design, architectural, and engineering services for the

project. One of BP Antlers Residential’s managers, Nathan Taylor,

was also Ourmark’s president. Although Ourmark apparently never

signed the contract with Bobby Hill Designs, Bobby Hill Designs

prepared design development documents at Ourmark’s direction

and hired two subcontractors to assist on the project. JP Antlers

never entered into a contract with Bobby Hill Designs.

¶3 The sale of the property from JP Antlers to BP Antlers

Residential eventually fell through before any physical construction

began at the property. Because it wasn’t paid for its services,

1 Although JP Antlers and BP Antlers Residential share similar

names, the two are separate and unrelated entities.

1 Bobby Hill Designs filed a mechanic’s lien against the property in

the amount of $426,429.58.

¶4 In 2023, Bobby Hill Designs filed a complaint to foreclose on

its mechanic’s lien against JP Antlers and several other defendants.

By the time the case reached the summary judgment stage, the sole

remaining claim was Bobby Hill Designs’ foreclosure claim against

JP Antlers. JP Antlers moved for summary judgment, arguing that

it never contracted with Bobby Hill Designs and Bobby Hill Designs

wasn’t eligible for a mechanic’s lien because it never participated in

any of the activities enumerated in section 38-22-105(1), C.R.S.

2024, a provision within Colorado’s mechanic’s lien statutes.

¶5 The district court agreed with JP Antlers and granted

summary judgment in its favor. As relevant to this appeal, the

court concluded that Bobby Hill Designs wasn’t entitled to foreclose

on its mechanic’s lien claim under section 38-22-105(1) because it

hadn’t presented any evidence that it participated in the erection,

construction, alteration, removal, addition, or repair of any

building, structure, or other improvement “upon or in any land.”

§ 38-22-105(1).

2 ¶6 Bobby Hill Designs now appeals. It argues that the district

court erred by (1) concluding that it wasn’t entitled to foreclose on

its mechanic’s lien under section 38-22-105(1); and (2) overlooking

genuine issues of material fact regarding JP Antlers’ knowledge of

its design work that precluded summary judgment.

II. Standard of Review

¶7 We review a district court’s order granting or denying

summary judgment de novo. Westin Operator, LLC v. Groh, 2015

CO 25, ¶ 19. Summary judgment is appropriate only when no

genuine issues of material fact are disputed and the moving party is

entitled to judgment as a matter of law. C.R.C.P. 56(c); Quarky,

LLC v. Gabrick, 2024 COA 76, ¶ 10. Like the district court, we give

the nonmoving party the benefit of all favorable inferences that may

be reasonably drawn from the undisputed facts and resolve all

doubts against the moving party. City of Fort Collins v. Colo. Oil &

Gas Ass’n, 2016 CO 28, ¶ 8.

¶8 We similarly review questions of statutory interpretation de

novo. Trinidad Area Health Ass’n v. Trinidad Ambulance Dist., 2024

COA 113, ¶ 23. Our primary goal when interpreting a statute is to

effectuate the General Assembly’s intent. Id. We apply words and

3 phrases according to their plain and ordinary meaning. Id. In

doing so, we look to the entire statutory scheme to give consistent,

harmonious, and sensible effect to all its parts. Id.

III. Applicable Law

¶9 Under the mechanic’s lien statutes, §§ 38-22-101 to -133,

C.R.S. 2024, one who supplies materials or labor to enhance the

value of property is entitled, under certain circumstances, to a lien

upon the property to the extent goods or services are provided.

Thirteenth St. Corp. v. A-1 Plumbing & Heating Co., 640 P.2d 1130,

1133 (Colo. 1982). Architects who have furnished plans or other

architectural services are among those professionals afforded

protection. See § 38-22-101(1); Seracuse Lawler & Partners, Inc. v.

Copper Mountain, 654 P.2d 1328, 1330 (Colo. App. 1982).

¶ 10 An architect may establish a mechanic’s lien for their

architectural services through two methods. Seracuse, 654 P.2d at

1330. First, an architect who provides “designs, plans, plats, maps,

specifications, drawings, estimates of cost, surveys, or

superintendence, or . . . other professional or skilled service[s]” at

the request of the property owner or their agent for “work done or to

be done” is entitled to a lien upon the property. § 38-22-101(1).

4 Under this method, however, the property owner or their agent

must have contracted for the architectural services before the lien

may attach. Seracuse, 654 P.2d at 1330 (citing Thirteenth St., 640

P.2d 1130).

¶ 11 Second, if no contract for services exists, an architect may

nonetheless establish a mechanic’s lien by participating in certain

enumerated activities “upon or in any land with the knowledge of

the owner or reputed owner of such land, or of any person having or

claiming an interest therein.” § 38-22-105(1). Specifically, the

architect must have participated in the erection, construction,

alteration, addition, removal, or repair of any building, structure, or

other improvement on the property. Id.; see Chambliss/Jenkins

Assocs. v. Forster, 650 P.2d 1315, 1318-19 (Colo. App. 1982). An

architect may satisfy this part of the statute by showing that project

staff performed one of the statute’s enumerated activities on the

property “pursuant to” plans or specifications prepared by the

architect. Seracuse, 654 P.2d at 1330.

¶ 12 With these statutory provisions and legal principles in mind,

we now turn to Bobby Hill Designs’ contentions.

5 IV. Unpreserved Contentions

¶ 13 At the outset, we agree with JP Antlers that to the extent

Bobby Hill Designs relies on the first method for establishing a

mechanic’s lien claim — section 38-22-101(1) — it failed to preserve

this argument.

¶ 14 While we don’t require talismanic language to preserve an

issue, In re Estate of Owens, 2017 COA 53, ¶ 21, we generally won’t

address for the first time on appeal issues that weren’t raised before

the district court, Mangone v. U-Haul Int’l, Inc., 7 P.3d 189, 191

(Colo. App. 1999). To preserve an issue for appeal, the party

asserting the argument must present “the sum and substance” of

the argument to the district court. Gebert v. Sears, Roebuck & Co.,

2023 COA 107, ¶ 25 (quoting Madalena v. Zurich Am. Ins. Co., 2023

COA 32, ¶ 50).

¶ 15 In this case, Bobby Hill Designs’ complaint didn’t identify a

specific statutory basis for its mechanic’s lien foreclosure claim.

When JP Antlers moved for summary judgment under both

methods for establishing a mechanic’s lien, sections 38-22-101(1)

and 38-22-105(1), Bobby Hill Designs responded in opposition by

addressing only the latter. Given this, Bobby Hill Designs didn’t

6 preserve its argument under the first method, section 38-22-101(1).

See Mangone, 7 P.3d at 191.

¶ 16 In its reply brief, Bobby Hill Designs appears to acknowledge

this lack of preservation, explaining that its entitlement to a

mechanic’s lien under the second method, section 38-22-105(1),

constitutes its “primary argument” but that support for its

argument is “found throughout” the mechanic’s lien statutes. While

we recognize that we must construe the mechanic’s lien statutory

scheme as a whole, Trinidad Area Health Ass’n, ¶ 23, we decline to

consider whether Bobby Hill Designs was entitled to foreclose on its

mechanic’s lien under section 38-22-101(1) specifically.

V. Section 38-22-105(1)

¶ 17 Turning to Bobby Hill Designs’ preserved arguments, it

contends that the district court erred by granting summary

judgment in favor of JP Antlers because section 38-22-105(1)

doesn’t require that an architect make physical improvements to

the property. We aren’t persuaded.

¶ 18 Similar to its argument on appeal, Bobby Hill Designs opposed

JP Antlers’ summary judgment motion by arguing that its design

services constituted an improvement that established a valid

7 mechanic’s lien under section 38-22-105(1). In support, Bobby Hill

Designs leaned on Seracuse. In Seracuse, a division of this court

determined that architects who had furnished designs for a hotel at

a ski resort had established a valid mechanic’s lien under section

38-22-105(1) because project staff had excavated the site “pursuant

to” the architects’ plans. 654 P.2d at 1330. Contrary to Bobby Hill

Designs’ suggestion otherwise, the fact that project staff had

initiated an excavation under specifications prepared by the

architects was critical to the division’s analysis. See id. at 1330-31.

¶ 19 We acknowledge that one passage from Seracuse — that “[a]n

architect’s preliminary work constitutes the commencement of an

improvement or a structure” — could be interpreted to support

Bobby Hill Designs’ argument when read in isolation. Id. But that

passage must be viewed in tandem with section 38-22-105(1)’s list

of enumerated activities, which the Seracuse division also

discussed. See id. at 1330; § 38-22-105(1). As the Seracuse

division’s analysis shows, absent an enumerated activity being

performed on the property, an architect has no valid mechanic’s

lien under section 38-22-105(1).

8 ¶ 20 Chambliss/Jenkins confirms this by presenting the flip side of

the coin. 650 P.2d 1315. In that case, a nonprofit corporation

retained an architecture firm to prepare architectural plans for a

proposed cancer center. Id. at 1316-17. The project eventually fell

through before work at the property commenced, and the nonprofit

failed to pay for the plans, prompting the architecture firm to assert

a mechanic’s lien under section 38-22-105. Chambliss/Jenkins,

650 P.2d at 1317-19. A division of this court rejected the

architecture firm’s claim, explaining that the firm hadn’t

participated in any of the statute’s enumerated activities —

erection, construction, alteration, removal, addition, repair, or other

improvement of a building or structure — on the property. Id. at

1318-19.

¶ 21 We conclude the facts presented here are more akin to

Chambliss/Jenkins than Seracuse. All agree that Bobby Hill

Designs didn’t participate in any of section 38-22-105(1)’s

enumerated activities “upon or in any land.” Nor did other project

staff perform any of the statute’s enumerated activities “pursuant

to” the plans prepared by Bobby Hill Designs. Seracuse, 654 P.2d

9 at 1330. As a result, the district court didn’t err by granting

summary judgment in JP Antlers’ favor.

¶ 22 We aren’t persuaded otherwise by Bobby Hill Designs’ reliance

on James H. Stewart & Associates, Inc. v. Naredel of Colorado, Inc.,

571 P.2d 738, 740 (Colo. App. 1977), which involved a mechanic’s

lien solely under section 38-22-101(1). That provision affords

architects broader protection than under section 38-22-105(1) by

entitling the architect to a lien if they furnish plans for “work done

or to be done.” § 38-22-101(1). Section 38-22-105(1) doesn’t

contain similar language, nor may we add words to the statute. See

Larrieu v. Best Buy Stores, L.P., 2013 CO 38, ¶ 19. Had the General

Assembly intended to extend similarly broad protection to architects

in section 38-22-105(1), it would have said so expressly. See, e.g.,

Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353, 362 (Colo. 2003)

(General Assembly’s use of “fair market value” in other statutes

shows that it knew how to use the phrase).

¶ 23 Merrick & Co. v. Estate of Verzuh, 987 P.2d 950 (Colo. App.

1999), and Ciancio v. Serafini, 574 P.2d 876 (Colo. App. 1977), also

cited by Bobby Hill Designs, are equally unavailing. Neither case

involved a mechanic’s lien claim under section 38-22-105(1).

10 ¶ 24 Finally, Bobby Hill Designs argues that a genuine issue of

material fact precluded summary judgment because JP Antlers’

representatives knew that Bobby Hill Designs was preparing

designs for the property. But knowledge by the property’s owner is

only one of the requirements for a valid mechanic’s lien under

section 38-22-105(1). As discussed, the architect must also show

that they either participated in one of the statute’s enumerated

activities on the property or that project staff performed an

enumerated activity on the property pursuant to the architect’s

plans. See Seracuse, 654 P.2d at 1330; Chambliss/Jenkins, 650

P.2d at 1318-19. Neither occurred here.

¶ 25 Accordingly, the district court didn’t err by granting summary

judgment in JP Antlers’ favor on Bobby Hill Designs’ claim to

foreclose on its mechanic’s lien under section 38-22-105(1).

VI. Disposition

¶ 26 We affirm the judgment.

JUDGE FREYRE and JUDGE SCHOCK concur.