Buchanan v. Overley

178 P.3d 53, 39 Kan. App. 2d 171, 2008 Kan. App. LEXIS 40
CourtCourt of Appeals of Kansas
DecidedMarch 7, 2008
Docket97,329
StatusPublished
Cited by23 cases

This text of 178 P.3d 53 (Buchanan v. Overley) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buchanan v. Overley, 178 P.3d 53, 39 Kan. App. 2d 171, 2008 Kan. App. LEXIS 40 (kanctapp 2008).

Opinions

McAnany, J.:

This appeal raises issues regarding the validity of a mechanic’s lien for services performed in the construction of a residence. The homeowners challenge the lien on the grounds that the form of the hen statement does not comply with the requirements of K.S.A. 60-1102(a) and it was not timely filed. Since resolution of this appeal turns on the adequacy of the mechanic’s hen statement itself, we need not reach the timeliness issue. Thus, our recital of the facts is abbreviated to include only those necessary for consideration of the adequacy of the hen statement.

Jerry and Carol Overley contracted with Douglas Buchanan for the construction of a single-family home on land owned by the Overleys in Wichita. The parties also entered into an undated arbitration agreement which does not specifically refer to the project and which was not incorporated by reference into the construction contract. Nevertheless, the parties apparently treated the arbitration agreement as part of the construction contract.

During the course of construction the Overleys objected to the quality of Buchanan’s work. Buchanan refused to make repairs satisfactory to the Overleys, and the Overleys stopped their progress payments to him. Buchanan gave the Overleys written notice of default pursuant to the contract. When the Overleys refused to cure the default, Buchanan initiated arbitration proceedings and filed his mechanic’s lien statement.

The parties participated in arbitration proceedings, following which the arbitrators entered an award in favor of Buchanan in the amount of $49,542.64. Buchanan immediately filed an action in the district court to confirm the award. The Overleys objected and sought to vacate or modify the award. The district court denied relief to the Overleys and confirmed the arbitration award.

The Overleys then sought relief by filing their petition in bankruptcy. The parties later agreed that Buchanan could pursue a state [173]*173mechanic’s hen foreclosure action as an exception from the bankruptcy automatic stay. As a result, Buchanan filed a petition to foreclose his mechanic’s hen. The Overleys unsuccessfully moved to dismiss the petition as untimely. They then moved for summary judgment, claiming that Buchanan’s mechanic’s lien statement was defective and had been filed untimely. The court denied summaiy judgment. Later the district court granted Buchanan’s motion to strike the Overleys’ defenses and ordered foreclosure of the mechanic’s hen. This appeal followed.

Adequacy of the Mechanics Lien Statement

The Overleys contend Buchanan’s hen is invalid due to his failure to include his address on the face of the verified hen statement as required by K.S.A. 60-1102(a). Whether Buchanan’s hen statement complied with K.S.A. 60-1102 is a question of law over which our review is unlimited. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).

Before 1992, the statute describing the contents of a mechanic’s hen statement did not require inclusion of the hen claimant’s address. However, at the time Buchanan filed his hen statement, K.S.A. 60-1102(a) had been amended to require that his verified statement include “the name and address sufficient for service of process of the claimant.”

The purpose of a mechanic’s hen statute is to afford security to any persons or entities furnishing labor, equipment, material, or supphes used or consumed for the improvement of real property under a contract with the owner or the owner’s general contractor. While we liberally construe our mechanic’s lien statute once a lien has attached, Kansas law requires strict comphance with the procedure prescribed in the statute in order to perfect a mechanic’s hen. Haz-Mat Response, Inc. v. Certified Waste Services Ltd., 259 Kan. 166, 170, 910 P.2d 839 (1996).

The statute does not require the filing of any particular form of mechanic’s hen statement, only that the requisite information be included. A verified mechanic’s hen statement need not be composed of a single document. In fact, K.S.A. 60-1102(a) specifically contemplates the incorporation by reference of information con[174]*174tained in an attachment to the mechanic’s Hen statement. K.S.A. 60-1102(a)(4) permits the attachment of a promissory note to the claim in lieu of an itemized statement. Nevertheless, Kansas law is clear that a mechanic’s lien statement must not only contain the requisite information but also be fully verified. “[T]he lack of a verification in the statement filed necessarily defeats the hen.” Kansas Lumber Co. v. Wans, 12 Kan. App. 2d 20, 22, 733 P.2d 1266 (1987).

The problem in the present case arises when we consider whether Buchanan properly verified his address. Here, Buchanan used a preprinted hen statement form which identified the Overleys as the owners, Buchanan as the contractor, the legal description of the properly, and the amount claimed for which a hen was asserted. It also specified that “said labor and materials and the items thereof, as nearly as practical, are set forth in the bill of items hereto attached, made a part of this statement, and marked Exhibit ‘A’.” (Emphasis added.) There followed Buchanan’s signature and his verification of the truth of his hen statement.

Exhibit A, attached to the hen statement, consisted of a multitude of bills and invoices for labor and materials provided to the project, many of which contained a mailing address for Buchanan in Derby. The contract between Buchanan and the Overleys was a cost-plus contract which obligated the Overleys to “pay for all materials and labor required to construct the residence to the point of occupancy.” Buchanan’s fee was “a 10% contracting fee” applied to the overall cost of construction. The invoices attached to Buchanan’s hen statement, which showed his address, were invoices sent to him by suppliers of labor and materials to the project. The address for Buchanan shown on the invoices was the address used by the supphers.

K.S.A. 60-1102(a)(4) requires the hen claimant to include in the hen statement “a reasonably itemized statement and the amount of the claim, but if the amount of the claim is evidenced by a written instrument, or if a promissory note has been given for the same, a copy thereof may be attached to the claim in lieu of the itemized statement.” Buchanan’s hen statement claims $49,285.63 for labor and materials on tire project, “and said labor and materials [175]

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Buchanan v. Overley
178 P.3d 53 (Court of Appeals of Kansas, 2008)

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Bluebook (online)
178 P.3d 53, 39 Kan. App. 2d 171, 2008 Kan. App. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buchanan-v-overley-kanctapp-2008.