Mutual Savings Ass'n v. Res/Com Properties, L.L.C.

79 P.3d 184, 32 Kan. App. 2d 48, 2003 Kan. App. LEXIS 980
CourtCourt of Appeals of Kansas
DecidedNovember 14, 2003
DocketNo. 89,924
StatusPublished
Cited by6 cases

This text of 79 P.3d 184 (Mutual Savings Ass'n v. Res/Com Properties, L.L.C.) 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
Mutual Savings Ass'n v. Res/Com Properties, L.L.C., 79 P.3d 184, 32 Kan. App. 2d 48, 2003 Kan. App. LEXIS 980 (kanctapp 2003).

Opinion

RüLON, C.J.:

This appeal involves the relative priority of four unsatisfied liens filed on the foreclosure property known as Whispering Meadows development in Eudora, Kansas. Before the development was completed, the property owner, Res/Com Properties, L.L.C. (Res/Com), defaulted on its payment obligations under two mortgages and various construction contracts. The mortgages were held by Mutual Savings Association (Mutual), the appellee in the present action. The construction contracts on which Res/Com defaulted were performed by The Peridian Group (Peridian), LRM Industries, Inc. (LRM), and the Modem Engineering Utilities Company, Inc. (Modem).

On cross-motions for summary judgment, the trial court found that appellee Mutual’s first note and mortgage had priority over the subsequent liens of appellants LRM and Modem. LRM and Modem appeal from such mling.

Res/Com Properties is a Kansas limited liability company in which Larry Slavens, Chad Slavens, and L.J. Slavens have equal membership. Heartland Building and Development, L.L.C., is a Kansas limited liability company in which the Slavens also have equal membership.

The material facts are undisputed. A chronological review of the facts is necessary for our analysis.

In July 1999, George Kritos contracted with Peridian to provide design and engineering services on the subject property. The work included boundary verification, topographical surveying, preparing preliminaiy and final site development plans, platting, storm water drainage studies, sanitary sewer design, street and storm sewer design, and water line design. The on-site work consisted of surveying, staking the boundary corners, staking of preliminary layouts for utilities and streets, plus horizontal control and vertical control benchmark staking used for sewer, street, and storm water designs. Peridian’s work began prior to May 22, 2000.

[50]*50On May 22,2000, Res/Com purchased the property from Kritos. That same day, Res/Com signed a $570,000 promissory note and related mortgage in favor of Mutual. Mutual recorded its mortgage on May 24,2000. Res/Com used the money to purchase the subject property. Peridian then contracted with Res/Com to continue its design and engineering services.

On June 28,2000, Res/Com executed a second note with Mutual for $80,300.

On July 7, 2000, Modem began installing the sanitary sewers on the subject property under a subcontract with Heartland. Heartland was Res/Com’s general contractor on the project.

On July 19, 2000, Res/Com executed and delivered to Mutual a second mortgage to secure the second note. The mortgage was filed July 20, 2000.

On August 30, 2000, LRM entered into two contracts with Heartland to construct improvements on the subject property. LRM worked on the property from September through November 2000.

On October 26, 2000, Peridian filed its mechanic’s lien. LRM filed its mechanic’s lien on December 18, 2000, and while it is unclear if or when Modem filed its original mechanic’s lien, clearly Modern filed an amended lien on December 19, 2000. On March 15, 2001, Peridian filed an amended mechanic’s hen. On or about March 15, 2001, Mutual paid Peridian for its work and took assignment of Peridian’s lien. Mutual then filed a release of the Peridian lien.

Res/Com subsequently defaulted on both notes to Mutual, and on September 28, 2001, the district court granted Mutual summary judgment against Res/Com and allowed Mutual to foreclose on the property. The court further mled the Slavens must pay Mutual all amounts due and owing under the first and second notes and mortgages.

When summary judgment order was entered, there were two unsatisfied mechanics’ liens on the property. These were the liens held by LRM and Modem.

Mutual then sought summary judgment, seeking priority for its first note and mortgage over the LRM and Modern liens. LRM [51]*51filed a cross-motion for summary judgment on the issue of priority, arguing their hens related back to the time Peridian first began work on the property. The district court entered judgment in favor of Mutual. The court found that LRM’s and Modern’s subsequent Hens were not entitled to priority by “relating back” to Peridian’s preliminary staking of the subject property and off-site design and engineering work.

LRM and Modem appeal from the ruling of the district court.

Our standard of review on a motion for summary judgment is as stated in Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002). Resolution of the issues on this appeal require the interpretation of K.S.A. 60-1101 and K.S.A. 2002 Supp. 60-1103. Interpretation of a statute is a question of law subject to unhmited review. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).

K.S.A. 60-1101, entitled “Liens of contractors; priority” states:

“Any person furnishing labor, equipment, material, or supplies used or consumed for the improvement of real property, under a contract with the owner or with the trustee, agent or spouse of the owner, shall have a Hen upon tire property for the labor, equipment, material or supplies furnished, and for the cost of transporting the same. The Hen shall be preferred to all other liens or encumbrances which are subsequent to the commencement of the furnishing of such labor, equipment, material or supplies at the site of the property subject to the hen. When two or more such contracts are entered into applicable to the same improvement, the hens of all claimants shall be similarly preferred to the date of the earhest unsatisfied hen of any of them.”

K.S.A. 2002 Supp. 60-1103, entitled “Liens of subcontractors; procedure, recording and notice, owner’s liability” states, in part:

“(a) Procedure. Any suppher, subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the hen, under an agreement with the contractor, subcontractor or owner contractor may obtain a hen for the amount due in the same manner and to the same extent as the original contractor . . . .”

Our Supreme court in Haz-Mat Response, Inc. v. Certified Waste Services Ltd., 259 Kan. 166, 170, 910 P.2d 839 (1996), noted:

[52]*52“Our mechanic’s lien law is remedial in nature, enacted for the purpose of providing effective security to any persons furnishing labor, equipment, material, or supplies used or consumed for the improvement of real property under a contract with the owner.

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Bluebook (online)
79 P.3d 184, 32 Kan. App. 2d 48, 2003 Kan. App. LEXIS 980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mutual-savings-assn-v-rescom-properties-llc-kanctapp-2003.