Trane Co. v. Bakkalapulo

672 P.2d 586, 234 Kan. 348, 1983 Kan. LEXIS 408
CourtSupreme Court of Kansas
DecidedDecember 2, 1983
Docket54,898
StatusPublished
Cited by14 cases

This text of 672 P.2d 586 (Trane Co. v. Bakkalapulo) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trane Co. v. Bakkalapulo, 672 P.2d 586, 234 Kan. 348, 1983 Kan. LEXIS 408 (kan 1983).

Opinions

The opinion of the court was delivered by

Lockett, J.:

This action arises out of an attempted foreclosure by plaintiff-appellant, The Trane Company, of a subcontractors mechanic’s lien (lien), filed pursuant to K.S.A. 1980 Supp. 60-1103. Defendants-appellees filed a motion to dismiss the action, [349]*349contending that the plaintiff-appellant’s lien statement was not properly verified, therefore defective. The trial court found in favor of the defendants. The Court of Appeals affirmed the trial court in a rule opinion. Plaintiffs Petition for Review was accepted by this court.

The facts are undisputed. The Trane Company (Trane) supplied air conditioning equipment and materials to Joseph Lee Miller, Inc. (Miller). Miller, a general contractor, installed the equipment supplied by Trane in a building under construction in Overland Park, Kansas.

Trane, a Wisconsin corporation, sought to file a lien statement. Trane retained the services of Charles R. Wilson, Attorney at Law, to act on behalf of Trane. Trane executed a power of attorney authorizing Mr. Wilson to execute and file all documents to assert the lien on Trane’s behalf. Mr. Wilson prepared and filed a lien statement on March 13, 1981.

Trane did not receive payment for the equipment supplied Miller. On March 12, 1982, Trane filed an action seeking in Count I a personal judgment against Miller for $7,500.00, and in Count II a foreclosure of the lien. Other individuals and companies having various interest in the Overland Park property were joined as defendants in Count II of Trane’s petition. (For clarity the various interests and names of the other defendants are not set forth in this opinion.)

Miller and the other defendants filed a motion to dismiss Trane’s petition. The trial court, relying on Ekstrom United Supply Co. v. Ash Grove Lime & Portland Cement Co., 194 Kan. 634, 400 P.2d 707 (1965), held that the lien statement was defective in that it lacked a proper verification as required by K.S.A. 60-1102.

Our mechanic’s lien statute, K.S.A. 60-1102, provides in part:

“(a) Filing. Any person claiming a lien on real property, under the provisions of K.S.A. 60-1101, shall file with the clerk of the district court of the county in which property is located, within four (4) months after the date material, equipment or supplies, used or consumed was last furnished or last labor performed under the contract a verified statement showing:
“(1) The name of the owner,
“(2) the name of the claimant,
“(3) a description of the real property,
“(4) 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 [350]*350has been given for the same, a copy thereof may be attached to the claim in lieu of the itemized statement.”

K.S.A. 1980 Supp. 60-1103 allows any subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to a lien, under an agreement with the contractor or a subcontractor of a contractor, to obtain a lien in the same manner as the original contractor with certain exceptions.

The parties admit that Trane’s lien statement was filed within the statutory time; the description of the property upon which the lien was claimed was properly set out in the lien statement, the account was properly attached, and the articles purchased were delivered upon the premises and used in the construction of the building. Trane’s lien statement was signed:

“s/ Charles R. Wilson
Charles R. Wilson Attorney at Law and Attorney in fact for Claimant.”

The verification, however, was signed:

“Charles R. Wilson being first duly sworn, on his oath states that the above and foregoing statement is true and correct and that the amount therein claimed is justly due the Claimant.
s/ Charles R. Wilson”

The sole issue on appeal is the sufficiency of the affidavit verifying the lien statement.

Trane was a subcontractor in the construction of the Overland Park building. A subcontractor may obtain a mechanic’s lien upon property pursuant to K.S.A. 1980 Supp. 60-1103 and K.S.A. 60-1102. See Sutherland Lumber Co. v. Due, 212 Kan. 658, 659, 512 P.2d 525 (1973). K.S.A. 60-1102 requires that the lien statement be verified. A verification in a mechanic’s lien context has been defined as “an affidavit attached to a lien statement that facts essential to the existence of a lien set forth in the statement are true.” D. J. Fair Lumber Co. v. Karlin, 199 Kan. 366, Syl. ¶ 4, 430 P.2d 222 (1967). The filing of a verification is a necessary step in obtaining a mechanic’s lien. Ekstrom, 194 Kan. at 636.

The trial court relied on Ekstrom, 194 Kan. 634, in dismissing Trane’s claim against the defendants based on the improper verification of its lien. In Ekstrom, the plaintiff s mechanic’s lien statement filed with the clerk was signed:

[351]*351“ ‘Ekstrom United Supply Company
‘By s/ W. L. Johnston
Claimant’ ”
194 Kan. at 635.

The verification attached to the lien statement read:

“ ‘State of Kansas, Allen County, ss:
“ ‘I do solemnly swear that I am the claimant above named and that the foregoing statement is true in every particular.
s/ W. L. Johnston
“ ‘Subscribed and sworn to before me this 31st day of July, 1962.
s/ Berenice Dobie
“ ‘Notary Public
“ ‘Com. Exp: 5-3-65’ ”
194 Kan. at 635.

The court in Ekstrom held:

“In the instant case the lien statement was executed and signed by plaintiff Ekstrom United Supply Co. as claimant by W. L. Johnston. So much would appear to be regular and unimpeachable.

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Trane Co. v. Bakkalapulo
672 P.2d 586 (Supreme Court of Kansas, 1983)

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Bluebook (online)
672 P.2d 586, 234 Kan. 348, 1983 Kan. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trane-co-v-bakkalapulo-kan-1983.