Bolon Custom Kitchens v. Robert and Norma Parman
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IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 5, 2009 Session
BOLON CUSTOM KITCHENS v. ROBERT AND NORMA PARMAN
Appeal from the Circuit Court for Maury County
No. 12452
Stella Hargrove, Judge
No. M2009-00495-COA-R3-CV - Filed March 5, 2010
Materials supplier filed suit to enforce a lien upon property for unpaid costs of improvement
to the residence; the trial court granted supplier’s motion for summary judgment. The
property owners appeal, asserting that supplier’s lien was barred by the filing of the Notice
of Completion or, in the alternative, that supplier’s Notice of Lien was not properly filed with
the Register’s Office. Finding that supplier had a valid lien, the trial court’s judgment is
affirmed.
Tenn. R. App. P. 2 Appeal as of Right; Judgment of the Circuit Court Affirmed
R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P.J., M.S. and A NDY D. B ENNETT, J., joined.
David B. Herbert, Nashville, Tennessee, for the appellants, Robert and Norma Parman.
Donald R. Barrett and Samuel B. Dreiling, Franklin, Tennessee, for the appellee Bolon
Custom Kitchens.
OPINION
This appeal involves the validity of a materialman’s lien. The defendants, Robert and
Norma Parman (the “Parmans”), appeal an order of the trial court granting summary
judgment in favor of the plaintiff, Bolon Custom Kitchens (“Bolon”).1
1
The material facts as recited in this opinion were gleaned from the record and the parties’ briefs
on appeal and do not appear to be in dispute.
I. Procedural and Factual Background
On November 9, 2007, the Parmans entered into a “New Construction Purchase and
Sale Agreement” (“Agreement”) with Scott Construction (“Scott”) to purchase real property
located in Spring Hill, Tennessee, owned by Scott. On November 14, Scott entered into a
contract with Bolon to furnish materials and labor for improvements to the residence on the
property. On December 14, Bolon completed its work on the home, but was not paid. On
December 20, Scott conveyed the property by warranty deed to the Parmans and filed a
Notice of Completion with the Maury County Register’s Office. On March 3, 2008, Bolon
filed a Mechanic’s and Materialman’s lien (“Notice of Lien”) with the Register’s Office.
On May 5, 2008, Bolon filed a complaint in the Maury County Circuit Court against
Scott and the Parmans, seeking a monetary judgment against Scott of $13,626.00 for the
work performed under the contract and that a lien be imposed on the property to the extent
of Bolon’s claim. On May 29, the Parmans filed an answer and a cross-complaint against
Scott. On June 4, Scott filed for bankruptcy; the case proceeded without the active
participation of Scott. On July 10, 2008, the Parmans filed a motion to dismiss on the ground
that the Notice of Lien did not contain a statutorily required sworn statement. On August 21,
the trial court denied the motion, holding that the “recorded Notice of...Lien Claim
substantially complie[d] with the applicable statutes and constitute[d] a valid lien claim.”
On October 16, 2008, Bolon filed a motion for summary judgment, asserting that a
notice of completion is statutorily required to be served upon a prime contractor before it
affects that contractor’s unrecorded lien and, consequently, that the filing of the Notice of
Completion did not affect Bolon’s lien rights because Bolon was a prime contractor who did
not receive service. In response, the Parmans contended that Bolon was a remote contractor
whose unrecorded lien was barred by the filing of the Notice of Completion because remote
contractors are not statutorily entitled to service before its unrecorded lien is affected; the
Parmans also re-raised the issue of the sufficiency of the Notice of Lien, as set forth in their
motion to dismiss.
On February 2, 2009, the trial court granted Bolon’s motion for summary judgment,
finding that the “Notice of Lien at issue in this matter g[ave] rise to a valid lien which [wa]s
superior to the any [sic] interest of the defendants herein” and decreeing that the “Notice
of...Lien Claim...constitute[d] a valid lien in the amount of $13,626.00” against the Parmans’
property. The Parmans filed a Notice of Appeal on March 5, 2009 and on May 4, this Court
entered an order holding that the trial court’s February 2 order was not final because it did
not resolve the claims against Scott. The Parmans were ordered to obtain a final order from
the trial court and cause the order to be transmitted to this Court. The Parmans thereafter
filed a motion in the trial court reporting that Scott had been discharged in bankruptcy and
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asking the court to enter a final judgment in accordance with Rule 54.02, Tenn. R. Civ. P.;
the motion was granted. The Parmans duly filed a supplemental record in this Court
containing the trial court’s July 1 order.
II. Statement of the Issues
The Parmans raise the following issues:
1. Was the Notice of Completion sufficient to release the lien of Bolon
because the Parmans were equitable owners of the property under the theory
of equitable conversion?
2. Was the lien filed by Bolon invalid and unenforceable for lack of a jurat?
Bolon raises the following issue:
1. Whether jurisdiction for this cause properly lies in the Court of Appeals of
Tennessee because the Parmans have failed to comply with the mandatory and
jurisdictional requirements of Tenn. R. App. P. 4.
III. Standard of Review
This case was resolved in the trial court upon Bolon’s motion for summary judgment.
Summary judgment is appropriate if no genuine issues of material fact exist, and the movant
meets its burden of proving that it is entitled to a judgment as a matter of law. See Tenn. R.
Civ. P. 56.03; Martin v. Norfolk Southern Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008). We
have reviewed the record and the parties’ briefs on appeal and have determined that the
materials facts are not in dispute; the only question is whether Bolon was entitled to
judgment as a matter of law. Review of the trial court’s conclusions of law is de novo with
no presumption of correctness afforded to the trial court’s decision. See Kaplan v. Bugalla,
199 S.W.3d 632, 635 (Tenn. 2006).
IV. Analysis
A. Appeal
Bolon contends that this appeal is not properly before the Court because the Parmans
did not file a notice of appeal within the 30 day time-period following entry of the trial
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court’s July 1, 2009 final order, as required by Rule 4(a), Tenn. R. App. P.2 While subsection
(a) does not allow for a notice of appeal to be filed more than 30 days after entry of a final
judgment, subsection (d) provides that “[a] prematurely filed notice of appeal shall be treated
as filed after the entry of the judgment from which the appeal is taken and on the day
thereof.” (Emphasis added). The notice of appeal was filed by the Parmans after the court
granted Bolon’s motion for summary judgment; the order granting summary judgment
declared that the lien recorded by Bolon was a valid lien on the Parman’s property but did
not address Bolon’s monetary claim against Scott. The effect of the July 1 order was to
determine that, in light of Scott’s discharge in bankruptcy, final judgment was appropriate.
Through the application of subsection (d), the notice of appeal filed on March 5, 2009 is
treated as filed on July 1, 2009, the date of entry of the final judgment; consequently, this
court has jurisdiction of this case.
B. The Notice of Completion
In order to be protected from unrecorded liens, the “owner or purchaser of improved
real property...may, upon the completion of the improvement, record in the office of the
register of deeds...a notice of completion.” Tenn. Code Ann. § 66-11-143(a). The owner
must “serve a copy of any notice of completion recorded with the register of deeds on the
prime contractor.” Id. “If a prime contractor is entitled to be served with a copy of any
notice of completion recorded with the register of deeds, then the lien rights of the prime
contractor not so served a copy shall not be affected by the notice of completion.” Id. The
question before the court, therefore, is whether Bolon was a prime contractor at the time of
filing of the Notice of Completion.3 If Bolon is determined to be the prime contractor then
its claimed lien is valid because Bolon was not served with the Notice of Completion; if
Bolon was a remote contractor, then it was not entitled to service of the Notice of
Completion and its claimed lien is lost.
2
Tenn. R. App. P. 4(a) provides that “[i]n an appeal as of right to the...Court of Appeals, ...the notice
of appeal...shall be filed with and received by the clerk of the trial court within 30 days after the date of entry
of the judgment appealed from.”
3
A prime contractor is “any person other than a remote contractor who supervises or performs work
or labor or who furnishes material, services, equipment, or machinery in furtherance of any improvement;
provided, that the person is in direct privity of contract with an owner, or the owner’s agent, of the
improvement.” Tenn. Code Ann. § 66-11-101(12).
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This question, in turn, is determined by whether Scott was the statutorily defined
owner of the property at the time the contract was entered into.4 The Parmans assert that
Scott was not the owner at the time it contracted with Bolon because the Parmans became
the “equitable owners of the property” upon signing the Agreement. In support of their
contention, the Parmans rely upon the doctrine of equitable conversion, which provides that:
[A] contract for the sale of land operates as an equitable conversion and the
vendee’s interest under the contract becomes realty and the vendor’s interest
becomes personalty, and in equity the vendee is regarded as the owner, subject
to liability for the unpaid price, and the vendor is regarded as holding only the
legal title in trust for the vendee from the time a valid contract for the purchase
of land is entered into.
Campbell v. Miller, 562 S.W.2d 827, 831-32 (Tenn. Ct. App. 1977).
While the Parmans obtained an equitable interest in the property upon signing the
Agreement, Scott retained legal title to the property. Scott’s title fell within the statutory
definition of owner, i.e., “any person having any right, title or interest, legal or equitable, in
real property” Tenn. Code Ann. § 66-11-101(8) (emphasis added), and enabled Scott to enter
into the agreement with Bolon, thereby bringing Bolon into direct privity of contract with
Scott and satisfying the statutory criteria to make Bolon a prime contractor, see Tenn. Code
Ann. § 66-1-101 (12). Consequently, Bolon was entitled to service of the Notice of
Completion before its lien rights could be affected.5 Tenn. Code Ann. § 66-11-143(a).
C. The Notice of Lien
In order to preserve a lien’s priority, Tenn. Code Ann. § 66-11-112 requires a lienor
“to record in the office of the register of deeds of the county where the real property...lies,
a sworn statement of the amount for, and a reasonably certain description of the real property
on, which the lien is claimed.” Tenn. Code Ann. § 66-11-112(a). The statute provides a
4
An owner “includes the owner in fee of real property, or of a less estate in real property,...a vendee
in possession under a contract for the purchase of real property, and any person having any right, title or
interest, legal or equitable, in real property, that may be sold under process.” Tenn. Code Ann. § 66-11101(8).
5
Scott Construction was also the record owner of the property at the time it contracted with Bolon
and Bolon was entitled to rely on such recordation as proof that it was contracting with the owner of the
property in determining its lien rights. See C & C Aluminum Builders Supply v. Rynd, 4 S.W.3d 191 (Tenn.
Ct. App. 1999).
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sample sworn statement, which calls for a “Notary Acknowledgment” after the signature of
the lienor.6 Tenn. Code Ann. § 66-11-112(d).
The Parmans assert that the Notice of Lien filed by Bolon was invalid because the
sworn statement accompanying the notice did not contain a jurat which, they contend, is a
requirement of a valid sworn statement or affidavit.7 Specifically, the Parmans contend that,
without a jurat, Ms. Atkins’ statement “does not specify who was a witness to [her] swearing
and what type of oath was taken,” that “[t]he notary’s language makes no reference to [Ms.
Atkins] being sworn in the presence of the notary,” and that, therefore, “the notary cannot
truthfully aver that the statement made was sworn.” Upon a review of the record and the
applicable law, we find that the notice of lien was valid.8
In support of their assertion that a jurat is required to properly register a notice of lien,
the Parmans rely upon this Court’s holding in D.T. McCall & Sons v. Seagraves, 796 S.W.2d
457 (Tenn. Ct. App. 1990). In D.T. McCall & Sons, we found that a suppliers’ notice of lien
was in “substantial compliance with the Legislature’s intention,” in part, because the sworn
statement contained a jurat affirming that the statement was “sworn to and subscribed”
before a notary public. Id. at 462.
Renee Atkins, Bolon’s president, executed the Notice of Lien, which contained the
following language:
That the undersigned, Renee L. Atkins, being first duly sworn, states
she is the Proprietor of Bolon’s Custom Kitchens; that she is authorized to sign
this document, that the foregoing statements set forth in this Notice of Lien
Claim are true and correct to the best of her knowledge and belief and that the
amount owed by Scott Construction of TN and, (owner of the property) for
labor, materials, supplies and equipment used in improving the real estate
described herein is in the amount of $13,626.
6
“An acknowledgment...is for the purpose of authenticating an instrument for registration”; it
“authenticates the due execution of a document and is the formal statement of the person signing the
document that his signature was freely done.” D.T. McCall & Sons v. Seagraves, 796 S.W.2d 457, 463
(Tenn. Ct. App. 1990).
7
A jurat is a “certification added to an affidavit or deposition stating when and before what authority
the affidavit or deposition was made.” Black’s Law Dictionary (8th ed. 2004).
8
It is undisputed that the sworn statement contained the amount of the lien and the description of
the property upon which the lien was claimed as required by Tenn. Code Ann. § 66-11-112(a).
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The Notice of Lien also contained the following language from the Notary Public,
accompanied by his signature and seal:
Personally appeared before me, the undersigned, a Notary Public in and
for said County and State, Renee L. Atkins, with whom I am personally
acquainted and who proved herself to be the Proprietor of Bolon’s Custom
Kitchens, and who, being authorized to do so, acknowledged she executed the
foregoing instrument for the purposes therein contained.
We find that the Notice of Lien substantially complied with the statutory requirements.
While we agree with the holding in D.T. McCall & Sons that a jurat contained in a notice of
lien substantially complies with the legislative intent, we do not find that a jurat is the
minimum requirement for compliance with the statute since the sample sworn statement set
forth in subsection (d) contains only a requirement for a “Notary Acknowledgment”; the
statute does not require jurat certification.9 Consequently, the notary acknowledgment of Ms.
Atkins’ sworn statement substantially complied with the statutory requirements of Tenn.
Code Ann. § 66-11-112(a) and (d).
V. Conclusion
For the reasons set forth above, the trial court’s judgment is AFFIRMED. Costs of
this appeal are assessed against the Parmans for which execution may issue if necessary.
___________________________________
RICHARD H. DINKINS, JUDGE
9
The Parmans also assert that sworn statements or affidavits always require a jurat. The Tennessee
Supreme Court has held, however, that “we have found no constitutional or statutory rule stating that an
indispensable prerequisite to a valid affidavit is a jurat.” State v. Keith, 978 S.W.2d 861, 869 (Tenn. 1998).
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