MARVIN MAESER PLUMBING, INC. v. DONALD S. KINCAID AND HUNTINGTON MORTGAGE COMPANY
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RENDERED:
MARCH 30, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000858-MR
MARVIN MAESER PLUMBING, INC.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS B. WINE, JUDGE
ACTION NO. 98-CI-001388
v.
DONALD S. KINCAID AND
HUNTINGTON MORTGAGE COMPANY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, GUIDUGLI, AND MILLER, JUDGES.
MILLER, JUDGE:
Marvin Maeser Plumbing, Inc. (Maeser) brings this
appeal from a March 6, 2000, Opinion and Order of the Jefferson
Circuit Court.
We affirm.
Maeser is in the plumbing business in Jefferson County,
Kentucky.
Maeser performed “rough-in” plumbing work for
Countryside Builders, Inc. (Countryside), a builder located in
that county.
The dispute in this matter is between Maeser, the
plumber, and Donald S. Kincaid, a homeowner, who purchased a home
from Countryside.
A sequence of events is important to the
disposition of the case:
(1)
On July 3, 1997, Kincaid entered into a
contract with Countryside to purchase a
house on Lot 23;
(2)
On August 1, 1997, a closing was held
and Countryside delivered a deed to
Kincaid;
(3)
On August 4, 1997, Maeser recorded a
judgment against Countryside for work
performed on various houses from
September 1995 to July 1996;1
(4)
On August 5, 1997, Maeser filed notice
of a judgment lien pursuant to Kentucky
Revised Statutes (KRS) 426.720;
(5)
On August 6, 1997, Kincaid recorded his
deed.
Based on the foregoing information, Maeser claimed that his
judgment lien took precedence over the Kincaid deed by virtue of
our recording statute set forth in KRS 382.270.
The circuit court disagreed with Maeser upon two
grounds: (1) Maeser's judgment lien was obtained with notice that
Kincaid had purchased the property; and (2) at the time Maeser
recorded its judgment lien against Countryside, Countryside had
no interest in the Lot 23 to be subjected to the lien inasmuch as
title had already passed to Kincaid.
KRS 382.270 provides as follows:
Instruments not valid against purchasers or
creditors unless recorded. -- No deed or deed
of trust or mortgage conveying a legal or
equitable title to real property shall be
valid against a purchaser for a valuable
consideration, without notice thereof, or
against creditors, until such deed or
mortgage is acknowledged or proved according
to law and lodged for record. As used in
1
A judgment lien is not to be confused with a mechanics' and
materialmen's lien, which may be asserted under Kentucky Revised
Statute Chapter 376.
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this section “creditors” includes all
creditors irrespective of whether or not they
have acquired a lien by legal or equitable
proceedings or by voluntary conveyance.
KRS 426.720 provides, in relevant part, as follows:
Final judgment to act as lien on realty —
Judgment creditor's notice requirements. — A
final judgment for the recovery of money or
costs in the courts of record in this
Commonwealth, whether state or federal, shall
act as a lien upon all real estate in which
the judgment debtor has any ownership
interest, in any county in which the
following first shall be done:
(1) The judgment creditor or his
counsel shall file with the county clerk of
any county a notice of judgment lien
containing the court of record entering the
judgment, the civil action number of the suit
in which the judgment was entered, and the
amount of the judgment, including principal,
interest rate, court costs, and any attorney
fees; (Emphasis added.)
This appeal is from an entry of a summary judgment and
our review is under Ky. R. Civ. P. (CR) 56; Steelvest, Inc. v.
Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).
Perceiving there to be no question of fact, we think disposition
turned upon a question of law.
We are inclined to agree with the
circuit court on both its stated premises.
During the arrangements to purchase Lot 23, it is
undisputed that Kincaid had direct communication with Maeser
concerning the completion of the rough-in work it had performed
for Countryside.
Moreover, Kincaid conversed with Maeser
concerning additional plumbing work on the house.
In view of
this, it cannot be doubted that Maeser had knowledge that Kincaid
was in the process of acquiring Lot 23.
Maeser was in the
general business of roughing-in the plumbing on various houses to
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be built by Countryside and well knew the nature of Countryside's
business inasmuch as the houses were of new construction offered
for immediate sale.
We think the circuit court was correct in
concluding that Maeser was on notice of Kincaid's interest in the
property and perforce fell outside of the recording statute.
Simply stated, any interest that Maeser may have acquired by the
recordation of its notice of judgment lien was with actual notice
of Kincaid's interest in the property.
We now turn to the question of whether Countryside had
an interest in the property which could be subjected to the
judgment lien.
KRS 426.720 clearly provides that the recordation
of notice of judgment “shall act as a lien upon all real estate
in which the judgment debtor has any ownership interest.”
It is
obvious that at the time of recordation, the judgment debtor,
Countryside, had no interest in Lot 23, as same having been
conveyed to Kincaid some five days before.
Had Maeser attempted
to foreclose on the judgment lien and sell the real property
belonging to Countryside, it certainly could not have subjected
Lot 23 to the foreclosure.
For the foregoing reasons, the Opinion and Order of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Michael M. Hirn
Louisville, Kentucky
T. Morgan Ward, Jr.
Padma G. Hinrichs
Louisville, Kentucky
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