TRI-COUNTY WOOD PRESERVING, INC. v. DONALD M. SPEAR AND JOHN SCHEIDT
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RENDERED:
JANUARY 27, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000517-MR
TRI-COUNTY WOOD PRESERVING, INC.
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 04-CI-00493
v.
DONALD M. SPEAR AND
JOHN SCHEIDT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE AND JOHNSON, JUDGES.
COMBS, CHIEF JUDGE:
Tri-County Wood Preserving, Inc. (“Tri-
County”), appeals from a February 2, 2005, order of the Shelby
Circuit Court dismissing its complaint to enforce a
materialman’s lien against property owned by Donald Spear and
John Scheidt.
We affirm.
In March 2003, Scheidt and Spear contracted with
Patrick J. O’Connell to construct fences on Stonecroft Farm,
property that they own in Shelby County.
O’Connell agreed to
provide both labor and material for the project.
On March 25,
2003, Scheidt and Spear paid O’Connell $25,000.00 as a down
payment.
In April 2003, O’Connell advised Scheidt and Spear
that he required an additional payment to cover the costs of
material.
They paid O’Connell an additional $12,500.00 by a
check dated April 22, 2003.
Invoices produced during discovery
indicate that the appellant, Tri-County, delivered two loads of
treated poplar planks directly to O’Connell in Taylorsville,
Kentucky.
The first was shipped on April 24, 2003, and the
second on May 5, 2003.
Although O’Connell failed to complete the project to
the satisfaction of Scheidt and Spear, he presented a final bill
to them on August 12, 2003.
bankruptcy protection.
Within a short time, he filed for
Ultimately, Scheidt and Spear paid other
contractors to complete the project.
On September 3, 2003, Scheidt and Spear received
written notice that Tri-County intended to assert a lien against
Stonecroft Farm for the cost of materials that had been sold and
delivered to O’Connell.
On September 5, 2003, Tri-County filed
its lien on the property.
On September 3, 2004, Tri-County filed an action to
enforce the lien.
Scheidt and Spear filed a motion to dismiss
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the action pursuant to the provisions of CR1 12.
The supporting
memorandum to the motion to dismiss included as attachments
Spear’s affidavit, a copy of the construction contract, dated
correspondence from O’Connell, several invoices, copies of
several checks drawn on the farm account, and other documents.
Scheidt and Spear argued that the lien was invalid since TriCounty had failed to give notice of its intent to claim the lien
within the time mandated by the provisions of KRS2 376.010.
They
also contended that their payment to the general contractor for
the costs of the material and their status as owners/occupiers
of the property meant that the property was not subject to the
purported lien.
The trial court agreed, and by order entered
February 2, 2005, it dismissed Tri-County’s action to enforce
its unperfected lien against Stonecroft Farm.
This appeal
followed.
Because of the evidentiary material submitted along
with the motion to dismiss, we believe that the motion to
dismiss should have been treated as a motion for summary
judgment.
Whisler v. Allen, 380 S.W.2d 70 (Ky. 1964).
Summary
judgment is proper only where there exist no material issues of
fact and it is shown that the movant is entitled to judgment as
a matter of law.
Steelvest, Inc. v. Scansteel Service Center,
1
Kentucky Rules of Civil Procedure.
2
Kentucky Revised Statutes.
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Inc., 807 S.W.2d 476 (Ky. 1991).
appeal are undisputed.
The facts relevant to this
Tri-County asserts that the circuit
court erroneously concluded that it had failed to give timely
notice of its intent to claim a lien against the property.
Resolution of the appeal involves a question of law:
namely,
whether Tri-County properly perfected a lien under the
provisions of the Kentucky’s mechanics’ and materialmen’s liens
statute.
KRS 376.010(4) provides, in part, as follows:
No person who has not contracted directly
with the owner or his authorized agent shall
acquire a lien under this section on an
owner-occupied single or double family
dwelling, the appurtenances or additions
thereto, or upon other improvements for
agricultural or personal use to the real
property or real property contiguous thereto
and held by the same owner, upon which the
owner-occupant’s dwelling is located, unless
he notifies in writing the owner of the
property to be held liable or his authorized
agent not more than seventy-five (75) days
after the last item of material or labor is
furnished, of the delivery of the material
or performance of labor and of his intention
to hold the property liable and the amount
for which he will claim a lien. . . .
Notwithstanding the foregoing provisions of
this subsection, the lien provided for under
this section shall not be applicable to the
extent that an owner-occupant of a single or
double family dwelling or owner of other
property as described in this subsection
has, prior to receipt of the notice provided
for in this subsection, paid the contractor,
subcontractor, architect, or authorized
agent for work performed or material
furnished prior to such payment.
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The interpretation of a statute is a matter of law for
the court, and a statute should be construed so as to effectuate
the legislative intent.
City of Worthington Hills v.
Worthington Fire Protection District, 140 S.w.3d 584 (Ky.App.
2004).
The mechanics’ and materialmen’s statutes are to be
interpreted according to the common meaning or usage of their
language.
1997).
Bee Spring lumber Co. v. Pucossi, 943 S.W.2d 622 (Ky.
We are persuaded that the trial court properly applied
the relevant provisions of the statute.
KRS 376.010(4) requires that a material supplier
notify an owner/occupier in writing of his intent to claim a
lien within seventy-five (75) days of furnishing the last item
of material.
Tri-County reads the statute as permitting it to
give notice of its intent to claim a lien within seventy-five
days of the last day that O’Connell furnished labor at the
jobsite.
His final invoice was dated August 12, 2003, and the
notice of the lien (filed September 3, 2003) would have been
timely under such an interpretation.
However, the plain and
unambiguous language of the statute defines the controlling
event as the date of furnishing the last of the material from
which to calculate the seventy-five days.
See Laferty v. Wickes
Lumber Co., 708 S.W.2d 107 (Ky.App. 1986); Mingo Lime & Lumber
Co. v. Stanley, 79 S.W.2d 4 (Ky. 1935); Wolflin-Luhring Lumber
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Co. v. Mosely, 154 S.W. 22 (Ky. 1913).
Tri-County filed its
notice of intent to assert a lien on September 3, 2003, thus
occurring 121 days after it last furnished material to O’Connell
on May 5, 2003.
Kentucky law is clear that a mechanics’ and
materialmen’s lien must be properly perfected in order to be
enforceable.
See Hub City Wholesale Electric, Inc. v. Mik-Beth
Electrical Co., LTD., 621 S.W.2d 242 (Ky.App. 1981).
A lien
claim against a noncontracting owner has not been perfected
unless written and timely notice has been provided.
Tri-County
did not provide timely notice of its intention to claim a lien.
Consequently, the trial court did not err by dismissing the
action to enforce the lien.
For the foregoing reasons, the judgment of the Shelby
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Paul M. Quarles
Frankfort, Kentucky
C. Tyson Gorman
Louisville, Kentucky
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