Angleson Building Components, Inc. v. Han Soo Shin and Young Sook Shin, 83-LW-3046

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: QUILLIN, P.J.
• Parties: ANGLESON BUILDING COMPONENTS, INC., Plaintiff-Appellee, v. HAN SOO SHIN and YOUNG SOOK SHIN Defendants-Appellants and KOCAB CONSTRUCTION, INC. Defendant-Appellee. C.A.
• Docket Number: 3162,83-LW-3046
• Decision Date: 15 July 1983

ANGLESON BUILDING COMPONENTS, INC., Plaintiff-Appellee,
v.
HAN SOO SHIN and YOUNG SOOK SHIN Defendants-Appellants and KOCAB CONSTRUCTION, INC. Defendant-Appellee.

No. 3162.

83-LW-3046 (11th)

Court of Appeals of Ohio, Eleventh District, Trumbull County.

July 15, 1983

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF TRUMBULL, OHIO CASE NO. 80 CV 161.

RONALD A. DEVITO, Attorney at Law, 379 Niles Courtland Rd., S.E., Warren, OH 44484 for Plaintiff.

GILBERT L. RIEGER, Attorney at Law, 174 N. Park Ave., P.O. Box 1268, Warren, OH 44482 for Defendant.

DECISION AND JOURNAL ENTRY

QUILLIN, P.J.

This cause was heard May 17, 1983, upon the record in the trial court, including the transcript of proceedings, and the briefs. It was argued by counsel for the parties and submitted to the court. We have reviewed each assignment of error and make the following disposition:

Defendants-appellants, Han Soo Shin and Young Sook Shin, appeal from the judgment of the lower court finding that defendant-appellee, Kocab Construction, Inc., had a valid and subsisting mechanic's lien against the property interest of Han Soo Shin, and issuing a decree of foreclosure and order of sale on said property. We reverse.

FACTS

Appellants Han Soo Shin and Young Sook Shin are husband and wife and owners of certain real property located in Trumbull County. On or about September 21, 1977, the Shins entered into a contract with Halchuck Construction Co. to construct a house on said real property. Kocab Construction, Inc. was awarded the sub-contract for the rough carpentry on the Shins' residence. The contract between Halchuck and Kocab provided that Kocab was to receive $16,000 for this work.

Subsequently, Halchuck Construction experienced financial difficulties and failed to pay the various subcontractors, including Kocab. Halchuck was eventually fired by Shin and another contractor was hired to complete the construction.

On August 1, 1978, Kocab Construction, Inc. filed an affidavit to obtain a mechanic's lien for furnishing labor in the construction of the Shins' residence. The affidavit states that Kocab is entitled to a balance of $11,000 for such labor.

On February 8, 1980, Angleson Building Components, Inc. instituted the within action against Han Soo Shin and Young Sook Shin for foreclosure on its mechanic's lien. Angleson's complaint joined various other lien holders, including Kocab Construction, for a determination of the priority of the liens. Kocab filed a cross-claim against the Shins joining in the plaintiff's prayer for foreclosure and sale of the Shins' property.

Angleson's claim against the Shins was settled prior to trial, as were the claims of several other lien holders. The case was tried to the court commencing March 30, 1982. The court held that the mechanic's lien of Kocab Construction Company had not been perfected against the interest of Young Sook Shin in the real estate because of Kocab's failure to properly serve a copy of the affidavit upon her as required by R.C. 1311.07. This portion of the court's order has not been appealed by Kocab.

The court further held that Kocab's mechanic's lien was a valid and subsisting lien against the interest of Han Soo Shin in the estate, and ordered that the property be sold to satisfy Kocab's lien. It is from this portion of the lower court's order which gives rise to this appeal by Han Soo Shin and Young Sook Shin.

ASSIGNMENTS OF ERROR

"1. The trial court erred to the prejudice of the appellant in ruling that the appellee has a valid and subsisting mechanic's lien on the subject real estate of the appellant

"2. The trial court erred to the prejudice of the appellant in ruling that a decree of foreclosure and order of sale be issued against the interest of Han Soo Shin in the subject premises."

DISCUSSION

The question presented to us by the within appeal is to what extent, if any, Kocab's failure to perfect its mechanic's...