J. Walters Const. Co. v. Greystone South Partnership, L.P.

• Decision Date: 19 April 1991
• Docket Number: No. 64599,64599
• Citation: 15 Kan.App.2d 689,817 P.2d 201
• Parties: J. WALTERS CONSTRUCTION COMPANY, Plaintiff/Appellee, v. GREYSTONE SOUTH PARTNERSHIP, L.P., Central Life Assurance Company, and Sun Savings Association, Defendants/Appellants, and Airtech Engineering, Inc., Jerry Ward Construction Company, National Concrete Construction, R.H. Plunkett, Inc., Sound Control Systems, Inc., J. Henges Enterprises, Inc., Defendants/Appellees.
• Court: Kansas Court of Appeals

Page 201

817 P.2d 201

15 Kan.App.2d 689

J. WALTERS CONSTRUCTION COMPANY, Plaintiff/Appellee, v. GREYSTONE SOUTH PARTNERSHIP, L.P., Central Life Assurance Company, and Sun Savings Association, Defendants/Appellants and Airtech Engineering, Inc., Jerry Ward Construction Company National Concrete Construction, R.H. Plunkett Inc., Sound Control Systems, Inc., J Henges Enterprises, Inc., Defendants/Appellees.

No. 64599.

Court of Appeals of Kansas.

April 19, 1991.

Motion For Publication Granted

June 28, 1991.

Syllabus by the Court

1. Perfection of a mechanic's lien requires that the statutory requirements be strictly met. Once the lien has attached, the statutory provisions regarding mechanics' liens are liberally construed.

2. A mechanic's lien statement verification is an affidavit attached to the statement swearing to the truth of the matters set forth in the statement. The verification must be absolute; a qualified verification is not sufficient. Knowledge sufficient to state the truth of the contents of the statement is implicit in the execution of a verification under an unqualified oath.

3. Where the effects of a mechanic's lien statement verification are to incorporate by express reference each of the allegations referred to in the attached statement, and to swear to the accuracy of those allegations, it is redundant to require the affiant to restate his representative capacity in the affidavit where it already appears in the statement being verified.

4. In a case where multiple mechanic's lien claims are individually challenged on various grounds as to validity, priority, and amount, it is held on appeal, pursuant to K.S.A. 60-254(b) certification, that the trial court did not err in its determinations.

W. Joseph Hatley, John L. Vratil, and Laura J. Bond of Lathrop Norquist & Miller, Overland Park, for appellants.

Dennis J. Stanchik of Silverman & Stanchik, Mission, for appellees Joseph R. Walters and Baker Smith Sheet Metal Co.

Scott I. Asner, Olathe, for appellee Airtech Engineering, Inc.

Michael E. Whitsitt and Kirk D. Auston of Whitsitt, Auston & Skinner, Overland Park, for appellees Jerry Ward Const. Co., Nat. Concrete Const., and R.H. Plunkett, Inc.

Robert Ernest Gould of Gould & Moore, P.C., Kansas City, for appellee Sound Control Systems, Inc.

Ron Bodinson of Shook, Hardy & Bacon, Overland Park, for appellee J. Henges Enterprises, Inc.

Before REES, P.J., RULON, J., and GEORGE F. SCOTT, District Judge, assigned.

REES, Presiding Judge:

Upon K.S.A. 60-254(b) certification, Central Life Assurance Co. and Sun Savings Association appeal from a district court determination that liens against the Greystone South Office Plaza complex asserted by the general contractor, J. Walters Construction Co., and several subcontractors, have priority over mortgages against the complex held by Central and Sun. Finding no reversible error, we affirm.

Central Life and Sun complain that Walters Construction's lien statement was improperly verified, several of the lien statements are illegible and contain impermissibly broad property descriptions, and certain lien statements contain deficient statements of the materials and labor provided. Further, they argue the trial court erred in computing the amount due Joseph Walters under a lien interest assignment by Walters Construction to him. They complain that the trial court erred in awarding prejudgment interest when ordering enforcement of the liens. Finally, they assert the court erred in ruling that all the mechanics' liens, including those of the subcontractors, relate back to the date Walters Construction began work on the project and therefore are superior to the mortgages held by Central Life and Sun.

Our standard of review of findings of fact and conclusions of law is settled:

"Where the trial court has made findings of fact and conclusions of law, the function of [the appellate] court ... is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. [Citations omitted.] Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.] Stated in another way, 'substantial evidence' is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]" Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).

Our review of conclusions of law is unlimited. Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan.App.2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). In addition, when, as here, the appeal involves review of documentary evidence considered by the trial court, the following applies:

" 'Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, ... on appellate review [we have] as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish.' [Citation omitted.]" Bell v. Tilton, 234 Kan. 461, 468, 674 P.2d 468 (1983).

Finally, because this case involves application of Kansas' mechanic's lien statutes, it is to be borne in mind that requirements for the lien to come into existence must be strictly met, but once the lien has attached mechanic's lien provisions are liberally construed. Kansas Lumber Co. v. Wang, 12 Kan.App.2d 20, 22, 733 P.2d 1266 (1987).

Provided they meet the filing requirements of K.S.A. 60-1102, under K.S.A. 60-1101 contractors have the right to a lien on property for services rendered.

The requirements of K.S.A. 60-1102 are stated as follows:

"(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 has been given for the same, a copy thereof may be attached to the claim in lieu of the itemized statement."

We held in Kansas Lumber Co. v. Wang, 12 Kan.App.2d at 22, 733 P.2d 1266:

"Although the mechanic's lien provisions are liberally construed once the lien has been shown to have attached, the requirements for the lien to come into existence must be strictly met. [Citations omitted.] Included within these requirements is the specification that the lien statement be 'verified.' A verification has been held to mean an affidavit attached to the statement swearing to the truth of the matters set forth. [Citation omitted.] ... The verification must be absolute [citation omitted] and the lack of a verification in the statement filed necessarily defeats the lien. [Citation omitted.]"

In the present case, the trial court made the following findings:

"12. The mechanic's lien statement filed by [Walters Construction] on 17 March 1986 was signed on the front of the lien in the following manner: 'Dennis Stanchik for J. Walters Construction'.

"13. The verification statement of the mechanic's lien filed by [Walters Construction] was signed by Dennis Stanchik and read as follows:

" 'Dennis Stanchik being first duly sworn on his oath states that the above and foregoing statement is true and correct and the amount therein claimed is justly due the claimant.'

"14. At the time of the filing of the mechanic's lien statement by [Walters Construction], Dennis Stanchik was the attorney at law for [Walters Construction] and was instructed by the President of [Walters Construction] to sign, verify and file the lien statement.

"15. Prior to the filing of the lien statement, Joseph R. Walters [Walters Construction's president] explained all of the matters referred to in the mechanic's lien statement filed by [Walters Construction] to Dennis Stanchik and allowed Dennis Stanchik to examine the corporate records to verify the accuracy of the matters contained in the lien statement."

The trial court concluded Walters Construction's mechanic's lien statement was "in full compliance with the provisions of K.S.A. 60-1101 et seq. and is therefore valid and enforceable in all respects."

Mechanic's lien statement verification has been an issue in a number of Kansas cases. In Dorman v. Crozier, 14 Kan. 224, 225 (1875), there appears this verification text and Supreme Court response:

"W.J. Bound, of lawful age, and the agent of Uriah Dorman, a non-resident of the county of Miami, being by me first duly sworn, deposeth and says, that he is the agent of Uriah Dorman, and the facts as above set forth are true and correct according to the best of his knowledge and belief."

The Supreme Court held:

"An affidavit made by an agent of another verifying a statement of a claim filed ... [under] the mechanic's lien law ... for the purpose of procuring a mechanic's lien on certain real estate, should be sworn to positively. [Citation omitted.] An affidavit for such a purpose, made by such an agent, stating that 'the facts as above set forth are true and correct, according to the best of his [the agent's] knowledge and belief,' without showing that he had any knowledge upon the subject, is not sufficient." 14 Kan. at 227.

In Lewis v. Wanamaker Baptist Church, 10 Kan.App.2d 99, 692 P.2d 397 (1984), the language of the verification at issue was this:

" 'That he is the claimant in the above and foregoing...