Lewis v. Wanamaker Baptist Church, 56233
| Decision Date | 20 December 1984 |
| Docket Number | No. 56233,56233 |
| Parties | Wayne LEWIS, d/b/a Lewis Excavation, Appellant, v. WANAMAKER BAPTIST CHURCH, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
A verification of a lien statement filed pursuant to K.S.A. 60-1102 which states that the lien statement and attached exhibits are true and correct to the best of the affiant's knowledge and belief, without a showing that he had knowledge of the subject, is insufficient.
Joseph D. Johnson, Topeka, for appellant.
Louis F. Eisenbarth and Ruth E. Graham of Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, for appellee.
Before PARKS, P.J., BRISCOE, J., and JEROME HARMAN, Chief Judge Retired, assigned.
Plaintiff Wayne Lewis d/b/a Lewis Excavation, a subcontractor, brought suit to foreclose his mechanic's lien against the property of defendant landowner, Wanamaker Baptist Church. The trial court held that the mechanic's lien was void because it lacked proper verification and denied relief. Plaintiff appeals.
In the Spring of 1982, defendant landowner contracted with George Hollyhead, as general contractor, to construct a new sewer line hookup with the city sewer. Plaintiff was selected to do the excavating and he performed the tasks included in his bid as well as others requested by the general contractor. Hollyhead did not pay plaintiff the money due him, so plaintiff filed a mechanic's lien against the church property on April 9, 1982. The trial court found the mechanic's lien fatally defective because the verification statement signed by plaintiff was qualified as being according "to the best of his knowledge and belief." The pertinent part of the verification states as follows:
"That he is the claimant in the above and foregoing Mechanics Lien; that he has read the above and foregoing lien and swears that the statements and allegations contained therein along with the attached Exhibit 'A' are true and correct to the best of his knowledge and belief."
A lien statement must be filed in order for the lien to be valid and enforceable and it must satisfy the following provisions of K.S.A. 60-1102:
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. Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, 704-05, 549 P.2d 1376 (1976). K.S.A. 60-1102 states that the lien statement should be verified and this verification has been held to mean an affidavit attached to the statement swearing to the truth of the matters set forth. Trane Co. v. Bakkalapulo, 234 Kan. 348, 352, 672 P.2d 586 (1983). An acknowledgment merely showing that the document was duly executed will not substitute for a verification. D.J. Fair Lumber Co. v. Karlin, 199 Kan. 366, 369, 430 P.2d 222 (1967). However, the information necessary to establish the sufficiency of the verification may be supplied in the text of the lien statement as well as the verification affidavit itself. Trane, 234 Kan. at 352, 672 P.2d 586. Nevertheless, the verification requirement must be strictly met before the lien can be adjudged valid.
The only Kansas case dealing squarely with the efficacy of a less than absolute verification in a mechanic's lien context held that an affidavit made by an agent to the best of his knowledge and belief without a showing that he had any knowledge on the subject was insufficient. Dorman v. Crozier, 14 Kan.
(1875). Other cases involving the sufficiency of affidavits required as verification in various proceedings have similarly rejected the effectiveness of a qualified statement. See e.g., Harrison v. Beard, 30 Kan. 532, 2 Pac. 632 (1883); City of Atchison et al. v. Bartholow et al., 4 Kan. *124, 140 (1866).
The apparent strictness of this requirement is not without purpose. The mechanic's lien, once it attaches, clouds the interest of the landowner and takes priority over all subsequent encumbrances. K.S.A. 60-1101. The requirement that the person verifying the lien statement swear absolutely to the truth of the facts stated conveys to the signer both the significance of the ramifications of the lien and the duty to avoid perjury. K.S.A.1983 Supp. 21-3805. A qualified verification statement would permit the verifier to affirm facts as accurate upon hearsay or mere belief without actual knowledge of the truth. Such limited knowledge should not be permitted to justify the encumbrance of another's realty. See Climate Control Co., Inc. v. Bergsieker Refrig., 196 Mont. 405, 408-09, 640 P.2d 442 (1982).
Plaintiff contends that the qualification in the verification attached...
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