Owen Lumber Co. v. Arthur Chartrand, 82,228.
| Decision Date | 18 February 2000 |
| Docket Number | No. 82,228.,82,228. |
| Citation | 27 Kan. App.2d 72,998 P.2d 509 |
| Parties | OWEN LUMBER COMPANY, Appellant, v. ARTHUR CHARTRAND and CAROL CHARTRAND, Appellees. |
| Court | Kansas Court of Appeals |
Michael P. Bander, of Crouch, Spangler & Douglas, of Harrisonville, Missouri, for appellant.
Jerry D. Fairbanks, of Goodland, for appellees.
Before KNUDSON, P.J., ROBERT J. FLEMING, District Judge, assigned, and RICHARD M. SMITH, District Judge, assigned.
Aff'd 270 Kan. 215, 14 P.3d 395 (2000).
This appeal involves the procedures necessary for a subcontractor to claim a lien upon real estate, specifically the notice of intent to perform required under K.S.A. 60-1103b(b), and the requisite notice, pursuant to K.S.A. 60-1103(c).
A summary recitation of the underlying facts is necessary for an understanding of the issues on appeal. Arthur and Carol Chartrand contracted with Design Build Group, Inc. (Design Build) for the construction of a new residence. The development where the real estate is located required that the contractor retain title to the real estate until the project was completed. Title, therefore, was held by Design Build during construction.
Construction was undertaken in late 1994 or early 1995 and problems soon developed. After reviewing the record, it appears that the Chartrands made change orders directly with subcontractors. Many of the subcontractors were not being paid. Numerous liens were filed. The Chartrands filed an affidavit of equitable interest in the Office of the Register of Deeds of Johnson County, Kansas on December 28, 1995. This was done in an apparent attempt to protect their investment in the property.
Owen Lumber Company, Inc. claimed a mechanic's lien for lumber it had supplied for a portion of the project. Owen Lumber filed its lien on January 5, 1996. Design Build acknowledged receipt of the lien on January 8, 1996.
The Chartrands received a title report reflecting Owen Lumber's lien. Mr. Chartrand researched the records of the Johnson County District Court pertaining to this real estate, including Owen Lumber's lien.
After settlement negotiations with Design Build, the Chartrands accepted title to the property by way of quitclaim deed. This deed was filed February 5, 1996. All other liens have been resolved in various fashions not pertinent to this appeal.
The procedural history of this litigation is also pertinent to the appeal. A petition to foreclose the lien was filed by Owen Lumber on January 3, 1997. Owen Lumber subsequently filed a motion for summary judgment. After hearing oral arguments on the motion for summary judgment, the district court ruled that Owen Lumber's failure to comply with Supreme Court Rule 141 (1999 Kan. Ct. R. Annot. 176) precluded summary judgment in its favor. The district court went on to say, though, that summary judgment is sometimes properly granted to a nonmoving party and granted the Chartrands partial summary judgment. The court ruled that Owen Lumber was not entitled to claim a lien because of its failure to comply with the requirements of K.S.A. 60-1103b and the only remaining issue was whether the Chartrands were good faith purchasers for value. That specific issue was for trial at a later date.
At trial, after hearing evidence on the issue of good faith, the district court ruled that the Chartrands were, in fact, good faith purchasers for value. The court added that the lien failed because of Owen Lumber's failure to comply with the notice requirements of K.S.A. 60-1103(c). Owen Lumber appeals the rulings of the district court.
This appeal presents two issues. Both are questions of statutory construction over which our review is plenary. State v. Patterson, 25 Kan. App.2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998). The first issue is whether the district court erred in its determination that Owen Lumber was required to file a notice of intent to perform under K.S.A. 60-1103b. The second issue concerns Owen Lumber's compliance with the notice requirement found in K.S.A. 60-1103(c).
It will be helpful to review the rules of statutory construction pertinent to both issues.
The fundamental rule of statutory construction is that the intent of the legislature, if it can be ascertained, controls interpretation. Kaul v. Kansas Dept. of Revenue, 266 Kan. 464, Syl. ¶ 2, 970 P.2d 60 (1998). When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent and will not read such a statute as to add something not readily found therein. In re Marriage of Killman, 264 Kan. 33, Syl. ¶ 3, 955 P.2d 1228 (1998). The legislature is presumed to have expressed its intent through the statutory scheme enacted. 264 Kan. 33, Syl. ¶ 2.
Where the face of the statute leaves its construction uncertain, the court may properly look into the historical background of its enactment, including the circumstances attending its passage. In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, Syl. ¶ 5, 973 P.2d 176 (1999). It is presumed that the legislature acted with full knowledge and information as to judicial decisions with respect to prior law. McGraw v. Premium Finance Co. of Missouri, 7 Kan. App.2d 32, 35, 637 P.2d 472 (1981),rev. denied 231 Kan. 801 (1982). When the legislature revises existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. Kaul, 266 Kan. 464, Syl. ¶ 3.
The first issue is whether Owen Lumber was required to file a notice of intent to perform under K.S.A. 60-1103b. That statute provides, in pertinent part:
The district court interpreted this provision as requiring Owen Lumber to file a notice of intent to perform even though it had filed the lien while title was still vested in Design Build, the owner/ contractor. The district court stated that the passage of the amendment to K.S.A. 60-1103 and to 60-1103b was in response to Star Lumber & Supply Co. v. Capital Constr. Co., 238 Kan. 743, 715 P.2d 11 (1986), and, therefore, the legislature intended to require the notice of intent to perform in circumstances similar to the instant one. The district court went on to hold that the notice of intent to perform requirement was absolute and the filing of the lien itself failed to satisfy the requirement.
The district court may have been misled by the coincidental passage of K.S.A. 60-1103b and the Supreme Court's decision in Star Lumber. The proposed legislation, which eventually became K.S.A. 60-1103b, was introduced as HB 2296 on February 12, 1985. House J. 1985, p. 267. The bill was referred to the Special Committee on the Judiciary on February 13, 1985. House J. 1985, p. 274. It emerged as SB 413 on January 13, 1986. Sen. J. 1986, p. 848. It was first passed by the Senate on a roll call vote on February 12, 1986. Sen. J. 1986, pp. 965-66. The legislation was sent to conference committee twice before final passage. There is no discussion of the Star Lumber case in any of the committee minutes. Star Lumber was decided on February 21, 1986. The legislature's actions cannot be attributed to Star Lumber.
K.S.A. 60-1103b provides that a subcontractor may claim a lien upon new residential property after the passage of title only if the requisite notice of intent to perform is filed prior to the recording of the deed effecting passage of title. The statute is plain and unambiguous. Its obvious purpose is to provide protection for good faith purchasers after the passage of title. Here, Owen Lumber claimed a lien against the real estate owned by Design Build and filed a lien statement prior to the passage of title to the Chartrands. The filing of an affidavit of equitable interest is not tantamount to a passage of title. K.S.A. 60-1103b was inapplicable. The question of whether the Chartrands were good faith purchasers was irrelevant.
The next issue is whether Owen Lumber complied with the notice provision of K.S.A. 60-1103(c).
The district court ruled that Owen Lumber's lien failed because...
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Owen Lumber Co. v. Chartrand
...The Court of Appeals reversed on both issues, and this court affirmed the Court of Appeals' decision. Owen Lumber Co. v. Arthur Chartrand, 27 Kan. App. 2d 72, 998 P.2d 509, aff'd 270 Kan. 215, 14 P.3d 395 (2000) (Chartrand I). This court ruled that Owen Lumber was not required to file a not......
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Owen Lumber Co. v. Chartrand
...of interest in real property includes equitable interest). The Court of Appeals reversed the district court. Owen Lumber Co. v. Chartrand, 27 Kan. App.2d 72, 998 P.2d 509 (2000). First, the Court of Appeals found that the district court had mistakenly found that K.S.A. 60-1103 and 60-1103b ......
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