Opinion
NO. 2012-CA-000629-MR
05-17-2013
FORCHT BANK, NA APPELLANT v. JOHN DENNY, D/B/A DENNY SOD COMPANY APPELLEE
BRIEFS FOR APPELLANT: Emmett Daniel Clifford Corbin, Kentucky BRIEF FOR APPELLEE: Stuart K. Olds Richmond, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM G. CLOUSE, JR., JUDGE
ACTION NO. 11-CI-00339
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT AND MAZE, JUDGES. MAZE, JUDGE: Forcht Bank, NA, appeals from a summary judgment granted by the Madison Circuit Court to John Denny, d/b/a Denny Sod Company. The bank argues that a mechanic's and materialman's lien filed by Denny is invalid because the certificate of service failed to conform to the requirements of Kentucky Rules of Civil Procedure (CR) 5 (Civil Rules). Because the lien document conformed to the statutory requirements for perfecting and enforcing such a lien, we affirm.
Denny was hired by a subcontractor, Landesign Outdoor Solutions, LLC, to perform landscaping services at the Forcht Bank facility in Richmond, Kentucky. When the subcontractor failed to pay Denny the agreed-upon charge of $5,950, Denny sent notice to Forcht Bank, explaining that if the bill was not paid he would claim a mechanic's and materialman's lien on the bank property. The bill was not paid.
About two months later, on January 6, 2011, Denny recorded a notice of a mechanic's and materialman's lien against the Forcht Bank property at the Madison County Clerk's Office. A copy of this document was mailed to Forcht Bank, and the bank acknowledges receipt of this notice.
On March 1, 2011, Denny filed a complaint in Madison Circuit Court, seeking enforcement of the lien. The court ultimately granted summary judgment in Denny's favor, after finding that the lien filed by Denny was valid and properly perfected. This appeal followed.
Forcht's sole argument on appeal is that the lien statement that Denny filed in the clerk's office is invalid because the certificate of service at the end of the document failed to list any names or addresses. The name and address of the property owner, Forcht Bank, and the name and address of its attorney do appear at the head of the document.
The statutory procedure for perfecting and enforcing a mechanic's and materialman's lien consists of three steps:
Within 120 days after furnishing the last labor or material, the owner must be notified in writing of the claimant's intent to claim a lien if he is not paid. [Kentucky Revised Statutes (KRS) 376.010]. Within six months after furnishing the material, a lien statement must be filed with the county court clerk. KRS 376.080. Finally, an action to enforce the perfected lien must be commenced within one year after the filing of the statement with the clerk. KRS 376.090. Failure to take any of these steps dissolves the lien.Laferty v. Wickes Lumber Co., 708 S.W.2d 107, 108 (Ky. App. 1986).
Forcht's argument regarding the defective certificate of service concerns the second step of the process, the filing of a lien statement, which is governed by KRS 376.080(1). It states as follows:
Any lien provided for in KRS 376.010 shall be dissolved unless the claimant, within six (6) months after he ceases to labor or furnish materials, files in the office of the county clerk of the county in which the building or improvement is situated a statement of the amount due him, with all just credits and set-offs known to him, together with a description of the property intended to be covered by the lien sufficiently accurate to identify it, the name of the owner, if known, and whether the materials were furnished or the labor performed by contract with the owner or with a contractor or subcontractor. Lien statement forms shall require the name and address of the claimant. If the claimant is a corporation, the statement shall require the name and address of the corporation's process agent, or some other address at which service of process under the Rules of Civil Procedure may be accomplished. If no name and address is included in the statement, service of process in an action involving the real property may be accomplished by serving the person who signs the lien statement. This statement shall beKRS 376.080
subscribed and sworn to by the person claiming the lien or by someone in his behalf. The claimant shall send by regular mail a copy of the statement to the property owner at his last known address within seven (7) days of filing the statement with the county clerk. Any lien provided for in KRS 376.010 shall be dissolved if a copy of the statement is not sent to the property owner as provided in this subsection.
The Kentucky Supreme Court has held that strict adherence to the statutory provisions for perfecting a lien is required. Middletown Engineering Co. v. Main Street Realty, Inc., 839 S.W.2d 274, 277 (Ky. 1992). Forcht does not dispute that Denny complied with the statutory requirement that "[t]he claimant shall send by regular mail a copy of the statement to the property owner at his last known address within seven (7) days of filing the statement with the county clerk."
Instead, Forcht argues that the strict statutory compliance mandated by the Supreme Court is not limited to the actual terms of KRS 376.080, but also encompasses the rules governing service of process found at CR 5.0, 5.02 and 5.03.
There is no express requirement for strict compliance with the Civil Rules in the language of KRS 376.080. "When the words of the statute are clear and unambiguous and express the legislative intent, there is no room for construction or interpretation and the statute must be given its effect as written. Only if the statute is ambiguous . . . or otherwise frustrates a plain reading, do we resort to the canons or rules of construction[.]" Norton Hospitals, Inc. v. Peyton, 381 S.W.3d 286, 292 (Ky. 2012). KRS 376.080 does make reference to the Civil Rules, but only insofar as to specify that a corporate claimant should provide the name and address of an agent for service of process. If the corporate claimant should fail to list such an agent, KRS 367.080 even provides the alternative of allowing service on the person who signed the lien statement.
Furthermore, the Civil Rules themselves are limited in application by their own terms. CR 1 describes their title and scope as follows: "These Rules govern procedure and practice in all actions of a civil nature in the Court of Justice except for special statutory proceedings, in which the procedural requirements of the statute shall prevail over any inconsistent procedures set forth in the Rules." CR 1(2) (emphasis supplied). Thus, the Rules apply only to civil actions in the Court of Justice. The filing of a lien statement in the county clerk's office is not a civil action occurring in the Court of Justice.
Such a civil action did commence when Denny moved to enforce the lien by filing his complaint in the circuit court on March 1, 2011. That civil action was thereafter governed by the Civil Rules except insofar as the procedural requirements of the mechanic's and materialman's statutes dictate otherwise. KRS 376.080(1).
Forcht Bank argues that strict compliance is required with the Civil Rules in other areas of law. Forcht also cites to numerous cases which hold that strict compliance is required with the Workers' Compensation statutes, with the rules governing warning orders, and less clearly, with the statutes governing judgment liens. These attempts to analogize to other areas of law are not pertinent to resolving the issue in this case. The lien statement filed by Denny did not fail to comply with the plain terms of KRS 376.080(1). We decline to read a requirement for strict compliance with the Civil Rules, specifically those governing the certification of service, into that statutory provision, since we can find no support for doing so in the language of the statute or in the Civil Rules themselves.
The summary judgment granted by the Madison Circuit Court is therefore affirmed.
CAPERTON, JUDGE, CONCURS.
LAMBERT, JUDGE, DISSENTS AND WILL NOT FILE SEPARATE OPINION. BRIEFS FOR APPELLANT: Emmett Daniel Clifford
Corbin, Kentucky
BRIEF FOR APPELLEE: Stuart K. Olds
Richmond, Kentucky