Opinion
No. 88-CV-0311.
Decided December 13, 1989.
John Mengle, for plaintiff.
Robert H. Lyons, for defendants.
Plaintiff, Blanchester Lumber Supply Inc., seeks to recover amounts due and owing as a result of materials supplied by plaintiff during construction of a residence for defendants-homeowners, and also seeks to foreclose upon its mechanic's lien. Defendants offer a number of theories as to why the plaintiff's lien should be declared invalid, the most notable argument being that plaintiff is not entitled to a lien since it failed to plead and prove the existence of a contract. Defendants also submit that the lien is invalid in that plaintiff failed to allege notice to the defendants, plaintiff failed to prove service of affidavit, plaintiff failed to show that it filed an affidavit within sixty days of the date of the last delivery, and plaintiff failed to provide a sworn statement. In the event that plaintiff is successful, defendants also submit that plaintiff is not entitled to any prejudgment interest.
Defendants cite the cases of Seybold v. Pitz (1955), 101 Ohio App. 316, 1 O.O.2d 272, 136 N.E.2d 666, and Baumann Brothers, Inc. v. Kramer Associates, Inc. (Dec. 31, 1980), Franklin App. No. 80AP-234, unreported, inter alia, for the proposition that plaintiff's lien is invalid due to failure to plead that materials were furnished by virtue of a contract between the contractor and the defendants as property owners. The court rejects these cases as controlling, since the last reported case on the issue, Seybold, was decided in 1955 while code pleading was still in effect. The court is of the opinion that under the notice pleading system now in effect, the plaintiff's petition is sufficient. While Baumann, supra, is an interesting case which seems to affirm the rule set out in Seybold, the court is under no obligation to accept this case as authority, and even if this case were mandatory authority, there is a significant difference between Baumann and the case at hand. In Baumann, even if the plaintiff had pled the existence of a contract, it still would have been at a loss to prove any contract. In this case, however, there are facts which support the existence of a contract between the contractor and defendants.
Defendants will not be heard to complain that plaintiff failed to allege the existence of a contract between Charles White, the contractor, and the defendants as property owners when defendant Joel McGregor has already admitted to the existence of a contract with White. Joel McGregor, in an affidavit prepared on December 20, 1988, stated that he and his wife entered into a contract with White on May 13, 1987, for the construction of a residence to be located at 5687 Chestnutview Lane, Milford, Ohio, and that said contract was in effect until December 1, 1987. Joel McGregor's affidavit was incorporated into defendants' motion for summary judgment and supporting memorandum which was filed on December 27, 1988. Affidavits may serve as admissions, National Steamship Co. v. Tugman (1892), 143 U.S. 28, 12 S.Ct. 361, 36 L.Ed. 63, and when contained within the pleadings are considered judicial admissions, which in effect withdraw a fact from issue and dispense wholly with the need for proof of fact, Gerrick v. Gorsuch (1961), 172 Ohio St. 417, 17 O.O.2d 353, 178 N.E.2d 40. While plaintiff could have amended its complaint during the course of proceedings in order to add an allegation concerning the existence of a contractual relationship, any effort to do so would have appeared unnecessary, in light of the fact that defendants had already admitted the existence of a contractual relationship with contractor Charles White.
The court notes that there has been a tendency to construe the conditions in Ohio mechanic's lien law strictly when applied to limit the rights of lienholders — "the rule of strict construction is to be applied to protect the right of the lienholder rather than to limit it." Gebhart v. United States (1961), 172 Ohio St. 200, 215, 15 O.O.2d 360, 369, 174 N.E.2d 615, 624. Ohio mechanic's lien law is remedial in nature and is therefore to be construed liberally "`in order to carry out the purpose of the Legislature in their enactment.'" Id. at 214, 15 O.O.2d at 368, 174 N.E.2d at 624 (quoting from the syllabus of Bullock v. Horn, 44 Ohio St. 420, 7 N.E. 737). The purpose of the legislature is, "`with respect to the claims of laborers and materialmen to be compensated for their work and material out of the structure to which their work and material have contributed * * *.'" Id. (quoting from Vernon v. Harper, 79 Ohio St. 181, 86 N.E. 882). Hence, it was proclaimed in 1913 that "substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens hereinbefore provided for and to give jurisdiction to the court to enforce the same." 103 Ohio Laws 369, 378, Section 22 of H.B. No. 290 (enacted after Section 33, Article II, Ohio Constitution was adopted).
Section 33 provides as follows: "Laws may be passed to secure to mechanics, artisans, laborers, sub-contractors and materialmen, their just dues by direct lien upon the property, upon which they have bestowed labor or for which they have furnished material. No other provision of the constitution shall impair or limit this power."
Considering the liberal nature of the Civil Rules in regard to pleading and the liberal construction of remedial legislation as discussed in Gebhart, supra, the court holds that plaintiff's lien was not invalidated by plaintiff's failure to specifically allege the existence of an underlying contract, especially when, as here, at least one of the defendants has admitted that a contractual relationship existed.
There is no need for a materialman to prove each and every term of a contract between a general contractor and the property owner. In Gebhart v. United States, supra, the Ohio Supreme Court found that a contract existed, based upon evidence in the form of delivery tickets which "indicate[d] a steady progress such as usually appears in the sequence of materials ordered for the construction of houses." Id. at 206, 15 O.O.2d at 364, 174 N.E.2d at 620. Delivery tickets in the instant case, as in Gebhart, were written up separately, in detail, and identified by means of a job name or address. The court in Gebhart did not require all terms of the contract to be set forth; therefore, this court is of the opinion that proof of all essential terms of a contract is unnecessary. It is enough that defendant-homeowner Joel McGregor states in his affidavit which is in evidence that a contract was entered into on May 13, 1987, and that the contractor, Charles White, was taken off the job on December 1, 1987. This establishes a time period during which the contract was in operation, and sets forth also a time period during which the contractor had authority to purchase the building materials on behalf of the defendants. The plaintiff has shown sufficient evidence to establish the existence of a contract between the contractor and defendants by virtue of which materials were supplied by the plaintiff for the construction of a residence. Defendant contends that plaintiff's lien is invalid based upon the fact that plaintiff failed to show that the materials supplied on November 4, 1987 actually went into the construction of the residence; generally, however, all the materialman has to show is delivery in and of itself, not that the materials were actually used in the building under construction. Quality Heating Supply Co. v. Buckeye Loan Building Co. (1957), 105 Ohio App. 369, 6 O.O.2d 149, 148 N.E.2d 88.
The court rejects defendants' contentions as to untimely filing of affidavit, because it finds that delivery was made pursuant to contract on November 4, 1987, and that the affidavit was therefore filed within the appropriate time period.
Contrary to defendants' argument, the plaintiff's lien is not rendered invalid by plaintiff's failure to plead notice to the defendants, notwithstanding the case of Phillips Cement Stone Co. v. Robinson (1910), 9 Ohio N.P.(N.S.) 575, 21 Ohio Dec. 748. Reliance upon Phillips is ill-founded in light of the time during which it was decided and in light of today's more liberal notice pleading and the remedial nature of the mechanic's lien laws, discussed supra. The court rejects this argument for the same reasons that it rejects the argument concerning the pleading of the existence of an underlying contract.
Under R.C. 1311.07, a materialman filing an affidavit in accordance with R.C. 1311.06 must serve a copy of said affidavit upon the owner of the premises involved. Defendants argue that the plaintiff is not entitled to a lien because plaintiff has not shown that proper service of the affidavit was made, relying on the fact that the affidavit was sent by certified mail and that the return receipt was not signed by either of the defendants, but by the defendants' son.
R.C. 1311.19 provides in pertinent part as follows:
"Except as otherwise provided in section 1311.11 of the Revised Code, any notice, affidavit, or copy required to be served under sections 1311.01 to 1311.68, inclusive, of the Revised Code * * * may be served by registered letter addressed to such person, and proof that such notice, affidavit, or copy was mailed by registered letter to the last known place of residence of such person, is conclusive proof of service."
Plaintiff has shown that it sent an affidavit to the defendants via certified mail to their last known home address, and that the affidavit did in fact reach the defendants through their son's acceptance of the certified mail. Service of affidavit by certified mail in this case was sufficient. A lienor's substantial compliance with the provisions for service of affidavit will be sufficient. A.C. Scagnetti Sons, Inc. v. Pleister (1961), 172 Ohio St. 260, 15 O.O.2d 444, 175 N.E.2d 81; Balco Corp. v. D.H. Overmyer Co. (1975), 43 Ohio App.2d 157, 72 O.O.2d 364, 334 N.E.2d 484; Love Lumber Co. v. Reaser (1964), 4 Ohio App.2d 354, 33 O.O.2d 404, 212 N.E.2d 655. The signature of the defendants themselves was not required, since Civ.R. 4.1 allows service by certified mail to be evidenced by return receipt signed by any person. Therefore, defendants' contentions as to proof of service are not well taken.
It is argued that the plaintiff has not shown that the last delivery to the defendants occurred within the mandatory sixty-day period (R.C. 1311.06) prior to the filing of the affidavit. Evidence indicates, however, that the last delivery was made on November 4, 1987, and that plaintiff filed its mechanic's lien on December 30, 1987, thereby complying with the sixty-day requirement. By Joel McGregor's own admission, a contract existed between Charles White and the McGregors until December 1, 1987, such that White still had the authority to buy materials for the construction of defendant's house on November 4, 1987.
Defendants had the burden of proving their defense of noncompliance with R.C. 1311.06, because a defendant is bound to establish evidence to support his affirmative defenses when the essential averments of plaintiff's complaint have been admitted. In re Single County Ditch (1952), 157 Ohio St. 446, 47 O.O. 330, 105 N.E.2d 873; Davis v. Gray (1867), 17 Ohio St. 330; Price Bros. Co. v. P.B. Harris Realty Co. (App. 1953), 70 Ohio Law Abs. 543, 129 N.E.2d 204. The defendants have failed to establish support for their contention that the affidavit was not filed within sixty days; thus, the defense herein discussed must fail.
The court remains unswayed by defendants' requests that the court follow the unreported case of Clifton Concrete, Inc. v. Tibaldi (Mar. 17, 1988), Cuyahoga App. No. 52600, unreported, 1988 WL 32106, and holds firm to its prior decision that any failure by a materialman to provide sworn statements will not invalidate his lien, based upon the holding in Reliance Universal, Inc. v. Deluth Constr. Co. (1981), 67 Ohio St.2d 56, 21 O.O.3d 36, 425 N.E.2d 404.
Defendants contend that in no event are they liable to plaintiff for prejudgment interest since there is no privity of contract between plaintiff and defendants. Ordinarily, prejudgment interest is not available to one claiming under a mechanic's lien, but in the event that there is privity of contract between the lienor and the property owner, interest will be allowed. Capital City Lumber Co. v. Ellerbrock (1966), 7 Ohio App.2d 202, 36 O.O.2d 339, 220 N.E.2d 141; Shaker Savings Assn. v. Greenwood Village, Inc. (1982), 7 Ohio App.3d 141, 7 OBR 184, 454 N.E.2d 984. Finding that no privity of contract exists between plaintiff and defendants, defendants' contentions as to prejudgment interest are well taken.
The court in light of the foregoing concludes that the lien sought to be foreclosed by the plaintiff is valid, that plaintiff is entitled to foreclosure, but is not entitled to prejudgment interest.
Judgment accordingly.