2018 Ohio 3735
Oh. Ct. App. 7th Dist. Carroll2018Background
- Kirk Excavating (Appellant) performed oil/gas site work as a subcontractor and claimed unpaid invoices; it attempted to perfect a mechanic’s lien in Carroll County.
- Appellant delivered an affidavit to the Carroll County Recorder in July 2014; the recorder returned it, stating the legal description was defective (missing township/section/range info).
- Appellant later recorded a corrected affidavit in December 2014, but that was beyond the 120-day statutory deadline and therefore untimely.
- Appellant sued to foreclose the mechanic’s lien; the trial court dismissed the foreclosure count (and Eric Petroleum separately) for failure to state a claim; Appellant appealed only the dismissal as to the Appellees.
- The core legal question: does “file for record” in R.C. 1311.06 mean mere delivery/presentation to the recorder (i.e., filing upon delivery), or does it require acceptance/recording by the recorder? The recorder had statutory discretion to reject instruments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “file for record” under R.C. 1311.06 | Delivery to the recorder within 120 days constituted filing (so lien was perfected) | Filing requires more than delivery; recorder may refuse noncompliant affidavits | “File for record” means more than mere delivery; delivery alone does not perfect the lien |
| Effect of recorder’s rejection of the affidavit | Rejection did not defeat filing if delivery occurred within the statutory period | Recorder properly rejected the affidavit for inaccurate legal description; claimant failed to timely correct | Recorder may refuse to accept instruments; rejection was authorized and fatal to perfection |
| Sufficiency of the affidavit’s legal description | The affidavit was effectively sufficient; issues could be remedied on remand | The initial affidavit lacked the required legal description (no township/section/range), just a tract/tax parcel | Incorrect/insufficient legal description can vitiate a mechanic’s lien; here rejection was justified |
| Procedural alternatives after rejection | Immediate lawsuit should not have been necessary; dismissal was premature | Claimant could have sought court order under R.C. 317.13(C) to compel recording or could have timely corrected the affidavit | Appellant did not pursue statutory remedy (317.13(C)) or timely correction; dismissal under Civ.R. 12(B)(6) was proper |
Key Cases Cited
- State ex rel. Preston v. Shaver, 172 Ohio St. 111 (1961) (recorder may exercise discretion and need not accept every instrument)
- State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992) (standard for Civ.R. 12(B)(6) review and pleading sufficiency)
- Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988) (complaint construed in plaintiff’s favor on motion to dismiss)
- Internatl. Refractory Serv. Corp. v. Woodmen of the World Life Ins. Soc., 68 Ohio App.3d 513 (1990) (incorrect property description generally vitiates a mechanic’s lien)
- C.C. Constance & Sons v. Lay, 122 Ohio St. 468 (1930) (if affidavit lacks statutorily required information, lien is not legally established)