Summary Judgment, liens, unjust enrichment: BROCK V. PILOT CORP. (COA 9/7/2007)

BROCK V. PILOT CORP.
CIVIL PROCEDURE: SUMMARY JUDGMENT AND GENUINE ISSUE OF MATERIAL FACT & 10 DAYS TO RESPOND
PROPERTY: MECHANICS LIEN AND PRE-LIEN NOTICE
TORTS:  UNJUST ENRICHMENT
2006-CA-001498
PUBLISHED: AFFIRMING
PANEL:  THOMPSON, PRESIDING; VANMETER, PAISLEY CONCUR
COUNTY: BELL
DATE RENDERED: 09/07/2007

Plaintiff was a third-in-line subcontractor hired to perform some hauling of excavated material from a property upon which the Defendant was building a Pilot Food Mart. The party who subcontracted the Plaintiff never paid him for his work, and he brought the instant action against the Defendant. The trial court granted Defendant’s Motion for Summary Judgment, which was styled "Memorandum in Opposition to [Plaintiff’s] MSJ and In Support of [Defendant’s] MSJ."

The CA held that the requirement that a party be given ten days to respond to an MSJ is mandatory "unless waived," according to Storer Communications v. Oldham County, 850 S.W.2d 340, 342 (Ky., 1993) and CR 56. The CA noted that the Plaintiff failed to cite to any place in the record where he objected to the trial court’s consideration of the Defendant’s MSJ, and the CA deemed his objection waived.

The CA also held that in order for the Plaintiff to recover under the theory of unjust enrichment, he had to show not only that the Defendant benefited from his efforts, but also that it did not pay any person for the work he performed. The evidence proved that the Defendant paid the first-in-line subcontractor for the Plaintiff’s work and that the second-in-line subcontractor failed to pay the Plaintiff. The unjust enrichment claim was therefore deemed precluded.

The Plaintiff argued that one of the Defendant’s agents assured him the Defendant would pay for his work, and hence there was no need to provide the requisite notice under KRS 376.010(3) to the Defendant within 120 days of his intent to file a mechanic’s lien (which he did not provide, by the by). The CA noted that a general contractor is not deemed an agent of a landowner as a matter of law, Middletown Engineering Co. v. Main Street Realty Co., Inc., 839 S.W.2d 274 (Ky., 1974). It examined the factors in Sam Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 757 (Ky., 1985), as to whether one acting for another is a servant or an independent contractor, and held that the Plaintiff failed to establish that the original subcontractor was the Defendant’s agent. In that there was not direct contact between the Plaintiff and the Defendant or any of its agents, the CA held his prelien notice was untimely.

Cherry Henault

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