APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BRIAN C. EDWARDS, JUDGE ACTION NO. 08-CI-005546
The opinion of the court was delivered by: Thompson, Judge:
RENDERED: JANUARY 25, 2013; 10:00 A.M.
BEFORE: CLAYTON, COMBS AND THOMPSON JUDGES.
PBI Bank, F/K/A Ascensia Bank, appeals from a summary judgment to the Jefferson Circuit Court in favor of Schnabel Foundation Company. The issue presented is whether the circuit court properly applied the doctrine of equitable tolling.
Schnabel provided foundation materials and work valued at $111,000 to develop Harrods Creek Overlook Condominiums. August 27, 2007, was the last day Schnabel worked on the project.
On February 22, 2008, Schnabel attempted to file by mail a timely lien statement (first lien statement) with the Jefferson County Court Clerk. The statement was signed by Paul Jolis, attorney and agent for Schnabel, was notarized, and contained a "prepared by statement" that listed Paul Jolis, his address and his telephone number. However, Jolis did not separately sign the "prepared by statement" section. The county clerk rejected the first lien statement and returned it with a handwritten note stating "date last materials were furnished and prepared by signature needed."*fn1
Harrods was owned by Premier Land Company, which obtained financing from PBI Bank through a mortgage on Harrods. When Premier defaulted, PBI Bank filed a foreclosure action on May 20, 2008, naming Schnabel as a defendant.
On May 29, 2008, Schnabel recorded a mechanics' lien statement (second lien statement). This second lien statement stated the last date of work and included a signed "prepared by statement."
Schnabel filed a counterclaim against PBI Bank, asserting its rights under the lien against PBI Bank as surety for the bond posted by Premier for release of the mechanics' lien. PBI Bank and Schnabel each moved for summary judgment on the enforceability of the lien.
PBI Bank claimed that the first lien statement was properly rejected because the preparer did not sign the "prepared by statement" as required prior to recording an instrument under KRS 382.335. It alleged that the second lien was untimely because it was filed more than six months after Schnabel last worked on the project.
Schnabel asserted that equitable tolling should allow the second lien statement to relate back to the attempted filing of the first lien statement that complied with the requirements of KRS 376.080 and was improperly returned. It pointed out ...