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No. 101,968 IN THE COURT OF APPEALS OF THE STATE OF KANSAS KRIS T. TARLTON AND SARA L. TARLTON, Appellees, v. MILLER'S OF CLAFLIN, INC., AND S & H LUMBER CO., INC., Appellants, and KUSTOM FLOOR DESIGNS, et al., Defendants.

SYLLABUS BY THE COURT 1. In an appeal following a bench trial in which the evidence consisted only of documents and the district court was not required to consider matters of credibility but rather to rule on the documentary evidence before it, an appellate court is equally capable of examining the documents to determine the proper disposition of the case. Accordingly, under these circumstances, appellate review is de novo.

2. Mechanics' liens are governed by K.S.A. 60-1101 et seq. They are designed to protect unpaid suppliers of labor and materials for real estate construction projects. However, to create a lien a claimant must strictly comply with the applicable statute. One claiming a mechanic's lien has the burden of bringing one's self clearly within the provisions of the statute. 1

3. There are different lien perfection requirements for general contractors and for subcontractors. One difference is the requirement in K.S.A. 60-1103a(b) that subcontractors mail to the property owner the warning statement identified in K.S.A. 601103a(c) or obtain the owner's signed acknowledgement of that warning and file an affidavit stating that they did so.

4. Whether a contract exists is a question of fact.

5. The issue of who has the burden of proof in resolving the validity of mechanics' liens is examined. Under the facts presented, the mechanic's lien claimants had the burden to prove the validity of their liens, which turned upon the claimants proving they contracted with the owners to supply labor and materials to the project, rather than being subcontractors of the owners' general contractor.

6. When agency is at issue, the party claiming the existence of an agency relationship has the burden of establishing its existence.

Appeal from Barton District Court; MIKE KEELEY, judge. Opinion filed April 2, 2010. Affirmed.

Jeff Lee McVey, of McPherson & McVey Law Offices, Chtd., of Great Bend, for appellants.

Kenneth L. Kerns, of Great Bend, for appellees.

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Before MCANANY, P.J., GREEN and MALONE, JJ.

MCANANY, J.: Miller's of Claflin, Inc. (Miller), and S & H Lumber Co. (S&H), appeal the district court's cancellation of their claimed mechanics' liens on the home of Kris and Sara Tarlton (Tarltons) based upon the finding that Miller and S&H failed to properly perfect their liens as subcontractors.

Facts

The Tarltons engaged Chad Gisick, d/b/a Gisick Construction, to serve as the general contractor in the construction of their new home. They made periodic progress payments to Gisick for work done on the project, apparently based on representations from Gisick but without obtaining lien waivers from the various suppliers. The payment schedule left a remaining balance to be paid to Gisick upon completion of the project. Gisick died in February 2007 before completing the project. His estate was unable to satisfy the outstanding claims of his subcontractors. Miller and S&H filed mechanic's lien statements for unpaid work and materials. Neither Miller nor S&H sent the Tarltons the warning statements required of subcontractors pursuant to K.S.A. 60-1103a(b).

Following Gisick's death, the Tarltons filed an interpleader action with respect to the remaining unspent funds for the project. S&H and Miller counterclaimed for enforcement of their mechanics' liens. The Tarltons ultimately moved the court for adjudication and cancellation of the liens claimed by Miller and S&H.

The district court tried the issue based upon the documentary evidence supplied by the parties, the oral arguments of counsel, and the arguments in their briefs. The court 3

ruled after reviewing "the pleadings . . . as well as the attachments which includes exhibits and affidavits." There are no affidavits in the record relating to the central issue in this appeal: whether S&H and Miller had contracts with the Tarltons to supply labor and materials to the project. The court ruled that S&H and Miller were subcontractors of Gisick who failed to perfect their liens as subcontractors by giving the statutorily required notice to the owners. Thus, the court struck down their liens. S&H and Miller appeal.

Standard of Review

Under these circumstances, in which the district court was not required to consider matters of credibility but rather to rule on the documentary evidence before it, we are equally capable of examining the documents to determine if the liens were properly perfected. Accordingly, our review is de novo. See Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009).

Mechanics' Liens

Mechanics' liens are governed by K.S.A. 60-1101 et seq. They are designed to protect unpaid suppliers of labor and materials for real estate construction projects. See K.S.A. 60-1101. However, to create a lien a claimant must strictly comply with the applicable statute. Buchanan v. Overley, 39 Kan. App. 2d 171, 175, 178 P.3d 53 (2008). One claiming a mechanic's lien has the burden of bringing one's self clearly within the provisions of the statute. Creme de la Cr

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