Opinion

M. J. Kelly Co. v. Haendiges

  • 58 Ohio St. 2d 505
  • 12 Ohio Op. 3d 409
  • 391 N.E.2d 723
  • 1979 Ohio LEXIS 465
Court
Ohio Supreme Court
Filed
Jun 27, 1979
Status
Published
Author
Brown
On the bench
Brown, Celebrezze, Herbert, Holmes, Locher, Sweeney
Cited by
4 cases

The opinion

Paul W. Brown, J.,

dissenting. The sworn statement of a subcontractor is required under R. C. 1311.04 only for inclusion with the contractor’s sworn statement to the owner. Under that statute, if the conractor does not furnish his statement to the owner, the subcontractor need *510 not furnish such a statement to the contractor.

The statute is designed to protect the owner, if and only if he avails himself of that protection by obtaining an affidavit from his contractor. If he refuses or fails to require the affidavit, he has waived his protection under the statute and no action or inaction by the subcontractor can. or does affect that'waiver. Finally, if the owner has not required the affidavit, the furnishing of one by the subcontractor to the contractor will in no way protect the owner, because he has’no greater notice than before. The statute exists to protect the owner,-not the contractor. Because the result of- decision of the Court of Appeals is to provide only notice to the contractor, it has no place in the statutory scheme-nnd, therefore, is wrong. The decision is totally destructive of existing mechanic’s lien laws and will require legislative reversal.

Lochee and Holmes, JJ., concur in the foregoing dissenting opinion. > ;

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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