                                         No. 110,177

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                  GLEASON & SON SIGNS,
                                       Appellee,

                                              v.

                                      MADAN RATTAN,
                                        Appellant,

                                             and

                             KANEB INVESTMENT GROUP, LLC,
                                      Defendant.

                              SYLLABUS BY THE COURT

1.
       Where a mechanic's lien is not an available remedy, the failure to file a mechanic's
lien does not bar the subcontractor from seeking recovery under another theory, such as
quasi-contract.


2.
       A contract implied in fact is one inferred from the facts and circumstances of the
case but which is not formally or explicitly stated in words. It is the product of
agreement, although it is not expressed in words. A contract implied in law does not rest
on actual agreement. It is a legal fiction created by the courts to ensure justice or to
prevent unjust enrichment.


3.
       When the material facts are not in dispute, whether a subcontractor can recover
from an owner on a quasi-contract theory is a question of law subject to unlimited review.


                                               1
4.
       In the context of a quasi-contract claim brought by a subcontractor against a
property owner, the essential prerequisite for liability is the acceptance by the owner (the
one sought to be charged) of benefits rendered under such circumstances as reasonably
notify the owner that the one performing such services expected to be compensated
therefor by the owner. In the absence of evidence that the owner misled the subcontractor
to his or her detriment, or that the owner in some way induced a change of position in the
subcontractor to his or her detriment, or some evidence of fraud by the owner against the
subcontractor, an action for unjust enrichment does not lie against the owner by a
subcontractor.


5.
       On the facts of this case, a mechanic's lien was not an available remedy for a
subcontractor seeking damages for expenses incurred beyond the contract price, the
property owner incorrectly told the subcontractor where to perform its work (the
installation of a sign at a motel), and the subcontractor relied to its detriment on the
owner's representation. Accordingly, the subcontractor had a valid quasi-contract claim
against the property owner for the additional expenses incurred in initially installing the
sign at the wrong location.


       Appeal from Saline District Court; JEROME P. HELLMER, judge. Opinion filed October 3, 2014.
Affirmed.


       Nathanael Berg, of Hampton & Royce, L.C., of Salina, for appellant.


       No appearance for appellee.


Before LEBEN, P.J., PIERRON and STEGALL, JJ.




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       PIERRON, J.: Madan Rattan, a partner in Kaneb Investment Group, LLC (Kaneb),
individually appeals the district court's judgment against him on a claim brought by
Gleason & Son Signs (Gleason). Gleason was a subcontractor to Persona, a business
entity that contracted with Kaneb to manufacture and install a sign on Kaneb's motel
property. Rattan argues the district court erred in finding Gleason was entitled to
judgment against him for expenses related to the relocation of the sign.


       Rattan is a partner and one-third owner in Kaneb, which owns the Sleep Inn motel
in Salina, Kansas. During the construction of the motel, Kaneb contracted with Persona to
manufacture and install a sign on the motel property. Persona then subcontracted with
Gleason to install the sign. Neither written contract is included in the record on appeal.
According to bench trial testimony, the contract between Persona and Gleason contained
provisions that stated: "'Please schedule a pre-install survey to mark out the location of
the ground sign'"; and "'Invoice will not be completed without detailed completion photos
and the customer signoff return[ed] to us.'"


       Gary Gleason, president of Gleason, testified that his normal practice before
installing a sign is to talk to the project supervisor and the property owner and come to an
agreement about where the sign should be installed. He does not check site plans to verify
that the agreed sign location is actually on the owner's property. In July 2008, Gary spoke
to Kenny McDonald, the project supervisor for the construction of the motel, and to
Rattan about where to install the sign. Rattan stated he owned all of the property between
the motel and the interstate, so Gary could pick the best location. Gary and McDonald
chose a spot, at which point McDonald went back to Rattan and got Rattan's approval for
that location.


       Gleason dug a hole and was preparing to pour concrete when an employee of the
Kansas Department of Transportation (KDOT) approached and asked if Gleason was sure
that the motel owned the property where the sign was being installed. Gary and

                                               3
McDonald went back to Rattan, who stated the property was owned by a co-op and that
he was the majority owner of the co-op. Gary questioned whether the sign could be
installed on co-op property. Rattan ultimately told Gary to "'do whatever [he had] to do,'"
so Gleason filled in the first hole and moved the sign to a new location. Gleason was paid
by Persona for the work performed to install the sign at the new location. However,
Gleason did not invoice Persona for expenses related to the false start at the first location.
Instead, it directly sent a bill to Kaneb for $2,901.06 for those expenses, which Kaneb
refused to pay. Gleason did not file a mechanic's lien.


       McDonald was the job supervisor at the construction site of the motel, although he
did not work for Kaneb. McDonald testified Gary approached him about where to install
the sign. They chose a location and then went to Rattan for approval. Rattan gave his
approval, stating he owned all the property out to the fence line along the interstate.
Gleason started to install the sign at the approved location, but a KDOT employee
approached Gleason and questioned whether the location was on motel property.
McDonald and Gary went back to Rattan, who approved moving the sign to a new
location.


       Rattan also testified at the bench trial. He stated he did not have any discussion
with Gary or McDonald about where the sign should be located until after it was
discovered that Gleason had begun installing the sign on property not owned by Kaneb.
Rattan further stated he refused to pay the invoice from Gleason because he did not have
a contract with Gleason and did not ask it to do anything. Rattan contacted Persona, who
informed him it had denied payment to Gleason for the work related to the false start at
the first location.


       In October 2010, Gleason filed an action against Rattan and Kaneb, claiming it
was entitled to recover costs related to moving the sign from the first location, a location
which Rattan had personally approved in his apparent capacity as owner of the motel

                                              4
project. Rattan and Kaneb denied Rattan had approved the first location for the sign or
that he had told Gleason to "do what needed to be done" to move the sign after the
mistake was discovered. They also asserted that they had no privity of contract with
Gleason.


       The district court held a bench trial, at which the above testimony was presented.
At the close of Gleason's evidence, Rattan and Kaneb moved for judgment as a matter of
law. They argued that under Kansas law, a subcontractor has no privity of contract with a
property owner and cannot make a claim against a property owner except by filing a
mechanic's lien, which Gleason failed to do. Furthermore, if Rattan's statements could be
construed as guaranteeing the payment owed by the general contractor (Persona) to the
subcontractor (Gleason), then there was no written contract that met the statute of frauds.


       The district court denied the motion. It found that Gleason's evidence showed
Rattan, acting individually and with authority as the owner of the motel, had directed
Gleason to install the sign in a location that turned out to be improper. Gleason, relying
on Rattan's ownership representations and his authority to make such decisions, incurred
additional expenses when it had to relocate the sign from the location that Rattan had
approved. Thus, Rattan was not entitled to judgment as a matter of law.


       At the close of all evidence, Rattan and Kaneb argued that if the district court were
to construe Gleason's claim for payment as some kind of promissory estoppel argument,
then the claim was barred by the statute of limitations. They also reiterated their
argument that a subcontractor cannot make a claim against a property owner except by
filing a mechanic's lien, unless the property owner has agreed to pay. Thus even if the
facts were as Gleason suggested, Rattan and Kaneb could not be held liable for the extra
expenses related to moving the sign because they had never agreed to pay those expenses
and Gleason never filed a mechanic's lien.


                                              5
       The district court entered judgment in favor of Gleason against Rattan individually
for expenses related to the false start at the first location. The district court found as a
factual matter that Kaneb had contracted with Persona and Persona had subcontracted
with Gleason to install the sign at the motel. Rattan stated he owned all of the property
out to the interstate and personally approved the first location of the sign. Gleason then
relied on those statements when it began to install the sign at the first location. After it
was discovered that the first location was not motel property, Rattan authorized the
relocation of the sign and directed Gleason to do the necessary work. Rattan, as an owner
of the motel property who was frequently at the job site, had the ostensible authority to
make such decisions. Persona was not involved in any of these discussions, and no
attempt was made to modify either the contract between Kaneb and Persona or the
contract between Persona and Gleason as a result of the false start. Persona did not
enforce the terms of its contract with Gleason regarding the pre-install survey or
customer sign-off and made payment to Gleason pursuant to the terms of the contract.


       Based on these factual findings, the district court found that Rattan and Gleason
had entered a new contract, apart from their original owner-subcontractor relationship,
concerning the placement and relocation of the sign. As such, Rattan's defense regarding
the statute of limitations and mechanic's lien requirements were inapplicable, and
Gleason was entitled to judgment against Rattan for the work it performed related to the
false start. Rattan timely appeals.


       On appeal, Rattan argues the district court erred in granting judgment against him.
He contends that under Holiday Development Co. v. Tobin Construction Co., 219 Kan.
701, 549 P.2d 1376 (1976), in the absence of privity of contract Gleason's only remedy
against him was to file a mechanic's lien, which it failed to do. Gleason could not
circumvent the mechanic's lien statute by asserting that a new contract was created
between Gleason and Rattan based on Rattan's approval of the initial location and
relocation of the sign. And as a factual matter, no new contract was created because

                                               6
Rattan received no consideration for his alleged promise to pay. Finally, Rattan asserts
Gleason breached provisions of its contract with Persona that were intended to benefit
Kaneb, and therefore Gleason should be precluded from circumventing this breach by
bringing a claim directly against Rattan. Gleason did not file an appellate brief.


       The first question we must consider is whether, pursuant to Holiday Development
and other applicable caselaw, the only remedy available to Gleason against Rattan or
Kaneb was to file a mechanic's lien. The interpretation of caselaw precedents is a
question of law subject to unlimited review. Scott v. Hughes, 294 Kan. 403, 412, 275
P.3d 890 (2012).


       In Holiday Development, the materialman provided rock base to a subcontractor
who had contracted to build the parking lot of an office building. The subcontractor
abandoned the parking lot project and failed to pay the materialman for the rock base it
had furnished. The materialman then approached the general contractor, an agent of the
property owner, who allegedly told him, "'Don't worry about it, you will get your
money.'" 219 Kan. at 702. The general contractor ultimately hired a new subcontractor to
finish the parking lot and paid $4,500 more than its contract price with the original
subcontractor.


       Sometime later, the materialman filed a mechanic's lien against the property
owner. The property owner then filed suit against the materialman, asking for the lien to
be cancelled and seeking damages from the materialman for clouding the title to its
property. The materialman counterclaimed, asking for foreclosure of its lien and for a
personal judgment against the property owner based on theories that: (1) it was a third-
party beneficiary of the contract between the property owner (through its agent the
general contractor) and the original subcontractor; and (2) the property owner (through its
agent the general contractor) had agreed to pay for the materials. The district court found
the mechanic's lien had been timely filed and denied the property owner's motion to

                                             7
cancel the lien. It also entered personal judgment against the property owner in favor of
the materialman, although it gave no reasons for its judgment.


       On appeal, our Supreme Court first found that the mechanic's lien was not timely
filed and was therefore invalid. 219 Kan. at 704-07. It then considered the validity of the
personal judgment against the property owner, noting that "[a] subcontractor or
materialman generally may not obtain a personal judgment against the owner in the
absence of an agreement by the owner to pay. [Citations omitted.]" 219 Kan. at 707.


       The materialman sought to uphold the judgment on several different bases,
including the third-party beneficiary and agreement-to-pay theories raised before the
district court. Our Supreme Court rejected each of these theories, finding the materialman
was not a third-party beneficiary and the owner had not agreed to pay for the materials.
219 Kan. at 707-09. Finally, our Supreme Court considered whether the judgment could
be upheld on a quasi-contract theory:


               "[The materialman] further says the trial court impliedly found a quasi-contract
       between [the property owner] and [the materialman] due to [the property owner's] unjust
       enrichment. . . . The theory of quasi-contract is raised by the law on the basis of justice
       and equity regardless of the assent of the parties. [Citation omitted.] Many courts have
       considered whether a subcontractor or materialman can obtain a personal judgment
       against an owner on the basis of quasi-contract or unjust enrichment, in the absence of
       privity of contract or a direct promise to pay. The overwhelming weight of authority is in
       the negative (see Anno., Subcontractor's Recovery Against Owner, 62 ALR 3d 288, § 4,
       297-303).


               "Reasons given for the position include: (1) The mechanic's lien statute was
       enacted to afford the owner protection after a certain period of time from the claims of a
       subcontractor or materialman; if the latter did not avail himself of the statutory remedy,
       he should not be allowed to circumvent the statute and impose direct liability against the
       owner on another theory; (2) the prime contractor may already have been paid in full by


                                                     8
       the owner for the improvements furnished by the subcontractor or materialman and there
       really is no unjust enrichment; (3) generally the owner may assume suppliers dealing
       with a contractor will look to him for payment of their obligations and the subcontractor
       or materialman may not have exhausted his possible remedies against the person to
       whom he originally looked for payment; and (4) defenses which may be available to the
       contractor as against the subcontractor or supplier may not be known or available to the
       owner. These appear to be sound reasons, dependent, of course, on the particular
       circumstances. We need not labor the matter. The defaulter here was [the subcontractor].
       By reasons of the default $4,500 more was required to complete the job. There was an
       indication [the materialman] knew [7 months before it filed its lien] that [the
       subcontractor] had quit work yet it did nothing. We see no unjust enrichment in the case
       in support of a personal judgment." 219 Kan. at 708-09.


       In Haz-Mat Response, Inc. v. Certified Waste Services, Ltd., 21 Kan. App. 2d 56,
64-65, 896 P.2d 393 (1995), aff'd in part and rev'd in part on other grounds 259 Kan.
166, 910 P.2d 839 (1996), this court indicated that a subcontractor could not recover from
a property owner on a quasi-contract theory if the subcontractor had failed to avail itself
of an available statutory remedy:


       "'[A]part from unjust enrichment or from any special statutory rights or remedies, a
       subcontractor or supplier who has furnished labor or materials for an improvement has no
       right to a personal judgment against one not in privity.' (Emphasis added.) J.W.
       Thompson Co. v. Welles Products Corp., 243 Kan. 503, 511-12, 758 P.2d 738 (1988).
       Consequently, under certain circumstances, an action based on unjust enrichment might
       be actionable if there were no statutory lien available."


       The Haz-Mat Response court noted its previous finding that the subcontractor's
work in that case was not lienable under the mechanic's lien statutes, K.S.A. 60-1101 and
K.S.A. 60-1103. It then considered whether the circumstances of the case would permit
the subcontractor to bring a quasi-contract claim against the property owner. After
applying the Holiday Development factors, the court determined that a quasi-contract
claim was permissible. 21 Kan. App. 2d at 65.
                                                     9
       On petition for review, our Supreme Court acknowledged but did not specifically
address this court's conclusion that a subcontractor's failure to avail itself of an available
mechanic's lien would preclude it from bringing a quasi-contract action against a property
owner. However, our Supreme Court approved the Holiday Development factors for use
in deciding whether a subcontractor can bring a quasi-contract claim against a property
owner with whom it lacks privity. Our Supreme Court concluded that even if a quasi-
contract action were permissible under the circumstances, the undisputed facts of the case
showed that the property owner would not be liable under that theory and thus the
subcontractor was not entitled to remand on his quasi-contract claim. Haz-Mat Response,
259 Kan. at 179.


       Under the above caselaw, it is unclear whether our Supreme Court views a
subcontractor's failure to avail itself of an available mechanic's lien as an absolute bar to a
quasi-contract claim against a property owner or whether such failure is merely one
factor to be considered in determining whether a subcontractor can bring a quasi-contract
claim under the circumstances.


       In either case, a subcontractor's failure to avail itself of a mechanic's lien only
negatively impacts its quasi-contract claim against a property owner if a mechanic's lien
was actually a remedy available to the subcontractor. Since Rattan does not explicitly
challenge on appeal any of the district court's factual findings, the question of whether a
mechanic's lien was available to Gleason under K.S.A. 60-1103 is a question of law
subject to unlimited review. See Haz-Mat Response, 259 Kan. at 168-70.


       K.S.A. 60-1103 states in relevant part:


               "(a) Procedure. Any supplier, subcontractor or other person furnishing labor,
       equipment, material or supplies, used or consumed at the site of the property subject to
       the lien, under an agreement with the contractor, subcontractor or owner contractor may


                                                   10
        obtain a lien for the amount due in the same manner and to the same extent as the original
        contractor . . . ."


        There is no dispute that Gleason furnished labor, equipment, material and/or
supplies used at the site of the motel property or that Gleason did so under its agreement
with Persona, which was a contractor of Kaneb. However, the statute further states that a
lien is obtainable "for the amount due in the same manner and to the same extent as the
original contractor"—in this case, whatever amount was contracted between Kaneb and
Persona for the manufacture and installation of the sign. But it is clear from the facts of
this case that Gleason was seeking recovery for additional expenses incurred as a result of
the false start. A mechanic's lien was not an available remedy for Gleason to recover
expenses beyond the contract price, expenses that were incurred as a result of its reliance
on Rattan's approval of the first sign location and authorization to relocate the sign once
the mistake was discovered.


        Because a mechanic's lien was not an available remedy for the relief Gleason
sought, its failure to file a mechanic's lien did not bar it from seeking recovery under
another theory.


        Rattan contends the district court erred in granting judgment against him on the
theory that a "new" contract existed between himself and Gleason regarding the first
placement and subsequent relocation of the sign. He argues there was no evidence he
received consideration for the formation of such contract and thus no contract existed.
But it appears the district court found a contract implied in law, not a contract implied in
fact.


                 "A contract implied in fact is one 'inferred from the facts and circumstances of
        the case' but which is 'not formally or explicitly stated in words.' [Citation omitted.] It is
        the product of agreement, although it is not expressed in words. [Citations omitted.] A
        contract implied in law does not rest on actual agreement. It is a legal fiction created by

                                                      11
       the courts to ensure justice or to prevent unjust enrichment. [Citation omitted.]" Smith v.
       Amoco Production Company, 272 Kan. 58, 70, 31 P.3d 255 (2001).


       Thus, Rattan's argument that the requisites of contract formation were not met in
this case is without merit. The only issue before us is whether the district court correctly
concluded that Gleason was entitled to judgment against Rattan under an equitable,
quasi-contract theory.


       When the material facts are not in dispute, whether a subcontractor can recover
from an owner on a quasi-contract theory is a question of law subject to unlimited review.
See Haz-Mat Response, 259 Kan. at 176.


       In the context of a quasi-contract claim brought by a subcontractor against a
property owner, the essential prerequisite for liability is


       "the acceptance by the owner (the one sought to be charged) of benefits rendered under
       such circumstances as reasonably notify the owner that the one performing such services
       expected to be compensated therefor by the owner. In the absence of evidence that the
       owner misled the subcontractor to his or her detriment, or that the owner in some way
       induced a change of position in the subcontractor to his or her detriment, or some
       evidence of fraud by the owner against the subcontractor, an action for unjust enrichment
       does not lie against the owner by a subcontractor." 259 Kan. at 178.


See also Minnesota Avenue, Inc. v. Automatic Packagers, Inc., 211 Kan. 461, 464-65,
507 P.2d 268 (1973) ("'Quasi[-]contractual obligations are generally based on unjust
enrichment or benefit, but this is not universally true. There are many cases where the
law enforces in a contractual action a duty to restore the plaintiff to former status—not
merely to surrender the benefit which the defendant has received.'"); The Haile Group v.
City of Lenexa, No. 102,319, 2010 WL 4977221, at *9 (Kan. App. 2010) (unpublished
opinion) (stating that the terms "quasi-contract," "unjust enrichment," and "quantum

                                                   12
meruit" are used interchangeably in Kansas and a claim based on any such theory is
typically considered equitable in nature), rev. denied 292 Kan. 969 (2011).


       The undisputed facts show Rattan personally approved the first location of the sign
and then authorized Gleason to relocate the sign when it was discovered the first location
was not on motel property. Rattan was benefitted by this work, as the sign was ultimately
placed in a proper location and presumably enhanced the visibility of the motel. Although
Rattan did not benefit in the sense that he was placed in a better position than he would
have been if the sign were placed correctly the first time, this type of excess benefit is not
a necessary element of a quasi-contract claim. See Minnesota Avenue, 211 Kan. at 464-
65. Furthermore, Rattan could reasonably expect under these circumstances that Gleason
would seek compensation from him for this work, at least to the extent that additional
expenses were incurred as a result of Rattan's mistake regarding the first location of the
sign. Although there is no evidence that Rattan intentionally misled or perpetrated fraud
on Gleason, it is undisputed that Gleason relied to its detriment on Rattan's incorrect
information and Gleason would not have begun installing the sign at the first location but
for this incorrect information.


       Rattan argues that Gleason breached its contract with Persona. Since the
provisions that Gleason allegedly breached—i.e., the requirements for a pre-install survey
and customer sign-off after the sign was installed—were meant to benefit Kaneb, it
would be inequitable to allow Gleason to bring a separate claim against Kaneb or Rattan.
In other words, Rattan appears to contend it was Gleason's breach of contract with
Persona, not his own statements regarding where the sign could be located, that caused
the additional expenses to be incurred. But the district court did not explicitly find that
Gleason had breached its contract with Persona, only that Persona apparently did not
enforce all the terms of the contract. Even assuming for the sake of argument that
Gleason breached its contract, it is clear from the undisputed facts that the predominant
cause for the improper placement of the sign was Rattan's statements regarding his

                                              13
ownership of the land and his approval of the first location, not Gleason's purported
failure to conduct a pre-install survey or to submit a customer sign-off to Persona after
the sign was installed.


       The final question for us to consider is whether recovery under this theory should
be permitted under the circumstances of the case. As discussed above, a mechanic's lien
was not an available remedy to Gleason, and thus the first Holiday Development factor is
not at issue. Under the second factor, Rattan was unjustly enriched to the extent that he
received the full benefit of a properly-placed sign without paying for the additional
expenses incurred as a result of his own mistake regarding the first location. Under the
third factor, Rattan has not suggested any remedies that Gleason could or should have
pursued against Persona (the general contractor). According to Rattan's testimony,
Gleason did demand payment from Persona for the additional expenses and was denied.
Without a copy of the contract between Persona and Gleason included in the record on
appeal, it is impossible for us to determine whether Gleason would have a viable breach
of contract claim against Persona. See Friedman v. Kansas State Bd. of Healing Arts, 296
Kan. 636, 644, 294 P.3d 287 (2013) (stating that the burden is on the party making a
claim to designate a record sufficient to support that claim). For the same reason, the
fourth factor is not at issue.


       For the above reasons, Rattan may be held liable to Gleason under a quasi-contract
theory, and the balance of the equities supports the enforcement of liability under the
circumstances of the case.


       Affirmed.




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