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VIANA ZALESK,
MENDY 28 PH 2 og
SUMMIT ¢
ELLY Ty
CLERK OF Counts
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
ROBERT TAUB, et al., ) CASE NO. CV 2006 04 2563
)
Plaintiffs, ) JUDGE BURNHAM UNRUH
)
vs. )
)
ALEX TZAVARAS, et al., ) JUDGMENT ENTRY
)
Defendants. )
)
This matter comes before the Court on Plaintiffs’ Motion for Summary Judgment. The
Court has considered the Plaintiffs’ Motion, Defendant Alexander Tzavaras dba Alexander
Construction’s (hereinafter “Defendant Alexander”) Supplemental Brief in Opposition to
Plaintiffs’ Motion for Summary Judgment, Civil Rule 56 and other applicable law. Upon due
consideration and for good cause shown, the Court GRANTS Plaintiffs’ Motion for Summary
Judgment.
The Final Pretrial scheduled for December 6, 2006 at 8:45 a.m. is CONFIRMED.
Please note this date on your calendars. FAILURE TO APPEAR FOR ANY SCHEDULED
PRETRIAL, HEARING, STATUS CONFERENCE OR TRIAL MAY RESULT IN
SANCTIONS.COPY
STATEMENT OF CASE AND LAW
This case involves the construction of residential properties in Summit County, Ohio.
Plaintiffs were the owners of the properties. In April and May of 2004, Plaintiffs entered into
agreements with Defendant Alexander to perform improvements to the Plaintiffs’ properties or
to act as general contractor on the construction of the properties. Plaintiffs allege that Defendant
| Alexander failed to pay subcontractors for work performed or otherwise breached the parties’
agreements. Plaintiffs terminated Defendant Alexander from working on the properties at the
end of October 2004. Plaintiffs claim that Defendant Alexander was not owed any money for
the work he had done on the Properties at the time of the termination.
On January 6, 2005, Defendant Alexander filed three (3) Affidavits for Mechanics’ Lien
with the Summit County Fiscal Officer against three properties owned by Plaintiffs: 2963
Cliffside Drive, Copley, Ohio 44321, 3661 Torrey Pines Drive, Fairlawn, Ohio 44333, and 3396
Green Drive, Bath, Ohio 44333. Plaintiffs claim that they never received notice of the filing of
the Affidavits for Mechanics’ Lien and were not served with a copy of these Affidavits within
thirty days after their filing on January 6, 2006.
On April 19, 2006, Plaintiffs filed a Complaint stating claims for breach of contract,
slander of title and declaratory judgment against Defendant Alexander and Defendant Theodore
E. Blackburn dba Blackbum Masonry (hereinafter “Defendant Blackburn”). Defendant
Blackburn was a sub-contractor employed by Defendant Alexander to do masonry work on
Plaintiff's Property located at 3661 Torrey Pines Drive in Fairlawn, Ohio. Defendant Blackbur;
filed an Affidavit of Mechanics’ Lien on said property for masonry work for which Defendant)
i
|
|
Blackburn claims that he was never paid.COPY |
On June 16, 2006, Defendant Blackburn filed an Answer, Counterclaim and Crossclaim.
Defendant Blackburn has filed a claim for unjust enrichment against Plaintiffs and has requested
that the Court foreclose the Mechanics’ Lien that Defendant Blackburn filed on Plaintiffs’
Property at 3661 Torrey Pines. Defendant Blackburn has filed a Crossclaim against Defendant
Alexander claiming that he is owed $5,400 from Defendant Alexander for the masonry work
performed on Plaintiff's property.
On August 1, 2006, Defendant Alexander filed an Answer and Counterclaim. Defendant
Alexander claims that he is owed money from Plaintiffs for work he performed on their
Properties. Defendant Alexander has requested damages in excess of $25,000 on his
Counterclaim.
On September 11, 2006, Plaintiffs filed a Motion for Summary Judgment on Counts
Two, Four, Five and Six of their Complaint.' Count Two relates to the Affidavit of Mechanics’
Lien filed by Defendant Alexander against Plaintiffs’ property at 3661 Torrey Pines, Fairlawn,
Ohio. Count Four relates to the Affidavit of Mechanics’ Lien filed by Defendant Alexander
against Plaintiffs’ property at 3396 Green Drive, Bath, Ohio 44333. Count five relates to the
Affidavit of Mechanics’ Lien filed by Defendant Alexander against Plaintiffs’ property at 2963
Cliffside Drive, Copley, Ohio 44331. Count Six requests that the Court declare that the
Affidavits of Mechanics’ Lien on all three properties are invalid.
In their Motion for Summary Judgment, Plaintiffs claim that the Affidavits of Mechanics’
Lien filed by Defendant Alexander against Plaintiffs’ properties are invalid and should be
canceled of record. Plaintiffs assert three different grounds for invalidating Defendant
' Plaintiffs have not moved for summary judgment on Count One of their Complaint, which is a breach of contract
claim against Defendant Alexander. Plaintiffs have not moved for summary judgment on Count Three of their
Complaint, which is a claim regarding the Affidavit of Mechanics’ Lien filed by Defendant Blackburn. Plaintiffs
have not moved for summary judgment on either of the counterclaims filed by the Defendants or the Crossclaim
filed by Defendant Blackburn, These claims will remain pending before this Court.COPY”
Alexander’s liens. Plaintiffs claim that the liens were not filed in a timely manner. Secondly,
Plaintiffs claim that the liens were not properly served. Finally, Plaintiffs claim that Defendant
Alexander is not owed any money on any of the underlying properties against which the
Mechanics’ Liens were filed. With regard to the property located at 3396 Green Drive, Bath,
Ohio 44333, Plaintiffs claim that Defendant did not even provide any labor or materials on this
property.
On October 10, 2006, Defendant Alexander filed a Brief in Opposition to and Motion for
Delay in Considering Plaintiff's Motion for Summary Judgment. In this Brief, Defendant
Alexander contends that the Liens were timely filed and that he provided labor and/or materials
on each of the three properties involved in Plaintiff's Complaint. Defendant Alexander
submitted an Affidavit supporting his factual allegations. With regard to Plaintiffs’ argument
that the Affidavits of Mechanics’ Lien were not properly served, Defendant Alexander requested
additional time to conduct discovery. Defendant Alexander conceded that the Affidavits were
not served pursuant to the service requirements of R.C. § 1311.19(A). Defendant Alexander
claims that he sent the Affidavits to Plaintiffs through regular mail deliver. Such delivery would
not meet the service requirements of R.C. § 1311.19(A), and the Court could declare the liens
invalid. However, Defendant Alexander argues that there are exceptions to the service
requirements contained in R.C. § 1311.19. Specifically, Defendant Alexander argues that if he
could prove, by a preponderance of the evidence, that the Plaintiffs actually received the
Affidavits, the service requirements of § 1311.19(A) would not invalidate Defendant
Alexander’s liens.
The Court granted Defendant Alexander three additional weeks to conduct the requested
discovery to attempt to prove that the Plaintiffs had received the Affidavits of Mechanics’ LienCOPY |
filed by Defendant Alexander. On November 20, 2006, Defendant Alexander filed a
Supplemental Brief in Opposition to Plaintiffs’ Motion for Summary Judgment. In this Brief,
Defendant Alexander again concedes that the Affidavits were not served in accordance with
Ohio Revised Code § 1311.19(A). Defendant Alexander also acknowledges that the Plaintiffs
did not admit receiving the Affidavits through regular mail. Thus, Defendant Alexander seems
to be acknowledging that the Affidavits of Mechanics’ Lien are invalid. However, Defendant
Alexander argues that issues of fact remain to be tried in this case.
The Court will consider the parties’ arguments in greater detail below.
I. Standard of Review
In reviewing a motion for summary judgment, the Court must consider the following: (1)
whether there is no genuine issue of material fact to be litigated; (2) whether in viewing the
evidence in a light most favorable to the non-moving party it appears that reasonable minds
could come to but one conclusion; and, (3) whether the moving party is entitled to judgment as a
matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280; Wing v. Anchor Media, L.T.D.
(1991), 59 Ohio St.3d 108. If the Court finds that the non-moving party fails to make a sufficient
showing on an essential element of the case with respect to which it has the burden of proof,
summary judgment is appropriate. Celotex Corp. v. Catrett (1986), 477 U.S. 317; Schremp v.
Haugh’s Products (Nov. 19 1997), Lorain App. No. CA 006655, unreported.
Rule 56(C) of the Ohio Rules of Civil Procedure states the following, in part, in regards
to summary judgment motions:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of the evidence in the pending case, and written stipulations of
fact, if any timely filed in the action, show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a
matter of law.COPY
II. Analysis
After considering the Plaintiffs’ Motion for Summary Judgment and Defendant
Alexander’s Brief in Opposition and Supplemental Brief, the Court finds that the Affidavits of
Mechanic Lien filed by Defendant Alexander are invalid.
R.C. § 1311.07 provides as follows:
Any person filing an affidavit pursuant to section 1311.06 of the Revised
Code shall serve a copy of the affidavit on the owner, part owner, or lessee
of the improved property or his designee, within thirty days after filing the
affidavit. If the affidavit cannot be served in accordance with section
1311.19 of the Revised Code, then the person shall serve the copy by
posting it in some conspicuous place on the premises of the improved
property within ten days after the expiration of the thirty days.
R.C. § 1311.19 provides as follows:
(A) Except as otherwise provided in section 1311.11 of the Revised Code
and division (C) of this section, any notice, affidavit, or other document
required to be served under this chapter shall be served by one of the
following means:
(1) The sheriff of the county in which the person to be served
resides or maintains the person's principal place of business, in one
or more of the methods provided in the Ohio Rules of Civil
Procedure. The sheriff may charge reasonable fees for such
service.
(2) Certified or registered mail, overnight delivery service, hand
delivery, or any other method which includes a written evidence of
receipt;
(3) The means provided in division (H) of section 1701.07 of the
Revised Code, if the person is a corporation.
(B) For purposes of this chapter, service is complete upon receipt by the
party being served except as provided in division (H) of section 1701.07
of the Revised Code and except, for the purposes of sections 1311.05 and
1311.261 [1311.26.1] of the Revised Code, if service of a notice of
furnishing is made by certified mail, service is complete on the date of the
mailing. If the service is attempted upon an owner, part owner, or lessee,COPY”
or designee, at the address contained in the notice of commencement
required by section 1311.04 of the Revised Code, and if the notice,
affidavit, or other document is returned unclaimed or refused, service is
complete when first attempted.
(C) A notice, affidavit, or other document required to be served under this
chapter is considered served, whether or not the notice, affidavit, or other
document was served by the means described in divisions (A)(1) to (3) of
this section, and service is complete on the date the notice, affidavit, or
other document is received, if either of the following is true regarding the
notice, affidavit, or other document:
(1) The person served acknowledges receipt of the notice,
affidavit, or other document.
(2) It can be proved by a preponderance of evidence that the
person being served actually received the notice, affidavit, or other
document.
A notice, affidavit, or other document to which this division applies is
presumed to have been received three days after the date of the mailing of
the notice, affidavit, or other document, unless a_ written
acknowledgement, receipt, or other evidence provides proof to the
contrary.
Defendant Alexander has conceded that the Affidavits of Mechanics’ Lien were not served
pursuant to R.C. § 1311.19 (A). Defendant Alexander has also failed to introduce evidence that
the Plaintiffs actually received the Affidavits.
In the case of Conveyor Engineering Co., Inc. v. Foreman Industries, Inc., (2"™ Dist.
1984) 1984 Ohio App. LEXIS 9132, the court held that, “the provisions of R.C. 1311.06 and!
1311.07 are mandatory and compliance with both is necessary to create a valid mechanics’ lien.”’
The Court finds that Defendant Alexander failed to comply with R.C. § 1311.07. Defendant!
Alexander did not properly serve the Plaintiffs with the Affidavits of Mechanics’ Lien pursuant
to R.C. § 1311.19. Plaintiffs are entitled to summary judgment on their claims related to these
Affidavits for Mechanics’ Lien. It is unnecessary for the Court to consider DefendantCOPY’
Alexander’s remaining arguments related to the filing of the Affidavits for Mechanics’ Lien
because the Court’s determination regarding the service of these Affidavits renders them invalid.
WHEREFORE, for the reasons stated above, the Court GRANTS Plaintiff's Motion for
Summary Judgment on Counts Two, Four, Five and Six of Plaintiff's Complaint. The Court
hereby declares that the three Affidavits for Mechanics’ Lien filed by Defendant Alexander
on January 6, 2005 are invalid. These Affidavits for Mechanics’ Lien shall be removed
from the records of the Summit County Fiscal Office.
As noted above, Plaintiffs have not moved for summary judgment on Count One of their
Complaint, which is a breach of contract claim against Defendant Alexander. Plaintiffs have not
moved for summary judgment on Count Three of their Complaint, which is a claim regarding the
Affidavit of Mechanics’ Lien filed by Defendant Blackburn. Plaintiffs have not moved for
summary judgment on either of the counterclaims filed by the Defendants or the Crossclaim filed
by Defendant Blackburn. All of these claims will remain pending before this Court.
The Final Pretrial scheduled for December 6, 2006 at 8:45 A.M. is CONFIRMED.
IT IS SO ORDERED.
JUDGE BRENDA sera UNRUH
Attorney Andrew Jamison
Attomey Mark C. Cavanaugh
Attorney Dick W. Mount, Jr.
Attommey Larry Cook
Summit County Fiscal Office
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VIANA ZALESK, MENDY 28 PH 2 og SUMMIT ¢ ELLY Ty CLERK OF Counts IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO ROBERT TAUB, et al., ) CASE NO. CV 2006 04 2563 ) Plaintiffs, ) JUDGE BURNHAM UNRUH ) vs. ) ) ALEX TZAVARAS, et al., ) JUDGMENT ENTRY ) Defendants. ) ) This matter comes before the Court on Plaintiffs’ Motion for Summary Judgment. The Court has considered the Plaintiffs’ Motion, Defendant Alexander Tzavaras dba Alexander Construction’s (hereinafter “Defendant Alexander”) Supplemental Brief in Opposition to Plaintiffs’ Motion for Summary Judgment, Civil Rule 56 and other applicable law. Upon due consideration and for good cause shown, the Court GRANTS Plaintiffs’ Motion for Summary Judgment. The Final Pretrial scheduled for December 6, 2006 at 8:45 a.m. is CONFIRMED. Please note this date on your calendars. FAILURE TO APPEAR FOR ANY SCHEDULED PRETRIAL, HEARING, STATUS CONFERENCE OR TRIAL MAY RESULT IN SANCTIONS.COPY STATEMENT OF CASE AND LAW This case involves the construction of residential properties in Summit County, Ohio. Plaintiffs were the owners of the properties. In April and May of 2004, Plaintiffs entered into agreements with Defendant Alexander to perform improvements to the Plaintiffs’ properties or to act as general contractor on the construction of the properties. Plaintiffs allege that Defendant | Alexander failed to pay subcontractors for work performed or otherwise breached the parties’ agreements. Plaintiffs terminated Defendant Alexander from working on the properties at the end of October 2004. Plaintiffs claim that Defendant Alexander was not owed any money for the work he had done on the Properties at the time of the termination. On January 6, 2005, Defendant Alexander filed three (3) Affidavits for Mechanics’ Lien with the Summit County Fiscal Officer against three properties owned by Plaintiffs: 2963 Cliffside Drive, Copley, Ohio 44321, 3661 Torrey Pines Drive, Fairlawn, Ohio 44333, and 3396 Green Drive, Bath, Ohio 44333. Plaintiffs claim that they never received notice of the filing of the Affidavits for Mechanics’ Lien and were not served with a copy of these Affidavits within thirty days after their filing on January 6, 2006. On April 19, 2006, Plaintiffs filed a Complaint stating claims for breach of contract, slander of title and declaratory judgment against Defendant Alexander and Defendant Theodore E. Blackburn dba Blackbum Masonry (hereinafter “Defendant Blackburn”). Defendant Blackburn was a sub-contractor employed by Defendant Alexander to do masonry work on Plaintiff's Property located at 3661 Torrey Pines Drive in Fairlawn, Ohio. Defendant Blackbur; filed an Affidavit of Mechanics’ Lien on said property for masonry work for which Defendant) i | | Blackburn claims that he was never paid.COPY | On June 16, 2006, Defendant Blackburn filed an Answer, Counterclaim and Crossclaim. Defendant Blackburn has filed a claim for unjust enrichment against Plaintiffs and has requested that the Court foreclose the Mechanics’ Lien that Defendant Blackburn filed on Plaintiffs’ Property at 3661 Torrey Pines. Defendant Blackburn has filed a Crossclaim against Defendant Alexander claiming that he is owed $5,400 from Defendant Alexander for the masonry work performed on Plaintiff's property. On August 1, 2006, Defendant Alexander filed an Answer and Counterclaim. Defendant Alexander claims that he is owed money from Plaintiffs for work he performed on their Properties. Defendant Alexander has requested damages in excess of $25,000 on his Counterclaim. On September 11, 2006, Plaintiffs filed a Motion for Summary Judgment on Counts Two, Four, Five and Six of their Complaint.' Count Two relates to the Affidavit of Mechanics’ Lien filed by Defendant Alexander against Plaintiffs’ property at 3661 Torrey Pines, Fairlawn, Ohio. Count Four relates to the Affidavit of Mechanics’ Lien filed by Defendant Alexander against Plaintiffs’ property at 3396 Green Drive, Bath, Ohio 44333. Count five relates to the Affidavit of Mechanics’ Lien filed by Defendant Alexander against Plaintiffs’ property at 2963 Cliffside Drive, Copley, Ohio 44331. Count Six requests that the Court declare that the Affidavits of Mechanics’ Lien on all three properties are invalid. In their Motion for Summary Judgment, Plaintiffs claim that the Affidavits of Mechanics’ Lien filed by Defendant Alexander against Plaintiffs’ properties are invalid and should be canceled of record. Plaintiffs assert three different grounds for invalidating Defendant ' Plaintiffs have not moved for summary judgment on Count One of their Complaint, which is a breach of contract claim against Defendant Alexander. Plaintiffs have not moved for summary judgment on Count Three of their Complaint, which is a claim regarding the Affidavit of Mechanics’ Lien filed by Defendant Blackburn. Plaintiffs have not moved for summary judgment on either of the counterclaims filed by the Defendants or the Crossclaim filed by Defendant Blackburn, These claims will remain pending before this Court.COPY” Alexander’s liens. Plaintiffs claim that the liens were not filed in a timely manner. Secondly, Plaintiffs claim that the liens were not properly served. Finally, Plaintiffs claim that Defendant Alexander is not owed any money on any of the underlying properties against which the Mechanics’ Liens were filed. With regard to the property located at 3396 Green Drive, Bath, Ohio 44333, Plaintiffs claim that Defendant did not even provide any labor or materials on this property. On October 10, 2006, Defendant Alexander filed a Brief in Opposition to and Motion for Delay in Considering Plaintiff's Motion for Summary Judgment. In this Brief, Defendant Alexander contends that the Liens were timely filed and that he provided labor and/or materials on each of the three properties involved in Plaintiff's Complaint. Defendant Alexander submitted an Affidavit supporting his factual allegations. With regard to Plaintiffs’ argument that the Affidavits of Mechanics’ Lien were not properly served, Defendant Alexander requested additional time to conduct discovery. Defendant Alexander conceded that the Affidavits were not served pursuant to the service requirements of R.C. § 1311.19(A). Defendant Alexander claims that he sent the Affidavits to Plaintiffs through regular mail deliver. Such delivery would not meet the service requirements of R.C. § 1311.19(A), and the Court could declare the liens invalid. However, Defendant Alexander argues that there are exceptions to the service requirements contained in R.C. § 1311.19. Specifically, Defendant Alexander argues that if he could prove, by a preponderance of the evidence, that the Plaintiffs actually received the Affidavits, the service requirements of § 1311.19(A) would not invalidate Defendant Alexander’s liens. The Court granted Defendant Alexander three additional weeks to conduct the requested discovery to attempt to prove that the Plaintiffs had received the Affidavits of Mechanics’ LienCOPY | filed by Defendant Alexander. On November 20, 2006, Defendant Alexander filed a Supplemental Brief in Opposition to Plaintiffs’ Motion for Summary Judgment. In this Brief, Defendant Alexander again concedes that the Affidavits were not served in accordance with Ohio Revised Code § 1311.19(A). Defendant Alexander also acknowledges that the Plaintiffs did not admit receiving the Affidavits through regular mail. Thus, Defendant Alexander seems to be acknowledging that the Affidavits of Mechanics’ Lien are invalid. However, Defendant Alexander argues that issues of fact remain to be tried in this case. The Court will consider the parties’ arguments in greater detail below. I. Standard of Review In reviewing a motion for summary judgment, the Court must consider the following: (1) whether there is no genuine issue of material fact to be litigated; (2) whether in viewing the evidence in a light most favorable to the non-moving party it appears that reasonable minds could come to but one conclusion; and, (3) whether the moving party is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280; Wing v. Anchor Media, L.T.D. (1991), 59 Ohio St.3d 108. If the Court finds that the non-moving party fails to make a sufficient showing on an essential element of the case with respect to which it has the burden of proof, summary judgment is appropriate. Celotex Corp. v. Catrett (1986), 477 U.S. 317; Schremp v. Haugh’s Products (Nov. 19 1997), Lorain App. No. CA 006655, unreported. Rule 56(C) of the Ohio Rules of Civil Procedure states the following, in part, in regards to summary judgment motions: Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of the evidence in the pending case, and written stipulations of fact, if any timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.COPY II. Analysis After considering the Plaintiffs’ Motion for Summary Judgment and Defendant Alexander’s Brief in Opposition and Supplemental Brief, the Court finds that the Affidavits of Mechanic Lien filed by Defendant Alexander are invalid. R.C. § 1311.07 provides as follows: Any person filing an affidavit pursuant to section 1311.06 of the Revised Code shall serve a copy of the affidavit on the owner, part owner, or lessee of the improved property or his designee, within thirty days after filing the affidavit. If the affidavit cannot be served in accordance with section 1311.19 of the Revised Code, then the person shall serve the copy by posting it in some conspicuous place on the premises of the improved property within ten days after the expiration of the thirty days. R.C. § 1311.19 provides as follows: (A) Except as otherwise provided in section 1311.11 of the Revised Code and division (C) of this section, any notice, affidavit, or other document required to be served under this chapter shall be served by one of the following means: (1) The sheriff of the county in which the person to be served resides or maintains the person's principal place of business, in one or more of the methods provided in the Ohio Rules of Civil Procedure. The sheriff may charge reasonable fees for such service. (2) Certified or registered mail, overnight delivery service, hand delivery, or any other method which includes a written evidence of receipt; (3) The means provided in division (H) of section 1701.07 of the Revised Code, if the person is a corporation. (B) For purposes of this chapter, service is complete upon receipt by the party being served except as provided in division (H) of section 1701.07 of the Revised Code and except, for the purposes of sections 1311.05 and 1311.261 [1311.26.1] of the Revised Code, if service of a notice of furnishing is made by certified mail, service is complete on the date of the mailing. If the service is attempted upon an owner, part owner, or lessee,COPY” or designee, at the address contained in the notice of commencement required by section 1311.04 of the Revised Code, and if the notice, affidavit, or other document is returned unclaimed or refused, service is complete when first attempted. (C) A notice, affidavit, or other document required to be served under this chapter is considered served, whether or not the notice, affidavit, or other document was served by the means described in divisions (A)(1) to (3) of this section, and service is complete on the date the notice, affidavit, or other document is received, if either of the following is true regarding the notice, affidavit, or other document: (1) The person served acknowledges receipt of the notice, affidavit, or other document. (2) It can be proved by a preponderance of evidence that the person being served actually received the notice, affidavit, or other document. A notice, affidavit, or other document to which this division applies is presumed to have been received three days after the date of the mailing of the notice, affidavit, or other document, unless a_ written acknowledgement, receipt, or other evidence provides proof to the contrary. Defendant Alexander has conceded that the Affidavits of Mechanics’ Lien were not served pursuant to R.C. § 1311.19 (A). Defendant Alexander has also failed to introduce evidence that the Plaintiffs actually received the Affidavits. In the case of Conveyor Engineering Co., Inc. v. Foreman Industries, Inc., (2"™ Dist. 1984) 1984 Ohio App. LEXIS 9132, the court held that, “the provisions of R.C. 1311.06 and! 1311.07 are mandatory and compliance with both is necessary to create a valid mechanics’ lien.”’ The Court finds that Defendant Alexander failed to comply with R.C. § 1311.07. Defendant! Alexander did not properly serve the Plaintiffs with the Affidavits of Mechanics’ Lien pursuant to R.C. § 1311.19. Plaintiffs are entitled to summary judgment on their claims related to these Affidavits for Mechanics’ Lien. It is unnecessary for the Court to consider DefendantCOPY’ Alexander’s remaining arguments related to the filing of the Affidavits for Mechanics’ Lien because the Court’s determination regarding the service of these Affidavits renders them invalid. WHEREFORE, for the reasons stated above, the Court GRANTS Plaintiff's Motion for Summary Judgment on Counts Two, Four, Five and Six of Plaintiff's Complaint. The Court hereby declares that the three Affidavits for Mechanics’ Lien filed by Defendant Alexander on January 6, 2005 are invalid. These Affidavits for Mechanics’ Lien shall be removed from the records of the Summit County Fiscal Office. As noted above, Plaintiffs have not moved for summary judgment on Count One of their Complaint, which is a breach of contract claim against Defendant Alexander. Plaintiffs have not moved for summary judgment on Count Three of their Complaint, which is a claim regarding the Affidavit of Mechanics’ Lien filed by Defendant Blackburn. Plaintiffs have not moved for summary judgment on either of the counterclaims filed by the Defendants or the Crossclaim filed by Defendant Blackburn. All of these claims will remain pending before this Court. The Final Pretrial scheduled for December 6, 2006 at 8:45 A.M. is CONFIRMED. IT IS SO ORDERED. JUDGE BRENDA sera UNRUH Attorney Andrew Jamison Attomey Mark C. Cavanaugh Attorney Dick W. Mount, Jr. Attommey Larry Cook Summit County Fiscal Office