I’ll go ahead and say…the law can be quite stupid. It’s astonishing to me how so many smart people can become attorneys and allow themselves to become so consumed with inconsequential technicalities. That’s precisely what seems to have occurred in the state of Ohio with respect to that state’s preliminary notice requirements.
Contrary to the law in California where you can’t ever send a preliminary notice too early, the Ohio Twelfth Appellate District Court of Appeals* held in Halsey Inc. v. Isbel that any preliminary notices sent before materials or labor are actually furnished is too early and ineffective; even if the notice is sent just the day before furnishing, and actually received after furnishing!
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Huh? This is the court’s discussion:
Service of the notice of furnishing in this case occurred before any materials had been supplied by Halsey. Specifically, Halsey sent the notice of furnishing by certified mail on May 14, 2007. Due to the statute’s service provision, the notice was considered served on that date. Materials were first furnished on May 15, 2007. R.C. 1311.19(B) clearly provides that a notice of furnishing should not be served until after materials are furnished. Since Halsey’s notice was served before materials had been furnished, its notice of furnishing was not valid.
So, let’s recap what happened here:
Date Notice Sent: May 14
Date Materials Furnished: May 15
Date Notice Received: May 17
This doesn’t seem fair, does it? After all, the purpose of the Ohio Notice of Furnishing, and any preliminary notice, is to provide notice that a contractor or supplier is furnishing labor or material to the project. It wasn’t denied that such notice was transmitted here, and it seems quite petty to me that the Ohio Supreme Court would carve out such a pointless technicality.
As frustrating as it is, contractors, subcontractors, material suppliers and other service providers must furnish their Notice of Furnishing with caution. They have 21 days from first furnish to send the notice, and they must do it after they furnish, but before the 21 day deadline.
*Update: This blog post previously indicated that the Halsey Inc v. Isbel decision was handed down by the Ohio Supreme Court. This was an error, as the decision is from the Twelfth Appellate District Court of Ohio (as per the linked opinion in the post). Thanks to Daniel Myers (@MyersLawLLC) at Myers Law LLC (in Ohio) for the correction.