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Ahern Rentals, Inc. v. Salter Constr., Inc.

Court of Appeals of Arkansas, Division II

August 27, 2014

AHERN RENTALS, INC. APPELLANT
v.
SALTER CONSTRUCTION, INC.; CENTERSTONE APARTMENTS OF CONWAY, LLC; and WASHINGTON INTERNATIONAL INSURANCE COMPANY APPELLEES

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT. NO. CV-2012-552. HONORABLE MICHAEL A. MAGGIO, JUDGE.

Millar Jiles, LLP, by: Daniel C. Brock, for appellant.

Gill Ragon Owen, P.A., by: Roger H. Fitzgibbon, Jr., and Danielle M. Whitehouse, for appellees.

ROBERT J. GLADWIN, Chief Judge. GLOVER and WHITEAKER, JJ., agree.

OPINION

Page 700

ROBERT J. GLADWIN, Chief Judge

Appellant, Ahern Rentals, Inc. (" Ahern" ), appeals from the July 12, 2013

Page 701

order of the Faulkner County Circuit Court. Ahern argues that the circuit court erred in dismissing its complaint against appellees, specifically claiming that its notice complied with the statutory requirements of Arkansas Code Annotated section 18-44-115(b) (Supp. 2013) in providing (1) a general description of the labor, service, or materials furnished, and (2) an amount due; and that it is entitled to assert its lien claim as a subcontractor in accordance with Arkansas Code Annotated section 18-44-101(a) (Repl. 2003). We reverse and remand.

Ahern entered into a contract with White Water Builders, Inc. (" White Water" ), a subcontractor to the contractor, appellee Salter Construction, Inc. (" Contractor" ), to provide rental equipment in the construction of an improvement owned by appellee Centerstone Apartments of Conway, LLC (" Owner" ). White Water failed to fulfill its payment obligations to Ahern for the equipment used in the construction and subsequently filed for bankruptcy protection. Pursuant to section 18-44-115, Ahern timely provided Contractor and Owner with a seventy-five-day notice (" 75 Day Notice" ) of its intent to file a construction lien.[1]

Ultimately, Ahern filed its complaint on June 29, 2012, against Contractor, Owner, Washington International Insurance Company (" WIIC" ), and Marcos J. Martinez, the guarantor of its contract with White Water, to foreclose its lien and pursue a breach-of-guaranty agreement against Martinez. Appellees Contractor, Owner, and WIIC filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure on July 20, 2012, arguing that (1) Ahern is not an entity entitled to assert a lien as a rental-equipment company, (2) Ahern failed to provide a general description of the services provided in its 75 Day Notice as required by section 18-44-115(b)(6)(A), and (3) Ahern failed to provide an amount owed and unpaid in its 75 Day Notice as required by section 18-44-115(b)(6)(A).

Ahern responded to the motion to dismiss on August 6, 2012, and a hearing was held on appellees' motion on June 24, 2013. From that hearing, and based upon the motions and pleadings of the parties, the circuit court granted appellees' motion to dismiss Ahern's complaint and entered its order on July 12, 2013. Ahern subsequently filed a motion for default judgment against Martinez on August 22, 2013, and the circuit court entered a judgment and decree against Martinez on September 24, 2013. Ahern filed a notice of appeal with respect to the July 12, 2013 order on October 15, 2013, after the judgment against Martinez had been entered, thus making the order final and appealable.

Initially, we address Ahern's argument regarding its underlying entitlement to assert its lien claim as a subcontractor in accordance with section 18-44-101(a). Despite the lack of a specific finding by the circuit court on that issue, we presume that the circuit court reviewed the parties' arguments and determined that Ahern is entitled to assert such a lien because the circuit court addressed the resulting issues related to Ahern's 75 Day Notice. ...


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