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Crafton, Tull, Sparks & Assocs., Inc. v. Ruskin Heights, LLC

Supreme Court of Arkansas

January 15, 2015

CRAFTON, TULL, SPARKS & ASSOCIATES, INC., APPELLANT
v.
RUSKIN HEIGHTS, LLC; METROPOLITAN NATIONAL BANK; WILLIAM B. BENTON, JR.; J. KEVIN ADAMS; EDWARD A. LABRY, III; JOHN G. BRITTINGHAM; CARLEN G. HOOKER; EDWARD F. DAVIS; DIRK W. VAN VEEN; AND DAVID RUFF, IN HIS OFFICIAL CAPACITY AS TAX COLLECTOR FOR WASHINGTON COUNTY, ARKANSAS, APPELLEES

Page 668

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO. CIV-2009-2582-4. HONORABLE CRISTI BEAUMONT, JUDGE.

AFFIRMED.

Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: David R. Matthews and Sarah L. Waddoups, for appellant.

McMullan Law Firm, by: Marian Major McMullan, for appellees.

OPINION

JIM HANNAH, Chief Justice.

Page 669

Appellant Crafton, Tull, Sparks & Associates, Inc. (" CTSA" ) appeals an order of the Washington County Circuit Court granting summary judgment in favor of appellees Ruskin Heights, LLC; Metropolitan National Bank (" Metropolitan" ); William B. Benton, Jr.; J. Kevin Adams; Edward A. Labry, III; John G. Brittingham; Carlen G. Hooker; Edward F. Davis; Dirk W. Van Veen; and David Ruff, in his official capacity as Tax Collector for Washington County. For reversal, CTSA argues that the circuit court improperly refused to grant its lien priority over Metropolitan's mortgage lien that was recorded after construction [2015 Ark. 2] commenced. CTSA also asserted that its lien should relate back to the commencement of construction. We have jurisdiction pursuant to Arkansas Supreme Court Rule 1-2(a)(7) (2014), as we have dismissed two previous appeals. See Crafton, Tull, Sparks & Assocs. v. Ruskin Heights, LLC, 2013 Ark. 85 (" Crafton II " ) (dismissing without prejudice for lack of a final order); Crafton, Tull, Sparks & Assocs. v. Ruskin Heights, LLC, 2012 Ark. 56 (" Crafton I " ) (dismissing without prejudice for lack of a final order). We affirm.

An extensive recitation of the facts and procedure was set forth in Crafton I, 2012 Ark. 56, and we provide the relevant facts concerning this appeal. On September 17, 2007, Metropolitan and Ruskin Heights executed a promissory note and loan agreement for $8,606,250 to finance construction of a residential subdivision on real property located in Washington County. As security for the note, Ruskin Heights executed a mortgage on the real property in favor of Metropolitan. In addition, William B. Benton, Jr.; J. Kevin Adams; Edward A. Labry, III; John G. Brittingham; Carlen G. Hooker; Edward F. Davis; and Dirk W. Van Veen executed personal guarantees.

Nabholz Construction Company began construction on the project on the morning of October 1, 2007, and Metropolitan filed its mortgage that afternoon. CTSA subsequently began working on the project for Ruskin Heights. On September 25, 2009, Jim Tull, CTSA's chief financial officer, filed an " Architect's and Engineer's Account and Affidavit of Account" stating that Ruskin Heights owed CTSA $37,239.45. Ruskin Heights received notice of CTSA's lien filing on September 28, 2009. The $37,239.45 balance remained unpaid. Meanwhile, on August 3, 2009, Metropolitan filed a foreclosure complaint alleging [2015 Ark. 3] breach of note and breach of guaranties against Ruskin Heights; William B. Benton, Jr.; J. Kevin Adams; Edward A. Labry, III; John G. Brittingham; Carlen G. Hooker; Edward F. Davis; Dirk W. Van Veen; and David Ruff in his official capacity as Tax Collector for Washington County.

On November 2, 2009, CTSA filed a complaint asserting an engineer's lien against Ruskin Heights. Thereafter, on December 7, 2009, the circuit court granted CTSA's motion for consolidation and joinder of the two complaints. On December 14, 2009, CTSA filed an amended complaint against

Page 670

Ruskin Heights and Metropolitan. CTSA requested (1) that its lien and that Nabholz's lien be declared superior to any lien or claims by Metropolitan and Ruskin Heights and (2) that CTSA be awarded a monetary judgment against Ruskin Heights and others. On September 10, 2010, CTSA filed a motion for summary judgment as to its claims against Ruskin Heights and Metropolitan, which it amended on September 24, 2010. In addition, Metropolitan filed a cross-motion for summary judgment against CTSA on September 10, 2010. After two hearings on the matter, the court held a final hearing on October 26, 2010, in which it ruled from the bench that CTSA had an engineering and architectural lien against the property at issue; that CTSA's lien did not have priority over Metropolitan's mortgage lien; and that CTSA's lien did not relate back to the date of construction.

On November 29, 2010, the circuit court entered a partial judgment and decree, finding that Ruskin Heights had defaulted and owed Metropolitan damages; that Metropolitan's mortgage lien was valid and enforceable; that Metropolitan had first priority [2015 Ark. 4] as to any lien claim by Nabholz or CTSA; and that CTSA had a second lien on the property. CTSA filed a notice of appeal from the order on December 10, 2010. Thereafter, on December 13, 2010, the circuit court entered an order granting Metropolitan's motion for summary judgment against CTSA and denying CTSA's motion for summary judgment against Metropolitan. In its order, the circuit court ruled that the " Architect's and Engineer's Liens are not given the same priority under [Arkansas Code Annotated section] 18-44-105 as Materialmen's [sic] and Laborer's Liens," and further found that " CTSA's Architect's and Engineer's Lien did not attach to the property until August 25, 2009, which [was] the date CTSA's lien was filed of record." [1]

CTSA appealed from the November 29, 2010 order finding that CTSA's lien was second in priority to Metropolitan's lien. In Crafton I, 2012 Ark. 56, we dismissed the appeal without prejudice for lack of a final order and identified the outstanding issues. On remand, the circuit court entered an order stating that certain parties and actions remained unresolved. CTSA appealed the November 29, 2010 order finding that CTSA's lien was second in priority to the bank's lien. We again dismissed without prejudice for lack of a final order on the ...


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