This opinion is uncorrected and subject to revision before publication in the printed official reporter.
APPEAL FROM THE GRANT COUNTY CIRCUIT COURT. NO. 27-CV-2013-83-2. HONORABLE EDDY R. EASLEY, JUDGE.
The Henry Firm, P.A., by: Matthew Henry, for appellant.
Walthall Law Firm, P.A., by: G. Christopher Walthall, for appellee.
RHONDA K. WOOD, Associate Justice.
Appellant Bobby Denney filed an interlocutory appeal challenging the circuit court's order denying his motion for summary judgment and sustaining a lien on his property. Because this is not a proper interlocutory appeal and the judgment is not a final order, we must dismiss the appeal.
I. Facts and Procedural Background
Bobby Denney entered into a contract with Justin Denney and his company, Denney Construction, for the construction of a new home. In this contract, Justin was identified as the " Contractor." Justin began purchasing the materials to build the house and arranging the services of other tradesmen that would be necessary for its construction. At some point after beginning the project, the parties had a disagreement about the trusses that were to be used in framing the building, and Bobby insisted that Justin cease all work and leave the construction site.
Justin thereafter served Bobby with the statutory notice outlined in Arkansas Code Annotated § 18-44-115(a)(7) (Supp. 2013), describing the lien on property that arises in favor of contractors, subcontractors, suppliers, and other materialmen if they are not compensated for their work. Justin next filed a document entitled " Laborer's, Mechanic's or Materialman's Lien" in which he claimed entitlement to $25,821.73 for his labor and services, as well as other labor and materials that he had arranged and for which he had already paid. Justin then filed the present suit that serves as the genesis of this appeal, in which he prayed for judgment in the same amount and requested that his lien be given priority over Peoples Bank, which had provided financing for the construction project.
Bobby moved to dismiss the suit for failure to state a claim, arguing that Justin had failed to serve him with the notice concerning potential liens that is required to be provided by contractors before the commencement of work, and, therefore, Justin was entitled to neither a lien nor any other type of recovery. See Ark. Code Ann. § 18-44-115(a)(3)-(4). Justin resisted the motion by asserting that he was merely acting as a subcontractor, that he was engaged in a direct sale under Arkansas Code Annotated § 18-44-115(a)(8), and that the statute's notice requirements did not apply. At the hearing on the motion to dismiss, the circuit court accepted testimony from three witnesses, including Bobby Denney and Justin Denney. Accordingly, the motion to dismiss was treated as a motion for summary judgment under Arkansas Rule of Civil Procedure 12(b).
After listening to the testimony, the circuit court denied the motion for summary judgment, finding that there were material issues of fact yet to be determined. The order also recites that " the Court sustains the lien attached to [Bobby Denney's] property." Bobby then filed this interlocutory appeal and requested transfer of the case to this court, citing the need for clarification or development of the law regarding the direct-sales provision codified at Arkansas Code Annotated § 18-44-115(a)(8). The request for transfer was granted, and both parties now urge this court to interpret the lien statutes and render a ruling on the merits of the arguments presented.
Even though none of the parties address it, the court has a duty to be certain it has jurisdiction, even if the parties do not raise the issue. Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). In this case, Bobby filed his interlocutory appeal alleging jurisdiction pursuant to Arkansas Rule of Appellate Procedure-Civil 2(a)(5), which provides that an appeal may be taken from an order which vacates or sustains an attachment or garnishment. The ...