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JMAC Farms, LLC v. G & C Generator, LLC

Court of Appeals of Arkansas, Division II

December 6, 2017

JMAC FARMS, LLC APPELLANT
v.
G & C GENERATOR, LLC APPELLEE

         APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-16-1043] HONORABLE JOHN R. SCOTT, JUDGE

          Cullen & Co., PLLC, by: Tim J. Cullen, for appellant.

          Conner & Winters, LLP, by: Todd P. Lewis and Michael D. Sutton, for appellee.

          BART F. VIRDEN, JUDGE.

         Appellee G & C Generator, LLC (G & C), filed a complaint against appellant JMAC Farms, LLC (JMAC), and JMAC's contractor, McReynolds Enterprises, Inc., d/b/a McReynolds Water Systems (McReynolds), seeking to collect $66, 200 for generators sold for the construction of poultry houses on JMAC's property and to foreclose on its materialmen's lien. Default judgment was later entered against McReynolds, and the remaining parties filed cross-motions for summary judgment. The Benton County Circuit Court granted summary judgment to G & C. On appeal, JMAC argues that G & C failed to strictly comply with the lien statutes. We agree with JMAC that G & C cannot have a lien against property it did not improve pursuant to Ark. Code Ann. § 18-44-101 (Repl. 2015). Because summary judgment was inappropriate, we must reverse.

         I. Lien Statutes

         Arkansas Code Annotated section 18-44-101(a) provides the following:

Every . . . material supplier . . . who supplies . . . material . . . in the construction . . . of an improvement to real estate, . . . by virtue of a contract with the owner, proprietor, contractor, or subcontractor, or agent thereof, upon complying with the provisions of this subchapter, shall have, to secure payment, a lien upon the improvement and on up to one acre of land upon which the improvement is situated, or to the extent of any number of acres of land upon which work has been done or improvements erected.

Section 18-44-115(b)(4) (Supp. 2017) provides that no material supplier shall be entitled to a lien on commercial real estate unless it notifies the owner of the commercial real estate being constructed or improved in writing that the material supplier is currently entitled to payment but has not been paid. This notice shall be sent to the owner before seventy-five days have elapsed from the time the materials were furnished. Ark. Code Ann. § 18-44-115(b)(5)(A). The notice shall contain, among other things, "a description of the job site sufficient for identification" and a statement of notice set out in boldface type. Ark. Code Ann. § 18-44-115(b)(6)(D) & (E).

         Further, section 18-44-117(a)(1) (Repl. 2015) provides that it shall be the duty of every person who wishes to avail himself or herself of the provisions of this subchapter to file with the clerk of the circuit court of the county in which the improvement to be charged with the lien is situated, and within 120 days after the things specified in this subchapter shall have been furnished, (A) a just and true account of the demand due or owing to him or her after allowing all credits, and (B) an affidavit of notice attached to the lien account. The lien account shall contain "a correct description of the property to be charged with the lien" verified by affidavit. Ark. Code Ann. § 18-44-117(a)(2).

         II. Procedural History

         On February 1, 2016, G & C filed a verified claim, sworn statement, and notice of lien account, stating that it had furnished materials that were delivered to and incorporated into one or more improvements located on the following real property situated in Benton County, Arkansas:

A PART OF THE NE/4 OF THE NE/4 OF SECTION 15, TOWNSHIP 18 NORTH, RANGE 33 WEST, BENTON COUNTY, ARKANSAS, MORE PARTICULARLY DESCRIBED AS BEGINNING AT A POINT 542.85 FEET EAST AND NORTH 0º14 MINUTES WEST 929.12 FEET OF THE SOUTHWEST CORNER OF SAID NE/4 OF THE NE/4, SAID POINT BEING THE CENTERLINE OF A CREEK; THENCE SOUTH 0º14 MINUTES EAST 929.12 FEET; THENCE WEST 217.30 FEET ALONG THE SOUTHERN BOUNDARY OF SAID NE/4 OF THE NE/4 THENCE NORTH 0º14 MINUTES WEST 704.21 FEET TO THE CENTERLINE OF SAID CREEK; THENCE NORTHEASTERLY ALONG SAID CREEK CENTERLINE TO THE POINT OF BEGINNING. ALSO A PART OF THE NE/4 OF THE NE/4 OF SECTION 15, TOWNSHIP 18 NORTH, RANGE 33 WEST, BENTON COUNTY, ARKANSAS, MORE PARTICULARLY DESCRIBED AS BEGINNING AT A POINT 325.55 FEET EAST AND NORTH 0º14 MINUTES WEST 704.21 FEET FROM THE SOUTHWEST CORNER OF SAID NE/4 OF THE NE/4, SAID POINT BEING THE CENTERLINE OF A CREEK; THENCE SOUTH 0º14 MINUTES EAST 704.21 FEET; THENCE WEST 105.00 FEET ALONG THE SOUTHERN BOUNDARY OF THE NE/4 OF THE NE/4 THENCE NORTH 0º14 MINUTES WEST 594.56 FEET TO THE CENTERLINE OF SAID CREEK; THENCE NORTHEASTERLY ALONG THE CENTERLINE OF SAID CREEK TO THE POINT OF BEGINNING.

         G & C stated that the property's address is 20190 Garman Road, Gentry, Arkansas 72732.[1] G & C stated that the materials were purchased by McReynolds, which was hired by JMAC to make certain improvements on its property using these and other materials. G & C stated that the materials had improved the owner's property. G & C claimed a lien on the property, including "any and all leaseholds, buildings, and improvements located there upon, " in order to secure the sum of $66, 200, which was due and owing to it for the materials located in and on ...


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