FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-16-1043]
HONORABLE JOHN R. SCOTT, JUDGE
& Co., PLLC, by: Tim J. Cullen, for appellant.
& Winters, LLP, by: Todd P. Lewis and Michael D. Sutton,
F. VIRDEN, JUDGE.
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.
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).
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).
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.
C stated that the property's address is 20190 Garman
Road, Gentry, Arkansas 72732. 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 ...