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2016 Ark. 162
SUPREME COURT OF ARKANSAS
No. CV-15-894
Opinion Delivered April 14, 2016
HAMMERHEAD CONTRACTING &
DEVELOPMENT, LLC, AND APPEAL FROM THE INDEPENDENCE
BRANDON HOLMES COUNTY CIRCUIT COURT
[NO. CV-2014-229-4]
APPELLANTS
V. HONORABLE TIM WEAVER, JUDGE
DALE LADD
REVERSED AND REMANDED.
APPELLEE
JOSEPHINE LINKER HART, Justice
Hammerhead Contracting & Development, LLC, and Brandon Holmes
(Hammerhead), appeal from the grant of summary judgment in favor of Dale Ladd. Ladd had
sued Holmes to remove a “Laborer’s, Mechanic’s, or Materialman’s Lien” that Holmes had
filed on behalf of his wholly owned limited-liability company (Hammerhead). Ladd had
withheld payment of $101,676.82 that Hammerhead claimed it was owed. On appeal,
Hammerhead argues that: (1) the circuit court erred in finding that the direct-sales exception
to the residential-preconstruction notice requirement, codified at Arkansas Code Annotated
section 18-44-115(a)(8), can never apply to a contractor—even though the plain language of
the statute covers contractors; (2) the circuit court’s interpretation of Arkansas Code
Annotated section 18-44-115(a)(4) that bars contractors from exercising their constitutional
right to redress wrongs in a court of law; and (3) the owner of an LLC can file a lien on the
LLC’s behalf. We accepted original appellate jurisdiction over this case in accordance with
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Arkansas Supreme Court Rule 1-2 because it involves construction of the Arkansas
Constitution as well as an issue of first impression, an issue of substantial public interest, and
statutory construction.
In January 2014, Ladd hired Hammerhead to build a house in Batesville, Arkansas.
Under the agreement, Ladd agreed to pay $355,550. A further provision in the job estimate
stated that “prices will not change unless upgrades are requested by the buyer.” It is not
disputed that prior to beginning construction, Hammerhead did not provide Ladd with the
statutory notice provided for in Arkansas Code Annotated section 18-44-115.
A dispute arose regarding the amount owed for the construction of Ladd’s home.
According to Hammerhead’s records, Ladd paid more than $370,000 through August 2014,
but Ladd contends that he paid more. As noted previously, Hammerhead asserted that Ladd
owed an additional $101,676.82, and on September 23, 2014, Holmes filed a “Laborer’s,
Mechanic’s, or Materialman’s Lien” for that amount on behalf of the LLC.
On October 2, 2014, Ladd filed suit against Holmes to remove the lien. On January
22, 2015, Hammerhead filed an amended complaint against Ladd seeking judgment for the
$101,676.82. Ladd moved to dismiss, asserting that the failure to give statutory notice
required by Arkansas Code Annotated section 18-44-115 (Repl. 2015) barred Hammerhead
from pursuing his cause of action. Hammerhead responded to the motion to dismiss,
continuing to assert that it was not required to give notice because it was a direct sale and
additionally asserting that subsection (a)(4) in section 18-44-115 was unconstitutional.
Hammerhead and Ladd moved for summary judgment. The cases were consolidated on May
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26, 2015.
In his summary-judgment motion, Ladd asserted that Hammerhead had failed to give
him the notice required by Arkansas Code Annotated section 18-44-115. Quoting section
18-44-115(a), Ladd argued that the plain wording of the statute barred Hammerhead from
acquiring a lien on his home. The statute states in pertinent part,
(a)(1) No lien upon residential real estate containing four (4) or fewer units may be
acquired by virtue of this subchapter unless the owner of the residential real estate, the
owner's authorized agent, or the owner's registered agent has received, by personal
delivery or by certified mail, a copy of the notice set out in this subsection.
....
(3) It shall be the duty of the residential contractor to give the owner, the owner's
authorized agent, or the owner's registered agent the notice set out in this subsection
on behalf of all potential lien claimants before the commencement of work.
(4) If a residential contractor fails to give the notice required under this subsection,
then the residential contractor is barred from bringing an action either at law or in
equity, including without limitation quantum meruit, to enforce any provision of a
residential contract.
Ladd further argued that he anticipated that Hammerhead might assert that he was not
required to give notice under the “direct sale” exception found in section 18-44-115(a)(8)(A):
(8)(A) If the residential contractor supplies a performance and payment bond or if the
transaction is a direct sale to the property owner, the notice requirement of this
subsection shall not apply, and the lien rights arising under this subchapter shall not
be conditioned on the delivery and execution of the notice.
(B) A sale shall be a direct sale only if the owner orders materials or services from the
lien claimant.
Even so, Ladd asserted that, given the statutory definition of “contractor” in Arkansas Code
Annotated section 18-44-107(1), “‘contractor’ means any person who contracts orally or in
writing directly with a person holding an interest in real estate, or such person’s agent, for the
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construction of any improvement to or repair of real estate,” there was no “conceivable”
scenario in which any transaction between a homeowner and a contractor would not be a
direct sale. According to Ladd, that construction of the statute would “lead to an absurd
result” and defeat the “plain purpose” of the law, which required that contractors give
customers notice of the potential for a lien to be filed. He claimed that under Hammerhead’s
interpretation of the statute, section 18-44-115(a)(1) would be rendered “superfluous.”
Hammerhead opposed Ladd’s summary-judgment motion, asserting that there was a
genuine issue of material fact as to whether notice was required by section 18-44-115. Citing
National Lumber Co. v. Advanced Development Co., 293 Ark. 1,
732 S.W.2d 840 (1987) and
Duncan v. Davis & Earnest, Inc.,
285 Ark. 143,
685 S.W.2d 509 (1985), it asserted that in
determining whether notice was required, it is necessary to consider whether the materials and
services were “charged to, shipped to, and received by” Ladd and whether the invoices and
monthly statements were sent to Ladd in determining if there was a direct sale.
In deciding whether to grant summary judgment, the circuit court concluded that it
had three issues before it: (1) whether a general contractor, who did not provide predelivery
notice, as required by Arkansas Code Annotated section 18-44-115(a), is entitled to assert a
materialman’s lien pursuant to Arkansas Code Annotates sections 18-44-101 et seq.; (2)
whether a general contractor, who did not provide predelivery notice, is barred from bringing
an action to enforce the terms of a residential contract; and (3) whether Arkansas Code
Annotated section 18-44-115(a)(4)’s bar against suit by a contractor who failed to provide the
statutory notice is unconstitutional.
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At the summary-judgment hearing, Ladd conceded that his dealings with Hammerhead
was a direct sale. Accordingly, there was a general agreement between the parties and the
circuit court that was the factual predicate for the case. Nonetheless, Ladd asserted that the
case had to be resolved as a matter of law through the circuit court’s construction of section
18-44-115.
The circuit court found that “there exists no conceivable scenario in which, by
definition, any transaction between a homeowner and contractor would not be a direct sale.”
It rejected Hammerhead’s contention that it was exempted from the notice requirement
because “it was this court’s duty to reject any interpretation of the statute that would lead to
such absurdity or defeat the plain purpose of the law.” It further found that exempting
Hammerhead from the notice requirement would render section 18-44-115(a)(1)
“superfluous” because a general contractor would never be required to give notice as a
condition precedent to obtaining a lien on the property. The circuit court concluded that the
different provision of section 18-44-115 could be reconciled by finding that the direct-sales
exception applied only to subcontractors. The circuit court granted Ladd’s motion to dismiss
Hammerhead’s complaint because it lacked standing to bring the action due to its failure to
give the notice required by section 18-44-115. The circuit court also granted Ladd’s
summary-judgment motion and ordered the lien canceled. Finally, relying on Central
Oklahoma Pipeline, Inc. v. Hawk Field Services, LLC, 2012 Ark. 157,
400 S.W.3d 701, the
circuit court that found section 18-44-115(a)(4) is constitutional. Hammerhead timely
appealed.
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On appeal, Hammerhead first argues that the circuit court erred in finding that the
direct-sales exception in Arkansas Code Annotated section 18-44-115(a)(8) to the residential
preconstruction-notice requirement can never apply to a contractor —even though the plain
language of the statute covers contractors. It asserts that the plain wording of the statute
properly reflects the legislature’s intent when it drafted the statute. Further, the circuit court
erred in finding that the direct-sales exception never covers contractors because it made the
incorrect assumption that all contractors’ contracts fit the definition of a direct sale. We find
merit to this argument.
Summary judgment is appropriate when there are no genuine issues of material fact,
and the moving party is entitled to judgment as a matter of law. Lipsey v. Giles, 2014 Ark.
309,
439 S.W.3d 13. On appeal, we determine if summary judgment was appropriate based
on whether the evidentiary items presented by the moving party in support of the motion
leave no disputed questions of material fact.
Id. In our review, we view the evidence in the
light most favorable to the party against whom the motion was filed, resolving all doubts and
inferences against the moving party.
Id. We focus not only on the pleadings, but also on the
affidavits and documents filed by the parties.
Id. Moreover, we have held that, even when
there is no material dispute as to the facts, on review, we will determine whether “reasonable
minds” could draw “reasonable” inconsistent hypotheses to render summary judgment
inappropriate; if so, summary judgment is not appropriate.
Id.
The question of the correct application and interpretation of an Arkansas statute is a
question of law, which this court decides de novo. Evans v. Hamby, 2011 Ark. 69, 378
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S.W.3d 723. The purpose of the rules of statutory construction is to give effect to the intent
of the legislature. State v. Colvin,
2013 Ark. 203,
127 S.W.3d 635. The first rule of statutory
construction is to construe a statute just as it reads, giving the words their ordinary and usually
accepted meaning, Smith v. Simes,
2013 Ark. 477,
430 S.W.3d 690. Additionally, in
construing any statute, we place it beside other statutes relevant to the subject matter in
question and ascribe meaning and effect to be derived from the whole.
Colvin, supra. Statutes
relating to the same subject must be construed together and in harmony, if possible.
Id.
As noted preciously, the “direct sale” exception that is found in section 18-44-
115(a)(8)(A). Subsection 115(a)(8)(B) defines a direct sale: “A sale shall be a direct sale only
if the owner orders materials or services from the lien claimant.” Contrary to the findings
of the circuit court, it is not “absurd” to construe section 18-44-115 just as written. Under
the plain wording of the statute, to the extent that Ladd has ordered materials or services
directly from Hammerhead, those transactions constitute direct sales, and Hammerhead is not
required to give Ladd the statutory notice. In situations such as the case at bar, the
homeowner is in direct privity of contract with the direct-sale contractor. There are no
undisclosed suppliers or laborers. In Ladd’s dealings with Hammerhead, Ladd had to expect
that Hammerhead would want to be paid for the labor and materials that it provided directly
to Ladd. Whether the direct-sales exception encompasses every transaction between a
general contractor and a homeowner, a premise that we do not accept, is of no moment.
The plain wording of the statute is clear, and it is not the role of this court to rewrite the
statute. We therefore reverse the circuit court’s grant of summary judgment and its order
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voiding the lien and remand for further proceedings consistent with this opinion.
Because we have reversed and remanded this case based on Hammerhead’s first point
on appeal, we need not reach his second point in which he asserts that the circuit court’s
interpretation of Arkansas Code Annotated section 18-44-115(a)(4) is unconstitutional
because it violates a contractor’s right to seek redress in court for wrongs done to them. We
also decline to address Hammerhead’s argument concerning the propriety of Holmes, as the
owner of an LLC, filing a lien on the LLC’s behalf. This issue was not ruled on by the circuit
court and therefore will not be addressed on appeal.
Reversed and remanded.
GOODSON, WOOD, and WYNNE, JJ., dissent.
ROBIN F. WYNNE, Justice, dissenting. Because I believe that the majority’s
decision in this case effectively abolishes an entire code section, I respectfully dissent.
The statute at issue, Arkansas Code Annotated section 18-44-115, requires a residential
contractor to give the notice recited in the statute to the owner of the residential real estate
before beginning work on the property. Ark. Code Ann. § 18-44-115(a)(3) (Repl. 2015).
It is undisputed that in this case that did not happen. The statute also states that if the notice
is not given, no lien on the property may be acquired.
Ark. Code Ann. § 18-44-115(a)(1).
There is an exception to the notice requirement in the case of a “direct sale.”
Ark. Code
Ann. § 18-44-115(a)(8)(A). The statute defines a direct sale as existing “only if the owner
orders materials or services directly from the lien claimant.”
Ark. Code Ann. § 18-44-
115(a)(8)(B).
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For the purposes of the applicable subchapter, a contractor is defined as “any person
who contracts orally or in writing directly with a person holding an interest in real estate, or
such person’s agent for the construction of any improvement to or repair of real estate.” Ark.
Code Ann. § 18-44-107(1) (emphasis added). Thus, by definition, a property owner’s
dealings with a general contractor, such as Hammerhead, are always going to fall within the
direct-sale exception. The majority states that this is of no moment. I disagree. The
majority’s interpretation effectively writes the statute out of the Arkansas Code, as there is no
situation in which a general contractor will not be sheltered by the direct-sale exception.
Under the majority’s view, there is simply no requirement for a general contractor to ever
concern itself with giving the notice that it is statutorily required to give.
The majority states that “the plain wording of the statute is clear.” However, the
majority’s application of the plain wording renders the statute internally inconsistent such that
the exception now swallows the rule. In interpreting statutes, we are required to reconcile
different provisions to make them consistent, harmonious, and sensible in an effort to give
effect to every part. See Smith v. ConAgra Foods, Inc., 2013 Ark. 502,
431 S.W.3d 200. The
majority has not done this. Instead, the majority has read the direct-sale exception in isolation
and nullified the remainder of the statute. Reading the statute as a whole, it is clear to me
that the direct-sale exception was meant to apply to situations in which a potential lien
claimant other than the residential contractor has contracted directly with the property owner
to provide materials or services. In that instance, it is not necessary for the residential
contractor to advise the property owner of the potential for liens by parties unknown to the
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property owner, because the property owner would be aware of their existence through
having directly contracted with them. This interpretation of the statute gives effect to every
part and helps to protect property owners from finding liens placed on their property by
unknown parties, as the legislature intended in enacting the statute. Because appellants failed
to give the statutorily-required notice, and because there is no evidence that the direct-sale
exception should apply, I would affirm the circuit court’s finding that appellants’ failure to
give the required notice is fatal to their lien.
For these reasons, I respectfully dissent.
GOODSON and WOOD, JJ., join.
Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellants.
Murphy, Thompson, Arnold, Skinner & Castleberry, by: Kenneth P. “Casey” Castleberry,
for appellee.
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