Ark. Code Ann. § 18-44-117 (2020)

RESEARCH REFERENCES

Ark. L. Rev.

Comment, Contracting Away an Honest Day's Pay: An Examination of Conditional Payment Clauses in Construction Contracts, 58 Ark. L. Rev. 353.

Case Notes

Affidavits.

The making and filing of the affidavit are essential to the validity of a lien. Rasmussen v. C.J. Horner Co., 255 Ark. 1030, 505 S.W.2d 225 (1974).

Where lienor filed a lien account without verification by oath or affirmation, he failed to make the affidavit required for validity of the lien. Rasmussen v. C.J. Horner Co., 255 Ark. 1030, 505 S.W.2d 225 (1974).

Appeal.

The objection that there was no proof that the lien was claimed in the manner prescribed cannot be raised for the first time on appeal. Roseburr v. McDaniel, 147 Ark. 203, 227 S.W. 397 (1921).

Owner could not complain on appeal that the claim was not filed in the time prescribed where the issue was not raised by the pleadings nor at the trial. Judd v. Rieff, 174 Ark. 362, 295 S.W. 370 (1927).

Bankruptcy.

Where claimants in bankruptcy furnished labor and material to bankrupt prior to filing date of bankruptcy, and mechanics' liens were recorded by the claimants prior to such date, such liens were perfected prior to date of bankruptcy and allowable claims. In re Taylor Oak Flooring Co., 87 F. Supp. 6 (W.D. Ark. 1949).

Where creditor floor repair company filed a verified complaint with the circuit court within 120 days of the performance of its contract with the bankruptcy debtors, it complied with this section and had a valid lien; the lien was preserved under the Bankruptcy Code, and the creditor was permitted post-petition perfection of the lien. In re McCord, 219 B.R. 251 (Bankr. E.D. Ark. 1998).

Commencement of Action.

If action was begun within statutory period, there was no necessity to file any account other than that which accompanied the complaint. Anderson v. Seamans, 49 Ark. 475, 5 S.W. 799 (1887) (decision under prior law) National Lumber Co. v. Advance Dev. Corp., 293 Ark. 1, 732 S.W.2d 840 (1987).

Where the complaint is verified by one of the plaintiffs, and the action is brought within statutory period, there is no necessity of having a “just and true account” other than a general statement in the complaint. Wood v. King Mfg. Co., 57 Ark. 284, 21 S.W. 471 (1893). See also McFadden v. Stark, 58 Ark. 7, 22 S.W. 884 (1893) (preceding decisions under prior law).

When suit is brought within the statutory period, there is no necessity, between the lienholder and landowner, to file any account other than the one accompanying the complaint, nor to enter any abstract of the particulars in the mechanic's lien book. Pfeiffer Stone Co. v. Brogdon, 125 Ark. 426, 188 S.W. 1187 (1916); Carr v. Hahn & Carter, 133 Ark. 401, 202 S.W. 685 (1918); Rea v. Lammers, 212 Ark. 792, 207 S.W.2d 740 (1948).

It is unnecessary for a lienholder to give notice of its lien to the landowner if suit to enforce the lien is brought within statutory period from date of last item appearing on the account. Robins v. East Arkansas Builders Supply Co., 199 Ark. 1174, 199 Ark. 1174, 137 S.W.2d 924 (1940).

Complaint filed to recover amount due on contract without asserting lien was not a suit under this section and a “motion to enforce lien” filed later than statutorily allowed period after the material was furnished or labor done was too late. Rea v. Lammers, 212 Ark. 792, 207 S.W.2d 740 (1948).

Where suit on mechanic's lien was filed well within the statutory period from the furnishing of the last items of labor and material, even if there was no compliance with this section, such failure to comply would be no defense. Plant v. Cameron Feed Mills, Inc., 228 Ark. 607, 309 S.W.2d 312 (1958).

It would not be necessary for claimant to comply with either § 18-44-101 creating a lien in favor of the party or § 18-44-114 whereby he could have given notice if he commenced a suit against the necessary parties within the statutory period after the last item was furnished. Burks v. Sims, 230 Ark. 170, 321 S.W.2d 767 (1959).

Where the court permitted an intervention claiming a lien, the filing of this pleading obviated the necessity of complying with the provisions of this section as to filing claim for lien. Schulte v. Walthour, 239 Ark. 627, 393 S.W.2d 242 (1965).

A suit to establish a lien is a substantial compliance with this section, if filed against the necessary parties within the statutory period, and cures the omission to file the account with the circuit court clerk, but this relaxation of the statutory requirement applies only as between the lien claimant and the landowner, and failure to file the required statement will not be excused in the case of a mortgagee against whom a suit is not instituted within the statutory period. Wiggins v. Searcy Fed. Sav. & Loan Ass'n, 253 Ark. 407, 486 S.W.2d 900 (1972).

Where contractor brought a timely suit against landowner to establish lien within statutory period but did not join the bank, whose mortgage was executed subsequent to the commencement of the improvement, and contractor additionally failed to file the notice required by this section and did not file any pleading asserting priority over bank's mortgage until after the statutory period had elapsed, contractor's lien was subordinate to the mortgage of the bank. Wiggins v. Searcy Fed. Sav. & Loan Ass'n, 253 Ark. 407, 486 S.W.2d 900 (1972).

When computing the time within which a suit in a civil proceeding has to be filed in order to perfect and enforce a lien, this section does not provide that a certain method or procedure be used; therefore, the use of ARCP 6(a) is not excluded by ARCP 81(a). Transportation Properties, Inc. v. Central Glass & Mirror of N.W. Ark., Inc., 38 Ark. App. 60, 827 S.W.2d 667 (1992).

Compliance Generally.

This section must be substantially complied with. Conway Lumber Co. v. Hardin, 119 Ark. 43, 177 S.W. 408 (1915).

Materialmen who complied with this section were entitled to have liens declared in their favor, though they did not pray for it, but sought relief on the contractor's bond on the assumption that it had displaced the liens. Union Indem. Co. v. Covington, 178 Ark. 533, 12 S.W.2d 884 (1928).

Where a materialman commences suit within statutory period after the materials were furnished to establish a lien, he is entitled to a lien, though he fails to verify his account, since a substantial compliance is all that is required. Rust v. Kelley Bros. Lumber Co., 180 Ark. 517, 21 S.W.2d 973 (1929).

Compliance with this section is not sufficient to render a lien choate so as to give it priority over subsequently established federal tax lien. United States v. McGehee, 237 Ark. 698, 375 S.W.2d 365 (1964).

—Effect of Noncompliance.

A mechanic's lien not filed within statutory period is void. Mitchell v. Schulte, 142 Ark. 446, 222 S.W. 365 (1920); National Lumber Co. v. Advance Dev. Corp., 293 Ark. 1, 732 S.W.2d 840 (1987).

Failure to file claims with the clerk of the circuit court within statutory period was fatal to the enforcement of liens for labor unless action was brought within that period. Hirsch v. Farris, 174 Ark. 1040, 298 S.W. 487 (1927).

Claimant who did not file any lien against property in accordance with the law, though entitled to personal judgment, was not entitled to a lien on the property. McGehee Realty & Lumber Co. v. Kennedy, 200 Ark. 926, 141 S.W.2d 524 (1940).

Where no lien notice was filed and no suit brought within the statutory period after completion of work, additional work which amounted to nothing more than servicing machinery and fixtures already installed, did not extend the lien period. Turner-McCoy, Inc. v. Hardy, 230 Ark. 410, 323 S.W.2d 562 (1959).

Where materialman seeking to enforce lien elected to proceed by filing suit within the statutory period provided in this section against the property owner rather than filing a proper action with the clerk within the statutory period provided in this section as required by this section, he had the statutory period provided in this section and not period provided under § 18-44-119 in which to amend his pleadings to make the proper contractor a party, inasmuch as the claimant is not entitled to the extension provided under § 18-44-119 to bring suit until he has perfected his lien by filing a proper action with the clerk. B.S.C., Inc. v. McKinney, 263 Ark. 110, 562 S.W.2d 600 (1978).

Contents of Account.

It is not necessary that a claimant file an itemized account in order to make the lien effectual. Terry v. Klein, 133 Ark. 366, 201 S.W. 801 (1918).

An affidavit made by claimant's bookkeeper is sufficient. Georgia State Sav. Ass'n v. Marrs, 178 Ark. 18, 9 S.W.2d 785 (1928).

Nothing requires a materialman to file an itemized account of the demand due; there is substantial compliance if the total is provided and the invoices introduced in evidence at trial. John E. Bryant & Sons Lumber Co. v. Moore, 264 Ark. 666, 573 S.W.2d 632 (1978).

Description of Property.

The claim for a lien filed must describe some particular tract or acre of land on which the building is situated, or the particular building or buildings upon which it is sought to establish a lien. Arkmo Lumber Co. v. Cantrell, 159 Ark. 445, 252 S.W. 901 (1923).

Incorrect description did not invalidate the lien, since it was not misleading. Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S.W. 353 (1924).

A verified claim and account is sufficient if it describes the premises so that a person of ordinary understanding can identify them and the structure into which the materials were placed can be found and identified. Brown v. Turnage Hdwe. Co., 181 Ark. 606, 26 S.W.2d 1114 (1930).

Affidavits for a materialman's lien describing the property as a building situated on a certain block were sufficient. Geisreiter v. Standard Lumber Co., 187 Ark. 893, 63 S.W.2d 347 (1933).

It is sufficient, if property to be charged is described with sufficient certainty so that land can be reasonably identified. In re Taylor Oak Flooring Co., 87 F. Supp. 6 (W.D. Ark. 1949).

Holders of mechanics' liens were held to have preferred claims in bankruptcy, where statements of liens recorded designated property to be charged as property of the bankrupt, though descriptions of lot numbers were not included in the statements, as property of bankrupt was located in one section of the town known to everyone in the town. In re Taylor Oak Flooring Co., 87 F. Supp. 6 (W.D. Ark. 1949).

Where description filed with account did not properly describe the land intended to be affected, a lien is not perfected. Speights v. Arkansas Sav. & Loan Ass'n, 239 Ark. 587, 393 S.W.2d 228 (1965).

The description need not be in any particular form; the essential requirement is that the land or building be designated in such language as will afford information concerning the situation of the property to be charged with the lien. Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987).

Extrinsic evidence may be used to show that the description is adequate. Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987).

Description of property held insufficient. Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987).

The property description must be sufficient to enable anyone familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others. Westside Galvanizing Servs., Inc. v. Georgia-Pacific Corp., 724 F. Supp. 644 (W.D. Ark. 1989), aff'd, 921 F.2d 735 (8th Cir. 1990).

Description was sufficient to enable a person with a reasonable amount of extrinsic evidence to locate the improvement in question, where description directed reader to mailbox located within eyesight of improvement, which layperson would be able to locate more easily and with less reference to extrinsic evidence than if the correct legal description were used, improvement was largest metal building in the locality, was the only property owned by the debtor in that area, and the only piece of property which reasonably answered the description provided. In re Horton Vaults, Inc., 109 B.R. 356 (Bankr. E.D. Ark. 1989).

Exceptions.

There are two exceptions to this section, one, where the items were furnished under a definite contract between the parties, and the other where the items were furnished under a “running” or open account without a specific contract, but under a reasonable assumption that further material would be furnished. Streuli v. Wallin-Dickey & Rich Lumber Co., 227 Ark. 885, 302 S.W.2d 522 (1957).

—Open Account.

The fact that material furnished during the required statutory period preceding the filing of the lien was not used in constructing the defendant's home did not preclude the enforcement of a materialman's lien for the entire account where all the material was furnished under a continuous account and was used to improve the land. McCann v. Dyke, 187 Ark. 507, 60 S.W.2d 918 (1933).

Where there was no evidence to show that improvements made several months later than original ones were contemplated at the time of the original purchases, the materialman filing his lien within the statutory period after the last purchase obtained a lien only for that purchase, not for the previous purchases. Streuli v. Wallin-Dickey & Rich Lumber Co., 227 Ark. 885, 302 S.W.2d 522 (1957).

Miner's Liens.

Claimant seeking to impress lien under § 18-44-202 must show he filed the affidavit provided by this section within the statutory period after the work was “in good faith performed” as provided by § 18-44-208. Smith v. Grandbush, 233 Ark. 806, 348 S.W.2d 880 (1961).

Necessary Parties.

Where a construction company filed an action to enforce a mechanic's lien against the landowner and the general contractor on the 114th day after the completion of the construction company's work, but the construction company did not join the subcontractor as a party defendant until the 123rd day, and the construction company admitted that its contract of employment was only with the subcontractor, the trial court properly dismissed the action for failure to join a necessary party, the subcontractor, within the time allowed. Cline v. B.G. Coney Co., 289 Ark. 417, 711 S.W.2d 815 (1986).

Place of Filing.

Where the notice of a claim against real estate was given in the county where the property was located but the claim itself was filed in a different county, such filing was not in compliance with this section and the land could not be sold to satisfy the claim. Cone v. Jurczyk, 261 Ark. 251, 547 S.W.2d 108 (1977).

Pleading.

Where the complaint alleged a compliance with this section, and the allegation was not denied in the answer, compliance was confessed although the evidence did not show notice of intention to file as required by this section and § 18-44-114. Jones v. J.C. Stephenson Lumber Co., 149 Ark. 670, 234 S.W. 263 (1921).

Complaint for materialman's lien which alleged that the last item had been furnished within statutory period before claim was filed was sufficient to state a cause of action. Phelps-Powell Bldg. Supply Co. v. Silver Dollar Homes, Inc., 241 Ark. 425, 407 S.W.2d 925 (1966).

Relation Back.

When lien was filed, it related back to the time of supplying the machinery, and was superior to intervening encumbrances. White v. Chaffin, 32 Ark. 59 (1877) (decision under prior law).

Workman's mechanic's lien filed in time would be superior to intervening encumbrances and conveyances since the filing of the lien relates back to the time of the work. Franks v. Wood, 217 Ark. 10, 228 S.W.2d 480 (1950).

Mortgagee did not defeat the priority of liens of subsequent materialmen who furnished materials after the recording of the construction money mortgage by paying materialman who furnished materials prior to the recording of the mortgage, since the liens of the subsequent materialmen related back to commencement of construction of the home and were on an equality with that of the first materialman. Planters Lumber Co. v. Jack Collier E. Co., 234 Ark. 1091, 356 S.W.2d 631 (1962).

A lien relates back to the commencement of the construction when the lienor's account is filed with the circuit clerk as required by this section, but the filing of the account is essential to the perfection of the lien and its continued existence after the expiration of the statutory period allowed for filing, and in the absence of substantial compliance with this section the lien would become void and unenforceable when the statutory period for filing the lien expires. Wiggins v. Searcy Fed. Sav. & Loan Ass'n, 253 Ark. 407, 486 S.W.2d 900 (1972).

When the materialman claiming a lien files his account with the circuit clerk, his lien dates back to the commencement of the building and is superior to any lien on the property that may have been placed there subsequent to the commencement of the building, and in order for a construction money mortgage to have priority, it must have been executed before the commencement of the building. Bank of Cave City v. Hill, 266 Ark. 727, 587 S.W.2d 833 (1979).

A suit under the materialman's lien law must be based upon an account properly filed in the circuit clerk's office and be brought to enforce the lien established by that filing; such a suit relates back to the furnishing of the material. Lowe's of Ark., Inc. v. Bush, 282 Ark. 508, 669 S.W.2d 198 (1984).

Although a materialman's lien was considered to relate back to the date on which the particular material was furnished, a materials supplier that filed a materialman's lien on property after a bank had filed a foreclosure complaint and a lis pendens on the same property was subject to the lis pendens because the supplier did not obtain an interest in the property prior to the filing of the lis pendens. Nat'l Home Ctrs., Inc. v. Coleman, 373 Ark. 246, 283 S.W.3d 218 (2008).

Time for Filing.

If materials were furnished under one contract, the account should have been filed within statutory period after the last item was delivered; but if they were furnished under separate contracts, the account should have been filed under each contract within the time allowed. Kizer Lumber Co. v. Mosely, 56 Ark. 544, 20 S.W. 409 (1892) (decision under prior law); American Tank Co. v. Continental & Commercial Trust & Sav. Bank, 3 F.2d 122 (8th Cir. 1924).

Where items of an account on which a mechanic's lien was sought were furnished from time to time under a single contract, it was sufficient if the claim was filed within the statutory period after the last item was furnished. Hill v. Imboden, 146 Ark. 99, 225 S.W. 330 (1920); Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S.W. 353 (1924); Whitener v. Purifoy, 177 Ark. 39, 5 S.W.2d 724 (1928).

Filing held timely. Standard Lumber Co. v. Wilson, 173 Ark. 1024, 296 S.W. 27 (1927).

Filing held untimely. Smith v. Grandbush, 233 Ark. 806, 348 S.W.2d 880 (1961).

Recalibration of equipment amounted to an adjustment of equipment already installed and did not extend the period for filing materialmen's lien account beyond the date of last delivery nor for work done beyond the date of actual installation. Arkansas La. Gas Co. v. Moffitt, 245 Ark. 992, 436 S.W.2d 91 (1969).

Trial court did not err in granting contractor's motion to dismiss subcontractor's action, based on a forum selection clause, and in dismissing subcontractor's unjust enrichment claim against property developer because subcontractor's lien was untimely under the 120-day time limit provided in this section and, thus, the lien was not perfected and the complaint could not have been an in rem action; further, once the contractor posted a bond pursuant to § 18-44-118, the lien had been discharged. Servewell Plumbing, LLC v. Summit Contrs., Inc., 362 Ark. 598, 210 S.W.3d 101 (2005).

Materialman's lien on barges was not untimely under subdivision (a)(1) of this section, as a shipment of steel made within the 120-day period was properly found to have been furnished on the barge builder's existing credit account; the district court credited testimony showing that the final delivery was not a one-time, prepaid shipment. Falcon Steel, Inc. v. J. Russell Flowers, Inc., 635 F.3d 369 (8th Cir. 2011).

Cited: Doke v. Benton County Lumber Co., 114 Ark. 1, 169 S.W. 327 (1914); Young Men's Bldg. Ass'n v. Ware, 158 Ark. 137, 249 S.W. 545 (1923); Robins v. East Arkansas Builders Supply Co., 199 Ark. 1174, 199 Ark. 1174, 137 S.W.2d 924 (1940); Wyatt Lumber & Supply Co. v. Hansen, 201 Ark. 534, 147 S.W.2d 366 (1940); Terrell v. Loomis, 218 Ark. 296, 235 S.W.2d 961 (1951); Lyman Lamb Co. v. Union Bank, 237 Ark. 629, 374 S.W.2d 820 (1964); Stone Mill & Lumber Co. v. Finsterwalder, 249 Ark. 363, 459 S.W.2d 117 (1970); South Cent. Dist. of Pentecostal Church of God of Am., Inc. v. Bruce-Rogers Co., 269 Ark. 130, 599 S.W.2d 702 (1980); John E. Bryant & Sons Lumber Co. v. Moore, 270 Ark. 933, 606 S.W.2d 617 (1980); Calton Properties, Inc. v. Ken's Disct. Bldg. Materials, Inc., 282 Ark. 521, 669 S.W.2d 469 (1984); American Nat'l Bank v. Dux, 286 Ark. 309, 691 S.W.2d 851 (1985); Ellison v. Tubb, 295 Ark. 312, 749 S.W.2d 650 (1988); Buckman v. Gay, 27 Ark. App. 184, 768 S.W.2d 547 (1989); Westside Galvanizing Services, Inc. v. Georgia-Pacific Corp., 921 F.2d 735 (8th Cir. 1990); Hall Contr. Corp. v. Entergy Servs., 309 F.3d 468 (8th Cir. 2002).