Books-a-Million et al v. Ar Painting & Specialties

• Decision Date: 24 February 2000
• Docket Number: 99-1071
• Citation: 10 S.W.3d 857
• Parties: United States Fidelity and Guaranty Company; and Cockerham Construction Company v. ARKANSAS PAINTING and SPECIALTIES COMPANY 99-1071 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

BOOKS-A-MILLION, INC.; United States Fidelity and Guaranty Company; and Cockerham Construction Company v ARKANSAS PAINTING and SPECIALTIES COMPANY

99-1071 ___ S.W.3d ___

Opinion delivered February 24, 2000

Supreme Court of Arkansas

Appeal from White Circuit Court; William Pickens Mills, Judge; reversed and remanded.

1. Appeal & error -- case tried by circuit court -- inquiry on appeal. -- When a case is tried by a circuit court sitting without a jury, the inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence.

2. Appeal & error -- findings of fact -- when clearly erroneous. -- A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.

3. Appeal & error -- findings of fact -- appellate review. -- In reviewing the findings of fact by a trial court, the appellate court considers the evidence and all reasonable inferences therefrom in a light most favorable to the appellee.

4. Statutes -- statute in derogation of common law strictly construed --legislative power to alter common law. -- Any statute in derogation of the common law will be strictly construed; although the General Assembly has the power to alter the common law, a legislative act will not be construed as overruling a principle of common law unless it is made plain by the act that such a change in the established law is intended.

5. Statutes -- construction -- legislature presumed to know decisions of supreme court. -- The legislature is presumed to know the decisions of the supreme court; it will not be presumed in construing a statute that the legislature intended to require the court to pass again upon a subject where its intent is not expressed in unmistakable language.

6. Statutes -- construction -- lien statutes construed strictly. -- Lien statutes are in derogation of the common law, and the supreme court construes them strictly because they provide an extraordinary remedy that is not available to every merchant or worker.

7. Liens -- notice requirements -- for benefit of owner. -- Lien notice requirements are for the benefit and protection of the owner.

8. Liens -- notice requirements -- appellee did not comply -- reversed & remanded. -- The supreme court held that appellee did not send the notice required by Ark. Code Ann. § 18-44-115 (Supp. 1999) within the time and in the manner specified by the statute; reversed and remanded.

Eichenbaum, Liles & Heister, P.A., by: Peter B. Heister; and Slagle & Gist, by: Richard L. Slagle, for appellants.

Kemp, Duckett, Spradley, Curry & Arnold, by: James M. Duckett, for appellee.

Lavenski R. Smith, Justice.

Appellants, Books-A-Million, Inc. ("Books"), United States Fidelity and Guaranty Company ("USF&G") and Robert P. Cockerham d/b/a Cockerham Construction Co. ("Cockerham"), appeal a judgment of the White County Circuit Court awarding damages, prejudgment interest, costs, and attorney's fees to Arkansas Painting and Specialties Co. ("Arkansas Painting"). The judgment followed the court's finding that Arkansas Painting had created a valid lien against the subject real property in compliance with Ark. Code Ann. §§ 18-44-101--18-44-508. The Circuit Court ordered the judgment paid from USF&G's lien release bond filed with the Clerk of the Court. Appellants contend that the trial court erred in enforcing the lien because the appellee did not comply with the statutory notice requirements under Ark. Code Ann. § 18-44-115 (Supp.1999). We agree and reverse.

Facts

In 1996, Books renovated its retail store in Searcy. Cockerham, apparently acting as general contractor, contracted with Arkansas Painting for painting, sheetrock, and wallpapering work. Books leased the premises from Stewart Development Company and S-P Properties, of Huntington Beach, California. On December 4, 1996, Arkansas Painting completed its last day of work on the Books job. Cockerham did not pay for the services and materials. Arkansas Painting sent letters to Books and Cockerham on February 12, 1997, requesting payment and warning that if payment was not received in ten days that lien proceedings would commence. On March 14, 1997, Arkansas Painting sent Lien Notices to the owners and Cockerham, but not to Books. On March 28, 1997, Arkansas Painting filed the lien pursuant to Ark. Code Ann. § 18-44-101 (Supp. 1999), seeking payment of its contract price, fees, and costs. On April 3, 1997, Arkansas Painting sent Notice of Filing of Lien to the owners and to Cockerham, but not to Books. USF&G became involved by providing a bond to obtain release of the lien on behalf of Books, as provided under Ark. Code Ann. § 18-44-118, on June 9, 1997. On August 1, 1997, Arkansas Painting filed the instant action.

Following discovery, Books and USF&G filed a Motion for Summary Judgment on March 5, 1998, asserting one issue - failure to give adequate notice to perfect the lien. At the hearing on the motion, the trial court disposed of the case on agreed facts and determined that adequate notice was given. The court issued Findings of Law and Fact wherein it found the notice adequate and the lien therefore valid.

Standard for Review

The court tried the case below on agreed facts. When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Springdale Winnelson Co. v. Rakes, 337 Ark. 154, 987 S.W.2d 690 (1999); Arkansas Dep't of Human Servs. v. Spears, 311 Ark. 96, 841 S.W.2d 624 (1992). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Wade v. Arkansas Dept. Of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). In reviewing the findings of fact by a trial court, we consider the evidence and all reasonable inferences therefrom in a light most favorable to the appellee. Jernigan v. Cash, 298 Ark. 347, 767 S.W.2d 517 (1989); Womack v. Foster, 340 Ark. 124, ___ S.W.3d ___ (2000).

Statutes in Derogation of the Common Law

The crucial issue before us is the construction to be given Arkansas lien statutes. In particular, whether the notice provisions of Ark. Code Ann. § 18-44-115 are to be strictly construed, thus requiring strict compliance, or whether they can be satisfied by substantial compliance. We hold that strict compliance is necessary. Any statute in derogation of the common law will be strictly construed. Although the General Assembly has the power to alter the common law, a legislative act will not be construed as overruling a principle of common law unless it is made plain by the act that such a change in the established law is intended. Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999).

It has long been held that mechanic's liens are in derogation of the common law. The material men's lien and the construction money mortgage lien are in derogation of common law. Both are creatures of the legislature. The legislature is presumed to know the decisions of the supreme court, and it will not be presumed in construing a statute that the legislature intended to require the court to pass again upon a subject where its intent is not expressed in unmistakable language. Rhodes v. Cannon, 112 Ark. 6, 164 S.W. 752 (1914); Spickes Bros. Paint Cont. v. Worthen Bank & Trust Co., 299 Ark. 79, 771 S.W.2d 258 (1989). In Valley Metal Works, Inc. v. A.O. Smith-Inland, 264 Ark. 341, 572 S.W.2d 138 (1978), we stated, "Our lien statutes are in derogation of the common law and we construe them strictly since they provide an extraordinary remedy that is not available to every merchant or worker." See also, Christy v. Nabholz Supply Co., 261 Ark. 127, 546 S.W.2d 425 (1977); Dews v. Halliburton Industries, Inc., 288 Ark. 532, 708 S.W.2d 67(1986); National Lumber Co. v. Advance Development Corp., 293 Ark....