The opinion
Sam Bird, Judge, concurring. I concur in the court’s decision that, because no notice was provided to appellant as required by Ark. Code Ann. § 18-44-115 , Jim Atkinson Tile did not acquire a valid materialman’s Hen on the Bryant’s property. I write separately, however, to express my concern that, if neither the general contractor nor the first supplier of materials or fixtures on a project provides a valid section-115 notice, the statute appears to make it impossible for any subsequent supplier of materials or fixtures to acquire a materialman’s Hen, regardless of the subsequent supplier’s diligence.
Arkansas Code Annotated section 18-44-115(b)(1)(A) puts the burden for providing the notice on the contractor, but allows “any potential lien claimant” to also give notice, presumably to provide a means by which a potential lien claimant can avail himself of the benefits of the statute where the general contractor has not given the required notice. Ark. Code Ann. § 18-44-115 (b)(1)(B). However, the effect of this statute appears to be to foreclose the ability of a subcontractor who supplies materials or fixtures after the commencement of construction on the project to protect himself by providing his own section-115 notice, as this notice would not have been given “prior to the supplying of any materials or fixtures.” See Ark. Code Ann. § 18-44-115 (b)(1)(A). I question whether this was the intent of the legislature when it adopted the section-115 notice requirement in 1979, and I would encourage the General Assembly to clarify the intent of Ark. Code Ann. § 18-44-115 (b)(l)(B) to prevent further confusion in this area.