# Bryant v. Jim Atkinson Tile

> Court of Appeals of Arkansas · December 5, 2007 · 100 Ark. App. 408

URL: https://www.frixlaw.com/law-library/cases/9677386

## Case

- **Full name:** James BRYANT v. JIM ATKINSON TILE
- **Court:** Court of Appeals of Arkansas
- **Decided:** December 5, 2007
- **Citations:** 100 Ark. App. 408; 269 S.W.3d 383; 2007 Ark. App. LEXIS 844
- **Precedential status:** Published
- **Opinion:** Concurrence by Bird
- **Judges:** Sarah Heffley
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9677386

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9677386. Public record. Not legal advice.