# Ellison v. Tubb

> Supreme Court of Arkansas · May 2, 1988 · 295 Ark. 312

URL: https://www.frixlaw.com/law-library/cases/9779415

## Case

- **Full name:** Aubrey ELLISON D/B/A Ellison Refrigeration v. Bobby TUBB, Samuel A. Millican, Debra D. Millican and First National Bank of Magnolia
- **Court:** Supreme Court of Arkansas
- **Decided:** May 2, 1988
- **Citations:** 295 Ark. 312; 749 S.W.2d 650; 1988 Ark. LEXIS 211
- **Precedential status:** Published
- **Opinion:** Concurrence by Newbern
- **Judges:** Dudley, Newbern
- **Cited by:** 14 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/9779415

## How later opinions describe it (automated extraction)

- noting that a contract "is severable, when, in its nature and purpose, it is susceptible of divisions and apportionment, and has two or more parts in respect to -5- matters or things contemplated and embraced by the contract which are not necessarily dependent upon each other"…

## Opinion text

David Newbern, Justice, concurring. The majority opinion is correct in stating that the failure to comply with the notice requirement of Act 746 of 1979 had no effect on Mr. Ellison’s rights established in his contract with Mr. Tubb. There was no need for the trial court to consider whether the contract was severable, and thus there is no need for us to consider it. The issue the appellant should have addressed is whether any constitutional provision or other law prevents the notice requirement from taking effect with respect to materials furnished on a job begun before the law went into effect. To the extent Ellison may have a lien, it is created by statute and not by his contract with Tubb.
The basis of the materialman’s lien claim is Ark. Code Ann. § 18-44-101 (a) (1987). I find nothing in that statute indicating that a lien which may accrue at the beginning of any particular job, contract, or project, is “unseverable.” In pertinent part the statute provides, “Every . . . person . . . who shall. . . furnish any material. . .for any building . . . under any . . . contract with the owner . . . or his . . . contractor . . . upon complying with the provisions of this subchapter, shall have, for his . . . materials . . . furnished, a lien upon the building . . . and upon the land belonging to the owner. . . .” The “provisions of this subchapter” were changed by Act 746, now codified at Ark. Code Ann. § 18-44-115 (a) (1987), and thus, in my view, compliance with that section was necessary with respect to “any material” furnished after it became the law.
I fully concur in the result reached by the majority opinion, but I would delete the discussions of the singleness of the contract and impairment of contract, as I find them unnecessary.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9779415. Public record. Not legal advice.