Denney v. Denney , 464 S.W.3d 920 ( 2015 )

Cite as 2015 Ark. 257
SUPREME COURT OF ARKANSAS
No. CV-14-684
BOBBY DENNEY Opinion Delivered June 4, 2015
APPELLANT
APPEAL FROM THE GRANT
V. COUNTY CIRCUIT COURT
[NO. 27-CV-2013-83-2]
JUSTIN DENNEY AND
PEOPLES BANK HONORABLE EDDY R. EASLEY,
APPELLEES JUDGE
APPEAL DISMISSED.
RHONDA K. WOOD, Associate Justice
Appellant Bobby Denney filed an interlocutory appeal challenging the circuit
court’s order denying his motion for summary judgment and sustaining a lien on his
property. Because this is not a proper interlocutory appeal and the judgment is not a final
order, we must dismiss the appeal.
I. Facts and Procedural Background
Bobby Denney entered into a contract with Justin Denney and his company,
Denney Construction, for the construction of a new home. In this contract, Justin was
identified as the “Contractor.” Justin began purchasing the materials to build the house
and arranging the services of other tradesmen that would be necessary for its construction.
At some point after beginning the project, the parties had a disagreement about the trusses
that were to be used in framing the building, and Bobby insisted that Justin cease all work
and leave the construction site.
Cite as 2015 Ark. 257
Justin thereafter served Bobby with the statutory notice outlined in Arkansas Code
Annotated § 18-44-115(a)(7) (Supp. 2013), describing the lien on property that arises in
favor of contractors, subcontractors, suppliers, and other materialmen if they are not
compensated for their work. Justin next filed a document entitled “Laborer’s, Mechanic’s
or Materialman’s Lien” in which he claimed entitlement to $25,821.73 for his labor and
services, as well as other labor and materials that he had arranged and for which he had
already paid. Justin then filed the present suit that serves as the genesis of this appeal, in
which he prayed for judgment in the same amount and requested that his lien be given
priority over Peoples Bank, which had provided financing for the construction project.
Bobby moved to dismiss the suit for failure to state a claim, arguing that Justin had
failed to serve him with the notice concerning potential liens that is required to be
provided by contractors before the commencement of work, and, therefore, Justin was
entitled to neither a lien nor any other type of recovery. See Ark. Code Ann. § 18-44-
115(a)(3)–(4). Justin resisted the motion by asserting that he was merely acting as a
subcontractor, that he was engaged in a direct sale under Arkansas Code Annotated § 18-
44-115(a)(8), and that the statute’s notice requirements did not apply. At the hearing on
the motion to dismiss, the circuit court accepted testimony from three witnesses, including
Bobby Denney and Justin Denney. Accordingly, the motion to dismiss was treated as a
motion for summary judgment under Arkansas Rule of Civil Procedure 12(b).
After listening to the testimony, the circuit court denied the motion for summary
judgment, finding that there were material issues of fact yet to be determined. The order
also recites that “the Court sustains the lien attached to [Bobby Denney’s] property.”
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Bobby then filed this interlocutory appeal and requested transfer of the case to this court,
citing the need for clarification or development of the law regarding the direct-sales
provision codified at Arkansas Code Annotated § 18-44-115(a)(8). The request for transfer
was granted, and both parties now urge this court to interpret the lien statutes and render
a ruling on the merits of the arguments presented.
II. Jurisdiction
Even though none of the parties address it, the court has a duty to be certain it has
jurisdiction, even if the parties do not raise the issue. Smith v. Smith, 337 Ark. 583, 990
S.W.2d 550 (1999). In this case, Bobby filed his interlocutory appeal alleging jurisdiction
pursuant to Arkansas Rule of Appellate Procedure–Civil 2(a)(5), which provides that an
appeal may be taken from an order which vacates or sustains an attachment or
garnishment. The court’s order temporarily sustained a mechanics’ and materialmen’s lien,
not an attachment within the meaning of this rule.
An attachment is “[a] writ ordering legal seizure of property (esp[ecially] to satisfy a
creditor’s claim) or of a person.” Black’s Law Dictionary 152 (10th ed. 2014). Our statutes
outline the circumstances and procedures by which a party can obtain a writ of
attachment. See generally Ark. Code Ann. §§ 16-110-101 et seq. (Repl. 2006 & Supp.
2013). None of the grounds for issuing the writ are present in this case, and Justin did not
seek out a writ of attachment pursuant to those statutes; rather, he attempted to obtain a
lien through the mechanics’ and materialmen’s lien statutes. The circuit court
preliminarily sustained the mechanics’ and materialmen’s lien in this case, and its use of the
word “attached” in the order was serving as a postpositive adjective modifying the noun
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“lien.” See Bryan A. Garner, Garner’s Modern American Usage 648 (3d ed., Oxford
University Press 2009). As used in the court’s order, the word “attached” is completely
unrelated to the noun “attachment,” which is described in our Rules of Appellate
Procedure and Arkansas Code Annotated §§ 16-110-101 et seq. Accordingly, there is no
attachment subject to a proper interlocutory appeal at issue in this case within the meaning
of Rule 2(a)(5).
We have explained that Rule 2 of the Arkansas Rules of Appellate Procedure–Civil
requires that a judgment or decree be final in order for it to be appealable, with limited
exceptions, and the purpose of this rule is to avoid piecemeal litigation. Advanced Envtl.
Recycling Techs., Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286, 275 S.W.3d 162
(2008). As explained above, this case does not fit into one of the limited exceptions that
would make this a proper interlocutory appeal under our rules. The parties also do not
allege that the order appealed from is a final order, as we have clearly held that the denial
of summary judgment is not a final order from which an appeal may be taken. Med. &
Dental Credit Bureau, Inc. v. Lake Hamilton Bible Camp & Conference Grounds, 291 Ark. 353,
724 S.W.2d 477 (1987). Because the present appeal does not involve a final order and it is
not one of the other types of permissive interlocutory appeals outlined in Rule 2, we
conclude that it is an unauthorized interlocutory appeal. When an appellant pursues an
unauthorized interlocutory appeal, the appeal will be dismissed. Haile v. Ark. Power & Light
Co., 322 Ark. 29, 907 S.W.2d 122 (1995).
Appeal dismissed.
The Henry Firm, P.A., by: Matthew Henry, for appellant.
Walthall Law Firm, P.A., by: G. Christopher Walthall, for appellee.
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