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Construction, Priority of Liens, and Bonding Requirements

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Presentation on theme: "Construction, Priority of Liens, and Bonding Requirements"— Presentation transcript:

1 Construction, Priority of Liens, and Bonding Requirements
Arkansas Land Title Association 2012

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4 18-44-101. Liens on buildings, land, or boats.
(a) Every contractor, subcontractor, or material supplier as defined in § who supplies labor, services, material, fixtures, engines, boilers, or machinery in the construction or repair of an improvement to real estate, or any boat or vessel of any kind, by virtue of a contract with the owner, proprietor, contractor, or subcontractor, or agent thereof, upon complying with the provisions of this subchapter, shall have, to secure payment, a lien upon the improvement and on up to one (1) acre of land upon which the improvement is situated, or to the extent of any number of acres of land upon which work has been done or improvements erected or repaired. (b) If the improvement is to any boat or vessel, then the lien shall be upon the boat or vessel to secure the payment for labor done or materials, fixtures, engines, boilers, or machinery furnished.

5 What is the time frame for filing a cliam of lien?
Lien claimants must file a lien (Statement of Account and Claim of Lien) account with the circuit clerk within 120 days of the last substantial work or material provided.

6 Does Arkansas law require any notice or filing prior to the performance of the work?
Yes, clearly for “residential” property a Pre-Construction Notice to Owner must be provided to the property owner before performance of work. The contractor is obligated to provide the notice. The penalty for a residential contractor’s failure to do so is severe – the residential contractor is barred from bring an action either at law or in equity to enforce any provision of a residential contract. Further, a prudent subcontractor or material supplier should likewise provide a Pre-Construction Notice to Owner. There is no requirement under the Law for any filing with a clerk or court before construction.

7 What is the deadline for filing suit to initiate a lien foreclosure action?
Lien claimants must enforce the lien by filing a foreclosure suit within 15 months of filing the lien.

8 Does the Arkansas law impose mandatory notice requirements?
Yes, Arkansas has very specific notice and filing requirements depending on whether the project is residential or commercial. A Pre-Construction Notice to Owner must be provided on residential property, either by the residential contractor or a lien claimant, and then the lien compliant must serve notice on the owners (Notice of Intent to file a lien) 10 days before filing a lien. Lien claimants on commercial projects must provide Notice to Owner and Contractor within 75 days of the last work or material provided. Then, lien claimants on commercial projects must serve notice on the owners Notice of Intent to File a Lien) 10 days before filing a lien.

9 When is a contractor or supplier deemed to have last performed work or furnished material so as to trigger the start of the lien filing period? A contractor or supplier is deemed to have last performed work on the last day substantial work or labor was actually done. Physical presence on the jobsite without performing actual work on the project does not constitute work or labor done. As to furnished material, the lien filing period begins to run on the day the last item was actually furnished. However, the Arkansas Supreme Court has held that performance of labor of a trivial character, such as an adjustment of equipment already installed, not expressly provided for by the contract and after the contract has been substantially performed, will not ordinarily extend the time for filing a lien beyond the date of last delivery or for work done beyond the date of actual installation.

10 Does Arkansas law provide a procedure for bonding or otherwise removing the claim of lien?
Yes, any person wanting to contest a lien may file a bond equal to the amount of the lien with the circuit clerk with whom the lien is filed. The party claiming the lien must contest the bond within 3 days, or the lien will be discharged

11 What construction project participants are protected by the lien law?
Arkansas lien law protects most construction project participants, including contractors, subcontractors, material suppliers, architects, engineers, surveyors, appraisers, abstractors, title insurance agents, and landscapers. Providers of equipment, e.g., equipment rental providers, are not specifically covered by the law.

12 What costs or damages are typically not allowed in a lien claim?
Arkansas allows for broad recover, including the indebtedness, along with interest, and costs. The successful party may be entitled to attorneys’ fees.

13 Is there a difference between on-site and off-site work?
There are separate statutes governing surveyors, title insurance and architects' liens. A.C.A. § provides that an engineering or surveyor's lien does not attach to the land, building, erection or improvement upon land unless and until the lien is duly filed of record with the circuit clerk and recorder of the county in which the land, building, erection, or improvement is located. The recorded lien will be enforced in the same manner as a mechanic's or contractor's liens. Is priority the same for all contractors and subcontractors on the same project? Yes. A.C.A. § What is the time period for recording lien claims by original contractors and subcontractors? A.C.A. § provides that a lien must be filed 120 days after the things specified in this subchapter shall have been furnished or the work or labor done or performed. After what period of time can you waive a mechanics' liens if no suit is filed? A.C.A. § provides that all actions under this subchapter shall be commenced within 15 months after filing the lien and prosecuted without unnecessary delay to final judgment. No lien shall continue to exist by virtue of the provisions of this subchapter for more than 15 months after the lien is filed.

14 Is there a statutory procedure for affidavits of completion or notices of completion?
Can a statutory bond terminate the mechanics' liens as an encumbrance on the title? Yes. A.C.A. § (b). Can the original, general, or subcontractor's contract or waiver agreement subordinate or waive mechanics' liens by general contractor and/or subcontractors? Whether this is contractually sound has never been ruled upon in Arkansas. There is no statutory authority. Can a bona fide purchaser or bona fide lender take free of mechanics' liens later filed for earlier work?

15 Mechanics' Liens Can the Construction Loan Mortgage have initial priority over mechanics' liens? Generally, construction mortgages will have priority over mechanics' and materialman liens provided the construction mortgage was filed prior to commencement of work and provided that any advances made for the purposes of purchasing the land is adequately disclosed on the face of the mortgage. Also, the construction loan mortgage must contain language that advances are obligatory and not optional on the part of the lender. A.C.A. § Will initial priority as to future disbursements be retained only if certain procedures are followed? No information is available at this time. If priority is lost, can it be regained? No.

16 MAY CONST. CO., INC. v. TOWN CREEK CONST. & DEVL., LLC, 2011 Ark. 281
The issue was commencement of the project. Prior to the mortgage the contractor had equipment on the property but had agreed not to “turn any dirt.” The contract set commencement with a ‘Notice to Proceed’ and the parties exchanged s and other assurances that they intended not to start before the mortgage was filed. The trial court found that all the parties intended not to start before the mortgage and ruled the lien 2nd. The appeals court ruled that the subjective intent not to start did not trump the statute and remanded the case for a proper finding. MAY CONST. CO., INC. v. TOWN CREEK CONST. & DEVL., LLC, 2011 Ark. 281 MAY CONSTRUCTION COMPANY, INC., Appellant v. TOWN CREEK CONSTRUCTION & DEVELOPMENT, LLC; Chambers Bank of North Arkansas; and Ohio Casualty Insurance Company, Appellees Supreme Court of Arkansas. Opinion Delivered June 23, 2011 Appeal from the Washington County Circuit Court, [No. CIV ], Hon. Mary Ann Gunn, Judge, Reversed and Remanded on Direct Appeal; Affirmed on Cross-Appeal. COURTNEY HUDSON HENRY, Associate Justice May Construction Company ("May") appeals from a Washington County Circuit Court order declaring a lien on real property, owned by Town Creek Construction & Development, LLC ("Town Creek"), subordinate to a mortgage filed by Chambers Bank of North Arkansas ("Chambers") and unenforceable against a lien bond issued by Ohio Casualty Insurance Company ("Ohio Casualty") . For reversal, May argues that the circuit court erred in interpreting the materialmen's lien statute, ruling that construction commenced after the execution of Chambers's mortgage, and finding that May could not recover against the lien bond. Town Creek cross-appeals, arguing that the circuit court erred in ruling that May was entitled to a lien in the amount of $353, Because this appeal presents issues of first Page 2 impression and statutory interpretation, we have jurisdiction pursuant to Arkansas Supreme Court Rule 1-2 (b) . We reverse and remand the direct appeal, and we affirm the cross-appeal. I. Facts Town Creek owned the Aspen Ridge property ("the property"), a twenty-nine-acre project consisting of mixed residential and commercial development in Fayetteville. On June 2, 2005, Town Creek hired May as a general contractor and entered into a written cost-plus contract with May to construct improvements on the property not to exceed $3,900,000. The contract contained an arbitration clause. To finance the project, Town Creek obtained a loan from Chambers that was secured by a mortgage of Phases I and II of the residential portions of the property and a certificate of deposit valued at $150,000. However, Town Creek did not mortgage Phase III, the commercial portion of the property. The loan totaled $6,385, ("$6.385 million"). The facts are in dispute as to when May began construction on the property. After a preconstruction meeting on June 16, 2005, Mike Gilbert, May's senior vice-president, and Hal Forsyth, president of Town Creek, exchanged various s concerning the date that construction would begin. In an dated June 30, 2005, Gilbert wrote to Forsyth, stating, "Hal we are permitted and inspected and plan to be ready to go on Tuesday. We will NOT commence without your authorization." On that same day, Forsyth wrote, "Mike, we are okay to mobilize equipment [on Phase III, which was not the subject of the lien] on the site. The only thing for sure we can't do is to turn any dirt." Forsyth also sent an to Justin Page 3 Salter at Chambers, which stated, "I was just checking in to see if you had finalized our loan for Aspen Ridge, so I could have May Construction get things started." On July 13, 2005, Town Creek executed the mortgage encumbering the property, and on July 20, 2005, the mortgage was recorded in Washington County. Over the next year, May worked on the project primarily through its subcontractor, Vernaci Construction Company ("Vernaci Construction") . During the course of the project, disputes arose between the parties involving unanticipated delays, change orders, and unpaid subcontractors. As a result, in August 2006, Town Creek terminated its contract with May. Subsequently, on September 26, 2006, May recorded a materialmen's lien against Town Creek's property. Vernaci Construction filed suit in Washington County Circuit Court against May, Town Creek, Chambers, and several other contractors and suppliers, which led to a number of cross-claims, counterclaims, and third-party claims. Among them, May sought money due from Town Creek under the construction contract. Town Creek defaulted on its loan to Chambers, leading Chambers to seek foreclosure on the property. May's contract claim against Town Creek went to arbitration, and the circuit court stayed the remainder of the lawsuit pending the outcome of the arbitration. On September 4, 2007, the arbitrator awarded May $393, plus $35,000 in attorney's fees for a total amount of $428, but did not address the issue of entitlement and priority of the liens. May returned to circuit court, seeking confirmation of the arbitration award, foreclosure on its lien, and a declaration that its lien was superior to all others. Town Creek later deeded the Page 4 property to Chambers in lieu of foreclosure and secured a lien bond to release the property from the encumbrance of May's lien. Ohio Casualty, as surety, issued a materialmen's lien bond in the penal sum of $800,000, naming Town Creek as principal and May as obligee. In late May 2008, the circuit court conducted a three-day bench trial and later issued a letter opinion, dated January 16, 2009. On July 1, 2009, the circuit court entered a final order, granting judgment in favor of May in the amount of $428,995.56, which reflected the arbitration award. Specifically, the circuit court made the following rulings: (1) construction did not commence until after the filing of Chambers's mortgage; (2) Chambers's mortgage on the property had first priority while May's lien had second priority; (3) May's affidavit of account and cost-detail report were sufficient and credible evidence to substantiate its lien amount as determined by the court; (4) May had a valid lien claim in the amount of $353,904.53, and May's lien attached to tracts one and two of Phase I of the Aspen Ridge property; (5) with the filing of the lien bond, the property was freed from the encumbrance of May's lien; and (6) May could not recover against the lien bond because the value of May's lien upon foreclosure would call for speculation. May timely filed a notice of appeal and an amended notice of appeal. Town Creek cross-appealed. Subsequently, this case was certified to our court, and we now consider May's appeal. II. Commencement of Construction and Priority of the Lien For the first point on appeal, May challenges the circuit court's ruling that its lien was inferior to Chambers's mortgage on the property. Specifically, May argues that its lien relates back to the date that the construction commenced, pursuant to Arkansas Code Annotated Page 5 section (a) (1) (Repl. 2003) . May asserts that construction commenced when Vernaci mobilized workers and equipment on site as early as June 16, 2005. Town Creek, Chambers, and Ohio Casualty argue that the circuit court properly ruled that May did not commence construction until after the execution of Chambers's construction mortgage and that Chambers's mortgage had priority over May's lien. Appellees contend that the priority between a mortgage lien and a materialmen's lien is determined by Arkansas Code Annotated section The applicable statute pertaining to the priority of a materialmen's lien is set forth in Arkansas Code Annotated section We construe lien statutes strictly, as they are in derogation to the common law. BB & B Constr. Co. v. F.D.I.C., 316Ark. 663, 875S.W.2d48 (1994). Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998) . The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Wilson v. Phillips Cnty. Election Comm'n, 2011Ark When a statute is clear, it is given its plain meaning, and we will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Id. Arkansas Code Annotated section , [fnl] the lien statute, provides in pertinent part as follows: Page 6 (a) (1) The liens for labor performed or material or fixtures furnished, as provided for in this subchapter, shall have equal priority toward each other without regard to the date of filing the account or lien or the date when the particular labor or material was performed or furnished. All such liens shall date from the time that the construction or repair first commenced. (2) Construction or repair commences when there is a visible manifestation of activity on real estate that would lead a reasonable person to believe that construction or repair of an improvement to the real estate has begun or will soon begin, including, but not limited to, the following: (A) Delivery of a significant amount of lumber, bricks, pipe, tile, or other building material to the site; (B) Grading or excavating the site; (C) Laying out lines or grade stakes; or (D) Demolition in an existing structure. (b) (1) (A) The liens for labor performed or materials or fixtures furnished, as provided for in this subchapter, shall attach to the improvement on which the labor was performed or the materials or fixtures were furnished in preference to any encumbrance existing on the real estate prior to the commencement of construction or repair of the improvement. (B) In all cases in which the prior encumbrance was given for the purpose of funding construction or repair of the improvement, that lien shall have priority over all liens given by this subchapter. (2) The liens, as provided for in this subchapter, shall be enforced by foreclosure, as further provided for in this subchapter, and the property ordered sold subject to the lien of the prior encumbrance on the real estate. (c) The lien for labor performed and materials or fixtures furnished, as provided for in this subchapter, shall have priority over all other encumbrances that attach to the real estate or improvements thereon subsequent to commencement of construction or repair. (Emphasis added.) The materialmen's lien provided in this statute does not take precedence over a previously recorded construction mortgage. Dempsey v. McGowan, 291 Ark. 147, 722S.W.2d848 (1987). The parties cite the following cases: Mark's Sheet Metal, Inc. v. Republic Mtg. Co., 242 Ark. 475, 414S.W.2d 106 (1967) (holding under the previous statute that commencement Page 7 means some visible or manifest action on the premises to be improved, making it apparent that the building is going up or other improvements are to be made); Clark v. Gen. Elec. Co., 243 Ark. 399, 420S.W.2d 830 (1967) (holding that the work performed, which included grading, was not a visible or manifest action on the premises but was considered preparatory work) ; Worthen Bank & Trust Co. v. Walker, 270Ark.868, 606SW.2d 382 (Ark. App. 1980) (holding that a contractor's work of removing a fence, clearing brush, and filling a small lake constituted commencement of improvements upon the property at issue); Nat'l Lumber Co. v. Advance Dev. Corp., 293Ark.1, 732S.W.2d840 (1987) (holding that digging a sewer line, pouring footings, and staking and flagging lots did not commence construction but constituted site preparation) .[fn2] However, we note that these cases were decided prior to the present statute's codification, and we turn our focus to the application of the current statute. In the present case, the circuit court ruled that May's construction had not commenced prior to the filing of Charnbers's construction mortgage on July 20, From the bench, the court summarized the basis for its ruling as follows: [R]egarding when construction began, pursuant to Town Creek's Exhibit No. 3, there was an sent between Hal Forsyth and Mike Gilbert, the senior vice-president of May Construction, dated Thursday, June 30th. At that time, Mr. Gilbert wrote, "Hal, we are permitted and inspected and plan to be ready to go on Tuesday. We will NOT ." - capitalized - ". . . commence without your authorization." In fact, Stipulated Exhibit No. 1, the contract between the parties, states when construction will begin, and that is pursuant to Article 4, "Date of Commencement and Substantial Page 8 Completion. The date of the commencement of the work shall be the date of this agreement, unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the owner." It goes on to read, "The commencement date shall be identified in a notice to proceed issued by the owner." Now that - that was the contract language. We're back to the s on June 30th, and Mr. Forsyth wrote back to Mr. Gilbert saying, "Mike, we are okay to mobilize equipment on the site. The only thing for sure we can't . . ." - CAN apostrophe T -" can't do is to turn any dirt." Now, I realize I read that. I included the emphasis on that because the simply says, "The only thing for sure we can't do is to turn any dirt. We can go through the other items when you call." Mr. Gilbert signed a Consent to Assignment of Construction Contract dated - to Chambers Bank of North Arkansas, pursuant to Town Creek Exhibit No. 5. And the commencement date was also pursuant to a meeting agenda, pursuant to Town Creek's Exhibit No. 6. Hal Forsyth testified that there were - there was work done on the project prior to the contract that Town Creek entered into with May Construction. Homes were on the property. They were removed. There were clearings. Junk was picked up for three years, he stated. And the - Mr. Gilbert's testimony was, and I quote, because I wrote this down word for word regarding the commencement date, ". . . was not supposed to commence work until Hal told him to." He said, "Hal needed to do his banking." He also said that "there were issues over schedule and completion times, so commencement date is important," Mike Gilbert said. He also said he "knew it was on hold until the bank could file its mortgage." Now that was his testimony. It is clear to this court that the intent of the parties was - I mean, throughout this, from the signing of the original contract until after this mortgage was recorded on July 20th, that these parties intended for the banking, using Mr. Gilbert 's words, to be done and completed. And there were s back and forth between the owner and May Construction. And that construction was not to begin - did not intend for the construction to begin until after that mortgage was recorded. Now, it was the intent, clearly, of these parties that there would be no construction until after the mortgage was recorded, and I'm going to honor that. And find that the construction began after the recording of the mortgage. Now there may have been - it was signed on July 13th and filed on July 20th. There was a seven-day waiting period, but Mr. Forsyth was in contact with Mr. Gilbert during that time frame and, obviously, Mr. Gilbert testified that he knew that he wasn't supposed to turn any dirt. He knew that the - the significance of filing - of the recordation of the construction mortgage, and so the court is going to find - otherwise, in any construction project, any general contractor could go out and bulldoze trees without telling the owner and claim a priority on the lien. So in any event, the court finds that - makes that finding. (Emphasis added.) The court memorialized this ruling in its final order and judgment, dated July 1, 2009, stating, "Construction did not commence until after the filing of Chambers's Page 9 mortgage. Accordingly, Chambers's lien is of first priority, and May's lien is of second priority." Here, the circuit court's ruling - that construction had not commenced prior to the recording of Chambers's lien - was clearly based upon the intent of the parties. However, under the plain language of section , the subjective intent of the parties is not an element of the commencement of construction. In our review of the statute, the circuit court should have examined the "visible manifestation of activity" on the property, including, but not limited to, any of the four enumerated circumstances, to determine whether construction had "commenced" at the time that Chambers filed its construction mortgage. Ark. Code Ann. § (a) (2) . In other words, "commence[ment]" of construction is the date upon which a "visible manifestation of activity" has occurred "that would lead a reasonable person to believe that construction has begun or will soon begin " Id. That "visible manifestation of activity" includes an objective determination of construction activity on the property at any given time. Because the circuit court did not make these determinations, we hold that the circuit court erred in ruling that construction did not commence until after the filing of Chambers's mortgage. Accordingly, we reverse the direct appeal and remand for the circuit court to make appropriate findings consistent with this opinion. III. Cross-Appeal For its cross-appeal, Town Creek argues that the circuit court erred in finding that May perfected a lien in the amount of $353, or that May was entitled to a lien for any Page 10 amount. Specifically, Town Creek claims that May's lien is not for labor and materials provided to the property and asserts that the circuit court committed error in allowing May to rely upon speculative evidence to support its lien claim. In response, May argues that the lien amount awarded by the circuit court was not clearly erroneous. May contends that "everything is lienable" for a general contractor on a cost-plus contract except pure profits and, because profits are not included in its lien, the $40, costs, as well as any lien profits, are lienable. We have stated that findings of fact determined at a bench trial are entitled to substantial deference on appeal and should not be upset unless they are clearly erroneous. Seidenstricker Farms v. Doss, 372Ark.72, 270S.W.3d842 (2008). Here, May supplied an affidavit of account that showed Town Creek owed May an outstanding balance of $393, However, the circuit court took issue with certain charges totaling $40,091.03, which represented overhead, hotel charges, flight charges for nonemployees, and temporary toilets. From the bench, the circuit court ruled that it could not discern whether these costs included labor and materials used in the project. Therefore, because the court could not categorize these costs with any certainty, it simply subtracted that disputed amount of $40, from the outstanding balance of $393, to arrive at an amount of $353, Based upon these calculations, we cannot say that the circuit court erred. We decline to address May's lien-profit argument because it was not raised below. Reversed and remanded on direct appeal; affirmed on cross-appeal. [fnl] The current version of section codifies a portion of Act 1298 of 1995. [fn2] Prior to the 1995 amendment, courts were required to determine whether there was any "visible or manifest action on the premises, making it apparent that a building or improvement was being commenced or underway." Clark, 243 Ark. at 405, 420 S.W.2d at 834.

17 MAY CONST. CO., INC. v. TOWN CREEK CONST. & DEVL., LLC, 2011 Ark. 281
“However, under the plain language of section , the subjective intent of the parties is not an element of the commencement of construction. In our review of the statute, the circuit court should have examined the "visible manifestation of activity" on the property, including, but not limited to, any of the four enumerated circumstances, to determine whether construction had "commenced" at the time that Chambers filed its construction mortgage. Ark. Code Ann. § (a) (2) . In other words, "commence[ment]" of construction is the date upon which a "visible manifestation of activity" has occurred "that would lead a reasonable person to believe that construction has begun or will soon begin " Id. That "visible manifestation of activity" includes an objective determination of construction activity on the property at any given time.”

18 PRUITT v. DICKERSON EXCAVATION, INC., 2010 Ark. App. 849
The case concerned a contract to construct four chicken house pads. After the first two were finished, rock was encountered for the second two. After the rock work had been underway the contractor notified the owner the rock was not a part of the contract and was on a T&M basis. The contractor had signed lien waivers ‘to date’ twice after the rock work had commenced . The owner upset with the rock cost hired another contractor to finish the rock removal. The circuit court ruled that the original contract did not mention rock and that rock the agreement was separate. PRUITT v. DICKERSON EXCAVATION, INC., 2010 Ark. App. 849 Johnny PRUITT and Toni Pruitt, Appellants v. DICKERSON EXCAVATION, INC., Appellee CA Court of Appeals of Arkansas, Division IV and I. Opinion Delivered December 15, 2010 Appeal from the Franklin County Circuit Court, Northern District [No. CV ], Honorable William M. Pearson, Judge, Affirmed in Part; Reversed and Remanded in Part. JOHN B. ROBBINS, Judge. Appellants Johnny and Toni Pruitt appeal from an order entered by the Franklin County Circuit Court ruling that appellee Dickerson Excavation, Inc., was entitled to a materialmen's lien and a judgment in the amount of $30,000. On appeal, appellants argue that the circuit court erred in (1) refusing to make additional findings of fact and conclusions of law; (2) allowing parol evidence to be introduced to vary the terms of a contract; (3) failing to find that appellee had waived its lien ; (4) awarding damages to appellee; (5) failing to find that appellee's claim was barred by the doctrine of accord and satisfaction; and (6) granting Page 2 summary judgment to appellee on appellants' slander-of-title claim. We affirm in part and reverse and remand in part. Appellants are the owners of real property located in Franklin County. In late 2006, appellants decided to enter the poultry business. They obtained a bid from appellee, dated February 8, 2007, to build pads for four turkey houses for $30,000. Appellants, appellee, and Farm Credit Services of Western Arkansas, as the lender, entered into an agreement, dated April 17, 2007, for construction of the pads. The agreement called for payment of $15,000 upon completion of two pads, with the balance payable upon completion of the other two pads. Work on the project commenced on March 8, The pads were built parallel to each other, with the two middle pads completed at the end of May Appellee executed a "Waiver of Lien to Date" on June 14, 2007, and was paid $15,000. At some point after the completion of the first two pads, appellee encountered rock that either needed to be removed or covered by additional dirt before the two remaining pads could be completed. On June 29, 2007, appellee sent a letter to appellants stating that it would no longer be responsible for removing the rock at the end of the pads. The letter was signed as received by Johnny Pruitt. Appellee ceased work on the project. On July 15, 2007, appellee sent another letter to appellants stating that the rock removal was not part of the original contract and was being done on an hourly basis. This letter was also signed as received by Johnny Pruitt. After this second letter, appellants hired another contractor to break up the Page 3 rock and appellee used this rock for fill. Appellee hauled off most of the rock and appellants hired yet another contractor to complete the pad construction at the end of July On August 3, 2007, appellee executed another "Waiver of Lien to Date" and was paid $15,000. The check was marked "payment in full." Thereafter, on September 11, 2007, appellee filed a "Statement of Claim for Lien against appellants' property. The statement asserted that appellee was owed $51,825, plus interest from August 2, 2007, and attorney's fees. On September 20, 2007, appellants filed suit alleging that appellee had slandered the title to their property by filing the lien . The complaint sought compensatory and punitive damages and attorney's fees. Appellee answered and denied the material allegations of the complaint. Appellee asserted that the filing of the lien was protected by privilege and filed a counterclaim seeking to foreclose on its lien in the amount of $51,825. Apoellee moved for summary judgment, asserting that the statements in the lien were protected by absolute privilege because they were made as part of judicial proceedings to enforce its lien and that the statements were made in good faith with probable cause. In response to the motion, appellants submitted the affidavit of Johnny Pruitt in which he accused appellee of double billing for the use of its equipment and not charging only for the extra work incurred in removing the rock. Pruitt also averred that appellee's president, Doug Dickerson, told him that the rock removal would cost between $12,000 and $15,000, and certainly not over $20,000. Page 4 The circuit court granted appellee's motion for summary iudament. The court found that appellee had probable cause to file its lien because of appellants' admitted failure to pay for the extra work removing rock. The court also found that the lien was merely a preliminary step in the statutory procedure and, as such, was privileged. The court dismissed appellants' slander-of-title claim. After the circuit court granted summary judgment on appellants' slander-of-title claim, appellants made several attempts to have either their claim reinstated or appellee's lien dismissed on the basis that the lien waiver for the second draw included the rock removal. The court denied appellants' motions. The case proceeded to a bench trial. After hearing testimony, the circuit court issued a letter opinion on December 1, The court found that the parties' contract was silent as to rock and timber removal. The court also found that Johnny Pruitt acknowledged that additional money was due appellee for the removal of the rock. The court then addressed appellants' claim that there was an accord and satisfaction and found that there was no agreement by appellee to accept the $30,000 as payment of the entire sum due. The court concluded that appellee was entitled to a lien on the property and to judgment in the amount of $30,000. Each party was to bear its own attorney's fees. On December 10, 2008, prior to entry of judgment, appellants filed a motion seeking findings of fact and conclusions of law on twenty-two specific issues, many with multiple subparts. The court responded with a letter stating that its earlier letter opinion satisfied the requirements of Ark. R. Civ. P. 52. Page 5 We dismissed appellants' attempted appeal from the judgment for lack of a final order.[fnh} Following remand, the circuit court entered an order adopting the December 1, 2008 letter opinion issued by its predecessor. This appeal followed. In bench trials, the standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the judge's findings were clearly erroneous or clearly against the preponderance of the evidence. Pine Meadow Autoflex, LLC v. Taylor, 104Ark.App.262, 290S.W.3d 626 (2009). 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 made. First Nat'l Bank v. Garner, 86Ark.App.213, 167S.W.3d664 (2004). Recognition must be given to the circuit judge's superior opportunity to determine the credibility of witnesses and the weight to be given to their testimony. Brown v. Blake, 86Ark.App. 107, 161S.W.3d298 (2004). Relying on our decision in Apollo Coating Inc. v. Brookridge Funding Corp., 81 Ark.App. 396, 103 S.W.3d 682 (2003), appellants first argue that the circuit court erred by not making findings on the twenty-two issues contained in their posttrial motion. They argue that Arkansas Rule of Civil Procedure 52(a) makes such findings mandatory when a timely request is made. In our decision in Apollo, the appellant's Rule 52 motion was determined to have been timely filed because the court had made no findings of fact or conclusions of law before its judgment was entered, which is unlike the present case, where the court had previously Page 6 made findings of fact and conclusions of law in its letter opinion. Rule 52(b) controls under these facts and grants the court the discretion to amend its findings or make additional findings. Rule 52(a) and the analysis in Apollo are not applicable here. See also Southeast Ark. Landfill, Inc. v. State, 313Ark.669, 858S.W.2d 665 (1993); Weathersbee v. Wallace, 14 Ark. App. 174, 686 S.W.2d 447 (1985). Appellants' second point is that the circuit court erred in admitting parol evidence to vrv the terms of the bid proposal, the formal contract, and the lien waiver. On review, we will not reverse a circuit court's ruling allowing or disallowing evidence on the basis of the parol-evidence rule absent an abuse of discretion. Schueck v. Burns, 330Ark.780, 957S.W.2d702 (1997). The parol-evidence rule is a rule of substantive law in which all antecedent proposals and negotiations are merged into the written contract and cannot be added to or varied by parol evidence. Hagans v. Haines, 64 Ark. App. 158, 984S.W.2d41 (1998). Parol evidence may be admitted to prove an independent, collateral fact about which the written contract was silent. Hanners v. Giant Oil Co. of Ark., Inc., 373Ark.418, 284S.W.3d468 (2008). The supreme court discussed the "collateral agreement rule" in Lane v. Pfeifer, 264Ark. 162, 568S.W.2d 212 (1978), stating as follows: It is well recognized that parol evidence cannot be introduced to change or alter a contract in writing. The test of admissibility is whether the evidence offered tends to alter, vary, or contradict the written contract, or only to prove an independent, collateral fact about which the written contract was silent. In the former instance the testimony is inadmissible; in the latter, it is competent and proper. When testimony is offered to prove an independent, collateral fact about which the written contract is silent, the parol evidence rule is not applicable. Page 7 Id. at 167, 568 S.W.2d at 215 (citations omitted). We hold that the parties' written contract, prepared by Farm Credit Services, was a complete expression of the parties' agreement. Even so, after execution of the original job proposal and written contract, it is undisputed by the parties that a second contract concerning the removal of the rock was negotiated in July According to Johnny Pruitt's testimony, the second agreement concerning the rock removal and how much it cost was made in late June or early July 2007, relatively close to the time appellants retained another contractor to do the rock work. Thus, the parol evidence was not admitted to vary the terms of the original contract, but instead to establish a second and subsequent agreement. See City Nat'l Bank v. First Nat'l Bank & Trust Co., 22Ark.App.5, 732S.W.2d 489 (1987) (holding that parol evidence rule is not violated by proof of a subsequent oral agreement modifying a prior written agreement) ; Sterling v. Landis, 9Ark.App.290, 658S.W.2d429 (1983) (same). For their third point, appellants assert that appellee waived any lien it may have had by executing the lien waivers in June 2007 and in August The lien waivers reference the parties' original contract and included the file number contained on the original written contract. Inasmuch as the lien waivers clearly provided the exact liens they released, we cannot say that the circuit court clearly erred in finding that only the lien provided by the original contract was released. We turn to appellants' fourth point where they argue that the circuit court's judgment was against the preponderance of the evidence or clearly erroneous because the damages Page 8 awarded to appellee for the rock removal were not supported by sufficient evidence. The rock-removal oral agreement could not have come into existence prior to the June 27 conversation between Johnny Pruitt and Doug Dickerson. Appellee's invoices show charges for work completed prior to that date. Each bill is specific; however, the circuit court awarded appellee $30,000 for its rock removal on top of the $30,000 paid under the original contract. This finding does not comport with the invoices submitted and the oral testimony concerning what additional equipment charges would be made for rock removal. In an appeal from a bench trial, where we are unable to determine the basis for the circuit court's award of damages, we may remand for the limited purposes of clarifying the method used to determine damages and to correct any erroneous calculations. See Glover v. Woodhaven Homes, Inc., 346 Ark. 397, 57 S.W.3d 211 (2001) . We therefore reverse and remand the case to the circuit court to explain the basis of its award of damages to appellee. For their fifth point, appellants argue that an accord and satisfaction was reached between the parties when appellee cashed a check marked "payment in full." Appellants' argument on appeal is that the mere acceptance of the second $15,000 check containing the notation "paid in full" constitutes an accord and satisfaction. Our court has specifically held that it is not enough for the debtor to merely write "payment in full" or similar language on the check. Dyke Indus., Inc. v. Waldrop, 16Ark.App.125, 697S.W.2d936 (1985). Instead, the validity of an accord and satisfaction is dependent upon the same basic factors and principles that govern contracts generally, Housley v. Hensley, 10OArk.App 118, 265 SW3d 136 (2007), Page 9 and the burden of proving the agreement is simply the burden of proving a contract: offer, acceptance, and consideration. Id. The defense of accord and satisfaction presents an issue of fact, and appellants had the burden of proving accord and satisfaction. Id. Here, the circuit court found that there was no agreement between the parties whereby the $15,000 would be considered as payment in full for the entire amount due. Appellants do not challenge this finding and we cannot say that it is clearly erroneous. Finally, appellants argue for their sixth point that the circuit court erred in granting appellee summary judgment on their slander-of-title claim. Appellants? sole argument advanced on appeal on this topic is that they raised an issue of fact as to whether appellee acted maliciously when it filed its claim for a lien after having executed the two lien waivers.[fn2] The circuit court, however, did not rule on that issue. Rather, the court found that appellants' claim was barred by privilege. The order appealed from is based upon the theory of privilege, and therefore, this opinion need not address that portion of appellants' argument. See Murphy v. City of West Memphis, 352 Ark. 315, 101 S.W.3d 221 (2003); Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001) . Moreover, we have already affirmed the circuit court's finding that the lien waivers only applied to the original contract, not the subsequent oral agreement for rock removal. That finding results in appellants' slander-of-title claim being rendered moot. Page 10 See Davis v. Brushy Island Public Water Auth., 375Ark.249, 290S.W.3d16 (2008); Terry v. White, 374Ark.387, 288S.W3d 199 (2008). Because we are reversing and remanding for clarification of the basis of the damages awarded to appellee, we vacate the circuit court's award of attorney's fees to appellee in that the attorney's fee award may be impacted by the circuit court's re-examination of the damages issue. Affirmed in part; reversed and remanded in part. VAUGHT, C.J., GRUBER, and GLOVER, JJ., agree. HART and BAKER, JJ., agree in part and dissent in part. [ff1] Pruitt v. Dickerson Excavation, Inc., 2009 Ark App 871. [fn2] The dissenting opinion correctly asserts that appellants argued in their complaint for slander-of-title that the amount of the materialman's lien was excessive, and therefore malicious. However, this argument is not advanced on appeal and must be deemed abandoned. See Robbins v. Johnson, 367 Ark. 506, 51, 241SW3d747, 72 (2006). JOSEPHINE LINKER HART, Judge, dissenting in part. On appeal, we determine whether summary judgment was appropriate based on whether a material fact remains unanswered. See, e.g., 5 of 7 2/7/20119:53 AM PRUITT v. DICKERSON EXCAVATION, INC., 2010 Ark App. 849 K. C. Props. of Nw. Ark., Inc. v. Lowell Inv. Partners, LLC, 373 Ark 14, 280 S.W.3d 1 (2008) . Appellants' argument on appeal is that there remain material issues of fact on their slander-of-title claim, and therefore summary judgment was inappropriate. Using procedural intrigues, the majority dispenses with this argument. Appellants argue on appeal that they raised a genuine issue of material fact as to whether appellee acted with malice in filing its lien . Malice is the gist of a slander-of-title claim. Hicks v. Earley, 23S Ark. 251, 357S.W.2d 647 (1962). Further, while malice may be express or implied, the action cannot be maintained if the claim was asserted in good fath and was founded on probable cause or reasonable belief. Id. A fraudulent overstatement of a lien Page 11 can invalidate the lien . Lyman Lamb Co. v. Arkansas Shell Homes, Inc., 24l Ark. 83, 406S.W.2d708 (1966). The majority states that the circuit court did not rule on appellants' assertion of malice and asserts that the "order appealed from is based upon the theory of privilege, and therefore, this opinion need not address that portion of appellants' argument." The circuit court did rule on appellants' argument. Not only did the circuit court find that there was probable cause, thus finding there was no malice, the court also ruled that there was no "clear and convincing" evidence of malice to support punitive damages. And to the extent that the circuit court did find that the filing of the lien was privileged, appellants argued that appellee acted with malice, and proof of malice may defeat certain claims of privilege. See 103 Am. Jur. Trials Slander of Title Claims § 20 (2007) . I thus conclude that the issue of malice was addressed by the circuit court. Next, the majority asserts that the slander-of-title claim is moot and was abandoned on appeal. They reach this conclusion based on their observation that the majority affirmed the circuit court's finding that the lien waivers only applied to the original contract and not the subsequent oral agreement for rock removal. Presumably, the majority is asserting that appellants' slander-of-title claim was based on appellee's filing of a materialman's lien after appellee executed lien waivers that applied only to the original contract and not the oral agreement for rock removal. Page 12 This characterization of the slander-of-title claim is incorrect. Rather, in their com plaint, appellants acknowledge the existence of a construction contract for which appellee was paid $30,000. What they argued, however, in their complaint for slander of title, is that the claim for an additional $51,825 was "grossly excessive and fraudulent" and that appellee "had no just, reasonable, or probable cause to believe" the amount was correct. Appellants then concluded that appellee acted "maliciously" and slandered their title. Accordingly, the slander-of-title claim was based on appellants' assertion that appellee had filed a materialman's lien in excess of $50,000 and not on a claim that aooellee slandered their title by filing a lien after having executed lien waivers. Further, this argument was raised in appellants' brief on appeal, as appellants asserted that appellee maliciously filed the lien in that appellee made assertions it knew to be false. The majority reads appellants' argument on appeal far too narrowly to reach its conclusion that the issue of malice is moot and was abandoned on appeal. Thus, the majority fails to recognize the basis for appellants' 6 of 7 2/7/20119:53 AIVI PRUITT v. DICKERSON EXCAVATION, INC., 2010 Ark App. 849 slander-of-title claim and that appellants created question of fact on whether ppellee acted with malice in filing a lien for over $50,000. The lien was for much more than the $30,000 the circuit court awarded for rock removal. Furthermore, appellants presented evidence that Doug Dickerson stated that the rock removal would cost no more than $20,000. Also, appellee's lien claim included charges that predated the rock-removal agreement or the date that rock was actually encountered during construction and included charges for certain equipment used for Page 13 construction for which Dickerson stated he would not charge for use in rock removal. This evidence creates a factual question on whether appellee acted with malice. Thus, I respectfully dissent from the majority's decision to affirm the circuit court's grant of summary judgment on the slander-of-title claim. BAKER, J.,joins this dissent. Page 1 Copyright © 2011 CCH Incorporated. All Rights Reserved 7 of 7 2/7/20119:53 AM

19 PRUITT v. DICKERSON EXCAVATION, INC., 2010 Ark. App. 849
Accord and Satisfaction. The final check for the last two pads had “Payment in Full” written on them. “Appellants' argument on appeal is that the mere acceptance of the second $15,000 check containing the notation "paid in full" constitutes an accord and satisfaction. Our court has specifically held that it is not enough for the debtor to merely write "payment in full" or similar language on the check.”

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23 Attachments All of the Notices Sent and a copy of proof of service
A statement of account – such as the Invoice or a listing of the amounts due and all payments made reaching the balance now claimed as due. No requirement of service of this but what’s the point if this is not done.

24 How long does a party have to file a lien?
One hundred and twenty days (120) from the date that labor or materials were furnished. A.C.A. § The original contractor may file his lien at any time, but other parties must give the property owner ten (10) days notice (see notice below) prior to filing of a lien claim. Accompanying this notice must be a affdavit of notice verifying that the notice required in A.C.A. § –116 have also been given. This ten-day provision does not apply if the underlying improvements are part of a direct sale to the property owner. A.C.A. §

25 By what method does the law of this State permit the release of a lien?
Arkansas law does not specifically set out the method by which a lien my able released. However, UsLegalForm AR is a general release form which may be used for this purpose. Also worth noting, a lien must be paid within twenty (20) days of its filing or the attorney’s fees of the party claiming the lien may be assessed against the property owner. A.C.A. § Does this State permit the use of a bond to release a lien? Yes

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27 Don A. Eilbott ­­ Attorney, PLC Post Office Box Little Rock, AR Telephone      Facsimile        Cell                   Jack, Nelson, Jones & Bryant, P.A.- Of Counsel Welcome & Introduction of Speaker(s) 4/1/2017

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30 Thank You! Questions? Special appreciation to ALTA for slides
Conclusion Thank You! Questions? Special appreciation to ALTA for slides Ask your questions now or use our contact information, later in these materials, to contact us if you have questions later. 4/1/2017


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