URREY CERAMIC TILE CO., Inc. v. Robert E. MOSLEY, Thelma Mosley His Wife, First National Bank of Magnolia, Arkansas, Paul W. Sanders, Individually, and Paul Wayne Sanders Contracting Inc.
90-144
Supreme Court of Arkansas
Opinion delivered March 4, 1991
805 S.W.2d 54
Keith, Clegg & Eckert, by: W.A. Eckert, for appellee.
TOM GLAZE, Justice. This appeal primarily involves a materialman‘s lien claim and the constitutionality of
In the present case, appellees Robert and Thelma Mosley, as property owners, contracted with appellee Paul Sanders Contracting, Inc. (Sanders), as the principal contractor, to construct a commercial building. Appellant, a licensed contractor, had contracted with Sanders to furnish and install tile required in the Mosley project. Neither Sanders nor the appellant gave any notice required under
The Mosleys defended appellant‘s suit by filing a summary judgment motion, arguing that the notice exemption for licensed contractors doing commercial construction in
First, we address the appellant‘s argument that the Moselys do not have standing to challenge the constitutionality of
This court has held that to have standing to challenge the constitutionality of a statute, it must be unconstitutional as applied to the litigant. A party may not obtain a decision on the validity of a statute on the ground that it impairs the rights of others. Mahurin v. Oaklawn Jockey Club, 299 Ark. 13, 771 S.W.2d 19 (1989). But, one whose rights are affected by a statute has standing to challenge it on constitutional grounds. Macgruder v. Arkansas Game & Fish Comm‘n, 287 Ark. 343, 698 S.W.2d 299 (1985).
In Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981), we held that a beneficiary of a will had standing to argue that the statute permitting a widow to take her dower or one-third interest against the will violated the equal protection clause because no similar provision was provided for males. In holding the beneficiary had standing, this court stated the key to deciding whether the beneficiary had standing to challenge the statute‘s constitutionality was whether the party (beneficiary) stood to lose financially. Id. Likewise here, if the notice exemption provided for licensed contractors in provision (f) is found to be constitutional, then the Mosleys’ property is subject to a materialman‘s lien claim, of which they had no prior notice. In these circumstances, the Mosleys unquestionably stand to lose financially.
In addition, the Mosleys were also affected by provision (f) in another respect. As indicated previously, the primary purpose of
Since we hold that the appellees have standing, we address their argument that
(a) No lien may be acquired by virtue of this subchapter unless the owner or his authorized agent has received, by personal delivery, or by certified mail return receipt signed by addressee only requested a copy of the notice set out in subsection (c) of this section, as evidenced by the signature of the owner, prior to the furnishing of the material, fixture, engine, boiler, or machinery. The notice required by this section shall not require the signature of the owner or his authorized agent in instances where the notice is delivered by certified mail.
(b) It shall be the duty of the principal contractor to give the owner or his authorized agent the notice set out in subsection (c) of this section on behalf of all potential lien claimants under his contract prior to the supplying any materials, fixtures, engines, boilers, or machinery. Any potential lien claimant may also give notice. However, no lien may be acquired for any material, fixture, engine boiler, or machinery furnished prior to the receipt of notice by the owner or his authorized agent.
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(f) The provisions of this section shall not be applicable to commercial and industrial construction performed by contractors licensed under
§ 17-22-101 et seq.
This court has stated that all reasonable doubt must be resolved in favor of the constitutionality of a statute, and the burden of proving a statute to be unconstitutional is upon the party challenging it. Citizens Bank v. Estate of PettyJohn, 282 Ark. 222, 667 S.W.2d 657 (1984). And, if it is possible for this court to construe a statute as to meet the test of constitutionality, it will do so. Taylor v. Finch, 288 Ark. 50, 701 S.W.2d 377 (1986).
The appellees argue and the trial court held that provision (f) is unconstitutional because it granted a special privilege to a “class” of people (licensed contractors) not belonging to all. As set out above, provison (f) exempts licensed contractors performing commercial and industrial construction from giving notice to property owners. Of course, the equal protection clause does not prohibit all statutory classification. Yarbrough v. Ark. State Hwy. Comm‘n, 260 Ark. 161, 539 S.W.2d 419 (1976). Classification is permissible if it has a rational basis and is reasonably related to the purpose of the statute. Dicks v. Naff, 255 Ark. 357, 500 S.W.2d 350 (1973), cert. den., 415 U.S. 958 (1974).
In reviewing,
Appellant argues that commercial property owners are more sophisticated than residential owners and that
First we are not persuaded that a person hiring a licensed contractor to do commercial or industrial construction needs less protection than a person doing residential construction. Such an argument erroneously assumes that all persons building commercial or industrial facilities are more sophisticated than those involved in residential construction — a presumption that we cannot indulge. Second, while we are aware that licensed contractors are subject to strictures and qualifications that unlicensed contractors are not, see
Finally, the mere fact that a contractor is licensed and is performing commercial or industrial construction does not remove the property owner‘s constitutional right to have notice of lien claims so the owner can protect his or her property. On this point, we recognize that the trial judge did not address the notice question in due process terms. However, in making their constitutional argument below, the Mosleys not only relied on their equal protection argument, but also broadly cited to the fourteenth amendment to the United States Constitution when discussing
For the reasons stated above, we affirm.
BROWN, J., concurs.
ROBERT L. BROWN, Justice; concurring. I would affirm solely on the basis of lack of notice to the property owners, that is, on due process grounds.