Byars Construction Company, L.L.C. v. P&C Management and Construction, L.L.C., Le Van Dang and Tuyetnga T. Dang
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JOSEPHINE LINKER HART, JUDGE
DIVISION I
CA06-807
February 28, 2007
BYARS CONSTRUCTION
COMPANY, L.L.C.
APPELLANT
v.
P&C MANAGEMENT AND
CONSTRUCTION, L.L.C., LE VAN
DANG and TUYETNGA T. DANG
APPELLEES
AN APPEAL FROM JEFFERSON COUNTY
CIRCUIT COURT
[No. CV2004-87-1]
HONORABLE BERLIN JONES,
CIRCUIT JUDGE
REVERSED and REMANDED
This appeal is brought from an order dismissing the complaint of appellant Byars
Construction Company, LLC, against appellees P&C Management and Construction, LLC,
and Le Van and Tuyetnga Dang. We dismissed the first appeal in this case because the order
appealed from did not dispose of all of the claims filed by the parties and did not contain an
Ark. R. Civ. P. 54(b) certificate. Byars Constr. Co. v. P&C Mgmt. & Constr., No. CA051237 (Ark. App. May 3, 2006) (not designated for publication). That deficiency has now
been corrected, and Byars raises three points on appeal. We find merit in Byars’s first point
and reverse and remand for further proceedings without reaching the other points.
On February 5, 2004, Byars filed a complaint against P&C Management and the
Dangs to foreclose on a lien. The complaint alleged that P&C, as general contractor, and the
Dangs, as property owners, had hired Byars to do the carpentry and frame work on a 7,141square-foot residence. According to Byars, its work was ninety-five percent complete and
it had received all but $11,742.32 of the amount due it when P&C hired another crew to
complete the job. Byars asserted a lien on the property and sought judgment for that amount.
The complaint also alleged that Byars served the statutory notices on both P&C and the
Dangs.
P&C and the Dangs each filed answers to Byars’s complaint, asserting, among other
things, that the complaint failed to state facts upon which relief could be granted, along with
individual counterclaims. P&C’s counterclaim sought judgment against Byars for $5,754,
alleging that, as a result of Byars’s failure to timely or satisfactorily complete the job, P&C
was required to hire another crew and expend money over and above the contract price. The
Dangs’ counterclaim sought an unspecified amount of compensatory and punitive damages
against Byars for slander of title. Byars filed a cross-claim against P&C for judgment in the
event the Dangs were successful on their counterclaim.
By order entered September 12, 2005, the trial court dismissed Byars’s complaint,
ruling that Byars had neither adequately pled entitlement to the lien nor provided the Dangs
with the lien notice required by Ark. Code Ann. § 18-44-115 (Supp. 2005). Byars appealed,
but this court dismissed the first appeal because the record did not reflect that P&C’s or the
Dangs’ counterclaims were dismissed or otherwise resolved. On remand, the trial court
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entered an order dismissing Byars’s complaint and further certifying the case for appeal in
accordance with Rule 54(b). Byars timely filed its notice of appeal.
In reviewing a dismissal order pursuant to Ark. R. Civ. P. 12(b)(6), we treat the facts
alleged in the complaint as true and view them in the light most favorable to the plaintiff.
Branscumb v. Freeman, 360 Ark. 171, 200 S.W.3d 411 (2004). In viewing the facts in the
light most favorable to the plaintiff, the facts should be liberally construed in plaintiff’s
favor. Id. We look to the underlying facts supporting an alleged cause of action to determine
whether the matter has been sufficiently pled. Clayborn v. Bankers Standard Ins. Co., 348
Ark. 557, 75 S.W.3d 174 (2002).
Byars first argues that its complaint, as amended, stated facts sufficient to allege a
cause of action against both P&C and the Dangs. The trial court relied on two grounds in
dismissing Byars’s complaint: first, that the complaint failed to differentiate between the
amount owed for work Byars had already completed and the amount owed to Byars as the
benefit of its bargain; and second, that the complaint failed to allege that proper notice of the
lien was given. We will discuss the two grounds in reverse order.
Our materialmen’s lien statutes, in Ark. Code Ann. §§ 18-44-114 and 18-44-115,
provide two separate notice provisions. Books-A-Million, Inc. v. Arkansas Painting &
Specialties Co., 340 Ark. 467, 10 S.W.3d 857 (2000). Both notices are required. Id. In its
complaint, Byars alleged that it “caused statutory notices to be timely and duly served upon
all defendants listed un [sic] paragraph 1 above statutory notices of its intent to file a lien
against the above described lands....” Attached to the complaint were lien notices addressed
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to P&C and each of the Dangs, as well as affidavits purporting to show service of the notices.
In the various amendments to the complaint, Byars asserted that no notice was required
because the Dangs were either controlling and directing the work or acting as the prime
contractor. However, in each amendment, Byars also asserted that it had sent the proper
notices in a timely manner. We must take these allegations as true for purposes of these
motions. Branscumb, supra. Because it was alleged that notice was given, it is irrelevant
whether the Dangs were acting as the contractor, thus excusing the notice requirement. It is
also irrelevant at this point in the proceedings whether the Dangs actually received the
notices. The issue of whether the Dangs received the notices is not implicated in a Rule
12(b)(6) motion; that is an issue of proof for a later stage of the proceedings. Therefore, the
trial court was in error in dismissing Byars’s complaint for failure to allege that notice was
given.
The trial court also based its dismissal of Byars’s complaint on the fact that the
complaint did not differentiate between the amount of money owed for work Byars had
performed and the total amount owed to Byars as the benefit of its bargain. In other words,
the trial court dismissed the complaint because Byars was seeking a lien for work that it had
not performed. Thus, the trial court recognized that there were two distinct issues — the
amount of money Byars was owed and the extent of its lien. However, the trial court appears
to have conflated those issues in deciding the motion to dismiss.
This court has recognized that a materialmen’s lien extends only to the labor and
materials actually used in the construction project. Hickman v. Kralicek Realty & Constr.
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Co., 84 Ark. App. 61, 129 S.W.3d 317 (2003); Del Mack Constr., Inc. v. Owens, 82 Ark.
App. 415, 118 S.W.3d 581 (2003). However, that does not prevent the contractor from
seeking judgment for the full amount owed to the contractor. Hickman, supra. It also does
not mean that a complaint seeking the full amount owed fails to state a cause of action, which
is what a Rule 12(b)(6) motion is designed to test. Perry v. Baptist Health, 358 Ark. 238, 189
S.W.3d 54 (2004). In Hickman, this court held that, although a materialmen’s lien did not
extend to cover a contractor’s profit, the contractor could nevertheless seek the full amount
it was owed.
The facts, as pled by the amendments to the complaint, are as follows. P&C, as the
subcontractor in charge of the framing work, and the Dangs, as property owners, had hired
Byars to do the carpentry and frame work on a 7,141-square-foot residence. The contract
price was $42,846, plus the costs of Byars’s nails. Byars had completed ninety-five percent
of the work when P&C, through its agent Wong “Sonny” Ha, fired Byars from the job,
thereby breaching the contract. Byars alleged that it had received all but $11,742.32 of the
amount due. It therefore asserted a lien on the property and sought judgment for that amount.
These allegations are sufficient to survive a Rule 12(b)(6) motion to dismiss because,
generally, in order to state a cause of action for breach of contract the complaint need only
assert the existence of a valid and enforceable contract between the plaintiff and defendant,
the obligation of defendant thereunder, a violation by the defendant, and damages resulting
to plaintiff from the breach. Perry, supra. A proper resolution of a Rule 12(b)(6) motion does
not involve a trial court’s consideration of the merits of a case. Speights v. Stewart Title
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Guar. Co., Inc., 358 Ark. 59, 186 S.W.3d 715 (2004). Therefore, the trial court erred in
dismissing Byars’s complaint on the basis that it was claiming a lien for work it did not
perform.
We reverse the trial court’s dismissal of Byars’s complaint and remand for further
proceedings.
Reversed and remanded.
P ITTMAN, C.J., and B IRD, J., agree.
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