# FILED May 1, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT KNOXVILLE

_______________________________________________________ ) POTTER’S HOME CENTER, INC. , ) Anderson County Chancery Court d/b/a POTTER’S HOME CEN TER , ) No. 95CH3775

) Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 03A01-9710-CH-00467 ) LAUREN DALE TUCKER , and , ) WILBURN R. VILES, SR. and wife, ) MILDRED E. VILES, and the ) GUARANTY TITLE COM PANY, and ) FIRST AMERICAN NATIONAL BANK ) ) Defendants/App

ellees. ) )

______________________________________________________________________________ From the Chancery Court of Anderson County at Clinton. Honorable William E. Lantrip, Judge
Thomas C. Coleman, Jr. , Jamestown, Tennessee Attorney fo

r Plaintiff/Appell

ant.
Dail R. Cantrell , CANTRELL, PRATT & VARSALONA, Clinton, Tennessee Attorney fo

r Defendants/Ap

pellees.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. HIGHERS, J. : (Concurs) LILLARD, J. : (Concurs)1 Potter’s lawsuit a lso named Laur

en Dale Tucker

, the Guaranty

Title Company

, and First American National Bank as defendants; however, the trial court’s order indicates that it disposed of any claims against these defendants in a prior order
. Potter’s Home Center appeals the trial court’s summary judgment which dismissed its suit to enforce a

materialman’s lie

n against Defe

ndants/Appellee

s Wilburn R. Viles, Sr

., an d Mildred E. Viles. We affirm the trial court’s judgment based on our conclusion that Potter’s failed to comply with the applicable notice requirements of the mechanics’ a

nd materialmen’s

lien statutes.

For purposes of these summary judgment pro ceedin gs, the following facts were undisputed. Defendant Lauren Dale Tucker purchased building materials and supplies from Potter’s for use on property owned

by the Viles in Anderson County. The subject property was known as the “old Dairy Queen” property and was located within the city limits of Clinton, Tennessee. Tuc ker subsequently

di d not pay for

many of the i

tems he purchase

d from Potter’s for

use on the Vile s ’ property. Potter’s, therefore, sought to establish a materialman’s lien against the property by providing the statutorily- required notice of nonpay ment to the owne r s of the property , the Viles. See T.C.A. § 66-11-115(a) (1993). Instea d of serving the notice of nonpayment by registered or
c ertifiedmail as required by statute, two of Potter’s employee s hand delivered the notice to Mr
. Viles’ office. See T.C.A. § 66-11-145(a) (1993). Both employees gave the same accoun

t of their delivery of the notice:

I returned to the office of Wilburn R. Viles, Sr. and lef

t a copy with his secretary on her desk. She was very busy and Mr. Viles was not available because he was suppos edly ve ry busy also, as I was

so informed by his Secretary.

Potter’s the reafter fi led this lawsuit against the Viles to enforce the materialman’s lien. The Viles responded by filing a motion for summary judgment in which they contended that Potter’s could not enforce the materialman’s lien because Potter’ s failed to comply with the notice of nonpayment requirements as set forth in the mechanics’ and materialmen’s lien statutes. The trial court granted the motion, and this appeal followed. 1

In order to establish a

lien on property on which work is done or labor and mate

rials
are furnished, a claimant must provide a notice of nonpayment to the landowner in accordance with2 Section 66-11-115 (a) contains the following provis

ions: Every journeyman or other pe rson contracted with or employed to work on the buildings, fixtures, machinery, or improvements, or to furnish materials for the same, whether such journeyman, furnisher, or other person was employ ed or contracted with by the person who originally contra cted with the owner of the premises, or by an immediate or remote subcontractor acting unde r contract with the

original contra

ctor, or any

subcontractor, s

hall have this lien for

such work or mate

rial; provided, that the subcontractor, labor

er or materialman satisfie s all of the requirements set forth i

n § 66-11-145, if app

licable
. T.C.A. § 66-11-115(a) (1993) (emphasis added).

3 The legislature enacted these new requirements in 1990. See 1990 Tenn. Pub. Acts. 854. the mechanics’ and materialmen’s lien statutes. T.C.A. § 66-11-115(a) (1993). 2 As pertinent, the mechanics ’ and materialmen’s lien statutes contain the following notice of nonpayment requirements: 3
Every subcontractor, laborer or materialman contracted with or employed to work on buildings, fixtures, machinery, or improvements,

or to furnish materials for the same, except onefam ily, two-family, three-family and f our-f am ily residen

tial units, whether such subcontractor, laborer or materialman was employed by or contracted with the person who or igin ally contracted with the owner of the premises or b y an immediate or remote subcontractor acting und er con tract with the original contractor, or any subcontractor, shallprovide, within sixty (60) days o

f the last day of the mo nth within which work, services or materials were provided, a notice of nonpayment for such work, services or material s to th e owner and contractor contracting with the owner if its acco

unt is, in fact, unpaid. The notice, wh ich shall be served by registered or certified mail, return receipt requested , shall contain: . . . .
T.C.A. § 66-11-145(a) (1993) (emphasis added).

At the outset, we note that the fore going provision

s do not permit a

supplier claiming
a materialman’s lien to hand deliver the required notice of nonpayment. The provisions instead require the claimant to serve the notice “by r egistered or certified mail, return receipt requested.” T.C.A. § 66-11-145(a) (1993). In the present case, the evidence shows that Potter’s employees hand delivered the required notice of nonpayment to Mr. Viles’ office but that Potter’s did not serve the notice by registe

red or certifie

d mail a s re quired by the mechanics’ and m

aterialmen’s sta

tutes. Inasmuch as Potter’s did not s

atisfy the r

equirements of se

ction 66-11-145(

a), Potter’s is

not entitledto a mat eri alm an’s lie n on the pro pert y.
Despit e the for egoing statuto

ry require

ments, Potter’s ar

gues on appeal t

hat its employees’ hand delivery of the notice of nonpay ment constituted sufficient service of the notice as required by

section 66-11-14

5(a) because th

e Viles thereby

received actua

l notice of nonpay

ment. This court considered and, ultimately, rejected a similar argument in Don Wood Plumbing Co. v. Tri-Pi, Lt d. , No. 0 1A01-9304-CH-00162, 1993 WL 350114 (Tenn. App. Sept. 15, 1993). There, the plaintiff failed to comply with the notice of nonpayment

requirements

of section 66-11-145(a) in that the plaintiff

’s notice did not sho

w th e la st date the plaintiff performed work or provided materials in connection with the improvements to the real property. See T.C.A. § 66-11-145(a)(3) (Supp. 1990) (providing

that notice shall

contain, inter alia , a “statement of the last date the claimant performed work and/or provided services or mate

rials in conne ction with t he imp rovem ents” ). In urging this court to

affirm the trial court’s judgment enforcing the lien, the plaintiff argued that the landowner

had actual notice of the last da te the work was performed and that the plaintiff substantially

complied with

the notice provisions o

f the mechanics’ and materialmen’ s lien statutes. Don Wood Plumbing , 1993 WL 350114, at *2.

In rejecting

the plaintiff’s a

rgument, this cou

rt reasoned that:

The courts h a ve uniformly held that strict compliance with the mechanics’ and materialmen’s lien statutes is re quired in order to establish a subcontractor’ s lie n against the owner. See D.T. McCall & Son s v. Seagraves , 796 S.W.2d 457 (Tenn. App. 1990) (defectiveoath on the complaint seeking to enforce the lien); SequatchieConcrete Service v. Cutter Labs , 616 S.W.2d 162 (Tenn. App. 1980) (improper

description of the property in the notice to the owne r); Pul

aski Lumber Co., Inc. v. Harpeth South, Inc. , 501 S.W.2d 275 (Tenn. 1973) (notice of liens not sworn to in compliance withthe statute s); Cha ttanooga Lumber & Coal Corp. v. Phillips , 202 Te n n. 266, 304 S.W.2d 82 (1957) (notice to the owner must be registered and authenticated as provided by statute). The reasoning behind all of these decisions was expressed by the Supreme Court in McDonn ell v. A mo , 162 Tenn. 36, 34 S.W.2d 212 (1931): A materialman’s lienis [altogether] sta tut ory, and, when the lawmaking body pr es cribes the terms upon which it may be

asserted, it is beyond the powero f th is court to waive it

s provisions or subst

itute others. 162 Tenn. at 41, 34 S.W.2d at 213. We find that the plaintiff in this ca se failed to stric

tly comply withthe requirements of the notice of nonpayment. Failure to comply results in the denial of any lien to the plaintiff. The plaintiff in si sts that the landowner had actual notice of the date the last work was performed on the project by the plaintiff. We can find no provision in the sta tute that dispense

s with the obligation to provide the statutory

notic e where the landowner has actual knowledge of the facts contained in the notice. Therefore, we think that fact is irrelevant to the legal question involved here. Unless we arewilling to depart from the longstanding rules set out in the cases in this state and hold that substantial compliance withthe mechanics’ and

materialmen’s lien statutes is sufficient, the plaintiff’s claim in this case m ust fail. We are not persuaded to do so.
Don Wood Plumbing , 1993 WL 350114, at **1-2 (emphasis in original).

In accordance w

ith this court’s reasoning in Don Wood Plumbing , we hold that the trial court properly

dis mis sed Potter’s actio

n to enforce the l

ien because Potte

r’s failed to stric

tly comply withthe notice of nonpayment provisions of the mechanics’ and materialmen’s lien statutes. Even if, as Potter’s co

ntends, the Viles h

ad actual knowle

dg e of the notice of nonpayment, such knowledge is irrelevant to the issue before this court. As in Don Wood Plumbing , Potter’s failure to strictly comply with the statut ory req uirements of the notice of nonpayment must result in the denial of any

lien to Potter’s.
The trial court’s judgment is affirmed, and this cause is remanded for further proceedings.

Costs of this appeal

are taxed to

Appellant, for which executionmay i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ HIGHERS, J. (Conc

urs)

______________________________ LILL ARD, J. (Concurs)